To Stay Out of Jail, Must Nonviolent Offenders Submit to Medical Diagnoses?

In Eric Holder's suggested substitution for mandatory minimum jail sentences, a troubling intersection of public health and criminal justice

Last week, those favoring reductions in prison populations and their associated costs applauded Attorney General Eric Holder's announcement that he's seeking an end to mandatory minimum sentencing for nonviolent drug offenders. For administration critics who feel drug war reforms have been too long in coming, the news was a welcome sign that real ground is being gained during Obama's presidency. Inside the administration, there's clearly a sense of accomplishment. "It's a really important shift," says Raphael Lamaitre, Communications Director for the Office of National Drug Control Policy (ONDCP). "Substance abuse touches everybody, it's the great equalizer. For years we've had too many people in prison and we haven't been looking at why they're there."

But as the excitement over the mandatory minimum announcement cools, some public health and drug policy professionals are finding devils in the details of Holder's statement. Specifically, critics are troubled by the latter parts of Holder's address that highlight the requirement of mandatory court stipulated drug treatment as a requirement for nonviolent drug offenders to stay out of jail. Laura Thomas, deputy director for the Drug Policy Alliance (DPA) in California, says, "It's always good to have someone like Eric Holder talking about the counterproductive harms of over incarceration, that's really fantastic. But there is a concern that putting people into coerced drug treatment is not a health based approach, it's a criminal justice approach."

Lemaitre of the ONDCP feels that the expansion of programs that blend criminal justice and public health -- programs he says are proven to reduce costs and improve health outcomes -- is another win for the administration that should be celebrated by anyone who wants drug users to get help instead of jail time. And he points out that the $1.4 billion boost in funding to pay for the policy shift that will come along with the implementation of the Affordable Care Act in 2014 represents "the largest single year expansion of treatment funding in a generation, maybe of all time."

The problem, critics say, with the new system the administration envisions is that while addiction may be a great equalizer, who gets arrested for drug crimes is not. Holder's address noted this fact, stating that "...some of the enforcement priorities we've set have had a destabilizing effect on particular communities, largely poor and of color." And yet while Holder is willing to shift the policy towards sentencing people convicted of drug offenses, there's nothing in his address stating that law enforcement will be any less likely to arrest people for them. Presumably the racial disparities in arrest rates will continue.

"The more relevant victory regarding racial disparities in arrests this week was the Stop & Frisk decision," says Thomas, referring to the federal judge's ruling that the controversial policy was tantamount to racial profiling. "The justice system is broken but needs to be fixed across the whole system, including the people we arrest, not just how we sentence."

Criminal justice policy reformers say that when courts flood the drug treatment centers with the kinds of drug offenders who more often get arrested, the outcome is no longer a system for treating drug addicts who want help with their drug problems. Instead, the treatment system becomes an extensive community-based surveillance network whose primary purpose is to monitor the behavior of people who are primarily black and poor. In fact, as some sociologists have argued, this changes the definition of what a drug problem is and who requires treatment. This suits perfectly the needs of a justice system that refuses to decriminalize drugs, but now has to put offenders somewhere other than jail.

To illustrate this problem, picture two different drug users. The first is 19 years old, white and attends a big city private university. Like a lot of college kids, he likes to party. From Thursday through Sunday he's probably either drinking heavily and smoking pot, or getting ready to do so. The rest of the week finds him trying to catch up on his school work, but he'll still take a toke here and there between classes or after hours in the dorm if someone offers it to him. When he gets really slammed with work during midterms and finals he'll find a classmate with some extra Adderall and abuse those pills, crushing them into a powder and snorting them, to power through some all-nighters. At the end of the semester his grades aren't bad, so his parents aren't complaining, although they'd probably be concerned if they knew the full extent of his partying. He's not too concerned with the extent of his partying, because most of the people he knows at school party just like he does. If he sat down in front of an addiction treatment professional for an evaluation, he'd likely qualify as having a substance use disorder and would receive a referral to outpatient treatment. But he doesn't feel like he has a problem, doesn't want to stop using drugs, and doesn't want help for what he considers to be part of his typical college lifestyle.

As long as he keeps his grades up and stays out of trouble, he probably won't ever be in a situation where he's formally labeled as problem substance user. Since he's underage most of the partying he does is on campus, where city police rarely go except to handle crimes committed by outsiders, and the campus police aren't trying to bust underage drinkers, or pot smokers, or kids trading pills, so his chances of getting arrested and charged with a drug crime are fairly slim. If he ever attends a Narcotics Anonymous meeting, it will likely be because he chose to attend one, not because a judge or probation officer sent him to one.

The second drug user is also 19 years old, but he's African American and lives in the poor neighborhood across town from the private university. From a clinical perspective, his drug use doesn't look that much different from user number one's; drug user two also smokes weed on more days than not and when he smokes with his friends he uses heavily. He smokes more pot than drug user #1, but he actually drinks far less, maybe only having a couple shots of liquor a few days a month before going to the club. He's not in school, so he doesn't have much use for Adderall, but he does sell crack cocaine for money to support his 9 month old daughter, and when the stress of working as a low level street corner hustler gets to him he'll take a Xanax and smoke a blunt to relax. He would say that he doesn't have a drug problem because he loves smoking weed and thinks it should be legal, anyway. He brags about how much money he makes selling drugs when he's around his street associates but his personal balance sheet doesn't reflect that; really he makes just enough money to keep the lights on, the rent paid, his family supported, and to buy a few nice things for himself. He's not a notorious gang banger, or a high-level king pin (most kids who sell drugs for a living in his neighborhood aren't and never will be).

Critics say the biggest difference between drug user number 1 and drug user number 2, which determines whether or not they need drug treatment, isn't a health-based one pinned to addiction science in any way; it's that drug user number 2 is far more likely to get arrested. After getting arrested he'll be given the option to accept drug treatment as a part of the deal that keeps him out of jail. The incentives for small time hustlers copping to having a drug problem when they get arrested are enormous; who wouldn't admit to having a weed habit and wanting to get help for it if the alternative were two years sitting in an overcrowded county jail?

But is this nonviolent drug offender's primary problem drug addiction, or is it with being black and poor and more likely to be arrested as a result? Especially in big cities where law enforcement is shifting away from targeting drug addicts, instead focusing on the supply side hoping to make gun arrests that can impact homicide numbers, these petty sellers who also use drugs have gotten swept up in the mix and become the new face the nonviolent drug offender instead of a crack or heroin addict.

Thomas says that regardless of the substance one uses, the criminal justice system shouldn't be the doorway through which a user gets to treatment. "It comes down to whether you think addiction is a health problem or not. There's no other health problem that we deal with this way,." she says. "Some people really do develop problematic marijuana use, but I do see people grasping at marijuana disorder diagnoses as a way to stay out of the criminal justice system, and we're filling treatment beds with these people instead of people with more serious drug problems."

Lemaitre, though, stands by the justice system's referral policies for those with disorders, saying people don't get sent to drug programs if they don't have real drug problems. Diversion programs, he says, "are tremendously effective at screening people for their needs. And there are decades of research showing these programs work." He also stresses that the intersection with criminal justice is just one aspect of the administration's drug policy strategy. "In an ideal world all drug users needing treatment would have contact with the health system first. And the cheapest strategy of all is prevention, and we stress prevention, but prevention efforts aren't going to catch everybody. As drug users get further down the scale in terms of their addiction, it's more likely that they get involved with the criminal justice system." He says administration feels that having treatment alternatives in place for those people is an idea that's enormously popular with a broad and diverse coalition of supporters because evidence supports those interventions mixing criminal justice and drug treatment work to reduce costs and improve lives.

"We support the decriminalization of drugs because criminalization has done more harm than good," says Thomas of the DPA, who points to countries like Portugal, which has made drug offenses a civil rather than criminal issue, and Uruguay, which is developing a legal, regulated marijuana market. "In America we need to let go of this idea that the criminal justice system is the best way to deal with this health problem."