Yesterday the Massachusetts Legislature took a long-overdue vote, repealing a 27-year-old law that mandated drivers’ license suspension for drug offenses even when there was no connection to operation of a car. That era was full of legislation and policies motivated by the notion that we must “send a message” about drugs. If my memory is accurate (and give me a break, I was finishing law school and wondering how I was going to pass the bar when my friends and I could not sit through more than about an hour of the preparation classes before making a jailbreak and sprinting to Chinatown to drown our frustration in cheap food and alcohol) the old guard in government was up in arms about disdain for the drug laws, but they had to move away from using the criminal justice system to deal with possession of small amounts. Even the most conservative politicians had kids whose futures were jeopardized by a drug possession charge.
So we got relaxed criminal sanctions; a first-time charge for possession of less than an ounce of marijuana brought a mandatory sentence: the case would be continued without a finding, but with a nasty suspension of the driver’s license. The judge had no control over the suspension; the court clerk was obligated to mail a copy of the docket sheet to the Registry. (Amusing note, I represented a group of recovered heroin addicts who engaged in then-illegal needle exchange. I vented my frustration to the court clerk about having to try a needle-possession charge because my client couldn’t plead to the offense and take the license suspension. The clerk, who knew the value of needle-exchange programs, made it clear that the docket sheet was never going to get mailed to the Registry. Phew.)
We also got workplace drug testing, which sent recreational drug users into fits. It wasn’t fair. Urine testing would reveal that you had used drugs at an undefined time in the past, with no regard for whether you had been impaired at the job. Suddenly Big Brother was forcing people to either give up drugs or risk their job, which was exactly what the proponents of drug testing wanted. They were, by gum, going to send a message to those irresponsible partyers. Maybe they wouldn’t go to jail, but they’d get fired.
The pendulum is swinging the other way, thank goodness. Although most of the chatter seems focused on a desire to be compassionate about the disease of addiction, I hope that this effort signals a growing understanding that people do not make decisions about recreational drug use based on potentially harsh criminal sanction when the risk of detection is low (and once addicted, the user isn’t making decisions at all). Administrative sanctions, not to mention onerous fines and fees, do more harm than good– if they can be said to to any good at all. Someone in the movie industry (apparently it wasn’t Samuel Goldwyn) said that if you want to send a message, use Western Union. In any event, don’t try legislation for messaging.