Why Do Non-Violent Drug Offenders Need Treatment?

Attorney General Eric Holder’s announcement that the Justice Department will be easing the use of draconian mandatory minimum sentences for low-level, non-violent drug offenders is certainly welcome news. As of June, there were 89,669 people incarcerated in federal prisons for drug offenses, approximately 47% of the total federal prison population. For decades, the criminal justice system has been flooded with nonviolent drug offenders, draining judicial resources and squandering taxpayer dollars as part of the trillion-dollar War on Drugs.

Holder’s remarks also revealed a less sensible, though increasingly popular idea, as an alternative to incarceration: “enhancing the use of diversion programs.” Chief among these is the funneling of drug offenders to drug treatment programs and expanding the involvement of government in funding these programs. Given that the National Institute on Drug Abuse (NIDA) insists that drug addiction is a brain disease, Holder and state governments across the country (by way of drug courts) have increasingly focused on drug treatment as an alternative to incarceration. The criminal justice system referred approximately 38% of the 1.7 million Americans who checked into a publicly funded drug treatment program there in 2006.

While possibly more cost effective than locking people up and branding people who were caught with drugs with a criminal record for life, it isn’t a particularly sensible option. The framing of drug policy as a public health issue requiring government intervention is incorrectly built on the assumption that it is actually a public health issue requiring government intervention.

Few people who use drugs ever develop a problem with them. This is confirmed by the federal governments own research. The Substance Abuse and Mental Health Services Administration routinely conducts national surveys to monitor drug use trends in the United States.

According to the most recent survey, from 2011:

  • An estimated 121,078,000 people above the age of 12 had tried an illicit drug in their lifetime
  • 38,278,000 used an illicit drug in the past year
  • 22,454,000 used an illicit drug in the last month; of this group approximately 18,000,000 are people who used marijuana or hashish

A look at the data shows that most people who use drugs don’t go on to use them very often. This is true for users of the supposed “hard drugs.” While 37 million Americans are estimated to have tried cocaine, 3.8 million tried it in the past year, and only 1.3 million were estimated to have used it in the past month. This pattern holds for heroin as well, which an estimated 4.1 million lifetime users, a scant 620,000 had used it in the last year, and 281,000 had in the past month.

Using drugs on a monthly or even regularly does not in and of itself suggest a problem. Dr. Carl Hart, Professor of Psychology at Columbia University, who has studied drug use for decades, estimates that 85% of those who use cocaine are not addicted.

More practically, relatively few drug offenders even have a substance abuse problem in the first place. Academic research has looked into the percentage of drug offenders participating in either drug courts or pretrial drug treatment programs after being screened as requiring drug treatment who actually meet the threshold for a substance abuse disorder. Nearly half of misdemeanor drug court participants, one-third of felony drug court participants, and two thirds of pretrial participants in a drug treatment program were found to have “sub-threshold drug composite scores on the Addiction Severity Index.”

Adding to the low need for government diversion programs in the first place, is the reality that existing programs haven’t been effective.

Current government diversion programs, particularly drug courts, have not particularly been successful. Drug courts have grown in popularity in the past decade as a means of providing drug offenders with an opportunity to avoid incarceration on the condition that they follow certain requirements. Common components of drug courts include mandatory drug testing and participating in a drug treatment program. Completion of the programs may or may not lead to expungement of the drug charge from a participants’ criminal record. According to a Government Accountability Office (GAO) report, approximately 1,700 had been either operational or planned in 2004. However, the GAO report also noted that evidence effectiveness of drug courts in reducing drug use among participants has been “mixed.” Among the complications was the high rate of participants who dropped out of the programs, with completion rates ranging from 27-66 percent.

Drug courts have been challenged by groups like the Drug Policy Alliance as being ineffective and ultimately expanding the role of the criminal justice system in what a public health issue. In a 2011 report, the Drug Policy Alliance wrote that the “participants who stand the best chance of succeeding in drug courts are those without a drug problem, while those struggling with compulsive drug use are more likely to end up incarcerated.” In part, this is due to the common practice of excluding individuals with serious substance abuse problems from participating in drug courts in the first place.

Aside from the low percentage of drug users and drug offenders who actually have a substance abuse problem and the abysmal performance of present diversion programs like drug courts, there is also the potential for well-intentioned drug treatment funding to end up being lost to waste and fraud.

A recent investigative report by the Center for Investigative Reporting (CIR) found widespread fraud in California’s Drug Medi-Cal program. Part of California’s Medicaid system, the Drug Medi-Cal program is meant to fund drug treatment programs for low-income Californians. In the past two fiscal years, according to CIR, $94 million was spent on drug treatment clinics in Southern California “that have shown signs of deception or questionable billing.” Of this, $1.7 million is known to have gone towards “ghost clients,” clients who never showed up to treatment. Clients without substance abuse problems were “treated” by clinics despite not having a problem at the expense of taxpayers. The absence of accountability and the large amounts of money being funneled to such clinics incentivizes the misuse of funds and by extension fails those who legitimately need help. Thankfully, the California Department of Health Care Services suspended payments to 16 alcohol and drug treatment centers on July 18th involved in fraudulent billing.

When Holder speaks of “evidence-based programs and services” he needs to consider a litany of issues. One, not all people who use drugs or get arrested for drugs have a problem or need treatment. Two, current “evidence-based programs and services” haven’t been particularly effective in accomplishing their objective. Three, increasing spending on drug treatment programs always carries the risk of fraud and misuse of tax dollars. If we want to seriously address substance abuse, instead of diverting people to well-intentioned but badly executed programs, we should instead take the more sensible approach: end the criminalization of non-violent drug offenses and allow individuals to seek treatment if they need it.