Call Western Union!

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.



Author: Lowry Heussler

Lowry Heussler is a lawyer from Cambridge, Massachusetts. Having participated in the RBC as a guest-blogger, she made it official in 2012. Her most important contribution to the field of public policy to date was her 1994 instruction to Mark Kleiman, "Read Ann Landers every day. You need to learn about real people." Her essay on the 2009 arrest of Henry Louis Gates went viral and brought about one of her proudest moments, being described as "just another twit along the lines of Sharpton, Jackson, Gates, etc." (Small Dead Animals Blog). Currently serving as General Counsel to BOTEC Analysis Corp., she has been a public housing lawyer, a prosecutor for the Board of Registration in Medicine, a large-firm associate and a small-firm partner. She serves as a board member for NEADS, Dogs for Deaf and Disabled Americans, a charity that trains service dogs to increase independence for people with disabilities.

6 thoughts on “Call Western Union!”

  1. " … once addicted, the user isn’t making decisions at all". Really? The assertion may be testable using the tools of neurology: the electrical pathways are presumably different for conscious decisions and reflexes like emergency braking. I had always understood that the addict retains the illusion of free will – "I can stop whenever I choose". But the decision matrix is so warped by dependency that the result is a foregone conclusion.

  2. Of course you're right. I was being flippant. I meant exactly what your last sentence says. As the adage goes: "first the man takes a drink, then the drink takes a drink, then the drink takes the man." I'm so glad you pointed that out. It's hard to talk about addiction because we don't have precise words for degrees of volition. This could all be expressed brilliantly with inflected verbs in the Attic Greek dialect. English is so limited.

  3. I don’t disagree that the reasons you give for why things like the suspension of driving licenses came into being have at least some validity but I do think your discussion is a bit shallow in that it doesn’t even consider other possible reason. The suspension of driving licenses, for example, was more than a fad. There was a genuine concern on the part of lawmakers, judges and prosecutors about the political repercussions of having a drug offender whom you have arguably treated leniently getting high and slamming into a school bus full of little kids.

    You might be able to make the case that fear of political embarrassment isn’t a legitimate reason. Or that suspending the licenses of drug offenders was excessive because there really wasn’t anything to worry about because addicts are very safe drivers or whatever. But you didn’t even try, so I don’t think you can fairly dismiss lawmakers who voted for this as faddish know-nothings .

    By the way, it also seems to me you haven’t really made the case that the removal of this requirement is an unalloyed good even though that seems to be the basic idea underlying everything in your post. I'm not sure that I want addicts—drugs or booze—behind the wheel of a car until they've been clean and sober for a good long while. You may consider that ignorant and harsh but I consider it a matter of personal survival.

    1. Are people arrested and convicted for alcohol-related offences not involving vehicles (public drunkenness, assaults in pub brawls, domestic violence) systematically deprived of their driving licences? The punishment should fit the crime.

      1. If there’s a genuine indication that drugs or alcohol is a problem for a person being granted probation or parole for any offense but especially for one directly related to substance abuse, I don’t have any problem with telling somebody whose day revolves around being drunk or getting high that he or she can’t drive a car.

        One reason is that people like judges and prosecutors are understandably worried about the guy they just let go on probation being involved in an accident. Basically, the difference between the patient-centric approach of the helping professions or the client-centric approach of the defense lawyer and the judges or prosecutors is that no matter how sympathetic the defendant might be, what judges and prosecutors are asking themselves is pretty much whether this guy is worth risking my job over. Trying to minimize the risk that the guy you just cut some slack to won’t wipe out your future along with some innocent family when he gets behind the wheel is just commonsense

    2. It was a period when suspension of driver's licenses was popular for a lot of things — child support is still a popular cause, and I recall library fines being proposed.

      But unless you really think that the (slim) chance of being pulled over for driving without a license will deter people from driving when they need to drive to earn a living, it's mostly a penalty with perverse consequences. Lack of a license (the default ID in the US) is a an obstacle or even a bar for many public and private services.

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