Texas Drug Reform

A Republican-sponsored bill in the Lone Star legislature would send Texans caught with small amounts of drugs to treatment rather than jail. "We can use every single bed we empty of a guy who got caught with less than a Sweet'n'Low pack of cocaine," explains Rep. Ray Allen (R-Grand Prairie). "We can use that bed to lock up a rapist."

Some drugs would be exempt from the measure, and compulsory treatment isn't exactly a libertarian approach to the issue. Still, it sure beats a felony conviction, and I doubt those recovery centers are anywhere near as unpleasant as a Texas prison. It may not be the drug reform I would prefer, but it's still more humane than what we have now.

Comments

[Jim N]

Treatment scares me much more than imprisonment does. Once you move from the idea of punishment to the idea of rehabilitation, anything goes, since they are no longer trying to be just. Read C.S. Lewis’ essay “The Humanitarian Theory of Punishment”.

Also, keep in mind that if this goes through, then we will have lost. We can no longer point to a vindictive drug war. Although the treatment will be compulsory, it will be “benevolent”. For those of us who believe that drugs should just be legalised, this is our worst nightmare.

[Russ]

Typically the treatment programs are run by private businesses who either get money from the state or have business funneled to them by the state (meaning the user pays an outrageous fee, and the state licenses the treatment center). It’s a complicated, cynical way of the state implementing a “sin tax”.

[Jesse Walker]

Jim: It really depends on the nature of the compulsory treatment, doesn’t it? If they’re talking about indefinite confinement to rehabilitation centers, then yes, I’m with you. But if they’re talking about probation with a requirement that you show up for counseling once a week, then we’re facing a much lesser evil here.

[RVM]

The bill itself describes “Class A misdemeanor
with mandatory intensive narcotics supervision or confinement. ” I’m not sure I like the sound of that. (Confinement refers to jail time if the supervision is rejected.)

(The URL of my name is the actual bill from the State of Texas website.)

[geophile]

It’s a step in the right direction, mainly because the reason drugs are still able to perpetrate the drug war is the persisting public perception that drugs are for evil, irredeemable degnerates. Any reduction in the baseless stigma against them represents a reduction in the power the average non-user ascribes to them overall. This is good.

[geophile]

eh, should read “…reason drug warriors are able to perpetuate…”

[Gary Gunnels]

Is not this step a vindication of Foucault’s theories on punishment?

[Frenk]

I agree with geophile (this time–heh). The shift towards treatment is a positive step.

If nothing else, this shift admits–albeit tacitly and grudgingly–that the current strategy is not effective. When treatment programs fail to address the real issue (resources…i.e., TAXES; and they will fail), consideration of legalization is a likely next step. Treatment softens by putting drugs into a category separate from real crimes, and thus this is a positive step change.

[Anonymous]

Jesse,
I think we have to be careful about choosing one lesser evil over another. This compromise seems humane but it will only marginalize the libertarian perspective on drug policy. Main-stream America won’t be as likely to oppose the drug war if they see the users get rehabilitated as opposed to doing hard-time. You can quote the founding fathers when people who do something in the privacy of their own home are arrested and sent to jail, but its much more difficult to cite the declaration of independence when the government is perceived as doing something good…that is rehabilitating people. I don’t see how this change in laws has any good long term benefits leading to the legalization of pot.

“Well I must have been stoned when this whole thing started”

[Jim N]

Jesse, I can’t help but think that this is just the camel’s nose getting into the tent. Once we allow the corrections system to treat criminals instead of punish them we remove the idea of giving criminals what they deserve. What cures is all that matters. It is only a small logical step from “probation with a requirement that you show up for counseling once a week” to “indefinite confinement to rehabilitation centers.”

Consider the following scenario: The Texas Drug Treatment Program has been in place for ten years. Many drug offenders have been arrested and gone through the treatment program. The problem is that many of them, being rational consumers of drugs rather than hopeless addicts, have begun using again as soon as their treatment ended. Criminologists present their studies showing that while the treatment program has shown some success it is not nearly enough. Most of the patients are simply going back to their drugs. They present other studies demonstrating that “confinement to rehabilitation centers” has been shown to have a much higher success rate (keep in mind that this confinement is mostly voluntary — people go to the Betty Ford Clinic because they want to quit; the probation period and counseling are not, since people are forced to enter them by the courts). How much convincing do you think that the public, which now cares only about results (not justice), would need before it allows, or perhaps more accurately, demands, indefinite, mandatory confinement?

I don’t like the idea of treating any crime as if it were a disease. There is a school of thought that says that all crime is pathological. If you go along with treatment for drug offenders then what will you say when the state wants to cure shoplifters, rapists and car thieves, using techniques that clearly exceed the bounds of justice?

Or if that isn’t frightening enough, then how about this: If we allow the state to treat all crime as pathological, then how long do you think it will be before it treats all pathology as crime?

If you have never read the essay I referred to above, then I really recommend that you do. It can be found in C.S. Lewis’ book God in the Dock.

“It is, indeed, important to notice that my argument so far supposes no evil intentions on the part of the Humanitarian and considers only what is involved in the logic of his position. My contention is that good men (not bad men) consistently acting upon that position would act as cruelly as the greatest tyrants. They might in some respects act even worse. Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. Their very kindness stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level with those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles and domestic animals.”

–From “The Humanitarian Theory of Punishment.”

[geophile]

“…a tyranny sincerely exercised for the good of its victims…”

Sounds like a good description of the drug war itself. Except for the “sincerely” part.

Being a great fan of A Clockwork Orange, I do see a legitimate concern here, but it’s basically the same concern as my concern for the drug war at large, that being that a combination of government over-reach and public apathy and ignorance can conspire to create a monster. But, if people can see through the folly of the anti-drug endeavor enough to enact treatment programs, then they also posess the ability to eventually see that treatment itself is no panacea. A gradual easing of long-held perceptions is necessary, as most people simply can’t swallow the truth whole.

[Jesse Walker]

I understand your concerns, Jim, and I have a lot of sympathy for Szasz’s and others’ arguments about the dangers of “medicalizing” the drug war. I appreciate your views about the dangers of medicalizing punishment in general as well. I remember how horrified I was when I read Kurt Schmoke’s proposal for “legalizing” drugs and discovered that it would give the government even more power than it has now.

In this case, though, I can’t help supporting the reform on — sorry, Mr. Lewis — humanitarian grounds. One central problem with the drug war is that it sends nonviolent small-time offenders to prisons dominated by cruel, violent criminals. This would partially change that.

I guess what it boils down to is that I don’t see this bill as a shift toward “treatment” so much as a lessening of punishment. And that much, at least, is surely good.

[Anonymous]

How will this result in legalization of drugs? This is gonna create an entire industry of rehabilitation clinics. Eventually most of these clinics will be controlled by two or three corporations. As we all know, corporations which are ever in competition with one another, will not pass up the chance to get a slight edge by lobbying for laws which will get them more money. Once rehabilitation clinics and the government get in bed together, there’s no stopping them.

[JJ]

Who said anything about this ending in the legalization of drugs?

[Anonymous]

Uh…Frenk did two posts up: “Thus, I can only see the shift toward treatment as a very practical first step toward legalization of drugs, the most practical solution to the drug problems of the US.”

[Frenk]

I think the discussion here has become a bit too theoretical. Frankly, I don’t believe the government of Texas is changing drug policy out of humanitarian reasons, or because they have had a change of heart about drugs. This is a move designed to save them the money involved in locking up non-violent drug users. Sure, they phrase it as “freeing up beds,” but it’s the resources involved that count.

The idea is that treatment will be cheaper than prison. It might, but it won’t be cheap enough for state governments with huge deficits. Thus, I can only see the shift toward treatment as a very practical first step toward legalization of drugs, the most practical solution to the drug problems of the US.

[geophile]

Banning/Suppression -> Treatment -> Toleration -> Regulation/Legalization.

That’s the theory anyway. Despite my view that this is ultimately the best thing for us all, it’s unclear that it’ll actually happen (ever). Politicians will always need something to get tough on come election season. No one gives a shit about drug users, and most of them probably aren’t big activists, so they’re easy prey. Though I think marijuana legalization has a good chance of coming true within my lifetime.

[Frenk]

To ” “: I argue that the shift toward treatment is a first step toward legalization because treatment is certain to fail to address the operative issue here: resources.

The fact is that a huge prison population is very expensive. In some states, we see revised parole guidelines (this is a trend that goes back several years). The reason Texas is changing their policies is to address this expense, in the context of an extremely strapped state budget.

Treatment will not succeed in alleviating this problem. While cheaper than prison, treatment is still not cheap. So, the problem will remain as long as the number of convicts remains high, or grows. The solution to this budgetary problem: somehow reduce the numbers of convicts to be imprisoned. How do we reduce that number with certain success? Legalization.

My prediction (for what it’s worth): continuing budget difficulties will lead government officials to quietly stop prosecuting nonviolent drug offenders. Keep your eyes open, because they aren’t going to advertise it when it happens.

[Lefty]

Selective prosecution of laws is tyranny. The only way to get rid of bad laws is to vigorously enforce them.

When enough sons and daughters of the ruling elite, not just the poor minorities, go to jail the laws will change.

[JJ]

Anon.: Duh. Sorry about that.

[Frenk]

Lefty, I can’t agree. Think of sodomy laws. Some states still have them on the books (for the time being), but they are simply no longer enforced in most cases (i.e., consenting adults, whatever gender). This is selective prosecution, and is not tyranny, but instead a way to deal with laws society no longer wants or can afford to enforce.

[Dakota Loomis]

There is a small detail that this debate has overlooked: the role of prosecutor’s and plea bargaining. Prior to treatment as sentence, offender’s who were arrested on more serious drug charges (e.g. intent to sell) could plea bargain down to a lesser sentence that would result in jail time for the second or third offense. That option is now a more unlikely outcome because D.A.’s do not want to send felons to treatment programs instead of jail. It’s one thing for drug users to go for treatment, it’s another to send drug dealers (who don’t need treatment, but instead a strong union) to treatment programs. The unintended outcome of this law might be a greater number of cases going to court and an extremely minimal drop in incarceration rates, defeating any cost saving rationale. Just a thought.

[Mulryan Patrick]

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DATE: 01/20/2004 07:01:38
There is no great genius without some touch of madness.