By Christine Mehta, Researcher at Physicians for Human Rights
Edited by Arpit Chaturvedi
On November 1, 2017, President Trump’s Commission on Combating Drug Addiction and the Opioid Crisis released a draft plan recommending that every federal judicial district in the United States establish a drug court. Drug courts are touted as an alternative sentence to incarceration, and generally mandate abstinence-based, court-supervised treatment for people arrested on drug-related charges.
While drug courts are popular with lawmakers because they satisfy the political optics of responding to the opioid crisis while still appearing tough on crime, they will fail to achieve the goal put forward by former Governor Chris Christie in a letter to the president presenting the commission’s draft plans: “to reverse the rising tide of overdose deaths.”
As a researcher for Physicians for Human Rights (PHR), I spent six months in 2016 traveling from county to county in New Hampshire, Florida and New York visiting drug courts. The resulting report, Neither Justice Nor Treatment: Drug Courts in the United States,  which I co-authored with my colleague Marianne Møllmann, demonstrates several key failings in drug courts in these states. Specifically, drug courts often fail to provide evidence-based treatment, they compromise medical ethics for treatment providers, they routinely violate the human rights to privacy and health of participants, and they fall far outside of a public health response to problem drug use.
Drug courts were first established at the height of the drug war in 1989 in Miami, Florida, as a scheme to reduce jail overcrowding. Politically popular, drug courts quickly proliferated. As of 2015, drug courts were operating in almost half of all U.S. counties—3,000 courts in total. While some studies show that drug courts reduce recidivism better than prison, critics argue that the studies are flawed. In addition, most evaluations of drug courts fail to compare drug-court outcomes with harm-reduction programs and voluntary, community-based treatment. Those studies, often funded by state governments, also fail to acknowledge that many drug court participants end up spending a long time in jail. Drug courts were established to address the very real problem of overflowing jails and prisons, but ended up creating a separate court system every bit as ineffective as incarceration when it comes to addressing the underlying problem: access to treatment for people arrested on drug-related charges. Drug courts were, and still are today, a criminal justice response to a public health issue.
We know today that coercive, abstinence-based treatment models are less effective than voluntary treatment. In the early 1990s, treatment meant abstinence, and failure to adhere to the requirements of that treatment meant jail.
Many drug courts mandate abstinence as a condition for participation in treatment without any basis in medical evidence. They often disallow medication-assisted treatment and punish relapse with jail. Medication-assisted treatment, namely methadone, buprenorphine/naloxone (commonly known as Suboxone), and naltrexone, combines medications and behavioral therapy to treat substance use disorders.
Methadone and buprenorphine are included in the World Health Organization’s Model List of Essential Medicines. Despite their evidence-base, methadone and buprenorphine are stigmatized within large parts of the criminal justice system and treatment community as “swapping one addiction for another.” Individuals who use methadone and buprenorphine therapies sometimes taper off the medication, while others need to remain on a maintenance dose for extended periods of time, if not for the remainder of their lifetimes.
In response to the opioid crisis, states, counties, and now President Trump’s administration are seeking ways to make treatment for problem drug use mandatory, either through drug courts or through the expansion of civil commitment laws, regardless of growing evidence that such coercive approaches are ineffective. The city of Buffalo has recently established an “opioid court”—a drug court that only admits people arrested on opioid-related charges and provides court-supervised treatment under strict conditions. The court operates similarly to regular adult drug courts, except the court provides “expedited” access to treatment, which ensures that those with a court mandate gain access to detox beds or inpatient treatment within hours, rather than being placed on waiting lists for days or weeks. The court is a particularly problematic attempt to respond to the opioid crisis, as it sets a precedent for using the criminal justice system to address a public health problem, privileging those with a court mandate ahead of those seeking treatment voluntarily, and using the sanctions and surveillance of the court system as a means to force treatment for those who come into contact with law enforcement.
As members of congress grapple with the rapid increase in overdose deaths, they have returned to the attractive option of expanding drug courts. In 2016, New Hampshire established a state drug court coordinator position and stated a goal of expanding drug courts to every county to counter the opioid crisis. Now, President Trump’s commission wants to do the same nationally.
As Tom Velardi, County Attorney for Strafford, New Hampshire, told me in December 2016, “I have told the state that drug courts are not a silver bullet. You cannot rely on these to fix the opioid crisis. We are superimposing a public health epidemic on an anachronistic criminal justice system.”
What is the solution? With the appropriate adoption of evidence-based treatment, drug courts could play a role in providing treatment for truly high-risk, high-need individuals—the population some drug court proponents argue should be prioritized for access to drug court programs. Drug courts are, however, incapable of treating the vast majority of people currently suffering amid the opioid crisis. As they stand, drug courts are too often used to treat people who do not need treatment and are merely diverted to drug court on possession charges. A better solution would be to move treatment for substance use disorders entirely out of the criminal justice system. In its recent report, Physicians for Human Rights calls for the decriminalization of all drug possession as a critical step in moving treatment out of the courts. While possession of illicit substances remains criminalized, people with substance use disorders will continue to be arrested, coerced into treatment, and imprisoned.
A truly public health response involves expanding access to harm-reduction services for everyone and to evidence-based treatment for those who want it. Such measures could help keep people out of the criminal justice system in the first place.
While the commission’s draft report demonstrates growing recognition of the need for unfettered access to medication-assisted treatment, it fails to mention harm reduction at all in its 138 pages. Research in other countries shows that harm-reduction services like syringe exchanges, safe injection facilities, pharmaceutical heroin, and case management services, among others, are vital for preventing overdoses, HIV, and hepatitis C. This research finds such services improve the overall health and safety of people with opioid use disorders.
Although the U.S. federal government has been slow to take steps towards harm reduction, some states are forging ahead. New York’s Department of Health AIDS Institute, for example, funded 11 syringe-exchange programs in 2016 as a new initiative to provide immediate support. These programs include services like housing, health care, emergency naloxone kits, counseling, and clean syringes to individuals who overdose, all without requiring law enforcement intervention or mandated treatment. These so-called ‘Health Hubs’ are based on a harm-reduction approach, meaning the primary aim is to reduce the harms associated with drug use and to facilitate information about treatment for those who want it. Harm reduction is based on belief in and respect for the rights of people who use drugs, and all services accessed through the Health Hubs are voluntary.
In 2016, city officials and law enforcement in Albany, New York, established the Law Enforcement-Assisted Diversion program, or LEAD, with the assistance of the harm reduction community. LEAD, a model piloted in Seattle in 2011, has since been implemented in Santa Fe, New Mexico, Albany. Ithaca, New York, is looking to establish LEAD programs in 2018.
LEAD allows police officers to connect to a case manager any person arrested for low-level offences like drug possession, loitering, or using drugs in a public place. Once this connection is made, the case is not registered as an arrest and no charges are filed. Also based on harm-reduction principles, LEAD programs aim to address the needs of the person being served by providing support for services like housing, job training, healthcare, and optional counseling, none of which are contingent on the individual stopping drug use or seeking treatment.
“For folks who are not ready for treatment, harm reduction can build them up and address barriers for them and keep them alive and safe…and we’ve built a relationship based on non-judgmental health and safety,” said Keith Brown, director of the Health and Harm Reduction program at the Katal Center for Health, Equity and Justice in Albany.
Albany’s former chief of police Brendan Cox told PHR in 2016: “We need people to grasp the concept that people might still be using [drugs] while we’re getting them what they need. Abstinence is not the goal.”
Brown, however, stressed during an interview with PHR in Albany in September 2017 that while programs like LEAD are a significant step in the right direction, they are also not a silver bullet. Ultimately, expanding access to evidence-based treatment and harm reduction de-linked from law enforcement altogether are the best measures to address the opioid crisis, he said.
New York’s Department of Health has committed $14 million to harm-reduction programs for 2017-2018. The funding will go to syringe exchange programs, Health Hubs, and harm reduction supplies. From 2012-2017, the Department of Health increased funding to harm reduction programs by $5 million dollars.
This signals an incremental shift towards acceptance of harm reduction and community-based treatment in lieu of incarceration or court-supervised mandatory treatment in New York. At a federal level, however, President Trump’s opioid commission draft plans still fall within the paradigm of a punitive drug policy—an approach that is rapidly becoming outdated. Leaders in the U.S. and around the world have declared defeat in the “war on drugs,” and acknowledged the need for reform. It is time for policymakers in the United States to accept problem drug use as a health issue, not a law-enforcement issue. Even more importantly, these policymakers must accept and begin funding evidence-based treatment and harm reduction services in particular as part of the mainstream response to one of the worst public-health crises in U.S. history.
- Christie, Chris. November 1, 2017. 2017. The President’s Commission on Combating Drug Addiction and the Opioid Crisis. Draft, The President’s Commission. Accessed November 13, 2017. https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Final_Report_Draft_11-1-2017.pdf. ↑
- Mehta, Christine, and Marianne Mollmann. June 2017. Neither Justice nor Treatment: Drug Courts in the United States. Research, Physicians for Human Rights, New York: Physicians for Human Rights. Accessed November 13, 2017. http://physiciansforhumanrights.org/library/reports/neither-justice-nor-treatment.html ↑
- National Association of Drug Court Professionals. Drug Courts History. Accessed November 13, 2017. http://www.nadcp.org/learn/what-are-drug-courts/drug-court-history. ↑
- The President’s Commission. November 1, 2017. The President’s Commission on Combating Drug Addiction and the Opioid Crisis. Draft, Accessed November 13, 2017. https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Final_Report_Draft_11-1-2017.pdf. ↑
- Drug Policy Alliance. Drug Courts are Not the Answer. March 2011. Accessed November 13, 2017. https://www.drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf. ↑
- Seddon, Tony. “Coerced drug treatment in the criminal justice system.” British Society of Criminology 7, no. 11 (2007): 269-286. Accessed November 13, 2017, doi: 10.1177/1748895807078867. ↑
- Werb, Dan, A. Kamarulzaman, M.C. Meacham, C. Rafful, B. Fischer, S.A. Strathdee, and E. Wood. 2016. “The effectiveness of compulsory drug treatment: A systematic review.” International Journal of Drug Policy 1-9. Accessed November 13, 2017. doi: 10.1016/j.drugpo.2015.12.005 ↑
- Mehta and Mollmann 2017. ↑
- See the National Center on Addiction and Substance Abuse’s 2012 report, “Addiction Medicine: Closing the Gap between Science and Practice.” https://www.centeronaddiction.org/addiction-research/reports/addiction-medicine-closing-gap-between-science-and-practice. ↑
- Vestal, Christine. “Support Grows for Civil Commitment of Opioid Users.” Pew Charitable Trusts/Research & Analysis/Stateline. June 15, 2017. Accessed November 13, 2017. http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/15/support-grows-for-civil-commitment-of-opioid-users. ↑
- NBC News. “Buffalo’s Opioid Court Hopes to Show New Path in Addiction Fight.” July 22, 2017. Accessed November 13, 2017. https://www.nbcnews.com/feature/101/video/buffalo-s-opioid-court-hopes-to-show-new-path-in-addiction-fight-1006597699816. ↑
- Press release, Governor Hassan’s office. “Governor Hassan Signs Bipartisan Bill Establishing Statewide Drug Court Program.” June 14, 2016. Access November 13, 2017, https://www.nh.gov/news/documents/pr-2016-06-14-drug-court.pdf. ↑
- “PHR interview with Tom Velardi, County Attorney, Strafford County, New Hampshire.” Interview by author. December 2016. ↑
- National Association of Drug Court Professionals. Adult Drug Court Best Practice Standards: Volume I. Alexandria, VA, National Association of Drug Court Professionals. Accessed November 13, 2017, http://www.nadcp.org/sites/default/files/nadcp/AdultDrugCourtBestPracticeStandards.pdf. ↑
- Mehta and Mollmann 2017. ↑
- Wood, Evan, Thomas Kerr, Elisa Lloyd-Smith, Chris Buchner, David C. Marsh, Julio SG Montaner, Mark W. Tyndall. “Methodology for evaluating Insite: Canada’s first medically supervised safer injection facility for injection drug users.” Harm Reduction Journal 1, no. 9 (2004). Accessed November 13, 2017. doi: 10.1186/1477-7517-1-9 ↑
- “PHR interview with Health Hub officials at Project Safepoint in Albany, New York.” Interview by author. September 2017. ↑
- “Email communication from New York State Department of Health to PHR.” Interview by author. September 2017. ↑
- “Email communication from New York State Department of Health to PHR.” Interview by author. September 2017. ↑
- Doward, Jamie. “The UN’s war on drugs is a failure. Is it time for a different approach?” The Guardian. April 2, 2016. Accessed November 13, 2017. https://www.theguardian.com/world/2016/apr/02/un-war-on-drugs-failure-prohibition-united-nations. ↑