United Future MP Marc Alexander appears to have outed his draft law and order policy to the Herald as a way of applying leverage to his United Future party colleagues, who will be asked to approve it at the end of this month. Like most of the "new" ideas touted by centre-right parties in recent years, it is essentially lifted from American jurisdictions where its elements are familiar enough to raise serious concerns as the prospect of their ever being a reality here.
I don't have time to go through all its points, but let's start with the headline-grabber:
Voluntary chemical castration for sex offenders as a pre-condition of parole.
Chemical castration involves the use of anti-androgen drugs, such as MPA, or the contraceptive Depo-Provera (which is prescribed to pre-operative transsexuals as part of the sex-change process), with the aim of lowering the subject's testosterone production and, hence, sex drive and sexual fantasies.
It is mandated for recidivist offenders in some American states, but is controversial, not least because the practice is associated with the early 20th century eugenics movement, which held that forced sterilisation of unhealthy elements would produce a better society.
It is some small mercy that Alexander suggests it would only be an option where it was considered "beneficial", because there is no evidence that chemical castration works for the majority of sex offenders.
Although the drugs in question have never actually been approved by the US FDA for such a purpose, the condition for which it may work is paraphilia, characterised as "a pattern of sexual arousal, erection, and ejaculation that is accompanied by a distinctive fantasy or its achievement."
For other classes of sex offender, including those who deny the offence or are motivated by violence, it will not work at all and may even make things worse by further alienating or disturbing the offender. To legislate in such circumstances for forced medication with a drug that can have serious long-term health effects is adventurous, to say the least. (It's also a little ironic to think of the good Christians in United Future promoting sex-change drugs.)
But here's the thing: it appears that to be effective, chemical castration must be part of a long-term programme of voluntary therapy (and that's "voluntary" in the dictionary sense, and not the curious sense in which Alexander uses it). To conceive it as it a short-term get-out-of jail option is not just irresponsible, it's idiotic.
The Florida State University Law Review has a very useful paper on the issue, and Salon had a story in 2000.
Before we depart this topic, it's worth noting that New Zealand's record in reducing sexual offending by more conventional means is actually very good. Our rate of sexual offending is lower than most comparable jurisdictions (the rate of forcible rape is half that in the US) and, at the same time as the likelihood of reporting has considerably increased, reported offences have fallen steadily. No Right Turn pointed out that five years ago, sexual offending was 25% higher than it is now.
Making drug dealers accomplices to crimes committed by people they supply with drugs.
Defence lawyers are gonna love this one. It's already standard practice to try and shift responsibility away from defendants for their actions ("It was the drugs what done it, sir") and now we have a proposal for a whole new class of blame-shifting.
But what kind of offences qualify? Can I get my drug dealer to chip in on my overdue parking tickets? If I bought drugs in May and did crime in June, does that count? I'm being facetious, but only a little. This is a minefield.
Oddly enough, the proposal would not cover the drug linked to far more crime than any other: alcohol. Host responsibility laws already make licensed purveyors of alcohol responsible to some degree if they serve drunks who later drive or assault someone, but this is more like nailing your local Liquorland for selling you a six-pack the day before you shoplifted. It doesn't make sense.
Specialist drug courts, empowered to offer those arrested for drug possession or trafficking the option of treatment or prison. Relapse of drug use would trigger a mandatory prison term.
Drug courts - which almost always divert defendants into treatment programmes which can involve months of constant counselling and urine-testing - have been highly touted in the US in recent years, and statistics, indeed, show a lower recidivism rate for the 10% or so of drug offenders who carry it out than for those dealt with conventionally.
But there are some substantial caveats to those numbers. Those who are diverted to drug courts do so by choice, making them more likely candidates for going straight in the first place. The courts tend disproportionately to work with white and middle-class "substance abusers". Again, less likely recidivists. (Also, most of the drug courts in America also seem to integrate alcohol abuse into their programmes, which Alexander is not apparently suggesting.)
In the US, most offenders choose drug courts to avoid harsh sentences for non-violent drug offences (which, in US states which adopted "tough on crime" measures in the 1990s, can easily and frequently exceed those for serious offences of violence); without harshly punitive sentencing, the drug court option may not work at all. United Future MPs may well favour such sentencing for minor drug offences (Alexander seems happy to say "possession" and "prison sentence" in the same breath), but the rest of us should be wary of the terrible economic and social cost such policies have wrought in the US.
Apart from costing billions of dollars and blighting the lives of millions of Americans, the war on drugs has been ineffective: the rate of drug use in America seems clearly to be driven by demographic and social factors, rather than the law. Marijuana use, for example, peaked in 1979, with the baby boomers. By the time harsh federal laws were drafted seven years later, it had already fallen by 40%. And then, in the mid-1990s, with the hip-hop generation - and in the face of strict laws and mandatory minimum sentences - it shot up again: teenage marijuana use nearly doubled in a few years.
In a punitive environment, "treatment" sounds kinder - and perhaps more morally satisfying - than incarceration. And I think that there could be a role for some kind of court-monitored treatment process here in the case of P addiction, where it is closely associated with crime committed.
But what. exactly, are you "treating" in the average minor drug offence? What is really wrong with the student who gets caught with a joint, or the office girl who gets an E for the Big Day Out (and as we see above, those are the kinds of people who are offered, and opt for, treatment) that warrants an intrusive and coercive programme that lasts months and involves constant urine testing? Rebelliousness? Non-conformism? A desire to stay up past bedtime?
Such a proposal is not only a waste of resources, it takes you, philosophically, to some quite scary places. This essay on the issue doesn't hold back:
If there are now a million or more coerced into ineffective and often dehumanising 'treatment' yearly in the U.S., what will the figure be when the new paradigm takes hold nation-wide? Are we to assume that casual users and small-time 'dealers' of marijuana who now make up the great majority of drug-law arrestees will be forced into months or years of quasi-religious 12-step programs, demanding of them admissions of powerlessness over their 'addictions', and pledges to a 'higher power' for eternal abstinence from using a substance less addictive than chocolate or coffee and far less harmful than cigarettes? Millions smoke cannabis because it is enjoyable, or medically, socially or artistically useful to them, and imprisoning such 'criminals' is very close to being seen by world opinion as a gross error and injustice, if not crime against humanity. Calling such people 'addicts' and shunting them into 12-step programs may yet be even more sinister, for such 'medicalisation' of the 'problem' will surely be a setback, allowing the drug inquisitors to appear to have the best interests of society at heart, yet continue with their inquisition unimpeded.
Then there's Colorado Judge Morris B. Hoffman, in a law review article:
By existing simply to appease two so diametric and irreconcilable sets of principles, drug courts are fundamentally unprincipled. By simultaneously treating drug use as a crime and as a disease, without coming to grips with the inherent contradictions of those two approaches, drug courts are not satisfying either the legitimate and compassionate interests of the treatment community or the legitimate and rational interests of the law enforcement community. They are, instead, simply enabling our continued national schizophrenia about drugs.
Or former police chief Joseph D. McNamara, writing in the Psychiatric Times in 2000:
The sheer irrationality of continuing to expand a policy doomed to failure begs an explanation. A Jihad comes to mind - a holy war that must be fought regardless of the resulting human horrors. Thus, some scholars who can no longer ignore the inevitable failure of past practices now proclaim a new solution, which the government is eagerly embracing. The phrase 'coerced abstinence' is the practice of continuously drug-testing convicted criminals (and eventually, in all probability, many others) through special drug courts, to detect the presence of illegal drugs in their bodies. Judges, traditionally functioning as impartial legal experts during trials to guarantee due process of law, will now become shamans taking on the responsibilities of judging who is falling under evil spells. We will have legions of real-life television "Judge Judys" routinely denouncing and incarcerating people not on the basis of what they did, but because certain chemicals are present in their urine.
For Marc Alexander, this does not seem to be a bad thing. How else would you explain this?
Abolishing current drug classifications to remove the distinction between hard and soft drugs.
Drugs are bad, mmmkay? All drugs. They're all the same. Marijuana is the same as heroin. Really. Except alcohol. That's different. And pokies. They're good.
Probable unintended consequence: to erase the distinction (and hence, relative risk) between "soft" and "hard" drugs for dealers and probably users too. This is the silliest proposal on the entire slate, and I actually can't think of a reason that a supposed law-and-order party would do this.
The rest of Alexander's draft policy is the familiar bidding-up law and order stuff touted by Act and National - including the lowering of the age of criminal responsibility to 12 - most of it implying a substantial increase in prison capacity, and all of it lifted from the heavily marketed American "tough on crime" model (which, according to a landmark American Bar Association report is itself in crisis). Notably absent is any mention at all of the only category of offending to have consistently increased over the past decade: white-collar crime.
If it adopts Alexander's policy, United Future seems likely to distinguish itself as the party of forcible medication and coercive treatment. Perhaps they like that sort of thing.