Why Increasing Penalties for Drug Use Doesn’t Work

By Tessie Castillo 02/12/17

As long as we can convince ourselves that those communities deserve the devastation that results from harsh drug laws, we will continue to repeat the same tactics—even knowing that they are both ineffective and wrong.

Black and white image of prisoners on a chain gang.
Harsh punishments haven't worked.

Communities have long debated the best ways to handle drug addiction and the crime that can result from it. Should we be tough on crime and send a strong message that drugs won’t be tolerated? Or should we show compassion and treat drug use as a medical issue, offering harm reduction and treatment instead of jail? These competing factions are often at war with one another—more so now with our country in a nasty political divide.

Well, turns out that behavioral scientists came up with the answer a long time ago. The questions of human behavior—what causes us to act a certain way and how undesirable behaviors can be altered—have been studied for decades and the evidence is clear: when it comes to punishment as a method for changing or deterring behavior, people respond to the certainty and swiftness of punishment more so than to the severity.

Dr. Robert Foss is a social psychologist at the Center for the Study of Young Drivers at the University of North Carolina at Chapel Hill. He has spent 30 years studying issues such as why people drink and drive, and how to change their behavior.

“The problem with addressing behaviors like impaired driving and drug use is that people do it all the time and don’t get caught,” explains Dr. Foss. “If people don’t believe they will be caught, then the harshness of the threatened punishment doesn’t matter because they don’t believe they will experience it.”

Think of it this way: over the course of your life, how many times have you driven over the speed limit and how many times have you been caught and ticketed? Probably few. How many times have you been in an accident due to speeding? Probably even fewer. Yet many people speed or text while driving rather frequently, even knowing that they could face the ultimate consequence—death. Engaging in a risky activity repeatedly under the hope that nothing bad will happen is not a mindset that is unique to people who use drugs or commit crimes. We all think like this. Unfortunately, our entire criminal justice system is set up under the fantasy that people who commit crimes will respond to the threat of punishment differently than the rest of society. We keep thinking that if we just make the penalty high enough, it will deter undesirable behavior. In reality, it doesn’t matter if the sentence for selling drugs is six months or 20 years, because most people believe they won’t be caught. Even when someone is caught, it takes months or years before a court date is set. In the meantime, some charges will be thrown out, plea bargains will be offered, lawyers will search for legal loopholes. In short, there is always reason to hope that the threatened penalty will not be applied.

Law enforcement is also starting to recognize the futility of the current approach to drugs. Brendan Cox, former Albany Chief of Police, now serves as the Director of Policing Strategies for Law Enforcement Assisted Diversion (LEAD) programs. He agrees that the purely punitive approach to the enforcement of drug laws needs to change.

“I became a police officer in 1994 when we were at the height of thinking we could solve the drug problem by locking everybody up,” he says. “It wasn’t until the mid 2000s that a lot of law enforcement started realizing that we were just chasing our tails. Not only that but we were worsening the behavior, because if people go to jail for a six-month stint, now they have a record and their family is affected as well.”

The big question is—if we know that increasing the severity of penalties doesn’t work, why do we keep doing it?

“I think it’s just human nature that our first reaction to being wronged is an ‘eye for an eye’ approach,” says Cox. “We often let emotions get the better of us, especially when a crime is still fresh in our minds.”

Dr. Foss agrees. “Humans are pretty oblivious to evidence, so even when we see that our system of punishment hasn’t worked, that evidence doesn’t override our gut instinct that it should work,” he says.

When people use phrases like “get tough on drugs” and “let’s send a strong message,” they are utilizing feel-good political ploys that satisfy most of the public but do not actually change behavior. In fact, increasing penalties works against the more effective methods of punishment—increasing swiftness and certainty. For example, if punishment for using or selling drugs were fairly light, most people wouldn’t try to fight it in court, but when a decades-long prison sentence is looming, there is ample reason to tie up the court system in a costly, drawn-out legal battle. This significantly decreases the swiftness of punishment and the certainty of what that punishment will look like. Also, the more the criminal justice system eats up funds by keeping people locked up for long periods of time and paying for lawyers to fight against severe penalties, the less money is available for expenses like law enforcement, so people are even less likely to get caught. “Get tough on crime” and “let’s send a strong message” are great sound bites. But they are terrible, ineffective policy.

So how can we change behavior?

“The best way to influence human behavior is to change the environment in which they live,” says Dr. Foss. “Ultimately, this means dealing with poverty, mental health problems, and generational drug use. It means providing meaningful jobs for people, giving them a sense of purpose, and restructuring society so that people’s lives don’t go to hell so often. But short of those daunting goals, other more manageable changes to people’s environments are also helpful. Surrounding people with support systems to help them deal with problems is one simple example.”

Restructuring society, dealing with mental health problems, poverty, and lack of purpose are large tasks indeed. No wonder we so often resort to increasing punishment instead of focusing on the real problems. Hope is not lost, however. Across the country, many communities have started implementing evidence-based practices that tackle issues such as poverty, homelessness, and addiction instead of merely increasing penalties.

Brendan Cox works on one such program, LEAD, which began in Seattle in 2011 in an effort to increase the effectiveness of policing, while decreasing the harms caused by over-enforcement of drug laws. LEAD is a diversion program, whereby police officers can choose to divert a person involved in drug use or sex work to social services instead of jail.

“The great thing about LEAD is that there is a lot of accountability for participants,” says Cox. “Instead of a police officer making an arrest and washing his hands of the situation, he can turn the person over to a case manager and there are actions for that person to follow up on immediately. Also, the police officer stays in contact with the case manager and follows up to see how the participant is doing and if they are struggling or successful with the program.”

This immediate hand-off drastically increases the swiftness and certainty of intervention for crimes. LEAD and programs like it are incorporating evidence-based practice on the most effective methods of behavioral change without focusing on increasing punishment. And the results? Evaluations from the Seattle program showed a 58% reduction in recidivism among participants as compared to those who went through the criminal justice system as usual. The program has now been replicated throughout the country in places such as Seattle (WA), Santa Fe (NM), Albany (NY), Fayetteville (NC), Huntington (WV), Baltimore (MD), and Portland (OR) with 44 other cities exploring or developing a program.

“LEAD and other programs have been proven to make communities safer because we are addressing the root cause of the behavior and not just putting Band-aid after Band-aid on the symptoms,” says Cox. “Police should be focusing on violent crimes and letting service providers work with people who use drugs.”

Of course, there is a time and place for severe punishment and long prison sentences. Having someone locked away for rape, murder or embezzlement does grant a degree of safety to the person’s past and future victims. However, drug use and sale is unique in its ability to regenerate when one piece is removed. Continuing to arrest and increase prison sentences despite all evidence against those methods is not only ignorant, but grossly irresponsible.

“The war on drugs was a policy that came down from politicians. It should never have happened,” says Cox. “Law enforcement have a responsibility to the people we serve to show that we recognize that these policies don’t work and that we can do things differently. We can’t just makes statements and apologize. We have to back it up with actions.”

The fundamental problem is that people who create and enforce harsh drug laws are not typically affected by the resulting devastation. As long as the damage primarily affects communities outside our own, and as long as we can convince ourselves that those impacted communities deserve what is happening to them, we will continue to repeat the same tactics—even knowing that they are both ineffective and wrong. Evidence shows that in order to change human behavior, we need to change environments. Well, it is not only the environment around people who use drugs that needs to change. It is also the environment around decision-makers and the public that elects them. As long as we stay in our protected communities and choose to ignore what is happening around us, our own negative and stigmatizing behaviors will never be altered. Time to break out of our own silos and admit that we, too, need an environmental change.

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Tessie Castillo is a writer and drug policy advocate in Raleigh, North Carolina. Her articles explore topics such as criminal justice reform, drug policy, and harm reduction. Castillo previously served as the Advocacy and Communications Coordinator for the North Carolina Harm Reduction Coalition (NCHRC), a statewide nonprofit that advances drug policy and criminal justice reform. During that time, she played a pivotal role in helping to legalize syringe exchange programs and expand access to naloxone, a medicine that reverses opioid overdose. Find Tessie at her website or on Facebook, TwitterInstagram, and LinkedIn.