An earlier version of this blog appeared in The Hill.

This year marks 50 years since President Richard Nixon declared drugs “public enemy number one,” launching a war on drugs that has pumped hundreds of billions of dollars into law enforcement, led to the incarceration of millions of people — disproportionately Black — and has done nothing to prevent drug overdoses.
 
As President-elect Joe Biden and Vice President-elect Kamala Harris prepare to take office, they have an opportunity to begin to put an end to this failed war. And it is abundantly clear that they have a mandate from the electorate to tackle this issue.
 
Today there are more than 1.35 million arrests per year for drug possession, with 500,000 arrests for marijuana alone. Every 25 seconds a person is arrested for possessing drugs for personal use, and on average, a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though Black and white people use marijuana at similar rates. At least 130,000 people are behind bars in the U.S. for drug possession.
 
While tens of billions of dollars are spent each year to prosecute this war, more than 70,000 people still die of drug overdoses. Deaths from heroin overdose in the United States rose 500 percent from 2001 to 2014. Overall deaths from drug overdoses remain higher than the peak yearly death totals ever recorded for car accidents or guns.
 
The war on drugs has failed, and Americans on the right and left are ready for it to end. These views were on display at the ballot box in 2020, when voters across the country approved every ballot measure on scaling back the war on drugs. From Arizona, Oregon, and Montana to South Dakota, New Jersey, and Washington D.C., Americans turned out in droves to say that it’s time to stop criminalizing drug use.
 
The effort in Oregon, led by the Drug Policy Alliance and supported by the ACLU, was the most groundbreaking. This ballot measure decriminalized the possession of drugs for personal use, funding drug addiction treatment and recovery programs with the savings and tax revenue from marijuana legalization. Measure 110 will prevent more than 3,000 arrests a year for drugs such as heroin, cocaine, and methamphetamines. Oregon is now the first state in the nation to decriminalize all drugs, laying the foundation for reorienting the government’s response to drugs to a public health approach rather than a criminal law one.
 
Other states also showed that drug law reform is a winning issue on both sides of the aisle. Arizona, Montana, New Jersey, and South Dakota all legalized marijuana, joining 11 other states and Washington D.C. South Dakota, where Trump received 62 percent of the vote, showed that legalizing marijuana is a bipartisan issue, as did Montana, which elected Republicans to every major office in the state, while also voting to legalize marijuana.
 
Then in December, Congress delivered two victories, joining states in the movement for reform. On Dec. 4, the House of Representatives passed the most comprehensive marijuana reform legislation in Congress, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884; S. 2227), which decriminalizes marijuana by removing it from the list of scheduled substances, expunges past convictions and arrests, and taxes marijuana to reinvest in communities targeted by the war on drugs. Sen. Harris is the primary sponsor of the MORE Act, but its fate in the Senate is uncertain despite bipartisan support. Then on Dec. 21, Congress passed a COVID-19 stimulus package that included repealing the prohibition on students with drug convictions from receiving federal financial aid, helping thousands of students get an education.
 
With resounding victories in red and blue states, President-elect Biden and Vice President-elect Harris now have a clear decree from voters. Here are the five things they can do to begin ending the war on drugs.
 
First, President Biden should issue an executive order within his first 100 days declaring an end to the war on drugs and directing his federal prosecutors and law enforcement to use their discretion to stop prosecuting the war on drugs. Thousands of people are prosecuted in federal court for drug possession and prosecutors have failed to adequately use their discretion to decline these cases, let alone to not seek incarceration as sentence. This must end. An executive order by President Biden should also incentivize states to end the war on drugs, where the large majority of incarceration for drugs takes place.
 
Second, President Biden should commute the sentences of people currently incarcerated for the war on drugs, and pardon people living with the consequences of this failed war. Candidate Biden committed to “reform[ing] the criminal justice system so that no one is incarcerated for drug use alone.” This is his chance to follow through on this promise by at the very least commuting sentences and pardoning people who fall under this category. That would be a good start.
 
Third, President Biden should direct federal funds to pilot new depenalization approaches to drug-related issues, as recently recommended in a report issued by the FXB Center for Health and Human Rights at Harvard University. This should include overdose prevention centers, where people can use illicit substances while under medical supervision and can access various treatments and referral services. Such models have existed for many years in countries such as Canada, Germany, and Denmark, and have reduced the likelihood of overdoses.
 
Fourth, President Biden should direct the Department of Justice to withdraw from litigation challenging overdose prevention centers that have been approved at the local level. As cities across the nation attempted to address record number of fatal overdoses, the Trump administration cracked down on cities and challenged them in court. President Biden should reverse this policy and refrain from filing new lawsuits.
 
Finally, the Biden administration should work with Congress to pass legislation such as the MORE Act. Polling has consistently shown that marijuana legalization is a bipartisan issue. Five Republicans voted for the MORE Act in the House. A Biden-Harris administration should use their influence to convince Republicans in the Senate to support the MORE Act.
 
Today, policymakers and the public alike are increasingly adopting approaches that treat substance use as a public health issue rather than a criminal justice one. This recognition is bipartisan, as the war on drugs has not differentiated between blue states and red states, and the public understands the importance of addressing addiction through public health measures. The Biden-Harris administration can begin healing our nation by moving decisively on this issue and beginning to repair the harm caused by 50 years of this failed war.
 

Over the past month, two high-profile incidents reaffirmed why police body cameras cannot serve as a police transparency and accountability tool as long as state law empowers the police to determine what footage the public gets to see. As we have said time and time again, when the police are given the discretion to publicly release favorable body camera footage but withhold negative footage, police body cameras become nothing more than a police propaganda tool.

The first such incident occurred on Nov. 19 in Omaha, Nebraska, where Kenneth Jones, a 35-year-old Black man, was pulled from the back seat of a car and killed by white police officers during a traffic stop. Despite having body camera footage of the incident, and immediate calls for transparency, the Omaha Police Department has refused to release the footage despite Nebraska’s strong tradition of open government. This decision, quite understandably, incensed the public. Omaha Deputy City Attorney Bernard in den Bosch, while acknowledging that “in the State of Nebraska, body cam videos are probably public records” nevertheless stated that “we have exercised our right to use the exception in the public records act to withhold them from public dissemination.”

Omaha Police Chief Todd Schmaderer took a different approach, saying that “I want to release the video” but then claiming he could not because “the video is the most inflammatory piece” of evidence, and that “arguably, if you are going to taint the jury pool, it would be with that piece of evidence.” The Omaha Police Department even went a step further, suggesting that Nebraska state law prohibits them from releasing the footage until the conclusion of any grand jury work related to the recorded incident.

The chief’s claims are odd and suspicious for three reasons. First, when privately recorded videos of police conduct have been publicly released, they have had shockingly little impact on jury pools. Just ask the families of Eric Garner in Staten Island, New York or Daniel Shaver in Mesa, Arizona, where despite the release of graphic videos of their family members’ murders, the offending officers avoided any criminal liability. Second, the chief’s claim that state law prohibits him from releasing the footage is without merit. Even the local county prosecutor’s office told News Channel Nebraska that “nothing in the [state] grand jury law prohibits any police video from being released now.” Third, despite the chief’s claim that he was legally prohibited from releasing the body camera footage, he and his own police department went ahead and released several still images from the video — undermining all his previous claims.

All in all, the tangled web of strained and dubious claims by the Omaha Police Department are strongly indicative of someone trying to hide the truth; in this case, an unfavorable truth contained on body camera footage. But because Nebraska state law does not create an affirmative obligation to release police use-of-force body camera videos within a short time after an incident, the public has not seen the footage to date.

Contrast that with the second incident, which occurred just over two weeks later, on Dec. 7, in Tallahassee, Florida. In that case, the Florida State Police raided the home of former Florida Department of Health data scientist Rebekah Jones, who has alleged she was fired from her job for refusing to manipulate COVID data. Following the raid, Jones tweeted that the state police “pointed a gun in my face. They pointed guns at my kids.” The tweet, which included a privately recorded video of the police entering Jones’ home, was picked up by the local press.

In that case, like the case in Omaha, the police were wearing body cameras. Similarly as well, Florida’s body camera law, like that in Nebraska, does not require the immediate release of body camera videos that contain police uses of force, like entering a person’s home with guns drawn. However, in the Florida case, police body camera footage appears to show the state police acting in a more restrained manner than Jones was alleging. As a result, in what CNN properly noted to be a “rare move”, the state police released the body camera footage publicly, and they did it quickly. Transparency prevailed, but only because it favored the police.

This double standard plays out in states like Nebraska, Florida, and many others where laws allow the police to be the sole or initial arbiter of what body camera footage the public gets to see. When body camera footage is negative, the police use bogus arguments to either withhold it or to justify selectively releasing portions of the footage to foster the story they are trying to tell. However, when body camera footage is favorable, the police tend to release the video with lightning speed. That is how a propaganda tool operates.

If police body cameras are ever to become a real tool for promoting police transparency and accountability, release of footage that captures uses of force or alleged police misconduct should be quick and automatic. Further, as the ACLU’s model state body camera legislation states, “where a subject of the video footage is recorded being killed, shot by a firearm, or grievously injured, [release of the footage] shall be prioritized and the requested video footage shall be provided as expeditiously as possible, but in no circumstances later than five (5) days following receipt of the request.” States that do otherwise, either by leaving the release of critical footage to law enforcement discretion or by erecting laborious and costly legal hurdles to accessing important footage, should drop the ruse that they care about police transparency or the safety of their Black and Brown constituents who are so frequently the targets of police misconduct.

This weekend the Trump administration released a 332-page report purporting to offer recommendations on police reform. The findings of this sham commission — composed primarily of police and prosecutors — show what most already knew to be true. The Trump administration never had any plans to implement transformative changes to policing that would curtail police violence, truly hold law enforcement accountable, or conduct any legitimate federal oversight of even the most troubled law enforcement agencies. This report was never meant to enhance safety for all communities; it was meant to advance the Trump administration’s “law and order” political agenda. 

The Trump commission’s flawed recommendations are, in many cases, literally the opposite of what’s necessary to address the epidemic of police violence and mass incarceration. While the Trump commission simply restates a laundry list of recommendations focused on protecting police, here are a few recommendations for what we need to do instead. 

We must transform the role of police and prosecutors in the criminal legal system. 

The Trump commission report demonizes reform-minded prosecutors who use their discretion to choose liberty over incarceration and rehabilitation over punishment. These exercises of discretion — including choosing not to enforce and prosecute certain offenses —are exactly what prosecutors should be doing to help end mass incarceration. So are the efforts to end cash bail and wealth based incarceration that the Trump commission links, without evidence, to increased crime. In fact, states that have transformed their bail systems, such as New Jersey, have not only seen a reduction in the use of cash bail, but also a reduction in incarceration and crime. 

We must stop the use of racist and invasive face recognition technology.

Jurisdictions across the country, including Portland, Boston, San Francisco, and the State of Vermont have halted law enforcement use of face recognition technology. This effort came after recognizing that the racist technology misidentifies people of color at high rates and threatens to supercharge over-policing of communities of color. But the Trump commission calls for an expansion of these dangerous technologies — exactly the opposite of what we need. By ending law enforcement reliance on face recognition algorithms we can limit false arrests of Black men, and ensure community members are free from the threat of pervasive government surveillance every time we leave our homes.   

We must abolish qualified immunity. 

Across the country there has been a bipartisan effort to reign in qualified immunity — a court-created legal defense that shields police officers from liability for misconduct. Once an obscure legal doctrine, it has become a central focus of activists’ calls for police accountability as recognition of the policy as one of the main doctrines used to defend police officers in cases of police violence has grown. Officer Derek Chauvin, the police officer who killed George Floyd by kneeling on his neck for over eight minutes in a video seen around the world, might evade accountability in a civil suit through qualified immunity. By abolishing the doctrine of qualified immunity, many families, victims, and survivors of police violence will have the opportunity to obtain some form of justice in our legal system. Yet the Trump commission flat-out rejects the idea of abolishing or even limiting qualified immunity.

We need to implement enforceable legal guidelines that clarify when police officers can use force against members of the communities they are charged with protecting.  

Policies that limit officers’ use of lethal force so it is used only when absolutely necessary and after exhausting other alternatives such as de-escalation must be implemented on the local, state, and federal level. Instead, however, the Trump commission asserts that “the most effective measure to prevent police from using force remains for citizens to comply with officer commands” and that community members who are being unlawfully abused by police officers should “Comply, Then Complain.” The “comply, then complain” framework means that people in America must bow down to law enforcement, no matter what their behavior may be. This may be true in totalitarian regimes, but in America, the police work for the people.

From its inception, it was clear that the President’s Commission on Law Enforcement and the Administration of Justice was a thinly veiled attempt to use the idea of “police reform” to promote President Trump’s “law and order” agenda, even as historic numbers of people marched in the streets to demand structural changes and an end to police violence. The commission’s goal of “promoting public confidence and respect for the law” was a thinly-veiled threat to advocates and organizers fighting to end police violence. Its mandate to look at “refusals by State and local prosecutors to enforce laws” was a rebuke of the movement to fix a corrupt, punitive, and harmful legal system and its mere composition an attempt by the Attorney General to advance a one-sided agenda. This flawed, bad faith approach should be buried along with the rest of the Trump administration’s terrible ideas on Jan. 20.