The first prisoner in Virginia to die of COVID-19 was Melissa Ann Horn. Having been addicted to drugs for years, Horn knew the inside of the state’s correctional system well. But she never expected to die in a prison hospital at 49 years old, stuck in a years-long sentence for meth charges.
Horn was just one of the many thousands who are serving time in the country’s jail and prison populations due to low-level drug offenses. They’re all at risk in 2020, as correctional facilities have proven to be massive hotspots for COVID infections. That same month, Andrea Circle Bear, a 30-year-old woman in the Texas federal prison system, died from COVID complications while also incarcerated for low-level meth charges. Like Horn, it’s hard to fathom how Circle Bear, who had just given birth to a baby girl, deserved to die for the crime of having meth in her home.
The COVID pandemic behind bars is an explicit metaphor for how America’s criminal justice system has failed, and it’s hard to ignore the “War on Drugs” as maybe the biggest trigger for corrupt policing that has failed Black and brown lives. Public health experts seem to agree that the policy of throwing the clamps on anyone involved in the drug trade has been both brutal for the convicted and costly to the public. Yet drug laws remain the number one cause of arrests in the country, with increases in recent years. The vast majority are for minor crimes; FBI data show that of the 1.6 million arrests for drug law violations in 2017, 85 percent was for possession.
What this picture tells us is that conversations about defunding the police, and what the alternate future could look like, constitute only the tip of the proverbial iceberg when it comes to reshaping who the justice system punishes, and why. Changing who enforces drug laws doesn’t fix the innate problems of drug laws, and neither do piecemeal reforms in state sentencing laws.
Amid a pandemic that’s showing the cracks in police and prisons, why shouldn’t we consider a world in which possessing drugs isn’t illegal at all?
No country as large as the U.S. has enacted a program to legalize recreational drugs, but we do know what happens when such a blanket policy takes over from punitive drug laws. At the turn of the century, with an opioid crisis peaking, lawmakers in Portugal decided to think radically by decriminalizing the possession of all substances, including so-called “hard” drugs like heroin and crack cocaine. Though manufacturers and sellers could still get prison time under the 2001 law, anyone caught with a small amount was diverted to locally-run commissions consisting of a doctor, lawyer and social worker, who could offer treatment and services for those displaying signs of abuse and long-term addiction.
Critics of the change feared that the loosening of laws would lead to new, younger users getting hooked and worsening the overdose crisis, but those fears never came to fruition. Instead, drug deaths plummeted. The number of people seeking rehab for serious addiction dropped. And a 2016 review found that the total number of people using any illicit drug had dropped by more than half.
We’ve seen similar success stories out of countries like Switzerland, Germany and Canada, with tactics like prescription heroin and mental health intervention helping sharply reduce the number of lives lost to drug use. The findings led the Global Commission on Drugs, a multi-national coalition of experts, to conclude that punishing drug users is harming basically every nation-state that does it — a startling rebuke of a century of anti-drug policies around the world.
Legalizing drugs isn’t as hard of a sell as many think in present-day America, with a small majority of citizens supporting the mass decriminalization of illicit substances, per polling by the CATO Institute and other think tanks. And no wonder: The War on Drugs isn’t just unethical, racist and a driver of police violence, but it flat-out fails to reduce our craving for, and access to, illicit drugs. Meanwhile, it’s led to addicts getting absurdly inflated prison sentences under the guise of tactics like “three-strikes” laws, and a swell of wrongful convictions thanks to aggressive prosecution tactics made possible with broad drug laws.
(In a characteristic example, a Washington Post story notes how 149 people in Harris County, Texas were given drug charges, pled guilty under pressure and were later exonerated when a lab found their substances weren’t actually illegal; prosecutors hadn’t thought to wait for the results.)
In the status quo, we let drug users languish and die, both behind bars and after their release, when they’re vulnerable and without support. We’ve made half-assed reforms to divert people away from jails and into treatment, but failed because of a lack of funding, a lack of innovative programs and a piecemeal approach that leaves glaring loopholes in the law. Instead, it’s time to radically change the framework by which we deal with drug use, and the actual violent crime it generates. And as we reckon with America’s history of failed policing, legalizing drugs would help reset the harm the entire justice system has wrought.
There are surely risks to such fundamental changes; my personal nightmare is a world in which widely decriminalizing drugs means commercialized drugs, with marketing and ads for legal blow popping up on my Instagram feed. But the success in Europe is hard to ignore, and the climate is ripe for major change, given the pandemic has sparked existential debates about freedom and justice. I’d like to think the mainstream shift around marijuana in recent years has shown our collective capacity to have more empathy and sense about copping a high.
More so than ever, 2020 has sharpened our appetite for urgent change. Making drugs legal would do a lot to change the future of incarceration — while acknowledging how badly the government screwed us in the past.
Eddie Kim
Eddie Kim is a features writer based in Los Angeles, covering social and cultural issues for MEL.
