5.4 Advances in Drug-Free Probation and Bond Programs
In 2004, Judge Steven Alm debuted a probation program that took advantage of the tendency of people to respond more to the speed and certainty of sanctions than to their severity. Hawaii’s Opportunity Probation with Enforcement (HOPE) probationers are randomly but frequently called in for drug tests. Failure to present for the test or to pass it results in a speedy arrest and a short period (typically 2 or 3 days) of jail time. Since its inception, HOPE has shown remarkable results in inducing a previously recalcitrant population to comply with probation requirements, including requirements to remain drug free. Angela Hawken provides a capsule summary[i]:
The Integrated Community Sanctions Unit (Honolulu’s intensive-supervision high-risk probation unit) was the first unit to pilot a HOPE program. The rate of positive drug tests fell by 93 percent for HOPE probationers during the first six months (from 53 percent to 4 percent), compared with 14 percent for comparison probationers (from 22 percent to 19 percent). These improvements in probationer behavior translated into other benefits. Recidivism fell sharply, as did arrests (arrests were more than halved), revocations, and incarceration (an average of 130 prison days were saved per probationer). Findings then were later replicated with a randomized controlled trial of high-risk, primarily methamphetamine-using probationers in a general probation unit.
South Dakota’s 24/7 Sobriety Program also indicates significant initial success at keeping alcohol offenders (as well as some other drug offenders, including methamphetamine users) abstinent, and less likely to re-offend.[ii] Started in 2005 with statewide implementation following two years later, the South Dakota approach is now being replicated in North Dakota and Montana. As with HOPE, 24/7 Sobriety employs frequent testing with high-probability, low-duration jail terms.
A small percentage of participants in HOPE and in 24-7 Sobriety repeatedly fail their tests. The swift and sure – though not strict – punishments attached to drug or alcohol use fail to deter these individuals. Within this sad outcome, however, resides at least one small compensation. Those who cannot stop using their drug of choice despite the near-immediate sanctions are the appropriate recipients of treatment resources. In the HOPE context, Hawken (2010) terms this the “behavioral triage” effect. Referrals to treatment are based on observable behavior, not unsubstantiated claims of drug usage. Further, under a re-legalized drug regime, the courts (and to some extent, treatment providers) would not be clogged with people whose only “crime” is drug consumption. Coerced treatment, independently of its effectiveness, generally is inappropriate for adults whose drug use has not been a cause of harm to others.
HOPE and 24/7 Sobriety demonstrate that exclusion is an enforceable approach to drug control. Indeed, many of the clients of these programs are methamphetamine users – and most of them choose not to use methamphetamine, one of the more reinforcing of the currently illegal drugs, given the incentives established under the programs. (Note that prohibition alone was not capable of preventing these people from establishing and maintaining addictions.) For people who some years ago believed that it was a close call as to whether prohibition or legalization was a better approach to drug policy, the success to date of HOPE and 24-7 Sobriety should tip the scales in favor of legal drug access.
5.5 Legal Pharmaceuticals and Diversion
Drugs that are available by prescription only represent an example of a licensed user regime, where the prescription constitutes the license to acquire and consume limited quantities of the drug. Some drugs currently available via prescription for medical conditions also are popular for recreational use. Recreational users either generate a legal prescription, or acquire drugs that have been diverted from the legal supply chain, often by the holder of the prescription. In 2008, some 6.1 percent of Americans 12 years of age and older used a prescription drug in a non-medical fashion, with nearly one percent of Americans taking such drugs in a dependent or abusive manner.[iii]
The significant (and largely illegal) leakage from the medical to the non-medical supply of prescription drugs poses a challenge for drug re-legalization via licensing. If the relatively stringent control of pharmaceutical drugs is so porous in practice, how will looser controls associated with the licensing of cocaine or opium fare? Does the significant abuse of prescription drugs imply that licensing does not work?
Surely the situation with prescription drugs is evidence that licensing aimed at preventing adult recreational use does not work all that well. But the buyer licensing proposed here aims to provide a legal means for adults to use drugs recreationally; it concerns facilitating, not preventing, responsible recreational drug use.[iv] It also is designed to identify those whose drug use is potentially problematic, and to focus treatment efforts on them. Transferring the bulk of recreational consumers to a regulated market will reduce the residual demand in the illicit secondary market. Further, enforcement resources will be targeted not at drug possession and use, but rather at diversion to unlicensed individuals.
5.6 Advertising
In the US, advertising for an illegal good can be suppressed without running afoul of Constitutional protections for speech. For legal goods, however, the situation is more complicated, and it is possible that advertising bans on re-legalized drugs will not be tenable.[v] For this reason, I think that there is something to be said for state-monopoly suppliers (as opposed to privately owned, state licensed retail outlets). (Fosdick and Scott likewise preferred this option, and for similar reasons – concerns that commercial interests would become too powerful if alcohol were to be sold by private businesses. Transform also supports an advertising ban for re-legalized drugs.) State monopoly suppliers can credibly commit to limited advertising, in ways that do not implicate free speech concerns. As with all of the suggestions made here for drug re-legalization, experience will indicate, over time, sets of regulations that work reasonably well.
[i] Hawken (2010).
[ii] On 24/7 Sobriety, see Caulkins and Dupont (2010), Long (2009), and “RAND Corp To Study South Dakota 24/7 Sobriety Program,” Dakota Voice, February 10, 2011, at http://www.dakotavoice.com/2011/02/rand-corp-to-study-south-dakota-247-sobriety-program/.
[iii] See Table G.4 and Table 5.2B in Substance Abuse and Mental Health Services Administration (2009); tables available at http://oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A and http://oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect5peTabs1to56.htm#Tab5.1A, respectively.
[iv] Incidentally, the distinction between medical and recreational use of drugs is not sufficiently bright, to my mind, to serve as the basis for the legality or illegality of the use of a drug; see Husak (2002, pp. 37-43). One of the benefits of drug re-legalization is that the distinction between medical and recreational use takes on much less importance.
[v] See Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), and Leitzel (2008, pp. 172-174).
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