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Non-violent drug offenders need help, not felony records

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Arizona’s supposedly “tough on crime” prosecutors would have the public believe that their aggressive charging and sentencing of nonviolent drug users is necessary to keep us safe. Nowhere was that more evident recently than in the August 31 Arizona Daily Star article, “Pima County attorney, public defender spar over prosecutions of drug users,” with elected prosecutor Barbara LaWall defending her office’s high rate of prosecuting drug users.

David Safavian

David Safavian

LaWall, a vocal opponent of criminal justice reform, is focusing a great deal of her office’s resources on low level and nonviolent drug offenses. Fully 70% of the felony drug charges filed by Pima County involve possession of less than two grams of drugs. These small amounts hardly indicate drug kingpins. To the extent that any sales are going on in these cases, it is far more likely that users are selling to friends to support their habit.

People who use and sell drugs must be held accountable. But Barbara LaWall clings to the belief that sending these people to prison and branding them felons for life will somehow cut crime and reduce overdose deaths in Arizona. And LaWall is hardly alone; former Maricopa County Attorney Bill Montgomery made a career out of sending low-level drug offenders to prison. He, too, suggested that these people must be imprisoned in order to keep us safe to justify his role in sending more people to prison for drug crimes than all violent offenses combined.

But facts are stubborn things.

If LaWall and Montgomery are correct that prison for drug users is necessary to protect Arizona communities, then the state’s crime rate should be falling faster than states such as Utah, Texas, and Georgia, where smart sentencing has taken hold and incarceration rates have dropped.

But that is not the case. While crime has generally fallen over the past two decades, violent crime has fallen twice as fast in 32 other states as it has in Arizona. Notably, those states have also simultaneously reduced their imprisonment rate.

In fact, charging these people with felonies and sending them to prison doesn’t make Arizona communities safer.  Nor does such an approach serve the interests of taxpayers. All it does is keep Arizona’s imprisonment rate – fifth in the nation – unnecessarily high.

We know from clear and overwhelming data analyses that sentencing policies have a point of diminishing returns. And Arizona is far past that point. In an important study last year, The Pew Charitable Trusts examined whether imprisonment for drug offenses had improved three important public safety metrics: drug use, drug arrest, and overdose death. The landmark study found that  “higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.”

For anyone outside of the prosecutorial bubble, LaWall’s approach has another consequence. It increases crime. Why? If you lock a non-violent offender up with a violent one, who is going to come out looking more like the other?  The answer is obvious. By sending low-level drug offenders to prison, LaWall increases their likelihood to reoffend. This makes everyone less safe, not more.

In 2007, Texas figured this out and turned to alternatives to prison such as substance abuse treatment beds and drug courts. As a direct result, Texas has closed eight prisons, cut recidivism, and saved taxpayers billions of dollars. And its crime rate dropped to 1967 levels along the way. Texans are safer while fewer people are behind bars.

The Lone Star State is not alone. Other red (and blue) states have embraced diversion and treatment instead of incarceration to reduce overdoses and cut recidivism, a significant driver of crime. Even tough-on-crime Utah and Oklahoma did away with simple possession of drugs as a felony and put savings toward addiction treatment, victim services, and violent crime task forces.

By clinging to outdated and incorrect approaches to the drug problem, prosecutors like Barbara LaWall waste scarce resources while doing little to actually fix the drivers of crime.

The irony is that LaWall apparently knows that what she’s doing isn’t working and is making excuses for her failure.  “The bottom line is, drug addiction is a societal problem,” she said. “It goes way beyond what prosecutors are authorized, funded and able to do.”

Maybe it’s time for prosecutors like LaWall to stop defending the status quo and embrace a more effective justice system based on data and evidence. It has worked in Texas, Utah, Georgia and 29 other states. And unless Arizonans are somehow more crime-prone than the rest of the country, it will work here, too.

David Safavian is general counsel for the American Conservative Union Foundation.

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