But there’s the rub, say critics of the current system. Drug addicts, by definition, often fail at every other step. The question policymakers are now pondering is what to do with them when they repeatedly fail: incarcerate them or help them.
“Our current criminal code says repeat offenders should have an extended term. People in the treatment world think relapse is a normal part of recovery,” said Bruce Stout, an associate professor of criminology at The College of New Jersey in Ewing. “We made this decision to treat addiction as a criminal justice issue rather than a public health issue, and in doing so, we’ve incarcerated legions of drug users whose lives we could have changed.”
Stout, who served as a public member of a commission created in 2004 to review New Jersey’s sentencing laws, said the current drug laws were enacted with the view that if we could establish severe punishments for drugs, people wouldn’t use or sell them, but that hasn’t occurred. Instead, some 100,000 drug offenders have been incarcerated since the law was enacted, and use is not down, he said.
“If we get addicts into treatment and then into recovery, they stop committing crime to get high,” Stout said.
The war on drugs began in 1971 after two congressmen released an explosive report that showed a growing heroin epidemic among U.S. servicemen in Vietnam. A month later, President Richard Nixon called drug abuse “public enemy number one in the United States.” The Drug Enforcement Administration was created two years later to handle all aspects of the drug war, and not long after that, New York Gov. Nelson Rockefeller signed what came to be called the Rockefeller Drug Laws, which put some of the most severe drug penalties into law, such as mandating a minimum of 15 years in prison for selling just two ounces of heroin, cocaine, or marijuana.
For years afterward, politicians campaigned on tough-on-crime legislation and in 1987, in response to the crack cocaine epidemic; New Jersey passed the Comprehensive Drug Reform Act (CDRA). Its aim was to deter drug use and sales through harsh penalties. One of the offenses for which there was a mandatory minimum sentence was a new offense of selling, or possessing with intent to sell, illegal narcotics within 1,000 feet of a school or school bus. The Act also limited judicial discretion.
But New Jersey’s approach to drug crime has shown how the war on drugs can go awry. After years of racially profiling motorists on state highways as part of its drug interdiction efforts, state police were forced to acknowledge a pattern of disparate treatment of minority drivers. The attorney general issued a report in 1999 saying the practice was tied to enforcement of the CDRA’s provisions.
In 2005, the New Jersey Commission to Review Criminal Sentencing found the drug–free school zone provision of the CDRA was “profoundly discriminatory” toward minorities.
In fact in the decades after the CDRA was passed, the state’s prison population more than doubled, and because of provisions in the drug law (particularly the drug-free school zone) and the fact that minorities were often the focus of enforcement, New Jersey’s prison population became one of the most racially disparate in the country.
“When you have all these mandatory minimums, you wind up locking up a bunch of people for petty drug offenses, and most of them are minorities,” said Hoffman, who is chairman of New Jersey’s sentencing review commission. “In cities like Newark and Paterson, everything is in a school zone.”