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Florida Drug Law Reform - Open Letter To Florida Today

An Article By Terence T. Gorski
GORSKI-CENAPS Web Publications
www.tgorski.com
Published On: <DATE>          Updated On: April 13, 2002
© Terence T. Gorski, 2001

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An Open Letter To Florida Today
www.flatoday.com

I read with great interest an article by the guest columnist Calvina Fay
who is the Executive Director of the Drug Free America Foundation, 
Inc., St. Petersburg. (See Appendix #1 to review this article.) 

I was disappointed that Florida Today failed to cross check the description of the proposed legislation "Right To Treatment and Rehabilitation for Nonviolent Drug Offenders" before publishing this article (see Appendix 2: for actual text of the legislation).

Many of the points that the author made in this article are inaccurate and do not represent what is stated in the actual legislation. I was surprised that a publication of this quality would lower itself to publish "drug war scare tactics" that are based upon groundless rhetoric, misrepresent the facts, and make generalized statements without confirming details." 

I would appreciate an opportunity to publish a well reasoned alternative opinion and response to this article. 

I have been involved in the treatment of drug abusers for over thirty years. I currently consult to drug abuse programs in both the public and private sector. I have done extensive consultation with treatment providers in both California and Arizona helping them to appropriately respond Proposition 36 and Proposition 200, which are similar in intent to the currently proposed Florida Legislation. 

Here are my concerns:

1.    Ms. Fay presents this as "a drug legalization initiative." This is blatant misinformation. This is "sentencing reform legislation" aimed at providing more effective responses in the sentencing phase for nonviolent drug offenders convicted of personal possession or use. No drug law is changed by this proposed legislation.

2.    Ms. Fay suggests that "three wealthy out-of-state businessmen" will bring "big bucks" into Florida to amend our constitution. She fails to name these businessmen nor quantify the amount of money that they will invest in promoting this legislation. 

3.    Ms. Faye states that "This initiative violates fundamental principles of the American Justice System which is based upon the sound principle that meaningful and negative consequences should be imposed for criminal wrong doing." There are several problems here: First, the American Justice System has a long history of offering treatment alternatives to incarceration for nonviolent drug offenders that dates back to the early 1970s; Second, this legislation calls for immediate and appropriate consequences in the form of immediate entry into highly accountable drug treatment and a procedure for declaring nonparticipating offenders a "unamenable to treatment" which will result in prosecution and criminal penalties; and Third, there is conclusive evidence that highly accountable and closely monitored drug treatment is more effective than punishment in deterring both future drug use and future crime.

4.    Ms. Faye states that this legislation will "eliminate meaningful restrictions on potentially dangerous drug abusers and other offenders." First, the statement referring to "other offenders" is inaccurate and misleading. The legislation does not apply to any offense except personal possession and personal use of controlled substances. If possession and use coexists with any other criminal act, the offender will not be eligible for treatment under this legislation. Second, there is no evidence that nonviolent drug abusers arrested for personal possession and use are likely to continue to commit crimes if they get into drug treatment and off of drugs. The opposite is true. Once offenders get into drug treatment, other criminal activities are eliminated or significantly reduced. If they are imprisoned without treatment they are educated by hard core criminals in the institution, stigmatized as a ex-con, and released to the community with stigma that prevents employment, creates high relapse potential to addictive drug use because they received no treatment, and gives them a new network of hard core criminal contacts who can and will initiate them into forms of more serious and dangerous crime.

5.    Ms. Fay states that this legislation "removes the leverage that we need to shepherd addicts through successful treatment," This is not true, because as stated before, treatment providers in conjunction with drug courts can declare uncooperative offenders as unamenable to treatment and hold them accountable to criminal sanctions for their possession and use.

6.    Ms. Fay then states that this legislation promotes "a constitutional right to treatment and rehabilitation" for drug addiction. This is correct and is appropriate. Drug addiction is a brain disease. There are well documented studies published by the National Institute of Drug Abuse (NIDA), the National Institute on Alcohol Abuse and Alcoholism (NIAAA), and the American Society On Addiction Medicine (ASAM) which confirm the underlying biological changes in the brain that set up craving and compulsive use. Addicts are sick people who need treatment. They are not bad people who need to be punished. Punishment alone will not stop addicts from using alcohol or drugs. Treatment alone will not motivate addicts to initiate and maintain treatment. The solution lies in a collaboration between enforcement that can motivate involvement in no-nonsense treatment, and treatment which can teach clients the skills and lifestyle changes to get abstinent and to stay that way.

7.    Ms. Fay states that "this constitutional amendment will gut judicial authority completely on fist and second offenses and will destroy our effective drug courts." This is an exaggeration. Judicial authority will be maintained through referral and accountability for treatment completion. The ability to declare offenders unamenable to treatment becomes a big stick that can be used to keep people involved in treatment. Drug courts can and should become a central component in implementing this legislation. In Arizona Drug Courts have not been destroyed. They have worked with parole, probation, and drug court case managers to come up with effective sanctions other than incarceration that can be used to motivate ongoing treatment compliance. These sanctions are proving as effective or more effective at keeping offenders in treatment than the all or nothing threat of long-term imprisonment.

8.    Ms. Fay is also concerned that this legislation can provide "loop holes for drug dealers and distributors." Obviously Ms. Fay does not understand how the drug trade work. Eighty-five percent of all drug dealers are addicts who distribute small amounts to their friends to get money to maintain their habits. These addicted small time distributors are the major target of the drug war. Few big time dealers are ever arrested or prosecuted. People who deal drugs to get money to feed their addiction will stop dealing drugs when they get clean and sober. Treatment makes this possible. 

This is not perfect legislation, but no legislation ever is. It's time for all citizens who are concerned about effectively managing the nation's drug abuse problem to come together and collaboratively explore and openly debate alternatives. We need to find better and more effective ways of managing the epidemic of alcoholism and other drug addictions. 

This legislation can and should be improved. The scare tactic approach based upon misinformation that was presented by Ms. Fay as a representative of the Drug Free America Foundation Inc. in St. Petersburg does not reflect well upon her or her foundation. Their website contains a lot of useful information. I am hopeful that this article represents an accidental lapse in poorly formulated rhetoric rather than their standard operating policy.

Appendix #1:  Second Of Four Guest Columns

OUTSIDERS TARGET STATE WITH DRUG SCAM
By Calvina Fay, Executive Director
Drug Free America Foundation (www.dfaf.org)

Big bucks from outsiders will soon pour into our state to fund a drug legalization initiative titled "Right to Treatment and Rehabilitation for Nonviolent Drug Offenses."

The ballot initiative, which amends our state Constitution, will be funded by three wealthy out-of-state businessmen.

This initiative violates fundamental principles of the American system of justice, which is based upon the sound principle that a meaningful and negative consequence should be imposed for criminal wrongdoing.

It entirely eliminates any negative consequences for those convicted -- not once but, twice -- of possessing or purchasing drugs. This includes all illegal drugs such as heroin, LSD, cocaine, PCP, crack cocaine, marijuana, and Ecstasy. It eliminates punishment for misdemeanor and felony offenses.

The proposed amendment eliminates all deterrent effects that the criminal statutes are designed to achieve.

It eliminates meaningful restrictions on potentially dangerous drug abusers and other offenders, which could otherwise prevent them from influencing or victimizing others by their ongoing criminal conduct. And, it removes the leverage that we need to shepherd addicts through successful treatment.

This proposed ballot initiative provides a constitutional right "to treatment and rehabilitation." When compared to the important rights which have traditionally been granted constitutional protection, extending a "right" to treatment and rehabilitation for those convicted or charged with possessing or purchasing illegal drugs is a radical and outlandish concept.

By no stretch of the imagination does a so-called "right" to treatment and rehabilitation rise to the level of an entitlement worthy of constitutional protection.

The drafters of the proposed amendment are attempting to create an exclusive right that may only be enjoyed by convicted criminals.

This constitutional amendment guts judicial authority completely on first and second offenses and will destroy our effective drug courts.  Further, it specifically states that a judge may allow a criminal convicted of multiple offenses to elect to receive treatment rather than incarceration or even sentencing.

One can only speculate how many times a person can be "rehabilitated" under this system. This initiative provides a ready loophole for drug dealers and distributors. By making a large number of small purchases and arguing that they were not made as part of "the same criminal episode," they could assert their "right" to treatment.

Finally, this constitutional amendment, if enacted, will foster complex and costly litigation over the meaning of its terms because  it is full of critical phrases which are not clearly defined. And, in the end it will be hardworking, law-abiding Floridians who will pay for this debacle.

Appendix #2: Text of Legislation

Florida Drug Reform 2001 - Text of Proposed Legislation
Go To Text of Legislation On State of Florida Website
(http://election.dos.state.fl.us/initiatives/fulltext/34424-1.htm)
Reference: Article I, Section 26 Ballot Title: Right to Treatment and Rehabilitation†
for Nonviolent Drug Offenses
Ballot Summary:
Individuals charged or convicted of possessing or purchasing controlled substances or drug paraphernalia may elect appropriate treatment as defined, instead of sentencing or incarceration, for first two offenses; discretionary with court thereafter. Excludes individuals committing serious crimes in same episode or convicted or in prison for violent crimes in past five years. Individual unamenable to treatment may be prosecuted or sentenced. Upon successful completion or eighteen months in treatment, no prosecution or sentencing. Legislative implementation.
Full Text:
Article I, Section 26, Florida Constitution, is hereby created to read as follows:
Right to Treatment and Rehabilitation
a. Any individual charged with or convicted of illegally possessing or purchasing a controlled substance or drug paraphernalia may elect to receive appropriate treatment as described in subsection (c), instead of being sentenced or incarcerated, which shall be a matter of right for the first and second offense after enactment of this section and at the discretion of the court for subsequent offenses. If more than one qualifying offense under this section occurs during a single criminal episode, it shall be considered a single offense. For purposes of this section, an individual who elects to receive appropriate treatment prior to conviction shall be deemed to have waived the right to a speedy trial.
b. This section shall not apply to any individual who in connection with the same criminal episode as the drug offense described in (a) is also charged with or convicted of:†
∑ any felony; any misdemeanor involving theft, violence or the threat of violence;†
∑ trafficking, sale, manufacture, or delivery of a controlled substance;†
∑ purchase or possession with intent to sell, manufacture, or deliver a controlled substance or drug paraphernalia; or†
∑ operating a vehicle under the influence of alcohol or a controlled substance. †
This section also shall not apply to any individual who, within five years before committing the drug offense described in (a), ∑ has been convicted of, or in prison for, one of the serious or violent crimes described in Section 775.084(1)(c)1.a.-r., Florida Statutes (2000), or such other violent crimes as may be provided by law. c. For purposes of this section, "appropriate treatment" means a state-approved drug treatment and/or rehabilitation treatment program, or set of programs, designed to reduce or eliminate substance abuse or drug dependency and to increase employability. †
Such program or programs shall include, as deemed appropriate, access to vocational training, literacy training, family counseling, mental health services, or similar support services. †
The determination of the type and duration of the appropriate treatment program or programs that an individual shall receive, and methods of monitoring the individualís progress while in treatment, shall be made by a qualified professional as defined in Section 397.311(25), Florida Statutes (2000).d. An individual receiving appropriate treatment under this section may be transferred to a different program due to violations of program rules or unsuitability to the form of treatment initially prescribed
An individual may be removed from appropriate treatment if, after multiple programs and violations, and upon an independent evaluation by a qualified professional as defined in Section 397.311(25), Florida Statutes (2000), the individual is found by the court to be unamenable to treatment and rehabilitation. †
Any such individual removed from appropriate treatment who has been convicted of the drug offense described in (a) may be sentenced for the offense. †
Prosecution may be recommenced against any individual removed from appropriate treatment who has not yet been convicted, and a conviction resulting from such prosecution may result in a criminal sentence without regard to this section.
e. Appropriate treatment shall be terminated upon an individualís successful completion of the prescribed course of appropriate treatment, or upon an independent evaluation and finding by a qualified professional as defined in Section 397.311(25), Florida Statutes (2000), that an individualís appropriate treatment has been successful, or eighteen months after the date the individual elected to receive appropriate treatment, whichever occurs first. † Upon termination of appropriate treatment, the individual may not be prosecuted, sentenced, or placed under continued court supervision for the offense which led to the appropriate treatment.
f. This section shall become effective on July 1 of the year following passage by the voters, and shall apply prospectively only to qualifying drug offenses occurring on or after that date.
g. The Legislature shall enact such laws as necessary to implement this section.
Go To Text of Legislation On State of Florida Website

( http://election.dos.state.fl.us/initiatives/fulltext/34424-1.htm )

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About the Author

Terence T. Gorski is internationally recognized for his contributions to Relapse Prevention Therapy. The scope of his work, however, extends far beyond this. A skilled cognitive behavioral therapist with extensive training in experiential therapies, Gorski has broad-based experience and expertise in the chemical dependency, behavioral health, and criminal justice fields.

To make his ideas and methods more available, Gorski opened The CENAPS Corporation, a private training and consultation firm of founded in 1982.  CENAPS is committed to providing the most advanced training and consultation in the chemical dependency and behavioral health fields.

Gorski has also developed skills training workshops and a series of low-cost book, workbooks, pamphlets, audio and videotapes. He also works with a team of trainers and consultants who can assist individuals and programs to utilize his ideas and methods.
Terry Gorski is available for personal and program consultation, lecturing, and clinical skills training workshops. He also routinely schedules workshops, executive briefings, and personal growth experiences for clinicians, program managers, and policymakers.

Mr. Gorski holds a B.A. degree in psychology and sociology from Northeastern Illinois University and an M.A. degree from Webster's College in St. Louis, Missouri.  He is a Senior Certified Addiction Counselor In Illinois.  He is a prolific author who has published numerous books, pamphlets and articles.  Mr. Gorski routinely makes himself available for interviews, public presentations, and consultant.  He has presented lectures and conducted workshops in the U.S., Canada, and Europe.  

For books, audio, and video tapes written and recommended by Terry Gorski contact: Herald House - Independence Press, P.O. Box 390 Independence, MO 64055.  Telephone: 816-521-3015 0r 1-800-767-8181.  His publication website is www.relapse.org.

Terry Gorski and Other Members of the GORSKI-CENAPS Team Are Available To Train & Consult On Areas Related To Addiction, Recovery, & Relapse Prevention
Gorski - CENAPS, 17900 Dixie Hwy, Homewood, IL 60430, 708-799-5000 www.tgorski.com, www.cenaps.com, www.relapse.org

This article is copyrighted by Terence To Gorski.  Permission is given to reproduce this article if the following conditions are met:  (1) The authorship of the article is properly referenced and the internet address is given;  (2) All references to the following three websites are retained when the article is reproduced - www.tgorski.com, www.cenaps.com, www.relapse.org, www.relapse.net; (3) If the article is published on a website a reciprocal link to the four websites listed under point two is provided on the website publishing the article.
 

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