Neal Scott may die in prison. A 49-year-old Black man from New Orleans, Neal had cycled in and out of prison for drug possession over a number of years. He said he was never offered treatment for his drug dependence; instead, the criminal justice system gave him time behind bars and felony convictions—most recently, five years for possessing a small amount of cocaine and a crack pipe. When Neal was arrested in May 2015, he was homeless and could not walk without pain, struggling with a rare autoimmune disease that required routine hospitalizations. Because he could not afford his $7,500 bond, Neal remained in jail for months, where he did not receive proper medication and his health declined drastically—one day he even passed out in the courtroom. Neal eventually pled guilty because he would face a minimum of 20 years in prison if he took his drug possession case to trial and lost. He told us that he cried the day he pled, because he knew he might not survive his sentence.[1]

Just short of her 30th birthday, Nicole Bishop spent three months in jail in Houston for heroin residue in an empty baggie and cocaine residue inside a plastic straw. Although the prosecutor could have charged misdemeanor paraphernalia, he sought felony drug possession charges instead. They would be her first felonies.

Nicole was separated from her three young children, including her breastfeeding newborn. When the baby visited Nicole in jail, she could not hear her mother’s voice or feel her touch because there was thick glass between them. Nicole finally accepted a deal from the prosecutor: she would do seven months in prison in exchange for a guilty plea for the 0.01 grams of heroin found in the baggie, and he would dismiss the straw charge. She would return to her children later that year, but as a “felon” and “drug offender.” As a result, Nicole said she would lose her student financial aid and have to give up pursuit of a degree in business administration. She would have trouble finding a job and would not be able to have her name on the lease for the home she shared with her husband. She would no longer qualify for the food stamps she had relied on to help feed her children. As she told us, she would end up punished for the rest of her life.

***

Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.

As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.

This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.

There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.

The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.

Families, friends, and neighbors understandably want government to take actions to prevent the potential harms of drug use and drug dependence. Yet the current model of criminalization does little to help people whose drug use has become problematic. Treatment for those who need and want it is often unavailable, and criminalization tends to drive people who use drugs underground, making it less likely that they will access care and more likely that they will engage in unsafe practices that make them vulnerable to disease and overdose.

While governments have a legitimate interest in preventing problematic drug use, the criminal law is not the solution. Criminalizing drug use simply has not worked as a matter of practice. Rates of drug use fluctuate, but they have not declined significantly since the “war on drugs” was declared more than four decades ago. The criminalization of drug use and possession is also inherently problematic because it represents a restriction on individual rights that is neither necessary nor proportionate to the goals it seeks to accomplish. It punishes an activity that does not directly harm others.

Instead, governments should expand public education programs that accurately describe the risks and potential harms of drug use, including the potential to cause drug dependence, and should increase access to voluntary, affordable, and evidence-based treatment for drug dependence and other medical and social services outside the court and prison system.

After decades of “tough on crime” policies, there is growing recognition in the US that governments need to undertake meaningful criminal justice reform and that the “war on drugs” has failed. This report shows that although taking on parts of the problem—such as police abuse, long sentences, and marijuana reclassification—is critical, it is not enough: Criminalization is simply the wrong response to drug use and needs to be rethought altogether.

Human Rights Watch and the American Civil Liberties Union call on all states and the federal government to decriminalize the use and possession for personal use of all drugs and to focus instead on prevention and harm reduction. Until decriminalization has been achieved, we urge officials to take strong measures to minimize and mitigate the harmful consequences of existing laws and policies. The costs of the status quo, as this report shows, are too great to bear.

A National Problem

All US states and the federal government criminalize possession of illicit drugs for personal use. While some states have decriminalized possession of small amounts of marijuana, other states still make marijuana possession a misdemeanor or even a felony. In 42 states, possession of small amounts of most illicit drugs other than marijuana is either always or sometimes a felony offense. Only eight states and the District of Columbia make possession of small amounts a misdemeanor.

Not only do all states criminalize drug possession; they also all enforce those laws with high numbers of arrests and in racially discriminatory ways, as evidenced by new analysis of national and state-level data obtained by Human Rights Watch.

Aggressive Policing

More than one of nine arrests by state law enforcement are for drug possession, amounting to more than 1.25 million arrests per year. While the bulk of drug possession arrests are in large states such as California, which made close to 200,000 arrests for drug possession in 2014, Maryland, Nebraska, and Mississippi have the highest per capita drug possession arrest rates. Nationwide, rates of arrest for drug possession range from 700 per 100,000 people in Maryland to 77 per 100,000 in Vermont.

Despite shifting public opinion, in 2015, nearly half of all drug possession arrests (over 574,000) were for marijuana possession. By comparison, there were 505,681 arrests for violent crimes (which the FBI defines as murder, non-negligent manslaughter, rape, robbery, and aggravated assault). This means that police made more arrests for simple marijuana possession than for all violent crimes combined.

Data presented for the first time in this report shows stark differences in arrest rates for drug possession even within the same state. For example, data provided to us by Texas shows that 53 percent of drug possession arrests in Harris County (in and around Houston) were for marijuana, compared with 39 percent in nearby Dallas County, despite similar drug use rates in the two counties. In New York State, the counties with the highest drug possession arrest rates by a large margin were all in and around urban areas of New York City and Buffalo. In Florida, the highest rates of arrest were spread around the state in rural Bradford County, urban Miami-Dade County, Monroe County (the Keys), rural Okeechobee County, and urban Pinellas County. In Texas, counties with the highest drug possession arrest rates were all small rural counties. Kenedy County, for example, has an adult population of 407 people, yet police there made 329 arrests for drug possession between 2010 and 2015. In each of these states, there is little regional variation in drug use rates.

The sheer magnitude of drug possession arrests means that they are a defining feature of the way certain communities experience police in the United States. For many people, drug laws shape their interactions with and views of the police and contribute to a breakdown of trust and a lack of security. This was particularly true for Black and Latino people we interviewed.

Racial Discrimination

Over the course of their lives, white people are more likely than Black people to use illicit drugs in general, as well as marijuana, cocaine, heroin, methamphetamines, and prescription drugs (for non-medical purposes) specifically. Data on more recent drug use (for example, in the past year) shows that Black and white adults use illicit drugs other than marijuana at the same rates and that they use marijuana at similar rates.

Yet around the country, Black adults are more than two-and-a-half times as likely as white adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent of those who used drugs in the previous year but close to a third of those arrested for drug possession. In the 39 states for which we have sufficient police data, Black adults were more than four times as likely to be arrested for marijuana possession than white adults.[2]

In every state for which we have sufficient data, Black adults were arrested for drug possession at higher rates than white adults, and in many states the disparities were substantially higher than the national rate—over 6 to 1 in Montana, Iowa, and Vermont. In Manhattan, Black people are nearly 11 times more likely than white people to be arrested for drug possession.

Darius Mitchell, a Black man in his 30s, was among those targeted in Louisiana. He recounted his story to us as follows: Late one night in Jefferson Parish, Darius was driving home from his child’s mother’s house. An officer pulled him over, claiming he was speeding. When Darius said he was sure he was not, the officer said he smelled marijuana. He asked whether he could search, and Darius said no. Another officer and a canine came and searched his car anyway. They yelled, “Where are the pounds?” suggesting he was a marijuana dealer. The police never found marijuana, but they found a pill bottle in Darius’ glove compartment, with his child’s mother’s name on it. Darius said that he had driven her to the emergency room after an accident, and she had been prescribed hydrocodone, which she forgot in the car. Still, the officers arrested him and he was prosecuted for drug possession, his first felony charge. He faced up to five years in prison. Darius was ultimately acquitted at trial, but months later he remained in financial debt from his legal fees, was behind in rent and utilities bills, and had lost his cable service, television, and furniture. He still had an arrest record, and the trauma and anger of being unfairly targeted.

Small-Scale Drug Use: Prosecutions for Tiny Amounts

We interviewed over 100 people in Texas, Louisiana, Florida, and New York who were prosecuted for small quantities of drugs—in some cases, fractions of a gram—that were clearly for personal use. Particularly in Texas and Louisiana, prosecutors did more than simply pursue these cases—they often selected the highest charges available and went after people as hard as they could.

In 2015, according to data we analyzed from Texas courts, nearly 16,000 people were sentenced to incarceration for drug possession at the “state jail felony” level—defined as possession of under one gram of substances containing commonly used drugs, including cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms (or between 4 ounces and 5 pounds of marijuana).[3] One gram, the weight of less than one-fourth a sugar packet, is enough for only a handful of doses for new users of many drugs. Data presented here for the first time suggests that in 2015, more than 78 percent of people sentenced to incarceration for felony drug possession in Texas possessed under a gram. Possibly thousands more were prosecuted and put on probation, potentially with felony convictions. In Dallas County, the data suggests that nearly 90 percent of possession defendants sentenced to incarceration were for under a gram.

The majority of the 30 defendants we interviewed in Texas had substantially less than a gram of illicit drugs in their possession when they were arrested: not 0.9 or 0.8 grams, but sometimes 0.2, 0.02, or a result from the lab reading “trace,” meaning that the amount was too small even to be measured. One defense attorney in Dallas told us a client was charged with drug possession in December 2015 for 0.0052 grams of cocaine. The margin of error for the lab that tested it is 0.0038 grams, meaning it could have weighed as little as 0.0014 grams, or 35 hundred-thousandths (0.00035) of a sugar packet.

Bill Moore, a 66-year-old man in Dallas, is serving a three-year prison sentence for 0.0202 grams of methamphetamines. In Fort Worth, Hector Ruiz was offered six years in prison for an empty bag that had heroin residue weighing 0.007 grams. In Granbury, Matthew Russell was charged with possession of methamphetamines for an amount so small that the laboratory result read only “trace.” The lab technician did not even assign a fraction of a gram to it.

A System that Coerces Guilty Pleas

In 2009 (the most recent year for which national data is available), more than 99 percent of people convicted of drug possession in the 75 largest US counties pled guilty. Our interviews and data analysis suggest that in many cases, high bail—particularly for low-income defendants—and the threat of long sentences render the right to a jury trial effectively meaningless.

Data we obtained from Florida and Alabama reveals that, at least in those two states, the majority of drug possession defendants were poor enough to qualify for court-appointed counsel. Yet in 2009, drug possession defendants in the 75 largest US counties had an average bail of $24,000 (for those detained, average bail was $39,900). For lower-income defendants, such high bail often means they must remain in jail until their case is over.

For defendants with little to no criminal history, or in relatively minor cases, prosecutors often offer probation, relatively short sentences, or “time served.” For those who cannot afford bail, this means a choice between fighting their case from jail or taking a conviction and walking out the door. In Galveston, Texas, Breanna Wheeler, a single mother, pled to probation and her first felony conviction against her attorney’s advice. They both said she had a strong case that could be won in pretrial motions, but her attorney had been waiting months for the police records, and Breanna needed to return home to her 9-year-old daughter. In New York City, Deon Charles told us he pled guilty because his daughter had just been born that day and he needed to see her.

For others, the risk of a substantially longer sentence at trial means they plead to avoid the “trial penalty.” In New Orleans, Jerry Bennett pled guilty to possession of half a gram of marijuana and a two-and-a-half-year prison sentence, because he faced 20 years if he lost at trial: “They spooked me out by saying, ‘You gotta take this or you’ll get that.’ I’m just worried about the time. Imagine me in here for 20 years. They got people that kill people. And they put you up here for half a gram of weed.”

For the minority of people we interviewed who exercised their right to trial, the sentences they received in Louisiana and Texas were shocking. In New Orleans, Corey Ladd was sentenced as a habitual offender to 17 years for possessing half an ounce of marijuana. His prior convictions were for possession of small amounts of LSD and hydrocodone, for which he got probation both times. In Granbury, Texas, after waiting 21 months in jail to take his case to trial, Matthew Russell was sentenced to 15 years for a trace amount of methamphetamines. According to him and his attorney, his priors were mostly out-of-state and related to his drug dependence.

Incarceration for Drug Possession

At year-end 2014, over 25,000 people were serving sentences in local jails and another 48,000 were serving sentences in state prisons for drug possession nationwide. The number admitted to jails and prisons at some point over the course of the year was significantly higher. As with arrests, there were sharp racial disparities. In 2002 (the most recent year for which national jail data is available), Black people were over 10 times more likely than white people to be in jail for drug possession. In 2014, Black people were nearly six times more likely than white people to be in prison for drug possession.

Our analysis of data from Florida, Texas, and New York, presented here for the first time, shows that the majority of people convicted of drug possession in these states are sentenced to some form of incarceration. Because each dataset is different, they show us different things. For example, our data suggests that in Florida, 75 percent of people convicted of felony drug possession between 2010 and 2015 had little to no prior criminal history. Yet 84 percent of people convicted of these charges were sentenced to prison or jail. In New York State, between 2010 and 2015, the majority of people convicted of drug possession were sentenced to some period of incarceration. At year-end 2015, one of sixteen people in custody in New York State was incarcerated for drug possession. Of those, 50 percent were Black and 28 percent Latino. In Texas, between 2012 and 2016, approximately one of eleven people in prison had drug possession as their most serious offense; two of every three people serving time for drug charges were there for drug possession; and 116 people had received life sentences for drug possession, at least seven of which were for an amount weighing between one and four grams.

For people we spoke to, the prospect of spending months or years in jail or prison was overwhelming. For most, the well-being of family members in their absence was also a source of constant concern, sometimes more vivid for them than the experience of jail or prison itself. Parents told us they worried about children growing up without them. Some described how they missed seeing their children but did not let them visit jail or prison because they were concerned the experience would be traumatizing. Others described the anguish of no-contact jail visits, where they could see and hear but not reach out and touch their young children’s hands. Some worried about partners and spouses, for whom their incarceration meant lost income and lost emotional and physical support.

In Covington, Louisiana, Tyler Marshall’s wife has a disability, and he told us his absence took a heavy toll. “My wife, I cook for her, clean for her, bathe her, clothe her…. Now everything is on her, from the rent to the bills, everything…. She’s behind [on rent] two months right now. She’s disabled and she’s doing it all by herself.” In New Orleans, Corey Ladd was incarcerated when his girlfriend was eight months pregnant. He saw his infant daughter Charlee for the first time in a courtroom and held her for the first time in the infamous Angola prison. She is four now and thinks she visits her father at work. “She asks when I’m going to get off work and come see her,” Corey told us. He is a skilled artist and draws Charlee pictures. In turn, Charlee brings him photos of her dance recitals and in the prison visitation hall shows him new dance steps she has learned. Corey, who is currently serving 17 years for marijuana possession, may never see her onstage.

Probation, Criminal Justice Debt, and Collateral Consequences

Even for those not sentenced to jail or prison, a conviction for drug possession can be devastating, due to onerous probation conditions, massive criminal justice debt, and a wide range of restrictions flowing from the conviction (known in the literature as “collateral consequences”).

Many defendants, particularly those with no prior convictions, are offered probation instead of incarceration. Although probation is a lesser penalty, interviewees in Florida, Louisiana, and Texas told us they felt “set up to fail” on probation, due to the enormous challenges involved in satisfying probation conditions (for example, frequent meetings at distant locations that make it impossible for probationers to hold down a job, but require that they earn money to pay for travel and fees). Some defense attorneys told us that probation conditions were so onerous and unrealistic that they would counsel clients to take a short jail or prison sentence instead. A number of interviewees said if they were offered probation again, they would choose incarceration; others said they knew probation would be too hard and so chose jail time.

At year-end 2014, the US Department of Justice reported that 570,767 people were on probation for drug law violations (the data does not distinguish between possession and sales), accounting for close to 15 percent of the entire state probation population around the country. In some states, drug possession is a major driver of probation. In Missouri, drug possession is by far the single largest category of felony offenses receiving probation, accounting for 9,500 people or roughly 21 percent of the statewide probation total. Simple possession is also the single largest driver in Florida, accounting for nearly 20,000 cases or 14 percent of the statewide probation total. In Georgia, possession offenses accounted for 17 percent of new probation starts in 2015 and roughly 16 percent of the standing probation population statewide at mid-year 2016.

In addition to probation fees (if they are offered probation), people convicted of drug possession are often saddled with crippling court-imposed fines, fees, costs, and assessments that they cannot afford to pay. These can include court costs, public defender application fees, and surcharges on incurred fines, among others. They often come on top of the price of bail (if defendants can afford it), income-earning opportunities lost due to incarceration, and the financial impact of a criminal record. For those who choose to hire an attorney, the costs of defending their case may have already left them in debt or struggling to make ends meet for months or even years to come.

A drug conviction also keeps many people from getting a job, renting a home, and accessing benefits and other programs they may need to support themselves and their families—and to enjoy full civil and social participation. Federal law allows states to lock people out of welfare assistance and public housing for years and sometimes even for life based on a drug conviction. People convicted of drug possession may no longer qualify for educational loans; they may be forced to rely on public transport because their driver’s license is automatically suspended; they may be banned from juries and the voting booth; and they may face deportation if they are not US citizens, no matter how many decades they have lived in the US or how many of their family members live in the country. In addition, they must bear the stigma associated with the labels of “felon” and “drug offender” the state has stamped on them, subjecting them to private discrimination in their daily interactions with landlords, employers, and peers.

A Call for Decriminalization

As we argue in this report, laws criminalizing drug use are inconsistent with respect for human autonomy and the right to privacy and contravene the human rights principle of proportionality in punishment. In practice, criminalizing drug use also violates the right to health of those who use drugs. The harms experienced by people who use drugs, and by their families and broader communities, as a result of the enforcement of these laws may constitute additional, separate human rights violations.

Criminalization has yielded few, if any, benefits. Criminalizing drugs is not an effective public safety policy. We are aware of no empirical evidence that low-level drug possession defendants would otherwise go on to commit violent crimes. And states have other tools at their disposal—for example, existing laws that criminalize driving under the influence or child endangerment—to address any harmful behaviors that may accompany drug use.

Criminalization is also a counterproductive public health strategy. Rates of drug use across drug types in the US have not decreased over the past decades, despite widespread criminalization. For people who struggle with drug dependence, criminalization often means cycling in and out of jail or prison, with little to no access to voluntary treatment. Criminalization undermines the right to health, as fear of law enforcement can drive people who use drugs underground, deterring them from accessing health services and emergency medicine and leading to illness and sometimes fatal overdose.

It is time to rethink the criminalization paradigm. Although the amount cannot be quantified, the enormous resources spent to identify, arrest, prosecute, sentence, incarcerate, and supervise people whose only offense has been possession of drugs is hardly money well spent, and it has caused far more harm than good. Some state and local officials we interviewed recognized the need to end the criminalization of drug use and to develop a more rights-respecting approach to drugs. Senior US officials have also emphasized the need to move away from approaches that punish people who use drugs.

Fortunately, there are alternatives to criminalization. Other countries—and even some US states with respect to marijuana—are experimenting with models of decriminalization that the US can examine to chart a path forward.

Ending criminalization of simple drug possession does not mean turning a blind eye to the misery that drug dependence can cause in the lives of those who use and of their families. On the contrary, it requires a more direct focus on effective measures to prevent problematic drug use, reduce the harms associated with it, and support those who struggle with dependence. Ultimately, the criminal law does not achieve these important ends, and causes additional harm and loss instead. It is time for the US to rethink its approach to drug use.

The massive enforcement of laws criminalizing personal drug use and possession in the United States causes devastating harm. Enforcement ruins individual and family lives, discriminates against people of color, and undermines public health. The federal and state governments should decriminalize the personal use and possession of illicit drugs. 

https://www.hrw.org/news/2016/10/12/u...

The long-term consequences can separate families; exclude people from job opportunities, welfare assistance, public housing, and voting; and expose them to discrimination and stigma for a lifetime. While more people are arrested for simple drug possession in the US than for any other crime, mainstream discussions of criminal justice reform rarely question whether drug use should be criminalized at al