Third Way: Pulling Out Of The War On Drugs
Drew Angerer
When President-elect Joe Biden last worked on drastically reforming the criminal justice system, it was 1994. Then Senator Biden was a principal mover of the Violent Crime Control and Law Enforcement Act, which received significant negative attention during the 2020 Presidential campaign. Yet, even in 1994 bill, Biden pushed for reform of the criminal justice system that would still be laudable today, such as the provision of drug courts and distinctions around mandatory minimum sentences. Now, in 2020, the President-elect is spearheading a progressive reform of the criminal justice system in the United States. His plan has especially far-reaching implications for how opioid and drug addiction is treated in the United States.
As it stands, the current criminal justice system in the United States is deeply flawed, especially regarding drug-related offences. One in five prisoners are arrested for drug-related charges. Those who have opioid use disorder do not receive the standard of care or any treatment at all. This leads to both an increase in recidivism (the likelihood of a convict re-offending after they are released) and an increase of death by opioid use after a convict serves their sentence. An oft-cited study found that up to 14.9% of deaths among former inmates is due to drug overdoses.
It is in regard to opioids that Biden can make the most impact on criminal justice reform. The President-elect already has a concrete plan for dealing with the opioid epidemic. Biden's broader criminal justice plan is a major facet of that and many of his other policies. The breadth of his plan indicates how criminal justice is going to be a landmark part of the Biden administration’s agenda. With likely bipartisan support from Congress, Biden could easily make drug-related criminal justice reform one of his lasting legacies. To do this right, however, Biden needs to understand the complexities of the criminal justice system, properly incentivize state and local governments to reform, and make a clean cleavage between treating opioid addiction as a public health crisis and a criminal justice problem. While his plan will not end the war on drugs, it will stop many battles.
The Biden plan for opioid users is an obvious shift from the aforementioned "war on drugs" attitude of the 1970s, marked by intense criminal punishment for drug possession, to a Western European style "harm reduction" strategy, which emphasizes treatment and prevention for drug users rather than punishment. One of the most jarring promises of Biden's opioid justice plan: the goal to "end all incarceration for drug use alone and instead divert individuals to drug courts and treatment," makes clear that he is serious about this shift. This is the right move to take.
An abundance of research in the last decade has shown that hardline tactics for drug abuse fail. An issue brief from The Pew Charitable Trusts in 2018 found that more imprisonment does not reduce drug misuse levels and that arresting low-level traffickers has barely any impact on greater drug trafficking operations. Harm reduction, on the other hand, has been shown to work extremely well. The best example of this is in Portugal, where 1% of the population were heroin users in 1990. In 2001, the country used a Swiss model for drug offences and decriminalized all drug possession in a last ditch attempt to mitigate the problem. Under the 2001 law, illegal drugs are still illegal, and dealers and traffickers are still prosecuted. Possession of drugs for personal use, however, in is no longer a criminal offence, but instead an administrative one. Users are ordered to their local Commission for Dissuasion of Drug Addiction and are given clean needles, treatment with methadone and other drugs used to aid people with substance abuse disorders, and other forms of rehabilitation. The result has been impressive: in 2016, Portugal had only 27 fatal drug overdoses compared to 63,632 in the United States.
There are two main facets of Biden's opioid justice plan. The first is a reliance on massive drug court expansion. Drug courts are seen as an alternative to incarceration and probation, keeping an eye on prisoners while they are also sent to a month of rehab clinic and treatment. The program continues after treatment, and participants often return to the court to check in with the judge, among other requirements such as drug tests and curfews. The system encourages kindness, as the judge can praise participants verbally and offer parental guidance, while also retaining toughness by threatening those who do not show with punitive measures including the threat of jail. The other part of Biden’s plan is competitive funding for states that reform their criminal justice systems by doing things such as eliminating mandatory minimums, increasing social treatment for communities, and other programs that divert opioid possessors into treatment. This is a way to get around the lack of power the federal government has over reforming state-level legislation.
Biden's criminal justice reform agenda is also the morally and economically supported. One of many moral argument could come from the "double jeopardy" objection, which argues that it is immoral for someone to be punished for a previous misfortune. Opioid use disorder is a misfortune which could be avoided by proper treatment, but this proper treatment is not available to many which itself is unjust. Sending an individual with opioid use disorder to jail would be bestowing upon them another misfortune because of a previous one, as they are being punished for their disability. Hardline drug policy, too, has undeniably destructive impacts on the Black community. It is well known that the war on drugs devastated Black communities. Research continues to indicate that policing of drugs is unfairly prejudiced against Black Americans, which leads to impediments on social mobility. Changing this gives Biden the clear moral high-ground, something he campaigned on heavily.
As a matter of economics, the hardline approach to criminal justice is erroneous as well. Not only does it lead to increased costs with decreased profit, but it also ignores fundamental laws of supply and demand relating to drugs, as well as the lessons learned during the American prohibition movement of the 1900s. If drug supply is limited, the demand will not simply disappear. Indeed, limits on supply make it even more profitable for drug traffickers, who will sell much higher and dangerous doses in smaller amounts. Prison, too, is expensive, with the average cost per inmate being around $33,000. Treatment and prevention, both regarding crime and drug use specifically, is much cheaper. Reforming the prison system could help support some of Biden’s other policies, making it an economically beneficial move. Overall, Biden’s plan is backed by evidence based research, economics, and values the President-elect has championed during his career.
Waving The White Flag
Like most of Biden’s policy, it is worth questioning if his progressive criminal justice plan could make it through a Republican-controlled Senate. Yet, as was discussed in part one of this series, Republican Senators are open to legislation that will help reduce the opioid epidemic in their states. Bipartisan support already exists for criminal justice reform, too. In 2018, the Republican-led House and Senate were able to pass the First Step Act, the most major reform of the criminal justice system in recent history, with overwhelming bipartisan support and only minor resistance from a cabal of hardline conservative Senators. President Donald Trump signed the bill into law. It has started to diminish the number of incarcerated people in the United States, albeit with some setbacks and sustainability failures the federal government must correct. Biden can continue to build on this and follow through where Trump did not, backed by Senators from both parties.
Despite the amount of evidence supporting an overhaul of the United States criminal justice system and bipartisan support for it, there are still those who are wary of becoming "soft" on drug policing. Opponents of harm reduction often evoke a slippery slope argument against drug decriminalization, claiming that liberalizing usage will lead to increased abuse of drugs and result in devastating family problems. Harm reduction is portrayed as increasing crime and leaving city streets littered with users. This view, however, could be turned around on them. Not dealing with opioid epidemic as a public health crisis instead of a criminal justice problem leads to the very same problem. Indeed, a criminal justice approach only leads to more devastation among communities and less attention focused on treatment. It also ignores the other pillars of harm reduction, which has the main goal of preventing drug use to increase public safety and decreasing the life-ruining effect of uncontrolled substance abuse. Even conservatives wary of decriminalization grumbly acknowledge state's rights arguments and allow for the continued trend towards treatment over punishment.
State's rights, however, does shed light on potential problems with Biden's plan. One significant roadblock to implementing reform is the role state's play in creating laws around crime. State prisons house more than 1.3 million people, or just over half of the total incarcerated population in the United States, far out shadowing federal prisons. Criminal justice reform on a state level cannot come from the federal government, which means any significant change Biden hopes to make will have to be brokered with state officials or incentivized with competitive funding and grants. Considering the resistance by Republican political officials to enact police reform this summer, this may be too hopeful of a goal.
Number Of People Incarcerated For A Drug Offense
Despite this federal prison reform regarding drug offences is something that Biden still could, and should, accomplish. It would have a concrete impact. A whopping 46.2% of offences committed by those incarcerated in federal prisons are drug-related. The Biden administration could easily pass legislation that betters the treatment these prisoners receive, changes rules on prison admission, and reduces hardline federal policing tactics. While this would barely put a dent into the nationwide incarceration rate, it would set an example for state and local governments to follow and would allow the Biden administration an early victory in what is likely to be a tumultuous four years.
Biden's heavy reliance on drug courts, however, still shows that opioid addiction is a chimaera of criminal justice and public health in the mind of Washington. A 2011 report from the Justice Policy Institute found that, while more effective and economical than incarceration, drug courts are still half as effective as a community-based treatment. Since the courts are a legal tool, participants in drug courts still become entangled in the criminal justice system. Indeed, the study found that drug courts tend to increase arrests because well-meaning police officers want to give people access to treatment. If the President-elect hopes to truly make an impact regarding the opioid epidemic, he needs to embrace harm reduction strategy at its fullest, making possession an administrative offence and public health problem, encouraging community treatment rather than keeping the justice system involved.
Any plan, however, is better than none. Biden's may not be perfect, as it is plagued with problems of drug courts and state law. Nonetheless, Biden's plan is both philosophically and economically backed. It is a much-needed embrace of broader criminal justice reform and could make a substantial dent in the opioid epidemic. The polices Biden espoused have bipartisan support, meaning they are very much achievable during the next four years. While the White House has not found itself totally disengaged from it, the long overdue pulling out of the forever war on drugs is finally underway.
Editor’s Note: This is part two of a two-part series. To read the first part covering Biden's general plan to curb the opioid epidemic, click here.
