Substance dependence is the only mental health condition whose main feature, the possession of drugs, is considered a crime. The stated goal of the "War on Drugs" has been to stop the devastating public health consequences of addiction in part through criminalizing possession of drugs, even for nonviolent offenders. While well-intended, this war may have worsened the problem by dooming millions of people, predominantly minority and low-income individuals, to a cycle of incarceration, loss of rights, and poverty. But, there are hopeful signs that we are becoming more clear-eyed as a nation.
Sens. Rand Paul and Cory Booker have introduced the REDEEM Act, which advocates for directing children away from the criminal justice system by, among other things, automatically expunging or sealing criminal records of juveniles who committed nonviolent drug crimes. The act would also restore food stamp and welfare benefits, as well as voting rights for low-level drug offenders who have served their sentences. As Paul says, "I think that drugs are a scourge and are bad for young people, but a lifetime in prison as punishment is not the answer."
There is little debate that substance dependence is a prevalent and devastating public health problem. Neuroscience research has demonstrated that addiction is a "brain disease" characterized by compulsive drug seeking. Addiction is often chronic, with the majority of people suffering repeated relapses over a lifetime. The consequences of addiction are horrible, with people often experiencing intense suffering, loss of functioning and loss of life. Addiction increases risk for reckless (e.g., driving under the influence) and violent behavior. And addiction hurts everyone. Because substance use often takes hold before the age of 18, some are calling adolescent substance use the No. 1 public health problem in the country.
However, there is currently little evidence that criminalizing addiction lessens the problem. One Canadian review of 23 studies found that as compared to community sentences, incarceration did not improve recidivism. In fact, longer length of incarceration was actually found to be associated with greater rate of recidivism. Part of the reason is that the majority of prisoners do not receive adequate treatment for drug addiction while in prison. In fact, some fear that harsher sentencing against drug offenders actually leads those who are addicted to avoid treatment altogether. This issue has been recently spotlighted regarding whether pregnant drug users should automatically be arrested. Moreover, being in prison does not allow an individual to address the various stressors that may perpetuate addiction (e.g., family conflict, poverty). These unaddressed stressors often wait for an individual following release from prison, thus representing significant risk for relapse. The totality of these findings leads the reviewers and others to conclude that incarceration is not an effective deterrent to ongoing drug use.
While incarceration may not improve addiction, the "War on Drugs" has raged on as millions of people have had their lives horribly disrupted through harsh laws that incarcerate nonviolent drug offenders. The lives of those convicted and incarcerated are further marginalized as criminal records result in difficulty getting jobs, and loss of welfare and other benefits and voting rights. These associated punishments for those with a criminal record are commonly known as "collateral consequences." Further, minority groups are disproportionately incarcerated; as an example, African-Americans comprise 14 percent of drug users but 37 percent of those arrested for drug offenses. Richard Greenberg, founding partner and president of Amplify who successfully led the Second Chance Campaign to change New Jersey’s prisoner reentry laws told me, "Here is the problem: The 'War on Drugs' is in fact a war on people. We don't lock up marijuana leaves and hypodermic needles, we lock up people — moms and dads and our neighbors who coach Little League. We are waging war on our own communities." The combination of the high cost, limited efficacy, and potential damage has led many to the overall conclusion that the war on drugs is not a cost-effective use of public funds.
So what can be done?
Regardless of whether one believes that addiction should or should not be criminalized, there is universal agreement that it would be optimal to get prisoners more access to addiction treatment while in prison. Several efficacious cognitive-behavioral treatments and medications exist for treating addiction. Research demonstrates that treatment initiated either during or following incarceration significantly improve treatment outcomes. Not doing so misses an excellent opportunity to improve a major public health problem.
Further, even if one believes that drug use should be criminal, there are steps that can be taken to enforce the law without worsening the collateral consequences of having a criminal record that can needlessly and permanently damage the lives of youth offenders. In the case of nonviolent offenders, particularly those convicted of only using rather than selling drugs, it seems that the punishment plus collateral damage far outstrips the crime. Legislation like the REDEEM Act allows for youth offenders to be arrested and incarcerated, but aims to prevent the long-term stigma associated with having a criminal record.
Along the same lines, some have advocated for the use of separate drug courts for nonviolent drug offenders. Rather than immediately being convicted and given a permanent record, an offender in a drug court can avoid a felony record through means such as submitting to drug testing and joining support groups. One early study found that drug courts provide closer, more comprehensive supervision and much more frequent drug testing and monitoring during the program than other forms of community supervision. More, drug use and criminal behavior are substantially reduced while offenders are participating in drug court. Another more recent review of 154 studies found that drug courts substantially reduce recidivism.
Perhaps the most radical solution proposed and attempted has been to completely decriminalize drug use, replacing sentences with therapy. For example, Portugal has completely decriminalized drug use. The reports of the effect of this practice have been mixed. Some reports suggest substantial reduction in drug use, while others caution that the effectiveness of this approach has been oversold. At the very least, the mass chaos of rampant drug use and lawlessness that are often feared by those who advocate for tougher drug laws has not taken hold. Similarly, there is substantial debate as to whether fully legalizing marijuana in this country is helpful or harmful in combatting addiction. Initial results suggest that legalization is improving state revenue in Colorado without increasing drug-related accidents — an early sign of success.
There is much work to be done. What is encouraging is that people are starting to take seriously the notion of treating substance use and dependence as what it is — a mental health issue rather than a criminal issue. As Greenberg told me, "Nonviolent drug offenses should be addressed in proportionally nonviolent ways. We should treat, and not simply punish, substance addictions and thereby lift up, and not only tear down as we have been doing for two generations now. Our blind rage to punish is an anachronistic legacy of the war on drugs. It is past time to move on to what actually works, to move beyond what makes us feel like we are being 'tough on crime.' Our responses to nonviolent drug offenses should encourage people to do the right thing: manage their addictions, become educated and trained, take care of their children and pay taxes. We need to think more clearly."
Dr. Mike Friedman is a clinical psychologist in Manhattan and a member of EHE International’s Medical Advisory Board. Follow Dr. Friedman on Twitter @DrMikeFriedman and EHE @EHEintl