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 March 30, 2004
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
Costs to society of illegal drug use
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 and FY2004 and FY 2005 Appropriations
Appropriations for FY2004
Appropriations for FY2005
ONDCP Reauthorization
Media Campaign Reauthorization
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
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 2003 Study
New DEA Rule on Industrial Hemp
DEA’s Reaction to Medical Marijuana
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-
(S. 1860) was introduced on November 14,
tain mind-altering substances has been a
2003.
public policy goal of the federal government
for more than a century.
Other drug control issues taken up in the
first session included drug control budget
Drug abuse is a problem in the United
appropriations for FY2004 and confirmation
States due to its economic cost, estimated to
by the Senate of a new head of the Drug
have been over $160 billion in 2000. This
Enforcement Administration (DEA).
sum includes lost productivity, health care
costs, and criminal justice expenditures. More
In its second session, the 108th Congress
than 1.5 million people are estimated to have
will act on the President’s budget request for
been arrested in the United States in 2002 for
FY2005 and will likely complete its consider-
drug abuse violations.
ation of ONDCP reauthorization measures.
The U.S. government remains committed
Additional issues that could be consid-
to a policy of zero tolerance when it comes to
ered by the 108th Congress include state ballot
the use of controlled substances. A different
initiatives regarding medical marijuana and
approach has recently emerged in Europe and
drug treatment in lieu of incarceration, the
elsewhere as governments experiment with
effects of state budget deficits on the states’
less restrictive policies, such as decriminaliza-
drug control efforts, and the impact of the
tion and “harm reduction” measures.
anti-terrorism effort on the drug war.
Among the early actions of the 108th
Current developments concerning the
Congress were passage of the remaining
war on drugs that are of relevance to the 108th
appropriations for FY2003, including those
Congress include the President’s drug control
for the many federal drug control agencies and
strategy for FY2004, the success of the drug
programs, and passage of the Illicit Drug Anti-
war as measured by national surveys of drug
Proliferation Act of 2003, designed to control
use, and actions taken by DEA against indus-
the use of “club drugs” such as Ecstasy.
trial hemp products and medical marijuana
providers.
The House passed H.R. 2086, to
reauthorize ONDCP (the office of the “Drug
For related information on international
Czar”) and related programs, on September
drug control legislation and issues see CRS
30, 2003. A Senate bill to extend ONDCP
Issue Brief IB88093, Drug Control: Interna-
tional Policy and Approaches.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
Measures to fund drug enforcement agencies and programs for FY2004 were included
in an omnibus appropriations bill (H.R. 2673), which was signed into law on January 23,
2004 (P.L. 108-199). The President’s budget request for FY2005 was released on February
2, 2004.
A Senate bill to reauthorize the Office of National Drug Control Policy (S. 1860) was
introduced on November 14, 2003. The House passed its reauthorization bill (H.R. 2086)
on September 30, 2003, and sent it to the Senate.
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 has come to be known, encompasses a wide array of public
policies and programs designed to curb the use of illegal drugs 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 developments of
likely interest to the congressional audience that follows this issue.
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Identifying the Problem
Costs to society of illegal drug use. The Office of National Drug Control Policy
estimates the economic cost of illegal drug use in the United States to have been $160.7
billion in 2000, when some 25 million Americans used an illegal drug at least once during
the year. This cost equals about 1.6% of that year’s estimated gross domestic product of
$9,872.9 billion. Losses in productivity accounted for 69% of the estimated cost of drug use.
(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 illicit drug
use. This breakdown reveals that a large part of the price society pays for drug use arises not
from the effects of the drugs themselves, but from the costs of enforcing the laws that
prohibit them.
Deaths from drugs. The number of deaths due to drug overdoses provides another,
frequently cited measure of the cost of drug use. At congressional hearings, witnesses often
cite the number of drug-induced deaths reported annually by the Centers for Disease Control
and Prevention (CDC) to justify the drug war. Actually, the CDC’s category “drug-induced
causes” also includes deaths from legal drugs, such as suicides and accidental deaths from
medically prescribed drugs. The most recent CDC report (“Deaths: Final Data for 2001,”
National Vital Statistics Reports, Sept. 18, 2003, p. 11) says that 21,683 persons died of “drug-
induced causes” in the United States in 2001. 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 19,817 deaths
due to alcohol in 2001, slightly fewer than from all other drugs — legal and illegal —
combined. The number of Americans who die annually from overdoses of illegal drugs, such
as heroin and cocaine, is simply not known, but the CDC data do indicate that it is fewer than
is usually claimed and fewer than the number who die from alcohol-induced causes.
Drugs and crime. The Federal Bureau of Investigation (FBI) reports that in 2002,
of the 14,054 homicides in which the circumstances were known, 657 murders (4.7%) were
narcotics related. In 1997, according to the Department of Justice’s Bureau of Justice
Statistics, 19% of state prisoners and 16% of federal prisoners committed their current
offense to obtain money for drugs. The FBI estimates that more than 1.5 million people were
arrested in the United States in 2002 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% was serving time for drug offenses. The United States now
has the highest incarceration rate of all industrialized countries, due in no small measure to
the legal penalties associated with the war on drugs.
Framing the Issue
The U.S. Government frames the issue as an essential effort to reduce the costs to
society of illegal drug use through vigorous enforcement of the laws that prohibit such
behavior. The government’s attempts early in the last century to control the non-medical use
of the opiates, cocaine, and marijuana led to 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.
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After World War II, the federal government gradually took on a more central role in the
American criminal justice system. This federalization of crime resulted in the enactment by
Congress of four major crime control measures that, as amended, guide today’s drug war:
! The Comprehensive Drug Abuse Prevention and Control Act of 1970
(P.L. 91-513);
! 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.” Although that ambitious and, some would say,
unrealistic goal remains unmet, the official policy remains one of zero tolerance.
Responsible drug use, unlike responsible alcohol use, is considered an oxymoron. To use
a prohibited substance is defined as abuse, no matter how often the drug is taken, regardless
of dosage, 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 severe penalties and are frequently forced
into treatment, if not prison.
Under U.S. leadership, and backed by the United Nations, the drug war is global, with
the participation of every country in the world. Recently, however, that united front has
begun to fracture. 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 is in the process of decriminalizing the possession of small
amounts of marijuana for personal use. The chief of the Mexican federal police has
announced his support of worldwide drug legalization 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. Even within the United States, voters in some states have approved ballot
initiatives to lessen the penalties for using certain drugs.
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 are mainly concerned with:
! 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 drug control programs (e.g., the youth anti-drug
media campaign).
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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 FY2002 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
The Drug Control Budget and FY2004 and FY 2005 Appropriations
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
$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
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$19.2 billion to $11.4 billion, a dramatic measure of the extent to which ONDCP thinks
previous budgets were overstated.
Appropriations for FY2004. ONDCP’s national drug control budget summary for
FY2004 was submitted to Congress on February 3, 2003. Prepared using the new
methodology, the proposed budget contained $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 called 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.
Table 1. CJS: Selected Drug Enforcement Appropriations
(Dollars in Millions)
Agency or
FY2003
FY2004
House
Senate
FY2004
FY2005
Program
Enacted*
Request
(Passed)
(Reported)
Enacted**
Request
DEA Salaries &
$
1,550.8
$
1,558.7
$
1,601.3
$
1,512.3
$
1,601.3
$ 1,661.5
Expenses
OCDETF
$
369.7
$
541.8
$
556.5
$
415.0
$
556.5
$
580.6
Weed & Seed
$
58.5
—
$
51.8
$
58.5
$
58.5
$
51.2
Drug Courts
$
44.7
$
68.0
$
55.0
$
43.5
$
38.5
$
67.5
*FY2003 amounts include a 0.65% rescission. (The pre-rescission total was $524.0 million.)
**These amounts will be subject to a 0.59% rescission.
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 Senate bill (S. 1585) was reported
by the Senate Appropriations Committee on September 5 and was awaiting floor action when
time ran out and the CJS bill was included in H.R. 2673, the Consolidated Appropriations
Act, 2004. The agreed-upon amounts are shown in the above table.
ONDCP is included in the Transportation and Treasury appropriations bill. The House
passed its bill (H.R. 2989) on September 9, 2003. The Senate passed its version of H.R.
2989, amended, on October 23, 2003. The FY2004 consolidated appropriations act funds
ONDCP and its programs at levels close to those of the previous year. It rejects the
administration request for a $20 million increase for the media campaign. (The House
appropriations report (H.Rept. 108-243, p. 172) had said that any increase in funding for the
media campaign “cannot be justified at this time.”) It also rejects the request for a $20
million cut in the HIDTA program. (Further details on all appropriations measures can be
found on the appropriations page of the CRS Website.)
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Table 2. Appropriations for ONDCP Expenses and Programs
(Dollars in Millions)
Account or
FY2003
FY2004
House
Senate
FY2004
FY2005
Program
Enacted*
Request
(Passed)
(Passed)
Enacted**
Request
ONDCP Salaries
$
26.3
$
27.3
$
28.8
$
28.0
$
28.0
$
27.6
& Expenses
CTAC
$
47.7
$
40.0
$
40.0
$
42.0
$
42.0
$
40.0
HIDTA
$
224.9
$
206.4
$
226.4
$
226.4
$
226.4
$
208.4
Media Campaign
$
149.0
$
170.0
$
150.0
$
100.0
$
145.0
$
145.0
Other Programs
$
72.7
$
80.0
$
80.0
$
74.0
$
84.0
$
90.0
Total
$
520.6
$
523.7
$
525.1
$
470.3
$
525.3
$
511.0
*FY2003 amounts include a 0.65% rescission. (The pre-rescission total was $524.0 million.)
**These amounts will be subject to a 0.59% rescission.
Note: Amounts in some columns do not add to total due to rounding.
Appropriations for FY2005. The President's FY2005 budget request was released
on February 2, 2004. Requested amounts for selected drug control agencies and programs
are shown in Tables 1 and 2.
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, 2003.
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
involved in drug control efforts. The bill contains new funding allocation requirements for
the High Intensity Drug Trafficking Areas (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
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circumstances and that would seem to permit the “drug czar” to use media campaign funds
to oppose state initiatives to liberalize drug laws.
The Senate’s reauthorization bill (S. 1860) was introduced on November 14, 2003, by
Senators Hatch, Biden, and Grassley. Like the House bill, S. 1860 would authorize such
sums as necessary to conduct ONDCP’s programs through FY2008 and contains specific
appropriations for the HIDTA program and the media campaign. The Senate bill would
enhance ONDCP’s authority to coordinate the anti-drug programs of other federal agencies,
require ONDCP to develop specific goals and measurements for evaluating agency
performance, refocus the HIDTA program, and strengthen the technology transfer program
of ONDCP’s Counterdrug Technology Assessment Center. Unlike the House bill, the Senate
proposal would authorize several drug prevention and treatment provisions taken from an
unenacted measure introduced in the 107th congress, S. 304. It also incorporates the
provisions of two bills introduced earlier in the 108th, the Anabolic Steroid Control Act of
2003 (S. 1780) and a bill to authorize five National Guard counterdrug schools (S. 1785).
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 and
S. 1860, bills 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.
H.R. 2086 would authorize appropriations of $195 million for each of fiscal years 2004 and
2005 and $210 million for each fiscal year 2006 through 2008. S. 1860 would hold the
authorization at $195 million annually for all 5 years. The media campaign was funded in
amounts between $180 and $195 million per fiscal year between 1998 and 2002. Its FY2003
funding, however, was reduced to $150 million, and it was further reduced to $145 million
for FY2004 (before both years’ rescissions).
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
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markup by the full committee. (For more information and analysis, see CRS Report
RS21490, War on Drugs: The National Youth Anti-Drug Media Campaign.)
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
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.
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 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.
The creation of the Department of Homeland Security (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 DHS will affect the war on drugs, how to improve information sharing between law
enforcement agencies, and additional questions that have arisen due to the heightened
terrorist threat.
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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.
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
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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.
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
consolidated many law enforcement assistance programs administered by DOJ’s Office of
Justice Programs (OJP) into a single “Justice Assistance” account. Of special interest to
some in Congress is how implementation of this proposal, along with reduced funding for
OJP programs, will 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
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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 bills
(H.R. 2086 and S. 1860), as well, each contain 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.
Executive Branch Actions
The National Drug Control Strategy
In March 2004, President Bush transmitted to Congress the 2004 National Drug Control
Strategy. Its proposed $12.6 billion budget for FY2005 is dedicated to the 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 and on drug testing of students.
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. The 2004 strategy announces that the 2-year
goal has been exceeded, with an 11% drop in past-month use of illicit drugs by high school
students between 2001 and 2003, as measured by the most recent Monitoring the Future
survey. (The baseline was changed from the National Household Survey because changes
in its methodology created a discontinuity between the 2002 survey and previous years’ data.
ONDCP now measures progress by youth toward the goals by using the Monitoring the
Future survey, with the 2000-2001 school year as the baseline. Since this survey does not
measure adult drug usage, the revised National Household Survey – renamed the National
Survey on Drug Use and Health – will be used to measure progress toward the goals by
adults, but the baseline will be the survey’s 2002 data.)
Healing America’s Drug Users. The 2004 strategy estimates that, of the 20 million
Americans who use drugs on a monthly basis, roughly 7 million meet the clinical criteria for
needing drug treatment. The strategy proposes $2.3 billion for drug treatment, a 6% increase
over FY2004. The strategy also announces a new focus on reducing the nonmedical use of
prescription drugs. Survey data reveal that abuse of legal medicines, especially pain
relievers, is the second leading category of illegal drug use in the United States, after
marijuana. The development of state-level prescription monitoring programs (PMPs) in the
many states that do not yet have them is one tactic promoted by the 2004 strategy to deal with
this problem.
Disrupting the drug market. The strategy proposes $2.6 billion in FY2005 for drug
interdiction, an increase of 4.5% from FY2004. 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. Overall,
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55% of the drug control budget is allocated for law enforcement, international programs,
drug-related intelligence spending, and interdiction activities.
Monitoring the Future’s 2003 Study
The Administration has released drug use statistics to show it is moving toward
intended goals. At an upbeat Washington press conference in December 2003,
administration officials released the results of the 2003 Monitoring the Future survey of drug
use by 8th, 10th, and 12th grade students in U.S. schools. Based on a representative sample of
nearly 50,000 students in 392 secondary schools across the country, the results showed the
largest reduction in past month use of an illicit drug by youth in more than a decade.
Between 2001 and 2003, the survey recorded an 11 % decline, from 19.4% to 17.3%. The
proportions of 8th, 10th, and 12th graders reporting that they used an illegal drug in the
previous year now stand at 16%, 32%, and 39%, respectively. The proportions saying they
have used an illegal drug at least once in their lives stand at 23%, 41%, and 51%.
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.
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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.
LEGISLATION
Sec. 608 of P.L. 108-21 (S. 226/Biden)
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 Ecstasy (MDMA) are widely used, as discussed above. S. 226 was introduced
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 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 Committee on Education and
the Workforce.
H.R. 2086 (Souder)
Office of National Drug Control Policy Reauthorization Act of 2003. Introduced 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 May 15, 2003. The
full committee marked up the bill 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 September 30
under suspension of the rules.
S. 1780 (Biden)
Amends the Controlled Substances Act to clarify the definition of anabolic steroids and
to provide for research and education activities relating to steroids and steroid precursors.
Introduced October 23, 2003, and referred to the Committee on the Judiciary.
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S. 1785 (Grassley)
Formally authorizes and creates a separate budget account for five counterdrug schools
now operated by the National Guard to train law enforcement personnel and community
antidrug activists. Authorizes $30 million for the schools for each fiscal year 2004 through
2008. Introduced and referred to the Armed Services Committee October 24, 2003.
S. 1860 (Hatch)
Office of National Drug Control Policy Reauthorization Act of 2003. Introduced
November 14, 2003, and referred to the Committee on the Judiciary.
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress, House Committee on Government Reform. H.R. 2086, The Office of
National Drug Control Policy Reauthorization Act of 2003, 108th Congress, 1st sess.,
May 22, 2003 (Washington: GPO, 2003).
—— 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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