SOLUTIONS

Suggestions for ending the War on Drugs can quickly create emotional – and sometimes hostile – responses.  It’s easy to make the assumption that easing or eliminating penalties for drug possession would increase drug use.  We all want to protect our kids and ourselves from the horrors that can be the result of drug addiction.  Often, the issue isn’t the ‘answer’ to the question of the pros and cons of changes in drug policy, but that the question and assessment is never made.  Could drug use, addiction and overdose rates possibly be decreased through legalization or decriminalization of drugs? Is it possible that taxpayer money could actually be saved through different policies, and could public safety possibly be improved by ending incarceration of drug users?  Many people, until recently, have simply not considered this as a possibility.
 
It’s indisputable that our current approach is not working.  Addiction, overdose and incarceration rates are escalating, and huge, unsustainable cost is buying little but misery. Clearly, the U.S. approach – which was exported worldwide – has been a failure.  It’s time to look at other alternatives. 
 
The first step in assessing what should be done to replace our current approach is to review the history of what’s been tried, and to assess what is working. 
 
WHAT’S WORKING: 
 
Changes in legislation are slow in coming, but some alternatives don’t take legislative change and can be implemented immediately.  Let’s begin with what’s happening in that arena. 
 
Local police departments are testing alternatives with success: 
 

– The Police Assisted Addiction and Recovery Initiative (PAARI) www.paariusa.org was created by Gloucester, Massachusetts Police Chief Leonard Campanello to bridge the gap between the police department and those with substance use issues seeking recovery.  The Gloucester initiative, begun in 2015, has begun changing the relationship between substance users and the police, putting the police in a helping, rather than a punitive role.  Under this initiative, now spreading to police departments across the U.S., anyone who walks into a police station with the remainder of their drug equipment and asks for help is NOT charged, and will instead be walked through the process to get immediate treatment – using treatment providers who’ve partnered with PAARI.  Additionally, PAARI has negotiated agreements with pharmacies to make nasal Narcan available without a prescription and at little or no cost. This drug can counter overdose effects of heroin and other opioids, usually within minutes and can save lives.
 
As the benefits of the Gloucester Police Department initiative became apparent, the program, through PAARI, grew to other police departments, transforming arrests to treatment.  It costs nothing for police departments to join PAARI, and PAARI offers resources, funding, recovery programs and information and support for departments who join.  You can help by making your police department aware of this program. www.paariusa.org includes information under the tab ‘For Police’. 

– The Arlington Outreach Initiative, based in Arlington, Massachusetts and inspired by the Gloucester program, began in July, 2015. This program partners police officers with public health clinicians to conduct direct outreach to drug users, their families, friends, and caregivers to provide education including how to use Narcan, and to connect them with available recovery centers and other resources. In Arlington, when a drug dealer is arrested and the police end up with his list of ‘customers’, instead of ignoring or arresting them, they reach out to help – beginning an end to the stigma of addiction and increasing chances for recovery.

– Seattle, Washington has instituted a Law Enforcement Assisted Diversion program (LEAD). Under this program, instead of sending low-level drug users to jail, the police officer has the option of having them meet with a social worker and becoming part of the LEAD program where their ‘crime’ is taken off the record, low-income assistance programs are made available, and case workers help them to find housing, health care and to make life changes. A study found that LEAD participants were 60% less likely to be arrested within 6 months than a control group of those not participating in LEAD. Over two years, LEAD participants were still 58% less likely to be arrested. Additionally, LEAD participants were 39% less likely to be charged with a felony. Plans are in place to expand this program to the county and state level in Washington, and it’s already spreading to other jurisdictions as well.  www.leadkingcounty.org.
  
The policies described above were instituted by police who are on the front lines of the drug war and saw that policies weren’t working and needed to be changed.  If these policies make sense, then isn’t it time to consider changing law to institute these policies on a larger scale – where lives of those struggling with substance use disorder don’t depend on what jurisdiction they happen to reside in, or are arrested in?   Changing drug policy away from the punitive model where focus is on law enforcement and incarceration to a treatment-based model would not be a new experiment.  These methods have been instituted elsewhere, with significant success. 
 
We can learn from history and from successes throughout the world:  
 
Prohibitions against various substances ranging from alcohol to coffee and harder drugs date back as far as the 7th century, but in the U.S., on the federal level all drugs were legal until 1914, when the Harrison Narcotics Act restricted the manufacture and sale of marijuana, cocaine, heroin, and morphine, and primarily targeted physicians.
 
In 1919, the 18th Amendment to the Constitution began alcohol prohibition in the U.S.  After increases in illegal production and sale of liquor, rise in gang violence and escalation of organized crime, in 1933, the 21st amendment repealed the 18th, ending prohibition.  Unfortunately, future policy didn’t benefit from lessons learned with alcohol prohibition. 
 
In 1961, under pressure from the United States, the United Nations adopted the Single Convention on Narcotic Drugs.  Unfortunately, this international attempt at prohibiting production, sale and use of illegal drugs made it difficult for countries to experiment with what might, and might not work, in regard to drug policy. The United States threatened loss of foreign aid and other sanctions against any country that didn’t follow the punishment-based U.S. drug policy. Unfortunately, the U.S. model has been an utter failure. 

As time passed, some countries have instituted different policies, but most have adjusted their approaches to comply with the U.N. agreement, making pure tests of other policies more difficult.

Portugal:  

After Portugal’s liberation from dictatorship in 1974, drug use became a crisis.  Portugal initially followed the U.S. ‘criminalization’ approach to the War on Drugs.  By 1999, nearly 1% of Portugal’s population was addicted to heroin, and drug related AIDS deaths in the country were the highest in the European Union.  A new approach was needed, leading to decriminalization in 2001. 
 
When Portugal decriminalized all drugs including heroin and cocaine, many predicted disaster.  Now, more than 16 years later, Portugal’s drug policy continues to be an astounding success on many levels. Portugal’s drug policy has become increasingly popular in the country since it passed. Since decriminalization, both the liberal and conservative parties have been in power, and both parties have retained decriminalization because it works.  
 
A Cato Institute report published in 2009 states: “The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success.  Within this success lie self-evident lessons that should guide drug policy debates around the world.” Glenn Greenwald, Drug Decriminalization in Portugal, Lessons for Creating Fair and Successful Drug Policies, Cato Institute c. 2009. Johann Hari in his 2015 book, Chasing the Scream, Hari, Johann, Chasing the Scream, London, Bloomsbury Publishing, 2015, reports: The Portuguese Ministry of Health says that the number of problematic drug users has literally been halved, from 100,000 to 50,000. The British Journal of Criminology confirms it is down, but found a more modest decline, from 7.6 people per thousand to 6.8, while confirming that injecting drug use has indeed been almost halved, from 3.5 injectors per thousand people to 2.  When they compared the situation to nearby countries of Spain and Italy, which are still waging the drug war, they found that “Portugal is the only of these nations to have exhibited declines” in problematic drug use.”  The British Journal of Criminology found that overdose has been reduced significantly, and the proportion of people contracting HIV who get it from drug use has fallen from 52 percent to 20 percent.” 

In the years since heroin was decriminalized in Portugal, its use has been halved there – while in the United States, where the drug war continues, it has doubled. In the U.S., 90% of funding is allocated to punishment and attempting to curb supply of drugs.  Only 10% is allocated to treatment and prevention.  In Portugal, these numbers are reversed, with the primary focus and funding on treatment and prevention.  If police see someone using blatantly in public or if drugs are found in regard to a fight or other issue, they write a ticket requiring the individual to visit the ‘Dissuasion Commission’ where an assessment is done to determine if a drug problem exists.  Individuals meeting with the commission can be honest because regardless of the answers, they won’t be incarcerated, punished or end up with a criminal record.  This gives authorities the opportunity to share safety information without fear or defensiveness on the part of drug users.

Based on Portugal’s statistics, approximately 10% of individuals attending a dissuasion commission meeting have drug addiction issues, and funding is prioritized to help these individuals, while leaving recreational users alone. For those with substance use disorders, treatment is recommended, but not mandated, and free treatment can begin that day, and may last for about a year and a half.  Trust in treatment is built since there is no risk of punishment, shame, or mandates.  Portugal also gives a one-year tax break to any employer who hires someone in recovery from addiction to help them in integrating into society and to increase success rates, with nearly all of these employees retained past the initial year – indicating that rehabilitation is working, creating productive citizens.

For those who don’t choose treatment programs, methadone is made available to help them stay off of heroin and to reduce risk of overdose or of contracting a disease from dirty needles. Because individuals don’t have to worry about punishment for their addictions, distribution can be in public, is voluntary and is well-accepted.  Drug users no longer run from authorities since they no longer see the police as enemies. This makes investigating other types of crime easier, and leaves resources available to go after real criminals. The day-to-day experience of police officers is also enhanced.

The general public has benefited as well.  Individuals addicted to heroin used to rob people to get their next fix, but crimes related to drug consumption are now nearly non-existent in Portugal because those with addictions are either on methadone, in treatment or recovering.

At least partly because of the U.N. treaty, Portugal did not legalize drugs, so sale of drugs is still illegal and dealers still exist, creating a strange combination since those possessing obviously have to buy drugs somewhere.  However, enforcement for possession is solely an administrative violation and is not part of criminal law, making the experience of drug users far different than in countries pursuing punitive policies.

Uruguay:

In response to drug cartel violence and growth of local mafia benefiting from supplying marijuana, in 2014, Uruguay became the first country in the world to completely legalize marijuana. Smoking pot has been legal in Uruguay for decades, but it was illegal to grow it or to buy it.  Former president Jose Mujica, the primary architect of the legislation, states that the law is simply “regulation of a market that already exists”.  Driving while high or smoking on the job continues to be illegal.  Pharmacies are allowed to sell marijuana to people over 21 who produce an ID, and customers are restricted to buying 40 grams of marijuana monthly.  (One of the issues is that few pharmacies have marijuana available, so most supplies currently come from personal growth.) Crops are grown legally in the country and taxed.  Each home is allowed to grow up to six marijuana plants for personal use, and can belong to private grow clubs that can produce up to 99 plants.

All customers must register with a database run by the Ministry of Health.  This creates one of the largest objections to the legislation, particularly for those who’ve previously lived under dictatorships and are hesitant to be part of a government database.

Other Latin American Countries: In the meantime, other Latin American countries are loosening or considering liberalization of their drug policies.  Chili is showing indications of possible decriminalization of personal use and growing of marijuana.  In Argentina, in 2009, the Supreme Court ruled that prison sentences for small amounts of drugs for personal use is unconstitutional.  Brazil is debating reform of its drug policy.  Columbia allows possession of a ‘personal dose’ of drugs, and the president has endorsed medical marijuana legislation.  Ecuador has reduced drug possession penalties, and the country began releasing hundreds of prisoners held for trafficking small quantities of drugs. Guatemala’s president is pro-reform, and a recent commission recommended approaching drug policy as a public health, rather than a criminal, issue.  In Jamaica, 2 grams of marijuana is allowed for personal use.  Paraguay allows for possession of up to 10 grams of pot.  Venezuela allows up to 10 grams of marijuana and up to 2 grams of cocaine for personal use. The trend is certainly toward liberalization of drug policy throughout Latin America.

Switzerland:

In Switzerland, doctors prescribe drugs, and various programs are offered to help those with substance use issues.  Free methadone and clean needles are provided.  70% of the 20,000-30,000 opiate or cocaine users in Switzerland now receive treatment.  The number of HIV drug users and injector overdose mortality rates has been reduced by 50% in the last 10 years.  Nebehay, Stephanie, Swiss drug policy should serve as model, Reuters.com, Monday, October 25, 2010. 

Netherlands/Holland:

The Netherlands was one of the first countries to use heroin-assisted treatment and safe injection sites, which may be why they have fewer drug-related deaths than anywhere else in Europe.  Contrary to public perception, though, all drugs are illegal in the Netherlands.   The traditional perception of hundreds of coffee shops where marijuana was smoked in public in the Netherlands is no longer accurate.  Recently, the government has required coffee shops to choose between selling alcohol or marijuana, and new laws target marijuana growers, creating issues with supply for coffee shops.  Growers risk losing access to government housing where more than 50% of citizens live.  The result has been price increases in marijuana, rise in street dealers and criminal organizations, and decrease in quality and purity of marijuana.

Legalization of marijuana in specific U.S. States:

Marijuana is illegal on the federal level in the United States, but is currently legal for recreational use in Alaska, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington State, and Washington D.C. As of January 1, 2018, recreational use will go into effect in California.  More jurisdictions will likely follow this trend.

Additionally, medical marijuana is legal in the following states:

Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Rhode Island, Louisiana, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey,New Mexico, New York, North Dakota, Ohio, Pennsylvania, Vermont, and West Virginia. Alabama and Mississippi permit medical marijuana for severe epileptic conditions.

According to Marijuana Business Daily, marijuana is now legally accessible to nearly 190 million Americans — 59.3 percent of the U.S. population.

In addition to the horrific results of past policy, financial considerations may open minds to moving away from our punitive based system to more humane, more effective, and less costly alternatives. Yohann Hari, in his book, Chasing the Scream, Hari, Johann, Chasing the Scream, London, Bloomsbury Publishing, 2015, synopsizes the financial impact of drug legalization:

“In the United States alone, legalizing drugs would save $41 billion a year currently spent on arresting, trying, and jailing users and sellers, according to a detailed study by the Cato Institute. If the drugs were then taxed at a similar rate to alcohol and tobacco, they would raise an additional $46.7 billion a year, according to calculations by Professor Jeffrey Miron of the Department of Economics at Harvard University. That’s $87.8 billion next year, and every year. For that money, you could provide the Portuguese style of treatment and social reconnection for every drug addict in America.”

Change in law is slow, and in the meantime, more individuals are sentenced to jail and to prison, more felony convictions are entered, and more low level drug offenders enter a system that increases their chances of becoming another casualty of the War on Drugs. Funding remains highly focused on law enforcement and incarceration, and the vast majority of those needing treatment are still not getting it in a timely manner. It’s time for change, but how do we bring about that change?

Let’s begin by reviewing some of the criminal justice legislation that’s currently pending:

PRESSING ISSUES NEEDING REFORM:

Until legalization or decriminalization occurs, the following issues desperately need attention.  Many drug prosecutions are state-level cases, so reforms must impact both federal and state law. Unfortunately, if we attempt to resolve each of these issues separately, many years will pass, many lives will be ruined, and billions of dollars will be wasted while separate bills are negotiated and law is implemented.   The result of that approach may be another host of complex rules creating new issues in an attempt to remedy those that have proven to be harmful, costly and unfair.  Using Portugal’s model and reallocating funding to treatment and prevention instead of law enforcement and incarceration would put focus on attainable goals of treatment and education. This would stop the destruction and waste of our punitive, incarceration based War on Drugs with no increase in taxpayer dollars spent to accomplish goals.

From a practical standpoint, the following are some of the significant issues of our current policy:

–  Criminal sanctions are still far in excess of reason in some jurisdictions. For example, in Wisconsin, a 2nd arrest for any amount of pot is a felony, punishable by up to 3 ½ YEARS in prison and up to a $10,000 fine; In Arizona, without a medical marijuana card, any amount of marijuana is a felony charge on the first offense. These sanctions are for POSSESSION of pot only. If the prosecutor deems that the intention was to sell, or if any other type of drug is involved, sanctions get MUCH tougher! Penalties vary considerably from state to state.

–  On top of the harsh statutory sanctions, most drug crimes result in multiple charges, with multiple penalties for the same arrest.  A defendant arrested more than once for low-level drug possession can have a public record that, to the casual observer (e.g. – potential future employer) looks the same as a hardened criminal.  A typical complaint based on a drug arrest would include possession of the drug itself and a separate charge for possession of paraphernalia.  Since marijuana is purchased from drug dealers offering a host of other drugs, charges for more serious drugs may be made if residue of any other drug is found on the container.  If there were prior offenses, a defendant may also end up with a felony charge of bail jumping, which will likely be included if the action is a probation violation.  This can create potential prison time of years to decades based on very few actions.  This can also cause a defendant to face mandatory minimum or 3-strikes repeat offender statutes for a series of minor infractions.

–  Mandatory minimums and 3-strikes statutes can leave judges with no discretion in sentencing, resulting in sentences of decades or life in prison for minor offenses.  The trend has been to reform these mandates, but they still exist on the federal level and in many states.

– Even a short jail term can do enormous damage, in terms of conditions in jail, in changing a young person’s identity to someone who’s done ‘jail time’, in introducing the offender to more serious criminals, and in compromising current jobs and future career opportunities. If an individual is on prescription drugs, their medications may be taken away, causing withdrawal behind bars. This can create mental and physical health issues while incarcerated and upon release.

When looking at the huge penalties for a second offense, consider that there is no Statute of Limitations affecting convictions, so based on a conviction early in adult life, additional offenses happening at any time for the rest of that person’s life can create long prison stays.

–  Due process, for all practical purposes, is non-existent in most drug prosecutions.  If you were charged under a statute that carried a potential penalty of years in prison, would you risk taking the case to trial?  That’s unlikely.  Prosecutors use the harsh penalties in the statutes to promote severe plea agreements, with offenders having little choice but to accept them.  If there’s no trial, due process requirements like the right to a speedy trial, the right to cross-examine, and the right to apply the rules of evidence are irrelevant.

In application, prosecutors and probation agents have much more power in our current criminal justice system than the courts, and there are few practical protections for the accused within this system. Resolution of criminal cases and the lives of those prosecuted is largely based on subjective decisions of prosecutors at the point that charges are filed and subjective decisions by probation officers in controlling the lives of the ‘offenders’ assigned to them.  Most probation terms are multiple YEARS in length, even for low level drug arrests.  During that time, civil liberties are largely non-existent, with homes and cars subject to search, call-ins and drug tests on demand, requirements for approval to travel, to move, to change jobs and many other day-to-day decisions. The threat of incarceration based on the discretion of the probation officer constantly hangs over the ‘offenders’ head.

–  Delays inherent with the criminal justice system often result in punishment for ‘offenders’ when they’ve begun to turn their lives around, wiping out progress and wasting money invested in recovery. Spending taxpayer money to pursue those who’ve voluntarily taken positive steps right after an arrest is simply destructive and unproductive. The one-size-fits-all mandates of many probation systems ignore progress and programs voluntarily completed by offenders prior to conviction or entry of a plea.

–  Drug testing using urine leaves probationers standing in lines, waiting for their cup, and standing with their pants at their ankles with a stranger looking over their shoulder. The false positive rate on UA’s is estimated at 5-10%.  More than 300 over-the-counter drugs and foods can affect UA tests.  Paruresis, or Shy Bladder, makes it difficult or impossible for an individual to urinate in public.  The 7% of the public suffering from this medically accepted disability simply cannot provide a urine sample under the conditions typically required by probation.  This can lead to severe sanctions due to a medical disability.  The option for hair follicle, blood or saliva testing should be given to probationees.

–  Under current law, record expungement is only available to those under certain designated ages (typically 21 to 25). The Redeem Act (Record Expungement Designed to Enhance Employment Act) sponsored by Senator Rand Paul, would extend the opportunity for record expungement to non-violent drug offenders, allowing them a fresh start. While this is a good start and is essential to give the huge numbers of low level drug offenders with current records a fresh start, simply not giving them criminal records in the future would allow them the best opportunity for recovery and overall success. In the meantime, the Redeem Act should be passed.

–  Drivers licenses are used like weapons even when the offense has nothing to do with driving.  The propensity of the criminal justice system to suspend drivers licenses for many infractions that are totally unrelated to vehicles leaves many with the option of not getting to work or driving without a license.  In conjunction with driver license revocations, classes, probation meetings, and court appearances are mandated, leaving some defendants with mandates but no transportation to be able to comply. In many cases, licenses are suspended with no notice provided, or with notice long after the revocation date.  In these instances, if an accident occurs, insurance may be compromised and charges for operating without a license may be filed even if the driver had no notice that the license had been suspended.

–  Family help and involvement can be an important factor in recovery when a substance use issue does exist, but family support is penalized under our current system. Parents who allow adult children to live with them while on probation risk home searches, and actually risk having the home and other assets seized under civil forfeiture law. Parents who attempt to contact a prosecutor on behalf of a defendant quickly learn that their input is typically not welcome. Calls to jails – even to report major issues with health care of an inmate – may result in stern reprimands for calling the facility on behalf on an inmate, or worse yet, may result in harsh treatment of the inmate in retribution for an outsider’s call. Low pay and high demand for guards in jails and prisons leads to untrained and unsuitable individuals in positions of control over those behind bars. Too often, families are told they should not be involved, leaving inmates at the mercy of a dysfunctional system.

Putting a person in a cage – the essence of what incarceration means – is a very serious punishment.  Prior to making that judgment, the prosecutor involved with the plea agreement or prosecution should be required to meet with the defendant and the defendant’s family for a minimum of 30 minutes, to gain insight into the entire situation.  As an attorney, I understand the complications and time requirements that this mandate would entail.  However, if we are forcing a person to be locked behind bars, 30 minutes to make the situation personal and to give the prosecutor insight into what may be the best course of action should not be too much to ask.  If 30 minutes of a prosecutor’s time is not available before incarcerating someone, then perhaps we should be prosecuting fewer people.  With the probationee’s approval family meetings with the probation officer should also be available, giving agents insight into the family situation and developing valuable relationships between the agent and the family.

–  The private prison business is now a $70 billion dollar goldmine. The Corrections Corporation of America (CCA) offers to buy and manage public prisons at a cost savings to the states, but requires that the prisons contain at least 1,000 beds and maintain a 90% occupancy rate for at least 20 years.  These requirements provide all of the wrong incentives.  Private prisons have incentive to spend as little as possible on prisoners, and states are required, by contract, to increase – rather than to decrease – incarceration rates.  Any form of contract mandating minimum occupancy rates in prisons must be prohibited.

This is just the beginning of the quagmire that our criminal justice system has become. We could try to fix this piecemeal, or we could focus our criminal justice and prison system on violent crime, and convert drug policy to one promoting treatment and education. That would end funding of the violent drug cartels, would minimize drug use and addiction and overdose rates, and would give those with substance use issues and their families a chance at good lives as productive citizens. This can only be accomplished by ending criminal sanctions for drug use and converting the massive expense of arrest, prosecution, incarceration, probation and parole to evidence based, long term treatment for those who want it.

Why Drug Courts are Not the Answer

Drug court programs were designed in an attempt to minimize drug use, save money and reduce incarceration rates of those charged with nonviolent drug related crimes. A multidisciplinary team including judges, prosecutors, defense attorneys, community corrections personnel, social workers and treatment professionals work with participants who agree to undergo treatment and comply with other drug court requirements in lieu of incarceration.

Since the first U.S. drug court in Miami-Dade County, Florida in 1989, drug courts have grown dramatically. All 50 U.S. states now have them, and drug courts exist in Australia, Canada, New Zealand, and the United Kingdom. 

Drug courts offer treatment in lieu of incarceration. How could that possibly be anything but positive? There’s no doubt that some individuals have benefited from drug court. For those able to comply perfectly with drug court mandates, the treatment offered can be a turning point toward sobriety and a productive life. Within our current system, many of these individuals would be unable to afford other treatment options, so drug court offers the opportunity for treatment services that would otherwise be unavailable to them.

So, What’s Not to Like?

‘Failing’ Drug Court is a Huge Risk.

Unfortunately, participants who aren’t successful in drug court – which can mean they haven’t PERFECTLY complied with every requirement, may be punished with incarceration. Failure in drug court could be due to a relapse, missing or being late for even one appointment, or not following every individual mandate of the program. Requirements are subjective, and may include written homework and other assignments which can be difficult for those with learning disabilities, making compliance difficult. Mandates may include many hours of meetings, classes, and counseling sessions, difficult for those with attention deficit, and adding to the burden of defendants who may already be required to perform hours of community service.   Those already under pressure to keep jobs to create income with which to pay ongoing fees for the drug court ‘services’are put under even more stress. 

Penalties are Often More Severe for Drug Court ‘Failure’ Than Without Drug Court. 

Penalties for not meeting the perfection standard can be severe. The amount of time spent behind bars may be significantly longer for those who ‘fail’ drug court than would have been the case if they hadn’t agreed to drug court in the first place. In some jurisdictions, the price of entering drug court is a guilty plea, with the defendant waiving the right to a trial, to discovery, or to contesting the circumstances of the arrest. The guilty plea usurps the opportunity for a plea agreement. In some drug courts, if successfully completed, records are expunged, but in other jurisdictions, the guilty plea will remain on the defendant’s permanent record.

The concern about the potential for more jail time after agreement to drug court than without it was expressed by the Drug Policy Alliance in its report on drug courts:

“Not only will some drug court participants spend more days in jail while in drug court than if they had been conventionally sentenced, but participants deemed “failures” may actually face longer sentences than those who did not enter drug court in the first place (often because they lost the opportunity to plead to a lesser charge).”

Those who understand the risks and opt not to participate in drug court may be punished by prosecutors who are unhappy about the defendant’s unwillingness to participate in the program.

Some drug courts incarcerate offenders for a short time for an initial act of non-compliance, and some courts immediately trigger the full sentence for any infraction.  Either short or long-term incarceration can create serious medical issues related to withdrawal without appropriate medical care, and higher risk of overdose when released.

There have been multiple lawsuits for wrongful detention without a hearing or due process, federal civil rights violations, and unauthorized arrests and searches of drug court participants. Some drug court participants were held pending placement in treatment, but when no placements were available, they were kept in jail with no hearing and no due process.

Inability to Pay Fees May Result in Incarceration.

Failure to pay drug court, probation and the many other fees assessed may cause a defendant to be removed from drug court and be deemed to be a probation violation, punishable with incarceration. Debtors’ prisons were outlawed in the U.S. nearly 200 years ago, but the 1983 U.S. Supreme Court case, Bearden v. Georgia, 461 U.S. 660 (1983), held that if a defendant has the ability to pay but ‘willfully’ refuses, the defendant can be imprisoned for nonpayment. The court failed to define a standard for determining ‘ability to pay’.

A extensive investigation by National Public Radio found sweeping discrepancies on how judges determined ‘ability to pay’, including assumptions that tattoos, smoking or a nice jacket indicates ability to pay. Other judges have simply told defendants that they must ask family members for money with which to pay. Every day, people are put behind bars because they failed to pay court debts. The amount of court fees and costs assessed to individuals is high, and often leave defendants on a revolving wheel where they simply have no hope of getting out from under the financial burden of the fees and costs, plus added penalties for past payment or fees which accumulate during periods of incarceration. Unfortunately, parents’ finances are frequently drained in efforts to keep their children out of jail. 

Treatment Services May Be Compromised and Are More Expensive than Non-Court Related Treatment:

Treatment services offered by drug court are restricted only to specific treatment mandated by the court, regardless of whether it is the best fit for the individual. Treatment services are often based on contracts negotiated with a particular provider, and many are faith-based programs that have been ruled unconstitutional as a violation of the Establishment Clause of the First Amendment.

Counselors with whom defendants are supposed to build trust report directly to court personnel who have the power to put the defendant in jail. This incestuous relationship between treatment providers and courts can significantly compromise trust and severely minimize benefits of treatment. Drug court participants (and those on probation or parole) are typically required to sign release forms to allow counselors to share information, and if they don’t sign, they risk incarceration.

Drug Court Threats May be Triggers for Relapse.

Overwhelm, stress and inability to trust others can be triggers for relapse. The standard of perfection required by drug courts would be unrealistic for anyone, let alone individuals struggling with drug issues (and often mental or physical health issues and financial challenges). Would any of us be willing to enter an agreement stating that if we were late for or missed an appointment or a payment in the period of a year or more, we would be put behind bars? The stress created by daily fear and the isolation caused by the risks involved in trusting others is the exact opposite of what experts recommend for recovery.

Drug Court May Mandate Treatment for Those Without Substance Use Disorder, While Those Who Need Services Sometimes Can’t Get Them. 

Less than 20% of drug users are addicted. Drug courts don’t verify that someone arrested for drug possession actually has substance use disorder. When thousands who want treatment can’t get it, mandating treatment for those who don’t need it is unproductive and expensive, as well as potentially damaging to the individual.

Structure is Rampant for Abuse.

Drug court participants have little control over their own lives, and are sometimes subjected to humiliation and abuse on a daily basis for a year or more. Treatment providers’ financial survival depends on catering to the court – their referral source – more than their actual ‘client’, and have financial incentives to keep defendants in the system for as long as possible. While some providers can withstand these incentives and serve their true clients well, this structure is ripe for abuse and overreaching. Defendants have no power, and risk incarceration if they ‘rock the boat’ in any way, so are very unlikely to complain regardless of what occurs in the ‘treatment’ setting.

Judges Are Dictating Medical Decisions.

Medication assisted treatment has been proven to be a viable method of treatment for substance use disorder, and can reduce relapse rates by over 50%. Additionally, physicians prescribe medications to their patients for a variety of physical and mental health reasons. Some drug court judges mandate that defendants go off of their medications to be in compliance with drug court.

A 2015 survey by SAMHSA indicated that less than twenty percent of drug courts allow medication-assisted treatment. Some progress is being made. In February 2015, the Office of National Drug Control Policy announced that it would refuse to fund drug courts that apply for grants if they do not allow medication-assisted treatment. However, most drug courts are funded primarily by states or other local governments. Additionally, most jails ban medication-assisted treatment. 

Judges, who are trained on legal matters but have no medical training, should NEVER have the authority to put a defendant in the position of going to jail or adjusting medication that is working. Judge’s orders to end medication-assisted treatment have been directly linked to several defendants’ deaths due to overdose after being forced to terminate medication-assisted treatment that had been working successfully for them.

‘Offenders’ are sometimes given short jail sentences due to noncompliance with drug court mandates. Going through withdrawal behind bars with no medical help is the norm and has resulted in numerous deaths. Individuals are at significantly heightened risk of overdose upon release because drug tolerance levels are reduced if they go for periods of not using while incarcerated.  Compromising body chemistry and impacting physical and mental health by denying prescription medications is inhumane, and increases the risk of addiction and other medical issues.

Drug Courts Don’t Solve the Issues Inherent With the War on Drugs.

Drug courts are simply an attempt at a less expensive way of enforcing the war on drugs. They do nothing to solve the problems with it.

“In terms of the politics,” says Tracy Velasquez of the Justice Policy Institute, “one of the concerns we have is that drug courts are basically a way for policymakers to make it look like they’re doing something on the war on drugs without actually addressing the war on drugs.”

It’s important that we take a broader view of public policy as it’s applied to addiction, and take steps to end the war on drugs as we know it.

Drug Court May Jeopardize Defense. 

Defense attorneys are part of the drug court ‘team’ when the client is agreeing to drug court, and most withdraw from cases upon a client’s entry into drug court, so are unaware of issues arising after the client’s agreement to become part of a drug court program. Additionally, defense attorneys need to have positive relationships with prosecutors and judges, and failure to recommend drug court to their clients can put them at risk of jeopardizing those relationships.

Elizabeth Kelley of the National Association of Criminal Defense Attorneys expressed concern that, in many drug courts, the defense attorney is asked to forfeit the traditional role of being the zealous advocate of the client to be part of the team. Federal drug court guidelines direct defense attorneys to explain all of the rights that the defendant will temporarily or permanently relinquish, and then to work with prosecutors “to build a sense of teamwork and to reinforce a non-adversarial atmosphere.” A non-adversarial atmosphere does not protect the rights of a defendant who ‘fails’ drug court.

Summary:

When offers of drug court are made, defendants frequently agree to the offer with little information on the pros and cons or on how this agreement will truly impact their day-to-day life or their risk of incarceration. Unfortunately, options are often so horrendous that this bad alternative seems preferable to other ‘choices’.

According to the Drug Policy Alliance, appropriately 95,000 drug offenders ‘fail’ U.S. drug court every year. Anyone considering drug court should be aware that, statistically, only about half of those entering drug court successfully complete it, and those who don’t successfully complete the program pay a high price for ‘failure’.

Multiple government agencies recognize substance use disorder as a health condition. It’s time to apply medical treatment to a medical problem, and remove it from the criminal justice system.