Order Code IB10113
Issue Brief for Congress
Received through the CRS Web
War On Drugs: Legislation in the 108th Congress
and Related Developments
Updated May 1, 2003
Mark Eddy
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Identifying the Problem
Costs of drug abuse
Deaths from drugs
Drugs and crime
Framing the Issue
Actions of the 107th Congress
Policy Questions and Concerns of the 108th Congress
The Drug Control Budget
ONDCP Reauthorization
Media Campaign Reauthorization
DEA Administrator Nomination
Ballot Initiatives and Budgetary Shortfalls in the States
Impact of Homeland Security on Drug Control Agencies
Control of MDMA (Ecstasy)
Other Possible Issues
Crack/powder sentencing disparity
Mandatory minimums
Law enforcement grant consolidation
Souder Amendment to the Higher Education Act
Executive Branch Actions
The National Drug Control Strategy
Stopping drug use before it starts
Disrupting the drug market
Monitoring the Future’s 2002 Study
New DEA Rule on Industrial Hemp
DEA’s Reaction to Medical Marijuana
Drugs in Federal Prisons
Other Developments of Relevance to Congress
State Budget Crisis
Gateway Effect of Marijuana
Proposition 36 in Los Angeles County
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
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War on Drugs: Legislation in the 108th Congress
and Current National Developments
SUMMARY
Prohibiting the non-medical use of cer-
grams, and passage of the Illicit Drug Anti-
tain mind-altering substances has been a
Proliferation Act of 2003, designed to control
public policy goal of the federal government
the use of “club drugs” such as MDMA (Ec-
for more than a century.
stasy). House hearings have been held on
reauthorization of ONDCP (the office of the
Drug abuse is a problem in the United
“Drug Czar”) and the National Youth Anti-
States due to its economic cost, estimated to
Drug Media Campaign.
have been over $160 billion in 2000. This
sum includes lost productivity, health care
Other drug control issues likely to be
costs, and criminal justice expenditures. An
taken up in the first session include the drug
estimated 1.6 million people were arrested in
control budget for FY2004 and nomination of
the United States in 2001 for drug abuse
a new administrator of the Drug Enforcement
violations.
Administration (DEA) due to the confirmation
of the current administrator as Under-Secre-
The federal Office of National Drug
tary in the new Department of Homeland
Control Policy (ONDCP), which coordinates
Security.
the war on drugs, frames the issue as one of
reducing drug-related crime and drug-caused
Other issues could also be the subject of
health problems by reducing drug use. Other
congressional studies, investigations, and
organizations frame the issue differently.
oversight hearings, if not legislation. These
Some groups, for example, frame their posi-
include state ballot initiatives regarding medi-
tion on the drug war in terms of civil rights,
cal marijuana and drug treatment in lieu of
religious freedom, or freedom of thought.
incarceration, the effects of state budget defi-
cits on the states’ drug control efforts, and the
In recent years, Congress has taken an
impact of the anti-terrorism effort on the drug
increasingly punitive stance toward drug
war. Other current developments concerning
addicts and casual users alike. A different
the war on drugs, both in the Executive
approach has been taken by certain countries
Branch and elsewhere, are of likely interest to
in Europe and elsewhere that are experiment-
the 108th Congress. These include the Presi-
ing with less restrictive policies such as de-
dent’s drug-control strategy for FY2004, the
criminalization and “harm reduction” pro-
success of the drug war as measured by na-
grams. The 108th Congress will receive strong
tional surveys of drug use, and actions taken
encouragement from the Executive Branch to
by DEA against industrial hemp products and
continue on its current path.
medical marijuana providers.
Among the early actions of the 108th
For the latest on international drug
Congress was passage of the remaining appro-
control legislation and issues see CRS Issue
priations for FY2003, including those for the
Brief IB88093, Drug Control: International
many federal drug control agencies and pro-
Policy and Approaches.
Congressional Research Service ˜ The Library of Congress
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MOST RECENT DEVELOPMENTS
The Illicit Drug Anti-Proliferation Act of 2003 (introduced as S. 226/H.R. 718) cleared
both houses of Congress on April 10, 2003, and was signed into law on May 1 (P.L. 108-21).
It was included in conference as a miscellaneous provision of S. 151, a children’s protection
act. Originally proposed in the 108th Congress as the RAVE Act, the new law amends the
“crack house statute” to more directly target the producers of dance events, or “raves,” at
which drugs such as MDMA (Ecstasy) are often used.
House Government Reform’s Subcommittee on Criminal Justice, Drug Policy, and
Human Resources has held a series of hearings on reauthorization of the Office of National
Drug Control Policy (ONDCP). The most recent, on April 8, 2003, was on the subject of the
High Intensity Drug Trafficking Area and the Counterdrug Technology Assessment Center
programs. Previous hearings covered the 2003 National Drug Control Strategy and the
National Youth Anti-Drug Media Campaign.
BACKGROUND AND ANALYSIS
Introduction
The control of certain mind-altering drugs has been a public policy goal of the federal
government and the focus of congressional legislative efforts for more than a century. This
“war on drugs,” as it came to be known, can be said to have begun in November 1880 when
an “absolute prohibition” on the shipment of opium between the United States and China
was agreed to in treaty negotiations between the two countries. The 49th Congress enacted
implementing legislation on February 23, 1887, providing a misdemeanor fine of between
$50 and $500 for any U.S. or Chinese citizen found guilty of violating this ban.
The drug war escalated, in fits and starts, until 1971 when President Nixon declared the
modern war on drugs. He announced “a new, all-out offensive” against drug abuse,
“America’s public enemy number one,” and created a new office directly under him in the
White House to coordinate the major federal drug abuse programs. Drug control legislation
has been actively considered by every Congress since then, and the 108th Congress is not
expected to be an exception.
The term “drug,” in this context, means a substance that is illegally taken into the body
to affect mood or behavior. Examples include marijuana, cocaine, methamphetamine, and
heroin. A legal pharmaceutical, when obtained by illegal means or used for nonmedical
purposes, becomes an illegal drug under this definition. The term “controlled substance”
means a drug or other substance that is included in schedule I, II, III, IV, or V of the
Controlled Substances Act, as amended (21 U.S.C. 812).
This Issue Brief covers significant legislative and oversight activities of the current
Congress as they relate to domestic law enforcement aspects of federal anti-drug policy.
Also included will be significant executive branch actions and other current events of likely
interest to the congressional audience that follows this issue. The most-recent- developments
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section, above, will be updated regularly as events occur, and the entire Issue Brief will be
revised monthly, early in every month, to include the previous month’s developments in its
factual and analytical content.
Identifying the Problem
The term “war on drugs” encompasses a wide array of public policies and programs
designed to address the problem of illegal drug use, drug abuse, and drug dependency by
residents of the United States and its outlying areas. While drug addiction used to be
considered a personal failure, its redefinition as a public problem began to take hold in the
United States around the turn of the 20th century, coincident with the peak of a cocaine
epidemic that revealed the harmfulness to society of drug addiction.
Costs of drug abuse. The Office of National Drug Control Policy (ONDCP), the
agency within the Executive Office of the President that coordinates the war on drugs,
estimates the economic cost of illegal drug use in the United States to have been over $160
billion in 2000. Losses in productivity accounted for 69% of this estimated amount.
Incarceration was the leading cause of lost productivity, followed by crime careers, drug
abuse related illness, and premature death. Health care costs of drug abuse were estimated
at 9% of the total cost of drug abuse. Other costs – including drug-related expenses of the
criminal justice system, the cost of attempts to reduce the supply of drugs, and drug-related
social welfare expenditures – made up the remaining 22% of the estimated cost of drug abuse
in 2000.
For purposes of comparison, the estimated $160.7 billion in drug abuse costs equaled
roughly one-eleventh of total FY2000 federal budget outlays of $1,789 billion, or 1.6% of
the estimated gross domestic product of $9,872.9 billion for 2000. This is the cost society
pays for the actions of the estimated 25 million Americans who illegally used any drug at
least once during 2000. Each drug user cost society nearly $6,500, on average, in 2000. In
reality, of course, the costs of drug use are not evenly distributed among all drug users.
Instead, most of the costs are incurred by a minority of drug users, the chronically addicted
and the criminally-minded. According to the National Household Survey on Drug Abuse,
there were an estimated 4.7 million Americans aged 12 or older, in 2000, who needed
treatment for an illicit drug abuse problem. They accounted for 2.1% of the national
population. If the estimated costs of drug abuse were shared equally by these problem drug
users, it would come to about $34,200 per person in 2000.
Deaths from drugs. In addition to these economic costs, the number of deaths due
to drug overdoses provides another, frequently cited measure of the cost of drug use. At
congressional hearings, witnesses often use the number of drug-induced deaths reported
annually by the Centers for Disease Control and Prevention (CDC) as the number of
overdoses from illegal drugs. Actually, the CDC’s category “drug-induced causes” includes
deaths from both illegal and legal drugs, such as poisonings from medically prescribed drugs.
The most recent CDC report reveals that 19,698 persons died of drug-induced causes in the
United States in 2000. CDC is unable to provide a further breakdown of this number by
substance involved, nor are reliable data available elsewhere. The only substance-related
death toll that CDC reports separately is alcohol: there were 19,358 alcohol-induced deaths
in 2000, slightly fewer than from all other drugs – legal and illegal – combined.
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Drugs and crime. The Federal Bureau of Investigation estimates that 1.6 million
people were arrested in the United States in 2001 for drug abuse violations. Nearly one in
four persons held in U.S. jails and prisons in 2000 was imprisoned for a drug offense. Of the
total federal prison population in 2000, 57% were serving time for drug offenses. The
United States now has the highest incarceration rate by far of all industrialized countries, due
in no small measure to the legal penalties associated with the war on drugs.
Framing the Issue
Different federal drug control agencies frame the issue of drug abuse in different ways.
ONDCP, the office of the “drug czar,” frames the issue as one of reducing drug-related crime
and drug-caused health problems by reducing illicit drug use. The Drug Enforcement
Administration frames the issue in terms of enforcing the country’s drug laws. The U.S.
Customs Service frames the issue as one of interdicting and seizing narcotics and illegal
drugs. The National Institute on Drug Abuse sees the issue as one of bringing the power of
science to bear on the problems of drug abuse and addiction. The Substance Abuse and
Mental Health Services Administration sees the issue as one of reducing the cost to society
of drug abuse by improving prevention, treatment, and rehabilitative services. Other federal
agencies active in drug control efforts have their own ways of framing the issue.
Non-governmental organizations exhibit an even wider range of issue definitions. The
Partnership for a Drug-Free America frames the issue as one of helping children and teens
reject substance abuse by influencing attitudes through persuasive information. The National
Center on Addiction and Substance Abuse at Columbia University defines the issue as one
of employing research and education to encourage individuals and institutions to take
responsibility to combat substance abuse and addiction in American society. The Federation
of American Scientists frames the issue as one of reducing the suffering caused by drug
abuse, drug trafficking, and drug control measures by using careful analysis, open dialogue,
and civil discourse to develop better policies. The Drug Policy Alliance frames the issue as
one of promoting new drug policies based on common sense, science, public health, and
human rights. The Council for Spiritual Practices, focusing on the experiences that can be
elicited by certain controlled substances such as the psychedelics and MDMA (Ecstasy),
frames the issue as one of making direct experience of the sacred more available to more
people. The Center for Cognitive Liberty and Ethics, believing in the individual’s right to
think independently and autonomously, frames the issue as one of freedom of thought. The
Vaults of Erowid, a drug-information website, believes that accurate, responsible information
about drugs will promote their healthy integration into our culture’s political and social
structures.
Many European countries that have been our long-term allies in the drug war are today
beginning to frame the issue of drug abuse less as one of law enforcement and more as one
of public health. Portugal, in 2001, decriminalized all drug use and adopted a policy of harm
reduction. Spain no longer prosecutes illegal drug use done privately. Belgium permits the
use of medical marijuana. Closer to home, Canada is widely expected to decriminalize
marijuana possession sometime in 2003, as recommended last year by the Special Committee
on Illegal Drugs of the Canadian Senate. In 2001, the chief of the Mexican federal police
announced his support of drug legalization throughout the world as the only way to destroy
the global drug economy, and high-level officials in the government of President Vicente Fox
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reportedly favor drug legalization as the solution to the violence and corruption caused by
narco-traffickers. These trends abroad and especially on our borders have encountered
vehement U.S. opposition.
For its part, Congress has taken an increasingly strong enforcement stance against the
problem of drug use, abuse, and addiction. Federal lawmakers’ early attempts to control the
non-medical use of the opiates, cocaine, and marijuana resulted in the passage of such laws
as the Harrison Narcotics Act in 1914 and the Marihuana Tax Act of 1937, which indirectly
sought to control drug usage through the taxation and regulatory powers of the federal
government. These early attempts at control gave way to stronger enforcement measures,
leading to the enactment of four major anti-drug laws: the Comprehensive Crime Control
Act of 1984 (P.L. 98-473), the Anti-Drug Abuse Act of 1986 (P.L. 99-570), the Anti-Drug
Abuse Act of 1988 (P.L. 100-690), and the Crime Control Act of 1990 (P.L. 101-647).
The 1988 law stated: “It is the declared policy of the United States Government to
create a Drug-Free America by 1995.” Drug abuse is no longer framed as a problem to be
controlled but a problem to be eradicated. The war on drugs is now a national effort to
reduce to zero the demand for illegal drugs in the United States. Responsible drug use,
unlike responsible alcohol use, is considered an oxymoron. To use a prohibited substance
is defined as abuse, whether the user is addicted or not. Studies show that most drug users
are not addicts, yet all users of illegal drugs are subject to the same legal proscriptions and
possible penalties and are not infrequently forced into treatment, if not prison.
Although the wisdom of drug prohibition has come into question as certain other
countries liberalize their drug control policies and as voters in various U.S. states approve
state ballot initiatives to lessen drug penalties, the federal government remains skeptical
about the desirability of such changes. Federal officials argue that usage leads to addiction
and that liberalization, once initiated, could expand and accelerate out of control. The
established policy of prohibition is not expected to come under critical scrutiny at the federal
level anytime soon. Today’s policy questions in Congress concern the priority and level of
resources assigned to the drug war compared to other pressing federal priorities (e.g., drug
interdiction vs. counterterrorism), the relative emphasis given to each of the components of
the war on drugs (e.g., enforcement vs. treatment), and the effectiveness of various programs
(e.g., the youth anti-drug media campaign).
Actions of the 107th Congress
Fewer drug control bills were enacted by the 107th Congress than by other recent
Congresses. The 107th Congress did reauthorize the Drug-Free Communities Support
Program for another 5 years (H.R. 2291/P.L. 107-82). It also included some of the
provisions of S. 304, a large drug treatment and prevention bill, in the Department of Justice
Reauthorization act (H.R. 2215/P.L. 107-273). The 107th Congress approved FY 2002
funding for the war on drugs in the amount of $18.8 billion, according to the national drug
control budget summary compiled by ONDCP. It failed, however, to pass the domestic
appropriations bills for FY2003, leaving the drug control agencies (except for the
Department of Defense) operating under a continuing resolution.
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Policy Questions and Concerns of the 108th Congress
The Drug Control Budget
Among the first orders of business of the new Congress was passage of the 11
remaining FY2003 appropriations bills that were left over from the 107th Congress. This was
accomplished on February 20, 2003, when the Consolidated Appropriations Resolution, 2003
(H.J.Res. 2) became P.L. 108-7. The Drug Enforcement Administration received $1.56
billion, 6% less than requested and nearly the same as the previous year’s amount. The
Office of National Drug Control Policy received $525 million, slightly more than requested
and $2 million over the previous year. The conferees expressed continuing concern in the
conference report about ONDCP’s lack of progress in developing performance measures of
effectiveness for the High Intensity Drug Trafficking Areas (HIDTA) program. They also
directed ONDCP to provide the appropriations committees, by June 20, 2003, with a report
on problems that exist within the Southwest Border HIDTA.
Many departments and agencies other than ONDCP and DEA are involved in the war
on drugs and are included in the national drug control budget summary, which is compiled
annually by ONDCP. The FY2004 budget summary, released in February 2003, has an
unusual wrinkle. The budget summaries usually compare the current year’s appropriated
amounts with the following year’s requested amounts. Because of the late passage of the
FY2003 budget, however, the appropriated amounts were not yet available when the
President’s FY2004 budget request was sent to the Hill and when ONDCP compiled the new
drug control budget summary. The FY2004 budget summary therefore shows requested, not
appropriated, amounts for FY2003 as well as for FY2004.
Additionally, ONDCP has revised its methodology for compiling the drug control
budget, as announced in the 2002 strategy, resulting in lower estimates for many drug control
agencies and the elimination of some agencies from the drug control budget altogether. By
including only programs that are genuinely directed at reducing drug use and excluding
agencies that play only a supporting role in the drug war, ONDCP believes the new drug
budget structure will better serve Congress and the public and bring greater accountability
to federal drug control efforts. Others, however, say the new budget methodology distorts
the true costs of the war on drugs by excluding the costs of incarcerating drug offenders and
other law enforcement activities, and by exaggerating drug treatment expenditures, thereby
making the budget appear to be more evenly balanced between enforcement and prevention
than in previous years, even though little change has actually taken place.
ONDCP’s drug control budget summary in the 2002 National Drug Control Strategy,
the last to be prepared using the old, more inclusive methodology, shows nearly $18.1
billion in final budget authority for FY2001, more than $18.8 billion appropriated for
FY2002, and almost $19.2 billion requested for FY2003. That strategy also contains a table
based on the proposed new budget methodology. It revises the FY2003 budget request
downward from $19.2 billion to $11.4 billion, a dramatic measure of the extent to which
ONDCP thinks previous budgets were overstated. What was actually enacted across all of
the appropriations measures and all of the drug control agencies for FY2003 has yet to be
tabulated by ONDCP, using either the old or the new methodologies.
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The President’s FY2004 budget request was submitted to Congress on February 3, 2003.
According to ONDCP’s national drug control budget summary that was prepared using the
new methodology, the President’s proposed budget contains $11.679 billion for drug control
funding, with 70% of this amount designated for three federal departments, Health and
Human Services ($3.6 billion), Justice ($2.6 billion), and Homeland Security ($2.0 billion).
This includes $1.677 billion requested for DEA, a $116 million increase over what was
appropriated for FY2003, and $523.6 million for ONDCP, slightly less than what was
actually appropriated for FY2003.
The FY2004 budget calls for strengthening the Organized Crime and Drug Enforcement
Task Force (OCDETF) program by combining the Treasury, Transportation, and Justice
OCDETF programs within the Justice Department and increasing the combined funding level
by 15% over FY2003 levels. The increases would include $22 million to expand the Foreign
Terrorist Tracking Task Force (FTTTF) to include drug investigation information gathered
by OCDETF agencies, $26 million to expand drug investigations linked to the Attorney
General’s Consolidated Priority Organization Target (CPOT) list, and $10 million to expand
drug-related financial and money laundering investigations. This new approach, centralized
in Justice and coordinated with DEA and ONDCP, is expected by the Bush Administration
to result in a more efficient and effective use of federal resources leading, in 2004, to a 5%
reduction in the availability of drugs on the streets of America.
The appropriations subcommittees are now considering the administration’s request for
FY2004. Appropriations hearings provide an opportunity for congressional oversight of the
federal antidrug effort. One subject almost certain to come up is the proper balance between
demand reduction and supply reduction efforts. “Demand reduction” includes treatment,
education, testing and other prevention and related research programs. “Supply reduction”
involves investigation and prosecution of drug manufacturers and traffickers, drug
interdiction overseas, along U.S. borders, and at ports of entry, and the development of
international accords to restrict supply. The size of the drug war budget in the near future
could be limited by budgetary constraints imposed by the war against terror, including
military expenditures in Afghanistan and Iraq, and the widening federal budget deficit.
ONDCP Reauthorization
Created in 1988 (P.L. 100-690), reauthorized in 1994 (P.L. 103-322) and again in 1998
(P.L. 105-277), authorization for the Office of National Drug Control Policy will expire on
September 30, 2003. The last reauthorization process gave Congress an opportunity, through
staff studies and several hearings, to assess the progress of the anti-drug effort and to develop
specific, measurable goals for reducing drug consumption and drug-related crime in the
United States. Annual reports to Congress containing specified measures of progress in
implementing the National Drug Control Strategy were required.
The 108th Congress appears to be moving toward a thorough review of ONDCP and its
programs with the goal of statutory changes in the agency’s mandate. House Government
Reform’s Subcommittee on Criminal Justice, Drug Policy, and Human Resources has held
three hearings on ONDCP reauthorization issues. At the first, on March 5, 2003, ONDCP
Director John P. Walters testified on his agency’s recently released National Drug Control
Strategy for 2003. He indicated that the administration would soon be submitting to
Congress proposed reauthorizing language for ONDCP that will include reauthorization of
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the National Youth Anti-Drug Media Campaign. The second hearing, held on March 27,
focused on the media campaign. The third hearing, on the High Intensity Drug Trafficking
Areas and Counterdrug Technology Assessment programs, was held on April 8. With regard
to the HIDTA program, Subcommittee Chairman Souder has stated that “HIDTA has reached
far beyond its intended focus on national drug trafficking. We will need to consider how best
to streamline and increase accountability within the HIDTA program.”
Media Campaign Reauthorization
The National Youth Anti-Drug Media Campaign uses all media – from television to the
Internet – to discourage drug use by youth, increase the perception of risk and disapproval
associated with drugs, and encourage parents and other adults to talk to children about drugs.
Authorized through FY2002 by the Drug-Free Media Campaign Act of 1998 (P.L. 105-277),
the media campaign was funded in amounts between $180 and $195 million per fiscal year
between 1998 and 2002. For FY2003, however, its funding was reduced to $150,000.
Conducted by the ONDCP, the media campaign has been criticized on grounds of its
implementation and effectiveness. Noting that, with the latest appropriation, the total media
campaign budget now exceeds $1 billion since its inception, the FY2003 appropriations
conference report states (p. 1345): “The conferees are deeply disturbed by the lack of
evidence that the National Youth Anti-Drug Media Campaign has had any appreciable
impact on youth drug use.” In May 2002, the ONDCP itself released a report that found little
evidence that the youth campaign had had direct, favorable effects between 2000 and 2001
on drug use by young Americans. The General Accounting Office has also criticized aspects
of the campaign. Recent ads painting drug users as supporters of terrorism have been
criticized in media stories, some of which present the view that it is the drug prohibition laws
that create the underground drug markets, some of the profits of which might find their way
into the hands of terrorists.
A hearing on reauthorizing the media campaign was held by House Government
Reform’s Subcommittee on Criminal Justice, Drug Policy and Human Resources on March
27. With its reauthorization overdue, the program is being combined with ONDCP’s
reauthorization in a single bill. (For more information and analysis, see CRS Report
RS21490, War on Drugs: The National Youth Anti-Drug Media Campaign.)
DEA Administrator Nomination
During his 3rd term in Congress, Representative Asa Hutchinson was appointed by
President Bush as Director of the Drug Enforcement Administration (DEA) on August 8,
2001. As DEA Director, according to DEA’s Website, he inaugurated the Integrated Drug
Enforcement Assistance (IDEA) Program to combine law enforcement action with
community efforts to keep neighborhoods safe and drug-free, served the first-ever
indictments of known terrorists for drug trafficking, and launched a nationwide campaign
against methamphetamine.
On November 26, 2002, the day after he signed into law the legislation to create the new
Department of Homeland Security (H.R. 5005, P.L. 107-296), President Bush announced his
intention to appoint Hutchinson to serve as Under Secretary for Border and Transportation
Security in the new homeland security agency. Hutchinson was confirmed as Under
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Secretary on January 23, 2003. This means that President Bush will nominate a new DEA
Administrator, and the Senate will hold a confirmation hearing on the President’s choice.
The Senate might take oversight advantage of this opportunity and examine the role of the
DEA in relationship to the new Department of Homeland Security and to the overall war on
terror, as well as other concerns regarding DEA.
Ballot Initiatives and Budgetary Shortfalls in the States
Recent developments at the state level could attract the attention of the 108th Congress
and lead to hearings and possible legislation. Forced into a stance of fiscal restraint by
declining revenues, many states are seeking to cut costs by reducing the number of
nonviolent drug offenders in their prisons. Drug courts and drug treatment programs are seen
as money-saving alternatives to imprisonment. Mandatory minimum sentences for
nonviolent crimes such as drug possession and “three strikes” laws are being revisited by
some state legislatures. Also, voters in some states have approved initiatives that mandate
treatment instead of prison for certain drug offenders. Other state ballot referenda have
approved the use of marijuana for medical purposes.
Since the states collectively spend more money and resources on the war on drugs than
the federal government, these developments could detract from the country’s overall anti-
drug effort. Some may argue that it is necessary for the federal government to pick up more
of the tab through grant programs or other forms of aid to the states if it expects the states
to continue the “get-tough” policies of recent years. Indeed, some state officials view the war
on drugs as an enormous unfunded federal mandate and would welcome increased federal
assistance. Increased federal budget deficits may, however, constrain new federal spending.
Impact of Homeland Security on Drug Control Agencies
Since the terrorist attacks of September 11, 2001, federal law enforcement agencies
have had to move resources from some of their usual activities to the new mission of
homeland security. The FBI reorganization, for example, has shifted 518 field agents from
such activities as drug investigations, white-collar crimes, and violent crimes to
counterterrorism. The FBI has revealed plans to reduce by about 29% the number of special
agents involved in drug investigations. The U.S. Customs Service, Coast Guard, and other
agencies are similarly affected. The Drug Enforcement Administration is being asked to take
up the resultant slack in drug law enforcement. Some contend that the efforts are
complementary to some extent. For example, counterterrorism efforts at the border are
targeted on keeping “bad people and bad things” out of the country and can result in higher
drug interdiction rates.
The creation of the new Department of Homeland Security (DHS) is also likely to
influence the future conduct of the war on drugs. Customs, Coast Guard, and the U.S.
Border Patrol, among other agencies, are being incorporated into DHS. Section 101(b) of
the Homeland Security Act of 2002 (P.L. 107-296), which created the new department,
establishes that the primary mission of DHS is, in part, to “monitor connections between
illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and
otherwise contribute to efforts to interdict illegal drug trafficking.”
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In light of this significant reallocation of equipment and personnel, the 108th Congress
might choose to consider – possibly through oversight hearings, investigations, and
legislative proposals – how the war on drugs will be affected by the new emphasis on
homeland security, how mission priorities of federal agencies will change, how the creation
of the Department of Homeland Security will affect the war on drugs, how to improve
information sharing between law enforcement agencies, and similar questions that have
arisen due to the heightened terrorist threat.
Control of MDMA (Ecstasy)
The Illicit Drug Anti-Proliferation Act of 2003 (originally introduced as S. 226/H.R.
718) was included in conference as a miscellaneous provision of S. 151, the PROTECT Act,
a children’s protection act also known as the Amber Alert Act. It was signed into law on
May 1, 2003 (P.L. 108-21). It was originally proposed in the 108th Congress as the Reducing
Americans’ Vulnerability to Ecstasy Act, or RAVE Act. The new law amends Section 416
of the Controlled Substances Act, known as the “crack house statute,” to more directly target
the producers of dance events, or “raves,” at which drugs such as MDMA (Ecstasy) are often
used. It shifts the statute’s emphasis from punishing those who establish places where drugs
are made and consumed, such as crack houses, to those who knowingly maintain “drug-
involved premises,” including outdoor events such as rock concerts. In addition to the
criminal penalties that already exist in the crack house statute, the amended statute adds a
civil penalty, thereby lowering the standard of proof from beyond a reasonable doubt to a
preponderance of evidence.
The new law also directs the Sentencing Commission to review and consider stiffening
the federal sentencing guidelines with respect to offenses involving gamma hydroxybutyric
(GHB), the so-called date rape drug; authorizes $5.9 million to be appropriated to DEA for
the hiring of special agents to serve as Demand Reduction Coordinators at the state level; and
authorizes such sums as necessary to DEA for drug education efforts directed at youth, their
parents, and others about Ecstasy and other so-called “club drugs.”
The RAVE act was originally introduced in the 107th Congress (S. 2633/H.R. 5519).
S. 2633 was reported out of committee and placed on the Senate Legislative Calendar. It was
not called up, however, after being targeted by several civil liberties, drug reform, and dance
culture organizations that organized demonstrations and letter-writing campaigns against the
proposal, actions that resumed against the bills when they were reintroduced in the 108th
Congress. For more information and analysis, see CRS Report RS21108, Ecstasy:
Legislative Proposals in the 107th Congress to Control MDMA.
Other Possible Issues
Crack/powder sentencing disparity. Several bills were introduced in the 107th
Congress to reduce the penalty disparity between crack and powder cocaine offenses, but
they saw no action. Similar proposals are expected to be introduced in the 108th, such as the
introduction of H.R. 345 (Bartlett) on January 27, 2003.
Mandatory minimums. Mandatory minimum sentences with regard to drug offenses
have become increasingly controversial in recent years, both at the grass-roots level and
among some senior federal judges. While the intent of mandatory sentencing was to punish
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high-level drug offenders, critics contend that the laws have instead jailed low-level drug
offenders for unusually long periods of time. These critics point out that the average
sentence for first-time, nonviolent drug offenses is longer than the average sentences for rape,
child molestation, bank robbery, or manslaughter. Proponents of mandatory minimums
argue that they constitute an effective way to keep dangerous criminals off the streets. Bills
have been introduced in Congress since at least 1993 to modify or drop mandatory
minimums. Reform bills, while expected to be reintroduced in the 108th, are likely to face
rigorous review.
Law enforcement grant consolidation. The Bush Administration has proposed
the consolidation of many law enforcement assistance programs that are administered by
DOJ’s Office of Justice Programs into a single “Justice Assistance” account. This proposal
was under active study by committees of jurisdiction in the 107th Congress, and could see
further action in the 108th Congress. Of special interest to some in Congress is how
implementation of this proposal would affect grant programs related to the war on drugs.
Souder Amendment to the Higher Education Act. In 1998, the 105th Congress
included in its reauthorization of the Higher Education Act (HEA) an amendment (20 U.S.C.
1091(r)(1)) that denies federal financial aid to any student convicted of a drug offense.
During the 2001-2002 academic year, according to the Department of Education, some
43,000 students were denied student loans because of this provision of law, known as the
Souder amendment. Critics contend that the amendment has a greater impact on minorities
due to an alleged racially disproportionate enforcement of drug laws and because minorities
are likely to be more in need of student aid. A national organization, Students for Sensible
Drug Policy, has arisen in opposition to it, and a House bill, first introduced in the 107th
Congress to repeal it, has been reintroduced in the 108th Congress as H.R. 685 (Frank).
Another House bill in the last Congress, with Rep. Souder as an original co-sponsor, would
have changed the amendment to restrict its application to drug offenses that occur only when
the student is actually receiving student aid. It has also been reintroduced in the 108th
Congress as H.R. 696 (Meeks). Changes to this provision may be considered as part of the
potential reauthorization of the HEA during the 108th Congress.
Executive Branch Actions
The National Drug Control Strategy
In February 2003, President Bush transmitted to Congress the 2003 National Drug
Control Strategy. It continues with the previous strategy’s three core priorities of stopping
drug use before it starts, healing America’s drug users, and disrupting the drug market.
Stopping drug use before it starts. The emphasis here is on education and
community engagement to reduce drug use by young people. The 2002 strategy set forth the
goals of reducing past-month drug use by youth and adults in America by 10% in 2 years and
25% in 5 years from the baseline established by the 2000 National Household Survey on
Drug Abuse. This strategy reports initial progress toward meeting these goals and cites the
Monitoring the Future survey results discussed below to argue that ONDCP is on track for
meeting the 2-year objective with regard to young Americans. The baselines have been
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changed, however, due to changes in the National Household Survey that have created a
discontinuity between the 2002 survey and previous years’ data. ONDCP will now measure
progress by youth toward the goals by using the Monitoring the Future survey, with the 2000-
2001 school year as a baseline. Since this survey does not measure adult drug usage, the
revised National Household Survey will be used to measure progress toward the goals by
adults, but the baseline will be the survey’s 2002 data. The strategy proposes, in the FY2004
drug control budget, a $10 million increase in funding for the Drug-Free Communities
Support Program, $5 million for a new Parents Drug Corps, and $8 million for student drug
testing.
Healing America’s Drug Users. The 2003 strategy estimates that, of the 16 million
Americans who use drugs on a monthly basis, roughly 6 million meet the clinical criteria for
needing drug treatment. The strategy proposes $3.6 billion for drug treatment, and increase
of 8.2% over FY2003. The strategy also includes the President’s treatment initiative
announced in the 2003 State of the Union Address of $600 million over 3 years to provide
vouchers for treatment services from a variety of sources including faith-based organizations.
Disrupting the drug market. The strategy proposes $2.1 billion in FY2004 for
border drug interdiction, an increase of 7.3% from FY2003, and $731 million for the Andean
Counterdrug Initiative. Internationally, the strategy intends to continue to target the supply
of illegal drugs in the source countries, and domestically to promote the use by law
enforcement agencies of a single list identifying high-level drug trafficking targets – the
Consolidated Priority Organization Targeting (CPOT) list. The 28 High Intensity Drug
Trafficking Areas (HIDTAs) around the country, according to the strategy, are now using the
CPOT list to coordinate their activities against organizations at the top of the trafficking
pyramid.
Monitoring the Future’s 2002 Study
The Administration has released drug use statistics to show it is moving toward
intended goals. At an upbeat Washington press conference in December 2002,
administration officials released the results of the 2002 Monitoring the Future survey of drug
use by 8th, 10th, and 12th grade students in U.S. schools. Based on a representative sample of
more than 43,000 students in 394 schools across the country, the results showed a general
downward trend in drug use by high school students from the previous year. For the first
time, teen use of Ecstasy decreased. Use of other illegal drugs also showed declines in most
student categories for most drugs. The proportions of 8th, 10th, and 12th graders reporting that
they used an illegal drug in the previous year now stand at 18%, 35%, and 41%, respectively.
The proportions saying they have used an illegal drug at least once in their lives stand at
25%, 45%, and 53%.
New DEA Rule on Industrial Hemp
The term “industrial hemp” refers to cannabis plants that are grown to produce fiber and
oil used in industrial products such as paper, rope, clothing, industrial solvents, and animal
feed. Other hemp products include foods such as nutrition bars, salad dressings, and beer,
and personal care products such as shampoo, creams, and lotions. In October 2001, DEA
published three rules in the Federal Register (66 FR 51530-51544) that make illegal any
hemp products that could cause THC, a psychoactive ingredient of marijuana, to enter the
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human body. Manufacturers and distributors of THC-containing hemp products made for
human consumption were given 120 days, until February 6, 2002, to dispose of such
products. The Hemp Industries Association contested them in court, and the U.S. Ninth
Circuit Court of Appeals temporarily blocked their implementation. More than 115,000
public comments against the new rules were submitted to the DEA. The final rule was
published in the Federal Register on February 21, 2003. It bans the sale of all hemp food
products by April 21, 2003. The Hemp Industries Association once again requested a stay,
which the Ninth Circuit granted on April 16.
DEA’s Reaction to Medical Marijuana
Nine states, beginning with California in 1996, have approved the medical use of
marijuana under a doctor’s supervision. According to a study to be published in the Journal
of Cannabis Therapeutics, 30,000 California patients and another 5,000 patients in the other
eight states are estimated to possess physician’s recommendations to use marijuana
medically. In response to this situation, DEA agents have raided and shut down medical
marijuana providers in several states, backed by a 2001 U.S. Supreme Court ruling affirming
that federal drug laws take precedence over state laws and barring doctors from prescribing
illegal drugs.
Opposition in defiance of the DEA tactics has arisen in California cities such as Santa
Cruz and San Francisco. In November 2002, nearly 7 out of 10 San Francisco voters
approved Proposition S, which encourages the city’s Board of Supervisors to enact a law
authorizing the cultivation and distribution of medicinal marijuana by the city government.
More recently, on April 23, 2003, the city and county of Santa Cruz, along with 13 medical
marijuana patients, filed a lawsuit in response to DEA’s raid last September on the
Wo/Men’s Alliance for Medical Marijuana (WAMM). The suit is reportedly the first court
challenge to be brought by a local governmental entity against the federal war on drugs.
Drugs in Federal Prisons
According to a report released by the Department of Justice (DOJ) in January 2003,
illegal drugs are present in almost all federal prisons, even at the highest-security facilities,
as evidenced by prisoner drug tests, prisoner overdoses, prison drug finds, and criminal and
administrative cases filed against prisoners, staff, and visitors. Visitors, staff, and the mail
are the three primary ways drugs enter the prisons. The report found that DOJ’s Bureau of
Prisons (BOP) employs several methods to intercept drug smuggling by visitors and through
the mail, but it has failed to take adequate measures to prevent drug smuggling by its staff.
The report, prepared by DOJ’s Office of the Inspector General, found that an insufficient
number of BOP inmates receive drug treatment, partly because their treatment needs are
underestimated and inadequately tracked. The report contains 15 recommendations to make
BOP’s drug interdiction and treatment efforts more effective, including greater use of pat
searches of visitors, better monitoring of inmate visiting sessions, restrictions on contact
visits for some prisoners, and better documentation of prisoners’ diagnoses and drug
treatment needs.
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Other Developments of Relevance to Congress
State Budget Crisis. According to a December 19, 2002 article in the New York
Times, states are reducing their budget deficits by laying off prison guards, closing prisons,
giving inmates early releases from prison, repealing mandatory minimum sentences, sending
drug offenders to treatment rather than prison, not prosecuting misdemeanor violations, and
finding ways around truth-in-sentencing laws and no-parole policies in order to release
convicted felons early. “Last week the legislature in Michigan,” the article says, “voted to
repeal the state’s strict mandatory minimum sentencing laws for drug crimes which have led
to even life sentences for possession of cocaine or heroin.”
Gateway Effect of Marijuana. RAND, a nonprofit policy research institution,
released a research brief in December 2002 that summarizes the results of a study, conducted
by its Drug Policy Research Center, of the theory that those who use marijuana are more
likely to advance to the use of hard drugs because of their marijuana usage. This widely-
believed “gateway effect” of marijuana use, the researchers concluded, might not be valid
after all. Marijuana use, according to RAND’s model, could precede the use of harder drugs
simply because marijuana is available to those with a propensity to use drugs earlier in life
than are hard drugs. While not disproving the gateway theory, the researchers argue that it
should not be assumed to be true by policymakers who are weighing the harms and benefits
of alternative marijuana policies. The research brief states:
Some might argue that as long as the gateway theory remains a possible explanation,
policymakers should play it safe and retain current strictures against marijuana use and
possession. That attitude might be a sound one if current marijuana policies were free
of costs and harms. But prohibition policies are not cost-free, and their harms are
significant: The more than 700,000 marijuana arrests per year in the United States burden
individuals, families, neighborhoods, and society as a whole.
Proposition 36 in Los Angeles County. California’s Proposition 36, enacted in
July 2001, requires that first and second offenders convicted of simple drug possession be
offered treatment rather than jail. Los Angeles County released a report on November 26,
2002, assessing the county’s experience with implementing the measure during its first year
of existence. There were 8,329 people sentenced to treatment, nearly 7,000 fewer than
projected. Nearly 20% of those failed to report for treatment. Many more had dropped out
of their treatment programs. Nevertheless, the report judges the measure a success for
diverting thousands of people from prison, thereby saving taxpayer dollars.
LEGISLATION
P.L. 108-21 (S. 151)
Section 608 contains the text of S. 226 (Biden). See below for more details.
H.R. 345 (Bartlett)
Powder-Crack Cocaine Penalty Equalization Act of 2003. Amends the Controlled
Substances Act and the Controlled Substances Import and Export Act to reduce the amounts
of powder cocaine necessary for specified mandatory minimum sentences so that they equal
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those for crack cocaine. Introduced January 27, 2003, and referred to the Committee on the
Judiciary and the Committee on Energy and Commerce.
H.R. 685 (Frank)
Amends the Higher Education Act of 1965 to repeal the provisions prohibiting persons
convicted of drug offenses from receiving student financial assistance. Introduced February
11, 2003, and referred to the House Committee on Education and the Workforce.
H.R. 696 (Meeks)
Amends the Higher Education Act of 1965 to restrict the disqualification of students for
drug offenses to those students who committed offenses while actually receiving student
financial aid. Introduced February 11, 2003, and referred to the House Committee on
Education and the Workforce.
H.R. 718 (Coble)
The Reducing Americans’ Vulnerability to Ecstasy Act, or RAVE Act. Introduced on
February 12, 2003, and referred to the Committee on the Judiciary and the Committee on
Energy and Commerce. Except for title, identical to S. 226, below.
S. 226 (Biden)
The Illicit Drug Anti-Proliferation Act of 2003. Amends the crack house statute (Sec.
416 of the Controlled Substances Act) to more directly target the promoters of “raves” at
which drugs such as MDMA (Ecstasy) are widely used. It also: directs the Sentencing
Commission to review and consider stiffening the federal sentencing guidelines with respect
to offenses involving the club drug gamma hydroxybutyric (GHB), the so-called date rape
drug; authorizes $5.9 million to be appropriated to DEA for the hiring of a special agent in
each state to serve as a “Demand Reduction Coordinator”; and authorizes such sums as
necessary to DEA for drug education efforts directed at youth, their parents, and others about
“club drugs.” Introduced on January 28, 2003, and referred to the Committee on the
Judiciary. Included in conference as a miscellaneous provision (Sec. 608) of S. 151, the
PROTECT Act, a child protection act that was signed into law on May 1, 2003.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress, Senate Committee on Appropriations, Effectiveness of the National Youth
Anti-Drug Media Campaign, special hearing, 107th Cong., 2nd sess., June 19, 2002
(Washington: GPO, 2002).
FOR ADDITIONAL READING
Belenko, Steven R. Drugs and Drug Policy in America: A Documentary History. Westport,
CT, Greenwood Press [2000] 380 pp.
Kleiman, Mark A.R. Against Excess: Drug Policy for Results. New York, Basic Books
[1992] 474 pp.
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Musto, David F., M.D. The American Disease: Origins of Narcotic Control. New York,
Oxford University Press [1987] 384 pp.
United States. Office of National Drug Control Policy. National Drug Control Strategy.
Washington, D.C., Office of National Drug Control Policy, Executive Office of the
President [February 2003] 54 pp. Available at
[http://www.whitehousedrugpolicy.gov/policy/ndcs.html ]
—— National Drug Control Strategy. FY 2004 Budget Summary. 118 pp. Available at
[http://www.whitehousedrugpolicy.gov/policy/budget.html ]
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