Drug overdoses dramatically rose during the pandemic to make 2020 our deadliest year so far.
Overdoses claimed the lives of 81,000 Americans in the 12 months up to May 2020. In San Francisco, for example, fatal overdoses killed three times as many people as the coronavirus. The overdose crisis is an epidemic, and we must invest in proven life-saving solutions.
And this crisis is requiring us to bring new thinking to drug policy.
President Joe Biden committed to end incarceration for drug use, explaining that no one should be imprisoned “for the use of illegal drugs alone.”
As a former prosecutor and a public health researcher, we agree with this starting point, having seen that incarcerating people for drug use doesn’t make communities safer or healthier.
In lieu of incarceration, Biden has embraced drug courts and other forms of coerced or forced drug treatment to address the mounting crises of overdose and addiction in the United States. Although we agree with the president’s diagnosis, we part company with his prescription.
Drug courts are part of a failed system that presumes we can “punish” our way out of addiction. Instead, research shows that people who use drugs need community-based harm reduction and treatment services, not the threat of criminal sanction.
If we want to move beyond the discredited War on Drugs and save lives, we must abandon the fixation on drug courts, invest in proven solutions, and let healthcare professionals ― not lawyers and judges ― guide treatment.
Drug courts aren’t new. For the last 30 years, the primary way the criminal justice system has attempted to connect people with substance use disorders to healthcare is via drug courts. In drug courts, people undergo court-monitored inpatient or outpatient treatment, often featuring frequent drug testing and “stepped sanctions” for noncompliance, such as failing a drug test or missing a court date, generally in exchange for a reduction or dismissal of charges.
“Stepped sanctions” can range from extra court appearances for periods of incarceration and the process of “graduating” from drug court may take six months to two years or more.
Many of the over 3,000 drug courts across the U.S. are supported by substantial federal spending. Some $40 million is invested in drug courts and drug court technical assistance every year by the federal government and president Biden has pledged to increase that funding.
But that investment address neither the evidence nor the needs of our communities.
Drug courts claim to reduce recidivism when operating according to best practices, but the research supporting these claims warrants closer scrutiny. The evidence is highly skewed by the common practice of cherry-picking individuals most likely to succeed and excluding those most in need of care.
For example, a study found that although over half of the 907 individuals who died from overdoses in Philadelphia in 2016 had prior contact with the criminal legal system in the last two years, only nine were deemed eligible to participate in drug court.
Additionally, many drug courts aren’t run according to best practices, juvenile drug courts in particular appear to actually increase recidivism, and some research shows that when individuals don’t succeed in drug court they become more likely to be rearrested than if they’d just had their case handled conventionally.
And most importantly, reducing recidivism isn’t the same as ending the criminalization of drug use, improving the health of people who use drugs, or improving community welfare ― and those should be our primary goals when it comes to drug policy.
The evidence is clear that drug courts don’t decrease incarceration rates.
While drug courts reduce initial sentences, that reduction in incarceration is offset by the time participants spend behind bars for sanctions as well as lengthier sentences imposed on people who fail to graduate from drug courts.
And studies have found that people who fail drug court programs receive sentences up to two to five times longer than conventionally sentenced defendants facing the same charges.
Many practitioners similarly have observed that drug courts expand the footprint of the justice system. Well-intentioned prosecutors or judges may sweep lower levels of cases into the drug court in the interest of forcing people into the intensive treatment drug courts entail, even when the burden of drug court is out of proportion with the offense they committed.
Meanwhile, drug courts are run by judges, not doctors, and that means they can be far from clinically sound, particularly when prosecutors or judges deny participants access to lifesaving opioid substitution therapies like methadone.
Jail sanctions aren’t treatment.
In fact, incarceration is linked with higher rates of suicide, the worsening of co-morbid mental health conditions, lower life expectancy, blood-borne virus transmission and the initiation of intravenous drug use.
Few drug courts even measure their impact on health outcomes like overdoses and mortality ― illustrating that improving health is not their primary concern.
There are multiple other criticisms that drug courts have faced―from their fines and fees to the ethics of coerced treatment as a whole. We should invest in proven strategies and devote resources to live-saving harm reduction services, like street outreach, overdose prevention sites, and alternative first responders.
We need free easily accessible methadone and buprenorphine. And when people do come into contact with the criminal legal system, we need off-ramps from incarceration ― models that deflect people out of the legal system and into appropriate services, ensuring people receive evidence-based care without criminalizing them.
In the immediate future, drug courts remain a political reality. They’re popular with judges, and sometimes have strong community buy-in because they offer a satisfying, if illusory, narrative of redemption.
There are things prosecutors can do to make existing drug courts better, like ensuring they comport with best practices, incorporating harm reduction principles, and avoiding using them to punish drug use alone.
But in the longer term, drug courts aren’t the solution to reducing drug-related incarceration or saving lives. Criminal justice leaders must look at the evidence, and embrace a public health approach to drugs―we urge the new administration to follow suit.
America deserves better. We’ve lost too many lives already.
Miriam Krinsky is a former federal prosecutor and executive director of Fair and Just Prosecution. Leo Beletsky is a professor of law and health sciences and the faculty director of Northeastern University School of Law’s Health in Justice Action Lab.