United States Federal Drug Policy

Introduction

The United States federal government takes an active role in setting and implementing drug-control policy, directly and in concert with state and local authorities and with international partners—even as the other polities’ policies may be widely at variance with federal policies. Over the last century, the government’s formal policies, budgetary commitments, and actions reflect enduring tensions between different conceptions of the problem of drug abuse: civil liberties versus public order, public health versus criminal justice, use reduction versus harm reduction, and demand driven versus supply driven. Accordingly, the balance among the three pillars of treatment, prevention, and law enforcement has shifted with changes in drug use; public sentiment; external political, economic, and social forces; and research findings. Even so, the span of federal drug-control policy is best characterized as periods of perfervid law enforcement, driven by acute concern about the menace of particular drugs, alternating with periods of routine management of one of many social ills.

This chapter addresses the development of federal drug-control policy, and current policies and functions of the federal government. In particular, it considers the role of research in influencing policy. It is necessarily synoptic, and the interested reader is referred to more detailed source materials.

History

The use of some drugs that are now illicit, especially marijuana and opiates, was commonplace and uncontroversial in the United States before the late 19th century (milestones in federal drug-control policy are outlined in Table 3.1 ). Opium appeared in many patent medicines, and the medical benefits were considered to outweigh the acknowledged harms. Morphine and, later, heroin, were introduced in the 19th century, and were widely prescribed into the 1920s. Cocaine appeared first in beverages, and then in many prescription medicines around the turn of the century.

The anti-alcohol temperance movement grew in force in the late 19th century, leading to calls for the prohibition of alcohol, but the movement leaders were not concerned with other drugs, which they did not regard as degrading to character. Nonetheless, the success of the temperance movement established a precedent that “prohibition was the only logical or moral policy when dealing with such a great national problem.”

Until the turn of the century, the federal government had not exercised general police powers over public health. The rise of the progressive movement and public concerns about the depredations of the patent-medicine industry led to the passage of the Pure Food and Drug Act of 1906, which imposed labeling and purity requirements. Although it did not prohibit any ingredients, it is regarded as having reduced the rate of opiate addiction.

The first federal prohibition against drug use addressed opium, driven by concerns about opium smoking by Chinese immigrants, by foreign-policy interests in China and the Philippines, and by the observation that merely restrictive laws had spurred smuggling without much reducing supply. A 1905 law that prohibited the import and sale of opium in the Philippines, then a US colony, was the first federal law to prohibit trafficking of a drug, although opium for smoking had been subject to a special duty since 1862. The Smoking Opium Exclusion Act of 1909 prohibited the import of opium for smoking, but did not cover other forms of opium, which was widely used for medicine and recreation throughout the United States. The United States was also signatory to several international conventions restricting the trade in opium.

As opium smoking was associated with Chinese immigrants, so did cocaine use become associated with poor blacks around the turn of the century, even as whites dominated cocaine consumption. Similarly, marijuana became associated with Mexican immigrants, and concern about its use was highest in the border regions where they were concentrated.

The Harrison Narcotics Tax Act of 1914 was positioned as a revenue measure, rather than as prohibition, and as required for the United States to comply with the Hague Convention of 1912 ; the congressional debate on the Act saw almost no mention of moral concerns. The Act required that any party involved in the distribution of opiates or coca products register with the federal government and pay a tax. It allowed for selling small quantities of the controlled drugs over the counter, and for larger sales authorized by a physician, so doctors (and the American Medical Association) did not feel that it threatened the practice of medicine. Soon after passage, however, the Act was interpreted to prohibit a physician from supplying the controlled drugs to addicts (who at the time were not considered patients). Under this interpretation, federal agents arrested many physicians and made it clear that the government was not going to tolerate treatment of addicts who maintained their addiction. The Narcotics Division of the Prohibition Unit of the Internal Revenue Service (Treasury Department) was given enforcement authority, which was transferred to the Prohibition Bureau in 1927.

There followed a series of committees to investigate the effects of the Harrison Act and the scope of the drug problem. A 1918 committee finding called for stricter law enforcement and greater coordination of state laws with federal statutes.

Many court rulings on whether Congress had the power to regulate physicians and punish drug possession established federal authority by 1925, and a 1928 Supreme Court ruling affirmed that the Harrison Act was constitutional. Alcohol prohibition, established by the Eighteenth Amendment in 1919, was by this time hotly debated, but the Harrison Act occasioned little controversy, despite the fact that drug violations accounted for a greater number of federal prisoners than any other class of offenses.

The growing scope of prosecutions under the Harrison Act spurred Congress to build an institutional structure to manage the consequences. The Porter Narcotic Farm Act of 1929 established two facilities where addicts could be held and treated. In 1930, the Federal Bureau of Narcotics was established in the Treasury Department, under the direction of Commissioner Harry J. Anslinger, who would go on to dominate federal drug-control policymaking and implementation for decades. (Anslinger was the nephew of the Treasury Secretary, Andrew J. Mellon; it is not apparent that Mellon shared what turned out to be his nephew’s zeal for drug control. ) Initially, the Federal Bureau of Narcotics focused its efforts on heroin, and Anslinger publicly downplayed the threat from marijuana. In the 1930s, advances in the processing of hemp fiber threatened powerful petroleum and timber interests, who lobbied Congress for the prohibition of hemp and used their influence in the newspaper business to demonize marijuana users. (Because industrial hemp and marijuana are the same plant—albeit very different strains—it is difficult to distinguish between cultivation of the two in the law.)

The Federal Bureau of Narcotics responded to these pressures with the Marihuana Tax Act of 1937, and a media campaign to stir fears of marijuana use. The Act did not explicitly prohibit the possession or sale of marijuana, but rather imposed registration and transaction tax obligations on anyone trafficking in it, with heavy fines and prison terms up to 20 years. (The transfer tax was a contrivance, as a measure under treaty powers was infeasible and a revenue measure would be difficult to enforce. )

Drug use declined during World War II and rose again thereafter. The wartime decline was due, in part, to supply reductions from countries embroiled in conflict. The shortage of legal supplies spurred the growth of the black market, especially for heroin. In response to the growing public perception that marijuana use led to the use of opiates, and urged on by the Federal Bureau of Narcotics, Congress responded with reinforcements of the Harrison Act. The Boggs Act of 1951 was the first to impose mandatory-minimum sentences and to lump together marijuana, opiates, and cocaine, with uniform penalties. National medical and legal associations questioned this stricter regime and called for a Congressional study of the government’s drug policy. The Daniel Committee found that drugs posed a great threat to the country and recommended increased powers for the Federal Bureau of Narcotics and harsh measures, including denial of bail, making smuggling and heroin trafficking capital offenses, and the closing of treatment clinics. The Narcotic Control Act of 1956 implemented these recommendations.

The Narcotics Manufacturing Act of 1960 established licenses and quotas for drug manufacturers to bring the United States into compliance with international conventions on the medical and scientific uses of natural and synthetic opiates and cocaine. By the language of the conventions, the following were not covered by the Act: barbiturates, amphetamines, and tranquilizers.

As public concern over drug abuse (including prescription drugs) grew in the 1960s, the White House established the President’s Advisory Commission on Narcotics and Drug Abuse (Prettyman Commission). Its 1963 report called for marshaling all the powers of the federal government to combat drug use and trafficking. In particular, it recommended (1) that enforcement and investigative responsibilities be transferred to the Department of Justice, (2) a substantial increase in federal agents, and (3) extension of federal control over all drugs “capable of producing serious psychotoxic effects when abused.”

Following on the report, the Drug Abuse Control Amendments of 1965 placed restrictions on the manufacture of prescription drugs with a potential for abuse, with the establishment of the Bureau of Drug Abuse Control in the Food and Drug Administration. As previous prohibitions had done for opiates, the Drug Abuse Control Amendments created shortages that drove up the street price (especially of amphetamine) and spurred the involvement of criminal organizations in manufacturing and trafficking. In 1968 the Bureau of Drug Abuse Control was merged with the Treasury Department’s Federal Bureau of Narcotics to form the Bureau of Narcotics and Dangerous Drugs in the Department of Justice.

Despite these efforts to control drugs (and similar measures in other countries), the use of marijuana and heroin continued to increase. Under President Nixon, the United States government redoubled its campaign against drug trafficking and abuse, formally declaring a “War on Drugs”; in 1971, President Nixon declared that drugs were “public enemy number one.” In 1969, the United States closed the border with Mexico and instituted searches of vehicles crossing the border. The National Commission on Marihuana and Drug Abuse was created in 1970.

The Controlled Substances Act of 1970 supplanted the Harrison Act as the basis of federal drug-control policy, and remains so today. Extant federal laws were reformulated under the federal power to regulate interstate commerce, and drugs were placed into five categories (“schedules”) according to their medical utility and potential for abuse. (See Table 3.2 for a summary of the current schedules.) In earlier decades, courts had found that Congress did not have the authority to regulate the local production and distribution of drugs under its interstate-commerce powers, but opinions had shifted by the mid-1960s. Following the 1965 Drug Abuse Control Amendments model, the Controlled Substances Act of 1970 established administrative procedures for scheduling new drugs. The ongoing tension within the government over which agencies would have control over drug policy was evident in the drafting of the Controlled Substances Act of 1970. In the Senate version of the bill, the Attorney General was required only to “request the advice” of the Secretary of Health, Education, and Welfare (now Health and Human Services) and of a (nonbinding) scientific-advisory committee before amending the schedule. In the House version, which was finally adopted, the Attorney General was not allowed to override the Secretary’s determination not to schedule a new drug, and he was required to accept the Secretary’s recommendation regarding medical and scientific considerations.

Drug control was a less visible priority under the Ford and Carter administrations. President Ford endorsed the findings of the Domestic Council Drug Abuse Task Force that the federal government could at most contain the problems of drug abuse and should not operate under the model of eliminating them. President Carter went so far as to publicly entertain the notion of marijuana decriminalization, but this idea gained no traction in Congress and public sentiment was against it.

The Drug Abuse Prevention, Treatment and Rehabilitation Act of 1979 reflected the latest, slight swing of the pendulum away from law enforcement. It imposed minimum requirements on the National Institute on Drug Abuse (NIDA) for spending on prevention, and identified high-risk populations to be targeted with intervention programs.

The 1980s saw another escalation of the War on Drugs. President Reagan created the position of the White House Drug Policy Advisor in 1982, which was supplanted by an even more powerful Director of the Office of National Drug Control Policy in 1988, under the National Narcotics Leadership Act. (These officials are commonly known as the “Drug Czars.” The Director of the Office of National Drug Control Policy has held cabinet-level rank, until the appointment of Gil Kerlikowske by President Obama. For a comparative assessment of the performance of the Drug Czars to 2008, see Moses. )

A series of measures increased federal penalties for many offenses, increased drug-control spending, and improved the coordination of federal drug-control efforts. The Comprehensive Crime Control Act of 1984 amended the Controlled Substances Act of 1970 to allow for fast-tracked scheduling of newly emerging “designer drugs” and when there exists an imminent public-safety hazard. Rising public concern about crack cocaine, catalyzed by the overdose death of a star college basketball player, led to the Anti-Drug Abuse Act of 1986, which reinstated mandatory-minimum sentences for possession (large amounts were considered prima facie evidence of intent to distribute) and allowed for the death penalty for some offenses.

Sentencing requirements were based on weight (see Table 3.3 ), with crack and powder cocaine treated dramatically differently; Congress justified the 100:1 powder-to-crack ratio on the basis of the social harms associated with crack, despite the identical chemical composition of the two forms. Whatever the original intent of Congress, this sentencing distinction has had hugely disproportionate racial impacts, as the majority of offenders sentenced for crack have been black, and the majority sentenced for powder have been white. Congress rejected repeated recommendations by the United States Sentencing Commission that the crack-powder distinction be eliminated, and let die in committee every bill that would reduce or eliminate sentencing disparities, before passing the Fair Sentencing Act in 2010, which reduced the ratio to 18:1.

The Anti-Drug Abuse Act of 1988 states that “it is the declared policy of the United States Government to create a drug-free America by 1995.” It established the White House Office of National Drug Control Policy to be the principal architect of national drug-control strategy. The Act also requires some federal contractors and all grantees to meet requirements for providing a “drug-free workplace,” and extends mandatory-minimum sentencing requirements to conspiracy convictions. Under the statute, the Office of National Drug Control Policy is to set priorities, implement a national strategy, and certify federal budgets. The strategy is to be comprehensive and research based, with measurable objectives. Subsequent executive orders, reauthorization bills, and other legislative initiatives have added to the Office of National Drug Control Policy’s authority and responsibilities, to include media campaigns, grants to communities, and cabinet-department budget assessments. Smarting from criticism that the office was politically driven and insufficiently evidence based, it asked the National Research Council to establish a Committee on Data and Research for Policy on Illegal Drugs, which found that:

[N]either the data systems nor the research infrastructure needed to assess the effectiveness of drug control enforcement policies now exists. It is time for the federal government to remedy this serious deficiency. It is unconscionable for this country to continue to carry out a public policy of this magnitude and cost without any way of knowing whether and to what extent it is having the desired effect.

The subsequent presidential administrations have seen smaller-bore legislative initiatives and less rhetorical emphasis on drugs, even as the War on Drugs has continued apace. At the same time, conflicts between federal law and state- and local-level statutes and enforcement have increased. In President Clinton’s first term, he reduced the Office of National Drug Control Policy staff, appointed a low-key director, and made almost no mention of drugs, occasioning criticism even from Democratic officials. President Clinton reversed these positions during his reelection campaign and appointed a very visible director.

In the same election season, voters in Arizona and California approved measures that legalized the use of marijuana for medical purposes, in direct contravention of the federal Controlled Substances Act. (Other state initiatives to allow for the medical use of marijuana date back to 1978 but were ineffective. ) Top administration officials vowed to enforce federal laws and sought to prosecute physicians who prescribed marijuana. The George W. Bush Administration continued to campaign against increasingly lenient state laws and local decisions to make marijuana arrests a low priority, and went after (locally legal) sellers of drug paraphernalia.

Nonetheless, despite Drug Enforcement Administration raids on dispensaries, a few prosecutions of prescribing doctors, and a Supreme Court ruling upholding the federal government’s authority to prohibit the use of marijuana, medical marijuana has proved popular, and the Obama Administration announced that it would no longer prosecute marijuana dispensaries that were operating legally in the 13 states (now 33 plus Washington, DC) that allowed for them.

Ten states (Colorado [2012], Washington [2012], Alaska [2014], Oregon [2014], California [2016], Massachusetts [2016], Nevada [2017], Maine [2018], Michigan [2018], Vermont [2018]) and Washington, DC (2014), have made legal the recreational use of marijuana, and have instituted a variety of mechanisms for the legal cultivation and sale of marijuana and marijuana products; marijuana remains an illegal, Schedule I drug, at the federal level. Nonetheless, in 2013, the U.S. Department of Justice announced that it would not thwart legalization efforts in states that enforce strong regulatory systems, and the Obama administration demonstrated an increasing acceptance of the state-level reforms. Even though the federal government has made its nonenforcement position clear, that marijuana remains illegal at the federal level creates many challenges for the emerging recreational marijuana industry in states where marijuana is now legal. Among the most pressing barriers is access to banking services.

Beyond marijuana laws, states and localities have become laboratories for experimenting with reforms of drug policy, for example, with sentencing, needle-exchange programs, and diversion of offenders to treatment. An accurate understanding of drug policy as practiced in the United States requires closer attention to state and local drug policies.

Federal Drug-Control Operations

The federal government budgets nearly 30 billion dollars to drug-control efforts, divided among 15 federal agencies with drug-control functions (unless otherwise noted, all budget figures are for fiscal year [FY] 2017). The lion’s share of these resources is controlled by four cabinet departments: Health and Human Services, Justice, Homeland Security, and Defense (see Table 3.4 ). The Department of Health and Human Services has the largest share ($13.7 billion). It houses the National Institute on Drug Abuse (or NIDA), the largest supporter of drug-abuse and addiction research, and the Substance Abuse and Mental Health Services Administration (SAMHSA). Following the attacks of September 11, 2001, the drug-funds interception functions of the Department of Homeland Security were increased with the passing of the USA PATRIOT Act, which gave the Department of Homeland Security and federal security agencies additional authority to investigate and preempt future terrorist activities.

The Department of Justice budget is $7.9 billion. The Department of Justice supports prison- and community-based drug treatment through the Bureau of Prisons; enforces federal illicit-substance laws and regulations through the Drug Enforcement Administration; targets drug-trafficking and money-laundering organizations through the Interagency Crime and Drug Enforcement account; and manages drug-control–strategy programs through the Office of Justice Programs.

The Department of State budget is $0.51 billion, for the Bureau of International Narcotics and Law Enforcement Affairs and the US Agency for International Development. Roughly two-thirds is for eradication and interdiction efforts, and one-third is for promoting alternatives to drug production in source countries.

The Department of Defense budget is $1.3 billion, used for drug-related threats to national security. The Department of Defense oversees interdiction and the disruption of illegal-drug flows toward the United States, collects and disseminates intelligence on drug activity, and trains American and foreign drug-enforcement agents (including foreign militaries). The Department of Defense’s drug-control efforts include a demand-reduction program (random drug testing with sanctions, anti-drug education, and treatment) for the military.

Policymaking and Budgeting

Although drug-control policy is implemented in many agencies of the executive branch, it is directed from, and coordinated by, the White House Office of National Drug Control Policy (ONDCP). Responsibility for drug-control legislation is spread across many House and Senate subcommittees (see Table 3.5 for those subcommittees with principal responsibility, and Table 3.6 for bills introduced in recent sessions).

When the ONDCP was created in 1988, it was tasked with compiling a federal drug-control budget. Each year federal agencies submit drug-control–budget data to the ONDCP, which produces a single federal budget. The ONDCP has no budget-enforcement authority, so its budget is not prescriptive.

Federal agencies and the ONDCP have some discretion in what they identify as drug-control expenditures, so the federal budget (and the balance between demand- and supply-side control measures) is sensitive to assumptions about what constitutes drug control. In 2004, the ONDCP changed its methodology for assembling the federal drug-control budget. The ONDCP’s stated purpose was to more directly measure efforts targeting drug use itself, rather than its consequences —that is, to exclude expenditures that were considered ancillary to drug control. Critics of this revision regard it as a manipulation by the Bush Administration to hide the costs of the War on Drugs. Previously, the drug-control budget reflected consistent annual increases in spending, and a stable 2:1 ratio between supply- and demand-side expenditures over the years. The revised methodology yielded a much smaller drug-control budget, with 90% of the apparent reductions appearing on the supply side. The most significant change was the exclusion of costs associated with prosecuting and incarcerating drug users. The methodology was changed again in 2012, to include more agencies that were found to have a drug-control nexus.

The 1980s and 1990s saw a shift in spending from treatment to law enforcement. In real terms, the federal drug-control budget increased by 600% between 1981 and 2000, from about 3 to 18 billion dollars. This increase was driven primarily by criminal-justice expenditures. The change in budgeting approach makes it difficult to track the federal budget over time. The ONDCP recalculated earlier budgets using their new methodology, but only as far back as 1996. Fig. 3.1 shows the federal drug-control budget from 1996 to 2015, which is the longest series for which consistent budget data are available (i.e., comparable budgeting methodologies were used). The federal drug-control budget increased steadily over this period (even after controlling for inflation). The two lowermost areas in Fig. 3.1 represent the total demand-reduction budget, with the three uppermost representing the total supply-reduction budget. In recent years, demand-reduction spending has seen a sharp increase in its share of the total, so that demand-reduction and supply-reduction spending are approximately equal.