SMITH And STIMSON: Accountability Must Also Accompany Treatment For Drug Offenders


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Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that drug offenders should be held accountable for other crimes committed in pursuit of drugs. You can find a counterpoint here, where Reason Foundation policy analyst Spence Purnell argues that drug offenders shouldn’t be sent to prison. 

At a recent townhall event, President Joe Biden said, “No one should go to jail for a drug offense. No one should go to jail for the use of a drug; they should go to drug rehabilitation.”

Over 99% of people in federal and state prison for drug offenses were convicted of distribution offenses. Less than one-tenth of 1 percent of people in prison are there for simple possession of illegal drugs, and many of those cases were plea-bargained down from distribution to simple possession.

To the extent that President Biden is endorsing drug rehabilitation for those caught with small amounts of illegal drugs, we agree. Fortunately, that is already happening at the state level, where most of these cases end up.

If, however, he is suggesting that major cartel and other distributors not go to prison when caught and convicted, we part ways with him.

As for the idea of no prison for those who are addicted to illegal drugs, we have a better plan.

Simple possession of illegal drugs isn’t a victimless crime. Their purchase funds violent organizations such as street gangs and drug cartels, and their use can destroy the lives of their users and impose unimaginable suffering on their family and friends.

But if someone is truly suffering from an addiction, everyone (except, maybe, their drug dealers) wants to see them break free of it.

But it’s difficult.

Addicts will tell you that the pull is strong, causing them to chase their next high at almost any cost. That’s why crime — everything from shoplifting to strong-arm robbery — is often associated with drug addictions — not to mention the gun homicides and other forms of violence that accompany the drug trade.

It’s also why 40 to 60 percent of people who suffer from drug addictions relapse even after receiving treatment.

And therein lies the problem: Treatment alone often isn’t enough. In fact, when many addicts encounter the criminal justice system, they aren’t ready to seek treatment and won’t go voluntarily. The only way many of these individuals first enter a treatment program is when forced to make a choice: drug treatment or jail. And the only way that many make it to the point where they can successfully complete drug treatment is through the knowledge that if they do not, jail awaits.

This basic premise underlies many of the drug court programs around the country. They provide the opportunities and tools for individuals to get treatment, and consequences if they do not take the steps necessary to complete it. The individuals involved in these programs genuinely want to help those with addictions but understand that sometimes the best way to help those with addictions is to provide consequences if they will not help themselves.

Individuals must also be held accountable for any crimes they committed to feed their addictions. Rarely is someone arrested simply for smoking a blunt or possessing a small quantity of narcotics. Sure, it happens, but more often than not someone is arrested for another crime incidental to their drug addiction.

Consider also that prosecutors often allow individuals who could be convicted of more serious crimes — such as possession with intent to distribute — to enter pleas to the lower charge of simple possession. They do this for a variety of reasons, but under Biden’s plan, it’s unclear if this tool would be taken away.

While Biden’s plan remains vague, instead of issuing a blanket statement that simple possession cases will not be criminally prosecuted, as many rogue prosecutors across the country have done, a better approach would be for Biden and his administration to use the tools Congress has already provided.

In the rare case where someone truly is picked up with a small amount of narcotics and prosecuted by federal authorities, federal law already provides a mechanism that allows those individuals to pursue treatment and to avoid the consequences of a conviction.

18 U.S.C. § 3607 provides that if someone simply possessed a controlled substance, hasn’t been previously convicted of a controlled substance offense, and hasn’t already received the benefits of this lenient provision, that individual can be placed on “special probation.” Essentially, the judge can place such offenders on probation for up to a year, and if they successfully complete their term of probation, the judge will not adjudicate them guilty and their record can be expunged. There really is no other provision in federal law like it.

Of course, if someone violates the terms of probation, that individual won’t receive these benefits. Similarly, this provision is also not available to those who commit a controlled substance offense a second or third time. Essentially, it provides the opportunities for individuals to get help and provides incentives for them to take advantage of those opportunities, and consequences if they do not.

This type of approach better safeguards communities and helps those suffering from drug addiction rather than a blanket statement that those possessing drugs won’t receive jail—even when jail might be in their own best interest.

Zack Smith is a Legal Fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies. Charles D. Stimson, a senior legal fellow at Heritage, manages the think tank’s National Security Law Program.