Felonious Bunk: Punishment can’t solve complex social problems and decriminalization might not go far enough

Last November a ballot measure approved by Oregon voters decriminalized the possession of small amounts of heroin, LSD, methamphetamine, oxycodone and cocaine. The Oregon initiative did not legalize the use of hard drugs, it just ended the practice of destroying drug users’ lives to save them. Instead, citizens found in possession of these drugs face a small fine and possible recommendation to health assessments and drug counseling. In a creative policy twist, the measure diverts tax revenue funds from legalized marijuana sales to addiction recovery centers.

In Rhode Island, possession for these drugs is a felony, punishable by up to three years in prison and a $5,000 fine. A bill recently introduced in the House by Rep. Camille Vell-Wilkinson (D, District 21, Warwick) would have amended the Uniform Controlled Substances Act to reclassify simple possession of up to an ounce of schedule I through IV controlled substances as misdemeanors. On March 9, the bill failed to move out of the House Judiciary Committee and was left to languish with all the other bills held for further study. 

Legislation submitted in the RI Senate goes further, making drug possession a civil violation accompanied by a $100 fine. Violators would be subject to drug counseling and community service and must forfeit the controlled substance to law enforcement. The bill was referred to the Senate Judiciary and has yet to be scheduled for a hearing.

“Criminalizing drug use and drug dependence disorders haven’t worked. We need to start focusing on solutions to the problems at hand, through medicine and behavioral health supports and programs,” said Senator Tiara Mack (D, District 6, Providence), one of six sponsors on the bill. “Jails disappear people and not problems. The goal of this bill is to work toward eliminating problems in our community.”

According to the Rhode Island Department of Corrections, the state spent $206.7 million in 2019 to house more than 7,000 prisoners, averaging about $77,500 per inmate. That’s more than three times what the state spends on education per pupil, according to RIDE. 

Dr. Natalie Pifer, assistant professor of criminology and criminal justice at the University of Rhode Island, said decades of research data has shown that long-standing policies to incarcerate drug offenders have gone off the rails, part of a general over-reliance on law enforcement to combat social ills they are unequipped to tackle.

“America has attempted to punish its way out of a host of social problems. We saw that very clearly during the height of the war on drugs,” she said. “It’s not an effective policy to solve the dilemma of drug misuse.” 

The racial disparities are clear, said Pifer. From first contact with police through the socially and economically debilitating gamut of the court system, people of color experience disproportionately negative outcomes.

“There is disparity in the system. People of color, in particular Black men, are over-represented throughout the system in comparison to their representation in the overall population,” she added. “This trend in the data holds for pretty much every level of contact with the criminal justice system.”

Rhode Island’s chief law enforcement official, Attorney General Peter Neronha, previously issued a statement of support for similar legislation introduced by Sen. Majority Leader Michael McCaffrey. McCaffrey’s bill would reclassify simple possessions of up to 10 grams as a misdemeanor. 

“I do not believe that simple drug possession is felony conduct,” said Neronha.

However, to continue to arrest people for holding and charging them with a lesser crime may not be enough. The bulk of criminal cases are misdemeanors. 

“Felonies are a much smaller piece [of the overall number of crimes processed by the system each year],” said Pifer. “Having a misdemeanor can trigger a number of collateral consequences beyond just the experience of arrest, prosecution and punishment for yourself and your family. The data shows that people that have contact with the system, and particularly those with a criminal record, have challenges re-entering society.”

Because social scientists use both data and theory to attempt to explain complex intersecting issues, Pifer cautioned against an overemphasis on sentencing reform to solve the problem. That is one important piece and long overdue, she said. But the failures are systemic. 

“The story of mass incarceration and mass supervision is not just about our sentencing and punishment laws. It’s about the entire criminal justice system and how each piece of it decides to use its responsibility and power,” she said. “There is a difference between decriminalization and legalization. Many criminologists are very concerned about decriminalization becoming the be-all-end-all solution. Because you are still exposing folks to the criminal justice system.”

This is the mass exposure that Mack and her allies are trying to prevent.  

Mack explained, “Many folks jump to criminalization because that is what our current system is built for. We have to unlearn these social problems as criminal problems and it starts with shifting to a more holistic understanding of the problem at hand.”