Order Code IB10113
CRS Issue Brief for Congress
Received through the CRS Web
War On Drugs: Legislation in the 108th Congress
and Related Developments
Updated October 1, 2003
Mark Eddy
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Identifying the Problem
Framing the Issue
Actions of the 107th Congress
Policy Questions and Concerns of the 108th Congress
ONDCP Reauthorization
Media Campaign Reauthorization
The Drug Control Budget
DEA Administrator Nomination
Impact of Homeland Security on Drug Control Agencies
Control of Ecstasy
Ballot Initiatives and Budgetary Shortfalls in the States
Other Possible Issues
Executive Branch Actions
The National Drug Control Strategy
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
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

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War on Drugs: Legislation in the 108th Congress
and Current National Developments
SUMMARY
Prohibiting the non-medical use of cer-
programs, 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 Ecstasy. The
for more than a century.
House passed H.R. 2086, to reauthorize
ONDCP (the office of the “Drug Czar”) and
Drug abuse is a problem in the United
related programs, on September 30.
States due to its economic cost, estimated to
have been over $160 billion in 2000. This
Other drug control issues being taken up
sum includes lost productivity, health care
in the first session include drug control budget
costs, and criminal justice expenditures. An
appropriations for FY2004 and confirmation
estimated 1.6 million people were arrested in
by the Senate of a new head of the Drug
the United States in 2001 for drug abuse
Enforcement Administration (DEA) due to the
violations.
move of the previous DEA administrator to
the position of Under Secretary for Border and
The federal Office of National Drug
Transportation Security in the Department of
Control Policy (ONDCP), which coordinates
Homeland Security.
the war on drugs, frames the issue as one of
reducing drug-related crime and drug-caused
Additional issues that could be consid-
health problems by reducing drug use. Other
ered by the 108th Congress include state ballot
organizations frame the issue differently.
initiatives regarding medical marijuana and
Some groups, for example, frame their posi-
drug treatment in lieu of incarceration, the
tion on the drug war in terms of human rights,
effects of state budget deficits on the states’
religious freedom, or cognitive liberty.
drug control efforts, and the impact of the
anti-terrorism effort on the drug war.
In recent years, Congress has taken an
increasingly punitive stance toward drug
Current developments concerning the
addicts and casual users alike. A different
war on drugs that are of relevance to the 108th
approach has been taken by certain countries
Congress include the President’s drug-control
in Europe and elsewhere that are experiment-
strategy for FY2004, the success of the drug
ing with less restrictive policies such as de-
war as measured by national surveys of drug
criminalization and “harm reduction” mea-
use, and actions taken by DEA against indus-
sures. The 108th Congress will receive strong
trial hemp products and medical marijuana
encouragement from the Executive Branch to
providers.
continue the all-out war on drugs.
For the latest on international drug
Among the early actions of the 108th
control legislation and issues see CRS Issue
Congress were passage of the remaining
Brief IB88093, Drug Control: International
appropriations for FY2003, including those
Policy and Approaches.
for the many federal drug control agencies and
Congressional Research Service
˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
A bill (H.R. 2086) to reauthorize the Office of National Drug Control Policy passed the
House on September 30, 2003. A Senate bill that would continue ONDCP is close to being
introduced. Congress is moving forward in its consideration of appropriations measures to
fund drug enforcement agencies and programs for FY2004.
BACKGROUND AND ANALYSIS
Introduction
The control of certain mind-altering substances 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, encompasses a wide array of public policies
and programs designed to address the problem of illegal drug use by residents of the United
States and its outlying areas.
It 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 no
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 108th
Congress that concern 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.
Identifying the Problem
Costs of drugs. The Office of National Drug Control Policy (ONDCP) estimates the
economic cost of illegal drug use in the United States to have been over $160 billion in
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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 were estimated at 9% of the total cost of
illegal drug use. Other costs — including drug-related expenses for police, courts, prisons,
and social welfare — made up the remaining 22% of the cost of using drugs. Many of these
costs arise not from any properties of the drugs themselves, but from the existence of the
laws against them.
The estimated $160.7 billion cost of illegal drug use 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 that
year. Drug prohibition cost society nearly $6,500 per drug user, on average, 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.
Unfortunately, the number of deaths due to drug overdoses in any given year is unknown.
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 deaths from alcohol
overdoses in 2000, slightly fewer than from all other drugs — legal and illegal — combined.)
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 illegal drug use 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
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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 Ecstasy (MDMA),
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 has legalized marijuana for
medical uses and, sometime in 2003, is widely expected to decriminalize the possession of
small amounts of marijuana for personal use. Legalization of marijuana was recommended
last year by the Special Committee on Illegal Drugs of the Canadian Senate. The chief of the
Mexican federal police has 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 Mexican President Vicente Fox 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 illegal
drug use. 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.” The war on drugs is now a national effort to reduce
to zero the use of 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 or not the user is addicted. Studies show that most drug users are not
addicts, yet all users of illegal drugs are subject to the same severe penalties and are
frequently forced into treatment, if not prison.
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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 strongly opposes such
changes. The established policy of prohibition is not expected to come under critical scrutiny
at the federal level anytime soon. Accordingly, 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.
Policy Questions and Concerns of the 108th Congress
ONDCP Reauthorization
Created in 1988 (P.L. 100-690), reauthorized in 1994 and again in 1998 (P.L. 105-277),
authorization for the Office of National Drug Control Policy expired on September 30, 2003.
A House reauthorization bill (H.R. 2086/Souder) was introduced on May 14, 2003, after a
series of hearings on the issue were held by House Government Reform’s Subcommittee on
Criminal Justice, Drug Policy, and Human Resources. The subcommittee marked up the bill
and forwarded it to the full committee on May 15, 2003. The full committee held a hearing
and scheduled a markup for May 22, but the markup was postponed due to disagreements
between the majority and minority over certain of the bill’s provisions. These disagreements
were resolved at a rescheduled markup on June 5 when the full committee approved an
amendment in the nature of a substitute offered by Mr. Souder and ordered the bill reported,
as amended, to the floor of the House. The House passed the measure, by voice vote under
suspension of the rules, on September 30.
H.R. 2086, as approved in the House, would authorize to be appropriated such sums as
necessary to conduct ONDCP’s programs for an additional 5 years, fiscal years 2004 through
2008. It would also authorize specific amounts to be appropriated for the National Youth
Anti-Drug Media Campaign for the same period of time (see following section). The bill
reaffirms the authority of the ONDCP Director to oversee and coordinate the federal war on
drugs. It attempts to increase accountability for the achievement of drug policy objectives
by instituting an annual evaluation of the effectiveness of the previous year’s Drug Control
Strategy, including a review of the activities of the many federal departments and agencies
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involved in drug control efforts. The bill contains new funding allocation requirements for
the High Intensity Drug Trafficking Area (HIDTA) program. Dropped from the bill as
reported to the full committee were provisions that would have allowed ONDCP to use
HIDTA funds to prosecute medical marijuana users and providers under certain
circumstances and that would seem to permit the “drug czar” to use media campaign funds
to oppose state initiatives to liberalize drug laws. (A side-by-side comparison of the
provisions of H.R. 2086 with current law is available to congressional requesters from the
author of this Issue Brief.)
Media Campaign Reauthorization
Originally authorized through FY2002 by the Drug-Free Media Campaign Act of 1998
(P.L. 105-277), reauthorization of the media campaign has been included in H.R. 2086, a bill
to reauthorize ONDCP (see preceding section). H.R. 2086 would continue the National
Youth Anti-Drug Media Campaign for an additional 5 years, through FY2008. It would
authorize appropriations of $195 million for each of fiscal years 2004 and 2005 and $210
million for each fiscal year 2006 through 2008. 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 ONDCP, the 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.
It 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, not the drug users, 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, 2003. A provision in H.R. 2086 that appeared to allow the ONDCP Director to use
media campaign funds to campaign against the passage of state medical marijuana initiatives
was included in the bill as reported by the subcommittee, but was deleted from the bill during
markup by the full committee. (For more information and analysis, see CRS Report
RS21490, War on Drugs: The National Youth Anti-Drug Media Campaign.)
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 (DEA) received
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$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 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 ONDCP
compiles annually. 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.
Appropriations for FY 2004. The FY2004 budget summary 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).
The FY2004 budget request 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 is expected by the Bush Administration to result in a better use of federal resources
leading, in 2004, to a 5% reduction in the availability of drugs on the streets of America.
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Table 1. CJS: Selected Drug Enforcement Appropriations
(Dollars in Millions)
FY 2003
FY 2004
House
Senate
Agency or Program
Passed
(Enacted)
Request
(Passed)
(Reported)
DEA
$1,550.8
$1,558.7
$1,601.3
$1,512.3
OCDETF
$369.7
$541.8
$556.5
$415.0
Weed & Seed
$58.5
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$51.8
$58.5
Drug Courts
$44.7
$68.0
$55.0
$43.5
The House Commerce, Justice, State (CJS) appropriations bill (H.R. 2799) cleared the
House and was sent to the Senate on July 23, 2003. The House bill would provide OCDETF
$556 million, an increase of 51%, and would centralize control of OCDETF activities in
DEA. The Senate bill (S. 1585) was reported by the Senate Appropriations Committee on
September 5 and awaits floor action.
Table 2. Appropriations for ONDCP and Related Programs
(Dollars in Millions)
FY 2003
FY 2004
House
Agency or Program
Senate
Passed
(Enacted)
Request
(Passed)
ONDCP
$26.3
$27.3
$28.8
CTAC
$47.7
$40.0
$40.0
HIDTA
$224.9
$206.4
$226.4
Media Campaign
$149.0
$170.0
$150.0
ONDCP is included in the Transportation and Treasury appropriations bill. The House
passed its bill (H.R. 2989) on September 9, 2003. The House would fund ONDCP at $1.5
million above the President’s request and earmark that amount for the National Alliance for
Model State Drug Laws, for which no funds were requested. The rest of the increase over
the FY 2003 enacted amount would be used to pay for 10 positions formerly filled by
detailees from the Department of Defense who have been withdrawn. The House would thus
give ONDCP an essentially level appropriation, but would grant the HIDTA program an
increase of $20 million over the requested amount to fully fund, and expand where necessary,
the HIDTA program and to fund HIDTA activities through the CPOT initiative. The House
appropriations report (H.Rept. 108-243, p. 172) says that any increase in funding for the
National Youth Antidrug Media Campaign “cannot be justified at this time.”
DEA Administrator Nomination
On July 31, 2003, Karen P. Tandy was confirmed by unanimous consent in the U.S.
Senate as Administrator of the Drug Enforcement Administration. Tandy was serving in the
Department of Justice (DOJ) as Associate Deputy Attorney General and Director of the
Organized Crime Drug Enforcement Task Force. She previously served in DOJ as Chief of
Litigation in the Asset Forfeiture Office and as Deputy Chief for Narcotics and Dangerous
Drugs. Earlier, she prosecuted drug, money laundering, and forfeiture cases as an Assistant
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United States Attorney in the Eastern District of Virginia and in the Western District of
Washington. The position fell vacant on January 23, 2003, when Asa Hutchinson, DEA’s
previous head, was confirmed as Under Secretary for Border and Transportation Security in
the Department of Homeland Security (DHS).
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, for example, has shifted agents from such activities as drug
investigations to counterterrorism. 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, strengthened counterterrorism efforts on the
borders can also result in higher drug interdiction rates.
The creation of DHS will likely influence the future conduct of the war on drugs.
Customs, Coast Guard, and the U.S. Border Patrol, among other agencies, have been
incorporated into the new department. Section 101(b) of the Homeland Security Act of 2002
(P.L. 107-296), which established the department, states 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.” Section 878 of the act creates within DHS the position of Counternarcotics
Officer, who will also serve as United States Interdiction Coordinator, a position previously
appointed by the ONDCP director. The appointment of Roger Mackin, a long-time drug
warrior, to this position was announced on March 25, 2003.
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 Ecstasy
The Illicit Drug Anti-Proliferation Act of 2003 (S. 226/H.R. 718) was included in
conference as a miscellaneous provision (Section 608) of S. 151, the PROTECT Act (also
known as the Amber Alert Act). It was signed into law on May 1, 2003 (P.L. 108-21). The
Illicit Drug Anti-Proliferation Act 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 Ecstasy (MDMA) 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 in the original
statute, the amended statute adds a civil penalty, thereby lowering the standard of proof from
beyond a reasonable doubt to a preponderance of evidence.
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The new law also directs the U.S. 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 additional 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 groups that organized demonstrations and letter-writing campaigns against the
proposal. These actions resumed when the bills were reintroduced in the 108th Congress and
continue against the new law and the way it is being implemented. For more information and
analysis, see CRS Report RS21108, Ecstasy: Legislative Proposals in the 107th Congress to
Control MDMA.
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.
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.”
Since the states collectively spend more money and resources on the drug war 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 wars
on drugs and terrorism as enormous, unfunded federal mandates and would welcome
increased federal assistance. Large federal budget deficits may, however, constrain new
federal spending.
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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
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. Changes to this provision may be considered as part of the potential
reauthorization of the HEA during the 108th Congress. 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 been
reintroduced in the 108th Congress as H.R. 696 (Meeks). The ONDCP reauthorization bill
(H.R. 2086/Souder), as well, contains a provision designed to encourage the Department of
Education to deny loans only to students who are convicted of drug offenses while actually
receiving financial aid.
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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
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 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
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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
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 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
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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.
Other Developments of Relevance to Congress
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
Sec. 608 of P.L. 108-21 (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
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which drugs such as Ecstasy (MDMA) are widely used, as discussed above. S. 226 was
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 became P.L. 108-21 on May 1, 2003.
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
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. 2086 (Souder)
Office of National Drug Control Policy Reauthorization Act of 2003. Introduced on
May 14, 2003, and referred to the Committee on Government Reform, and in addition to the
Committees on the Judiciary, Energy and Commerce, and Intelligence (Permanent Select).
The Government Reform Subcommittee on Criminal Justice, Drug Policy, and Human
Resources ordered the bill reported, as amended, to the full committee on May 15, 2003.
The full committee marked up the bill on June 5, 2003, and ordered it reported, as amended,
to the floor of the House. The bill, as amended, passed the House by voice vote on
September 30 under suspension of the rules.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress, House Committee on Government Reform, ONDCP Reauthorization: The
National Youth Anti-Drug Media Campaign, 108th Congress, 1st sess., March 27, 2003
(Washington: GPO, 2003).
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).
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