Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs--the 24/7 Sobriety program in South Dakota and Hawaii's Opportunity Probation with Enforcement--subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and effective mechanisms for dealing with substance abuse and crime. A few other states have adopted similar regimens, but most have not. The latter jurisdictions should consider creating their own programs based on the South Dakota and Hawaii models.
Table of Contents INTRODUCTION I. ALCOHOL AND ILLICIT DRUG USE A. The Problems They Cause B. The Contemporary Responses II. TWO INNOVATIVE APPROACHES TO ALCOHOL- AND ILLICIT DRUG-USING OFFENDERS A. The South Dakota 24/7 Sobriety Program B. Hawaii's Opportunity Probation with Enforcement Program III. THE NEXT STEPS A. The Reasonableness of the Options B. The Need for Additional Study C. The Roles for the States and Federal Government CONCLUSION INTRODUCTION
Local and state government officials in South Dakota and Hawaii have found a creative way to address some of the problems stemming from alcohol and drug use. South Dakota's 24/7 Sobriety Program and Hawaii's Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices. Criminologists, both old and contemporary, have believed that the certainty and celerity of a punishment are more effective components of deterrence than is the severity of a penalty. (1) In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate penalty is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road. (2)
South Dakota and Hawaii have both developed innovative programs to deal with substance use and noncompliance with the conditions of supervision. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce. (3) Hawaii has independently developed and followed a similar approach to the use of drugs and related crime, subjecting certain offenders to rigorous, random drug urinalysis coupled with the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims, society, and themselves.
Part I sets the stage for analysis of the South Dakota and Hawaii programs. Subpart I.A. summarizes the problems with alcohol abuse and illicit drug use, and subpart I.B. discusses how American society addresses those problems today. Part II then describes how 24/7 Sobriety and HOPE work and how well each one has performed so far. It turns out that, even though each program developed independently, 24/7 Sobriety and HOPE are quite similar in their underlying theory, their mechanics, and their results. The last part, Part III, suggests what next steps the other states and the federal government should take to decide whether those programs are sensible, and identifies some of the questions that governments should address before ditching their traditional systems in favor of a greater focus on these two inventive programs.
ALCOHOL AND ILLICIT DRUG USE
THE PROBLEMS THEY CAUSE
Alcohol has a long history of use in western civilization, (4) and it is widely consumed in America today. (5) Alcohol abuse, however, has been with us as long as alcohol itself. (6) Most people can consume alcohol in moderation or intermittently without suffering any adverse long-term effect. (7) But not all. Some individuals become dependent on alcohol, and years of overuse not only seriously impairs their health but also can prove fatal. (8) Excessive alcohol consumption today imposes more than $200 billion on the nation each year in morbidity and mortality costs, as well as various other direct and collateral costs, (9) expenses that dwarf tax revenues from alcohol sales. (10) Alcohol also may be the most commonly used intoxicant by individuals who break the criminal laws. (11)
Generally speaking, the nation has sought to prevent alcohol abuse by regulating rather than outlawing the manufacture, distribution, and consumption of alcohol. The states have enjoyed the prerogative to prohibit or limit alcohol use at all times other than during the Prohibition Era (1920-1933), when the Constitution and federal law outlawed the distillation and distribution of alcohol. (12) Different states have exercised that regulatory authority in various ways. (13) Generally speaking, however, with a few exceptions--for example, laws prohibiting driving under the influence of alcohol or distributing alcohol to minors (14)--the states leave the responsibility to police the sensible use of alcohol to the efforts of individuals, family, friends, neighbors, and others.
Unfortunately, common sense and moral suasion do not always work. The problem of drinking and driving provides an example. Alcohol diminishes a person's ability to operate a motor vehicle long before he realizes that his skills have been diminished. (15) Operating an automobile while under the influence of alcohol--known by the acronyms DUI, DWI, or OWI (16)--is a hazardous and expensive activity. (17) Motor vehicle accidents involving alcohol-impaired drivers cost the nation more than an estimated $37 billion annually. (18) In 2012, more than 10,000 people died in such incidents, or one every 51 minutes. (19) The FBI reports that out of the nearly 12.2 million arrests law enforcement officers made in 2012, 1.3 million were for DUI. (20)
Moreover, DUI is not the only offense that people commit while inebriated. Alcohol use is involved in nearly 40% of violent crimes. (21) Numerous studies have confirmed what has been labeled the "alcohol--violence nexus." (22) While the jury may still be out on the question whether alcohol is a "criminogenic" drug--that is, a drug that causes or leads people to break the law (23)--there seems little dispute that alcohol is highly associated with crime and that intoxication might serve as a catalyst to violent crimes in some settings. (24) As one psychiatrist colorfully put it, "[t]he conscience has been well defined as that part of the mind which is soluble in alcohol." (25)
Americans have treated illicit drug use differently from alcohol use. (26) Society has accepted drinking in moderation for as long as the nation has been in existence, but it never has accepted moderate use of illegal drugs. (27) Yet the American attitude toward the proper treatment of illicit drug use has varied over time. Society has endorsed different explanations for the occurrence of addiction and different methods of treating it. Three theories have predominated, however, although their separate influence has waxed and waned: first, addiction is a physical or psychological problem that is best treated by the medical profession; second, addiction is a character weakness best dealt with by reforming the addict's soul; and, third, addiction is a behavioral problem best handled by the criminal justice system. (28) The second theory has always had its champions, but their influence has waxed and waned over time without ever predominating. By contrast, the other theories have greatly influenced public policy. The theory that addiction should be treated medically took hold first, only to be replaced by the behavioral theory that is prevalent today.
The medical approach to addiction predominated late in the nineteenth century and early in the twentieth. Drugs such as opium were often used for medicinal purposes in the nineteenth century. Morphine was used during the Civil War to provide pain relief to wounded soldiers, and addicted soldiers were said to be afflicted with the "army disease." (29) Addiction did not generate the same societal condemnation that it now does. (30) A typical depiction of an addict was that of the genteel, morphine-addicted mother Mary Tyrone in Eugene O'Neill's semiautobiographical play Long Day's Journey into Night: someone pitiful or misguided, not evil. (31)
Society did not begin to fear and condemn opiate use until early in the twentieth century. (32) Since then, the nation has followed a path materially different from the one it has used for alcohol. Beginning with the Harrison Narcotics Tax Act of 1914, (33) the emphasis has been on aggressive use of the criminal justice system to deter and punish drug trafficking and use. Society has apparently concluded that drugs such as heroin and crack cocaine are more addictive, debilitating, and dangerous than alcohol and thus are a greater threat to the social fabric than "demon rum." (34) In fact, for some it is not an exaggeration to say that heroin and crack cocaine, like the plagues that Yahweh rained down on the Egyptians, (35) have destroyed lives, splintered families, and ravaged communities through their powerful addictive effects. Atop that, the distribution and use of modern-day illicit drugs such as crack cocaine has led to crimes and violence that victimize individuals and communities, particularly in poor, urban, largely African-American neighborhoods already suffering from economic deprivation and social despair. (36)
Because use of...