Neal Scott may die in prison. A 49-year-old Black man from New Orleans, Neal had cycled in and out of prison for drug possession over a number of years. He said he was never offered treatment for his drug dependence; instead, the criminal justice system gave him time behind bars and felony convictions—most recently, five years for possessing a small amount of cocaine and a crack pipe. When Neal was arrested in May 2015, he was homeless and could not walk without pain, struggling with a rare autoimmune disease that required routine hospitalizations. Because he could not afford his $7,500 bond, Neal remained in jail for months, where he did not receive proper medication and his health declined drastically—one day he even passed out in the courtroom. Neal eventually pled guilty because he would face a minimum of 20 years in prison if he took his drug possession case to trial and lost. He told us that he cried the day he pled, because he knew he might not survive his sentence.
Just short of her 30th birthday, Nicole Bishop spent three months in jail in Houston for heroin residue in an empty baggie and cocaine residue inside a plastic straw. Although the prosecutor could have charged misdemeanor paraphernalia, he sought felony drug possession charges instead. They would be her first felonies.
Nicole was separated from her three young children, including her breastfeeding newborn. When the baby visited Nicole in jail, she could not hear her mother’s voice or feel her touch because there was thick glass between them. Nicole finally accepted a deal from the prosecutor: she would do seven months in prison in exchange for a guilty plea for the 0.01 grams of heroin found in the baggie, and he would dismiss the straw charge. She would return to her children later that year, but as a “felon” and “drug offender.” As a result, Nicole said she would lose her student financial aid and have to give up pursuit of a degree in business administration. She would have trouble finding a job and would not be able to have her name on the lease for the home she shared with her husband. She would no longer qualify for the food stamps she had relied on to help feed her children. As she told us, she would end up punished for the rest of her life.
Every 25 seconds in the United States, someone is arrested for the simple act of possessing drugs for their personal use, just as Neal and Nicole were. Around the country, police make more arrests for drug possession than for any other crime. More than one of every nine arrests by state law enforcement is for drug possession, amounting to more than 1.25 million arrests each year. And despite officials’ claims that drug laws are meant to curb drug sales, four times as many people are arrested for possessing drugs as are arrested for selling them.
As a result of these arrests, on any given day at least 137,000 men and women are behind bars in the United States for drug possession, some 48,000 of them in state prisons and 89,000 in jails, most of the latter in pretrial detention. Each day, tens of thousands more are convicted, cycle through jails and prisons, and spend extended periods on probation and parole, often burdened with crippling debt from court-imposed fines and fees. Their criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more, and subject them to discrimination and stigma. The cost to them and to their families and communities, as well as to the taxpayer, is devastating. Those impacted are disproportionately communities of color and the poor.
This report lays bare the human costs of criminalizing personal drug use and possession in the US, focusing on four states: Texas, Louisiana, Florida, and New York. Drawing from over 365 interviews with people arrested and prosecuted for their drug use, attorneys, officials, activists, and family members, and extensive new analysis of national and state data, the report shows how criminalizing drug possession has caused dramatic and unnecessary harms in these states and around the country, both for individuals and for communities that are subject to discriminatory enforcement.
There are injustices and corresponding harms at every stage of the criminal process, harms that are all the more apparent when, as often happens, police, prosecutors, or judges respond to drug use as aggressively as the law allows. This report covers each stage of that process, beginning with searches, seizures, and the ways that drug possession arrests shape interactions with and perceptions of the police—including for the family members and friends of individuals who are arrested. We examine the aggressive tactics of many prosecutors, including charging people with felonies for tiny, sometimes even “trace” amounts of drugs, and detail how pretrial detention and long sentences combine to coerce the overwhelming majority of drug possession defendants to plead guilty, including, in some cases, individuals who later prove to be innocent.
The report also shows how probation and criminal justice debt often hang over people’s heads long after their conviction, sometimes making it impossible for them to move on or make ends meet. Finally, through many stories, we recount how harmful the long-term consequences of incarceration and a criminal record that follow a conviction for drug possession can be—separating parents from young children and excluding individuals and sometimes families from welfare assistance, public housing, voting, employment opportunities, and much more.
Families, friends, and neighbors understandably want government to take actions to prevent the potential harms of drug use and drug dependence. Yet the current model of criminalization does little to help people whose drug use has become problematic. Treatment for those who need and want it is often unavailable, and criminalization tends to drive people who use drugs underground, making it less likely that they will access care and more likely that they will engage in unsafe practices that make them vulnerable to disease and overdose.
While governments have a legitimate interest in preventing problematic drug use, the criminal law is not the solution. Criminalizing drug use simply has not worked as a matter of practice. Rates of drug use fluctuate, but they have not declined significantly since the “war on drugs” was declared more than four decades ago. The criminalization of drug use and possession is also inherently problematic because it represents a restriction on individual rights that is neither necessary nor proportionate to the goals it seeks to accomplish. It punishes an activity that does not directly harm others.
Instead, governments should expand public education programs that accurately describe the risks and potential harms of drug use, including the potential to cause drug dependence, and should increase access to voluntary, affordable, and evidence-based treatment for drug dependence and other medical and social services outside the court and prison system.
After decades of “tough on crime” policies, there is growing recognition in the US that governments need to undertake meaningful criminal justice reform and that the “war on drugs” has failed. This report shows that although taking on parts of the problem—such as police abuse, long sentences, and marijuana reclassification—is critical, it is not enough: Criminalization is simply the wrong response to drug use and needs to be rethought altogether.
Human Rights Watch and the American Civil Liberties Union call on all states and the federal government to decriminalize the use and possession for personal use of all drugs and to focus instead on prevention and harm reduction. Until decriminalization has been achieved, we urge officials to take strong measures to minimize and mitigate the harmful consequences of existing laws and policies. The costs of the status quo, as this report shows, are too great to bear.