Ignoring the problem won't make it go away

Let's build more prisons and fill 'em up with our society's undesirables. That ought to make the world a better place, don't you think?

No? You don't think that's the key to happiness and security and sunshine?

You're right. There are some folks on the other side of the pond that feel the same way. One of them is Will Self, and in this piece for the BBC he notes that prisons aren't very good at either rehabilitation or punishment. And, being that those are the twin goals of the penal system, that doesn't speak very well to efficacy of locking people up because they've done something society doesn't like.

It was Dostoevsky who said: "The degree of civilisation in a society is revealed by entering its prisons." But in contemporary Britain you don't even need to do this, you can simply stand on a street corner and wait for the ghosts to come flitting past in order to appreciate its parlous condition.

As the rate of violent crimes has decreased in this country, the rate of people sent to prison for drug crimes, and other nonviolent offenses, has increased. I once represented a man who had previously been sentenced to 10 years in the penitentiary for being in possession of a couple of rocks of crack cocaine. I have yet to hear anyone who can give me a logical explanation for why it makes sense for us to spend our money to house a drug addict in prison when he would be better off in a treatment program.

And it's not like his "jail therapy" worked as he was arrested again (for possessing three rocks) shortly after being paroled. If anyone can tell me why that makes sense, I'm all ears.

When you lock someone away in prison you're not going to rehabilitate him - particularly in this day when the governor and his henchmen are looking for any piece of low-hanging fruit they can find to cut from the budget. And if they're willing to sit by and watch as school districts lay off teachers or leave classroom positions open, what the hell do you think they'll do to funding for rehabilitation programs for inmates?

I mean, the fair-haired one has to have some money to pay the DPS to provide security for him while he tours the country watching his ill-fated presidential campaign slowly go down the toilet. And what about his wife and kids? You don't seriously expect them to go on vacation without a phalanx of state troopers, do you?

Of course, we aren't quite at the levels enjoyed by our closest allies, those prime exponents of the civilising mission the United States, whose extensive gulag now houses, it is estimated, more African American men than were enslaved immediately prior to their Civil War - but we're getting there.

Just let that one stew for a bit.

Sure, there are some folks who need to be locked up because they are unredeemable or because they have committed crimes of such a heinous nature. More and more we are seeing people sent to prison, not because they have committed some heinous crime but, instead, because they have committed enough minor crimes that the state no longer wants to deal with them. When a theft of less than $100 can be enhanced to a felony and the person sent to prison for two years of more - well, the system's not working. 

Contrary to the view of prison as a deterrent and a way of keeping criminals off the streets, almost all enlightened opinion now concurs in the following.

Not only does prison, for the vast majority of those who endure it, not work, either as punishment or as rehabilitation, but there is no escaping the conclusion that it functions as a stimulant to crime, rather than its bromide.

No one's going to argue that it isn't easier just to lock folks away and forget about them. We do that everyday with bills or phone messages we don't want to return. But we're talking about people's lives here. We talking about their lives and the lives of their families. It/s time to re-examine the way we do things in our criminal (in)justice system. It's time we start asking questions. It's time we start asking Why?

We can either fix it or we can sit and watch it collapse under its own weight.

Creative thinking in public education?

Possession means actual care, custody, control of management. 

-- Texas Controlled Substances Act Sec. 481.002(38)

Possession is different than use. Possession is different that "under the influence."

To possess an item is to exert some degree of control over a tangible object. The tangible object, such as a controlled substance, is necessary to prove possession. After all, you can't have control over something that no longer exists.

For instance, one may be in possession of marijuana at the time he is smoking it. But, as he smokes the marijuana, the drug breaks down in various components and metabolites in his body. At the same time, the marijuana itself is destroyed by fire. After smoking marijuana one may be "under the influence" of it. One may even be intoxicated by smoking the marijuana, though that would be difficult to prove without a test showing the concentration of the metabolites in the body and expert medical testimony regarding the effects of marijuana in the concentration found in the body.

The State of Texas defines marijuana (please, someone, explain to our legislators that no one else spells marijuana with an h) as "the plant Cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Nowhere in the definition of the hippy lettuce does the state allege that the metabolites left in the body after ingesting marijuana is marijuana.

Texas defines controlled substance is "a substance, including a drug, an adulterant and a dilutant listed in [the Controlled Substance Act]."

Once a person absorbs a controlled substance, Xanax, for instance, that substance is broken down by the body into various metabolites - a term not used in the definition of controlled substance. One can be intoxicated if he ingests a controlled substance (or marijuana) and loses the normal use of his mental or physical faculties as a result. However, one is not in possession of the controlled substance once it has been ingested - because the controlled substance itself no longer exists.

In fact, you can make the argument that once someone is "under the influence" of a drug, that the drug is in control of the person and not the other way around. How else could one be "under the influence?"

But try explaining that simple concept to a school administrator who declares that being under the influence of a drug on a school campus is the same thing as possessing the drug on a school campus. I recently had a school administrator tell me, with a straight face, that, per district policy, that if a student is under the influence of Xanax, for instance, that student is considered to be in possession of the drug; and, since possession of Xanax is a state jail felony, that the student under the influence of Xanax is subject to expulsion because their conduct amounted to a felony.

Huh?

I have yet to find a statute in the Texas Penal Code or in the Health and Safety Code that makes it a felony to be under the influence of Xanax (unless, of course, the person was driving a vehicle with a child or was in an accident that resulted in serious bodily injury or death to another person).

Just something to think about.

Shooting mosquitoes with a shotgun

I had a very interesting conversation with a client the other night. We had just finished resolving a couple of traffic tickets out in Magnolia when my client asked me if I had time to talk.

It turns out that he's doing research into the effects of marijuana on athletes and wanted to know my opinion of the current drug laws. I realized over the course of our conversation that I had some general ideas but I had absolutely no idea what would be the best way to implement them.

Most folks who are charged with possession are battling addictions of some form. Using the court system to treat an addiction problem makes as much sense as using a shotgun to control mosquitoes. Our court system is designed to determine whether a person actually did what the government accused them of doing - and, if so, assessing punishment. That's it. End of story.

Our court system is not designed to diagnose a medical condition and design a treatment program around the diagnosis. Placing a person in a pretrial diversion program with the threat of prison looming over their heads if they relapse is just not going to get the desired effect. Everyone who has battled an addiction has fallen down on the road to recovery. Everyone relapses at some point.

When an addict suffers a relapse, entering a conviction and carting them off to prison does nothing to cure that addiction. When an addict suffers a relapse he or she needs more help. They need someone who can pick them up and get them back on the road. They don't need to be "treated" by lawyers and probation officers and judges; they need to be treated by medical and mental health professionals who aren't concerned with the number of cases on their docket. They need to be treated by someone who isn't concerned about the latest polls.

Having said that, I haven't the foggiest idea how we get there. I just know that what we've got right now isn't working. I'm open for suggestions.

There's an axiom in economics and business that an organization should concentrate on performing those tasks that it performs best. Economists call it comparative advantage and business people call it specialization. Either way, it's a better way to use your resources than trying to do a little of this and a little of that.

Using the criminal (in)justice system to treat a public health problem is just such a waste of valuable resources.

Is it time to call a cease fire in the war on drugs?

According to the Global Commission on Drug Policy, the worldwide war on drugs has been an abject failure. As nations have strengthened drug laws and ratcheted up the penalties for possession and manufacture, use of marijuana, cocaine and opiates has increased.

The reality is that drug addiction is a medical issue, not a penal issue. So long as governments treat users and addicts as criminals, the problem will never fade into oblivion. The US approach to drugs is the equivalent of trying to blast a mosquito with a shotgun.

"Political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won," the report said. 

Instead of punishing users who the report says "do no harm to others," the commission argues that governments should end criminalisation of drug use, experiment with legal models that would undermine organised crime syndicates and offer health and treatment services for drug-users.

All you have to do is look to our south to see that what we're doing now isn't working. Mexico has become a no-man's land with drug kingpins fighting to maintain their share of the market in the face of military attacks.

Harris County is having to ship pretrial detainees to outlying counties because the jail is packed to the gills with nonviolent drug offenders who need treatment, not prosecution.

We have drug courts that conspire to deprive defendants of their constitutional protections in the name of "team work." I'm sorry, but an adversarial system that doles out punishment is not the proper vehicle for treating addiction.

The report of the Global Commission calls for governments to stop treating drug use as a criminal issue and to being looking at it from a public health standpoint.

Offer health and treatment services to those in need. Ensure that a variety of treatment modalities are available, including not just methadone and buprenorphine treatment but also the heroin-assisted treatment programs that have proven successful in many European countries and Canada. Implement syringe access and other harm reduction measures that have proven effective in reducing transmission of HIV and other blood-borne infections as well as fatal overdoses. Respect the human rights of people who use drugs. Abolish abusive practices carried out in the name of treatment – such as forced detention, forced labor, and physical or psychological abuse – that contravene human rights standards and norms or that remove the right to self-determination...

Begin the transformation of the globaldrug prohibition regime. Replace drug policies and strategies driven by ideology and political convenience with fiscally responsible policies and strategies grounded in science, health, security and human rights – and adopt appropriate criteria for their evaluation. Review the scheduling of drugs that has resulted in obvious anomalies like the flawed categorization of cannabis, coca leaf and MDMA. Ensure that the international conventions are interpreted and/or revised to accommodate robust experimentation with harm reduction, decriminalization and legal regulatory policies.

 Sure, there's a political agenda here -- but the idea is sound. The notion of treating the disease rather than the symptom is one that not too many legislators appreciate. It doesn't lend itself to soundbites. It doesn't lend itself to campaign slogans. It's probably not the message that's going to get you re-elected.

The Committee calls on nations to adopt the following principles when dealing with drug addiction:

1. Drug policies must be based on solid empirical and scientific evidence. The primary measure of success should be the reduction of harm to the health, security and welfare of individuals and society.
2. Drug policies must be based on human rights and public health principles. We should end the stigmatization and marginalization of people who use certain drugs and those involved in the lower levels of cultivation, production and distribution, and treat people dependent on drugs as patients,not criminals.
3. The development and implementation of drug policies should be a global shared responsibility, but also needs to take into consideration diverse political, social and cultural realities. Policies should respect the rights and needs of people affected by production, trafficking and consumption, as explicitly acknowledged in the 1988 Convention on Drug Trafficking.
4. Drug policies must be pursued in a comprehensive manner, involving families, schools, public health specialists, development practitioners and civil society leaders, in partnership with law enforcement agencies and other relevant governmental bodies.

Or we can continue down the same flawed path we've been travelling for decades.

Maybe we should just adopt Kissinger's Vietnam exit strategy. Claim victory and get the hell out of Dodge.

An unhealthy addiction to drug courts

Norman Reimer, the executive director of NACDL, says our newfound addiction to drug courts is harmful to the rights of our clients.

In the new issue of The Champion, the official publication of the National Association of Criminal Defense Lawyers, Mr. Reimer argues that, in many cases, drug courts are worse for defendants than the regular courts.

"All too often, drug courts denigrate fundamental rights, extracting broad waivers as the cost of admission, and expose even the most well-intended to dire consequences, often worse than if they avoided drug court and simply pleaded guilty. They tend to place a premium on early guilty pleas, thereby insulating questionable law enforcement search and seizure practices, and provide a convenient means for prosecutors to shed defective cases. And some drug courts impede the attorney-client relationship and undermine an accused person's Sixth Amendment right to a vigorous defense. Worse, many drug courts operate without transparent admission criteria, and most bar eligibility to recidivists and those most in need of treatment. These factors tend to exacerbate racial and economic disparities in the criminal justice system."

The problem with drug courts is that the criminal (in)justice system is not designed to provide solutions to public health issues (the same general problem exists with other specialty courts). Drug addiction is a medical issue - not a legal issue. Treating a medical condition through the auspices of the criminal (in)justice system is doomed to failure.

Medical professionals are trained to treat both the symptoms and the root cause of an illness. The goal of the medical profession is to cure the patient - or at least to ameliorate the condition. The doctors, nurses and other staff work together as a team to help the patient.

In the courthouse, judges, prosecutors and defense attorneys are not part of a "team." Prosecutors and defense attorneys are adversaries - we stake out our position and go from there. The prosecutor is looking for the best outcome for the state (or to get Friday afternoon off) while the defense attorney is fighting for the best outcome for his client. The judge sits as an impartial arbiter. No one is interested in resolving the medical condition behind the addiction -- the sole question is whether the state can prove up the elements of the charged offense.

The price for admission into the drug courts is a plea of guilty (generally) and a waiver of one's constitutional rights. We're all part of the same "team" now, remember? We're no longer adversaries. We'll work together to get the defendant through the process.

The process consists of a probation more restrictive than that offered in the regular court. The reward at the end of the tunnel is a dismissal - if the defendant can complete the program. Fall short of the court's expectations and you find yourself in a worse position than you would have been in had your case remained in the regular court.

On the other hand, Mr. Reimer points out that:

"Drug courts have helped many people. They have saved lives. They have probably saved hundreds of thousands of prison years. For clients facing a lengthy prison sentence, even a long shot at successful diversion must be considered. And therein lies the dilemma. As long as draconian penal policies drive America's drug policy, drug courts will thrive - irrespective of their flaws."

This country's attempt to treat drug addiction through the penal system has been an abject failure. It's time to take a new approach. People whose only "crime" is their addiction to drugs need to be in treatment, not in the courtroom. Treating a medical condition in an adversarial setting will never succeed and will only mean that another generation is lost in the criminal (in)justice system.

See also:

Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities, Justice Policy Institute (March 22, 2011)

Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use, Drug Policy Alliance (March 22, 2011)