Broken Border, Part Three: Decriminalize?

When Mexican neighbors moved north with their wild marijuana parties, El Paso leaders in the 1910s became some of the first in the nation to ban the drug. A century later, El Pasoans see their neighbors slaughtered daily in a vicious drug war and worry the carnage will spill north. And city leaders are wondering aloud whether it’s time to retreat from the American War on Drugs their forebears helped start.

Experts from around the country and from Mexico, including former U.S. law enforcement and former Mexican federal officials, gathered recently at the University of Texas at El Paso, just yards from the battlefields of Juarez. “We wanted attention paid to and focused on our community so the rest of the world could see how badly the current policy has failed us,” said El Paso city council representative Beto O’Rourke. With few exceptions, speakers panned the 40-year American drug war as a failed effort. The U.S. crackdown on narcotics, they said, has spawned a murderous black market and has failed to curtail drug addiction despite the billions of dollars spent and millions of people jailed. Easing prohibition policies, many speakers argued, would make the drug trade less profitable and thus less violent. And it might help curb Americans’ drug appetite.

Opponents of drug decriminalization, however, worry it would drive up substance use and simply force drug lords into different criminal enterprises. “We are either going to fight them, or we are going to be defeated by them,” said Anthony Placido, who leads the U.S. Drug Enforcement Administration’s intelligence program.

What minimal movement has taken place nationally to back away from the enforcement-only approach to drugs in this country has happened at the state level. That movement, though, has yet to make waves in conservative Texas, the largest and arguably most affected neighbor of the besieged Mexican government. Fifteen people were murdered just across the Texas-Mexico border from El Paso during the two-day drug war conference. The body count on one day included a 50-year-old man who was found beheaded. So far this year, more than 2,000 people have been slaughtered in Juarez, which has become the de facto capitol of drug violence as cartels do battle against one another and Mexican President Felipé Calderon’s military.

El Paso public officials who witness the growing daily death toll find themselves alone among Texas politicians, who generally avoid talk of easing drug enforcement at all cost. El Paso County Attorney Jose Rodriguez, now a Texas Senate candidate, was the only local politician not on the city council to attend the conference. “What it reflects," he said, "is the fear elected officials have of openly speaking about this subject -- the fear that if they do ... it’s going to have some political repercussions for them."

Texas started it

El Paso was among the first places in America to pass a ban on marijuana in 1914, said Bill Martin, a sociology and criminology professor at Rice University who wrote an essay arguing for decriminalization in a recent issue of Texas Monthly. City leaders, he said, believed marijuana fueled the wild weekend jaunts of Mexican immigrants. During the next several decades, other cities and states banned the weed, too. By the 1970s, then-President Richard Nixon declared war on drugs. The continuing war saw more than 1.8 million people arrested for drug violations in 2007, according to the U.S. Department of Justice, accounting for 13 percent of all crimes. More than four-fifths of the arrests were for possession.

If lawmakers allowed Texans to grow and smoke their own pot, Martin said, incarceration costs would plummet along with the drug profits that fuel violent turf wars between the cartels. Martin also pointed to recent opinion polls, like a Zogby report from earlier this year, indicating that a majority of Americans believe it would be reasonable to legalize, tax and regulate marijuana. Despite the fiscal implications and the polls, Martin, who has testified often before Texas legislative committees about drug policy issues, said he was “not wildly optimistic about this happening any time soon.” 

Converted cops

Terry Nelson fought the drug war for some three decades. A retired law enforcement officer who worked in drug enforcement for U.S. Customs Services, U.S. Border Patrol and the U.S. Department of Homeland Security, he now spends his time trying to convince others the war has failed. “The only way we’re going to win it is through education and regulation,” said Nelson, who is now a spokesman for Law Enforcement Against Prohibition.

California state Judge James Gray, a former prosecutor with the U.S. Attorney’s office in Los Angeles, said decades on the bench transformed his thinking. Since the 1990s, the self-described conservative has written a book and appeared on more than 300 radio and television programs to decry the national drug policy. “We couldn’t get it worse if we tried,” Gray said. The U.S., he said, is spending billions on jails and health care for drug addicts, while other countries, like the Netherlands, Switzerland and Portugal, have seen drops in crime and narcotics use by decriminalizing drugs and focusing on treatment. “We cannot repeal the law of supply and demand,” Gray said.

Decriminalization opponents worry that reducing penalties for drug use would result in more addicts, and would do little or nothing to topple criminal organizations in Mexico. “The people in this business are not dusting up their resumes and going to work in the corporate world,” said the DEA’s Placido. “What we’re really dealing with is a class of professional predators.” Then there’s the question of which drugs to decriminalize and how to regulate them, he said. If penalties are reduced for marijuana, then why not ease punishment for heroin, cocaine and other hard drugs?

Law enforcement, he said, is not the whole answer to the drug problem, but it must be a part of it. “The state is dealing with a criminal class we cannot ignore,” Placido said. 

Change begins in the states

Reforming drug policy is not purely a law enforcement quandary. It’s also a political one. El Paso city Rep. O’Rourke quickly discovered that earlier this year when he sponsored a resolution urging Congress to debate legalizing narcotics. The purely symbolic measure, which was vetoed by El Paso Mayor John Cook, drew national attention and unfriendly letters from local lawmakers worried about political embarrassment. “This is a hard conversation to have, and it’s something that can be tough to be close to,” O’Rourke said.

Thirteen states, including Mississippi and Alaska, have decriminalized possession of small amounts of marijuana, according to the National Organization for Reform of Marijuana Laws. California’s medical marijuana laws and U.S. Attorney General Eric Holder’s decision this year to stop raiding stores that sell it have prompted a flurry of recent media stories about the state’s booming pot industry. But in tough-on-crime Texas, the conversation has been limited. Legislators have been primarily focused on guards and guns. They’ve dedicated more than $200 million since 2007 to state-led security initiatives, mostly for more boots on the ground in border counties.

Despite law enforcement leanings in the statehouse, state Rep. Elliott Naishtat, D-Austin, has filed a bill that proposes to allow medicinal uses of marijuana in each legislative session since 2003. Naishtat is quick to explain that his measure would not decriminalize or legalize pot in any way. It wouldn’t even give doctors the ability to prescribe marijuana. Instead, it would provide a defense in court to people charged with drug possession if they have “bona fide” illnesses and a doctor’s suggestion. “The judge and jury would be authorized to tell this person, basically, ‘You’re sick; you’re not a criminal. Go home,’” Naishtat said. The medical marijuana bill, though, has never made it out of committee. In 2009, it didn’t even get a hearing in the House Public Health Committee — a panel on which Naishtat serves as vice chairman.

State legislators eased off marijuana enforcement ever-so-slightly in 2007 with HB2391. The measure allows, but does not require, counties to adopt a policy letting officers issue citations to those caught with less than four ounces of marijuana. The penalty would be the same — a class B misdemeanor punishable by a fine of up to $2,000 and 180 days in jail — but a person wouldn’t immediately be cuffed and sent to the local lockup. Though the measure was meant to help ease jail overcrowding and give officers more time to deal with violent offenders, only a handful of counties, including Travis and Hays counties, have approved the policy. El Paso County Attorney Rodriguez said passing any type of drug-related measure that could be construed as weak on crime is a political hornets’ nest most public officials avoid. “Texas, of course, being as conservative as it is, is probably a harder nut to crack on this issue,” he said.

Talk of drug legalization among Texas politicians consists mostly of Cheech-and-Chong jokes about dopers, said Scott Henson, who writes the criminal justice blog Grits for Breakfast and has followed law enforcement issues for decades as a journalist and civil rights advocate. It may take a tragic seepage of drug violence north of the border to spark a serious discussion in the Lone Star state, he said. “What’s happening in Juarez is a no-joke deal,” Henson said. “It’s not something you can laugh off by making fun of stoners.”