The Magazine

Drug Wars

Just say no . . . to treatment without law enforcement

Mar 5, 2001, Vol. 6, No. 24 • By JOHN P. WALTERS
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THE WAR ON CRIME AND DRUGS is rapidly losing ground to the war on punishment and prisons. Recently, Newsweek featured Robert Downey Jr. on the cover, along with a series of articles and essays on the drug problem with the general theme that law enforcement and incarceration don't work and that we need to embrace treatment and new treatment drugs. But Downey only seems to get treated for his addiction when he is forced to by the criminal justice system. Indeed, it's hard to imagine a worse advertisement for the effectiveness of drug treatment than Robert Downey Jr.

The therapy-only lobby is alive and well and more dogmatic than ever. If it weren't for the ideology associated with treatment -- addiction is a disease, not a pattern of behavior for which people can be held responsible -- law enforcement and punishment would be natural partners of the treatment providers (remember Marion Barry, whose treatment followed his arrest). The evidence is that coerced treatment works at least as well as voluntary treatment, and it has long been a staple of effective treatment programs that the addict must take responsibility for himself.

Newsweek makes much of the promise of new wonder drugs for treatment, but what new anti-drug drug is likely to work substantially better than the drugs we have to block tobacco craving ("the patch" and "the gum") and the medication we have to make alcohol consumption a sickening experience for alcoholics? These are useful tools, but there are still many smokers and alcoholics. If anything, the trend of anti-drinking and anti-smoking efforts today is to criminalize certain aspects of use and to attack availability.

What really drives the battle against law enforcement and punishment, however, is not a commitment to treatment, but the widely held view that (1) we are imprisoning too many people for merely possessing illegal drugs, (2) drug and other criminal sentences are too long and harsh, and (3) the criminal justice system is unjustly punishing young black men. These are among the great urban myths of our time.

According to the most current data, in 1997 only 8.8 percent of the 1,046,705 individuals in state prisons were there for drug possession. Drug trafficking offenses accounted for 11.3 percent of those imprisoned; property offenses 22 percent; and violent crimes 47.2 percent. Throughout the 1980s and 1990s, violent crimes vastly outpaced drug offenses as the cause of the prison population's rapid growth. The situation at the federal level is even more lopsided. In fiscal year 1999, just 2.2 percent of federal drug convictions were for simple possession.

And even these numbers overstate the incarceration rate for drug possession. Although we do not know for sure how many of those sentenced for a drug possession conviction were actually traffickers who were allowed to plead guilty to a lesser charge, or repeat offenders whose record put them in prison for their most recent offense, or both, the available data suggest the numbers are very large indeed. In fiscal year 1999, the U.S. Sentencing Commission reports that 94.2 percent of the 20,893 federal drug offenders had pleaded guilty, usually to a lesser charge. Moreover, federal law contains a "bypass" provision to allow low-level, nonviolent offenders to avoid mandatory minimum sentences. The idea that our prisons are filled with people whose only offense was possession of an illegal drug is utter fantasy.

But are prison sentences too long? With the sharp drop in crime, have we made criminal punishment too harsh? In the Winter 2001 issue of the Public Interest, Paul H. Robinson argues that we have. Even Robinson acknowledges, however, that there is considerably less to the drop in crime than conventional wisdom would suggest. He notes that "the declining crime rate of the last eight years would have to continue unbroken for another three decades before we returned to the crime levels the Baby Boomers enjoyed as children." And consider this: Americans are still more likely to experience what statisticians call "violent victimization" than to be injured in a car crash.

Nonetheless, Robinson argues that longer sentences and "three strikes" laws are unjust because they pursue a policy of incapacitating criminals under the "cloak" of punishment. They punish offenders not just for what they have done, but also for what they are viewed as likely to do in the future. But Robinson makes too little of the fact that incapacitation -- protecting the public from criminals, particularly repeat offenders -- has almost always been one of the goals of punishment in our criminal justice system.