Why the ACLU Is Taking On Wyoming’s Pretrial “24/7 Sobriety” Program

November 22, 2021

Criminologists and, increasingly, local court systems love the idea of “swift, certain and fair” punishments for drug use (including alcohol) by people with criminal justice system involvement. They say that releasing people with strict anti-drug use conditions will curb mass incarceration, cut costs and assist in rehabilitation—a win for everyone.

Not only is this misleading, but the programs they are creating might be unconstitutional. That is what the ACLU contends of the 24/7 Sobriety Program in Wyoming, in a demand letter recently sent to Governor Mark Gordon, Attorney General Bridget Hill, the Teton County Sheriff’s Office and others. 

Its effectiveness as a public safety program is also in doubt.

The program, which was first created as a result of a 2014 law, creates stringent pretrial release conditions for people awaiting alcohol-related charges. Anyone caught drinking will be put back in jail. State lawmakers were inspired by a program created by former South Dakota Attorney General Larry Long in his state.

People who are convicted, but also those who are presumed innocent, can face these conditions. They also have to pay for the testing themselves.

A training from the South Dakota Attorney General’s Office illustrates what the program looks like, as well as some of the ideas behind it. The first slide tells the audience, “Why do we need the 24-7 Program? UNENFORCEABLE CONDITIONS,” then lists examples of these conditions: Don’t drink. Don’t go to bars. Don’t drive.

Later, it explains the program’s two breathalyzer tests per day, which are mandated whether or not the person is driving. People who are convicted, but also those who are presumed innocent until proven guilty, can face these conditions. They also have to pay for the testing themselves.

A 2017 best practices manual from the National 24/7 Advisory Council shows another bad side to the program. Despite being billed as a personal-responsibility program that saves money and allows people to keep their jobs, South Dakota’s in-person testing requirement “made it very difficult, if not impossible, for participants to obtain and keep jobs, attend school, or maintain a healthy family life.” The state then introduced a transdermal patch as an alternative testing option.

In Wyoming, people are still coming in person for these tests. To be eligible for the program, the Teton County Sheriff demands an enrollment fee of $30, cash only, exact amount only.

Academic and think tank researchers bolstered the spread of the program, but their research has arguably been mischaracterized by the program’s founder, Larry Long.

Sandwiched in between stories of drunk driving and domestic violence, Long wrote in 2017 that “RAND research, published in Lancet Psychiatry in 2016, showed that the implementation of a 24/7 Sobriety Program was followed by a 4.2% decrease in the state’s mortality rate, equal to saving the lives of several hundred South Dakotans a year.”

Yet Michael Farrell of the National Drug & Alcohol Research Centre in Australia, in summarizing that paper, stated: “In an analysis of cause-specific mortality, circulatory disorders but not digestive disorders or injuries (all proxies for alcohol-related mortality) were significantly reduced, whereas there was no association with cancer-related deaths (a falsification test).”

The program is not really about crime; rather, it is wielding public health concerns as a carceral weapon.

And the authors of the original paper themselves acknowledged that the decline in mortality was “most evident among circulatory disorders” amongst 24/7 Sobriety Program participants.

Thus, the program is not really about crime; rather, it is wielding public health concerns as a carceral weapon. The government has opted to subject the people it is allegedly trying to help to a humiliating, pervasive surveillance.

It is not surprising when you look at the founding members of the National 24/7 Advisory Council. Honolulu Prosecuting Attorney Steve Alm, the inventor of the ineffective and repressive HOPE probation program, is there. So is Stephen Talpins (the second-in-command to the fake-progressive Miami-Dade County State Attorney, Katherine Fernandez Rundle), who described the South Dakota program as “one of the most progressive programs in the country.”



Photograph of a person taking a breathalyzer test at an event in Missouri by KOMU news via Flickr/Creative Commons 2.0

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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