Expanding drug courts won’t help ease the opioid crisis

Wednesday’s report from the White House’s opioid commission recommends a major expansion of drug courts nationwide.

Drug courts — courts that impose mandated, abstinence-based treatment on people arrested for drug possession, with close judicial oversight — arose in the 1980s and ’90s as a laudable attempt to ease the devastating effects of the war on drugs. Today, there are more than 3,100 drug courts in the U.S., up from just one in 1989 and 665 in 2000. Half of all U.S. counties now have at least one operating drug court.

Yet available evidence does not support their continued expansion. Most drug courts do not reduce imprisonment, do not save money or improve public safety, and ultimately fail to help people struggling with drug problems. Today’s drug courts are no more effective — but are considerably more costly — than voluntary treatment, and often leave their participants worse off for trying.

Most U.S. drug courts fail to provide treatment that meets basic standards of medicine and public health, as recently documented in a damning report by Physicians for Human Rights. These courts respond to the predictable relapses of drug-dependent individuals by kicking them out of treatment and locking them up in jail. Yet incarcerating people for relapse flies in the face of medical and public health principles, with blatant disregard for the many dangers to health and safety posed by jails. Because drug courts impose jail sanctions for drug relapse, their participants often end up serving more time behind bars than those whose cases are handled by conventional courts.

The majority of U.S. drug courts prevent people who are opioid-dependent from receiving medication-assisted therapy, also known as opioid substitution treatment, which has long been recognized to be the most effective medical intervention for reducing opioid drug use, the spread of HIV/AIDS, and overdose deaths by leading U.S. and international health experts including the National Institute on Drug Abuse, the Centers for Disease Control and Prevention, and the World Health Organization. By denying access to these medications, drug court judges reject science, usurp the authority of medical professionals, and place opioid-dependent people at significantly elevated risk for overdose.

Drug courts don’t reduce incarceration because they admit only people who wouldn’t have received lengthy prison or jail sentences in the first place, often people arrested simply for possession of marijuana. Many U.S. drug courts “cherry pick” participants most likely to succeed, focusing on people who either don’t need treatment or who would do as well or better in treatment provided less expensively outside of the court system.

Available data indicate that people of color are less likely to be admitted to drug court, less likely to successfully graduate from drug court, and more likely to receive a punitive sanction for failing drug court — thus increasing the extreme racial disparities in drug law enforcement and sentencing. Drug courts also do a particularly poor job of meeting the treatment needs of women.

Most drug courts even require participants to give up their due process rights and plead guilty as a condition of program eligibility, with the chance of having that conviction later expunged upon successful completion. Yet the majority of drug court participants never get their convictions expunged, and are left saddled with criminal records that often act as lifetime barriers to many aspects of social, economic, and political life. The consequences of a conviction can include denial or loss of child custody, voting rights, employment, business loans, licensing, student aid, public housing, and other public assistance. A guilty plea in a drug court can also result in deportation for noncitizens, even if they are legal permanent residents.

Since drug courts need prosecutors, judges, and other court staff, as well as the use of a public courtroom, drug courts are more costly than voluntary treatment delivered through the health system. Such courts also absorb scarce resources that could be better spent on proven health-centered approaches like community-based treatment.

Three decades of U.S. experience has shown that drug courts largely function as an adjunct to incarceration and criminal punishment, not an alternative to it. Meanwhile, decades of empirical evidence from around the world shows that simply eliminating criminal penalties for drug possession can help drastically reduce addiction and overdose. Several countries have successful experience with drug decriminalization, most notably Portugal. Their experiences demonstrate that ending drug criminalization — alongside a serious investment in treatment and harm reduction services — can virtually eliminate drug overdose deaths, while significantly improving public safety and health.

Earlier this year, the United Nations and the WHO released a joint statement calling for the repeal of laws that criminalize drug use and possession. They join a remarkable group of national and international organizations that have endorsed drug decriminalization, including the International Red Cross, Organization of American States, Movement for Black Lives, NAACP, and American Public Health Association, among others.

It’s now common to hear elected officials and policymakers say that “addiction is a public health issue” and that “we can’t arrest our way out of our drug problems.” If that’s the case, then why is the U.S. still arresting 1.3 million people each year simply for drug possession?

Otherwise law-abiding people who are found possessing a drug for personal use should never be arrested or sent to a criminal court — including a drug court. Rather than relying primarily or exclusively on drug courts, policymakers seeking to address the overdose crisis should consider removing drug possession from the criminal justice system entirely.

Drug courts are no solution for the systemic problems of skyrocketing overdose deaths and mass drug arrests. They’re not even a stopgap.

Jag Davies is director of communications strategy at the Drug Policy Alliance, the nation’s leading organization promoting drug policies grounded in science, compassion, health, and human rights.