(Page 3 of 3)
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.”