Non Violent Drug Offenders

By Thomas Louis "Tom" (Fox) Fox, II

It is time to rethink our practice of sending non-violent drug offenders to prison. Our country will be better for it; we will save billions of dollars a year and we will be taking the moral high ground in treatingthose who need it, rather than incarcerating them.

Do we really want to continue to take the position that non-violent drug offenders should face the mandatory minimum sentences that they now face? I support the Smarter Sentencing Act of 2014, a bipartisan bill to focus limited Federal resources on the most serious offenders, which also has support of the Attorney General and the Administration. This legislation lowers mandatory minimums for the drug offense levels in the Guidelines and increases eligibility for "safety valve" reductions for individuals with minor records. Since we now know that addiction is a disease, we have to face the new reality that in many cases ofnon-violent drug offenders, we are putting people in prison for being sick.

We currently have close to 2.9 million people incarcerated in the United States. That is about 1 in every 110 Americans. In 1980, that number was about 700,000. In 1980, there were about 41,000 people in our nation's prisons for drug offenses; in 2013 that number was over 500,000.

Our country has less than five percent of the world's population but it houses nearly 25 percent of the world's prisoners. How do these numbers correlate with your vision of our country?

Not surprisingly, our prisons are overcrowded and the prison conditions are considered by some to be inhumane. By the end of this year, California must release 9,600 prisoners from the nation's largest correctional system because the U.S. Supreme Court says that because of overcrowding it is impossible to provide adequate healthcare for inmates. Failing to provide health care for inmates constitutes cruel and unusual punishment in violation of our Constitution.

One of our founding principles is that we are a country of the people, by the people and for the people whose charter is to "establish justice" for all of our citizens. We all learned that at the heart of our justice system is the concept of fair play and substantial justice for all. With so many of our citizens incarcerated, we need to ask ourselves whether we are failing in our duties under the Constitution?

How did we get here? There is no simple answer, but back in 1980, there was a law and order mentality and there was an escalation in what was then termed the War on Drugs. Starting in that year, while the number of arrests for all crimes had risen by 28%, the number of arrests for drug offenses rose 126%. Those numbers continue to keep rising. In 1995, the New England Journal of Medicine reported that the War on Drugs resulted in the incarceration of one million Americans each year, a number that includes local jails as well as the state and federal prison systems. In 2008, the Washington Post reported that of 1.5 million Americans arrested each year for drug offenses.

There is a disparity in how justice in this area is apportioned. While there is no evidence that African American or Hispanics use and sell drugs at greater rates than whites, they account for 61 percent of those incarcerated. How do we rectify this with our duty as citizens to provide fair play and substantial justice for all?

In the eyes of the current prison system, there is no difference between minor drug offenders and hardened, violent criminals. They are confronted with the harshness and brutality of prison life. They are subject to extended periods of time in solitary confinement that can cause their mental deterioration. The entire prison system changes a person, and I have seen that it is not a change for the good.

When people are released from prison, along with deep psychological scars, their future outlook is grim. They loose many of the rights of citizenship,the right to participate in many social programs such as government sponsored student loan programs that could help them get back on their feet. And, for the most part, they are unemployable. Productive members of society are our economies engines but these people's stint in prison puts them on the negative side of that equation. The net result is that most return to prison so we lose not only the nearly $29,000 a year to imprison them, but we loose a tax-payer pretty much forever.

Since the 1980's, and this escalation of drug related imprisonment of Americans, there has been significant strides in medicine. It is now known that drug addiction is not a choice, but a chronic, often-relapsing brain disease that causes compulsive drug seeking and use, despite the harmful consequences to the addicted person and those around them.

Similar to other chronic, relapsing diseases, such as diabetes, asthma, or heart disease, drug addiction can be managed successfully. There are treatments available to help people counter addiction's powerful and disruptive effects. Research shows that combining addiction treatment medications with behavioral therapy is the best way to ensure success for most patients.

While not all of those involved in drugs are addicted, many use drugs to cope with diseases or other medical problems that they are dealing with. In my law practice, I have seen first hand where people self medicate, for instance, when they suffer from an undiagnosed bi-polar disorder. These are very good people who escape to alcohol or drugs until their disease is diagnosed and they are properly medicated. You might be surprised that in many cases, a proper diagnosis and treatment can solve their problem and they don't return to illegal drug use but go on to live a full and productive life. I don't think that it is unreasonable to assume that other undiagnosed conditions or diseases have the same dynamic.

Please let me be clear on this issue, I am not condoning the use of drugs. I am not justifying the drug subculture or the crime associated with it, far from it. What I am advocating is a rethinking, or re-booting, of how we deal with this very real problem in a more humane and economically feasible way. We have learned a lot since 1980 to know that incarcerating non-violent drug users is the least favorable or effective option.

From an economic standpoint, it is a mistake that we can't afford to continue to make. With a cost of almost $29,000 per year to incarcerate a single prisoner in the Federal system. Effective, ongoing treatment, with follow up care for addiction can cost less than $10,000 per year and that is not necessarily an ongoing cost. Costs of supervision by Probation, which may effectively assist the dependent in gaining employment and remaining crime free, is less than $3500. People who are not in prison can actually be employed and they can also be responsible for the cost of their own treatment, thus transferring this cost from the taxpayers.

I am not a utopian idealist, far from it. I am a realist who understands that we need an ongoing commitment to make our country better. It is time for us as a country to look to innovative solutions to ongoing social issues such as what to do with non-violent drug abusers. Our insisting on prison time for some of these individuals has not solved the problem; it has only increased the number of people in our prisons at a social and economic cost that we can no longer afford. Now that we understand that drug addiction is a medical problem, isn't the solution treatment rather than incarceration? A great country shouldn't be afraid to consider mercy over vengeance when meting out justice nor can it maintain a moral high ground by turning it's back on healing the sick.

If the people of the 33rd District were in agreement, in the short term, I would support the Smarter Sentencing Act and the Judicial Safety Valve Act that allows judges to not impose mandatory minimums. I would also do what I could as a Congressman to encourage the use of drug courts in the California court systems. Drug courts, where implemented, are part of the criminal justice system. Those that are eligible go through the drug court system, and are placed into treatment long enough for it to work for them. It provides intensive treatment and other services that they require to stay clean and sober while they are being closely monitored and held accountable to the drug court judge.

I would craft legislation that would seek to expand the federal diversion program to include first time minor drug violators and that allows minor drug offenders who successfully pay for and complete a comprehensive drug treatment program to bypass a criminal conviction on their record so that they can have a chance to obtain a job and be a contributing, taxpaying member of our society.

We need to rethink our incarceration of so many of our citizens and focusing on these non-violent drug offenders is a good place to start. Many of them are addicts and now that we know that addiction is a disease, how can we now justify the incarceration of the sick?

I want to live in a society where justice is tempered with mercy and where common sense prevails. What type of a country do you want to live in?