Cowlitz commissioner questions constitutionality of drug court

Judge who created program accuses Arne Mortensen of 'willful ignorance'

The U.S. Constitution has entered the debate about whether Cowlitz County should continue its drug court program, which has won bipartisan praise for reforming drug addicts.

Commissioner Arne Mortensen recently suggested that the county’s drug court program is unconstitutional and may lead to more crime.

These notions, spelled out an article he has shared quietly with an apparently limited number of people, puts him at odds with prominent members of his conservative political alliance and with law and justice officials.

Retired Cowlitz Superior Court Judge Stephen Warning, who created the Cowlitz Drug Court program in 1999,  said Mortensen’s paper displays “willful ignorance.” 

Mortensen declined to discuss his document with me, saying, “I have my constituents,  and you have yours.”

Mortensen announced last month that he is thinking of voting to discontinue drug court, which is financed with a 0.01% sales tax that costs consumers a penny on a $10 purchase. The fate of the program this fall could come down to the vote of first-year commissioner Rick Dahl, who usually votes with Mortensen. Commissioner Dennis Weber supports drug court. 

Dahl did not return requests for comment.

Mortensen, who is in the third year of his second four-year term, is the leader of the libertarian wing of the local GOP.  However, two local legislators who usually align with him strongly back drug court, which is based on a model used in more than 4,000 communities across the nation..

“Drug courts have proven their importance in many communities by providing a path to recovery and creating a sense of restitution by a process that (is) well thought out,” state Sen. Jeff Wilson, R-Longview, said by email.

“I have been personally involved in observing drug court proceedings and graduations for over seven years in Cowlitz County.  Clearly drug courts are one of the necessary tools to improve substance disorders correlated with criminal offenses.  Our local drug court is positioned with dedicated staff and programs that has changed lives and should continue, or even expand,” Wilson concluded.

State Rep. Jim Walsh, R-Aberdeen, said by email that “drug courts are an effective mechanism for giving addicts incentive and support for getting sober and turning their lives around.” 

(He added, however, that he believes “such diversion programs are most effective when they are one part of a broad strategy for the enforcement of our laws.” The Legislature’s decision to downgrade hard drug possession from felony  to misdemeanor weakens the consequences for drug possession and may undermine good diversion programs like Drug Court, Walsh added.)

Drug Court allows eligible criminal defendants to undergo monitored drug counseling and treatment. If they graduate, the charges are dismissed. The program currently treats 93 people, a number approaching the pre-pandemic high of 104. It costs the county about $324,000 annually to administer, and Medicaid or other insurance usually pay the cost of treatment, according to the county.

Statistics were unavailable for the number of addicts who have graduated from the program since its inception, but it likely is in the thousands.

There are about 4,000 drug courts operating nationwide, and all Washington counties except the smallest operate one.

Here’s a summary and discussion of Mortensen’s document:

Unconstitutional?

Mortensen asks whether drug court violates the equal protection clause of the 14th Amendment to the U.S. Constitution because some defendants are eligible for treatment while others accused of the same crime may be excluded. 

The argument is “specious and ludicrous,” says Judge Warning.

Court systems have always sentenced defendants differently based on their records, severity of the offense and a host of other factors.  

 “So someone who has committed 17 burglaries should he treated the same as someone who has committed one?” Warning asked, rhetorically.

Drug laws 

Mortensen asserts that “drug laws are ridiculous. Prohibition of alcohol did not work, why should drug prohibition work?  Possession treated as criminal behavior is inhumane.  The drug  laws have no constitutional  foundation.”

So does he want to decriminalize drug possession? What a disaster that would be, judging from the failure of that policy in Oregon. It’s a safe assumption that most residents of this community oppose decriminalization.

Mortensen also seems to contradict himself in the document, writing that “the intangible cost of a program that forgives criminality leads to a growth in criminality. … Why should I (a  morally weak citizen) worry about stealing and mugging to feed my drug habit?   Chances are that I won’t get caught; chances are that I won’t be prosecuted; and if caught chances are that I can go to drug court, and all will be forgotten?”

This is a glib misunderstanding of drug court. To enroll in drug court, defendants must show some signs that they are treatable.  Past sex offenders and violent criminals are ineligible. And to graduate and expunge a conviction from their records participants must undergo a regime of treatment and counseling that requires them to stay clean. They go back to jail if they fail and are not willy-nilly “forgiven” if they are incorrigible. About 55% of people admitted to drug court graduate from the program,.

Mortensen writes that “free help for drug addicts abounds. So there is no reason why a person must attack people or properties to support a drug habit.”

This assertion ignores the reality that  most drug addicts are unable to reform on their own and need the threat of incarceration as well as counseling to clean up. The commissioner’s  naivete here reflects Nancy Reagan’s “just say no” mantra.

Effectiveness?

In another apparent contradiction, Mortensen acknowledges drug court “appears to be the most successful program at forcing people to rehabilitate. Data (about its benefits) remains hard to come by, though.” He specifically sites a lack of data on criminal recidivism rates for a five-year period after participants graduate.

As I’ve reported  previously,  Stanford University  estimates that $1 spent on drug court saves about $4 in costs for jailing and caring for offenders. Recidivism drops, on average, by 38% to 50% among adult drug court participants.  Cowlitz County has a similar success story: About 80%  of participants don’t reoffend over a three-year period following completion of drug court, court officials say.

“The Portland State University professor we hired to do a study of (the Cowlitz County) program picked three years as the point to look at,” Warning said. “That’s like every other (drug court efficacy) study in the country. For Arne to pick a random number and then claim there is a problem because we don’t have figures for his random number is pretty disingenuous.”

A 20-year-old study by the Washington, D.C.-based Justice Policy Center compared  29 drug court programs in the U.S., including five in Washington, to other sites that took other approaches to offender drug use. It found that drug court participants, at six and 18 months after graduation, had significantly lower rates of drug use relapse, significantly reduced criminal behavior, and were significantly less likely to report a need for employment, educational, and financial services than non participants. Further, drug court participants reported significantly less family conflict than comparison offenders. An updated study is in progress.

Judicial roles

“Judges are supposed to apply the law; their charter is not welfare administration or welfare activism. Their consideration should be for compliance with constitutional law and not trying to save money, such as considering the cost of jail,” Mortensen’s  paper asserts.

What, this from a commissioner who avows to protect taxpayer’s wallets? Jailing someone in Cowlitz County costs about $100 a day.  So he opposes efficient administration of justice?

Drug court, which is authorized under state law, is not “welfare activism.” It is first and foremost a law enforcement and corrections program. Its aim is to reform criminals so they don’t reoffend.  In the long run, it saves money and reduces crime. Jails, unfortunately, can be breeders of more hardened criminals.

Mortensen points out that drug use still is rampant. So it is. But why eliminate a program shown to make at least some dent in the problem — and that even he acknowledges saves addicted people?

Mortensen is making up unsupportable arguments to justify his constitutional ideology and belief in limited government. But there is no constitutional issue here.

Does Mortensen believe drug users are bums that to be abandoned or left to reform themselves without public expense? That would be unrealistic and uncharitable, a view that is blind to the costs to taxpayers and the impacts of addiction on abusers, families and the public.

Not only should Drug Court be saved, it should be expanded.