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Judicial Heavyweight Calls Criminalizing Drug Use ‘Highly Problematic’ In High-Profile Case

By Nicole Flatow  

"Judicial Heavyweight Calls Criminalizing Drug Use ‘Highly Problematic’ In High-Profile Case"

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Cameron and Michael Douglas

This week, a federal appeals court upheld a particularly harsh drug sentence for Cameron Douglas, son of actor Michael Douglas. When Douglas was initially sentenced, he received an unusually light punishment of 60 months in prison for conspiring to distribute methamphetamine and cocaine, in large part because he agreed to testify against his suppliers and presented evidence about his struggle with addiction to heroin. But when it was discovered that Douglas had repeatedly smuggled drugs into both prison and house arrest, Douglas was convicted for new crimes, and punished for his “deceitful conduct,” with a sentence for the second crime that was well above the federal guidelines.

A three-judge panel upheld the sentence, holding that while the punishment was “extraordinary,” so, too, are the facts. Even with the second harsh sentence, they reasoned, Douglas still received less than the ten-year mandatory minimum sentence he would have received for his original crime had he not negotiated a particularly favorable plea deal. But while heeding the law and the facts of this case, the judges lamented that the problem of addiction is treated as a criminal and not a medical one.

“It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based ‘war on drugs,’” wrote Judge Gerard E. Lynch for the majority. Concurring in the opinion was Judge Guido Calabresi, a prominent intellectual heavyweight appointed by President Clinton, but also a founder of the conservative law and economics movement. Calabresi, like the rest of the panel, acknowledged the constraints of existing law, but not without a compelling statement on the perversity of Congress’ choice to favor imprisonment for drug crimes:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time.

Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

I underscore what is suggested in the last paragraphs of the majority opinion, that Congress’s choice to make the use of drugs, and that use in prison, crimes, is highly problematical. No one has made the argument that this is an unconstitutional penalty imposed upon Douglas because of his status as an addict, and I believe no such argument can convincingly be made. As a result, our Court has no authority to stand in the way of the operation of this law, even though our experience with such cases may lead us to think it is counterproductive. And so we must affirm the district court and enforce that law. We can, however, make observations based on our experience. This law and laws like it require district courts to confront a vexing question every day: how to treat addicts who have suffered a relapse. We are not permitted to treat this question as a medical one, although, in some sense, it is. We dismiss Douglas’s argument that he should be treated as a victim of his drug abuse, rather than as a criminal, both because that is not a legal argument, and because it seems to ask us to treat him differently from the thousands of other addicts we see every year. But it remains true that these defendants are all victims. The multiple costs of our imprisonment approach – including the expense of filling our prisons with drug addicts, to mention just a base economic cost – impel me to express the hope that Congress may some day seek out a different way of dealing with this problem.

Calabresi, who was hired as Yale Law School’s youngest ever professor before becoming the school’s dean, is particularly well-positioned to speak out. In addition to garnering respect from both the left and the right for his academic accomplishments, he has almost 20 years of experience as a federal judge reviewing cases like Douglas’. Like a group of doctors who launched a campaign around Douglas’ case to treat addiction as a medical problem, Calabresi seized on the prominent sentencing as an opportunity to express exasperation at a broken and misdirected drug policy. Several of his fellow judges have lamented the absurd sentencing laws for federal drug crimes.

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