Reader Bobby Hill has this to say about my comments endorsing Prop. 5:
I’m a deputy public defender in L.A.. I am a narcotics prohibition abolitionist. I disagree that only a drug warrior could oppose Prop. 5, as you blogged. The initiative has provisions which actually would perpetuate the drug war. First, it would grant judges discretion to grant diversion “rehabilitation” to persons convicted of non-drug offenses. (Pen. Code, §§ 1210.03, subd. (b), 1210.1, subd. (f)(2), as proposed.) Under existing law, the concurrent conviction of a non-drug offense, such as a theft, disqualifies a person from Prob. 36 “rehabilitation.” (Pen. Code, § 1210.1 subd. (b)(2).) The proposed change would allow a judge to relieve individuals who commit non-drug offense from the sanctions of the general criminal law, if a judge determines that diversion “is in the interest of the defendant ... .” (Pen. Code, § 1210.03, subd. (b), as proposed.) Presumably, judges would make such findings when a defendant’s non-drug crime, such as theft, is related to (motivated by) the defendant's habitual drug use.
By codifying habitual narcotics use (“addiction”) or intoxication as a sometimes excuse for legitimate crimes plays into the ideology of the drug war. Its dehumanizing premise is that persons who use drugs are incapable of exercising free will. If that were true, then the natural rights to life, liberty and the pursuit of happiness would not apply to a habitual drug user anymore than they would to a farm animal, which as you point out, in discussing Prop 2, has no rights. But if, as I believe, a person always can choose whether or not to take a hit or to shoot up, then that person has the right to choose to do so. If you believe that a person always has the power to choose whether to use narcotics, then you must also believe that he or she has the power to choose whether to take another's property. This is to say that rights cannot be claimed for narcotics users if responsibility is denied them. Thus, by excusing narcotics users of responsibility for non-drug crimes, Proposition 5 makes it more difficult to argue for the abolition of prohibition.
Further, and more generally, Proposition 5 perpetuates the drug war by sugarcoating it. To the extent that citizens believe that our law “cures” or otherwise “helps” “addicts,” they will overlook that the drug war persists in essentially full brutality. Under Prop 5’s coercive rehabilitation ethic, sellers are exploiters of helplessly “ill” “addicts.” Consequently, sellers and traffickers would remain fully green-lighted enemies of the drug war. Draconian penalties for sellers would remain, including for, say, a homeless person who sells a $ 10 rock to support his own habitual use. Morally, users and sellers are indistinguishable. Practically, of course, the war against drugs, which would continue against sellers and manufacturers essentially unabated by Proposition 5, causes transactional violence, inefficient use of law enforcement resources, inefficient use of agricultural and other productive factors, and produces unpredictable and tainted doses of drugs. Constant searching for narcotics erodes Fourth Amendment protections and fosters resentment of law enforcement. Civil asset forfeiture is another nasty feature of the drug war, which, of course, Proposition 5 does not touch.
To borrow from Neil Young, Proposition five amounts to a kinder, gentler machine gun hand – that’s all. George Soros is one of the main financial backers. I assume you disagree with his position supporting a confiscatory death tax. He is equally wrong on this measure, again placing his concept of community welfare above individual liberty.
I enjoy and learn from your blog, and writings, which are full of insight. Thanks very much for your work. Among other things, you tempered my support for Ron Paul, although I ultimately did vote for him.
These are interesting points, but I don’t find them convincing, and I’ll explain why in reverse order. First, the fact that the initiative is sponsored by George Soros is irrelevant in my view. I disagree with much of what Soros supports, but that doesn’t mean I can’t agree with him on some things.
Second, the argument that “sugarcoating” the Drug War will perpetuate it is problematic. One might make that argument against any attempt to relieve some of the Drug War’s more extreme effects. One might say that reducing mandatory penalties for certain offenses actually perpetuates the Drug War because it disguises its brutal principles. Some people today argue that school voucher programs are a bad idea because they only perpetuate the government’s monopoly on schooling. I don’t usually buy such arguments. While in some cases, there might be political value to be gained by the opposition’s brutality being demonstrated most vividly, I’d prefer to see even some slight amelioration—even if it means that people foolishly think that doing so entirely solves the problem. When the situation is this bad, I favor compromises that reduce the bad stuff a little, so long as we make it clear that it isn’t intended as a permanent resolution. The choice here isn’t between the Drug War and the abolition of the Drug War. It’s the choice between a deplorable state of affairs and a slightly less deplorable state of affairs. I actually do prefer kinder, gentler machine guns to the more brutal kind—although I would most prefer none at all.
Third, I think the argument that Prop. 5 will encourage people to think that drug addicts lack free will is a bit far fetched. It is true that while under the influence of drugs people do things that they would not do if they were sober, and it is also true that drug addicts who are not high tend to do things they would not do if they were not addicts. If there are people who argue that this proves they do not deserve to have their rights to life, liberty, and property respected, then those people are clearly wrong, but I don’t think I’ve heard that argument being made, and in any case I think it’s clearly distinguishable. In any case, most non-violent drug crimes shouldn’t be crimes (e.g., possession, sale and so forth) and thus a law that allows courts to send these people to something less than jail is a step forward.
Finally, I do think there’s a good argument to be made that crimes committed under the influence of drugs ought to be penalized more than crimes committed while sober. In fact, I think replacing drug prohibition with such increased penalties would be a huge advance. And I would not advocate a measure that put all persons who commit crimes while high into rehabilitation—clearly there are many such people who ought to go to prison. But there are certainly some who would be better off in rehabilitation instead (and society would be better off if they were in rehab instead, too). So I would support allowing a judge to make that call.