Drug Czar Gil Kerlikowske made national news last month when he told an audience at the Betty Ford Center, "The president believes substance addiction is a disease, not a moral failing." This followed Kerlikowske's announcement, in May, that the Obama administration had divined a "third way" to approach drug policy. Between heavy law enforcement and outright legalization, said Kerlikoswke, is a completely novel approach focusing on prevention and drug addiction recovery.
In theory, as in press conferences, Obama's new policy sounds reasonable and reflective of reality. Our prisons are overflowing with drug offenders–users and dealers, as well as people who entered the system for a minor offense, and stayed in the system because their employment prospects were diminished by a drug conviction. Additionally, polls show that Americans are ready to decriminalize marijuana, if not legalize it completely.
Yet in a recent interview with The Fix, an addiction and recovery website, Kerlikowske admitted what drug policy reformers have been saying since 2009: Obama's new drug policy isn't novel or all that different from those of his predecessors, it just sounds different.
"I don't think you can lead people to de-stigmatization [of drug use] unless you first convince them of the disease model," Kerlikowske said in the interview. But in the very same breath, he added, "Look, there are people who are not addicted, and they make a voluntary choice to do drugs, and then they reach the point of addiction. I do not want to completely remove personal responsibility out of this issue either."
That contradiction highlights a big problem with Obama's third way: Any drug policy that says it's better to be a junkie than a recreational user with a good job and a healthy family, is not an improvement.
But the problems don't end there. "Just recently we observed National Drug Court Month," Kerlikowske said at the Betty Ford Center, "and I'm proud to say that 2,600 specialized courts divert about 120,000 non-violent drug offenders away from prison and into treatment every year."
Those drug courts aren't an improvement. In fact, the drug court system has led to higher incarceration rates for recreational users while denying treatment to addicts.
"A very large number of people in drug courts are there for marijuana possession, the least dangerous, least addictive illegal drug," says Bill Piper of the Drug Policy Alliance. "And they're taking up treatment slots that could go for people who want treatment for coke, meth, and heroin. That's the big irony and the big problem."
Politically, that's also a big advantage. A high percentage of the 120,000 people diverted into drug courts each year don't recidivate, largely because they aren't addicts and didn't need drug court in the first place. They were just recreational users who were caught once, threatened with jail or a besmirched permanent record, and chose the only alternative to having their lives and careers ruined. But they didn't actually need rehab, or the months of social worker home visits, weekly addiction meetings, and regular piss tests that accompany going through drug court.
What's worse is that people who opt for drug court and then test positive end up behind bars. "It's offered as a passionate alternative," Piper says, "but it's structured in such a way that if someone flunks a drug test, they're incarcerated, because when you enter a drug court, you waive your rights." When the time is added up, Piper says, users who choose drug court, and then relapse, spend more time in jail than users who plea bargain.
The Drug Policy Alliance released a report on drug courts last year titled "Drug Courts Are Not the Answer." The big takeaway is one voters should take into consideration as the Obama administration continues to tout its policy reforms: "Based on the evidence, drug courts as presently constituted provide few, if any, benefits over the incarceration model on which they seek to improve."
So who exactly ends up in drug court? And how well does it work? The DPA report gives us the following data points:
- "The National Drug Court Institute found marijuana to be the most prevalent drug of choice among participants in at least 25 percent of drug courts surveyed nationwide in 2007."
- "A 2008 survey of drug courts found that roughly 88 percent exclude people with any history of violent offending, and half exclude those on probation or parole or with another open criminal case.
- "About one-third of drug court participants do not have a clinically significant substance use disorder."
- "The same survey found that 49 percent of drug courts actually exclude people with prior treatment history and almost 69 percent exclude those with both a drug and a mental health condition."
- "There is one drug court for every 26 drug court participants – and, for every one drug court participant, there are 29 other people arrested for a drug law violation who are not in a drug court."
- While 120,000 people a year enter drug court, only 25,000 complete the program. The other 95,000 are deemed to have failed, and are incarcerated.
- "Even if drug courts were dramatically expanded to scale to cover all people arrested for drug possession, between 500,000 and 1 million people would still be ejected from a drug court and sentenced conventionally every year."
- "African Americans have been at least 30 percent more likely than whites to be expelled from drug court due in part to a lack of culturally appropriate treatment programs, few counselors of color in some programs and socioeconomic disadvantages."
- Studies touting the efficacy of drug courts "measured recidivism rates only for drug court participants who successfully completed the program – a group that accounted, on average, for only 50 percent of those who originally enrolled."
- In Washington state, "adult drug courts reported a reduction in recidivism of 8.7 percent – significantly less than reductions recorded in probation-supervised treatment programs (18 percent) and on par with the reduction recorded by programs offering community-based drug treatment (8.3 percent), neither of which use incarceration as a sanction."
One reason that so many recreational marijuana users are diverted into drug courts is because
drug courts see them as easy pickings. The National Association of Drug Court Professionals, which has spent $510,000 lobbying federal lawmakers since 2005, has a policy brief on its site that outlines the justifications for diverting marijuana users into drug courts and instructing drug court professionals how to maneuver around medical marijuana laws so that medical pot smokers can still be eligible for drug court. You can read that policy brief here. I've highlighted the section "Recommendations to Drug Courts":
Marijuana is an intoxicating and addictive drug that poses serious medical risks akin to those of nicotine and alcohol. Although some physicians may consider it to have palliative indications, no national or regional medical or scientific organization recognizes marijuana as a medicine in its raw or smoked form.
If marijuana becomes decriminalized or legalized in a given jurisdiction, this does not necessarily require Drug Court practitioners to abide its usage by their participants. The courts have long recognized restrictions on the use of a legal intoxicating substance (i.e., alcohol) to be a reasonable condition of bond or probation where the offender has a history of illicit drug involvement.
If there is a rational basis for believing cannabis use could threaten public safety or prevent the offender from returning to court for adjudication, appellate courts are likely to uphold such restrictions in the Drug Court context.
Individuals who possess a letter from a physician and/or a valid state-issued ID card for marijuana present a more challenging issue, but one that is probably also not insurmountable. Under such circumstances, the judge might subpoena the physician to testify or respond to written inquiries about the medical justification for the recommendation. In addition, the court may be authorized by the rules of evidence or rules of criminal procedure to engage an independent medical expert to review the case and offer a medical recommendation or opinion. Having a Board-certified addiction psychiatrist on hand to advise the Drug Court judge may provide probative evidence about whether marijuana use is medically necessary or indicated.
It remains an open question what degree of deference appellate courts are likely to give to the conclusions of a treating physician. In the absence of clear precedent, the best course of action is to develop a factual record and make a particularized decision in each case about the medical necessity for the use of marijuana and the rationale for restricting marijuana usage during the term of criminal justice supervision.
If judges make these decisions based on a reasonable interpretation of medical evidence presented by qualified experts, it seems unlikely that Drug Courts — which were specifically designed to treat seriously addicted individuals — could not restrict access to an intoxicating and addictive drug as a condition of criminal justice supervision.
The next media outlet that lands Kerlikowske for an interview should ask him why the Obama administration is forcing recreational users into rehab, which they don't need, and why Obama is putting sick people behind bars.