Punishment Little Use as Deterrent to Addicts

I have long had a front row seat to the war on drugs. I joined the fray in 1984 as an assistant United States attorney. After 1990, my career shifted. I left the government and I began to represent those accused of crimes.

But whether prosecuting or defending, I have long accepted the view that the threat of punishment for criminal behavior was a real deterrent to crime. It’s a view that made sense. No one wants to be punished. If some individuals do not want to obey the law as a personal matter, the threat of being punished as a lawbreaker could still be expected to result in their lawful behavior. But I have changed my mind.

The addictive quality of the drugs being sold today has made me realize that the threat of punishment means little to addicts. I recently spoke to an assistant United States attorney and a probation officer about this idea. They spoke simultaneously and at once. They both agreed that deterrence means little.

While a lot of my views are based on things I see in my law practice, a personal story has influenced me as well. My daughter and her husband have taken two foster children into their home. These are delightful children, full of the joy of life. The children are there because Child Protective Services was forced to take the children from their natural parents. Drugs were to blame.

The youngest foster child was discovered at birth to have drugs in his system. CPS provided services to the family. During a scheduled visit by members of that agency, the police had to be called to open the door. Mom was unconscious. A three-year-old was in charge. More intense government activity followed.

The goal in every case where Child Protective Services becomes involved is for the children to be safe and then to reunite families. But that is not a government service that can be wrapped like a Christmas present and delivered. It requires an impaired parent to want to be helped. It requires an impaired parent to make some effort. After months, that is not happening in this situation. The addictive quality of controlled substances has proven to be a severe challenge, and one that is proving more difficult to overcome than might be hoped.

A brief observation about this is in order. When I was younger, members of my generation thought we were invincible, too. We wanted the options open to adults. Alcohol was the mind- altering substance that was sought out by my generation. It can be addictive, and I know people who have struggled, but hangovers were the primary consequence. Opiates are in a whole other category. Ultimately binge drinking faded into the past. But no one is invulnerable to the stuff of today. These are addictive substances with a qualitative difference. Walking away requires a strong resolve.

While I know there is a need for persons to want to walk away, I’m now able to watch these delightful foster children. I have the joy of being a foster grandparent. I know what the biological parents are missing. I feel sorry for them and their loss. This is time with their children that can never be recaptured.

It would be easy to blame the parents. But, the parents are truly unable to free themselves from addiction from what is on the streets today. I have found myself asking, if addiction prevents a person from taking the necessary action to recover their own children, from a system that truly wants to return the children, then does the threat of incarceration for involvement with drugs constitute a deterrent that works, at all?

At the same time, I have recently had variety of persons addicted to drugs come to my law office in need of my services.

I represented a young man who had finished a jail sentence in Ohio, and was facing more punishment in West Virginia for the type of theft offenses that the desperate commit. His prior behavior had caused his family to report his activity to the police. We sometimes call that “tough love.” Because he had made some turnaround, his family paid my fee. He’s back in the community. He’s being supervised in Ohio, in West Virginia and, again by his parents. He’s grateful that he has support in being rescued and he’s trying, too.

A young lady was in my office with an older family member. She’s doing well, years after having been convicted, but her record as a convicted felon is proving a major impediment to her having a productive economic life.

I will say that being accused of crime, and often spending time behind bars, has been sobering for all of my clients. Whatever hope of hiding their addiction and criminality which might have existed is stripped away by being arrested. Surprisingly, many find relief from being exposed. Recently, all of my clients have expressed a desire to put addiction in their past. This is a hard process.

Fortunately, there are some awesome programs to help do just that. These programs are expensive.

But, let’s be honest, the alternative is more expensive. We need to fund such programs fully.

We cannot afford to write people off to addiction.

We have to make an effort to rescue anyone interested in being rescued. Some people may need to be rescued more than once. Kicking addiction is not easy.

But back to my question, does a threat of punishment deter addictive behavior? I now think the answer is no. We all need to recognize this truth.

When we do, we are going to have to reconsider the goals of the criminal justice system. I believe we are going to have to work to fully integrate recovering addicts back into our economic life. We can’t afford to make all recovering people permanently unemployable because of criminal convictions. We need to make expungement of criminal convictions for those who have made a comeback more widely available.

Certainly expungement could be made to depend on completion of meaningful drug rehabilitation programs. Seeking expungement might be conditioned on submitting to government over sight similar to probation for a period of time. I don’t know what details might be best. But let’s move in this direction.

I do know we must seriously reconsider what we think we know.

Then we all need to act.

Guest columnist Sheehan is an attorney who practices in Wheeling.

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