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Human Rights Watch - Every 25 Seconds The Human Toll of Criminalizing Drug Use in the United States, HRW ACLU, 2016

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EVERY
25 SECONDS
The Human Toll of Criminalizing Drug Use
in the United States

H U M A N
R I G H T S
W A T C H

Every 25 Seconds
The Human Toll of Criminalizing Drug Use in the United States

Copyright © 2016 Human Rights Watch
All rights reserved.
Printed in the United States of America
ISBN: 978-1-6231-34105
Cover design by Rafael Jimenez

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ISBN: 978-1-6231-34105

OCTOBER 2016

Every 25 Seconds
The Human Toll of Criminalizing Drug Use in the United States
Summary ........................................................................................................................... 1
A National Problem ...................................................................................................................4
Aggressive Policing ............................................................................................................4
Racial Discrimination ......................................................................................................... 5
Small-Scale Drug Use: Prosecutions for Tiny Amounts ............................................................... 7
A System that Coerces Guilty Pleas .......................................................................................... 8
Incarceration for Drug Possession ............................................................................................ 9
Probation, Criminal Justice Debt, and Collateral Consequences ............................................... 10
A Call for Decriminalizationp ................................................................................................... 12

Key Recommendations ......................................................................................................14
Methodology.................................................................................................................... 16
I. The Human Rights Case for Decriminalization ................................................................ 22
II. Background .................................................................................................................. 28
The “War on Drugs” ............................................................................................................... 28
Drug Use in the United States .................................................................................................30
State Drug Possession Laws ................................................................................................... 34

III. The Size of the Problem: Arrests for Drug Use Nationwide ............................................ 37
Possession Arrests by the Numbers ........................................................................................ 37
Racial Disparities.................................................................................................................... 43
Incentives for Drug Arrests ......................................................................................................50

IV. The Experience of Being Policed .................................................................................. 55
Pretextual Stops and Searches without Consent...................................................................... 55
Feeling Targeted ..................................................................................................................... 59

V. Aggressive Prosecutions .............................................................................................. 63
Going after the Small Stuff ..................................................................................................... 66
Possession Charges in Texas for Fractions of a Gram........................................................ 66

Paraphernalia Charged as Possession .............................................................................. 71
Medications Made into Felonies ............................................................................................. 74
Charging Distribution in Possession Cases..............................................................................78

VI. Pretrial Detention and the False Choice of a Plea Deal .................................................. 82
Pretrial Detention .................................................................................................................. 82
Coerced Guilty Pleas .............................................................................................................. 89
Pleading to Get Out of Jail .................................................................................................93
Pleading to Avoid the Trial Penalty ................................................................................... 96
Pleading When Innocent................................................................................................. 106

VII. Sentencing by the Numbers ...................................................................................... 110
VIII. Living Under a Dark Cloud: Probation and Criminal Justice Debt .............................. 119
Probation ............................................................................................................................. 119
Onerous Conditions ....................................................................................................... 120
Financial Costs ............................................................................................................... 125
Violations and Revocations ............................................................................................ 126
Criminal Justice Debt ............................................................................................................ 128

IX. The Impact of Incarceration and a Criminal Record ..................................................... 132
When People Are Locked Up ................................................................................................. 132
Impact on Family ............................................................................................................ 133
Impact on Health ............................................................................................................ 137
Returning to Nothing ...................................................................................................... 142
When People Are Labeled Drug Offenders and Felons ............................................................ 144
Exclusion from Public Benefits and Rights ...................................................................... 145
Vulnerability to Private Discrimination ............................................................................ 159

X. How Criminalization Undermines Health ......................................................................165
Failure to Provide Appropriate Treatment for Drug Dependence ............................................. 167
Obstacles to Emergency Care ................................................................................................ 169
Drug Courts: A Flawed Solution ............................................................................................. 173
The US Drug Court Model ................................................................................................ 175
Human Rights Concerns ................................................................................................. 176

XI. The Way Forward: A Call for Decriminalization ........................................................... 180
Portugal’s Successful Decriminalization of All Drugs ............................................................. 182
US States’ Experiments with Marijuana Decriminalization ..................................................... 184

Recommendations...........................................................................................................187
To State Legislatures ............................................................................................................ 187
To Sheriffs and Police ........................................................................................................... 188
To State Prosecutors ............................................................................................................. 189
To State Judges and Judiciaries ............................................................................................. 191
To State Probation Officers and Parole Boards ...................................................................... 192
To State Departments of Corrections and Local Jail Administrators ........................................ 192
To Other Local Government Entities ...................................................................................... 192
To the Federal Government ................................................................................................... 193
Congress ........................................................................................................................ 193
Department of Justice ..................................................................................................... 193
Department of Health and Human Services ..................................................................... 194
Department of Housing and Urban Development ............................................................ 194

Acknowledgments ...........................................................................................................195

Summary
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.1
***
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

1 “Neal Scott” and “Nicole Bishop” are both pseudonyms, as are all other names used in the summary, with the exception of

Corey Ladd.

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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
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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

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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.

A National Problem
All US states and the federal government criminalize possession of illicit drugs for
personal use. While some states have decriminalized possession of small amounts of
marijuana, other states still make marijuana possession a misdemeanor or even a felony.
In 42 states, possession of small amounts of most illicit drugs other than marijuana is
either always or sometimes a felony offense. Only eight states and the District of Columbia
make possession of small amounts a misdemeanor.
Not only do all states criminalize drug possession; they also all enforce those laws with
high numbers of arrests and in racially discriminatory ways, as evidenced by new analysis
of national and state-level data obtained by Human Rights Watch.

Aggressive Policing
More than one of nine arrests by state law enforcement are for drug possession,
amounting to more than 1.25 million arrests per year. While the bulk of drug possession
arrests are in large states such as California, which made close to 200,000 arrests for drug
possession in 2014, Maryland, Nebraska, and Mississippi have the highest per capita drug
EVERY 25 SECONDS

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possession arrest rates. Nationwide, rates of arrest for drug possession range from 700 per
100,000 people in Maryland to 77 per 100,000 in Vermont.
Despite shifting public opinion, in 2015, nearly half of all drug possession arrests (over
574,000) were for marijuana possession. By comparison, there were 505,681 arrests for
violent crimes (which the FBI defines as murder, non-negligent manslaughter, rape,
robbery, and aggravated assault). This means that police made more arrests for simple
marijuana possession than for all violent crimes combined.
Data presented for the first time in this report shows stark differences in arrest rates for
drug possession even within the same state. For example, data provided to us by Texas
shows that 53 percent of drug possession arrests in Harris County (in and around Houston)
were for marijuana, compared with 39 percent in nearby Dallas County, despite similar
drug use rates in the two counties. In New York State, the counties with the highest drug
possession arrest rates by a large margin were all in and around urban areas of New York
City and Buffalo. In Florida, the highest rates of arrest were spread around the state in rural
Bradford County, urban Miami-Dade County, Monroe County (the Keys), rural Okeechobee
County, and urban Pinellas County. In Texas, counties with the highest drug possession
arrest rates were all small rural counties. Kenedy County, for example, has an adult
population of 407 people, yet police there made 329 arrests for drug possession between
2010 and 2015. In each of these states, there is little regional variation in drug use rates.
The sheer magnitude of drug possession arrests means that they are a defining feature of the
way certain communities experience police in the United States. For many people, drug laws
shape their interactions with and views of the police and contribute to a breakdown of trust
and a lack of security. This was particularly true for Black and Latino people we interviewed.

Racial Discrimination
Over the course of their lives, white people are more likely than Black people to use illicit
drugs in general, as well as marijuana, cocaine, heroin, methamphetamines, and
prescription drugs (for non-medical purposes) specifically. Data on more recent drug use
(for example, in the past year) shows that Black and white adults use illicit drugs other
than marijuana at the same rates and that they use marijuana at similar rates.

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Yet around the country, Black adults are more than two-and-a-half times as likely as white
adults to be arrested for drug possession. In 2014, Black adults accounted for just 14 percent
of those who used drugs in the previous year but close to a third of those arrested for drug
possession. In the 39 states for which we have sufficient police data, Black adults were more
than four times as likely to be arrested for marijuana possession than white adults.2
In every state for which we have sufficient data, Black adults were arrested for drug
possession at higher rates than white adults, and in many states the disparities were
substantially higher than the national rate—over 6 to 1 in Montana, Iowa, and Vermont. In
Manhattan, Black people are nearly 11 times more likely than white people to be arrested
for drug possession.
Darius Mitchell, a Black man in his 30s, was among those targeted in Louisiana. He
recounted his story to us as follows: Late one night in Jefferson Parish, Darius was driving
home from his child’s mother’s house. An officer pulled him over, claiming he was
speeding. When Darius said he was sure he was not, the officer said he smelled marijuana.
He asked whether he could search, and Darius said no. Another officer and a canine came
and searched his car anyway. They yelled, “Where are the pounds?” suggesting he was a
marijuana dealer. The police never found marijuana, but they found a pill bottle in Darius’
glove compartment, with his child’s mother’s name on it. Darius said that he had driven
her to the emergency room after an accident, and she had been prescribed hydrocodone,
which she forgot in the car. Still, the officers arrested him and he was prosecuted for drug
possession, his first felony charge. He faced up to five years in prison. Darius was
ultimately acquitted at trial, but months later he remained in financial debt from his legal
fees, was behind in rent and utilities bills, and had lost his cable service, television, and
furniture. He still had an arrest record, and the trauma and anger of being unfairly targeted.

2 Not all states report thoroughly to the FBI, from whom we obtained national arrest data. Because we compared arrest data

and US Census data, we could not accurately assess racial disparities where reporting coverage was limited. We therefore
included only those states where at least 75 percent of the population was covered in data reported to the FBI. There is no
evidence that states that fell below this threshold would have substantially different arrest disparities. Because the FBI does
not keep data on Latinos arrested, classifying them instead as white or Black, our racial disparities analysis is limited to
those categories.

EVERY 25 SECONDS

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Small-Scale Drug Use: Prosecutions for Tiny Amounts
We interviewed over 100 people in Texas, Louisiana, Florida, and New York who were
prosecuted for small quantities of drugs—in some cases, fractions of a gram—that were
clearly for personal use. Particularly in Texas and Louisiana, prosecutors did more than
simply pursue these cases—they often selected the highest charges available and went
after people as hard as they could.
In 2015, according to data we analyzed from Texas courts, nearly 16,000 people were
sentenced to incarceration for drug possession at the “state jail felony” level—defined as
possession of under one gram of substances containing commonly used drugs, including
cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms
(or between 4 ounces and 5 pounds of marijuana).3 One gram, the weight of less than onefourth a sugar packet, is enough for only a handful of doses for new users of many drugs.
Data presented here for the first time suggests that in 2015, more than 78 percent of
people sentenced to incarceration for felony drug possession in Texas possessed under a
gram. Possibly thousands more were prosecuted and put on probation, potentially with
felony convictions. In Dallas County, the data suggests that nearly 90 percent of
possession defendants sentenced to incarceration were for under a gram.
The majority of the 30 defendants we interviewed in Texas had substantially less than a
gram of illicit drugs in their possession when they were arrested: not 0.9 or 0.8 grams, but
sometimes 0.2, 0.02, or a result from the lab reading “trace,” meaning that the amount
was too small even to be measured. One defense attorney in Dallas told us a client was
charged with drug possession in December 2015 for 0.0052 grams of cocaine. The margin
of error for the lab that tested it is 0.0038 grams, meaning it could have weighed as little
as 0.0014 grams, or 35 hundred-thousandths (0.00035) of a sugar packet.
Bill Moore, a 66-year-old man in Dallas, is serving a three-year prison sentence for 0.0202
grams of methamphetamines. In Fort Worth, Hector Ruiz was offered six years in prison for
an empty bag that had heroin residue weighing 0.007 grams. In Granbury, Matthew Russell
was charged with possession of methamphetamines for an amount so small that the

3 Henceforward, we use “state jail felony” interchangeably with “under a gram.”

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laboratory result read only “trace.” The lab technician did not even assign a fraction of a
gram to it.

A System that Coerces Guilty Pleas
In 2009 (the most recent year for which national data is available), more than 99 percent
of people convicted of drug possession in the 75 largest US counties pled guilty. Our
interviews and data analysis suggest that in many cases, high bail—particularly for lowincome defendants—and the threat of long sentences render the right to a jury trial
effectively meaningless.
Data we obtained from Florida and Alabama reveals that, at least in those two states, the
majority of drug possession defendants were poor enough to qualify for court-appointed
counsel. Yet in 2009, drug possession defendants in the 75 largest US counties had an
average bail of $24,000 (for those detained, average bail was $39,900). For lower-income
defendants, such high bail often means they must remain in jail until their case is over.
For defendants with little to no criminal history, or in relatively minor cases, prosecutors
often offer probation, relatively short sentences, or “time served.” For those who cannot
afford bail, this means a choice between fighting their case from jail or taking a conviction
and walking out the door. In Galveston, Texas, Breanna Wheeler, a single mother, pled to
probation and her first felony conviction against her attorney’s advice. They both said she
had a strong case that could be won in pretrial motions, but her attorney had been waiting
months for the police records, and Breanna needed to return home to her 9-year-old
daughter. In New York City, Deon Charles told us he pled guilty because his daughter had
just been born that day and he needed to see her.
For others, the risk of a substantially longer sentence at trial means they plead to avoid the
“trial penalty.” In New Orleans, Jerry Bennett pled guilty to possession of half a gram of
marijuana and a two-and-a-half-year prison sentence, because he faced 20 years if he lost
at trial: “They spooked me out by saying, ‘You gotta take this or you’ll get that.’ I’m just
worried about the time. Imagine me in here for 20 years. They got people that kill people.
And they put you up here for half a gram of weed.”

EVERY 25 SECONDS

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For the minority of people we interviewed who exercised their right to trial, the sentences
they received in Louisiana and Texas were shocking. In New Orleans, Corey Ladd was
sentenced as a habitual offender to 17 years for possessing half an ounce of marijuana.
His prior convictions were for possession of small amounts of LSD and hydrocodone, for
which he got probation both times. In Granbury, Texas, after waiting 21 months in jail to
take his case to trial, Matthew Russell was sentenced to 15 years for a trace amount of
methamphetamines. According to him and his attorney, his priors were mostly out-of-state
and related to his drug dependence.

Incarceration for Drug Possession
At year-end 2014, over 25,000 people were serving sentences in local jails and another
48,000 were serving sentences in state prisons for drug possession nationwide. The
number admitted to jails and prisons at some point over the course of the year was
significantly higher. As with arrests, there were sharp racial disparities. In 2002 (the most
recent year for which national jail data is available), Black people were over 10 times more
likely than white people to be in jail for drug possession. In 2014, Black people were nearly
six times more likely than white people to be in prison for drug possession.
Our analysis of data from Florida, Texas, and New York, presented here for the first time,
shows that the majority of people convicted of drug possession in these states are
sentenced to some form of incarceration. Because each dataset is different, they show us
different things. For example, our data suggests that in Florida, 75 percent of people
convicted of felony drug possession between 2010 and 2015 had little to no prior criminal
history. Yet 84 percent of people convicted of these charges were sentenced to prison or
jail. In New York State, between 2010 and 2015, the majority of people convicted of drug
possession were sentenced to some period of incarceration. At year-end 2015, one of
sixteen people in custody in New York State was incarcerated for drug possession. Of
those, 50 percent were Black and 28 percent Latino. In Texas, between 2012 and 2016,
approximately one of eleven people in prison had drug possession as their most serious
offense; two of every three people serving time for drug charges were there for drug
possession; and 116 people had received life sentences for drug possession, at least
seven of which were for an amount weighing between one and four grams.

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For people we spoke to, the prospect of spending months or years in jail or prison was
overwhelming. For most, the well-being of family members in their absence was also a
source of constant concern, sometimes more vivid for them than the experience of jail or
prison itself. Parents told us they worried about children growing up without them. Some
described how they missed seeing their children but did not let them visit jail or prison
because they were concerned the experience would be traumatizing. Others described the
anguish of no-contact jail visits, where they could see and hear but not reach out and
touch their young children’s hands. Some worried about partners and spouses, for whom
their incarceration meant lost income and lost emotional and physical support.
In Covington, Louisiana, Tyler Marshall’s wife has a disability, and he told us his absence
took a heavy toll. “My wife, I cook for her, clean for her, bathe her, clothe her…. Now
everything is on her, from the rent to the bills, everything…. She’s behind [on rent] two
months right now. She’s disabled and she’s doing it all by herself.” In New Orleans, Corey
Ladd was incarcerated when his girlfriend was eight months pregnant. He saw his infant
daughter Charlee for the first time in a courtroom and held her for the first time in the
infamous Angola prison. She is four now and thinks she visits her father at work. “She
asks when I’m going to get off work and come see her,” Corey told us. He is a skilled artist
and draws Charlee pictures. In turn, Charlee brings him photos of her dance recitals and in
the prison visitation hall shows him new dance steps she has learned. Corey, who is
currently serving 17 years for marijuana possession, may never see her onstage.

Probation, Criminal Justice Debt, and Collateral Consequences
Even for those not sentenced to jail or prison, a conviction for drug possession can be
devastating, due to onerous probation conditions, massive criminal justice debt, and a
wide range of restrictions flowing from the conviction (known in the literature as
“collateral consequences”).
Many defendants, particularly those with no prior convictions, are offered probation
instead of incarceration. Although probation is a lesser penalty, interviewees in Florida,
Louisiana, and Texas told us they felt “set up to fail” on probation, due to the enormous
challenges involved in satisfying probation conditions (for example, frequent meetings at
distant locations that make it impossible for probationers to hold down a job, but require
that they earn money to pay for travel and fees). Some defense attorneys told us that

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probation conditions were so onerous and unrealistic that they would counsel clients to
take a short jail or prison sentence instead. A number of interviewees said if they were
offered probation again, they would choose incarceration; others said they knew probation
would be too hard and so chose jail time.
At year-end 2014, the US Department of Justice reported that 570,767 people were on
probation for drug law violations (the data does not distinguish between possession and
sales), accounting for close to 15 percent of the entire state probation population around
the country. In some states, drug possession is a major driver of probation. In Missouri,
drug possession is by far the single largest category of felony offenses receiving probation,
accounting for 9,500 people or roughly 21 percent of the statewide probation total. Simple
possession is also the single largest driver in Florida, accounting for nearly 20,000 cases
or 14 percent of the statewide probation total. In Georgia, possession offenses accounted
for 17 percent of new probation starts in 2015 and roughly 16 percent of the standing
probation population statewide at mid-year 2016.
In addition to probation fees (if they are offered probation), people convicted of drug
possession are often saddled with crippling court-imposed fines, fees, costs, and
assessments that they cannot afford to pay. These can include court costs, public defender
application fees, and surcharges on incurred fines, among others. They often come on top
of the price of bail (if defendants can afford it), income-earning opportunities lost due to
incarceration, and the financial impact of a criminal record. For those who choose to hire
an attorney, the costs of defending their case may have already left them in debt or
struggling to make ends meet for months or even years to come.
A drug conviction also keeps many people from getting a job, renting a home, and
accessing benefits and other programs they may need to support themselves and their
families—and to enjoy full civil and social participation. Federal law allows states to lock
people out of welfare assistance and public housing for years and sometimes even for life
based on a drug conviction. People convicted of drug possession may no longer qualify for
educational loans; they may be forced to rely on public transport because their driver’s
license is automatically suspended; they may be banned from juries and the voting booth;
and they may face deportation if they are not US citizens, no matter how many decades
they have lived in the US or how many of their family members live in the country. In
addition, they must bear the stigma associated with the labels of “felon” and “drug
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offender” the state has stamped on them, subjecting them to private discrimination in
their daily interactions with landlords, employers, and peers.

A Call for Decriminalization
As we argue in this report, laws criminalizing drug use are inconsistent with respect for
human autonomy and the right to privacy and contravene the human rights principle of
proportionality in punishment. In practice, criminalizing drug use also violates the right to
health of those who use drugs. The harms experienced by people who use drugs, and by
their families and broader communities, as a result of the enforcement of these laws may
constitute additional, separate human rights violations.
Criminalization has yielded few, if any, benefits. Criminalizing drugs is not an effective
public safety policy. We are aware of no empirical evidence that low-level drug possession
defendants would otherwise go on to commit violent crimes. And states have other tools at
their disposal—for example, existing laws that criminalize driving under the influence or
child endangerment—to address any harmful behaviors that may accompany drug use.
Criminalization is also a counterproductive public health strategy. Rates of drug use across
drug types in the US have not decreased over the past decades, despite widespread
criminalization. For people who struggle with drug dependence, criminalization often
means cycling in and out of jail or prison, with little to no access to voluntary treatment.
Criminalization undermines the right to health, as fear of law enforcement can drive people
who use drugs underground, deterring them from accessing health services and
emergency medicine and leading to illness and sometimes fatal overdose.
It is time to rethink the criminalization paradigm. Although the amount cannot be
quantified, the enormous resources spent to identify, arrest, prosecute, sentence,
incarcerate, and supervise people whose only offense has been possession of drugs is
hardly money well spent, and it has caused far more harm than good. Some state and local
officials we interviewed recognized the need to end the criminalization of drug use and to
develop a more rights-respecting approach to drugs. Senior US officials have also
emphasized the need to move away from approaches that punish people who use drugs.

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Fortunately, there are alternatives to criminalization. Other countries—and even some US
states with respect to marijuana—are experimenting with models of decriminalization that
the US can examine to chart a path forward.
Ending criminalization of simple drug possession does not mean turning a blind eye to the
misery that drug dependence can cause in the lives of those who use and of their families.
On the contrary, it requires a more direct focus on effective measures to prevent
problematic drug use, reduce the harms associated with it, and support those who
struggle with dependence. Ultimately, the criminal law does not achieve these important
ends, and causes additional harm and loss instead. It is time for the US to rethink its
approach to drug use.

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Key Recommendations
Human Rights Watch and the American Civil Liberties Union call on federal and state
legislatures to end the criminalization of the personal use of drugs and the possession of
drugs for personal use.
In the interim, we urge government officials at the local, state, and federal levels to adopt
the recommendations listed below. These are all measures that can be taken within the
existing legal framework to minimize the imposition of criminal punishment on people who
use drugs, and to mitigate the harmful collateral consequences and social and economic
discrimination experienced by those convicted of drug possession and by their families
and communities. At the same time, officials should ensure that education on the risks
and potential harms of drug use and affordable, evidence-based treatment for drug
dependence are available outside of the criminal justice system.
Until full decriminalization is achieved, public officials should pursue the following:
•

State legislatures should amend relevant laws so that a drug
possession conviction is never a felony and cannot be used as a
sentencing enhancement or be enhanced itself by prior convictions,
and so that no adverse collateral consequences attach by law for
convictions for drug possession.

•

Legislatures should allocate funds to improve and expand harm reduction
services and prohibit public and private discrimination in housing or
employment on the basis of prior drug possession arrests or convictions.

•

To the extent permitted by law and by limits on the appropriate exercise of
discretion, police should decline to make arrests for drug possession and
should not stop, frisk, or search a person simply to find drugs for personal use.
Police departments should not measure officer or department performance
based on stop or arrest numbers or quotas and should incentivize and reward
officer actions that prioritize the health and safety of people who use drugs.

•

To the extent permitted by law and by limits on the appropriate exercise of
discretion, prosecutors should decline to prosecute drug possession cases, or
at a minimum should seek the least serious charge supported by the facts or by

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law. Prosecutors should refrain from prosecuting trace or residue cases and
should never threaten enhancements or higher charges to pressure drug
possession defendants to plead guilty. They should not seek bail in amounts
they suspect defendants will be unable to pay.
•

To the extent permitted by law and by limits on the appropriate exercise of
discretion, judges should sentence drug possession defendants to nonincarceration sentences. Judges should release drug possession defendants
on their own recognizance whenever appropriate; if bail is required, it should
be set at a level carefully tailored to the economic circumstances of
individual defendants.

•

To the extent permitted by law and by limits on the appropriate exercise of
discretion, probation officers should not charge people on probation for drug
offenses with technical violations for behavior that is a result of drug
dependence. Where a legal reform has decreased the sentences for certain
offenses but has not made the decreases retroactive, parole boards should
consider the reform when determining parole eligibility.

•

The US Congress should amend federal statutes so that no adverse collateral
consequences attach by law to convictions for drug possession, including
barriers to welfare assistance and subsidized housing. It should appropriate
sufficient funds to support evidence-based, voluntary treatment options and
harm reduction services in the community.

•

The US Department of Justice should provide training to state law enforcement
agencies clarifying that federal funding programs are not intended to and
should not be used to encourage or incentivize high numbers of arrests for drug
possession, and emphasizing that arrest numbers are not a valid measure of
law enforcement performance.

15

OCTOBER 2016

Methodology
This report is the product of a joint initiative—the Aryeh Neier fellowship—between Human
Rights Watch and the American Civil Liberties Union to strengthen respect for human rights
in the United States.
The report is based on more than 365 in-person and telephone interviews, as well as data
provided to Human Rights Watch in response to public information requests.
Between October 2015 and March 2016, we conducted interviews in Louisiana, Texas,
Florida, and New York City with 149 people prosecuted for their drug use. Human
Rights Watch and the American Civil Liberties Union identified individuals who had
been subjected to prosecution in those jurisdictions through outreach to service
providers, defense attorneys, and advocacy networks as well as through observation
of courtroom proceedings.
In New York City, the majority of our interviews were conducted at courthouses or at the
site of harm reduction and reentry programs. In Florida, Louisiana, and Texas, we met
interviewees at detention facilities, drug courts, harm reduction and reentry programs, law
offices, and restaurants in multiple counties.
In the three southern states, we conducted 64 interviews with people who were in
custody—in local jails, state prisons, department of corrections work release or trustee
facilities, and courthouse lock-ups across 13 jurisdictions. Within the jails and prisons,
interviews took place in an attorney visit room to ensure confidentiality.
Most interviews were conducted individually and in private. Group interviews were
conducted with three families and with participants in drug court programs in New Orleans
(in drug court classrooms) and St. Tammany Parish (in a private room in the courthouse).
All individuals interviewed about their experience provided informed consent, and no
incentive or remuneration was offered to interviewees. For interviewees with pending
charges, we interviewed them only with approval from their attorney and did not ask any
questions about disputed facts or issues. In those cases, we explained to interviewees
that we did not want them to tell us anything that could be used against them in their case.
EVERY 25 SECONDS

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To protect the privacy and security of these interviewees, a substantial number of whom
remain in custody, we decided to use pseudonyms in all but two cases. In many cases, we
also withheld certain other identifying information. Upon their urging and because of
unique factors in their cases, we have not used pseudonyms for Corey Ladd and Byron
Augustine in New Orleans and St. Tammany Parish, Louisiana, respectively.
In addition, we conducted 23 in-person interviews with current or former state government
officials, including judges, prosecutors, law enforcement, and corrections officers. We also
had phone interviews and/or correspondence with US Department of Justice officials and
additional state prosecutors. We interviewed nine family members of people currently in
custody, as well as 180 defense attorneys, service providers (including those working for
harm reduction programs such as syringe exchanges, voluntary treatment programs, and
court-mandated treatment programs), and local and national advocates.
Where attorneys introduced us to clients with open cases, we reviewed court documents
wherever possible and corroborated information with the attorney. In other cases, we also
reviewed case files provided by defendants or available to the public online. However,
because of the sheer number of interviews we conducted, limited public access to case
information in some jurisdictions, and respect for individuals’ privacy, we did not review
case information or contact attorneys for all interviewees. We also could not seek the
prosecutor’s perspective on specific cases because of confidentiality. We therefore
present people’s stories mostly as they and their attorneys told them to us.4
Human Rights Watch submitted a series of data requests regarding arrests, prosecutions,
case outcomes, and correctional population for drug offenses to a number of government
bodies, including the Federal Bureau of Investigation (FBI) and various state court
administrations, statistical analysis centers, sentencing commissions, departments of
correction, clerks of court, and other relevant entities. We chose to make data requests
based on which states had centralized systems and/or had statutes or criminal justice
trends that were particularly concerning. Attempts to request data were made through

4 For most stories in this report, we footnote as a source only our interview with the person directly affected. However, in the

majority of interviews in Texas and Louisiana, the person’s attorney initially provided or later verified case information (for
example, drug quantity, plea offers, prior convictions, and sentencing ranges). In all such cases, we obtained individuals’
consent to speak with their attorney about the case. In some cases in Florida, Texas, and Louisiana, information was also
verified through publicly available documents.

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OCTOBER 2016

email, facsimile, and/or phone to one or more entities in the following states: Alabama,
California, Florida, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, New
York, Oklahoma, Texas, and Wisconsin. Among those, the FBI, Alabama Sentencing
Commission, Florida Office of State Court Administrator, New York Division of Criminal
Justice Services, New York Department of Corrections and Community Supervision, Texas
Department of Criminal Justice, and Texas Office of Court Administration provided data to
us.5 Because of complications with the data file the FBI provided to us, we used the same
set of data provided to and organized by the Inter-University Consortium for Political and
Social Research.6 We also analyzed data available online from the US Department of
Justice’s Bureau of Justice Statistics and some state agencies.
As this report was going to press, the FBI released aggregated 2015 arrest data. We have
used this 2015 data to update all nationwide arrest estimates for drug possession and
other offenses in this report. However, for all state-by-state arrest and racial disparities
analyses, we relied on 2014 data, as these analyses required disaggregated data as well
as data from non-FBI sources and 2014 remained the most recent year for which such data
was available.
Although the federal government continues to criminalize possession of drugs for personal
use, in practice comparatively few federal prosecutions are for possession. This report
therefore focuses on state criminalization, although we call for decriminalization at all
levels of government.
A note on state selection:
We spent a month at the start of this project defining its scope and selecting states on which
we would focus, informed by phone interviews with legal practitioners and state and
national advocates, as well as extensive desk research. We chose to highlight Louisiana,

5 We also received a partial dataset from Mississippi,

but the file was incomplete and we were unable to draw conclusions
from it. Although we made multiple attempts to clarify and obtain a representative dataset, it was not possible. Oklahoma
provided data to us regarding arrests and prosecution charges. A thorough analysis of that data is beyond the scope of this
report.

6 See United States Department of Justice, Federal Bureau of Investigation, “Uniform Crime Reporting Program Data: Arrests

by Age, Sex, and Race, Summarized Yearly, 2014,” March 9, 2016, http://www.icpsr.umich.edu/icpsrweb/NACJD/studies
/36400/version/1 (accessed September 21, 2016).

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Texas, Florida, and New York because of a combination of problematic laws and enforcement
policies, availability of data and resources, and positive advocacy opportunities.
This report focuses on Louisiana because it has the highest per capita imprisonment rate
in the country and because of its problematic application of the state habitual offender law
to drug possession, resulting in extreme sentences for personal drug use. The report
focuses on Texas because of extensive concerns around its pretrial detention and jail
system, its statutory classification of felony possession by weight, and its relatively softer
treatment of marijuana possession as compared to other drugs. We also emphasize the
potential for substantial criminal justice reform in both states—which stakeholders and
policymakers are already considering—and the opportunity for state officials at all levels to
set an example for others around the country.
While this report focuses more heavily on Louisiana and Texas, we draw extensively from
data and interviews in Florida and New York. We selected Florida because of its experience
with prescription painkiller laws and the codification of drug possession over a certain
weight as “trafficking.” We selected New York as an example of a state in which low-level
(non-marijuana) drug possession is a misdemeanor and does not result in lengthy
incarceration, and yet criminalization continues to be extremely disruptive and harmful to
those who use drugs and to their broader communities. New York shows us that
reclassification of drug possession from a felony to a misdemeanor, while a positive step, is
insufficient to end the harms of criminalization, especially related to policing and arrests.
As described in the Background section, all states criminalize drug possession, and the
majority make it a felony offense. As our data shows, most if not all states also arrest in
high numbers for drug possession and do so with racial disparities. Thus, although we did
not examine the various stages of the criminal process in more than these four states, we
do know that the front end (the initial arrest) looks similar in many states. It is likely, as
people move through the criminal justice system, that many of the problems that we
documented in New York, Florida, Texas, and Louisiana are also experienced to varying
degrees in other states. At the same time, there may be additional problems in other states
that we have not documented. Wherever possible throughout the report, we draw on data
and examples from other states and at the national level.

19

OCTOBER 2016

We are grateful to officials in Texas, Florida, and New York for their transparency in
providing us remarkable amounts of data at no cost.7 We regret our inability to obtain data
from Louisiana. For 15 of Louisiana’s 41 judicial districts, plus the Orleans Criminal District
Court, we made data requests to the clerk of court by phone, email, and/or facsimile. None
was able to provide the requested information, and those who responded said they did not
retain such data.
A note on terminology:
Although most states have a range of offenses that criminalize drug use, this report
focuses on criminal drug possession and drug paraphernalia as the most common
offenses employed to prosecute drug use (other offenses in some states include, for
example, ingestion or purchase of a drug). Our position on decriminalization—and the
harm wrought by enforcement of drug laws—extends more broadly to all offenses
criminalizing drug use.
When we refer to “drug possession” in this report, we mean possession of drugs for
personal use, as all state statutes we are aware of do. Like legal practitioners and others,
we sometimes refer to it synonymously as “simple possession.” Possession of drugs for
purposes other than personal use, such as for distribution, is typically noted as such in
laws and conversation (for example, “possession with intent to distribute,” which we
discuss in this report as well).
Not all drugs are criminalized: many substances are regulated by the US Food and Drug
Administration (FDA), but are not considered “controlled substances” subject to
criminalization. This report is about “illicit drugs” as they are understood in public
discourse, the so-called “war on drugs,” and state and federal laws such as the Controlled
Substances Act.8 For simplicity, however, when we refer to “drugs” in this report, we mean
illicit drugs.

7 We received over 6 million entries from Florida state courts alone.
8 21 USC sec. 812.

EVERY 25 SECONDS

20

Many people who use drugs told us the language of addiction was stigmatizing to them,
whether or not they were dependent on drugs.9 Because drug dependence is a less
stigmatizing term, we used it where appropriate in our interviews and in this report to
discuss the right to health implications of governments’ response to drug use and
interviewees’ self-identified conditions. In so doing, we relied upon the definition of
substance dependence as laid out in the American Psychiatric Association’s Diagnostic

and Statistical Manual of Mental Disorders (Fourth Edition) (also known as DSM-IV).
Factors for a diagnosis of dependence under DSM-IV focus on individuals’ loss of ability to
control their drug use.10

9 The American Society of Addiction Medicine defines addiction as follows: “Addiction is a primary, chronic disease of brain

reward, motivation, memory and related circuitry. Dysfunction in these circuits leads to characteristic biological,
psychological, social and spiritual manifestations. This is reflected in an individual pathologically pursuing reward and/or
relief by substance use and other behaviors.” American Society of Addiction Medicine, Public Policy Statement: Definition of
Addiction, April 19, 2011, http://www.asam.org/quality-practice/definition-of-addiction (accessed July 14, 2016)
10 To have substance dependence,

DSM-IV requires a person to have three or more of the following in a 12-month period:
tolerance (marked increase in amount; marked decrease in effect); characteristic withdrawal symptoms; substance taken to
relieve withdrawal; substance taken in larger amount and for longer period than intended; persistent desire or repeated
unsuccessful attempt to quit; much time/activity to obtain, use, recover; important social, occupational, or recreational
activities given up or reduced; use continues despite knowledge of adverse consequences (e.g., failure to fulfil role
obligation, use when physically hazardous). American Psychiatric Association, ed., Diagnostic and Statistical Manual of
Mental Disorders (Fourth Edition) (Washington, DC: American Psychiatric Association, 2000). In 2013, DSM-5 was published.
The fifth edition combines substance abuse and substance dependence, as defined by DSM-IV, into one category,
“substance abuse disorder,” which is measured on a continuum. This edition also adds several more symptoms by which to
diagnose someone with such a “disorder.” Because most interviewees and a number of sources we reference invoked the
DSM-IV definition of dependence, we depend on that definition in this report. For an alternative definition of dependence,
see World Health Organization, “Management of substance abuse: Dependence syndrome,” undated,
http://www.who.int/substance_abuse/terminology/definition1/en/ (accessed September 12, 2016) (“dependence
syndrome [is] a cluster of physiological, behavioural, and cognitive phenomena in which the use of a substance or a class of
substances takes on a much higher priority for a given individual than other behaviours that once had greater value. A
central descriptive characteristic of the dependence syndrome is the desire (often strong, sometimes overpowering) to take
the psychoactive drugs (which may or not have been medically prescribed), alcohol, or tobacco.”).

21

OCTOBER 2016

I. The Human Rights Case for Decriminalization
Human Rights Watch and the American Civil Liberties Union oppose the criminalization
of personal use of drugs and possession of drugs for personal use. We recognize that
governments have a legitimate interest in preventing societal harms caused by drugs
and in criminalizing harmful or dangerous behavior, including where that behavior is
linked to drug use. However, governments have other means beyond the criminal law to
achieve those ends and need not pursue a criminalization approach, which violates
basic human rights and, as this report documents, causes enormous harm to
individuals, families, and communities.
On their face, laws criminalizing the simple possession or use of drugs constitute an
unjustifiable infringement of individuals’ autonomy and right to privacy. The right to
privacy is broadly recognized under international law, including in the International
Covenant on Civil and Political Rights11 and the American Convention on Human Rights.12
Limitations on the right to privacy, and more broadly on an individual’s autonomy, are
only justifiable if they serve to advance a legitimate purpose; if they are both
proportional to and necessary to achieve that purpose; and if they are nondiscriminatory. Criminalizing drug use fails this test.
Governments and policymakers have long argued that laws criminalizing drug use are
necessary to protect public morals;13 to deter problematic drug use and its sometimes

11 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.

Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, art. 17.
12 American Convention on Human Rights (“Pact of San José, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series

No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the
Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), art. 11.
13 Peter Wehner, “GOP should stand firm against drug legalization,” Washington Post, April 2, 2013,
https://www.washingtonpost.com/opinions/gop-should-stand-firm-against-drug-legalization/2013/04/02/32bd5f7a-915c11e2-bdea-e32ad90da239_story.html (accessed July 20, 2016) (“In taking a strong stand against drug use and legalization,
Republicans would align themselves with parents, schools and communities in the great, urgent task of any civilization:
protecting children and raising them to become responsible adults…. [D]rug use is wrong because it is morally problematic,
because of what it can do to mind and soul…. The shaping of human character is preeminently — overwhelmingly — the task
of parents, schools, religious institutions and civic groups. But government can play a role.”); Douglas Husak and Peter de
Marneffe, The Legalization of Drugs (New York: Cambridge University Press, 2005), pp. 77-79.

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corrosive effects on families, friends, and communities; to reduce criminal behavior
associated with drugs;14 and to protect drug users from harmful health consequences.15
While these are legitimate government concerns, criminalization of drug possession does
not meet the other criteria. It is not proportional or necessary to achieve those government
goals and is often implemented in discriminatory ways. Indeed, it has not even proven
effective: more than four decades of criminalization have apparently had little impact on
the demand for drugs or on rates of use in the United States.16 Criminalization can also
undermine the right to health of those who use.17
Instead, governments have many non-penal options to reduce harm to people who use
drugs, including voluntary drug treatment, social support, and other harm reduction
measures. Criminalization of drug use is also not necessary to protect third parties from
harmful actions performed under the influence of drugs, and the notion that harmful or
criminal conduct is an inevitable result of drug use is a fallacy.18 Governments can and
do criminalize negligent or dangerous behavior (such as driving under the influence or
endangering a child through neglect) linked to drug use, without criminalizing drug use
itself. This is precisely the approach US laws take with regard to alcohol consumption.
Those who favor criminalization of drug use often emphasize harms to children. While
governments have important obligations to take appropriate measures—legislative,

14 Drug Enforcement Administration, “Speaking Out Against Drug Legalization,” 2010, https://www.dea.gov/pr/multimedia-

library/publications/speaking_out.pdf (accessed July 20, 2016), p. 14 (“Crime, violence, and drug use go hand-in-hand.”).
15 Ibid., p. 13 (“Drug use is regulated and access to drugs is controlled because drugs can be harmful. There is a popular

misconception that some illegal drugs can be taken safely….”); Peter Wehner, “GOP should stand firm against drug
legalization” (“Drug legalization will lead to more cases of addiction, which shatters lives.”).
16 See section X, How Criminalization Undermines Health.
17 Ibid.
18 Human Rights Watch, A Red Herring: Marijuana Arrestees Do Not Become Violent Felons, November 2012,
https://www.hrw.org/report/2012/11/23/red-herring/marijuana-arrestees-do-not-become-violent-felons; Human Rights
Watch, Targeting Blacks: Drug Law Enforcement and Race in the United States, May 2008,
https://www.hrw.org/sites/default/files/reports/us0508_1.pdf, p. 11 (“A federal survey of state prisoners nationwide
revealed that among drug offenders, 58 percent had no history of violence or high-level drug activity; 35 percent had criminal
histories limited to drug offenses; 21 percent were serving a sentence for a first-time offense; and 43 percent were convicted
of drug possession.”). To the extent drug law proponents argue the drug trade is itself violent, much of that violence is a
result of criminalization, which dramatically enhances the profitability of illicit drug markets and fuels the growth and
operations of groups responsible for large-scale violence and corruption. For the human rights implications of global drug
control policies, see Maria McFarland (Human Rights Watch), “The Human Rights Case for Drug Reform,” 2014,
https://www.hrw.org/world-report/2014/essays/human-rights-case-for-drug-reform.

23

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administrative, social, and educational—to protect children from the harmful effects of
drug use,19 imposing criminal penalties on children for using or possessing drugs is not
the answer. States should not criminalize adult drug use on the grounds that it protects
children from drugs.
Worldwide, the practical realities of governments’ efforts to enforce criminal prohibitions
on drug use have greatly compounded the urgent need to end those prohibitions.
Criminalization has often gone hand-in-hand with widespread human rights violations
and adverse human rights impacts—while largely failing to prevent the possession or use
of drugs.20 And rather than protecting health, criminalization of drug use has in fact
undermined it.21
These grim realities are on stark display in the United States. This report describes the
staggering human rights toll of drug criminalization and enforcement in the US. Not only
has the government’s “war on drugs” failed on its own terms, but it has needlessly
ruined countless lives through the crushing direct and collateral impacts of criminal
convictions, while also erecting barriers that stand between people struggling with drug
dependence and the treatment they may want and need.
In the United States the inherent disproportionality of criminalizing drug use has been
greatly amplified by abusive laws. Sentences imposed across the US for drug possession
are often so excessive that they would amount to disproportionate punishment in
violation of human rights law even if criminalization were not per se a human rights
problem.22 In many US states these excessive sentences take the form of lengthy periods
19 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A

(XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, signed
by the United States October 5, 1977, art. 12(2)(a); Convention on the Rights of the Child (CRC), adopted November 20, 1989,
G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990,
art 24.
20 Maria McFarland (Human Rights Watch), “The Human Rights Case for Drug Reform.”
21 Ibid. In many countries, criminalization also impedes the use of drugs for legitimate medical research and prevents
patients from accessing drugs for palliative care and pain treatment. Human Rights Watch, Abandoned in Agony: Cancer and
the Struggle for Pain Treatment in Senegal, October 2013, https://www.hrw.org/report/2013/10/24/abandonedagony/cancer-and-struggle-pain-treatment-senegal.
22 Human Rights Watch, Nation Behind Bars: A Human Rights Solution, May 2014,

https://www.hrw.org/sites/default/files/related_material/2014_US_Nation_Behind_Bars_0.pdf; UN Human Rights
Committee, General Comment No. 31: The Nature of the General Legal Obligation on States Parties to the Covenant (Eightieth
session, 2004), U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 6; Inter-American Court of Human Rights, Gangaram-

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of incarceration (especially when someone is sentenced as a “habitual offender” for
habitual drug use), onerous probation conditions that many interviewees called a set-up
for failure, and sometimes crippling fines and fees.23
This report also describes a range of other human rights violations and harms
experienced by people who use drugs and by entire families and communities as a result
of criminalization, in addition to the punishments imposed by law. For instance,
enforcement of drug possession laws has a discriminatory racial impact at multiple
stages of the criminal justice process, beginning with selective policing and arrests.24 In
addition, enforcement of drug possession laws unfairly burdens the poor at almost every
step of the process, from police encounters, to pretrial detention, to criminal justice debt
and collateral consequences including exclusion from public benefits, again raising
questions about equal protection rights.25
Many of the problems described in this report are not unique to drug cases; rather, they
reflect the broader human rights failings of the US criminal justice system. That fact
serves only to underscore the practical impossibility of addressing these problems
through incremental changes to the current criminalization paradigm. It also speaks to
the urgency of removing drug users—people who have engaged in no behavior worthy of
criminalization—from a system that is plagued with broader and deeply entrenched
patterns of human rights abuse and discrimination.

Panday Case, Judgement of January 21, 1994, Inter-Am Ct. H.R., (Ser. C) No. 16 (1994), paras. 47-48. The European Court of
Human Rights has explicitly recognized the principle of proportionality in punishment, as have many common law
jurisdictions. See, for example, European Court of Human Rights, Vinter v. United Kingdom, judgement of July 9, 2013, nos.
66069/09, 130/10, and 3896/10, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122664;
Canada Criminal Code 718.1 (“A sentence must be proportionate to the gravity of the offence and the degree of responsibility
of the offender.”); Evelyn Ellis, ed., The Principle of Proportionality in the Laws of Europe (Portland: Hart Publishing, 1999).
Disproportionately long prison terms may also violate the prohibition on cruel and inhuman punishment, and may constitute
arbitrary deprivations of liberty in violation of the right to liberty.
23 See section VII, Sentencing by the Numbers, and section VIII, Living Under a Dark Cloud: Probation and Criminal Justice
Debt.
24 ICCPR art. 26. See also Racial Disparities in section III, The Size of the Problem: Arrests for Drug Use Nationwide.
25 For people who use drugs as well as for their families and communities, arrest, prosecution, conviction,

and/or
incarceration for drug possession impact their enjoyment of many other human rights as well. These rights include but are
not limited to the right to family unity; the rights of the child; the right to freedom of movement; the right to work; the right to
adequate standard of living, including adequate food, clothing, and housing; the right to social security; the right to
education; and the right to vote and take part in the conduct of public affairs.

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Rather than criminalizing drug use, governments should invest in harm reduction
services and public education programs that accurately convey the risks and potential
harms of drug use, including the potential to cause drug dependence. Harm reduction
is a way of preventing disease and promoting health that “meets people where they
are” rather than making judgments about where they should be in terms of their
personal health and lifestyle.26 Harm reduction programs focus on limiting the risks
and potential harms associated with drug use and on providing a gateway to drug
treatment for those who seek it.
Implementing harm reduction practices widely is not just sound public health policy; it is
a human rights imperative that requires strong federal and state leadership.27 The federal
government has taken some important steps to promote harm reduction,28 as have some
state and local entities.29

26 Human Rights Watch, We Know What to Do: Harm Reduction and Human Rights in North Carolina, September 2011,

https://www.hrw.org/sites/default/files/related_material/us0911brochurewebwcover_0.pdf; Human Rights Watch, In
Harm’s Way: State Response to Sex Workers, Drug Users and HIV in New Orleans, December 2013,
https://www.hrw.org/report/2013/12/11/harms-way/state-response-sex-workers-drug-users-and-hiv-new-orleans.
27 ICESCR, arts. 2 and 12; UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: Article 12: The

Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (2000). The UN Committee on Economic, Social
and Cultural Rights has interpreted the article 12 of the Covenant on Economic, Social and Cultural Rights to require, at a
minimum, that states ensure a range of harm reduction interventions, including needle and syringe programs; opioid
substitution therapy; overdose prevention; youth focused harm reduction services; and prison harm reduction. Committee
on Economic, Social, and Cultural Rights (CESCR), Consideration of reports submitted by States parties under articles 16 and
17 of the Covenant, Concluding Observations: Russian Federation, U.N. Doc. E/C.12/RUS/CO/5 (2011), para. 29; Concluding
Observations: Tajikistan, U.N. Doc. E/C.12/TJK/CO/1 (2006), para. 70; Concluding Observations: Ukraine, UN Doc No
E/C.12/UKR/CO/5 (2007), paras. 28 and 51; Concluding Observations: Poland, U.N. Doc. E/C.12/POL/CO/5 (2009);
Concluding Observations: Kazakhstan, U.N. Doc. E/C.12/KAZ/CO/1 (2010); Concluding Observations: Mauritius, U.N. Doc.
E/C.12/MUS/CO/4 (2010). While not binding on the US (which has signed but not ratified the ICESCR), this interpretation
should be taken as important interpretive guidance to the general human rights obligation to ensure adequate medical care
and social services to protect health.
28 On December 18, 2015, for example, President Obama signed the 2016 Consolidated Appropriations Act, allowing federal
funds to be used for some aspects of syringe exchange programs. AIDS.gov, “Department of Health and Human Services
Implementation Guidance to Support Certain Components of Syringe Services Programs, 2016,” March 29, 2016,
https://www.aids.gov/pdf/hhs-ssp-guidance.pdf (accessed July 20, 2016). See also Office of National Drug Control Policy,
“National Drug Control Budget: FY 2017 Funding Highlights,” February 2016,
https://www.whitehouse.gov/sites/default/files/ondcp/press-releases/fy_2017_budget_highlights.pdf (accessed July 20,
2016); The White House, “FACT SHEET: Administration’s Drug Control Budget Represents Balanced Approach to Public Health
and Public Safety,” February 9, 2016, https://www.whitehouse.gov/the-press-office/2016/02/09/fact-sheetadministrations-drug-control-budget-represents-balanced (accessed July 20, 2016).
29 David Klepper, “The mayor of Ithaca, NY, wants to make his city the first in the nation to provide a space where heroin

addicts can shoot up under a nurse's care without getting arrested by police,” Associated Press, February 22, 2016,
http://www.usnews.com/news/us/articles/2016-02-22/apnewsbreak-mayor-wants-supervised-heroin-injection-site
(accessed July 20, 2016); in Colorado, Governor John Hickenlooper signed SB15-53 and SB15-116 into law on April 3, 2015; in
California, Governor Jerry Brown signed AB 1535 and AB 1743 into law in September 2014.

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26

However, the continued focus on criminalization of drug use—and the aggressiveness
with which that is pursued by many public officials—runs counter to harm reduction. This
report calls for a radical shift away from criminalization, towards health and social
support services. Human rights principles require it.

27

OCTOBER 2016

II. Background
The “War on Drugs”
For four decades, federal and state measures to battle the use and sale of drugs in the US
have emphasized arrest and incarceration rather than prevention and treatment. Between
1980 and 2015, arrests for drug offenses nearly tripled, rising from 580,900 arrests in 1980
to 1,488,707 in 2015.30 Of those total arrests, the vast majority (78 percent in 1980 and 84
percent in 2015) have been for possession.31
Yet drug possession was not always criminalized. For much of the 19th century, opiates
and cocaine were largely unregulated in the US. Regulations began to be passed towards
the end of the 19th and at the start of the 20th century—a time when the US also banned
alcohol. Early advocates for prohibitionist regimes relied on moralistic arguments
against drug and alcohol use, along with concerns over health and crime. But many
experts also point to the racist roots of early prohibitionist efforts, as certain drugs were
associated in public discourse with particular marginalized races (for example, opium
with Chinese immigrants).32
The US has also been a major proponent of international prohibition, and helped to push
for the passage of the three major international drug control conventions beginning in the
1960s.33 The purpose of the conventions was to combat drug abuse by limiting possession,

30 Tina L. Dorsey and Priscilla Middleton, “Drugs and Crime Facts,” Bureau of Justice Statistics,

http://www.bjs.gov/content/pub/pdf/dcf.pdf (accessed August 15, 2016), p. 59; Federal Bureau of Investigation, 2015 Crime
in the United States, Table 29: Estimated Number of Arrests, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.2015/tables/table-29 (accessed September 27, 2016).
31 Howard N. Snyder and Joseph Mulako-Wangota, Bureau of Justice Statistics, National Estimate, Generated using the Arrest

Data Analysis Tool at http://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm (accessed August 15, 2016); Federal
Bureau of Investigation, 2015 Crime in the United States, Persons Arrested, https://ucr.fbi.gov/crime-in-the-u.s/2015/crimein-the-u.s.-2015/persons-arrested/persons-arrested (accessed September 27, 2016).
32 Michelle Alexander, The New Jim Crow (New York: The New Press, 2012); Jamie Fellner, “Race, Drugs, and Law Enforcement
in the United States,” Stanford Law & Policy Review, vol. 20 (2009),https://journals.law.stanford.edu/sites/default/
files/stanford-law-policy-review/print/2009/06/fellner_20_stan._l._poly_rev._257.pdf (accessed August 1, 2016), pp. 257292; Fatema Gunja, “Position Paper: Race and the War on Drugs,” ACLU, May 2003,https://www.aclu.org/files/
FilesPDFs/ACF4F34.pdf (accessed August 1, 2016).
33 These are comprised of the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, the Convention

on Psychotropic Substances of 1971, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances of 1988. UNTS vol. 976, No. 14152; UNTS vol. 1019, No. 14956; and UNTS vol. 1582, No. 27627; see

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use, and distribution of drugs exclusively to medical and scientific purposes and by
implementing measures against drug trafficking through international cooperation.34
In 1971, President Richard Nixon announced that he was launching a “war on drugs” in the
US, dramatically increasing resources devoted to enforcing prohibitions on drugs, using
the criminal law. He proclaimed, “America’s public enemy number one in the United States
is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out
offensive.”35 There are reasons to believe that the declaration of the “war on drugs” was
more political in nature than a genuine response to a public health problem.36
Over the next decade, the “war on drugs” combined with a larger “tough on crime” policy
approach, whose advocates believed harsh mandatory punishments were needed to
restore law and order to the US. New laws increased the likelihood of a prison sentence
even for low-level offenses, increased the length of prison sentences, and required
prisoners to serve a greater proportion of their sentences before any possibility of review.
These trends impacted drug offenses as well as other crimes.37
The new drug laws contributed to a dramatic rise in the prison population.38 Between 1980

also United Nations Office of Drugs and Crime, The International Drug Control Conventions, compiled November 2013,
https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Ebook/The_International_Drug_Cont
rol_Conventions_E.pdf (accessed September 21, 2016).
34 Ibid. However, the treaties do not require that drug use constitute a criminal offense. The Commentary to the 1988
Convention regarding Article 3 of the Convention on “Offences and Sanctions” makes this explicit: “It will be noted that, as
with the 1961 and 1971 Conventions, paragraph 2 does not require drug consumption as such to be established as a
punishable offence.” The 1988 Convention does state, however, that a member state should consider possession for
personal use as a crime but, even so, this provision is “subject to its constitutional principles and the basic concepts of its
legal system.” Commentary on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, U.N. Doc. E/CN7/590 (1988), http://www.unodc.org/documents/treaties/organized_crime/Drug%20
Convention/Commentary_on_the_united_nations_convention_1988_E.pdf. See also Martin Jelsma and Amira Armenta, “The
UN Drug Control Conventions: A Primer,” The Transnational Institute, October 2015, https://www.tni.org/files/publicationdownloads/primer_unconventions_24102015.pdf (accessed July 30, 2016).
35 Richard Nixon, “Remarks About an Intensified Program for Drug Abuse Prevention and Control,” June 17, 1971, reproduced

by Gerhard Peters and John T. Woolley, The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=3047
(accessed July 30, 2016).
36 Dan Baum, “Legalize It All: How to Win the War on Drugs,” Harper’s Magazine, April 2016, http://harpers.org/archive/

2016/04/ legalize-it-all/ (accessed August 21, 2016).
37 Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2(B), March

1997, http://hrw.org/reports/1997/usny/.
38 Rob Allen, “Global Prison Trends 2015,” Penal Reform International, 2015, http://www.penalreform.org/wp-

content/uploads/2015/04/PRI-Prisons-global-trends-report-LR.pdf (accessed July 21, 2016).

29

OCTOBER 2016

and 2003 the number of drug offenders in state prisons grew twelvefold.39 By 2014, an estimated
208,000 men and women were serving time in state prisons for drug offenses, constituting
almost 16 percent of all state prisoners.40 Few of those entering prison because of drug offenses
were kingpins or major traffickers.41 A substantial number were convicted of no greater offense
than personal drug use or possession. In 2014, nearly 23 percent of those in state prisons for drug
offenses were incarcerated simply for drug possession.42 Because prison sentences for drug
possession are shorter than for sales, rates of admission are even more telling: in 2009 (the most
recent year for which such data is available), about one third of those entering state prisons for
drug offenses (for whom the offense was known) were convicted of simple drug possession.43

Drug Use in the United States
More than half of the US adult population report having used illicit drugs at some point in their
lifetime, and one in three adults reports having used a drug other than marijuana.44
The US Department of Health and Human Services’ Substance Abuse and Mental Health
Services Administration (SAMHSA) conducts an annual survey of nearly 70,000 Americans over
the age of 12 to produce the standard data used to research drug use. According to SAMHSA,
51.8 percent of adults reported lifetime use in 2014.45 Moreover, 16.6 percent of the adult

39 Marc Mauer and Ryan S. King, “A 25-Year Quagmire: The War on Drugs and Its Impact on American Society,” The

Sentencing Project, September 2007, http://www.sentencingproject.org/wp-content/uploads/2016/01/A-25-Year-QuagmireThe-War-On-Drugs-and-Its-Impact-on-American-Society.pdf (accessed September 21, 2016), fig. 2.
40 E. Ann Carson, Ph.D., “Prisoners in 2014,” US Department of Justice, Bureau of Justice Statistics, September 2015,

http://www.bjs.gov/content/pub/pdf/p14.pdf (accessed September 21, 2016), table 11. Over 50 percent of federal prisoners
were incarcerated for drug offenses. Ibid., table 12.
41 Many are low-level street-level dealers, couriers, and other bit players in the drug trade. See Human Rights Watch,

Targeting Blacks, p. 12.
42 E. Ann Carson, Ph.D., “Prisoners in 2014,” table 11.
43 Thomas P. Bonczar et al., “National Corrections Reporting Program: Most Serious Offense Of State Prisoners, By Offense,

Admission Type, Age, Sex, Race, And Hispanic Origin,” Bureau of Justice Statistics, May 5, 2011, http://www.bjs.gov/
index.cfm?ty=pbdetail&iid=2065 (accessed August 15, 2016).
44 Human Rights Watch analysis of US Department of Health and Human Services, Substance Abuse and Mental Health

Services Administration (SAMHSA), 2014 National Survey on Drug Use and Health public-use dataset.
45 Further, 57.9 percent of surveyed persons aged 18-25 reported lifetime use. For persons aged 26 or older, 50.8 percent

reported lifetime use. US Department of Health and Human Services, Substance Abuse and Mental Health Services
Administration (SAMHSA), “Results from the 2014 National Survey on Drug Use and Health: Detailed Tables,” September 10,
2015, http://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs2014/NSDUH-DetTabs2014.pdf (accessed
September 21, 2016), tables 1.23B and 1.19B.

EVERY 25 SECONDS

30

population had used illicit drugs in the past year, while one in ten had used such drugs in the
past month.46
Lifetime rates of drug use are highest among white adults for all drugs in total, and for
specific drugs such as marijuana, cocaine (including crack), methamphetamine, and nonmedical use of prescription drugs. Latino and Asian adults use most drugs at substantially
lower rates.47
(See Figure 1 on following page)

46 Ibid., table 1.23B. Rates of use are highest for the age range 18-25: 36.1 percent used in the past year, and 22.0 percent

used in the past month. Ibid., table 1.21B.
47 Human Rights Watch analysis of US Department of Health and Human Services, Substance Abuse and Mental Health

Services Administration (SAMHSA), 2014 National Survey on Drug Use and Health public-use dataset.

31

OCTOBER 2016

For more recent drug use, for example use in the past year, Black, white, and Latino adults
use drugs other than marijuana at very similar rates. For marijuana, 16 percent of Black

EVERY 25 SECONDS

32

adults reported using in the past year compared to 14 percent of white adults and about 11
percent of Latino adults:

33

OCTOBER 2016

State Drug Possession Laws
All US states currently criminalize the possession of illicit drugs.48 Different states have
different statutory schemes, choosing between misdemeanors and felonies, making
distinctions based on type and/or quantities of drugs, and sometimes treating second or
subsequent offenses more harshly. State sentences range from a fine, probation, or under
one year in jail for misdemeanors, up to a lengthy term in prison—for example, 10 or 20
years—for some felony possession offenses or, when someone is sentenced under some
states’ habitual offender laws, potentially up to life in prison.
While some states have decriminalized possession of small amounts of marijuana,
other states still make marijuana possession a misdemeanor or even a felony.49 No
state has decriminalized possession of drugs other than marijuana. As to “schedule I
and II” drugs (which include heroin, cocaine, methamphetamines, and most commonly
known illicit drugs), eight states and the District of Columbia treat possession of small
amounts a misdemeanor, including New York.50 In the remaining 42 states, possession

48 Federal law also criminalizes possession of drugs for personal use, although federal drug enforcement

is focused on drug
sales. Under the Controlled Substances Act, penalties for possession may be substantially lighter than in many states.
Possession of small amounts of drugs (including cocaine, heroin, and methamphetamines) is a misdemeanor on the first
offense and may be charged as a felony on the second or subsequent offense. 21 USC sec. 844. In practice for most
jurisdictions, comparatively few simple drug possession cases are brought by federal prosecutors. However, according to a
new US Sentencing Commission report, between 2008 and 2013, there was a significant rise in federal possession
prosecutions. This was caused almost exclusively by large-scale marijuana possession cases near the Mexican border in
Arizona. Although the average weight of other federal possession cases was 5 grams of marijuana, in border cases it was
22,000 grams. Melissa K. Reimer, “Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice
System,” US Sentencing Commission, September 2016, http://www.ussc.gov/sites/default/files/pdf/research-andpublications/research-publications/2016/201609_Simple-Possession.pdf (accessed September 23, 2016). This amount
suggests that federal prosecutors in Arizona were using simple possession charges in cases in which they may have
suspected distribution was involved.
49 Colorado, Washington, Alaska, Oregon, and the District of Columbia have legalized possession of marijuana for personal
use by persons 21 and older. Sixteen other states treat marijuana possession either as a fine-only misdemeanor or as an
administrative or civil infraction, much like a traffic ticket. See section XI, The Way Forward.
50 However, some provide for relatively low weight thresholds, over which possession becomes a felony. Misdemeanor

states include Alaska (as of 2016), California, Delaware (under 1 gram of morphine/heroin/opiates, 5 grams of
cocaine/methamphetamine/PCP), Maryland, New York (up to 0.5 grams of cocaine, one-eighth ounce of heroin, or one-half
ounce of methamphetamines), Pennsylvania, Vermont (up to 2.5 grams of cocaine or methamphetamines or 0.2 grams of
heroin), and West Virginia. In Maryland and Pennsylvania, misdemeanor possession can carry a sentence of over 1 year. AS
11.71.050; CA Health and Safety Code secs. 11350, 11374, 11377; DE Tit. 16 sec. 4763; MD Code Crim. Law sec. 5-601; NY Penal
Code secs. 220.03, 220.06, 220.09; 35 PA Stat. sec. 780-113(a), (b); VT Stat. Ann. Tit. 18 secs. 4231, 4233; VT Stat. Ann. Tit.
13 sec. 1; WV Code sec. 60A-4-401. The same is true of the District of Columbia (though possession of PCP is a felony). DC
Code sec. 48-904.01. We do not include Mississippi in this count, because it only treats trace cases (possession of under 0.1
gram) as misdemeanors. MS Code sec. 41-29-139(c)(1).

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of small amounts of most illicit drugs other than marijuana is either always or sometimes
a felony offense.51
In addition to the “convicted felon” label, many felony possession laws provide for lengthy
sentences. Of the states we visited, Florida, Louisiana, and Texas classify possession of
most drugs other than marijuana as a felony, no matter the quantity, and provide for the
following sentencing ranges.
In Florida, simple possession of most drugs carries up to five years in prison.52 Florida drug
trafficking offenses are based simply on quantity triggers: simple possession can be
enough, without any evidence of trafficking other than the quantity.53 In Louisiana,
possession of most drugs other than heroin carries up to five years in prison, and heroin
carries a statutory minimum of four years in prison, up to a possible ten years.54 In Texas,
possession of under a gram of substances containing commonly known drugs including
cocaine, heroin, methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms
(or between four ounces and five pounds of marijuana) carries six months to two years.
One to four grams carries two to ten years.55 Texas judges may order the sentence to be
served in prison or may suspend the sentence and require a term of probation instead.

51 In a number of states, possession of a schedule I or II drug is a felony in all circumstances. In the states in which it is

sometimes, but not always, a felony, laws vary as follows: Connecticut (third offense is a felony), Iowa (third offense is a
felony), Maine (second offense is a felony in certain circumstances), Massachusetts (second offense heroin is a felony),
Minnesota (second offense is a felony), South Carolina (second offense is a felony; moreover, simple possession of meth
becomes a felony at 1 gram and possession of 2 grams or more of heroin or one gram or more of cocaine establishes prima
facie evidence of intent to distribute), Tennessee (third offense is a felony for heroin), Utah (third offense is a felony),
Wisconsin (heroin, other opiates, and meth are always a felony; most others (e.g. cocaine) are a misdemeanor on the first
offense but a felony thereafter), and Wyoming (third offense is a felony). CT Gen. Stat. sec. 21a-279; IA Stat. sec. 124.401(5);
ME Tit. 17-A sec. 1107-A; MA Gen. Laws Ch. 94c sec. 34; MN Stat. sec. 152.025 (effective August 1, 2016); SC Stat. secs. 44-53370(d), 44-53-375; TN Code Ann. secs. 39-17-418, 39-17-419; UT sec. 58-37-8; WI Code sec. 961.41(3g); WY Stat. sec. 35-71031.
52 Possession of up to 20 grams of marijuana is a misdemeanor. FL Penal Code sec. 893.13; FL Stat. sec. 775.082.
53 Under the trafficking provisions, simple possession of 1 gram of LSD, 4 grams of heroin, 7 grams of oxycodone, 10 grams of

MDMA, 14 grams of hydrocodone or methamphetamines, or 28 grams of cocaine or PCP is a trafficking offense, punished by
a mandatory minimum of three years in prison. Penalties increase as the quantity increases above additional thresholds. FL
Penal Code sec. 893.135; Families Against Mandatory Minimums, “How the Reforms to Prescription Drug Trafficking Laws
Affect Sentencing Policy in Florida,” undated, http://famm.org/states-map/florida/how-the-reforms-to-prescription-drugtrafficking-laws-affect-sentencing-policy-in-florida (accessed July 11, 2016).
54 A third offense for possession of marijuana is a felony punishable by up to two years. LA Rev. Stat. secs. 40:966, 40:967.
55 TX Health and Safety Code sec. 481.115; TX Penal Code secs. 12.34, 12.35. Possession of marijuana under four ounces is a

class A or B misdemeanor, depending on the weight. TX Health and Safety Code sec. 481.121. One ounce equals
approximately 28 grams.

35

OCTOBER 2016

On top of these baseline ranges, some states allow prosecutors to enhance the sentence
range for drug possession by applying habitual offender laws that treat defendants as
more culpable—and therefore deserving of greater punishment—because they have prior
convictions. For example, in Louisiana a person charged with drug possession who has
one or two prior felony convictions faces up to 10 years in prison. With three prior felony
convictions, a person charged with drug possession faces a mandatory minimum of 20
years to life in prison.56 In Texas, a person with two prior felony convictions who is charged
with possession of one to four grams of drugs faces 25 years to life.57
In 2009 (the most recent year for which such data is available), 50 percent of people arrested
for felony possession offenses in the 75 largest US counties had at least one prior felony
conviction, mostly for non-violent offenses.58 Thus the scope of potential application of the
habitual offender laws to drug possession cases is extensive for states that employ them.59

56 The operation of Louisiana’s habitual offender laws plays out largely as a math calculation. Possession of most drugs

carries a range of zero to five years in prison. However, if defendants have one prior felony, they face two-and-a-half years
under the habitual offender law (one-half the original statutory maximum of five) up to a maximum of ten (twice the statutory
maximum of five). If defendants have two priors, they face a minimum of three years and four months (one-third the original
statutory maximum of five) up to ten (again twice the statutory maximum). If they have three priors, on their fourth conviction
they immediately face a mandatory 20 years to life in prison. Heroin possession is even harsher. A defendant who is
convicted of heroin possession and has two prior heroin possession convictions (or two other “serious” felonies that carry
up to ten years or more, for example burglary) faces automatic life in prison. Moreover, while people convicted of first-time
non-violent offenses have to serve only 40 percent of their sentence (because of earned credits), people sentenced under the
habitual offender law must serve every day of the sentence. LA Rev. Stat. 15:529.1.
57 In Texas, persons charged with a state jail felony, the lowest category of felony class, face six months to two years.

However, if they have two prior state jail felonies, they face two to ten years. With a state jail felony charge and two prior
(regular) felony convictions, a defendant faces two to twenty years. With a felony charge and one prior felony, the person is
sentenced one felony class higher, meaning the range goes from two to ten years to two to twenty years, or from two to
twenty years to five to life. TX Penal Code sec. 12.42 et seq.
58 For 76 percent, the prior offense was non-violent. Brian A. Reaves, Ph.D., “Felony Defendants in Large Urban Counties,

2009 - Statistical Tables,” US Department of Justice, Bureau of Justice Statistics, December 2013, http://www.bjs.gov/
content/pub/pdf/fdluc09.pdf (accessed September 22, 2016), tables 10-11.
59 Some states limit their most severe enhancements to more serious violent crimes, meaning that drug possession does not

figure into their enhancement scheme in any way. For example, before Colorado passed SB 96 in 2011, Class 6 felony drug
possession quadrupled an offender’s base sentence; these offenses no longer trigger any habitual offender enhancements.
In 2011, Kentucky eliminated automatic enhancements for a number of subsequent drug offenses—including possession and
several prescription drug offenses. Additionally, first degree possession convictions no longer result in a second degree
habitual offender status after a subsequent non-drug conviction. Kentucky HB 463; Ram Subramanian and Rebecka Moreno,
“Drug War Détente? A Review of State-level Drug Law Reform, 2009-2013,” Vera Institute of Justice, April 2014,
http://archive.vera.org/sites/default/files/resources/downloads/state-drug-law-reform-review-2009-2013.pdf (accessed
August 1, 2016).

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36

III. The Size of the Problem: Arrests for Drug
Use Nationwide
Possession Arrests by the Numbers
Across the United States, police make more arrests for drug possession than for any other
crime. Drug possession accounts for more than one of every nine arrests by state law
enforcement agencies around the country.60
Although all states arrest a significant number of people for drug possession each year,
police focus on it more or less heavily in different states. For example, in California, one
of every six arrests in 2014 was for drug possession, while in Alaska the rate was one of
every 27.61
In 2015, state law enforcement agencies made more than 1.25 million arrests for drug
possession—and because not all agencies report data, the true number of arrests is higher.62
Even this estimate reveals a massive problem: 1.25 million arrests translates into an arrest
for drug possession every 25 seconds of each day.63

60 As this report was going to press, the FBI released aggregated 2015 arrest data. We have used this 2015 data to update all
nationwide arrest estimates for drug possession and other offenses in this report. However, for all state-by-state arrest and
racial disparities analyses we relied on 2014 data, as these analyses required disaggregated data as well as data from nonFBI sources and 2014 remained the most recent year for which such data was available. Federal Bureau of Investigation, 2015
Crime in the United States, Table 29: Estimated Number of Arrests, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-theu.s.-2015/tables/table-29 (accessed September 27, 2016). In 2015, there were 1,250,514 drug possession arrests. The next
closest offenses were larceny-theft (excluding car theft) (1,160,390 arrests), DUIs (1,089,171 arrests), and non-aggravated
assaults (1,081,019 arrests). These are the reported figures, not estimates, and because some agencies failed to report, the
true numbers are higher.
61 United States Department of Justice, Federal Bureau of Investigation, “Uniform Crime Reporting Program Data: Arrests by

Age, Sex, and Race, Summarized Yearly, 2014,” March 9, 2016, http://www.icpsr.umich.edu/icpsrweb/NACJD/
studies/36400/version/1 (accessed September 21, 2016). In using the terms “police” and “policing,” we refer broadly to
state and local law enforcement, including state sheriffs, state police, and city or other local police.
62 Many law enforcement agencies under-report or do not report data regularly to the FBI. For example, the New York City
Police Department and almost all agencies in Illinois and Alabama did not report in 2014. There was also under-reporting in
Hawaii and Washington, DC. The total number of 1.25 million arrests is an estimate that the FBI generates from the reported
data; however, the FBI does not impute arrests for non-reporting or under-reporting agencies. Federal Bureau of
Investigation, 2015 Crime in the United States, Table 29: Estimated Number of Arrests, https://ucr.fbi.gov/crime-in-theu.s/2015/crime-in-the-u.s.-2015/tables/table-29 (accessed September 27, 2016). For the FBI’s note on methodology, see
Federal Bureau of Investigation, “Table 69 Data Declaration,” 2016, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-theu.s.-2015/tables/table-69/tab69datadec_final.pdf (accessed September 27, 2016).
63 Ibid.

37

OCTOBER 2016

EVERY 25 SECONDS

38

Some states arrest significantly more people for drug possession than other states:

39

OCTOBER 2016

While the bulk of drug possession arrests are in large states such as California, Texas, and
New York, the list of hardest-hitting states looks different when mapped onto population
size. Maryland, Nebraska, and Mississippi have the highest per capita drug possession
arrest rates. For comparison, the rate of arrest for drug possession ranged from 700 per
100,000 people in Maryland to 77 per 100,000 in Vermont:

EVERY 25 SECONDS

40

The differences in drug arrest rates at the state level are all the more striking because drug
use rates are fairly consistent across the country. SAMHSA data shows that about 3
percent of US adults used an illicit drug other than marijuana in the past month.64 There is
little variation at the state level, where past month use ranges from about 2 percent in
Wyoming to a little over 4 percent in Colorado. For marijuana, there is slightly greater
variation. About 8 percent of US adults used marijuana in the past month, but this ranged
from about 5 percent in South Dakota to 15 percent in Colorado.65
While many public officials told us drug law enforcement is meant to get dealers off the
streets, the vast majority of people arrested for drug offenses are charged with nothing
more than possessing a drug for their personal use.66 For every person arrested for selling
drugs in 2015, four were arrested for possessing or using drugs—and two of those four
were for marijuana possession.67
Despite shifting public opinion on marijuana, about half of all drug possession arrests are
for marijuana.68 In 2015, there were over 574,640 arrests just for marijuana possession.69
By comparison, there were 505,681 arrests for violent crimes (which the FBI defines as
murder, non-negligent manslaughter, rape, robbery, and aggravated assault). This means

64 Substance Abuse and Mental Health Services Administration, “2013-2014 National Survey on Drug Use and Health: Model-

Based Prevalence Estimates (50 States and the District of Columbia),” 2014, http://www.samhsa.gov/data/sites/
default/files/NSDUHsaePercents2014.pdf (accessed September 22, 2016), table 6.
65 Ibid., table 3.
66 The FBI considers possession with intent to distribute (PWID) to be a sales/manufacturing offense rather than a

possession offense. Although it is up to the state agencies to classify drug arrests as either possession or
sales/manufacturing in reporting to the FBI, an FBI staff person told us she believed all state agencies reporting also treat
PWID as a sales rather than a possession offense. “Possession” in the FBI data thus refers to simple possession only, i.e.
possession for personal use. Human Rights Watch phone call with Criminal Justice Information Services staff, FBI, October
20, 2015. All public officials we interviewed also considered PWID a sales offense, and some state statutes lump them
together. The fact that the UCR does not distinguish between PWID and other sales arrests is unfortunate, because our
research suggests PWID may be improperly charged in simple possession cases.
67 The FBI codes arrest offenses by the most serious charge, so if a person were arrested for marijuana possession and

cocaine possession, the marijuana possession charge would not be included in this number. Federal Bureau of
Investigation, 2015 Crime in the United States, Persons Arrested, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.2015/persons-arrested/persons-arrested (accessed September 27, 2016).
68 Federal Bureau of Investigation, 2014 Crime in the United States, Persons Arrested. Additionally, 20 percent of possession

arrests are for opiates or cocaine, and the remaining 30 percent are for other drug types. United States Department of Justice,
Federal Bureau of Investigation, “Uniform Crime Reporting Program Data: Arrests by Age, Sex, and Race, Summarized Yearly,
2014,” March 9, 2016, http://www.icpsr.umich.edu/icpsrweb/NACJD/studies/36400/version/1 (accessed September 21,
2016).
69 Federal Bureau of Investigation, 2015 Crime in the United States, Persons Arrested, https://ucr.fbi.gov/crime-in-the-

u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested (accessed September 27, 2016).

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that police made almost 14 percent more arrests for simple marijuana possession than for
all violent crimes combined.70
Some police told us that they have to make an arrest if they see unlawful conduct, but this
glosses over the key question of where and upon whom the police are focusing their
attention to begin with. Differences in arrest rates for drug possession within a state reveal
that individual police departments have substantial discretion in how they enforce the law,
resulting in stark contrasts. For example, data provided to us by Texas shows that 53
percent of drug possession arrests in Harris County (in and around Houston) were for
marijuana, compared with 39 percent in nearby Dallas County.71 Yet a nearly identical
proportion of both counties’ populations used drugs in the past year.72
Additionally, certain jurisdictions within a state place a stronger focus on policing drug
possession. In New York State, the counties with the highest drug possession arrest rates
by a large margin were all in and around urban areas of New York City and Buffalo.73 In
Florida, the highest rates of arrest were spread around the state in rural Bradford County,
urban Miami-Dade County, Monroe County (the Keys), rural Okeechobee County, and urban
Pinellas County.74 Within both states, drug use rates vary little between regions.75
In Texas, the counties with the highest drug possession arrest rates are all small rural
counties. Kenedy County, for example, has an adult population of 407 people, yet police
there made 329 arrests for drug possession between 2010 and 2015.76

70 Federal Bureau of Investigation, 2015 Crime in the United States, Table 29: Estimated Number of Arrests,

https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-29 (accessed September 27, 2016).
71 Human Rights Watch analysis of data provided by the Texas Office of Court Administration. Our data used cases rather

than arrests as the unit of analysis, but because prosecutors did not deviate from arrest charges in the vast majority of cases,
types of cases provide a proxy for types of arrests.
72 About 5 percent of the populations (over age 12) of both the Dallas and Houston regions reported using marijuana in the

past month. About 2.5 percent (Dallas) and 2.9 percent (Harris) used non-marijuana illicit drugs in the past month.
Substance Abuse and Mental Health Services Administration, “2012-2014 NSDUH Substate Region Estimates,” September
12, 2014, http://www.samhsa.gov/data/population-data-nsduh/reports?tab=38 (accessed September 26, 2016), table 2.
Sub-state usage rates are not available for adults only; therefore, we use the over age 12 rate.
73 Human Rights Watch analysis of New York State Division of Criminal Justice Services data.
74 Human Rights Watch analysis of Florida Offender Based Transaction System data.
75 Past-month marijuana use among people over age 12 ranged from 8.4 to 9.2 percent among all New York regions and 5.2
to 9 percent among Florida regions. Rates of past-month non-marijuana use ranged from 3 to 3.5 percent in New York and 2.6
to 3.4 percent in Florida regions. Substance Abuse and Mental Health Services Administration, “2012-2014 NSDUH Substate
Region Estimates,” tables 3, 6.
76 Human Rights Watch analysis of data provided by the Texas Office of Court Administration.

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Racial Disparities
Rather than stumbling upon unlawful conduct, when it comes to drug use and possession,
police often aggressively search it out—and they do so selectively, targeting low-income
neighborhoods and communities of color. As criminal justice practitioners, social science
experts, and the US public now recognize all too well, racially disparate policing has had
devastating consequences.77

77 Jonathan Blanks, “The War on Drugs Has Made Policing More Violent,” Democracy Journal, July 19, 2016,

http://democracyjournal.org/ arguments/the-war-on-drugs-has-made-policing-more-violent/ (accessed July 21, 2016).

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Research has consistently shown that police target certain neighborhoods for drug law
enforcement because drug use and drug sales occur on streets and in public view. Making
arrests in these neighborhoods is therefore easier and less resource-intensive.
Comparably few of the people arrested in these areas are white.78 Harrison Davis, a young
Black man who was charged with possession of cocaine in Shreveport, Louisiana, recalled
how the arresting officer had defended what Harrison considered racial profiling79 during a
preliminary examination: “‘I pulled him over because he was in a well-known drug area,’
the police officer says to the judge. But I’ve been living there for 27 years. It’s nothing but
my family.”80
Black adults are more than two-and-a-half times as likely as white adults to be arrested for
drug possession in the US.81 In 2014, Black people accounted for just 14 percent of people
who used drugs in the previous year, but close to a third of those arrested for drug
possession.82 In the 39 states for which we have sufficient police data, Black adults were
more than four times as likely to be arrested for marijuana possession as white adults.83
78 Ezekiel Edwards, Will Bunting, and Lynda Garcia, “The War on Marijuana in Black and White: Billions of Dollars Wasted on

Racially Biased Arrests,” American Civil Liberties Union, June 2013, https://www.aclu.org/sites/default/files/
field_document/1114413-mj-report-rfs-rel1.pdf (accessed September 22, 2016); Jamie Fellner, “Race, Drugs, and Law
Enforcement in the United States,” Stanford Law & Policy Review, vol. 20 (2009),
https://journals.law.stanford.edu/sites/default/files/stanford-law-policyreview/print/2009/06/fellner_20_stan._l._poly_rev._257.pdf (accessed August 1, 2016), pp. 257-292.
79 “Racial profiling” refers to the selection or targeting of people for law enforcement contact based on their real or perceived

race, ethnicity, or national origin, rather than, as required by law, upon reasonable suspicion that they have engaged in
criminal activity. Racial profiling includes policies or practices that unjustifiably have a disparate impact on certain
communities. Ezekiel Edwards, Will Bunting, and Lynda Garcia, “The War on Marijuana in Black and White: Billions of Dollars
Wasted on Racially Biased Arrests,” p. 116.
80 Human Rights Watch interview with Harrison Davis (pseudonym), Shreveport, February 5, 2016.
81 Human Rights Watch analysis of United States Department of Justice, Federal Bureau of Investigation, “Uniform Crime

Reporting Program Data: Arrests by Age, Sex, and Race, Summarized Yearly, 2014;” New York Division of Criminal Justice
Services data; and Florida Office of the State Courts Administrator Offender Based Transaction System data. The rate only
includes data from 39 states that provide data from enough law enforcement agencies to cover at least 75 percent of the
state’s population. In collecting state arrest data, the FBI does not use Latino/Hispanic groupings in its coding of race, only
white, Black, Asian or “Indian” (Native American).
82 Human Rights Watch analysis of US Department of Health and Human Services, Substance Abuse and Mental Health

Services Administration (SAMHSA), 2014 National Survey on Drug Use and Health public-use dataset and of United States
Department of Justice, Federal Bureau of Investigation, “Uniform Crime Reporting Program Data: Arrests by Age, Sex, and Race,
Summarized Yearly, 2014.” There is no publicly released data on drug use rates disaggregated by race at the state and substate levels.
83 Not all states report thoroughly to the FBI, from whom we obtained arrest data. Because we compared arrest data and US

Census data, we could not accurately assess racial disparities where reporting coverage was limited. We therefore included
only those states where at least 75 percent of the population was covered in data reported to the FBI. There is no evidence that
states that fell below this threshold would have substantially different arrest national disparities. Because the FBI does not

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The disparities in absolute numbers or rates of arrests cannot be blamed on a few states or
jurisdictions. While numerous studies have found racial disparities in marijuana arrests,84
analyses of state- and local-level data provided to Human Rights Watch show consistent
disparities across the country for all drugs, not just marijuana.
In every state for which we have sufficient police data, Black adults were arrested for drug
possession at higher rates than white adults, and in many states the disparities were
substantially higher than the national rate—over 6 to 1 in Montana, Iowa, and Vermont.85
(See Figure 7 on following page)

keep data on Latinos arrested, classifying them instead as white or Black, our racial disparities analysis is limited to those
categories.
84 Meghan Ragany, Rose Wilson, and Jon Wool, “Racial Disparity in Marijuana Policing in New Orleans,” Vera Institute New

Orleans, July 2016, http://archive.vera.org/sites/default/files/resources/downloads/racial-disparity-marijuana-policingnew-orleans.pdf; Ezekiel Edwards, Will Bunting, and Lynda Garcia, “The War on Marijuana in Black and White: Billions of
Dollars Wasted on Racially Biased Arrests.”
85 Drug use data is not available disaggregated by race at the state level so we cannot examine arrests taking state-specific

Black and white drug use rates into account. However, overall, there is very little geographic variation in drug use and,
nationally, adults of different races use drugs at similar rates. See Drug Use in the United States in Section II.

45

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46

These figures likely underestimate the racial disparity nationally, because in three states
with large Black populations—Mississippi, Louisiana, and Alabama—an insufficient
proportion of law enforcement agencies reported data and thus we could not include them
in our analysis.
Our in-depth analysis of Florida and New York data show that disparities are not isolated to
a few municipalities or urban centers, though they are considerably starker in some
localities than in others.
In Florida, 60 of 67 counties arrested Black people for drug possession at higher rates than
white people.86 In Sarasota County, the ratio of Black to white defendants facing drug
possession charges was nearly 8 to 1 when controlling for population size. Down the coast
in comparably sized Collier County, the ratio, while still showing a disparity, was less than
3 to 1.
In New York, 60 of 62 counties arrested Black people for drug possession at higher rates
than white people.87 In Manhattan (New York County), there were 3,309 arrests per
100,000 Black people compared to 306 per 100,000 white people between 2010 and 2015.
In other words, Black people in Manhattan were nearly 11 times more likely than white
people to be arrested for drug possession.
(See Figures 8 and 9 on following pages)

86 Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction System data
and US Census Bureau ACS 5-year estimate. The seven counties in Florida and the two counties in New York where white
adults were arrested at higher rates than Black adults all had very low overall numbers of drug possession arrests.
87 Human Rights Watch analysis of New York Division of Criminal Justice Services data and US Census Bureau 2014 ACS 5-

year estimate.

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48

49

OCTOBER 2016

Under international human rights law, prohibited racial discrimination occurs where there
is an unjustifiable disparate impact on a racial or ethnic group, regardless of whether there
is any intent to discriminate against that group.88 Enforcement of drug possession laws in
the US reveals stark racial disparities that cannot be justified by disparities in rates of use.

Incentives for Drug Arrests
Department cultures and performance metrics that incentivize high numbers of arrests
may drive up the numbers of unnecessary drug arrests and unjustifiable searches in
some jurisdictions.
In some cases, department culture may suggest to individual officers that the way to be
successful and productive, and earn promotions, is to have high arrest numbers. In turn,
a focus on arrest numbers may translate into an emphasis on drug arrests, because drug
arrests are often easier to obtain than arrests for any other type of offense, especially if
certain neighborhoods are targeted. As Randy Smith, former Slidell Chief of Police and
current Sheriff for St. Tammany Parish, Louisiana, told us:
[Suppose I say,] “I want you to go out there and bring me in [more arrests].
Your numbers are down, last month you only had 10 arrests, you better pick
that up or else I’m going put you in another unit.” You’re going to go out
there and do what? You’re going [to go] out there to make drug arrests.89
Although the practice is outlawed in several states, some police departments operate a
system of explicit or implicit arrest quotas.90 Whether arrest numbers are formalized into
88 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965,

G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc A/6014 (1966), 660 U.N.T.S. 195, entered into force
January 4, 1969, ratified by the United States November 20, 1994, art. 1. The Committee on the Elimination of Racial
Discrimination has explained that "the definition of racial discrimination in article 1 expressly extends beyond measures
which are explicitly discriminatory to encompass measures which are discriminatory in fact and effect." L. R. et al. v.
Slovakia, Communication No. 31/2003, U.N. Doc. CERD/C/66/D/31/2003 (2005). For further analysis, see generally, Jamie
Fellner, “Race, Drugs, and Law Enforcement in the United States,” Stanford Law & Policy Review, vol. 20 (2009),
https://journals.law.stanford.edu/sites/default/files/stanford-law-policyreview/print/2009/06/fellner_20_stan._l._poly_rev._257.pdf (accessed August 1, 2016), pp. 257-292.
89 Human Rights Watch interview with Police Chief Randy Smith, Slidell, February 3, 2016. Randy Smith was elected sheriff in

fall 2015. He took office on July 1, 2016.
90 Police Reform Organizing Project, “Working Towards a More Safe and Fair City: Abolishing Quotas and Involving

Communities,” September 2014, http://www.policereformorganizingproject.org/wp-

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quotas or understood as cultural expectations of a department, they may put some officers
under immense pressure not only to make regular stops and arrests but to match or
increase their previous numbers, in order to be seen as adequately “productive.”91 In
August 2015, twelve New York Police Department officers filed a class-action lawsuit
against the department for requiring officers to meet monthly arrest and summons quotas,
with one plaintiff noting that after being told he was “dragging down the district’s overall
arrest rate,” he was given more undesirable job assignments.92 In an Alabama town, an
officer claimed in 2013 to have been fired after publicly criticizing the police department’s
new ticket quota directives, which included making roughly 72,000 contacts (including
arrests, tickets, warnings, and field interviews) per year in a town of 50,000 people.93
Such departmental pressure to meet arrest quotas can easily lead to more arbitrary stops
and searches. In the aftermath of Michael Brown’s death in Ferguson, Missouri, the US
Department of Justice’s Civil Rights Division recommended that the Ferguson Police
Department change its stop and search policies in part by prohibiting “the use of
ticketing and arrest quotas, whether formal or informal,” and focus instead on
community protection.94
Randy Smith told us he opposes putting “expectations” or quotas on officers. “It kills
you,” he explained:

content/uploads/2012/09/Working_Towards_a_More_Safe_and_Fair_City.pdf (accessed July 7, 2016) (“Promotion or job
security in the Department largely depends on the number of arrests made and tickets issued. To meet their quota
requirement, officers resort to ineffective and confrontational policing methods, which erode the NYPD's relationship with
many communities. The Department’s quota system, in effect, creates an incentive for harmful and counterproductive police
practices.”); John Simerman, “Internal memo reveals apparently illegal quota system for St. John Parish Sheriff Mike Tregre’s
office,” The Advocate, December 20, 2015, http://www.theadvocate.com/new_orleans/news/article_d20df80c-4e54-598ebe93-4d0d2c784b6f.html (accessed July 7, 2016).
91 John Eterno, who served with the NYPD for over 20 years, claims that words like “productivity” are euphemisms for quotas.

One current officer he spoke to said he was “given strict daily quotas and asked at the end of his tour about his numbers. An
officer who fails to meet the required number for the day is berated … not allowed time off and given unpalatable work
assignments.” John A. Eterno, “Policing by the Numbers,” New York Times, June 17, 2012, http://www.nytimes.com/
2012/06/18/opinion/the-nypds-obsession-with-numbers.html (accessed July 8, 2016).
92 Saki Knafo, “A Black Police Officer’s Fight Against the N.Y.P.D.,” New York Times, February 18, 2016,

http://www.nytimes.com/2016/02/21/magazine/a-black-police-officers-fight-against-the-nypd.html (accessed July 8, 2016).
93 Tracy Oppenheimer, “Cop Fired for Speaking Out Against Ticket and Arrest Quotas,” Reason, July 24, 2013,

http://reason.com/reasontv/2013/07/24/how-quotas-pervert-police-priorities-fir (accessed July 8, 2016).
94 US Department of Justice, Civil Rights Division, “Investigation of the Ferguson Police Department,” March 4, 2015,
https://www.justice. gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department
_report.pdf (accessed July 8, 2016), p. 91.

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I think sometimes you start building numbers and stats, and you kind of
lose the ability to make better decisions on getting someone help, [when]
getting a stat is putting them in jail. I’ve been there, and I’ve seen. You start
having some serious problems.95
He said when officers understand that they are expected to make high arrest numbers,
they often focus on drug possession:
So you’re going to stop 10 cars in maybe a not so good neighborhood. Out
of 10 cars, you might get one out of those 10 that you get some dope or
marijuana or a joint in the ash tray, or a Xanax in your purse…. If you dump
[any] purse out, there’s probably some kind of anti-depression medicine in
there, which is a felony [potentially]. And we know it, we’ve seen it, where
those street crime guys will get out there and bring you to jail on a felony for
a schedule four without a prescription, just because they got a stat. They’re
tying up the jail. It’s ridiculous. That shit has got to stop….

You’ve got to look at the big picture. If you put quotas—which is a bad
word—[officers] are going to start bum rapping people. The guy we got with
the one pill, the one stop out of 10, what did I do with those other nine
people that weren’t doing nothing? I stopped them. I harassed them. I
asked them if they had guns in their car. I asked them if they had any illegal
contraband. I’m asking them to search their car. What am I doing to the
general citizen?96

95 Human Rights Watch interview with Police Chief Randy Smith, Slidell, February 3, 2016.
96 Ibid.

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Federal Funding, an Opportunity for Leadership
In recent years, many advocates have expressed concern that high arrest numbers were
incentivized by federal grant monies to state and local law enforcement through the
Edward Byrne Memorial Justice Assistance Grant (JAG) program, administered by the
Department of Justice’s Bureau of Justice Assistance (BJA).97 Although funding is
allocated based on a non-discretionary formula,98 grant recipients must report back to
BJA on how they use the funds, including—historically—reporting as a “performance
measure” the number of individuals arrested.99 Many groups were concerned that this
sent a message to state and local law enforcement agencies that high arrests numbers
meant more federal funds, and that it in turn incentivized drug arrests.100
Recognizing that arrest numbers are not meaningful measures of law enforcement
performance, BJA undertook a thorough revision of JAG performance measures, now
called “accountability measures.”101 As of fiscal year 2015, law enforcement agencies
receiving JAG funds no longer must report on arrest numbers as a measure of
performance or as accountability for funds received. BJA Director Denise O’Donnell told
us, “Arrests can easily misrepresent what is really going on in criminal justice practice,
and be misleading as to what we are really interested in seeing supported with JAG
funds, namely evidence-based practices. So BJA has moved away from arrests as a

97 See generally US Department of Justice, Bureau of Justice Assistance, “Edward Byrne Memorial Justice Assistance Grant
(JAG) Program,” undated, https://www.bja.gov/ProgramDetails.aspx?Program_ID=59 (accessed September 22, 2016).
98 Alexia D. Cooper, Ph.D. and Shelley S. Hyland, Ph.D., “Justice Assistance Grant (JAG) Program, 2015: Technical Report,” US

Department of Justice, Bureau of Justice Statistics, October 2015, http://www.bjs.gov/content/pub/pdf/jagp15.pdf
(accessed July 26, 2016). The JAG website now announces, “Note: Although JAG grantees and subgrantees are required to
report on quarterly accountability measures through BJA’s Performance Measurement Tool (PMT), those reports are intended
to promote greater transparency about the use of JAG funds and do not determine the amount of JAG funds allocated to a
state and/or localities.”
99 For a legacy reporting questionnaire, see, for example, Bureau of Justice Assistance, “Program Performance Measures for

Justice Assistance Grant (JAG) Programs,” January 20, 2012 draft,
https://www.bja.gov/Programs/JAG_Questionnaire_PA1_Law%20Enforcement.pdf (accessed July 31, 2016).
100 Inimai Chettiar et

al., “Reforming Funding to Reduce Mass Incarceration,” Brennan Center for Justice, November 22, 2013,
http://www.brennancenter.org/sites/default/files/publications/REFORM_FUND_MASS_INCARC_web_0.pdf (accessed June
9, 2016), p. 4; Ezekiel Edwards, Will Bunting, and Lynda Garcia, “The War on Marijuana in Black and White: Billions of Dollars
Wasted on Racially Biased Arrests,” pp. 100-104. See also Radley Balko, “Driven By Drug War Incentives, Cops Target Pot
Smokers, Brush Off Victims Of Violent Crime,” Huffington Post, November 25, 2011, http://www.huffingtonpost.com/2011
/11/21/drug-war-incentives-police-violent-crime_n_1105701.html (accessed June 9, 2016).
101 Bureau of Justice Assistance, “Justice Assistance Grant (JAG) Program Accountability Measures,” June 2014,

https://www.bjaperformancetools.org/help/JAGMeasuresQuestionnaire.pdf (accessed July 26, 2016).

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metric, instead focusing on evidence-based practices, such as community collaboration,
prevention, and problem-solving activities.”102
This move is commendable. In the extensive training and technical assistance BJA
provides to state law enforcement agencies, through JAG and other funding streams, BJA
should reiterate that arrest numbers are not a sound measure of police performance. BJA
should also encourage state agencies to pass the message along to local law
enforcement agencies, which must still apply to the state agency for their share of the
federal fund allocations. In many cases, that process continues to be discretionary and
application-based and, in at least one recent call for applications, may still improperly
emphasize drug arrests.103

102 Human Rights Watch phone interview with Denise O’Donnell, July 28, 2016, and email correspondence August 19, 2016.
103 For FY 2017, North Dakota’s application form—by which local agencies apply to the state agency for federal funds—

provides as an example for “Objectives (Activities directed at achieving goals)” to “Increase the number of drug-related
arrests by 10 percent.” As an example for “Performance Measures (How you measure your project's success),” it suggests
“Number of drug-related arrests.” North Dakota Attorney General, “Program and Application Information: Justice Assistance
Grant (JAG) Program and Lottery Funding,” undated, https://www.ag.nd.gov/bci/Grants/JAG/ApplicationForm.pdf (accessed
September 22, 2016).

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IV. The Experience of Being Policed
They disrupt, disrupt, disrupt our lives…. From the time the cuffs are put on
you, from the time you’re confronted, you feel subhuman. You’re treated
like garbage, talked to unprofessionally. Just the arrest is aggressive to
subdue you as a person, to break you as a man.104
—Cameron Barnes, arrested repeatedly for drug possession by New York City police from
the 1980s until 2012

The sheer magnitude of drug possession arrests means that they are a defining feature of
the way people experience police in the United States. For people we interviewed, drug
laws shaped their interactions with and views of the police and contributed to a
breakdown of trust.
Instead of experiencing police as protectors, arrestees in all four states we visited
described experiences in which police officers intimidated and humiliated them. They
described having their pockets searched, their cars ransacked, being subjected to drugsniffing dogs, and being overwhelmed by several officers at once. This led some people to
feel under attack and “out of a movie.”105 Prosecutor Melba Pearson in the Miami-Dade
State Attorney’s office said, “The way we treat citizens when we encounter them is wrong.
If they expect to have their rights violated, of course there’s going to be hatred of the
police…. You can’t take an invading-a-foreign-country mentality into the neighborhood.”106

Pretextual Stops and Searches without Consent
Many people we interviewed said police used pretextual reasons to stop and search them,
told them to take things out of their pockets, otherwise threatened or intimidated them to
obtain “consent” to search, and sometimes physically manhandled them. These stories
are consistent with analyses by the American Civil Liberties Union and other groups that
have extensively documented the failures of police in many jurisdictions to follow legal
requirements for stops and searches.

104 Human Rights Watch interview with Cameron Barnes (pseudonym), New York, October 29, 2015.
105 Human Rights Watch interviews with Thomas Burwell (pseudonym), New Orleans, January 27, 2016, and Paul Roberts

(pseudonym), Orlando, December 8, 2015.
106 Human Rights Watch interview with Melba Pearson,

Miami, December 18, 2015.

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US Supreme Court Justice Sonia Sotomayor has argued in dissent that the Court’s
interpretation of US law “allow[s] an officer to stop you for whatever reason he wants—so
long as he can point to a pretextual justification after the fact…. When we condone officers’
use of these devices without adequate cause, we give them reason to target pedestrians in
an arbitrary manner.”107
These fears certainly accord with the realities facing many heavily policed communities.108
Defendants and attorneys we interviewed described a litany of explanations offered by the
police to justify stopping a person on the street or in a car, many of which appeared to
them to be pretextual: failure to signal, driving in the left lane on an interstate, driving with
a license plate improperly illuminated or with a window tint that is too dark, walking in the
opposite direction of traffic, failing to cross the street at the crosswalk or a right angle, or
walking in the street when a sidewalk is provided.109 In many jurisdictions, these reasons
are not sufficient in themselves to allow the officer to search the person or vehicle.110 Yet in
police reports we reviewed for several cases in Texas and Florida, officers stopped the
defendant for a traffic violation, did not arrest for that violation, but conducted a search
anyway. They cited as justification that they smelled marijuana, that consent to search was
provided, or that the person voluntarily produced drugs from their pockets for the officer to
seize.111 These justifications often stand in stark contradiction to the accounts of the
people who were searched.

107 Utah v. Strieff, 579 U. S. __ (2016) (J. Sotomayor, dissenting), Slip Op. p. 10.
108 Ken Armstrong, “How the Supreme Court Made It Legal for Cops to Pull You Over for Just About Anything,” The Marshall
Project, August 3, 2015, https://www.themarshallproject.org/2015/08/03/how-the-supreme-court-made-it-legal-for-cops-to-

pull-you-over-for-just-about-anything#.mMcsFrntc (accessed July 6, 2015).
109 FL Stat. secs. 316.155, 316.081, 316.605, 316.2953, 316.130; NY VAT secs. 1163, 1120(6)(c), 402(1)(b), 375(12-a)(b),

1156(b), 1151, 1156(a); LA Rev. Stat. secs. 32:104(b), 71(B)(1)(a), 333(A), 361.1(B), 216(B), 216(A); TX Transportation Code secs.
545.104(a), 545.051(a), 547.322(f(1)), 547.613(2), 547.613(2 a-1), 552.003(a), 552.006(a).
110 If a jurisdiction gives police authority to arrest people for certain traffic violations, it is then permissible to conduct a

search incident to arrest. However, none of the people we interviewed was arrested for one of these traffic violations.
111 Human Rights Watch review of arrest reports in Orlando, Florida and Dallas, Texas.

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The Smell of Marijuana
The criminalization of marijuana in many states has given officers a powerful and
widely-used pretext for searching people’s cars. Will Pryor, the prosecutor responsible
for screening cases in Caddo Parish, Louisiana, told us that most drug possession
cases he sees result from traffic stops where the officer allegedly smells marijuana.112
Where the possession of marijuana is criminal—as it remains in most states—the odor
of marijuana often gives law enforcement probable cause to search a car, typically
anywhere that marijuana could be found (including car doors, consoles, glove
compartments, trunks, and containers and bags inside the car). People within the car
can then be charged for possessing anything illegal found as a result of the search,
even when no marijuana is discovered. A number of interviewees in Florida, Louisiana,
and Texas described arrests that followed this pattern, and we reviewed other police
reports that cited the odor of marijuana.
Miami prosecutor Melba Pearson told us:
If I hear one more time, “I smelled marijuana,” and the subsequent
search revealed no marijuana! … I work with police officers every day.
A large majority are wonderful, fair people. However, there is a
mentality in certain departments that tends to draw individuals who
are action junkies, the “jump out boys.”… Some officers believe the
ends justify the means [and don’t] consider it a problem because their
job is to get drugs off the street without worrying about whether or
not the case is prosecutable, or if there is a long term positive effect
on the community.113
Miami Judge Dennis Murphy told us, “Easily one out of four [police] stops, [I see]
‘defendant ran a stop sign, [officer] approached, there was a distinct odor of marijuana,
so I searched and arrested for [other] drugs.’”114

112 Human Rights Watch interview with William Pryor, Shreveport, February 8, 2016.
113 Human Rights Watch interview with Melba Pearson,

Miami, December 18, 2015, and email correspondence August 24,

2016.
114 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015.

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Once stopped, some of the people we interviewed did not realize they had a right not to
acquiesce to police searches, or felt they could not exercise it in the face of the officer’s
authority.115 A few allowed officers to search a vehicle because they did not think there
were any drugs inside. In many other cases, interviewees told us, they never consented at
all, and police simply did what they pleased.
We reviewed arrest reports in Texas and Florida where police accounts of how they
obtained consent for a search were highly implausible. Police described defendants
voluntarily emptying their pockets and revealing drugs, sometimes without being asked to
do so; freely consenting to a search of their person when they had drugs on them; and
admitting that they were about to use drugs before the officer found drugs on them.116
Prosecutor Melba Pearson told us, “I have had [defendants] who sometimes do give up the
drugs…. However, many times where we get a story [from police] about how consent was
obtained or drugs were located pursuant to a search [it is problematic].”117
Other interviewees described police tactics that they said allowed officers to manipulate
their way around the requirements of the law. In Brevard County, Florida, Isabel Evans told
us that she was arrested in 2015 for the first time for hydromorphine possession and that
she felt unable to disobey the officer:
He said my pocket was bulged. He said, “Reach in there and take it
out.” I pulled it out, and he handcuffed me. The cop knew what he was
doing. He couldn’t pull it out himself, so he took advantage of my

115 ACLU of Illinois, “Racial disparity in consent searches and dog sniff searches: An analysis of Illinois traffic stop data from

2013,” August 2014, http://www.aclu-il.org/wp-content/uploads/2014/08/ACLU-IL-report-re-ITSSSA-data-in-2013.pdf
(accessed July 7, 2016): (“[In] many cases, the motorist’s supposed ‘consent’ to search is not truly voluntary. Consent is often
granted on an isolated roadside in a one-on-one encounter with an armed law enforcement official. This setting is inherently
coercive. Many civilians believe they must grant consent. Other civilians fear the consequences of refusing to grant consent,
such as the issuance of extra traffic citations, or the delay caused by further interrogation or bringing a drug-sniffing dog to
the scene. Thus, the overwhelming majority of motorists consent to a search when asked.”)
116 Human Rights Watch review of police arrest reports and affidavits in Orlando, Dallas, and Houston. We spoke to the

defendants in these cases in Texas, who told us this was not what had happened. In Florida, the attorney who provided the
reports to us told us the police narratives were questionable.
117 Human Rights Watch interview with Melba Pearson,

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Miami, December 18, 2015.

58

ignorance of the law, of a first-timer like me. I’m not going to say you
can’t do that. I’m scared.118
In Shreveport, Louisiana, Glenda Hughes was charged with felony possession of Klonopin
in 2015. She told us, “If you say no to the search, that gives them suspicion…. If I had
known more, maybe it would have come out differently. It’s not my fault though that I don’t
know the legal system and the laws.”119

Feeling Targeted
All of the people arrested for drug possession we interviewed said they experienced fear,
anger, or deep feelings of being unfairly targeted when police confronted, searched, and
arrested them.
Many interviewees said that because they had been targeted or profiled in the past, they
experienced a heightened sense of vulnerability to police intervention and insecurity in
their person whenever they were in public. They described constantly feeling the need to
look over their shoulder and exercise hyper-vigilance in all their actions, regardless of
whether they had drugs on them.120
Leonard Lewis, a 28-year-old Black man in Houston, had been arrested and convicted of
drug possession in the past. He said he felt that made him more likely to be stopped again
and more likely to be arrested once police ran his name. He said the fact that he is big and
Black makes him more vulnerable.121 His mother told us, “[It] mess[es] with his mind.
[Leonard] drives like a grandpa, like how an old man drives. He turns on his signals, he
stops [before stop signs]. Even when he is pulling into the house, the boy turns on his

118 Human Rights Watch interview with Isabel Evans (pseudonym), Auburndale, December 11, 2015. If a person voluntarily

produces drugs, this would not constitute a police search under the Fourth Amendment. However, interviewees recounted
interactions in which they felt their “voluntary” action to be coerced.
119 Human Rights Watch interview with Glenda Hughes (pseudonym), Shreveport, February 6, 2016.
120 Many studies have noted that racial profiling can have long-term behavioral and emotional effects, such as altered
clothing choices and driving routes, or discouraging people from acting as “Good Samaritans.” Robert Chanin, “Restoring a
National Consensus: The Need to End Racial Profiling in America,” The Leadership Conference on Civil and Human Rights,
March 2011, http://www.civilrights.org/publications/reports/racial-profiling2011/racial_profiling2011.pdf (accessed July 1,
2016), pp. 21, 23.
121 Human Rights Watch interview with Leonard Lewis (pseudonym), Houston, March 15, 2016.

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signal. He says, ‘Mama, the police are never gonna have a reason to stop me.’”122 In the
Bronx, Angel Suarez explained to us:
I consider myself an addict and sometimes I worry when I’m using, because
they search you for no reason. The cops know me; most of the time they see
me they stop and search me. It makes it harder to live life when you’re
walking down the street watching your back, but at the same time when you
don’t have your drug it makes you sick.123
Drug enforcement practices do not only affect people who use or have used drugs. They
broadly impact people who live in heavily policed neighborhoods, people who are
homeless,124 and people police claim to regard as “suspicious” for whatever reason—
sometimes solely because of their race.125

Damian’s Story
Damian Williams related his story to us as follows:
In 2016, Damian and his girlfriend were living out of his car in Houston and trying to
make ends meet. He said, “We were just working [all the time]. I was going to work
during the day; she goes to work at nighttime. It was hectic, it was hard, but it was life.”
They had just been approved to rent an apartment when Damian was pulled over for
failure to signal. The officer said he smelled marijuana, and while Damian waited in
handcuffs, he ransacked the car for 45 minutes, tearing through their bags, throwing
their belongings on the ground. The officer finally emerged with half of a pill, and no
marijuana. Damian said he did not know where the half-pill came from and thought it

122 Human Rights Watch interview with Tiffany Lewis (pseudonym), Houston, March 16, 2016.
123 Human Rights Watch interview with Angel Suarez (pseudonym), New York, November 24, 2015.
124 Tristia Bauman, “No Safe Place: The Criminalization of Homelessness in U.S. Cities,” National Law Center on

Homelessness & Poverty, July 16, 2014, https://www.nlchp.org/documents/No_Safe_Place (accessed July 7, 2016).
125 According to Department of Justice data on traffic and pedestrian stops in 2011, Black and Latino drivers were at least

three times more likely to be searched during traffic stops than white drivers. Lynn Langton, Ph.D. and Matthew Durose,
“Police Behavior during Traffic and Street Stops, 2011,” US Department of Justice, Bureau of Justice Statistics, September
2013, http://www.bjs.gov/content/pub/pdf/pbtss11.pdf (accessed July 1, 2016); Sharon LaFraniere and Andrew W. Lehren,
“The Disproportionate Risks of Driving While Black,” New York Times, October 24, 2015, http://www.nytimes.com/
2015/10/25/us/racial-disparity-traffic-stops-driving-black.html?_r=0 (accessed July 7, 2016).

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was a joke at first, but the officer told him it was a felony. Damian was taken to booking
and charged with felony possession of Ecstasy.
Damian appeared before a judge at 3 or 4 a.m. and his girlfriend bonded him out the
next morning. She had rented a hotel room, because the car they used to sleep in had
been impounded. He got out of jail before the buses ran, so he took a taxi straight to
Walmart to buy clothes and soap because everything he owned was in his impounded
car. Then he went to the hotel room to lie down for half an hour, before he had to catch
the bus back to court. He said that all the money they lost on the impoundment, bond,
and hotel meant they were no longer able to rent the apartment for which they had been
approved. “It’s making me feel a little paranoid every time I see a police officer…. I didn’t
think I was doing nothing then, and then I was put in jail and am paying all this money,”
he said. On his girlfriend’s urging, Damian cut off his dreadlocks while out on bond and
started dressing differently. He said appearance matters to the police.126

***

Darius’ Story
Darius Mitchell, a Black man in his 30s, said he does not use drugs. From Darius and
many other interviewees, we heard a similar story: Police stop a Black man walking or
driving in a “bad” neighborhood, citing a minor and sometimes pretextual reason; they
treat him as if he is a suspected drug dealer and insist on searching his person or his car
without first obtaining consent; they find a small amount of drugs and arrest him for
possession; and his life is put into upheaval by a prosecution.
Darius recounted his arrest to us as follows:
Late one night in Jefferson Parish, Louisiana, an officer pulled Darius over as he was
leaving his child’s mother’s house. The officer said he had been speeding. When Darius
replied that he certainly had not, the officer said he smelled marijuana. He asked

126 Human Rights Watch interview with Damian Williams (pseudonym), Houston, March 17, 2016.

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whether he could search, and Darius said no. Another officer and canine came and
searched his car anyway. They yelled, “Where are the pounds?” suggesting he was a
marijuana dealer. The officers eventually found a pill bottle in the glove compartment of
Darius’ car, with his child’s mother’s name on it. Darius said that he had driven her to
the emergency room after an accident, and she had been prescribed hydrocodone,
which she forgot in the car. The police kept him in their vehicle for an hour as they
discussed what to do. When they eventually took him in, he was prosecuted for
possession of hydrocodone, his first felony charge.
The prosecutor filed charges and took the case all the way to a verdict, despite Darius’
explanation of why he had the pill bottle. Bail was set at $1,000, and Darius was able to
bond out. He paid another $2,000 to hire a lawyer. Darius was ultimately acquitted at
trial, but even months later he remained in financial debt from his legal fees, was behind
in rent and utilities bills, and had lost his cable service, television, furniture, and other
comforts. He told us:
I was pulling money [from wherever I could]. I had three jobs at the time
because I had to pay all these fees, because I still had my own
apartment [to pay for and] had to take care of my kids. I was already
living paycheck to paycheck. I was making it, but with fines and fees I
was really pinching then. I was not paying this to pay that…. It was
embarrassing for myself like that. [I had] court fees, lawyer fees, the
light bill, rent.… They took the TV, the sofa set. I couldn’t pay it. [I was
acquitted] but I still lost a lot. I still had to go through a lot of misery.
Darius added, “On my record, they show that I didn’t get convicted, but it still shows that
I got arrested.” Although Darius “walked free,” he still feels bound by his criminal
justice debt and his arrest record.127

127 Human Rights Watch interview with Darius Mitchell (pseudonym), Harvey, January 24,

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2016.

V. Aggressive Prosecutions
I loved to prosecute. I was the avenging angel. I was doing God’s work. I
was getting the riff-raff off the street. Time proved me to be wrong. So I
don’t consider those years to be a badge of honor. Guilt. A feeling that I did
some things I shouldn’t have done…. I have been on both sides of the
fence: the War on Drugs is lost. I’m really disgusted with the continuation of
the prosecutions. I’m really disappointed.128
–Marty Stroud, former assistant district attorney and current defense attorney,
Shreveport, Louisiana, February 2016

After police arrest a person, prosecutors have enormous discretion in deciding whether to
prosecute, what charges to bring, and how the person will experience the criminal justice
system. Because any given set of facts can often support different kinds of charges, if
prosecutors decide to prosecute a drug use case, they typically have a range of charges to
choose from—from misdemeanor drug paraphernalia to, in most states, felony possession
to possession with intent to distribute.129 The National District Attorneys Association
advises, “In making a charging decision, the prosecutor should keep in mind the power he
or she is exercising at that point in time. The prosecutor is making a decision that will have
a profound effect on the lives of the person being charged, the person’s family … and the
community as a whole.”130
Despite these opportunities for discretion, many prosecutors are far too willing to throw
the book at people who use drugs, to charge them high and to seek the highest possible
sentences.131 While each prosecutor exercises discretion in his or her own cases, office
culture often encourages prosecutors to adopt a default position of charging unreasonably
high, instead of applying charges that speak appropriately to the facts of the case or
128 Human Rights Watch interview with Marty Stroud, Shreveport, February 9, 2016.
129 As examined later in this section, possession with intent to distribute can be improperly charged based on facts that
actually support possession for personal use.
130 National District Attorneys Association, National Prosecution Standards (Third Edition) (National District Attorneys

Association: 2009), sec. 4-2.4, available at http://www.ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%
20Revised%20Commentary.pdf.
131 Galveston, Texas prosecutor Chris Henderson acknowledged, “We bring this mentality of ‘I should charge the highest

crime; I should seek the highest punishment.’” Human Rights Watch phone interview with Chris Henderson, August 9, 2016.

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declining to charge at all.132 As discussed later in this report, in many cases this appears to
be a deliberate tactic aimed at coercing defendants into pleading guilty to a lesser
offense—an inherently abusive application of prosecutorial discretion.
Prosecutor Melba Pearson said she believed prosecutors have an obligation to use their
discretion to address racial disparities in the cases police bring them:
It’s incumbent upon the state to report to the police that we’re having this
disparity. To say, what can we do about this? ... It is a policing issue if
you’re stopping a kid 15 times a month for a [car window] tint. [I can say,]
“Don’t bring me that case. You’re clearly racially profiling.” Where the
circumstances of a stop are such that there are issues of constitutionality,
when you don’t prosecute, police will notice. When you tacitly approve it,
police will continue.133
In some cases, prosecutors not only fail to confront this problem but compound it by
exercising their own discretion in racially biased or at least racially disparate ways, for
instance by charging Black defendants with more serious crimes or seeking sentencing
enhancements more often when the defendant is Black.134

132 Tracy L. Meares, “Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial

Incentives,” Fordham Law Review, vol. 64 (1995), http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article
=3220&context=flr (accessed September 23, 2016), pp. 868-869 (“Overcharging is also due in part to an abhorrence of
losing that is central to prosecutorial culture. By charging the defendant with the most serious offenses that the prosecutor
believes the defendant's conduct supports, the prosecutor can push up the trial penalty and limit, as a consequence, the
defendant's ability to waive his right to trial intelligently and voluntarily.”); Josh Bowers, “Punishing the Innocent,” University
of Pennsylvania Law Review, vol. 156 (2008), https://www.law.upenn.edu/journals/lawreview/articles/volume156/
issue5/Bowers156U.Pa.L.Rev.1117(2008).pdf, p. 1128 (“prosecutors carry mindsets of ‘nondefeat.’”); Glenn Harlan Reynolds,
“Ham Sandwich Nation: Due Process When Everything is a Crime,” University of Tennessee Legal Studies Research Paper No.
206, January 2013 (“prosecutors have no countervailing incentives not to overcharge.”).
133 Human Rights Watch interview with Melba Pearson,

Miami, December 18, 2015.

134 Research shows that prosecutors were more likely to charge Black defendants under state habitual offender laws than

white defendants similarly situated. The disparity is even greater for less serious crimes than for more serious crimes.
Charles Crawford, Ted Chiricos, and Gary Kleck, “Race, racial threat, and sentencing of habitual offenders,” Criminology, vol.
36 (1998), pp. 481-512; Cyndy Caravelis, Ted Chiricos, and William Bales, “Race, ethnicity, threat, and the designation of
career offenders,” Justice Quarterly , vol. 30 (2011), pp. 869-894; Richard S. Frase, Just Sentencing: Principles and
Procedures for a Workable System (New York: Oxford University Press, 2013); Richard S. Frase, “What Explains Persistent
Racial Disproportionality in Minnesota’s Prison and Jail Populations?,” Crime and Justice, vol. 38 (2009), pp. 201-280.

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Different prosecutors’ offices applying the same state laws may prosecute drug
possession differently, revealing another layer of potential arbitrariness in who is
prosecuted for drug use.
In Florida, among the counties with at least 5,000 possession cases, there were striking
disparities in the rate at which prosecutors declined to prosecute drug cases. For example,
Polk County prosecutors declined to prosecute 57 percent of drug possession cases
brought to them while Broward County prosecutors declined only 13 percent.135

135 Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction System data.

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Going after the Small Stuff
We interviewed over 100 people in Texas, Louisiana, Florida, and New York who were
prosecuted for small quantities of drugs—in some cases, fractions of a gram—that were
clearly for personal use. Particularly in Texas and Louisiana, prosecutors did more than
simply pursue these cases—our interviewees reported that prosecutors often selected the
highest charges available and went after people as hard as they could.

Possession Charges in Texas for Fractions of a Gram
Perhaps nothing better illustrates the harmful realities of aggressive prosecution and a
charge-them-high philosophy than state jail felony cases in Texas.136 Our data analysis
suggests that in 2015, nearly 16,000 people were convicted and sentenced to incarceration
for state jail drug possession offenses.137 State jail felony drug possession is possession of
less than one gram of substances containing common drugs such as cocaine, heroin,
methamphetamine, PCP, oxycodone, MDMA, mescaline, and mushrooms.138 This means
they received a felony conviction and time behind bars for possessing less than a gram of
drugs—the weight of less than one-fourth of a sugar packet. Depending on the type of
drug, its strength and purity, and the tolerance of the user, one gram may be a handful of
doses or even a dose or less of many drugs.139

136 Established in 1993, Texas’ state jail system was originally conceived as a way to move people convicted of low-level drug

and property crimes out of the crowded prison system. Initially, state jails were only meant to be available for short stints of
initial confinement as part of a community supervision sentence. A few years later, however, the legislature changed the
system so that “state jail felony” essentially became a new class of low-level felony, which some people now refer to
colloquially as “fourth degree.” Today, state jails are essentially short-term prisons and are run by the Department of
Corrections, as are regular prisons. However, their recidivism rates are worse and sentences must be served day-for-day.
Interviewees also said conditions in state jail were far worse than prison. Possession of under one gram of most nonmarijuana drugs is a state jail felony, punishable by six months to two years in a state jail facility (or more in prison if
enhanced by prior convictions). State jail and under one gram are used here synonymously.
137 Human Rights Watch analysis of data provided by Texas Office of Court Administration.
138 It also includes possession of under 20 units of LSD or between 4 ounces and 5 pounds of marijuana. (As noted in the

Background section, marijuana possession up to four ounces, 112 grams, is a misdemeanor in Texas.) Dilutants are also
weighed, meaning the purity of the substance is irrelevant. TX Health and Safety Code sec. 481.115. Because defense
attorneys said almost all of their state jail felony possession cases were for under a gram (rather than for LSD or these
relatively large amounts of marijuana), we use “under a gram” synonymously with “state jail felony possession” when
describing the law.
139 Doses vary to extraordinary degrees depending on a person’s tolerance and the strength or purity of the substance (Texas

law counts the weight of the entire substance including dilutants, regardless of purity). For comparison, the European
Monitoring Centre for Drugs and Drug Addiction estimates, based on street level purities in the continent, possible dosages
as follows: 100 milligrams for heroin, 100-200 milligrams for cocaine, and several tens to several thousand milligrams for
methamphetamines. Interviewees who used drugs regularly explained that their tolerance meant they would require

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Data provided to Human Rights Watch by the Texas Office of Court Administration, and
presented here for the first time, shows case outcomes for all felony drug possession
cases in Texas courts. Although the data does not differentiate between felony degrees, we
can extrapolate based on state law and sentencing options.140 Based on these
extrapolations, the data suggests that in Texas in 2015, over 78 percent of defendants
convicted of felony drug possession were sentenced to incarceration for a state jail felony.
That means some 16,000 people were sentenced to time behind bars for possessing less
than one gram of commonly used drugs.141 Because this figure represents only those
sentenced to incarceration, the number of people prosecuted and potentially convicted of
state jail felony drug possession is likely thousands more, since Texas law requires that all
persons convicted of first time state jail felony drug possession receive probation, and
judges may impose probation in other cases as well.142
The majority of the 30 defendants we interviewed in Texas had substantially less than a
gram in their possession when they were arrested: not 0.9 or 0.8 grams, but sometimes
0.2 or 0.02, or even a result from the lab reading “trace,” meaning that the amount was too
small even to be measured. One defense attorney in Dallas told us a client was charged
with drug possession in December 2015 for 0.0052 grams of cocaine.143 To put it into
perspective, that is equivalent to the weight of 13 ten-thousandths (.0013) of a sugar
significantly more. European Monitoring Centre for Drugs and Drug Addiction, “Drug profiles,” December 17, 2014,
http://www.emcdda.europa.eu/publications/drug-profiles (accessed September 23, 2016).
140 The 2015 drug possession dataset contained information about case dismissals or acquittals, “deferred adjudication”

(sometimes also called deferred probation, in which the defendant is not formally convicted but must still complete a period
of probation), regular probation (after a conviction), and sentences of incarceration (to local jail, state jail, or prison). A very
small number of cases were coded as other. Because Texas law requires that a person receive probation (either deferred or
regular) for their first state jail felony possession offense, and because judges are probably more likely to give probation for
a smaller amount of drugs than for a larger amount, we expect that the vast majority of cases marked as deferred
adjudication or probation are for state jail felonies. However, because the data did not contain this information, we chose
not to make assumptions about it and removed those cases from our analysis of state jail felony cases. Next, we assumed for
purposes of our analysis that almost all prison sentences imposed for possession were for over one gram. We discounted
that by 11 percent because the Texas Department of Criminal Justice’s high value dataset, explained in footnote 305, shows
that 11 percent of state prison inmates serving time in 2015 for drug possession were convicted of a state jail felony offense.
This rate was applied to the court data count of people sentenced to state prison to estimate the total number of people
sentenced to state prison who possessed less than a gram. We also assumed that only state jail felony defendants were
sentenced to local jail and state jail. (The data lists only the judge’s sentencing designation, not the actual facility where the
inmate is held. It is possible that jails and departments of corrections in practice hold people in other facilities). State jail
facilities are meant only for state jail felony convictions. To be sentenced to local jail (“misdemeanor time”) for a felony, a
person must be sentenced under TX Penal Code art. 1244A, which is available only for state jail felonies.
141 Human Rights Watch analysis of data provided by Texas Office of Court Administration.
142 See footnote 140.
143 Human Rights Watch phone interview with Dallas defense attorney, February 4, 2016.

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packet. The margin of error for the lab that tested it is 0.0038 grams, meaning it could have
weighed as little as 0.0014 grams, or 35 hundred-thousandths (0.00035) of a sugar packet.
These numbers are almost incomprehensibly small.
In Dallas County, the data suggests that nearly 90 percent of people sentenced to jail or
prison for possession in 2015 were convicted of possessing less than a gram.144 In fact,
throughout the state, the overwhelming proportion of drug possession defendants were
sentenced to incarceration for fractions of a gram:

144 Human Rights Watch analysis of data provided by Texas Office of Court Administration.

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Bill Moore, a 66-year-old man in Dallas, was prosecuted for third degree felony possession
(normally one to four grams) for what the laboratory tested as 0.0202 grams of
methamphetamines. The charge was enhanced to a third degree offense under the
habitual offender law because of his prior possession charges, which he said were all
under a gram as well. He spoke to us after he had pled to three years in prison for that
0.0202 grams: “It was really small; you wouldn’t even believe what I’m talking about. It’s
unbelievable that they would even charge me with it.” He added, “It’s about five dollars’
worth of drugs…. Now think about how many thousands of dollars are wasted over five
dollars of that stuff.”145
In Fort Worth, Hector Ruiz was prosecuted for an empty bag that had heroin residue
weighing 0.007 grams. Apparently believing that he deserved aggressive charges, the
prosecutor sought enhancements based on Hector’s prior state jail convictions, increasing
the high end of his sentencing range from two to ten years. The prosecutor offered him six
years in prison in exchange for a guilty plea.146
Leonard Lewis was charged with third degree felony possession (one to four grams) in
Houston for two tobacco cigarettes dipped in PCP. Because he had two prior felonies, he
faced 25 years to life in prison. He told us the actual weight of the liquid PCP on the
cigarettes was microscopic. Although his attorney convinced the prosecutors to discount
the filter, she said they still counted the weight of the rest of both cigarettes (tobacco and
paper), resulting in a final weight of 1.4 grams combined.147 Tobacco in an average
cigarette weighs around 0.65 to 1 gram on its own,148 meaning the trace amount of PCP on
Leonard’s two cigarettes must have been nearly weightless. Nevertheless, Leonard ended
up receiving four years in prison for it.149
In Dallas, Gary Baker was charged with 0.1076 grams of cocaine. Although he was arrested
for outstanding traffic tickets, he and his attorney said the police searched his car for 45
145 Human Rights Watch interview with Bill Moore (pseudonym), Dallas, March 8, 2016.
146 Human Rights Watch interview with Hector Ruiz (pseudonym), Fort Worth, March 11, 2016.
147 Human Rights Watch interview with defense attorney, Houston, March 14, 2016.
148 Organisation for Economic Co-operation and Development, “OECD Health Statistics 2016: Definitions, Sources and

Methods: Tobacco consumption in grams per capita (age 15+),” June 2016, http://stats.oecd.org/
fileview2.aspx?IDFile=8e59b835-8196-426e-9297-15bc1dab652c (accessed June 23, 2016).
149 Human Rights Watch interview with Leonard Lewis (pseudonym), Houston, March 15, 2016.

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minutes without finding anything. At his arraignment, the judge informed him he was also
charged with possession of a controlled substance. Apparently, after Gary had been taken
to booking, an officer reported finding what Gary remembered being described as “crumbs
of crack cocaine” on the car console. Gary told us he did not know where the crumbs came
from: “For the little amount of cocaine they found in my car, if I put it in your car, you
wouldn’t even notice it. Some ‘crumbs’?”150 The 0.1 grams allegedly discovered by the
police is the equivalent in weight of 28 thousandths of a sugar packet.
In Granbury, Texas, Matthew Russell was charged with possession of methamphetamines
for an amount so small that the laboratory result read only “trace.” The lab technician did
not even assign a fraction of a gram to it. Matthew said the trace amount was recovered
from inside his girlfriend’s house, while he was outside. Under the circumstances, he
speculated—quite reasonably—that he was charged because of his history of drug use:
“I’m not guilty of what they charged me with. I didn’t have any drugs in my possession. Am
I guilty of being a drug user? Yes, I am. Did I use drugs the day before? Yes, I did. I admitted
that. But I didn’t have any drugs on me. I shouldn’t be here.”151
The prosecutor sought enhancements because Matthew had prior felony convictions, mostly
out-of-state and related to his drug dependence, Matthew told us. Because of his priors,
Matthew faced 2 to 20 years for this trace amount. The prosecutor did not have to seek these
enhancements. He also could have offered Matthew a gentler plea deal. Instead, he offered
a 3-year discount off the statutory maximum in exchange for a guilty plea: 17 years for a trace
case. Matthew refused and insisted on his right to trial. After 21 months of pretrial detention,
Matthew finally went to trial in August 2016. A jury convicted him of possessing a trace
amount of methamphetamines and sentenced him to 15 years in prison.152
Explaining why prosecutors pursue so many state jail possession cases, Galveston
prosecutor Chris Henderson told us, “The idea behind it is that we want to prevent the
bigger cases that may come down the line…. So we want to try to get to those people early.
We want to prevent the murder in a drug deal gone wrong, theft, child endangerment, the

150 Human Rights Watch interview with Gary Baker (pseudonym), Dallas, March 9, 2016.
151 Human Rights Watch interview with Matthew Russell (pseudonym), Granbury, March 10, 2016.
152 Human Rights Watch correspondence with defense attorney, August 19, 2016.

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larger cases…. If we decided not to prosecute small drug cases, we’d see situations like
that more often.”153 However, we are aware of no empirical evidence that low-level drug
possession defendants would otherwise go on to commit violent crimes such as murder,
and the theft and child endangerment cases can be addressed with the laws that
criminalize them.154 When we asked him whether he thought state jail prosecutions were
working to stop crime, he added, “No, I don’t think so.”155

Paraphernalia Charged as Possession
In a handful of cases we investigated in Texas and Louisiana, defendants had drug
paraphernalia, such as pipes, straws, syringes, or even empty baggies, in their possession
when they were confronted by the police. But instead of simply charging them with
misdemeanor drug paraphernalia—or letting them go—the police arrested them for drug
possession because of the residue or trace amount of drugs left in or on the paraphernalia.
And rather than questioning the utility of those arrests, prosecutors formally charged and
prosecuted the defendants for drug possession.
Former District Attorney Paul Carmouche explained that the police typically make the initial
decision to charge paraphernalia as possession, but that they have discretion not to arrest
in those cases at all: “If it were good cops … they would say, ‘This is BS, we’re not going to
do that.’ So, residue … I don’t think it ought to be charged. The problem for the DA’s office
is, it’s going to come in as a possession of cocaine [because] the police are always going
to charge the most serious under the facts of the case.”156
In such scenarios, the prosecutor still has the authority to reduce the charges, or to
dismiss the case altogether. Yet in practice prosecutors often do not deviate in their
charges from what is listed on the police report. For example, our data shows that in 93
percent of all drug use/possession cases that were filed in Florida, prosecutors did not
deviate from the police arrest charge.157

153 Human Rights Watch phone interview with Chris Henderson, August 9, 2016.
154 See section I, The Human Rights Case for Decriminalization.
155 Human Rights Watch phone interview with Chris Henderson, August 9, 2016.
156 Human Rights Watch interview with Paul Carmouche, Shreveport, February 9, 2016.
157 Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction System data

from 2010 to 2015.

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In Miami, where drug possession carries up to five years in prison, Melba Pearson told us:
[As to] residue prosecutions, it’s ridiculous to potentially incarcerate for five
years when you don’t even have the substance on you. The theory is you
just smoked it, but we don’t know that’s necessarily true. When you don’t
even have it in your possession, to charge it as a felony, the punishment
doesn’t fit the crime. It’s a bad use of resources. Prosecutors are
overburdened and resources are better directed to more serious crime.
Enforcing residue cases is a philosophy reflective of “lock everyone up.’’158
The consequences of that philosophy play out in terms of human lives.
In St. Tammany Parish, Louisiana, District Defender John Lindner told us he was still seeing
residue cases where needles were charged as heroin possession, which in the state carries
a minimum of four years and up to ten years in prison.159 For example, Amanda Price and
her friend were arrested for a needle in St. Tammany Parish. After she had spent two
months in pretrial detention, Amanda’s charge was reduced to a misdemeanor, but only
after her friend (and co-defendant) said the needle was his and took the heroin possession
conviction himself.160
Prosecutors have even pursued felony indictments and accepted guilty pleas for drug
possession in the absence of any evidence. Jason Gaines said he was arrested in
Granbury, Texas, for having one syringe cap in his pocket and three unused needles near
him, one of which was missing a cap. He said after he had been handcuffed, the police
asked if he used meth, and he said yes.161 According to his attorney, the lab report showed
that the syringes were never actually tested, and no meth was found on Jason’s person.162
On these facts, the prosecutor should not have charged Jason at all; if the needles were
unused, there was no real evidence he had committed any crime, only that he might

158 Human Rights Watch interview with Melba Pearson,

Miami, December 17, 2015.

159 Human Rights Watch interview with John Lindner, Covington, January 28, 2016.
160 Human Rights Watch interview with Amanda Price (pseudonym), Covington, January 28, 2016.
161 Human Rights Watch interview with Jason Gaines (pseudonym), Granbury, March 10, 2016.
162 Human Rights Watch interview with defense attorney, Granbury, March 10, 2016.

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eventually inject drugs sometime in the future—and that he was preparing to do so safely
with clean needles.163 But even if the prosecutor insisted on charging Jason, he could have
charged misdemeanor drug paraphernalia. Instead, the prosecutor pursued a felony
charge and 89 days after Jason was arrested—one day short of the maximum 90 days
Texas prosecutors have to obtain a felony indictment164—Jason was indicted for his first
felony: possession of methamphetamines. He said:
I was thinking, I told them I was a meth user, which explains why on the
indictment it came back methamphetamine. If I were to have told them
heroin, it makes me think my indictment would have said heroin,
because the needles were brand new; there is no way they could have
tested for methamphetamine.165
Jason pled to four years’ probation on the same day the indictment was read to him in
court, before he knew that the lab had never performed a drug test. Jason ultimately had
his probation revoked for failure to report to his probation officer, and he pled to 20
months in a Texas state jail facility.166
Alyssa Burns was arrested in Houston for a meth pipe and charged with drug possession,
her first felony. She said police performed a field test on the pipe, pouring a liquid inside
that turned blue to show residue.
Trace cases need to be reevaluated. If you’re being charged with a .01 for a
controlled substance, the fact that it turned blue, even if there’s nothing in

163 Criminalizing possession of syringes interferes with the right to health. Human Rights Watch, In Harm’s Way: State

Response to Sex Workers, Drug Users and HIV in New Orleans, December 2013,
https://www.hrw.org/report/2013/12/11/harms-way/state-response-sex-workers-drug-users-and-hiv-new-orleans; Human
Rights Watch, Injecting Reason: Human Rights and HIV Prevention for Injection Drug Users: California: A Case Study,
September 2003, https://www.hrw.org/report/2003/09/08/injecting-reason/human-rights-and-hiv-prevention-injectiondrug-users.
164 TX Code of Criminal Procedure art. 17.151; Human Rights Watch email correspondence with defense attorney, August 24,

2016.
165 Human Rights Watch interview with Jason Gaines (pseudonym), Granbury, March 10, 2016. We assume that in most

jurisdictions admitting to using drugs as a general proposition is not sufficient evidence—is not a confession—of current
drug possession. A statement that someone uses drugs is not evidence that they possess any.
166 Ibid.

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it, that’s an empty baggie, that’s an empty pipe. There used to be
something in it. They are ruining people’s lives over it.167
In Galveston, Breanna Wheeler’s lawyer said she waited 79 minutes while officers called a
canine unit and searched the car in which she was a passenger. Breanna told us they
found an empty plastic bag under her seat which they alleged belonged to her and had
methamphetamine residue on it. After a period of pretrial detention because she could not
afford bail, Breanna, a single mother, pled to her first felony conviction and time served so
she could return home to her young daughter.168
In Houston, Nicole Bishop was charged with two counts of felony possession for heroin
residue in an empty baggie and cocaine residue in a plastic straw. The charges meant she
was separated from her three children, including her breastfeeding baby. She had been in
pretrial detention for two months already when we interviewed her in March 2016.169
Miami Judge Dennis Murphy told us judges can take an active role to ensure defendants
are not charged with possession for mere drug paraphernalia:
There’s so much space for judicial discretion. The police and SA’s [State
Attorney’s] office will typically arrest for residue and charge for
paraphernalia and possession. When a defendant is arraigned in my
division and the lab report says merely residue, the defendant is invited to
[move to] dismiss the possession [charge]…. So I dismiss the possession
and let them plead to paraphernalia. Despite case law from the Third
District [Court of Appeal] saying [residue] is still possession, I disagree.170

Medications Made into Felonies
A number of interviewees were charged with felony drug possession for medications for
which they could not provide the prescription. Some interviewees said they were

167 Human Rights Watch interview with Alyssa Burns (pseudonym), Houston, March 15, 2016.
168 Human Rights Watch interview with Breanna Wheeler (pseudonym), Galveston, March 17, 2016.
169 Human Rights Watch interview with Nicole Bishop (pseudonym), Houston, March 14, 2016.
170 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015.

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prescribed the medication in question but had allowed the prescription to lapse.171 Others
had a partner’s or friend’s medication in their possession when they were arrested. None
of them were formally accused of dealing or committing fraud in obtaining the
medications. And none of them felt they should be considered criminals simply for
possessing pills many other people in the United States keep in their medicine cabinets.
Possession of certain prescription medications without evidence of the prescription is
criminalized, sometimes at the felony level, in most states.172 Although this may derive
from a legislative intent to curb misuse and unlawful sale of prescription medicines, and is
particularly relevant today with respect to prescription painkillers, its enforcement can be
overbroad. Some of the cases we learned about suggest a lack of reasonableness and
prosecutorial investigation that might have revealed mitigating facts, where prosecutors
failed to exercise discretion to decline cases or to seek lesser charges and instead pursued
cases aggressively.
Defendants we met were prosecuted with felony charges for possession of commonly
prescribed medications including Adderall, Vyvanse, Xanax, and Klonopin.173 Anita
Robinson, 25, was charged with felony drug possession in Houston for seven Adderall
pills. She said that, from the prosecutor’s perspective, “it doesn’t matter that it’s Adderall.
[They treat it] like it could be meth or cocaine or whatever; it’s just classified with those
same drugs.”174
Furthermore, in some Texas cases we examined in March 2016, prosecutors sought
sentencing enhancements for these offenses or chose to charge according to the total
weight of the pills, rather than the strength of the medication within them. For example,
Adderall pills come in 5 to 30 mg strengths, but because the prosecutor considered the

171 It was unclear whether in these cases people had received the pills from another source or whether they were charged

with the pills they had initially been prescribed. Texas defense attorney Vik Vrij told us that a number of his clients had been
charged with drug possession for pills for which the prescription had expired and/or that were being carried out of the bottle.
Although he said he succeeded in getting felony charges dismissed, the fact that the prosecutor brought them initially is of
concern. Human Rights Watch phone interview with Vik Vrij, July 20, 2016.
172 See, for example, Louisiana Commission on Law Enforcement and Administration of Criminal Justice, “Drug Law

Comparisons Charts of Southern States,” undated,
http://www.lcle.la.gov/sentencing_commission/Resources/I%20B.%20Controlled%20Substance%20Comparison.pdf
(accessed June 22, 2016).
173 These medications are commonly prescribed for Attention Deficit Disorder and anxiety.
174 Human Rights Watch interview with Anita Robinson (pseudonym), Dallas, March 9, 2016.

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entire weight of the pills, George Morris’ possession of seven 20 mg strength Adderall pills
translated into a third degree felony under Texas law.

George Morris’ Story
George Morris told us his story as follows:
When he was 17 years old, George was convicted of burglary. George said he entered the
open window of a friend who owed him money and took a PlayStation 2, and that he was
prosecuted for burglary even though his friend’s mother tried to get the charges
dropped. He served three years in prison.
Ten years later, George was arrested in The Colony, Texas, when police found seven 20
mg Adderall pills in his car. George told us the pills were prescribed to his girlfriend.
Because of his prior felony, he faced up to 20 years in prison for possession of the seven
pills, despite the fact that the combined strength of the pills was a mere 0.14 grams.
Prosecutors chose to enhance George’s charge with the PlayStation 2 conviction so that
he faced up to 20 years for the pills. They ultimately offered him six years in prison in
exchange for a guilty plea. Although six years is significantly less than a possible 20, it
is a very long time from any other perspective and is a grossly disproportionate
punishment for George’s “crime.”
When he spoke to us, George was out on bond and had not decided whether to take the
offer, but he said this case had already destroyed his life. He said it caused him to go
into a depression for which he was hospitalized. His relationship with his girlfriend of 12
years was strained and eventually ended. His depression was so severe that he left his
job and lost his house. He told us, “When I caught that charge, it took so much out of me
because I was not doing anything to break the law, not doing anything to affect or hurt
anyone around me…. Six years of your life … for seven Adderall pills.”175
Before being prosecuted, George said he had a small grass-cutting and construction
business; he woke up every day at 8 a.m. and worked all day. He told us everybody

175 Human Rights Watch interview with George Morris (pseudonym), The Colony, March 12, 2016.

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knew they could make a little money on the side if they sold drugs but that he refused
to do so:
I made a vow to God … I am not going to have these drugs; I am not
going to sell no drugs; I am not going to do any drugs. I am going to
focus on what I need to focus on, and that is cutting green grass and
building fences. So that’s what I did…. But I gave up on [that] when I
caught that case. I was just like, there’s no point in living.... I stay in my
room and I sleep.176

We met many others like George. One of them was Amit Goel, a 19-year-old college
sophomore in Dallas who had been prescribed Adderall since high school but said that he
let his prescription run out the previous month. He was arrested with eight pills of Adderall
and Vyvanse, another ADHD medication, and was facing a third degree felony for drug
possession, which carries two to ten years in prison. He told us he got his prescription
renewed the month after his arrest, but the prosecutor continued to pursue felony charges,
on what would be Amit’s first felony conviction.177
Months after our visit to Texas, practitioners told us it had been discovered that
possession of Adderall and Vyvanse was “mistakenly” no longer a felony offense, due to
the “unintended consequences” of a Texas bill passed in 2015. According to the Texas
District and County Attorneys Association, “The upshot of all this is that after September
1,2015, most (all?) Adderall and Vyvanse crimes became misdemeanors, not felonies.”178

176 Ibid.
177 Human Rights Watch interview with Amit Goel (pseudonym), Dallas, March 7, 2016.
178 Parenthetical and emphasis in original. See Texas District and County Attorneys Association, “Important notice about

Adderall (updated),” August 5, 2016, http://www.tdcaa.com/announcements/important-notice-about-adderall-updated
(accessed August 9, 2016) (“SB 172 added a new subsection (d) to Health & Safety Code §481.103 that excludes any FDAapproved substances from Penalty Group 2 (PG2), even if specifically listed in that section. This FDA-approval language was
intended by the original supporters of the bill to be limited to only certain substances in PG2, but the final version mistakenly
applies that exemption to all substances listed in PG2. No one knows exactly why that was changed, but regardless, we are
stuck with the plain language of this broad exemption…. Therefore, if our analysis is correct, you should immediately change
your charging protocols, alert your local law enforcement to this change, and then review past cases to see if any of them
need to be re-opened. So … good luck with that!”). Human Rights Watch confirmed this change with an assistant district
attorney and several defense attorneys. The news appeared slow to spread.

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The three Texas cases, on the previous page, were all being prosecuted as felonies
in March.179
In Jefferson Parish, Louisiana, Darius Mitchell, profiled in section IV, was charged with his
first felony for hydrocodone pills he said his son’s mother had left in his car after their visit
to the Emergency Room.180 In Shreveport, Glenda Hughes pled guilty to her first felony for
possession of pills that she said were her husband’s. She told us she was arrested in her
nightgown, without shoes, having run out the door with her purse after her husband beat
her. She said that her husband was prescribed Klonopin and, because he would misuse
them, she carried them for him to help him comply with the prescribed dosage. Glenda
told us her husband said the pills were his and tried to explain things to the prosecutor.181

Charging Distribution in Possession Cases
In all four states we visited, some defendants were arrested in possession of drugs that
they said were for their own use, but prosecutors chose to charge distribution or
possession with intent to distribute (PWID)—without making any effort, as far as
defendants or their lawyers could tell, to investigate whether the drugs were in fact for
personal use.
Pursuing distribution charges for facts supporting simple possession is yet another
example of prosecutors’ charging as aggressively as possible. A Caddo Parish defense
attorney summed up what many had told us in all four states we visited: “They overbill the
PWID charges. Anything approaching the weight [of distribution], anything with baggies.
[Because] if the charge is PWID, it’s a higher bond.”182 Because a higher bond means
defendants are more likely to have to wait in jail until their case is disposed, and because
PWID carries longer sentences, many interviewees felt the charge was meant to force their

179 The change in the law appears not

to be retroactive, so that those charged before the effective date of September 1, 2015
can still be prosecuted on felony charges. Texas SB 172, sec. 4. All three of the Texas cases above predated September 2015.
180 Human Rights Watch interview with Darius Mitchell (pseudonym), Harvey, January 24,

2016.

181 Human Rights Watch interview with Glenda Hughes (pseudonym), Shreveport, February 6, 2016. Glenda said neither her

lawyer nor the prosecutor nor the judge tried to obtain evidence of her husband’s prescription or to investigate why she was
in possession of the pills.
182 Human Rights Watch interview with defense attorney, Shreveport, February 6, 2016.

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hands so they would accept a plea offer on simple possession, a topic explored in more
depth in the next section.
In most states, PWID is usually proved based on circumstantial evidence such as the
presence of individually packaged bags; scales, ledgers, or records of sales; and, more
problematically, the presence of cash. In some states, drug quantity alone is presumptive
evidence of possession with intent to distribute or of distribution.183 In Florida, possession
over certain thresholds is considered drug trafficking.184 Although individually packaged
bags, scales, ledgers, and sales records may be sound evidence of distribution in some
cases,185 cash or quantity alone is problematic.
As Judge Murphy told us in Miami, “More than half the time, those PWIDs [should] become
possession charges.... You get people on payday [so they have cash]. There goes your rent
check, your food check.”186 Using the presence of cash as evidence of distribution is
flawed, both as a matter of evidence and as a matter of fairness. It is clearly not illegal to
carry cash; without more, a person’s possession of significant sums in cash is at best
extremely dubious evidence of criminal activity of any kind. At worst, it is a flimsy pretext
to bolster charges that lack real evidence to support them. In fact, poor people may be
more likely to carry cash on them, not because they are drug dealers but because they are
less likely to maintain a bank account. A large percentage of poor people are unbanked
(having no bank account) or underbanked (relying more heavily on alternative financial
providers than on their bank). Black and Latino households are significantly more likely to
be unbanked or underbanked than white households.187

183 For example, in South Carolina, possession of two grains or more of heroin, one gram or more of cocaine, or 28 grams

(one ounce) or more of marijuana establishes prima facie evidence of intent to distribute. SC Stat. secs. 44-53-370(d)(1), 4453-375.
184 Florida recently lowered some of the thresholds for prescription drugs. Families Against Mandatory Minimums, “How the
Reforms to Prescription Drug Trafficking Laws Affect Sentencing Policy in Florida,” undated, http://famm.org/statesmap/florida/how-the-reforms-to-prescription-drug-trafficking-laws-affect-sentencing-policy-in-florida/ (accessed July 31,
2016).
185 In various jurisdictions, some interviewees said where individually packaged bags were evidence of intent to distribute, it

was important that prosecutors consider the number of bags, since a person who purchased drugs for personal use might
still have several of them packaged in this way. Others said the presence of a scale alone should not be sufficient evidence,
since it is reasonable for anyone buying drugs for personal use to weigh them first, to avoid being cheated.
186 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015.
187 People who do not have full access to banks must keep their money in their homes or on their person. Many people who

are unbanked or underbanked carry large sums of cash at certain times, perhaps to pay a full month’s rent, to pay for a car,
or after receiving a month’s wages. This leaves them more vulnerable to law enforcement suspicion and cash seizures. The

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In a case in Shreveport, a defendant and his attorney reported that prosecutors used the
fact that the defendant had $800 cash on him to increase the charges against him to
include distribution of drugs, and that they did so even after he showed them he had just
cashed a check from an insurance claim from a car accident.
David Ross said he was arrested in 2013 with a couple of grams of methamphetamines and
eight to ten Percocet pills. Although there was no evidence of actual dealing, he was
charged with two separate counts of distribution because he had drugs and money on him.
In the courtroom, David told us, the prosecutor offered to lower the charges to possession
if he took 10 years in prison—5 on each charge, run consecutively. David accepted on the
spot, and the police kept his $800 through civil forfeiture. He said:
[My cases were] always possession, because I’ve had a drug problem since
I was 16 or 17 years old…. They’re going to say you’re distributing when they
know you’re not, so that when it comes to make a deal with you they will
drop it down to simple possession and max you out. And you’re happy to
take it, as you’d rather do 5 than 30.188
In addition to the problems of relying solely on cash as evidence, a number of interviewees
argued it is a mistake to assume a larger quantity of drugs means the person is necessarily
distributing. They said they buy a larger amount because it is cheaper and so that they do
not need to return so frequently to their dealer, which can be dangerous and intimidating.
Carla James was arrested in Dallas in 2010 for possession of seven grams of
methamphetamines. Although she said the police wrote it up as drug possession, she was
indicted on distribution charges because of the quantity. But she explained the meth was
for personal use:

unbanked and underbanked populations are disproportionately poor and non-white. In 2013, 50.1 percent of households
with family income less than $15,000 were unbanked or underbanked, 36.4 percent with family income between $15,000
and $30,000 were unbanked or underbanked, and 28.4 percent with income between $30,000 and $50,000 were unbanked
or underbanked. Additionally, roughly half of all Latino and Black households are unbanked or underbanked, while only one
in five white households is. Federal Deposit Insurance Corporation, “2013 FDIC National Survey of Unbanked and
Underbanked Households,” October 2014, ht https://www.fdic.gov/householdsurvey/2013report.pdf (accessed June 6,
2016), pp. 16-17.
188 Distribution carries up to 30 years in Louisiana. Human Rights Watch interview with David Ross (pseudonym), Shreveport,

February 9, 2016.

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I bought a large quantity because I didn’t like going to the dope house….
You get more for your money when you get a higher amount…. It’s just like
going to the grocery store…. You know you need a gallon of milk to make it
to Friday. A gallon costs $2.50, and a half gallon costs $1.75. Why would
you buy the half gallon, knowing it’s only going to last half of the week,
when the full gallon is only [75 cents] more? Why buy a gram for $100 when
you could buy 7 for $300?189
Where judges call foul, some prosecutors amend the charge down to possession. In Caddo
Parish, Louisiana, Judge Craig Marcotte said he had intervened in this way:
Now, have I seen cases charged with possession with intent when they
should have been possession? Sure. You can say this looks like possession
to me, not possession with intent, which I have done before. A lot of the
times, they say, “Okay, judge” [and they downgrade the charge]. You can
just tell … you know, having done this for so long, having seen thousands
and thousands of these cases.190

189 Human Rights Watch interview with Carla James (pseudonym), Dallas, March 9, 2016.
190 Human Rights Watch interview with Judge Craig Marcotte, Shreveport, February 4, 2016.

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VI. Pretrial Detention and the False Choice of a Plea Deal
Bail is very wrong here, very wrong. It’s always too high. That causes at
least two problems that I see. Number one, it causes more people to have
to stay in jail. [Number two,] when people are sitting in jail they’re much
more prone to say, “Well, I’ll plead because I’ll get out.”… [But] they
shouldn’t have been there in the first place. They should have had an
unsecured promise to come to court. Because [pleading] is going to come
to haunt you down the line.191
―Paul Carmouche, former district attorney for Caddo Parish, Louisiana, February 2016

Pretrial detention in drug cases contributes significantly to soaring jail and prison
admissions and the standing incarcerated population in the United States. In 2014,
approximately 64,000 people per day were detained pretrial for drug possession,192 many
of them in jail solely because they could not afford to post bail. As detailed in this section,
this fact gives prosecutors significant leverage to coerce plea deals.
Pretrial detention, an inherently negative experience, also separates many defendants from
their families and jobs and threatens lasting harm or disruption to their lives. To avoid all of
this—or because long sentences otherwise hang over their head if they lose at trial—many
defendants plead guilty simply to secure their release, in cases where they might otherwise
want to go to trial.

Pretrial Detention
During the pretrial stages of a criminal case, judges can either release defendants on their own
recognizance or set a money bond (also known as bail).193 Release on own recognizance (ROR),
also known as a personal recognizance (PR) bond, permits someone to be released until the

191 Human Rights Watch interview with Paul Carmouche, Shreveport, February 9, 2016.
192 Peter Wagner and Bernadette Rabuy, “Mass Incarceration: The Whole Pie 2016,” Prison Policy Initiative, March 14, 2016,
http://www.prisonpolicy.org/reports/pie2016.html (accessed August 11, 2016).
193 Some statutes allow for no bond to be set in certain cases of extremely dangerous offenses, but drug possession is not

one of those offenses. Thus all drug possession defendants should in theory have the opportunity to be released pretrial if
they can make bond.

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next court date simply on a promise to appear; they must pay the specified bond amount if they
fail to do so. For people we interviewed in Texas and Louisiana, a PR bond was not offered, even
though it was statutorily available to the judge. Instead, bail was set at thousands of dollars.194
Defendants who cannot afford to pay the full bail amount often use a bondsman instead. Under
this scheme, defendants pay a fee to a private bondsman company (sometimes 10 to 13 percent
of the total bail amount), and the bondsman then takes on the obligation to ensure their
reappearance. Defendants never receive the bondsman’s payment back, so the system has the
effect of imposing financial costs on low-income defendants that people who possess the
independent means to post bail do not incur. If defendants lack the financial resources to post
bail, either through a bondsman or on their own, they remain incarcerated either until they
come up with the money or until case disposition.
That effect is wide-reaching. In the two states for which we received court data containing
attorney information, the majority of drug possession defendants were indigent—in other
words, poor enough that they qualified for court-appointed counsel. In Florida, 64 percent
of felony drug possession defendants relied on court-appointed rather than retained
counsel. In Alabama, the rate was 70 percent, including marijuana as well as felony drug
possession.195 And these numbers are conservative, because indigent defendants who
qualify for court-appointed counsel may still choose to sacrifice other resources and needs
to pay for an attorney.196
High rates of pretrial detention reflect the reality that judges set bail so high that many
defendants cannot afford it. In 2009, the most recent year for which the US Department of
Justice has published data, 34 percent of possession defendants were detained pretrial in the
75 largest counties. Nearly all of those detained pretrial (91.4 percent) were held on bail,
194 Every criminal defendant has a right to have their bond set within 72 hours of arrest, at which point a neutral magistrate

determines the proper bond for the individual case to achieve the goals of the state’s bond system. According to defense
attorneys in St. Tammany Parish, Louisiana, this is done by a bond commissioner who visits the parish jail twice per week. If
this is true, it means that St. Tammany Parish would be systematically violating the 72-hour rule.
195 By comparison, the rate of appointed counsel use for non-drug felony cases was 57 percent in Florida. (Alabama only

provided data on drug cases.) Human Rights Watch analysis of data provided by the Florida Offender Based Transaction
System from 2010 to 2015 and the Alabama Sentencing Commission.
196 Moreover, even those who do not meet the indigency cut-off may still have limited financial means. John P. Gross, “Too
Poor to Hire a Lawyer but Not Indigent: How States Use the Federal Poverty Guidelines to Deprive Defendants of their Sixth
Amendment Right to Counsel,” Washington and Lee Law Review, vol. 70 (2013),http://scholarlycommons.law.wlu.edu
/cgi/viewcontent.cgi?article=4331&context=wlulr (accessed September 23, 2016), pp. 1173-1219.

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meaning that if they had had the means to pay, they would have been released.197 That same
year, possession defendants in the 75 largest counties had an average bail of $24,000.
Because the higher the bail, the more likely someone will not be able to afford it, the average
bail for those detained was even higher. For those defendants, the average was $39,900.198
The money bail system is premised on the idea that defendants will pay to get out of jail and
that, if the amount is high enough, they will return to court to get their money back. In theory,
the principal goal is to ensure that defendants return: in other words, to prevent flight.199 Yet
data shows that drug possession defendants released pretrial do come back to court.
Human Rights Watch has previously examined the myth that released defendants evade
justice in New York.200 Failure to appear rates are similarly low in other jurisdictions and for
drug possession specifically. In the 75 largest US counties in 2009, 78 percent of people
charged with possession and released pretrial made all their appearances in court; another
18 percent returned to court after their missed appearance(s). This means that in total 96
percent of all possession defendants ultimately came back to court.201 Although the data
does not indicate whether these defendants posted bail or were released on their own
recognizance, it certainly counsels in favor of affordable bond that enables release.
When judges set bond, the amount should be individually tailored, reflecting an
individualized determination not only of the flight risk posed by a particular defendant but
also of that person’s ability to pay.202 But in many jurisdictions we visited, interviewees said
judges did not take their individual circumstances into account. In St. Tammany Parish,
interviewees said their bonds were set even before they had met their appointed counsel,

197 Brian A. Reaves, Ph.D., “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” US Department of Justice,

Bureau of Justice Statistics, December 2013, http://www.bjs.gov/content/pub/pdf/fdluc09.pdf (accessed September 25,
2016), table 12.
198 Ibid., table 16.
199 Some jurisdictions also set bail because prosecutors and judges are concerned the defendant would be a danger to the

community if released.
200 Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York

City, December 2010, https://www.hrw.org/report/2010/12/02/price-freedom/bail-and-pretrial-detention-low-incomenonfelony-defendants-new-york.
201 Brian A. Reaves, Ph.D., “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” table 18. The data is
limited to defendants who returned within one year but does not distinguish between those who returned within 24 hours
and those who took longer.
202 Each state has a separate set of factors. For a discussion of statutory factors applied in New York, see Human Rights

Watch, The Price of Freedom, pp. 13-19.

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without a formal hearing. In a number of jurisdictions in Louisiana, bond is routinely set
high, and it is up to the defense counsel to file a motion to reduce bond, which is then
scheduled for a hearing sometime later. For low-income defendants unable to pay a high
bond, this means they remain detained at least until the bond is reduced some weeks later.
In Texas and Louisiana, we interviewed approximately 30 defendants who could not afford
the bondsman amount, let alone their full bail, and as a result were forced to remain in
pretrial detention until their case was resolved. For some people, taking a case to trial may
mean languishing in detention for over a year. Even for those ready to enter a plea deal,
many had to spend months in detention before the prosecutor made an offer. In 2009, the
median time between arrest and adjudication for possession defendants in the 75 largest
counties was 65 days,203 which would be spent in jail if a person could not afford bond. For
people we interviewed, the wait was often much longer. Jason Gaines was charged with drug
possession in Granbury, Texas, and said his bond was set at $7,500. He told us, “It was
important to bond out because I didn’t want to be stuck in here forever. It takes at least three
months to go to court for your first offer.”204
In our jail interviews in Texas and Louisiana, some pretrial detainees were waiting in jail while
their attorneys investigated the case and filed pretrial motions, so that if they were going to
consider pleading guilty, they could do so with a better sense of the strengths and weaknesses
of their case. Other interviewees remained in pretrial detention because they wanted to go to
trial or because they were hoping to get a better offer from the prosecutor. Some said they
ultimately gave up, because fighting a case—either at trial or through pretrial motions such as
for suppression of evidence—meant waiting too many months. Delays can be caused by
overburdened courts and public defender systems, laboratory testing, and lack of
communication between offices. When we met him, Matthew Russell had been waiting in
pretrial detention for 16 months to take his “trace” possession case to trial. He said, “[If I didn’t
have priors,] I’d be looking at 24 months.205 I’ve done 16 [pretrial]…. I spent my 39th birthday
here, my 40th birthday here in this jail … waiting to go to trial.”206

203 Brian A. Reaves, Ph.D., “Felony Defendants in Large Urban Counties,

2009 - Statistical Tables,” table 20.

204 Human Rights Watch interview with Jason Gaines (pseudonym), Granbury, March 10, 2016.
205 The maximum sentence for possession under one gram in Texas is two years.
206 Human Rights Watch interview with Matthew Russell (pseudonym), Granbury, March 10, 2016.

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Bond Schedules
In Texas jurisdictions we visited, bail was set according to bond schedules that
provided presumptive amounts of bail according to the charge, sometimes with
enhancements for criminal history, but regardless of ability to pay. As a one-size-fitsall model, bond schedules deprive defendants of individualized determinations. In
litigation, the US has emphasized that it would be unconstitutional for detention to
depend solely on a person’s ability to pay the schedule amount.207
Yet the use of bond schedules is prevalent nationwide. A 2009 study of the 112 most
populous counties found that 64 percent of those jurisdictions relied on them.208
Presumptive bail amounts may also vary greatly between jurisdictions within a state,
increasing the arbitrariness and inequality of the practice. For example, the ACLU of
California reported in 2012 that there were 58 different bond schedules in use across the
state. For simple drug possession, presumptive bail amounts were $5,000 in Fresno and
Sacramento, $10,000 in Alameda and Los Angeles, and $25,000 in San Bernardino and
Tulare.209 Although, in theory, judges can depart from the schedule in individual cases,
defense attorneys told us that as a matter of practice they rarely do.

High bonds also mean that some people we spoke with were detained pretrial even
though they were only facing probation post-conviction. In Texas, a first offense state
jail felony requires mandatory probation if the person is convicted. Yet many people
are detained pretrial, sometimes even for months, before they are convicted and
sentenced to probation. This means that someone ends up doing jail time in a case
for which the legislature, judge, prosecutor, and defense attorney all agree any period

207 As the US Attorney General has phrased it, “It is the position of the United States that, as courts have long recognized,

any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release,
without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes
bad public policy…. Fundamental and long-standing principles of equal protection squarely prohibit bail schemes based
solely on the ability to pay. Fixed-sum bail schemes do not meet these mandates. By using a predetermined schedule for bail
amounts based solely on the charges a defendant faces, these schemes do not properly account for other important factors,
such as the defendant’s potential dangerousness or risk of flight.” Varden v. City of Clanton, No. 15-cv-00034-MHT-WC (M.D.
Al.), Statement of Interest of the United States (filed February 13, 2015).
208 Pretrial Justice Institute, “Pretrial Justice in America: A Survey of County Pretrial Release Policies, Practices and

Outcomes,” September 2010, http://www.pretrial.org/download/research/PJI%20Pretrial%20Justice%20in%20
America%20-%20Scan%20of%20Practices%202009.pdf (accessed September 25, 2016), p. 7.
209 Allen Hopper, Margaret Dooley-Sammuli, and Kelli Evans, “Public Safety Realignment: California at a Crossroads,” ACLU
of California, March 2012, https://www.aclunc.org/sites/default/files/public_safety_realignment_california_at_a_
crossroads.pdf (accessed September 27, 2016), p. 20.

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of incarceration as a form of punishment is unwarranted.210

Waiting on Charges in Louisiana
Defense attorneys in Louisiana told us defendants experienced long waits in detention
before the prosecutor charged them through a formal bill of information or indictment.
Under international human rights law, authorities cannot hold individuals for extended
periods without charge; to do so amounts to arbitrary detention. The US Supreme Court
has held that within 48 hours of arrest, a judge or magistrate must make a probable
cause determination that the detainee has committed some crime.211 But beyond the 48hour rule, the prosecutor has still more time to decide which charges to bring—the
Supreme Court has not yet ruled on how long this period may be, and jurisdictions vary
widely in how they regulate it.
Under Louisiana Code of Criminal Procedure article 701, the district attorney’s (DA)
office has 60 days to “accept” the charges in the police report for a felony defendant
detained pretrial—far in excess of the period many other US states allow.212 That means
for two months, a defendant who cannot afford bond, and who has not been formally
charged—let alone convicted—of any crime, is forced to wait in jail without even
knowing the charges against him or her. Judge Calvin Johnson told us, “You shouldn’t
be arresting a person on January 1 and charging him in March. I mean that just
shouldn’t be.”213 In St. Tammany and Calcasieu Parishes, public defenders told us that
prosecutors regularly would not file charges within the mandatory 60 days, and were
routinely granted extensions of time by the court—typically another 30 days—to make
their charging decision. Defendants and practitioners call this period of pretrial
detention “doing DA time.”

210 Although Louisiana law does not mandate this result the way Texas law does, some low-level possession defendants also
get probation on a first offense. Retired New Orleans Judge Calvin Johnson said this practice was nonsensical: “A [more
carefully] thought out system would start out with the premise, if you come to jail for an offense that the next day you could
walk into court and plead guilty and get probation for, then you shouldn’t get jail [time while you wait]. If the crime doesn’t
have a minimum sentence attached to it, and the individual does not have a prior history to dictate a jail sentence, then that
person shouldn’t be in jail [pretrial]. It’s stupid for that person to be in jail, for lots of reasons. The cost alone. Keep in mind,
in New Orleans it’s $103 a day.” Human Rights Watch interview with Calvin Johnson, New Orleans, January 26, 2016.
211 County of Riverside v. McLaughlin, 500 US 44 (1991).
212 The prosecutor has 150 days to file charges if the defendant has posted bond. LA Code of Criminal Procedure art. 701(B).
Many states require the prosecutor to bring charges within 72 hours of arrest. Florida requires formal charges to be brought
within 33 days. FL Rules of Criminal Procedure rule 3.134. New York requires formal charges within five days, or six days if the
custody period includes a weekend or holiday. NY Criminal Procedure Law sec. 180.80. California requires charges to be
brought within 48 hours. CA Penal Code sec. 825. The federal system gives the prosecutor 30 days. 18 USC sec. 3161.
213 Human Rights Watch interview with Calvin Johnson, New Orleans, January 26, 2016.

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Studies show that case outcomes for those fighting their charges from outside of jail are
across the board more favorable than for those who are detained pretrial. According to the
Bureau of Justice Statistics, in the 75 largest counties in 2009, fewer than 60 percent of
defendants charged with drug offenses were convicted if they were released pretrial;
however, close to 80 percent of those detained were convicted.214 Analyzing 60,000 cases in
Kentucky from 2009 and 2010, the Arnold Foundation found that defendants detained for
the entire pretrial period were over four times more likely to receive a jail sentence and over
three times more likely to receive a prison sentence than those released at some point
pretrial. Sentences were nearly three times as long for defendants sentenced to jail and
more than twice as long for those sentenced to prison than defendants released pretrial.215
One of the main reasons pretrial detention correlates with worse case outcomes is that
detainees may be more likely to plead guilty when they are already in jail. In fact, our
research suggests that prosecutors in some jurisdictions seek and judges set bail at an
amount they expect defendants will not be able to pay in order to ensure they end up in
pretrial detention, which makes them likely to accept a plea deal faster.216 Joyce Briggs told
us, “They hold you until you plead. That impacts people’s decision to plead. It impacts
mine. I know I’m not going to get more than three years and I’ve already done a half a year,
so—that’s how our minds work.”217
Conditioning loss of liberty on ability to pay infringes on the right to equality under the law
and amounts to wealth discrimination.218 Human rights law requires that pretrial

214 Brian A. Reaves,

Ph.D., “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” figure 17.

215 Christopher T. Lowenkamp, Ph.D, Marie VanNostrand, Ph.D., and Alexander Holsinger, Ph.D., “Investigating the Impact

of

Pretrial Detention on Sentencing Outcomes,” Arnold Foundation, November 2013, http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF_Report_state-sentencing_FNL.pdf (accessed September 25, 2016).
216 Setting bail to ensure pretrial detention will be discussed in a forthcoming Human Rights Watch report about bail in
California. See also Human Rights Watch, The Price of Freedom, pp. 31-33. Prosecutors know that once a defendant is out of
jail, their leverage to get a plea they like diminishes. The defendant who is outside is less likely to agree to a plea than the
person detained (as examined below), because time is on their side. This is part of the incentive for prosecutors to ensure
people remain detained pretrial. For example, we documented in New York City that those released pretrial on misdemeanor
offenses were unlikely to plead to an offense for which they would have to do more time in jail.
217 Human Rights Watch interview with Joyce Briggs (pseudonym), Shreveport, February 6,

2016.

218 It is currently the subject of litigation. Since 2015, for example, Equal Justice Under Law has filed 10 class action

challenges to the use of money bail in eight different states, several of which have implemented reforms as a result. The US
Department of Justice’s Civil Rights Division filed a statement of interest in one of them. Walker v. City of Calhoun (N.D. Ga.
2015); Pierce v. City of Velda (E.D. Mo. 2015); Thompson v. Moss Point (S.D. Miss. 2015); Varden v. City of Clanton (M.D. Al.
2015), Statement of Interest of the United States (filed February 13, 2015).

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restrictions be consistent with the right to liberty, the presumption of innocence, and the
right to equality under the law. Pretrial detention imposed on criminal defendants accused
of drug possession solely because they cannot afford bail is inconsistent with those rights.
The stress and suffering interviewees charged with drug possession endured in detention
simply because of their low-income status is unfair, unnecessary, and inconsistent with
human rights.

Coerced Guilty Pleas
They forced me. I mean there’s no doubt in my mind they forced me.219
―David Ross, on pleading guilty to drug possession in Caddo Parish, Louisiana

Like all criminal defendants in the United States, people charged with drug possession
have a right to trial by jury. In practice, however, jury trials are exceedingly rare, with the
majority of defendants at the state and federal levels—across all categories of crime—
resolving their cases through guilty pleas.220 In 2009, between 99 and 100 percent of
individuals convicted of drug possession in the 75 largest counties nationwide pled
guilty.221 In Texas, approximately 97 percent of all felony possession convictions between
September 2010 and January 2016 were obtained by a guilty plea.222 In Florida, more than
nine out of every ten people facing drug possession charges in court (both misdemeanor
and felony) between 2010 and 2015 pled guilty.223 Only 1 percent of all drug possession
defendants in the state went to trial.224 In New York, such trials were almost nonexistent:

219 Human Rights Watch interview with David Ross (pseudonym), Shreveport, February 9, 2016.
220 Often the plea comes with a plea agreement. After plea negotiations between the parties, the prosecutor’s offer of a

particular sentence is accepted by the defendant in return for his or her guilty plea in a binding contract. The parties then go
to the judge with the recommendation of the sentence. Most judges accept the guilty plea and impose that sentence, to
speed along the docket.
221 Brian A. Reaves, Ph.D., “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” US Department of Justice,

Bureau of Justice Statistics, December 2013, http://www.bjs.gov/content/pub/pdf/fdluc09.pdf (accessed September 22,
2016), table 21.
222 Human Rights Watch analysis of data provided by Texas Office of Court Administration.
223 This includes those who pled nolo contendere, or “no contest,” which means that a defendant does not contest the
prosecutor’s charges. Although it does not admit guilt, a nolo contendere plea has the same result—normally a conviction—
as a guilty plea. Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction
System data.
224 Ibid.

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99.8 percent of the 143,986 adults convicted of drug possession between 2010 and 2015
accepted plea deals.225
For scores of individuals interviewed for this report, the right to a jury trial was effectively
meaningless. For them, the idea of a trial was more of a threat than a right, often because
it meant further pretrial incarceration until trial and/or a “trial penalty” in the form of a
substantially longer sentence if they exercised that right and lost.
Part of the problem is that the criminal justice system is overburdened, which means not
only that prosecutors and judges are busy, but also that public defenders—who are often
substantially underfunded—do not have sufficient time and resources to devote to each
case,226 disparately impacting poor defendants, who make up the majority of those
charged with drug possession.
So long as dockets remain as crowded as they are today, there will be a powerful
incentive for prosecutors to secure pleas in as many cases as possible—including by
strong-arm means.227 As explained by former chief prosecutor Paul Carmouche, “If every
defendant said, ‘Hey, we’re going to trial,’ then the system stops. It would be jammed
up. You got to plead.”228
According to one Texas prosecutor, prosecutors feel pressure to move cases quickly, and
the pressure sometimes comes from judges:
It’s so unfair: Everybody in the criminal justice system knows that if a
person can’t bond out he’s more likely to plead and you’ll have your case
moved…. Judges will campaign on efficiency [and] in order to do that, to say
“I have the smallest docket of all judges,” they force the prosecutors to

225 Human Rights Watch analysis of New York Division of Criminal Justice Services data.
226 Yarls v. Bunton (M.D. La. 2016); John P. Gross, “Gideon at 50: A Three-Part Examination of Indigent Defense in America,

Part I: Rationing Justice: The Underfunding of Assigned Counsel Systems,” National Association of Criminal Defense Lawyers,
March 2013, https://www.nacdl.org/reports/gideonat50/rationingjustice/ (accessed September 25, 2016).
227 Prosecutors, judges, and defense attorneys benefit from the plea system because it expedites the criminal process.

Defendants in theory also benefit because they receive a discount off the sentence they would have received if they lost at
trial.
228 Human Rights Watch interview with Paul Carmouche, Shreveport, February 9, 2016.

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plead more cases and force the defendants to plead to them, by issuing
high bonds and refusing to lower them.… That external pressure feeds the
lock-them-up system.229

A Crowded Court Docket—Full of Drug Possession Cases
Some of the system “jam” is attributable to the large volume of drug possession cases
prosecuted and disposed of by state courts. For example, from September 2010 through
January 2016, Texas courts disposed of 893,439 drug cases (misdemeanors and
felonies). Of all these drug cases, 78 percent (almost 700,000 cases) were for simple
possession.230 Among felony drug cases, 81 percent were for possession.231 More than
half of Texas’ drug cases during this period were misdemeanor cases (such as
possession of marijuana or drug paraphernalia). Three quarters of all misdemeanor drug
cases in the state were for marijuana possession only. In other words, there were
approximately 371,000 marijuana possession cases prosecuted and disposed of in a
little over five years.232
In total, drug possession cases accounted for over 15 percent of all county and district
court criminal dockets in Texas.233 In Florida, drug possession was the most serious
charge in about 14 percent of all cases filed by prosecutors in county or district court.234

There is nothing inherently wrong with plea deals as long as the plea process is not
coercive.235 Coercion arises when prosecutors leverage the threat of an egregiously long

229 Human Rights Watch phone interview with Texas prosecutor, August 2016.
230 Where a case contained more than one charge, possession was the most serious charge.
231 The remaining 19 percent were for sales or manufacturing.
232 Human Rights Watch analysis of data provided by Texas Office of Court Administration.
233 Ibid.
234 Human Rights Watch analysis of Florida Offender Based Transaction System data.
235 If the original sentence the defendant faced was fair, and if the discount offered by the prosecutor is only a little less than
the sentence that would have been available at trial, then in essence the defendant is simply receiving a benefit for not
forcing the government to go to trial. However, sometimes the final sentence may be better but remains disproportionately
severe for the offense of simple possession. For the constitutional and human rights legal analysis of the plea system, see
Human Rights Watch, An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,
December 2013, https://www.hrw.org/report/2013/12/05/offer-you-cant-refuse/how-us-federal-prosecutors-force-drugdefendants-plead.

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sentence to induce defendants to plead guilty to a lesser one, or when unreasonably high
bail means that the only way to escape lengthy pretrial detention is to plead to probation,
time served, or relatively short incarceration.
Before a judge accepts the defendant’s guilty plea, the judge must perform a “plea colloquy”
with the defendant—a series of questions to defendants to ensure they are knowingly and
voluntarily waiving their right to a jury trial.236 Among those questions is some version of the
following, which is constitutionally required in every state and federal system: “Has anyone
forced or threatened you to plead guilty, or offered you any promises other than what’s
contained in your plea agreement?” To a number of interviewees, this felt disingenuous.
They knew they had to answer “no” to have their plea accepted, but said it was precisely a
combination of coercion, threats, and promises that led them to plead.
Oscar Washington told us, “I remember everything of what the judge said [in] the plea
[colloquy]. I felt like my back was against the wall, like the judge had me by the neck when
he said, ‘Did anyone force you to take this plea?’ I couldn’t say yes.”237 Interviewees in
every jurisdiction we visited said they pled because the cost to their lives of waiting for
trial in jail, or of risking the unreasonably steep penalties prosecutors threatened them
with should they go to trial and lose, was too high.

Pressuring Defendants with “Exploding Offers”
In many cases we examined in Louisiana and Texas, defendants were pressured into
pleading guilty before they had seen the evidence against them or knew anything about the
strength of the prosecutor’s case. In several jurisdictions, defense attorneys told us that
prosecutors would sometimes make an “exploding offer”—a plea deal that was available
only if the defendant took it immediately, sometimes the first time the person appeared in
court. In other cases, the offer would be off the table if the defendant filed any pretrial
motions, for example a motion to suppress. In Dallas, defense attorneys said plea offers
were good only until grand jury indictment, which is the formal charging document.

236 In Dallas, Human Rights Watch observed a judge perform the entire plea colloquy—for two felony charges—in under 60

seconds. The defendant pled to two years in prison and two felony convictions.
237 Human Rights Watch interview with Oscar Washington (pseudonym), Shreveport, February 9, 2016.

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In Slidell, Louisiana, Joel Cunningham, a Navy veteran, said he pled to 15 years in prison at
his 2012 arraignment for possession of marijuana and possession of one gram of cocaine
with intent to distribute. At the time he pled, he said he had not seen the evidence against
him; it was his first day in court, when the charges are read against a defendant. “The bill
of information was filed. Eight days later I was arraigned. Two hours later I pled. The 15year deal would come off the table if I didn’t plead immediately.” Now that Joel had seen
the evidence, he told us he would have challenged it with pretrial motions.238
In Caddo Parish, Louisiana, David Ross pled to 10 years for two possession charges. He said
he had less than 10 minutes to accept the prosecutor’s offer: “They made me take 10 years
that day, or they would have taken me to trial [on distribution] and I would have got a life
sentence … because if you lose in Caddo Parish at trial, you’re getting a life sentence.”239
These practices add to the pressures, threats, and promises that lead defendants to
plead guilty when they might otherwise exercise their right to require the government to
prove its case.

Pleading to Get Out of Jail
For drug possession defendants with little to no criminal history, or in relatively minor
cases, prosecutors in each state we visited often made offers of probation or relatively
short incarceration terms. A short sentence may effectively mean “time served,” since
defendants usually get credit against their sentence for time spent in pretrial detention.
Numerous defendants recounted being faced with a choice: fight the case and stay in jail,
or take a conviction and walk out the door with their family.

238 Human Rights Watch interview with Joel Cunningham (pseudonym), Slidell, February 3, 2016.
239 David and his lawyer said absolutely there was no evidence of distribution; the charges were for a few grams of meth and
a handful of Percocet pills. But the risk was too high to take the distribution charge to trial. Human Rights Watch interviews
with David Ross (pseudonym), Shreveport, February 9, 2016, and defense attorney, Shreveport, February 9, 2016. We came
across several similar cases in our interviews, raising concerns that there may be a trend of prosecutors “up-charging”
possession cases to distribution as a scare tactic, as examined previously. Also in Caddo Parish, Oscar Washington recalled,
“The prosecutor said, ‘Take this now or we’re picking a jury … here’s the [habitual offender] paperwork; I’ll get it ready right
now.’” Human Rights Watch interview with Oscar Washington (pseudonym), Shreveport, February 9, 2016.

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A Texas prosecutor told us:
Dangling probation out there when a defendant can’t afford to bond out is
something prosecutors do to plead cases out. Especially in weaker cases,
for example when there are multiple people in the car, or identity is an
issue; you might dangle probation out there just to get a conviction and if
the person screws up on probation you can go back and get the
punishment you wanted. That’s the reality, because the vast majority of
people are not going to be successful on probation.240
Numerous defense attorneys told us that they had counseled their clients on the risks of
taking a conviction, the onerous conditions of probation, and/or the strength of their case
should they choose to fight it and not take a plea. Moreover, if they pled to a felony, it
could serve as a predicate for enhancement of a subsequent charge down the road, or an
even worse plea coercion. But taking a case to trial until verdict may take months, all of
which defendants must spend waiting in jail if they cannot afford bond. Their choice is
ultimately between the right to a trial and the promise of freedom. John Lindner, District
Defender in St. Tammany Parish, summarized the problem:
Innocent people plead all the time. Not only here, but nationwide. It’s a
matter of, if I stick you in jail, and you’ve been in jail for four or five months,
and I come to you, “Hey, you can go home today, all you have to say is ‘yeah,
I’m guilty,’ and you get to go home on probation.” You might jump on that.241
Interviewees explained why it was an obvious choice to plead guilty when they were in
detention, although they would have fought their case if they had been on pretrial release:242

240 Human Rights Watch phone interview with Texas prosecutor, August 2016.
241 Human Rights Watch interview with John Lindner, Covington, January 28, 2016. The problem of pleading when innocent is

examined in the text box above.
242 Jail conditions are notoriously bad around the country. Although we did not investigate conditions, some pretrial

detainees in Louisiana and Texas told us that they were ready to accept a plea deal so they could be transferred from jail to a
prison facility. Defense attorneys in both states also pointed to the problem. Considering the harshness of US prison
conditions, it is striking that someone would contemplate pleading guilty because jail is so much worse. See Jamie Fellner,
“Torture in US Prisons,” in Torture: A Human Rights Perspective, ed. Kenneth Roth, Minky Worden, and Amy D. Bernstein
(New York: The New Press and Human Rights Watch, 2005).

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•

In New York City, Deon Charles told us he pled guilty to possession with intent to
distribute cocaine because his daughter had just been born that day: “I never
sold drugs … it was bogus. [But] I didn’t have the funds to afford to fight [and] my
daughter was born [that] day…. I pled because I wanted to see my daughter. And
when I pled I got to go home. But I lost my job [as an EMT] because of it.”243

•

Alyssa Burns, charged in Houston with residue in a meth pipe, said if she could
bond out she would take the case to trial. “I would probably win at trial, but I
talked to a girl yesterday and she had been sitting here for 11 months waiting
for labs….244 I can’t do it. This place is awful. So now I’m just gonna sign for a
felony, flush my degree down the toilet and just see what happens.”245

•

Breanna Wheeler, a single mother in Galveston, never showed up to chaperone
her 9-year-old daughter’s school trip. She had been arrested the night before
with residue on a plastic bag. Against her attorney’s advice, she pled to
probation and her first felony conviction. They both said she had a strong case
that could be won in pretrial motions, but her attorney had been waiting
months for the police records and Breanna needed to return to her daughter.
Afterwards, her attorney said, “She’s home with her kid, but she’s a felon.”246

•

Also in Galveston, Jack Hoffman was detained pretrial for meth possession. He told
us, “I don’t have money to bond out…. I don’t want to sign [for this felony], but if it
means getting out there to my life and my family, I’ll do whatever it takes…. If I could
bond out and still work and support my family, then I would fight it. But from in
here? … It’s kind of a catch-22 situation, damned if you do, damned if you don’t.”247

Dhu Thompson, a former New Orleans and Caddo Parish prosecutor, warned that a
decision to plead to probation, though it seems obvious at the time, may haunt the
defendant down the road:
Say you have an individual charged with possession of cocaine. But the
individual has now been in jail for 25 days and will plead to anything to get
243 Human Rights Watch interview with Deon Charles (pseudonym), New York, November 24, 2015.
244 She said the woman had sent the labs back for retesting, as Alyssa said she also wanted to, which took even longer than

usual.
245 Human Rights Watch interview with Alyssa Burns (pseudonym), Houston, March 15, 2016.
246 Human Rights Watch text correspondence with Vik Vrij, April 4, 2016.
247 Human Rights Watch interview with Jack Hoffman (pseudonym), Galveston, March 17, 2016.

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out. He comes to court, and the prosecutor offers him a felony plea. Nine
out ten times they’re going to take it. [But now] they have that first felony on
their record. They can’t vote. They can’t get a job. You know, family may
ostracize them. That may create a problem where now you’re a repeat
offender because this individual is desperate and does something in a
desperate situation.248

Pleading to Avoid the Trial Penalty
Prosecutors wield so much power in the plea system that defendants often have no
expectation or hope that they will receive a proportionate sentence if they lose at trial.249
Many prosecutors use the threat of adding, or the promise of dropping, charges or
sentencing enhancements to pressure defendants to give up their rights to trial.
Concerned about how a pled-to felony makes clients vulnerable under Louisiana’s harsh
habitual offender law, public defender Barksdale Hortenstine, Jr. said, “I can’t tell you how
many clients [I’ve had where] at the end of the representation, I’ve told them, ‘I will buy
you the ticket, I will do anything I can, will you please leave this state? You cannot afford
the risk involved in living here.’”250

The Threat of Enhancements
In cases we examined in Louisiana and Texas, prosecutors used habitual offender laws to
enhance a defendant’s sentence range based on prior convictions and then offered to drop
the enhancements in exchange for a guilty plea.251 This tactic was used—even in cases
where defendants had only drug possession priors or other non-violent, low-level

248 Human Rights Watch interview with Dhu Thompson,

Shreveport, February 8, 2016.

249 Human Rights Watch has documented this problem at the federal level as well. Human Rights Watch, An Offer You Can’t

Refuse. See also, Jennifer Turner, “A Living Death: Life Without Parole For Nonviolent Offenses,” ACLU, November 2013,
https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf (accessed September 25, 2016).
250 Human Rights Watch interview with Barksdale Hortenstine, Jr., New Orleans, January 29, 2016.
251 Prosecutors regularly offer to “abandon the paragraphs” in Texas, a reference to the indictment that includes a paragraph

for enhancements based on prior convictions. In Louisiana, where the habitual offender, a.k.a. “multi-bill,” enhancements
are sought after conviction, prosecutors would offer a plea deal based on a negotiated “bill status,” agreeing not to seek
enhancements based on some or all of the defendant’s prior convictions. Because the judge does not inquire into these
details of the plea deal, prosecutors have enormous power to negotiate, threaten, and promise in return for guilty pleas. In
Louisiana, the multi-bill sentencing ranges are mandatory upon the judge, making it the harshest trial penalty we observed.
By contrast, in Texas, although the statutory minimum is mandatory in terms of years required, the judge can elect to have
the defendant serve those on probation rather than in prison. In practice, probation sentences are relatively rare except on a
first offense.

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convictions such as theft—either to scare them into a plea deal or, when they refused, to
penalize them for going to trial.
Interviewees in Louisiana and Texas described how prosecutors used fear of
enhancements to scare them into accepting plea offers that, in some cases, were horrible
“deals” but that seemed reasonable to them nevertheless in light of the trial penalty they
faced as habitual offenders. In the New Orleans Public Defender’s Office, Barksdale
Hortenstine, Jr. explained, “The risk associated with [the habitual offender law] is so high
that any rational lawyer has to advise vigorously to take deals that otherwise would seem
absurd. So you end up pleading to five years in prison or eight years in prison [for
possession]. Those numbers are commonly passed around.”252

When the Prosecutor, Not the Judge, Selects the Sentence
In Louisiana, the habitual offender law provides for mandatory minimums,253 meaning
that the judge typically has no discretion to sentence below them.254
Mandatory minimums take sentencing authority away from the judge and place it in
the hands of prosecutors instead. Judges in Louisiana acknowledged that this meant
the prosecutor wields a powerful tool—“a huge hammer,” according to Caddo Parish
Judge Marcotte.255

252 Human Rights Watch interview with Barksdale Hortenstine, Jr., New Orleans, January 29, 2016.
253 Not all habitual offender laws impose mandatory minimums. Some substantially raise the maximum available sentence
but not the minimum. Others also raise the statutory minimum but other provisions of state law allow the judge to depart
downward or to suspend the sentence (in other words, to give probation).
254 In Louisiana, judges can in theory go below the mandatory minimums if the case is exceptional, according to a case

called State v. Dorthey. But defense attorneys we met said that although they had often filed Dorthey motions, they had
never been successful on one. Most judges said they had never granted one. In the case of Bernard Noble, who is currently
serving 13 years and 4 months in prison for possession of the equivalent of two joints worth of marijuana (2.8 grams), the
judge initially did grant a Dorthey motion. However, the Louisiana Supreme Court reversed, finding the case not to be
exceptional and not to warrant Dorthey relief, allowing the sentence of over 13 years in prison for two joints of marijuana to
stand. Human Rights Watch interviews with attorneys at Orleans Public Defenders, January 2016; Matt Ferner, “This Man Is
Serving More Than 13 Years In Prison Over Two Joints’ Worth of Marijuana,” Huffington Post, August 14, 2015,
http://www.huffingtonpost.com/entry/bernard-noble-marijuana_us_55b6b838e4b0074ba5a5e160 (accessed September
25, 2016).
255 Human Rights Watch interviews with Judge William J. Knight, Covington, January 28, 2016; Judge Craig Marcotte,

Shreveport, February 4, 2016; and former judge and current District Attorney James Stewart, Shreveport, February 8, 2016.

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Numerous government officials in Louisiana told us the habitual offender law is used mostly
for drug dealers and not for those charged with simple possession charges, or that it is used
for defendants with violent criminal histories or other serious felony priors and “then the
straw that breaks the camel’s back is the possession.”256 However, we documented cases in
Louisiana and also in Texas where prosecutors used the habitual offender law for
defendants whose only prior convictions were for drugs, such as Leroy Carter.
After suffering an injury while serving in the Navy, Leroy Carter was given a medical
discharge and prescribed pain medications. He became dependent on the medications,
and eventually he turned to other drugs. Now Leroy is serving 10 years on a plea deal for
possession of marijuana and heroin. He pled guilty in 2012 in New Orleans because he was
facing 20 years to life in prison if he lost at trial. His priors were all drug convictions: two
marijuana possessions in the early 2000s, a heroin possession in 1999, and a marijuana
distribution conviction in 1998.257 When we spoke to him on the phone, we asked how
much time he had to talk. He answered, “Ten years.”258
In Texas, defendants told us the habitual offender enhancements made them feel they had
no choice but to plead:
•

In Fort Worth, Hector Ruiz faced 25 to life for heroin possession because of his
two prior felonies. “If I lose at trial, they start at 25…. It’s a scare tactic so you
don’t go to trial. ‘You better not go to trial because if you lose, this is what
happens! So take the five right now!’ This is not fair.”259

•

In Granbury, Matthew Russell faced 20 years for a trace amount of
methamphetamines. He told us, “I’m so stressed out that some days it almost
makes me want to kill myself…. [20 years,] that scares me. And that is what

256 Human Rights Watch interview with Sergeant Daniel Seuzeneau, Public Information Officer, Slidell Police Department,

February 3, 2016.
257 Human Rights Watch phone and email communication with Lindsey Hortenstine, Director of Media and Communications,

Orleans Public Defenders, January 29, 2016 and February 3, 2016; Human Rights Watch group interview with Eric Carter
(pseudonym), Amy Carter (pseudonym), and Calvin Willis (pseudonym), Kenner, January 31, 2016.
258 Human Rights Watch phone interview with Leroy Carter (pseudonym), January 31, 2016.
259 As noted in section V above, Hector was also detained on a state jail felony charge, for heroin residue weighing 0.007

grams for which the prosecutor had offered him six years in prison. The charge on which he faced 25 to life was for
possession of just over a gram (third degree felony). According to his attorney, the police had weighed the plastic bag along
with the drugs in coming up with that weight. Human Rights Watch interviews with Hector Ruiz (pseudonym), Fort Worth,
March 11, 2016, and defense attorney, Fort Worth, March 11, 2016.

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they are made on. They are made on a man’s mental capacity, trying to pervert
you by fear. This court system is a game of manipulation.”260
•

Douglas Watson was arrested in Dallas for what field tested as 0.1 gram of
heroin and 0.2 grams of meth found inside a pipe. He was not charged with the
paraphernalia. Because he had two prior state jail felonies for possession, his
sentencing range was enhanced to two to 10 years in prison. In a split second
Douglas decided to plead, waiving laboratory testing and grand jury
indictment, because the prosecutor offered him two years in prison.261 Although
it is shorter than many of the other sentences we documented, it was still time
behind bars and two felony convictions for a minuscule amount of drugs whose
weight Douglas did not even have time to challenge.

•

In Dallas, Bill Moore, 66, pled to three years in prison because he faced two to
10 years on what the laboratory tested as 0.0202 grams of meth. He noted that
after testing a speck that weighed two hundredths of a gram, the prosecution
“wouldn’t have had anything left to show as evidence if [I’d] gone to trial. But
what if they did, and they’d given me 10 years instead of three? I wouldn’t have
any chance of getting out anytime soon that I know of. [I would have been] in
my 70s. It’s hard for me to even say that.”262

Relatively few people test whether the prosecutor and judge will follow through with the
trial penalty: nationwide, as described above, between 99 and 100 percent of drug
possession defendants plead guilty. But Jennifer and Corey were among the 1 percent who
insisted on their right to trial, even in the face of the trial penalty. When they lost, they
were sentenced to two decades behind bars, of which Louisiana law required they serve
every day.

260 Human Rights Watch interview with Matthew Russell (pseudonym), Granbury, March 10, 2016.
261 Human Rights Watch interview with Douglas Watson (pseudonym), Dallas, March 8, 2016.
262 Human Rights Watch interview with Bill Moore (pseudonym), Dallas, March 8, 2016.

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Jennifer’s Story
In 2016 in Covington, Louisiana, Jennifer Edwards was charged with heroin possession
for a residue amount. The prosecutor made her a plea offer of seven years in prison.
Because of her three drug possession priors (for Xanax, cocaine, and Ecstasy), she faced
20 years to life in prison if she refused the offer and lost at trial. With such a high trial
penalty, her lawyer encouraged her to take the plea, but Jennifer insisted on her
innocence. She told us, “I got about five minutes [to think about the offer]. That’s it…. I
asked if I could please have the night to think about it, and they said, ‘Nope, the jury’s
out there, you either taking this deal or you’re going to trial.’”263
Jennifer took her case to trial, and the jury convicted her. When we spoke to her, she was
waiting for the judge to choose a sentence between 20 years and life in prison:264
I remember when they said I was guilty in the courtroom, the wind was
knocked out of me. I went, “The rest of my life?” I still can’t believe it.
All I could think about is that I could never do anything enjoyable in my
life again. Never like be in love with someone and be alone with them.
Just anything, you know…. I’ll never be able to use a cell phone ... take
a shower in private, use the bathroom in private. Like all those things, I
can never do those things…. I told [my attorney] during trial, no matter
what happens, they can keep sticking me in here but they can never
convince me what I’m doing is wrong.
Jennifer told us that other detainees viewed her case as a cautionary tale:
There’s 60 people in my cell, and only one of us has gone to trial. They
are afraid to be in my situation. The [prosecutors] threaten everybody.
I’ve seen people take 10 years flat, 15 years flat.265 I don’t even
understand it. Ten years flat? Might as well take a chance with the jury. [If

263 Human Rights Watch interview with Jennifer Edwards (pseudonym), Covington, January 27, 2016.
264 The judge ultimately sentenced her to 20 years, which in Louisiana must be served day-for-day.
265 “Flat time” means the sentence is served day-for-day without earned time credit.

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everybody went to trial,] I think it would make the negotiating stronger
on our end, but nobody does it. Because if [everyone] did that, they
wouldn’t be able to bring everyone to trial…. Everybody has to stick
together and say, “No,” and, “I want a speedy trial.”266

***

Corey’s Story
In 2011, 25-year-old Corey Ladd was arrested in New Orleans with a plastic baggie
containing a half-ounce of marijuana. Years before, Corey had pled guilty to two felony
convictions, for hydrocodone possession at age 18 and LSD possession at age 21, and
had been sentenced to probation for each. This time, the prosecutor sought serious
prison time. Because of his priors, the prosecutor chose to charge Corey as a third-time
offender, so that he faced a minimum of 13 years and 4 months, up to a maximum of 40
years in prison for marijuana possession. Corey told us he was offered 10 years in
exchange for a guilty plea.267
Despite the risk of such a high penalty, Corey refused the prosecutor’s offer and
insisted on his right to trial. In 2013, the jury returned a guilty verdict. The judge
imposed the penalty: For possessing a half-ounce of marijuana, she sentenced Corey
to 20 years in prison without parole.
Corey appealed his sentence to the state appeals court, which found in 2014 that 20
years was not “excessive” for marijuana possession for a third-time offender.268 Corey
then appealed to the Louisiana Supreme Court, which found in 2015 that the trial judge

266 Human Rights Watch interview with Jennifer Edwards (pseudonym), Covington, January 27, 2016.
267 Human Rights Watch Interview with Corey Ladd, St. Gabriel, February 2, 2016. At the time, a second or subsequent

marijuana possession offense carried up to 20 years in prison, and Corey had two prior convictions for marijuana. Soon after
Corey was sentenced, the Louisiana legislature amended the marijuana laws. Today, a defendant’s first two marijuana
possession convictions are misdemeanors. The third carries a statutory range of 0 to 2 years. However, Corey did not benefit
from the new laws. The human rights imperative of retroactive application of criminal laws that provide for lesser penalties is
examined in section VII.
268 State v. Ladd, 146 So.3d 642 (La. Ct. App. 4th Cir. 2014).

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had failed to state her reasons and sent the case back to her for resentencing. Two of
the four Supreme Court judges expressed concern that “this sentence on its face seems
very harsh.”269
When the trial judge resentenced Corey to 17 years without parole, he appealed yet
again to the state appeals court. This time, in April 2016, it was the state appeals court
that reversed the 17-year sentence and sent Corey’s case back to the trial judge for
resentencing. The appeals court wrote:
The laws nationwide are changing, as is public perception. As mentioned
above, this defendant would conceivably be in his forties before he is
released. Although the defendant’s seventeen-year sentence is within
the range of permissible sentences, on its face, the sheer harshness of
the sentence shocks the conscience.270
In spite of this history, the prosecutor held his ground. He objected to the appeals
court’s reversal and filed an appeal of his own to the Louisiana Supreme Court. As of
this writing, Corey is waiting for that decision. He has been in prison for 4 years and
has never held his 4-year-old daughter outside of prison walls.

Why Habitual Offender Laws Do Not Make Sense for Drug Possession
In the context of drug possession, the effect of habitual offender laws is to punish habitual
drug use. Although any criminal sanction for drug use is inappropriate, habitual offender
sentencing delivers especially disproportionate punishment. If a person is facing a
subsequent conviction for drug possession, it is simply an indication that the criminal
justice system has failed to stop drug use, not that the person deserves a longer sentence.
Moreover, it risks punishing some people for “recidivism” who may in fact be drug
dependent, a health rather than a criminal justice issue.
Several Louisiana officials, recognizing this fact, argued that habitual offender
enhancements should not be applied to drug possession. As Judge Calvin Johnson,

269 State v. Ladd, 164 So.3d 184 (La. Sup. Ct. 2015).
270 State v. Ladd, No. 2015-KA-0772 (La. Ct. App. 4th Cir. 2016).

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formerly on the bench in New Orleans, told us, “The rationale for it again is that individuals
who commit multiple offenses are bad, bad people and they should be convicted
accordingly…. My knee jerk reaction is no.… The fact that a drug user has been arrested for
drugs multiple times means only that that person has had drugs multiple times. It doesn’t
impact you, or me, or anyone in this room.” He told us he “would take [drug possession]
out” of the criminal justice system entirely, “but a step towards that would be to move
drug possessors out of the multi-bill statute.”271
Reviewing Corey Ladd’s possession case, the Louisiana Court of Appeals for the Fourth
Circuit delivered a striking condemnation of the prosecutor’s decision to use the habitual
offender law:
[The habitual offender law] dramatically limits judges’ ability to consider
the human element and the life-time impact of harsh sentences on both
defendants and their families, not to mention the State’s economic
interest. Sentences should be sufficient but not greater than necessary to
meet the goals and expectations of sentencing. Is it deterrence? Is it
punitive? Far too much authority has been usurped from judges under the
pretext of appearing “tough” on crime and allowing the habitual offender
statute to become what now appears to be an archaic draconian measure.
Our state, Louisiana, has some of the harshest sentencing statutes in these
United States. Yet, this state also has one of the highest rates of
incarceration, crime rate and recidivism. It would appear that the purpose
of the habitual offender statutes to deter crime is not working and the
State’s finances are being drained by the excessive incarcerations,
particularly those for non-violent crimes.272

271 Human Rights Watch interview with Calvin Johnson, New Orleans, January 26, 2016. James Stewart, Caddo Parish district
attorney, acknowledged that at least where someone’s prior criminal convictions are for drug possession, use of the habitual
offender law is not appropriate: “Possession cases, where the harm is the individual … they are not that amenable to
multiple bill, if all you have is possession [prior] cases.” Human Rights Watch interview with District Attorney James Stewart,
Shreveport, February 8, 2016. Judge William Knight in St. Tammany said the multi-bill “places in the hands of the prosecutor
[to say,] ‘We’re throwing the book at her.’ My job is to enforce the laws—and I’ve held my nose sometimes in sentencing…. I
don’t personally believe you should multi-bill based on simple possession.” Human Rights Watch interview with Judge
William J. Knight, Covington, January 28, 2016.
272 State v. Ladd, No. 2015-KA-0772 (La. Ct. App. 4th Cir. 2016).

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For all these reasons, sentences for drug possession should not be subject to
enhancement under habitual offender laws, regardless of the prior offense type, and past
convictions for drug possession should not be used as predicates for enhancements of
sentences for any other offense.

The Threat of Higher Charges
Instead of the threat of enhancements at trial, some defendants face higher charges if they
insist on their trial rights, and are offered a plea to the lesser charge of possession if they
give up those rights. We heard frequently that prosecutors would charge possession with
intent (or distribution) for what otherwise could be considered simple possession and that
those cases typically ended in a plea to simple possession. This raises concerns that
prosecutors may be overcharging defendants in order to coerce pleas.
A significant number of distribution charges are disposed of with pleas to simple
possession. For example, in New York, over half of all possession with intent to distribute
arrests and a third of sales arrests were disposed of with guilty pleas to possession
charges.273 In some of these cases, people actually guilty of selling may be getting good
deals. However, we documented cases where the more serious initial charges appear
instead to represent an attempt at coercing defendants to plead guilty to the more
appropriate charge.

Jerry’s Story
Jerry Bennett told us he pled guilty to two-and-a-half years in prison for half a gram of
marijuana because the prosecutor threatened to charge him with distribution.
Jerry was arrested in New Orleans in March 2015 and charged with possession of half a
gram of marijuana that was found in the backseat of the truck in which he was a
passenger. Because he had prior marijuana possession convictions, it was a felony
charge. He sat in jail for over eight months while his trial date was set and reset. In the
intervening time, his attorney won a motion to suppress evidence. Then the prosecutor
made Jerry a plea offer of two-and-a-half years, which Jerry did not want. His attorney

273 Human Rights Watch analysis of New York Division of Criminal Justice Services data.

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recalls the prosecutor’s words: “If he doesn’t take this today, we’re going to take that
offer off the table. There will be no offer. We’ll just go to trial, and we’re going to
change the charge from possession to distribution.”274 Jerry told us, “Half a gram!
There ain’t no way you could distribute half a gram.” He chose not to take the offer and
instead go to trial.
When Jerry returned to court at the end of January 2016—almost 11 months after his
arrest, during all of which he had been in jail—the prosecutor had a new tactic for
getting him to take the two-and-a-half years. He would charge Jerry with both
possession and distribution (for the same half gram of marijuana). Jerry would be sure
to lose on one of them if he went to trial and, when he did, the minimum he would face
would be 20 years.
The prosecutor offered Jerry the two-and-a-half years instead. Jerry had been detained
pretrial in a jail that was a four-hour drive from his lawyer, his girlfriend, and his 3-yearold daughter. He had not had time to speak to them, but the prosecutor gave him only 10
minutes to decide. His girlfriend had not made it to court in time, but she sent text
messages to him via his attorney, begging him to think of their daughter: “Man, just
take it, because if they mess with you, you’re going to see none of her life.”275
As Jerry’s attorney recalled, “We had a very frank conversation about the fact that, as
much as he on principle didn’t want to take this, and also didn’t want to have to do
another year and a half in jail, and he had promised his girlfriend that he was not going
to miss the next birthday of his daughter … it was like, you can miss one more birthday,
or you can potentially miss her entire childhood.”276
Jerry took the two-and-a-half years for marijuana possession, and the prosecutor
dropped the distribution charge. When we talked to Jerry in jail the next day, he
explained, “They spooked me out by saying, ‘You gotta take this or you’ll get that.’ I’m
just worried about the time. Imagine me in here for 20 years. They got people that kill
people. And they put you up here for half a gram of weed.”277

274 Human Rights Watch interview with defense attorney, New Orleans, January 2016.
275 Human Rights Watch interview with Jerry Bennett (pseudonym), New Orleans, January 2016.
276 Human Rights Watch interview with defense attorney, New Orleans, January 2016.
277 Human Rights Watch interview with Jerry Bennett (pseudonym), New Orleans, January 2016.

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Pleading When Innocent
Numerous interviewees in each state we visited said they had pled guilty even though they
were innocent. Many said they did not feel they had any other real choice. Defendants,
defense attorneys, judges, and prosecutors in different jurisdictions used the language of
gambling: would the defendant “roll the dice” and go to trial? Most defendants said no,
because the odds were against them and the stakes were too high.

Tyler’s Plea
Tyler Marshall was arrested in Louisiana, charged with possession of marijuana,
convicted, and sentenced to 10 years in prison. The transcript of his plea colloquy
plainly indicates that he either did not understand or did not want to plead guilty:
By the court: Okay, listen to my question again sir. Do you wish to waive your
constitutional rights and plead guilty because you have in fact committed this
crime?
[Defendant]: But I didn’t do it.
[Defense counsel]: You are pleading guilty.
[Defendant]: I am pleading guilty.
By the court: Okay. And in pleading guilty today you are waiving your
constitutional rights. Is that correct?
[Defendant]: Yes ma’am.
By the court: And you are pleading guilty because you committed this crime.
[Defendant]: No ma’am.
[Defense counsel]: Say yes, please.
[Defendant]: Oh, I have to? Yeah. But I’d be lying though.278

In Texas, where defense attorneys said laboratory scandals and faulty roadside drug tests
had raised concerns, Harris County began testing drugs in possession cases that had
already been closed. Since 2010, there have been at least 73 exonerations in Harris County

278 Human Rights Watch interview with Tyler Marshall (pseudonym), Louisiana, January 2016 and review of court documents.

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for drug possession or sale where the defendant pled guilty for something that turned out
not to be a crime at all. In 2015 alone, there were 42.279
Of the 42 exonerees in 2015, only six were white.280 Most or all had been adjudged
indigent, meaning they could not afford an attorney and had either a public defender or
another attorney appointed for them. One of those attorneys, Natalie Schultz, said a
significant number of them were homeless.281 When the laboratory finally tested their
drugs, it found only legal substances or nothing at all.
For example, in July 2014, police arrested Isaac Dixon, 26, for possession of a substance
that field tested positive for Ecstasy. Two days later, Isaac pled guilty to felony drug
possession and was sentenced to 90 days in the Harris County Jail. More than 14 months
later, the substance was tested by a laboratory, and the field test was proved faulty. No
drugs were found—only antihistamine and caffeine.282
Like Isaac’s conviction for drug possession, dozens more in Harris County in 2015 were
ultimately vacated and the charges dismissed, but only because authorities took the time
to have the drugs tested, after the case dispositions. The exonerations required laboratory
testing, defense and prosecution filings for habeas corpus relief, trial court
recommendations, and eventual dismissal by the Texas Court of Criminal Appeals.283 In the
meantime, defendants had to endure pretrial detention, probation, sometimes a jail
sentence, and the prospect of a felony conviction for action that was lawful.
As the exonerations in Harris County demonstrate, people plead guilty to drug possession
even when they are innocent, because the system makes them feel they have no choice.

279 The University of Michigan Law School, The National Registry of Exonerations, Harris County 2015,
http://www.law.umich.edu/special/exoneration/Pages/detaillist.aspx?View={faf6eddb-5a68-4f8f-8a522c61f5bf9ea7}&FilterField1=Exonerated&FilterValue1=8_2015&FilterField2=Crime&FilterValue2=8_Drug%20Possession%20
or%20Sale&FilterField3=County_x0020_of_x0020_Crime&FilterValue3=Harris&&SortField=Convicted&SortDir=Desc
(accessed June 10, 2016); Jessica Lussenhop, “Why Harris County, Texas, leads the US in exonerations,” BBC, February 12,
2016, http://www.bbc.com/news/magazine-35543898 (accessed June 10, 2016).
280 The University of Michigan Law School, The National Registry of Exonerations, Harris County 2015.
281 Human Rights Watch phone interview with Natalie Schultz, Harris County defense attorney, February 19,

2016.

282 Maurice Possley,

“Isaac Dixon,” The National Registry of Exonerations, November 3, 2015,
http://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4714 (accessed June 10, 2016).

283 Human Rights Watch phone interview with Nicolas Hughes, Harris County Public Defender’s Office, February 26, 2016.

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These cases also show that field tests often produce false positives and yet are sometimes
the only evidence of drug possession.284 Fortunately for the defendants, Harris County
invested the time and resources to test drugs after conviction. Harris County Public
Defender Alex Bunin told us that if other jurisdictions undertook the same effort, he
expected we would see that around the country indigent defendants plead guilty to drug
possession when they are innocent.285

Reducing Charges—Discretionarily, for White Defendants
Data from New York State suggests that prosecutors’ discretion to reduce charges
through plea deals is exercised differently in different jurisdictions, and often with
racially disparate impact.
Between 2010 and 2015, 38 percent of drug possession arrests in New York State were
disposed of at a reduced level.286 There were striking disparities between jurisdictions
across the state and, within New York City, even among boroughs. In the Bronx, 38
percent of arrests ended in convictions on reduced charges while in Manhattan (New
York County) the figure was 25 percent. The majority of downgraded arrests involved
misdemeanor charges disposed of as violations.

284 ProPublica and the New York Times recently examined false positives for field tests, including the ones used in Harris

County. They concluded, “Tens of thousands of people every year are sent to jail based on the results of a $2 roadside drug
test. Widespread evidence shows that these tests routinely produce false positives…. In Las Vegas, authorities re-examined
a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives.
Data provided by the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police
listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any
kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives
for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that
officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a
positive result.” Ryan Gabrielson and Topher Sanders, “Busted,” ProPublica and New York Times, July 7, 2016,
https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives (accessed July 8, 2016).
285 Human Rights Watch phone interview with Alex Bunin, Harris County Public Defender’s Office, February 16, 2016.
286 Human Rights Watch analysis of New York Division of Criminal Justice Services data.

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The data also shows racial disparities between those who benefit from reductions in or
dismissal of charges and those who do not. In New York, for non-marijuana A
misdemeanors, the second most common possession arrest charge after marijuana B
misdemeanors,287 white defendants received reduced or dismissed charges at greater
rates than Black defendants in all New York City counties, and in the aggregate of all
other New York State counties combined.

287 Class A misdemeanors include criminal possession of a controlled substance in the seventh degree, i.e. amounts up to

0.5 grams cocaine, one-eighth ounce of heroin, or one-half ounce of methamphetamines, or criminally using drug
paraphernalia in the second degree. Sentences for A misdemeanors cannot exceed one year in jail or three years of
probation. Class B misdemeanors include criminal possession of marijuana in the fifth degree, including marijuana open to
public view, and one or more substances containing marijuana of an aggregate weight of at least 25 grams. Sentences for
class B misdemeanors cannot exceed three months in jail or one year of probation. NY Penal Law arts. 70.15, 220-221; New
York State Office of Mental Health, “Chapter 1: Criminal Justice System for Adults in NYS,” undated,
https://www.omh.ny.gov/omhweb/forensic/manual/html/chapter1.htm (accessed September 14, 2016).

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VII. Sentencing by the Numbers
If we go back to why we punish—deterrence, protection of the community—
long term, jail isn’t doing those things. But no one is thinking long term
about it. [There’s a saying,] “Insanity is doing the same thing over and over
and expecting a different result.” … The general community doesn’t
understand it’s not working. They don’t know it’s the same 90 people we
keep picking up and putting in the system.288
—A judge in Central Florida, on the mismatch between criminal law and drug use, December 2015

At year-end 2014, more than 25,000 people were serving sentences in jails and
another 48,000 in state prisons for drug possession.289 The number being admitted to
jails and prisons to serve sentences at some point over the course of the year was
significantly higher.290
In many cases, particularly for people convicted of their first offense, sentences for drug
possession can be comparatively short. However, both our interviews and our analysis of
sentencing data reveal that some jurisdictions impose very long sentences—even life
sentences in Texas—for drug possession. Miami Judge Dennis Murphy told us that some
judges impose disproportionate sentences because “they want to be seen as tough, but
studies show that long sentences result in nothing but costliness.”291

288 Human Rights Watch interview with Florida judge, December 2015.
289 Peter Wagner and Bernadette Rabuy, “Mass Incarceration: The Whole Pie,” Prison Policy Initiative, March 14, 2016,
http://www.prisonpolicy.org/reports/pie2016.html (accessed August 11, 2016).
290 The standing population is not a good measure of the total people affected in a year because many more people are
admitted over the course of a year than are counted in a single snapshot of population data. In 2009 (the most recent year
for which such data is available), about one-third of those entering state prisons for drug offenses (for whom the offense was
known) were convicted of simple drug possession. Thomas P. Bonczar et al., “National Corrections Reporting Program: Most
Serious Offense of State Prisoners, By Offense, Admission Type, Age, Sex, Race, And Hispanic Origin,” Bureau of Justice
Statistics, May 5, 2011, http://www.bjs.gov/index.cfm?ty=pbdetail&iid=2065 (accessed August 15, 2016).
291 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015. According to the Department of
Justice (DOJ), in fiscal year 2010 states spent a combined total of $38.6 billion on state correctional institutions such as
prisons. Per capita expenditures for institutions were $28,323 per inmate that year. In total, assuming average inmate cost
was the same in 2014 as it was in 2010, DOJ figures indicate that $1.34 billion was spent keeping people convicted of drug
possession in prison in 2014. US Bureau of Justice Statistics, State Corrections Expenditures, FY 1982-2010, Appendix Table
2, revised April 2014, http://www.bjs.gov/content/pub/pdf/scefy8210.pdf. State departments of corrections run prisons as
well as other detention facilities, including in some cases lockdown drug treatment facilities, medical facilities, transfer
facilities, and others.

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Racial Disparities in Incarceration
In examining who is incarcerated for drug possession, we found that stark racial
disparities mark both jail and prison populations. Of the total jail population nationwide
(convicted and unconvicted) in 2002 (the most recent year for which such jail data is
available), 31,662 Black inmates, 19,203 white inmates, and 14,206 Latino inmates were
jailed for drug possession.292 Given that Black people made up 13 percent and white
people 82 percent of the US population in 2002, these numbers mean that Black people
were more than 10 times as likely as white people to be jailed for drug possession, even
though the drug use rate for each group is roughly equivalent.293 Of the total state prison
population at year-end 2014, 18,800 Black inmates, 17,700 white inmates, and 11,400
Latino inmates were imprisoned for drug possession.294 These numbers mean that Black
people were nearly six times more likely than white people to be in prison for drug
possession.295 Because the US Census Bureau does not include race data for Latinos, we
could not assess disparities in their incarceration.

Human Rights Watch analyzed sentencing data for people convicted of drug possession in
Florida, New York, and Texas. This section outlines our findings.
In Florida between 2010 and 2015, 84 percent of defendants convicted of felony drug
possession were sentenced to prison or jail (about a quarter to state prison and threequarters to county jail). For misdemeanors, 68 percent of those convicted were sentenced
to confinement, almost all going to county jail.296

292 US Bureau of Justice Statistics, “Profile of Jail Inmates, 2002,” July 2004, Table 4, http://www.bjs.gov/content/pub/
pdf/pji02.pdf (accessed September 21, 2016).
293 The drug possession jail population rate was 86 per 100,000 population for Black people and 8 per 100,000 population
for white people. The Census defines “Hispanic or Latino” so that they are included in white or Black, so we are unable to do
a comparison with rates of Latinos in jail and prison. Human Rights Watch analysis of 2002 US Census Bureau population
statistics; US Census Bureau, “Overview of Race and Hispanic Origin: 2010,” March 2011, http://www.census.gov/prod/
cen2010/briefs/c2010br-02.pdf (accessed September 21, 2016).
294 US Bureau of Justice Statistics, Prisoners in 2014, September 2015, Appendix Table 4, http://www.bjs.gov/content/pub/
pdf/p14.pdf.
295 Ibid. Black rate was 57 per 100,000 adult population and white rate was 9.7 per 100,000 adults.
296 Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction System data.

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Whether or not a person is sentenced to prison in Florida depends not only on the
conviction offense but also on past criminal record, based on a scoring or points system. A
person whose first conviction is for drug possession would not “score out” to prison time
under this system, though he or she may be sentenced to county jail.297 Roughly three of
every four felony drug possession defendants were sentenced to terms in county jail or
were not sentenced to incarceration at all, suggesting they had little or no significant prior
criminal history.
Yet even individuals sentenced to county jail for drug possession spend substantial time
behind bars, especially those convicted of felonies:298
Table 1: Drug possession sentences, Florida 2010-2015

Level

Felony

Facility

Number
sentenced

Average

Median

sentence

sentence

(months)

(months)

Most
common
sentence
(months)

County Jail

34,498

5

3

6

State Prison

12,184

27

22

12

20,045

2

1

1

Misdemeanor County Jail

In New York State between 2010 and 2015, the majority (53 percent) of people convicted of
drug possession were sentenced to some period of incarceration (33 percent for marijuana
and 65 percent for other drugs).299 The average jail sentence was 44 days for marijuana
possession and 63 days for other drugs. Approximately 155 adults were sentenced to one
year in jail—the maximum sentence for a misdemeanor—for marijuana possession.300
Approximately 1,441 adults were sentenced for possession of drugs other than marijuana,
and 88 percent of these cases were misdemeanors. Among felony drug possession cases,
the average prison sentence was 41 months.301 At year-end 2015, one of 16 people in

297 Human Rights Watch interviews with legal practitioners in Florida.
298 Human Rights Watch analysis of Florida Office of the State Courts Administrator Offender Based Transaction System data.
299 Human Rights Watch analysis of New York Division of Criminal Justice Services data.
300 Ibid.
301 Ibid.

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custody in New York State was incarcerated for drug possession. Of those, 50 percent were
Black, 28 percent Latino, and 20 percent white.302
In Texas between September 2010 and January 2016, more than three-quarters of felony
drug possession defendants were sentenced to incarceration: 30,268 to prison, 42,957 to
state jails, and 35,564 to county jails.303 A significant proportion of the rest likely were
released on probation because the prosecutor and judge had no choice: Texas law makes
probation mandatory for a first-time conviction of drug possession when classified as a
state jail felony.304 This suggests that prosecutors and judges chose not to exercise their
discretion to offer probation in the vast majority of cases in which they had some choice.
Between 2012 and 2016, approximately one of 11 people held by the Texas Department of
Criminal Justice (TDCJ) was convicted of a drug possession charge as their most serious
offense.305 Two of every three people serving time in a TDCJ facility for drug charges were
there for drug possession.306 Human Rights Watch examined charge and sentence length
information for the 49,092 people incarcerated by TDCJ for drug possession during six
snapshot days.307 For the convictions where the drug amount was provided in the data, half
were for possession of under one gram (state jail felony), and another 25 percent for
possession of one to four grams (third degree felony).308

302 Data provided to Human Rights Watch by New York Department of Corrections and Community Supervision.
303 Human Rights Watch analysis of data provided by Texas Office of Court Administration.
304 In practice, some people receive “straight probation,” meaning a conviction is entered and they are sentenced to

probation, whereas others receive “deferred probation” (also known as “deferred adjudication”), in which probation terms
are imposed but the defendants do not receive convictions if they successfully complete it. The sentencing data provided to
us relates only to straight probation and not deferred adjudication. Although we cannot know the frequency from the data,
judges and prosecutors in some cases do give deferred adjudication even when not required to do so by law.
305 The Texas Department of Criminal Justice (TDCJ) periodically releases snapshot data of everyone under TDCJ custody on a

given day and publishes the most current snapshot on its website. TDCJ provided Human Rights Watch with prior snapshot
datasets for five days–one day each in May 2012, August 2013, August 2014, August 2015, and February 2016. Human Rights
Watch downloaded the April 2016 snapshot from the TDCJ website. On these dates, TDCJ has held between 143,978 and
151,717 people in state prisons or TDCJ-administered state jails. (TDCJ holds about 47.1 percent of inmates in prisons and
another 44.8 percent in state jails. The remainder are in Substance Abuse Felony Punishment (SAFP) facilities.)
306 Human Rights Watch analysis of data provided by the Texas Department of Criminal Justice.
307 The snapshot days were in May 2012, August 2013, 2014, and 2015, February 2016 and April 2016. The snapshot datasets

were combined and duplicates were removed. Drug type was not decipherable from the offense description for half of those
serving time for drug possession. Among those where drug type was decipherable, 42.8 percent of convictions were for
cocaine, 27 percent for methamphetamine, and 16.5 percent for marijuana.
308 The other 25 percent were convicted of possessing higher quantities of drugs, either second or first degree felony drug

possession. Human Rights Watch analysis of data provided by the Texas Department of Criminal Justice. Over time, there has
been no change in the proportion of drug possession inmates that had a state jail (or fourth degree) conviction.

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Among the 20 counties that have the largest number of drug possession cases in Texas,
there are significant disparities in the types of sentences received for similar charges,
showing arbitrariness associated with geography as well as significant opportunity for
prosecutorial discretion:

Nearly 44 percent of drug possession inmates in Texas were serving sentences of two years
or less (the maximum sentence for a state jail felony is two years). A quarter were serving
sentences greater than 5 years. Third degree offenses (possession of one to four grams)

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had an average sentence of 5.3 years (the sentence range is two to ten years).309 There
were clear county disparities in the sentences for drug possession inmates. In counties
with 300 or more unique TDCJ inmates, the median sentences varied greatly by county, for
all offenses and also for state jail felonies specifically.

309 Over the four years of snapshot data, the average sentence for drug possession has decreased slightly from 7.65 years to

6.98 years (the median has stayed consistent at 4 years).

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Life in Prison in Texas for Drug Possession
According to Texas Department Criminal Justice data we analyzed, 116 people were
serving life sentences in Texas for drug possession as of February 2016. Ten percent of
them (11 people) were sentenced in Smith County, a county that sentenced only 1.7
percent of the state’s overall drug possession inmates.
Furthermore, in Texas between 2005 and 2014 at least seven people were sentenced to
life in prison for simple possession of an amount of drugs weighing between one and
four grams (third degree felony possession)—the weight of less than a sugar packet.310
Under Texas law, third degree drug possession has a normal sentence range of two to
ten years,311 but if a person has two prior felonies, the habitual offender law gives
prosecutors the option to enhance the range to a minimum of 25 years up to 99 years, or
life in prison.312 Although prosecutors need not seek the habitual offender
enhancements, they did in these seven possession cases. Moreover, since the sentence
is described as a range, not mandatory life in prison, the jury and/or the judge may still
impose the minimum sentence, 25 years, or any number of years greater than 25 but
short of life imprisonment.
In one of the seven cases, public documents suggest the defendant pled guilty, yet he
still received a life sentence for simple possession. In the six other cases, a jury decided
a life sentence was appropriate, and the judge let it stand.313

***

310 They were one white woman, one white man, two Black men, and three Latino men. Human Rights Watch analysis of data

provided by Texas Department of Criminal Justice of people incarcerated post-conviction during the period May 2012 through
April 2016.
311 TX Penal Code sec. 12.34.
312 TX Penal Code sec. 12.42 et seq.
313 Human Rights Watch analysis of data provided by the Texas Department of Criminal Justice; Human Rights Watch analysis

of public documents and online criminal records for these cases. They are still eligible for, although are not guaranteed,
parole.

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Drug Sentencing Reform and Non-Retroactivity
A significant number of states have decriminalized marijuana possession, as described
in section XI. For possession of other drugs, some states have implemented reforms
reducing drug sentences, though not decriminalizing. These reforms are positive
developments, but in many cases they are not retroactive, so thousands of people
remain incarcerated, continuing to bear the costs of a felony conviction for actions that
the state no longer criminalizes or that it sanctions less severely.
For example, in 2015 Louisiana amended its marijuana laws to make the first two
marijuana possession convictions misdemeanors and the third a felony punishable by
up to 2 years.314 This means that the most Corey Ladd—serving 17 years for half an ounce
of marijuana—could now face, given his two prior drug possession felonies, is 4 years.
Yet he has not benefited from the new law.
In 2015, Alabama passed Senate Bill 67, adding a new, lowest felony class D that
includes drug possession and carries lesser penalties than felony class C, at which it
was previously classified.315 But these reforms are also not retroactive, meaning that
people sentenced more harshly under the previous law remain unaffected. Data we
received from the Alabama Sentencing Commission indicated that as of October 2015,
14,000 people had been convicted of class C drug possession since 2010 and had
received sentences that would keep them in prison beyond SB 67 enactment—meaning
retroactivity could have had enormous impact.316
As a third example, 32 states and the District of Columbia now have Good Samaritan
laws that immunize people from prosecution if they seek emergency medical care after
someone has overdosed, but again many if not all of these laws lack retroactivity
provisions.317 Thus Byron Augustine is still in a Louisiana prison. Byron called 911 and

314 LA R.S. 40:966(E), (F).
315 Alabama SB 67.
316 Human Rights Watch analysis of data provided by the Alabama Sentencing Commission. We did not receive information

about parole eligibility or actual length of sentence served. However, the majority had been convicted relatively recently: 44
percent in 2014 or 2015, 20 percent in 2013, and 15 percent in 2012.
317 Human Rights Watch review of state statutes. Good Samaritan laws are examined further in section X.

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saved the life of a friend who had overdosed on heroin. Yet Byron was charged with
possession of that heroin and was sentenced to 20 years shortly before Louisiana
passed its Good Samaritan law.318 His friend ultimately overdosed again and died while
Byron was incarcerated.319
Human rights law requires retroactive application of new laws that reduce
sentences.320Retroactivity is particularly important in this context because the changes
to existing law reflect a widespread understanding that sentences imposed prior to the
reforms were disproportionately harsh and fundamentally unjust.

318 LA Rev. Stat. sec. 14:403.10.
319 Human Rights Watch interview with Byron Augustine, Slidell, February 3, 2016. Byron was sentenced to 10 years on the

heroin possession charge, and another 10—run consecutively (i.e. one after the other)—because his probation from an
earlier drug possession case was revoked as a result of the new charge. Almost two years later, he appealed his sentence.
Human Rights Watch submitted a letter on the human rights implications of his case. The judge resentenced him to 10 years
on each charge to run concurrent (i.e. at the same time) rather than consecutive.
320 Under article 15 of the International Covenant on Civil and Political Rights, to which the United States is a party, if

“subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the
offender shall benefit thereby.” While the United States has filed a reservation to this article, stating that US law generally
applies the penalty in force at the time an offense is committed, the validity of the reservation has been called into question.
See Connie de la Vega et al., Center for Law and Global Justice, University of San Francisco School of Law, “Cruel and
Unusual: U.S. Sentencing Practices in a Global Context,” May 2012, https://www.usfca.edu/sites/default/files/law/crueland-unusual.pdf (accessed April 14, 2016).

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VIII. Living Under a Dark Cloud: Probation and Criminal
Justice Debt
Some people convicted of drug possession are sentenced to probation instead of
incarceration.321 Probation is a less severe sentence than incarceration but carries an
explicit threat of incarceration, and the conditions probationers must comply with to avoid
incarceration are often onerous. Many people convicted of drug possession also face steep
criminal justice debts stemming from an extensive array of fines and court fees—costs that
some courts impose without appropriate regard to offenders’ ability to pay. Together these
factors cause many people convicted of drug possession to live in constant apprehension
of further criminal sanctions—a “huge black cloud”322 that may open up in a downpour at
any time.

Probation
The Bureau of Justice Statistics (BJS) defines probation as “a court-ordered period of
correctional supervision in the community, generally as an alternative to incarceration.”323
Probation often requires regular meetings, drug testing, classes, and fees that can be
unrealistic and unforgiving. Seemingly minor violations can trigger sanctions of jail time or
revocation of probation.324
At year-end 2014, BJS reported that 570,767 people were on probation for drug law
violations (the data does not distinguish between possession and sales), accounting for
321 In drug possession cases, some prosecutors offer probation for a first offense and/or for a quantity that they consider
small. This is systematized under Texas law, whereby the first offense in a state jail felony class (for drug possession under
one gram) carries mandatory probation. Some states have systems of “deferred adjudication” or “deferred probation.” Under
these systems, the judge typically finds the evidence sufficient to support a conviction but defers that ultimate entry of
judgment to allow the individual to complete a probationary period of supervision. If the probationer successfully completes
the terms of probation, he or she avoids a conviction altogether. Conversely, under “straight” or traditional probation, the
defendant is found guilty and is sentenced to probation instead of incarceration. Either way, if a probationer fails to meet
conditions, probation can be revoked and the person is usually sentenced to prison up to the relevant statutory maximum.
322 Human Rights Watch interview with Anita Robinson (pseudonym), Dallas, March 9, 2016.
323 US Bureau of Justice Statistics, “Probation and Parole in the United States, 2014,” November 2015, http://www.bjs.gov/

content/pub/pdf/ppus14_sum.pdf (accessed September 21, 2016).
324 Human Rights Watch has documented patterns of abuse and financial hardship inflicted by the “offender-funded” model

of privatized probation. See Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry,
February 2014, https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-funded-probation-industry.

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close to 15 percent of the entire state probation population nationwide.325 While BJS does
not distinguish between possession and sales in this data, states provide examples. In
Missouri, drug possession is by far the single largest driver of felony probation, accounting
for 9,500 people, or roughly 21 percent of the statewide probation total.326 Simple
possession is also the single largest driver of the community supervision population in
Florida—accounting for nearly 20,000 cases or 14 percent of the statewide total.327 In
Georgia, possession offenses accounted for 17 percent of new probation starts in 2015328
and roughly 16 percent of the standing probation population statewide at mid-year 2016.329

Onerous Conditions
A large number of individuals in custody and on probation in each state we visited, as well
as their defense attorneys, said probation “sets you up to fail.” Probation for drug
possession is often designed with specific conditions related to drug use. For people we
interviewed, these typically included regular and/or random drug and alcohol testing;
weekly, sometimes daily, classes on addiction, anger management, life skills, and
sometimes parenting; and meetings with probation officers monthly or on other regular
schedules. In some jurisdictions, probation may include drug court participation,
described below in section X. In 2009, in the 75 largest counties in the US, BJS reported
that 45 percent of people sentenced to probation for drug offenses were required to
undergo treatment (BJS did not describe what treatment entailed).330

325 Thomas P. Bonczar, “Count of yearend probation population by most serious offense,” generated using the Corrections

Statistical Analysis Tool (CSAT) – Probation, Bureau of Justice Statistics, http://www.bjs.gov/probation/ (accessed
September 21, 2016).
326 Missouri Department of Corrections, Profile of the Institutional and Supervised Offender Population, 2015, December
2015, http://doc.mo.gov/Documents/publications/Offender%20Profile%20FY15.pdf (accessed September 21, 2016).
327 Florida Department of Corrections, “2014-2015 Agency Statistics: Community Supervision Population, Population by
Primary Offenses – June 30, 2015,” http://www.dc.state.fl.us/pub/annual/1415/stats/csp_primary.html (accessed
September 21, 2016).
328 Georgia Department of Corrections, “Probationer Statistical Profile, Probation Starts During CY2015,” January 2, 2016,
http://www.dcor.state.ga.us/sites/all/files/pdf/Research/Annual/Profile_Probation_starts_CY2015.pdf (accessed
September 21, 2016).
329 Georgia Department of Corrections, “Probationer Statistical Profile, Active Street Probationers,” January 2, 2016,

http://www.dcor.state.ga.us/sites/all/themes/gdc/pdf/Profile_probationers_2016_06.pdf (accessed September 21, 2016).
330 Bureau of Justice Statistics, “Felony Defendants in Large Urban Counties, 2009 - Statistical Tables,” Table 28,
http://www.bjs.gov/content/pub/pdf/fdluc09.pdf (accessed September 21, 2016).

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In every state we visited, interviewees said probation was very difficult. A number of them
said probation required so much time commitment that they had to give up a job search or
leave present employment. Others described concerns about probation officers visiting a
place of employment, interrupting their ability to perform work consistently and making
public their probation status. Lindsay Phillips described being on probation for felony
possession of cocaine in Florida:
They say [probation is] there to integrate you back into society but it isn’t….
There was no help. I had been offered a great job opportunity to run a lab at
a medical facility. My probation officer said to them, are you sure you want
to hire a felon? They had offered the job. Then I get a letter: after much
consideration, the offer is no longer available.331

Gary’s Story
After being sentenced to one-year probation for 0.1076 grams of cocaine in Harris County,
Texas, Gary Baker had to quit his job as an interstate truck driver. He said his probation
terms, which prevented him from leaving the jurisdiction regularly and required his frequent
attendance at probation meetings and drug tests, made interstate driving impossible.
Instead, Gary was trying to find work with a temp agency, picking up what jobs he could. He
had experienced more than a 50 percent cut in income. He said, “Last week they sent me out
three days and I got that little check today. $320, when taxes come out I’ve got $265. I’m
used to bringing home $700 a week ... $40,000 a year.”
Gary had to pay $72 a month to probation and had $800 in court costs and surcharges
outstanding. He owed his brother for his bond and for help with car payments. He was living
with his sister and could not afford to pay rent or contribute to food costs. And he was
getting calls from debt collectors for the first time in his life. “My main concern is to keep my
car. I ain’t worried about the furniture [I’m losing] and all this other stuff. My car, so I can get
to work, has to come first. It’s been three months I haven’t been able to pay. [If I don’t pay]
tomorrow, they’ll send someone to come get it.”332

331 Human Rights Watch interview with Lindsay Phillips (pseudonym), Auburndale, December 11, 2015.
332 Human Rights Watch interview with Gary Baker (pseudonym), Dallas, March 9, 2016.

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The travel restriction also changed interviewees’ relationships with partners and family
members. An interviewee in New York City said he had finally decided to violate his
probation by leaving the jurisdiction to visit his aging father in Texas. He was nervous
about being discovered and having his probation revoked, but faced with a choice
between not seeing his father whose health was frail and the possibility of more jail time,
he felt he needed to see his father again.333 In Florida, Lindsay Phillips said her travel
restrictions had impacted her relationship with her teenage children. “They live out of
state. I can’t leave the jurisdiction without permission, and it’s a huge hassle because of
curfew.” She said she had not seen her children in eight months.334
In some jurisdictions, conviction for drug possession triggers a driver’s license
suspension, which we examine at more length below in section IX. In Florida, many
interviewees told us the suspension made it impossible to get to mandatory probation
meetings and classes. Some did not have money to pay for taxis. People described having
to catch multiple buses to get to and from probation appointments, relying on friends and
family members if they could. Isabel Evans received probation for her first felony,
possession of hydromorphine in Florida. She said,
Probation sets you up to fail…. They know you don’t have a license, no
transportation. Not everyone has friends and parents who can drive you. I’d
call my probation officer to change days to come in, I’d send emails; and he
won’t respond…. [Once] my friend was driving me [to class], but we were
late with a flat tire. I was more than 20 minutes late so was knocked out of
[the class] and got my probation violated.335
Some defense attorneys told us that probation conditions were so onerous and unrealistic
that they would counsel clients to take a short term of incarceration instead. A number of
interviewees said if they were to be offered probation again, they would choose
incarceration. A former prison warden in Florida acknowledged, “I know guys in prison
who’d rather do time than paper.”336

333 Human Rights Watch interview with probationer, New York, October 2015.
334 Human Rights Watch interview with Lindsay Phillips (pseudonym), Auburndale, December 11, 2015.

335 Human Rights Watch interview with Isabel Evans (pseudonym), Auburndale, December 11, 2015.
336 Being “on paper” is a colloquial saying that means being on probation. Human Rights Watch interview with former Florida

prison warden, December 2015.

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The Problem with Drug Testing
Numerous interviewees described their frustration with the way drug tests are
performed and sanctioned. In St. Tammany Parish, Louisiana, drug court was a condition
of Melissa Wright’s probation. Her probation officer and the drug court judge told her
that although her urine sample had tested negative for drugs and alcohol, she still failed
the drug test: her urine was too diluted. A number of drug court participants in that
jurisdiction told us dilutions meant they had allegedly been drinking too many fluids,
perceived as an attempt to hide drugs in their system. They had been sanctioned with
jail time as a result, and Melissa was afraid she risked revocation.
Melissa said she visited a urologist to try to get an explanation for why her urine was
diluted, but the urologist told her the sample was normal. Yet the judge insisted
otherwise. Melissa told us she was scared; she had already been to jail for dilutions. In
St. Tammany, she said, “everyone goes in for dilutions.”
I dress to go to jail every time I go to court now. They only let you wear
white underclothes in jail, so I wear white long johns under my clothes
[to drug court], because otherwise the cell is so cold you get deathly ill.
It’s like you have no rights once you’re in drug court. I used cocaine and
alcohol. Does that make me a criminal, a person with no rights for the
rest of my life? … I live in the country. I wake up at 4 a.m. I can’t hold
urine to get to court to pee at 8 a.m…. I’m 60. The judge says, “Get here
at 8 a.m. and don’t pee before and you won’t be diluted.”337
No matter who is subjected to it, drug testing is so intrusive that it is considered a
search under the Fourth Amendment.338 Many of those we interviewed brought up
testing as a concern; it may become an issue during probation, pretrial release, and
assessments for welfare assistance and drug court programs, discussed below in
sections IX and X.

337 Human Rights Watch interview with Melissa Wright (pseudonym), Covington, Louisiana, January 28, 2016, and phone

interview February 4, 2016.
338 Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989) (state-compelled collection and testing of urine

constitutes a search under the Fourth Amendment).

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Drug testing is additionally problematic for those who are drug dependent.
Dependence is a health condition, the normal pattern of which includes relapses into
drug use.339 Punishing drug dependent people for failing a drug test is punishing
them for a health condition.

Others chose a felony conviction rather than the chance to do probation without one: Nate
Myers pled to his first felony and time served (33 days in jail), although the prosecutor had
offered him three years’ probation with a deferred adjudication, meaning that if he
completed his probation without incident, the case would be dismissed and he would not
have a conviction on his record. He chose a felony instead, saying three years of probation
would be too hard.340
Although many officials told us probation conditions are meant to help people who use
drugs, those who had been subject to them said conditions were misaligned with the
realities of drug use and dependence. In Auburndale, Florida, Trisha Richardson said,
“They never offered me help. Everyone says probation is a set up. They know you’re an
addict so you’re going to get violated immediately [because you use].”341 In Ft. Lauderdale,
Carlos Alvarez recalled his probation in Delaware for drug possession:
There are times I've gone to probation and said, “I'm using, I need help.”
Their response? They turn around and handcuff me. I say, “Please take me
to detox.” They say, “We can’t do that,” and they take me to jail instead to
break my dependency with no medication; and it starts the cycle again….
Probation for someone like me, the door is always revolving. It’s a set-up. I
was constantly getting violated, going back and forth.342

339 National Institute on Drug Abuse, “Drugs, Brains, and Behavior: The Science of Addiction,” July 2014,

https://www.drugabuse.gov/publications/drugs-brains-behavior-science-addiction/treatment-recovery (accessed July 25,
2016) (“The chronic nature of the disease means that relapsing to drug abuse at some point is not only possible, but
likely.”); Jeanne L. Obert et al., “Client’s Handbook: Matrix Intensive Outpatient Treatment for People With Stimulant Use
Disorders,” US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration,
2006, http://www.ct.gov/dmhas/lib/dmhas/pgs/PGIntegratedMatrixClientHandbook.pdf (accessed July 26, 2016).
340 Human Rights Watch interview with Nate Myers (pseudonym), Dallas, March 8, 2016.
341 Human Rights Watch interview with Trisha Richardson (pseudonym), Auburndale, December 11, 2015.
342 Human Rights Watch interview with Carlos Alvarez (pseudonym), Orlando, December 11, 2015.

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Financial Costs
The costs of probation can sometimes be so prohibitive for poor defendants that they feel
compelled to choose a jail sentence instead.343 In many jurisdictions probationers are
required to pay fees to government agencies or, in some cases, to for-profit companies
that monitor compliance with probation terms.344 Monthly fees can range from $10 to $135,
depending on the state, county, and locality.345 Keeping up with probation requirements
can also become costly, as probationers sometimes must drive long distances—and cover
the cost of gas—to meet their probation officer for check-ins or random drug tests, for
which they are often financially responsible. This routine can make it difficult to keep a
steady job. As one magistrate judge in Idaho noted, “Under certain circumstances, the
realities of life may be that they don’t have a car, a driver’s license or a job, and
incarceration seems like a good alternative to them.”346
Faced with probation fees that may feel unaffordable, many low-income people are pushed
to make a false “choice” to serve jail time instead. A Houston defense attorney told us the
costs of probation were unrealistic for her homeless client who was charged with state jail
felony possession. She asked how he was supposed to pay the monthly fee to the
probation office, the weekly fees for urine tests, and the one-time bulk fee for classes, let
alone find a way to show up for all the appointments without access to transportation. As
she explained, he decided he would do better to sit out a six-month offer in local jail,
where he already had credit for pretrial time.347 Where the high fines and fees imposed as a
condition of probation mean that some defendants “choose” to give up their liberty
instead, the result is a system that punishes people not only for the crime for which they
were convicted but also simply for being poor.

343 As discussed in the subsection on Criminal Justice Debt below, the financial costs of being sentenced for drug use or

possession can, even without probation, be unbearable for low-income people.
344 See Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry.
345 See American Probation and Parole Association, “Supervision Fees,” September 2002, https://www.appa-

net.org/eweb/DynamicPage.aspx?webcode=VB_HotTopicDetail&fqs_key=efb7e2c8-b6ce-4b0d-a36c-f42d9a1e2ace
(accessed June 8, 2016). In addition, some states require people to submit their payments online using a credit or debit card,
or by mail using a money order or cashier’s check, which could pose additional difficulties for unbanked and underbanked
individuals. See, for example, Michigan Department of Corrections, Fee Collection Services,
https://michigan.feeservice.com/FC/Home/FeeServiceInfo (accessed June 8, 2016).
346 Laurie Welch, “Probation fees show the high cost of being poor,” Magic Valley, August

24, 2014,
http://magicvalley.com/news/local/probation-fees-show-the-high-cost-of-being-poor/article_c244bc82-2b53-11e4-bb51001a4bcf887a.html (accessed June 8, 2016).
347 Human Rights Watch phone interview with defense attorney, Houston, March 15, 2016.

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In the 1983 case Bearden v. Georgia, the US Supreme Court ruled that probationers cannot
have their probation revoked and be jailed simply for failing to pay a fine if they truly
cannot afford to pay it. Human Rights Watch and the ACLU have previously documented
that some courts do not comply with the spirit, if not the letter, of their Bearden
requirements.348 But even where courts do not revoke or jail for nonpayment of fees the
probationer cannot afford, some impose probation without regard to the fees in the first
place, or to whether the person is able to pay them.349 Where probation fees are too
onerous, they may result in people choosing to serve time instead, or cause people
extreme financial and emotional stress.

Violations and Revocations
Many jurisdictions distinguish between substantive and technical probation violations.
Substantive violations typically occur when someone is arrested for or convicted of a new
crime while on probation. Technical violations result from failing to satisfy a condition of
probation, for example failed drug tests, nonattendance at classes or missed probation
officer meetings, and nonpayment of fines and fees. Technical violations may result in
“short” stints of punishment in jail. Apart from the negative experience of jail, these stints
take people out of their daily lives. A former probation officer in Miami told us:
Some people can’t afford the assessments and so they get violated [end up
violating the terms of their probation]. Then it’s two to three times more
drug testing. Instead of once a month, now sometimes it’s twice a month or
twice a week. You have to go in for them, so you miss work. Or if you’re

348 Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry, February 2014,

https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-funded-probation-industry; Sarah
Alexander et al., “In for a Penny: The Rise of America’s New Debtors’ Prisons,” ACLU, October 2010,
https://www.aclu.org/files/assets/InForAPenny_web.pdf (accessed September 28, 2016).
349 For example, one interviewee in Texas told us that he had not known the probation fees when he pled to probation, and
that he was not informed of them until he showed up at the probation office. Because the probation department and not the
court may assess probation fees, judges may not necessarily inquire into ability to pay them. For failures to inquire into
ability to pay court-imposed fines and fees more generally (apart from probation), which are discussed in the following
subsection on Criminal Justice Debt, see Alicia Bannon, Mitali Nagrecha, and Rebekah Diller, Criminal Justice Debt: A Barrier
to Reentry, Brennan Center for Justice, 2010,
http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf (accessed September 8,
2016), pp. 13-17.

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violated, [sometimes] you get house arrest. Or your probation is revoked
[and] you’re sent to jail or prison.350
Sometimes probation is revoked and the individual is sent to prison for technical
violations. A study by Pew Charitable Trusts in Maryland found that of all offenses, drug
possession had the highest percentage of revocations to prison that were triggered by a
technical violation.351 The study also found that defendants who had a technical violation
of probation for their drug offense ended up serving slightly longer sentences than those
sentenced straight to prison: newly sentenced drug defendants served an average of 29
months while those who had a technical violation served 31.9 months.352
Some interviewees were so afraid of having their probation revoked because of a technical
violation, even one as small as missing a meeting, that they failed to report to their
probation officer and thus began to accumulate more technical violations. Jason Gaines
received probation and his first felony conviction in Granbury, Texas for possession of
unused syringes (profiled in section V). His driver’s license was suspended after the
conviction, so his girlfriend would drive him to work and to meetings with his probation
officer. He told us he missed one of those check-ins, because he and his girlfriend had to
take his friend to the hospital. He said he was sure his probation would be revoked even if
he tried to explain, so he stopped reporting and accumulated technical violations. When
he was charged with a revocation of probation, he pled to 20 months in prison, just short
of the 24-month statutory maximum.353
The former Miami probation officer quoted above told us she does not think drug possession
should be a reason for arrest in the first place, in part because it targets low-income
defendants and those with drug dependence who are struggling already. “Life has sucked
them dry,” she said. “A lot of the people I know [with possession cases] are homeless, in
shelters, bumming in someone’s home.” But if they are arrested and given probation, she

350 Human Rights Watch interview former probation officer, Miami, December 23, 2015.
351 Sixty-seven percent of revocations to prison for drug possession cases were revoked because of a technical violation,

Pew Charitable Trusts, Maryland Criminal Justice System Assessment and Intro to Policy Development, September 11, 2015,
http://goccp.maryland.gov/jrcc/documents/presentation-20150911-justice-assessment.pdf (access September 21, 2016).
352 Ibid.
353 Human Rights Watch interview with Jason Gaines (pseudonym), Granbury, March 10, 2016.

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recommended, “Probation officers: don’t violate for positive drug tests. Give them a couple
chances.”354 It is important for probation officers to understand that drug dependence is a
health condition and that immediate abstinence is unrealistic.
Judge Murphy, in Miami, also recognized a judge’s role in helping a person complete probation:
On probation, people succeed more in my division because I recognize
they’ll have problems. So I’m going to keep in mind they’ll stumble and
test dirty, and I’ll say, “Try again, see you in a month,” [rather than
revoking their probation on the spot]. Unfortunately, that’s rare. But I like
to think I do my part. I get young prosecutors, and I try to impart my
perspective to them.355

Criminal Justice Debt
Many people convicted of drug possession are burdened with enormous court-imposed
fines, fees, costs, and assessments (collectively, “fines and fees”) that they cannot afford
to pay. These fines and fees are in addition to the price of bail (if they can afford it),
probation supervision fees, lost income caused by detention, and the financial impact of a
criminal record. For some who choose to hire an attorney, the costs of defending their case
may already have left them in debt or struggling to make ends meet for months or even
years to come.356
For others, assessments may include an application fee for a public defender, who has
been appointed precisely because the individual has been found unable to pay. All of
these circumstances combine to overload and sometimes to crush the lives of people with
criminal justice debt from their drug possession prosecution.

354 Human Rights Watch interview former probation officer, Miami, December 23, 2015.
355 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015.
356 See Darius Mitchell’s case, profiled in section IV.

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These fines and fees also risk creating a perverse incentive, since they generate
substantial revenue for many municipalities and counties.357 In Florida, fines and fees
often reach hundreds or even thousands of dollars.358

Fines and Fees for Drug Possession in Florida
A person charged with an offense in Florida faces a number of mandatory fines and fees,
including a county court fee of $40 if the person contests the charge (compared to $10 if
the defendant does not). The public defender application fee is an additional $50, which
is subject to increase by the court if there is “sufficient proof of higher fees or costs
incurred.” If convicted, defendants must pay a conviction cost of no less than $60 for a
misdemeanor and no less than $225 for a felony,359 prosecution costs of at least $50 for
a misdemeanor and at least $100 for a felony, a $100 fee for any controlled substance
violation (plus an additional fee for no more than the underlying fine for the drug
offense, which can be as much as $5,000), a baseline fee upon which certain local
governments can impose an $85 local surcharge, and a 5 percent surcharge imposed on
all incurred costs. After 90 days of delinquency, clerks must refer any unpaid court fees
to a private attorney or collection agent. Clerks are also required to report nonpayment
of fines and fees to state authorities for the purpose of suspending driving privileges.360

357 See Christopher Albin-Lackey (Human Rights Watch), “For-Profit Justice Means Taxing the Poor,” Spotlight on Poverty and

Opportunity, January 7, 2015, https://www.hrw.org/news/2015/01/07/profit-justice-means-taxing-poor.
358 The American Civil Liberties filed a federal lawsuit in August 2015 against Marion County, Florida, on behalf of a man

whose driver’s license was suspended for failure to pay his fines and fees. He owed over $53,000 in court costs and fines
that he could not afford, which including the following: Public Defender Application Fee $50; Criminal Justice Clearing Trust
Fund $3; Crimes Compensation Trust Fund $50; Additional Court Cost $225; County Crime Prevention Program $50; Criminal
Justice Education for Local Government $2; Teen Court $3; Additional Court Cost for County Programs $65; Prosecution /
Investigation Costs $100; Controlled Substances Fine $50,000; 5 percent Surcharge on any Fine $2,500; Fine Surcharge
(Crime Stoppers) $20; Total $53,068. Washington v. Clerk for Marion County, Florida, Complaint, August 5, 2015,
https://aclufl.org/resources/washington-v-clerk-for-marion-county-florida-complaint (accessed September 21, 2016). For a
map of the income eligibility guidelines for assigned public defenders by state, see John P. Gross, “Gideon at 50: A ThreePart Examination of Indigent Defense in America, Part 2: Redefining Indigence: Financial Eligibility Guidelines for Assigned
Counsel,” National Association of Criminal Defense Lawyers, March 2014, https://www.ils.ny.gov/files/gideon_2_
assigned_counsel_%20financial_guidelines_noUnd_clr_map_pms5669_4162014-102.pdf (accessed July 27, 2016), pp. 2223.
359 In 2003, new legislation eliminated the court’s ability to waive the baseline fee. FL Stat. Ann. sec. 938.03(2).
360 See Rebekah Diller, “The Hidden Costs of Florida’s Criminal Justice Fees,” Brennan Center for Justice, 2010,
http://www.brennancenter.org/sites/default/files/legacy/Justice/FloridaF&F.pdf (accessed June 6, 2016), pp. 5-6, 31. As an
example of other states, in Oklahoma, fines and fees can include the following: Court Reporter Fee $20; Bond Filing Fee $35;
Fee to Request Court-Appointed Attorney $200; County Indigent Defender Application Fee $15; Charge for Each Felony
Offense $25; Charge for Each Misdemeanor Offense $15; County Jail Incarceration $44-$52 per day; Drug Court Revolving

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Some interviewees in Florida, Louisiana, and New York told us they had never paid off their
fines and fees and had never been tracked down for them, assuming in some cases that
they had been waived or forgotten. Other interviewees had gone to great lengths to stay
current on their payment schedules with the court, sometimes sacrificing other financial
needs or borrowing from friends and family.
Yet, as many people said, the unpaid fines and fees still made them feel vulnerable and
restricted their financial mobility. In New York City, Cameron Barnes told us: “Paying the
surcharge wasn’t a priority; I’m on a fixed income. But I know elsewhere people get arrested
for not paying, so I feel vulnerable to arrest now because I have outstanding debts.”361
A few interviewees in central Florida said they had learned of arrest warrants for their
failure to pay fines and fees, and one said she was jailed for nonpayment. Kim Coleman
told us her probation officer called to tell her there was a warrant for her arrest related to
her unpaid fees—about $400. Kim turned herself in and was detained for 52 days before
the court gave her a hearing. She said she was sentenced to 60 days for her failure to pay
and was released on time served.362
In Miami, Judge Murphy said it was a “kneejerk” political stance: “Let’s keep hiking up
fees and fines in the criminal justice system [for those who] are least able to afford them.
The legislature doesn’t want to raise taxes so does it in fines and fees instead.”363 The
Chief Justice of the Florida Supreme Court has also noted that the combination of various
court expenses is “beyond the reach” of many defendants.364
The American Civil Liberties Union has documented the extensive fines and fees imposed
on criminal defendants around the country, and the coercive debt collection practices
some courts and local governments employ—including jailing people for nonpayment who

Fund Fee $155; and many others. M. Scott Carter and Clifton Adcock, “A Journey Into Debt,” Oklahoma Watch, January 31,
2015, http://oklahomawatch.org/2015/01/31/list-journey-into-debt/ (accessed November 11, 2015).
361 Human Rights Watch interview with Cameron Barnes (pseudonym), New York, October 29, 2015.
362 Human Rights Watch interview with Kim Coleman (pseudonym), Auburndale, December 11, 2015.
363 Human Rights Watch interview with Judge Dennis Murphy, Miami, December 21, 2015.
364 The Florida Bar News, “Chief Justice Labarga takes his access message to Washington,” May 1, 2016,

https://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/75af1297f3f8ee6e85257fa00
43d9f2!OpenDocument (accessed July 25, 2016).

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lack the ability to pay365—and has engaged in successful litigation and advocacy.366 As
noted above, more than 30 years ago the US Supreme Court held it unconstitutional to
incarcerate people simply because they cannot pay fines or fees.367

365 See American Civil Liberties Union, “Ending Modern-Day Debtors' Prisons,” https://www.aclu.org/feature/endingmodern-day-debtors-prisons (accessed September 22, 2016); American Civil Liberties Union, In for A Penny: The Rise of
America’s New Debtors’ Prisons, October 2010, https://www.aclu.org/files/assets/InForAPenny_web.pdf (accessed
September 22, 2016); ACLU of Louisiana, Louisiana Debtors’ Prisons: An Appeal To Justice, August 2015,
https://www.laaclu.org/resources/LADebtorsPrisons_2015.pdf (accessed September 22, 2016); ACLU of New Hampshire,
Debtors’ Prisons in New Hampshire, September 2015, http://aclu-nh.org/wp-content/uploads/2015/09/Final-ACLU-DebtorsPrisons-Report-9.23.15.pdf (accessed September 22, 2016); ACLU of Ohio, In Jail & In Debt : Ohio’s Pay-To-Stay Fees,
http://www.acluohio.org/wp-content/uploads/2015/11/InJailInDebt.pdf (accessed September 22, 2016); ACLU of Ohio, The
Outskirts of Hope: How Ohio’s Debtors’ Prisons Are Ruining Lives and Costing Communities, April 2013,
http://www.acluohio.org/wp-content/uploads/2013/04/TheOutskirtsOfHope2013_04.pdf (accessed September 22, 2016);
ACLU of Washington and Columbia Legal Services, Modern-Day Debtors’ Prisons: The Ways Court-Imposed Debts Punish
People For Being Poor [hereinafter Modern-Day Debtors’ Prisons in Washington], February 2014, https://acluwa.org/sites/default/files/attachments/Modern%20Day%20Debtor's%20Prison%20Final%20(3).pdf (accessed September
22, 2016); Alison Beyea, “Legislature Has a Chance to End Debtors’ Prisons in Maine,” ACLU of Maine Blog, March 8, 2016,
https://aclumaine.org/legislature-has-chance-end-debtors-prisons-maine (accessed September 22, 2016); Debtors’ Prisons,
ACLU of Colorado, http://aclu-co.org/court-cases/debtors-prisons (accessed September 22, 2016) (compiling 2013 letters to
municipalities of Westminster, Northglenn, and Wheat Ridge concerning illegal jailing of people unable to pay fines and
fees); “Colorado Legislature Approves Ban on Debtors’ Prisons,” ACLU of Colorado press release, April 23, 2014,
http://acluco.org/colorado-legislature-approves-ban-debtors-prisons (accessed September 22, 2016); Complaint,
Thompson v. Dekalb County, No. 1:15-cv-280-TWT (N.D. Ga.), January 29, 2015, https://www.aclu.org
/sites/default/files/field_document/2015.01.29_filed_thompson_complaint.pdf (accessed September 22, 2016); Complaint,
Fuentes v. Benton County, No. 15-2-02976-1 (Sup. Ct. Wash. Yakima County), October 6, 2015,
https://www.aclu.org/sites/default/files/field_document/fuentes_v._benton_county_-_complaint.pdf (accessed September
22, 2016); Complaint, Kennedy v. City of Biloxi, No. 1:15-cv-00348-HSO-JCG (S.D. Miss.), October 21, 2015,
https://www.aclu.org/kennedy-v-city-biloxi-complaint (accessed September 22, 2016); Complaint for Superintending
Control, In re Donna Elaine Anderson, Circuit Court Case No. 15-2380-AS (Cir. Court County of Macomb), July 9, 2015,
http://www.aclumich.org/sites/default/files/Complaint%20for%20Superintending%20Control%20with%20exhibits%20FIL
ED.pdf (accessed September 22, 2016).
366 The ACLU brought a federal lawsuit in October 2015 against the City of Biloxi, Mississippi for jailing people who were

unable to pay court fines and fees in traffic and other misdemeanor cases. According to the complaint, Biloxi “operates a
modern-day debtors’ prison. The City routinely arrests and jails impoverished people in a scheme to generate municipal
revenue through the collection of unpaid fines, fees, and court costs imposed in traffic and other misdemeanor cases. As a
result, each year, hundreds of poor residents of the City and surrounding areas, including individuals with disabilities and
homeless people, are deprived of their liberty in the Harrison County Adult Detention Center for days to weeks at a time for
no reason other than their poverty and in violation of their most basic constitutional rights.” The Biloxi Municipal Court
issued 2,681 arrest warrants against 1,520 people for “failure to pay fines, fees, court costs, or restitution” between
September 1, 2014 and June 11, 2015, and at least 415 people were jailed for failure to pay debts between September 1, 2014
and March 26, 2015. Kennedy v. City of Biloxi, Case No. Case 1:15-cv-00348-HSO-JCG, Complaint, October 21, 2015,
https://www.aclu.org/other/kennedy-v-city-biloxi-complaint (accessed September 22, 2016). The parties settled in March
2016. As part of the settlement, Biloxi agreed to make sweeping reforms that both parties agree are a model for courts across
the country. See “Biloxi and ACLU Settle Lawsuit Over Jailing of Indigent People,” ACLU press release, March 15, 2016,
https://www.aclu.org/news/biloxi-and-aclu-settle-lawsuit-over-jailing-indigent-people (accessed September 22, 2016). See
also Thompson v. Dekalb County, Case No. 1:15-cv-280-TWT (N.D. Ga.), Settlement Agreement, March 18, 2015,
https://www.aclu.org/files/assets/thompson_v_dekalb_county_settlement_agreement_03182015.pdf; Fuentes v. Benton
County, No. 15-2-02976-1 (Sup. Ct. Wash. Yakima County), Settlement Agreement, June 1, 2016, https://www.aclu.org/
sites/default/files/field_document/benton_county-lfo_settlement_agreement.pdf; In re. Anderson, No. 15-2380-AS (16th Cir.
Ct. Mich), Stipulation and Order of Superintending Control, March 8, 2016.
367 Bearden v. Georgia, 461 U.S. 660 (1983).

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IX. The Impact of Incarceration and a Criminal Record
When People Are Locked Up
You get thrown in here. You don’t have any contact with the outside world.
I’m waiting on everybody else. My life is still…. Everything is crumbling.368
–Breanna Wheeler, in jail in Galveston, Texas for methamphetamine residue, March 2016

You go to jail, you lose your job, you lose your house, you probably lose
your girlfriend or your boyfriend. Your kids are gone. It’s devastating.369
–John Lindner, District Defender, 22nd Judicial District, Louisiana, January 2016

Locking people up for their alleged drug use, whether in pretrial detention or following a
conviction, has profound consequences in addition to deprivation of liberty. It separates
young children from their parents and partners from each other. It can lead to lost jobs,
deterioration in health, financial debt, and even homelessness after the period of
incarceration is complete. Incarceration also has societal consequences: when so many
people are removed from communities, the communities themselves are weakened.370
The social science literature on the consequences of incarceration is extensive.371 Because
individuals and families feel incarceration’s impact no matter the type of offense, we do
not replicate that literature here. But we present some of the most common experiences

368 Human Rights Watch interview with Breanna Wheeler (pseudonym), Galveston, Texas,

March 17, 2016.

369 Human Rights Watch interview with John Lindner, Covington, Louisiana, January 28, 2016.
370 Todd R. Clear, “The Effects of High Imprisonment Rates on Communities,” Crime and Justice, vol. 37 (2008), pp. 97-132;

Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, May 2000,
https://www.hrw.org/reports/2000/usa/index.htm; Dorothy E. Roberts, “The Social and Moral Cost of Mass Incarceration in
African American Communities,” Stanford Law Review, vol. 56 (2004), pp. 1271-1305.
371 See, for example, Marc Mauer, “The Causes and Consequences of Prison Growth in the United States,” Punishment &

Society, vol. 3 (2001), pp. 9-20; Mary Pattillo, Bruce Western, and David Weiman (eds.), Imprisoning America: The Social
Effects of Mass Incarceration (New York: Russell Sage Foundation, 2004); Ram Subramanian et al., “Incarceration’s Front
Door: The Misuse of Jails in America,” Vera Institute of Justice, July 29, 2015, https://storage.googleapis.com/vera-webassets/downloads/Publications/incarcerations-front-door-the-misuse-of-jails-in-america/legacy_downloads/incarcerationsfront-door-report_02.pdf (accessed July 27, 2016); and Jeremy Travis, Bruce Western, and F. Stevens Redburn, The Growth of
Incarceration in the United States: Exploring Causes and Consequences (Washington, DC: The National Academies Press,
2014).

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we heard, to emphasize how acutely individuals and families felt these consequences,
which compound the wrongs inherent in the criminalization of drug use.

Impact on Family
Incarceration affects not only the people behind bars but also their families, who may
depend on them financially, emotionally, and physically. Separation from family and
inability to be present at major life milestones of family members and friends may be a
defining part of imprisonment for any inmate, regardless of the convicted offense. But
where the offense is nothing more than simple drug possession, which should not be
criminalized at all, the effects of imprisonment infringe on the right to family unity372 as
well as the rights of children to be raised by their parents.373
Child experts agree that loss of parents to prison can be a continuing emotional trauma for
children and can have a significant impact on children’s development, by depriving them
of a critical source of care, stability, and love.374 For people we spoke to, the well-being of
young children in their absence was a source of constant concern, sometimes even more
vivid for them than the experience of jail or prison itself. Corey Ladd was incarcerated in
New Orleans when his girlfriend was eight months pregnant. He saw his infant daughter,
Charlee, for the first time in a courtroom and held her for the first time in the infamous
Angola prison. She is four now and thinks she visits her father at work. “She asks when I’m
372 The international human right to family unity finds articulation in numerous human rights treaties. The Universal
Declaration of Human Rights states that “[t]he family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.” Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res.
217A(III), U.N. Doc. A/810 at 78 (1948), art. 16(3). The International Covenant on Civil and Political Rights states in article 17(1)
that no one shall be “subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”
Article 23 states that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society
and the state.” UN Human Rights Committee, General Comment 19, Article 23, Protection of the Family, the right to marriage
and equality of the spouses (Thirty-ninth session, 1990).
373 Beyond family unity in general, the right of children to be raised by their parents is one of the strongest human rights

counseling against the separation of families. Article 24 of the International Covenant on Civil and Political Rights, to which
the United States is a party, entitles children “to such measures of protection as are required by [their] status as a minor, on
the part of the family, society and the state.” Article 9 of the Convention on the Rights of the Child (CRC), which the United
States has signed but not ratified, requires that “States Parties shall ensure that a child shall not be separated from his or
her parents against their will, except when … such separation is necessary for the best interests of the child.” Convention on
the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N.
Doc. A/44/49 (1989), entered into force September 2, 1990, signed by the United States on February 16, 1995, art. 9(1).
374 Some experts also believe that the children of incarcerated offenders are more likely to be involved in the criminal justice

system than other children their age. For the impact of incarceration for drug offenses for children with incarcerated parents
in New York, see Human Rights Watch, Collateral Casualties: Children of Incarcerated Drug Offenders in New York, June 2002,
https://www.hrw.org/report/2002/06/22/collateral-casualties/children-incarcerated-drug-offenders-new-york.

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going to get off work and come see her,” Corey told us. Corey is a skilled artist and draws
Charlee pictures. In turn, Charlee brings him photos of her dance recitals and in the prison
visitation hall shows him new dance steps she has learned. Corey, who is currently serving
17 years for marijuana possession, may never see her onstage.375
Some parents do not let their children visit jail or prison because they are concerned the
experience would be traumatizing. Jason Gaines, detained pretrial in Granbury, Texas, had
not seen his 6-year-old daughter for five months: “I don’t want her seeing me in here, you
know? ... She is really impressionable at this age, and I just don’t want this to be part of
her memory. [I miss her] very much, every day. I call her. She always cries, to the point I
don’t want to call.”376
Because many jails do not allow contact visits with family, people must view family
members through glass and hear their voices through a phone or, worse, through a TV
monitor. Darrell Collins said, “You don’t get to hold your kids [which] is just something you
can’t get used to. You have to talk to them through the phone, so you can hear them but
you can’t reach out and grab their hand.”377 Tiffany Lewis, whose son Leonard had been
detained pretrial in Houston, told us, “I haven’t gone up to see him. It’s too hard for me to
go up there and see him [through the glass].”378
The mere logistics of remaining in touch, from the travel involved in visits to the price of
phone calls, can be prohibitive for some families.379 Bryan Fisher was trying to come up
with $5,000 for his bond but spent family money on calls instead. He said, “[In jail,] they
charge $25 to set up a phone call here. You get 15 minutes, then if someone calls you back

375 Human Rights Watch interview with Corey Ladd, St. Gabriel, February 2, 2016; Human Rights Watch interview with Lisa
and Jay Ladd, New Orleans, January 31, 2016.
376 Human Rights Watch interview with Jason Gaines (pseudonym), Granbury, March 10, 2016.
377 Human Rights Watch interview with Darrell Collins (pseudonym), Covington, January 27, 2016.
378 Human Rights Watch interview with Tiffany Lewis (pseudonym), Houston, March 16, 2016.
379 Some states require people to pay background check fees to visit incarcerated family members. According to a 2014
study, 69 percent of participants identified the cost of phone calls as a barrier to maintaining contact, 47 percent noted the
distance to the prison or jail location, and 46 percent responded that visitation-related costs were prohibitive. These costs
are not inconsequential; in fact, over one-third of families had to go into debt to cover the costs of phone calls or visitation.
Saneta deVuono-powell et al., “Who Pays? The True Cost of Incarceration on Families,” Ella Baker Center for Human Rights,
Forward Together, and Research Action Design, September 2015, http://whopaysreport.org/wp-content/uploads/
2015/09/Who-Pays-FINAL.pdf (accessed July 27, 2016), p. 30.

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you get another two to four minutes. Then you have to put another $25 on it. [Still] I call my
kids every night…. I gotta tell them goodnight.”380
Incarceration can mean the elimination of part of the household income and can place a
partner and other family members in seriously strained circumstances.381 When we
interviewed him, Allen Searle had been in pretrial detention for almost 100 days. He told
us, “I’ve been in here for four months, and [my job] was the only income for my family….
[Their] water has been cut off since I’ve been in here. The lights were cut off…. Basically
that’s what happens when people come here. It doesn’t just affect us, but it affects
everyone around us.”382 Tyler Marshall’s wife has a disability, and he told us his absence
had been demoralizing for her. “My wife, I cook for her, clean for her, bathe her, clothe
her…. Now everything is on her, from the rent to the bills, everything…. She’s behind [on
rent] two months right now. She’s disabled and she’s doing it all by herself.”383
Interviewees expressed dismay over the emotional toll their incarceration was taking on
their families. Recalling his incarceration for felony possession of Ecstasy pills in New York
City in 2010, Danny Ortiz said, “My pregnant girlfriend was watching me there as I got
cuffed…. She had a miscarriage when I was locked up…. It would have been our first
child…. I wasn’t able to help. She had no one to go to appointments with her. Shortly after
her miscarriage, she broke it off [between us] because I was locked up.”384
Lindsay Phillips said, “[My partner is] doing this time with me…. He’s lost a year of his
life too. He’s out there, yes, but waiting for a loved one, he’s emotionally stagnant. It’s
not just jailing drug use, not just personal. It’s a family issue. He’s there with his hands
up, life in standstill.”385

380 Human Rights Watch interview with Bryan Fisher (pseudonym), Granbury, March 10, 2016.
381 Approximately 50 percent of respondents to a 2014 study contributed at least half of their “families’ total household

income prior to incarceration, and … their families struggled to cover basic costs of living” after they were incarcerated. Due
to the incarceration of a family member, 65 percent of families struggled to meet basic needs, including food (49 percent),
housing (48 percent), utilities (45 percent), transportation (40 percent), and clothing (37 percent). Saneta deVuono-powell et
al., “Who Pays? The True Cost of Incarceration on Families,” Ella Baker Center for Human Rights, Forward Together, and
Research Action Design, pp. 17-18.
382 Human Rights Watch interview with Allen Searle (pseudonym), Covington, January 27, 2016.
383 Human Rights Watch interview with Tyler Marshall (pseudonym), Louisiana, January 2016.
384 Human Rights Watch interview with Danny Ortiz (pseudonym), New York, November 24, 2015.
385 Human Rights Watch interview with Lindsay Phillips (pseudonym), Auburndale, December 11, 2015.

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Shipped Far Away
The distance between the detention facility and home, often hundreds of miles, can
make it difficult or impossible for family to visit. According to the Bureau of Justice
Statistics, in 2004 (the latest year for which such data is available), more than 20
percent of people incarcerated in state prisons were in prisons 50 to 100 miles from
home, and more than 50 percent were in prisons 101 to 500 miles from home. Only 15.7
percent of inmates were in state prisons less than 50 miles from home. As an inmate’s
distance from home increases, the likelihood they will receive visits decreases.386
Overall, fewer than one-third of people in state prisons receive a personal visit in a
typical month, due in part to the difficulties posed by distance.387 Hector Ruiz had served
numerous Texas prison sentences for drug possession. He told us when people get
sentenced to prison, “they’ll [ship] you anywhere. And [if I] go 400 or 500 miles away
from where I’m from … my wife won’t ever be able to see me.”388
Even pretrial detainees are sometimes shipped hours away from home to other facilities,
often because of jail crowding. Jerry Bennett was charged in New Orleans but detained
pretrial in Franklin Parish, 230 miles away from his girlfriend and their 3-year-old
daughter. To address overcrowding in 2016, Harris County Jail in Texas had already
completed four transfers of inmates to other jails by April, including to private jails in
Jefferson and Bowie counties.389 Jefferson County is some 80 miles and Bowie County
some 300 miles from Houston.

386 In 2004, nearly half of the people housed in prisons less than 50 miles from their homes received visits in a typical

month, while only 25.9 percent received visits if they were 101 to 500 miles from home. This rate dropped to 14.5 percent for
those housed in prisons between 501 and 1,000 miles from their homes. Bureau of Justice Statistics, “Survey of Inmates in
State Correctional Facilities,” 2004, http://www.bjs.gov/content/pub/pdf/sisfcf04_q.pdf (accessed June 6, 2016).
387 Meanwhile, 70 percent were still able to have phone contact in a typical week, suggesting that families and friends

wished to make contact when barriers to contact were lower. Bernadette Rabuy and Daniel Kopf, “Separation by Bars and
Miles: Visitation in state prisons,” Prison Policy Initiative, October 20, 2015,
http://www.prisonpolicy.org/reports/prisonvisits.html (accessed June 6, 2016); see also Bureau of Justice Statistics,
“Survey of Inmates in State Correctional Facilities.”
388 Human Rights Watch interview with Hector Ruiz (pseudonym), Fort Worth, March 11, 2016.
389 St. John Barned-Smith, “Inmates transferred, jails overcrowded,” Houston Chronicle, April 17, 2016,

http://www.houstonchronicle.com/news/houston-texas/houston/article/Inmates-transferred-jails-overcrowded7251977.php (accessed June 6, 2016).

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A number of interviewees said that while they were incarcerated, family members had
died. None of them were able to attend the funerals or properly grieve with loved ones.
Tom Matthews, in pretrial detention in Houston, told us his uncle had been like a father to
him and had died the previous week. Tom found out by letter from his mother. “I was
praying he would hold out till I got out. The funeral is Saturday. I won’t be there.”390
Ramon Molina had been detained pretrial in Dallas for three months, for possession of
0.05 grams of heroin, when his younger brother died of cancer. His family visited Ramon at
the jail to give him the news, but they appeared through video, not face-to-face. He
lamented, “Sometimes all you need is a hug, just a hug. Just to see my mother and my
sister and my [other] brother crying right there. I couldn’t do nothing.”391
Corey Ladd was in jail when his grandmother died and in prison when his younger brother
died of an overdose. He was not able to attend either funeral. And he was in prison when
his mother was hospitalized and put in a medically induced coma. As his mother told us
later, he “wouldn’t have been able to … say goodbye, just like he didn’t get the opportunity
[with] his brother.”392

Impact on Health
In each of the four states we visited, people told us that pretrial detention and jail or
prison sentences had harmful and sometimes irreversible impacts on their physical and/or
mental health. These included experiences of withdrawal and lack of treatment within jails
for drug dependence, poor access to antiretroviral treatment and other life-sustaining
medications, and improper response to and understanding of mental health needs.
Although it is medically necessary for individuals to be medically supervised while they go
through withdrawal for opioids,393 the majority of jails and prisons in the US do not provide

390 Human Rights Watch interview with Tom Matthews (pseudonym), Houston, March 16, 2016.
391 Human Rights Watch interview with Ramon Molina (pseudonym), Dallas, March 8, 2016.
392 Human Rights Watch interview with Lisa Ladd, New Orleans, January 31, 2016.
393 Substance Abuse and Mental Health Services Administration, “Federal Guidelines for Opioid Treatment

Programs,” March
2015, p. 24, http://store.samhsa.gov/shin/content/PEP15-FEDGUIDEOTP/PEP15-FEDGUIDEOTP.pdf (accessed July 28, 2016);
American Society of Addiction Medicine, “The ASAM National Practice Guideline: For the Use of Medications in the Treatment
of Addiction Involving Opioid Use,” June 2015, p. 6, http://www.asam.org/docs/default-source/practice-support/guidelinesand-consensus-docs/asam-national-practice-guideline-supplement.pdf (accessed July 28, 2016).

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medically supervised or medication-assisted withdrawal.394 A number of interviewees who
felt they were opioid dependent said they experienced violent symptoms of withdrawal
after their detention. Because they were required to stop their drug use immediately and
without the assistance of medications such as methadone or the oversight of medical
professionals, they suffered very painful and sometimes frightening physical reactions.
In Louisiana, one woman told us, “I’ve heard people say, ‘Just consider jail your rehab.’
This isn’t rehab. This is hell.”395 Edwin Castillo told us what it had been like to be detained
in south Florida when he was dependent on heroin: “We suffer double when in jail….
You’re seeing stuff, hallucinating. Send me to detox first please…. You have diarrhea,
chills. Throwing up, sweats, cramps, body aches, no appetite. You feel like you’re going to
die.”396 In Brooklyn, Cameron Barnes explained why many people sarcastically call the
initial pretrial period, spent in the police precinct or courtroom lock-up, “bullpen therapy.”
Describing his withdrawal from heroin in 2012, he said, “You’re going through the worst
pain in there. Throwing up, defecating; you have the runs and there’s no private place to
go…. People are so sick in there. Sometimes they do it on the very floor others are sleeping
on. That’s bullpen therapy—to break us. It’s a joke, of course. What’s therapeutic about it?
It’s dehumanizing.”397

394 Legal Action Center, “Confronting an Epidemic: The Case for Eliminating Barriers to Medication-Assisted Treatment of

Heroin and Opioid Addiction,” March 2015, http://lac.org/wp-content/uploads/2014/07/LAC-The-Case-for-EliminatingBarriers-to-Medication-Assisted-Treatment.pdf (accessed September 22, 2016), p. 6 (“Access to MAT [medication assisted
treatment] in the criminal justice system presents even greater difficulty. A negligible number of jails and prisons offer
addiction medication, and most people successfully engaged in MAT are forced to stop abruptly upon incarceration, thereby
increasing the likelihood of relapse, recidivism and death.”); Amy Nunn et. al., “Improving Access to Opiate Addiction
Treatment for Prisoners,” Addiction, vol. 110 (7) (Jun. 2010), p. 1312 (“only 55% of prisons in the United States provide
methadone to inmates in any circumstance…. Only 14% of prisons provide buprenorphine to prisoners while incarcerated….
Many prisons adopt abstinence-only policies because of philosophical opposition to pharmaceutical treatment of opiate
dependence and preference for abstinence-only programs for incarcerated individuals. These policies reflect a common
misconception that opiate dependence is cured when drug use and withdrawal symptoms cease and ignores empirical
evidence demonstrating high rates of relapse and alarmingly high rates of opiate overdose among people recently released
from prison.”); Shannon Gwin Mitchell et. al, “Incarceration and opioid withdrawal: The experiences of methadone patients
and out-of-treatment heroin users,” Journal of Psychoactive Drugs, vol. 41(2) (June 2009), p. 145–152.
395 Human Rights Watch interview with inmate, Louisiana, February 2016.
396 Human Rights Watch interview with Edwin Castillo (pseudonym), Orlando, December 11, 2015.
397 Human Rights Watch interview with Cameron Barnes (pseudonym), New York, October 29, 2015. In the Bronx, Ralph
Martinez described a similar experience. “For heroin users, you get sick, start throwing up, need a bed. So you don’t care no
more, you just want to go home or go to Rikers [the jail]. After you get medicated, then you can deal with your case. They call
that bullpen therapy.” Human Rights Watch interview with Ralph Martinez (pseudonym), New York, October 28, 2015.

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Numerous interviewees described great difficulties in obtaining prescribed medications.
This was of particular concern to people with HIV, who experienced excruciating delays in
obtaining HIV medications in New York City in recent years398—delays which can be
dangerous and create serious health consequences.399 Human Rights Watch has
previously documented in detail the failure to provide HIV services in Louisiana Parish
jails.400 Pretrial detainees in Texas also said they had to wait weeks to see a doctor or get
their medications, or that they had not yet received them.401
The failure to provide people in jails and prisons with access to needed health care—a
problem that persists in many US facilities—violates the right to health and can be
dangerous.402 The US Supreme Court has held that ignoring a prisoner’s serious medical
needs can amount to cruel and unusual punishment.403

398 For example, detained pretrial at Rikers in 2014 on a possession charge, Emily Cooper recalled, “You have to wait a week.

You don’t get your meds right away. You tell the doctors about your HIV, and they say wait for the blood tests. My immune
system can switch at any time. At a drop of the hat my T cells could drop without my medicine. They say over and over, no
holiday from your medicine, take it every day at the same time, once a day, like clockwork. Not having it for a week is scary.”
Human Rights Watch interview with Emily Cooper (pseudonym), New York, November 30, 2015.
399 Interruption in anti-retroviral therapy is associated with increased viral burden, antiretroviral resistance, and increased

ability to transmit the virus. S.A. Springer, et al., “Effectiveness of Anti-Retroviral Therapy Among HIV-infected Prisoners: Reincarceration and the Lack of Sustained Benefit After Release to the Community,” Clinical Infectious Diseases, vol. 38:12,
(2004), pp. 1754-1760; A.C. Spaulding, et al., “Diversity of Release Patterns for Jail Detainees: Implications for Public Health
Interventions,” American Journal of Public Health, vol. 101 (Supp. 1) (2011), pp. 347-352.
400 Human Rights Watch, Paying the Price: Failure to Deliver HIV Services in Louisiana Parish Jails, March 29, 2016,

https://www.hrw.org/report/2016/03/29/paying-price/failure-deliver-hiv-services-louisiana-parish-jails.
401 For example, in Houston Alyssa Burns told us, “Girls are huddled together on the ground for warmth on the floor, waiting
to see a doctor. To get medicine you’re prescribed [takes so long.] I’ve been in here 40 something days now, and I still
haven’t seen a doctor…. I’ve just been waiting, waiting, waiting, I don’t even know if I’ll be seen before I go to court. It took
me 30 days to be seen for a migraine headache. They gave me a strip of Tylenol that had 8 pills on it and they charged me
$10. And then they say, ‘You can buy aspirin on commissary.’ Yeah, they’re right, you can buy aspirin on commissary, but
they are out of stock.” Human Rights Watch interview with Alyssa Burns (pseudonym), Houston, March 15, 2016.
402 Human Rights Watch, Paying the Price; Human Rights Watch, Barred From Treatment: Punishment of Drug Users in New
York State Prisons, March 24, 2009, https://www.hrw.org/report/2009/03/24/barred-treatment/punishment-drug-users-

new-york-state-prisons.
403 The Supreme Court noted, “In the worst cases, such a failure may actually produce physical torture or a lingering death.…

In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any
penological purpose.” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (internal citations omitted).

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Neal’s Story

Neal Scott, a 49-year-old Black man in New Orleans, had been homeless for several
years. In May 2015, he was arrested for felony possession of cocaine, in an amount his
lawyer said was under 0.2 grams, and misdemeanor paraphernalia for a crack pipe. His
bond was set at $7,500, which he could not afford. For the next three months, his
lawyer argued repeatedly for a bond reduction, which the prosecutor opposed and the
judge denied.
Neal has a rare autoimmune disease that can be debilitating if improperly treated.404
“They don’t have a cure for it, and the medicine is very, very temporary, [but] if I didn’t
take medicine, I would die,” he told us. Neal had received the treatment he needed at
local hospitals but said he and his lawyer went “through hell and high water” trying to
get it in jail. He never received the medications he needed, and his health took a drastic
turn for the worse.405
In August 2015, Neal was transferred from jail to the courthouse for a hearing. As he
stood in court, he collapsed in front of the judge and prosecutor. His attorney said his
eyes rolled back in his head and he began seizing. The courtroom was ordered cleared,
and the docket minutes note “there was a medical emergency in the courtroom.”406 Neal
said he has no memory of what happened next. His lawyer recounted it to us:
I was told that we could not call 911 because he’s in the custody of the
sheriff, so the sheriff has to be the one to administer the medical
[care] … so they radio to [the jail medical staff]. Two people came in with
an oxygen tank, and that was pretty much it. And the client was on the
floor; his eyes were rolled back in his head.… They looked at him for a
couple minutes, not sure what to do, and then they called the EMT…. [It
was] over 20 minutes before the EMT got there. And at some point, he
stopped what looked like seizing, and he was just breathing, and his

404 Although he and his team of lawyers explained the disease in detail to us, and to the court, to protect Neal’s
confidentiality we are not naming it here.
405 Human Rights Watch interview with Neal Scott (pseudonym), New Orleans, February 2, 2016.
406 Human Rights Watch review of docket (full citation withheld for confidentiality).

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eyes were closed and there was water coming out of his eyes, but we
couldn’t wake him up or anything. He was just not conscious. And he
was still cuffed…. Just being in the room for that was pretty awful…. I felt
like he could die and I didn’t know what to do.407
Neal said that during his pretrial detention, “I don’t know how many times I passed out
because of a lack of medication…. Even though they have all the [details] of my disease,
they don’t really understand [what happens] when I don’t get my medication proper…. It
was all but obvious, that neglect.”
Neal’s lawyer renewed her arguments to reduce his bond, reiterating the devastation
that pretrial detention was causing to his health. She told us that although they had
witnessed him collapse before them, the prosecutor still opposed and the judge still
denied the bond reduction motion. “Even after they had to stop court to take him in an
ambulance because he wasn’t getting his medication, that wasn’t enough,” his lawyer
said. Eventually, through a combination of donations, Neal’s friends and family were
able to bond him out. His lawyer said, “They fundraised, basically, to afford his bond,
because at that point it became really apparent that he may die if he stays in jail for the
rest of this.”
After months of not receiving the medicine he required in jail, Neal told us, “My health is
at an all-time low right now. I’ve been fighting on a daily basis, trying … to accept the
decline in my illness … that never ending pain. I’m paralyzed in half of my feet…. My legs
feel like bricks. Every step…. My day-to-day struggle with this disease is torture…. I’m
dying [of] pain, and I lose consciousness.”
We observed Neal in the courtroom the day he pled guilty. He grimaced and appeared
to have difficulty sitting, standing, and remaining alert. He explained to us afterward
that he had felt very ill. In exchange for his guilty plea, the prosecutor had given him
three years in prison for the fractional amount of cocaine and the paraphernalia. Neal
lamented that he would miss his daughter’s high school graduation that spring. He
said he was afraid he would not survive the years in prison. “I actually cried when I

407 Human Rights Watch interview with defense attorney, January 29, 2016.

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signed the papers,” he told us. His lawyer said, “For him [three] years could be the rest
of his life.”408
His lawyer was able to convince the court to give Neal one month to put his affairs in
order and say goodbye to his children. When he came to court for sentencing in March,
the docket minutes report that he collapsed again and was taken to the hospital. He
then went missing.409
In June, Neal turned himself in after attending his daughter’s high school graduation.
His lawyer told us he apologized to the judge and prosecutor, explaining that he had
missed his two older children’s graduations because he was in jail and that he
needed to attend this one before he left. Because Neal had failed to appear, his
three-year deal was off the table and he faced a minimum of 20. According to Neal’s
lawyer, the judge asked the prosecutor if he would give Neal a break. The prosecutor
added two years to his sentence.410 Neal wrote to us in August. He was serving his
five-year sentence in a private prison facility that he said could not handle his
medical needs, and that his attorney said had no doctor.411

Returning to Nothing
For some people, incarceration so interrupts and devastates their lives that they have
nothing waiting for them when they get out. Incarceration leads to lost income, lost
property, and sometimes lost friendships and family relationships. In Orlando, Edwin
Castillo summed it up: “When they lock you up, you lose everything.”412
Charlie West was a US military medic stationed in Germany from 1977 to 1981. He was
incarcerated for felony possession of cocaine in New York City in 2010. When he got out,
he was diagnosed with kidney cancer and had to fight to get Medicaid to cover surgery. He
was worried that he would not be able to afford chemotherapy. On his reentry, he told us:

408 Human Rights Watch phone interview with defense attorney, May 20,

2016.

409 Human Rights Watch review of docket (full citation withheld for confidentiality).
410 Human Rights Watch correspondence with defense attorney, June 22,

2016.

411 Letter to Human Rights Watch from Neal Scott (pseudonym), August 5, 2016; Human Rights Watch phone call with defense

attorney, August 18, 2016.
412 Human Rights Watch interview with Edwin Castillo (pseudonym), Orlando, December 11, 2015.

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You’re starting life over. You can’t expect to be absent from society and just
walk back in. You’ve lost everything—your job, apartment, whatever you
had before you’re going to lose that.... When I got out, they released me
only with what I had on my back, no referrals to programs or anything…. If
you don’t have a support network, which I didn’t because of drugs, you’re
on your own. I had an apartment before. I went back after, and the landlord
said I abandoned the property…. He had given away or thrown out all my
stuff…. Someone else was living there.

Because I caught this felony, I was on the street for five years. I had never
been homeless before…. I couldn’t get on-the-clock work, so I would do
some odds and ends. I didn’t have anything; I was scruffy, had nothing to
change into for an interview. I didn’t have attire to be out in society. I
couldn’t go to the laundromat, even if I could pay—they’d say get out of
here. I’d panhandle, eat out of the garbage…. Before, I was doing seasonal
construction work, demolition. I was making good money, bringing home
600 weekly in the summer. [But] you walk out of those [prison] gates and
you’re on your own.413
In Dallas, Carla James, a former nurse, had done stints of probation and prison since 2008
for possession of methamphetamines and Ecstasy. She described to us how she lost her
property and the memories of her mother as a result of her incarceration:
I lost everything. Every penny in my bank account…. The first time I went to
jail, I had my townhouse over here. I had furniture; I had all my mom’s stuff.
My mom was a model; she was Miss Louisiana…. I had her gown, pictures,
newspaper clippings. I don’t have one picture of my mom today…. My son
will never see his grandma, [even in] pictures…. I mean, when you don’t pay
your mortgage, they just sell it off at an auction.… I lost my car, my house,
my clothes, my everything … [even] my nurse’s license. [But] it’s not just
what you lose physical[ly]. It’s what you lose internally.414

413 Human Rights Watch interview with Charlie West (pseudonym), New York, November 29, 2015.
414 Human Rights Watch interview with Carla James (pseudonym), Dallas, March 9, 2016.

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When People Are Labeled Drug Offenders and Felons
Today, the collateral consequences of a felony conviction form a new civil
death. Convicted felons now suffer restrictions in broad ranging aspects of
life that touch upon economic, political, and social rights…. The result is a
status-based regulatory scheme; by the very fact of an individual’s
conviction, he or she is subject to a vast array of restrictions.415
–Judge Frederick Block, US District Court for the Eastern District of New York, May 2016

The felony conviction is going to ruin my life…. I’ll pay for it for[ever].
Because of my record, I don’t know how or where I’ll start rebuilding my life:
school, job, government benefits are now all off the table for me. Besides
the punishment even [of prison]…. It’s my whole future.416
–Nicole Bishop, facing two felony convictions for residue in an empty baggie and a
plastic straw, March 2016

In addition to the financial, emotional, and family strain of arrest, prosecution, and
incarceration, which may continue long after those phases of the criminal process are
complete, the labels of “drug offender,” “convict,” and “felon” may have lifelong
consequences. A conviction for drug possession triggers literally thousands of statutory
exclusions and restrictions—also known as “collateral consequences”—and invites
discrimination by private actors such as landlords and employers.
Officials we interviewed recognized how destructive a criminal record can be. In
Shreveport, Judge Marcotte said, “Once you get branded with that felony, it’s tough to
overcome it.”417 In New Orleans, Judge Calvin Johnson said that because of the sheer
number of collateral consequences, “in Louisiana … this is a life sentence for you. The
issue is you’re going to have to live with this ’til you die.”418
These consequences further compound the already disproportionate nature of
criminalizing drug use and possession. Interviewees said they felt that they could never
escape their criminal record. Some were concerned that their convictions meant they
415 United States v. Nesbeth, E.D.N.Y. May 24, 2016, pp. 6-7, 12-14.
416 Human Rights Watch interview with Nicole Bishop (pseudonym), Houston, March 14, 2016.
417 Human Rights Watch interview with Judge Craig Marcotte, Shreveport, February 4, 2016.
418 Human Rights Watch interview with Judge Calvin Johnson, New Orleans, January 26, 2016.

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would always be pre-judged by law enforcement officers and judges. Almost all were upset
about the ways in which the government’s branding of them led to stigma and exclusion.
In New York City, Cameron Barnes told us:
When you’re a low-income person of color using drugs, you’re
criminalized—that means demonized, marginalized, stigmatized…. When
we’re locked up, we’re not only locked in but also locked out. Locked out of
housing: you can’t go to NYCHA [public housing];419 you’re a felon…. Locked
out of employment and other services. Locked into a class that’s
underclass—you’re a fixed class; you’re not a person anymore, because you
had a drug. That’s a felony label that stays with you for life. You’ll always be
a felon.420

Exclusion from Public Benefits and Rights
In an opinion issued in May 2016, Judge Frederick Block of the US District Court for the
Eastern District of New York decried the fact that “there are nationwide nearly 50,000 federal
and state statutes and regulations that impose penalties, disabilities, or disadvantages on
convicted felons. Of those, federal law imposes nearly 1,200 collateral consequences for
convictions generally, and nearly 300 for controlled-substances offenses.”421
Some of the federal and state-imposed collateral consequences are triggered by a felony
conviction only, no matter the offense. For others, any drug conviction, including a
misdemeanor, counts. Some eligibility requirements single out drug convictions but not
convictions for other offenses, suggesting that drug offenses are considered “worse” than
other crimes. Many of these consequences severely impact the poor—for example,
419 A person with a conviction for a misdemeanor A (the lowest classification of drug possession) and their household are

barred from living in NYCHA housing for at least four years after the sentence has been completed, unless NYCHA finds
evidence of rehabilitation. Felony convictions trigger longer bars. Bronx Defenders, The Consequences of Criminal

Proceedings in New York State: A Guide for Criminal Defense Attorneys, Civil Legal Services Attorneys, and Other Reentry
Advocates, April 2015, pp. 71-72.
420 Human Rights Watch interview with Cameron Barnes (pseudonym), New York, October 29, 2015.
421 Finding these collateral consequences to “serve no useful function other than to further punish criminal defendants,”
Judge Block sentenced the defendant in that case to one year of probation, concluding that the collateral consequences she
would face were punishment enough. The defendant had been arrested with more than 600 grams of cocaine and convicted
by a jury of importation of cocaine and possession of cocaine with intent to distribute. United States v. Nesbeth, E.D.N.Y.
May 24, 2016, pp. 1-2, 33. Some have argued prosecutors, as well as judges, should take collateral consequences into
account. See, for example, Eisha Jain, “Prosecuting Collateral Consequences,” Georgetown Law Journal, vol. 104 (2016), pp.
1197-1244.

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ineligibility for welfare assistance, subsidized housing, and educational loans, which
those with greater financial means do not rely upon.

Welfare Assistance
Section 115 of the Welfare Reform Act of 1996 imposes lifetime ineligibility for welfare
benefits on anyone with a federal or state felony drug conviction. No other offenses,
including murder and rape, result in ineligibility.
Section 115 removes those with felony drug convictions from the Supplemental Nutrition
Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF).422 SNAP
provides eligible low-income families food assistance on an EBT (electronic benefits
transfer) card, which works like a debit card. It is commonly referred to as food stamps.
TANF provides cash assistance to eligible pregnant women and families with dependent
children to assist with food, housing, utilities, and other non-medical expenses.
Individual states can opt out of the federal ban. More states have chosen to do this for
SNAP than for TANF. For SNAP, five states423 impose the full ban for people with felony drug
convictions, 27 states424 impose a modified ban, and 18 states425 opt out entirely. For TANF,
13 states426 continue to impose the full ban, 14 states427 have eliminated the ban, and 23

422 The ban does not

apply to the Women, Infants and Children (WIC) program, although recipients must complete federallymandated drug screening.

423 Alaska, Mississippi, South Carolina, West Virginia, and Wyoming. Eli Hager, “Six States Where Felons Can’t Get Food
Stamps,” The Marshall Project, February 4, 2016, https://www.themarshallproject.org/2016/02/04/six-states-where-felonscan-t-get-food-stamps#.6zkAJf4qq (accessed May 27, 2016). Although this article includes Georgia as a state that imposed a
full ban, a new law lifted that ban in April 2016. Craig Schneider, “Georgia expected to lift food stamp ban,” The Atlanta
Journal-Constitution, April 26, 2016, http://www.ajc.com/news/news/breaking-news/georgia-to-lift-food-stamp-ban/nrB89/
(accessed September 26, 2016).
424 Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Oregon, Tennessee,
Texas, Utah, Virginia, and Wisconsin. Hager, “Six States Where Felons Can’t Get Food Stamps,” The Marshall Project.
425 Alabama, California, Delaware, Iowa, Kansas, Maine, Massachusetts, New Hampshire,

New Jersey, New Mexico, New
York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, and Washington. Ibid.
426 Alaska, Arizona, Delaware, Georgia, Illinois, Mississippi, Missouri, Nebraska, South Carolina, South Dakota, Texas,

Virginia, and West Virginia. Ibid.
427 Alabama, Kansas, Maine, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Rhode

Island, Vermont, Washington, and Wyoming. Ibid.

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states428 have a modified ban in place.
For those states that have opted out of the ban, some only extend benefits to people
convicted of drug offenses after a certain amount of time has passed since their release
date—in Louisiana, for instance, the period of ineligibility is one year.429 In Covington,
Melissa Wright said, “Food stamps, you can’t get them for a year. So you go dig in a
dumpster. My food stamps are for my kids, not me. My drug conviction shouldn’t be held
against my food stamps.”430
Modified bans can still result in people losing access to benefits, especially if they continue
to use drugs. Several states subject applicants convicted of a drug-related felony to drug
testing before they can receive SNAP and TANF benefits.431 By contrast, federal law prohibits
states from drug-testing SNAP applicants who do not have a felony drug conviction.432
SNAP and TANF are designed to assist families that have difficulty meeting their basic
needs. Denying assistance for the sole reason of a drug conviction only ensures that
families will be in even more dire need. These bans by their nature impact the poor and
punish them—and, indirectly, their children—more harshly for their drug offenses than
they do people of greater financial means.
In March 2015, US Senators Rand Paul of Wyoming and Cory Booker of New Jersey
sponsored Senate Bill 675, the REDEEM Act, which would amend the SNAP and TANF bans
428 Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland,

Massachusetts, Michigan, Minnesota, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Utah, and
Wisconsin. Ibid.
429 Louisiana Legislative Auditor, “Supplemental Nutrition Assistance Program Department of Children and Family Services,”

May 1 2013, http://www.lla.state.la.us/PublicReports.nsf/60607FD8611131F786257B5E006FEF04/$FILE/000326B1.pdf
(accessed September 22, 2016).
430 Human Rights Watch interview with Melissa Wright (pseudonym), Covington, January 28, 2016.
431 Congressional Research Service, “Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance,”
November 18, 2015, https://www.fas.org/sgp/crs/misc/R42394.pdf (accessed September 22, 2016). Minnesota randomly
drug tests those receiving benefits who have been convicted of a drug felony. If they fail a test more than once, they are
permanently denied SNAP benefits. Legal Action Center, “Summary of State Laws Modifying the Federal Ban On TANF (Cash
Assistance) and Food Stamps,” (undated), http://lac.org/toolkits/TANF/TANF_summary.htm (accessed September 22,
2016).
432 7 CFR sec. 273.2(a); Letter from Robin D. Bailey, Jr., Regional Administrator, US Department of Agriculture Food and

Nutrition Service, to Keith Horton, Commissioner, Georgia Department of Human Services, June 3, 2014,
http://d35brb9zkkbdsd.cloudfront.net/wp-content/uploads/2014/06/FNS-Letter-to-DHS-Drug-Testing-HB-772-Done-6-314.pdf (accessed August 1, 2016)

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so that convictions for drug possession and drug use no longer make a person ineligible.
As of this writing, Congress had not yet acted on the proposed bill.433

Subsidized Housing
The US Department of Housing and Urban Development (HUD) engages with local public
housing authorities (PHAs) and private landlords to offer subsidized housing to lowincome families through a number of programs. The three largest are public housing
(where the PHA is the landlord), section 8 voucher housing (where the tenant rents on the
private market and the PHA pays a portion of the rent), and project-based section 8
housing (where a private landlord receives a subsidy directly from HUD).
Federal law permits a PHA or private landlord of subsidized housing to deny admission to
anyone who has a record of past drug-related criminal activity. “Drug-related criminal
activity” is defined to include “use of a drug” or “possession of a drug with intent to … use
the drug.”434 PHAs and landlords have discretion in how far back they choose to look; for
example, Miami-Dade County looks for any criminal activity in the past 10 years before
application for admission.435 Some PHAs and landlords deny applicants based simply on
an arrest, even if their charges were dismissed.436
Once a person is admitted to subsidized housing, drug use by that person, a family
member, or even a visitor can lead to eviction. The laws differ slightly depending on the
housing program. For public housing and project-based section 8 housing, it is a violation
of the lease and grounds for eviction for any member of the household to engage in any
drug-related criminal activity on or even off the premises, or for a guest of the household to
engage in drug-related criminal activity on the property, even if the guest is visiting only
briefly.437 For the section 8 voucher program, a PHA has discretion to terminate

433 Senate Bill 675, Record Expungement Designed to Enhance Employment Act of 2015 or the REDEEM Act, introduced in the
US Senate March 9, 2015, https://www.congress.gov/bill/114th-congress/senate-bill/675 (accessed August 19, 2016).
434 42 USCA sec. 1437a(b)(9); 24 CFR 5.100 (2014).
435 See http://pdmiami.com/ConsequencesManual.pdf
436 http://pdmiami.com/ConsequencesManual.pdf
437 For public housing, see 42 USC sec. 1437d(l); 24 CFR sec. 966.4(f)(12)(i). For project-based section 8 housing, see HUD

Multifamily Lease, Form HUD-90105a, para. 23.

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participation in the program if a household member or guest engages in drug-related
criminal activity.438
These strict guidelines, also known as HUD’s “One Strike and You’re Out” policy, not only
limit the ability of those who use—or are suspected of using—drugs to find livable housing;
they also impact partners, children, and friends, since the policy punishes the entire
household for activity by one member or even a guest.439
Danny Ortiz was convicted in New York City of third degree possession of Ecstasy. He told
us he was not allowed to be at his mother’s home because of it, but that he had had
nowhere else to go. He had been staying there secretly but was worried about the
repercussions if his circumstances were discovered: “Your family gets tired of it. They don’t
want to bring you into the house because they don’t want to lose their housing. My mom
lives in section 8 housing…. She doesn’t want to lose her apartment. She’d be homeless.
We’d all be homeless.”440

Education
Students convicted of a drug offense while they are receiving federal student aid lose their
aid and become ineligible for a period of time. This financial aid includes grants, student
loans, and work-study. For drug possession, a first conviction results in a one-year bar, a
second conviction in a two-year bar, and a third conviction in a permanent bar from
receiving federal student aid.441 No other category of crime triggers a complete bar on
financial aid for students.442
In Louisiana, a criminal conviction bars someone from receiving state education benefits for
the rest of his or her life. Drug offenses can also serve as the basis for expulsion for up to two
438 24 CFR sec. 982.551(l).
439 For more on the restrictiveness of HUD’s One Strike policy, see Rebecca Vallas and Sharon Dietrich, “One Strike and
You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records,” Center for
American Progress, December 2014, https://cdn.americanprogress.org/wpcontent/uploads/2014/12/VallasCriminalRecordsReport.pdf (accessed June 10, 2016).
440 Human Rights Watch interview with Danny Ortiz (pseudonym), New York, November 24, 2015.
441 20 USC sec. 1091(r). A person can regain eligibility by completing an approved drug rehabilitation program, regardless of

whether or not they in fact need drug treatment.
442 See Federal Student Aid, “Students With Criminal Convictions,” (undated),

https://studentaid.ed.gov/sa/eligibility/criminal-convictions#drug-convictions (accessed September 22, 2016).

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years.443 In Texas, anyone who commits a felony, class A misdemeanor, or controlled
substances offense is ineligible for prepaid higher education scholarships.444 Anyone with a
felony conviction in Florida is ineligible for the Florida Bright Futures Scholarship, the largest
in-state financial aid program, and may be expelled from a state university.445

Voting
Felony disenfranchisement is the deprivation of the right to vote for those convicted of
felonies. In 2010 (the most recent national estimates), 5.85 million people were
disenfranchised in the United States because of felony convictions. This accounted for
approximately 2.5 percent of the total US voting age population, or one in every 40 adults.
Felony disenfranchisement disproportionately affects Black communities at a rate more
than four times that of the non-Black population: nearly 7.8 percent of the Black adult
population is disenfranchised, compared to 1.8 percent of the rest of the population.446
Only Maine and Vermont do not disenfranchise people with felony convictions, allowing
those who are incarcerated to vote by absentee ballot. By contrast, Florida, Iowa, and
Kentucky impose lifetime disenfranchisement on all people convicted of a felony.447
Fourteen other states plus Washington, DC, disenfranchise only those in prison.448 Another
four states disenfranchise those in prison and on parole,449 while 24 disenfranchise those
with felony drug possession convictions who are still serving their sentence, whether in

443 Louisiana Justice Coalition, “Now and Later: The Short and Long-Term Consequences of a Louisiana Conviction,” 2010,

http://www.opdla.org/attachments/article/104/CollateralConsequencesClientGuide_English.10.pdf (accessed November 11,
2015).
444 TX Education Code sec. 54.633.
445 Florida Department of Education, Bright Futures Student Handbook, July 2017,
http://www.floridastudentfinancialaid.org/ssfad/PDF/BFHandbookChapter1.pdf (accessed September 22, 2016).
446 The Sentencing Project, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010,” July 2012,

http://www.sentencingproject.org/wp-content/uploads/2016/01/State-Level-Estimates-of-Felon-Disenfranchisement-in-theUnited-States-2010.pdf (accessed June 9, 2016).
447 Brennan Center for Justice, “Criminal Disenfranchisement Laws Across the United States,” July 27, 2016,
http://www.brennancenter.org/criminal-disenfranchisement-laws-across-united-states (accessed August 1, 2016); ACLU,
“State Criminal Re-enfranchisement Laws (Map),” 2016, https://www.aclu.org/map/state-criminal-re-enfranchisement-lawsmap (accessed September 8, 2016).
448 The states are Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana,

Ohio, Oregon, Pennsylvania, Rhode Island, and Utah.
449 California, Colorado, Connecticut, and New York.

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New Hampshire, North Dakota,

prison or on parole or probation.450 Finally, three states disenfranchise people with multiple
felony convictions even after they have completed all the conditions of their sentence.451
In some states that do not have lifetime bans, eligibility to vote may be restored
automatically after a certain period of time, but individuals may still have to file paperwork
to re-register to vote, meaning that many people remain effectively disenfranchised due to
lack of information or resources.
In Florida—one of the three states with lifetime bans—a person convicted of drug
possession has to wait 5 years after every condition of their sentence is satisfied, including
the payment of fines and fees, before they can even petition the governor for rights
restoration.452 Because the office is so backlogged with petitions, it can take 10 years or
more before the petition is reviewed.453
When Governor Rick Scott took office in January 2011, Florida was denying the vote to more
than 1.54 million people convicted of felonies.454 Between 2011 and 2015, the governor
restored voting rights to just 1,866 people.455 The waiting list currently holds over 10,000
people who have applied for restoration, a fact which in itself discourages others from
applying. It would take over 20 years to go through the list at the current pace.456 According

450 Alabama, Alaska, Arkansas, Delaware, Georgia, Idaho, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Nebraska,

New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington,
West Virginia, and Wisconsin. Alabama has lifetime disenfranchisement for convictions that involve “moral turpitude”; drug
possession is not considered to involve moral turpitude, but possession with intent to distribute is. Delaware, Mississippi,
and Tennessee have lifetime bans for certain non-drug related offenses such as murder, bribery, and sexual offenses.
451 Arizona, Nevada, and Wyoming have lifetime disenfranchisement for a second felony conviction.
452 State of Florida Office of Executive Clemency, “Restoration of Civil Rights, Pardons, Pardons Without Firearm Authority,

Firearm Authority, Remission of Fines and Forfeitures,” (undated), http://www.dc.state.fl.us/restoration.html (accessed
September 22, 2016); Florida Commission on Offender Review, “Restoration of Civil Rights or Alien Status Under Florida Law
Without a Hearing, Rule 9A and Rule 10A, Rules of Executive Clemency,” 2011,
https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf (accessed September 22, 2016).
453 Human Rights Watch interview with Desmond Meade, Orlando, December 9, 2015; ACLU of Florida, “2014 Candidate

Rights Restoration Candidate Questionnaire,” September 25, 2014, https://aclufl.org/resources/2014-rights-restorationcandidate-questionnaire (accessed September 22, 2016).
454 The Sentencing Project, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010,” table 3.
455 Spencer Woodman, “Thanks to Republics, Nearly a Quarter of Florida’s Black Citizens Can’t Vote,” The Intercept, Dec. 9,
2015, https://theintercept.com/2015/12/09/floridas-ex-felons-struggle-to-regain-their-voting-rights (accessed September
22, 2016).
456 “Change rules to restore voting rights for felons,” editorial, Tampa Bay Times, August 19, 2016,
http://www.tampabay.com/opinion/editorials/editorial-change-rules-to-restore-voting-rights-for-felons/2290221 (accessed
August 21, 2016).

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to Desmond Meade, president of the Florida Rights Restoration Coalition, 2010 is the most
recent year that the number of people disenfranchised for felony convictions was officially
estimated, but “based on Department of Corrections numbers, we know that about 40,000
people per year are getting new felony convictions, who have never had one before and are
now disenfranchised. So with simple math—if only 500 people are getting their rights
restored but there are 40,000 new each year—we see that number, 1.54 million, is
growing.”457 According to the Tampa Bay Times, 23 percent of voting-age Black Floridians
are currently disenfranchised.458
Sherry Martin helps secure employment for people with felony convictions. She told us the
wait time and backlog mean that people give up trying: “When you get out, you have to
wait five years just to apply to get your civil rights restored…. It’s the hierarchy of needs. If
you don’t have food and can’t get a job, if you can’t take care of your kids, you’re not
focusing on getting your right to vote back.”459
But for many interviewees, the loss of the vote impacted their sense of worth and power to
make a difference. In Auburndale, Florida, Trisha Richardson, a 19-year-old convicted of
possession of Xanax and methamphetamines, said,
I don’t see why [the felony record is] defining. It’s not like we’re a minority;
they’re making us a majority. If a matter comes up that is important to me, I
can’t vote and make a difference in the world…. You don’t realize—the
vote—how important that stuff is until you lose it. I was convicted at 18; I
had never been able to vote yet…. I found my voter registration card. I
thought, here’s a good high school memory of when me and my friend got
registration cards. Now I can’t use it. I just threw it out.460

457 Human Rights Watch phone interview with Desmond Meade, August 21, 2016.
458 “Change rules to restore voting rights for felons,” editorial, Tampa Bay Times, August 19, 2016,

http://www.tampabay.com/opinion/editorials/editorial-change-rules-to-restore-voting-rights-for-felons/2290221 (accessed
September 27, 2016).
459 Human Rights Watch interview with Sherry Martin (pseudonym), Miami, December 18, 2015.
460 Human Rights Watch interview with Trisha Richardson (pseudonym), Auburndale, December 11, 2015.

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Also in Auburndale, Susan Turner, convicted of possession of various pills, told us, “Not
being able to vote, it’s a problem. Your one vote could be that one deciding vote. I want to
have a say in what happens in the world.”461 In Orlando, Kevin Michaelson was convicted
of felony possession for half a Xanax pill, which he used for anxiety. He said, “As soon as
you catch a felony, you’re not allowed to vote…. I’d like to vote. They took away my rights.
The system makes me feel like I’m a nuisance.”462 Leonard Lewis will be in a Texas prison
during the 2016 election for two cigarettes dipped in PCP. He was in prison for drug
possession in 2008 and is disappointed he will miss out again this year. “We can make
history two times in a row, the first Black president and the first lady president. But I can’t
be a part of that,” he said.463
Some interviewees said felony disenfranchisement meant the people most affected by
drug policies have no power to shape them through their vote. “Drug addicts have been
through the issues of the world. Our voice should be heard on important matters in the
world because we’ve felt the effects,” said Trisha Richardson. Mara King was convicted of
three drug charges: felony Ecstasy possession, misdemeanor marijuana possession, and
misdemeanor paraphernalia. She said, “I don’t think it’s right to get arrested for marijuana
and [because of that case] you can’t vote now to get it legalized. There are people at the
bus terminal asking us if we want to vote for it. It’s unfair we can’t.”464

Driver’s Licenses
Federal law conditions some federal highway funds on states’ enactment of laws revoking
or suspending someone’s driver’s license for at least six months if they have been
convicted of a drug offense, even if the conviction has nothing to do with drug use while
operating a motor vehicle. It is the equivalent of saying that anyone in possession of
alcohol (were it to be criminalized) may not drive, even if they have no history of drinking
and driving.

461 Human Rights Watch interview with Susan Turner (pseudonym), Auburndale, December 11, 2015.
462 Human Rights Watch interview with Kevin Michaelson (pseudonym), Orlando, December 8, 2015.
463 Human Rights Watch interview with Leonard Lewis (pseudonym), Houston, March 15, 2016.
464 Human Rights Watch interview with Mara King (pseudonym), Auburndale, December 11, 2015.

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States are permitted to impose a suspension period longer than six months if they choose,
but states that impose no suspension period lose a portion of their highway funds.465
Fourteen states automatically suspend licenses for at least six months for drug
possession.466 These states account for nearly half of US residents.467 Some states impose
suspensions longer than six months; Florida, for example, requires a mandatory
suspension of one year.468
Since 2008, nine states have abandoned mandatory suspensions for drug offenses not
related to driving.469 The latest to do so was Massachusetts: on March 30, 2016, Governor
Charlie Baker signed a bill that repealed automatic suspension for people convicted of
non-driving related drug crimes and waived the $500 license reinstatement fee, impacting
thousands of people every year.470 The governor recognized that license suspensions are a
465 23 USC sec. 159.
466 Arkansas, Delaware, Florida, Georgia, Indiana, Iowa, Mississippi, New Jersey, New York, Ohio, Oklahoma, Pennsylvania,
Texas, and Virginia. The Clemency Report, “Reefer sanity: States abandon driver’s license suspensions for drug offenses,”
September 14, 2014, http://clemencyreport.org/drivers-license-suspensions-drug-offenses-state-state-list (accessed June 8,
2016). Alabama eliminated the suspension as part of Senate Bill 67 in 2015. People can also lose their licenses in Florida for
a misdemeanor marijuana charge for six to 12 months. 23 FL Stat. sec. 322.055. Some states allow for provisional licenses in
cases of “extreme and unusual hardship.” 27 AR sec. 27-16-915; 63 MS sec. 63-1-71; 18.2 VA sec. 251. Delaware charges a
$50 fee to reinstate a suspended license and a $200 fee to reinstate a revoked license, while New York has a $50 fee to end
a suspension and a $100 re-application fee for a revoked license. State of Delaware, Division of Motor Vehicles, “Drivers
License Revocations,” (undated),
https://www.dmv.de.gov/services/driver_services/driver_improvement/dr_di_revocation.shtml (accessed June 9, 2016);
Molly Kovel and Kate Rubin, “The Consequences of Criminal Proceedings in New York State: A Guide for Criminal Defense
Attorneys, Civil Legal Services Attorneys, and Other Reentry Advocates,” Civil Action Practice of The Bronx Defenders, April
2015 Edition, pp. 22-30. In Georgia, reinstatement can also cost $200. Georgia Department of Driver Services, “Driver’s
License Suspensions and Revocations,” November 10, 2015,
http://www.dds.ga.gov/drivers/dldata.aspx?con=1744060376&ty=dl (accessed June 9, 2016). In Oklahoma, the first drug
offense triggers a 180-day revocation; if someone has two or more prior revocations, their subsequent revocation will be for a
period of three years. Pennsylvania has similar suspension terms. 47 OK Stat. sec. 47-6-205; 75 PA sec. 1532. Some states
require people to complete a drug education course before their license can be reinstated. Texas Department of Public
Safety, “Drug or Controlled Substance Offenses,” (undated), https://www.txdps.state.tx.us/DriverLicense/DrugOffenses.htm
(accessed November 11, 2015); 47 OK Stat. sec. 47-6-205; 23 FL Stat. sec. 322.055.
467 The Clemency Report, “Reefer sanity: States abandon driver’s license suspensions for drug offenses.”
468 FL Stat. sec. 322.055(1). By contrast, in Maryland licenses can only be suspended when the offense is related to one’s
ability to drive safely, and the license can be suspended for up to 60 days for the first offense and up to 120 days for
subsequent offenses. MD Stat. sec. 16-205.
469 Vermont (2009), Wisconsin (2010), South Carolina (2011), Utah (2011), Connecticut (2011), Hawaii (2011), Colorado

(2013), Alabama (2015), and Massachusetts (2016). See The Clemency Report, “Reefer sanity: States abandon driver’s
license suspensions for drug offenses,” September 14, 2014, http://clemencyreport.org/drivers-license-suspensions-drugoffenses-state-state-list (accessed June 8, 2016); Amy Gorel, “New Law Ends Automatic Driver’s License Suspensions for
Drug Crimes,” WBUR, March 30, 2016, http://www.wbur.org/2016/03/30/baker-bill-automatic-license-suspensions
(accessed June 8, 2016).
470 In 2015, roughly 7,000 people’s licenses were suspended in Massachusetts. Amy Gorel, “New Law Ends Automatic

Driver’s License Suspensions for Drug Crimes.”

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barrier to successful re-entry, stating, “I am pleased to sign legislation providing
opportunities for those convicted of drug offenses … to re-enter society, find and keep a
job and support their families.”471

Immigration
A misdemeanor or felony conviction for drug possession can have life-changing
immigration consequences for non-US citizens. Under federal law, a drug possession
conviction is grounds for inadmissibility, meaning that a non-citizen convicted of
possession cannot legally enter or remain in the United States and cannot adjust status to
US citizenship.472 Except for possession of marijuana under 30 grams, any conviction for
drug possession also makes a non-citizen who is living in or visiting the United States
deportable.473 Once deported, non-citizens are permanently barred by their drug offenses
from returning to live with their families in the United States. One immigration attorney
told Human Rights Watch that for many people, deportation can feel like a life sentence
without the possibility of parole.474
Human Rights Watch has documented the ways in which deportation for minor drug
offenses, including drug possession, tears US families apart in violation of international
human rights norms.475 From 2007 to 2012, more than 260,000 deportations from the
United States were for drug offenses. Deportations of non-citizens with possession
convictions increased 43 percent over that same period.476
In the Bronx, Andres Morales told us he was charged with cocaine residue in an empty
baggie. He said, “I’m afraid with this conviction I’ll be deported in the future. I’ve been a

471 Ibid.
472 8 USC sec. 1182.
473 38 USC secs. 1101, 1227.
474 Human Rights Watch, A Price Too High: US Families Torn Apart by Deportations for Drug Offenses, June 2015,

https://www.hrw.org/report/2015/06/16/price-too-high/us-families-torn-apart-deportations-drug-offenses, p. 6.
475 These include the principle of proportionality, right to non-discrimination, right to family unity, rights of the child, and

sometimes principle of non-refoulement. For more detailed analyses of the human rights implicated, see Human Rights
Watch, A Price Too High, sec. VIII, “Drug Control, Immigration Control, and Human Rights”; Human Rights Watch, Forced
Apart: Families Separated and Immigrants Harmed by US Deportation Policy, July 17, 2007, “US Deportation Policy Violates
Human Rights (sec. VI),” https://www.hrw.org/report/2007/07/16/forced-apart/families-separated-and-immigrants-harmedunited-states-deportation.
476 See Human Rights Watch, A Price Too High.

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legal permanent resident since 1993. I passed the nationality test but couldn’t naturalize
because I had an open case. I’m concerned about deportation now. I want to naturalize
and become a citizen but I was just told it would be another year now before I can try
again. I have three kids, [ages] 13, 12, 8. My whole family and life are here.”477
In a recent opinion, the US Court of Appeals for the Sixth Circuit expressed concern about
the deportation consequence of convictions for low-level drug offenses: “It is unclear to us
why it is in our national interests—much less the interests of justice—to exile a productive
member of our society to a country he hasn’t lived in since childhood for committing a
relatively small-time drug offense.”478

Jury Service
Thirty-one states and the federal government impose a lifetime ban on jury service for
people with felony convictions.479 As of 2003, 13 million people had lifetime ineligibility for
jury service because of their felony convictions, representing about 6 percent of the adult
population and 30 percent of Black men.480 Almost all the other states impose bans while
the person is under correctional supervision (including incarceration, parole, or
probation), and many extend those bans for a certain number of years after the sentence is
complete.481 Only Maine allows people with felony convictions to serve on a jury without
such restrictions. Colorado allows people with felony convictions to be a trial juror but not
a grand juror.482
477 Human Rights Watch interview with Andres Morales (pseudonym), New York, November 24, 2015.
478 Jae Lee v. United States of America, Case No. 14-5369 (United States Court of Appeals for the Sixth Circuit), Opinion, June

8, 2016, http://www.ca6.uscourts.gov/opinions.pdf/16a0135p-06.pdf (accessed September 23, 2016).
479 For the federal government ban, see 28 USC sec. 1865(b)(5). The 31 states are Alabama, Arkansas, California, Delaware,

Florida, Georgia, Hawaii, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah,
Vermont, Virginia, West Virginia, and Wyoming. In addition, as of 2003, Alabama has a lifetime ban for people with repeat
convictions; people with first convictions are only banned while they are serving their sentence. Brian C. Kalt, “The Exclusion
of Felons from Jury Service,” American University Law Review, vol. 53 (2003), http://digitalcommons.wcl.american.
edu/cgi/viewcontent.cgi?article=1090&context=aulr (accessed September 23, 2016), pp. 65-189.
480 Ibid.
481 States with bans during correctional supervision are Alaska, Connecticut (during incarceration or seven years from

conviction, whichever is longer), DC (during incarceration plus 10 years after incarceration), Idaho, Illinois (the ban is
challengeable for cause), Indiana, Iowa (challengeable for cause), Kansas (during incarceration or 10 years from conviction,
whichever is longer), Massachusetts (during incarceration or seven years from conviction, whichever is longer), Minnesota,
North Carolina, North Dakota, Oregon (during incarceration plus 15 years after incarceration to serve on criminal and grand
juries), Rhode Island, South Dakota, Washington, Wisconsin. Ibid.
482 Ibid.

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Beyond the loss of opportunity for individuals to participate in civic life, ineligibility for jury
service has broader impacts on the criminal justice system. By barring people with felony
convictions from serving on juries, the federal government and the majority of states
prevent those who have been most affected by the criminal justice system from
participating in it in any other way. They also make it more difficult to ensure that juries are
racially diverse—compounding problems of racial discrimination and underrepresentation
in jury selection.483
Even states that do not impose a lifetime ban allow prosecutors and judges the discretion
to reject potential jurors because of their convictions, making it easier for prosecutors to
exclude Black people from juries.484 As the chair of the California Assembly Judiciary
Committee noted during a hearing in April 2015, current laws and practices prevent juries
from accurately reflecting the demographics of counties and states: “[By] allowing exfelons to participate in the jury process ... more men of color [would] be entered into the
jury pool, creating a more representative sample of the state’s diversity.”485

Other Bans
Thousands of other federal and state exclusions apply for drug possession and other
felony convictions: nearly 50,000 federal and state statutes impose collateral
consequences. The following are just a few examples.

483 Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, August 2010,

http://eji.org/sites/default/files/illegal-racial-discrimination-in-jury-selection.pdf (accessed June 22, 2016).
484 In the 1986 case Batson v. Kentucky, the US Supreme Court held it is unconstitutional to use peremptory strikes–the

striking of jurors without cause during jury selection–solely to exclude jurors on the basis of their race. 476 U.S. 79 (1986).
However, prosecutors have found ways of getting around this prohibition. See Equal Justice Initiative, Illegal Racial
Discrimination in Jury Selection: A Continuing Legacy, pp. 5-6, 14. (“There is evidence that some district attorney’s offices
explicitly train prosecutors to exclude racial minorities from jury service and teach them how to mask racial bias to avoid a
finding that anti-discrimination laws have been violated….In courtrooms across the United States, people of color are
dramatically underrepresented on juries as a result of racially biased use of peremptory strikes…. [For example, the] high rate
of exclusion of racial minorities in Jefferson Parish, Louisiana, has meant that in 80% of criminal trials, there is no effective
black representation on the jury.”)
485 California Assembly, Committee on Judiciary, Hearing on AB 324, April 14, 2015, http://www.leginfo.ca.gov/pub/1516/bill/asm/ab_0301-0350/ab_324_cfa_20150412_145417_asm_comm.html (accessed June 23, 2016). The proposed
legislation, Assembly Bill 324, would have walked back the lifetime exclusion and banned only people with felony
convictions who had not yet completed probation, parole, post-release community supervision, or mandatory supervision.
The bill did not make it out of committee. California Legislative Information, “AB-324 Trial jurors: eligibility (2015-2016),”
undated, http://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201520160AB324 (accessed September 28,
2016).

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A conviction for drug possession can drastically impact a person’s parental rights and
ability to be involved in their children’s lives. For example, under New York law, if a
parent’s incarceration causes a child to be in foster care for more than 15 months during
any 22-month period, a foster care agency may seek to terminate parental rights.486 A
felony drug conviction, specifically, disqualifies a person from adoption or from becoming
a foster parent if the drug conviction occurred within the past five years.487 In Louisiana,
people convicted of a felony offense lose any claim to spousal support, but if spousal
support is awarded to their former spouse, their obligation to pay support continues while
they are incarcerated. Parental rights may be terminated if someone fails to pay child
support or to maintain contact for six months in a row, even while incarcerated.488 Alabama
law provides for termination of parental rights for any felony conviction.489
A number of jurisdictions prohibit parents convicted of certain felonies, including for
drugs, from volunteering at public schools, including chaperoning school events such as
field trips.490 Trisha Richardson was convicted at age 18 for possession of Xanax and
methamphetamines in Polk County, Florida. As a 19-year-old without children, her first
concern was the impact her conviction might have on her ability to be the kind of mother
she wanted to be: “With a felony record because of drugs, I know I won’t be able to go on
field trips when I have kids.”491

486 NY Soc. Serv. Law sec. 384- b(3)(l).
487 NY Soc. Serv. Law sec. 378-a(2)(e)
488 Louisiana Justice Coalition, “Now and Later: The Short and Long-Term Consequences of a Louisiana Conviction,” 2010,

http://www.opdla.org/attachments/article/104/CollateralConsequencesClientGuide_English.10.pdf (accessed November 11,
2015), p. 13.
489 AL sec. 12-15-319.
490 Jessie Rossman, “Don’t Punish Kids for Parent’s Misdeeds,” ACLU of Michigan, November 18, 2010,

http://www.aclumich.org/article/don%E2%80%99t-punish-kids-parents%E2%80%99-misdeeds (accessed September 23,
2016) (Grand Rapids School District has a policy of prohibiting individuals with any type of felony record from volunteering in
their children’s schools regardless of the age of the conviction); Emily Friedman and Karin Halperin, “Reformed Heroin Addict
Mom Barred From Volunteering at Daughter’s School,” ABC News, August 25, 2010, http://abcnews.go.com/US/aclu-suesrhode-island-school-districts-stringent-volunteer/story?id=11481056 (accessed September 23, 2016); Devin Katayama, “JCPS
Background Checks Block Parents From Volunteering, Even for Years-Old Offenses,” WFPL, August 25, 2013,
http://wfpl.org/jcps-background-checks-block-parents-volunteering-even-years-old-offenses (accessed September 23,
2016); Gabrielle Russon, “Criminal past could keep parents from volunteering at Sarasota schools,” Herald Tribune,
September 2, 2014, http://www.heraldtribune.com/article/20140902/article/140909932 (accessed September 23, 2016).
491 Human Rights Watch interview with Trisha Richardson (pseudonym), Auburndale, December 11, 2015.

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A felony conviction also makes a person ineligible to enlist in the United States Armed
Forces,492 a consequence highlighted by some interviewees who wanted to serve. A person
convicted of a felony is ineligible to accrue certain Veterans Administration493 and Social
Security494 benefits while incarcerated, and not all benefits are automatically resumed
upon release. Conviction for drug possession can result in loss of federal commercial
benefits, such as any grant, contract, loan, professional license, or commercial license
provided by a federal agency.495

Vulnerability to Private Discrimination
That record becomes the focus…. It’s there forever. It’s very unfair; it’s
debilitating…. People look at you differently: You’re a felon. That word has
such a stigma, but what do I have that tag for?496
―Sherry Martin, convicted in the 1990s of cocaine possession, December 2015

By labeling a person convicted of drug possession a “felon” or “drug offender,” states
subject thousands of individuals each year to stigma and sometimes discrimination by
private actors. Many interviewees said the stigma affected the way others engaged with
them socially, or led others not to engage with them at all. In Louisiana, Texas, and Florida
interviewees pointed to the ease with which potential employers and landlords—and also
potential partners and friends—could find their arrest or conviction record through a
simple search of their name on the internet.

492 10 USC sec. 504(a).
493 38 USC sec. 1505(a). Veterans incarcerated for a felony or misdemeanor for over 60 days will stop receiving VA pension

payments, which may resume after release. Veterans convicted of a felony are ineligible for VA apportionment, which would
give a portion of the money taken from their benefits to the veteran’s family; they also lose certain education benefits, and
may only receive benefits for tuition and supplies. To get their benefits reinstated, veterans must contact the VA and reapply
within one year of release. US Department of Veterans Affairs, “Incarcerated Veterans,” (undated),
http://www.benefits.va.gov/persona/veteran-incarcerated.asp (accessed July 26, 2016).
494 42 USC secs. 402(x), 1382(e)(4)(A). Anyone in jail or prison for more than 30 continuous days after being convicted of a

crime (or anyone who is confined after violating probation or parole) is ineligible for Social Security benefits while
incarcerated. If the period of incarceration is longer than a year, one must submit a new application and get re-approved for
Supplemental Security Income. One must visit a Social Security office with proof of release to reinitiate payments, which can
begin within the month of release; however, release will not automatically make someone eligible for Social Security
benefits. Social Security, “Benefits After Incarceration: What You Need To Know,” (undated),
https://www.ssa.gov/reentry/#&a0=6 (accessed July 26, 2016).
495 A first drug possession conviction can result in loss of eligibility for all federal commercial benefits for up to one year; a

second or subsequent possession conviction can result in loss up to five years. 21 USCA sec. 862(b) (2015).
496 Human Rights Watch interview with Sherry Martin (pseudonym), Miami, December 18, 2015.

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Most interviewees focused on how their criminal record resulted in the tangible loss of
income and stable housing.

Employment
In most states, private employers can legally discriminate on the basis of criminal history
during the hiring process, sometimes by asking job applicants to check a box on
application forms if they have been convicted of a crime. Although more than 100 cities
and counties around the country have adopted “ban the box” policies497—and President
Obama has called for Congress to ban the box in federal government hiring498—most of
these measures have been limited to government employers. As an exception, nine states
have barred private employers from asking about an applicant’s criminal history on job
application forms.499
In the states we visited, interviewees repeatedly named employment difficulties as one of
the most urgent consequences of their drug possession case, including where it involved a
misdemeanor charge. People we interviewed said any criminal history—even an arrest that
was not adjudicated—impacted their employability.
Many people told us that they were asked about their criminal record in the hiring process
and that they believed they did not get jobs because of their response. In Miami, Sherry
Martin said of her cocaine possession conviction:

497 Michelle Natividad Rodriguez and Beth Avery, “Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies,”

National Employment Law Project, June 1, 2016, http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-andlocal-guide (accessed June 22, 2016).
498 The White House, Office of the Press Secretary, “Fact Sheet: President Obama Announces New Actions to Promote

Rehabilitation and Reintegration for the Formerly-Incarcerated,” November 2, 2015, https://www.whitehouse.gov/the-pressoffice/2015/11/02/fact-sheet-president-obama-announces-new-actions-promote-rehabilitation (accessed September 23,
2016).
499 Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont. Further,
Wisconsin law specifically prohibits public or private employers or licensing agencies from discriminating against employees
or job applicants on the basis of an arrest or criminal record. New York City’s Fair Chance Act, effective October 27, 2015,
prohibits most public or private employers from asking about an applicant’s criminal record before making a job offer.
Rodriguez and Avery, “Ban the Box: U.S. Cities, Counties, and States Adopt Fair Hiring Policies”; State of Wisconsin, Fair
Employment Law, https://dwd.wisconsin.gov/er/discrimination_civil_rights/fair_employment_law.htm (accessed
September 23, 2016); NYC Commission on Human Rights, “Fair Chance Act,” http://www1.nyc.gov/site/cchr/about/insidecchr.page (accessed September 23, 2016).

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[It is] almost 20 years behind me. And there’s still that box and you have to
be honest. That record becomes the focus. They’re not concerned about the
total, what you’ve done with yourself since then…. It’s like having a ball and
chain around your neck forever. It ruins your life.500
Lindsay Phillips, convicted of cocaine possession in Florida, said ban-the-box would not
be enough, because employers in her experience often ran a background check as the last
step of the hiring process, usually after an interview but one time even after she had
started working:
I was at a job for a month, a medical assistant at a doctor’s office, then the
background check came in and they released me. It’s company policy not
to employ felons, they said; it’s not personal, because they love me. Now
in interviews I disclose, and they say they can’t hire me.... If I didn’t have
my significant other, I would have been homeless.... It’s a daunting
feeling, knowing I’ll be faced with constant rejection; that I’ll constantly
rely on others and not be self-sufficient. My kids can’t look to me as a
source of stability because I can’t find that stability for myself because of
my record.501
Others who had just been convicted of their first felony or who were fighting their first
felony charge told us they feared it would ruin their lives. For example, Amit Goel, a 19year-old sophomore in Dallas charged with a felony for possession of Adderall and
Vyvanse, said, “If I get convicted, why finish school anyways? It’d be a waste of time with a
conviction [because] you can’t get good jobs after a background check.”502 In Shreveport,
Glenda Hughes described what it meant for her to be convicted of her first felony, for
possession of Klonopin: “I feel screwed…. I can’t be a doctor or psychologist; I can’t do the
higher up things I would have liked. It takes away—you can only go so far as a felon.”503

500 Human Rights Watch interview with Sherry Martin (pseudonym), Miami, December 18, 2015.
501 Human Rights Watch interview with Lindsay Phillips (pseudonym), Auburndale, December 11, 2015.
502 Human Rights Watch interview with Amit Goel (pseudonym), Dallas, March 7, 2016.
503 Human Rights Watch interview with Glenda Hughes (pseudonym), Shreveport, Louisiana, February 6, 2016.

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Some interviewees talked about the limited types of jobs that were available to people
with felony drug convictions:
•

In an office that helps people with felony convictions find jobs in Miami, Sherry
Martin said of those in the waiting room, “No one in that reception is a big time
criminal or dealer. But they can only work making beds, in food prep,
construction, collecting garbage, or at a fast food. Most of the jobs we can get
for them, it’s $7.25, the minimum wage in Florida. This is what [the felony]
does, you’re getting locked into minimum wage jobs.… They get to the box and
have to check yes. And [the conviction] could be 30 years ago…. This creates
recidivism. It’s a self-fulfilling prophesy when they tell us you’re nothing but a
criminal.… I know people with PhDs working at Pizza Hut!”504

•

In Houston, Leonard Lewis told us he went into depression when he could
not make a living because he had been convicted of possession at age 18. “I
have to settle for [temp work,] places that pay $7.45 and $8, stuff like that.…
Average work day is like four hours. Four hours at 7 or 8 dollars, you aren’t
going to do anything with that. I put that in my gas tank. You got the mental
stress of having to help your family, help pay bills, but you ain’t got
nothing…. [My possession conviction] is when this all started. It blocked me
out of everything.”505

Luke Jenkins was arrested in Titusville, Florida at age 19 for possession of two ounces of
marijuana. He said, “Now I’m a convicted felon which carries with me for rest of my life.…
That’s why I had to open my own business and work extra hard. My heart breaks for
someone who didn’t have the same resources that I was able to tap into. Because if you
don’t, you end up back in the cycle of the system. It was a pivotal experience that still
hangs over me 10 years later.”506
For other interviewees, their possession conviction excluded them from the professional
licenses or further vocational training they had anticipated. In many states, licensing
authorities may suspend, revoke, or deny licensure based on convictions from the past

504 Human Rights Watch interview with Sherry Martin (pseudonym), Miami, December 18, 2015.
505 Human Rights Watch interview with Leonard Lewis (pseudonym), Houston, March 15, 2016.
506 Human Rights Watch phone interview with Luke Jenkins (pseudonym), Melbourne, Florida, December 3, 2015.

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several years. Occupations that require a license include teaching, nursing, architecture,
law enforcement, plumbing, barbering, and many more.507 These exclusions apply even
when there is no evidence that drug use impacted the person’s professional abilities or
that they ever appeared for work under the influence.

Jasmine’s Story
In central Florida, Jasmine Adams’ arrest for cocaine possession meant she had to give
up her life’s work as a schoolteacher:
I loved being a teacher. I had been teaching for ten years and two weeks,
early childhood education…. I was two weeks in, in kindergarten again,
when they found out what had happened with my cocaine arrest. They
said I could take paid leave while they did their own investigation or I
could voluntarily resign. I asked what would happen to my kindergarten
kids: they’d have a substitute teacher. I can’t do that to little kids; they
were my little babies. It’s not fair to have such inconsistency in their
school lives in the first weeks of school. So I voluntarily resigned.
I was devastated. I had gone to the University of Florida, was getting my
masters to be a principal or assistant principal. To know all of that I had
lost—I don’t think I’ve ever been so sad in my life. Then the State of
Florida contacted me about my teaching certificate and I voluntarily
surrendered it. They sent a letter saying it was a violation of ethics.
This is my fifth year not teaching, being in this crazy bubble [of criminal
justice] you lose track of time, of the real world…. I lost my job. I lost my
house because I couldn’t pay for it—a deed in lieu of foreclosure. I
couldn’t pay the mortgage….

507 For example, in Oklahoma, anyone with a felony conviction is prohibited from ever being a state employee or obtaining
licensures in at least 31 different professions. Oklahoma Policy Institute, “Oklahoma Restrictions on Job Licensing for ExFelons,” undated, http://okpolicy.org/wp-content/uploads/Occupational-Licensing-Restrictions.pdf?997616 (accessed
October 5, 2016). In Maryland, anyone convicted of a drug crime must disclose it when applying for or renewing a license.
Washington Lawyers’ Committee, “The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and
Virginia Law,” October 22, 2014, http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf (accessed October
5, 2016).

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I would love to work with kids again and be around kids again, but it
will never happen. I have drug charges. They don’t allow you in the
State of Florida to be around kids again…. Even in a daycare. The one
thing I knew I was good at—I knew I was good, my evaluations from
parents were impeccable. Even the HR woman said she knew how good
I was. She said your file speaks for yourself. She was so sad for me. I
lost everything.508

Housing
Interviewees in all states we visited said that their drug possession conviction prevented
them from obtaining housing.
•

In Houston, Leonard Lewis said, “Being a felon, you can’t rent an apartment.
You can get one, but it’s gonna be somewhere you don’t want to be at. If you
want to live somewhere that’s half decent, you’re not gonna be able to be on
the lease. [When I looked for my own apartment,] everyone kept telling me,
‘Well, sir, we’re not gonna waste your time with an application fee.’… I got an
apartment locator, and the places she showed me, it was like, no I can’t do
that one.”509

•

In Harlem, Frank Torres said, “Because of my convictions, I lost opportunities to
have an apartment because people don’t want to rent to me. I went to a
housing interview and the landlord said, ‘Have you been convicted? Well then, I
can’t help you.’”510

•

Susan Turner, convicted at age 18 for possession of Xanax and
methamphetamines in central Florida, told us her felony record meant she
could no longer live with her father and stepmother because their Homeowner’s
Association did background checks on every person who lives there. A
“criminal background, convicted or not” means you’re denied by the housing
authorities, she said.511

508 Human Rights Watch interview with Jasmine Adams (pseudonym), Auburndale, December 11, 2015.
509 Human Rights Watch interview with Leonard Lewis (pseudonym), Houston, March 15, 2016.
510 Human Rights Watch interview with Frank Torres (pseudonym), New York, October 29, 2015.
511 Human Rights Watch interview with Susan Turner (pseudonym), Auburndale, December 11, 2015.

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X. How Criminalization Undermines Health
Personal use of drugs should be decriminalized because people … don’t
need to be punished…. The court system isn’t going about it in the right way
at all. If someone is [messing] up their own life by personal use, they
should receive help or treatment.512
–Karen Peterson, prosecuted multiple times in Florida for possession of methamphetamines,
Ecstasy, and Xanax, December 2015

Is criminalization of narcotics appropriate? Society and current laws say
yes…. [But with] the pure possession person, we’re clearly not doing a very
good job: We keep arresting and incarcerating.513
–Judge William Knight, Covington, Louisiana, January 2016

Rather than promoting health, criminalization can create new barriers to health for those
who use drugs. Criminalization drives drug use underground; it discourages access to
emergency medicine, overdose prevention services, and risk-reducing practices such as
syringe exchanges; and, by incarcerating people who use drugs—too often without proper
medical attention—it causes deterioration of physical and mental health and increases
significantly the risk of overdose upon release.514
Although many people only use drugs recreationally or occasionally, drug use can lead to
devastating consequences, including fatal overdoses. For those with drug dependence,

512 Human Rights Watch interview with Karen Peterson (pseudonym), Miami, December 21, 2015.
513 Human Rights Watch interview with Judge William Knight, Covington, January 28, 2016.
514 See Human Rights Watch, Barred From Treatment: Punishment of Drug Users in New York State Prisons, March 24, 2009,

https://www.hrw.org/report/2009/03/24/barred-treatment/punishment-drug-users-new-york-state-prisons; Human Rights
Watch, In Harm’s Way: State Response to Sex Workers, Drug Users and HIV in New Orleans, December 11, 2013,
https://www.hrw.org/report/2013/12/11/harms-way/state-response-sex-workers-drug-users-and-hiv-new-orleans; Human
Rights Watch, Injecting Reason: Human Rights and HIV Prevention for Injection Drug Users, September 8, 2003,
https://www.hrw.org/report/2003/09/08/injecting-reason/human-rights-and-hiv-prevention-injection-drug-users; Megan
McLemore (Human Rights Watch), “Prisons Are Making America's Drug Problem Worse,” commentary, Politico, March 11,
2015, https://www.hrw.org/news/2015/03/11/prisons-are-making-americas-drug-problem-worse; Human Rights Watch
submission to Office of the UN High Commissioner for Human Rights on the Issue of Drugs and Human Rights, May 15, 2015,
https://www.hrw.org/news/2015/05/15/human-rights-watch-submission-office-un-high-commissioner-human-rights-issuedrugs.

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the state can better protect and promote their health by harm reduction and social services
than through the criminal justice system.
Indeed, rates of drug use across drug types in the US have not decreased over the past 25
years, despite widespread criminalization.515 Heroin and prescription opioid use has
skyrocketed, as have overdoses associated with them.516 Criminalization has also not
helped advance evidence-based prevention strategies or led to wider understanding of
safer drug use practices among relevant populations.517
Nor does incarceration offer a solution for those who struggle with drug dependence, who
may simply end up caught in a revolving door to prison.518 As New Orleans public defender
Barksdale Hortenstine, Jr. said:
I can’t tell you how many cases I’ve had when the client has literally only
ever been arrested or convicted for the simple use of a substance. Usually
cocaine, cocaine, cocaine, cocaine, paraphernalia, cocaine. For that person
to be sent to prison for 20 years, or to be put in the position in which they

515 Substance Abuse and Mental Health Services Administration, “Substance Abuse in States and Metropolitan Areas: Model

Based Estimates from the 1991-1993 National Household Surveys on Drug Abuse,” September 1996, Exhibits 3.1-3.4;
Substance Abuse and Mental Health Services Administration, “Results from the 2014 National Survey on Drug Use and
Health: Detailed Tables,” Table 1.23B.
516 Centers for Disease Control, “Opioid Data Analysis,” March 14, 2016,

https://www.cdc.gov/drugoverdose/data/

analysis.html (accessed July 31, 2016).
517 See, for example, Tim Rhodes, “Risk environments and drug harms: A social science for harm reduction approach,”

International Journal of Drug Policy, vol. 20 (2009), pp. 193-201; Paula Mayock, Jennifer Cronly, and Michael C. Clatts, “The
Risk Environment of Heroin Use Initiation: Young Women, Intimate Partners, and ‘Drug Relationships,’” Substance Use &
Misuse, vol. 50 (2015), pp. 771-782; Joanne Csete, https://www.opensocietyfoundations.org/reports/prevention-drug-useand-problematic-use. To mitigate some of the risks of overdose, other countries have explored testing sites where drug users
can test the contents of their purchases without fear of prosecution. See European Monitoring Centre for Drugs and Drug
Addiction, “Scientific Project; ChEck iT!,” January 20, 2012,
http://www.emcdda.europa.eu/html.cfm/index52035EN.html?project_id=1780&tab=overview (accessed September 14,
2016); APDES, “Check!n: free mind to fly,” 2015, http://www.apdes.pt/en/services/health-harm-reduction-humanrights/check!n.html (accessed September 14, 2016); Margriet van Laar et al., “Report to the EMCDDA: The Netherlands Drugs
Situation 2012,” Reitox National Focal Point, December 28, 2012, http://www.emcdda.europa.eu/attachements.cfm/
att_213776_EN_2012%20Netherlands%20National%20report%20full.pdf (accessed September 14, 2016).
518 There is a high risk of overdose following forced abstinence in jail and prison. E.L. Merrall, A. Kariminia, I.A. Binswanger,

M.S. Hobbs, M. Farrell, J. Marsden, S.J. Hutchinson, and S.M. Bird, “Meta-analysis of drug-related deaths soon after release
from prison,” Addiction, September 2010, vol. 105(9), pp. 1545-54.

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have to plead for seven or eight years flat time because they haven’t
“learned their lesson” shows how much [we’re missing].519

Failure to Provide Appropriate Treatment for Drug Dependence
For individuals who are drug dependent, criminalization fails to provide appropriate
treatment in line with the human right to health. A full analysis of drug dependence
treatment options available in different states is beyond the scope of this report. Other
sources point to gaps in the availability of affordable and scientifically sound treatment,
including lack of capacity in treatment programs, and the failure of many state Medicaid
programs to cover medication needed for treatment of opioid dependence.520
Treatment should be affordable and available voluntarily in the community. It is not
acceptable for treatment to be available only in the criminal justice system, depriving people
who want treatment for drug dependence of such treatment unless they are arrested.
We spoke to a number of people who said they were drug dependent and wished they had
access to voluntary treatment outside of the criminal justice system.521 Even where
jurisdictions had treatment programs available through the criminal justice system—such
as drug courts (examined below) or diversion programs—many interviewees whose
criminal histories were comprised only of low-level non-violent offenses and sometimes
only drug possession said that they were never offered participation in the programs or any
other kind of treatment or social services support.
•

In Fort Worth, Texas, Hector Ruiz had a long record of drug possession
convictions. He told us, “I’ve had an addiction since I was 23, but through all
my incarcerations they have never offered help. They have never said they

519 Human Rights Watch interview with Barksdale Hortenstine, Jr., New Orleans, January 29, 2016.
520 See Brendan Saloner and Shankar Karthikeyan, “Changes in Substance Abuse Treatment Use Among Individuals With

Opioid Use Disorders in the United States, 2004-2013,” Journal of the American Medical Association, vol. 314 (2015), pp.
1515-1517; The American Society of Addiction Medicine, “Advancing Access to Addiction Medications: Implications for Opioid
Addiction Treatment,” June 2013, http://www.asam.org/docs/default-source/advocacy/aaam_implications-for-opioidaddiction-treatment_final (accessed August 1, 2016).
521 A number of states offer drug treatment within prison, including in special facilities, for example Texas’ Substance Abuse

Felony Punishment Program (SAFP). SAFP is under the ambit of the Texas Department of Corrections and is in a “lock-down”
facility, meaning those sentenced to SAFP are still treated like prisoners. Interviewees told us that SAFP is not a place where
they would feel comfortable tackling their drug dependence. Programs that impose involuntary treatment within a detention
center do not comply with right to health principles.

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could give me drug rehab, any type of rehab at all…. It’s hard to just get out [of
prison] with no job, no stability; you go right back to where you come from [and
use again]. This place is a revolving door for people like me. Putting people in
jail is not gonna help nobody. If anything, it makes them worse.”522
•

In Covington, Louisiana, Allen Searle told us, “They never offered me a drug
treatment… they never gave me a chance on anything…. Putting people in jail
for drugs is not helping anybody. It’s not helping their families; it’s not helping
anything around them.”523

•

In Dallas, Nate Myers said he turned to drugs after his son died and that he
wished he had been offered help rather than handcuffs: “At the time of my
arrest, I wish they had asked more questions, like what’s going on in your life,
why do you have these drugs, how can I help you? ... I should be offered help
but instead am shackled and treated like an animal, rather than
[understanding] I’m using it to cope.”524

•

Speaking to us from jail in Granbury, Texas, Matthew Russell said, “Do they
realize what they are doing to people’s lives in here? ... Because of my drug
addiction, they just keep punishing me. [Using drugs,] in our society that
makes me a bad person? Because I can’t overcome an addiction? They never
offered me no help. I have been to prison five times, and it’s destroyed me;
each time I go it takes another part of me.”525

A number of prosecutors, judges, and correctional staff we interviewed agreed that more
treatment should be available to those who want it, outside of the criminal justice system.
For example, a former prison warden and chief of security, who spent more than 25 years
working in the Florida Department of Corrections, said:
The individual should be looked at in a possession case. In their life, what’s
going on? Are they trying to provide for their family? There has to be an
alternative for simple possession. You shouldn’t go to prison. By

522 Human Rights Watch interview with Hector Ruiz (pseudonym), Fort Worth, March 11, 2016.
523 Human Rights Watch interview with Allen Searle (pseudonym), Covington, Louisiana, January 27, 2016.
524 Human Rights Watch interview with Nate Myers (pseudonym), Dallas, March 8, 2016.
525 Human Rights Watch interview with Matthew Russell (pseudonym), Granbury, Texas, March 10, 2016.

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criminalizing it, we take a guy who’s not a criminal and put him in with
criminals. You’re not making him a better person.526
Some officials expressed concern to us that if drug use were decriminalized, there would be
no “hook” to help people get the treatment they need. But this implies that people who are
drug dependent need to be forced into treatment against their will. In fact, many of our
interviewees who identified as drug dependent did want treatment, but it was not available
to them. Moreover, the reality is that the criminal justice “hook” has not succeeded in
connecting people to evidence-based, quality treatment. And, as a Florida judge pointed out,
to the extent criminal justice actors seek to divert people to treatment, they can still do so if
people commit other offenses under the influence of drugs, where the criminal law remains
more appropriate: “When people are high, trespass and stealing is still criminal. Get them
that way, divert them that way. We can do it without criminal possession.”527

Obstacles to Emergency Care
Criminalizing drug use may hinder access to emergency medical care in the event of an
overdose or other drug-related health emergency. Because police often respond to 911
calls, calling for an ambulance often also means calling for the police. If the police are
empowered to arrest a person for drug possession in such circumstances, an individual is
faced with the choice of seeking help and facing possible criminal charges or allowing a
possibly fatal overdose. This risks creating a situation where criminal sanctions are not
only disproportionate but are enforced in a way that interferes with the rights to health and
life under international human rights law. Fear of police involvement has been identified
by many researchers as the most common reason people say they do not call 911 when
witnessing an overdose.528

526 Human Rights Watch interview with former Florida prison warden, December 2015.
527 Human Rights Watch interview with Florida judge, December 2015.
528 See Drug Policy Alliance, “911 Good Samaritan Laws: Preventing Overdose Deaths, Saving Lives,” February 2016, citing
sources, http://www.drugpolicy.org/sites/default/files/DPA_Fact%20Sheet_911%20Good%20Samaritan%20Laws
_%28Feb.%202016%29.pdf (accessed June 18, 2016).

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For this reason, Good Samaritan laws are imperative. Thirty-two states and the District of
Columbia currently have Good Samaritan laws in place.529 These laws ensure that people
will be immune from arrest or prosecution if they call 911 to seek help for someone who
has overdosed. Before Louisiana passed its Good Samaritan law, Byron Augustine called
911 when his friend overdosed on heroin. He saved his friend’s life but was charged with
felony drug possession for the drugs his friend used and with a probation revocation for an
underlying drug possession case. He is currently serving 10 years on both. Yet Byron said
saving his friend’s life was worth it. He had known he risked arrest by calling for help but
said, “That’s my friend, I wasn’t going to let him die. Even when I went to [court], the judge
asked about that. But man, I couldn’t let my friend die, I couldn’t have that on my
conscience.” Byron told us that after he was arrested, his friend overdosed again and did
not survive. Because he was incarcerated, Byron was not able to attend the funeral.530
Even where Good Samaritan laws are in place, they may not protect friends or family
members involved in drug use from being charged with homicide when there is a fatal
overdose.531 This is true even where the friend or family member also uses drugs and/or
did not know the dangers of the dosage. The apparent trend toward considering homicide
529 In 2007, New Mexico was the first state in the nation to pass a 911 Good Samaritan law. Subsequently 31 additional
states, plus the District of Columbia, have passed similar statutes. They are Alabama, Alaska, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota,
Mississippi, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode
Island, Tennessee, Vermont, Washington State, West Virginia, and Wisconsin. Three more states, Utah, Indiana, and Virginia,
have adopted laws providing for mitigation in cases of good-faith reporting of an overdose, but these states do not provide
immunity. Michigan adopted a 911 Good Samaritan law that applies to minors only. See Drug Policy Alliance, “911 Good
Samaritan Laws: Preventing Overdose Deaths, Saving Lives,” February 2016, http://www.drugpolicy.org/sites/default/
files/DPA_Fact%20Sheet_911%20Good%20Samaritan%20Laws_%28Feb.%202016%29.pdf (accessed June 18, 2016);
National Conference of State Legislatures, “Drug Overdose Immunity and Good Samaritan Laws,” August 1, 2016,
http://www.ncsl.org/research/civil-and-criminal-justice/drug-overdose-immunity-good-samaritan-laws.aspx (accessed
September 23, 2016).
530 Human Rights Watch interview with Byron Augustine, Slidell, Louisiana, February 3, 2016.
531 See Rob Kuznia, “Her fiance gave her heroin. She overdosed. Does that make him a murderer?” Washington Post, May 8,

2016, https://www.washingtonpost.com/national/her-fiance-gave-her-heroin-she-overdosed-does-that-make-him-amurderer/2016/05/08/f9a9e79a-f29b-11e5-a2a3-d4e9697917d1_story.html (accessed June 18, 2016) (“Prosecutors in New
Jersey, Tennessee, West Virginia and Louisiana have recently dusted off dormant War on Drugs-era laws to subject sellers
and providers to homicide charges and stiff sentences on par with convictions for shooting, beating or poisoning people to
death. In New York, Ohio and Virginia, lawmakers have introduced bills to allow murder charges to be filed in drug-overdose
deaths.”). For a number of recent cases in Louisiana, see, for example, Naomi Martin, “Murder charge comes after heroin
overdose of friend,” The Times-Picayune, August 11, 2014, http://www.nola.com/crime/index.ssf/2014/08/in_gentilly_
heroin_overdose_no.html (accessed August 19, 2016); Joe Gyan, “Baton Rouge man sentenced for giving heroin to girlfriend,
who died of an overdose,” The Advocate, March 24, 2015, http://www.theadvocate.com/baton_rouge/news/
article_d5c925aa-bf84-58bf-81ee-b61f588dc4e6.html (accessed August 19, 2016); Joe Gyan, “Denham Springs man
convicted of giving girlfriend fatal dose of heroin claims life sentence cruel, unusual punishment,” The Advocate, February 9,
2016, http://www.theadvocate.com/baton_rouge/news/article_69e9c040-9d22-55d9-8dab-3d50e55d2921.html (accessed
August 19, 2016).

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charges in such cases is therefore distinct from the broader move to prosecute dealers
who know they are selling dangerously high or misleading dosages to people who may not
know the strength of the drug they are buying.
We have not investigated the practice of charging friends and family members who provide
a fatal dose, but it risks undercutting Good Samaritan laws. If arrest and prosecution for
drug possession are enough to discourage overdose witnesses from calling 911, the
motivation behind Good Samaritan laws, witnesses will be even less likely to call for help
if they might face murder charges should the ambulance fail to arrive in time. These
practices risk encouraging people to leave a friend or loved one to die.

Law Enforcement Alternatives
In 2011, Seattle piloted a program called LEAD, Law Enforcement Assisted Diversion.
The first “pre-booking” diversion program in the country, LEAD gives King County law
enforcement discretion to direct people who would otherwise be charged with lowlevel drug offenses or prostitution to housing, treatment, and other services instead.
Those found in possession or sale of up to five grams, in some cases ten grams, of
certain drugs are eligible for LEAD.532 If participants complete the case management
program within 30 days, the prosecutor does not charge them.533 According to one
LEAD implementer, because the program is a “harm reduction model, [it] doesn’t
require a person to maintain abstinence,”534 and participants cannot be sanctioned for
drug use.535
LEAD emerged from a realization that the status quo was not working and that it was
rife with racial disparities. Jim Pugel, former interim Seattle Police Chief, said that
before LEAD:

532 Jim Pugel, Presentation at “Drug Policy and Progress on Sentencing Reform,” a side event during the United Nations

General Assembly Special Session on the World Drug Problem, April 20, 2016.
533 Ibid.
534 Ibid.
535 Drug Policy Alliance, Law Enforcement Assisted Diversion (LEAD): Reducing the Role of Criminalization in Local Drug

Control, February 2016, http://www.drugpolicy.org/sites/default/files/DPA%20Fact%20sheet_Law%20
Enforcement%20Assisted%20Diversion%20(LEAD)%20_(Feb.%202016).pdf (accessed June 18, 2016).

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Things went off the rails when we said we, the police and the
prosecutors, know best [how to respond to drug use].… We were
arresting people day in and day out, putting them in jail with the help of
prosecutors and judges for a small amount of drugs … smaller than the
M&M candies. People were going to jail for years and years. When they
got out, we’d arrest them again for doing the same thing.536
At the time, Seattle had one of the worst rates of racial disparities for drug arrests in the
country, prompting a lawsuit against the Seattle Police Department that went on for
years.537 One of the upshots of the litigation was a reevaluation of the police’s
relationship with the community and the eventual formulation of the LEAD program,538
with multiple collaborators among other government agencies and civil society
representatives.539
LEAD programs provide an alternative to criminal charges and give officers the
opportunity to connect people to social services and other support instead. Some
officials told us this was greatly needed: In St. Tammany Parish, Louisiana, Sheriff
Randy Smith said, “It’s not about putting 100 people in jail that are using—which [we
could do, since] it is illegal to possess and use drugs—but it’s getting them the help.
And that is what I think sometimes we’re missing in law enforcement.”540 Although the
“help” should not automatically be treatment for drug dependence, in some cases
treatment options are needed. Sergeant Daniel Seuzeneau, Public Information Officer in
Slidell Police Department, said the problem is that too often treatment is not available
and so officers feel their only option is to arrest:
If one of our officers stops a guy right now and he just shot up heroin, has a
bag of heroin and a used needle … what is he to do? There is no “ok, we’re
not going to arrest you, we’re going to bring you to this rehab center,”

536 Pugel, Presentation.
537 Drug Policy Alliance, Law Enforcement Assisted Diversion.
538 Ibid. See also Pugel, Presentation (saying LEAD was “started by a racial disparities argument”).
539 LEAD, About LEAD, http://leadkingcounty.org/about/ (accessed June 18, 2016).
540 Human Rights Watch interview with Police Chief Randy Smith, Slidell, February 3, 2016.

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because there is none, that’s not an option. If you don’t arrest him and they
OD later, what are parents going to do? And if you do arrest him, then
you’ve got this debacle of does this person really need to be in jail? They
need help. It’s just a catch-22; it’s a vicious cycle.541
Studies of LEAD in Seattle indicate that it has decreased recidivism; improved outcomes
for participants in housing, employment, and income; and decreased criminal justice
utilization and associated financial costs.542 Santa Fe implemented the country’s second
LEAD program in 2014,543 and Albany, NY, Huntington, WV, and Canton, OH followed in
2015 and early 2016.544
Ultimately, LEAD is still a criminalization model, since participation cannot be
considered truly voluntary if the alternative is to be charged for drug possession. It also
risks mistakenly assuming that anyone who uses or possesses drugs needs help. But it
is less intrusive and onerous than some other pre-adjudication or diversion models. The
establishment of LEAD programs can be an interim step, until decriminalization is
implemented.545

Drug Courts: A Flawed Solution
Recent years have seen a trend toward the establishment of drug courts—specialized
courts that provide certain drug defendants with various forms of required treatment and

541 Human Rights Watch interview with Sergeant Daniel Seuzeneau, Slidell, Louisiana, February 3, 2016.
542 University of Washington – Harborview Medical Center, “LEAD Program Evaluation: Criminal Justice and Legal System

Utilization and Associated Costs,” June 24, 2015, http://static1.1.sqspcdn.com/static/f/1185392/26401889/
1437170937787/June+2015+LEAD-Program-Evaluation-Criminal-Justice-and-Legal-System-Utilization-and-AssociatedCosts.pdf?token=YQ9BVcVKNeUwc1pFYJ5MnIwhTGg%3D (accessed September 23, 2016).
543 See City of Santa Fe, “City Launches LEAD Putting Santa Fe in Proactive Spotlight,” May 5, 2014,

http://www.santafenm.gov/news/detail/city_launches_lead_putting_santa_fe_in_proactive_spotlight (accessed June 19,
2016).
544 LEAD National Support Bureau, “Fact Sheet,” (undated), http://www.leadbureau.org/#!resources/cjta (accessed June 19,

2016).
545 Even in the absence of LEAD programs, local governments and law enforcement can adopt harm reduction policies

including safe injection sites (also known as supervised injection facilities), places where people who inject drugs can do so
under medical supervision and without police harassment and be referred to other services. See British Columbia Ministry of
Health Services, “Insite Supervised Injection Site,” (undated), http://supervisedinjection.vch.ca/ (accessed July 30, 2016).

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judicial monitoring and supervision, as an alternative to incarceration, with the goal of
preventing “drug use relapse and criminal recidivism.”546
Since the first drug court in the US opened in Florida in 1989, the model has spread
rapidly. By December 2014, there were more than 3,000 drug courts nationwide, offering
eligible defendants court-supervised treatment in cases where dependence is judged to be
at the root of the offense.547 Officials such as former Governor Rick Perry of Texas often
speak proudly of their diversion of defendants into drug courts.548 US officials have even
promoted drug courts internationally, as an alternative to strict prohibition.549
A thorough assessment of drug courts is beyond the scope of this report. We did not
undertake a full investigation of drug courts in the US and recognize that drug courts, often
part of broader initiatives aimed at reforming the justice system, reducing incarceration,
and promoting safer neighborhoods, seek to address many of the same concerns outlined
in this report.
Yet the basic premise of drug courts is inherently problematic for people charged with
nothing more serious than drug possession: Drug courts remain squarely within the
criminal justice system and are premised on criminalization; they are not an alternative to
it. Many continue to impose punishment for personal drug use and operate in ways that
raise other human rights concerns, including by placing health decisions in the hands of

546 National Institute of Justice, Drug Courts, (undated), http://www.nij.gov/topics/courts/drug-courts/pages/welcome.aspx
(accessed June 20, 2016).
547 Ibid.
548 See Walt Nett, “Gov. Perry says drug court program matches Texas values,” April 3 2014, Lubbock Avalanche-

Journal, http://lubbockonline.com/local-news/2014-04-02/gov-perry-says-drug-court-program-matches-texasvalues#.V2w4YdIrKUk (accessed June 23, 2016); Matt Arco, “Christie pitches crime, drug addiction plan at 2016 campaign
stop in Camden,” July 17, 2015, NJ.com, http://www.nj.com/politics/index.ssf/2015/07/christie_criminal_justice_reform
_speech.html (accessed June 23, 2016); Barack Obama, Remarks by the President at the NAACP Conference, July 14, 2015,
The White House, Office of the Press Secretary, “Remarks by the President at the NAACP Conference,” July 14 2015,
https://www.whitehouse.gov/the-press-office/2015/07/14/remarks-president-naacp-conference (accessed June 23, 2016);
Hillary Clinton, 2016 NBC Democratic Debate, Jan 17, 2016, http://www.ontheissues.org/2016/Hillary_Clinton_
Drugs.htm (accessed June 23, 2016).
549 See Rory Watson, “US Official Preaches Benefits of 'Drug Courts' in Curbing Misuse,” March 12, 2015, British Medical

Journal, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC554064/ (accessed June 23, 2016).

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criminal judges, arbitrarily limiting access to evidence-based drug treatment options, and
punishing people for relapses that are a normal part of drug dependence.550

The US Drug Court Model
Some form of drug court was in operation in each of the states we visited, although their
target populations, criteria of participation, and methods varied greatly.551
As of 2012, the majority of drug courts operated post-adjudication—in other words, after a
defendant pled guilty.552 Whether a criminal conviction is ever formally recorded, and if so,
when, varies by jurisdiction. In some jurisdictions, the judge does not enter a conviction
following the guilty plea unless the person fails drug court. In others, convictions are
entered but if defendants complete the requirements of drug court programs their
sentences are deferred, modified, suspended, or the conviction is expunged.553 In drug
courts we visited in Louisiana, participation was simply a condition of probation—and
failure to complete the drug court program meant revocation of probation and imposition
of a prison term.554
Entry into drug court is highly selective. In many programs, the defendant must have little
to no prior criminal history. Some programs are available only for first-time offenses—a
requirement of serious concern because it means the programs likely target people who
are not drug dependent and do not need treatment. In some jurisdictions we visited, a
person could be admitted only upon the approval or recommendation of the prosecutor.555

550 For the broader effects of the drug court movement

on the criminal justice system and incarceration, see Jessica Eaglin,
“The Drug Court Paradigm,” American Criminal Law Review, vol. 53, no. 595, August 10, 2016.

551 In Florida and Louisiana, we observed drug court in two jurisdictions,

attended drug court programming with counselors
in another jurisdiction, and spoke with drug court judges and participants, separately, in three jurisdictions.

552 For adults, almost 80 percent of drug courts had post-plea “point of entry.” Including drug courts designed for juveniles

(23 percent of all drug courts) brings the total post-plea to 73 percent. Bureau of Justice Statistics, “Census of ProblemSolving Courts, 2012,” September 2016, http://www.bjs.gov/content/pub/pdf/cpsc12.pdf (accessed September 15, 2016),
Appendix Table 11.
553 Justice Policy Institute, “Addicted to Courts: How a

Growing Dependence on Drug Courts Impacts People and
Communities,” March 2011, http://www.justicepolicy.org/uploads/justicepolicy/documents/addicted_to_courts_final.pdf
(accessed June 24, 2016), pp. 2-3.

554 Louisiana law stipulates that defendants accepted into the drug probation program waive their right to a trial and must

enter a guilty plea. The period of supervision must be at least 12 months, and defendants may be ordered to serve a prison
sentence if they do not successfully finish the program. LA Rev. Stat. sec. 13:5301.
555 Eligibility varies based on the specific drug court; some require that it be a first offense, and most require that the offense

be non-violent. See, for example, Florida Supreme Court Task Force on Treatment-Based Drug Courts, “Florida’s Adult Drug

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Drug courts typically require frequent scheduled and random drug tests, court
appearances, group sessions and classes, and meetings with case managers or
counselors. In some jurisdictions, participants are required to pay for these activities.556 In
some cases, it can take years to successfully complete drug court. One drug court judge
told us he had had defendants give up and ask to be sentenced to jail because drug court
was too hard.557 Other defendants simply fail to meet the requirements.558
Substantial research has been done on whether drug courts are “successful.” These
analyses usually measure success in terms of abstinence and absence of rearrest.559
However, many of the evaluations initially used to garner support for drug courts have
been questioned, due in part to the courts’ methods (such as only admitting those who are
most likely to be “successful” in the program) and lack of acceptance of proven and
clinically-indicated medical treatments.560

Human Rights Concerns
Drug courts raise several rights concerns, some of which have been examined by others
in detail.

Court: Recommended Practices,” April 2007, http://www.flcourts.org/core/fileparse.php/260/urlt/toolkit.pdf (accessed
June 24, 2016), p. 4.
556 See, for example, 11th Judicial Circuit Adult Drug Court, St. Charles County, “Program Manual,” April 25, 2013. Participants
are required to pay for assessment, submit a $200 payment when they start the program, pay monthly drug court fees, and
submit monthly payments for drug testing (and pay a $25 for retesting if a sample is diluted).
557 Human Rights Watch interview with Judge Craig Marcotte, Shreveport, February 4, 2016.
558 According to a 2011 GAO report, completion rates range from 15 percent to 89 percent. United States Government

Accountability Office, “Adult Drug Courts,” GAO-12-53, December 2011, http://www.gao.gov/assets/590/586793.pdf
(accessed June 24, 2016), p. 20.
559 National Association of Criminal Defense Lawyers, “America’s Problem-Solving Courts: The Criminal Costs of Treatment

and the Case for Reform,” September 2009, p. 47; Ojmarrh Mitchell et al., “Assessing the effectiveness of drug courts on
recidivism: A meta-analytic review of traditional and non-traditional drug courts,” Journal of Criminal Justice, vol. 40 (2012),
pp. 60-71; Douglas B. Marlowe, “Research Update on Adult Drug Courts,” National Association of Drug Court Professionals,
December 2010, http://www.nadcp.org/sites/default/files/nadcp/Research%20Update%20on%20Adult%20Drug%20
Courts%20-%20NADCP_1.pdf (accessed August 1, 2016), pp. 1-2 (“In addition to significantly less involvement in criminal
activity, the Drug Court participants also reported significantly less use of illegal drugs and heavy use of alcohol”).
560 See, for example, Joanne Csete and Denise Tomasini-Joshi, “Drug Courts: Equivocal Evidence on a Popular Intervention,”

Open Society Foundations, February 2015, https://www.opensocietyfoundations.org/sites/default/files/drug-courtsequivocal-evidence-popular-intervention-20150518.pdf (accessed August 1, 2016); Nastassia Walsh, “Addicted to Courts:
How a Growing Dependence on Drug Courts Impacts People and Communities,” Justice Policy Institute, March 2011,
http://www.justicepolicy.org/uploads/justicepolicy/documents/addicted_to_courts_final.pdf (accessed August 1, 2016).

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First, because the alternative to drug court participation is typically criminal prosecution or
incarceration, decisions to participate are not fully voluntary. A fundamental principle of
medical ethics is that medical treatment should only be provided with full, voluntary, and
informed consent. And because most drug courts require some kind of treatment program,
defendants, whatever the extent of their drug use, may be pressured into unwanted and/or
unnecessary medical care, in violation of the right to health. Some may not need it: Judge
Knight, who used to run a drug court in St. Tammany Parish, Louisiana, acknowledged that
“not everyone with three cocaine convictions is an addict or even dependent.”561
Where drug court is available only to people facing charges for the first time, higherincome and white defendants are more likely to be enrolled, even without any
discriminatory intent on the part of officials involved, because Black people, Latinos, and
the poor are more likely to be arrested and prosecuted for drug possession. According to a
2008 survey, 21 percent of drug court participants nationwide were Black (though Black
people made up 35 percent of drug offense arrestees), and 10 percent were Latino.562
When participants relapse or fail to complete the program, drug courts can lead them to
spend more time in jail than they would have spent had they gone through the normal
courtroom process—also imposing greater financial costs on the court system due to
additional proceedings and incarceration costs.563 This is particularly problematic for
561 Human Rights Watch interview with Judge William J. Knight, Covington, January 28, 2016.

A number of drug court
personnel in various states told us some programs were more carefully tailored, so that “high risk” and “high need” people
would get different treatment than people who just recreationally or socially use. In 2015, New York passed a law to authorize
“eligible defendants, in the judicial diversion program who need treatment for opioid abuse or dependence, to receive
certain medically prescribed treatment therefor.” NY CPL sec. 216.05. See also Joanne Csete and Holly Catania, “Methadone
treatment providers’ views of drug court policy and practice: a case study of New York State,” Harm Reduction Journal, vol. 10
(2013), pp. 1-9; Harlan Matusow et al., “Medication assisted treatment in US drug courts: Results from a nationwide survey of
availability, barriers and attitudes,” Journal of Substance Abuse Treatment, vol. 44 (2013), pp. 473-480.
562 West Huddleston and Douglas B. Marlowe, “Painting the Current Picture: A National Report on Drug Courts and Other

Problem-Solving Court Programs in the United States,” Bureau of Justice Assistance, National Drug Court Institute, July 2011,
http://www.ndci.org/sites/default/files/nadcp/PCP%20Report%20FINAL.PDF (accessed June 24, 2016), p. 30. Several
studies have found that fewer Black and Latino participants successfully complete drug court programs than white
participants. See, for example, Shelli B. Rossman et al., “The Multi-Site Adult Drug Court Evaluation: The Impact of Drug
Courts, Volume 4,” Urban Institute, Justice Policy Center, December 2011, https://www.ncjrs.gov/pdffiles1/nij/
grants/237112.pdf (accessed June 24, 2016), pp. 38-39. However, successful completion depends not only on the drug court
participant but also the judge and other program officials who measure “success.”
563 See Joanne Csete and Denise Tomasini-Joshi, “Drug Courts: Equivocal Evidence on a Popular Intervention,” Open Society

Foundations, February 2015, https://www.opensocietyfoundations.org/reports/drug-courts-equivocal-evidence-popularintervention (accessed June 20, 2016), p. 9 (“If the person ‘fails’ court-supervised treatment, he or she is likely to be returned
to the adversarial courts and, with a guilty plea on the record, may wind up with a harsher sentence than if he or she had
been able with the aid of counsel to mount a defense in the first place. A 2013 meta-analysis of what this means for

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people who suffer from drug dependence—precisely the population drug courts are
intended to help—because, as noted by one commentator, “relapsing is a natural and
expected occurrence for people with substance use disorders, yet drug courts currently
throw participants who relapse during treatment in jail, where violence is widespread and
treatment is virtually nonexistent.”564
Indeed, the drug court courtroom can feel like an area of hyper-paternalism.565 In
jurisdictions we visited, defendants were called in to meet with the judge sometimes several
times a month, and each defendant took a turn standing before the public gallery and
reporting on their dependence and abstinence. The judge asked questions, and—at least in
those courtrooms we observed—the defendant responded without the advice of counsel.
When a defendant failed to comply with the terms of the program in some way—for instance,
had a positive or “diluted” urinalysis, missed a class, or failed to appear for community
service—sanctions were imposed. In two courtrooms we observed, a group of defendants
waited to go to jail because they were being sanctioned, while the drug court judge chided
them and told them to watch what was done to the current defendant at the podium.566
While practitioners often insist that drug court is a “team effort,” defendants still risk
losing their liberty if they fail to comply with program expectations. It is cause for concern
whenever such defendants, without the advice of counsel,567 are induced to make
statements that result in jail time, community service, and other sanctions typically
imposed as criminal punishment.

incarceration outcomes, using data from 19 studies in the United States, concluded drug court participants in the
jurisdictions studied did not spend less time overall incarcerated than non-participants because of the long sentences
imposed on people who ‘failed’ the court-dictated treatment plan.”)
564 Daniel N. Abrahamson, “Drug courts are not the answer,” Justice Policy Institute, May 12, 2015,

http://www.justice

policy.org/news/9204 (accessed June 24, 2016).
565 In a report by a member of the National Association of Drug Court Professionals, incentives and sanctions are referred to
as “the carrot and the stick.” (italics in original) The author explains: “Balance positive reinforcement with punishment to
reduce undesired behaviors and replace them with desired prosocial behaviors.” Douglas B. Marlowe, “Behavior
Modification 101 for Drug Courts: Making the Most of Incentives and Sanctions,” National Drug Court Institute, September
2012, http://www.ndci.org/sites/default/files/BehaviorModification101forDrugCourts.pdf (accessed June 24, 2016).
566 Human Rights Watch observation of drug courts in Florida and Louisiana; Human Rights Watch interviews with scores of

defense attorneys and defendants in Florida, Louisiana, and Texas.
567 Even if a public defender is assigned to the courtroom, this does not

suffice unless the defender knows the details of the
specific case at hand and consults with the defendant before the defendant speaks. In one courtroom, a drug court
participant told us the judge prohibited defense attorneys from entering. Human Rights Watch phone interview with Jessica
Coburn, Louisiana, August 12, 2016.

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Finally, by requiring treatment within the court system—managed ultimately by a judge
trained in law, not medicine—some drug courts provide treatment that is inappropriate
and inconsistent with the right to health. For example, some programs are over-inclusive,
trying to treat marijuana defendants with a model designed for cocaine or opiate
dependence.568 Others have denied participants access to medication-assisted therapies,
such as buprenorphine and methadone treatment, even though decades of research show
they are the best option for treating opioid dependence. Michael Botticelli, director of the
White House Office of National Drug Control Policy, and the Substance Abuse and Mental
Health Services Administration (part of the US Department of Health and Human Services)
announced in 2015 that no federal funds would be available to drug courts that deny
access to such therapies.569
If carefully implemented to avoid some of the concerns above, drug courts may provide a
useful alternative for addressing acts that the state may legitimately criminalize—for
example, property crimes committed in connection with drug dependence. But drug courts
are inappropriate in cases of drug use and possession, where the person caused no harm
to others, since states should decriminalize those offenses entirely.
The drug court professionals we met appeared to be well intentioned and truly wanted to
help people struggling with drug dependence. It is positive that states and the federal
government are trying to keep many people who use drugs out of jail. But the priority
should be to ensure that drug dependence treatment and social support services are
available and affordable in communities, so that people who want treatment can get it at
their earliest opportunity—without criminal sanctions hanging over their heads.

568 See, for example, Csete and Tomasini-Joshi, “Drug Courts: Equivocal Evidence on a Popular Intervention," Open Society

Foundations, p. 10; Drug Policy Alliance, “Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use,”
March 22, 2011, http://www.drugpolicy.org/sites/default/files/Drug%20
Courts%20Are%20Not%20the%20Answer_Final2.pdf (accessed August 1, 2016).
569 In 2015, the Huffington Post undertook an investigation that revealed a number of drug courts in Kentucky were denying
these treatments. In a call with reporters, the White House responded directly and the federal government amended the
conditions of federal funding to drug courts. Jason Cherkis, “Dying to Be Free: There’s A Treatment For Heroin Addiction That
Actually Works. Why Aren’t We Using It?” Huffington Post, January 28, 2015, http://projects.huffingtonpost.com/dying-to-befree-heroin-treatment (accessed August 21, 2016); Ryan Grim, “Federal Government Set To Crack Down On Drug Courts That
Fail Addicts,” Huffington Post, February 5, 2015, http://www.huffingtonpost.com/2015/02/05/drug-courtssuboxone_n_6625864.html (accessed August 21, 2016); Substance Abuse and Mental Health Services Administration,
“SAMHSA Treatment Drug Courts: Request for Applications, Part 1,” 2015, http://www.samhsa.gov/sites/default/files/
grants/pdf/ti-15-002-modified-due.pdf (accessed August 21, 2016), pp. 9-10.

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XI. The Way Forward: A Call for Decriminalization
Human Rights Watch and the American Civil Liberties Union call upon the US federal and
state governments to decriminalize all drug use and possession of drugs for personal use.
Decriminalization of drug use and possession for personal use means the complete
removal of criminal sanctions for use and possession.570
We are not alone in this call. A number of human rights and public health bodies have
urged states to decriminalize. These bodies include the World Health Organization, the
United Nations Office of the High Commissioner for Human Rights, the Joint United Nations
Programme on HIV/AIDS (UNAIDS), the Organization of American States, the International
Federation of the Red Cross and Red Crescent Societies, the Global Commission on Drug
Policy, and the American Public Health Association.571 In April 2016 the United Nations
General Assembly held a Special Session (UNGASS) on the World Drug Problem, to
convene a global debate about the costs of the current prohibitionist framework for
dealing with drugs.572 In advance of the session, several UN special rapporteurs issued a

570 As explained in the methodology section, decriminalization would still leave room for civil and administrative sanctions

such as monetary fines. There are strong arguments in favor of depenalization as well. One step further beyond
depenalization is legalization, in which a state taxes and regulates rather than prohibits, as all US states do with alcohol.
571 See World Health Organization, “Policy brief: H.I.V. prevention, diagnosis, treatment and care for key populations:

consolidated guidelines July 2014,” (Geneva: World Health Organization, 2014),
http://apps.who.int/iris/bitstream/10665/128048/1/9789241507431_eng.pdf (accessed June 21, 2016), p. 91; United
Nations High Commissioner for Human Rights, “Study on the Impact of the World Drug Problem on the Enjoyment of Human
Rights,” September 4, 2015,
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_65_E.docx (accessed June
21, 2016); Joint United Nations Programme on HIV/AIDS (UNAIDS), “The Gap Report,” July 10,
2014, http://files.unaids.org/en/media/unaids/contentassets/documents/unaidspublication/2014/UNAIDS_Gap_report_e
n.pdf (accessed June 21, 2016); Organization of American States, "The Drug Problem in the Americas: Analytical Report,"
2013, http://www.oas.org/documents/eng/press/introduction_and_analytical_report.pdf (accessed June 21, 2016);
International Federation of Red Cross and Red Crescent Societies, Statement to the United Nations Commission on Narcotic
Drugs, 55th Session, http://www.ifrc.org/en/news-and-media/opinions-and-positions/speeches/2012/to-the-commissionon-narcotic-drugs-55th-session/ (accessed June 21, 2016); Global Commission on Drug Policy, “Taking Control: Pathways to
Drug Policies That Work,” 2014, http://www.gcdpsummary2014.com/ (accessed June 21, 2016).
In the United States, the American Public Health Association has called to “eliminate federal and state criminal penalties
and collateral sanctions for personal drug use and possession offenses and avoid unduly harsh administrative penalties,
such as civil asset forfeiture.” American Public Health Association, “A.P.H.A. Policy Statement 201312: Defining and
Implementing a Public Health Response to Drug Use and Misuse,” 2013.
572 See Special Session of the United Nations General Assembly on the World Drug Program (UNGASS 2016),

https://www.unodc.org/ungass2016/en/about.html.

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joint letter urging decriminalization and depenalization of drug use and possession.573
Decriminalization is not an untested proposition. A number of countries around the world
do not criminalize drug use or possession for personal use under the law, or do not enforce
criminal laws in practice. For example, personal drug use and possession are not
criminalized by law in Portugal, Spain, the Czech Republic, and Costa Rica.574 As examined
below, Portugal’s decriminalization of all drugs in 2001, and the more recent experience of
marijuana decriminalization in many states across the United States, provide forays into
the decriminalization space and show that harms from drug use have not increased as a
result. To the contrary, Portugal’s model reveals that decriminalization may actually
protect and promote health much more effectively than a criminal justice approach: for
example, Portugal has seen decreased rates of overdose deaths.
While not breaking with the current criminalization framework, the Obama Administration
has articulated some understanding of the need for alternatives and reforms. In its nonpaper for the 2016 UNGASS, the US government recommended that the summit’s outcome
document “declare that people who use drugs should receive support, treatment and
protection, rather than be punished” and “encourage the consideration of alternatives to
incarceration and other criminal-justice reform for drug-related offenses.”575 Michael
Botticelli, director of the White House Office of National Drug Control Policy, has

573 Joint Open Letter by the UN Working Group on Arbitrary Detention; the Special Rapporteurs on extrajudicial, summary or

arbitrary executions; torture and other cruel, inhuman or degrading treatment or punishment; the right of everyone to the
highest attainable standard of mental and physical health; and the Committee on the Rights of the Child, on the occasion of
the United Nation General Assembly Special Session on Drugs, April 15, 2016.
574 Steve Rolles and Niamh Eastwood,

“Drug Decriminalisation Policies in Practice: A Global Summary,” September 2012,
https://www.hri.global/files/2012/09/04/Chapter_3.4_drug-decriminalisation_.pdf (accessed September 7, 2016), pp. 161162; The Law Library of Congress, Global legal Research Center, "Decriminalization of Narcotics,” July 2016,
https://www.loc.gov/law/help/decriminalization-of-narcotics/decriminalization-of-narcotics.pdf (accessed September 6,
2016); Tomás Zábransky et al., “Impact Analysis Project of New Drugs Legislation: Summary Final Report,” Office of the Czech
Government, Secretariat of the National Drug Commission, 2001,
http://www.druglawreform.info/images/stories/documents/Czech_evaluation_2001_PAD_en.pdf (accessed September 5,
2016). For more on other countries that have instituted a decriminalization model, see Niamh Eastwood, Edward Fox, and Ari
Rosmarin, “A Quiet Revolution: Drug Decriminalisation Across the Globe,” Release, March 2016, http://www.release.org.uk/
sites/default/files/pdf/publications/A%20Quiet%20Revolution%20-%20Decriminalisation%20Across%20the%20Globe.pd
f (accessed July 26, 2016).
575 Human Rights Watch, Comments on the US Non-Paper for 2016 UNGASS on the World Drug Problem, August 24, 2015,

https://www.hrw.org/news/2015/08/24/comments-us-non-paper-2016-ungass-world-drug-problem.

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emphasized public health approaches to problematic drug use.576 And in its 2017 budget
request, the Obama Administration increased the amounts for prevention and treatment
programs, so that, in Botticelli’s words, the government would for the first time be
“funding public health and public safety efforts at near-identical levels.”577
Decriminalization, coupled with strong investment in harm reduction measures, is best
placed to achieve these important public health goals.

Portugal’s Successful Decriminalization of All Drugs
In 2001, Portugal decriminalized the acquisition, use, and possession of illicit drugs in
quantities up to a 10-day supply. Drug trafficking and sales still remain criminal offenses
and are still prosecuted, but the person who uses is not criminalized.578
Importantly, Portugal did not simply decriminalize personal use and possession; it
invested substantial resources into treatment and harm reduction services as well. Under
the Portuguese model, when police find people in possession of drugs, they give them an
administrative violation ticket, akin to a traffic ticket in the US. The person is then required
to meet with a commission, made up of a social worker, a medical professional, and a
lawyer, that is designed to respond to any health needs. If the person is drug dependent,
the commission makes a referral to a treatment program where attendance is voluntary. If
the person is not drug dependent, usually nothing more than payment of the fine is
required. Criminal sanctions are never imposed for personal use or low-level possession.579
576 See, for example, Michael Botticelli, “Remarks to the Plenary Session of the 59th UN Commission on Narcotic Drugs,”

March 14, 2016, as prepared for delivery, https://www.whitehouse.gov/the-press-office/2016/03/14/ondcp-directormichael-botticelli-remarks-plenary-session-59th-un (accessed July 31, 2016).
577 The White House, “Fact Sheet: Administration’s Drug Control Budget Represents Balanced Approach to Public Health and

Public Safety,” February 9, 2016, https://www.whitehouse.gov/the-press-office/2016/02/09/fact-sheet-administrationsdrug-control-budget-represents-balanced (accessed July 20, 2016); Office of National Drug Control Policy, “National Drug
Control Budget: FY 2017 Funding Highlights,” February 2016, https://www.whitehouse.gov/sites/default/files/ondcp/pressreleases/fy_2017_budget_highlights.pdf (accessed July 20, 2016).
578 Law No. 30/2000 of November 29, entered into effect on July 1, 2001. See also Glenn Greenwald, Drug Decriminalization

in Portugal: Lessons for Creating Fair and Successful Drug Policies, The Cato Institute, April 2, 2009,
http://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drugpolicies (accessed June 21, 2016).
579 Ibid. See also Drug Policy Alliance, Drug Decriminalization in Portugal: A Health-Centered Approach, February 2015,

https://www.drugpolicy.org/sites/default/files/DPA_Fact_Sheet_Portugal_Decriminalization_Feb2015.pdf (accessed June
17, 2016); Open Society Foundations, Drug Policy in Portugal: Decriminalizing Drug Use, June 2011, https://www.open
societyfoundations.org/sites/default/files/drug-policy-in-portugal-english-20120814.pdf (accessed June 17, 2016); Carl Hart,
High Price: A Neuroscientist’s Journey of Self-Discovery That Challenges Everything You Know About Drugs and Society, (New
York: Harper Perennial, 2012), pp. 324-325.

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The results of Portugal’s decriminalization so far indicate that public safety is much better
served by a public health rather than criminal justice response to problematic drug use.580
According to a 2010 evaluation,581 rates of overall use in the population have stayed low—
below the European average, and far lower than rates in the United States—while use by
adolescents and use by people deemed to be drug dependent or who inject has declined.
More than 80 percent of cases before the commissions are deemed non-problematic and
dismissed without sanction. The number of people receiving drug treatment jumped by
more than 60 percent after decriminalization. Deaths caused by drug overdoses
decreased from 80 deaths in 2001 to 16 deaths in 2012.582 Decriminalization has also not
triggered so-called “drug tourism,” a 2009 UN study found. 583 According to Fernando
Negrão, a former police chief and then-head of Portugal’s Institute on Drugs and Drug
Addiction, “There were fears Portugal might become a drug paradise, but that simply
didn’t happen.”584
In 2014 researchers studied changes in the social cost of drug use in Portugal, which
they defined as “a sum of public expenditure on drugs, private costs (incurred by
individuals who use drugs) and costs incurred by society (indirect costs, such as lost
productivity).”585 They found that the per capita social cost of drug use decreased an
overall 18 percent since decriminalization. The study authors attribute this decrease
largely to the reduction in legal system costs associated with criminalizing drug use and
to savings in health-related costs resulting from decreased problematic drug use.586

580 Caitlin Elizabeth Hughes and Alex Stevens, “What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?”

British Journal of Criminology, vol. 50, no. 6 (2010).
581 This evaluation was the first on Portugal’s decriminalization to be appear in an English peer-reviewed journal and was

based on examination, over a period of years, of all the available Portuguese evaluative documents as well as a range of
interviews. Ibid.
582 Ibid; Drug Policy Alliance, Drug Decriminalization in Portugal: A Health-Centered Approach.
583 United Nations Office on Drugs and Crime, “World Drug Report 2009,” p. 168. https://www.unodc.org/documents/

wdr/WDR_2009/WDR2009_eng_web.pdf (accessed June 17, 2016).
584 Quoted in Alison Roberts, “How Portugal Dealt with Drug Reform,” BBC News, January 22, 2004,

http://news.bbc.co.uk/2/hi/europe/3421523.stm (accessed June 17, 2016).
585 Ricardo Goncalves, Ana Lourenco, and Sofia Nogueira da Silva, “A Social Cost Perspective in the Wake of the Portuguese

Strategy for the Fight against Drugs,” International Journal of Drug Policy, vol. 26 (February 2015).
586 Ibid.

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US States’ Experiments with Marijuana Decriminalization
In the United States, four states and the District of Columbia have legalized possession of
marijuana for personal use by persons 21 and older. In November 2012 Colorado and
Washington became the first states to pass laws legalizing personal possession and
regulating marijuana production, distribution, and sales. Voters in Alaska, Oregon, and the
District of Columbia followed suit in 2014. An additional 11 states have completely
decriminalized personal marijuana possession, at least formally,587 treating it merely as an
administrative or civil infraction, much like a traffic ticket.588 Five more states treat
marijuana possession as a fine-only misdemeanor.589 Because no jail time attaches, some
advocates consider these five states to have decriminalized as well.590
In 2013, the US Department of Justice gave the go-ahead for state-level decriminalization
of marijuana, issuing guidance to federal prosecutors not to interfere with states’
implementation of laws legalizing marijuana, so long as they do not interfere with certain
federal priorities. In fact, the deputy attorney general noted that a regulated marijuana

587 For states that still criminalize marijuana possession “in public view,” enforcement can still be harsh and widespread,

and sometimes rights violative. For example, in New York City, very often marijuana possession was “in public view” only
after police officers unlawfully pulled it out of the person’s pocket. Harry C. Levine and Loren Siegel, “Marijuana Madness:
The Scandal of New York City’s Racist Marijuana Possession Arrests,” in . John A. Eterno , ed., The New York City Police
Department: The Impact of Its Policies and Practices (New York: CRC Press, 2015).
588 These states are California (CA Health & Safety Code sec. 11357), Connecticut (CT Gen. Stat. sec. 21a-279), Delaware (16

DE C. secs. 4714, 4764), Maine (17-A M.R.S. secs. 1102, 1107-A; 22 M.R.S. sec. 2383), Maryland (MD Crim. Law Code Ann.
secs. 5-402, 5-601), Massachusetts (ALM GL ch. 94C secs. 32L, 34), Mississippi (MS Code Ann. sec. 41-29-139), Nebraska
(RRS NE sec. 28-416), New York (NY CLS Penal secs. 221.05, 221.10), Rhode Island (RI Gen. Laws sec. 21-28-4.01), and
Vermont (18 VSA sec. 4230). Each of these states has a certain weight threshold up to which possession is decriminalized. Of
the 15, five states have thresholds between 10 and 15 grams (Connecticut, Maryland, North Carolina, Rhode Island, and
Vermont), seven states have thresholds between 25 and 30 grams (California, Delaware, Massachusetts, Mississippi,
Nebraska, Nevada, and New York), and three states have thresholds between 40 and 100 grams (Maine, Minnesota, and
Ohio). Additionally, Connecticut, Mississippi, Nebraska, New York, and Vermont treat subsequent instances of possession
more harshly, increasing fines and sometimes imposing jail sentences. Furthermore, in some of these states, possession or
use of marijuana in public view is still criminalized. See, for example, the experience of New York City in Harry C. Levine and
Loren Siegel, “Marijuana Madness: The Scandal of New York City’s Racist Marijuana Possession Arrests,” in John A. Eterno,
ed., The New York City Police Department, p. 127.
589 These states are Minnesota (MN Stat. secs. 152.025, 152.027), Missouri (MO Rev. Stat. secs. 195.017, 195.202), Nevada

(NV Rev. Stat. Ann. secs. 193.140, 453.336, 453.411), North Carolina (NC Gen. Stat. secs. 15A-1340.23, 90-95), and Ohio (ORC
Ann. sec. 2925.11).
590 See Drug Policy Alliance, “Why Marijuana Decriminalization is Not Enough,” February 10, 2016, http://www.drug

policy.org/resource/why-marijuana-decriminalization-not-enough (accessed June 17, 2016); NORML, “States That Have
Decriminalized,” (undated) http://norml.org/aboutmarijuana/item/states-that-have-decriminalized (accessed June 17,
2016). However, if people still have a criminal record for the misdemeanor, it is not true decriminalization.

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market may further federal priorities of combatting organized crime.591 The federal
government should take the same approach with regard to other drugs, allowing states the
freedom to develop and experiment with new models of decriminalization.
States that have legalized marijuana have realized substantial cost savings and created
new revenue. For example, one year after retail sales began, tax revenue from marijuana
reached $41 million in Colorado and almost $83 million in Washington State, along with
considerable revenues from licenses and fees. There was no increase in violent crime or
traffic fatalities following legalization.592 There was also no reported increase in rates of
marijuana use among children.593
Although trend lines in the states that have recently decriminalized are still taking shape,
there are millions of dollars to be saved simply by not making arrests. The American Civil
Liberties Union has estimated that in 2010 the annual fiscal cost of marijuana possession
enforcement in the United States was $3.614 billion for police, judicial and legal, and
corrections expenditures and that an average misdemeanor arrest cost, at minimum,
between $1,000 and $2,000.594 In 2015, there were approximately 574,640 arrests for

591 US Department of Justice, Memorandum from James M. Cole, Guidance Regarding Marijuana Enforcement, August 29,
2013, https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (accessed June 18, 2016); Human Rights
Watch, “US: Federal Go-Ahead for Local Marijuana Laws,” August 30, 2013, https://www.hrw.org/news/2013/08/30/usfederal-go-ahead-local-marijuana-laws (accessed June 18, 2016). See Carrie Johnson, “DEA Rejects Attempt To Loosen
Federal Restrictions On Marijuana,” NPR, August 10, 2016, http://www.npr.org/2016/08/10/489509471/dea-rejects-attemptto-loosen-federal-restrictions-on-marijuana (accessed August 12, 2016).
592 In fact, the rates in both states declined. Drug Policy Alliance, “Marijuana Legalization in Washington After 1 Year of Retail
Sales and 2.5 Years of Legal Possession,” July 6, 2015, http://www.drugpolicy.org/sites/default/files/Drug_Policy_
Alliance_Status_Report_Marijuana_Legalization_in_Washington_July2015.pdf (accessed June 6, 2016); Drug Policy Alliance,
“Marijuana Legalization in Colorado After One Year of Retail Sales and Two Years of Decriminalization,” January 5, 2015,
http://www.drugpolicy.org/sites/default/files/Colorado_Marijuana_Legalization_One_Year_Status_Report.pdf (accessed
June 17, 2016).
593 Ibid. See also Seth Ammerman, Sheryl Ryan, William P. Adelman, “The Impact of Marijuana Policies on Youth: Clinical,

Research, and Legal Update,” American Academy of Pediatrics, March 2015, vol. 135, issue 3, http://pediatrics.
aappublications.org/content/135/3/e769.full-text.pdf (“Decriminalization of recreational use of marijuana by adults has
also not led to an increase in youth use rates of recreational marijuana”); Colorado Department of Education, Colorado
Department of Public Health and Environment, Colorado Department of Human Services-Office of Behavioral Health, “Healthy
Kids Colorado Survey,” 2015, https://www.colorado.gov/pacific/sites/default/files/PF_Youth_HKCS-2015-Exec-Summary.pdf
(“Four out of five Colorado high school students have not used marijuana in the last 30 days, a rate that remains relatively
unchanged since 2013. Colorado does not significantly differ from the national average in lifetime or current marijuana use”).
594 American Civil Liberties Union, The War on Marijuana in Black and White, p. 75, 71.

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marijuana possession nationwide, more arrests than for all violent crimes combined.595 This
translates into approximately one marijuana possession arrest every 55 seconds, or over
$1,000 spent every minute.

595 Federal Bureau of Investigation, 2015 Crime in the United States, Persons Arrested, https://ucr.fbi.gov/crime-in-the-

u.s/2015/crime-in-the-u.s.-2015/persons-arrested/persons-arrested (accessed September 27, 2016).

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Recommendations
The central recommendation of this report is that the US Congress and state legislatures
end the criminalization of personal use of drugs and possession of drugs for personal use.
This will require changes to federal and state law.
In the interim, within the existing legal framework, government officials at the local, state,
and federal levels should adopt the recommendations listed below to minimize the
imposition of criminal punishment on people who use drugs and to mitigate the harmful
collateral consequences and social and economic discrimination experienced by those
convicted of drug possession and by their families and communities. At the same time,
officials should ensure that education on the risks and potential harms of drug use and
affordable, evidence-based treatment for drug dependence are available outside of the
criminal justice system.

To State Legislatures
Decriminalize the personal use and possession for personal use of all drugs. Until
decriminalization has been achieved, pursue the following:
•

Make drug possession a ticketable offense or, at the very least, a
misdemeanor, regardless of the nature of the drug, drug quantity or weight,
and number of prior convictions.

•

Establish a strong presumption for personal recognizance (PR) bonds/release
on own recognize (RORs) where drug possession or paraphernalia are the top or
only charges.

•

Establish a strong presumption of non-incarceration sentences for drug
possession. End mandatory minimum sentence schemes to restore to judges
the ability to impose proportionate sentences in all drug possession cases.

•

Amend habitual offender laws to exclude drug possession entirely, such that 1)
possession charges cannot be enhanced based on prior convictions, and 2)
possession convictions cannot be used to enhance another charge.

•

Support a public health approach to drug use to minimize the adverse
consequences of drug use, to reduce drug dependence, and to support safe

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habits around drug use and increased access to emergency care, including
syringe exchange programs, Good Samaritan legislation, standing orders for
naloxone, and other harm reduction measures. Appropriate sufficient funds to
provide access to voluntary, affordable drug treatment programs, in the
community as well as in correctional facilities, for all who seek it.
•

Appropriate sufficient funds to enable public defender offices and appointed
counsel to zealously represent all criminal defendants who cannot secure
other representation.

•

Provide sufficient funding to courts to eliminate their reliance on user fees,
which incentivizes the imposition of crippling fees, court costs, and
assessments on poor people sentenced for drug offenses.

•

Enact legislation or regulations to substantially limit the circumstances in
which the use or possession for personal use of drugs is grounds for the
revocation of pretrial supervision, probation, or parole.

•

Amend state statutes so that no adverse consequences attach by law to
convictions for drug possession, including for SNAP, TANF, and subsidizedhousing benefits.

•

If not already in place, pass “ban the box” measures for government
employment. Pass laws prohibiting private employers and landlords from
discriminating on the basis of drug possession convictions.

•

Mandate and fund data systems to track—by race, age, drug, and location—
arrests and convictions for drug possession, while being careful to protect
individual privacy rights.

•

Include a retroactivity provision in all future reforms to drug use and
possession laws, and, to the extent possible, apply the terms of already
enacted reforms to decrease the drug sentences of individuals sentenced for
the same offenses prior to the reforms.

To Sheriffs and Police
To the extent permitted by law and by limits on the appropriate exercise of discretion,
decline to arrest individuals for personal use of drugs, including on possession and
paraphernalia charges. Even if there are legal grounds to believe that a person is in
possession of drugs for personal use, to the extent permitted by law decline to conduct

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searches for drugs with the purpose or intent of finding drugs that would warrant nothing
more than possession charges. Until then, if stops, frisks, searches, or arrests for drug
possession are made, pursue the following:
•

Charge individuals with the lowest-level offense supported by the facts, for
example, paraphernalia instead of possession.

•

Do not measure officer or department performance based on stop or arrest
numbers, and do not set quotas or provide incentives for numbers of stops,
frisks, searches, or arrests.

•

Work in conjunction with community members, drug treatment specialists, and
mental health professionals to explore alternatives to arrest.
Incentivize/reward officer actions that prioritize the health and safety of people
who use drugs.

•

Adopt model consent search policies that include requiring police to have
reasonable suspicion before seeking consent, and, irrespective of the outcome
of the search, requiring officers to provide a “receipt” documenting the
interaction. Require officers to specifically advise civilians of the potential
perils of consenting to search and their right to decline consent, and require
officers to secure written, audio recorded, or video recorded consent prior to
conducting a consent search.

•

On a regular basis, analyze and publish data on all consensual or nonconsensual stops, frisks, searches, observations, and interviews. The
published data should be broken down by race, gender, age, and the officer’s
basis for the encounter or action.

To State Prosecutors
Whenever possible, decline to bring charges related to personal use of drugs, including
possession and paraphernalia charges. If charges are brought, pursue the following.
To the extent permitted by law and by limits on the appropriate exercise of discretion, chief
prosecutors should institute office policies that direct prosecutors to:
•

Refrain from prosecuting trace or residue cases and from applying
habitual offender laws to drug possession cases or using possession
priors for enhancements.

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OCTOBER 2016

•

Seek only those charges that would yield a fair and proportionate sentence for
each individual defendant in light of the facts known about that defendant. For
plea deals, explicitly prohibit prosecutors from: 1) threatening higher sentences
to secure pleas from drug defendants and 2) amending the charge or seeking
enhancements to raise the sentence faced by a defendant solely because the
defendant refused to plead guilty.

•

Increase data collection and transparency regarding: 1) charges brought for
arrests for possession, 2) cases filed as possession, 3) cases filed as another
charge but disposed as possession, 4) cases in which the habitual offender law
was used in connection with a possession case, as either a prior or an
enhanced charge, and 5) the numbers of possession defendants held in pretrial
detention for failure to make bail.

To the extent permitted by law and by limits on the appropriate exercise of discretion,
individual prosecutors should:
•

Use lesser charges such as paraphernalia instead of possession charges where
the facts or law support it.

•

Cease to prosecute trace or residue cases and cases concerning fractions of
a gram.

•

Recommend bail be set in unsecured or partially secured bonds. Do not request
bail at an amount that a person is unable to pay. Do not press for bail in a form
or amount that is higher than reasonably necessary to ensure court appearance
or that is likely to result in the defendant’s pretrial detention.

•

In prescription pill cases, ensure every opportunity for investigation into the
existence of a valid prescription has been taken, and consider declining to
prosecute such cases where the quantity of pills is small.

•

Cease to prosecute possession with intent to distribute based only on
circumstantial evidence of cash present and/or large quantities of drugs, if
those quantities reasonably could have been bought in bulk for personal use.

•

Do not charge distribution or possession with intent to distribute, or threaten
to so charge, to obtain a simple possession plea. Where the evidence
available to the prosecutor suggests possession is for personal use only, do
not charge higher.

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•

Cease the practice of seeking habitual offender enhancements for drug
possession charges. Do not allow drug possession priors to serve as predicates
for enhancement of other charges. Ensure that defendants are aware of this in
plea negotiations.

•

Ensure all collateral consequences of a drug conviction, including for
immigration, are given appropriate consideration in plea negotiations and
applications for post-conviction relief.

•

Refrain from negotiating plea deals with drug possession defendants who have
not yet been appointed counsel.

To State Judges and Judiciaries
To the extent permitted by law and by limits on the appropriate exercise of discretion:
•

Eliminate the use of bond schedules for all offenses related to drug use,
including possession and paraphernalia.

•

Appoint counsel as soon as possible following arrest.

•

Except in extraordinary circumstances, release defendants on their own
recognizance if they are charged with nothing more than drug possession. Do
not detain a person simply based on roadside drug test results, if a laboratory
has not yet tested the drugs. If bond must be set, use discretionary authority
under current law to set bond in forms and amounts that defendants can
afford, eliminating money bail wherever possible and imposing the least
restrictive conditions to ensure public safety and future court appearance.
Ensure no defendant charged with possession is detained pretrial for inability
to pay or post bond.

•

Impose non-incarceration sentences for drug possession. Sentence defendants
at the bottom of the range and depart downward from statutory minimums as
permitted by state law.

•

Do not revoke probation or parole for drug use or for technical violations
related to drug dependence or poverty.

•

Ensure no fees for appointed counsel or other court fees are imposed on people
who are adjudged indigent. Ensure no person is incarcerated for inability to pay
court fines or fees.

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OCTOBER 2016

•

Increase data collection and transparency regarding case outcomes and
sentences for cases charged as drug possession and, where different, for cases
disposed as drug possession.

•

Require probation and parole officers to generate pre-sentence reports for all
drug possession cases and to include a collateral consequences section.

•

To the extent drug courts are employed, defer to drug treatment specialists on
all clinical questions. Treatment offered through drug courts should be
consistent with current best practice recommendations and include
medication-assisted therapy for people with opioid dependence. Participants
should never be failed from the program or sanctioned with jail time solely on
the basis of behavior that is a normal part of their medical condition, including
relapses and failed drug tests.

To State Probation Officers and Parole Boards
To the extent permitted by law and by limits on the appropriate exercise of discretion:
•

Do not charge a person on probation with a technical violation for using drugs
or for possessing drugs for personal use, especially where there may be drug
dependence involved.

•

Where a legal reform has decreased the sentences for certain offenses but has
not made the decreases retroactive, consider the newly decreased sentence
when determining an existing inmate’s parole eligibility.

To State Departments of Corrections and Local Jail Administrators
•

Ensure timely access to HIV prevention services and evidence-based drug
treatment, including access to medication-assisted therapies, such as
buprenorphine and methadone treatment, for inmates with opioid dependence.

To Other Local Government Entities
•

Enact ban-the-box laws for public and private employers and landlords and
take other appropriate action to prohibit them from discriminating on the basis
of a drug possession conviction.

EVERY 25 SECONDS

192

•

Design and implement public health initiatives to decrease the risks and
potential harms of drug use and ensure affordable voluntary treatment and
education for those who seek it.

To the Federal Government
Congress
Decriminalize the personal use of drugs, as well as possession of drugs for personal use.
Until then, pursue the following:
•

Appropriate sufficient funds to support evidence-based voluntary treatment
options and harm reduction services in the community.

•

Amend federal statutes so that no adverse consequences attach by law to
convictions for drug possession, including for SNAP, TANF, and
subsidized-housing.

•

Eliminate deportation based on convictions for simple drug possession, and
amend the drug offense bars to entering the US and gaining lawful
permanent resident status so that individuals are not barred for simple
possession of drugs.

Department of Justice
•

Provide training and clarification to state law enforcement agencies that federal
funding programs, such as those administered by the Bureau of Justice
Assistance, do not encourage or incentivize high numbers of arrests for drug
possession and that arrest numbers are not a valid measure of law
enforcement performance.

•

Condition any federal funding to law enforcement agencies on their enforcing a
ban on racial profiling and documenting their pedestrian and traffic stops,
arrests, and searches by race, ethnicity, and gender, designating money for
data collection if needed.

•

Direct the Bureau of Justice Statistics to report on racial disparities in arrests,
pretrial detention, incarceration sentences, and probation and parole for drug
possession cases nationwide, rather than classifying all offenses as
“trafficking” or “other.”

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OCTOBER 2016

•

Direct the Federal Bureau of Investigation to immediately begin keeping data
on Latinos arrested as part of the Uniform Crime Reports, rather than classifying
them as either white or Black.

•

Direct the Drug Enforcement Agency to remove marijuana from the list of
“schedule I” controlled substances under federal law, which is the most
restricted category of illicit drugs.

Department of Health and Human Services
•

Fund and encourage programs, including pilot programs, emphasizing public
health approaches to drug use.

Department of Housing and Urban Development
•

Amend HUD guidelines to take drug possession out of the “One Strike” policy.
Communicate to all public housing authorities (PHAs) and section 8 landlords
that receive HUD subsidies that drug possession or use convictions should not
be a bar to admission or a ground for eviction.

•

Work with the Department of Health and Human Services to provide resources
to PHAs and section 8 landlords on the availability of drug treatment in the
community for those tenants who seek it.

EVERY 25 SECONDS

194

Acknowledgments
This report was researched and written by Tess Borden, Aryeh Neier Fellow with the US
Program at Human Rights Watch and the Human Rights Program at the American Civil
Liberties Union. Brian Root, quantitative analyst at Human Rights Watch, performed detailed
data analysis and created the graphs in this report. Maya Goldman, US Program associate,
provided invaluable research assistance and, with W. Paul Smith, US Program coordinator,
assisted with final preparation of the report. A number of interns in the US Program at
Human Rights Watch helped research, organize, and check information for this report:
Madison Ordway, Harry Brown, Ginger Jackson-Gleich, Ishrat Mannan, and Brooke Sartin.
This report was reviewed at Human Rights Watch by Maria McFarland Sanchez-Moreno, US
Program co-director; Jamie Fellner, US Program senior advisor; Diederik Lohman, associate
director of the Health and Human Rights Division; Megan McLemore, Health and Human
Rights Division senior researcher; Christopher Albin-Lackey, senior legal advisor; and
Joseph Saunders, deputy program director. Alison Parker, US Program co-director,
provided guidance during the research phase. Fitzroy Hepkins, administrative manager,
Jose Martinez, administrative senior coordinator, and Olivia Hunter, photography and
publications associate, coordinated layout and production.
At the American Civil Liberties Union, this report was reviewed by Steven Watt, Human
Rights Program senior staff attorney; Ezekiel Edwards, Criminal Law Reform Project
director; Jason Williamson, Criminal Law Reform Project senior staff attorney; John Cutler,
advocacy and policy counsel; Nusrat Choudhury, Racial Justice Program senior staff
attorney; and Dennis Parker, Racial Justice Program director.
Joanne Csete, adjunct associate professor of public health at Columbia University,
provided comments on the summary and section X. Megan Price, executive director of the
Human Rights Data Analysis Group, reviewed the quantitative analyses presented
throughout the report.
This report draws upon the information, insights, and perspectives provided by numerous
practitioners and officials we interviewed. They directed us to cases, provided candid
descriptions of their work, argued ideas and interpretations with us, and sought to help us
195

OCTOBER 2016

understand their legal practice as they lived it. We are immensely grateful to each of them,
whether named in this report or not. At the same time, we are solely responsible for the
conclusions we have drawn from these interviews and other research. We also thank
staffers in the various government offices to which we made data requests, whose
commitment to freedom of information and transparency made this report richer.
Most importantly, Human Rights Watch and the American Civil Liberties Union wish to
thank each of the individuals who shared their stories with us and let us into their lives,
often during some of the darkest times. We carry their stories with us and are inspired by
their strength. This report would not have been possible without them.

EVERY 25 SECONDS

196

EVERY 25 SECONDS
The Human Toll of Criminalizing Drug Use in the United States
Every 25 seconds someone in the United States is arrested for possessing drugs for personal use. This amounts to more than
1.25 million arrests per year and makes drug possession the single most arrested crime in the country. Black and white adults
use drugs at similar rates, but a Black adult is 2.5 times more likely to be arrested for drug possession.
As a result of these arrests, on any given day at least 137,000 people are behind bars. 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.
Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States documents the devastating harms caused
by enforcement of drug possession laws. This joint report by Human Rights Watch and the American Civil Liberties Union is
based on extensive new analysis of federal and state-level data, and over 365 interviews conducted primarily in Louisiana,
Texas, Florida, and New York.
Members of the public understandably want government to take actions to prevent the potential harms of drug use. Yet
criminalization is not the answer. Four decades after the declaration of the “war on drugs,” rates of drug use have not
significantly decreased and treatment for drug dependence is often unavailable. Instead, criminalizing drug possession has
caused tremendous harm—separating families; excluding people from job opportunities, public benefits, and voting; and
exposing them to discrimination.
Human Rights Watch and the ACLU urge federal and state authorities to end these harms by decriminalizing personal use
and possession of all drugs. The report also provides detailed recommendations authorities should follow to minimize the
harmful consequences of current laws and policies, until decriminalization is achieved.

hrw.org

aclu.org

© 2016 Brian Stauffer for Human Rights Watch

 

 

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