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. 

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. 

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.”