New Mexico thumbs its nose at the war on drugs

A panel convened by Gov. Gary Johnson calls for the decriminalization of marijuana and a shift in focus from penal measures to treatment for drug offenders.

Published January 5, 2001 9:40PM (EST)

Maverick New Mexico Gov. Gary Johnson, one of the most vocal Republican critics of the war on drugs, unveiled a series of proposals Thursday calling for a radical overhaul of the state's drug policies. The panel convened by the New Mexico governor calls for the decriminalization of "personal use" marijuana and offer comprehensive policy prescriptions aimed at education, healthcare and the penal system that emphasize prevention and treatment instead of punitive measures.

"New Mexico should begin immediately to decrease its reliance on supply-reduction strategies for combating drug and alcohol abuse and focus instead on demand-reduction strategies such as prevention and treatment," the report by Johnson's 10-member Drug Policy Advisory Group concludes. Gov. Johnson convened the group in May to propose an overhaul of the state's drug policies.

The recommendations mark a radical departure from the anti-drug strategies currently in vogue across the country. The proposals, for which Johnson must still find legislative sponsors, call for the decriminalization for adults of "personal use" marijuana in amounts of 1 ounce or less; passage of medical-marijuana legislation; making drug treatment available upon request throughout the state; and the reduction of charges in all first and second drug-possession offenses to misdemeanors.

Under the proposals, individuals convicted of minor drug-possession offenses would be given probation and treatment rather than jail. And those still facing jail sentences would be given new opportunities for treatment and rehabilitation. The panel argues that mandatory minimum sentences for drug convictions should be eliminated, and it encourages the diversion of cases to drug courts, which tend to offer alternatives to imprisonment. It recommends that courts stop using drug offenses as a basis for longer sentencing under habitual-offender (e.g. "three strikes") laws and calls for prison-based methadone treatment. It would also make it more difficult for the government to order seizures of assets in drug cases.

The reforms would make it easier for patients to seek drug treatment through physicians. Doctors would be free to prescribe methadone; federal Medicaid contracts would be adjusted to pay for that and other treatments.

Johnson's Drug Policy Advisory Group is also asking the governor to implement new drug-education programs built on a "harm-reduction approach" that would teach students the relative dangers of different drugs rather than the traditional "just say no" strategy of zero-tolerance programs used by most American schools and educators.

Not surprisingly, foes of Johnson's liberal stance on drug legalization were quick to criticize the proposals. "The minute you weaken the position of keeping drugs out of the hands of children, you have problems," says Republican state Rep. Ted Hobbs of Albuquerque. "It's a general reaction, an emotional reaction." Of the education proposals, Hobbs says, "I like 'Just say no!' I totally disagree with anything that weakens the position that drug use is simply bad."

While elements of the New Mexico proposals have been adopted in other states, no single state has attempted such wide-ranging reform. Despite a lot of rhetoric, says Dave Fratello, political director of Campaigns for New Drug Policies, no state has shifted its drug policies from an interdiction-and-imprisonment emphasis to treatment and prevention.

In fact, though the federal government trumpets its increased allocations for treatment, two-thirds of the Office of National Drug Control Policy's budget is allocated to law enforcement. In the annual report delivered by the ONDCP Thursday as controversial drug czar Gen. Barry McCaffrey exited the agency, the White House drug office added treatment as a national strategic goal.

Eleven states, including California, Oregon, Maine, Nebraska, New York, North Carolina and Ohio, have some form of decriminalization of marijuana for personal use, with civil fines ranging from $100 to $250 or even higher. New Mexico would stand alone if, as the panel advocates, it eliminated all criminal sanctions for private use. And if it resurrects its dormant medical-marijuana statute, it will join nine states with such legislation, all of which are in the West, with the exception of Maine.

Many states have versions of sentencing reform on the books, and just yesterday, Republican Gov. George Pataki called for revamping New York's Draconian Rockefeller drug laws, which have put some 600 inmates behind bars for sentences of 15 years to life. Drug courts are also proliferating, with some 700 in operation, according to the ONDCP. The Department of Justice has been quite generous in handing out drug-court grants to the states, notes Fratello.

A letter accompanying the panel's report strongly rebukes the federal government for promulgating what it describes as "patently false information" about drugs "and the effectiveness (or lack thereof) of current drug policies." It states that 30 years of the federally driven war on drugs spurred more dangerous and addictive drugs; heavier drug use at earlier ages; an increase in death and disease; gang violence; extraordinarily long prison sentences for nonviolent offenders; and the squandering of tax dollars on ineffective policies.

A good deal of this criticism comes from New Mexico native son and panel member Judge John Kane, who sits on the U.S. District Court in Colorado and is an ardent critic of the federal government's drug policies. Much of it arose from such high-profile blunders as an assertion by the ONDCP that Holland has a far higher murder rate than the United States, and that there is no evidence of medical marijuana's effectiveness. Citing Alexis de Tocqueville's belief that "American states, cities and towns are the laboratories of democracy," Kane says, "a national policy forced down the states' throats is no laboratory, but a march to the same drumbeat. And it's a march of folly."

Katharine Huffman, director of the Lindesmith Center/Drug Policy Foundation's New Mexico Drug Policy Project, who helped facilitate the panel's six-month effort, concurs. "The panel felt strongly that a big part of the reason the war on drugs continues is ... the federal government's fear-mongering and overdramatization prevent rational policymaking," she says.

Panelists also had harsh criticisms of current drug education programs in schools, like DARE, which often use scare tactics (à la one joint leads to perdition) to keep kids off drugs. Panel members urged consideration of a more pragmatic harm-reduction approach, since, as Lindesmith Center director Marsha Rosenbaum argues, half of today's youth have already tried marijuana, and 80 percent have used alcohol. Rather than being taught zero tolerance, they say, kids should be taught the importance of setting and context -- that they should never use drugs while working, driving or engaging in sports, for example.

Panel member Kane offers a stinging analysis of current education efforts. "It's like when the nuns told you in school that you'll go blind if you play with yourself," he says. "And you decided, just as soon as you need glasses, you'd quit." Kane, who has four children of his own, feels teachers need to discuss different drugs' relative dangers to establish credibility.

Referring to zero tolerance education policies in an interview published in the January Playboy, Gov. Johnson said, "You hear you're going to lose your mind and go crazy and even die if you smoke marijuana." Johnson added, "You have to tell the truth. When kids realize you're lying, they will no longer listen to you. They may think the stuff you've been telling them about other drugs isn't true either ... People try pot and they don't go crazy."

Though reform advocates endorse the proposals, Johnson faces an uphill struggle over some of the panel's more controversial recommendations. Some he can enact on his own initiative, such as enhanced liability protection for emergency medical personnel who administer new drugs to save overdosing heroin users. But most of the recommendations depend on passage by the Democrat-controlled state Legislature, which fought Johnson last year over his opposition to current interdiction-and-imprisonment policies. Not surprisingly, Johnson also faces criticism within his own party.

State Rep. Ron Godbey, an Albuquerque Republican, has emerged as Johnson's most stalwart foe within the Republican Party. A career Air Force meteorologist, Godbey declares the chances of any marijuana decriminalization bill as between "zero and nil." Godbey says that the marijuana sold on the streets now is "30 times stronger than back when the governor was puffing away," and he says he doubts Johnson will find a single representative among the state's 70 to sponsor such a bill. Godbey declares the proposed medical-marijuana bill DOA, since, he believes, the medical community opposes it and only "the druggies" are in favor. Nor does Godbey support downgrading initial possession charges to a misdemeanor -- a proposal he criticizes as "another step toward decriminalization."

Still, Godbey concedes that other provisions in the proposal stand a better chance in the Legislature, including the removal of drug-possession crimes from the state's "three-strikes" law, under which a small-time dealer (often someone fueling his, or increasingly her, own addiction) can get an 18-year sentence.

Ironically, as drug advisory group member Steve Bunch, director of the New Mexico Drug Policy Foundation, points out, the Legislature already passed asset forfeiture and sentencing reform measures in the 1990s, but both bills were vetoed by Gov. Johnson. Johnson has also vetoed a prior drug treatment funding bill because of competing financial priorities, says Bunch. New Mexico passed an unfunded provision to provide medical marijuana in research settings in 1978, but it has remained dormant since the late 1980s.

That irony has not been lost on Diane Denish, chairwoman of the New Mexico Democratic Party. "Democrats have been fighting for [sentencing reform] for a long time. We've been fighting the governor over the years, and he's called us soft on crime," she says. "Gov. Johnson has a long history of vetoing prevention, education and incarceration reform measures. Now this is his thing. But he needs to get his own party on board. Even with his national platform, he's just talked the talk. Now he needs to walk the walk." The Democratic leader does, however, extend an olive branch to Johnson: "If the governor works with us on other issues, such as increasing teacher pay and having maybe not so broad a tax cut, then we can work with him on drug policy as long as it's not outright legalization."

If Johnson does push ahead with the panel's recommendations -- as he is widely expected to do during the 60-day legislative session that begins in mid-January -- he will be aided by a $50,000 print and radio advertising campaign to be launched by the National Organization for the Reform of Marijuana Laws. Ads in the campaign will cite the supposed 76 million Americans who have smoked marijuana and are otherwise law-abiding citizens and call on the government to better invest its drug war money by prosecuting violent criminals, says NORML executive director Keith Stroup. A second ad will refer to the benefits of medical marijuana for chemotherapy patients. They'll build on ads NORML ran when Johnson first came out for drug reform, which stated, "Gov. Johnson's right. Stop arresting responsible smokers."

Stroup feels the marijuana decriminalization provision stands a good chance of success. He refers to "no arrest, no jail" personal-use laws in effect in Oregon, California, North Carolina and Ohio, among other states, and says, "We have private polling that indicates 58 percent of the American public opposes sending marijuana smokers to jail. That's precisely what the governor's proposal would do."

Whatever the uncertain prospects for its passage by the Legislature, marijuana decriminalization is no small matter. New Mexico averages some 4,000 marijuana possession arrests annually. (NORML estimates that 88 percent of all marijuana arrests nationwide in 1999 were for simple possession.) No one is currently imprisoned long term in New Mexico for simple possession. But, says panel facilitator Huffman, people often do go to jail for several days while their case is processed. And parolees and probationers are often returned to prison if they test positive for marijuana in drug tests.

The very concept of marijuana decriminalization presents a Catch-22 for legislators. If you're allowed to possess the drug, then where do you get it? "We recognize the inherent conflict between this [decriminalization] recommendation and maintaining criminal penalties for distribution of marijuana," the panel's report states. But it does not offer any way to reconcile that contradiction.

Gov. Johnson told Playboy that with decriminalization "you are going to allow a person to possess and use marijuana, but not to buy it. In other words, how are people going to get the pot? They are still going to get it from illegal dealers, who are buying it from bigger dealers. Decriminalization doesn't deal with the problems of street crime and organized crime ... Of course marijuana use should be decriminalized, but we also have to stop the illegal activities that support the industry." And how do you do that? Legalization of marijuana, says Johnson. But that proposal is absent from the panel's report.

Judge Smith acknowledges the conundrum. "That's something we're going to have to revisit ... We didn't want to give too many things for opponents to jump on."

There are also enormous financial considerations that the panel was not asked to address -- treatment and prevention is an expensive strategy. But Gov. Johnson now has something to work with besides his rousing appearances at last summer's Shadow Conventions. As one source in the New Mexico government put it, "Johnson needed to get some points up on the board. He needed to show that he's not just talking the big talk. And now that he's got a real proposal out there, he's not just answering questions in Playboy."

By Daniel Forbes

Daniel Forbes is a New York freelancer who writes on social policy and the media.

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