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Feature: Twenty Years of Drug Courts -- Results and Misgivings

The drug court phenomenon celebrates its 20th birthday this year. The first drug court, designed to find a more effective way for the criminal justice system to deal with drug offenders, was born in Miami in 1989 under the guidance of then local prosecutor Janet Reno. Since then, drug courts have expanded dramatically, with their number exceeding 2000 today, including at least one in every state.

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drug court scene
According to Urban Institute estimates, some 55,000 people are currently in drug court programs. The group found that another 1.5 million arrestees would probably meet the criteria for drug dependence and would thus be good candidates for drug courts.

The notion behind drug courts is that providing drug treatment to some defendants would lead to better outcomes for them and their communities. Unlike typical criminal proceedings, drug courts are intended to be collaborative, with judges, prosecutors, social workers, and defense attorneys working together to decide what would be best for the defendant and the community.

Drug courts can operate either by diverting offenders into treatment before sentencing or by sentencing offenders to prison terms and suspending the sentences providing they comply with treatment demands. They also vary in their criteria for eligibility: Some may accept only nonviolent, first-time offenders considered to be addicted, while others may have broader criteria.

Such courts rely on sanctions and rewards for their clients, with continuing adherence to treatment demands met with a loosening of restrictions and relapsing into drug use subjected to ever harsher punishments, typically beginning with a weekend in jail and graduating from there. People who fail drug court completely are then either diverted back into the criminal justice system for prosecution or, if they have already been convicted, sent to prison.

Drug courts operate in a strange and contradictory realm that embraces the model of addiction as a disease needing treatment, yet punishes failure to respond as if it were a moral failing. No other disease is confronted in such a manner. There are no diabetes courts, for example, where one is placed under the control of the criminal justice system for being sick and subject to "flash incarceration" for eating forbidden foods.

Conceptual dilemmas notwithstanding, drug courts have been extensively studied, and the general conclusion is that, within the parameters of the therapeutic/criminal justice model, they are successful. A recently released report from the Sentencing Project is the latest addition to the literature, or, more accurately, review of the literature.

In the report, Drug Courts: A Review of the Evidence, the group concluded that:

  • Drug courts have generally been demonstrated to have positive benefits in reducing recidivism.
  • Evaluations of the cost-effectiveness of drug courts have generally found benefits through reduced costs of crime or incarceration.
  • Concern remains regarding potential "net-widening" effects of drug courts by drawing in defendants who might not otherwise have been subject to arrest and prosecution.

"What you have with drug courts is a program that the research has shown time and time again works," said Chris Deutsch, associate director of communications for the National Association of Drug Court Professionals in suburban Washington, DC. "We all know the problems facing the criminal justice system with drug offenders and imprisonment. We have established incentives and sanctions as an important part of the drug court model because they work," he said. "One of the reasons drug courts are expanding so rapidly," said Deutsch, "is that we don't move away from what the research shows works. This is a scientifically validated model."

"There is evidence that in certain models there is success in reducing recidivism, but there is not a single model that works," said Ryan King, coauthor of the Sentencing Project report. "We wanted to highlight common factors in success, such as having judges with multiple turns in drug court and who understand addiction, and building on graduated sanctions, but also to get people to understand the weaknesses."

"Drug courts are definitely better than going to prison," said Theshia Naidoo, a staff attorney for the Drug Policy Alliance, which has championed a less coercive treatment-not-jail program in California's Proposition 36, "but they are not the be-all and end-all of addressing drug abuse. They may be a step forward in our current prohibitionist system, but when you look at their everyday operations, it's pretty much criminal justice as usual."

That was one of the nicest things said about drug courts by harm reductionists and drug policy reformers contacted this week by the Chronicle. While drug courts can claim success as measured by the metrics embraced by the therapeutic-criminal justice complex, they appear deeply perverse and wrongheaded to people who do not embrace that model.

Remarks by Kevin Zeese of Common Sense for Drug Policy hit many of the common themes. "If drug courts result in more people being caught up in the criminal justice system, I do not see them as a good thing," he said. "The US has one out of 31 people in prison on probation or on parole, and that's a national embarrassment more appropriate for a police state than the land of the free. If drug courts are adding to that problem, they are part of the national embarrassment, not the solution."

But Zeese was equally disturbed by the therapeutic-criminal justice model itself. "Forcing drug treatment on people who happen to get caught is a very strange way to offer health care," he observed. "We would see a greater impact if treatment on request were the national policy and sufficient funds were provided to treatment services so that people who wanted treatment could get it quickly. And, the treatment industry would be a stronger industry if they were not dependent on police and courts to be sending them 'clients' -- by force -- and if instead they had to offer services that people wanted."

For Zeese, the bottom line was: "The disease model has no place in the courts. Courts don't treat disease, doctors and health professionals do."

In addition to such conceptual and public policy concerns, others cited more specific problems with drug court operations. "In Connecticut, the success of drug courts depends on educated judges," said Robert Heimer of the Yale University School of Public Health. "For example, in some parts of the state, judges refused to send defendants with opioid addiction to methadone programs. This dramatically reduced the success of the drug courts in these parts of the state compared to parts of the state where judges referred people to the one proven medically effective form of treatment for their addiction."

Heimer's complaint about the rejection of methadone maintenance therapy was echoed on the other side of the Hudson River by upstate New York drug reformer Nicolas Eyle of Reconsider: Forum on Drug Policy. "Most, if not all, drug courts in New York abhor methadone and maintenance treatment in general," he noted. "This is troubling because the state's recent Rockefeller law reforms have a major focus on treatment in lieu of prison, suggesting that more and more hapless people will be forced to enter treatment they may not need or want. Then the judge decides what type of treatment they must have, and when they don't achieve the therapeutic goals set for them they'll be hauled off to serve their time."

Still, said Heimer, "Such courts can work if appropriate treatment options are available, but if the treatment programs are bad, then it is unlikely that courts will work. In such cases, if the only alternative is then incarceration, there is little reason for drug courts. If drug court personnel think their program is valuable, they should be consistently lobbying for better drug treatment in their community. If they are not doing this, then they are contributing to the circumstances of their own failure, and again, the drug user becomes the victim if the drug court personnel are not doing this."

Even within the coerced treatment model, there are more effective approaches than drug courts, said Naidoo. "Drug courts basically have a zero tolerance policy, and many judges just don't understand addiction as a chronic relapsing condition, so if there is a failed drug test, the court comes in with a hammer imposing a whole series of sanctions. A more effective model would be to look at the overall context," she argued. "If the guy has a dirty urine, but has found a job, has gotten housing, and is reunited with his family, maybe he shouldn't be punished for the relapse. The drug court would punish him."

Other harm reductionists were just plain cynical about drug courts. "I guess they work in reducing the drug-related harm of going to prison by keeping people out of prison -- except when they're sending people to prison," said Delaney Ellison, a veteran Michigan harm reductionist and activist. "And that's exactly what drug courts do if you're resistant to treatment or broke. Poor, minority people can't afford to complete a time-consuming drug court regime. If a participant finds he can't pay the fines, go to four hours a day of outpatient treatment, and pay rent and buy food while trapped in the system, he finds a way to prioritize and abandons the drug court."

An adequate health care system that provided treatment on demand is what is needed, Ellison said. "And most importantly, when are we going to stop letting cops and lawyers -- and this includes judges -- regulate drugs?" he asked. "These people don't know anything about pharmacology. When do we lobby to let doctors and pharmacists regulate drugs?"

Drug courts are also under attack on the grounds they deny due process rights to defendants. In Maryland, the state's public defender last week argued that drug courts were unconstitutional, complaining that judges should not be allowed to send someone to jail repeatedly without a full judicial hearing.

"There is no due process in drug treatment court," Public Defender Nancy Foster told the Maryland Court of Appeals in a case that is yet to be decided.

Foster's argument aroused some interest from the appeals court judges. One of them, Judge Joseph Murphy, noted that a judge talking to one party in a case without the other party being present, which sometimes happens in drug courts, has raised due process concerns in other criminal proceedings. "Can you do that without violating the defendant's rights?" he asked.

A leading advocate of the position that drug courts interfere with due process rights is Williams College sociologist James Nolan. In an interview last year, Nolan summarized his problem with drug courts. "My concern is that if we make the law so concerned with being therapeutic, you forget about notions of justice such as proportionality of punishment, due process and the protection of individual rights," Nolan said. "Even though problem-solving advocates wouldn't want to do away with these things, they tend to fade into the background in terms of importance."

In that interview, Nolan cited a Miami-Dade County drug court participant forced to remain in the program for seven years. "So here, the goal is not about justice," he said. "The goal is to make someone well, and the consequences can be unjust because they are getting more of a punishment than they deserve."

Deutsch said he was "hesitant" to comment on criticisms of the drug court model, "but the fact of the matter is that when it comes to keeping drug addicted offenders out of the criminal justice system and in treatment, drug courts are the best option available."

For the Sentencing Project's King, drug courts are a step up from the depths of the punitive prohibitionist approach, but not much of one. "With the drug courts, we're in a better place now than we were 20 years ago, but it's not the place we want to be 20 years from now," he said. "The idea that somebody needs to enter the criminal justice system to access public drug treatment is a real tragedy."

Feature: The Good, the Bad, and the Ugly -- New York Rockefeller Drug Law Reform on the Verge of Passage

A week ago today, New York Gov. David Paterson (D) and state Assembly and Senate leaders announced they had reached an agreement on reforming the state's draconian Rockefeller drug laws. The agreement marked a partial retreat from the reforms envisioned in an Assembly bill passed earlier this year, but still offers a significant improvement over the status quo.

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long road to freedom: 2001 protest of Rockefeller drug laws, Albany (courtesy indymedia.org)
The measure was to have been voted on this week as part of the state's budget bill, but that hasn't happened yet, and that's making advocates nervous. While the consensus among advocates seems to be that the bill doesn't go far enough, most want to see it passed as a step in the right direction.

The Rockefeller drug laws were enacted in 1973 and mandate extremely tough prison sentences for the sale or possession of relatively small amounts of drugs. Although allegedly aimed at "drug kingpins," tens of thousands of people have been imprisoned under them, most of them low-level nonviolent offenders. Currently, some 12,000 people are doing time for drug offenses in New York, and they constitute one-fifth of the prison population. Nearly 90% of them are black or Hispanic.

Partial reforms in 2004 and 2005 did little to halt the imprisonment juggernaut. While providing some relief for some drug offenders, those reforms resulted in even more people being sent to prison on drug charges than before.

"While much more moderate than the reform bill passed by the Assembly last month, this proposal constitutes an important step forward in developing more effective drug policies based in public health and safety," said Gabriel Sayegh, project director with the Drug Policy Alliance (DPA). "The legislature and governor should have made the proposal even more expansive, for instance by returning discretion to judges in every drug case, not only low-level cases. We believe, though, that this bill constitutes real reform, and should be enacted."

Under the tripartite agreement, the Rockefeller reform bill would:

  • Return judicial discretion in low-level drug law cases;
  • Expand treatment and reentry services;
  • Expand drug courts;
  • Allow for approximately 1,500 people incarcerated for low-level nonviolent drug offenses to apply for resentencing;
  • Increase penalties for drug "kingpins";
  • Increase penalties on adults who sell drugs to young people.

In the reforms of 2004 and 2005, people serving A-level felonies -- the most serious -- were able to apply for resentencing, but not those serving B-level felonies, who constitute the bulk of Rockefeller prisoners. While the resentencing option would now be open for some 1,500 B-level offenders, that means that more than 10,000 New York drug war prisoners would remain without recourse.

The bill would also allow judges to divert some low-level drug offenders into drug treatment or other alternatives to imprisonment, but only if they convince judges they are addicts. Given that incarceration costs three times as much as treatment, the state stands to save millions if judges exercise that sentencing discretion.

"As a former prisoner under the Rockefeller drug laws, I support this legislation because it will rescue many of the prisoners who fell through the cracks of the prior reforms," said DPA's Anthony Papa. "This proposal will give people convicted of low-level drug offenses a chance to be reunited with their families and become productive tax paying citizens like myself."

"If this becomes law, it will be a big step forward," said Caitlin Dunklee of the Correctional Association of New York and coordinator of the Drop the Rock campaign. "This is the first major reform of the Rockefeller drug laws since their enactment. It dismantles mandatory minimum sentencing in a meaningful way. It also allocates money for alternatives to incarceration and drug treatment," she said.

But the package doesn't include everything reformers sought, Dunklee conceded. "It does leave intact some harsh mandatory minimum sentences for low level drug offenses and will lead to the incarceration of future low-level drug offenders -- about half of them will face mandatory minimums. Also, the retroactivity provisions are too limited; fewer than 1,500 of the more than 10,000 behind bars for drug offenses will be eligible to apply," she said. "We have family members asking when their loved ones are coming home, but very few are going to get out early."

"It's a lukewarm reform," said a disappointed Randy Credico of the William Moses Kunstler Fund for Social Justice, long a key player in the Rockefeller repeal movement and now preparing to challenge Sen. Charles Schumer in next year's elections. "New York's criminal justice system needed a giant enema, and all the politicians did was pass gas."

"This proposal is a step forward," said Alan Rosenthal, an attorney with the Center for Community Alternatives, a New York organization that works on alternatives to imprisonment. "It is in the tradition of modest reform coming on the heels of the 2004 and 2005 reforms," he said. "It captures some of the same features, allows some resentencing as those did, but still leaves us with a pretty overbearing structure, and although a lot of attention is paid to treatment versus punishment, it still leaves an awful lot of room for punishment and a lot of people stuck in prison. From my perspective, I would give kudos to the legislators who supported this, but would certainly give fair warning to the public that there is still a lot of work to be done."

Rosenthal pointed out that while the reform would allow judges to exercise discretion, that doesn't mean they will. "Most judges come from a prosecutorial background," he noted. "It's not likely that they have an enlightened view of how counterproductive and destructive prison can be. At this point, I don't think things are going to look much different from when the DAs had the discretion. This will be a tiny spigot, and those judges are going to be trying to figure out who is worthy and who is not, who might look more dangerous because of class, skin color, or ethnicity. That sort of potential for coloring judicial decisions leaves us still needing broader reform and a broader understanding of how to deal with these issues."

Whether such partial reforms should be supported is a thorny question, said Rosenthal. "It is difficult to sit there and know that a smaller percentage than we would like are going to benefit, but it's also difficult to say we're going to hold out for everything knowing that if we do, some people are going to suffer under the yoke of imprisonment," he said. "The downside is the public impression that all that needs to be done has been done. Those still left in prison and their family members who are not getting any relief will understand there is more work to do, but the problem will be our ability to blow air into the balloon of public concern."

Sayegh defended the partial reform as the best that could be achieved. "Our job as advocates is to fight like hell to get the most we can get done. We are committed to that. After a hundred years of prohibition and drug wars, anyone who thinks we can accomplish the extraordinary and impossible in one legislative package is dreaming. We need to make the impossible possible and the possible inevitable, and that implies a process. We are here for the long haul," he vowed.

It may be a long haul. "A lot of people I talk to who are not involved in drug policy have told me they thought this was taken care of in 2004 and 2005," said Nicolas Eyle of ReconsiDer: Forum on Drug Policy, an upstate drug reform group. "It will be the same thing again with this bill, but we still have long sentences, we have a kingpin proposal that sounds like it will fit your normal street corner drug crew, so we'll end up with these retail dealers doing 15-to-life. This bill is a step in the right direction, but it's only a baby step," he said.

Likening the Rockefeller repeal movement to the antebellum Abolitionist movement, Credico said the battle against slavery did not settle for half-measures. "The criminal justice system is the new slave power," he said, "and just like the Jim Crow laws, the drug laws will continue to be used to jail, convict, imprison, and disenfranchise people on a massive level. Everyone -- judges, DAs, defense attorneys, corrections officers, court officers, probation and parole officers, upstate politicians and contractors -- depends on these drug cases to stay busy and keep the prisons filled."

The coerced treatment provisions of the reform package are misguided, Credico said. "The drug reform community wants to use the false language of it's a health issue, but these people aren't sick addicts; they're dime bag desperados, the guys retailing on the street corners. Now, they're going to have to plead guilty and convince judges they're addicts," he argued. "If they can't prove they're addicts, they can still go to jail, and they'll be doing one to nine years. This at a time when we have black youth unemployment in the city at 65%. What else are they supposed to do?"

Like Credico, Dunklee was critical of the provision making only people who convince judges they are addicts eligible for diversion in B-level offenses. "This sets up a distinction between people addicted or not," she said, "and only people who are deemed substance dependent will be eligible for diversion. Those people who maybe don't need treatment, but could instead be helped in other ways will be facing mandatory minimum prison terms. We object strongly to that."

Addressing the increased sentences for "kingpins" and people who sell drugs to minors in the final bill, Dunklee said it was a sop to prosecutors. "Gov. Paterson wanted to avoid appearing soft on crime, so he endorsed sentencing enhancements for people the public demonizes," she said. "When the public hears about selling drugs to minors, they think about the guy in the trench coat in the school yard, not the 21-year-old selling to the 17-year-old. The judges will not be able to look at the circumstances of each case, and the young man will go to jail for a long time, but that's not what the public has in mind."

For Dunklee and Drop the Rock, the battle is not over. "We're not going out of business, we're going to keep the coalition intact," she said. "This partial reform has the potential to take the air out of the movement, but we are going to assess how to continue. Our people are committed to full repeal, and we are open to the possibility of broadening our agenda to include prison downsizing. We are going to be figuring out how to respond to the reforms and the new political climate," she said.

But, given that at this writing, the long-delayed final passage of the bill has not yet occurred and given that the Senate Democrats have a razor thin majority, this ex post facto analysis of the 2009 Rockefeller law reforms may be premature. "The bill hasn't passed yet," cautioned Sayegh. "Of course, they will pass a budget bill, but the question is what is going to be included in it. Right now, there are a number of legislators and prosecutors and rags like the Daily News putting out garbage. There is a lot of opposition to this provision, so we can't take its passage for granted. We're almost there, but we're not there yet," he said.

Privacy: Kansas House Passes Bill Mandating Drug Tests for Public Assistance

The Kansas House Wednesday gave final approval to a bill that requires Kansans who seek public assistance to undergo drug testing. The bill, HB 2275, passed by a margin of 99-26. It now heads to the state Senate.

Sponsored by Sen. Kasha Kelly (R-Arkansas City), the bill targets the 14,000 Kansans who receive cash assistance from the state Department of Social Rehabilitation Services. Recipients of financial support in temporary aid for families, general assistance, child care support, and grandparents as caregivers programs would all be subjected to drug testing. It would not apply to non-cash benefits, such as food stamps and medical care.

The bill envisions testing one-third of the target population each year. A positive drug test would result in an evaluation and possible drug treatment. Failure to complete evaluation and/or treatment would result in the termination of benefits, as would a third positive drug test.

As the Chronicle reported last week Kansas is only one of a number of states where legislatoes are pushing similar bills. Drug testing public assistance recipients was okayed, but not required, under the 1996 federal welfare reform bill. But the only state to actually implement such a plan, Michigan, was shot down by the federal courts, which held that it violated the Fourth Amendment's proscription against unreasonable searches and seizures.

Kelly, unconcerned about constitutional niceties, said the state should work to keep parents off drugs and advance the interests of children. "Shouldn't you be fearful if you're using?" she said on the House floor.

Social Rehabilitation Services Secretary Don Jordan testified that only 3% to 8% of clients would likely test positive for marijuana, cocaine, or other illegal drugs. That figure is slightly below overall nationwide drug use levels. The program would cost $800,000 a year, he said. The bill will not be implemented unless the legislature makes a specific appropriation to cover the cost, but in a fiscal note, legislative analysts suggested the possibility of using asset forfeiture proceeds to fund the program.

The bill was opposed by the Kansas Public Health Authority, but legislators proved receptive to arguments like those of Rep. Brenda Landwehr (R-Wichita), head of the House Health and Human Services Committee, who said if the bill failed to pass it is as if the legislature would be declaring: "Mr. and Mrs. Taxpayer, we don't really care if someone buys drugs with your hard-earned money."

Rep. Marti Crow (D-Leavenworth) wasn't buying it. "Testing someone because they're poor? Where does that make any sense?" he asked. "This is crazy and mean."

But Crow was in the minority. The bill now goes to the state Senate.

Southeast Asia: Indonesia to Treat Drug Users, Not Jail Them

In a surprise move, the Indonesian Supreme Court last Friday issued a memo to judges ordering them to send drug users to drug treatment centers, not prison. The memo is not retroactive, meaning people currently imprisoned for drug use or possession will not be eligible.

According to the memo, arrestees would be eligible for treatment only if the amount of drugs with which they were caught were below certain "personal use" quantities. For marijuana, the upper limit is 5 grams; for cocaine, heroin, and morphine, 0.15 grams, for methamphetamine, 0.25 grams.

In the memo, the Supreme Court said drug users in treatment must submit to drug tests on request, must obtain a letter of recommendation for treatment from a court-appointed psychiatrist, must not relapse, and must not be drug dealers.

While the move is arguably a step forward for drug users, it is causing concern in the Indonesian Judiciary Supervisory Committee, which worried that is could encourage corruption. "Drug suspects could easily pay investigators some money to change their status from drug dealers to drug users," the committee's Hasril Hertanto said Sunday. "Judges usually determine the status of drug case suspects based on the dossiers presented by police and prosecutors. So they are the ones who must be very cautious about this matter."

Southeast Asian nations are among the toughest in the world when it comes to punishing drug users. Even with reservations about coerced treatment, the Supreme Court's move is an advance in drug policy for the archipelago.

Feature: More Than A Quarter Million Marijuana Smokers in Drug Treatment Each Year -- Are We Wasting Valuable Treatment Resources?

Even as the demand for drug treatment slots continues to grow, an increasing number of people who enter drug treatment are being treated for marijuana as their primary drug of abuse, leading some observers to question whether scarce drug treatment resources are being wasted on people who don't need drug treatment. In its most recent set of drug treatment statistics released last week, the 2007 Treatment Episode Data Sets (TEDS), the federal Substance Abuse and Mental Health Services Administration (SAMHSA) reported that some 288,000 people underwent treatment for marijuana that year, or 15.8% of all drug treatment episodes.

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marijuana -- sometimes but not usually a reason for treatment
The number is actually down slightly from its 2005 peak of 301,000 people in treatment for marijuana, but in line with trends for the past decade. Since 1997, the number of people getting treatment for marijuana each year has increased by roughly 50%, or about 100,000 people.

Former drug czar John Walters was fond of using the increase in the number of people being treated for marijuana to argue that it showed the increasing seriousness of marijuana use as a drug problem, but a closer look at the SAMHSA paints a different picture.

Of the people getting treatment for marijuana in 2007, 37.7% had not even smoked in the past month, raising questions about whether they even met the standard (but still arguable) definitions of marijuana abuse or dependence. When you add in the number who had smoked 1-3 times in the past month, the number rose to 53%. Other data set numbers raise similar questions. Only 14.8% of people in treatment for marijuana were self-referrals, as opposed to 56.9% getting treatment because they were ordered to by a court and another 28% in treatment because of referrals from family, schools, employers, or substance treatment or medical providers.

By way of contrast, the self-referral percentages for other drugs are much higher. Among alcohol users in treatment, 29% were self-referrals, for heroin, 58%; cocaine, 36%. Only methamphetamine users had a similar self-referral rate, with 20%.

People in treatment for marijuana are also younger than people in treatment for other drugs. For marijuana, 40% were under 19 at the time of admission, compared to 9% for stimulants, 11% for alcohol, 5% for opiates, and 3% for cocaine. A whopping 75% of people in treatment for marijuana were under age 30, compared to no more than 40% for any other of the major drugs.

The American Psychological Association's Diagnostic and Statistical Manual (DSM-IV) defines substance abuse as "a maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one or more of the following occurring within a twelve-month period:

(1) Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g. repeated absences or poor work performance related to substance use, substance related absences, suspension, or expulsions from school; neglect of children or household).

(2) Recurrent substance use in situations in which it is physically hazardous (e.g. driving an automobile or operating a machine when impaired by substance use).

(3) Recurrent substance related legal problems (e.g. arrest for substance related disorderly conduct).

(4) Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by effects of substance (e.g. arguments with spouse about consequences of intoxication, physical fights).

While it would appear questionable that all those people being treated for marijuana fit those criteria, a SAMHSA researcher said this is indeed the case. Deborah Trunzo, DASIS team leader for SAMHSA's Office of Applied Statistics, said that DSM diagnosis is not reported by all states, but in those states that did report: "Almost three quarters of marijuana admissions for whom DSM diagnosis was reported in 2007 had a DSM diagnosis of marijuana abuse or dependence. The remaining quarter had a DSM diagnosis of abuse or dependence on another substance or a psychiatric disorder. The data from 2006 were similar."

The no use in the past month figures for marijuana are not that shocking either, said Dr. Peter Delaney, Assistant Surgeon General and director of the Office of Applied Studies at SAMHSA. "You may have noticed that 29% of all admissions report no use of their primary substance in the 30 days prior to admission ranging from a low of 16% for heroin to a high of 50% for hallucinogens," Delaney pointed out. "There are a number of explanations for this including individuals coming into treatment may have been on a wait list and may not be currently using their primary drug of choice while preparing to enter treatment -- individuals enter treatment from the jail, other treatment settings, or are referred from court even though they have been abstinent for some time."

There are other explanations, too, Delaney said. "Some people may not be using marijuana presently but report it as the 'favorite' drug, others who are referred for marijuana problems may actually be reporting that alcohol is the problem but the referral trumps the report and finally, as one of the state representatives noted when asked about this phenomenon, many individuals entering treatment do not tell the truth about their use, and providers often see increases in reporting of use at discharge because treatment works."

Not surprisingly, drug reformers, academics and treatment professionals had significantly different takes on the SAMSHA marijuana treatment numbers and what they mean.

"There really is marijuana dependence, and there is an effective treatment for it, but, as the SAMSHA data reveal, it has little to do with what's going on in treatment programs around the US," said Dr. Mitch Earleywine, associate professor of psychology at the State University of New York -- Albany and author of "Understanding Marijuana: A New Look at the Scientific Evidence."

The problem is with the way marijuana fits into the hallmark symptoms of dependence, which are tolerance and withdrawal, Earleywine said. "It is hard to document marijuana tolerance, but the Marinol (THC) studies show tolerance so everyone assumes there must be marijuana tolerance. Also, novice users are less good at knowing how much of a hit they can hold, so experienced users often look more sensitive to marijuana because they're really just more efficient about how they smoke," he said.

Marijuana withdrawal is so subtle it took 2,000 years to document, Earleywine added. "The symptoms are irritability, moodiness, disturbed sleep, craving for marijuana, and -- get this -- loss of appetite," he noted. "When withdrawal occurs, it appears to dissipate within about three weeks, at most." For Earleywine, marijuana withdrawal is about as serious as withdrawal from caffeine.

"The SAMSHA data's suggestion that folks in treatment haven't used marijuana in a month makes it pretty clear that they aren't really dependent at the time of treatment," Earleywine said. "That fact doesn't mean they couldn't benefit from some therapy, but it confirms that an inpatient stay is ridiculous. And yes, someone addicted to crack or meth is missing the chance if some marijuana user is in the program instead."

Noting that only about 15% of people in treatment for marijuana sought treatment themselves and more than half are there because of the courts, Earleywine suggested that most of the rest don't need to be there, either. "Usually, those remainder folks are in there because some family member found a joint and demanded treatment. As you can imagine, clinical work with these guys can be a complete waste of time."

He cited a case in point. "I remember one case that involved a woman in her early twenties in a wheelchair who lived with her parents," he related. "Her folks found her stash and sent her to a ritzy place filled with Betty Ford types. The poor woman had no negative consequences at all. The first week she kept stating this fact but it was interpreted as 'denial,' so she had to spend the next two weeks pretending she really had a problem so the staff would tell her parents that she was making progress."

Earleywine was similarly critical of the DSM-IV criteria for dependency that included repeated legal problems related to smoking pot. "Obviously, these are a confounding of drug laws and enforcement practices. If abuse statistics rise, it can have little to do with the drug or the rates of misuse and everything to do with how much the cops feel like busting people."

"These figures show that there are an awful lot of people in treatment for supposed marijuana abuse or dependency who, by everything we can glean from the numbers, don't look very much like addicts," said Bruce Mirken, communications director for the Marijuana Policy Project. "They are disproportionately employed compared to people in treatment for other drugs, especially when you consider how young the population in treatment for marijuana is. Their lives have not been rendered unlivable by a drug problem, but because of an arrest, they are given a choice between treatment and jail when they actually need neither," he said.

"What is really striking is the extraordinarily high percentage of people referred by the criminal justice system versus the amazingly low percentage of self-referrals. These are not people who walked into the clinic saying 'I need help,'" Mirken said.

"These are people being coerced into treatment mandated by the courts," said Paul Armentano, Deputy Director for the National Organization for the Reform of Marijuana Laws (NORML). "Nationally, more than half have been referred to treatment by the criminal justice system. These are people who have been arrested, they're likely not regular users, they quit using while going through the court system, but are mandated to take treatment to avoid going to jail. You don't see this pattern when it comes to other drugs, where people are much more likely to seek treatment themselves."

"These figures reflect the obsessions and myopia of the Bush administration," said Ethan Nadelmann, executive director of the Drug Policy Alliance. "Part of it reflects the ideology of abstinence -- that once you're in the system you have to stay clean. But it means that people who are recreational marijuana users are unnecessarily put into treatment, wasting their time, money, and energy, and wasting valuable treatment resources. Most people understand that marijuana treatment programs are mostly silly, but everyone has to participate in the charade because possession or use of marijuana remains a criminal offense."

Patricia Greer, president of the executive committee of the Association for Addiction Professionals, was reluctant to downplay marijuana abuse or dependency, but did hint that perhaps some people in treatment did not need to be there. "If you are a chronic user, you could probably use treatment," she said, "but if you're a recreational user just smoking on the weekend, why not treat it like a DWI with a little counseling?" she suggested.

Greer was also hesitant to differentiate between problems with different drugs. "Empirically, they may look different, but in terms of psychological dependence, they are very much alike," she said. "The question is whether your life is unmanageable, are you experiencing employment, school, or relationship consequences. If so, you have a problem. Marijuana may not look that serious, but if it's serious to the people around you, then, yes, it's serious."

There is a small percentage of the marijuana using population who can fairly be identified as dependent, said Armentano. "The Institute of Medicine study said that among those who smoked marijuana, about 9% may exhibit some symptoms of dependency at some point in their lives. Other reviews have placed that number much lower," he noted. "Still, there are a small number who probably are, and those are the people who are voluntarily checking themselves in for treatment."

But there is dependency and then there is dependency, Armentano argued. "People become dependent on all sorts of things, but it's important to delineate marijuana from many other substances when we're talking about physical dependence," he argued. "If alcohol addicts try to quit cold turkey, they can die from withdrawal, and alcohol is not alone in that. But if we're talking about marijuana, we're not talking about serious withdrawal symptoms; we're talking about a little irritability and maybe a couple of nights of trouble falling asleep."

"The majority of our people are being treated for alcohol dependence," said Christine Jones, clinical supervisor for the Pennington County City/County Alcohol and Drug Program in Rapid City, South Dakota. "People with chronic alcoholism remain our biggest problem. For a few years, we had an awful lot of meth, but now it's OxyContin and prescription opiate abuse."

When asked specifically about marijuana, Jones said it is common as a secondary drug of abuse, but her facility was mainly treating alcoholism and meth and opiate dependence. "We have a few who are primary marijuana abusers, but the numbers are way higher for alcohol," she said. "Most of our clients are court ordered."

That led Jones to ask whether the treatment community was doing its job properly. "The question is how well does the substance abuse field do at gate-keeping so that it is addressing clinical needs rather than judicial concerns," said Jones. She said that treatment providers should be assessing clients through procedures such as the American Society for Addiction Medicine's patient placement criteria, which uses a six-dimensional matrix to assess treatment needs. "It is the responsibility of the drug and alcohol field to ensure that the level of treatment they are obtaining is appropriate for what their needs are," she said.

"If you have a marijuana smoker, and he is using occasionally and holding a job and maintaining his responsibilities, it's a misuse of money to send him to a treatment center," said Jones. "Use isn't an automatic indicator that someone needs treatment, but if someone is having repeated problems with marijuana and lots of other problems in his life, you might want to take a look at how the problems and the marijuana use are related," she said.

But drug reformers remained unconvinced, and had suggestions for what to do. "We need to change our marijuana laws," said Mirken. "There is probably a small percentage of people who have a genuine problem with marijuana, and treatment should be available for them, but not coerced treatment for marijuana possession, which is leading to a completely dysfunctional situation. In most states, there are waiting lists for treatment slots. You have to ask how many treatment slots are being occupied by court-ordered marijuana treatment when there are folks with serious problems with cocaine and heroin sitting on waiting lists and not getting help. If that's the case, it's an outrage."

"The single most important thing we can do is make treatment available for people who want it before they get arrested," said Nadelmann. "To the extent that people are being diverted to treatment in the criminal justice system, we have to insist on the primacy of treatment principles over criminal justice principles. When the criminal justice system is involved in drug treatment, that means coerced abstinence, and that's a fundamental problem. Abstinence may work for some people, but it is a mistake to apply that to entire populations of people with drug issues caught up in the criminal justice system," he said.

"There's a superb treatment for marijuana dependence developed by Roger Roffman at the University of Washington and his colleagues," said Earleywine. "It consists of about 12 sessions of outpatient meetings that focus on identifying why you want to quit, what situations usually lead to use, how to change your thoughts about use, how to prevent relapse, how to handle various life stressors, and great ways to plan alternative fun activities. Extremely few programs around the country use this approach. Most of the drug treatment centers around the country have inpatient stays and 12-step meetings with the occasional watered-down group version of some of the topics from the established treatment."

"It's absurd to mandate people attend treatment who don't need it, it's a waste of taxpayer and private dollars," said Armentano. "There are hundreds of thousands of people seeking treatment for real drug problems who can't get it because treatment slots are limited. To think that we are sending hundreds of thousands of marijuana users to treatment who don't need it at a time when treatment resources are so limited is just ridiculous. This is a policy that is purposefully endangering the health of those who most desire or need drug treatment."

Feature: Meeting in Vienna, UN Commission on Narcotics Drugs Prepares to Head Further Down Same Prohibitionist Path, But Dissenting Voices Grow Louder

The United Nations Commission on Narcotic Drugs (CND) met this week in Vienna to draft a political statement and plan of action to guide international drug policy for the next decade. The statement largely affirms existing prohibitionist policies and ignores harm reduction, as the CND has done it the past. [Editor's note: The draft statement had not been formally approved as of press time, but is likely to be approved as is.]

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Vienna International Center, home of the UN Office on Drugs and Crime
The political statement is supposed to evaluate the implementation of the previous political declaration and action plan approved by the UN General Assembly Special Session (UNGASS) in 1998. At the 1998 session, UNGASS adopted the slogan "A Drug-Free World -- We Can Do It" and launched a "campaign" to wipe out all drug crops -- from marijuana to opium to coca -- by 2008.

But while the international community continues to slide down its century-old prohibitionist path regarding non-medicinal drug use and sales, it is encountering an increasing amount of friction. The United States, as leader of the hard-liners, continues to dominate the debates and set the agenda, but an emerging bloc of mainly Latin American and European countries is expressing deep reservations about continuing the same policies for another decade.

The atmosphere in Vienna this week was circus like, complete with street protests, as national delegations, non-governmental organizations (NGOs), and other interested parties heatedly debated what an increasingly vociferous minority called a "failed" approach to the issue. Debate was particularly intense about the inclusion of harm reduction in the political statement -- a position rejected by the US delegation, led by outgoing acting drug czar Edward Jurith.

The drug summit came as the UN, the CND, and the countries pushing the prohibitionist hard-line have come under repeated attack for essentially maintaining the status quo. On Tuesday, the European Commission issued a report that found while in the past decade policies to help drug users and go after drug traffickers have matured, there was little evidence to suggest that the global drug situation had improved.

"Broadly speaking the situation has improved a little in some of the richer countries, while for others it worsened, and for some of those it worsened sharply and substantially, among which are a few large developing or transitional countries," an EC media statement on the report said. "In other words, the world drugs problem seems to be more or less in the same state as in 1998: if anything, the situation has become more complex: prices for drugs in most Western countries have fallen since 1998 by as much as 10% to 30%, despite tougher sentencing of the sellers of e.g. cocaine and heroin in some of these markets."

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SSDP's Kris Krane, caged as part of HCLU demonstration at UN (drogriporter.hu/en/demonstration)
Current anti-drug policies also came under attack from a growing coalition of NGOs, including Human Rights Watch, the International Harm Reduction Association, the European NGO Coalition for Just and Effective Drug Policies (ENCOD), and the International Drug Policy Consortium, as well as various NGOs from the US, Brazil, Canada, and England, among others, all of whom were in Vienna for the meeting. Human Rights Watch urged the CND to undo a decade of neglect, while the English group Transform Drug Policy Foundation called for a moratorium on global strategic drug policy setting, a review of the consequences of prohibitionist policies, and a commission to explore alternatives to the failed war on drugs.

"Every state that signs up to the political declaration at this commission recommits the UN to complicity in fighting a catastrophic war on drugs," said Danny Kushlick, policy director for Transform. "It is a tragic irony that the UN, so often renowned for peacekeeping, is being used to fight a war that brings untold misery to some of the most marginalized people on earth. 8,000 deaths in Mexico in recent years, the destabilization of Colombia and Afghanistan, continued corruption and instability in the Caribbean and West Africa are testament to the catastrophic impact of a drug control system based upon global prohibition. It is no surprise that the declaration is unlikely even to mention harm reduction, as it runs counter to the primary impact of the prevailing drug control system which, as the past ten years demonstrate, increases harm."

Not all the action took place in the conference hall. Wednesday saw a lively demonstration by NGO groups including Students for Sensible Drug Policy, the drug user group INPUD, ENCOD, and the Hungarian Civil Liberties Union, among others. Protestors spoke to reporters from jail-like cages, waved signs and passed out pamphlets to delegates forced to run their gauntlet, and decried the harms of drug prohibition. One particularly effective protestor was dressed as a sun-glass wearing, cigar-puffing Mafioso, celebrating that business was good thanks to prohibition.

Even UN Office on Drugs and Crime (UNODC) head Antonio Maria Costa, while whistling past the graveyard to insist that progress had been made in the past decade, acknowledged that current global policies have backfired in some ways. Giving the opening address Wednesday, Costa said "the world drug problem has been contained, but not solved" thanks to international anti-drug efforts.

But global drug control efforts have had "a dramatic unintended consequence," he added, "a criminal black market of staggering proportions." The international drug trade is "undermining security and development and causing some to make a dangerous wager in favor of legalization. Drugs are not harmful because they are controlled; they are controlled because they are harmful." Drug legalization would be "a historic mistake," he said.

Even so, Costa painted a dire picture of what prohibition had wrought: "When mafias can buy elections, candidates, political parties, in a word, power, the consequences can only be highly destabilizing" he said. "While ghettoes burn, West Africa is under attack, drug cartels threaten Central America and drug money penetrates bankrupt financial institutions".

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activists from International Network of People Who Use Drugs (INPUD) at demo (drogriporter.hu/en/demonstration)
Not everybody was buying into the UNODC-CND-US position of more of the same. Bolivian President Evo Morales brandished a coca leaf, then chewed it during his address to the delegates to underline his demand that coca be removed from the list of proscribed substances.

"This is coca leaf, this is not cocaine; this is part and parcel of a culture," Morales said. The ban on coca was a "major historical mistake," he added. "It has no harmful impact, no harmful impact at all in its natural state. It causes no mental disturbances, it does not make people run mad, as some would have us believe, and it does not cause addiction."

Neighboring Brazil was also critical. "We ought to recognize the important progress achieved over the last decade," said Brazilian delegate Jorge Armando Felix. "But the achievements have not been accomplished. The aim of a world free of drugs has proven to be unobtainable and in fact has led to unintended consequences such as the increase of the prison population, increase in violence related to an illegal drug market, increase in homicide and violence among the young population with a dramatic impact on mortality and life expectancy -- social exclusion due to drug use and the emergence of synthetic drugs."

Felix also had some prescriptions for UNGASS and the CND. "At this historic moment with the opportunity to reassess the past 10 years and more importantly to think about the challenges to come, Brazil enforces the need for recognition of and moving towards: harm reduction strategies; assessing drug dependence, and HIV AIDS populations; securing the human rights of drug users; correcting the imbalance between investments in supply and demand reduction areas; increasing actions and programs of prevention based on scientific evidence with an emphasis towards vulnerable populations and towards increase of access to and care for problematic or vulnerable drug users; and to the acknowledgment of different models of treatment for the need for increased funding of these efforts."

Brazilian Luiz Paulo Guanabara, head of the NGO Psicotropicus, observed it all with mixed feelings. "Early on, I thought the NGO strategy for harm reduction would not result in anything and that we should aim for drug regulation instead," he said. "And in the end, the term harm reduction is not in the political declaration, but the Beyond 2008 document is very strong and has not gone unnoticed."

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Mafioso-looking activist distributing ''United Nations of Prohibition'' 1,000 note bills with UNODC chief Costa's face on one side, and a thank you from the In Memoriam Al Capone Trust on the other (drogriporter.hu/en/demonstration)
Guanabara had harsh words for both the Americans and the UN. "It seems like the American delegates believe harm reduction is a sin -- or they favor harm increase, so they can lock up more people and have more HIV patients, increase crime, sell more weapons and make money out of the disgrace of others and families' destruction. Their prohibitionist stance is obscene," he declared. "And these guys at the CND understand nothing of drugs and drug use, they are just bureaucrats. To put drugs in the hands of bureaucrats is as dangerous as putting them in the hands of criminals."

But despite the lack of results this time around, Guanabara was thrilled by the participation of civil society. "The civil society mobilization is enormous and intense," he said. "The NGO events around the meeting were the real high-level meetings, not the low-level ones with the bureaucrats at the CND."

While the sentiments from Brazil and Bolivia were echoed by various national delegations, mainly European, and while even the UNODC and the US are willing to give nods to an increased emphasis on treatment and prevention, with the US delegation even going so far as to approve of needle exchanges, at the end of the day, the CND political declaration and action plan represents a stubborn adherence to the prohibitionist status quo.

"Government delegations could have used this process to take stock of what has failed in the last decade in drug-control efforts, and to craft a new international drug policy that reflects current realities and challenges," said Prof. Gerry Stimson, executive director of the International Harm Reduction Association. "Instead, they produced a declaration that is not only weak -- it actually undermines fundamental health and human rights obligations."

American attendee and long-time drug reform activist Michael Krawitz also had mixed feelings. "The slow train wreck that Harry Anslinger started with the 1961 Single Convention is finally grinding to a halt," he said. "The argument here has been a semantic one over harm reduction, but the subtext is much more important, and the subtext is that the treaties were set up to protect public health and are currently being interpreted in such a way as to do the opposite. The declaration wound up being watered down and piled high with reservations. The next five years should prove interesting."

The IHRA and other NGOs called on governments with reservations about the political declaration to refuse to endorse it. That probably will not happen, but some governments have indicated they will add reservations to their approval of the declaration. After a century of prohibition, the first formal cracks are beginning to appear at the center of the legal backbone of global drug prohibition. Given that the dissent has largely appeared only since the last UNGASS in 1998, perhaps this isn't such a bad start.

Feature: Prisons Under Pressure -- Corrections Budgets in the Age of Austerity

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Arizona State Prison Complex at Douglas
If there are any silver linings in the current economic, fiscal, and budgetary disaster that afflicts the US, one of them could be that the budget crunch at statehouses around the country means that even formerly sacrosanct programs are on the chopping block. With drug offenders filling approximately 20-25% of prison cells in any given state, prison budgets are now under intense scrutiny, creating opportunities to advance sentencing, prison, and drug law reform in one fell swoop.

Nationwide, corrections spending ranks fourth in eating up state budget dollars, trailing only health care, education, and transportation. According to the National Association of State Budget Officers, five states -- Connecticut, Delaware, Michigan, Oregon and Vermont -- spend more on prisons they than do on schools.

The US currently spends about $68 billion a year on corrections, mostly at the state level. Even at a time when people are talking about trillion dollar bail-outs, that's a lot of money. And with states from California to the Carolinas facing severe budget squeezes, even "law and order" legislators and executive branch officials are eyeing their expensive state prison systems in an increasingly desperate search to cut costs.

"If you look at the amount of money spent on corrections in the states, it's an enormous amount," said Lawanda Johnson of the Justice Policy Institute. "If they could reduce prison spending, that would definitely have an impact on their state budgets. Now, a few states are starting to look at their jail and prison populations," she said.

Among them:

Alabama: The state Department of Corrections is facing a 20% budget cut in 2009. Alabama Corrections Commissioner Richard Allen is telling legislators he will try to "dampen down" the number of new inmates by working on sentencing reform, community corrections, new pardon and parole rules, and a supervised reentry program. The number of Alabama prisoners jumped from nearly 28,000 in March 2006 to more than 30,000 in December 2008, an increase Allen said was caused in part because the legislature had created 67 new felony crimes since 2001.

California: With a prison population of more than 170,000 and the state facing budget deficits of gargantuan proportions, Gov. Arnold Schwarzenegger (R) has suggested eliminating parole time for all non-serious, nonviolent, and non-sex offenders. His plan would cut the parole population by 65,000 people, more than half the 123,000 currently on parole. It would also reduce by tens of thousands the number of people behind bars in the Golden State by increasing good-time credits for inmates who obey the rules and complete rehabilitation. That move could cut the prison population by 15,000 by June 2010. Schwarzenegger's proposal is opposed by -- you guessed it -- the California Correctional Peace Officers Association, for which mass imprisonment is a job security issue.

Colorado: Gov. Bill Ritter (D) has proposed extensive cuts in the state corrections system, including closing two state prisons, delay the construction or expansion of two other prisons, and selling a department-owned 1,000-acre ranch. Those cuts would eliminate at least 71 jobs and save $13.6 million in the coming fiscal year.

Kentucky: Gov. Steve Beshear (D) and state legislators last year granted early release to some 1,800 prisoners, including some violent offenders, in a bid to take a bite out of the state's $1 billion budget deficit. Although Beshear and the legislature have protected the Corrections Department from budget cuts afflicting nearly all other state agencies and programs, the state's dire financial straits are making passage of a treatment-not-jail bill for drug offenders more likely this year. That could save the state $1.47 million.

Michigan: Gov. Jennifer Granholm (D) will propose keeping prison spending near the $2 billion mark in 2010, 57% higher than a decade ago, but legislators are about to chew on proposals for reform from the Council of State Governments Justice Center to cut the number of state prison inmates by 5,000. That would save about $262 million by 2015, far short of the $500 million annual savings now being called for by the Detroit Chamber of Commerce, among others. The Justice Center proposals include cutting the average time above the minimum sentences inmates serve from 27% to 20%. Some 12,000 inmates have already served more than their minimum sentences. Deputy Corrections Director Dennis Schrantz said those proposals were only the beginning, noting that the state had closed nine prisons since 2003 and will close three more this year.

Mississippi: Faced with an emergency $6.5 million (2%) budget cut for the current fiscal year, the state Department of Corrections is moving to reduce the number of inmates in county and regional jails and private prisons. The state pays counties $20 per inmate per day to house them and pays private prison companies at least $31.70 per inmate per day. The state will remove 300 inmates from county jails and 50 from private prisons. Corrections Commissioner Chris Epps also has sent a list of 2,900 nonviolent inmates to the parole board for possible early release. The department may also grant early release to prisoners with severe medical problems, allowing the state to cut costs by not having to provide medical care for them.

New York: With a $15 billion budget deficit and a Department of Correctional Services eating up $2.5 billion a year -- more than any other state agency -- Gov. David Paterson (D) is seeking to release 1,600 offenders early and reform or repeal the state's draconian Rockefeller drug laws. The prison budget has continued to increase despite a whopping 35% drop in crime in the last decade and a prison population at the lowest levels since the 1980s. Now Correctional Services Director Brian Fischer wants to close prison camps and correctional annexes sitting empty with a thousand beds, saving the state $100 million and cutting the 31,000 corrections department employees by about 1,400 through attrition. It's a start.

South Carolina: After running in the red for the last two years, the state's prison director, Jon Ozmint, told legislators he needed $36 million for the current fiscal year, leaving the solons with three choices: cut spending for health, education, or other services; finance corrections through the reserve, or close prisons. Legislators last year rejected Ozmint's suggestion that they save money by releasing prisoners early and closing prisons. This year, Ozmint is suggesting that the state reduce the requirement that serious felons serve 85% of their sentence to 70%. The prison crisis in South Carolina has prompted the normally pro-prison Charleston Post & Courier to call for "alternative sentencing that could keep nonviolent offenders out of prison" and "revising mandatory minimum sentences."

Virginia: Telling legislators "we want to lock up people we're afraid of and not ones we're mad at," Virginia corrections director Gene Johnson said this week Gov. Tim Kaine (D) wants to release some nonviolent offenders 90 days early to save the state $5 million a year. Nearly 1,200 inmates would qualify for early release, he said. Virginia has already closed five prisons employing 702 people, and may resort to limited lay-offs, Johnson told legislators.

This is by no means a list of all the states grappling with prison spending in the current crisis. Correctional costs are on the agenda at statehouses across the country, but as the list above suggests, the economic squeeze is providing openings for reform.

"In the handful of states that have already opened legislative sessions this year, the corrections budget is frequently raised in budget conversations," said Ryan King, an analyst for The Sentencing Project. "A number of governors have raised the issue. It will definitely be on the table. With the recession really taking hold this year, it will be a major, major issue," he said.

"With each passing year, there is a little greater acknowledgement that we are in a position where states are spending far too much money to incarcerate and can't build their way out of it, but the prison population is still increasing each year," said King. "If we want to talk about a sustainable reduction in the prison population, we need to revisit who is going and for how long, as well as a critical evaluation of sentencing laws, repealing mandatory minimums, and expanding parole eligibility. Those are the big steps that need to be taken."

There is still resistance to reform, King said, but things are changing. "There is now much broader consideration of amending parole and probation policies, along with diversion of drug offenders," he said. "Those are probably the two most widely achieved reforms in the last few years. We will probably see more of that, but if we're going to move this from diverting a few thousand people to really addressing the 1.5 million in prison, we are going to have to start asking whether people belong in prison for decades, whether life without parole is really necessary. The real engines of growth for the prison population are admissions and sentence lengths, and a lot of policymakers are still uncomfortable having that conversation."

After decades of seemingly endless sentence increases and prison-building, perhaps the wheel is beginning to turn. Politicians immune to "bleeding heart" pleas for humanity are not immune to pocket-book issues. But while change is starting to come, the US remains a long way from losing its crown as the world's leading jailer.

Feature: Narcs Cheer -- House Economic Stimulus Bill Would Give Byrne Grant Program $3 Billion Over Three Years

As part of the $825 billion economic stimulus bill passed by the House last week, the Democratic Party leadership and the Obama administration included $3 billion for the controversial Byrne Justice Assistance Grant program, which funds multi-agency drug task forces across the country, and $1 billion for the Community Oriented Policing (COPS) program, which will pay for thousands of additional police officers to hit the streets. Drug enforcement lobby groups are pleased, particularly about the Byrne funding, but others predict that any "stimulus" more Byrne grants might provide will be followed long-term drag on state budgets in ways going beyond the federal dollars.

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Sen. Harkin and Iowa law enforcement officials at 2004 press conference
In one of the few drug policy-related decisions made by the Bush administration that reformers could cheer, the Bush administration tried throughout its second term to reduce or eliminate funding for the Byrne grants. In so doing, it was heeding the concerns of conservative and taxpayer groups, who called the program "an ineffective and inefficient use of resources." But while the Bush administration tried to gut the program, Congress, still tied to the "tough on drugs" mentality, kept trying to restore funding, albeit at reduced levels.

The Byrne grant program, and especially its funding of the scandal-ridden multi-jurisdictional anti-drug task forces, also came in for harsh criticism from drug reform, civil rights and criminal justice groups. For these critics, the program was in dire need of reform because of incidents like the Tulia, Texas, scandal, where a Byrne-funded task force police officer managed to get 10% of the black population of the town locked up on bogus cocaine distribution charges. Scandals like Tulia showed the Byrne grant program "did more harm than good," the critics wrote in a 2006 letter demanding reform.

Of course, Tulia wasn't the only Byrne-related scandal. A 2002 report from the ACLU of Texas found 16 more scandals involving Byrne grant-funded task forces in Texas, including cases of witness tampering, falsifying of government records, fabricating evidence, false imprisonment, racial profiling, and sexual harassment. Byrne-related scandals have also occurred in other states, including the misuse of millions of dollars of grant money in Kentucky and Massachusetts, false convictions because of police perjury in Missouri, and making deals with drug offenders to drop or lower charges in exchange for cash or vehicles in Alabama, Arkansas, Georgia, Massachusetts, New York, Ohio, and Wisconsin.

In accord with its own budget-cutting imperatives, and in response to critics on the right and left, the Bush administration again tried to zero out the Byrne grant program in FY 2008. While the program was indeed cut from $520 million in 2007, Congress still funded it at $170 million for 2008. Now, it has folded the Byrne program and the Clinton-era COPS program into the emergency economic stimulus bill, leading to loud cheers from the law enforcement community.

"Safe communities are the foundation of a growing economy, and increased Byrne JAG funding will help state and local governments hire officers, add prosecutors and fund critical treatment and crime prevention programs," said National Criminal Justice Association President David Steingraber, executive director of the Wisconsin Office of Justice Assistance. "I applaud the stimulus bill proposed by the House Democrats and press Congress for its quick approval."

"This is very encouraging," said Bob Bushman, vice-president of the National Narcotics Officers Associations Coalition and a 35-year veteran of drug law enforcement in Minnesota. "We think it's a very good sign that this was included in the House bill. The House side was where we struggled in past years. Maybe now the House has listened to us and is taking our concerns more seriously," he said. "We built a broad coalition of law enforcement and drug treatment and prevention people."

Byrne money doesn't just fund the task forces, Bushman pointed out, although he conceded that's where much of the money has gone. "Byrne money goes to all 50 states, and most of them used it for the multi-jurisdictional task forces. Here in Minnesota, we split it between task forces and offender reentry programs and drug courts."

While a answer to just how much Byrne money has gone to the task forces remains buried deep in the bowels of the Justice Department -- part of the problem is that the 50 states are awarded block grants and then decide at the state level how to allocate the funds, and some states are better than others at reporting back to Justice -- observers put a low-ball figure of at least 25% going to fund them, and possibly much higher.

The task forces are needed, said Bowman. "While we are never going to arrest our way out of this, I've seen too much of the damage done by drug abuse, and we need all the help we can get," he said. "Not just for policing, but also for treatment and prevention and drug courts. We need all three pillars, and the Byrne program helps with all three."

If law enforcement was pleased, that wasn't the case with civil rights, taxpayer, and drug reform groups. They said they were disappointed in the restoration of funding under the auspices of the economic stimulus bill, and vowed to continue to try to either cut or reform the program.

"We're working on a letter to Congress about the Byrne grants right now," said Lawanda Johnson, communications director for the Justice Policy Institute, one of the organizations that had signed on to the 2006 DPA letter. "The Byrne grant program is not an effective use of funds for preserving public safety or stimulating the economy. The only way you will get an economic boost from this is if you own stock in Corrections Corporation of America," she laughed, grimly.

"With so many smart people working on the budget and the stimulus package, you would think they would understand that the states are looking to reduce their prison populations and change those policies that have jailed so many people," said Johnson. "To then turn around and have the federal government invest $4 billion in more police and more grants seems paradoxical. It's just going to jack up the spending for states and localities, and they are already struggling."

"We oppose the wasteful economic stimulus bill and we oppose the inclusion of the Byrne grants in it," said Leslie Paige, spokesperson for Citizens Against Government Waste, one of the conservative taxpayer groups that has opposed the grants for the past several years. "If there is going to be government spending, the least you can do is make sure the money is going to have a long term positive impact on the economy."

"This is disappointing, but not surprising," said Bill Piper, national affairs director for the Drug Policy Alliance. "This reverses Bush's cuts in the program and restores funding at even higher levels. At the same time Congress and the Obama administration are expressing great concern about racial disparities and over-incarceration, they keep trying to fund this program, which will only stimulate more arrests of more nonviolent drug offenders," Piper noted.

"The Democrats are framing this as helping in these tough economic times, but the people who will be arrested will end up in state prison, and the states will have to pay for that," Piper pointed out. "The states may well end up paying more in the long run. It's far from clear that this will stimulate the economy, but what is clear is that it will stimulate the breaking up of families and decreasing productivity and tax revenues, especially in communities already devastated by the impact of over-incarceration."

Killing funding outright is unlikely, said Piper. "I don't think there's any way we can stop this from being included because the support for it is strong and bipartisan," he said. "No one wants to go up against the police. Our real hope is that later in the year we can put some restrictions on the program, which is what we've been working on. Instead of trying to cut it, we can try to use it to encourage state and local law enforcement to change how they operate. They're so addicted to federal funding that they may do just about anything, such as documenting arrests or having performance measures."

Bushman and the rest of law enforcement aren't resting easy just yet. "The funding has to survive hearings and make it into the final appropriation," he noted. "This is not a done deal yet."

But it looks like Congress is well on the way to funding three more years of Byrne grants at $1 billion a year, the highest level of funding in years. And don't forget the 13,000 new police officers to be funded for the next three years by the COPS program. If Congress and the cops have their way, we can look forward to more drug busts, more prosecutions, more people sentenced to prison, and a greater burden on already deficit-ridden state budgets.

The White House: Obama on Drug Policy

The incoming Obama administration has posted its agenda online at the White House web site Whitehouse.gov. While neither drug policy nor criminal justice merited its own category in the Obama agenda, several of the broad categories listed do contain references to drug and crime policy and provide a strong indication of the administration's proclivities.

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But before getting into what the agenda mentions, it's worth noting what the agenda does not mention: marijuana. There is not a word about the nation's most widely used illicit drug or the nearly 900,000 arrests a year generated by marijuana prohibition. Nor, despite Obama campaign pledges, is there a word about medical marijuana or ending the DEA raids on providers in California -- which doesn't necessarily mean he will go back on his word. It could well be that the issue is seen as too marginal to be included in the broad agenda for national change. With the first raid on a medical marijuana clinic during the Obama administration hitting this very week, reformers are anxiously hoping it is only the work of Bush holdovers and not a signal about the future.

Reformers may find themselves pleased with some Obama positions, but they will be less happy with others. The Obama administration wants to reduce inequities in the criminal justice system, but it also taking thoroughly conventional positions on other drug policy issues.

But let's let them speak for themselves. Here are the relevant sections of the Obama agenda:

Under Civil Rights:

  • End Racial Profiling: President Obama and Vice President Biden will ban racial profiling by federal law enforcement agencies and provide federal incentives to state and local police departments to prohibit the practice.
  • Reduce Crime Recidivism by Providing Ex-Offender Support: President Obama and Vice President Biden will provide job training, substance abuse and mental health counseling to ex-offenders, so that they are successfully re-integrated into society. Obama and Biden will also create a prison-to-work incentive program to improve ex-offender employment and job retention rates.
  • Eliminate Sentencing Disparities: President Obama and Vice President Biden believe the disparity between sentencing crack and powder-based cocaine is wrong and should be completely eliminated.
  • Expand Use of Drug Courts: President Obama and Vice President Biden will give first-time, non-violent offenders a chance to serve their sentence, where appropriate, in the type of drug rehabilitation programs that have proven to work better than a prison term in changing bad behavior.
  • Promote AIDS Prevention: In the first year of his presidency, President Obama will develop and begin to implement a comprehensive national HIV/AIDS strategy that includes all federal agencies. The strategy will be designed to reduce HIV infections, increase access to care and reduce HIV-related health disparities. The President will support common sense approaches including age-appropriate sex education that includes information about contraception, combating infection within our prison population through education and contraception, and distributing contraceptives through our public health system. The President also supports lifting the federal ban on needle exchange, which could dramatically reduce rates of infection among drug users. President Obama has also been willing to confront the stigma -- too often tied to homophobia -- that continues to surround HIV/AIDS.

Under Foreign Policy:

  • Afghanistan: Obama and Biden will refocus American resources on the greatest threat to our security -- the resurgence of al Qaeda and the Taliban in Afghanistan and Pakistan. They will increase our troop levels in Afghanistan, press our allies in NATO to do the same, and dedicate more resources to revitalize Afghanistan's economic development. Obama and Biden will demand the Afghan government do more, including cracking down on corruption and the illicit opium trade.

Under Rural Issues:

  • Combat Methamphetamine: Continue the fight to rid our communities of meth and offer support to help addicts heal.

Under Urban Issues:

  • Support Local Law Enforcement: President Obama and Vice President Biden are committed to fully funding the COPS program to put 50,000 police officers on the street and help address police brutality and accountability issues in local communities. Obama and Biden also support efforts to encourage young people to enter the law enforcement profession, so that our local police departments are not understaffed because of a dearth of qualified applicants.
  • Reduce Crime Recidivism by Providing Ex-Offender Supports: America is facing an incarceration and post-incarceration crisis in urban communities. Obama and Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership, and work to reform correctional systems to break down barriers for ex-offenders to find employment.

Think Tanks: Substance Abuse Center "Join Together" Merges With Califano's Controversial CASA

The Boston University-based drug treatment and prevention group Join Together is merging with the controversial National Center on Addiction and Substance Abuse, an outfit run for years by former Health, Education and Welfare Secretary Joseph Califano that reform groups have generally regarded as a propaganda mill. The two groups made the announcement Thursday.

"Merging Join Together into CASA will greatly strengthen CASA's ability to inform the American people of the economic and social costs of substance abuse and its impact on their lives, make CASA's research findings and recommendations widely available to those working on the front lines to prevent and treat substance abuse and addiction, and significantly expand our nationwide advocacy capacity," CASA said Thursday. "The combination of CASA and Join Together will produce a total far greater than the sum of the parts."

Join Together describes itself as "the nation's leading provider of information, strategic planning assistance, and leadership development for community-based efforts to advance effective alcohol and drug policy, prevention, and treatment." Among the organization's works is a 2003 report prepared in collaboration with the American Bar Association, lauded by drug policy reformers, in which the authoring panel called for a range of reforms to end discrimination against people in recovery from substance abuse, including repeal of the Higher Education Act's provision denying financial aid for college to would-be students because of drug convictions.

In an e-mail message to his list, Join Together director and founder David Rosenbloom, PhD said he was "thrilled about this new development." It would allow Join Together to expand its content making use of CASA staff and reports. "In fact, we have often looked to CASA research reports, conferences, demonstration projects and books as foundations for our own work." Rosenbloom will succeed Califano on the job as CASA's President and CEO.

Drug policy reformers will not be sorry to see Califano go into retirement. Reformers -- and others -- have criticized CASA's research on numerous occasions. For example, sociologist and drug researcher Craig Reinarman dissected Califano's anti-drug and anti-drug reform agenda in a 1997 article in the International Journal of Drug Policy. Califano had attacked Dutch cannabis policies, attempted to smear proponents as "legalizers," and countered them with what he called "facts" purporting to show that "legalization would be a disaster for European children and teenagers."

Califano is also a relentless purveyor of the widely discredited "gateway theory" that marijuana use leads to other drug use, and has resorted to such meaningless and debunked claims as "marijuana users are 85 times as likely to use cocaine as non-users."

In 2002, a Califano report on teen drinking came under fire from a different sort of critic: the Substance Abuse and Mental Health Services Administration (SAMHSA). SAMSHA politely slapped down CASA's sensational -- and widely-reported -- claim that underage drinkers accounted for 25% of total alcohol consumption. The real figure was less than half of CASA's, SAMHSA reported.

Hopefully CASA under Rosenbloom will follow in Join Together's sober footsteps rather than CASA's sensationalistic ones. If so, the new CASA may well become a force for positive change.

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