Arizona's Drug Sentencing Statute:
Is Rehabilitation a Better Approach to the
"War on Drugs"?
"When it costs so much more to incarcerate a prisoner than to educate a
not incarcerating
child, we should take special care
'1 to ensure that we are
too many persons for too long.
I. PROLOGUE
In 1990, Gary Brown was convicted for drug possession with intent to
distribute. 2 In 1996, he was convicted for attempted possession.3 In 2005,
Brown was convicted for a third possession offense and sentenced to life in
prison. 4 The First Circuit upheld this sentence based upon the Controlled
Substances Act, a federal law that mandates a life sentence without release
if a person is convicted "after two or more prior convictions for a felony
drug offense... have become final." 5 Brown, like most other drug
offenders, probably has a drug dependence or abuse problem. 6 He was
never caught manufacturing drugs or selling them, and yet, he is serving a
longer sentence than most cold-blooded killers. 7
1. Anthony M. Kennedy, Assoc. Justice, U.S. Supreme Court, Speech at the
American Bar Association Annual Meeting (Aug. 9, 2003), available at
http://www.supremecourtus.gov/publicinfo/speeches/sp-08-09-03 .html.
2.
United States v. Brown, 500 F.3d 48, 59 (1st Cir. 2007).
3. Id.
4.
Id. at 53.
5. Id. (quoting 21 U.S.C. § 841(b)(1)(A) (2000)).
6.
CHRISTOPHER J.
MUMOLA
& JENNIFER C. KARBERG,
BUREAU
OF JUSTICE
STATISTICS SPECIAL REPORT, U.S. DEP'T OF JUSTICE, DRUG USE AND DEPENDENCE, STATE
AND FEDERAL PRISONERS, 2004, at 7 tbl.5 (2006), available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/ dudsfp04.pdf.
7.
BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, COMPENDIUM OF FEDERAL
JUSTICE STATISTICS, 2004, at 10 (2006), available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/cfjs0405.pdf [hereinafter BUREAU OF JUSTICE STATISTICS, COMPENDIUM].
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
II. INTRODUCTION
Our prisons are packed with people like Gary Brown. In 2004, more than
half of all state prisoners met the Department of Justice (DOJ) criteria for
drug dependence or abuse. 8 Sixty-three percent of both property and drug
offenders were dependent on or abusing drugs at the time of their offense.
One-in-three property offenders and one-in-four drug offenders committed
the crime to obtain money for drugs.' 0 These numbers reinforce the fact
that there is a strong correlation between criminal behavior and drug
dependence or abuse.
To make matters worse, more arrests for drug-related crimes were made
in 2006 than for any other category of crime. 11 The numbers are shocking:
1.9 million, or 13.1%, of the total number of arrests were for drug
offenses. 12 Of this astronomical number, 82.5% of the arrests were for
possession, leaving 17.5% of the arrests for sale or manufacturing
violations. 13 These statistics, demonstrating that the overwhelming
majority of drug arrests are for possession rather than sale or manufacturing
offenses, provide more evidence that drug dependence or abuse is a major
contributing factor in most drug offenses. 14 As a result, drug treatment
programs and other rehabilitative techniques may prove to be more
effective ways to reduce recidivism than incarceration.
In response to findings like these, many states have begun to seek
solutions to the many problems presented by the punishment-driven "War
on Drugs."' 15 "Between 2004 and 2006, at least 13 states have either
established or expanded drug treatment and diversion sentencing
options."' 16 Arizona was one of the first states to implement a drug
treatment program as an alternative to incarceration for first- and second8.
MUMOLA & KARBERG, supra note 6, at 7 tbl.5.
9.
10.
Id. at 7 tbl.6.
Id. at 6.
11.
CRIMINAL JUSTICE INFO. SERV. DIV., FED. BUREAU OF INVESTIGATION, CRIME IN
THE UNITED STATES, 2006, at tbl.29, http://www.fbi.gov/ucr/cius2006/arrests/index.html
(last visited May 18, 2009).
12.
See id.
13.
14.
See id.
See id.
15.
RYAN S. KING, SENTENCING PROJECT CHANGING DIRECTION? STATE SENTENCING
REFORMS, 2004-2006, at 4 (2007), http://www.sentencingproject.org/Admin%5CDocuments
%5Cpublications%5Csentencingreformforweb.pdf
[hereinafter
KING,
CHANGING
DIRECTION].
16.
THE
MARC MAUER & RYAN S. KING, SENTENCING PROJECT, A 25-YEAR QUAGMIRE:
WAR
ON
DRUGS
AND
ITS
IMPACT
ON
AMERICAN
SOCIETY
26
(2007),
http://www.sentencingproject.org/admin/documents/publications/dp-25yearquagmire.pdf
[hereinafter MAUER & KING, 25-YEAR QUAGMIRE].
ARIZONA'S DRUG SENTENCING STA TUTE
2009]
time nonviolent possession offenders.
17
California followed shortly
thereafter. 18
This Note explores Arizona's successful, state-implemented program as
well as other states' similar attempts to rehabilitate rather than incarcerate
drug offenders. It also recommends that a rehabilitative approach, rather
than punishment, is the answer to the "War on Drugs" because it provides
long-term solutions for both society and offenders. Part III surveys the
history of our current punishment-driven criminal justice system as it
pertains to drug crimes. Part III also provides an overview of the negative
effects this system has produced. Part IV introduces Arizona's drug
sentencing statute and analyzes its attempts to curb these existing problems.
In addition, Part IV looks at similar state statutes and differing approaches
states have used to introduce rehabilitation into drug sentencing. Part V
considers the benefits and detriments of punishment versus rehabilitation
and recommends rehabilitation as a more effective approach to the "War on
Drugs." Part VI contains the author's conclusion. This Note does not
suggest that punishment should be forgone entirely with regard to drug
crimes. Rather, it proposes that a more realistic balance be struck between
the impractical "tough on crime" approach and the developing
rehabilitative approach. In addition, this Note proposes that more attention
should be focused on whether an offender is violent or nonviolent when a
determination is made regarding incarceration.
III. THE "TOUGH ON CRIME" APPROACH
Officially declared on October 2, 1982, by President Reagan in a radio
address, 19 the "War on Drugs" has intensified to the extent that it has
affected the entire American criminal justice system. 20 The theory was if
law enforcement got "tough on crime" by securing more arrests and
punishing offenders with harsher penalties, it would have a deterrent effect,
thus decreasing the net volume of drug offenses. 2 1 However, over the
course of two and a half decades, society has become increasingly aware
that the intended result has not occurred. On the contrary, the promulgation
of laws treating drug offenses more seriously and mandating longer
sentences has produced atrocious prison overcrowding problems, increased
costs to house and provide for those incarcerated, and increasingly
17.
ARiz. REV. STAT. ANN. § 13-901.01(D), (F) (2001 & Supp. 2007-08).
CAL. PENAL CODE § 12 10.1 (a) (West 2004 & West Supp. 2008).
18.
Ronald Reagan, President of the United States, Radio Address to the Nation on
19.
Federal Drug Policy (Oct. 2, 1982), available at http://www.presidency.ucsb.edu/ws/
index.php?pid=43085.
20.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 1.
21.
See id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
frustrated
populations who have served sentences they perceive to be
22
unjust.
Sentences for drug violations increased in the 1980s as a result of law
enforcement responses and stricter sentencing policies. 2 3 The Federal
Sentencing Guidelines, combined with increased funding, supported a
surge in arrests for drug offenses and resulted in offenders being placed in
prison for longer terms. 24 Between 1985 and 1990, the budget for the Drug
Enforcement Agency more than doubled, rising from $362.4 million to
$769.2 million. 25 Correspondingly, the number of drug arrests between
1980 and 1990 also doubled. 26
A number of federal laws contributed to this surge in arrests. 27 The
Anti-Drug Abuse Act of 1986 allocated $6 billion over three years
primarily for "interdiction and enforcement measures." 28 It also imposed
severe mandatory minimum sentencing for drug offenses. 29 The Anti-Drug
Abuse Act of 1988 added additional funds for enforcement and increased
penalties for drug violations. 30 In addition, this statute created the Office of
National Drug Control Policy, with its director aptly named the "Drug
Czar." 3 1 This addition extended the reach of the drug war to a brand new
federal agency, charged with implementing and enforcing a political
agenda aimed at punishing drug offenders with long periods of
incarceration.
The Federal Sentencing Guidelines became effective on November 1,
1987,32 thereby coinciding with the passage of the federal Anti-Drug
Abuse Acts of 1986 and 1988. Because they were designed simultaneously,
the federal drug laws had a significant impact on the formulas used in the
22.
See id. at 7-9.
23.
RYAN S. KING & MARC MAUER, SENTENCING PROJECT, DISTORTED PRIORITIES:
OFFENDERS
IN
STATE
PRISONS
1
(2002),
available
at
DRUG
http://www.sentencingproject.org/Admin/Documents/publications/dp-distortedpriorities.pdf
[hereinafter KING & MAUER, DISTORTED PRIORITIES].
24.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 7.
25.
U.S. Drug Enforcement Administration, DEA History Book, 1985-1990,
http://www.usdoj.gov/dea/pubs/history/1985-1990.html (last visited May 18, 2009)
[hereinafter DEA].
26.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 4 fig. 1.
27.
See DEA, supra note 25.
28.
29.
Id.
Id.
30.
Id.
31.
Id.
32.
U.S. SENTENCING COMM'N, GUIDE TO PUBLICATIONS AND RESOURCES 2007-2008,
at 8 (2007), available at http://www.ussc.gov/publicat/cat2005.pdf
ARIZONA'S DRUG SENTENCING STATUTE
2009]
Guidelines. 3 3 Besides eradicating the parole system, the Guidelines
imposed severe mandatory minimum sentences, which were much longer
than state courts assessed at the time. 34 Furthermore, an enormous shift in
the number of drug prosecutions filed in federal court brought defendants
under the scope of the harsh penalties created by Congress in the Anti-Drug
Acts of 1986 and 1988. 3 5 To put it in perspective, "these laws require a
mandatory five-year prison term for possessing as little as five grams of
crack cocaine (the weight of two pennies)." 3 6
Laws such as these, dedicated to winning the "War on Drugs," have led
to undesirable results. The negative effect of the laws implemented in the
wake of the "tough on crime" approach prompted many states to reconsider
their sentencing laws or their entire criminal justice systems. 37 These laws
have been the source of massive prison overcrowding, skyrocketing costs
of incarceration, and negative effects on38released individuals, all of which
resulted in increased rates of recidivism.
A. Prison Overcrowding
Prison overcrowding is one of the most significant factors in explaining
the current crisis in corrections. 39 The "unprecedented" influx of inmates in
the late 1970s and early 1980s 40 corresponded with the increased funding
and tough sentencing that occurred at the onset of the "War on Drugs." 4
According to the DOJ, 216,000 people were incarcerated in 1974.42 That
number rose to more than 1.3 million in 2001 . With an increase of over
600%, it is easy to believe that this country is facing a phenomenal prison
overpopulation problem. Adding to this dilemma, these numbers include
only those that are incarcerated in state and federal prisons, failing to take
33.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 7.
34.
35.
Id. at 8.
Id.
36.
37.
Id. at 8-9.
Id. at 26.
38.
See, e.g., id.; Craig Haney, The Wages of Prison Overcrowding: Harmful
Psychological Consequences and Dysfunctional CorrectionalReactions, 22 WASH. U. J.L.
& POL'Y 265, 266 (2006).
39.
40.
41.
Haney, supra note 38, at 266.
Id. at 269.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 3.
42.
Id.
43.
THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE
SPECIAL REPORT, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION,
tbl. 1 (2003), availableat http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf.
1974-2001, at 2
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
into account those housed in local jails. 44 When factoring these additional
inmates into the equation, the statistics increase to 2 million persons
incarcerated in 2003 and 2.2 million in 2006. 45
There are severe problems that stem from prison overcrowding that are
not obvious by the term alone. 46 Overcrowding is more than the number of
prisoners measured against a designated capacity; rather, it incorporates the
effects that occur when a prison "houses more prisoners than its
infrastructure can humanely accommodate." 47 This suggests that prisoners
are not receiving adequate attention in virtually every aspect of prison life.
Prisoners are forced to cohabitate in cramped, close quarters and are
deprived of basic human needs, which were once routine. The increased
number of bodies translates into more violence, more punishment,
and less
49
rehabilitation: a more cruel and ineffective prison experience.
Due to the explosion of the prison population in such a short amount of
time, authorities quickly had to determine how to accommodate the
prisoners. Double-celling, once a technique deemed "totally undesirable"
because it violated the "basic standards of decent housing, health, and
institutional security," became an instant necessity nationwide.5 ° When
considered along with the fact that "overcrowding has been associated with
higher rates of disciplinary infractions," double-celling and overpopulation
in general make prison life literally more painful.'
Another unsettling result of overpopulation is inactivity. 52 According to
one expert, the overcrowding crisis has led to an attitude by prison
53
authorities that deprivation is more of "a goal rather than a problem."
Consequently, funding for programs and activities has been substituted for
bed space and for security purposes. 54 The outcome is an idle,
unproductive prison population that damages prisoners' lives while in
44.
Id.
45.
WILLIAM SABOL, PH.D., TODD D. MINTON, & PAIGE M. HARRISON, BUREAU OF
JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISON AND JAIL INMATES AT MIDYEAR
2006, at
8 tbl.12 (2007), http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim06.pdf.
46.
Haney, supra note 38, at 266.
47.
Id.
48.
Id. at 273.
49.
Id. at 272.
50.
Id. at 267. Double-ceiling refers to the practice of housing two inmates in a cell
that was designed to house only one. Id.
51.
Id. at 271-72.
52.
Id. at 274.
53.
Id. at 273.
54.
Id.
ARIZONA'S DRUG SENTENCING STA TUTE
2009]
prison, as well as once they re-enter free society. 55 Because inmates leave
the prison system lacking the skills necessary to help them in the
workplace, they often fail to make positive changes once released.
Educational and occupational programs are both stretched as a result of
prison overcrowding. 56 Prisoners are often on long wait lists to obtain jobs,
and most who receive them are placed in prison industry programs where
they are likely to obtain little or no useful work experience to be applied in
free society. 57 At one point, the Bureau of Justice Statistics reported that as
many as 40% of the nation's prisoners had no work assignments.5 8 The
frustration that results from lack of productivity has been shown to greatly
increase conflict among inmates. 59 In fact, "researchers [have] agreed that
overcrowded conditions in which prisoners have a significant
amount of
' 60
idle time can contribute to a higher level of prison rapes."
Overpopulation in prisons is especially daunting for drug offenders. As
mentioned above, more than half of all state prisoners in 2004 met the DOJ
criteria for drug dependence or abuse. 6 1 However, only 14.1% of those
state prisoners in 2004 received drug treatment. 62 Drug dependent or
abusing prisoners are contributing to the crisis of prison overcrowding.
Once these prisoners are released, they are likely to be charged with
another drug offense due to lack of treatment while in prison. This cycle
inevitably contributes to the overpopulation problem all over again. The
cycle needs to stop, and the best possible solution is for every drug
dependent or abusing offender to receive treatment while incarcerated.
The overpopulation problem for drug offenders does not stop there.
63
Prisons are not filled with a majority of high-level, dangerous drug lords.
Rather, the overwhelming number of drug offenders in prison are lowlevel, nonviolent prisoners. 64 According to a 2002 report, 75% of drug
offenders in state prison were strictly nonviolent drug offenders, and 58%
of prisoners overall had no history of violence or high-level drug selling
activity. 65 These types of prisoners, with no history of violent conduct and
no high-level drug offenses, are ideal candidates for alternative,
55.
56.
Id. at 275.
Id.at 274.
57.
Id. at 274-75.
58.
59.
60.
61.
62.
Id. at 274.
Id. at 275.
Id. at 276.
MUMOLA & KARBERG, supra note 6, at 7 tbl.5.
Id. at 9 tbl.9.
63.
MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 12-13.
64.
Id.
65.
Id. at 13.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
rehabilitative approaches instead of the harsh punishments most prisoners
currently receive. 66 Moreover, it would substantially aid in solving the
present prison overcrowding problem to remove some of the prisoners who
would be effectively treated in more appropriate settings. This could be
accomplished by sentencing some of the nonviolent first- and second-time
drug possession offenders to rehabilitation facilities and67 community service
rather than prison; it would also cost significantly less.
B. The Costs of Incarceration
According to the DOJ, correction expenditures increased 423% per U.S.
resident between 1982 and 2003.68 This correlates with the "tough on
crime" approach of the "War on Drugs," including the increased funding of
law enforcement, the increased number of drug arrests, and the
skyrocketing overpopulation problem, all starting in the early 1980s. 69 In
2001, the cost for one inmate in state prison was $22,650 per year or
$62.05 per day. 70 The Federal Bureau of Prisons reported similar numbers
with $62.01 per prisoner per day in 2001.71 Taken as an aggregate, state
and federal prisons in the United States spent about $80,665,000 per day on
prison inmates in 2001.72 In addition, the DOJ reported that $38.2 billion
was spent by correctional authorities just to maintain prisons in 2001.73
The majority of these costs are borne by the states, which spent $29.5
billion for prisons in 2001. 74 This equates to 77% of states' correctional
costs being consumed by prison expenditures and leaving a mere 23% for
75
alternative correctional programs, probation, parole, and juvenile justice.
Therefore, it is understandable that sending first-time, nonviolent drug
supra note 7, at 10.
66.
See generally BUREAU OF JUSTICE STATISTICS,
67.
See infra Part III.B.
68.
KRISTEN A. HUGHES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE
COMPENDIUM,
BULLETIN, JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED STATES,
2003, at 2
(2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jeeus03.pdf.
69.
See sources cited supra notes 27, 30, 40.
70.
JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, U.S. DEP'T OF
JUSTICE,
STATE
PRISON
EXPENDITURES,
2001,
at
1
(2004),
available
at
http://www.ojp.usdoj.gov/bjs/pub/pdf/spe 01.pdf.
71.
Id.
72.
See id.; see also
THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS SPECIAL
REPORT, U.S. DEP'T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION,
1974-2001, at 2 tbl. 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01 .pdf
(noting there were 1,319,000 Americans incarcerated in State and Federal prisons in 2001).
By multiplying 1.3 million inmates by $62.05 per day, the product is $80,665,000 per day.
73.
STEPHAN, supra note 70, at 1.
74.
Id.
75.
Id.
ARIZONA'S DRUG SENTENCING STATUTE
2009]
offenders to prison contributes to the overcrowding problem, which in turn
leads to consumption of the majority of correctional resources. 76 This cycle
may be avoided if avenues are pursued to ensure more efficient sentences
for these types of offenders in the form of rehabilitative measures, rather
than long, ineffective incarceration terms.
As mentioned above, in 2001 it cost about $22,650 per year to maintain
one inmate in state prison. 77 Part IV discusses more thoroughly that
Arizona saved more than $6.5 million in 2001 by diverting low-level,
nonviolent drug offenders to treatment and probation as opposed to
prison. 78 Arizona estimates it avoided costs of nearly $12 million in fiscal
year 2004 due to alternative treatment programs. 79 In addition to the
financial benefits gained through alternative sentencing for drug offenders,
studies have shown reductions in drug use and criminal behavior through
such programs. 80 Accordingly, it is clear that prison diversion for certain
types of drug offenders offers real results and advantages for states,
taxpayers, and correctional authorities. Likewise, it offers the drug
offenders tremendous long-term benefits.
C. The Effect on Releasees and Recidivism Rates
The average prison sentence for someone convicted of a drug offense in
2004 was 83.6 months, or just under seven years. 81 This was significantly
higher than the average sentence for a felony, which was 61.2 months. 82 In
light of these prison sentences, many convicted drug offenders who are
eventually released become incredibly angry and frustrated, believing their
sentences were both unfair and unjust. 81 Many do not receive drug
treatment, occupational experience, or educational programs while in
prison. 84 Additionally, most, if not all, face an uphill battle towards
assimilation with society while carrying the stigma of a felony record and
76.
Id.
77.
Id.
78.
ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT,
2001-2004, at 27,
http://www.supreme.state.az.us/apsd/pdf/FINAL%2OReport%20w_o%20
DRUG TREATMENT AND EDUCATION FUND: REPORT DETAILING YEARS
available at
ADC6.pdf.
79.
Id.
80.
STEVEN BELENKO, NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE AT COLUMBIA
A CRITICAL REVIEW, 2001 UPDATE 1 (2001), available
at http://www.drugpolicy.org/docUploads/2001 drugcourts.pdf.
81.
BUREAU OF JUSTICE STATISTICS, COMPENDIUM, supra note 7, at 10 (2006).
UNIV., RESEARCH ON DRUG COURTS:
82.
83.
Id.
See Haney, supra note 38.
84.
Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
85
time served in prison.
It is extremely difficult for someone with a criminal conviction,
86
especially a felony drug conviction, to find employment after release.
Most releasees searching for employment are required to disclose their
criminal background, and most employers simply refuse to hire those with
criminal records. 87 According to a sociological study in 2003 performed in
Milwaukee, Wisconsin, the callback percentage for those with a criminal
record was minimal compared with those whose records were clean. 88 The
study used the felony record of drug possession with intent to distribute,
which, as discussed above, is much more common than sale or
manufacturing offenses. 89 The drug conviction and the race of the offender
were the only disparities in applicants. 90 Among white people with a clean
record, 34% were called back after interviews, and only 17% with the drug
conviction on their records were called back, thus decreasing the chance for
employment by 50%.91 Among black people, the statistics were much
worse. Without a criminal record, 14% of black people were called back
after interviews compared to only 5% who had the drug conviction on their
record. 92 Apparently, "even whites with criminal records received more
favorable treatment (17%) than blacks without criminal records (14%)." 93
Regardless of the overarching disparities on account of race, this study
shows how hard it is for drug offenders with a possession conviction to get
a job after release.
Because there are so many people who enter and exit the prison system
today, and since society has attached a stigma to those with criminal
convictions, this equates to a majority of society suffering from what has
been deemed the "engines of inequality." 94 Without employment, drug
treatment, or a fair chance, many releasees face incredible hardships after
believing they paid their debt to society. As a result, poverty and recidivism
are likely consequences. According to a 1994 DOJ report, drug offenders
85.
Margaret Colgate Love, The Debt That Can Never Be Paid: A Report Cardon the
CollateralConsequences of Conviction, CRIM. JUST., Fall 2006, at 16, 16-17.
86.
87.
(2003).
88.
89.
90.
Id.
Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 955-56
Id. at 955.
Id. at 949.
Id. at 955.
91.
Id.
92.
93.
94.
Id. at 957-58.
Id. at 958.
Christopher Shea, Life Sentence, BOSTON
GLOBE,
Sept. 23, 2007, at E .
ARIZONA'S DRUG SENTENCING STATUTE
2009]
407
had a recidivism rate of 66.7%. 95 However, even as the White House's
Office of National Drug Policy admits, "[r]esearch has shown that
combining criminal justice sanctions with96drug treatment can be effective
in decreasing drug use and related crime."
Perhaps by diverting low-level, nonviolent drug offenders to
rehabilitation-based programs, a large portion of would-be releasees can
avoid the stigma of a criminal record, the time spent in prison, and the high
rates of recidivism. By implementing drug treatment programs and
probation rather than incarceration, these offenders are actually given a
chance to succeed.
D. The Need for Change
What can be taken from this analysis is that the "tough on crime"
approach has produced an overpopulation crisis in prisons that is costing
America billions of dollars. Furthermore, it has produced a growing class
of releasees who lack the resources for proper reentry into society after
serving time in prison. The recidivism rates for drug offenders are
historically high and can be reduced with drug treatment programs;
however, as reported above, only 14.1% of persons in prison actually
received drug treatment. 97 The "tough on crime" approach has failed to win
the "War on Drugs," and this country is in need of a change.
Supreme Court Justice Anthony Kennedy recognized this need for
change in our criminal justice system. In a speech to the ABA on August 9,
2003, he directed attention to the "inadequacies-and the injustices-in our
prison and correctional systems." 98 Justice Kennedy implored that it is the
"concern and responsibility of every member of our [legal] profession and
of every citizen" to stay involved in this issue. 99 He further advised that the
Federal Sentencing Guidelines be revised downward and that Congress not
retain unjust laws simply because they were declared constitutional by a
court of law. 100 Lastly, and perhaps most importantly, Justice Kennedy
asked the ABA to study these problems and to start
a public discussion
10 1
pertaining to the current state of the prison system.
95.
REPORT,
PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS SPECIAL
DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 2 (2002),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf.
96.
Office of National Drug Control Policy, Drug Treatment Homepage,
http://www.whitehousedrugpolicy.gov/treat/treatment.html (last visited May 18, 2009).
97.
MUMOLA & KARBERG, supra note 6, at 9 tbl.9.
98.
99.
100.
101.
Kennedy, supra note 1.
Id.
Id.
Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
The ABA answered Justice Kennedy's call. On October 6, 2003, the
ABA announced that a new commission would be formed to research and
make recommendations on the issues brought to light by Justice
Kennedy. 102 The ABA Justice Kennedy Commission (Kennedy
Commission) has already made numerous significant findings, but one is
especially important. In a report released in June 2004, the Commission
stated that "America's criminal justice systems rely too heavily 1on
incarceration and need to consider more effective alternatives." 03
Moreover, the Commission's report said that "[1]engthy periods of
incarceration should be reserved for offenders who pose the greatest danger
to the community and who commit the most serious offenses[,]" while
"[a]ltematives to incarceration should be provided when offenders pose
minimal risk to the community and appear likely to benefit from
rehabilitation efforts."' 1 4 In other words, the1 05time for change had arrived,
and Arizona was one of the first states to act.
IV. STATE STATUTES ADDRESSING ALTERNATIVE DRUG SENTENCING
A. Arizona's First- and Second-Time Nonviolent Drug Offender
Sentencing Statute
The Arizona statute at issue was established by Arizona voters in
1996.106 It was known as Proposition 200, or the Drug Medicalization,
Prevention and Control Act of 1996 (DMPCA). 107 The purpose of the Act
as conveyed to the Arizona electorate was to medicalize Arizona's drug
control policy by recognizing that drug abuse is a public health problem
that should be treated as a disease.
Accordingly, drug treatment and
prevention would be expanded for nonviolent persons as an alternative to
102.
News Release, Am. Bar Ass'n, ABA Forms New Commission to Review
Mandatory Minimum Sentences, Prison Conditions and Pardons (Oct. 6, 2003), availableat
http://www.abanet.org/media/oct03/100603_1 .html.
103.
News Release, Am. Bar Ass'n, ABA Commission Cites Over-Reliance
on
Incarceration, Calls for New "Smart on Crime" Approach (June 23, 2004), available at
http://www.abanet.org/ media/kencomm/release.html.
104.
AMERICAN BAR ASSOCIATION JUSTICE KENNEDY COMMISSION, REPORTS WITH
RECOMMENDATIONS TO THE ABA HOUSE OF DELEGATES 9 (2004), available at
http://www.abanet.org/ crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf.
105.
ARIz. REv. STAT. ANN. § 13-901.01(A) (2000 & Supp. 2007).
106.
Adult Probation Division Grant Fund Descriptions, Arizona Supreme Court,
http://www.supreme.state.az.us/apsd/programs.htm (last visited May 18, 2009).
107.
ARIz. REv. STATE. ANN. § 13-90 1.1.
108.
Proposition 200,
1996 Ballot Propositions, Arizona
Secretary of State,
http://www.azsos.gov/election/1996/General/1996BallotPropsText.htm (last visited May 18,
2009).
ARIZONA'S DRUG SENTENCING STA TUTE
2009]
incarceration, while the drug laws against violent persons would be
strengthened, and such persons would be ineligible for the sentencing
alternatives.1 09 According to the statute, "any person who is convicted of
the personal possession or use of a controlled substance or drug
paraphernalia is eligible for probation." 110 In addition, "the court shall
require participation in an appropriate drug treatment or education
program .... 111 Persons not eligible for probation include those who have
been convicted three times of personal possession or use of a controlled
substance; have refused drug treatment as a term of probation; have
rejected probation; were convicted of personal possession or use of a
controlled substance where the offense involved methamphetamine; and
finally, anyone who was convicted of a trafficking offense, such as
possession for sale, production, manufacturing, or transportation for
sale. 112 Consequently, the statute succeeds in targeting those individuals
who would likely benefit from probation and a drug treatment programnonviolent people with possession or usage offenses. In this way, Arizona
is attempting to target those prisoners who would not benefit from
incarceration and who actually burden the correctional system. A system
such as this is more beneficial to both society and offenders because it is
focused on a long-term solution, not a short-term punishment.
The statute created a Drug Treatment and Education Fund (DTEF),
which receives much of its funding from taxes on liquor, to provide the
drug treatment and services the statute requires. 113 A report that focuses on
the progress of the DTEF is produced annually by the Administrative
Office of the Courts, a division of the Arizona Supreme Court, and will be
used in this Note to analyze the impact of the statute on such topics as
114
prison overcrowding, costs of incarceration, and recidivism.
Also included in the statute was a mandate to report the costs avoided
through diverting offenders from prison to probation. 115 In the calculation,
the number of offenders diverted must be determined. However, since
judges are not required to state on the court record whether an offender
would have been sent to prison if not for the statute, there was no absolute
109.
110.
Id.
ARIZ. REv. STAT. ANN.
Ill.
Id. § 13-901.01(D).
§ 13-901.01(A).
112.
Id. § 13-901.01(H).
113.
ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT,
DRUG TREATMENT AND EDUC. FUND: REPORT DETAILING FISCAL YEAR 2005, at 4 (2006),
available
at
http://www.supreme.state.az.us/apsd/dtef/2005%20DTEF%2OReport%20
card.pdf [hereinafter ARIZ. SUPREME COURT, YEAR 2005 REPORT].
114.
See id.
115.
Id. at 14.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
way to determine the number of offenders who would have been
of
incarcerated. 1 16 Consequently, researchers developed a method 117
estimating the number of prison diversions as a result of the DMPCA.
Using information obtained from the Arizona Department of Corrections
(ADC), researchers analyzed the number of actual prison commitments
from the seven years preceding the enactment of the statute (1990-1996)
and used them to predict estimated prison commitments following fiscal
year 1996 based on a trend system. 11 8 The predictions were then compared
to the actual prison commitments to ADC during 1997-2005, and the
difference between the two calculations was the estimated number of
prisoners who received probation instead of incarceration due to the
statute.1 19 This calculation helps to analyze the costs avoided from
the
statute as well as prisoners diverted from the
implementation of 12
0
system.
correctional
1. Prison overcrowding
The passage of the DMPCA has helped Arizona reduce the number of
prisoners in its correctional system. 121 The annual DTEF report for fiscal
year 2000 recognized that while not all of the 1652 offenders sentenced to
probation under the statute would have been incarcerated an estimated 790
would have, based on the trend analysis formula discussed above. 122 This
finding is significant because it suggests that almost 800 persons were
spared from entering the already crowded and overstretched United States
prison population. 123 It is also important to note that those offenders
diverted from the system were all placed on probation with mandatory
terms of drug treatment and rehabilitation. 124 There may also have been
terms of community service, house arrest, or both in some instances, at the
judge's discretion. 12 5 For these reasons, those skeptical of such a system
need not be as concerned about lack of supervision over such candidates or
116.
117.
Id.
Id.
118.
119.
Id.
Id.
120.
121.
Id.
Id.
ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT,
122.
DRUG TREATMENT AND EDUC. FUND, ANNUAL REPORT FISCAL YEAR 2000, at 15 (2003),
http://www.supreme.state.az.us/apsd/dtef/DTEF%20Reports%202000/DTEFRepOO.pdf
[hereinafter ARIZ. SUPREME COURT, YEAR 2000 REPORT].
Id.
123.
ARIZ. REv. STAT. ANN. § 13-901.01(D) (2000 & Supp. 2007).
124.
125.
Id. § 13-901.01(E).
ARIZONA'S DR UG SENTENCING STA TUTE
2009]
that an acceptable punishment has not been put in place. The nonviolent
offenders whose crimes may be addressed via rehabilitation should not be
burdening the nation's prison system if it is not in the community's or
offender's best interests.
Since the passage of the Arizona statute more than ten years ago, the
number of offenders diverted from the prison system and placed on
probation has increased. 126 According to the DTEF report from fiscal year
2005, the number of estimated offenders sentenced to probation instead of
prison has risen to 1072.127 In terms of discussing the benefits of this
statute for purposes of prison overcrowding, this is one issue that has
clearly been addressed successfully. If a statute can divert more than a
thousand persons from a state's prisons and still realistically attend to the
problem presented, it is worth considering. As a result of the program, there
are now more than one thousand free beds to assign to violent prisoners,
one thousand fewer meals to prepare multiple times a day, and one
thousand cost-per-day scenarios avoided for the state of Arizona and its
taxpayers.
Furthermore, the latest DOJ report discussing the nation's prison
population revealed that drug convictions with federal prison sentences
reached a high of 93,751 in 2006, constituting 53% of the federal prison
population, which was 176,268 prisoners. 128 This does not pertain to state
prisons at all, yet the number of drug convictions is significant. 129 If a
statute like Arizona's was put in place nationwide, the numbers associated
with probation and rehabilitation eligibility would multiply, thus
130
immensely reducing the prison population and the costs of incarceration.
2. The costs of incarceration
According to the 2005 DTEF report, the 1072 diverted offenders saved
the state a total of $11,703,554, even after deducting the $2,857,378 cost of
probation. 131 Prison costs alone, without considering probation, totaled
$14,560,932. 132 This figure represents the "practical" costs of how Arizona
incarcerates its criminals. 133 One-third of all prisoners are typically
126.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 14.
127.
Id.
128.
WILLIAM J. SABOL ET AL., BUREAU OF JUSTICE STATISTICS BULLETIN, U.S. DEP'T
OF JUSTICE, PRISONERS IN2006, at 26 tbl.13 (2007), available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/p06.pdf.
129.
130.
131.
Id.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 15.
Id.
132.
Id.
133.
Id.
412
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
assigned to the ADC, while two-thirds are placed in private facilities under
contract with ADC. 134 If broken down and analyzed alternatively,
offenders placed entirely in ADC facilities would cost the state $4,266,352,
while those placed in private facilities would cost $19,708,223.135 After
accounting for the approximately $2,857,378 for the cost of probation, the
state would avoid $1,408,974 and $16,850,845 respectively, with
implementation of the statute in these alternative cost scenarios. 136 This is
an incredible amount of savings. For just over one thousand offenders
diverted, millions of dollars can be spent on countless alternative projects,
such as educating youth about drug problems, building private drug
rehabilitation centers for addicted, non-criminal citizens, or keeping the
money in the correctional system to modernize and maintain prison
facilities. 137
While the costs avoided are an excellent benefit, the Arizona statute has
also led to significant progress each year with regard to the cost of
treatment per probationer, the number of probationers served, and the
number of treatments completed. 138 For example, the average cost of
treatment per probationer was $678.87 in 2000, while it decreased to only
$363.09 per probationer in 2005.139 This shows that, as the treatment
program continues to be applied each year, its efficiency has risen
considerably. 14 0 Furthermore, the number of probationers treated continues
to rise. 14 1 In 2000, 5397 probationers were treated. 142 In 2005, that number
grew to 8575 probationers. 143 Most importantly, even with the influx of
additional probationers needing treatment, the percentage of treatment
completions has increased. 144 In 2000, 54% completed treatment and in
2005, 56% completed treatment and complied with the treatment
requirements. 145 Thus, within five years, the cost of treatment per
134.
Id.
135.
Id.
136.
137.
138.
Id.
Id.
Id. at 8; see also ARIz. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
139.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ.
SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
140.
ARI. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ.
SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
141.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ.
SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
142.
143.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8.
Id.; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ.
145.
SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
144.
ARIZONA'S DRUG SENTENCING STATUTE
2009]
probationer decreased almost by half, and 3000 more offenders needed
treatment; yet the percent of completions and compliance has increased by
2%. 146
3. The effect on releasees and recidivism rates
The Arizona statute has made a significant impact on the drug offenders
who qualified for treatment and services; this equates to success in many
different ways. 147 The most relevant success is highlighted in a 2005 report
on the recidivism of inmates compiled by the ADC. 14 8 Although the
subjects are those who have been incarcerated rather than those placed on
probation under the statute, 149 the value of drug treatment can be easily
understood. According to the ADC, inmates who have completed treatment
for drug, alcohol, and narcotics abuse have contributed to reducing the rate
of recidivism by 47.1%.150 In addition, the ADC cited that less-intensive
substance abuse programs helped reduce the recidivism rate by 28%, and
within two years due to their
that 2171 fewer inmates were recommitted
51
participation in various programs. 1
Another way in which to observe the success of drug treatment is to
study its effect on juveniles. According to a 2005 report on the impact of
drug treatment on the recidivism rates of juveniles, researchers found that
"18% of the juveniles released in 2004 and 20% of the juveniles released in
2003 received some type of substance abuse treatment in addition to
[random] drug testing."'152 The releasees that received drug treatment had a
reduced recidivism rate of 10% over all other releasees. 153 This
demonstrates that drug treatment has an impact on the recidivism rates of
those that complete the programs, and54they should be made more available
to both adult and juvenile offenders. 1
B. Other Implementations of Alternative Sentencing for Drug
146.
Compare ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8, with
ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
147.
See ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8.
See Arizona Department of Corrections, Arizona Inmate Program Evaluation
148.
2005: Summary of Findings (Feb. 2005) (on file with the New England Journal on Criminal
and Civil Confinement).
149.
See id.
150.
151.
Id.
Id.
152.
Research & Development News, ARIz. DEP'T JUVENILE CORR. (Phoenix, Ariz.)
May-June 2005, at 1, available at http://www.azdjc.gov/Offices/Research/Publications/
PdfFormat/R&DNews/R&DJun2005.pdf.
153.
154.
Id. at 1 fig.1.
Id. at 1.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
Offenders
A variety of states, as well as Congress, are beginning to analyze the
effects of a punishment-driven criminal justice system. As The Sentencing
Project admits, "[c]hanges in sentencing law and policy, not increases in
crime rates, explain most of the six-fold increase in the national prison
population."' 155 A recently enacted bill, the Second Chance Act of 2007,
garnered much support. 156 A New York Times editorial had called on
Congress to pass the Act because a program to reintegrate former inmates
into their communities
would help the law evolve much faster with federal
57
involvement. 1
Many states are trying to fix the punishment problem, most commonly
reforming their correctional systems by expanding options and funding for
drug treatment. 158 During the last three years, nine states passed legislation
that either established or expanded sentencing diversion options for drug
offenders. 159 This demonstrates that rehabilitative measures are gaining
traction, and states like Arizona serve as models for change around the
country with regard to alternative drug sentencing measures.
In New York, former Governor Elliot Spitzer established a prison
sentencing reform committee to reassess the controversial Rockefeller
Drug Laws, which impose harsh mandatory minimum sentences for even
first-time offenders. 160 Under these laws, first-time offenders could be
sentenced for terms of incarceration equal to second-degree murderers. 161
The Rockefeller Drug Laws were established in 1973 and were consistent
with the "tough on crime" approach examined in depth earlier in this
Note. 162 Slight reforms were established in 2004, but they have only
applied to about 1000 people and only about 350 have been released. 163 As
a result, the newly established New York State Commission on Sentencing
Reform was assigned the task of reviewing the Rockefeller Drug Laws and
155.
The Sentencing Project, Sentencing Policy, http://www.sentencingproject.org/
IssueAreaHome.aspx?IssueID= (last visited May 18, 2009).
156.
157.
158.
Second Chance Act of 2007, Pub. L. 110-199, 122 Stat. 657 (2008).
Editorial, A Much-Needed Second Chance, N.Y. TIMES, July 2, 2007, at A 17.
KING, CHANGING DIRECTION, supra note 15, at 3 (citing twenty-two states
including, but not limited to, Arizona, Arkansas, California, Illinois, Michigan, Minnesota,
Montana, New York, Oklahoma, and Virginia).
159.
Id. at 4-7 (citing Connecticut, Hawaii, Indiana, Louisiana, Maryland, North
Dakota, Pennsylvania, Texas, and Washington).
160.
Madison Gray, Mandatory Sentencing: Stalled Reform, TIME, Aug. 17, 2007,
http://www.time.com/time/nation/article/0,8599,1653862,00.html.
161.
Id.
162.
See supra Part III.
163.
Gray, supra note 160.
2009]
ARIZONA'S DRUG SENTENCING STA TUTE
compiling a report. 164 The commissions Final Report detailed a series of
recommendations addressing New York's sentencing structure and drug
laws, implementation of evidence-based practices,16 5and reformation of reentry programs and community based corrections.
Pennsylvania is another state that witnessed drug sentencing reform
within the last few years. Governor Ed Rendell proposed drastic changes in
sentencing "to reduce the number of convicts who return to crime after they
are released from prison, ease financial pressures on county goverunents
and rein in inmate overcrowding that is driving a prison construction boom
in Pennsylvania." 166 Legislators established a drug diversion program in
Pennsylvania, created by Senate Bill 217.167 This statute mandates the
Department of Corrections to create a drug treatment program for
offenders. 168 For those who qualify, the program lasts twenty-four months:
seven months are within the custody of a correctional facility, at least four
months require participation in a treatment facility, two months are for
community-based treatment, and six months are for out-patient
treatment. 169
The Restrictive Intermediate Punishment program (RIP), which began in
1994, is another successful drug treatment program established in
Pennsylvania. 170 As part of a "comprehensive revision" to the state
sentencing guidelines, offenders sentenced to twelve months in jail or less
were considered for this treatment program, and the recommendations were
broadened in 1997 to include offenders sentenced to jail for thirty months
or less. 171 Studies revealed that offenders who successfully completed their
drug treatment program were significantly less likely to be re-arrested than
those sentenced to jail or probation, which is a significant sign of
success.172 Full-time employment decreased the odds of recidivism
164.
NEW YORK
STATE COMMISSION ON
SENTENCING REFORM,
THE FUTURE OF
SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM 11 (2009), available at
http://criminaIjustice.state.ny.us/pio/csr-report2-2009.pdf
165. Id. at III-IV.
166.
Peter Jackson, Sentencing Changes Proposed To Reduce Recidivism, Crowding,
PITT. POST-GAZETTE, Sept. 2, 2007, at B 1.
167. KING, CHANGING DIRECTION, supra note 15, at 6.
168.
Id.
169.
Id. at 6-7.
170. Cynthia A. Kempinen, Evaluation of Restrictive Intermediate Punishment Drug
and Alcohol Treatment, PA. COMM'N ON SENTENCING RESEARCH BULLETIN (Pa. Comnm'n on
Sentencing, University Park, Pa.), May 2007, at 1, http://pcs.la.psu.edu/research%20
bulletins/rip%20bulletin%202007%20april%2027,pdf.
171.
Id.
172.
Id. at 4.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
tremendously when combined with drug treatment. 173 Those who were
employed full-time while completing treatment had success rates that
174
increased by 49% compared to offenders who were unemployed.
Additionally, the length of drug treatment proved important "with
offenders receiving 16 months of treatment being least likely to
recidivate."' 175 However, researchers admitted that the average length of
treatment was eleven months or less. 176 In order for Pennsylvania to reach
its highest success rate, offenders must be placed in mandatory treatment
programs that have the greatest likelihood of reducing recidivism and
treating the drug dependence, abuse, or both. 177 Thus, if treatment for
sixteen months yields the best results, sixteen months should be required
for all participants. 178 Perhaps at that point, the effectiveness of
rehabilitation will truly be at its peak, and lawmakers will be able to make
an educated policy decision as to whether it should be implemented in
those situations where it provided positive, documented results.
V.
ARGUMENT-REHABILITATION VS. PUNISHMENT
One of the reasons that punishment, through the expanded use of
incarceration, became so popular in this country was the belief that it
79
furthered crime prevention and enhanced the overall safety of society. 1
Indeed, "between 1970 and 2005, state and federal authorities increased
prison populations by 628%" in an effort to make society safer. 8 0 A major
problem with this criminal justice policy, however, was that lawmakers did
not distinguish between serious, violent offenders and nonviolent,
"marginal" offenders. 181 As a result, the number of incarcerated drugpossession offenders increased more than 1000% between 1980 and
2000.182 By 2004, 419,000 drug possessors were
incarcerated in state
183
prisons or local jails at a cost of nearly $8.3 billion.
Not surprisingly, the New York Times recently reported that the United
173.
Id.
174.
175.
176.
Id. at 3.
Id.
Id.
177.
See id. at 4.
178.
Id.
179.
DON STEMEN, VERA INSTITUTE OF JUSTICE, RECONSIDERING INCARCERATION: NEW
DIRECTIONS
FOR
REDUCING
publicationpdf/379_727.pdf.
180.
Id. at 1.
181.
Id. at 8.
182.
183.
Id.
Id.
CRIME
3
(2007),
available at
http://www.vera.org/
ARIZONA'S DRUG SENTENCING STATUTE
2009]
States now imprisons one-in-one-hundred adults, incarcerating more people
than any other nation.18 4 China is second, with 1.5 million people behind
bars, and the gap is even wider in percentage terms. 185 The numbers are so
drastic that one would think U.S. crime rates over the past thirty years have
plummeted. Conversely, the emerging answer to the question of whether
incarceration is the most effective way to increase public safety has almost
unanimously been "no." 186 For example, the United States experienced a
dramatic decrease in crime between 1992 and 1997, but experts are
generally in agreement that imprisonment was only responsible for 25% of
that reduction, with 75% of the crime drop being attributed to other
factors. 187 Some of the alternate reasons for the decrease include "fewer
younger persons in the population, smaller urban populations, decreases in
crack cocaine markets, lower unemployment rates, higher wages, more
education and high school graduates, more police per capita, and more
arrests for public order offenses." 18 8 Thus, the Kennedy Commission
reported that "a steady increase in incarceration rates does not necessarily
produce a steady reduction in crime rates," that "in the 1980s and 1990s the
majority of new prisoners were nonviolent offenders," and that "the need
for incarceration of nonviolent offenders may have been exaggerated in the
past." 189
These findings can be supported by the fact that "recidivism rates have
remained discouragingly high."' 90 For instance, the DOJ has reported that
drug offenders are one of the highest categories of recidivating
offenders. 191More than half of state prisoners meeting the DOJ criteria for
drug dependence or abuse reported three prior offenses, compared with
roughly a third of other state prisoners. 192 Furthermore, nearly half were on
at
some form of criminal justice status, either probation, parole, or escape, 193
inmates,
state
other
all
of
37%
with
compared
arrest,
the time of their
and drug-dependent or abusing inmates are far more likely to have a prior
184.
Adam Liptak, More Than One in 100 Adults Are Now in Prison in U.S., N.Y.
TIMES, Feb. 29, 2008, at A14.
185.
186.
187.
Id.
Stemen, supra note 179, at 3-4.
Id.at 9.
188.
Id.
189.
23-24.
190.
AMERICAN BAR ASSOCIATION JUSTICE KENNEDY COMMISSION, supra note 104, at
PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 15
(2008), available at http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20
100.pdf.
MUMOLA & KARBERG, supra note 6, at 8.
191.
192.
Id.
193.
Id.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
offense, 84% compared with 68%. 194
With statistics like that in mind, it is hard to fight the reality that the
"tough on crime" approach is not working and incarcerating more and more
people is not necessarily making communities safer. Punishment through
the use of increased incarceration does not effectively accomplish what we
intended: to increase the safety of our communities. It instead has led to
national catastrophes in the form of prison overcrowding, massive
incarceration costs, and the status quo in terms of recidivism. Therefore,
another approach must be considered. The Kennedy Commission has
recommended that jurisdictions:
(1) study and find cost-effective treatment alternatives to incarceration
for offenders who may benefit from treatment for substance abuse and
mental illness; and (2) consider for offenders who commit the least
serious crimes adoption of diversion or deferred adjudication programs
that provide an offender with an opportunity, through completion of
programming or a period of good behavior, to avoid a criminal
conviction. 195
As a result of the failed policies put forth in the wake of the "tough on
crime" approach, the nation is now realizing that punishment, by itself,
does not create the solution to the "War on Drugs." The country is now in a
position where it must consider alternative options to incarceration; one
alternative, rehabilitation, is consistently proving to be a success.
According to a study conducted by researchers at RTI International, "drug
treatment programs for felony offenders provide great economic benefits to
the criminal justice system and reduce recidivism rates among offenders,
providing societal and economic benefits."' 196 The study compared 130
drug offenders serving time in prison from 1995 to 1996 with 150
participants enrolled in the Drug Treatment Alternative to Prison Program
during that same time. 197 The drug treatment program was implemented in
1990 by the Kings County District Attorney's Office in Brooklyn, New
York. 198 The study monitored participant costs and recidivism rates for six
years and found the program saved the system more than $47,000 per
person during that period.' 9 9 The study also found that participants in the
194.
Id.
195.
AMERICAN BAR ASSOCIATION JUSTICE KENNEDY COMMISSION, supra note 104, at
30.
196.
News Release, RTI International, Study Finds Drug Treatment Is Cost-Effective
Alternative to Prison (Feb. 3, 2006), http://www.rti.org/page.cfm?objectid= 45f0612f-80cf452e-b9466cad5f1 b786c.
197.
198.
Id.
Id.
199.
Id.
2009]
ARIZONA "SDRUG SENTENCING STA TUTE
drug treatment program had lower recidivism rates than those in the prison
comparison group.
This study is one among many others in recent years
20 1
to depict the benefits of drug treatment as an alternative to incarceration.
Although punishment is still an appropriate, necessary, and even requisite
approach to violent criminal offenders, the majority of the research
conducted by experts in recent years has demonstrated that rehabilitation
offers a more comprehensive, long-term solution to nonviolent criminals
who have drug abuse or dependence issues.
VI. CONCLUSION
As mentioned in the beginning of this Note, the DOJ disclosed that in
2004, drug offenders were those most likely to have committed their crimes
while under the influence of drugs at a rate of 44%, and that property
offenders came in second at 39%. 202 One-in-three property offenders in
state prisons also reported that drug money was a motivation for their
crimes, and 17% of all state prisoners said they committed their crimes to
obtain money for drugs. 20 3 It is also important to note that 53% of state and
45% of all federal prisoners met the DOJ criteria for drug dependence or
abuse, yet only 14.8%
and 17.4% respectively have participated in drug
204
treatment programs.
In considering the DOJ statistics with the statewide results in Arizona, it
is clear that, at the very least, professional drug treatment should be
provided to each and every offender who meets substance abuse criteria or
who admits to committing a crime under the influence of drugs or to obtain
money for drugs. 20 5 If each state applied a system similar to Arizona's, it is
likely that the nearly 75% of state prisoners convicted only of a drug
nonviolent offense, or both would be able to receive the treatment needed
for finally defeating their drug problem, and hopefully reducing the
incarceration cycle that sends so many drug offenders back to prison after
release. 20 6 This would possibly, if not probably, result in the decline of
crimes committed under the influence of drugs or to obtain money for
drugs. 2 07 It is also worth mentioning that, as previously discussed, freeing
these low-level offenders from prisons and implementing mandatory
probation with drug treatment could result in many benefits, including a
200.
201.
202.
Id.
Id.
MUMOLA & KARBERG, supra note 6, at 5 tbl.4.
203.
204.
205.
206.
Id. at 6.
Id.
Id.; see also ARIz. DEP'T OF CORR, supra note 148.
KING & MAUER, DISTORTED PRIORITIES, supra note 23, at 3.
207.
See MUMOLA & KARBERG, supra note 6, at 5.
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 35:397
decrease in prison overcrowding and a significant drop in incarceration
costs.
The United States criminal justice system is at a crossroads. We can
either continue the status quo by building more prisons, paying more
correctional costs, and sending more nonviolent drug offenders to prison by
using the popular "tough on crime" rhetoric, or we can take the road less
traveled and consider the possible success in alternative programs. These
programs are capable and efficient ways in which to manage the drug
dependence and abuse issues of drug offenders while providing cost
savings to state and federal governments.
The story of Gary Brown is one of frustration with the current state of
the criminal justice system and one of motivation for the kind of change
this country desperately needs. 20 8 He should not be serving a life sentence
for three drug-possession offenses. 20 9 Considering the statistics for drug
dependent or abusing offenders, he most likely has a drug problem, and his
country has failed him by not providing the appropriate drug treatment he
needs to overcome his addiction. 210 Instead, his country is hurting itself by
keeping him in prison for the remainder of his life.211 Using the 2001 DOJ
statistics for costs of incarceration, the government will pay $22,650 per
year to incarcerate him. 2 12 If he lives another forty years, it will cost the
government at least $906,000. This is far too harsh a punishment for both
Gary Brown and the American taxpayer. Indeed, if he were a threat to the
safety of communities, then there would be no choice but to incarcerate
him. However, he is a nonviolent drug-possession offender who most likely
has a drug problem. With the creation of an alternative, rehabilitative
approach, there would be a better option for Gary Brown and for the rest of
society. After all, as Justice Kennedy said, "when it costs so much more to
incarcerate a prisoner than to educate a child, we should take special213
care to
long."
too
for
persons
many
too
incarcerating
not
ensure that we are
Lauren M. Cutlert
208.
209.
210.
211.
See generally United States v. Brown, 500 F.3d 48, 48 (1 st Cir. 2007).
See id. at 59.
MUMOLA & KARBERG, supra note 6, at 5 tbls.4 & 5.
Brown, 500 F.3d at 59.
212.
STEPHAN, supra note 70, at 1.
213.
Kennedy, supra note 1.
tTo M, for your exceptional strength and unconditional support, which have made so many
things possible; you are truly my inspiration. And to my family, thank you for your
continued love, kindness, and generosity for which I am forever grateful.