Should We Send Drug Addicts to Treatment Instead of Prison?

The United States, with the highest incarceration rate in the world, is still locking up drug offenders in prisons. Why?

Should we send drug addicts to treatment instead of to prison? I don’t think anyone can credibly disagree that the War on Drugs has been a miserable failure, so why are we are still pursuing the same policies decades later?

The SC House is considering a bill that would give law enforcement discretion to place drug users in a “deflection program” instead of arresting them. Is that a good idea? Is it at least a step in the right direction?

What would SC House Bill 3733 accomplish? More importantly, are there models of effective drug policy in other countries that have been successful in reducing drug-related crimes, drug overdoses, and incarceration of drug offenders?

What is SC House Bill 3733?

SC House Bill 3733 would give law enforcement agencies the option to establish “deflection programs,” providing a treatment option in lieu of jail, if they want to.

Instead of arresting a person who is found with drugs or who has just overdosed, law enforcement can instead send them to a treatment program. That sounds like it makes sense – arresting and jailing drug users does not make sense.

The bill is too light on details, however, and appears to leave the crafting of drug policy and “deflection programs” to individual police departments who can create their own programs or choose not to have any programs…

What Would SC House Bill 3733 Do?

SC House Bill 3733 authorizes any law enforcement agency to create a deflection program “in partnership with one or more treatment facilities and one or more community members or organizations.”

The treatment facility would “provide case management.”

A person who successfully completes a deflection program is then “immune from prosecution for any pending misdemeanor charges of the law enforcement agency which resulted from the person’s substance use disorder.”

This sounds like a great step in the right direction, but there are problems with the legislation as it is currently drafted.

What is a Deflection Program?

A deflection program is:

…a program in which a peace officer or member of a law enforcement agency facilitates contact between an individual and a treatment facility or licensed physician for assessment and coordination of treatment planning. This facilitation includes defined criteria for eligibility and communication protocols agreed to by the law enforcement agency and the treatment facility for the purpose of providing substance use treatment to those persons in lieu of arrest or further justice system involvement.

Which mean that we don’t know what a deflection program is… it is left up to each police department to develop their own program details in conjunction with a treatment facility.

How Does Someone Get into a Deflection Program?

There are five types of “responses” that are listed in the Bill that could result in a person being referred to a deflection program:

(a)   a post‑overdose deflection response initiated by a peace officer or law enforcement agency subsequent to emergency administration of medication to reverse an overdose, or in cases of severe substance use disorder with acute risk for overdose;

(b)   a self‑referral deflection response initiated by an individual by contacting a peace officer or law enforcement agency in the acknowledgment of their substance use or disorder;

(c)   an active outreach deflection response initiated by a peace officer or law enforcement agency as a result of proactive identification of persons thought likely to have a substance use disorder;

(d)   an officer prevention deflection response initiated by a peace officer or law enforcement agency in response to a community call when no criminal charges are present; and

(e)   an officer intervention deflection response when criminal charges are present but held in abeyance pending engagement with treatment.

What are the Problems with SC House Bill 3733?

The bill is a great idea and a step in the right direction, but, as written, there are glaring problems with its implementation.

Discretion

The huge amount of discretion in the proposed law is a problem.

Program discretion: Law enforcement agencies may choose to develop a program or not develop a program. Which means that heroin addict A, who was found with drugs in their possession in the City of Columbia, gets into a treatment program instead of going to jail. Hopefully, they get what they need, and they spend a happy, productive life with their family instead of sitting in a prison cell.

On the other hand, heroin addict B, found with the exact same amount of drugs in their possession on the exact same day in the City of Lexington, is arrested, charged, convicted, and sent to live in prison (where they will probably continue using heroin), because that City chose not to implement a deflection program.

Similarly, the details of the programs from city to city or county to county will result in different participants being treated differently and experiencing different outcomes depending on what jurisdiction they are found in.

Officer discretion: Although the proposed law is devoid of detail, it appears that individual officers would have discretion as to who they refer to the program and who they send to jail. If you don’t see the problem there, you haven’t been paying attention to the extensive documentation of institutional racism in the criminal justice system.

If the decision to refer someone to treatment is up to the police officer, history has shown that white people will get the help they need while black and brown people will find themselves in a prison cell…

Enforcement

The general idea seems to be that a person would have a criminal charge “hanging over their head” while they complete the deflection program. If they don’t complete the program, they go back to court – do they now have the option to fight the charge, are they “automatically guilty” since they failed out of the program, or will this be different in different jurisdictions?

If it’s a matter of holding charges over someone’s head while they complete a treatment program, we already have that. It’s called Drug Court, and, for the most part, it seems to be accomplishing its purpose.

If someone has charges pending and the outcome will depend on whether they complete the program, who decides when they have completed the program and by what criteria? We don’t the answer to that – the legislature would be leaving it up to individual officers or treatment facilities to decide whether a person “gets a pass” or goes to jail.

Many of the potential “responses” identified in the proposed law don’t involve criminal charges:

  • Someone who overdosed but did not have drugs in their possession when law enforcement arrived;
  • Someone who has a “severe substance use disorder with acute risk for overdose” (who determines that by the way? A police officer?);
  • Someone who contacts law enforcement as a “self-referral” (FYI no one is going to do this. They will call a treatment center, not a police department);
  • Active outreach by police officers to people “thought likely to have a substance use disorder” (are police just going to start knocking on people’s doors if they suspect they use drugs?); or
  • A “response to a community call when no criminal charges are present.”

There is no mechanism identified for enforcement of the program unless there are criminal charges present. Even worse, some of the “responses” identified in the proposed law also involve the potential for abuse – Fourth Amendment violations and invasions of privacy by police officers who are probably going to be more interested in getting their foot in the door to make arrests than helping an addict get treatment…

As a practical matter, the program will become yet another pretrial diversion program – one that accomplishes exactly the same thing that Drug Court already accomplishes.

Do We Need this Law?

As it is currently written, it is filled with potential problems. It is half-formed and devoid of details. It’s absolutely what we need – treatment instead of incarceration.

But:

  • People will seek treatment when they are ready to get help. They will call treatment centers, talk to therapists, or seek help from their religious centers. I’m not saying that a little push doesn’t help – it does. But when that push comes from law enforcement, it is ripe for abuse.
  • When people are charged with drug-related crimes, there should be an alternative to incarceration. The proposed law’s model when someone has a criminal charge appears to be exactly the same as Drug Court. Should we re-invent Drug Court and have two programs now?

The fact that our legislators are thinking about this and trying to find ways to deal with the problem of drug addiction is encouraging. It’s progress. But it’s not enough.

Is there another solution? Recognizing that our approach to addiction (criminalization) has gone horribly wrong, hurting people and tearing apart families while doing nothing to reduce drug use and drug-related crime, wouldn’t it be reasonable to look at other approaches and see what actually works?

We Have Known that the War on Drugs Isn’t Working for Decades

The “War on Drugs,” launched by President Nixon in the 70s, has resulted in the destruction of countless lives, families, hopes, and dreams. It was never a War on Drugs – it has always been a War on People.

There have really been two “fronts” in the War on Drugs – 1) stopping the distribution and consumption of drugs in America and 2) stopping the manufacture and importation of drugs by the cartels and other drug traffickers.

  • A two-year study by the RAND Corporation in the 80s found that the use of the US military to combat trafficking had little or no effect on the influx of cocaine to the US and may have instead increased the profits of the cartels;
  • Seven studies prior to the RAND Corporation study had reached the same conclusions;
  • In the 90s, another study by the RAND Drug Policy Research Center recommended shifting funds from law enforcement to drug treatment, finding that drug treatment was 23 times more effective than enforcement;
  • In 2001, the National Research Council found that studies on the reduction of drug usage and drug smuggling have been inconclusive – in some cases, there were no studies, and, regardless, US policymakers were ignoring the results; and
  • Peru’s president from 1990-2000 noted that, despite Peru and the US spending huge amounts of money to reduce the production of coca, cocaine production grew tenfold.

Similarly, putting addicts into prison – separating them from their families, communities, and any hope of recovery in the real world – doesn’t work.

Recovering addicts will tell you that doing the same thing over and over while expecting different results is insane. Like an addict who gets high over and over again while getting the same result, our entire nation is trying the same approach over and over again – locking up drug offenders – while getting the same result. It doesn’t work.

What might work?

Portugal – the World is Ignoring a Drug Policy Model that Works

Portugal decriminalized drugs in 2001. They didn’t just decriminalize marijuana. They decriminalized all drugs.

In the decades leading up to this decision, like the United States, Portugal had a drug problem – drug-related crime, rampant addiction, overdoses, and an HIV epidemic caused in part by intravenous drug use. Sound familiar?

What did Portugal do?

They decriminalized drugs and shifted their focus to treatment and harm reduction:

In 2001… Portugal became the first country to decriminalise the possession and consumption of all illicit substances. Rather than being arrested, those caught with a personal supply might be given a warning, a small fine, or told to appear before a local commission – a doctor, a lawyer and a social worker – about treatment, harm reduction, and the support services that were available to them.

What was the effect? Did chaos ensue as the country descended into madness? No.

The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates. HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015. The data behind these changes has been studied and cited as evidence by harm-reduction movements around the globe.

Crime rates fell. HIV and hepatitis infection rates fell. Incarceration rates fell. Overdose deaths fell.

So, why haven’t the US and other countries followed suit?

What is our goal?

If our goal is to reduce the number of overdose deaths, the harm caused by addiction, and drug-related crimes, we can look at the statistics – the war on drugs does not work, but decriminalization + treatment works – and see that we are doing it wrong. In fact, we are ignoring solid evidence that we have been doing it wrong for decades

Maybe our attitude and the way that we talk about addiction in our culture is part of what is holding us back? We demonize addiction, alcoholism, and people who need help. If drug users are evil, horrible, morally flawed people, then it is easier to hurt them instead of helping them. It is easier to put them in prison, tearing them away from their families and communities.

Punishment and separation from society are just easier, period. To help people, we must care about those people. Caring and helping are harder than putting a person in prison.

To craft policies based on evidence, we must look at the evidence and think about what works and what doesn’t work. We must carefully craft a drug policy that is effective based on all available information. Politicians must inform the public and their constituents about what the evidence shows, even when it is not popular.

Caring, studying, consulting with experts, and fighting for evidence-based policies and legislation is hard. Hurting people is easier. Like building things up is hard, while tearing things down is easier.

Let’s do the right thing, not because it’s easy, but because it is hard and because it is the right thing to do:

We choose to go to the Moon…We choose to go to the Moon in this decade and do the other things, not because they are easy, but because they are hard; because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one we intend to win, and the others, too.

–  President John F. Kennedy

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach, SC

Lacey Thompson is a criminal defense attorney with offices in Columbia and Myrtle Beach, South Carolina.

If you have been arrested and charged with a crime in SC, or if you believe you are under investigation, call us now at 843-444-6122 or fill out our contact form to talk with a SC criminal defense lawyer today.

SC House Bill 3733

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