WILL ROBERT DOWNEY JR.'S CASE SPARK A CHANGE IN DRUG SENTENCING?

After Years Of Treating Addicts Like Criminals, Reports Time.com's Jessica
Reaves, There's Increasing Public Pressure To Give Them Treatment Rather
Than Jail

It's a familiar scene: A man in his mid-30s waits outside a courtroom, his
eyes dull, his posture slack. An attorney sits nearby, trying to ignite
some optimism in his client - maybe it won't be so bad - but the man knows
better. He knows because he's already tested the system so many times. He's
been arrested with cocaine, heroin, marijuana, not to mention various and
sundry pills. He knows he's betrayed pledges to get clean, and turned his
back on years of rehab. Now it's time for him to pay his debt to society
once again: That's right. Back to the drug treatment center. Oh, yeah - and
maybe a few months of jail time.

Hang on just a second, you may be saying. What law-enforcement fantasyland
is this guy living in? In this country, we send our users to jail and throw
away the key.

And you'd be right - at least partly right. In 1980, there were 41,648 drug
offenders in prison; today, that number has swollen to 458,131. We lock
people up for possession almost as quickly as we do for dealing.

But that situation has been changing, particularly in western states, as
the public has come to believe that the three-strikes-and-you're out
policies adopted by most states are both a waste of taxpayers' money and an
unrealistic response to the difficulties of addiction. There's also the
issue of fairness - not everyone serves the same sentence for the same crime.

Celebrity Buys Treatment, Not Jail Time

Today, as always, punishment standards are subject to exceptions. One is
based on celebrity, as in the scenario described above, which is roughly
the story of Robert Downey Jr. The often-arrested Downey will face a judge
later this month to answer a Thanksgiving weekend cocaine possession
charge. At a January hearing, Downey's case was pushed back several weeks -
a continuance that may signal a deal on the horizon. That's good news for
the troubled actor: If Downey is convicted of this most recent felony, he
could face more than four years in prison, although it's unlikely that his
penalty will be that steep.

Despite a laundry list of drug arrests, this would be only Downey's second
trip to jail - just last August he was granted early release after a judge
sentenced him to a year for probation violations. Since 1996, Downey's been
arrested numerous times on drug-related charges, and has gone through
countless drug treatment programs. None of it helped curb his
self-destructive tendencies. "It's like I have a loaded gun in my mouth and
my finger's on the trigger," Downey told a judge in 1999. "And I like the
taste of the gunmetal."

Downey's is an edifying case for those concerned with the inequities of
drug laws - to many, Downey (and his repeated failures to stay clean)
represents the dark-side celebrity/wealth escape clause that keeps the rich
and famous, not to mention the white and middle class, out of the nation's
toughest prisons, and exempt from the nation's harshest drug laws. For
others, including many who view imprisonment as a pointless and even
dangerous punishment for drug addicts, Downey serves as a stark reminder of
the strangling power of addiction, and the persistent failings of a system
too bent on "justice" to comprehend the power of treatment.

Bringing Drug War Casualties To Light

The debate over America's war on drugs touches on nearly every hot button
issue facing the country: Racism, sexism and class warfare all play their
own critical roles in defining and further electrifying what has never been
a simple exchange. In the past decade, an uproar has grown over the
discrepancies between sentencing for possession of crack (which tends to
surface in inner cities and often carries an extremely harsh punishment)
and cocaine (the drug of choice among the upper class; repercussions tend
to be much lighter) - a chasm that emphasizes race and class divides.
Proportionately, more women than men are incarcerated on drug charges, and
far more black and Hispanic addicts are arrested than their white counterparts.

The fundamental question remains: Should our laws punish the addict for
using drugs or help the addict overcome his addiction? "The general public
consensus seems to be shifting away from punishment and toward treatment,"
says Kenneth Sharpe, professor of political science at Swarthmore College
and an expert on U.S. drug laws. "To many conservative drug warriors [many
of whom legislate and enforce our drug laws], a drug problem is a problem
of the individual. And punishment, the harsher the better, forces
individuals to address their problems. Then there's a whole different model
that recognizes drug addiction as an addiction like alcohol and cigarettes.
It's a habit that's incredibly hard to break, and in order to succeed, most
people need a mix of support and intolerance."

Three Strikes, You're Out

Despite growing public acceptance of such an approach, that balance is hard
to find in most state drug laws. Some states, like New York, have
longstanding adaptations of a "three strikes, you're out" law, which
approaches even nonviolent drug crimes with the same zeal once reserved for
violent offenders. The severity of the punishment varies from state to
state. (There is no federal "three strikes" law.) "Various states have
their own manifestation of three strikes - the essence of which is to put
heavy weight on prior convictions, particularly prior convictions of a
certain character," says San Jose criminal defense attorney Jerome Mullins.

While politicians don't appear to be ready to abandon punitive drug laws,
voters in some states are taking matters into their own hands. Arizona,
which implemented Proposition 200 in 1996, has a "three strikes" rule of
its own that seeks to rehabilitate and offender before jail time is
imposed. On their first arrest for possession, drug users are sent to drug
treatment and given probation. On their second arrest, users without
violent past convictions get another round of treatment, and a maximum 12
months in jail. Only on their third arrest do users face time in state prison.

Last November, California voters approved Proposition 36, which was modeled
after Arizona's law. In California, users arrested for possession are sent
to drug treatment for as long as a year and receive as much as a half-year
of follow-up care. Users can violate parole rules several times before they
are ultimately sentenced to prison terms.

With No Threat Of Jail Time, Will Users Find Impetus To Stay Clean?

Not everyone agrees, however, that this is the way to go. "The problem with
Propositions 36 and 200 is not their lack of jail time," says Susan
Weinstein, chief counsel for the National Association of Drug Court
Professionals. "It's the dependence on treatment. What defines treatment?
Will it help them stay off drugs and stop committing crimes?"

Weinstein, a former prosecutor, says that the focus and budget restraints
of treatment means defendants don't get the drug testing they need - and
also means that courts don't provide adequate sanctions (anything from
taking away a car to imposing a jail term) for noncompliance. "We need the
hammer of sanctions, not necessarily jail time, over users' heads to urge
compliance," she says. "If you take away the judge's ability to make this
user accountable, you limit the help the court the can give them." There is
a solution, says Weinstein, but it requires compromise. "Just throwing
money into treatment doesn't do it - there needs to be money for sanctions
and drug tests as well."

Weinstein and other prosecutors will have plenty of test cases for their
theories. An increasing number of western states, once among those with the
strictest anti-drug laws, are at the forefront of a state-centered trend
toward treatment for addicts - and away from simply handing out jail time.
Other states, including New York, are beginning to consider treatment as a
viable alternative to prison, not only because treatment programs can be
far less expensive than incarceration (for example, the estimated $19,000
it takes to feed and house an Arizona inmate for one year versus $2,000 to
dispense an intensive rehabilitation program), but because of growing
societal pressure on states to adopt a more humane approach to addiction.

Politics And Perception

No that politicians are lining up to voice support for these initiatives,
says Sharpe. "We've developed this intensely felt political ideology that
says drugs are criminal and drug users are criminals. And that idea has
been pushed by the government - by politicians who are very reluctant to
stand up and say 'These drug laws aren't working' because they'll be
perceived as being soft on drugs. Some of them, especially Democrats, will
say it in private, but they'll never say it in public," says Sharpe.

Ethan Nadelmann, who heads the Lindesmith Center and Drug Policy
Foundation, which provides practical and theoretical alternatives to the
traditional "drug war" paradigm, believes there are two recognizable trends
growing in the public perception of drug addiction. "The first is: Hey, we
can't incarcerate ourselves out of this problem. And once we've recognized
that, we need to figure out a better approach. Propositions 200 and 36, in
Arizona and California, distinguished themselves because they changed the
laws to require treatment for addicts."

Because the public is increasingly open to changes in drug policy, the
major challenge for opponents of harsh sentencing rules, says Nadelmann, is
convincing state, local and federal politicians to let go of a dependable
old campaign line. "The public is ahead of the politicians on this one," he
says. "Witness the success of ballot initiatives and support for change in
public opinion polls," he says. "Politicians have old fear of being soft on
crime. It's a hangover from the drug war heyday of the 1980s." And even
today, some politicians still find a willing audience for anti-drug rants,
Nadelmann adds. "It's still possible to demagogue this issue - although
demagoguery does not ring as sweet to American ears as it used to."

We should probably be grateful to Downey, who's handled his most recent
arrest with a characteristic combination of dark, self-deprecating humor
and irony. While he may not appreciate the symbolic nature of his legal
woes, high-profile cases like his can serve only to heighten awareness of
drug laws, directing a nation's focus on the inequities inherent in
sentencing and parole procedures. Is addiction a criminal activity? Our
laws say yes. Do our laws treat some addicts more equally than others?
Certainly. Will those same addicts achieve useful lives without intensive
treatment? Probably not.