Sunday, February 6, 2011

Punishment and Therapy

We as a nation are rather confused in our handling of drug users. When it comes to those who sell drugs, we generally agree that they are criminals who deserve punishment. Admittedly when it comes to very low level street dealers, many teens or users themselves, there are some grey areas, at least for some, but for the most part, we agree that upper level dealers are properly treated as criminals.

When we get to users, we become much more confused. The problem is that users are exactly those people drugs laws are supposed to help, but they are also part of the problem, leading to a rather uneven handling. Not that policy questions alone lead to our strange handling of drug users. The fact is that most people worry that someone they love may be a drug user, while very few of us are connected to a drug dealer. So it is easy to argue for harsh treatment of dealers,but every parent worries that maybe, despite their best efforts, it will be their child who will be the victim of harsh laws against users, leading us to create the peculiar "two tier" treatment of users we see today.

Perhaps it would be best to start by looking at the most common rationale for the war on drugs.

While there exist a few other arguments, most often the war on drugs is justified by pointing to the harm drugs do to the users. Obviously, this is often extended to include the harm done tot he families of the users, and the costs to society as a whole, but, by and large the war on drugs is justified as a means of protecting people from their own worst impulses. It may not be worded that way, but that is the argument.

And the laws tend to follow that argument. Dealers, who provide the drugs,a re treated more harshly than users. The simple status of being a drug addict is not subject to punishment1, while possession is. However, possess for personal use carries much less penalty than possession for sale. While there is some back and forth between those who would more harshly punish users and those who favor treatment, in general both groups have followed the principle that users are to be treated more leniently than dealers.

Of course, this position is something of a compromise. Legally, the buyer in a criminal transaction is either treated equally or worse. A fence is usually more culpable than the burglars who supply him. Likewise the man hiring a killer is usually seen as just as guilty as the assassin. Legal logic would argue that, as selling drugs is a crime, buying them should be seen as every bit as criminal an act. However, that is not the logic of drug laws.Drug law logic is driven by two positions, the therapeutic and the quality of life arguments.

The therapeutic position, as seen most clearly in those who argue for legalizing drugs to "treat it as a medical problem", is probably most consistent with the overall theory of the war on drugs. Arguing that we have drug laws to protect people from the harms drugs do, they say that we should not punish users, but should instead force them into therapy to help them stop using drugs. Their position is that the laws are not intended to punish people but to stop them from using drugs, so jail time for drug users does not make sense.

Now some also adopt this position from a self-interested position as well. As I said above, many worry that they themselves may be arrested, or their children, or someone else close tot hem, and so argue for therapeutic treatment not just from an abstract beliefs but from tangible fear that they may see someone close tot hem end up in jail were we to punish users. However, motives are not truly relevant, as the end result is the same regardless of why people adopt a given position.

In opposition to the therapeutic position is an argument I call "quality of life". These people argue that the law does not exist to protect any individual drug user but society as a whole, and by stopping drug dealing entirely we will do more good than in therapeutic intervention for a single user. They contend that by jailing users we will discourage other buyers, destroying the demand side of the drug trade and end the war on drugs entirely. They also argue that drug users cause a number of problems for innocent citizens, such as the crime and violence associated with drug markets, and so arresting drug users also helps these innocents. (Which is why I called this position "quality of life".)

From the conflict between these two groups we get our current two-tiered justice system for drug users.

On paper, most jurisdictions don't explicitly have a two-tiered system. If one looks at the laws alone, in almost every jurisdiction the advocates of punishment won. The laws almost inevitably prescribe a jail sentence for possession of drugs for personal use. A few have diversion programs, but due to limited funds, this really only applies to a tiny percentage of users. For the most part, if one looks only at the laws as written, drugs users, just like dealers, are facing time in jail.

In practice, that is not the entire story. More often than not, when charged with simple possession a defendant can provide evidence of entering a treatment program to have his sentence reduced or even suspended. He can "enter a treatment track" rather than being placed in the "punishment track". Of course, this option is only available to those who can afford to pay for treatment, or fortunate enough to get a place in a publicly funded treatment program, so not all defendants avoid punishment. Which means, in practice, we have two systems. The middle and upper classes, as well as some among the lower class, are treated as "addicts" and substitute treatment for punishment, while the rest end up either receiving jail time, or, if they find a sufficiently lenient judge, being released on probation2.

The ironic thing is that those who favor therapeutic handling actually end up serving their own cause less well than those advocating punishment. As those who have read my writing know, I favor complete legalization. However, if we adopt the view that the law should be used to prevent people from using certain drugs, then the therapeutic position has less desirable outcomes, and both sides would be better off were they to adopt consistent punishment of users as their policy.

Allow me to explain.

In an earlier post, I argued that the sentence given to users is irrelevant, so long as there is a jail term for drug use, casual users will be discouraged. And no matter how long the jail sentence, dedicated users will continue to use drugs. In writing that I had to explain how drugs laws have also failed to discourage relatively casual drugs use among teenagers, young adults, and even some others. And the explanation for that is, quite simply, that we have this two-tiered system.

Middle and upper class teens use drugs because they do not fear drug laws. Part of this is the normal teenage belief in invulnerability, the belief that the law will never catch them, but that is hardly the main reason. Most teens know at least one friend who was caught, and, under normal circumstances, that would lead them to abandon their belief in invulnerability and opt for a more realistic perspective. The problem is that the realistic perspective still leaves little to fear. Odds are good that their friend, when caught, plead guilty and offered to enter treatment, resulting in either probation before judgment or a suspended sentence.Which, obviously, would lead his friends to think that, should they be caught, the same awaits them. When the worst outcome of drug use is mandatory treatment, there really is very little to persuade teens to avoid drug use.

So, were they serious about using the power of the state to stop drug use, those who advocate therapy for users, would be much better off arguing for mandatory minimum sentences for possession for personal use. Were everyone who used drugs facing a mandatory time in jail it really would weed out the casual drug users and leave only the die hard drug abusers. However, with our current system, that si not the case. Provided the casual user is sufficiently affluent to pay for therapy, he really faces very little punishment should he ver be caught. And that does little to dissuade the casual user.

If the purpose of the drug laws is to protect people from themselves, ironic as it sounds, punishing them for drug use is the best way to achieve that.

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1. This is also partly due to court rulings, making "status" crimes unenforceable. But, in general, there have been few attempts to even make the status of "addict" illegal since the start of the modern war on drugs. A few states tried to add addiction to existing vagrancy laws, but only as a tool to allow them to jail public nuisances, and even those ended when the courts became less tolerant of vagrancy laws in general. However, as this note should already make clear, there are a lot of facets to discussing status crime, so maybe I will have to write about this separately at another time.

2. As anyone who reads my main blog knows, I am far from a bleeding heart liberal, but this system really does favor the wealthy over the poor. Allowing repeated trips to treatment as a substitute for punishment simply means that those who can afford treatment need never fear punishment, while those with less available cash need to worry about jail for even their first conviction.

Originally Published in Examing the War on Drugs on 2008/05/29.

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