Ending the war on drugs: The debate shifts to decriminalization

Thirteen years after Hawaii legalized medical marijuana, the state is finally forging ahead with licensing marijuana dispensaries, issuing licenses to eight applicants on Friday. As it has in other states, that policy shift could usher in a new era of social norms.

Back in 1973, Oregon was the first state to decriminalize small amounts of cannibas for recreational use. Four decades later, Oregon voters said yes to legalizing marijuana, as Colorado and Washington had already done in 2012. Twenty states and Washington, D.C., have decriminalized marijuana possession.

It’s unclear whether Hawaii will go that route. But already, at least a few policymakers believe the notion of decriminalizing personal use of marijuana — as well as other illicit drugs — and focusing more on treatment, is worthy of study and serious discussion.

“At first glance it comes off as a pretty radical idea” — the idea of decriminalizing personal drug use, said state Rep. Jarrett Keohokalole (D-Kaneohe, Kahaluu, Waiahole), but “things become ripe for discussion based on circumstances.” In Hawaii, drug use often is an underlying factor that feeds the nation’s highest per-capita rate of homelessness, underscoring the need to move the discussion toward treatment rather than imprisonment, he said.

It was Keohokalole who introduced House Concurrent Resolution 127, adopted Thursday, which asks the Legislative Reference Bureau (LRB) to study decriminalizing drug possession for personal use in Hawaii. The final version of the resolution limited the study to marijuana and other harmful drugs — excluding dangerous drugs such as heroin and methamphetamine. The resolution asks for an LRB report before the start of the 2017 legislative session.

HCR 127 references a 2009 Cato Institute study that reviewed drug decriminalization policies in Portugal, where drug use has declined and resources have shifted to treatment rather than incarceration.

“None of the nightmare scenarios touted by … decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for ‘drug tourists’ — has occurred,” the Cato Institute study found. Further, “by freeing its citizens from the fear of prosecution and imprisonment for drug usage, Portugal has dramatically improved its ability to encourage drug addicts to avail themselves to treatment.”

Portugal decriminalized personal drug use in 2001 and there has been no serious effort to revert back to a criminalized system. Those who are cited for drug use or possession (with a maximum 10-day supply for personal use) face a noncriminal proceeding that assesses whether the individual should enter treatment, pay a fine or be subjected to community service or other restrictions. Imprisonment is no longer imposed.

In the U.S., FBI statistics show that in 2014, 83 percent of drug-related arrests nationwide were personal use/possession cases. Minorities are disproportionately represented among those arrests. In Hawaii, a 2014 Office of Hawaiian Affairs study found that Native Hawaiians made up the largest portion, or 32 percent, of those admitted to prison for drug offenses in 2009.

“You don’t treat (addiction) by locking people up; give them the option to be treated,” said Ken Lawson, who was a high-profile defense attorney in Cincinnati when he was indicted in federal court in Ohio on felony charges of conspiracy to obtain controlled substances, mainly prescription drugs.

Ironically, it was incarceration that saved Lawson. But Lawson, who now teaches criminal law at the University of Hawaii William S. Richardson School of Law and is co-director of the Hawaii Innocence Project, said that doesn’t mean decriminalization is not a worthwhile pursuit.

“No one should be criminalized initially for struggling with (addiction),” said Lawson, whose drug use began with a sports injury and eventually led to his disbarment in Ohio. “It’s something that is worth studying” and even implementing on a “trial basis,” especially if drug abuse is treated as a public health issue.

“If it is an illness, and it is, then why are we punishing people with a disease?” Lawson said.

Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, agreed that alternative approaches such as decriminalization do more to help people than putting them behind bars. The “skyrocketing number of people incarcerated and growing drug use” are strong indicators that the current system is not working.

The trend, from the White House down, Berg-quist said, is for drug problems to be treated as a health issue, with more resources being directed toward treatment. The Drug Policy Forum believes a multi-pronged approach is needed to address the escalating drug problems in Hawaii, and that includes decriminalization.

Hawaii has an established Drug Court where first- and even second-time offenders are granted deferrals and their convictions are erased if they enroll in court-ordered programs and complete treatment. Although that is a step in the right direction, it is misguided to place the burden solely on the courts, Bergquist said.

“To lay all our eggs in that one basket around this big state and to assume that will work for everyone, that’s really short-sighted … what you need are multiple venues and outlets,” Bergquist said.

The Coalition for a Drug-Free Hawaii, which often offers an opposing view to the Drug Policy Forum of Hawaii, agrees something must be done to lower drug-related incarceration rates.

“We need more of a comprehensive approach — not just decriminalizing (personal drug use), but public education,” said Alan Shinn, the coalition’s executive director.

Ultimately, the resolution to study decriminalization is flawed, Shinn said, noting the Portugal model is not a panacea, and that Portugal’s economy has suffered because of its decriminalization policy.

“One of the problems is paying for it; you have to give them treatment,” Shinn said. “I think they’re running into problems with their budget.”

While there is no harm in studying decriminalization, a broader approach and other models should be looked at — not just Portugal’s, Shinn said.

Keohokalole said he will be researching other models for decriminalization during the interim. But he believes that Portugal’s model is significant because it has been in place for 15 years. Drug usage rates there have gone down, and the rate of overdose and drug-related sexually transmitted diseases also has decreased.

Applying such a model in Hawaii would have huge implications on the state’s administrative and judicial systems.

Already, the Legislative Reference Bureau, in testimony on HCR 127, pointed out that Hawaii law does not define “possession for personal use.” Acting LRB Director Charlotte Carter-Yamauchi said in written testimony that, “while the threshold amounts in the Hawaii Revised Statutes for possession may, by inference, make that distinction for charging purposes, that distinction may not apply for public health policy purposes.”

The LRB also noted that Hawaii, as a state within the United States, faces the concurrent drug enforcement jurisdiction of not only state law, but federal law as well. The U.S. Department of Justice announced in 2013 that it would allow states to legally regulate the production, distribution and sale of marijuana, but it’s unclear how decriminalizing personal use of other illicit drugs would work under federal law.

The intent is to study a drug policy that might counter the ill effects of the war on drugs, supporters contend, not a measure that seeks to rubber-stamp drug use.

And the message to Hawaii’s youth doesn’t change: “We don’t stop saying drugs are bad,” Keohokalole said.