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Crack Sentencing Reform Bill Passes Full Judiciary Committee

Last week we reported that the crime subcommittee of the House Judiciary Committee had unanimously passed H.R. 3245, a bill to reduce federal crack cocaine penalties to the same level as those for offenses involving powder cocaine. The full Judiciary Committee approved the bill today, we just heard, by a vote of 16-9. I'll post back with a link to the roll call when it becomes available on Thomas, or follow the link to the bill above to check in the meanwhile. Reports indicate it is expected to be taken up on the floor of the House of Representatives, and that a bipartisan Senate bill is expected out soon too. So this is big news. Not the only big news -- read more in our current top Chronicle feature, "Winds of Change Are Blowing in Washington -- Drug Reforms Finally Move in Congress."

More Big News: Needle Exchange Legislation Passes US House of Representatives

As I noted here two weeks ago, legislation to repeal the ban on use of federal AIDS funds for needle exchange programs was included in a House subcommittee's health budget bill. The language survived an attempt on the House floor to repeal it, and so has made it through the full House of Representatives. Satisfyingly, the Congressman who tried to delete the language was Mark Souder, who also lost a committee vote on Tuesday to significantly gut his anti-student aid drug law. Souder's pro-AIDS amendment lost 211-218. The flip side is that 49% percent of Congress voted to continue spreading HIV and Hepatitis throughout our communities.
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Sentencing: House Subcommittee Approves Reducing Federal Crack Cocaine Penalties

An end to the notorious sentencing disparity between crack and powder cocaine may be in sight. After more than a decade of congressional dawdling since the US Sentencing Commission called for the disparity to be ended because of its racially disproportionate impact, a bill that would do so is finally moving in the Congress.

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DEA crack cocaine photo
Under current federal law, it takes 500 grams of powder cocaine to garner a five-year mandatory minimum prison sentence, but only five grams of crack to earn the same time. The 100:1 sentencing disparity has been widely criticized for years, especially because about nine out of 10 federal crack prosecutions are aimed at African-Americans. (Most crack users are white, despite popular belief.)

On Wednesday, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009. They did so unanimously, making the vote a striking moment of bipartisanship on a once controversial issue. The bill removes all references to "cocaine base" -- federalese for crack -- from the US criminal code, effectively treating all forms of cocaine the same for sentencing purposes.

The bill is sponsored by Rep. Bobby Scott (D-VA) and has 20 cosponsors, including every Democrat on the subcommittee. It now heads to the full House Judiciary Committee, which is headed by Rep. John Conyers (D-MI), also an ardent supporter of ending the sentencing disparity.

Sentencing reform advocates cheered the bill's progress. "I knew it was coming," said Julie Stewart, president of Families Against Mandatory Minimums. " There has been so much attention paid to sentencing policies in the past six months that it was only a matter of time before one of the half-dozen sentencing bills in Congress would start moving. Today it did."

Repealing the crack/powder cocaine sentencing disparity is a much needed step in restoring trust and enacting smarter policies , said Stewart. "If Congress eliminates the sentencing disparity between crack and powder cocaine, it would not only restore some faith in the justice system among the communities most affected by the law, it would reduce prison overcrowding and free up funding for more effective rehabilitation efforts. A minimum of $26 million would be saved in the first year of the reforms and nearly $530 million over the next 15 years," she said. "FAMM strongly urges Congress to make the changes retroactive so that people currently serving unjust sentences for crack cocaine can benefit and taxpayers will see even greater savings."

Feature: Winds of Change Are Blowing in Washington -- Drug Reforms Finally Move in Congress

Update:Needle exchange legislation was passed by the full House of Representatives on Friday afternoon.

What a difference a change of administration makes. After eight years of almost no progress during the Bush administration, drug reform is on the agenda at the Capitol, and various reform bills are moving forward. With Democrats firmly in control of both the Senate and the House, as well as the White House, 2009 could be the year the federal drug policy logjam begins to break apart.

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US Capitol, Senate side
While most of the country's and the Congress's attention is focused on health care reform and the economic crisis, congressional committees are slowly working their way through a number of drug reform issues. Here's some of what's going on:

  • A bill that would eliminate the notorious sentencing disparity between crack and powder cocaine by removing all references to crack from the federal law and sentencing all offenders under the current powder cocaine sentencing scheme passed its first subcommittee test on Wednesday. This one was bipartisan -- the vote was unanimous. (See related story here)
  • The ban on federal funding for needle exchanges has been repealed by the House Appropriations Committee, although current legislation includes language barring exchanges within 1,000 feet of schools. Advocates hope that will be removed in conference committee. (Update:Needle exchange legislation was passed by the full House of Representatives on Friday afternoon.)
  • The Barr amendment, which blocked the District of Columbia from implementing a voter-approved medical marijuana law, has been repealed by the House.
  • Massachusetts Rep. Barney Frank's marijuana decriminalization bill has already picked up more cosponsors in a few weeks this year than it did in all of last year.
  • Virginia Sen. Jim Webb's bill to create a national commission on criminal justice policy is winning broad support.
  • The Higher Education Act (HEA) drug provision (more recently known as the "Aid Elimination Penalty"), which creates obstacles in obtaining student loans for students with drug convictions, is being watered down. The House Education and Labor Committee Wednesday approved legislation that would limit the provision to students convicted of drug sales and eliminate it for students whose only offense was drug possession. (See related story here.)
  • The "Safe and Drug Free Schools Act" funding has been dramatically slashed in the Obama administration 2010 budget.
  • Funding for the Office of National Drug Control Policy's youth media anti-drug campaign has been dramatically slashed by the House, which also instructed ONDCP to use the remaining funds only for ads aimed at getting parents to talk to kids.

"All the stars are now aligned on all these issues," said Bill Piper, national affairs director for the Drug Policy Alliance. "I've never felt so optimistic about drug policy reform in DC."

Looking into his crystal ball, Piper is making predictions of significant progress this year. "I have a strong sense that the Barr amendment and the syringe funding ban will be eliminated this year. The Webb bill will probably be law by December. There's a good chance that HEA reform and the crack sentencing reform will be, too. If not, we'll get them done next year," he said.

"Things are heating up like I've never seen before," Piper exclaimed. "It's like a snowball rolling downhill. The more reforms get enacted, the more comfortable lawmakers will be about even more. Cumulatively, these bills represent a significant rollback in the drug war as we know it."

Former House Judiciary committee counsel Eric Sterling, now head of the Criminal Justice Policy Foundation, was a bit more restrained. Congress is just beginning to come around, and there are dangers ahead, he said.

"We're seeing windows being opened where we can feel the first breezes of spring, but it's not summer yet," Sterling said. "There are people asking questions about drug policy more broadly, there is more openness on Capitol Hill to thinking differently. Liberals are not as afraid they will be attacked by the administration. The climate is changing, but my sense is we're still at the stage where members of Congress are only beginning to take their shoes off to put their toes in the water."

What progress is being made could be derailed by declining popularity of Democrats, the drug reform movement's failure to create sufficient cultural change and a stronger social base to support political change, and the return of old-style "tough on drugs" politics, Sterling warned.

"People need to be aware that as unemployment continues to rise, Democrats will be feeling afraid of repercussions at the polls," he said. "If the economic stimulus does not seem to be generating jobs, if there is a widespread sense of trouble in the country, the drug issue can easily be recast as a bogeyman to distract people. Members of Congress could start talking again about 'fighting to help protect your families.' Those old ways of thinking and talking about these issues are by no means gone," Sterling argued.

That is why he is concerned about building a social base to support and maintain drug reform. "The drug reform movement needs to create cultural change to support political change, and I fear we haven't done enough of that," he worried.

Sterling also warned of a possible reprise of the late 1970s and early 1980s, when the emergence of a parents' anti-drug movement helped knock drug reform off the agenda for nearly a quarter-century. The administration's effort to defund the Safe and Drug Free Schools Act in particular could spark renewed concern and even a reinvigorated anti-drug mobilization, he said.

"The administration says the Safe and Drug Free Schools program hasn't demonstrated its effectiveness and grant funds are spread too thin to support quality interventions, which may well be true," he said. "But little dribs and drabs of that get spread around the states, and that means a lot of people could be mobilized to fight back. The parents' community and prevention professionals will mobilize around these issues with renewed vigor," he predicted.

The Wild West show that is California's marijuana reality could also energize the anti-reform faction, Sterling said. "For those of us outside California, it's hard to fathom what's going on there. I don't think anyone back East can imagine a dispensary operating every quarter-mile along Connecticut Avenue," he explained. "I ask myself if this is growing in a way that could create a potential powerful reaction like we saw in the 1970s. There has already been a smattering of stories about marijuana use in school by patients. Will there be exposés next fall about medical marijuana getting into the schools, kids getting stoned? People in the movement have to be aware that very real and powerful emotions can be unleashed by these changes," he warned.

Still, "momentum is on our side," Piper said. "Webb's bill has bipartisan support, the sentencing stuff is taking off in a bipartisan way, and the crack bill has the support of the president, the vice-president, the Justice Department, and some important Senate Republicans. That's probably the steepest hill to climb, but I think we're going to do it."

These are all domestic drug policy issues, but drug policy affects foreign policy as well, and there, too, there has been some significant change -- as well as significant continuity in prohibitionist policies. And that situation is exposing some significant contradictions. Here, it is the Obama administration taking the lead, not Congress. The Obama administration has rejected crop eradication as a failure in Afghanistan, yet remains wedded to it in Colombia, and it has embraced the Bush administration's anti-drug Plan Merida assistance package to Mexico.

"The really exciting thing is Afghanistan and special envoy Richard Holbrooke's ending of eradication there," said Sanho Tree, drug policy analyst for the Institute for Policy Studies. "That's huge, and it has repercussions for the Western Hemisphere as well. The US can't have two completely divergent policies on source country eradication. On Latin America, I suspect there is a power struggle going on between the drug warriors and the Holbrooke faction. We need a Holbrooke for Latin America," he said.

The media spotlight on Mexico's plague of prohibition-related violence may be playing a role, too, said Sterling. "The mayhem in Mexico certainly created a lot of thinking about how to do things differently earlier this year," he noted. "The media climate has changed, and perhaps that's more important at this stage than the climate inside the Beltway."

But the Mexico issue could cut against reform, too, he suggested. "Where is all that marijuana in California coming from?" he asked. "If someone can make the case that Mexican drug cartels are supplying the medical marijuana market there, that could get very ugly."

As the August recess draws nigh, no piece of drug reform legislation has made it to the president's desk. But this year, for the first time in a long time, it looks like some may. There are potential minefields ahead, and it's too early to declare victory just yet. But keep that champagne nicely chilled; we may be popping some corks before the year is over.

Financial Aid: House Committee Lightens Up on Students with Drug Possession Convictions

For a decade, a law authored by Indiana Republican Rep. Mark Souder has been an obstacle to higher education for people with drug records. The Higher Education Act (HEA) anti-drug provision, known more recently as the "Aid Elimination Penalty," barred students with drug offenses from receiving financial aid for specified periods of time.

Under pressure from students, educators, and others in a growing coalition to repeal the provision, Souder himself supported a partial reform in 2006 that restricted the provision's reach to those convicted of drug offenses while in school, and further changes in 2008 to help motivated students regain their eligibility early. Still, pressure to repeal it completely remained.

Now, with Democrats firmly in control of the Congress, the provision is once again undergoing scrutiny. On Tuesday, the House Education and Labor Committee voted to further shrink the provision's impact by limiting it only to students who are convicted of selling drugs, not those convicted simply of drug possession.

The vote came as part of broader legislation reforming the student loan system. That legislation must still pass the House and the Senate before the reform takes place. The committee turned back an amendment by Souder to strip the language reforming the drug provision by a vote of 20-27.

Press Release: Congress and Obama Administration Embrace Major Drug Policy Reform

FOR IMMEDIATE RELEASE: July 22, 2009 CONTACT: Bill Piper at 202-669-6430 or Tony Newman at 646-335-5384 Congress and Obama Administration Embrace Major Drug Policy Reform Crack/Powder Disparity, Syringe Exchange Funding, Medical Marijuana, HEA Reform All Advancing Decades of Harsh and Ineffective Federal Laws Likely to be Dismantled this Year At least four of the worst excesses of the federal war on drugs appear likely to be rolled back this year – the crack/powder cocaine sentencing disparity, the federal ban on the funding of syringe exchange programs, the all-out federal war on medical marijuana, and the HEA AID Elimination Penalty. All four reforms are advancing quickly in Congress. “Policymakers from the President of the United States on down are calling for a paradigm shift so drug use is treated as a health issue instead of a criminal justice issue” said Bill Piper, director of national affairs for the Drug Policy Alliance. “Eliminating the crack/powder cocaine sentencing disparity, repealing the ban on federal funding for syringe exchange programs to reduce HIV/AIDS, allowing the District of Columbia to move forward with medical marijuana, and reforming the HEA Aid Elimination Penalty are all examples of pairing action with rhetoric.” The House Crime Subcommittee is expected to pass legislation today eliminating the crack/powder cocaine sentencing disparity that punishes crack cocaine offenses one hundred times more severely than powder cocaine offenses. Both President Obama and Vice-President Biden have spoken in support of eliminating the disparity. In numerous statements this year, Justice Department officials have called on Congress to eliminate the disparity this year. Last week, the U.S. House Appropriations Committee repealed the 20-year ban prohibiting states from spending their share of HIV/AIDS prevention money on syringe exchanges program to reduce the spread of HIV/AIDS, hepatitis C, and other blood-borne diseases. The full U.S. House takes up the underlying bill later this week. The ban is responsible for the deaths of tens of thousands of Americans. If the ban is not repealed, as many as 300,000 Americans could contract HIV/AIDS or hepatitis C over the next decade. President Obama called for elimination of the ban on the campaign trail. In legislation last week, the U.S. House repealed a provision of federal law that overturned a medical marijuana law approved by Washington, DC voters, setting the stage for the nation’s capital to make marijuana available to cancer, AIDS, and other patients, possibly as soon as next year. Earlier this year Attorney General Eric Holder declared that the Justice Department would no longer arrest medical marijuana patients, caregivers and providers, even if they violated federal law, as long as they were following the laws of their states. 13 states have legalized marijuana for medical use, but the Bush Administration raided medical marijuana dispensaries and made numerous arrests and prosecutions. In a vote yesterday, the House Education and Labor Committee reformed the HEA AID Elimination Penalty that denies loans and other financial assistance to students convicted of drug law offenses, including simple marijuana possession. Since 1998, more than 180,000 students have lost aid and many, no doubt, have been forced to drop out of college. Although the Obama Administration has not stated where it stands on the underlying law, it has said it wants to remove a question from financial aid applications that ask students if they have ever been convicted of a drug crime. In other drug policy news, Rep. Barney Frank (D-Mass.), chairman of the House Financial Services Committee, and Rep. Ron Paul (R- Texas) have introduced bi-partisan legislation to decriminalize possession of marijuana for personal use. Sen. Jim Webb, D-VA, President Reagan’s Secretary of the Navy, has introduced bipartisan legislation to create a national commission to study the U.S. criminal justice system and make recommendations on how to reduce the number of Americans behind bars, with a particular emphasis on reforming drug laws. Almost a third of U.S. Senators are cosponsors of the bipartisan bill and it is expected to pass the Senate sometime this year. “The ice is starting to crack,” said Bill Piper, director of national affairs for the Drug Policy Alliance. “The decades of harsh and ineffective laws that have led to overstuffed prisons and a growing HIV epidemic are starting to be challenged and hopefully soon dismantled.” ###

Congressional Drug Warriors Huddle in the Corner, Plot Comeback

A thriving public debate about moving beyond drug prohibition and a new administration that wants to abandon the term "war on drugs" has sent some of Congress' most hysterical anti-drug zealots into a frenzied panic:

Escaping any real media attention last week was the formulation of a new anti-marijuana caucus in the House of Representatives. As reported in Roll Call on July 13, a press conference was held with former Speaker of the House Dennis Hastert (R-IL), Jason Chaffetz (R-UT) and Darrell Issa (R-CA) that seeks to re-commit the Congress to the status quo of 'fighting a war on drugs'.

The newly formed House Drug Task Force elected ardent anti-cannabis congressman John Mica (R-FL), who, according to the Deseret News, complained that the Obama administration "seeks to shut the war on drugs down." And that, "the record to date is dismal with the demotion of Drug Czar’s office to a sub-Cabinet position, the announced support for needle exchange programs, the decriminalization of illegal narcotics and other measures that would weaken current national anti-drug efforts." [NORML]

But for their diabolical agenda, I could almost pity them. So far the group only has 8 members, all republicans, and the media didn't really seem very interested in their press conference.

Here we have another exhibit in the cascading downfall of the once-powerful congressional anti-drug demagogues. Their alarmist rhetoric has been discredited and the nation is already well on its way towards establishing a new status quo in the debate over what our drug policies ought to be. If the worst drug warriors in Congress want to collaborate and explore new ways of alienating the public with their crazy ideas, I say we hand 'em the biggest microphone we can find.

Harm Reduction: House Subcommittee Approves Legislation Eliminating the Needle Exchange Funding Ban

The longstanding ban on use of federal AIDS grant funds to support needle exchange programs will soon be history, if the Subcommittee on Labor, Health and Human Services of the House Committee on Appropriations has its way. Led by Rep. David Obey (D-WI), the subcommittee left the language which has imposed the ban these many years out of the new bill. According to Obey's office:

This bill deletes the prohibition on the use of funds for needle exchange programs. Scientific studies have documented that needle exchange programs, when implemented as part of a comprehensive prevention strategy, are an effective public health intervention for reducing AIDS/AIV infections and do not promote drug use. The judgment we make is that it is time to lift this ban and let State and local jurisdictions determine if they want to pursue this approach.

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popular needle exchange logo
The vote followed a protest at the US Capitol in which 26 AIDS activists chained themselves together in the Capitol Rotunda earlier in the day.

President Obama pledged during his primary campaign to eliminate the ban. Legislation allows the president to do so if certain scientific findings are made, specifically that needle exchange programs do not increase community drug use levels, and do reduce the spread of HIV. These findings were made long ago, and the Clinton administration acknowledged them, but declined to eliminate the ban. Earlier this year the Obama administration punted the issue to Congress by including the ban in its budget proposal while verbally expressing support for needle exchange. Whether Obey's subcommittee took action because of administration support, or despite a lack of administration support, I don't know. Perhaps a greater savant than I will enlighten us.

Now the bill heads to the full committee, after which it will go to the floor of the House of Representatives. Drug warriors may try to add the ban back at either stage. Victory also depends on what happens on the Senate side. Assuming the House and Senate do not approve exactly identical Labor and HHS budgets, it will go to a conference committee that includes both Reps and Senators.

Elimination of the ban will neither increase nor decrease the amount of money the federal government spends on AIDS prevention, at least not directly. What it will do is allow state governments who receive federal AIDS grants to choose whether or not to spend some of that money on needle exchange. Those states which are in the habit of using scientific evidence to guide their policies will undoubtedly support needle exchange.

Latin America: Human Rights Watch Calls on Obama Administration to Block Some Anti-Drug Aid Over Human Rights Abuses

In a Monday letter to US Secretary of State Hillary Clinton, the human rights group Human Rights Watch called on the Obama administration not to release tens of millions of dollars of drug war aid under the Mérida Initiative to Mexico. The letter says the aid should be blocked unless and until Mexico allows soldiers accused of human rights abuses in the drug war there to be tried in civilian -- not military -- courts.

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poster of assassinated human rights advocate Ricardo Murillo
Under the Mérida Initiative, designed to support Mexican President Felipe Calderón in his effort to suppress the country's powerful and violent drug trafficking organizations, the so-called cartels, the US is providing $1.4 billion over three years. But under the terms of the enabling legislation, the US government must withhold 15% of the aid unless the State Department certifies that Mexico is meeting certain human rights conditions. One of them is that civilian authorities investigate and prosecute abuses committed by troops and federal police "in accordance with Mexican and international law." The amount in question this year is about $100 million.

Calderón has enlisted the Mexican armed forces into his war against the cartels, and some 45,000 troops have been deployed to violence-wracked cities and drug producing regions in a bid to clamp down on traffickers. But at the same time, complaints of human rights violations by the military -- from unlawful entry and theft to kidnapping, rape, torture, and murder -- have been on the increase. The Human Rights Watch letter referred to a "rapidly growing number of serious abuses."

Of course, the Mexican military is not the only player engaged in behavior that violates human rights. More than 12,000 people have been killed in Calderon's war, most of them members of the various cartels killed by rival traffickers, often after having been kidnapped and tortured. Hundreds of Mexican and police have also been killed by the traffickers, including at least 12 federal police officers kidnapped, tortured, and killed, their bodies left beside a road in Michoacán over the weekend.

The State Department's certification (or not) of Mexico as complying with Mérida Initiative human rights conditions is due later this summer.

Medical Marijuana: US House Overturns Barr Amendment, Removes Obstacle to Implementing 1998 DC Vote

The US House of Representatives Thursday passed the District of Columbia appropriations bill and in so doing removed an 11-year-old amendment barring the District from implementing the medical marijuana law approved by voters in 1998. Known as the Barr amendment after then Rep. Bob Barr (R-GA), the amendment has been attacked by both medical marijuana and DC home rule advocates for years as an unconscionable intrusion into District affairs.

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Bob Barr, lobbied to repeal anti-medical marijuana legislation he wrote
Ironically, Barr, who was defeated in a Republican primary in 2004 in part because of his opposition to medical marijuana, has become an advocate of drug law reform -- including for repeal of his amendment. He has done stints with both the ACLU and the Marijuana Policy Project.

"Today represents a victory not just for medical marijuana patients, but for all city residents who have the right to determine their own policies in their own District without federal meddling," said Aaron Houston, MPP director of government relations. "DC residents overwhelmingly made the sensible, compassionate decision to pass a medical marijuana law, and now, 10 years later, suffering Washingtonians may finally be allowed to focus on treating their pain without fearing arrest."

With Republicans in control of the House until 2006, Congress had reapproved the Barr amendment in every DC appropriations bill until this year. But even under Republican control, pressure had begun to mount after the 2004 death of DC resident Jonathan Magbie, a quadriplegic medical marijuana user who was arrested and died in a DC jail for lack of adequate medical care.

"Had the District been able to implement its medical marijuana law when it passed in 1998, Mr. Magbie may well be alive today -- and free to treat his pain as he and his doctor saw fit," Houston said. "Perhaps now nobody in the District will ever have to suffer as he and his family did simply for using the medicine that works best for them."

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