So neither Jeb Bush nor his wife were in the courtroom to see daughter Noelle led away in handcuffs. Bush, having asked the media to respect his daughter’s privacy, then went on national TV for an hour to talk about the situation. (You’ll be glad to know he no longer blames himself. I’m OK, you’re OK.) But there’s a silver lining: the case is getting Bush sympathy from undecided voters.

Actually, unlike one left blogger whose post I can’t find right now, I think that Bush’s decision to stay away from the courtroom was, all things considered, a proper one. Showing up would have looked too much like putting pressure on the judge. (Though Bush had already publicly criticized the same judge for refusing to close the hearing, despite the fact that drug court hearings are rarely if ever closed.) And of course his plea for privacy has been extended by the media to not asking about the consistency between his hard-line drug policies (including a big cut in drug treatment funding) and what he wants for his own daughter.

As a result, there has been remarkably little comment about the extraordinary precedent set in this case, a precedent that if followed could put a serious crimp in any sort of drug-diversion or drug-court program. To review the facts briefly: Noelle Bush, age 25, having been caught forging a prescription for Xanax (a short-acting benzodiazepine tranquilizer) was allowed to enter a drug court program, receiving residential treatment under judicial supervision instead of prison time. She then proceeded to bring crack cocaine into the treatment facility, and one of her fellow patients called the cops. (The patient complained that Noelle Bush had been caught repeatedly with drugs, and that the treatment program was allowing her to get away with it while coming down hard on similar violations by other patients. No way to know how much of this is true.)

By the time the cops showed up, the bosses at the clinic had ordered staff members to shred their notes about the incident and not to talk to the police, making it impossible to prove that the rock found in Noelle Bush’s shoe was in fact hers. Prosecutors tried to subpoena evidence from the staff, including the shredded notes, but NB’s lawyers and the clinic’s lawyers argued, successfully, that a federal law protecting the privacy of drug treatment patients forbade any staff member to testify.

Can you imagine the outcry from the drug warriors, starting with Bill Bennett and John Walters, the current drug czar, if such an outrageous claim had been made, and accepted, in a case involving a drug user not named Bush? The whole idea of diversion and drug courts — treatment in lieu of punishment — depends on the ability of the criminal justice system to find out whether the offender is in fact attending, and complying with, treatment. That’s the big advantage of a drug court over a straight diversion program: the judge sits on top of the process and makes sure violations don’t fall through the cracks. But if this interpretation of that federal privacy law — which seems, on its face, designed to protect people from having the fact that they’re in treatment spread around — is right, no treatment provider could ever tell a probation department or a drug-court judge about a client’s no-show or dirty urine. Madness!

My view, for what it’s worth, is that no one should go to prison, or even jail, just for using drugs (or even for forging prescriptions to get them). Selling drugs, or stealing to get drugs, is a different matter. And once someone has been convicted of a crime other than drug possession, using the threat of (very short) jail stays to enforce abstinence from the expensive and addictive drugs whose continued use is virtually inseparable from continued crime makes good sense. [See here for an exposition of this idea, which has now been embraced rhetorically and abandoned practically by two consecutive administrations.]

Anyone with any heart at all has to feel sorry for Jeb Bush in this situation, and if the media must err, I’m glad it has been on the side of cutting him some slack. But there are questions begging to be asked, and if he’s going on TV to talk about it in an effort to get some sympathy votes, then someone ought to be asking them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

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