A Review of Coerced Treatment

The White House Office of National Drug Control Policy’s 2023 Performance Review System reported, in 2020, only 50% of state prisons and 29% of local jails offered medications for opioid use disorder (MOUD), such as buprenorphine. Only 2.6% of federal inmates with opioid use disorder received MOUD. To address the revolving door between drug use and incarceration, the criminal justice system should de-emphasize incarceration and improve pathways to treatment.

One proposal is to decriminalize drugs. Passed in Oregon in 2020, Measure 110 decriminalized possession and provided individuals caught using drugs with a choice: they could either pay a $100 fine or call a behavioral health hotline. As expected, given that treatment is no longer a penalty, the Associated Press reported, “Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment”––many opted to obtain harm reduction services, such as clean syringes. Relatedly, the Atlantic reported the use of drug courts in Oregon “has declined in the absence of criminal prosecution.” The CDC’s WONDER database indicated overdose deaths increased by 70% in Oregon between 2020 and 2022, compared to 17% nationally. Measure 110 was an overcorrection and inadvertently worsened the situation, having failed to connect individuals to treatment and resulted in more overdose deaths. 

Oregon’s model, as well as those premised on a “carrot” with no “stick,” are inherently flawed because individuals are unlikely to stop using drugs voluntarily. The 2021 NSDUH found the top reason cited by individuals for why they have not received treatment was that they were “not ready to stop using.” This answer was more than 10 times as common as the answer that “there were no openings in a program” and more than three times as common as the answer that it “might cause neighbors/community to have negative opinions” of them. Though pundits often point to stigma and a lack of access, the best explanation for the treatment gap may also be the most obvious: individuals do not go to treatment because they do not want to stop using drugs.

Established in Miami in 1989, there are now 3,856 drug courts in “52 states/territories across the United States.” The U.S. Department of Justice’s Office of Justice Programs explained that drug courts are “specialized court docket programs that target” people “who have alcohol and other drug dependency problems.” These programs involve “judges, prosecutors, defense attorneys, community corrections officers, social workers, and treatment service professionals.” 

President Trump’s National Drug Control Strategy stated, “the use of drug courts and diversion programs will foster entrance into treatment programs, steering people away from the cycle of destructive and self-defeating behaviors that is the hallmark of the disease of addiction.” Similarly, citing drug courts, President Biden’s 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.” Drug courts have bipartisan support. 

Pro: 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.

Pro: Drug court participants achieve better outcomes. A 2012 study determined the “average effect of participation [in a drug court] is analogous to a drop in recidivism from 50% to 38%.” The state of Massachusetts’s website for drug courts noted, “Drug Courts significantly reduce crime as much as 45 percent more than other sentencing options,” adding that “75% of Drug Court graduates remain arrest-free at least two years after leaving the program.”

Pro: Drug courts are cost-effective. The Urban Institute estimated that every $1 spent on drug courts yields $2.21 in benefits. Stanford University estimated that a drug court “typically costs between $2,500-$4,000 annually for each offender, compared to $20,000-$50,000 per person per year to incarcerate a drug-using offender.”

Con: Opponents argue that individuals should not be forced into treatment. The UN’s Office of the High Commissioner for Human Rights argued, “the threat of imprisonment should not be used as a coercive tool to incentivise people into drug treatment. Drug treatment should always be voluntary, based on informed consent, and left exclusively to health professionals.”

Response: The legal standard of parens patriae and the state’s police powers give states the authority to take individuals into custody against their will when they are a threat to themself or others. A 2022 article in Psychiatric Times explained, “These are established grounds for involuntary commitment that organized psychiatry has long endorsed.”

Con: A 2021 poll from the ACLU found that 66% of voters support “eliminating criminal penalties for drug possession and reinvesting drug enforcement resources into treatment and addiction services.” The removal of criminal penalties is largely incompatible with the use of drug courts, given that criminal penalties are needed to ensure compliance and accountability, helping explain the aforementioned decline in the use of drug courts in Oregon. 

Response: Measure 110 eliminated criminal penalties and aimed to invest in treatment. However, this approach has failed to deliver as promised and is unpopular. An August 2023 poll from Emerson College found that 56% of voters in Oregon want to repeal Measure 110 completely and 64% want to reinstate criminal penalties for drug use.