The following is an opinion piece written by McHenry County State’s Attorney Patrick Kenneally:
In January, a series of show debates were held in Springfield during lame-duck session on the recent criminal justice overhaul bill that was strong-armed into enactment with little more than the pretense of input from law enforcement.
During the debates when the provision of the bill making possession of heroin and methamphetamine a simple misdemeanor came up, state Rep. Kelly Cassidy, Vice-Chair of the Judiciary-Criminal Committee, leapt to defend this mitigation (which may very well be the next strategic move of progressive reformers with an end-game of full repeal of drug prohibition). She said:
“What we’re doing isn’t working. Doing the same thing over and over again and expecting different results is the definition of insanity … What we’re saying here is addiction is a public health issue, not a criminal justice issue and it’s time to take it out of the criminal justice system.”
Such adamancy and immoderation should be controversial. A powerful legislator called for a regulatory and policy coup, overthrowing the system thoughtful people have built and administered over generations to limit the use of life-suffocating, misery-inducing, and community-decimating drugs.
These remarks, however, were merely absorbed into our state’s highest chamber of civic thought without so much as a raised brow, and almost certainly the private approval of many.
Why can’t it be both, a criminal justice and public health issue? Why do our political pronouncements and judgments these days have to be so stark? What the hell ever happened to a middle ground?
If we aim to contain our prodigious drug problem with a new wineskin altogether, as Rep. Cassidy exhorts, we should ensure that it is staunch; that drug treatment providers in the field of public health are worthy of our absolute faith.
The unpleasant truth, however, is that in most cases, substance abuse treatment does not work. Ask even the most sanguine advocates of drug treatment what the success rate is, and it’s hard to get a straight answer – “it depends how you define success,” “treatment is an ongoing process, or “you have to understand, relapse is part of recovery.”
If asked directly, how many people who enter into a drug rehabilitation program stop using illegal drugs for good, the honest answer would be, “no one really knows, but it’s not great.”
Over the last few decades, we have purportedly learned more and more distinctly the chemical and genetic underpinnings of addiction. Countless epilogues to books about the “drug war” over the past 20 years have featured some new “evidence-based” drug treatment promising to be the game-changer (the current “it” treatment being “medication-assisted therapy”).
Drug rehabilitation service providers, not law enforcement, family, church or personal growth, are now regarded as the first, last, and only source of true healing for one afflicted with addiction.
The treatment industry has become its own sector of the economy, with billions being poured out by desperate individuals, all levels of government, insurance companies, and employers each year. Broad pathways for treatment are open for nearly anyone, willing or unwilling.
The criminal justice system has not been compulsively “tough on crime” with respect to drug possession for decades. In fact, the criminal justice system is often in more of a support posture to treatment providers than anything else, referring “patients” and compelling compliance.
No first-time, non-violent drug possessors are being imprisoned, ever. With respect to those who are arrested for their first, second, third, or more drug-possession-related offense, the response of the criminal justice system is almost exclusively rehabilitative. Defendants are mandated to engage in substance abuse treatment, which is facilitated, paid for in many instances, and even provided by the court system.
Drug offenders who are imprisoned are chronic, inveterate offenders. The average drug offender in the Illinois Department of Corrections has previously been arrested 19 times, six prior times for drug offenses and six prior times for felony offenses.
It is certainly fashionable these days and requires no political courage to upbraid the criminal justice system. It seemingly does not have a friend left in the world, so it makes a great strawman and scapegoat.
However, if “what we are doing is not working,” in view of the conspicuous, if not primary, role treatment providers have played in our addiction and drug suppression efforts, it is increasingly wishful and dogmatic to lay blame solely at the feet of the justice system.
Drug addiction, especially to harder drugs such as methamphetamine and heroin, is intolerable and poses an imminent threat to public safety, not to mention private desolation in the lives of the users and their families.
Numerous studies have shown that many drug addicts commit crime(s) on a daily basis in order to subsidize use, many of these offenses being “serious and destructive.” Illegal drug use has been upstream of many of the most horrific crimes in McHenry County.
We have seen in McHenry County how a vigorous criminal response, working in tandem with a cohesive network of treatment providers, can reduce overdose deaths. McHenry County continues to be the leader in Illinois in charging drug-induced homicide cases, which targets and imprisons dealers whose drugs cause death.
Since increasing the use of this charge, overdose deaths have decreased from 78 in 2017 to 52 in 2018 to 38 in 2019. In Lake County, conversely, overdose deaths went from 85 in 2017 to 98 in 2018 to 94 in 2019. In Cook County, overdose deaths went from 1,167 in 2017 to 1,138 in 2018 to 1,277 in 2019.
So, if we take Rep. Cassidy at her word and entirely remove those who possess and use illegal drugs “out of the criminal justice system,” when treatment fails, as it usually does, what then? Are those living with the disorder and debris of a drug house next door no longer able to call the police? When exhausted and exasperated family members plead that their non-compliant loved one be incarcerated as a necessary recourse to merely preserve life and end for some bracing term the dizzying worry and torment, what should we tell them?
Much of Rep. Cassidy’s zeal proceeds from the one-dimensional understanding of addiction as a “disease.” No doubt the disease model is preferable to denigrating substance abusers as stitched from weak moral fiber or lacking in willpower.
However, like many ideas these days, one’s full-throated support of the disease model bears upon individual virtue, such that if you question the model, you appear cruel, uncaring or regressive.
I acknowledge with clear eyes that there is a biological component to addiction. Over time, excessive drug use can upset the entire ecosystem of the brain, giving rise to observable changes in structure and function and warping the all-important dopamine feedback loop.
I acknowledge further that because of these changes, users often consume drugs without conscious reflection and experience intense cravings, which so exquisitely and urgently focus attention, that drug use can be subjectively experienced as compulsory. I wholeheartedly affirm that struggling with substance abuse does not make a person immoral, unworthy or deserving of ostracism.
However, even if we categorize addiction under the ever-expanding term “disease” (which I won’t dispute), we must also recognize that it is different from more traditional diseases, such as COVID-19 or cancer, in fundamental ways that change how it should be redressed.
Most diseases are neither brought on by the sufferer nor modifiable by a desire to be well. It cannot be forgotten that drug use does not become physiologically provoked until the user ingests drugs time and again over a period of weeks, months or years.
Unlike most diseases, the majority of drug addictions end, often spontaneously and without intervention, as people age and grow in insight and maturity.
Unlike most diseases, addiction is uniquely responsive to accountability and consequences. Most treatment providers will tell you that those voluntarily reaching out for help and motivated to change are often on the cusp of losing a spouse or job or facing jail time.
The object of lasting recovery is usually the person or self, not some reductionist conception of brain chemistry, which may measure the problem, but fails to grasp it.
Recovery is a scrupulous project of heart and mind that involves deep self-examination and self-understanding, motivation, restructuring of self-image, and reconnection with long-term goals, such as life’s works and loving relationships, that are incompatible with use. It mysteriously happens when and if it happens and quite often eludes all the love, good intentions and compassion of others.
Certainly drug addiction, with its disastrous effects on the user’s life and health, appears difficult to square with choice, especially if we wrongly presume that the process of choice is inherently rational.
Drug use, however, is an incredibly powerful experience, imbued with a mystical drama and inner peace. For many, it unlocks the chains of constant unease or distressing interior states, blissfully taking people out of themselves or the despairing landscape of their lives.
It becomes a longed-for reward, but lasts only a few hours and leaves loss in its wake. Down the road, use becomes necessary to forestall withdrawal and douse cravings.
So while perhaps no one chooses to become addicted, it is understandable why a person would incrementally choose to use, the sum total of these choices amounting to “addiction.”
However, understanding and empathizing, even to the point of “there go I but for the grace of God,” is not the same as excusing and mitigating responsibility, is not the same as absolving.
We can accept the existence of potent causal factors preceding drug use, but that does not make drug use compulsory. Stated differently, addiction constrains, but does not eliminate choice.
With choice comes accountability and when one’s choices unreasonably undermine the public good or impinge on the rights of others, as illegal drug use inevitably does, it is not unjust to impose proportionate criminal consequences.
Of course, our first instinct and efforts should center on compassion and rehabilitation. We should always direct a person suffering with substance abuse to some form of treatment, which, though certainly not sure-fire, boasts some of our best knowledge and strategies.
Equally clear, however, is that treatment providers need a backstop capable of providing incentives, accountability, and ultimate redress because there is far more at stake than just the individual.
As Rep. Cassidy would surely recognize, casting off our current system for some watered-down concept where all roads, “over and over again,” lead back to treatment that for many is “not working” would likely fit her definition of insanity.