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The recent nomination of the first African-American woman to the U.S. Supreme Court last week was historic for a multitude of reasons. For those of us working towards the treatment of substance use disorder in this country, however, the nomination of Ketanji Brown Jackson was historic for reasons that are removed from political disagreements or anything of that kind. I work at the best drug and alcohol rehab in Panama City, Florida, and the best drug and alcohol rehabs and treatment centers in Florida have employees who care deeply about these issues around criminal justice and addiction. Unfortunately, there is a deeply problematic and damaging lack of experience with addiction issues and knowledge of the plight of people with substance use disorder in the justice system amongst our Supreme Court members and the highest levels of our government more generally. Many people over the years have commented on the plethora of lawyers that are involved in politics in this country, and there can be no doubt about that. 25 of the 45 men who have become president were lawyers, which is an astounding number for one profession to claim. Zero presidents have been medical doctors, for instance, just to pick one profession of similarly high prestige. I wonder where our country might be today if 25 presidents had been medical doctors rather than having been lawyers, but I digress.

With all that legal experience in and around the highest levels of government, you might think that there would be more people on the Supreme Court, and elsewhere, with criminal defense, public defense, or other experiences sensitive to the problems faced by addicts in a “tough on crime” environment that brought this country terribly destructive policies like the “Rockefeller” drug laws. Policies not aimed at improving crime, but simply intended to throw red meat to an uninformed public which views addiction more akin to crimes like robbery or assault or a moral failing than the medical problem that it is. People complain at the lack of resources for catching violent offenders including murderers, rapists, and burglars, but we take no action to stop the money being spent on putting users of marijuana and other drugs behind bars, not to mention the misery and damage wrought by the failed war on drugs, which is largely a war on people with substance use disorder. Now, as more people in this country fall victim to addiction and alcoholism, a few more of them want to finally pay attention to the disgusting mistreatment of addicts within the justice system, and if people do want change, nominating more judges with similar experience to Ketanji Brown Jackson is one reasonable place to start.

The Experience of Ketanji Brown Jackson

The specifics of Ketanji Brown Jackson’s experience that are of interest to me are fairly simple to sum up. According to WhiteHouse.gov and the Federal Judicial Center,

“From 2003 to 2005, she was an assistant special counsel to the United States Sentencing Commission. From 2005 to 2007, Jackson was an assistant federal public defender in Washington, D.C., where she handled cases before U.S. Court of Appeals for the D.C. Circuit. A Washington Post review of cases Jackson handled during her time as a public defender showed that “she won uncommon victories against the government that shortened or erased lengthy prison terms”. From 2007 to 2010, Jackson was an appellate specialist at Morrison & Foerster.

On July 23, 2009, Barack Obama nominated Jackson to become vice chair of the United States Sentencing Commission. The U.S. Senate confirmed Jackson by unanimous consent on February 11, 2010. She succeeded Michael E. Horowitz, who had served from 2003 until 2009. Jackson served on the Sentencing Commission until 2014. During her time on the Commission, it retroactively amended the Sentencing Guidelines to reduce the guideline range for crack cocaine offenses, and enacted the “drugs minus two” amendment, which implemented a two offense-level reduction for drug crimes.

In simplest terms, not only did she work as a public defender, where she represented the poorest citizens for little pay, but she also played a major role in reversing the devastating decades long effects of the heavily-racialized “Rockefeller” drug laws, which put addicts in jail for life for victimless crimes, a history of cruelty that our justice system can never live down. One reason these Rockefeller laws were so racist, beyond simply being terrible, was the fact that crack-cocaine and powder cocaine have the same pharmaceutical qualities and no perceivable differences in effects, but crack-cocaine was simply much more popular in poor black communities, while powder cocaine remained most popular in the whiter and richer “club-drug” party communities. The Rockefeller laws put black crack cocaine addicts in jail for 20 years to life for non-violent addiction related offenses, while white powder cocaine addicts were jailed for just a few years. Both were wrong, but the Rockefeller laws completely ruined thousands of lives of individuals and families, almost all of them individuals and families of color. Ketanji Brown Jackson and her experience is really not the main point here, she is simply the first example of a type of experience we should be demanding more of on the supreme court and in government at large.

Policies that Hurt Addicts

The existence of drug-courts in this country is complicated. The actual evidence that drug-courts would be effective was thin to non-existent at the time they were beginning to be implemented in a few states across the country. With that said, there can be no doubt that drug-courts and other similar initiatives are better than the status quo when it comes to dealing with drug addiction within the criminal justice system. With that said, the current state of addiction treatment in the justice system is a complete abomination outside of the drug-courts, so the bar for improvement was incredibly low. While most families in this country are likely to deal with substance use disorder amongst one or more family members in the current moment because of the ongoing opioid and general addiction epidemics, pray that you and your family never have to deal with the justice system while trying to find drug and alcohol rehabs. The justice system in completely bereft of any benefit for people facing substance use disorder. People routinely become addicts and alcoholics after becoming wrapped up in the justice system, rather than becoming sober after getting in trouble. Of course, it must be said that the justice system serves a vital role in our society with so many people committing violent crimes and crimes with clear victimization. While we will never have a perfect justice system, we must bring an end to the criminalization of addiction, because the more innocent people that you put in the justice system the more the problems within the system will grow, metastasize, and be ignored by the population at large. A few simple policies that hurt people with substance use disorder directly are cash bond, “3 strikes” and similar laws, and the current probation model.

People with substance use disorder are much more likely to be dealing with financial problems at the time they are arrested. It has been proven over and over again in countless studies that cash bond systems punish individuals for poverty, and this is only more true in the case of addicts. The added issue when dealing with substance use disorder patients is the loss of a clear set of reasons for keeping someone incarcerated before they are convicted. Non-drug crimes generally have a victim, and that victim might potentially be safer or better-off with a suspect behind bars before they are convicted of a crime. Whether or not that situation is right or wrong, or even constitutional, arresting and jailing people for drug possessing creates an entire class of people who largely cannot pay a cash bond, and do not even pose a threat to others or any victim. Cash bond is beginning to face more criticism, but even the proponents of cash-bond cannot make a valid argument for jailing addicts for victimless drug crimes for long periods before they are even convicted of anything.

“3 strikes laws”, similar to other “tough on crime” laws, are another situation where a set of policies disproportionately hurts people with substance use disorder. The reason for this is quite simple to explain. People with addiction have a disease that drives them to continue the same pattern of behavior until they can reach help and treatment. If that behavior is criminalized, as drug possession currently is all over the U.S., it leads to many situations where policies that are targeting serious repeat violent offenders end up hurting addicts and others more than they help keep violent offenders off the streets. Simply writing these laws in a way in which drug offenses and other behavior patterns like prostitution are not part of the legislation seems like it would fix this problem, but because our system is so broken and because addicts and sex-workers have so little political power or voice, largely nothing is done to help the wrong people (people with substance use disorder) from being harmed by “3 strike” laws.

The problem with the current probation model has some parallels with the “3 strike” issue. Because addiction creates a criminalized pattern of behavior, and because we do not adequately treat people for substance use disorder and addiction within the justice system, we end up creating a probation system in which addicts are being drug tested again and again before they have even received decent treatment for their SUD and mental health challenges. In this country, even when a probation officer knows a person is an addict, the probation officer either does not care or lacks the power to do anything meaningful to help the person they are overseeing. A person is put on probation with little chance of success, because they have not yet gained the tools that are necessary for long term sobriety. Therefore, we continually punish the same person for the same behavior, with little chance for the struggling addict to escape the cycle and turn their lives around. The way we deal with substance use disorder in our justice system is disgusting and sad for more reasons than I can even discuss in an article like this, but people in power who are knowledgeable about these problems could be one key to changing some of these things for the better.

By T.A. Cannon

References

• Jackson, Ketanji Brown”. Federal Judicial Center. Archived from the original on February 1, 2021. Retrieved January 6, 2021.
• President Obama Nominates Ketanji Brown Jackson to US Sentencing Commission”. whitehouse.gov (Press release). July 23, 2009. Archived from the original on February 1, 2021. Retrieved January 6, 2021 – via National Archives.