As the Executive Director of the American Civil Liberties Union, I have, for more than three decades, been in the business of advocating, supporting and trying to implement certain fundamental principles involving human rights. In the real world, that means more than just debating and discussing those principles; it requires finding strategic ways of translating principles into reality. And that requires more than just getting up on rooftops and shouting those principles for all to hear. And it requires more than staying pure: in other words, it often requires compromise.

But it is crucial that such compromises, when they are necessary, be strategic; that is, they must get us closer, not further away, from the principles we seek to establish. It means you have to talk to people who don’t agree with you, and who have more power than you. It means negotiating with unfriendly audiences; it means going into court and into legislatures, where even when you win, you can never win everything you seek.

It therefore means being willing under most circumstances to accept the reality that there is no progress that is not incremental and that almost always in the struggle for social justice and fundamental rights what you do—what you are forced to do in order to make progress—is take incremental steps.

The crucial strategic decision to make in this process is to decide whether those incremental steps now available are going to get you closer or not to where you need to go. That is, you need to decide whether this particular incremental step, which may seem like a step forward, is actually a trap that will take you farther from your goal, whether you should accept this incremental change, or reject it and press on for more thorough-going change. This is true of all negotiations, and the struggle for fundamental rights is nothing if not a negotiation, often treacherous because the negotiation is with an adversary more powerful than you, i.e., the government. Therefore, the strategic decision about whether or not to accept a particular incremental improvement is not such an easy question to figure out in advance because every reform has unintended consequences that reformers do not anticipate.

Our social history is pockmarked with progressive reforms that other progressives, years later, sought desperately to dismantle. And that is what worries me about embracing coerced treatment [for drug offences] as a way of ameliorating long and harsh prison sentences. The immediate payoff is both obvious and seductive: how could anyone opposed to the violation of fundamental rights, to the breach of individual sovereignty represented by drug prohibition, and to the exponential and racially-biased explosion of incarceration it has spawned, be opposed to a legislative reform that bars imprisonment for non-violent drug offenses and replaces it with treatment? And yet despite what seems like, and may be, a significant improvement, a reform we should rush to embrace, a deal we ought not to refuse if we can get it, it is the obligation of any progressive movement, I think, to approach such a deal with wariness, without hubris, and with humility, to consider very carefully what the unintended consequences of this particular reform might be, and what the long term impact of the reform might be on the ultimate principle we are trying, over time, to establish.

Let me give an example, outside the field of drug policy reform, of what I mean. Over a quarter century ago, I was the Executive Director of the New York Civil Liberties Union (NYCLU), the New York state affiliate of the ACLU. The NYCLU strongly opposed the death penalty, and advocated for its abolition. But the combined forces of the state legislature and the governor made abolition an unachievable goal, at least for any foreseeable future. And meanwhile people were dying, being executed by the state. For them, the long term solution of abolition wouldn’t work: the denial of their right not to be executed by the state, once denied, was irremediable. The U.S. Supreme Court had been given an opportunity to strike down the death penalty, but had declined to do so. Offended by the caprice with which the death penalty was applied, however, the Court ruled that the procedures by which people were sentenced to death had to be scrupulously fair and conform to certain constitutional norms of due process.

Armed with this ruling, opponents of the death penalty in New York introduced a bill in the NY state legislature that retained the death penalty but encumbered its implementation with so much due process and so many procedural obstacles that there was not much likelihood of anyone actually being executed. I authorized the NYCLU’s support of that bill. But there were a significant number of people on my governing Board who opposed what I had done and sought to overturn it. Their argument was that by supporting that bill we were reinforcing the legitimacy of the death penalty, and that by making the implementation of the death penalty fairer, we were actually making it harder to abolish it eventually. This was not a trivial argument. After all, what would we have thought of legislation that required slave owners to treat slaves better, but which left the institution of slavery intact? But in this case, some of us thought that the name of the game was to keep people from being killed by the state, and that this legislation created so many obstacles to the implementation of death sentences that it amounted to a de facto abolition.

In this particular case, after much discussion and a detailed examination of the actual legislation and its likely consequences, the Board decided that supporting the bill was the right strategic decision. But the question debated that day was neither simple nor trivial and the correct strategic answer was not obvious because ultimately, we were speculating about outcomes in which our government adversaries had more power in the forums where the outcomes would be determined than we did. And when you embrace legislation that promises to improve the situation but which reinforces their principles and undermines your own, you are playing a very dangerous game. I mention this example because I am in favor of playing that game—it is often the only game we have. But I am in favor of playing it wisely and carefully, and with humility, because there have been many instances in our social and political history where reformers accepted, even advocated, reforms that turned out to have unintended and unanticipated consequences that retarded reform instead of advancing it.

Looking back retrospectively on that death penalty debate, I think we made the right strategic decision. But there are other examples where I think reformers made the wrong strategic decision. And what I want to suggest now is that we are in precisely that sort of situation with respect to the tradeoff offered by legislation that reduces imprisonment for drug offences by replacing it with coerced treatment enforced by the threat of imprisonment and the police power of the state. I don’t propose to get into the details of any particular legislation here, such as the recently passed Proposition 36 in California. But insofar as the success of Proposition 36 is leading reformers to swiftly replicate, or attempt to replicate, similar legislation in a number of states, I do think we need to pause and consider what we are doing, consider whether we are embracing unintended effects that reformers who follow us will one day regret.

This consideration cannot take place, of course, without analysis of the details of all such pending laws; the devil is always in the details and we therefore have an obligation to examine them, and not pretend that this is merely a philosophical debate. It may be that a given law like Proposition 36 is acceptable in one state and that another, similar law in another state is not. That is why the details are important. But what I want to suggest here are some fundamental principles, concerns and criteria that should govern our thinking when we do get into those details, and that should inform us about what kind of reforms we should advocate and support.

I want to begin by defining some terms. First of all I have to say I think the “disease” model of drug use is a disaster for us in any long term way. The disease model, at least as it is applied to illegal drugs, ignores the distinction between non-problematic use and problematic use. For example, no responsible government or public health official would label as “sick” or as needing treatment someone who has a glass of wine with dinner once in a while, or even every night. Pretty much everyone understands the difference between that person and one who drinks a bottle of vodka every morning before getting out of bed. Anyone who did not recognize this difference would be seen as a fanatic and dismissed even by most members of Congress. But our system of drug prohibition, and the disease model as it is applied to illegal drugs, admits no such distinction. The person who smokes a joint of marijuana no less frequently and no more problematically than the person who has an occasional glass of wine with dinner is seen by the law, and by its handmaiden disease model, as a criminal and as someone who needs treatment, as if such people were compulsively using crack. The disease model, especially as it intersects with our system of drug prohibition, sees every user as needing treatment, sees every use of an illegal substance as a gateway to problematic use, as if every glass of wine anyone drank was a step toward the inevitability of dysfunctional alcoholism.

The disease model therefore reinforces the notion that all people who use illegal drugs, no matter which drugs, no matter what the dosage or frequency of use, including people who use drugs normally and without problems (which, as with alcohol, may describe most drug users, certainly most marijuana users) are sick and require the intervention of the state to get well. This is an extraordinarily dangerous notion for reformers to accept, much less embrace, however unintentionally. Even for those people who arguably need treatment, e.g., alcoholics or compulsive and dysfunctional users of any drug, government intervention by the police power of the state is not treatment, it is anti-treatment.

Let me tell you what we are dealing with here. Sally L. Satel, a Yale University psychiatrist who has made a career of treating addicts, wrote in The Wall Street Journal (6 January 1998), “Force is the best medicine” and “...addicts would be better off if more of them were arrested and forced to enroll in treatment programs. This is the essence of humane therapy.” Now people like that are out there, and the government and other policymakers listen to them and treat them with respect. And one of the reasons I say we are playing with fire when we buy into the disease model is that, in this country, the disease model is married to the system of drug prohibition and therefore cannot be disentangled from the police power of the state. We can imagine treatment separated from the police power of the state—after all, that is how we deal with alcoholism or obesity. But this is not how we deal with the use of drugs declared by the state to be illegal. And we don’t control what goes on in the legislature. We don’t control what the forces of government can do, and when you unintentionally reinforce things like this, you start a fire that you may not be able to contain. Reformers may be able to gather together and make analytic distinctions that we can live with, but we may not be able to hold those distinctions in the real world of politics, and that is the danger we are obligated to consider.

Listen to Alan Leshner, one of the government’s leading exponents of the disease model; he says that “addiction is a treatable disease like hypertension and diabetes,” That is an interesting analogy, which Leshner uses to establish the disease model for drug use, but nobody, including Leshner, has ever proposed that we arrest people for failing to treat their high blood pressure. No one has ever suggested that one of the ways to deal with diabetics who shouldn’t eat sugar, but do anyway, and who should take their medicine, but don’t do it regularly, need to be arrested and threatened with prison in order to be treated. Even in cases where those diseases are life threatening and where treatment-rejecting behavior is self-destructive, no one suggests arresting people and threatening them with imprisonment for their own good, to “encourage” them to seek treatment. Therefore, Leshner is not willing to abide by his own analogy.

To make the analogy between drug use, or even drug addiction, and hypertension and diabetes, and then slide simply into the assumption that when it is drug addiction we are talking about (much less just drug use), government intervention with the threat of imprisonment and the police power of the state is justified, whereas with respect to the diseases you have just analogized to, hypertension and diabetes, such intervention would never be justified, is not only intellectually dishonest, it reveals what this analogy is about and what we know it is about. It is about fusing the police power of the state with the assumed benevolence of health and medicine to create a larger degree of social control than the one that exists now. And that is the danger we face.

I also want to say a thing or two at this juncture about the concept of public health and how it has been distorted by the theology of drug prohibition. The term “public health” often gets used without sufficient definition, including by some of us, and we are sometimes, and without knowing it, therefore corrupted by the language of our opponents. When I was growing up, public health meant, at least to me, what the government did to ensure that when I bought some chocolate from the A&P that it was not contaminated, that when I drank tap water, it was not contaminated, that when I ate meat, it had been inspected and did not carry threatening disease. I came to understand that public health also included laws which, for example, restricted unwanted secondary smoking by prohibiting smoking in an elevator or in a restaurant. Such laws recognized that in places like elevators when you smoke, I smoke, whether I want to or not. That is what public health meant. But I never thought that the concept of public health might include laws that authorized the government to compel you to take your high blood pressure medicine or to eat a more healthful diet if you were a diabetic. A public health measure may legitimately prevent me from smoking in an elevator where someone else in the elevator does not want to breath in my smoke, but a public health measure may not legitimately compel me to relinquish or “treat” my own tobacco addiction in the privacy of my own life. Governmental public health agencies may provide me with information; they may even remonstrate with me through ads and other announcements. And they may provide treatment opportunities, all of which I am then free to choose or reject, despite the fact that my behavior may be self-destructive. But what governmental public health authorities may not do is compel me to accept such treatments, and punish me if I do not.

There is broad consensus in America about that with respect to, say, hypertension and diabetes. But the opposite consensus prevails with respect to the use of drugs that the government has declared illegal, regardless of the drug, its dosage or whether it is used problematically or not. This is what happens when drug prohibition is married to public health: the police power of the state comes to be seen as a legitimate instrument to be used against people who cannot be persuaded to behave in what the government believes to be their best interest. This is fundamentally irrational and tyrannical: untreated hypertension probably claims more lives and causes more health damage than the use of all illegal drugs combined. But would anyone seriously suggest arrest and imprisonment as a remedy for declining treatment of hypertension? And remember, lest anyone think the analogy to hypertension and diabetes fanciful, that this is the analogy introduced by Alan Leshner, one of the leading proponents of the disease model of drug policy.

As long as we are swimming in analogies, here’s another. I am not against religion. I have spent most of my adult professional life defending religious freedom. But I am against government-compelled religion. And every time I oppose government-compelled religion, like for example, government-sponsored official prayer sessions in public schools, I am attacked for being against prayer itself and against religion. Similarly, I am not against medical treatment and certainly not against making treatment available to those who may need and want it. But I am against, and we should all be against, government-compelled treatment. Because just as government compelled religion is not religion, government compelled treatment is not treatment. And we should stop calling government-compelled treatment “treatment;” we should stop using that terminology; it is the terminology of our opponents. We should say what we mean. Using the police power of the state for religion creates nothing but tyranny. And it also corrupts religion by making it an instrument of the government. Using the police power of the state to compel medical treatment similarly creates nothing but tyranny and it corrupts medicine by making it an instrument of the state. When we know that the state is using drug laws as an instrument of social control over disfavored classes who are disproportionately black and brown, we ought to be very leery about supporting measures that join the police state to medicine and create, presto-chango, the therapeutic state, and pretend that this is progress.

I am for the expansion of non-discriminatory, government financed, voluntary opportunities for treatment if people want them. But that is just a fancy way of saying I am for government-funded health care opportunities in general, for people who want them—this is just one aspect of that. I would love to see prescription drugs made available to people who need them. I would love to see treatment opportunities for all sorts of maladies, especially serious ones, made more available, and for the government to finance them when people cannot finance them themselves. But remember what country you live in. You live in a country that has shown no political interest, and a great deal of political hostility, to providing health care for people on their own terms. Why would it be different when the treatment is for problematic drug use? Indeed there is good reason to believe it would be worse. Here is what the government says: we will provide you treatment but only if you turn yourself over to the state and allow a probation officer to tell you where you can live, whom you can associate with, what your lifestyle may be, and, if you misbehave (in their judgment) you get sent to prison. That is called providing incentive for people to help themselves. What it has meant in Darryl Strawberry’s case—surely one of the saddest public cases in recent years—is that in effect, a treatment professional gets to send Strawberry to jail for shaving his head, having sex with another resident, signing and selling his autograph and other such “criminal” offenses. It is not enough that he has wrecked his life. The government helps by requiring a specific treatment modality, and then imprisoning him when he breaches rules that Erving Goffman once called “ceremonies of humiliation.”

Our basic principles are that no one should be punished or discriminated against for what they do with their own minds and bodies. Coerced treatment does nothing but fundamentally violate that principle. For people who are non-problematic users, it is totally inappropriate. For people who are addicts or, as I would prefer, problematic users, and need help, whether they know it or not, that kind of treatment is discriminatory because we do not impose it for any other medical condition. For no one else who needs medical help but does not accept it, for no one else who engages in self-destructive medical behavior, do we engage the police power of the state. We discriminate against only people whose health problems are drug-related. Embracing that does not get us closer to our principles; it violates our principles.

These programs are not treatment, they are not public health and they are not medical care provided for those who want it. We are complicit with a kind of Orwellian political corruption of language when we call these programs “treatment.” The way to think of such programs, including Proposition 36, is as sentencing reform. For those who believe that drug prohibition is, at its core, an illegitimate intervention of the state, sentencing reform may not be worth pursuing. But for those of us who believe that ending drug prohibition is far off, and that it is morally incumbent upon us, in the meantime, to reverse the explosion of long term incarceration that has been an adjunct of drug prohibition, sentencing reform, that is, reducing the harshness of the criminal law, is a worthwhile goal. That is why it is seductive for us to support so-called treatment alternatives to imprisonment, because what such reforms arguably do is replace a harsh form of punishment, namely long prison terms, with a less harsh form of punishment, which is probation and surveillance and control over your life outside of prison by a probation officer or a judge, with prison as a consequence of violating the terms of probation. And for people who face long prison terms, we dare not be dismissive of such sentencing reforms. But it is a sentencing reform, which has trade-offs that are dangerous and which we should consider.

We support reforms like this because we hope they will reduce incarceration. But in many similar cases where progressives have supported those kinds of reforms in our history, they have ended up by expanding the net of social control. Juvenile courts, for example, were a progressive reform created to provide care for juvenile delinquents because punishment by imprisonment was thought, by progressives like us, to be harsh and unproductive. The juvenile courts were set up and the norms of due process were largely discarded. The format of a court was maintained, but now everyone, including the accused’s lawyer, was encouraged to see themselves as social workers, seeking to help and rehabilitate the troubled juvenile. No longer would we be just reflexively sending juveniles who committed crimes to prison—now we would be treating them, rehabilitating them, helping them, healing them. If we restrained their liberty, it would be in caring, residential treatment centers, not prisons. Imprisonment would be maintained only as leverage, as a last resort to induce the juvenile’s cooperation, to encourage him to accept “treatment.” Even the juvenile’s lawyer often became part of the process of finding out how best to threaten him with punishment so that he would accept treatment.

If you read the progressive literature of that time, around the turn of the last century, it sounds like us—full of bright promises and the replacement of incarceration with benevolent assistance. But here is what happened. Once benevolent care became the rationale and we came to believe that we were not punishing people anymore, that we were helping people to get better, we got seduced by our own language. If we’re intervening in order to help and heal, not punish, why not intervene before the crime was committed, why wait until the last minute? And so, soon it was not only juvenile delinquents (young people who committed acts that would be crimes if committed by adults) who were subject to the jurisdiction of the juvenile courts. Soon, the law gave juvenile courts the authority to use their police power against “wayward” youth, young people who stayed out too late at night, who were “incorrigible,” who were truant, who social workers found to be “in need of supervision.” No young people in these categories had committed a crime; that is, none was a juvenile delinquent. But now the juvenile court system, invented by progressives to treat juvenile delinquents less harshly, to heal instead of punish, became instead a broad net that captured all kinds of dysfunctional behaviors that were mostly a function of poverty and discrimination, over which the old, harsh system had no police power. And the new system, because it escaped the scrutiny of due process and the presumption of innocence and other protections built in to criminal systems, in time came, in the name of healing, to incarcerate and abuse tens of thousands of kids whom the old system could not reach. They were called “training schools,” “homes” and “reform schools.” But they harbored cruel punishments, including solitary confinement, and they imprisoned, yes, imprisoned tens of thousands of kids who had committed no acts that violated the criminal law.

Benevolence, in that instance, was a trap and coerced treatment is the same kind of trap: the promise of reducing incarceration and replacing it with a fusion of the police power and the healing power always expands the net of social control. The public acceptance of prisons was similarly, though unintentionally, aided when progressives in the early part of the 20^th century advocated the reform idea that prisons should not be places of punishment, but rather, should be places to rehabilitate people. That is the period when prisons began to be called penitentiaries, places where the penitent could go to be healed. And because the theory of healing at that time was that the environment of poverty was what caused crime, penitentiaries were located far away from urban centers, in remote rural areas, where friends and family—part of the corrupting environment—could not easily visit. That isolation, now widely seen as destructive, was also the product, the unintended consequence, of progressive reform.

Closer to home, and closer in time, is America’s failed experiment in civil commitment, the so-called non-punitive drug treatment programs that flourished in California and New York 35 years ago. Some called it hospitalization, but no one chose to go, and no one could choose to leave. Now, once again, we are going to arrest people for their own good, send them in our benevolence to treatment programs instead of prison and then to prison if, like Darryl Strawberry, they misbehave. This is what we need to fear. If we are going to have Proposition 36-type laws, we must pay close attention to the details. We must guard against the expansion of the net, the possibility that the prospect of treatment will allow us to extend control over people not normally subject to imprisonment. We must understand these programs as sentencing reforms and not medical treatment programs and we must not buy into the fusion of the police power with the provision of medical care.

There is a basic concept I think we should adopt when we think and talk about this issue. I want to go back to my analogy about religion. The fusion of church and state for hundreds of years meant that the church could compel adherence from people they couldn't persuade. This was thought to be very good for the church. I suppose, when I was Executive Director of the ACLU, it would have been nice to have had a law that would have compelled people to join the ACLU; I would have gotten many more members that way than I could get by sending letters and having to persuade people to join. But that is exactly what the fusion of medicine and state does. It allows the state to command treatment that it cannot persuade people to accept. And, as the 16^th century English Church commanded adherence for the adherents’ own good, for their salvation, so the fusion of medicine and state claims to command treatment for the patients’ own good, for their salvation. And that is what makes “treatment,” even if compelled by the state, so hard for liberals to oppose.

But just as we came eventually to understand that compelled faith is an oxymoron, so we have to understand now that compelled drug treatment is an oxymoron: there is no such thing. And moreover, just as the fusion of the police power of the state with religion allowed the state to define what an acceptable religion was, so does fusion of medicine with the police power of the state allow the state to define what an acceptable treatment is. And you know what that means. Often it will mean abstinence enforced by urine testing and, ultimately, prison. And just as the fusion of religion with the police power of the state allowed the state to violate the rights of non-believers, so the fusion of medicine with the police power of the state allows the state to violate the rights and threaten the liberty of non-believers, including the liberty of the non-believers who use drugs non-problematically, the way the rest of America uses alcohol. And finally, just as the separation of church and state was a mechanism, invented by the early Americans at the birth of our nation, to insure personal freedom against religious tyranny, it also was good for religion because it allowed it to operate free of government intervention.

So I want to propose that the separation of medicine and state could be a mechanism for insuring personal freedom against treatment tyranny. And it would also be good for the practice of medicine because it would disentangle medical decisions freely made between doctors and their patients from the intervention of the government and its political ideologies.

I end where I began. I do not propose here to analyze and debate the particularities of any piece of legislation including Proposition 36, but I do worry that it, and legislation similar to it, will have some of the unintended consequences I have described. I worry that it will undermine our fundamental principles and reinforce the legitimacy of government social controls over behavior that government has no legitimate authority to restrict. I worry that we will be seduced by the compelling prospect of reducing the unbelievable brutality of long prison terms into the trap of supporting mechanisms that in the short run may do so, and in the long run may take us further from the achievement of the principles we want most to achieve. I urge us to pause and to continue to examine, more carefully than perhaps we have, what we do before we do it.