Legalize Drugs: Divert Addiction out of Criminal Court

I was recently given the opportunity to present at Yale Bioethics Center's Summer Symposium for Returning Students. I've left much of my formal studying in Bioethics and public health behind me, but I do often find intersections between health and poverty and crime in my work as a public defender. When deciding what to write and present on, I went to a friend, colleague, and PD spirit guide Brad Schlesinger and we discussed a paper about the drug war and its public health implications (read: failures). Simply, the drug war has failed and our courts fail people suffering from addiction every day. This blog post is part of a paper originally presented and published by Yale's Interdisciplinary Bioethics Center.

Larry was one of my first clients. He was in his late-50s, but looked older. He sat quietly on one of the benches in the courtroom with his folded paperwork held tightly in his hand. He said that he had family in the area, but he came to court alone. When I met Larry, he had been homeless for several decades and suffering from addiction for the better part of his life. 

Larry was accused of stealing some items from Wal-Mart. The alleged crime amounted to less than $50. The Government gave him two options: he could plead guilty and sit in a cage for 364 days or they would upfile his case to a felony and he could risk prison time and being branded a convicted felon. He explained that he was not opposed to pleading guilty or serving time in jail if we could convince the judge or Government to offer a lower sentence, but he had other concerns beyond jail time. He needed to get his eyes examined. He was losing his vision and needed cataract surgery. His health insurance was only valid for a few more months. His brother, on the other side of the state, was dying of liver failure. Every time he talked about his brother, his eyes filled up with tears.

The Government refused to change the offer so I was left to ask the judge if he would be willing to allow Larry to plead guilty for less jail time and allow Larry to turn himself in at a later date. I had big dreams of successfully appealing to the judge with Larry’s health and his concern for his brother. The Government attorney walked up to the podium and began rattling off Larry’s criminal history. Larry had never been charged with a felony, but he had easily over thirty prior misdemeanor thefts on his record. The Government attorney also said that Larry had picked up a new theft case and made a motion to revoke his bond[2]. In defense of his 364 day jail offer, the Government attorney said “it’s just the cost of doing business.”

A condition of pre-trial release is that the accused is not permitted to pick up any new cases. Just weeks after the Wal-Mart incident, Larry was arrested for another alleged theft at Home Depot. Since Larry violated the conditions of pre-trial release, the Government was entitled to ask the judge to revoke Larry’s prior bond and place him in custody with an increased bond. For Larry, any bond amount would have been too high to pay. The judge asked if I would like for the motion to be heard that day or in two days. I asked for the later date and made arrangements for Larry to speak with the social workers at my office in hopes of getting him stable housing.

Larry was devastated. He did not anticipate being taken into custody this soon, but he held out hope that the judge would be sympathetic. Though we were unable to get Larry housing, he was put on a few waitlists at local homeless shelters. At his motion hearing, I argued that Larry was not a flight risk. Despite being homeless, Larry came to all of his court dates. He had a bike packed with all of his belongings that he would ride to and from court. I implored that the judge consider Larry’s health conditions and the fact that he is willing to plead guilty but needed time so he could see a doctor. I begged the judge to understand that even if the Government’s allegations were true, Larry was no danger; he did not have any violent crimes in his past.

The Government attorney, once again, listed case after case after case of misdemeanor theft convictions. It’s just the cost of doing business, Judge. Larry stood there terrified and humiliated.

Larry’s bond was revoked and he was ordered to sit in a cage without a monetary bond. In other words, there was no amount of money that he could pay to get out of jail. The judge offered him 270 days to resolve both of his cases. Eventually, Larry pleaded guilty to 150 days in jail in front of a different judge. He cried he was so happy. I was so disappointed in myself, the Government, the System, the metaphorical Man.

In Larry’s case, jail time was not the cost of doing business; it was the cost of addiction. He, like many addicts, stole to feed his drug problem. What he did was not right, but our criminal courts’ façade of a solution certainly was not productive. Larry’s entire adult life – primarily since he became homeless – was a series of misdemeanor theft cases. I am certainly no advocate for stealing and I am not naïve enough to think we will ever do away with misdemeanor prosecutions, but Larry and the thousands of people like Larry suffering from addiction deserve better from their Government.

As a young Assistant Public Defender, I have spent most of my time in misdemeanor courtrooms. I have the privilege of representing the indigent criminal accused on seemingly minor cases that have a disruptive, lasting impact on their and their families’ lives. I also spend a lot of time frustrated with the failures of our criminal courts. Misdemeanors are not open and shut cases of “bad” people doing “bad” things or even “good” people doing “bad” things. Often, they are symptoms – symptoms of homelessness, poverty, complicated family relationships, alcoholism, and drug addiction.

The full text of the article can be found here, on MyGideon.