Criminal Justice System Approaches
National Policymakers
Reducing the Supply of Drugs and Related Harms of the Drug Market to Сommunities
Summary: Those who come into contact with the criminal justice system should be screened and diverted to treatment, when appropriate. Among these individuals, all punishments should be genuine, certain, and calibrated to redress harm, maximize deterrence, and reinforce healthy social norms. The primary approach for responding to individuals with substance use disorder should be to offer them an alternative to incarceration, primarily as participation in a drug court, which would provide them with the support and care they need. Drug courts, diversion programs, probation/parole, and restorative justice processes are appropriate places for criminal justice reforms to contribute to drug policy solutions. Policymakers must ensure there is equity in the application of the law.
- The percentage of Americans with a drug use disorder is reduced by 20% by 2030, from 9.6% in 2023 to 7.7% in 2030. Increase the number of drug courts in operation by 15% by 2030, from 3,856 in 2022 to 4,434 in 2030
- Increase the number of drug court participants by 100% by 2025, from 140,042 in 2019 to 280,084 in 2025
- Increase funding for testing and sanctions (e.g. HOPE, 24/7 Sobriety) by 1000% over the next 2 years.
Drug courts are more effective than traditional forms of treatment. In 2019, drug courts had 140,042 participants and their “cumulative graduation rate was 59.7%,” according to the National Drug Court Resource Center. In comparison, the national average completion rate for treatment was 42.6%, according to SAMHSA’s 2020 Treatment Episode Data Set. Hawaii’s Opportunity Probation with Enforcement (HOPE) program was associated with reduced rates of crime and drug use among offenders, too and represents another kind of testing and sanctions program that can work in conjunction with drug court. South Dakota’s 24/7 Sobriety program does this for impaired driving, and Congress has recently introduced the SOBER Act to support this evidence-based program.
Many jails and prisons do not offer evidence-based treatment to inmates with substance use disorder, threatening to create a revolving door with the criminal justice system due to addiction and its consequences. Lengthier carceral sentences have not been found to deter drug use or trafficking. There has been a failure to adequately measure the drug market, as well as market-related harms, which undermines the ability to set performance measures that are associated with desired outcomes and objectives.
“Everyone in this courtroom wants you to succeed,” Hawaii Judge Steve Alm intoned in his black robe from the bench in that first week of the new program. He understood from the beginning, “punishment alone is not effective.” His goal—his hope—he explained, was always to get defendants into treatment and recovery. “That was revolutionary. If people are violently dangerous and won’t stop stealing and using, by all means we want to send them to prison. But the majority of drug users who violate their community supervision should be put on probation, not jail. And in the first week [of the program], I had 16 drug offenders on my hand, and the first words out of my mouth were, ‘Everybody in the courtroom, I want you to succeed. Any violation of your probation, you go to jail. No violation—no jail. If you stop using on your own, you don’t need to go to treatment. If you test positive a couple of times, I’ll send you to treatment. If you mess up, come in and admit it, and you get two days in jail. If you don’t show up, you get 30 days in jail.’ And you could see in their faces that someone was talking to them straight for the first time.”
“When I went to the legislature for money, I had a name for it—‘HOPE.’ What we did was cut through denial, and the positive test rate got lower and lower. Missed appointments, which started at 20 percent, went down to 4 or 5 percent. And it stayed at a successful rate until I got off the bench in 2016.”
Research conducted by Pepperdine University and UCLA demonstrated strong results for the HOPE program. The one-year randomized controlled trial found that HOPE probationers were:
less likely to be arrested
for a new crime
less likely to skip appointments with their
supervisory officer
less likely to use drugs
“There’s a lesson here,” Judge Alm concluded. “If drug defendants are on felony probation and you treat them fairly and set expectations, they are going to rise to meet those expectations.”
Establishing and expanding treatment court programs for low-level non-violent drug offenders as an alternative to incarceration not only provides people with the underlying treatment they need for their SUD but also begins to address existing disparities in the criminal justice system in a safe and equitable fashion.
– Office of National Drug Control Policy
Specific Recommendation 14At a minimum, justice systems are called upon to make the critical distinctions among: (1) high-level and/or specialized participants in drug supply (drug manufacturers, producers, marketers, money launderers, and traffickers); (2) low- level functionaries involved in drug supply (mules, couriers, retail sellers, etc.); (3) those with drug possession/use who commit violent or other serious criminal offenses (including residential burglary, armed robbery, and vehicular homicide or assault); (4) those with drug possession/use who commit minor non-drug crimes (from impaired driving to shoplifting and other minor property crimes); and (5) those charged only with simple possession and no other crimes (some but not all of whom will have substance use disorder).
Summary: The criminal justice system must differentiate between individuals who come into contact with the illicit drug trade.
DESCRIPTION: It will be helpful for criminal justice systems to recognize that there are several general categories of offenders affected by drug policy: (1) drug manufacturers, producers, cultivators, marketers, and traffickers; (2) drug distributors; (3) drug possessors/users who do not distribute drugs to others but who commit other criminal offenses besides possession (from impaired driving to property crimes to violent crimes); and (4) simple possessors/users of drugs who commit no other crimes. Indeed, the 4th category can usefully be further subdivided into those who do and those who do not have SUD. Importantly, within categories 1 and 2, there are those whose actions are particularly harmful to society. Notably that, includes drug distribution that proximately causes the deaths of individuals to whom they distribute drugs, but it can also include those who corrupt government officials, those who employ youth, those who distribute drugs in the immediate vicinity of schools and drug treatment centers, and those who possess firearms in the course of the drug distribution activities.
To effectively contribute to sound drug policy, criminal justice systems should set genuine and certain punishments based on the above offender categories and calibrated to (1) redress harm to victims and (2) leverage commitment to treatment and recovery. There are offenders in all four categories who do not suffer from SUDs. In those cases, genuine and certain punishment should be imposed at a level of severity that reflects the harm caused and maximizes deterrence and reinforcement of healthy societal norms. Such offenders, especially those who supply large quantities of the most harmful substances for substantial profits, should be punished at the same level as serious violent offenders. But when an offender in any category does suffer from a SUD, the same punishment should be deployed primarily to leverage treatment and recovery.
Offenders suffering from SUDs who successfully commit to treatment and recovery should receive some reduced-punishment consideration, but not to a degree that shields them completely from criminal consequence for harm to others.
Specific Recommendation 15All punishments should be genuine, certain, and calibrated to redress harm, maximize deterrence, and reinforce healthy social norms, while taking into account the category of the charge and the nature of the individual’s involvement with drugs. This is the primary approach in the first three categories.
Description: Criminal justice systems plays at least four distinct roles: (1) Constraining supply (keeping prices high, availability low), (2) Minimizing market-related harms (e.g., addressing violence committed by traffickers), (3) Creating incentives that discourage use and encourage treatment and recovery, and (4) investigating, prosecuting, and punishing people with SUD for non-drug crimes they commit, just as it would investigate, prosecute, and punish people without SUD who commit those same crimes. The latter two roles create opportunities for using calibrated punishments as levers to maximize individuals’ commitment to and success in prevention, treatment, and recovery (“PTR”) for the subset of defendants who have an SUD.
It would be unwise, however, to restructure criminal justice systems to directly deliver PTR. Therefore, we recommend that criminal justice systems be adjusted to advance the delivery of PTR by behavioral health professionals and community organizations, including through the use of medications for opioid use disorder where appropriate. We further recommend that custodial components of criminal justice systems support the provision of care as their circumstances allow. Finally, we recommend such adjustments be made without compromising the deterrence and victim-healing values that come from punishing crime. Those values are highest when enforcement focuses on stemming drug supply and incapacitating offenders whose trafficking/distribution is causing substantial physical harm to others.
The value of enforcement/punishment/criminal consequences in strengthening PTR is recognized in several principles established by sociology, criminology, and PTR itself. First, research confirms that criminal consequences for behaviors that harm others are essential to establishing healthy social norms for behavior in society. Second, healthy social norms reinforced by criminal consequences are proven to deter a certain amount of harmful behavior. Importantly, research also indicates that social norms backed by punishment promote victim healing via societal recognition of the harms they have suffered. Third, the threat of genuine, certain punishment and criminal consequence has proven to motivate individuals to commit to treatment and recovery.
Finally, criminology and sociology research indicate that the certainty of a punishment is both a more effective deterrent and a more effective “treatment/recovery motivator” than the severity of that punishment (e.g., the length of the carceral sentence). Similarly, debilitating consequences such as permanent diminishment of housing or employment opportunities actually exacerbate drug involvement. It is important to note that the criminality of drug use varies between criminalization, depenalization, decriminalization, and legalization.
Specific Recommendation 16For those with a substance use disorder, multi-system alternatives to incarceration, such as deflection and diversion, should incorporate appropriate levels of treatment, care, and accountability, and should often be the primary approach
Summary: Alternatives to incarceration should be offered to individuals with substance use disorder, providing them with opportunities that incorporate treatment and care.
Description: To play their drug-policy role effectively, criminal justice systems should not attempt to provide treatment and recovery (unless they choose to do so in appropriate custodial settings), but they should align their “consequences systems” to facilitate deflection, diversion, restorative justice processes, and connections to treatment and recovery services in the community unless otherwise in a custodial setting to maximize the likelihood of success. This should be achieved primarily through drug-court type supervision models appropriate to the characteristics and resources of a given criminal-justice jurisdiction. By providing certain enforcement, facilitating therapeutic interventions for offenders suffering from SUDs, and narrowing retributive punishments to those who do the most harm, criminal justice systems can successfully contribute to effective drug policy.
For all individuals with a substance use disorder who are involved in the justice system, laws and policies should be reformed to ensure that jail – particularly pre-trial detention – not interfere with established healthcare, including medication-assisted treatment and care for mental health disorders. Likewise, community supervision models should incorporate treatment and support services to promote rehabilitation and prevent future justice involvement. It is worth reminding policymakers that not all interactions with someone who has a substance use disorder are for drug law violations; and not all drug offenders have a substance use disorder. The first weeks after release from incarceration should be recognized as a period with elevated risk of overdose because the individuals have a reduced tolerance and may resume drug use upon release.
Citing drug courts, the National Drug Control Strategy made it a priority to “divert non-violent individuals to the appropriate community-based services at the point of arrest, arraignment, and sentencing when appropriate.” Related programs are associated with significant cost savings, due to reduced costs related to incarceration; they are also associated with improved outcomes for the offender.
These interventions also provide the opportunity for multi-system collaboration with non-governmental organizations, which can support the provision of treatment and mental health programs, as well as support upon re-entry. Programs should be brought to scale that consider the social determinants of health, helping to address many of the underlying risk factors that are associated with drug use and crime. Additionally, police should consider the deflection of individuals with children, ensuring sufficient support and care are offered to these families.