Many Scholars Think Drug Courts Harm Policy Reform, Not Vice Versa

Editor’s Note: Today’s post comes from contributing editor Dr. Sarah Brady Siff, visiting assistant professor of journalism at Miami University in Ohio. Enjoy!

The current so-called opioid epidemic has placed an urgent frame around drug-related policy debates in Ohio. Here, the current midterm election ballot includes Issue 1, a state constitutional amendment that would convert level 4 and 5 drug felonies—charges for possession and use of drugs—into misdemeanors, somewhat like California’s Proposition 47 in 2014. Ohio would be only the sixth state to take similar measures to reduce drug-related mass incarceration.

So Issue 1 was much on the minds and lips of panelists at “Facing Opioids: Drug Enforcement & Health Policy in Today’s Epidemic,” an Oct. 19 symposium at The Ohio State University’s Moritz College of Law. The event reminded me how little I know about current events and policies related to drug control, living, as I and many other historians do, in the past. I appreciated the chance to listen to legal experts in criminal justice and public health talk about Issue 1, drug courts, harm reduction, and other topics related to Ohio’s very high rate of overdose deaths.

About a year ago, the law school founded the Drug Enforcement and Policy Center. Its current visiting faculty member, Alex Kreit, a law professor who has been involved with ADHS, was featured during the plenary panel session alongside a sheriff, a representative of the state’s attorney general, and a psychiatry professor. Kreit said that although there has been bipartisan support for ending the drug wars, there is also backlash against said progress—for example, in U.S. Attorney General Jeff Sessions’s recent “doubling down” on punishment for drug offenders.

Kreit was involved in implementing Prop 47 in California and supports Issue 1 for Ohio. He said that safe injection sites are the “next state-federal battleground” in the drug wars, as many localities have moved forward with plans to open them in spite of the possibility of federal prosecution. Seattle, New York, Philadelphia, and San Francisco are all considering opening safe injection sites, he said.

Aila Hoss, a law professor, also looked at safe injection sites as part of her presentation on “legalizing harm reduction.” She said that staff and medical personnel at such facilities are often forced to put themselves at risk, trusting in the goodwill of, or informal arrangements with, local law enforcement to overlook the on-site use of drugs. In this and other ways, she said, drug bans undermine the prevention efforts of the public health sector. Indeed the persistence of abstinence-based and prohibitive approaches was identified by many of the speakers as a key problem. For instance, Daniel Abrahamson of the Drug Policy Alliance said that the way drug courts today tend to disregard evidence-based, especially medication-assisted, rehabilitation has actually degraded the ethics and norms of the drug treatment profession.

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At “Facing Opioids,” drug court advocates spoke to audiences that included skeptical policy reformers. Photo provided by Moritz College of Law Communications. 

Drug courts were held up to special scrutiny during the symposium, with some participants touting their effectiveness and others calling them more oppressive than regular court. Whether the courts have been a effective remedy for substance abuse in Ohio is an important question to answer, because opponents of Issue 1 are convinced that the amendment would walk back progress in the state: they argue that prison sentences attached to low-level drug felonies are essential to coercing drug court defendants into rehab programs. Ohio Chief Justice Maureen O’Connor, who delivered the keynote address, has said Issue 1 would be “catastrophic” for that reason. She recently wrote: “We know, through multiple studies, that drug courts are highly effective but only when they combine the ‘carrot’ of treatment and support with the ‘stick’ of judicial accountability, including incarceration when needed.”

But Abrahamson said prison time does not work as a sanction to keep people in treatment. He said the 3,000 drug courts now operating across the country have caused more harm than good and are based on “junk science.” Statistics showing high rates of success are inflated by the high percentages of marijuana users, who don’t really need addiction treatment, and defendants can actually end up serving more time in prison via drug court if they relapse. “Drug court backers are the chief opponents of policy reform,” he said. “They oppose medical marijuana. They oppose sentencing reduction.”

It can be difficult to see a future with sensible drug policy as long as every crisis repeats the historical cycle of moral panic and crackdown. Doug Berman, an Ohio State law professor, worried about the high costs of an emerging trend in enforcement of treating every overdose as a homicide. Valena Beety, a law professor at West Virginia University, worried about the perversion of justice by unqualified (though elected) medical examiners who decide whether the scene of an overdose is a scene of suicide, homicide, or accidental death.

My 15 minutes on the history of forfeiture in drug control was about the only non-contemporary contribution to the symposium, but policy makers badly need to learn more history. Otherwise they tend to believe that this drug crisis and its various features are unprecedented, or that the problem can be solved by a simple willingness to take tougher measures.

Sadly, the only two historical points I noted in the course of the symposium were both incorrect. They both came from Jonathan Blanton, a representative of Ohio Attorney General Mike DeWine, the Republican gubernatorial candidate. Blanton said that Purdue Pharma had “invented the pain scale posters with the little pictures.” But it didn’t. Politicians, I suppose, just don’t adhere to the same standards of accuracy that legal and historical scholars embrace. In referring to the gravity of the opioid crisis, Blanton told the audience something astonishing about world history: “There have been billions of overdoses since Mesopotamia.” I’d like to see that data in cuneiform.

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