The “Local” Matters: A Brief History of the Tension Between Federal Drug Laws and State and Local Policy
Kevin A. Sabet, Ph.D.

“All politics is local.”
– Thomas P. (Tip) O’Neill

Abstract:

In the U.S., drug policy is traditionally viewed as a national issue, since federal laws apply to all state and local jurisdictions. The historical review of drug policy presented in this article, however, shows that there remains a constant tension between drug policymaking by federal and state/local actors. Accompanying this dynamic is an ever-changing emphasis on either use reduction policies (i.e. those focused on reducing drug prevalence) or harm reduction policies (i.e. those focused on reducing the potential harms of both drug use and drug policies). Analysts need to be sensitive to these twin dynamics (federal versus non-federal loci of drug policy control and use reduction versus harm reduction philosophies) which result in considerable drug policy variation throughout the United States. A more accurate scope of drug policy analysis would focus on the juridical relationship between national, state and local policies and practices. History shows that these are not new phenomena in drug control, even if they are often overlooked in present-day analyses.

Keywords: Drug Policy, Politics, Federal/Local, Prohibition, Harm Reduction.

Introduction
The traditional scope of drug policy analysis has been to focus mainly on national drug laws and practices. Comparative analysis of policy tends to be based on different policies employed in different countries (e.g. U.S. drug policy versus Holland’s drug policy). Such a broad view ignores both an important historical and current reality in drug control: Most drug policy decisions are made at the local level, based on the unique needs of different localities. As Reuter and Haaga (1990) [1] argue, “a focus on national strategy…is misplaced because it ignores the local nature of drug problems” (p. 36). In order to move toward more local analyses, this article summarizes the history of drug policy in the United States, arguing that cycles of federal and non-federal action have always characterized the nature of American drug policy just as cycles of acceptance (in the form of a harm reduction policy framework) and non-acceptance (in the form of a use reduction policy framework) have been a hallmark of American attitudes toward drugs. It is necessary to understand the potential for local variations on drug control in order to accurately analyze drug policies. As a first step toward that goal, this paper highlights the historical tension between federal and non-federal policies. The final section discusses some of the implications raised by this tension.

Drugs in the New Republic
Until Congress passed the 1906 Pure Food and Drug Act, drugs like heroin and cocaine were unregulated. At the turn of the century, heroin was a primary ingredient in some tonics and elixirs, and doctors began to notice their patients consuming unusually large amounts of cough syrup containing the drug (Durlacher, 2000) [2]. Americans first widely used cocaine in a few very popular drinks, including Vin Mariani, a combination of red wine and coca leaf extracts (March, 1997) [3]. Cocaine products were labeled as an antidote for the melancholy and a healthy stimulant for athletes. “Baseball players have found by practical experience that a steady course of coca taken both before and after any trial of strength or endurance will impart energy to every movement,” read one advertisement for coca-based wine (Madge, 2001, p. 63) [4].

Soon, a popular drink called Coca-Cola™ emerged with cocaine as a principal ingredient. By 1885, cocaine became available in 15 different forms, including powder. Parke, Davis & Company described cocaine as:

A drug which, through its stimulant properties, could take the place of food, make the coward brave, the silent eloquent, free the victims of alcohol and opium habits from their bondage, and, as an anesthetic, render the sufferer insensitive to pain. (Jonnes, 1999, p. 20) [5]

Powder cocaine was the United States Hay Fever Association’s “official remedy,” and scientific experts worldwide touted the drug as non-addictive and benign (Hammond, 1887) [6]. Indeed, by not at least trying cocaine, people were supposedly losing out on potential health benefits such as increased arterial action and increased mental ability. Cocaine could not keep this sanguine reputation for long, however. Reports of cocaine addiction and criminal acts fueled by the drug signaled a shift in public attitudes, and cocaine quickly lost its status as a healthy stimulant (Mattison, 1887) [7]. Drug policy historians often refer to this time as “America’s first drug epidemic,” since cocaine use became more widespread and in turn its harms more evident (e.g. Jonnes, 1999 [5]; Musto, 1971/1999) [8].

State and Local Intervention
The growing worry that cocaine and other drugs like heroin were dangerous manifested itself first in state and local regulation. Because the federal system offers states and localities considerable discretion on how to create and implement a wide array of social policies, state and local differences in drug policy were commonplace at the turn of the 20th century. For example, lawmakers in Pennsylvania reacted to a statewide rise in morphine use (the state was home for a few leading morphine manufacturers) by outlawing the drug in 1860. Illinois passed a law against cocaine in 1897; Ohio had done so a decade before. The Atlanta City Council passed an ordinance in 1901 allowing cocaine use only with a prescription. Other states like New York soon followed. Anti-morphine and heroin laws also came to various states: e.g., Texas (Musto, 1971/1999) [8].

Local drug control mechanisms, however, did not always restrict drug use. Many jurisdictions flirted with experimental treatment procedures like controlled drug distribution to addicts. Musto calls this time a period of state and local statute revision and treatment experimentation (Musto, 1971/1999) [8]. For example, lawmakers in New York State set up facilities for drug maintenance for addicts. A Jacksonville, Florida, doctor established free narcotic prescriptions in 1912 for drug addicts (a practice which would later prompt federal intervention). Tennessee lawmakers decided in 1913 to register drug addicts and allow them to legally obtain opiate prescriptions. At the same time, Massachusetts lawmakers prohibited drug use by prescription. No national attempt was made to regulate these drugs. Until 1914, many agreed that such far-reaching federal intervention would be deemed unconstitutional.

The Federal Government’s Involvement in Drug Control
Controlling drugs was a difficult task for local and state governments to shoulder on their own. Cocaine use, for one, was not receding in the early part of the 20th century, and the image of the cocaine addict – paranoid, obnoxious, and apt to commit crimes – in particular frightened many Americans and prompted growing concern about addiction (e.g. Mattison, 1887 [7]; Wright, 1909 [9]). Groups urged the federal government to take legislative action. A delegate from the American Medical Association sent to Washington in 1913 to discuss the possibility of a national anti-drug law expressed his frustration at the ineffectiveness and incongruence of different state and local policies:

There are few if any subjects regarding which legislation is in a more chaotic condition than the laws designed to minimize the drug-habit evil…In many of the states anti-narcotic laws are so comprehensive that practically every retail druggist would be subject to fine or imprisonment were an attempt made to enforce the legislation ostensibly in force, while in other states the laws are so burdened with exceptions and provisos as practically to nullify every effort to control the traffic in narcotic drugs. (Wilbert & Motter, 1912, p.14) [10]

Throughout his presidency, Taft expressed his disdain for cocaine and opium and urged Congress to pass federal anti-drug legislation (Keller & Lemberg, 2003) [11]. The President wrote a special message to Congress about the “pressing necessity” of anti-drug legislation twice in 1911 and again in 1912 (Special message of the President, 1911 [12]; President’s message on foreign policy, 1911 [13]; President’s annual Message, 1912) [14].

Because the Constitution essentially grants wide powers to the states, however, the Congress could not simply pass federal anti-drug legislation and force its implementation. But with pressure mounting, the government devised a law to regulate health professionals (e.g. pharmacists) by requiring them to register for tax stamps and keep strict record-keeping of the drugs they prescribed. This was codified in the Harrison Act of 1914, the first significant piece of anti-drug legislation on the national level. Still, claiming an emergency exemption for the indigent or incurable, local drug maintenance clinics flourished in the late 1910s and early 1920s. In 1919, however, the Supreme Court decided two crucial cases that left the federal government with expansive powers to control drugs under the Harrison Act by confirming the constitutionality of the Act’s tax on physicians and the way in which drugs were dispensed “in the course of…professional practice only” and via “prescriptions” (U.S. v. Doremus, 1919) [15] and (Webb et al. v. U.S., 1919) [16]. The Supreme Court, in these two close decisions, strengthened the Harrison Act’s enforcement power by mandating that even those registered or the best organized physicians could not simply maintain addicts on their drug of choice. The Harrison Act, then, was not only legitimized, it was toughened, and a broad national anti-drug policy based firmly in the goals of reducing drug use remained in place.

Alcohol Prohibition
In analyzing the impact of federal drug prohibition, some policy analysts and commentators explore alcohol Prohibition as a main point of comparison (e.g. MacCoun & Reuter, 2001) [17]. The period of Prohibition is often referred to as the lifespan of the 18th Amendment, which was enacted in 1920 and then repealed in 1934. Several states and localities, however, banned alcohol before this amendment (Merz, 1930) [18]. By 1919, 26 of 48 states had already established some form of Prohibition – representing the power of states and localities in determining their own drug laws.

Prohibition was (and still is) actually a misnomer, however, because though selling alcohol was banned, consuming drinks was still legal. In this sense, alcohol was never completely prohibited or criminalized. To illustrate the influence of localities on drug laws, though, it is useful to note that the repeal of the Prohibition amendment in 1934 did not mean that localities lost their ability to ban alcohol. In fact, Barrow, Alaska, weary of the negative social consequences of alcohol use, voted to fully ban alcohol as late as 1994 (Kleber, Califano, & Demers, 2005) [19]. The residents of this northernmost city in the United States reported some positive consequences of the new policy. One year later, however, residents voted to repeal the ban. Many other counties in America still prohibit alcohol sale today (or at least certain types of alcohol) absent a national amendment in place (e.g. counties in Texas, Louisiana, North Carolina and Mississippi). The discussion of Prohibition is useful here since it highlights the great variation and latitude given to states and localities regarding drug policy.

The Narcotic Division – the First Drug-Law Enforcers
The federal government used its new Harrison Act powers – which were affirmed by the 1919 Supreme Court decisions (and an amendment in Congress) – to arrest several physicians and pharmacists who were supplying addicts with drugs throughout the country. A special narcotics police force of about 170 agents was set up under the Bureau of Internal Revenue to enforce the new federal drug law. The Narcotic Division successfully targeted the various drug maintenance clinics that had emerged in places like metropolitan New York City, Hartford, upstate New York, New Orleans, Atlanta, Los Angeles, Cleveland, Memphis, and Houston – about 80 clinics in total (Musto, 1971/1999) [8]. The Narcotic Division soon became the Federal Bureau of Narcotics and was transferred to the Treasury Department. Its commissioner, Harry J. Anslinger, enforced drug-laws strictly (Normand et al., 1995 [20]; Jonnes, 1999 [5]; Musto, 1971/1999) [8]. Steadily, anti-drug laws on the federal level increased in severity. A mandatory minimum two-year sentence for first time drug possession was passed in 1951. Though it was never applied, severity reached an apex in 1956 when juries could order death for those convicted of selling heroin to minors.

Marijuana and Federal Enforcement
During the federal government’s early involvement with drug policy, it had not dealt with marijuana. The Federal Bureau of Narcotics was already burdened with enforcing cocaine and heroin laws, and Commissioner Anslinger did not see marijuana as a major threat (Musto, 1971/1999) [8]. There were also questions about how effective an anti-marijuana law could be, and if it would hold up to standards of constitutionality. Still, pressure was mounting from political leaders and citizens alike, including newspaper owner Randolph Hearst, to do something about the drug, especially since its popularity among immigrants and the jazz community left the establishment uneasy (Himmelstein, 1983 [21]; Morgan, 1981) [22]. In 1936 a newspaper editor from Colorado’s Daily Courier wrote to Anslinger, “Is there any assistance your Bureau can give us in handling this drug (marijuana)? Can you enlarge your department to deal with marijuana? Can you…help us?” (Musto, 1971/1999, p. 223) [8]. At the same time, films like Reefer Madness (1936) depicted marijuana-crazed teens as suffering from paranoia and uncontrollable violent tendencies (Hirliman & Gasnier, 1936; Himmelstein, 1983).

Commissioner Anslinger conferred with some experts about the marijuana issue in 1936 and decided that something had to be done about the drug, at least to quell growing political concern about the appearance of federal inaction. The Marijuana Tax Act was passed in 1937 and essentially prohibited the sale, manufacture and use of marijuana. Enforcement powers were given to Anslinger and his agents at the Bureau of Narcotics.

The Rise of the “Medical Model”: Harm Reduction is Born
As arrest rates for using and selling marijuana and other drugs rose, use seemed to be on the decline in the 1930s and 1940s compared to rates from the late 1800s (Report of the Mayor’s Committee on Drug Addiction, 1930 [24]; Jonnes, 1999) [5]. However, during the 1960s, surveys indicated an upsurge in drug use and drug glamorization in the media (Goode, 1993 [25]; Kleber, Califano, & Demers, 2005 [19]; SAMHSA, annual [29]; Johnston, O’Malley, & Bachman, 1994) [26]. Commissioner Anslinger retired in 1962, and growing support for what would be called the “medical model” – the first real emergence of harm reduction – emerged in the ranks of the U.S. government. Increasing resources were to be directed to research into mental health, and psychiatrists and government officials alike began losing faith in the strict drug law regime which flourished in the 1940s and 1950s. Many began to look again at the “medical model” of controlling drug use, characterized by treatment, maintenance, and in turn less emphasis on law enforcement. The Harrison Act rendered heroin prescription out of the question, but a new method of maintaining addicts – relying on the heroin substitute methadone – grew in popularity. Methadone’s aim to stabilize the lifestyle of the addict increased its political attractiveness with groups like the American Medical Association and the American Bar Association. Anslinger-type policies seemed to be on the decline, and methadone became well established in narcotic treatment centers nationwide. Drug substitution, a policy administered in the infamous Jacksonville clinic as described earlier, had returned to cities and states. These experiments greatly pre-dated modern-day harm reduction policies such as needle-exchange programs in the Pacific Northwest (which emerged in the late 1980s) or heroin maintenance clinics in Europe (which emerged in the mid 1990s). In the 1960s local clinics, the Bureau of Narcotics did not pursue these clinics with the same ferocity as they had soon after the passage of the Harrison Act under Anslinger (Musto, 1971/1999) [8]. This sentence is a little confusing to me – would the meaning be clearer if you removed the phrase “local clinics” at the beginning of the sentence?

The Controlled Substances Act (CSA)
Timothy Leary’s famous “turn on, tune in, and drop out” phrase became a clarion call for individuality and drug toleration in youth culture (Leary, 1968, p. 223) [27]. Drug use escalated in the 1960s and 1970s with the number of new cocaine users, for example, rising five-fold from 1965 to 1970 (SAMHSA, annual) [29]. From 1965 to 1967, only 0.1 percent of people between age 12-and-17 had ever used cocaine, but rates rose throughout the 1970s and 1980s, reaching 2.2 percent in 1987 (National Institute on Drug Abuse, 2004) [28]. Marijuana use also peaked in the late 1970s (SAMHSA, annual [29]; Johnston, O’Malley, & Bachman, 1994) [26]. Democratic administrations in the 1960s began to deal with other domestic problems they found more pressing, like racial tension, gender inequality and poverty.

Republican President Nixon was elected in 1968 at a time when drugs divided the younger and older generations. Concerned about an increase in drug use, the Nixon Administration was responsible for a revision of the Harrison Act. This new legislation, passed in 1970, was known as the Controlled Substances Act (CSA) and classified drugs according to their dangerousness, addictive potential and medical utility. Because only the U.S. Justice Department can reschedule drugs, this system of classification gave the federal government even more powers over controlling drug use. This classification system would again bear rise to policies based in use reduction, though states soon followed their own drug policy path which – once again – de-emphasized enforcement and the federal priorities of reducing drug use.

Back to the States: Marijuana Decriminalization Reaches its High Point
In 1970 strict federal anti-drug laws were re-introduced in the form of the Controlled Substances Act. The drug-using behavior of many Americans, especially with respect to marijuana, however, continued apace. In 1967 the number of new marijuana initiates was 500,000; between 1974 and 1979, however, that number hovered around 3.5 million for each year (SAMHSA, 1996 [29]; Johnston, O’Malley, Bachman, 1994) [26]. Lifetime marijuana use had jumped from 1 million people in 1965 to 24 million seven years later (National Commission on Marijuana and Drug Abuse, 1972) [30]. To reflect the growing acceptance of marijuana use, groups began mobilizing to legalize or decriminalize the drug.

Capitalizing on the country’s tolerance toward marijuana, marijuana-supporters organized and founded NORML, the National Organization for the Reform of Marijuana Laws. Between 1972 and 1978, NORML was on the front line in helping to decriminalize marijuana in eleven states. As states decriminalized marijuana, an industry emerged to assist people in their drug-taking. This industry manufactured drug paraphernalia – toys and gadgets designed to enhance drug use. So-called “head shops” also sold promotional materials and “starter kits” targeted to young, aspiring drug users (Rusche, 1995) [31]. By 1977, some 30,000 drug paraphernalia stores were conducting business across the nation.

The legalization movement got a major push on the national level in 1977 when President Carter’s special assistant for health issues, Dr. Peter Bourne, testified in front of a House of Representatives committee in favor of decriminalizing marijuana. He also advocated for cocaine to be given decriminalization status. In 1974 he wrote that:

Cocaine…is probably the most benign of illicit drugs currently in widespread use. At least as strong a case could be made for legalizing it as for legalizing marijuana. Short acting – about 15 minutes – not physically addicting and acutely pleasurable, cocaine has found increasing favor at all socioeconomic levels in the last year. (Bourne, 1974, p. 5) [32]

Though Bourne resigned in 1978 after being accused of allegedly using cocaine himself (and writing an illegal drug prescription), the marijuana decriminalization movement reached its high-point in 1977 when Carter (1977) [33] said the following in a message to Congress:

Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself…Nowhere is this more clear than in the laws against possession of marijuana in private for personal use.

President Carter’s words did not translate into much further action, however, and no state has decriminalized marijuana since 1978. That said, most of the original decriminalization states have kept their lenient marijuana laws in place as of 2007. Though there is a comprehensive federal anti-drug law in the form of the CSA, states continue to set their own penalties and enforce laws according to local practices and culture. For example, the cities of Berkeley and San Francisco treat marijuana as their “lowest law enforcement priority” while New York City continues a campaign started in the mid-1990s to crack down on small amounts of marijuana possession and dealing (Berkeley Municipal Code [34]; Kane, 2002 [35]; Golub et al., 2003) [36]. A hybrid of drug policies – varying widely in different localities – began to take shape.

The Reagan-Bush Era and the Re-Federalization of Drug Policy
By 1979, drug use was at historically high rates: 70% of young adults (18-25) had tried an illicit drug in their lifetime, one in nine high school seniors used marijuana daily and the number of cocaine users quadrupled from the level some five years prior (SAMHSA, annual [29]; Johnston, O’Malley, & Bachman, 1994) [26].

A movement against drugs led by some concerted parents emerged in the late 1970s in reaction to the pressure from NORML and others to decriminalize drugs. Growing numbers of parents organized nationwide on local, state, and national levels (Rusche, 1995) [31]. Reacting to personal experiences with their own children and drugs, the parent movement helped to convince policy makers to bring policy back to the federal government and reverse the trend toward state decriminalization (Baum, 1996 [37]; Manatt, 1979 [38]; DuPont, 1980 [39]; U.S. Department of Education, 1988 [40]; White House Conference for a Drug Free America, 1988) [41].

In part encouraged by parents, President Ronald Reagan called drugs “America’s number one problem” and vowed to bring back the focus of drug policy to the federal government (Newsweek, 1986) [42]. The U.S. government seemed particularly alarmed at the growing problem of crack-cocaine – the smokable, faster-acting version of powder cocaine.

The media covered the issue of crack extensively, reporting of “almost instant addiction.” Crack was on the cover of news magazines, dominated television and newspaper coverage, and was labeled “America's drug of choice,” by NBC. The New York Times reported that crack was spreading to the suburbs. In 1990, William Bennett, America’s first official “drug czar,” said it might soon invade every home in America. The harmfulness of crack was compared to the bubonic plague and called “the most addictive drug known to man” in Newsweek magazine (Bennett, DiIulio, & Walters, 1996) [44]. As if this enormous amount of media coverage was not enough to gain the attention of lawmakers, the death of two highly respected athletes as a result of cocaine use added more urgency to government action on drug policy (Martz, 1986 [43]; Bennett, DiIulio, & Walters, 1996) [44].

First Lady Nancy Reagan became a cultural icon for the “war on drugs” and added strength to anti-drug crusaders by exclaiming that “every drug user is an accomplice to murder.” Her “just say no” campaign remains one of the most remembered government slogans in American history (Goode and Ben-Yehuda, 1994) [45]. Polls showed that in the mid 1980s Americans rated drugs as the most important policy dilemma in the country (Goode, 1993) [25].

President Reagan began a series of speeches in mid-late 1986 calling for a revitalization of federal anti-drug efforts. This culminated in the Anti-Drug Abuse Act of 1986 which enacted tough mandatory minimum sentencing for drug users and increased federal dollars for supply-reduction efforts. In 1988 a revision of this Act created the Office of National Drug Control Policy (ONDCP) whose director – known as the “drug czar” – would oversee all anti-drug budgets and provide a coordinated national strategy to counter drugs. Congress enacted the Mail Order Drug Paraphernalia Control Act in 1986 as part of the Anti-Drug Abuse Act. Unsuccessful judicial challenges to the federal paraphernalia laws were brought by NORML.

Though the government seemed to be succeeding in re-federalizing drug policy again with the new legislation, some cities and states decided to take their own course of action. In June of 1986, New York City mayor Ed Koch urged the death penalty for any drug dealer convicted of possessing at least a kilo of cocaine or heroin. Two months later, New York Governor Mario Cuomo called for a life sentence for anyone convicted of selling three vials of crack – roughly $50 worth of the drug. On the west coast, the state of California continued to leniently apply marijuana laws, the use of which was (and still is today) essentially decriminalized (Males, 2001) [46]. Cities like San Francisco and Baltimore went further and extended the “medical model,” especially in regards to heroin users (with the introduction of needle exchange programs, for example), in the mid 1980s and early 1990s (Shenk, 1999) [47].

President George H.W. Bush also focused intensely on the federal “war on drugs.” Bush continued to talk about the danger of drugs in major speeches. Along with William J. Bennett, who repeatedly told the media that inaction on crack would lead to the drug “invading every home in America,” he also released the nation’s first National Drug Control Strategy, a concise document highlighting ways to counter both the supply and demand of drugs (ONDCP, 1989) [48].

Moving Drug Policy Back to the States
In 1992, Americans ushered in a popular president, Bill Clinton, who preferred a softer tone on drug policy in contrast to the hard-line approach taken by the Reagan and Bush administrations in the 1980s [49]. The immense drug control efforts of that decade seemed to wane in the early 1990s as concerns shifted to a staggering economy and international terror threats. President Clinton reduced the staff of the Office of National Drug Control Policy by roughly 85 percent and appointed a neutral drug-czar, police chief Lee Brown (Bennett, DiIulio, & Walters, 1996) [44]. Of 1,742 presidential statements and other utterances in 1994, Clinton mentioned illegal drugs only 11 times – drawing criticism that he was unwilling to take drug policy seriously on the federal level (House Committee on Government Reform and Oversight, 1996) [50]. Even his closest Democratic friends were angry: “I've been in Congress for over two decades. I have never, never, never seen a president who cares less [about drugs],” remarked Democratic Representative Charles Rangel on national television news in 1996 (Bennett, DiIulio, & Walters, 1996) [44]

During the 1996 presidential campaign, President Clinton answered these critics by reviving the Office of National Drug Control Policy and appointing an outspoken Gulf War general, Barry McCaffrey, as drug-czar. McCaffrey was given cabinet-level status and a staff of nearly 200. His leadership style contrasted dramatically with his quiet predecessor, and his efforts at ONDCP were lauded by many anti-drug hawks, regardless of political affiliation (Rusche, personal communication, 2004). McCaffrey tried to re-nationalize drug policy by releasing a lengthy National Drug Control Strategy and appearing numerous times in the national media. A simple search on Lexis-Nexis news-search conducted in 2005 showed that in his first year in office, McCaffrey has mentions in 104 news articles, versus 32 for his predecessor, Lee Brown (Lexis-nexis search, 2005) [51].

McCaffrey’s tenure tested the limitations of the viability of a truly uniform national drug policy. In 1996, efforts in two states began a wave of state and local drug law innovation that brought the tide of drug policy decision-making away from the federal government once again. Three wealthy financiers (George Soros, Peter Lewis and John Sperling) funded two statewide voter referenda in California and Arizona aimed at allowing marijuana (and in Arizona’s case, all drugs) to be used for medical purposes. Although the “supremacy” clause of the U.S. Constitution renders federal law superior to state and local laws, these referenda would in essence override Congress’ provisions in the Controlled Substances Act which banned marijuana for all uses because of simple non-adherence to federal laws by state authorities and marijuana activists.

The initiatives drew fierce opposition from the federal government. When voters approved both referenda in November of 1996, McCaffrey, joined by Attorney General Janet Reno and Health Secretary Donna Shalala, announced several initiatives targeting any doctor recommending marijuana for any purpose. McCaffrey stated that “…nothing has changed. Federal law is unaffected by these propositions” (Federal News Service, 1996 [52]. Attorney General Janet Reno promised law enforcement intervention on dispensaries set up to distribute marijuana and against doctors who recommended the drug: “We will not turn a blind eye toward our responsibility to enforce federal law.” Health and Human Services Secretary Donna Shalala called marijuana use “dangerous” and reiterated the federal government stance against any legalization of marijuana. In the end, the U.S. government probably found it politically and logistically difficult to enforce federal drug laws onto the states (McCaffrey, Reno, and Shalala were also successfully sued in federal court for threatening the doctor-patient freedom of speech relationship; see Conant v. Walters, 2002) [53]. Instead, it appears the California and Arizona initiatives opened a floodgate for drug policy reform on the state and local level. As the Drug Policy Alliance, America’s leading drug reform organization states:

State legislatures are traditionally at the forefront of policy change, serving as “laboratories” for new ideas and solutions. Drug policy reform is no exception: on issues of drug sentencing, medical marijuana, overdose prevention, and expansion of effective drug treatment services, many states are working for better ways to reduce the harms associated both with drugs and with current drug policies. (Drug Policy Alliance, 2004) [54]

Indeed, the Drug Policy Alliance boasts of over 150 reforms – e.g. needle exchange programs, local seizure laws, hemp cultivation programs – that have occurred on the state and local level. It seems that the trend of drug policy making shifted in the 1990s back down to the states and cities.

Drug Policy in the 21st Century
The election of George W. Bush as U.S. President in 2000 brought with it some hope for supporters of state and local drug policy making. On the campaign trail, then-Governor Bush told the Dallas Morning News in regards to medical marijuana that “each state can choose that decision as they so choose” (Feeney, 1999) [55]. But just like McCaffrey’s threats of federal intervention on state reforms that did not play out in practice, President Bush’s lenient stance on state drug policy making during the campaign contrasted sharply with his actions in office.

Soon after his confirmation, Attorney General John Ashcroft led a campaign to re-establish the federal government’s grip on drug policy. “Operation Pipe Dreams” targeted drug paraphernalia shops, both on the internet and in cities, which, in his opinion, defied the parent-led federal anti-paraphernalia law passed more than a decade earlier (Bulwa, 2003) [56]. Ashcroft’s law enforcement efforts also targeted medical marijuana dispensaries in places like Santa Cruz and San Francisco. Bush’s drug-czar, John Walters, joined Ashcroft in his contempt for local drug policy reform by actively campaigning against ballot initiatives and legislative items in states that sought to ease drug laws (i.e. deviate from federal laws). Reformers complained that, “…vigorous federal opposition…ha(s) prevented states and localities from implementing their own initiatives and have created a general climate of fear and vulnerability among patients and providers” (Drug Policy Alliance, 2004) [54].

Even with the federal government’s actions, states and localities have become increasingly independent in their drug policy decision making and in practice. During the 2004 election cycle, multiple localities (e.g. Columbia, MO; Oakland, CA; Ann Arbor, MI) passed regulations to ease marijuana enforcement. Though they were unsuccessful, local and national interest groups sought full marijuana legalization in a number of states. Every national election cycle since 1996 has seen some local drug policy initiative put before voters in at least one city or state. And although a landmark decision by the U.S. Supreme Court in 2006, (Gonzales v. Raich, 2006) [57] reiterated Congress’s power to control drug manufacture, distribution and selling within states, local “cannabis clubs” continue to sell drugs in states like California – apparently unconcerned about federal law enforcement action.

Implications
Given the political design and the history of policy making in the United States, it seems that an accurate depiction of American drug policy would rely more on an evaluation of the dynamic between national, state, and local laws. Interestingly, however, the discussion of drug policy is almost always framed in terms of federal mandates and cross-country comparisons, rather than on local issues (e.g. Kleber, Califano, & Demers, 2005 [19]; MacCoun & Reuter, 2001) [17]. Below is a discussion of some consequences of this problem.

Variations in Policy
What happens when only federal statistics are used to characterize American drug policy? Unfortunately, only a partially accurate picture of policy is presented. Incarceration rates for drug possession, for example, are often a state or local issue, since that crime is almost exclusively targeted by local authorities, even when the drug involved is as serious as crack-cocaine. Additionally, there is probably a considerable difference between laws that exist in principle (de facto) and laws that are applied in practice (de jure).

The U.S. Sentencing Commission noted that of the 41 percent of federal defendants sentenced to charges related to drug possession and trafficking, only 34 people were sentenced for the possession of crack-cocaine, and usually in relation to a plea deal. The Commission notes that “although simple possession of five or more grams of crack cocaine requires a mandatory minimum sentence of five years imprisonment, federal prosecutions for simple possession of crack cocaine are rare (only 69 cases in total between 1998 and 2000)” (U.S. Sentencing Commission 2002) [58]. It would appear instead that those caught in possession of crack, and indeed any drug, are falling under state, not federal, jurisdiction (Sabet, 2002 [59] and 2005 [60]).

There are even wide variations among the states themselves. Cocaine provides another example. In Michigan, an offender with 50 grams of cocaine in his possession cannot receive more than 20 years in state prison. Not too far away, that same offender in Minnesota would have needed only three grams of cocaine to spur a possible 20-year sentence. Someone with 200 grams of cocaine in his possession in North Carolina cannot receive more than 7 years of prison, yet a person with that same amount in Louisiana receives between 20 and 60 years (Sabet, 2005) [60]. Table 1 below details the laws against first-time cocaine possession in all states and the federal government. Though cocaine is the example used here, virtually any drug law could be used as an example of wide variation among states.

Cities and the “Federal Analogy”
Since states can differ on policy delivery and outcomes, one must also consider the way local laws can dramatically differ within a state itself. California’s drug arrest and incarceration practices offer a good example of variations in local laws and practices within a state. Though largely unknown (MacCoun & Reuter 2001, p. 97) [17], marijuana is legally decriminalized in that state, and arrest and incarceration practices for all drugs are dramatically different depending on the county or city you are in.

In the city of San Francisco, where a marijuana decriminalization ordinance has been city law for more than a decade, policy observers have commentated that “marijuana possession arrests declined sharply from the 1980s to the 1990s and private pot smoking is effectively decriminalized” (Males, 2001) [46]. The arrest rate for drugs in San Francisco County, in fact, corroborates this assertion. In San Francisco, the arrest rate for simple drug possession fell 56% from 1995-1998 as compared with 1980-1984; in Alameda County, where the city of Berkeley lies, the arrest rate fell 23%. With the exception of Los Angeles County (which fell 33%) and San Diego County (which fell 9%), all of the other counties showed large increases in arrest patterns, Fresno county topping the list at +131%. Thus, the counties of San Francisco and Alameda – as compared with other counties like Fresno and Orange that have no such marijuana ordinances – arrested less serious drug offenders in the past twenty years. Incarceration figures vary dramatically, too – with the more drug-lax regions predictably imprisoning fewer people. Researchers from the Justice Policy Institute, specifically studying California laws, report that “…because California counties pursue drug policy enforcement in sharply different ways, wide variations exist on how laws are implemented at the county level” (Macallair et al., 1993, p. 12) [61].

Although the state creates the laws, often times it is local authorities – those directed by county and city governments – which make the majority of the decisions regarding arrest and prosecution of criminals. This relationship is referred to often as the “federal analogy” and opens the door to enforcement variations on the sub-state level since local officials in different counties and cities make important decisions that impact drug users. Federal districts matter too, it seems. Deciding whether or not to prosecute a drug criminal in state or federal court seems to matter a great deal depending on what federal district you reside in. The U.S. Sentencing Commission reported some “surprising variations” between federal districts and their choice whether or not to prosecute on the federal level which led them to conclude in 1995 that “…these data suggest that the uniform national policy Congress had hoped to engender does not play out in practice (because)…there are some surprising variations in prosecution practices” (U.S. Sentencing Commission, 2002; see this report for examples of this variation).

Cross-country Comparisons: Dangerous Territory?
Besides leading to simplistic analyses of American drug policy and national trends, an over-reliance on federal laws and statistics can amount to potentially misleading comparisons between the United States and other countries. These comparisons and their conclusions, written about extensively in drug policy literature (e.g. Bennett, DiIulio, & Walters, 1996 [44; MacCoun & Reuter, 2001 [17]; Goode, 1993 [25]; Gray, 1998 [62]; Kleber, Califano, & Demers, 2005 [19]), do not address the complexity of local policymaking in the United States. It would seem then that over-relying on federal statistics to characterize American drug policy and then comparing that analysis with statistics in other countries (themselves conceivably impacted by local policy variations) is potentially superficial and misleading. For example, Reinarman, Cohen, & Kaal (2004) [63] compared the experience of regular marijuana users in San Francisco, California and Amsterdam, Netherlands, “two similar cities with opposing cannabis policies.” The researchers find that their marijuana use levels in both cities were very similar, and thus they conclude that cannabis policies have minimal impact on use levels, despite “criminalization” in San Francisco and “de-facto legalization” in Amsterdam. But this conclusion is based on an erroneous assumption that San Francisco has a policy of “criminalization” in the first place. As discussed above, however, the city’s attitude toward marijuana could be regarded as remarkably similar to Amsterdam’s. Ignoring the wide variation in both the legislative responses at state level and the scope for varied operational responses at the city level within states, many analysts of U.S. drug policy over-emphasize federal guidelines as starting points for policy analysis (some exceptions include Haaga & Reuter, 1990 [1]; Kleiman & Smith, 1990 [64]; Murphy, 1997 [65]; Sabet, 2005 [60]; ImpacTeen Illicit Drug Team, 2002) [66].

Conclusions
American drug policy can be characterized by a persistent power struggle between federal and non-federal laws and practices. This dynamic has resulted in a hybrid of drug policies with wide variations – from strict enforcement of marijuana laws in places like New York City to virtually no enforcement of those laws in San Francisco, for example. From the early days of non-federal involvement to current trends characterized by a tenuous relationship between strong national policy and continued local drug policy-making, the history of drug policy in the United States cannot be properly characterized without special attention drawn to these local nuances. Though these efforts are sometimes met with skepticism (or, in practical terms, the use of federal law enforcement powers) from a federal government insistent on maintaining a strong grip on drug policy creation and implementation, local policies persist and thus have the potential to widely affect members of their respective communities. Regrettably, these local outcomes have been rarely measured thoroughly, leading to gross overgeneralizations of American drug policy (e.g. Reinarman, Cohen, and Kaal, 2004) [63]. There seems to be a great need to know what the relative effects of these many local policies are and to evaluate these effects within a common framework. Future research should address these concerns so that drug policies can be more comprehensively – and accurately – evaluated.

Biography
Kevin A. Sabet, Ph.D. is a MHRA/NDRI postdoctoral fellow and a policy consultant in private practice based in New York, NY. He recently graduated from the University of Oxford as a Marshall Scholar and a Warr-Goodman prize recipient. He regularly contributes to the media and worldwide governments on various issues of drug policy and served as the Senior Speechwriter at the Office of National Drug Control Policy under Gen. Barry McCaffrey (2000) and John Walters (2003-2004).

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