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August 2, 2014

"Swift, Certain, and Fair Punishment — 24/7 Sobriety and Hope: Creative Approaches to Alcohol- and Illicit Drug-Using Offenders"

The title of this post is the title of this notable new article by Paul Larkin of The Heritage Foundation available via SSRN.  Here is the abstract:

Local and state government officials in South Dakota and Hawaii have implemented a creative way to address some of the problems stemming from alcohol and drug use. The South Dakota 24/7 Sobriety program and Hawaii’s Opportunity Probation with Enforcement (HOPE) project seek to deal with those problems by combining an old criminological theory with modern technological devices.  Criminologists, both old and contemporary, have believed that the certainty and celerity of punishment are more effective components of deterrence than is the severity of a penalty.  In fact, anyone who has been a parent will tell you that the swift and certain use of a mild or moderate punishment is far more likely to deter unwanted conduct than the threat of an infrequently used severe punishment imposed at some point down the road.

South Dakota and Hawaii have developed innovative programs to deal with substance use and noncompliance with the conditions of supervision.  Both programs address this problem. Starting from the proposition that certainty and celerity are more important than severity when measuring the effectiveness of punishment and using a rigorous alcohol-testing regimen, South Dakota has made strides toward the reduction of problem drinking and the attendant harms that it can produce.  Hawaii has independently developed and followed a similar approach to the use of drugs and crime, subjecting certain offenders to rigorous, random drug urinalysis punished by the certain imposition of a modest stint in jail for those who fail the required tests. Those creative approaches are worth serious consideration as an effective and humane means of addressing the grim problems that alcohol- and drug-abusers pose for victims and society.

August 2, 2014 at 05:37 PM | Permalink


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Any system that punishes people for having an addiction is fundamentally unjust and oppressive. There is nothing inherently criminal about substance abuse. If we're going to choose to make it a crime, then we have created the crime, not the person who suffers from the addiction. It is absurd to then pretend like the addict owes anything to society. If an addict commits a crime, punish him for that crime, not for being an addict.

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” C.S. Lewis

Posted by: C.E. | Aug 3, 2014 1:52:28 AM

POWELL v. State of TEXAS, 392 US 514 (Crime of alcoholism)

Robinson v. California, 370 U.S. 660 (1962) (Crime of addiction)

C.E. The Supreme Court has done as you wish.

Posted by: Supremacy Claus | Aug 3, 2014 8:21:12 AM

This is a great development, and has great potential. I have proposed some pre-law courses for students, similar to pre-med courses for doctors. I am open to discussing changes in this list. I also urge pre-law students to gain knowldege of any other practical field. A lawyer with other knowledge is very valuable to employers. If the student is passionate about an expected subject, e.g. art appreciation, that is still potentially useful, in understanding what is art, and why does some become so valuable.

Psychology 101-102, including behavioral analysis and conditioning, focusing on punishment, the sole tool of the law.

Critical thinking, including a module on formal logic.

Philosophy of science and research, including research methods, including the judgment of the validity of statistics.

These will hopefully immunize the student against the supernatural doctrines and imposition of beliefs by indoctrination. You lawyers have no idea how much the educated person has moved on from your now sick beliefs and stupid superstitions. Your atavism explains all your failures. These are in every subject of the law. Your profession sucks so badly because it is so stupid and uneducated. Many of you have very high native intelligence, so this stupidity has to be imposed on you.

Posted by: Supremacy Claus | Aug 3, 2014 11:23:07 AM


The addiction itself is not criminal. I would ask, however, whether you see banning someone with a DUI conviction from further alcohol use as a legitimate probation condition. Drugs Other drugs are a different matter because while again, the addiction element is not criminal, both the possession and use are, for both addict and non-addict alike. I have a very hard time seeing testing a probationer for such substances as being illegitimate. (And note that while I have concerns about the federal war on drugs I have no such concerns when it comes to state analogs).

Posted by: Soronel Haetir | Aug 3, 2014 1:40:14 PM

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