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Alcohol and Drug Problems: Law Enforcement and Legal Policy

Abstract and Keywords

Historically, U.S. policy has been characterized by long-standing ambivalence evident in the changing emphasis placed on prohibition as the aim of drug policy, and in debate about the relative merits of various approaches to drug control. Often characterized as supply reduction versus demand reduction efforts, significant changes have occurred over time in these efforts, and in the emphasis placed on them. In the last quarter of the twentieth century, U.S. drug policy adopted a more prohibitionist stance, with increased reliance on a variety of law enforcement, and even military actions, to control the supply and use of drugs, even in the face of evidence for the effectiveness of prevention and treatment, and high costs associated with the burgeoning incarceration rates.

Keywords: drug policy, drug war, substance abuse, prohibition, demand reduction, supply reduction, parity, substance abuse prevention, substance abuse treatment

Historically, U.S. policy has been characterized by long-standing ambivalence toward the use of psychoactive substances including alcohol, tobacco and other drugs (ATOD), and has been marked by ongoing controversy about the best approaches to control the availability and use of these substances. Ambivalence is evident in the changing emphasis placed on prohibition versus regulation, and moderation, or mitigation of harm, versus elimination of use as the aim of U.S. drug policy. Debate about the control of both licit and illicit substances often centers on the relative merits of supply versus demand reduction approaches to control, pitting interdiction and law enforcement strategies against prevention and treatment. In recent years, although evidence has increased for the effectiveness of prevention and treatment, more emphasis has been placed on the use of interdiction and law enforcement to wage a “war on drugs.”

Perhaps the best example of the ambivalence in which substance use is held in the United States is the passage and repeal of the National Prohibition Act, also known as the Volstead Act. The 18th amendment to the U.S. Constitution made the manufacture, transportation, import, export, and sale of alcohol illegal. A firestorm of controversy ensued, in particular as a thriving underground market in alcohol trafficking developed, along with escalation in related, often violent, criminal activity. With the repeal of the Volstead Act in 1933, alcohol regained its legal status. The legal status of substances matters because of implications for the definition of problems associated with use or abuse, for responses to violations of restrictions on use, as well as broader social and fiscal consequences.

In the last quarter of the twentieth century, the United States became caught up in a new wave of anti-drug sentiment. President Richard M. Nixon introduced the drug war metaphor with the passage of the Comprehensive Drug Abuse Prevention and Control Act (1970). In 1973, the Drug Enforcement Administration (DEA) was created to enforce drug control provisions by generally elaborating upon an approach that originated nearly a century ago with the Harrison Narcotics Act (1914). The Harrison Act set forth a legal structure that places tight controls on the medical and scientific uses of opiates, cocaine, and other controlled drugs, prohibiting production and distribution of these drugs for non-medical and nonscientific uses. Prohibitions regarding drug use have since been met with increasingly severe criminal sanctions under both federal and state laws. These trends have exacerbated difficulties associated with reducing the illicit use of controlled substances without interfering with their legitimate medical use, a conflict that became evident within a few years following the enactment of the Harrison Narcotics Act (IOM, 1996). Legal restrictions have, for example, limited administration of effective doses in methadone programs (IOM, 1995). Thus, much of the debate about U.S. drug policy reflects disagreement about whether ATOD problems ought to be the purview of the health care or criminal justice system.

Debate about supply reduction versus demand reduction efforts has increasingly been challenged by claims that the dichotomy represents an oversimplification of approaches to drug control. Nevertheless, the supply reduction-demand reduction dichotomy has been the mainstay of reporting on federal spending for drug control since 1973, and Congress originally statutorily required the use of this framework for budgetary reporting with the passage of the 1988 Anti-Drug Abuse Act. This Act created the Office of National Drug Control Policy (ONDCP), headed by a “drug czar” who occupies a position in the Executive Office of the President. The ONDCP is charged with developing a coherent and coordinated National Drug Control Strategy. More recently, this has included expectations for clearly articulated goals and objectives to be achieved in specified amounts of time. By some counts, more than 50 federal agencies are involved in some way in drug control efforts, cutting across both functional lines and governmental jurisdictions. Although coordination is daunting, it is vital to reducing duplication of effort and maximizing benefits from the work of various agencies.

The most recent ONDCP report on the National Drug Control Strategy (2007) has attempted to move away from the supply/demand duality and uses three foci to characterize its strategies: Prevention, Treatment, and Enforcement. Although budget figures vary, estimates are that the U.S. government spends around twenty billion dollars annually on drug control, and states and municipalities spend many times more than that amount. Estimating federal expenditures and tracking them over time has become more difficult; however, because in 2003 the ONDCP changed the way federal spending for drug control was reported. According to Peter Reuter (2005), exclusion of large expenditures by the Bureau of Prisons and prosecutorial expenditures has resulted in significant understatement of current expenditures for interdiction and enforcement. Thus, estimates that approximately 70% of federal drug control dollars go to interdiction and enforcement may not accurately reflect the actual distribution of current federal spending.

Trends in Supply Reduction Efforts

Policies related to supply reduction have changed over time in relation to historical events and shifts in the role of the U.S. government at home and abroad. Supply reduction efforts have evolved around three controversial themes: expanded use of police powers by governmental jurisdictions at all levels; globalization and militarization of U.S. drug control strategies; and a renewed focus on interdiction at borders and ports of entry into the United States following the major attack on the United States on 9/11/2001.

Expanded use of legal authority. U.S. drug policy has come to rely more heavily on law enforcement to control drug supply through stepped up enforcement of anti-money laundering and seizure and forfeiture laws. Billions of dollars have been confiscated by ratcheting up efforts to make drug trafficking less lucrative through closer scrutiny of money transfers, and by seizing property used in or garnered from drug trafficking. Seizure and forfeiture laws are particularly controversial because the standard of evidence for civil confiscation of property is lower than for criminal proceedings, and most individuals who have property seized are never charged with a crime.

The most striking consequence of law enforcement's increased role in the war on drugs has been the rapid rise of incarceration rates in the United States. More emphasis has been placed on disrupting local markets through the use of “sweeps” by law enforcement officers across neighborhoods to arrest individuals engaged in street level drug transactions. The rhetoric of “zero tolerance” signaled that users, as well as sellers, were to be targeted by these measures, crossing the traditional supply-demand divide by introducing greater use of law enforcement as a deterrence strategy aimed at preventing and reducing use. Mandatory sentencing, longer sentences, and “three strikes” provisions produced a surge in the prison population which quadrupled between 1980 and 2000. The prison population in the U.S. continues to grow, although at a slower rate.

Increased emphasis on a law enforcement approach to drug control has blurred the lines between care and control. Although initially conceived of as “diversion” programs, court-ordered treatment is increasingly used as an adjunct rather than and alternative to incarceration, blending criminal justice and treatment approaches (Weisner, 1986; Burke, 1992; DiNitto, 2002). Incarceration of large numbers of drug involved offenders has resulted in the provision of more drug treatment in prisons and jails, although concern remains about the existence of a “treatment gap” for offenders who need treatment but do not receive it (Mears, Moore, Travis, & Winterfield, 2003; Belenko & Peugh, 2005).

An increasingly punitive approach to drug control policy in the U.S., focused on adjudicating or otherwise sanctioning drugs users, has had far-reaching repercussions for ex-offenders and persons with alcohol and other drug (AOD) problems, influencing policy in a number of seemingly unrelated domains (DiNitto, 2000; 2002). Although past AOD problems are acknowledged as a disability by the 1990 Americans with Disabilities Act (ADA), persons with active AOD use disorders are not provided the same employment protections afforded to persons with other disabilities by the ADA. Nor are they eligible for assistance from Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) since AOD disorders are not recognized as qualifying disabilities for participation in these programs. Moreover, welfare reform provisions of the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) made it possible to deny Food Stamps or income supports through Temporary Assistance to Needy Families (TANF) to adults convicted of using alcohol and other drugs. PRWORA also authorized testing of welfare recipients suspected of drug use and sanctioning those who test positive. Similarly punitive sanctions face individuals in public housing who use drugs, or who are convicted of a drug offense as adults and later seek federal assistance to pursue higher education (see DiNitto, 2002 for a more detailed discussion).

Militarization and globalization of U.S. supply reduction policy. Supply reduction efforts have been marked by increasing use of the U.S. military, along with efforts to involve new partners around the world in drug control. In 1981, Congress passed and President Reagan signed an amendment to the Posse Comitatus Act of 1876, which had prohibited military involvement in law enforcement. This amendment allowed state and local law enforcement officials to use military assistance for training, intelligence gathering, and investigation of drug law violations. The amendment also provided for the use of military equipment by civilian agencies to enforce drug laws (Doyle, 2000). Moreover, the Anti Drug Abuse Act of 1986 authorized appropriations for the Department of Defense to support drug interdiction activities, as well as increasing resources for the Coast Guard and the Customs Service.

Foreign policy concerns, globally and in particular regions of the world, have led to increased efforts by the United States to target production of drugs at their source. These efforts include crop eradication and substitution programs, as well as efforts to train and support source countries in the use of military and police actions to reduce drug trafficking. In the wake of 9/11, supply reduction efforts have been reinvigorated by concerns that proceeds from the drug trade are used to finance terrorist organizations and their activities. The United Nations Office of Drugs and Crime Control (UNODC) estimated the world market for illicit drugs at more than 322 billion dollars in 2003 (UNODC, 2007), a sum that dwarfs the economies of many nations, especially those in the so-called developing world. A number of global and regional partnerships have been forged to combat the use of “narco-dollars” and counter the “three-dimensional threat” of drugs, organized crime, and terrorism (cf. UNIS, 2005).

Renewed focus on border security and interdiction. Concerns about terrorism have also renewed interest in interdiction at borders with neighboring countries, and at other ports of entry into the United States. Along with stepped up inspection of vehicles and containers transporting people and cargo into the United States, pilot programs are under way, deploying new equipment to scan the contents of containers transported across U.S. borders. The U.S. Customs Service, the Department of Defense (DOD), and the ONDCP, are partnering to further develop non-intrusive detection technology to aid in countering narcotics trafficking and intercepting other contraband such as weapons and explosives. Since 2001, fueled by Homeland Security concerns, expenditures for border security have doubled from $4.6 billion to $10.4 billion in 2006, and by 2008 the Bush administration expects to have doubled the number of border patrol agents (White House Press Release, 2006). In addition, a number of recent proposals have been made to counter illegal immigration, drug trafficking and terrorism through a combination of physical and “virtual” fences along U.S. borders with neighboring countries. The Secure Fence Act of 2006 includes provisions for the construction of 700 miles of new physical fencing along the U.S. border with Mexico. More recently, a $2.5 billion contract was awarded to Boeing to begin development of a “virtual” fence as part of the Secure Border Initiative Network (SBInet).

The centerpiece of demand reduction policies has been the development of a national infrastructure for prevention and treatment programs, funded, in large part, by federal Substance Abuse Prevention and Treatment (SAPT) block grants. Funding for research has also become an integral part of federal demand reduction efforts, aimed at monitoring the nature and extent of drug use by U.S. citizens, better understanding the causes and consequences of substance abuse, and effectively intervening to reduce or ameliorate substance abuse. The more recent focus on promoting greater use of evidence-based practices in drug prevention and treatment acknowledges the gains made in understanding how to prevent and treat drug problems. Ensuring that such treatment is available to all those who need it is a growing source of concern, contributing to calls for parity in insurance coverage.

Increasing emphasis on research into AOD use and related problems. Since the 1970s funding for research into ATOD problems has increased dramatically. Most of that funding has been provided by the National Institute on Drug Abuse (NIDA) and the National Institute on Alcohol Abuse and Alcoholism (NIAAA) situated, since 1992, within the National Institutes of Health (NIH). In 2006, however, NIH experienced the first year of real decline in funding in 36 years; NIDA and NIAAA funding was cut in FY 2006. The Substance Abuse Mental Health Services Administration (SAMHSA), and the Centers for Substance Abuse Treatment (CSAT) and Center for Substance Abuse Prevention (CSAP), formed in 1992 to promote the availability and monitor the quality of substance treatment and prevention practices, face dramatic funding cuts.

Research on ATOD problems has been important in shaping the current understanding of substance use and abuse, demonstrating that such problems can be prevented or ameliorated. The most recent national drug control strategy acknowledges that “once viewed as essentially a moral problem or character defect, drug use is now more accurately considered a complex behavioral problem with personal, social, and biological underpinnings” (ONDCP, 2007). Since 1997, research at the National Institutes has increasingly embraced the notion that addiction is a “brain disease” (NIDA, 2007). Proponents of such an approach assert that addiction is a complicated state, involving changes in the structure and chemistry of the brain. Changes in the brain are believed to be related to the behaviors commonly associated with addiction such as compulsive use in the face of serious and even tragic consequences. Critics of funding for so-called wet bench research on addiction assert that such studies are expensive and compete for funds needed to study other aspects of substance abuse prevention and treatment. These include studies tracking changing social and behavioral antecedents of drug use and its consequences, particularly in the context of an aging and more culturally diverse U.S. population. They also include research on services utilization and studies needed to improve access and effectiveness of prevention and treatment.

Promoting polices on effective approaches to prevention and treatment. Since the passage of the Government Performance and Results Act (GPRA, 1993) all federal agencies are responsible for demonstrating positive program results by adopting data-driven systems for decision making about resource allocation and monitoring performance. As the lead federal agency, SAMHSA, and its CSAT division, have subsequently begun working with the single-state agencies (SSA) responsible for allocation of federal Substance Abuse Prevention and Treatment (SAPT) block grant funds to comply with these expectations. Federal agencies have also been challenged to translate and disseminate research findings and promote the adoption of evidence-based practices. These efforts include specification of the key principles associated with effective prevention and treatment efforts; identification of promising, evidence-based and model (best practice) programs; and development of protocols for implementing effective programs, supported by a range of training and technical assistance mechanisms.

Pursuing parity policy in coverage for substance abuse treatment. Although many youth and adults use ATOD, the proportion of individuals who develop abuse or dependence disorders as indicated by responses to items using criteria set out in the Diagnostic and Statistical Manual (DSM IV), is generally low. (See Lala and Richard's Overview article.) The 2005 National Survey of Drug Use and Health (NSDUH) survey data indicate that 9.3% of survey respondents, age 12 and older, reported some kind of substance dependence or abuse problem in the past year, predominantly alcohol. These figures were not significantly different from those obtained from household surveys each year since 2002. These data indicate, however, that more than 22 million people in the United States have a substance abuse disorder in a given year, and lifetime prevalence rates are higher still. Another consistent finding is that only a tiny proportion of those who needed treatment actually received it, and more than half of those who received treatment did so by attending a self-help group.

A number of factors have worked against increasing the availability of and access to such services. Federal funding for substance abuse prevention and treatment (SAPT) block grants, that account for about 40% of public expenditures for treatment nationally, were cut in 2005 and 2006 and the current Federal administration proposes funding for FY 2008 at FY 2007 levels (NCCBH, 2007). Shifting resource allocation decisions and program accountability from the federal to the state and local levels has increased local control but has also brought with it increased costs for monitoring decision making and performance. Moreover, although treatment outcomes of alcoholism and drug addiction services compare favorably with those for other chronic recurring disorders, many insurers have not yet granted equal status to this health issue.

This inequity has given rise to a quest for achieving parity in coverage for treatment of substance abuse disorders. Equal coverage for drug and alcohol treatment requires health insurers to recognize addictions as a disease and provide coverage for treating alcohol and drug addiction that is equal to treatment coverage for other chronic, relapsing disorders such as diabetes and hypertension. Most people who use illicit drugs or who have problems with alcohol are employed. Many insurance policies require higher deductibles and co-payments, provide fewer visits, days of coverage, and lower annual or lifetime dollar limits for alcohol and drug dependence treatment than for other chronic health problems (Goplerud & Cimons, 2002).

A number of states have moved to mandate comprehensive parity for all citizens, or some lesser level of coverage that approaches parity. Analysis of the impacts of such policy decisions in 11 states reveals that equitable coverage increases the number of people who receive treatment, reducing long-term cost to the state and producing cost savings many times greater than the amount spent on treatment. In addition, in these states, more persons in need of treatment were treated in outpatient settings, reducing the length of more costly hospital stays. Evidence to date counters concerns by opponents to parity that no effective treatment exists for substance use disorders or that providing coverage for such disorders will increase costs for health care and insurance premiums.

Key Challenges and Controversies

The policy debate about how much to invest in controlling the availability of substances, versus preventing their use or ameliorating the negative consequences of use, will remain at the center of the drug policy debate. Too little is yet known about supply reduction efforts in terms of “their efficacy in reducing the availability of drugs in illicit markets; their impact on the wealth and power of ongoing criminal organizations; and their impact on foreign policy objectives” (Moore, 1990). In 1997, the U.S. Government Accounting Office asserted that “there are some promising initial research results in the area of demand reduction but that international supply reduction efforts have not reduced the availability of drugs” (Testimony, 05/01/97, GAO/T-GGD-97-97).

More recently, representatives of the UNODC asserted that “though there has been an epidemic of drug abuse over the last half century, its diffusion into the general population has been contained” (UNODC, 2004, p. 13). These assertions are widely disputed, however, given the continued difficulty in tracking and measuring production and distribution of illicit drugs (GAO, 2005). It is difficult to determine how the volume of drugs seized relates to underlying levels of drug production. Indications are that only a relatively small proportion of drugs destined for U.S. markets are likely to be interdicted. Pricing and purity are regarded by some as better indicators of supply, but many problems are associated with obtaining and interpreting such measures as well. Moreover, in 2006, the UNODC countered previous evidence for success in opium crop eradication by issuing an alert regarding record opium production in Afghanistan, the leading source worldwide for this drug (UNODC, 2007).

A closely related issue is the need to better understand the role that legal controls may play in reducing use, abuse, and dependence on illicit drugs while taking into account the full cost of such measures. Monitoring and tracking expenditures consistently, over time, is an important element of this debate, and more work is needed to develop and adopt an appropriate budget framework (Reuter, 2006). The application of legal tools to discourage consumption and limit availability has been a key element of public policy regarding the use of alcohol and tobacco, but within a regulatory framework rather than a prohibitionist one The most costly side effects of a prohibitionist drug policy are those associated with arrest, prosecution, and incarceration of persons who violate drug laws. Although prices vary significantly from one jurisdiction to another, on average, in 2005 it cost approximately $22,000 per year to incarcerate an individual. By contrast treatment for ATOD problems typically costs a fraction of that amount (Belenko, Patapis, & French, 2005). Moreover, recent research findings suggest that every dollar spent on treatment generates 7 dollars in benefits such as reduced health care costs (Ettner, et al., 2006). Increasing the availability and access to effective ATOD treatment may become more important in the face of burgeoning costs for maintaining a large, and still growing, offender population.

Achieving parity is another policy proposal that could provide greater access and reduce the costs of treatment. By shifting more of the burden to private insurance funds for those who are employed, more public dollars will be available for individuals who have no other recourse than to seek treatment in publicly funded settings. Mandating additional insurance coverage for substance abuse treatment is particularly challenging in the context of rapidly rising health care costs, and more general concerns about the provision of health services in the United States.

A recent report from researchers at the Rand Corporation advocates that efforts be made to “press for a more dispassionate debate” (Caulkins, Reuter, Iguchi, & Chiesa, 2005). Given the intense feelings about this topic, and the intersection with other volatile issues such as concerns about terrorism, homeland security, immigration, civil and human rights, it is difficult to imagine a less polemical debate. To the extent that the policy debate can become more focused on the effectiveness of various drug control efforts, perhaps the U.S. can reduce drug use, its consequences, and costs at the same time.

References

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                                          Further Reading

                                          Caulkins, J. P., Reuter, P., Iguchi, M. Y., & Chiesa, J. (2005). How goes the war on drugs? An assessment of U.S. drug policy and problems. Report prepared for the Ford Foundation by the Drug Policy Research Center. Santa Monica, CA: Rand Corporation.Find this resource:

                                            Mauer, M. (2003). Comparative international rates of incarceration: An examination of causes and trends. The Sentencing Project. Report presented to the U.S. Commission on Civil Rights. Washington, DC.Find this resource: