David Borden, Executive Director, [email protected]
One of the burning topics discussed at last week's drug policy reform conference in Albuquerque was the growing shift from incarceration to mandated treatment. Of particular issue were ballot initiatives such as California's Prop. 36, which unlike outside forces such as the drug court movement, emanate from our own drug policy reform institutions. The debate was not over the appropriateness of forced treatment in and of itself -- few if any attendees would have defended that -- but of its appropriateness and wisdom as an interim step to help keep people out of prison while we continue to work for the larger decriminalization of drugs.
I come down on the side of getting as many of the half a million incarcerated nonviolent drug offenders out of jail or prison as soon as possible. Having been involved in this cause for nearly eight years, and having friends whose loved ones were incarcerated then and are still incarcerated, I have to view a treatment a requirement for getting out of prison as a decidedly lesser evil on the whole.
Nevertheless, some of the arguments cautioning against a wholesale embracing of the forced treatment approach are also compelling, and I tend to agree with those in our movement advocating a "wait-and-see" approach to observe the real-world results in California before moving much further. The emerging drug court movement is a good example of why coerced treatment as an interim approach should be approached with caution. While many drug court judges are doubtless good people who see themselves as rescuing young people from lives of crime and incarceration, the system and movement as a whole has shown itself to be unreliable in its beneficence and uncomprehending in its approach to treatment and addiction.
Operating under a dogma that verges on the religious, drug courts have almost uniformly failed to recognize or allow for methadone maintenance as a treatment for heroin addiction. Yet the scientific and medical consensus on methadone is that it is the most effective legal treatment available for heroin addicts and for many of them is an absolute necessity.
Operating under a set of attitudes that wholly conflict with basic medical ideals, drug courts demand immediate, total and permanent abstinence from all the drugs under their jurisdiction. Screw up, go to jail. Screw up again, go to jail for longer. Nothing could be more at odds with the medical reality of addiction, in which relapse is understood to be undesirable but normal, not invalidating the individual's overall success in managing his or her addiction. And there is no other medical condition for which relapse of imperfect recovery is punishable, certainly not by incarceration!
And have the drug courts weeded out and avoided the truly abusive drug treatment programs, groups like Straight that have scarred clients for life, only surviving lawsuits and scrutiny through the power of money and political connections? That is an important topic that needs to be examined.
Last but not least, drug courts do not always succeed in achieving their mission of diverting low-level drug offenders from prison. Sometimes they even make matters worse. In an article published last year in the North Carolina Law Review, Judge Morris Hoffman charged that drug courts in Denver had actually sparked a sharp increase in drug incarcerations. Upon institution of the drug courts, Denver police immediately started to arrest much greater numbers of much more minor offenders. Those who entered the system for diversion, but subsequently failed treatment, would wind up going to prison where they might previously have been left alone. Not all drug court systems necessarily have this effect; but devil is very much in the details and the lesson should be well-heeded by justice advocates everywhere.
It is easy to understand why the drug court judges believe they are helping people. After all, they are keeping people out of prison, at least in many cases. And statistically, some of the people moved through their courtrooms will truly be grateful. Statistically, some really will have serious drug abuse problems that threaten their ability to function in society. Statistically, some of those people will get their lives together while under the influence of the courts. Drug court judges will run into those grateful people in their communities, their favorite restaurants.
Of course, the ones who have a problem with how they were treated by the court or the fact that they had to deal with the court at all are much less likely to come up to the judge and introduce themselves and chat. If they're not in prison, that is.
At a recent forum in Washington, DC, Judge Jeffrey Tauber, former executive director of the National Association of Drug Court Professionals, insisted that drug addicts don't voluntarily seek treatment, or if they do, don't stay long enough to get effective help. This bit of drug court dogma is equally untrue. Addicts don't always seek help when others would like, but will do so eventually, if help is available when they are ready. If addicts didn't seek help voluntarily, then our nation's drug treatment programs would not be overflowing with waiting lists stretching into the weeks or months. It just doesn't add up the way Tauber and his cohorts would like us to believe.
So, it is clear that involving the state in coerced drug treatment can certainly be done badly. Perhaps the coercive element even makes that inevitable to some extent. Should our movement therefore eschew and reject the entire concept? Defenders of efforts such as Prop. 36 point to the fact that drug court proponents hate the initiative passionately. By involving our movement in the current policy process, we can bring some of our values to it, restore some legal rights to drug defendants and minimize the eventuality of incarceration -- albeit within the context of an imperfect, even offensive system -- but a system that we did not create and which is being driven forward by larger political forces, with or without us.
The answer may be different for different organizations. Those with funding to mount ambitious ballot initiatives have to forge their initiatives carefully, in ways that intersect with prevailing current popular opinion, so that their initiatives will pass. Grassroots and educational organizations, however, have no such constraint. In fact, one of the functions of such organizations is to push the envelope and engage the public in debate on longer term visions, so that one day in the future decriminalization or legalization will be a realistic possibility.
Whether or not, then, ballot initiatives like Prop. 36 will ultimately help or hurt, remains to be seen. But the rest of us, whose activism is not primarily focused on initiatives, have a much clearer path ahead. We should be focusing our energies where we are needed most: partial reforms where we are in a position to make a unique difference, and shouting out the truth about prohibition and the war on drugs and why they must end -- so that one day end they will.