THE CASE OF ROBERT DOWNEY, JR., AND OTHERS LIKE HIM: What To Do When Treating Drug Users Fails

Last Thanksgiving, responding to an anonymous tip, the Palm Springs Police entered room 311 of the posh Merv Griffin Resort Hotel. The tipster proved reliable: the police found actor Robert Downey, Jr. inside. Downey had been bingeing on cocaine and Valium; police found both drugs in the hotel room and in Downey's system. "You are ruining my career and my life," the actor reportedly huffed as the police snapped handcuffs on him. Typical: Downey was prepared to blame anyone except himself.

Courtesy of the movie Traffic and Downey's recent arrest, we are in the midst of a new debate about drugs. This one is serious, focusing on how we should strike the balance between punishing addicts and trying to rehabilitate them. But Robert Downey, Jr. is not part of that debate. The actor has had more opportunities for treatment than most criminals ever get. Instead, Downey is part of a different debate, one we need to have no matter how much money is redirected from jail cells to treatment centers: what should the law do when treatment fails?

For decades, we have combated our drug problem with a mix of carrots and sticks. Drug possession (and distribution, of course) is criminal. That means arrests, trials, and jail. But drug use is also addictive, and that means treatment.

There is now an emerging consensus that we should emphasize treatment more heavily than we do. Last fall, Californians passed Proposition 36 to ensure that nonviolent users received treatment instead of jail sentences. And all over the country, first and even second offenders are routinely sentenced to undergo drug treatment; this is even true of drug sellers, provided the court is convinced that the defendant sells largely to support his own habit. Drug courts — which monitor defendants' treatment, and use imprisonment only in support (not in lieu) of treatment programs — are springing up in every jurisdiction.

Robert Downey, Jr. is hardly the poster child for this new approach, but he is certainly a product of it. The actor has lived the last five years of his life under the near constant supervision of the California court system. In 1996, Downey was arrested on cocaine, heroin, and weapons charges. He was eventually sentenced to probation, and ordered into treatment; he's either been in a program or in jail ever since.

During these five years, Downey has also used drugs, skipped drug tests and meetings with probation officers and counselors, fled from treatment centers, and been re-arrested. He has charmed his way out of most of these transgressions, though he has served short stints for violating his probation.

Relapse, of course, is a natural part of recovery. But California has now spent five years trying to coax Downey into sobriety. The effort has failed; Downey has proven to be incorrigible. It's time to ask what comes next.

There are those who believe that it is a mistake to say that treatment has failed in any final sense. They note that having a defendant in treatment is always cheaper than having one in jail (which is true); that those in treatment are less dangerous than those who aren't; and that, therefore, having a defendant in treatment is preferable to having him in jail. This is a serious argument, but it is also wrong.

We do not criminalize conduct solely to assert government control over those who engage in it. Smoking cigarettes is bad for smokers, for those around them, and for the economy; the costs are enormous. But we do not criminalize smoking, even for the limited purpose of forcing smokers into treatment programs.

Instead, we reserve the criminal law for the small category of bad acts that are so bad that society cannot tolerate them on an ongoing basis. Cocaine use falls into this category, and there is a near-universal consensus that legalizing cocaine — unlike, say, legalizing alcohol — will not change what society finds so intolerable. Any discussion of what to do with Robert Downey, Jr. must proceed from there.

Even if drugs were legal, any public gathering of cocaine users would still be an unpredictable, degraded, dangerous place. And for those to whom addicts are close, the consequences are dire: just ask Downey's (soon to be ex-) wife and his son.

When the justice system treats a drug user, it is trying to do two things at once. It is trying to help the defendant, obviously, but it is also trying to help the rest of us. If the drug user stops using, then everyone wins. But if he doesn't stop, then the system has to choose.

If the justice system cannot help both drug users and the rest of us, then, as its second choice, it must focus on the rest of us. Even assuming that sending a drug addict to jail does him no good (which is probably wrong in any event), it still means one less buyer, one less junkie stealing a public park from our kids, and one less parent showing his child how to be a drug addict.

Continuing to treat the defendant when treatment has failed is just a way of legalizing drugs. It's not a free ride, of course: the defendant is, after all, in a treatment program, and has to follow its rules. But if that's the system, then — as long as the defendant prefers treatment to jail and drug use to both — there is no earthly reason for him to ever stop using.

At that point, the justice system becomes just another enabler. Robert Downey, Jr. has already had plenty of chances; the rest of us cannot afford for him to have any more.