Will Robert Downey Jr.'s Case Spark a Change in Drug Sentencing?

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Robert Downey Jr. is arraigned in Riverside County Superior Court

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.