Those We Leave Behind: Drug Policy and the Poor

Author(s): 
Corinne Carey

THOSE WE LEAVE BEHIND: DRUG POLICY AND THE POOR

Plenary presentation by CORINNE CAREY
at the 13th International Conference on the Reduction of Drug Related Harm,
in Ljubljana, Slovenia on 7 March 2002.

Corinne Carey is the Director of the Harm Reduction Law Project at the Urban Justice Center in New York.

I would like to thank the International Harm Reduction Association Programme Committee for asking me to speak to this conference on a topic so close to my heart, and a topic that has so little political capital attached to it — drug policy reform and those we leave behind. Let me be clear about whom I am
speaking when I speak of those we leave behind: drug users who are homeless, or who are at risk of becoming homeless, because they are unable or unwilling to achieve and maintain abstinence.

Originally, I thought that with this opportunity, I would speak to you from a moral position and argue that it is simply not right or not ethical to make political compromises that marginalize those with the least power for the sake of making small gains and inroads against truly amoral prohibition laws and policies.
But the more I thought about the precarious political position we are all in, in the drug policy and harm reduction movements, with drug users now likened to terrorists for example, it seems to me that we can draw lessons from the anti-poverty movement in the United States, just as I believe we have drawn
lessons from other social change movements, like the tenacity of the gay and lesbian rights movement.

Let me begin with one caveat. I am speaking as a harm reductionist and an advocate for the rights of the poor in United States, drawing on my experiences there. I recognize that relatively speaking, I come from a place where we are fortunate to have any system of aid to the poor at all.

I hope that the concepts that I will discuss here, however, about how we negotiate changes in policy in hostile political climates are universally applicable and can inspire discussions about the difficult political decisions that all of you face in your own countries.

I also want to say now, because I know I will run out of time at the end, that I am dedicating this paper to two people without whom I would not be able to speak to these issues. My friend John Becker who died on Monday in New York City of AIDS — a wonderful man whose life was extended by a number of years because of the brave advocacy efforts of a harm reduction agency called Housing Works in
establishing supportive housing for active users and a man who, despite years of heroin addiction, never once put his neighbors in jeopardy because of his drug use. I would also like to dedicate this paper to a client of mine who will become homeless this month because, evicted because he engaged in small-scale drug sales from his federally-subsidized apartment — evicted despite the fact that dozens of his
neighbors attested to the fact that his tenancy posed no danger or nuisance. I also want to thank Phil Coffin, Naomi Braine, Sam Friedman, Lucianno Colonna, Allan Clear, and Matt Southwell for their assistance
in pulling together my ideas.

I have chosen to discuss exclusion and inclusion — the theme of this conference — in terms of how we choose to draw those lines in the course of fighting difficult political battles. In drawing lines, we must acknowledge the classes of people that we leave behind; and I believe that in doing so, we will always be fighting to maintain those lines from a position of defensiveness. Sometimes we can push the line to include more people in the protections and civil rights that we are fighting for, but most of the time we are trying to hold the line, to limit how far our opponents can push it to exclude more marginalized people.

The rhetoric surrounding what we have called “welfare reform” in the United States, which, like our drug policy, has sadly become a leading export to other countries — shows that advocating for the rights of the poor is a lot like advocating for the rights of drug users. People on welfare in the U.S. were demonized in our national media, and once they were demonized and portrayed as lazy, amoral drains on our national economy, it was easy to take away what little rights they had left by the time our national welfare reform law passed six years ago. Once our opponents had divided up enough classes among welfare recipients into those “deserving poor” and the undeserving, it was almost impossible to talk in terms of “rights” let alone some of the international human rights like the right to basic healthcare,
food, and shelter that we have heard about throughout the week.

Once upon a time, not too long ago in the U.S., people who fought for the rights of the poor to basic sustenance were able to establish what looked like an entitlement to government aid. Early on in the struggle for these rights, advocates for the poor made compromises that foretold their demise a short 60 years after they were established; for, as I will argue, drawing lines of exclusion makes it very easy for our
opponents to move those lines around and exclude more and more of us until there is no longer a “right” at all.

Advocates for the poor believe that everyone has a right to the means to lead a decent life, and that poverty is actually created by a system of capitalism that depends on maintaining a permanent underclass. Poverty and homelessness are not symptoms of moral failing, but rather a necessary byproduct of capitalism, or, some would argue, a deliberate tool to keep certain kinds of people powerless.
Despite these basic beliefs, advocates for the poor accepted early on, aware of the risks, but out of perceived tactical necessity, lines of exclusion that were clearly racist and attached to moral norms, lines that were defined by those in power who were, at the time, all white, male, and of the highest economic classes.

The first types of aid to the poor were only available to white women who were widows, then expanded functionally to all white women with children. It was not until the civil rights movement in the 50s and 60s that we saw aid to the poor expanded equally to all women with children, including women of color, the elderly, and the disabled. Early welfare laws excluded able-bodied single men and women who were thought “undeserving” of these benefits. Elaborate eligibility guidelines, rules, and regulations were established which reined the line in tighter, excluding those “undeserving” among the limited set of people entitled to the benefits in the first place.

When the government later began implementing more and more restrictions on accessing welfare, advocates for the poor fought battles over whether the government could limit, for those receiving welfare, those rights guaranteed to citizens by the United States Constitution: the rights to privacy, freedom of speech, the freedom to associate with whomever one chooses, and the freedom to travel. In
the early days of those battles, the movement won the right, for example, to not have government welfare inspectors make unannounced home visits to search for evidence that would make a family ineligible for benefits. It is worthwhile to note that the most common searches conducted at that time were searches of the homes of women of color to disqualify those women who had men that they had
not listed as economic resources living with them.

That mattered little to the government, though, because not so many years later, the police established their right to routinely conduct early morning raids on public housing apartments to find evidence of drugs and then began to share information with welfare officials anyway.

In its latter days, shortly before we lost the federal entitlement to welfare assistance altogether, we lost battles around the government’s right to fingerprint welfare recipients and different categories of people began losing meager welfare benefits as the government reined the lines of exclusion in tighter and tighter.
Most notably, in terms of our work, people who were disabled and unable to work in a market economy because of a problematic addiction to drugs and alcohol lost their government disability benefits in the early 1990s. In other words, people who were receiving disability benefits because they were unable to work because of drug or alcohol addiction lost all government assistance.

In 1996, what was left of any entitlement to basic, below-poverty level assistance ended in the United States. A new system of time-limited and heavily regulated benefits administered by individual states emerged. Not surprisingly, in that initial legislation that established this new system of aid to the poor, one class of individuals was specifically singled out and disqualified from even the most basic assistance of food subsidies and healthcare — people who were convicted of drug-related crimes.

The other group singled out for special limitations in this new system? Drug users. The new law gave the power to individual states to test the urine of each welfare recipient for illegal drugs and deny benefits to those who test positive. Advocates fought very hard against urine testing, but we were faced with a difficult political compromise. In most states, we have been able to avoid this universal urine testing by accepting a system where drug users are now required to comply with drug treatment, by maintaining abstinence, in order to receive welfare. This means that if someone cannot or will not stop using illegal drugs, they will not be able to receive subsistence-level benefits.

The lines were drawn: people who had been convicted of drug crimes and people unwilling or unable to stop using drugs are now the “undeserving”, those willing and able to comply, and lucky enough to have been able to avoid arrest, are “deserving” — for now.

What made the basic welfare system in the U.S. vulnerable to being dismantled, I think, was the idea that lines were initially drawn between the deserving and the undeserving poor. Once we accepted the notion that some people deserve the basic necessities of food, shelter, and healthcare and others do not, those fighting to end the system of aid to the poor are constantly able to shift that line to exclude more and more people as the political climate changes and becomes more hostile to human and civil rights.

Those of us in both the harm reduction and drug policy reform movements have also drawn lines, or accepted them as political inevitabilities. In our fight to establish needle exchange programs, for example, how many of us drew the line between drug users and drug sellers? Conceding to our governments that yes, we agree that those who sell drugs are bad people and deserve to be in jail, but people who are
addicted to drugs, some even went so far as to say the “victims” of drug sellers, deserved the right to protect themselves against HIV and AIDS. Drug dealers, in fact, as Annie Madden so eloquently stated yesterday, highlight for us the complex dynamic of inclusion and exclusion in our movement, a dynamic
that deserves continued dialogue in the coming year.

When we finally did convince our governments that some people had the right to protect themselves against deadly blood-borne diseases, we made other compromises that excluded more people from the right to participate in our programs. We accepted rules that established one for one exchange — despite
the fact that we knew this was a political compromise and in no way related to public health goals — rules that restricted us to handing out only ten clean syringes at the first visit and demanding returned used syringes for every subsequent visit. We drew lines, or accepted already drawn lines, that excluded the noncompliant drug user — the user who needed more than ten needles at a time, or the drug user
who could not get it together to bring their used needles back.

Let me tell you a little bit about a situation that we are currently facing in the United States that is a perfect example of what can happen to us when we play into the hands of our opponents by accepting their rhetoric and drawing lines of exclusion.

In a legal case currently pending before the United States Supreme Court, the Court will decide in a month or so whether the government can evict from public housing apartments “innocent” family members of people charged with drug law offenses. Let me explain that in another way, because I know that sometimes terminology does not translate well. Our highest court in the U.S. will decide whether family
members who were not themselves found with drugs, or had any relation at all to any illegal drug transactions, can lose their apartments because of drug crimes committed by those who live with or even just visit them.

I believe that we ended up in this situation, a situation that will end up affecting huge numbers of poor
people dependent on government-subsidized housing, for two reasons: First, I think drug law reform
advocates were focused on other issues and did not pay sufficient attention to the issues that affect the
poor; they underestimated the ability of the law to reach beyond drug users to affect family members.
Second, I think it was easy to accept the notion that some drug users are criminals, and that those
criminals do not deserve government-subsidized housing to begin with.
I want to spend a moment discussing this latter issue, because I think it is complicated if we think about it
in terms of the rights of the poor to live in safe and secure housing. Viewed simply from a civil libertarian
point of view, for example, a middle class person living in a place where he is generally undisturbed by
drug traffic in and out of an apartment at 3 o’clock in the morning can easily say that even people who
sell drugs have the right to housing. I believe we can accommodate this belief in a right to housing for
drug dealers by recalling a fundamental tenet of harm reduction: that people should not be judged by
what they put into their bodies, but rather by the way that their conduct affects others. Certainly those
seeling drugs should be held accountable for the danger, community disruption, and nuisance that can, but
does not necessarily, accompany the business of drug sales.
People in poor, often disenfranchised
communities, should have the right to ensure that people who create unsafe and disruptive environments
are evicted from government-subsidized housing. Holding people to that standard allows our society to
accommodate the rights and needs of the community, individual drug users, and dealers.
The lead plaintiff in this case, Pearlie Rucker, is a 65-year old African-American grandmother whose
grandson was found with marijuana outside of her government-subsidized apartment building. She was
evicted, or kicked out, of her apartment for a drug crime committed by her grandson, even though she
had no involvement herself with drugs, and no idea of his involvement.
The lawyers for the tenants of public housing, lawyers for Pearlie Rucker and others like her, have argued
that “innocent” family members should not lose their housing and become homeless for the drug crimes
of their “guilty” family members. Necessarily, then, they have argued that the government has an
unquestionable right to deprive “guilty” people who commit even the lowest-level drug offenses —
possession of small amounts of marijuana — of access to housing. In arguments before the court,
lawyers defending the innocent family members accepted some of the harshest and reactionary drug war
rhetoric, conceding that the government has the right, indeed the responsibility, to protect people who live
in public housing from the [quote-unquote] “scourge” of drugs.
Those of us who work with the “guilty” family members — people who break the law against drug
possession either out of necessity, because they find themselves chemically dependent on illicit
substances, or those who consciously break the law because they believe that they have the right to put
whatever they want into their bodies, so long as they don’t hurt anyone else in the process — we are in
a very bad position regardless of what the U.S. Supreme Court decides a month or so from now.
If Pearlie Rucker wins, and the court says that the government can’t evict “innocent” family members, the
government is given a free hand to evict the “guilty,” because they clearly constitute a “scourge” on public
housing, a danger to other tenants, even according to their families, and it will be as difficult, if not more
so, to convince a court that someone who has committed a drug crime should be allowed to remain in
his or her apartment.
If Pearlie Rucker loses, however, as it looks likely that she will, not only will thousands of families lose their
government-subsidized housing and become homeless, the whole idea of turning to one’s family for
assistance will become impossible even for people in recovery.
If Pearlie Rucker loses, a new class of people will be excluded from civil society by the lines drawn — and
constantly expanded--by the drug war.
I am particularly concerned about our strategy as a movement to attack the absurdly lengthy terms of
incarceration faced by drug users by advocating for the development of alternatives to incarceration in
the form of drug courts. Considering the rates of incarceration we have all heard about so much this
week — the most striking related by Aryeh Neier during the opening plenary [at this conference] — that
the United States incarcerates for drug-related offenses more people than all of the countries of the
European Union imprison for all crimes put together — the issue of alternatives to incarceration is quite
literally a matter of life and death for individuals and communities in the U.S. — particularly for people of
color who face disproportionately harsh incarceration rates in our country.

Recognizing this, I want to make sure that you know I do not assert my critical view of drug courts lightly.
Of course I believe that in terms of an individual facing a jail sentence for possessing drugs — subjecting
that person to a course of drug treatment is almost always preferable to putting them in jail for even a
short period of time. But unfortunately, I don’t think it is that simple.
Most of the research about the efficacy of drug courts is biased and methodologically flawed as it has
been completed, for the most part, by drug treatment professionals who reap huge benefits from
creating a system where thousands and thousands of people will be forced into treatment — ensuring an
endless stream of patients with the tab picked up by state and federal governments. A stream that will
continue to flow through their doors, it is worthwhile to note, without regard to whether the treatment
methods they employ are effective or not.
But one constant among even the most biased studies is those most likely to “fail” in drug treatment and
face incarceration because they are either unable or unwilling to maintain abstinence are those who are
homeless or lack access to stable housing. Other fairly common factors influencing someone’s ability to
“succeed” in drug treatment, or rather, more accurately, factors which make is less likely that treatment
will be effective are: gender, sexual orientation, histories of physical and sexual abuse, ethnicity, access to
primary healthcare, access to sufficient economic resources, and the existence of other complicated life
problems. To address the reasons that these factors influence the efficacy of treatment would demand
an entire session and are certainly beyond the scope of my talk this morning.
But what can this research tell us about how we weigh the political choice of advocating for alternatives
to incarceration which condition someone’s freedom on their success in drug treatment? People who are
the most vulnerable, people struggling with economic, racial, sexual and gender discrimination, may in fact
be faced with even longer and harsher prison sentences when they “fail” in drug treatment because they
will be forced to serve out sentences for crimes to which they were made to plead guilty. So far from
alleviating long prison sentences, the system sets the most vulnerable people up for failure and subjects
them to harsher sentences than they would have faced had they been able to engage in traditional plea
bargaining, or even taking their case to trial before a jury. In most drug court systems, people must plead
guilty and give up their rights in the criminal justice system in order to participate.
Accepting drug courts as a politically feasible alternative in a system of prohibition that demands
punishment for drug related crimes forces us to draw a line of exclusion that sacrifices the freedom of
Those unable or unwilling to maintain abstinence. These people are likely to be people of color, women,
gays/lesbians/and transgendered people, the poor, and the homeless. If we make this political choice, we
must recognize that these are the people we leave behind for the sake of alleviating the harsh sentencing
laws for people more likely to respond to drug treatment — by implication, people who are in a position
of relative power in our society.
As Ethan Nadelmann said yesterday, if we are the pre-eminent social movement of the new millennium,
let us not make the same mistakes as social justice movements have made in the past — making
themselves vulnerable by creating or succumbing to lines of exclusion.
I realize that by agreeing to my suggestion that we refuse to impose lines of exclusion, political
compromise is almost impossible in the context of prohibition. I hope that my remarks will serve as both a reminder and a warning: we need to be clear about those we leave behind in our efforts to reform
drug laws, and we need to be aware that by doing so, we make ourselves vulnerable to our opponents
being able to shift the line to exclude more and more people we may not have even contemplated might
suffer the consequences of prohibition.

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