Kinder, gentler prohibition: will drug courts undermine marijuana legalization?

• Author: Riggs, Mike

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IN 2010 TRISH AND DARYL Bertrand were busted for cultivating marijuana in the attic of their park equipment business in Christian County, Missouri. There was no point in fighting the charges. Police found a sophisticated indoor grow operation, complete with 47 plants, scales, and packaging supplies. Daryl, who four days before the raid had undergone spinal fusion surgery, told police he used 80 percent to 90 percent of the marijuana to treat back pain and sold or gave the rest to friends. Trish told police she never used the stuff and wasn't thrilled about Daryl growing it. Too broke to take the case to trial, they both pled guilty to felony cultivation.

Stories like the Bertrands' are familiar to opponents of the war on drugs, but this one has a slightly unusual ending. Although Missouri, which the Marijuana Policy Project says has "some of the toughest marijuana laws in the country" punishes pot cultivation with up to 15 years in prison, neither Trish nor Daryl was incarcerated. In 2011 Daryl received an eight-year suspended sentence, five years of probation, and a $350 fine. Trish was sentenced to five years of probation, a $375 fine, and 100 hours of community service. In exchange for this apparent leniency, both were required to attend substance abuse counseling.

Three years after their arrest, Trish, 38, and Daryl, 44, have yet to "reoffend" That makes theirs a success story in the eyes of folks who promote the use of alternative sentencing, monitoring, and counseling for nonviolent drug offenders. And it's hard to disagree when you look only at what could have happened to them: They weren't imprisoned for a decade and a half; their children did not grow up in foster care; they did not re-emerge into society with skills and knowledge rendered obsolete by years of confinement.

But prison isn't the only bad thing that can happen to a person. Collateral consequences of a drug arrest range from having your mugshot appear in Google searches for your name, to fines and court fees that can land you in a modern-day debtor's prison.

The Bertrands faced their own consequences. The couple spent three days on the evening news, which killed their child-centered equipment business. With Ozark Mountain Playgrounds on the rocks, the Bertrands could no longer afford to maintain the home where their kids had grown up. So they left behind what Trish calls "suburban bliss" to live in a low-rent neighborhood where they now count two registered sex offenders--a third-degree rapist and a second-degree child molester--and two violent felons among their neighbors. "We do not allow our children outside" she says.

The repercussions don't end there. Although she did not actually have a substance abuse problem, Trish was forced to schedule her life, her family's activities, and her job hunt around three drug classes per week and one counseling session every 14 days. The Bertrands' daughters, who were 10 and 12 when their parents were arrested, needed counseling as a result of the intense public scrutiny. "There were times," Trish says, "when we went to school functions with my younger daughter and people wouldn't even sit by us."

Three years after their arrest, Daryl is on disability, Trish works as a temp, and the formerly middle-class family lives paycheck to paycheck. "We don't even look at the future," Trish says.

Rise of the Third Way

Today, when legalization advocates argue that imprisoning nonviolent, low-level drug offenders destroys families and destabilizes communities, no one disagrees. Republicans, conservative Democrats, and leaders in the criminal justice industry have all come around to the idea that locking up people who are not dangerous creates more problems than it solves. While some states, such as Florida, remain reluctant to reduce their incarceration rates, the days of legislators' smearing each other as "soft on crime" while calling for harsher sentences and more prisons are mostly history.

But the Bertrands' experience gives you a sense of what President Barack Obama's drug czar, Gil Kerlikowske, has in mind when he talks about "drug policy reform." Lock up fewer drug offenders, but don't make their behavior any less illegal. Call addiction a disease, but continue to use police and SWAT teams to enforce drug laws. Talk about reducing the stigma of drug use and addiction, but maintain the ultimate sanction by deeming every person caught with drugs a criminal.

"The debate is happening now on the reformers' terrain," says Jill Harris of the pro-legalization Drug Policy Alliance (DPA)."It's not as if anyone is saying, 'Keep the system as is.' The 'keep it as it is' folks have moved to what they call a 'middle ground,' even though it's close to prohibition. We're no longer arguing about...