Drug Use Is Not Illegal: How Police Justify Arrests

Opponents of marijuana legalization often argue that people don’t go to jail for pot possession, but arrests are justified because they are used to force people into drug treatment.

The problem with this argument, though, is that according to federal data on drug treatment admissions, most people forced into drug treatment by the judicial system don’t actually require treatment for marijuana-related abuse or dependency problems.

There is a fundamental problem with using the police to force people into drug treatment.

Illegal drug use is not against the law. This may surprise most people. However, there is a constitutional problem with criminalizing addiction.

The Supreme Court ruled in Robinson v. California (1961) that sending people to jail for the disease of addiction was cruel and unusual punishment and a violation of the Eighth and Fourteenth Amendments of the Constitution. The state cannot punish people because of their drug addiction “status.” It is because of this case that modern anti-drug laws concern the manufacture, purchase, sale or possession of illegal drugs.

In other words, drug laws are about economic activity rather than health issues.

Nonetheless, the use of the criminal justice system to to compel people into treatment programs is often used to justify drug law arrests—especially marijuana arrests. This large number of admissions to drug treatment programs is then often cited by critics of marijuana law reform as evidence of a severe public health problem,justifying marijuana prohibition.

Note the circular logic—the police arrest people for marijuana possession, the courts compel these folks to go into drug treatment to avoid going to jail, and the resulting drug treatment admissions are used as proof that we need more marijuana arrests.

The data that exposes this scam comes from a federally maintained reporting system called the Treatment Episode Data Set on Admissions (TEDS-A), maintained by the Substance Abuse and Mental Health Services Administration (SAMHSA).

The TEDS program only collects information from federally funded drug treatment programs, so it does not reflect all drug treatment services in the United States. Also, the 2012 data does not include reports from Mississippi, Pennsylvania or West Virginia. It is, however, representative of trends in all drug treatment admissions.

There were 654,646 marijuana-related drug treatment admissions reported to TEDS in 2012. Of these, 43.3 percent were referred by the criminal justice system.

The TEDS data reports on the “the diagnosis of the substance abuse problem from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders” (DSM).  Of all the cases referred by the criminal justice system in which marijuana was flagged as a reason for the admission, cannabis abuse was diagnosed in 20.4 percent of the cases and cannabis dependence was diagnosed in 27.6 percent.

In other words, 43 percent of marijuana treatment admissions are compelled by the courts, and of these, less than half actually qualify for treatment services.

While TEDS provides information on how many cases were referred by the criminal justice system, it does not indicate with what crimes these individuals were charged. However, a comparison of the number of referrals from the criminal justice system and the number of marijuana arrests provides an indication of how prevalent this practice is.

In many states, the number of compelled treatment cases was nearly equivalent to the number of marijuana arrests, including Montana, Connecticut, Vermont, Massachusetts, South Dakota, Iowa, Washington, California, Oregon, Colorado and Alaska (this is based on 2012 data, before Colorado and Washington legalized marijuana). In other states, the number of referrals were comparable to more than half of all marijuana arrests, such as in Ohio, Hawaii, Kansas, Alabama, Wyoming, Minnesota, Idaho, Missouri, Rhode Island and Utah.

So yes, there are people who are arrested for marijuana who meet the diagnostic criteria for cannabis abuse or dependency. But just as many who are forced into treatment for such problems do not.

Police officers are not trained mental health professionals. It is not law enforcement’s job to determine if someone needs drug abuse treatment and then to arrest that person in order for them to receive it. The idea of using the police to decide who needs medical care and to compel individuals into receiving it contradicts the core American values of freedom and personal responsibility.

It is also essentially unconstitutional.

But it is a great racket.

The police get to exert their authority while at the same time deflect responsibility for enforcing criminal sanctions on marijuana use. They get to make arrests, but because the courts send people to treatment rather than jail, the police can argue that no one goes to jail—and therefore, it is okay to make more arrests. Individuals who do not have marijuana abuse problems are easy to treat, so treatment facilities get paid for easy work.

All of this creates great and unnecessary costs for the arrested individuals, for taxpayers and for insurance companies—costs that end up paying for a great deal of unnecessary treatment.