Is Congress tipping the country toward decriminalizing all drugs?

Will all mind-altering drugs eventually be decriminalized by the federal government?  With its decision to regard drug addiction as an “disease” and “epidemic” and to thereby emphasize treatment over personal responsibility and the deterrence provided by the criminal law, has Congress laid the groundwork?

Before the break for the party conventions and the annual August recess,Congress passed and President Barack Obama signed into law the almost unanimously approved Comprehensive Addiction and Recovery Act. Democrats and Obama have complained of insufficient funding for the programs in the new law, but that can be taken up in the new session of Congress starting in September. and in the rump, post-election session. The public emphasis of the members of Congress in advocating for the law has been on helping blameless people in need of drug treatment, that is, a kind of constituent service.  So, with the upcoming elections, will Congress increase funding this fall?

The new law, enthusiastically celebrated as a showpiece of bi-partisanship, is long and full of details, almost all of which were never discussed or addressed publicly in Congress and never reported on by the media. In advocating for the proposed legislation, many members of Congress brought forth pathetic stories of drug addiction of some of their constituents. Apparently, this act of legislating by an appeal to pity was considered sufficient “consideration” of legislation that is going to have far-reaching consequences that the public has no ability to understand. Since support was overwhelming, there apparently was no need to publish a detailed summary or comprehensive committee report. And neither house did. In the on-the-record discussion of the bill, the possible benefits of enforcing the extant laws on illegal drugs was put way into the background, and, indeed, essentially repudiated.

The fundamental transformation away from personal responsibility and drug prosecution has now been put into place. As Senator Rob Portman (R-OH), the leading advocate for the new consensus, recently stated at a Senate hearing, “This is an illness, this is to be treated as a disease.” In agreement, Representative John Conyers (D-MI) said on the House floor that: “We now have a better way of addressing issues of addiction, and we know that incarceration is not the answer.” In citing President Obama’s strong support for the new approach, the White House has stated that “science demonstrates that addiction is a disease of the brain” and that “prevention and access to treatment” should be emphasized over incarceration.” Virtually all national organizations involved in drug addiction issues, that is, organizations who have a self-interest not only in “treatment” but in prolonged treatment, are in agreement.

The centerpiece of the new law is the broad expansion of the prescribing of substitute drugs for drug addiction, or, as the new law euphemistically states, “medication-assisted treatment for recovery from addiction.” Methadone, itself an opioid, has been prescribed by doctors for years as a treatment for addiction to the opiate heroin and other narcotic drugs. Thus: opium as an antidote to opium. Methadone does not cure the addiction but is supposed to control it – with a lesser “high.” Although it is never mentioned in public discussion, methadone itself is a highly abused drug, and is now, in fact, a leading cause of drug deaths. But the new law goes beyond methadone. Whereas methadone is dispensed only in clinics as part of a structured program, the new law provides for a dramatic increase in the use of another opioid, buprenorphine, to be prescribed and used individually, outside of clinics, by direct prescription in a physician’s office, thus greatly increasing its dissemination. What is more, the new law allows physician’s assistants and nurse practitioners to write the prescriptions. And, separately from the new law and in anticipation of it, the Obama Administration recently issued a new regulation allowing practitioners to nearly triple the number of patients they can be prescribe buprenorphine. Like methadone, buprenorphine causes its own high, and its abuse has been associated with drug deaths.

In its main sections replacing criminal prosecution and procedures with treatment and “alternatives to incarceration,” the new law provides for a general creation and extension of already existing “alternatives to incarceration.” A specific example is the diversion from prosecution of some arrestees to the relatively new phenomenon of “mental health courts.” In such courts, those who are arrested for drug crimes (defined as “misdemeanors or nonviolent offenses”) and who have apparent mental disorders may have their charges dismissed or sentences reduced if they agree to mental health treatment. This, then, includes the kind of drug felonies that are nowadays being called “nonviolent.”

The new law also promotes the increasingly used drug courts. Under current law (passed in 2008), a “violent offender” is excluded from drug courts; but a “violent offender” is defined only as a person who commits a felony act of violence, normally with a possible imprisonment of more than one year. So, serious but misdemeanor assaults by persons on drugs could be dealt with and possibly dismissed in drug courts. Reinforcing this trend to define violence down, the new law extends the therapeutic goals of mental health and drug courts.

In addition to the several sections of the law that put into place the new procedures and methods of dealing with drug addition, the new law contains the highly unusual and perhaps unprecedented section: “It is the sense of the Congress that decades of experience and research have demonstrated that a fiscally responsible approach to addressing the opioid abuse epidemic and other substance abuse epidemics requires treating such epidemics as a public health emergency emphasizing prevention, treatment, and recovery.” This is quite obviously an open-ended license – or actually an order — now written into law to minimize or eliminate drug prosecutions across the board. And with the usual enticements of federal funding, it will apply not only to federal and but also to state criminal proceedings.

Another section provides for a study by the General Accounting Office (GAO) which makes the further decriminalization of all drugs more likely. The study will critique the social consequences, excluding the actual criminal sentences, of convictions for “nonviolent related offenses,” which obviously includes drug-trafficking felonies. In addition to providing another rationale for the non-prosecution of drug crimes, the preordained results of this “study” will set the stage for the elimination of criminal records. Employers, including, for instance, schools and churches, and landlords will not be able to use checks of criminal records as a basis for hiring, firing, and renting.

The Addiction and Recovery Act substituting treatment for criminal prosecution is in harmony with the cutting back of drug sentences proposed by the pending and also bi-partisan legislation, the Sentencing Reform and Corrections Act. Under that bill, the definition of prior drug convictions would be re-defined and liberalized, and mandatory minimum sentences for second and third drug convictions would be reduced. In addition, already-incarcerated drug offenders who trafficked in “crack” cocaine would be allowed ex post facto reductions in their sentences. What is more, another provision would allow supposedly “nonviolent” drug offenders to receive newly-reduced sentences. With a new definition of the “manufacture” of illegal drugs, another provision would make it more difficult to prosecute such crimes. And the proposed law would reduce the applicable mandatory minimum sentence from ten to five years by minimizing prior drug convictions.

The new law emerged primarily out of public concern and widespread publicity about the abuse of prescription pain drugs, especially oxycodone, hydrocodone, and fentanyl. But there has been no public discussion of the fact that the entire “epidemic” has been initiated in and revolves around the medical field. The key persons are doctors, that is, the only persons legally authorized to distribute controlled drugs. They over-prescribe painkilling drugs to their patients and thus start other chains of events like their patients’ sale of those drugs to addicts. Abusers of pain killers know that they can shop for a doctor who will prescribe the painkillers that they want. It is market driven. If one doctor declines, another will prescribe. Congress did not have the fortitude to confront the medical establishment about this underlying foundation of the prescription drug epidemic. And in fact, the medical specialty of “pain management” (first recognized only in 1978) is actually incorporated into the new law and the new federal programs established by the new law. The new federal task force on pain management not only includes pain specialist doctors but also “pain management professional organizations,” which, to state it again, have a self-interest, a financial stake, in almost all provisions of the new law.

By unassailable logic in agreement with the new law, the pot lobby, NORML, has helpfully suggested that marijuana be legalized as a treatment for opioid addiction. If we have opium as a treatment for opium, we may as well have marijuana as a treatment for opium.

Deliberately obscured in all the therapeutic rhetoric about “treatment” and supposed “recovery” is the basic reality that there is no cure for drug addiction.  No studies show that drug addiction can be “cured” in the sense that numerous diseases and medical conditions are cured. All studies and evaluations of treatment programs are limited by the short time span in contact with the subjects.  Because drug patients are “clean” for one year has nothing to say about whether they were clean for two years or about the lifelong effect of drug addiction.

Congress has now set the country on a course of decriminalizing all or most hard drugs. The new law concerns itself not at all with personal responsibility and the deterrence and moral correction provided by prosecution, criminal penalties, a criminal record, and public shame. If drug addiction is a disease, it is a unique one. The common understanding is that a disease happens to a person and is not initiated and assisted by the active choices and knowing acts of the person diseased. And the new availability of “treatment” for the disease may turn out to be an incentive, a safety valve, for beginning or continuing the use of drugs.

Other consequences and implications of decriminalizing hard drugs are as yet unknown, but the country will find out soon enough.  

Ascik recently retired as a federal prosecutor.

The views expressed by Contributors are their own and are not the views of The Hill.