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Drug Policy

Find Your State

Know the laws in your state that protect LGBT people and people living with HIV.

FEDERAL INITIATIVES

The Trump Administration is (1) increasing funding for criminal legal responses to drug use, (2) decreasing funding for drug treatment and prevention, and (3) increasing prosecution of drug offenses.

The Trump Administration has identified drug law enforcement and combating drug trafficking as top criminal justice priorities.[88]  Yet, criminalization has proven to increase violence associated with the drug trade and to be ineffective in addressing the conditions and crises of drug misuse and addiction, mental illness, poverty and homelessness, which are more effectively addressed through treatment and education.[89]  Public health research shows the value of education, treatment, and healthcare in improving these conditions, which criminalization and detention fail to do.[90]

Increasing Funding for Law Enforcement

The White House’s most recent budget request further underscores the Administration’s move toward mass incarceration for drug use and away from treatment and prevention options.  The current budget proposal, like the FY17 budget, increases funding for a number of the DOJ agencies responsible for criminal legal responses to drug use, such as the Drug Enforcement Agency (DEA).

Decreasing Funding for Treatment and Prevention

The White House’s budget proposal also decreases funding for government agencies focused on treatment and prevention, such as the Substance Abuse and Mental Health Services Administration (SAMHSA) and the Office of National Drug Control Policy (ONDCP).[91]

Increasing Prosecution of Drug Offenses & Reversing Progressive Reforms  

In an April 2016 Senate drug hearing then-Senator Sessions famously claimed, “Good people don’t smoke marijuana.”[92]  Attorney General Sessions is now calling for an increase in prosecutions of drug crimes, including marijuana-related offenses.  After a White House announcement that it would be cracking down on recreational marijuana use, Attorney General Sessions sent a letter to members of Congress asking them to lift rules prohibiting him from enforcing federal law in states that have legalized medical marijuana use.  And in January 2018, Attorney General Sessions ended the policy that deprioritized enforcement of federal anti-marijuana laws in states that legalized sale and consumption of marijuana.[93]

In his May 10, 2017 Memo to federal prosecutors, Attorney General Sessions instructed prosecutors to “charge and pursue the most serious, readily provable offense,” clarifying that the most serious offenses are “those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”[94]  Though Attorney General Sessions did not explicitly reference drug crimes in this memo, most mandatory minimum sentences apply to drug offenses.

In August 2017, Attorney General Sessions announced the formation of the “Opioid Fraud and Abuse Detection Unit,” which provides additional funding and staff dedicated to the prosecution of “health care fraud related to prescription opioids.”  In his speech announcing the new Opioid Fraud and Abuse Detection Unit, Attorney General Sessions said,

“In recent years, some of the government officials in this country have sent mixed messages about the harmfulness of drugs. We must not capitulate intellectually or morally to drug use. We must create a culture that is hostile to drug abuse.”

Underscoring his misunderstanding of a “prevention” model, Attorney General Sessions exclaimed, “Prevention is what we at the Department do every day – because enforcement is prevention.” [95]

The DOJ’s approach to drug enforcement has intensified over the last year. In March 2018, President Trump announced that the Department of Justice would seek the death penalty in drug trafficking cases.  Attorney General Sessions followed the President’s announcement by ensuring federal prosecutors that there is a legal basis for seeking the death penalty in drug trafficking cases.[96]

Additionally, international bodies such as the United Nations Office on Drugs and Crime have recognized that criminalization does not deter drug use and that such punitive policies actually harm the health and well-being of people who inject drugs (PWID).[97]   A 2017 global review of 106 studies on the relationship between HIV and criminalization of drug use showed that criminalizing drug use harms HIV prevention and treatment efforts among PWID.[98]  Nevertheless, all U.S. states and the federal government still criminalize drug possession, and police officers around the country make more arrests for drug charges than for any other crime. 

IMPACTS ON LGBTQ PEOPLE AND COMMUNITIES

Higher rates of drug use and disproportionately high rates of police contact mean that LGBTQ people are particularly likely to be swept up in the Administration’s efforts to return to the failed “war on drugs.”  Numerous studies show that LGBTQ people are more vulnerable to problematic substance use due to factors including minority stress, higher rates of mental health disabilities, and a lower likelihood of strong family or community support.

A recent study showed that nearly 40% of sexual minorities used illicit drugs in the past, compared to 17% of the public.[99]  Nearly 30% of transgender and gender nonconforming respondents to the 2015 U.S. Transgender Survey also report past use of illicit drugs.[100]

Barriers to health care for transgender people can also lead to increased vulnerability to self-medication, which can be charged and prosecuted as a criminalized offense.  In the 2015 U.S. Transgender Survey, 25% of respondents reported being denied coverage for transition-related hormone replacement therapy (HRT), and 33% of respondents reported avoiding healthcare services that they needed due to fear of being discriminated against by providers.[101]  When prescription HRT is out of reach, some transgender people turn to non-prescribed “street” hormones.  A person using hormones may also be arrested and charged for possession of “drug” paraphernalia or unauthorized use of prescription medication.[102]

Rates of police contact are exponentially higher for LGBTQ people of color, who are profiled both on the basis of their race or ethnicity and their sexual orientation, gender identity or expression.  The risk of criminalization is compounded by the fact that transgender people, and particularly transgender people of color, disproportionately experience homelessness and poverty and are frequently targeted by law enforcement.[103]  For example, homeless youth—an estimated 40% of whom identify as LGBTQ—may rely on selling and trading drugs and sex in order to survive.[104]  One study of people living with HIV who inject drugs found that more than half of the respondents reported being homeless, and 30% of respondents reported prior incarceration.[105]

OPPORTUNITIES FOR LOCAL RESISTANCE

State and local advocates can deploy a number of strategies to protect targeted communities from the impacts of these federal administrative and legislative initiatives, including:

  • Advocating for local federal U.S. attorneys to fully exercise their discretion to not pursue the highest possible charge in the maximum number of cases, and to consider alternatives to prosecution of drug offenses;
  • Working with local legislators to resist enforcement of federal marijuana laws in local and state jurisdictions;
  • Advocating for drug decriminalization at the local, state, and county levels;
  • Advocating for the decriminalization of syringes and other drug paraphernalia. 
  • Connecting with state and local harm reduction organizations who make up the national Harm Reduction Coalition; [106] and
  • Calling for effective oversight of drug enforcement task forces, and particularly those operating in counties receiving High Intensity Drug Trafficking Areas funding, and calling for an assessment on the impact on the use of funds on communities. [107]
[88] Greg Allen, Trump Says He Will Focus On Opioid Law Enforcement, Not Treatment, Nat’l Pub. Radio (Feb. 7, 2018, 4:22PM), https://www.npr.org/sections/health-shots/2018/02/07/584059938/trump-says-he-will-focus-on-opioid-law-enforcement-not-treatment.
[89] Redonna K. Chandler et al., Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety, 301(2) J. of Am. Med., 183-190 (Jan 14. 2009), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2681083/.
[90] Nat’l Inst. on Drug Abuse, Understanding Drug Abuse and Addiction: What Science Says (Feb. 2016), https://www.drugabuse.gov/publications/teaching-packets/understanding-drug-abuse-addiction/section-iv/4-effectiveness-treatment.
[91] Press Release, Drug Pol’y Alliance, Trump Budget Doubles Down on Drug War (Feb. 12, 2018), http://www.drugpolicy.org/press-release/2018/02/trump-budget-doubles-down-drug-war; Michael Collins, Just Say No to Trump's Drug War Budget, Drug Pol’y Alliance (Feb. 16, 2018) http://www.drugpolicy.org/blog/just-say-no-trumps-drug-war-budget.
[92] Christopher Ingraham, Trump’s pick for attorney general: ‘Good people don’t smoke marijuana’, Wash. Post (Nov. 18, 2016), available at https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.8160f16efc74.
[93] Charlie Savage & Jack Healy, Trump Administration Takes Step That Could Threaten Marijuana Legalization Movement, N.Y. Times (Jan. 4, 2018), available at https://www.nytimes.com/2018/01/04/us/politics/marijuana-legalization-justice-department-prosecutions.html?_r=0.
[94] U.S. Dep’t of Justice, supra note 7.
[95] U.S. Dep’t of Justice, Remarks by Att’y Gen. Sessions to Law Enforcement About the Opioid Epidemic (Sept. 22, 2017), https://www.justice.gov/opa/speech/remarks-attorney-general-sessions-law-enforcement-about-opioid-epidemic.
[96] Vann R. Newkirk II, The People Trump's War on Drugs Will Actually Punish, The Atlantic (Mar. 26, 2018), https://www.theatlantic.com/politics/archive/2018/03/killing-drug-dealers-opioid-epidemic/555782/.
[97] United Nations Office on Drugs and Crime, World Drug Report 2016 (United Nations publication, Sales No. E.16.XI.7), available at https://www.sciencedirect.com/science/article/pii/S2352301817300735.
[98] DeBeck, Kora, et al. "HIV and the criminalisation of drug use among people who inject drugs: a systematic review." The Lancet HIV 4.8 (2017): e357-e374, available at https://www.unodc.org/doc/wdr2016/WORLD_DRUG_REPORT_2016_web.pdf.
[99] Grace Medley, et al., Sexual Orientation and Estimates of Adult Substance Use and Mental Health:
Results from the 2015 National Survey on Drug Use and Health, Substance Abuse and Mental Health Servs. Admin. (Oct. 2016, available at https://www.samhsa.gov/data/sites/default/files/NSDUH-SexualOrientation-2015/NSDUH-SexualOrientation-2015/NSDUH-SexualOrientation-2015.htm.
[100] Sandy E. James, et al., The Report of the 2015 U.S. Transgender Survey, Nat’l. Ctr. for Transgender Equal, 115 (Dec. 2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.
[101] Id at 5.
[102] Ctr. for HIV L. and Pol. & Nat’l LGBTQ Task Force, The Intersections of Syringe Use and HIV Criminalization: An Advocate’s Toolkit (2017), http://www.thetaskforce.org/wp-content/uploads/2014/09/Syringe-Use-Toolkit-Final-R2_0.pdf.
[103] Hanssens, et. al., supra note 10.
[104] The Palette Fund, True Colors Fund & The Williams Inst., Serving Our Youth: Findings from a Nat’l Survey of Serv. Providers Working with Lesbian, Gay, Bisexual and Transgender Youth Who Are Homeless or at Risk of Becoming Homeless (July 2012), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Durso-Gates-LGBT-Homeless-Youth-Survey-July-2012.pdf ; See also Dank supra note 81.
[105] CDC, HIV and Injection Drug Use (Nov. 2017), available at https://www.cdc.gov/hiv/pdf/risk/cdc-hiv-idu-fact-sheet.pdf.
[106] Harm Reduction Coal., http://harmreduction.org/.
[107] U.S. Drug Enforcement Admin, DEA Programs: High Intensity Drug Trafficking Areas, available at https://www.dea.gov/ops/hidta.shtml.