Kinder, Gentler Prohibition

Will drug courts undermine marijuana legalization?

(Page 2 of 3)

South Dakota Dodges Drug Debate

In early 2012, facing the prospect of spending nearly a quarter of a billion dollars to build two new prisons, South Dakota’s Republican governor, Dennis Daugaard, announced that he wanted to overhaul the state’s criminal justice system. With the help of experts from the Right on Crime project and the Pew Center for the States, a work group appointed by the governor began to explore ways to reduce the state’s prison population. 

Emmett Reistroffer, a backer of South Dakota’s unsuccessful 2010 medical marijuana initiative, was one of more than 400 people who joined the work group. Reistroffer wanted to see if he could work some drug reform initiatives into the new package of laws. He learned quickly that it wasn’t likely to happen. “Right off the bat,” he says, “the governor’s staff told the work group, ‘There will be no discussion of decriminalization or legalization of any drugs.’ No discussion of what is or isn’t crime. No discussion of the sex offender registry, juvenile crime, or the root causes of poverty, crime, and addiction. They set the tone that this work group was not created seeking fundamental changes.” 

Undeterred, Reistroffer recruited state Sen. Craig Tieszen (R-Rapid City), a retired police chief, to convince Daugaard’s office to discuss marijuana prohibition. But “one or two days before that meeting was supposed to take place in November,” Reistroffer says, “everybody in the work group got an email saying the governor’s staff is ready to start drafting the legislation.” Two months later, on February 6, 2013, without meaningful input from legalizers, Senate Bill 70, a.k.a. the Improve Public Safety Act, was law. 

S.B. 70, like many criminal justice reform measures these days, expands funding for drug courts. These growing third-way institutions require nonviolent drug offenders who claim to be chemically dependent to undergo outpatient addiction counseling, group therapy, and frequent random urine tests for a period ranging from 12 months to several years. Offenders who relapse are sentenced to community service or several days in jail. 

For drug offenders who aren’t addicts, South Dakota imports Hawaii’s HOPE Program. Instead of requiring one-on-one counseling or group therapy, HOPE, which stands for Help and Opportunity through Probation with Enforcement, simply assigns drug offenders a random color and requires them to call a hotline every morning to see if their color is getting a drug test that day. If offenders skip the drug test or fail it, they are immediately remanded to jail, usually for no more than two days. 

Because not every nonviolent offender is a drug offender, S.B. 70 also created “graduated sanctions” for probation and parole. Probationers and parolees who break the rules get several slaps on the wrist (usually in the form of short jail stays) before they receive the ultimate punishment: prison for the full term of their sentence. 

All of those programs and policies, while far from ideal in the eyes of civil libertarians and legalization advocates, are better than what had been South Dakota’s practice: Addicted drug offenders were more likely to be sent to prison than treatment, and low-level drug offenders who violated probation or parole were oftentimes immediately incarcerated. But as Reistroffer notes, the bill actually increased penalties for some drug crimes and “a lot of people in the media say it made ‘sweeping changes’ or ‘fundamental changes’ to criminal justice laws, when really it didn’t.”

South Dakota puts felonies in six categories, ranging from Class 1 (the most serious) to Class 6 (the least serious). While distribution of a controlled substance has always been a Class 4 felony, S.B. 70 upgrades distribution to Class 3 if the offender is caught with “three or more” of the following items: $300 in cash, a firearm, materials for packaging, drug manufacturing supplies, or records of sales. South Dakota, in other words, is trying to fight the same old drug war but for less money by monitoring drug offenders with urine tests, forcing them to pay fines and fees, mandating they attend treatment, and locking violators up for 48-hour stints. The state will spend less money than if it just incarcerated every felony drug offender and probation violator.

The same week Gov. Daugaard signed what supporters touted as a “sweeping reform,” the South Dakota House’s Health and Human Services Committee killed House Bill 1227, which would have allowed anyone charged with marijuana possession to mount a medical-necessity defense. A week after that, the state Senate Judiciary Committee voted to kill S.B. 221, which would have reduced the maximum penalty for misdemeanor marijuana possession from one year in jail to 30 days. In both instances, the same legislators who had just voted in favor of S.B. 70 voted against the mild relaxation of pot laws. 

The Drug Court Machine

Drug courts play a prominent role in the prison reform movement. These partnerships between courts and substance abuse counseling centers are beloved by President Obama and the White House Office of National Drug Control Policy. They are also virulently opposed to marijuana reform. 

In 2010, when California voters came close to legalizing marijuana with Proposition 19, the National Association of Drug Court Professionals (NADCP) issued a dire warning. If Proposition 19 passed, NADCP said in a position paper, it would “substantially increase ER visits, substance abuse treatment episodes, traffic accidents and fatalities, chronic medical conditions and crime rates for the State of California.” 

In December 2012, two months after Colorado and Washington voters approved ballot initiatives to tax and regulate marijuana, the NADCP, which in 2011 received $5.7 million in government grants, and has spent half a million dollars since 2005 lobbying Congress, released another document on the dangers of legal marijuana. It featured five pages of spurious claims, including allegations that pot use has “been shown to negatively affect the central nervous system in ways that may promote violence” and is “associated with lower satisfaction with intimate romantic relationships, work, family, friends, leisure pursuits, and life in general.” 

Last February the NADCP co-signed a letter to Attorney General Eric Holder from former Rep. Patrick Kennedy (D-R.I.), who now co-chairs, with former Obama drug policy adviser Kevin Sabet, a third-way anti-legalization group called Smart Approaches to Marijuana (a.k.a. Project SAM). The letter asked Holder to forcibly prevent Colorado and Washington from implementing their voter-approved marijuana legalization measures. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • tarran||

    Drug prohibition is yet another one of the many obscene political movements spawned by the American christian pietists of the latter half the 19th century that plague us to this day.

  • entropy||

    There was nothing fundamentally Christian about them. That's a coincidence.

    They were progressive statists. Prog statists do what prog statists do, regardless of whether it has a Christian-flavored branding.

    Today, the Temperance movement is not hardly as Christian but still just as Tempered. It isn't for the Glory of God that Nanny Bloomberg wants to crush the demon soda pop. If you start a progressive elitist technocratic movement with a population that's mostly Christian, you'll probably get Christian progressives to start with. If you start with a bunch of Buddhists you'll get Buddhist progressives. We still have plenty of Christian progs but we also have plenty of atheist progs which goes to show it isn't the theology that's the problem, it's the ideological progressivism (technocratic statism).

    The Christian progs banned booze briefly, but they weren't responsible for pot (not that they would mind credit for it). Far as I can tell, that was the cotton farmers and the ethnic supremacists, who wanted more secure jerbs and less mixed babies.

    You get hung up on hating puritanical prudes just for being, you will end up misdiagnosing the root causes of statism.

  • tarran||

    Entropy, I agree with everything you just wrote.

    They wanted to force people to live Godly lives, forgetting the lesson Jesus gave when Satan tempted him with dominion over the Earth and Jesus told him to pound sand: we can only force ourselves to lead Godly lives, and persuade others.

    They abandoned God but never gave up the meddling.

  • Gorilla tactics||

    I remember reading Rothbard's distinction between the premills and the postmills when it came to the christians. The Progs are descended from protestant post mills (Christ comes AFTER the kingdom is established on earth) maybe I'm misreading it, but from that theological standing-man taking an active role in bringing paradise to earth is EXACTLY how the secular progs view themselves, they kept the puritanism but they lost the religion.

  • ||

    Marlowe scoffs at such criticism. “My personal view is that the legalization advocates are attempting to create a false-choice or false-dichotomy between legalization and incarceration,” he writes. “They view Drug Courts as a threat to this narrative because Drug Courts fit squarely in the middle. Drug Courts provide treatment but don’t incarcerate, and they fear this undermines the basis of their arguments.”

    Shithead thinks "legal vs. illegal" is a false dichotomy. What do you think happens if you don't adhere to your drug court's regimen? Do you think you end up...incarcerated?

  • Virginian||

    Damn it you stupid bint, it's a kindler gentler machine gun hand. Listen to your betters.

    *yes, bint is my word of the day. Deal with it.

  • ||

    I can deal with that.

  • Gene||

    When I got popped with two pounds a few years back if given the choice between the one year probation sentence that I received and a mandatory treatment program I would have taken the charge and said FUCK THE DRUG COURT!

  • Floridian||

    I found an argument that worked with a drug warrior yesterday. I started with question of who owns you. After she agreed that she owns herself, I burned an army of straw men. She started off with mandatory execution and ended with, "why is it illegal then?".

  • Chris Dubuisson||

    Marijuana will be legalized when legalization proponents start contributing huge sums of money to politicians' election campaigns, and/or when the issue becomes important to Hollywood.

  • Mike Parent||

    Or, when elections are lost because a candidate is Anti MJ.

  • EB71||

    The point of legalization, IMO, is to separate the billions of dollars Americans spend on drugs from the criminal underworld, Mexican cartels, etc. As long as the drugs themselves are illegal, the worst effects of the drug war will continue regardless of what's done on the sentencing end.

  • Zeb||

    I agree that that will be the biggest benefit to legalization. But the point it that buying, using, possessing or honestly selling drugs violates no one's rights and is a non-crime.

    As far as I am concerned, government locking someone up for drugs is exactly morally equivalent to me locking someone chosen at random in my basement for no reason at all.

  • Mike Parent||

    Why not adopt a policy that has been proven for over a decade instead of putting lipstick on the Prohibition Pig? Study Finds No Cancer-Marijuana Connection

  • Mike Parent||

    Sorry, here's the right cite.

  • Mike Parent||

    And why can't law enforcement focus on crimes that have actual victims.

  • Let Me Ride||

    In the last paragraph, MPP's Steve Fox makes an argument that legalization is inevitable and only a matter of time. This sounds like a dangerously complacent perspective to me. If you don't want to take my idle theorizing at face value, you should as the founders of NORML. In the late 1970s, they thought they were in the Last Days of marijuana prohibition.

    Sometimes I meet (online) pot reformers who are more "hardcore" than I am. They think that medical marijuana retards full legalization or they think that decriminalization is no better than the status quo. (This last perspective is mind-boggling in its stupidity.)

    So this form of argument--making The Perfect into the enemy of The Good--is usually wrong. Democratic politics proceeds by baby-steps, not revolutions.

    But Drug Courts may be an exception. There was a This American Life story about how the system empowered one particularly deformed judge with unimaginable arbitrary power.

    So here's the thing. After the Fearsome foursome of California, Colorado, Washington and Oregon, the medical marijuana laws have only grown more restrictive.

    I'd prefer super-tight limits on possession-- like Amsterdam's 5g at a time--over the empowerment of another bureaucracy/judiciary.

  • Adam.||

    Pure power and control. There is no defensible moral basis here, it's about control and greed.

  • LifeStrategies||

    I don't even understand the Federal involvement. Where's the constitutional authority for interference in State affairs. Oh, I forgot, the US constitution has been cancelled - it's no longer relevent in this modern more kinder, gentler society...


Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties