Updated: Aug 13
Editor’s Note: Today’s post comes from contributing editor Bob Beach. Beach is a Ph.D. candidate in history at the University of Albany, SUNY.
It almost seems, given the existence of much more pressing matters, that a Points election preview is not even worth our time. As a personal matter, I’ll take that stance explicitly at the end of all of this. But as a drug historian, writing to folks interested in drug policies, such matters are always worth some of our time. Let’s take a quick break from Trump’s COVID diagnosis, two recent debates and a cancelled third, and ongoing conflict over Trump’s SCOTUS nomination, and review some of the key drug policy issues that will figure into the 2020 election season.
Trump’s criminal justice, like much of his policy strategies, center on public relations and marketing
The incumbent candidate has waged what has been called a “quiet war” on pot. His first Attorney General, Jeff Sessions, rescinded the Obama era Cole Memo, which directed federal law enforcement not to interfere in marijuana businesses regulated by state governments. In June, Sessions’s replacement William Barr was accused of targeting the cannabis industry in anti-trust inquiries, while Trump’s increasingly controversial immigration regime (including recent reports of forced sterilizations allegedly taking place at ICE facilities) has stressed that previous conviction for cannabis offenses, and other violations of “Good Moral Character” and “Crimes Involving Moral Turpitude” (including merely operating a legal dispensary), could be used to jeopardize the naturalization process. Administrative changes to asylum policy added possession of more than 30 grams of marijuana (among other offenses) as adequate Bars to Asylum Eligibility.
In contrast to his policies which have widened the war on drugs, he’s expressed public ambivalence on pot legalization, believing that states should make their own policies. He’s also engineered several publicized sentence commutations for non-violent drug offenses that all play well in the news media. But it’s clear that the Trump campaign views legalization as a potential liability, reflected in comments made at a rally in Oshkosh, Wisconsin, in August, when he urged Republicans to leave marijuana off the ballot due to the long-held Trumpian theory that high voter turnout is disastrous for Republican candidates.
The Trump campaign isn’t offering much in the way of promises, deciding instead to list the candidate’s achievements as “promises kept” (among them a dizzying array of Executive Orders) on its website. The Republican’s platform is literally the 2016 platform, with an alternatingly sycophantic and paranoid resolution of unwavering support for President Trump added to the beginning.
The Republican’s “non-platform” declaration
His list of Drug War accomplishments on his campaign website (limited references to drug cartels, gangs, and Chinese fentanyl here, here, and here) reads like a callback to supply-side drug wars past. In April, he opened one of his daily White House briefings with an announcement that he was sending US navy ships to Venezuela to expand anti-narcotics efforts in the region, and then claimed it was to prevent cartels from using coronavirus to expand operations. Some of his comments have more troubling eugenic overtones including a caught on tape moment of Trump suggesting that use of cannabis “does cause an IQ problem,” and he’s also expressed support for the idea of using the death penalty to deter drug traffickers on more than one occasion.
In contrast to Trump’s largely haphazard campaign on drug issues (including repeated challenges to his challenger to drug test prior to the embarrassing first debate), his opponent’s looks comparatively bold and visionary. The Biden-Harris campaign website dedicates an entire section on their “plan to end the opioid crisis,” with promises to expand Medicaid (a significant payer for mental health services), expand interdiction and international regulatory efforts, and hold pharmaceutical companies accountable for advertising their products ethically. The candidates want to create universal access to Medication Assisted Treatment by 2025, and promise to invest $10 billion dollars to provide Naloxone to local communities, and another $10 billion “to support populations with unique situations or needs,” including tribal governments, veterans, inmates, and those with neonatal conditions.
Biden speaking in the Senate in support of the 1994 Crime Bill
Biden’s position on criminal justice reform appears equally as transformative from a situational context and notably from the perspective of the candidate himself. Strong support of tough-on-crime legislation over his career helped build Biden’s reputation as a senator. Marijuana Moment has done a pretty good overview of his career support for punitive legislation. Due to pressure from the growing left wing of the party, the Democratic Party platform outlines a bold plan to quite literally undo Biden’s legacy on punitive policy. His campaign website’s criminal justice reform section pledges to end the disparity between cocaine and crack, end mandatory minimums, and address racial disparities in policing by redirecting funds and investing in drug war-ravished communities. His campaign pledges to decriminalize cannabis, and pursue expungement of non-violent drug offenses.
Biden’s lack of support for outright legalization is head-scratching. A July article in The Atlantic went so far as to say that it could hurt his chances. Recent polling information from Pew Research and Gallup suggest that more people (67% according to Pew) favor legalization of marijuana, as of November 2019, including 55% of Republicans. In a race that seems like it will hinge primarily on turnout, it seems odd that Biden would want to embrace a policy that could potentially bring young people to the polls.
On a more practical note (emphasized in a recent critique of Biden’s VP pick on Points), representative Barbara Lee, the Congressional Cannabis Caucus leader and sponsor of three separate cannabis bills in the House, has criticized Biden’s failure to embrace marijuana reform as a key plank in his criminal justice reform agenda as a significant failure. Biden’s vice presidential pick, Senator Kamala Harris, despite a record of prosecuting marijuana cases (mentioned more than once by Senator Harris’s primary opponents) in her time as district attorney in San Francisco, has recently led a Senate effort to legalize marijuana at the federal level. She is the only candidate on the major ticket to have admitted to smoking marijuana (while in college, an admission she made on The Breakfast Club in February 2019), and she pledged to decriminalize and expunge during the VP Debate last week.
VP candidate Harris, prosecutor to reformer? Hopefully, time will tell
The Trump campaign, as it has with pretty much everything this election season, has been able to mask its own insidious plans on drug policy by exploiting the evolution of the Democratic candidates. It has already laid out the attack line that Biden, and now Harris, were the architects of the modern War on Drugs and the mass incarceration state. And so amid horrifying and racist campaign spots that resemble Willie Horton ads on steroids, we also see ads making quite the opposite claim, that Biden has been TOO TOUGH on drugs. Here’s hoping folks don’t fall for the ruse.
But if you needed any more reason to vote for Democrats down the ticket, the potential for winning the Senate remains an attainable goal, which could enhance the power of a Biden administration (or worst case, check Trump’s second term ambitions). Among the literal piles of House-passed legislation on Mitch McConnell’s desk that could potentially be revised and whipped through during a first phase of a Biden Presidency includes any number of promising drug policies like those endorsed by Barbara Lee (The Marijuana Justice Act, The RESPECT Resolution, and the REFER Act, intended to de-schedule cannabis and expunge records, assure equity in the legal cannabis market, and prevent the interference with legal markets, respectively).
Harris’s sponsorship of the MORE Act (Marijuana Opportunity, Reinvestment, and Expungement), which has a House version set to be voted on this term, along with any number of cannabis de-scheduling, re-scheduling and research related bills, the Secure and Fair Enforcement Banking Act, and the STATES Act (Strengthening the Tenth Amendment Through Entrusting States), endorsed by Colorado Senator Cory Gardner (R), and primary challenger and Massachusetts senator Elizabeth Warren, would all see a new lease on life with Democrats winning the Senate in 2020 (President Trump has expressed public support for the STATES Act. ).
The Majority leader’s main accomplishment: House bills ignored by the Senate
Marijuana legalization is the prominent drug issue on state ballots across the nation, though various efforts (electoral and legislative) on marijuana legalization have been stalled by Covid-19. An article in Vox from January, suggested that as many as 18 states could introduce new state marijuana laws in 2020, but the pandemic has delayed and even halted several, prominently in New York. Ballot measures to legalize marijuana for adult use will appear in Arizona (Proposition 207), Montana (Montana I-190 and Montana CI-118), New Jersey (Public Question 1), and South Dakota (Amendment A). South Dakota will also introduce a medical marijuana initiative (Measure 26), along with Mississippi (Initiative 65/65A).
We may also see a second market (Colorado being the first) for psilocybin in Oregon (Measure 109), along with a reform initiative (Measure 110) which would reclassify “non-commercial” possession of controlled substances as E misdemeanors, and use funds from legalized marijuana to fund drug treatment programs for drug offenders. We’re also going to see the tiniest bit of retrenchment at the state level. In Washington State, Initiative 1117 and 1123 would prohibit the cultivation, processing and sales in residential areas. But these two states have been devastated by wildfires exacerbated by climate change. Trump doesn’t seem to believe climate change exists and so a continuation of Trump’s rule will be much more devastating that the failure of these bold voter initiatives.
And that kind of sums up the stakes in the upcoming election. There are plenty of issues that need to be taken seriously and given proper consideration for people making choices on candidates. But it seems more likely, given Republican assaults on voting rights, that the threats to election integrity, compounded by the current administration’s obsession over imagined threats over real ones, that if Democrats don’t find a way to encourage massive turnout, there might not be much left to consider starting in 2021.
Mitch McConnell seems intent on speeding through confirmation of a Trump Supreme Court nominee following the death of Ruth Bader Ginsberg, and that could spell doom for the Affordable Care Act before the election even takes place. That would accelerate the strain that Covid-19 has put on virtually every phase of the U.S. healthcare system, including those fighting the opioid epidemic. Donald Trump’s clear and imminent threat to representative government in the United States is a case for voting for Joe Biden and Kamala Harris, regardless of your position on the Democratic candidates.
 In the link to Trumps support for the STATES act (and Senator Gardner in particular), see about 11:20 into the video.