The politics around drugs have evolved since the days of New York’s harsh and inflexible Rockefeller Drug Laws, which eventually set a national standard and cemented the view that drugs are a matter of crime and punishment, not health and medicine. Now, even moderate law enforcement officials acknowledge that drug possession is a public health problem, rather than a serious crime worthy of lengthy incarceration.
The Rockefeller approach is now widely considered racist, especially by the wave of reform prosecutors that includes district attorneys Larry Krasner in Philadelphia and Rachael Rollins in Boston. They believe criminalizing drug possession is not only a counterproductive use of limited resources, but also harmful to people who stand to benefit from treatment for a substance use disorder.
But while public sympathy for the drug user has grown—thanks in large part to the realization that yes, white people also do drugs—what’s a progressive prosecutor to do about the seller, long viewed as an evildoer preying on people’s addictions?
People who sell drugs are popular scapegoats. In response to the opioid crisis, many states have recently passed laws allowing prosecutors to charge drug dealers with murder if a customer overdoses; President Donald Trump has called for the execution of sellers while preaching compassion for users. But the people most likely to be caught selling drugs are not the El Chapos of the world. They’re small fish swimming at the bottom of the drug trade, or occasional sellers who take on huge risks for meager rewards. A national analysis of all reported drug arrests in 2004, 2008, and 2012 found that 2 out of 3 drug offenders arrested by nonfederal law enforcement possess or sell a gram or less at the time of the arrest. The study also points out that while white people are more likely to sell drugs, people of color are by far more likely to be arrested for selling.
The current punitive approach toward sellers is not only racist, it has no effect on tamping down the drug trade.
“We did the experiment,” the late New York University drug policy researcher Mark Kleiman told Vox in 2017. “In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing. And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to higher drug prices and therefore less drug consumption, the answer is no.”
It’s time to try a new experiment. And where better to do it than in Manhattan? If New York exported the draconian Rockefeller Drug Laws, maybe the city can set a new standard. Come November 2021, Manhattan may see a new district attorney unseat incumbent Cy Vance for the first time in a decade. On Thursday, one of Vance’s progressive challengers, civil rights attorney and anti–mass incarceration activist Janos Marton, released a drug policy platform that, among other things, charts a decidedly nonpunitive approach to “low-level” drug selling by providing “a path out of the drug trade.”
“A smart response must recognize the economic incentives of people who sell small amounts as part of the drug trade,” reads Marton’s drug policy proposal published on Thursday. “The right response to those individuals, who work in dangerous conditions for paltry wages, is to direct them on a path to gainful employment rather than branding them with a criminal record that will make it increasingly harder for them to turn their lives around.”
In an interview with Slate, Marton acknowledged that Vance’s office has reduced the number of marijuana prosecutions, mostly for possession, but that his proposal would “go beyond marijuana.”
Another progressive in the field, New York Law professor Alvin Bragg, is running on ending racial disparities and declining to prosecute drug possession, but does not mention drug selling on his website. Bragg told Slate that as DA, he’d focus on large-scale criminal enterprises and look for root causes of societal ills. He said that drugs, depending on the quantity someone is caught with, should be treated as a health issue, but did not elaborate further.
Currently, if you stand accused of selling drugs (a felony in New York) you’re probably ineligible for diversion programs, like drug court. Drug courts mandate people to attend treatment and steer clear of using, but Marton rightly notes that not everyone who sells drugs is addicted to them, so there’s no reason to waste the few available treatment slots on them. To rectify harsh penalties for those at the lower tier of drug selling (think of the corner kids in The Wire), Marton proposes an “employment-based” diversion program that reckons with the economic imperatives that drive drug selling in the first place, and potentially offers a path out.
“I firmly believe that many sellers have skills and talents that can be put towards more conventional work,” Marton said. While some diversion programs have turned out to be scams that exploit the people they claim to help, Marton says he’d explore ways to help people find work in green energy construction, coding, security, the food industry, and look for other “entrepreneurial opportunities.”
“Based on our many conversations with people who have run, worked in, or participated in employment based diversion programs,” Marton explained, “such programs only succeed when they offer both a path to economic subsistence (not only low-wage, dead end jobs).”
Who would be eligible for a job instead of jail? When people are caught with drugs and charged with “intent to distribute,” usually the law uses the amount they’re caught with to determine their level of involvement in the drug trade. The more drugs and cash, the higher the punishment. Marton said if he were running Manhattan’s DA office, he’d treat each case individually. “Even within ‘intent to sell’ cases, we would individualize our response on a person’s role in the drug trade, their interest in moving their lives in a different direction, and the harm they may have caused their community.”
Marton knows his approach will be controversial, even among people sympathetic to policies like marijuana legalization. “Some may ask whether it is not a bridge too far to decline criminal prosecution of drugs other than marijuana,” Marton writes in his proposal. “But if our goal is to reduce the harm and risk associated with hard drugs, we must first admit that the half-century of prohibitionist policies of the War on Drugs has not worked.”
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