Kinder, Gentler Prohibition

Will drug courts undermine marijuana legalization?

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The NADCP isn’t against just recreational marijuana. The trade group has also recommended that drug courts “require convincing and demonstrable evidence of medical necessity” for medical marijuana users, and that said evidence come from “a competent physician with expertise in addiction psychiatry or addiction medicine.” In another white paper, the NADCP argues that the decision as to whether medical marijuana “is medically necessary” for a given ailment should be made by “a Board-certified addiction psychiatrist.” The NADCP also recommends drug courts engage in more strong-arm tactics: “subpoena the physician [who recommended medical marijuana] to testify or respond to written inquiries about the medical justification for the recommendation.” 

NADCP Policy Director Doug Marlowe denies that his group’s support for marijuana prohibition is about maintaining a steady flow of compulsory attendees. “NADCP’s opposition to marijuana legalization is not based on its anticipated impact on Drug Courts,” Marlowe writes in an email message responding to my questions. “Our opposition to marijuana legalization is based on the serious public health and public safety threats that it poses.” 

When I ask him if drug courts accept marijuana offenders, Marlowe replies, “If you mean that marijuana possession is their only offense and marijuana is their only substance of abuse, very few. Marijuana possession is rarely punishable by appreciably more than a fine or minimal-reporting probation. Therefore, very few marijuana offenders would have an incentive to enter a Drug Court. Some of the earliest Drug Courts started out by treating marijuana cases, because those were the only cases that prosecutors would approve. But the Drug Court field has moved steadily towards treating high-risk and high-need cases.”

It’s entirely possible that the NADCP isn’t worried that legal marijuana will undermine the drug court model, but it’s not true that marijuana is treated as casually by law enforcement as Marlowe says. According to a 2011 Drug Policy Alliance report titled “Drug Courts Are Not the Answer,” between 25 percent and 30 percent of drug court participants nationwide list marijuana as their primary drug. In 2007, the last year for which the Substance Abuse and Mental Health Services Administration has made data available, 162,000 people were court-ordered to receive treatment for marijuana. Couple that number with 757,969 marijuana arrests in 2011, and it’s clear that marijuana offenses are hardly being universally treated as a mild offense. 

While acknowledging drug courts “do some good,” the DPA’s report argues that “that drug use or the perceived need for treatment should never be the reason that people enter the criminal justice system, and that the criminal justice system should never be the primary path for people to receive such help.” The report calls for reducing penalties in the vein of Portugal’s decriminalization experiment, and stops just short of calling for a full repeal of prohibition. 

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.”

Not all drug court proponents are opposed to the legalization or decriminalization of marijuana or other drugs. Right on Crime, for instance, supports drug courts and other alternative sentencing models but doesn’t take a position on legalization or decriminalization. The reason for that is pretty simple: Alternative sentencing is far less politically problematic than changing drug laws. 

“From a strategic standpoint it makes sense to pick the lowest hanging fruit and do the stuff that you can do in the current political climate,” says Right on Crime Director Marc Levin. In Texas, he notes, “we said we weren’t going to build more prisons, and instead we were going to send money off to the counties for alternative sentencing programs. It was a budgetary transformation. And of course, it’s a hell of a lot easier to do that because no legislator has to take a vote to reduce penalties.”

Prison Reform vs. Drug Policy Reform?

If legalization advocates are to duplicate the success of the marijuana ballot measures in Colorado and Washington (and, down the line, decriminalize other drugs), they will have to make the case with arguments beyond the need to reform prisons. After all, even in states with egregious incarceration rates, very few first-time marijuana offenders spend a day behind bars. 

You could divert every single pot offender into a drug court, a HOPE program, or standard probation, and you’d still have a massive and damaging black market. “It’s still prohibition,” says the DPA’s Jill Harris. “It still has problems attached to an underground market. It still has a racially disparate impact.”

DPA has been thinking hard lately about third-way sentencing policies. Unlike groups that focus exclusively on marijuana reform, DPA has long advocated treating all addiction as a public health issue. (Most marijuana reformers assert that pot addiction is rare and not the government’s business anyway). But despite favoring a “public health” approach, DPA does not like drug courts. 

In its 2011 report on the issue, DPA came to many of the same conclusions as recent reports released by the Justice Policy Institute and the National Association of Criminal Defense Lawyers, namely that drug courts often fail to distinguish between recreational users and addicts, place unreasonable financial burdens and time obligations on the poor, push abstinence-only recovery programs, and seldom address the collateral consequences drug offenders face, such as mug shots, felony records, ostracism, and exclusion from fields that require occupational licenses—ranging from medicine, law, and finance to commercial truck driving, elementary school education, and massage therapy.

“One of the things that we’re starting to be more mindful of at DPA is the whole treatment world and what constitutes treatment, and whether treatment is coerced or not,” Harris says. “If the possibilities for reform are remote, we would endorse treatment over incarceration, because most people are in support of treatment over incarceration. But if most people are already there, let’s critique that and say, ‘Do we want to stay there? Or do we want to move the argument even more?’ ” 

Marijuana reformers likewise are confident that steadily reframing the debate will lead to more legalization victories. “If you asked a polling question, ‘Do you think marijuana users should go to treatment or should they go to jail?’—if it’s a binary choice like that, you would get support for treatment,” says Steve Fox of the Marijuana Policy Project. “But if the choice is jail or a civil fine, I’m assuming a civil fine would have plurality or majority support.” 

Fox is not worried that prison reform and drug courts will jeopardize progress toward legalization. “I guess I would say I do have a concern that elected officials may take the easy way out and decide that fines and treatment are appropriate for marijuana, but I think the long-term picture here is pretty clear,” he says. “It’s only a matter of time before the vast majority of people in the country will be able to use marijuana legally. It may take 10 or 20 years, and over that time you may have existing but diminishing penalties in many states, but I don’t know that Project SAM and others like that are a long-term threat. I think they’re just an obstacle to reform.” 

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  • 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...


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