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A Smarter Way to Deal With Drug Offenders

Drug courts can help ease the U.S. prison population and usher America into the civilized world when it comes to prosecuting drug-use offenses.

Asa Hutchinson, a staunch Republican who once ran the U.S. Drug Enforcement Agency, went to Canada early in March to do a peculiar thing. He tried to talk the Conservative Party out of some new tough-on-drugs legislation that lawmakers may pass in Ottawa.

“We have made some mistakes, and I hope you can learn from those mistakes,” he told a legislative committee, offering a mea culpa for some of America’s drug-war policies.

The main mistake, he said, was jailing nonviolent drug offenders. He argued that a low-profile but fruitful move toward “drug courts” in the U.S., which aim to rehabilitate rather than punish offenders, was the way to go. American drug courts have mirrored some of the positive results from wholesale drug decriminalization — which Portugal, for example, resorted to a decade ago.

Drug courts started in Florida in 1989 as a response to the rise of crack. Now 2,140 exist nationwide. The rules change from state to state, but generally, a nonviolent defendant with a sparse criminal record and an addiction problem who is facing the law on drug charges can be steered into a rehabilitation program. An offender in a drug court can avoid a fresh felony record by submitting to regular drug tests, joining Alcoholics Anonymous or Narcotics Anonymous (it wouldn’t work for Charlie Sheen), and remaining clean for 90 days.

It sounds expensive, but it’s cheaper and more effective than jail. “A statewide study in Georgia found the two-year recidivism rate among drug-court participants was 7 percent,” writes The Economist, “compared with 15 percent for those on probation alone and 29 percent for drug users who served time in state prison.”

EUROPEAN DISPATCHMichael Scott Moore complements his standing feature in Miller-McCune magazine with frequent posts on the policy challenges and solutions popping up on the other side of the pond.

Michael Scott Moore complements his standing feature in Miller-McCune magazine with frequent posts on the policy challenges and solutions popping up on the other side of the pond.

Drug courts are the obvious place for Americans to start with a serious program to decriminalize behavior that never should have been criminalized in the first place. Portugal, in this respect, is leading the way, while Canada and Russia seem to be regressing.

Asa Hutchinson belongs to a newish U.S. conservative group called Right on Crime, which wants a number of criminal-justice reforms to reduce the size and cost of government. It’s such a blazingly obvious small-government cause that it’s difficult to see how it remained undiscovered by conservatives for so long. But for years “tough on crime” was a conservative mantra that won votes in America.

Hutchinson told the Canadians that the sheer cost of tossing so many people in jail has led several American states to reconsider its drug-war policies, including some tough-on-crime “three strikes” laws, which were trendy in the ’90s and had the effect of locking up a huge number of drug offenders for an outrageously long period of time.

California’s three-strikes law, for example — enacted by popular vote in 1994 — jails people for a mandatory 25 years on any third felony conviction, even if the felony is relatively minor, like drug possession. (Or stealing a slice of pizza. ) Californians loosened the law for drug offenses in 2000, but the mandatory-sentencing craze still goes down in history as a ham-handed approach to crime-fighting. Perhaps ironically, it was backed by many current members of “Right on Crime” — like William Bennett, another former drug-war general.

Mandatory sentencing accounts for prison overcrowding as well as creaking state budgets. This financial consideration, rather than any ideal about civil liberties, has changed a lot of minds among the Right on Crime crowd. Hutchinson reported the grim results to the Canadians: “The United States has 5 percent of the world’s population but 23 percent of the world’s recorded prisoners. The incarceration costs are staggering. ... And that cost is very challenging for many states.”

And when the drug offenders go free, after all that time in jail, they tend to go back to taking drugs. (Surprise!) Chances are they never stopped.

To Hutchinson’s credit, he was in favor of drug courts even while he led the DEA. Now, with gang war turning Mexico into Afghanistan, he and his group finally want to sway conservatives toward a more sensible approach to drug offenses. It may not help their cause to point out that Europeans got there first; but it is, embarrassingly, true.

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