This November, California voters will decide whether they want people convicted of third-time drug possession and petty theft to be treated as felons and sent to state prison for years. Opponents of Prop. 36 have suggested this cruel and counterproductive ballot measure represents a “return” to the war on drugs that most Americans now oppose.
In fact, the war on drugs never ended. Worse still, the interests behind the war on drugs—who are now pushing Prop. 36—have known for decades that criminalizing drug use is counterproductive.
Fifty years of the drug war have bloated our jails and prisons; separated tens of millions of children from their parents; and shortened people’s lives by a combined millions of years. But overdose deaths are at near record highs, overall drug use is rising, drugs are increasingly potent, and there is a scientific consensus that drug arrests and prison sentences have no beneficial impact on drug use whatsoever. In fact, research shows that drug seizures increase overdose deaths.
And yet police across the country still arrest more people for possessing drugs than for any other “crime.” Even now, 87% of drug arrests are for possessing drugs for personal use. In Orange County, where I live, prosecutors in recent years filed more criminal charges for possessing drug paraphernalia than for any other offense. Despite California Democrats’ shift in rhetoric, they have not shifted away from the war on drugs.
So why haven’t they?
Because decreasing drug use and overdose deaths have never been the goals of the drug war. Its purpose has always been to prey on existing fears and prejudices to score easy political points. As one of the top advisors to President Nixon, who began the drug war, later admitted: “We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin [a]nd then criminalizing both heavily, we could…vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
Today’s fears lie with the very real opioid crisis, and today’s prejudices with unhoused people. Drug warriors capitalize on that discomfort with visible poverty, although the reality is that criminalization exacerbates homelessness and only housing solves it.
To obscure the purpose of carceral drug war policies from well-meaning voters, their supporters have often sought to rebrand them as “treatment.” Prop. 36’s supporters peddle the lie that it will provide more access to drug treatment by allowing people who complete programming to avoid the criminal consequences Prop. 36 creates. This is nonsense: Prop. 36 actually defunds drug treatment.
Besides, being forced to undergo drug treatment under threat of incarceration is already a standard condition of pretrial release, probation, parole, diversion programs, and more. Coerced treatment is, in other words, a central feature of the disastrous drug war, not a step away from it. As the research confirms, it does not work.
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In light of all this, it is hard to avoid the conclusion that the politicians, prosecutors, and police chiefs committed to the drug war know they are lying to us. If their careers actually depended on reducing drug deaths, surely they would not sabotage themselves by continuing such counterproductive policy. Instead, they would follow the recommendations of experts on addiction, like increasing harm reduction or reducing destabilizing factors like poverty and prison.
Sadly, in the real world, Governor Newsom seems too politically ambitious to campaign seriously against Prop. 36, and he vetoed a bill for life–saving safe injection sites in 2022. In the real world, an array of interests from corporate retailers like Wal-Mart and the prison guards’ union, which understands that Prop. 36 will increase the prison population and lead to more funding that benefits its members, have collectively poured millions into misleading Californians about whom Prop. 36 is really for. Our politicians are happy to play along.
Salil Dudani is a Senior Attorney at Civil Rights Corps. He is based in Orange County.