Despite the war on drugs, a substantial number of Americans continue to consume marijuana, cocaine, heroin, and other drugs prohibited by law. Before the Vietnam War, the mere possession of these illicit substances constituted a felony in most jurisdictions. At the time, most drug users were poor blacks and latinos, minorities which received little if any sympathy from the rest of society. Harsh punishment was the popular order of the day.
When the sons and daughters of middle and upper class society, the core of the anti-war movement, became heavily involved in the use of illicit drugs, attitudes about the punishment of drug offenders rapidly changed. Society did not want its college kids to suffer a felony record which would prevent them from beoming doctors, lawyers, and other licensed professionals. Accordingly, drug offense penalties in most jurisdictions were reduced, a change which also benefitted blacks and latinos, the groups that mainstream America did not give a shit about.
One can argue until the cow jumps over the moon about whether or not punishment of drug offenders acts as a deterrent. One thing is for certain - the use and sales of illicit drugs exploded once drug offense penalties were reduced. And, what about those bright college kids who society wanted to protect from career ending sentencing? Among other achievements, they developed new exotic "recreational" drugs, as well as a home grown variety of pot, which became one of the the most potent types of marijuana in the world.
Back in the early '60s, Japan was overwhelmed by an out-of-control amphetamine addiction epedemic. Japan enacted certain and swift punishment legislation to bring this problem under control. Of those tried for drug offenses, 95 percent were convicted. Those convicted were sentenced either to prison or to confinement in a drug rehabilitation facility. The Japanese drug rehabilitation facilities in no way resemble the plush facilities found in the United States. The only difference between Japanese prisons and drug rehabilitation facilities is that the latter provided every inmate with a drug treatment program, while the prisons offered no special programs for drug offenders. In just a few years, Japan was able to bring a runaway problem under control.
I have always advocated that all drug users, without exception, should serve some time in jail. The amount of time to be served would depend on the type of drug used and on the drug offense history of the user. For instance, a first-time marijuana user would have to serve 30 days in jail. A second conviction would require a 60-90 day stay in jail, while a third conviction would require a sentence of at least one year in jail. Whether its 30 days, 60-90 days, or one year, there would be no time off for good behavior. If that means someone will be prevented from becoming a doctor or lawyer, that's just tough shit. Those who choose to break the law must be made to learn that there are consequences for wrongdoing.
There is a judge in Houston who agrees with me that all drug offenders should spend some time in jail. And, how did I find out about him? It was through a story in the Houston Chronicle. A 17-year old high school student's case for possession of marijuana and cocaine was assigned to the court of District Judge Brian Rains. The offender was represented by Dick DeGuerin, one of the best and most expensive attorneys in the Southwest.
DeGuerin moved that Judge Rains be recused from the case because by his refusal to grant probation or deferred adjudication, he has an "inflexible and arbitrary rule" requiring that offenders convicted of possession spend some time in jail. When the District Attorney's office agreed, an administrative judge removed Judge Rains from the case. DeGuerin's client, if convicted for possession of both marijuana and cocaine, deserved at least one year of jail time. Predictions are that this recusal will open the floodgates for similar motions in future cases before Judge Rains.
Judge Rains reminds me of a former Superior Court judge in Riverside, California. S. Thomas Bucciarelli was a strict law and order judge. On many occasions, when defense attorneys, probation officers, and prosecutors all agreed that a defendant be granted probation for a felonious offense, Judge Bucciarelli would respond in a firm voice, "Well I'm certainly not going along with this. I hereby sentence you to the term (in prison) prescribed by law!" Eventually, his peers ganged up on him. The position of Presiding Judge is rotated annually among each of the Superior Court judges. The only time Judge Bucciarelli was allowed to sit on a criminal case was when he was Presiding Judge and assigned himself to the criminal docket.
Probation without jail time and deferred adjudication will not help to bring our runaway drug problems under control. When those young folks, whose careers everyone is so concerned about, discover that jail time does not produce the "high" they were seeking, they will be far less likely to use marijuana again, while others will refrain from using it all together. Mandatory jail time will not eliminate drug abuse, but it will discourage illicit drug use by those who fear a certainty of incarceration and the attendant arrest record.
Because marijuana is the gateway drug to cocaine, heroin, and methamphetamine abuse, any reduction in the use of marijuana will lead to a significant reduction in the use of these other drugs. Judge Rains got it right, but other members of the legal profession judged him to be wrong. Shame on them! They are not part of the solution to this nation's widespread use of illicit drugs. They are part of the problem!
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