This blog started out as a companion piece to my book, Musings from the Christian Left (excerpts of which can be found in the July 2004 link) and to support a planned radio show. Now, its simply a long term writing project from a Christian Left Libertarian perspective (meaning I often argue for liberty within the (Catholic) Church, rather than liberty because the church takes care of a conservative view of morality.

Tuesday, June 01, 2004

Drugs, Mental Health and Crime (Geocities Rescue)

The issues of drugs, mental health and crime are considered in the same space, as they are intimately related. These issues speak to the core questions of the rights of the individual versus the rights of society as a whole, between liberty and morality. Of these three, the question of drugs is probably the most contentious. As much as or more than the sexual revolution, the emergence of drug use in the late 1960s divided American society between the old and the young.

The War on Drugs
If society is to be true to its values, it must rethink the current war against drug users. Such a rethinking is inevitable as the Baby Boomers age and more of the population has used drugs or condoned their use by friends. As this group grows older either attitudes shift on drug use or harsher measures will be necessary. If the latter path is chosen liberty diminishes, both for drug users and non-drug users. This path has been tried in recent memory in the area of alcohol, with little success then or now in stemming the demand for intoxication. All that the War on Drugs has accomplished is the jailing of many otherwise harmless citizens and more lying on survey research and background questionnaires.

A key element in understanding the war on drugs is the culture itself. The harshness of the War on Drugs has as much to do with racism, the suppression of the counter-culture and the protection of morals as it does with public health. These dynamics explain why Crack is more heavily punished than powder cocaine and why the majority of Crack convicts are African American, even though whites are as likely to use Crack as Blacks. It is also why marijuana, the drug of choice of the counter-culture, has failed to receive a fair hearing as an anti-nausea drug, as to do so would damage the cultural credibility of the drug warriors (that, and the fact that the drug industry is not be able to control the supply or that if it were legal many prefer it over alcohol, which is much more harmful). Not all drugs are the same. Not all of them cause violent behavior or lead to addiction. Society has no place regulating the peaceful behaviors of its citizens. The resort to criminal sanction violates the right of the individual to be left alone. Unless a behavior is disastrously harmful, society has no business regulating it. The cultural elements of drug law are tyranny against dissent and are best abolished.

Marijuana, raw coca and hallucinogenic mushrooms are safe for the vast majority of occasional users, who need not be treated as criminals by society. Doing so is actually counter-productive. Legalization of these substances frees scarce resources for the fight against drugs that are truly harmful. For these drugs, as well as prescribed drugs and alcohol, intervention is needed only if it is found that the individual is using addictively. Other drugs almost always lead to addiction, such as Methamphetamine, Heroin and Cocaine. Such addiction often leads to crime within the home and sexual crimes including rape, sex abuse, date rape and involvement in prostitution to pay for drugs with easy money. The health effects of addiction, again mainly for alcoholism, are also staggering. Use of any drug in an addictive manner, or any use of drugs which are always addictive, must lead to automatic hospitalization when addictive use is confirmed.

Under the right circumstances, drug testing is a useful tool in the hands of competent mental health professionals (rather then police). Testing is necessary upon complaint by family member, school or employer or upon observation of dangerous behavior by a police officer including public intoxication, drunk or drugged driving or causing violent incidents when intoxicated.

Another consequence of the war on drug users is the creation of new and more lethal organized crime. Additionally, criminalization increases the price of drugs, turning addicts into thieves and robbers in order to obtain money to purchase drugs. To alleviate this, some form of legalization is good for society. If less harmful drugs are legal, consumption of dangerous drugs is more controllable, as is the experience in the Netherlands with Cannabis. Among legalization options are over-the-counter sales of Cannabis, Hashish and certain other drugs in less pure form to adults. Given a legal substitute, many drug users leave the more dangerous drugs alone. For those who use drugs that are always addictive, mandatory treatment is essential.

The Need for Mandatory Treatment
Clearer voices on the drug issue favor medicalization, which promotes treatment rather than prison for drug offenders. Criminalization has only one thing to say for it, that it makes treatment mandatory for those who are caught. With the deinstitutionalization of the 1970s, treatment is no longer forced on unwilling mental patients or addicts. This has led to widespread homelessness, as the group homes promised for released patients have never materialized and have been actively resisted in most communities. Nowadays, the largest provider of mental health and addiction services is the criminal justice system. There has to be a better way, as locking people up for what are essentially illnesses borders on tyranny. If one considers the extent to which the War on Drugs is funded by asset seizures in civil proceedings, society has likely crossed that border. Perhaps it is time to cross back toward our original values and to find a middle ground between the absolute right to refuse treatment and what is essentially the criminalization of addiction and insanity.

Currently, the alcoholic or drug addict must hit bottom on his own to obtain treatment, or be ordered into treatment in connection with the commission of some crime, like possession or drunk driving. The mentally ill must be an actual danger to themselves or others. In both cases, the patient is able to leave once the immediate danger is passed, even when the prognosis for long term recovery is grim. Family members are powerless to rescue a loved one until it may be too late to do so, leading to what is arguably an epidemic in suicide, especially among the young. The homeless are allowed to rot on the street, even though we know there is a better way. Given society's role in allowing these individuals to forgo treatment, the blood of these poor souls is on all of our hands.

It is within the power of state governments to change the law and restore the protection of asylum to the alcoholic, the addict and the insane. It is time that this power is used. Granted, protections are necessary for patients suffering from misdiagnosed health conditions that mimic mental illnesses. Such procedures must also protect against family members who use the mental illness of a relative as a means of theft. Some patients are chronically ill and in need of long term care. These patients go in and out of hospitals and treatment facilities on a fairly regular basis. For these patients, we must change the standard for release from "no immanent danger to oneself or others" to the more difficult "probable danger" that the individual will resume addictive behavior or discontinue use of medication/therapy. For those who are released, monitoring is necessary, with re-hospitalization in the event of relapse or non-compliance. While it is important to allow individuals the freedom to change treatment regimens, forgoing all treatment should never be an option. Once a patient is in the system with a validated diagnosis of mental illness or addiction, re-hospitalization requires a lower threshold of proof than initial commitment. If someone has been diagnosed and treated and they are found living on the street or under the influence, this is enough for immediate re-hospitalization in a sane and compassionate society.

Crime and Punishment
Society must rethink its attitudes about crime and punishment. While we have made great strides with an end to public flogging and a decreased use of the death penalty, there is still a long way to go.

The current system has resulted in gross injustices, such as mandatory minimum sentences for drug users. Such sentences, along with trivial felonies are used in some parts of the country as a way to systematically disenfranchise African American males. Trivial felonies are those crimes that are used in joke books and comedic monologues in late night television for a laugh, but in the hands of a racist prosecutor are deadly serious for the political rights of minorities. Both mandatory minimum and trivial felony laws must be repealed in the interest of justice. Another gross injustice is the use of the courthouse stool pigeon. No person convicted of a crime on the testimony of a witness who has been granted immunity in exchange for testimony has received due process of law, especially when the witness was not involved in the crime. Free all those convicted at either the State or Federal level solely on the word of a witness granted immunity, unless corroborating testimony or evidence exists which is untainted in the matter and that they are not suffering from some condition that makes them dangerous to society or themselves.

The Indictment Game also leads to gross injustice. Prosecutors, sometimes motivated by a desire for political office, often seek or issue an indictment for the highest charge allowable. This also strengthens the State position in plea negotiations with often underpaid public defenders. Whether publicly paid or not, most defense counsel is complictious with the indictment game, as there is a chance that the jury will see that the indictment and evidence do not match, leading to an acquittal. This happened in the Baby Shaking Case, where a nanny was tried and convicted of second degree murder by a jury. It happens a lot. A few reforms are in order here. The first is that all indictments must be reviewable before trial by an independent panel to insure that particulars of the indictment match the letter of the law. Review murder and rape cases automatically, as salacious crimes lead to overcharging. The second is to increase the pay of public defenders so that it is in line with the pay for prosecutors, and to set compensation limits for the pay of private lawyers. Not to do so leads to unequal justice before the law.

The uneven application of the Death Penalty is another gross injustice. Blacks who kill whites are almost assured of execution, while in some jurisdictions it was recently the case that whites that kill blacks may not even be convicted, let alone executed. It is time for a thorough review of the cases of all who are on death row or who are in prison for life without parole, which to my way of thinking is a more polite form of execution since the state's incarceration of the prisoner is the proximate cause of death. For each case, review the quality of representation, the evidence, the appropriateness of the indictment, the mental state of the inmate and the possibly of treatment or rehabilitation, as well as whether the inmate is a danger to his fellow inmates. Treat or rehabilitate all those who are able and release those who are likely innocent. Those who are untreatable, who are found guilty after a second review and who are a danger to the other inmates are best euthanised, not in the interest of justice but in the interest of safety for the society, both outside and inside the prison. In a democracy, we collectively take on the role of sovereign. The sovereign's chief responsibility is the protection of life. To allow a killer to prey upon fellow inmates or reenter society is a violation of that responsibility, and caging him in solitary confinement for the remainder of his life is crueler than euthanasia.

Criminalization is a failure in the area of firearms and other contraband. By making the ownership of certain firearms and drugs criminal, the full legal weight of the constitutional protections against illegal search and seizure fall upon the police. However, if possession were regarded as unhealthful and dangerous, rather than criminal, the possession of firearms is treatable as a public health concern rather than as a criminal matter. This would give society more freedom to seize such items as unlicensed handguns, handguns kept in homes with children without trigger locks, automatic weapons and hard drugs. When a dangerous disease is loose, public health officials have considerable leeway. Similar leeway is desirable here. It is much more important for society to remove such substances from homes and communities than to fill the jails with those who possess them. Seizure without sanction has an additional effect, it lessens or removes the profit from the enterprise.

Many people who are incarcerated would no longer be a danger to themselves or society given proper treatment and education. Drugs and alcohol, poverty and illiteracy motivate most crimes. Warehousing offenders is simply not the answer. The public system of justice has failed, largely because the education and treatment of prisoners is often seen as an easy area to make budget cuts. When incarceration occurs without needed education and treatment programs, often a more dangerous criminal is released than the one locked up in the first place. There has to be a better way.

Most violent crime is the result of addiction or mental illness. Most sexual criminals are in fact sexual compulsives. No one who commits murder can be regarded as sane. Most property crime and assault results from the use of addictive substances or from the need to obtain money to obtain them. Even sociopaths are insane at some basic level.

Andrea Yates, the woman in Texas who killed her children while in the throes of post-partum depression, is a case in point. She clearly suffered from a mental defect and in fact the public did not know that she had been treated for bipolar disorder. Still, she was held legally responsible for actions beyond her control. If she was found insane, she would have been eligible for release as soon as she was medicated. To hold her responsible at all meant life in prison and possibly death. The main travesty is not the choice of verdicts or punishments, however, but the fact that she was tried at all.

For her case, and most cases of violent crime, the correct plea is guilty but insane. Such a plea option spares us salacious trials and assures that many receive much needed treatment. While Mrs. Yates is likely receiving anti-psychotic medication in prison, it is unlikely she is getting the counseling required to work through the awful events that occurred while her disease was active.

A guilty by reason of insanity plea, if accepted by the State, results in automatic confinement in the state mental health system for at least the minimum sentence. Make it available for all crimes where the accused was affected by mental illness, rage, diminished mental capacity, alcoholism and substance abuse or addiction (including white-collar crime). If the state does not accept the plea, allow the judge to do so based on the evidence presented in the indictment and any evidence offered by the defendant's counsel. If not accepted by the judge, a panel of judges and doctors review the case and rule on whether to accept the plea. Empower juries to issue the verdict guilty but insane with the same effect.

Under such a plea, the victims have the right to petition the court to order restitution - thus taking away the argument that this is some device to coddle criminals. Victims have a right to be heard in the judicial process. A single prosecutor is not enough to do this, especially when caseloads are high and the temptation to settle is great. Taking care of the victims is important, since a major reason for a criminal justice system is to prevent vigilantism. Providing for the victims allows medicalization to occur and not have it appear to be coddling criminals. Individuals confined under this plea serve at minimum the minimum statutory sentence and are only released when no longer a danger to society - but with mandatory monitoring for the maximum length of sentence. Allow individuals who respond to treatment who are no longer a danger to society, but who have not yet completed their minimum sentence, to participate in work release and transfer them a minimum security situation where their families reside with them. No one is to be released, however, until they are handling restitution to the victims responsibly.

Individuals who are still a danger to themselves and to society are subject to civil commitment - although this is not be some catch-all to incarcerate all offenders, as seems to currently be the case with sex offenders in California. Use such a procedure selectively, under strict judicial scrutiny. Allow individuals currently incarcerated to petition for new sentences under this arrangement - especially drug offenders. Transfer patients to mental health facilities as they become available.

Who should provide these new facilities? The government has already proven unworthy to do so, as shown by the rate of recidivism and the frequency of overcrowded prisons. Private for-profit prisons are even worse. Often these prisons cut corners on correction officer training, medical services, food and any service that diminishes profit. Private prison companies are also in the vanguard of those calling for harsher sentences, thus diminishing liberty in the name of private profit. The prospect of tyranny again raises its ugly head.

Private non-profit correctional and mental health facilities are our only way out. There is nothing in the law that says a non-profit institution cannot be the prime contractor for correctional services contracts. Faith-based institutions are ideal for this purpose. Recall that the Society of Friends constructed the first penitentiary. While this was abandoned because the isolation prescribed led to psychosis (as it currently does in Superfax facilities), the problem was not the operator but the treatment modality. Catholic hospitals are already among the largest providers of health care in the nation. A good first step in reforming prisons is the establishment of a church sponsored hospital for non-violent drug offenders in need of treatment more than incarceration. Another step is a medium security facility for mentally ill prisoners. Currently, some Catholic Charities agencies act as a subcontractor providing addiction services on private prison contracts. It is better to have them as the prime, subcontracting limited services to for-profit firms for such items as security or construction. Of course, there are a few cautions. As in education, do not allow the state to under-fund correction services in the hopes that donors will fill the gap. All costs that fill a secular purpose, especially in regard to food service and physical plant, are to be fully funded by the state. Finally, assure that religious institutions do not substitute a sectarian treatment program in place of twelve-step programs, which have been proven to work with great effect for alcoholics in all settings, including prisons.

A final issue is the treatment of prisoners and their families. Incarceration often leads to divorce and/or leaves the family destitute. A radical option for criminals who are not a danger to their families is the creation of penal colonies where families live in a secured environment and rehabilitation, employment (including family support and restitution), education and therapy are offered for the offender and the family. Offenders are not allowed to leave the colony, though family members have free entry and exit upon inspection.

Take a similar tact for addicts in treatment. Currently, when the parents go into treatment, the children are likely to go into foster care. After a brief period of time, both public and faith-based social service agencies seek to place the child in a permanent, adoptive home. It is no wonder addicts avoid treatment! This is legalized kidnapping. It is better to find foster parents who will take on the entire family, the children and the parents in early recovery. More addicts seek treatment if they know that doing so does not lead to losing their families forever. Foster parenting is a service generously provided, not a back door method to steal someone else's children. It is time to preserve the families of prisoners, addicts and the mentally ill, thus breaking the cycles of incarceration and addiction that are all too prevalent.

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