Reduction of Punishment Severity for Drug Use and Drug Related Offenses - Essay Example

The Implication of Depenalization or Reduction of Punishment Severity for Drug Use and Drug-Related Offenses A Research Proposal Lerin L. Hester CMRJ505 Professor Myers-Hunziker January 31, 2010 Introduction A major argument in the debate about drug law is whether depenalization would release a tide, a remarkable boom in drug-related offenses, or only loosen a valve. Majority of depenalization critics claim that drug-related offenses would escalate dramatically (Harrell & Roman, 2001). Furthermore, some are eager to quantitatively determine this, even though apparently most have aspired greatly for rhetorical goals, and none present more than the most shallow or obvious explanation of the support of their estimate (MacCoun & Reuter, 2001). Even the most determined researcher among those presenting estimates, Herbert Kleber, basically claimed that “if cocaine were legally available, as alcohol and nicotine are now, the number of cocaine abusers would probably rise to a point somewhere between the number of users of the other two agents, perhaps 20 to 25 million” (MacCoun & Reuter, 2001, 72). This study analyzes and reveals what is known about the effect of harsh prison sentences or the aggressive enforcement levels of drug prohibitions in contemporary America. This study makes two arguments. It is possible that harsh drug penalties could be significantly lessened without substantially escalating use and reoffending but also that legalization could result in considerable escalations in use and reoffending. The two arguments are not conflicting, nor is this study attempting to take up a guarded ‘neutral’ position. Significantly reduced user authorizations may have qualitatively diverse impacts than modifications in the legal position of drug production and sales. To a lot of people, it may appear apparent that reduction of harsh prison sentences or penalties would increase drug use and reoffending. But MacCoun (1993 as cited in MacCoun & Reuter, 2001) claimed that this may not be the case. Similar to the premises of this study, the article enumerated seven different processes by which drug penalties influence drug use and reoffending and analyzed the existing empirical and theoretical literature on each process. Most of these processes put off drug use and reoffending, but hardly any seem to really support it; they are among the numerous accidental outcomes of harsh drug penalties (MacCoun & Reuter, 2001). MacCoun (1993) asserted that lack of knowledge regarding the enormity of each these outcomes- in particular at the legal-illegal threshold—prevented any certain inferences about whether legalization would affect drug use and reoffending, much less the scale of any escalation. But from 1993 thereon, a number of different new substantiation strengthens the common perception (Goetz & Mitchell, 2006). Despite of some negative influences, the net outcome of legalization would nearly definitely be a significant boost in the pervasiveness of drug use and reoffending (Goetz & Mitchell, 2006). Granted, that premise barely explains the debate. For beginners, there is a lack of reliable support for determining whether that ‘significant’ boost is 10 or 1,000 percent, but it can probably be classified in that broad range (MacCoun & Reuter, 2001, 72). Current studies have transcended these qualitative claims, trying to offer point inferences regarding the scale of growth. For those who view drug use and reoffending as essentially negative, a forecast of escalated use and reoffending presents an adequate case against reduction of harsh drug penalties (Harrell & Roman, 2001). On the contrary, there are those who think matters are not that simple; a great deal depends on what percentage of the new users will develop into habitual heavy users, in contrast to sporadic recreational users (Harrell & Roman, 2001). A remarkable minority of users is gravely damaged by their use, or inflicts damage to others, but, some harms stemming from any person’s repeated use could dwindle (MacCoun & Reuter, 2001). Hence, the major consequentialist guideline issue, though not limited to this, is whether, despite of escalations in use, there would be a significant decrease or increase in drug-related offenses (MacCoun & Reuter, 2001). Therefore, this study aims to analyze the possible effect of the reduction of harsh drug penalties or prison sentences to drug use and reoffending. The influences of drug penalties on drug use and drug-related offenses are significantly more vague and complicated than is commonly recognized by supporters on either side of the debate. The present status of knowledge, based on my analysis of research studying insignificant differences in enforcement levels within a drug prohibition system, does not offer a support for predicting the repercussions of abandoning that system altogether. There are quite numerous indefinites to forecast the effects of reduction of harsh drug penalties with any particularity, and supporters on either party who argue otherwise should be welcomed with constructive uncertainty. Literature Review The harm that drugs cause is a role not just of the number of users but among other things of the amount they spend, the quantity they consume, and the form and conditions of sales and consumption (American Criminal Law Review, 1999). For instance, it is the generated income by drug sales instead of the quantity consumed that identifies many of the setbacks related to drug markets (Goetz & Mitchell, 2006). Certainly, higher consumption at cheaper costs may trim down dealer revenues and associated violence. Likewise, the truth that heroin is normally injected, somewhat a role of its extremely high price, instead of being smoked or snorted is the key factor connecting heroin consumption and HIV (Spohn, Piper, Martin & Frenzel, 2001); many heroin smokers could create less damage than a few injectors (Spohn et al., 2001). All these detrimental effects are affected by legal sanctioning or punishment, specifically enforcement. This section reviews and reveals that relationship. Deterrence Theory Deterrence theory, as argued by various scholars, is rational choice theory as exercised to the choice to commit crimes (Harrell & Roman, 2001). It is derived in Jeremy Bentham and Cesare Beccaria’s political philosophy, who argued that human nature was basically self-gratifying, so that offense or crime will be encouraged by possible gains but prevented by the possibility of definite, immediate, and severe punishment (Spohn et al., 2001). Regardless of its function in providing incapacitation or retribution, severe prison sentences or punishments should deter other possible criminals from taking part in criminal activities and deter the criminal from reoffending upon release (Harrell & Roman, 2001). Contemporary deterrence theory is an application of the framework of rational choice, originated in utilitarianism of Bentham, which is quite prominent in modern economics. Rational choice assumptions assert that individuals rationally choose those activities that will maximize their anticipated value (American Criminal Law Review, 1999). Deterrence theories hence suggest that an individual will take part in a criminal activity whenever its anticipated value goes beyond that of the most advantageous alternative. The anticipated value of the crime is directly related to the benefits from successful completion of the offense enhanced by the arbitrary chances of gaining those benefits and indirectly related to the costs of prison sentences or legal sanctioning if the individual gets caught, enhanced by the arbitrary chances of legal sanctioning (American Criminal Law Review, 1999). The latter two factors are usually called certainty and severity of prison sentences and function as the main emphasis of most deterrence studies (MacCoun & Reuter, 2001). The implication of deterrence theory for the drug law debate is evident; all other things being equal, if legalization or depenalization were to lessen the harshness of, or even remove, legal sanctions, the outcome should be a boost in the anticipated value of drug use and, thus, a boost in the pervasiveness of drug use (Spohn et al., 2001). Many of the well-thought out analyses of deterrence theory have explored the outcomes of legal sanctions against drunk driving, an offense perhaps of greater significance to the drug law debate than the vicious or property offenses more commonly studied (Spohn et al., 2001). Paradoxically, policies that are based on severity seem to weaken the firmness of punishment. The ‘all other things being equal’ judgment of deterrence theory is challenged by the mechanisms of the criminal justice system, whose players have significant privilege to respond in ways that weaken the objective of official policies (Goetz & Mitchell, 2006). This predisposition has been determined quite transparently for policies that enhance the severity of prison sentences (Goetz & Mitchell, 2001). Primarily, defendants are more forceful in challenging the accusations. Following the adoption of New York of a stern drug sentencing policy in 1973, the number of defendants appealing for trial swelled from ‘6 percent to 15 percent’ (MacCoun & Reuter, 2001, 79). Comparable responses have pursued state and local attempts to enhance drunk driving sanctions and in the aftermath of the ‘Three Strikes’ policy of California in 1994 (Auerhahn, 2004). Also, different players in the criminal justice system implicitly work together to avoid enforcing more severe penalties. ‘Mandatory’ sanctions are undermined by prosecutors during petition negotiation and by adjudicators during the sentencing (Goetz & Mitchell, 2006). And as punishments become harsher, judges and jurors are quicker to exonerate defendants (American Criminal Law Review, 1999); this clemency has been noticed following reforms in drug penalties and drunk driving decrees and enforcement of California’s Three Strikes policy (Auerhahn, 2004). Since the certainty element seems to have a better deterrent effect than the severity element, these strategies may in fact diminish the general deterrent outcomes of the law (Goetz & Mitchell, 2006). Perceptual Deterrence Studies Ross (1982 as cited in MacCoun & Reuter, 2001) infers that the outcomes of drunk driving onslaughts and other interventions that are based on deterrence might be ‘short-lived-fading out’ (p. 80) immediately following their lost of transitory relevance tendered by media exposure. This highlights the argument that deterrence assumption is a perceptual assumption, a theory of how the perceptions of individuals of threats and rewards stimulate decisions. Legislators can merely affect perceived punishments indirectly, by regulation actual punishments and possibly by making use of publicity to intensify or overstate those perceptions (Spohn et al., 2001). Law and enforcement policy information is disseminated through personal experience, interpersonal media, and the mass media. Due to the fact that laws and enforcement policies could not be enforced as written or planned, the general public could receive varied threat indicators (Spohn et al., 2001). A case in point could be the separation between ‘federal ‘zero tolerance’ rhetoric and state and local tolerance of marijuana possession’ (MacCoun & Reuter, 2001, 80). Once social diffusion undermines or deforms legal risk information, attempts to attain general deterrence are perhaps more like thrusting a string than obtaining a whip-modest advantage demand a great deal of effort (Harrell & Roman, 2001). The connection between behavior and actual punishments or sanctions is only as well-built as the midway connection—the arbitrary perception of risk (Harrell & Roman, 2001). Once the relationship between crime rates and legal sanctioning is identified to be feeble or defective at the aggregate point, the feebleness might depend on the connection between enforcement and perception, the connection between perception and behavior, or both (Harrell & Roman, 2001). Inadequate Deterrence and Rationality Anticipated legal risks have an effect on decisions, but their influences are significantly more silenced than commonly inferred. Part of the dilemma is that individuals simply do not seem to merge information in the way prescribed by rational choice assumptions (Goetz & Mitchell, 2006). For instance, Carroll (1978 as cited in MacCoun & Reuter, 2001) discovered that when analyzing hypothetical crime chances, a small number of juvenile and adult offenders concentrated on more than one of the major deterrence components: ‘probability of success, amount of gain, probability of capture, and size of penalty’ (p. 81). And the components that matter are more prone to include carrots than sticks (Carroll, 1978). Investigations comparing the comparative effect of the risks and rewards of crime indicate that criminal rewards are more powerful than sanctions, and the probability of success is more powerful than the probability of being caught (Auerhahn, 2004). Unluckily, none of these investigations analyzed drug use and reoffending. But the anticipated gains of drug use are somewhat known. Individuals use drugs for arousal, recreation, personal exploration, escape, or, in the context of addiction, the termination of withdrawal indications (Auerhahn, 2004). Obviously, these effects do not tempt or attract everyone. In public surveys, those who do not use drugs are much more likely to point out ‘not interested’ than ‘fear of legal reprisals’ (MacCoun & Reuter, 2001, 81) as the main rationale of their nonuse. One reason rewards or gain commonly appear greater than risks is that rewards have a tendency to be quick, while punishments or legal sanctions are not just indecisive but also in the far-off future (Spohn et al., 2001). Offenders are especially vulnerable to recklessness and an incapability of delaying pleasure. This indicates that the rapidity of punishment should fulfill an essential function in the deterrence course (MacCoun, 1993). Not much is known about the impacts of punishment rapidity, but extant studies provide varied substantiation (MacCoun, 1993). In an effort to prevent drunk driving, several communities have improved the swiftness of punishment by using administrative instead of criminal penalties such as confiscating drivers’ licenses once they decline or fail to take ‘blood-alcohol level tests’ (Harrell & Roman, 2001, 208). There are confines to the capability of the criminal justice system in exacting punishment for drug-related crimes quickly enough to offset impulsivity impacts without seriously limiting civil liberties (American Criminal Law Review, 1999). This is not to claim that prospective drug users are generally resistant to the risks of their behaviors and actions. Believed health risks could be more powerful than legal threats (Spohn et al., 2001). Schelling (1992 as cited in MacCoun & Reuter, 2001) revealed the exceptional function that health information has fulfilled in bringing about a remarkable decrease in smoking in the United States, a phenomenon that took place well in advance of any determined activation of the law force. Bachman and colleagues (1990 as cited in MacCoun & Reuter, 2001) provided evidence that a growth in health-related issues fulfilled a key function in the decrease in drug consumption among high school students in the 1980s. When individuals justify about rewards and risks, it is apparent that they do not constantly do so according to the orders of anticipated value assumption. But the rational choice framework is also impractical in its premise that behaviors and actions are automatically justified at all (Auerhahn, 2004). Similar to many behaviors, recurrent drug consumption and reoffending comes under the command of unconscious cognitive and physiological effects. Certainly, it is startlingly complicated to draw a rigid distinction between psychological and physiological mechanisms of addiction (Spohn et al., 2001). A range of processes can affect behavior in the lack of clear reasoning, ranging from extremely low-level neurological processes to higher-level cognitive mechanism (MacCoun, 1993). A process at the higher point of the range is the self-concept. Many individuals may in no way bother to think about the rewards and risk of drug use and reoffending because they essentially assume that drug consumption does not complement their self-concept (MacCoun, 1993): “I’m not that kind of person” (MacCoun, 1993, 505). At a lower point are involuntary cognitive ‘scripts’, such as for playing a guitar or operating a car, well-practiced processes that in due course run more or less independently with minor conscious initiation or attention (Carroll, 1978). Lower still are oriented or conditioned reactions, which are revealed to play a key role in the growth of drug addiction. For instance, users frequently learn to experience pining for a drug in the face of environmental prompts that have been often combined with the drug once (Carroll, 1978). Apparently, this craving process is not distinct to psychoactive drugs, as ex-smokers, dieters, and dogs of Pavlov have all found out (MacCoun, 1993). Hypothesis/Problem Statement This study attempts to determine if legalization or reduction of harsh prison sentences or penalties for drug-related offenses will increase drug use and reoffending. Hence, the study attempts to answer the following research questions: 1. I hypothesize that if harsh prison sentences or the aggressive enforcement levels of drug prohibitions in contemporary America will be loosened, drug consumption and drug-related offenses will rise. 2. I hypothesize that significantly reduced user sanctions have qualitative varied effects than adjustments in the legal position of drug production and sales. 3. I hypothesize that citizens perceive prison sentences or legal sanctions quite accurately. 4. I hypothesize that perceived probability of capture or harsh punishment deters drug use and drug-related offense. Definition of Terms The following definitions are important to the context of this study. 1. Legalization- the reduction of punishment severity for drug use and drug-related offenses 2. Reoffending- recurrent commitment of drug-related offenses 3. Legal sanctions- penalties or prison sentences for drug use and drug-related offenses 4. Consequentialist- those who believe that the consequences of a behavior or action form the foundation for any reasonable moral opinion about that action 6. Deterrence- actions of the state to prevent violent or hostile behaviors or activities. References Auerhahn, K. (2004). Californias Incarcerated Drug Offender Population, Yesterday, Today, and Tomorrow: Evaluating the War on Drugs and Proposition 36. Journal of Drug Issues , 95+. Goetz, B. & Mitchell, R.E. (2006). Pre-arrest/booking Drug Control Strategies: Diversion to Treatment, Harm Reduction and Police Involvement. Contemporary Drug Problems , 473+. Harrell, A. & Roman, J. (2001). Reducing Drug Use and Crime among Offenders: The Impact of Graduated Sanctions. Journal of Drug Issues , 207+. MacCoun, R.J. & Reuter, P. (2001). Drug War Heresies: Learning from Other Vices, Times, and Places. Cambridge, England: Cambridge University Press. Mandatory Minimums in Drug Sentencing: A Valuable Weapon in the War on Drugs or a Handcuff on Judicial Discretion. (1999). American Criminal Law Review , 1279. Spohn, C., Piper, R.K., Martin, T. & Frenzel, E.D. (2001). Drug Courts and Recidivism: the Results of an Evaluation Using Two Comparison Groups and Multiple Indicators of Recidivism. Journal of Drug Issues , 149+. Secondary References Bachman, J.G., Johnston, L.D. & OMalley, P.M. (1990). Explaining the recent decline in cocaine use among young adults: Further evidence that perceived risks and disapproval lead to reduced drug use. Journal of Health and Social Behavior , 173-84. Carroll, J. (1978). A psychological approach to deterrence: The evaluation of crime opportunities. Journal of Personality and Social Psychology , 1512-20. MacCoun, R. (1993). Drugs and the law: A psychological analysis of drug prohibition. Psychological Bulletin , 497-512. Ross, H. (1982). Deterring the drinking driver- legal policy and social control. Lexington, MA: Lexington Books, Heath. Schelling, T. (1992). Addictive drugs: The cigarette experience. Science , 430-3. Read More