Between Politics and Reason
Chapter 4. Prohibition: The Punitive Model
Erich Goode — State University of New York, Stony Brook
The "legalistic" definition of drugs and drug abuse
spelled out earlier translates fairly readily into one possible
model of drug policy: the prohibition or "punitive"
model. Nearly all observers who see drugs as defined by the fact
that they are illegal, and who exclude legal substances from that
definition, support drug prohibition; that is, they wish to keep
the currently illegal drugs illegal. The word "prohibition"
has both a specific and a general meaning. In its
most specific meaning, "Prohibition" refers to the legal
ban on the manufacture and sale of alcohol beverages which was
in effect in the United States between 1920 and 1933; used in
this way, the word is usually capitalized. In its more general
sense, the word refers to banning any activity, service,
or product through the criminal law. This may be referred to as
a punitive approach, that is, a policy which calls for
punishing persons who ignore the law and purvey or partake
in the relevant activity, service, or product. Clearly, the word
"prohibition" can refer to a ban on any psychoactive
substance. With reference to drugs, a punitive policy would mean
that, if a violation occurs, and someone who is engaged in a drug
transaction, or who is in possession of a quantity of an illegal
substance, is apprehended by the police, he or she may be arrested,
prosecuted, convicted, and imprisoned. Under a punitive policy,
drug possession and sale are crimes, much like rape, murder,
and armed robbery; a criminal penalty is provided in the
penal code for infractions. This penalty could entail a fine,
a jail or prison sentence, or probation instead of imprisonment;
in some jurisdictions (outside the United States), this may even
entail execution. When laws are passed providing penalties for
a given offense, this is referred to as criminalization. Prohibitionists
want drug possession and sale to be criminalized—or even more
harshly criminalized than they are—because, prohibitionists
feel, use will decline as a result (or because they feel that
such penalties symbolize society's opposition to such use). Since
they support a "war" on drugs, advocates of the punitive
policy may be referred to as "hawks," a term that is
usually used to refer to the more warlike factions in a society.
In contrast, legalizers may be referred to as "doves,"
since they oppose this "war" on drugs and believe we
should "lay down our weapons" and "declare peace"
(Reuter, 1992, p.16).
Of course, jurisdictions do vary in just how punitive their
policies are. At least three factors define a jurisdiction's degree
of punitiveness. First, the penalties provided by law
will vary from one jurisdiction to another. The laws in some jurisdictions
are extremely harsh, calling for capital punishment and life sentences
for drug selling and possession; others are more lenient and call
for fairly brief jail or prison time. Second, police priorities
may or may not focus on drugs. Some jurisdictions devote a
substantial proportion of their budget to drug violations their
police departments have specialized narcotics squads, and they
purchase expensive equipment to aid in surveillance, engage in
undercover drug operations, and seek out drug violators with a
special vigilance. For the police in other jurisdictions, in contrast,
drug enforcement represents a low priority; they will arrest suspects
only when they stumble on violations by accident. And third, the
likelihood of carrying out the sentence which is called
for in the law may be either flexible or ironclad. In many jurisdictions,
a variety of alternate penalties—such as house arrest, community
service, probation, fines—are most often invoked. In others,
a prison sentence is not subject to discretion—the felon must
serve prison time. In addition, as we'll see, in many countries,
states, or communities laws are on the books which call for substantial
penalties, but violations of these laws are ignored, and the prescribed
penalties are never meted out. Thus, although many jurisdictions
have a punitive policy, in which the possession and sale of certain
drugs is against the law, the variation in just how punitive
law enforcement is, is enormous.
Let it be said that the more extreme versions of the punitive
approach that are used elsewhere are not legally possible in a
society such as the United States, which values civil liberties,
the right of due process, and freedom from unreasonable punishment.
For instance, very few commentators support the death penalty
for drug violations. (A few do, and have so stated in public.)
In 1949, when the Communist party seized power, there were tens
of millions of opium addicts in China. Most observers agree that,
within a decade, the problem had been all but eliminated. Of the
many weapons in its arsenal, the Chinese government used public
execution of drug traffickers as well as "reeducation"
or resocialization camps for users and addicts. Today, as a result
of more contact with its neighbors, the problem of drug abuse
is making a comeback in China, many observers feel. While lecturing
at Beijing's Medical University, Goldstein (1994, p.258) watched
the television coverage of a public hanging of 52 alleged heroin
dealers. With a crowd of thousands watching, the governor of the
province declared: "This is how we deal with drug traffickers!"
Such a draconian penalty is simply not a viable option in the
United States. When I refer to the punitive policy toward drug
possession and sale, therefore, I refer to longer and especially
more certain sentences for violators, as well as a relaxation
of the rules of due process, largely governing search and seizure
by the police. Execution is simply not in the cards here, thankfully.
The criminalization of psychoactive substances through the law,
and the enforcement of that law, make up one of the more fascinating
of all human activities. Of all psychoactive substances, only
caffeine is not regulated anywhere by the criminal law (Goldstein
and Kalant, 1990, p.1513). Drug laws and their enforcement are
remarkably variable the world over. Alcohol is illegal in some
jurisdictions (Iran and Saudi Arabia) and legal in most others;
coca leaves containing cocaine are legally obtainable in Bolivia
and Peru but not in the United States; though technically illegal,
marijuana may be openly purchased in "hash" shops in
Amsterdam, but not—openly, at least—in Toronto; heroin may
be administered by physicians to addicts in Liverpool but not
Los Angeles. The reasoning behind the passage and enforcement
of drug laws is, presumably, that substance use has become a problem
to the society and that it can and should be eliminated, or at
least reduced, by arresting and imprisoning violators. The reasoning
behind tolerating or not criminalizing the possession and/or
sale of psychoactive substances is that drug use is not a major
problem or that punishment would create more problems than it
would solve. Which approach is correct? Can generalizations be
made concerning the relative merits of criminalization versus
the legalization of drugs? Or is the validity of statements about
drugs and the law specific to the society, the jurisdiction, and
the drug in question?
While lawmakers may have noble intentions in mind when drafting
and enacting a piece of legislation, as Robert Burns, Scottish
poet (1759-1796) reminds us, "The best laid schemes o' mice
and men / Gang aft a-gley" (or, "often go astray").
As we've seen from the concept of unanticipated consequences,
our efforts do not always achieve their desired goal, and
a variety of unintended, unanticipated, and undesired consequences
often result from even the loftiest of goals. In fact,
some legislation has caused a great deal more harm than
good, as we learn from the lesson of national alcohol prohibition
(1920-1933). However, this should not condemn all legislation,
for surely there are some laws which have had beneficial results.
Hardly anyone would vote to repeal laws against serious crimes
such as rape, robbery, and murder, simply because they fail to
eliminate the behavior they criminalize, or because such criminalization
may sometimes have unanticipated consequences.
Laws requiring motorists to stop when a school bus is loading
and unloading students, motorists to buckle up when the car is
in motion, and motorcyclists to wear protective helmets have been
effective; by "prohibiting" certain behaviors, they
have saved countless lives. No one would seriously propose that
selling outright poisons as food or medicine to the public be
made legal, or that tampering with food or medicine sold by others
by introducing poisonous substances into them be subject to no
penalty whatsoever. Should potentially harmful substances be sold
as medicine? Should manufacturers be allowed to pollute the air
the water, the earth? If restrictions apply to actions that harm
others, do the same restrictions apply to actions which harm only
the individual actor, for instance, the drug user? Should the
drug seller be exempt from the restrictions that apply to other
types of harm? Yet, what happens in a society when it attempts
to control behavior through the criminal law? Useful and intelligent
answers to these questions are not easy to come by. It should
be clear that the issue of drug control and legislation is a difficult
and thorny issue, not one that can be solved with glib, simple,
pat formulas. Anyone claiming that a given proposal is self-evidently
true, and that opponents of that policy are villains or fools,
cannot be trusted.
TWO PUNITIVE ARGUMENTS
It should also be noted that there are two entirely different
punitive arguments; many observers confuse the two. Let's call
them (1) the "hard" or the "strict" and (2)
the "soft" or the "moderate" versions. The
"strict" punitive version makes use of the logic of
absolute deterrence, while the "moderate" punitive
version makes use of the logic of relative deterrence.
The "hard" or "strict" punitive argument says
that a given activity can be reduced or eliminated by
law enforcement. It argues that crime is deterred or discouraged
in some absolute or abstract sense by law enforcement. This
is the rationale for the government's "war on drugs":
Escalate the number of arrests of users, addicts, dealers, and
producers; hand them longer prison sentences; fill the jails and
prisons; and eventually drug use will be "defeated."
The advocates of the "hard" punitive argument quite
literally suppose that drug use can be wiped out, or at least
drastically curtailed, by an escalation in arrests and sentencing;
arrest and imprison enough drug users and sellers, and use will
drop to nearly zero, or at least to tolerable, minimal levels.
In contrast, the "soft" or "moderate" punitive
position does not see a defeat of or even a drastic reduction
in drug use or abuse as feasible. This argument is quite different
from the hard or strict criminalizer's position; in contrast,
it says, in the absence of law enforcement, a given activity
would be much more common than it is with law enforcement.
It relies on a logic of relative deterrence because, it
says, with law enforcement—as compared with no law enforcement—certain
kinds of crime take place more often. If there were no laws or
penalties against robbing or inflicting violence upon others,
more people would engage in such behavior (not most people—more
people). Law enforcement does not reduce the incidence
of these acts so much as contain them. Same thing with
drug use: Punishing the drug violator is not, and, under most
circumstances, cannot be, a means of drastically reducing or eliminating
drug use. But if there were no drug laws—and no penalties
for the production, importation, possession and sale of the
presently illegal substances—use would be considerably higher
than it is now. Thus, the "soft" or "moderate"
criminalizers do not see the inability of law enforcement to "stamp
out" drug abuse as a failure of the punitive policy. "Stamping
out" drug abuse is a futile and literally impossible task,
and an absurd measure of the effectiveness of the laws against
drugs. Legalizers who argue that "everyone knows" that
the drug laws have "failed" (Best, 1990; Hyse, 1994;
Yett, 1990), the moderate criminalizer argues, are basing their
claim solely on the "hard" or "strict" punitive
approach; it leaves the "soft" or "moderate"
punitive argument completely untouched. In looking at the drug
legalization debate, the differences between these two versions
of the punitive argument should be kept in mind. It will assume
central importance in several later discussions.
DRUG CONTROL: THE CURRENT SYSTEM
In the United States at the present time, a range of psychoactive
substances are regulated by the criminal law; they are controlled
substances. The Controlled Substances Act—also referred
to as the Drug Control Act—provides for "schedules"
or categories of drugs with varying controls and penalties for
violations. To simplify a complex situation, three categories
of psychoactive substances or drugs are controlled by the law.
The first category of drugs may be referred to as the legal
drugs. They are not included in the Controlled Substances
Act at all; in effect, the government does not consider them drugs
in the first place. These psychoactive substances are available
to anyone over a certain age. A variety of laws, rules, and regulations
stipulate the conditions of their sale and consumption—where,
when, and by whom they may be purchased and consumed. Violation
of these laws may result in arrest and/or a criminal fine. Still,
these substances may be acquired and consumed under most circumstances
without violating the law. Alcoholic beverages and tobacco cigarettes
provide examples of legal drugs. Their sale and use are controlled
by law, but they are not mentioned anywhere in the Controlled
Substances Act. In addition, some other substances, not strongly
psychoactive, commonly referred to as drugs because they are used
for medicinal and quasi-medicinal purposes, do not appear in the
Controlled Substances Act either. These are the over-the-counter
(OTC) drugs, such as aspirin, Tylenol (acetaminophen), No-Doz,
Dexatrim, and Compoz. Controls on them are less stringent than
they are for alcohol, but, like alcohol, they may be purchased
legally by practically any adult, without a prescription. Since
OTC drugs are not psychoactive and are not used recreationally,
we will not consider them here.
The second category of substances is made up of the prescription
drugs. These are the Schedule II to V drugs in the Controlled
Substances Act. Thousands of drugs that are psychoactive are available
by prescription, which are written by physicians for their patients'
medical and psychiatric problems, illnesses, or maladies. These
drugs are controlled more tightly than alcohol, tobacco, and OTC
medicines, that is, those that are completely legal. These drugs
are available only by prescription, and only within
the context of medical and psychiatric therapy. The "schedules"
define the degree of control over the dispensing of prescription
drugs as well as spell out the penalties for violating the law.
Schedule II drugs (such as cocaine, amphetamine, and short-acting
barbiturates) are tightly controlled; Schedules III through
V are less tightly controlled. Sale of any of these drugs
for nonmedical purposes—for instance, to get high—can result
in arrest and imprisonment. In addition to their legal prescribed
use, as we saw, a number of prescription drugs mentioned in the
Controlled Substances Act that are psychoactive are also widely
used illegally, for the purpose of intoxication; some are manufactured
illegally in clandestine labs rather than by legitimate pharmaceutical
companies.
In addition to individual physicians' prescribing drugs for use
by individual patients to treat specific ailments, prescription
drugs are widely used for two other populations: first, the mentally
disordered, both as inmates of mental hospitals and as outpatients;
and second, narcotic addicts who are clients or patients of methadone
maintenance programs.
In 1955, there were over half a million residents of publicly
funded mental hospitals; today, there are roughly 80,000. Where
did they all go? The far-smaller number of mental patients in
residence today is not a result of a mentally healthier population;
in fact, today, there are more than twice as many hospital admissions
each year than there were 40 or 50 years ago. The decrease in
patients in residence in mental hospitals is due to the fact that
patients are staying in mental hospitals for a much shorter period
of time—an average of two weeks as compared with six months.
The fact is, since 1955, these patients have been administered
antipsychotic drugs and are released either into the street
or into the care of some sort of group home or small managed facility.
Still, if we are thinking about whether the country's policy toward
psychoactive drugs is punitive or based on some other philosophy,
the fact that hundreds of thousands of mental patients, mostly
schizophrenics, are administered drugs that are intended to treat
their disorder must be considered.
In addition, nationally, there are about 100,000 outpatients of
methadone maintenance programs. Methadone is a slow-acting narcotic
whose effects are designed to block the effects of heroin. Taken
orally, dissolved in a liquid, methadone does not produce an intoxication
or high. Evaluations of methadone maintenance programs have shown
that a substantial proportion of their clients, perhaps a third
to 40 percent, cut down sharply on their use of illegal drugs,
including heroin, and reduce their rate of crime. Methadone is
not a panacea, or cure-all. It is not even effective for a majority
of the program's clients. Still, a substantial minority are helped
in a significant way, and the program seems to be cost effective
(Hubbard et al., 1989). Again, methadone maintenance programs
provide a partial exception to the rule that American society
pursues mainly a punitive approach to drug use. As a general rule,
"doves" advocate an expansion of methadone programs,
while "hawks" either wish to hold the line on maintenance
programs or call for a serious cutback on their funding.
The third category of drugs is made up of those whose possession
and sale is completely illegal; they are not available
even by prescription. The Controlled Substances Act regards these
drugs as having "no medical utility" and a high potential
for abuse; they are classified as Schedule I drugs. (The "no
legitimate utility" is, of course, largely a legal fiction,
since some medical experts regard marijuana and heroin, two Schedule
I drugs, as being medically useful.) They cannot be purchased
or obtained for any reason whatsoever (except under extremely
rare experimental conditions); anyone who possesses, transfers,
or sells them automatically violates the law, is subject
to arrest, and, if convicted, may have to serve a jail or prison
sentence and/or pay a criminal fine. Examples of the Schedule
I drugs include marijuana, heroin, MDMA (or "ecstasy"),
LSD, and PCP (or "angel dust"); they are always (or
almost always) obtained illegally, and are widely used, illegally,
for the purpose of intoxication.
For the completely legal drugs, the use of a given
substance is not in question; possession and sale for the purpose
of just about any and all use—including intoxication—are
legal. The completely illegal drugs represent exactly the
opposite side of the coin—possession and sale for almost no
use whatsoever are legal. It doesn't much matter why one
wishes to use heroin; even medical uses in the United States are
against the law (again, excepting extremely rare experimental
conditions). In sharp contrast to these two, for prescription
drugs, the matter is quite different: It is the use of the drug
(and how it is obtained) that defines its legal status. If used
in a manner the government deems medically acceptable and obtained
by means of a legal prescription, the possession and sale of prescription
drugs are legal; if used for what are regarded as illicit or disapproved
purposes (say, getting high), or obtained without benefit of a
prescription, possession and sale are illegal. Notice, too, that,
technically speaking, drug use is not a crime; it is possession
and sale that are against the law. When observers refer
to the illegal use of prescription drugs, this is shorthand for
nonprescription possession and sale for the purpose of
illicit use. For Schedule I drugs, likewise, although it is possession
and sale that are technically illegal—and not use—it
is ultimately the use of these substances that the law is presumably
intended to control.
A small exception to the punitive policy toward Schedule I drugs
is provided by the partial decriminalization of marijuana
in nine states of the United States: California, Colorado, Maine,
Minnesota, Mississippi, Nebraska, New York, North Carolina, and
Ohio. (In 1989 and 1990, the electorate of two states, Oregon
and Alaska, voted—at least partially—to recriminalize
small-quantity marijuana possession.) In these partially decriminalized
states, possession of a small quantity of marijuana (the amount
varies from one state to another) is not a crime. If someone is
apprehended with less than the stipulated amount, one cannot be
arrested (although one's stash will be confiscated) or convicted
and will not serve jail or prison time, and one has no criminal
record. For such an offense, one will receive a citation much
like a traffic ticket, and pay a small fine. The sale or
transfer and the cultivation of marijuana, and the
possession of more than the stipulated amount, remain on
the books as crimes in these states; only the possession of small
quantities is exempt. All the partial decriminalization statutes
were enacted in the 1970s; since 1980, no state has decriminalized
marijuana possession. As we'll see in Chapter 6, there is a world
of difference between the partial decriminalization policy
just described and one of full or complete decriminalization,
which is, as yet, only pie in the sky.
In short, then, at present, the predominant legal stance in the
United States is punitive toward a wide range of drugs.
Many drugs are completely illegal; their possession and sale is
controlled through the criminal law in every jurisdiction of America.
These are the prohibited drugs. The punitive approach has
been pursued more or less continuously in this country since the
passage of the Harrison Act of 1914. Prior to that time, drugs
such as heroin, morphine, cocaine, and marijuana were contained
in a variety of medicines and could be purchased, without prescription,
in a variety of retail outlets, including pharmacies and even
grocery stores. Historians estimate that hundreds of thousands
of persons, mainly women, became addicted before or just after
the turn of the nineteenth century as a result of the indiscriminate
use of these "patent medicines" which contained psychoactive
drugs, mainly narcotics (Courtwright, 1982; Morgan, 1974; Musto,
1987). The Harrison Act outlawed the over-the-counter or off-the-shelf
purchase of what it referred to as narcotics, which many of these
patent medicines contained. (The act included narcotics or opiates
such as opium, morphine, and heroin, as well as, oddly enough,
cocaine—which is actually a stimulant.) With the passage of
the Harrison Act, these so-called patent medicines could no longer
be sold in the United States. However, hundreds of thousands of
persons remained addicted to their ingredients and sought prescriptions
to maintain their addiction.
The Harrison Act did not technically outlaw the possession and
sale of narcotics as such; it required lawful manufacturers and
dispensers of these drugs to be registered and taxed and keep
records of their drug transactions. The act's language permitted
the prescription and dispensing of narcotics by physicians to
their patients for "legitimate medical purposes" and
"in the course of legitimate practice." After 1914,
many physicians continued to maintain their addict-patients on
drugs by writing prescriptions for anyone who was addicted. However,
in a series of rulings, the Supreme Court determined that medical
maintenance was illegal (Inciardi, 1992, pp.l5-16). Tens of thousands
of physicians were arrested for writing prescriptions for addicts,
and roughly 3,000 actually served jail or prison time. As a result,
by the early 1920s, physicians had abandoned treating addicts;
by the end of 1923, every narcotic addict in the United States
was by definition a criminal. In addition to the penalization
of narcotics (and cocaine) through the Harrison Act, although
a number of states had already criminalized the possession and
sale of marijuana earlier, by 1937, laws were in place which made
it illegal to possess and sell marijuana in every state of the
United States. Additionally, that year, a federal law, the Marihuana
Tax Act, was enacted. The Harrison Act and the Marihuana Tax Act
represent punitive policies toward the drug problem; whether
through intent or practice, they prohibited and criminalized the
use and sale of narcotics, cocaine, and marijuana.
In a nutshell, the punitive policy toward drug use is this: To
solve the drug problem, its proponents argue, arrest sellers
and users, convict them, prosecute them to the full extent
of the law, and incarcerate them. If any nonusers contemplate
taking up the habit, the example of what happens to those who
get caught should dissuade them from such foolish behavior. Of
course, as I said earlier, there are variations on a punitive
theme. Some advocates of criminalization approve of the current
policy; others call for even harsher laws, longer and more-certain
prison sentences, fewer alternatives to incarceration, less discretion
by judges, even (rarely) execution of the most serious offenders.
In testimony to the Senate Judiciary Committee, Darryl Gates,
former chief of the Los Angeles Police Department testified that
casual marijuana smokers "ought to be taken out and shot,"
because, he said, "we're in a war" (Beers, 1991, p.38).
William Bennett, former federal drug "czar," speculated
on a nationwide radio talk show that perhaps anyone who sells
illegal drugs to a child should be beheaded. "Morally,"
he said, "I don't have any problem with that at all"
(Lazare, 1990, p.25). Most criminalizers do not support such harsh
penalties, of course, but they do endorse criminal penalties for
most of the currently illegal drugs. In short, regardless of how
severe or mild the penalties proposed, the criminal law, arrest,
and incarceration—punishment—remain the cornerstones of the
punitive approach to drug abuse. It is our current policy for
many drugs, and it is a policy that most Americans support. Public
opinion polls find that roughly 90 percent of all Americans believe
that the possession and sale of hard drugs should remain illegal,
and 75 percent support such a policy even for marijuana.
SUMMARY OF THE CURRENT SYSTEM
At present, then, the United States follows the maintenance
model for 100,000 or so narcotic addicts who are enrolled
in methadone programs; the partial decriminalization model
for small-quantity marijuana possession in nine states; the legalization
model for alcohol and tobacco cigarettes; the medical or prescription
model for psychoactive pharmaceuticals such as Valium, Halcion,
morphine, Prozac, Thorazine; and a criminalization or punitive
model for its illegal drugs: marijuana (completely illegal
in 41 states), crack, ecstasy, PCP, LSD, and heroin (completely
illegal), and a variety of prescription drugs, such as barbiturates,
amphetamine, and cocaine, which are completely illegal if used
recreationally or without benefit of prescription. To put the
matter another way: All recreational drug use in America is
prohibited unless otherwise exempted. The exceptions are alcohol
and cigarettes. Marijuana is a partial exemption in that, even
in the decriminalized states, the user cannot possess above a
given quantity and, even if he or she does possess less than that,
may receive a fine similar to a traffic ticket. (The prescription
drugs do not represent an exception to this rule, since, in principle,
they are to be used exclusively for therapeutic, not recreational,
purposes.) In effect, in the United States, the only significantly
psychoactive drugs that users are completely free to take legally
for pleasure (caffeine excepted) are alcohol and tobacco.
Of course, in addition to what the law says about drug possession
and sale (the "de jure" reality), we must also consider
the actual enforcement practices with respect to drugs
(the "de facto" reality). For instance, in the states
where marijuana possession is a crime, what is the statistical
likelihood that someone who is apprehended will be arrested with
two joints in his or her possession? It depends on the officer
and the jurisdiction, of course, but arrest is a great deal less
likely than it is when someone is caught with a kilogram of heroin,
even though both substances may be technically equally illegal.
The fact is, for crimes generally, a substantial proportion of
suspects who are apprehended committing a crime are simply released
without being arrested; moreover, only a small minority of first-time
offenders convicted of even a serious crime or felony will actually
be sent to prison (Walker, 1994, pp.41-43). The factor that influences
the likelihood of arrest and conviction (aside from the quality
of the evidence) is the seriousness of the offense. And many officers
and departments do not consider small-quantity marijuana possession
specifically, and small-quantity drug possession generally, serious
enough to warrant arrest. (Still, according to the Federal Bureau
of Investigation's figures, there were over 350,000 arrests for
marijuana violations in the United States in 1994, over 80 percent
of which were for the possession of a quantity of the substance
rather than for distribution or sale.) It is important to know
that actual enforcement practices may be quite different from
what the law says.
ARE WE BECOMING INCREASINGLY
PUNITIVE ON DRUG CONTROL?
What does our current trend on drug policy look like? Is our drug
policy becoming more punitive—or less? As we moved from the
1980s to the l990s, and as we move into the twenty-first century,
are the suggestions of the legalizers taking hold? Who's winning—the
"hawks" or the "doves"? The evidence is very
strong that the punitive or punishment oriented approach is winning
out. We saw some of the figures in the Preface. This is part of
a more general trend, nationwide, for all crimes; the country
seems to be abandoning the treatment-oriented or rehabilitative
approach and moving increasingly in the direction of incarceration
as a solution to the crime problem. "Lock 'em up and throw
away the key!" seems to be our contemporary watchword. Budgets
are increased every year for the construction of new jails and
prisons; even so, our jails and prisons continue to be filled
to overcapacity. Between 1970 and l99S, the state and federal
prison population increased from 200,000 to over one million,
while the number of inmates per 100,000 in the general population
more than tripled during this period, from 100 to over 300. There
are two main reasons for this virtual explosion of incarcerated
offenders. First, inmates, especially those convicted of violent
offenses, are being kept in prison longer; that is, increasingly,
they are serving out a longer portion of their sentences instead
of being released early and placed on parole. For instance, in
1988, violent offenders served 43 percent of their sentence, whereas
today, this figured climbed to 51 percent (Butterfield, 1995).
Parole boards are becoming increasingly choosy about which prisoners
they will release early. And second, while first-time drug offenders
in the past were very rarely sent to prison (in the past,
probation was a common sentence for a drug offender), today, increasingly,
they are far more likely to be incarcerated. In 1980, only 8 percent
of the population of state prison inmates were incarcerated for
a drug offense; today, this is 26 percent; over a third of new
admissions to prisons are drug offenders (Butterfield, 1995;
Lindesmith Center, 1996). Hence, our hugely expanding prison population.
American society is not committing more crime (in fact, the crime
rate has been dropping since the 1980s), but our criminal justice
system is clearly becoming more punitive, specifically toward
violent offenders and drug offenders.
Reuter (1992, p.21) estimates that, in the early 1990s, nearly
$30 billion was spent per year at all levels of government on
drug control, more than a tripling over the past decade and a
half. Of this total, roughly 75 percent was for enforcement of
the drug laws; only 25 percent remained for treatment and education.
But budgetary allocations represent only one measure of the growing
strength of the punitive approach to drug control, says Reuter.
The harshness or length of the sentences handed down, as well
as those actually served, for drug offenses have increased significantly
in the past decade and a half. According to the Federal Bureau
of Investigation (FBI), in 1980, there were 581,000 drug arrests
nationally; in 1994, there were 1,351,000. Between 1980 and the
1990s, the percent of drug arrests that resulted in conviction
rose dramatically, and the percent of convictions resulting in
a prison sentence, likewise, increased dramatically. On average,
a drug violator released from federal prison in 1992 served
a 33-month sentence; those sentenced in 1992 must serve a mandated
minimum of 70 months (Lindesmith Center, 1996). In fact, the number
of convicted drug felons going to prison increased by over 10
times during this period, and the total number of prison years
they received, likewise, increased by over 10 times
(Reuter, 1992, p.25). As of 1996, just under two-thirds of the
nearly 100,000 inmates of federal prisons are serving time for
drug violations. The conclusion is inescapable: The "hawks"
are winning; the punitive approach to drug control has become
more ascendant over time. There is no evidence to suggest that
this will turn around any time soon; for the time being, the cry
of reformers remains a voice in the wilderness.