In 2010 Trish and Daryl Bertrand were busted for cultivating marijuana in the attic of their park equipment business in Christian County, Missouri. There was no point in fighting the charges. Police found a sophisticated indoor grow operation, complete with 47 plants, scales, and packaging supplies. Daryl, who four days before the raid had undergone spinal fusion surgery, told police he used 80 percent to 90 percent of the marijuana to treat back pain and sold or gave the rest to friends. Trish told police she never used the stuff and wasn’t thrilled about Daryl growing it. Too broke to take the case to trial, they both pled guilty to felony cultivation.
Stories like the Bertrands’ are familiar to opponents of the war on drugs, but this one has a slightly unusual ending. Although Missouri, which the Marijuana Policy Project says has “some of the toughest marijuana laws in the country,” punishes pot cultivation with up to 15 years in prison, neither Trish nor Daryl was incarcerated. In 2011 Daryl received an eight-year suspended sentence, five years of probation, and a $350 fine. Trish was sentenced to five years of probation, a $375 fine, and 100 hours of community service. In exchange for this apparent leniency, both were required to attend substance abuse counseling.
Three years after their arrest, Trish, 38, and Daryl, 44, have yet to “reoffend.” That makes theirs a success story in the eyes of folks who promote the use of alternative sentencing, monitoring, and counseling for nonviolent drug offenders. And it’s hard to disagree when you look only at what could have happened to them: They weren’t imprisoned for a decade and a half; their children did not grow up in foster care; they did not re-emerge into society with skills and knowledge rendered obsolete by years of confinement.
But prison isn’t the only bad thing that can happen to a person. Collateral consequences of a drug arrest range from having your mugshot appear in Google searches for your name, to fines and court fees that can land you in a modern-day debtor’s prison.
The Bertrands faced their own consequences. The couple spent three days on the evening news, which killed their child-centered equipment business. With Ozark Mountain Playgrounds on the rocks, the Bertrands could no longer afford to maintain the home where their kids had grown up. So they left behind what Trish calls “suburban bliss” to live in a low-rent neighborhood where they now count two registered sex offenders—a third-degree rapist and a second-degree child molester—and two violent felons among their neighbors. “We do not allow our children outside,” she says.
The repercussions don’t end there. Although she did not actually have a substance abuse problem, Trish was forced to schedule her life, her family’s activities, and her job hunt around three drug classes per week and one counseling session every 14 days. The Bertrands’ daughters, who were 10 and 12 when their parents were arrested, needed counseling as a result of the intense public scrutiny. “There were times,” Trish says, “when we went to school functions with my younger daughter and people wouldn’t even sit by us.”
Three years after their arrest, Daryl is on disability, Trish works as a temp, and the formerly middle-class family lives paycheck to paycheck. “We don’t even look at the future,” Trish says.
Rise of the Third Way
Today, when legalization advocates argue that imprisoning nonviolent, low-level drug offenders destroys families and destabilizes communities, no one disagrees. Republicans, conservative Democrats, and leaders in the criminal justice industry have all come around to the idea that locking up people who are not dangerous creates more problems than it solves. While some states, such as Florida, remain reluctant to reduce their incarceration rates, the days of legislators’ smearing each other as “soft on crime” while calling for harsher sentences and more prisons are mostly history.
But the Bertrands’ experience gives you a sense of what President Barack Obama’s drug czar, Gil Kerlikowske, has in mind when he talks about “drug policy reform.” Lock up fewer drug offenders, but don’t make their behavior any less illegal. Call addiction a disease, but continue to use police and SWAT teams to enforce drug laws. Talk about reducing the stigma of drug use and addiction, but maintain the ultimate sanction by deeming every person caught with drugs a criminal.
“The debate is happening now on the reformers’ terrain,” says Jill Harris of the pro-legalization Drug Policy Alliance (DPA). “It’s not as if anyone is saying, ‘Keep the system as is.’ The ‘keep it as it is’ folks have moved to what they call a ‘middle ground,’ even though it’s close to prohibition. We’re no longer arguing about whether users should go to prison, so that’s a victory for us.”
That doesn’t mean prohibitionists have disappeared. Public-health control enthusiasts and compassionate conservatives are still united against illicit drug use of any sort. It’s just that they’re playing the game very differently. In the former category are Obama and Kerlikowske, the drug court and addiction treatment industries, the Pew Center on the States, and what’s left of the nonprofit drug war apparatus; in the latter category are conservative legislators and small-government think tanks such as the Texas Public Policy Foundation’s Right on Crime. While the Obama administration provides federal funding for prison diversion programs, Right on Crime and Pew provide politically neutral policy solutions to state legislators, and the treatment industry provides training and beds.
Republicans and Democrats often use the same language when explaining their support for prison diversion. Obama’s 2010 Drug Control Strategy Report, for example, said “programs that combine addiction treatment with intensive monitoring and swift and certain sanctions for violations produce real results.” Three years later, Maryland state Rep. Michael Hough (R-Brunswick), a pro-gun, anti–gay marriage, anti-Obama-Care Republican, told The Weekly Standard he prefers “swift and certain” sanctions over prison, because “on a human level” he knows “people sometimes just get trapped in addiction.” The two sides even talk the same when explaining why we have to punish drug offenders in the first place; it’s all about “responsibility.”
The move toward alternative sentencing has made a measurable, albeit small, dent in America’s correctional population. At the end of 2008, according to the Bureau of Justice Statistics, 7.3 million people were under some form of correctional supervision in the U.S.: 4.3 million people were on probation, 1.5 million people were in state or federal prisons, 828,169 people were on parole, and 785,533 people were in a county or city jail. Every year since 2008, the sum of those figures has declined, dipping below 7 million in 2011; so has the number of people in every category except for those on parole (a category that tends to expand as jail and prison populations shrink) and those imprisoned by the federal penal system, which has stiff mandatory minimum sentences and no parole. Even that could change soon: Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) have introduced legislation to reform federal mandatory minimums; Reps. Thomas Massie (R-Ky.) and Robert Scott (D-Va.) have introduced companion legislation in the House. While legislators aren’t rushing to add themselves as co-signers, such groups as the National Association of Evangelicals, the National Association for the Advancement of Colored People (NAACP), and Americans for Tax Reform have all endorsed the legislation.
Third way advocates and conservative reformers attribute the declining correctional numbers to their own efforts. The Weekly Standard, The American Conservative, The Washington Monthly, and Think Progress all have published stories praising the proliferation of drug courts, and local news outlets report on the restorative powers of alternative sentencing almost daily. Against that backdrop it is tempting for civil libertarians to see the drug-treatment option as a useful weapon in the fight against the prison industrial complex. But there’s an important catch: The people fighting for prison reform are not fighting for drug legalization. In fact, many of them are fighting against it.