Under state and federal drug prohibition laws, police in the United States made over 1.3 million arrests for drug possession in 2019. This represents almost 12 percent of all arrests made nationally that year, more than any other type of arrest.1
Despite the degree of effort put into addressing drug use through criminal law enforcement, the war on drugs has produced harms that have had devastating impacts on individuals and whole communities, including arrest and imprisonment.2
Importantly, overdoses related to substance use remain the leading cause of accidental death in the United States, claiming 107,477 lives in 2022 – a nearly eight-fold increase since 1999.3 Overdoses claim more lives than homicides, vehicle accidents, and HIV combined, with the highest rates in Native American and Black communities.4 175 people die from fentanyl poisoning every day – or one fatality every 8 ½ minutes.5
Recognizing that public health interventions may be more effective than law enforcement in addressing drug use and addiction-related challenges, some jurisdictions have begun experimenting with ways to reduce the footprint of drug-related policing by:
Traditionally, police have responded to substance use with enforcement. There are two conventional police responses to someone suspected of violating the Controlled Substances Act: ticketing and arrest.
In places such as New York, officers issue a Desk Appearance Ticket (DAT), whereby individuals who are stopped for the suspected possession of a controlled substance are immediately released from custody after signing an acknowledgment that they will appear in court at a later date. DATs are only issued for specific types of crimes, including misdemeanors, violation offenses, and certain felonies.6
For states that do not have this option, individuals typically are taken into custody, where belongings are searched, controlled substances confiscated, and warrants checked before they are sent to lockup for subsequent appearances in court.
These traditional enforcement approaches are intended to reduce the prevalence and risk of harm resulting from drug use in the community – and not without good reason. Indeed, there are connections between drug use and criminal activity, especially in the case of property crime.7 But as many commentators have explained, enforcement-only strategies have not proved successful in deterring crime that may result from drug use.8 Instead of focusing on treatment or harm reduction strategies, the practical application of police enforcement historically targeted drug offenders of all sorts without sufficiently distinguishing between simple possession and use, and large-scale trafficking.
At the height of the war on drugs, someone in the United States was arrested for drug possession every 25 seconds.9 This was triple the number arrested for possession in 1980.10 Additionally, possession arrests were six times greater than arrests for drug sales.11 During this period, one-fifth of the incarcerated population served time for a drug charge, while another 1.15 million people were on probation or parole for a drug charge.12
Even now, more than a million people are still arrested for possession each year. This is despite overall arrests having decreased by 29 percent between 2009 and 2019.13
Another cause for concern is the dramatic increase in overdoses, which is the leading cause of death for individuals recently released from prison. For individuals currently incarcerated, it is the third leading cause of death.14 One study in the state of Washington found that individuals recently released from prison were 129 times more likely to die from an overdose than the general public. These statistics are all the more sobering given the significant overrepresentation of Black residents in the criminal legal system, who are arrested for drug violations at double the rate of their representation within the United States population.15
The Vera Institute reports that detention facilities have limited access to medical treatment and are typically incapable of providing adequate support to individuals experiencing substance use disorder. Furthermore, periods of incarceration interfere with the formal and informal networks of care that are essential to recovery.16
Simply put, the criminal legal system does little to prevent continued substance use, reduce the trade in drugs, or reduce deaths from drug overdoses.
Several state and local governments are attempting to reduce the role of the government and law enforcement in addressing substance use by decriminalizing possession, and, in the case of cannabis, by legalizing use and possession entirely.
Decriminalization downgrades the severity of a charge and reduces the likelihood of prosecution, while still maintaining some degree of public regulation. Decriminalization often replaces criminal penalties with civil fines and can also include referrals to an educational or treatment program.
Legalization is the full repeal of criminal and civil penalties for a particular behavior. As of 2022, twenty-one states, the District of Columbia, and Guam have legalized the recreational use of cannabis.
In 2021, Vermont and Rhode Island became the first states in the country to decriminalize the possession of Buprenorphine without a prescription. Buprenorphine – the primary drug present in the more commonly known Suboxone – is an opioid that is frequently used in medically assisted treatment programs for opioid use disorder due to its low risk of overdose and ability to reduce symptoms of withdrawal. 17
Prior to going into effect statewide, Buprenorphine decriminalization was piloted in Burlington, Vermont. In the policy’s first year, opioid overdoses dropped by 50 percent.18
Every state except for Alaska has a prohibition on the possession of drug paraphernalia (equipment used to ingest drugs), and 45 states specifically include drug testing material in that prohibition.19 Testing kits have become increasingly important in recent years due to Fentanyl, and banning their use effectively prevents safe consumption.
Last year, with the goal of reducing the number of overdoses in the state, Pennsylvania removed testing tools used to safely ingest controlled substances from the list of illegal paraphernalia.20
Initial data suggest that legalization has enabled law enforcement to re-focus resources toward core public safety priorities. In the first two states to legalize marijuana, possession charges fell by 98 percent within four years (Washington), and possession charges dropped 88 percent in three years (Colorado).21 In Oregon and Alaska, arrests declined by 96 percent within three years of legalization and 93 percent within two years, respectively.22
Diversion programs connect individuals detained for suspected possession of a controlled substance to a treatment provider in lieu of filing charges with the courts. Under this model, police remain empowered legally to take individuals into custody, and the threat of arrest ostensibly helps ensure that the first interaction between the individual and a treatment provider actually occurs. The role of the criminal legal system typically concludes once a connection to services and/or treatment has been made.
Diversion programs can be administered at the local, county, and/or state level, as the examples below indicate.
In 2018, the city of Chicago launched the Narcotics Arrest Diversion Program to divert individuals in possession of a suspected controlled substance from arrest and into treatment. Clinicians from local service providers are embedded in the Chicago Police Department and, when an officer brings a suspect back to the police station, that individual is processed and released into treatment as opposed to remaining in custody overnight to see a judge in the morning.23
Early findings for the Narcotics Arrest Diversion Program showed a reduction in the likelihood of future arrest for both suspected drug violations and violence, suggesting that benefits extend beyond the individuals treated to encompass the safety of the public more broadly.24
These findings contribute to a larger body of research that demonstrates an association between increased investments in substance use treatment and a reduction in arrests.25
In 2018, the Austin-Travis County Sobering Center opened its doors to receive individuals suffering from alcohol intoxication who otherwise would have been taken to jail or an emergency department. Once inside the center, individuals are under medical supervision until they are screened for referral to treatment and peer recovery support.
Since its launch, the scope of the program has expanded to include intoxication from controlled substances. This diversion program is unique in that it can be utilized by Emergency Medical Services (EMS) in addition to law enforcement. Because onsite patient transfer takes an average of just six minutes, this program increases the availability of first responders to respond to other calls.26
An evaluation of a year’s worth of data found that arrests for public intoxication dropped significantly, and that 80 percent of individuals were connected with follow-up treatment – with some leaving directly from the center to a treatment provider.27 88 percent of the individuals brought to the Sobering Center were admitted into their care, and of those admitted, 98 percent were satisfied with their care.28 This unique intervention offers first responders a new location beyond the emergency room and jail to support residents who really just need treatment.
In 2021, the Supreme Court of the State of Washington found that the felony classification of the possession of controlled substances was unconstitutional. In response, the state legislature passed a law requiring diversion for individuals arrested in possession of a suspected controlled substance for the first two instances.29 After the first two arrests, diversion to treatment is up to the discretion of the arresting officer.
This legislation is unique in that it sets an expectation from the State that individuals will be diverted, but allows local governments to come up with a mechanism that works best for their local conditions.
Several jurisdictions are increasingly investing in treatment services, with an emphasis on accessibility to the communities most in need. In addition to facilitating diversion, enhanced treatment also can be combined with dedicated response capability, often freeing up police entirely from engagement with substance users.
Launched in November 2020, the Street Crisis Response Team responds to non-violent calls with a mental health, behavioral health, or substance use component. Teams are composed of a community paramedic, EMT, and peer or Homeless Outreach Team specialist. San Francisco’s alternate response to mental health and substance use is unique in that they have also created an agency that coordinates the care of individuals who come into contact with the Street Crisis Response Team.
When the Street Crisis Response Team meets with an individual, they refer them to the Office of Coordinated Care, which links patients with mental health and substance use treatment across the city. This partnership has been a broad success, with the Office of Coordinated Care managing to connect almost two-thirds of patients who have come into contact with the Street Crisis Response Team, ultimately lowering the rate of repeat callers.30
Several cities across the country are experimenting with using overdose emergency department admissions as a pathway to treatment.
In the summer of 2022, the Newark Community Street Team in the city of Newark launched an alternate response program that dispatches outreach workers and EMS to respond jointly to overdoses in the community. They resuscitate individuals who are suspected of experiencing an overdose and engage the larger community by providing harm-reduction supplies and connections to treatment.31
The city of Dallas dispatches an Overdose Response Team staffed with peer support specialists and EMS staff from the Dallas Fire & Rescue Mobile Integrated Healthcare unit. They are dispatched 24 to 72 hours following an overdose event to provide resources and support.32
The state of West Virginia takes a different approach by managing their Quick Response Teams out of county health departments. The staffing makeup of these teams varies by county, but they typically are composed of EMS, law enforcement officers or health department professionals, and peer recovery specialists.33 These teams receive 911 and emergency department data showing who was brought into the emergency room and whether or not they were connected with follow-up care. Those who refuse services are prioritized for outreach, which typically is done in the patient’s home. If they are willing to connect with care, the team will transport the individual in their team vehicles. This program has had early successes, managing to connect about 30 percent of clients with care.34
In November 2021, the New York City Office of the Mayor began a pilot that enabled two needle exchange programs to begin operating as safe consumption sites. These drop-in sites monitor drug consumption by providing clean needles, reversing overdoses that may occur, and offering resources for addiction treatment.35 They also provide case management, mental health services, and other related services that reduce the harms associated with drug use and needle-sharing. Since their launch, the centers in New York City have provided 701 overdose interventions.36
Although safe consumption sites are a fairly new concept within the United States, a systematic review of similar facilities in Vancouver, Canada found that they were associated with significant reductions in drug overdose morbidity and observed no increases in crime to the surrounding communities.37
Individuals lacking convenient access to a pharmacy may find it easier to obtain controlled substances illegally than their prescribed medication legally, thereby missing the support and guidance that is typically associated with the regulated, professional distribution of medication.38 To address this concern, Pierce County, Washington launched a pilot program that permitted physicians and treatment providers to offer medication directly to patients experiencing substance use disorder, instead of merely writing a prescription for a subsequent pharmacy visit.
This improved access to medication increased retention in treatment by over 50 percent, reduced non-prescribed controlled substance use by almost a third, and reduced emergency department visits by over 40 percent.39
The criminal legal system has traditionally dominated society’s response to unlawful substance use. Many communities, however, are reconsidering this strategy, recognizing that treatment-based solutions with a public health focus often are more effective in curbing abuse, preventing harm, and promoting public safety. The evidence demonstrates that these strategies, when properly resourced, can save lives, strengthen communities, and reduce unproductive engagement with the criminal justice system.
1Federal Bureau of Investigation. (2020). Crime in the United States 2019. Retrieved from https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/table-29/table-29.xls; The Pew Charitable Trusts. (2022, February 15). Drug Arrests Stayed High Even as Imprisonment Fell From 2009 to 2019. Retrieved April 19, 2023, from https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2022/02/drug-arrests-stayed-high-even-as-imprisonment-fell-from-2009-to-2019.
2Cohen, A., Vakharia, S. P., Netherland, J., & Frederique, K. (2022). How the war on drugs impacts social determinants of health beyond the criminal legal system. Annals of Medicine, 54(1), 2024-2038.
3Drug Overdoses - Data Details - Injury Facts. (n.d.). Injury Facts. Retrieved April 19, 2023, from https://injuryfacts.nsc.org/home-and-community/safety-topics/drugoverdoses/data-details/.; House, W. (2023). Dr. Rahul Gupta Releases Statement on CDC’s New Overdose Death Data. The White House. Dr. Rahul Gupta Releases Statement on CDC’s New Overdose Death Data | ONDCP | The White House.; CDC Newsroom. (2016). CDC. https://www.cdc.gov/media/releases/2022/s0719-overdose-rates-vs.html
4Han, B., Einstein, E. B., Jones, C. M., Cotto, J., Compton, W. M., & Volkow, N. D. (2022). Racial and ethnic disparities in drug overdose deaths in the US During the COVID-19 pandemic. JAMA network open, 5(9), e2232314-e2232314.; https://www.cdc.gov/nchs/fastats/injury.htm
5Team, D. (2023). Fentanyl Becomes Leading Cause of Death for Ages 18-45 - Georgetown Behavioral Hospital. Georgetown Behavioral Hospital. https://www.gbhoh.com/fentanyl-becomes-leading-cause-of-death-for-ages-18-45/
6Solomon, F. (2020). Desk Appearance Tickets: Prelude to Bail Reform. New York City Criminal Justice Agency. Retrieved March 10, 2023, from https://www.nycja.org/publications/desk-appearance-tickets-prelude-to-bail-reform.
7Bureau of Justice Statistics, Drug Use, Dependence, and Abuse Among State Prisoners and Jail Inmates, 2007-2009, NCJ 250546 (U.S. Department of Justice, 2017) available at https://bjs.ojp.gov/content/pub/pdf/dudaspji0709.pdf.
8Zhang, A., Balles, J. A., Nyland, J. E., Nguyen, T. H., White, V. M., & Zgierska, A. E. (2022). The relationship between police contacts for drug use-related crime and future arrests, incarceration, and overdoses: a retrospective observational study highlighting the need to break the vicious cycle. Harm Reduction Journal, 19(1), 1-11.
9Borden, T. (2016). Every 25 seconds: the human toll of criminalizing drug use in the United States. Human Rights Watch.
10Wagner, P., & Sawyer, W. (2018). Mass incarceration: The whole pie 2018. Prison Policy Initiative, March 14.
11Ibid.
12Bureau of Justice Statistics, Probation and Parole in the United States, 2016 NCJ 251148 (U.S. Department of Justice, 2018), p.3 table 1, p.17 table 4, p.24 table 8, available at https://www.bjs.gov/content/pub/pdf/ppus16.pdf.; Wagner, P., & Sawyer, W. (2018). Mass incarceration: The whole pie 2018. Prison Policy Initiative, March 14.
13Trusts, P. C. (2022). Drug Arrests Stayed High Even as Imprisonment Fell From 2009 to 2019. The Pew Charitable Trusts. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2022/02/drug-arrests-stayed-high-even-as-imprisonment-fell-from-2009-to-2019
14Binswanger, I. A., Blatchford, P. J., Mueller, S. R., & Stern, M. F. (2013). Mortality after prison release: opioid overdose and other causes of death, risk factors, and time trends from 1999 to 2009. Annals of internal medicine, 159(9), 592-600.; Binswanger, I. A., Stern, M. F., Deyo, R. A., Heagerty, P. J., Cheadle, A., Elmore, J. G., & Koepsell, T. D. (2007). Release from prison—a high risk of death for former inmates. New England Journal of Medicine, 356(2), 157-165.
15Table 43. (n.d.). FBI. https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/tables/table-43.
16Overdose Deaths and Jail Incarceration - National trends and racial disparities. (2021). Vera Institute of Justice. https://www.vera.org/publications/overdose-deaths-and-jail-incarceration/national-trends-and-racial-disparities.
17del Pozo, B., Krasner, L. S., & George, S. F. (2020). Decriminalization of Diverted Buprenorphine in Burlington, Vermont and Philadelphia: An Intervention to Reduce Opioid Overdose Deaths. The Journal of Law, Medicine & Ethics, 48(2), 373-375. https://doi.org/10.1177/1073110520935353.
18Eagle, F. P. B. (2021). Vermont, Rhode Island decriminalized a lifesaving opioid treatment. Should Massachusetts? The Berkshire Eagle. https://www.berkshireeagle.com/news/local/buprenorphine-treatment-opioid-decriminalized/article_44df51a2-fb95-11eb-9ff7-4309425e37dd.html.
19Singer, J. A. (2023). Fentanyl Test Strips Save Lives, Yet Most States Ban Them As “Drug Paraphernalia”.
20Center, L. D. P. (n.d.). 2022 Act 111. The Official Website for the Pennsylvania General Assembly. https://www.legis.state.pa.us/cfdocs/legis/li/uconsCheck.cfm?yr=2022&sessInd=0&act=111.
21ACLU of Washington. (2014). Court Filings for Adult Marijuana Possession Plummet. Retrieved from https://aclu-wa.org/news/court-filings-adult-marijuana-possession-plummet.; Reed, J. K. (2016). Marijuana Legalization in Colorado: Early Findings: A Report Pursuant to Senate Bill 13-283 (March 2016). Retrieved from https://cdpsdocs.state.co.us/ors/docs/reports/2016-SB13-283-Rpt.pdf.
22Brock, J. D. (2013). State of Oregon Report of Criminal Offenses and Arrests 2012. Retrieved from https://digital.osl.state.or.us/islandora/object/osl%3A68346/datastream/OBJ/view.; Drug Policy Alliance. (2018). From Prohibition to Progress: A Status Report on Marijuana Legalization. Retrieved from https://drugpolicy.org/sites/default/files/dpa_marijuana_legalization_report_feb14_2018_0.pdf.
23Narcotics Arrest Diversion Program (NADP) | UChicago Crime Lab. (n.d.). https://urbanlabs.uchicago.edu/programs/narcotics-arrest-diversion-program-nadp.
24Arora, A., & Bencsik, P. (2021). Policing substance use: Chicago’s treatment program for narcotics arrests. Working paper.
25Overdose Deaths and Jail Incarceration - National trends and racial disparities. (2021). Vera Institute of Justice. https://www.vera.org/publications/overdose-deaths-and-jail-incarceration/national-trends-and-racial-disparities.
26DocumentCloud. (n.d.-b). https://www.documentcloud.org/documents/6535141-Sobering-Center-Program-Evaluation-Report.html.
27Ibid.
28Ibid.
29RCW 10.31.115: Drug possession—Referral to assessment and services. (n.d.). https://app.leg.wa.gov/rcw/default.aspx?cite=10.31.115
30Harder + Company Community Research. (2022). Street Crisis Response Team Pilot. https://sf.gov/sites/default/files/2022-06/SCRT%20Final%20Report_FINAL-%201%20year.pdf
31Vital Strategies. (2022). New Initiative Aims To Reduce Both Overdose Deaths and Arrests Associated With Emergency Calls. [Press release]. Retrieved from https://vitalstrategies.org.
32Quillen, A. (2023). Dallas Overdose Response Team Saves Lives. NBC 5 Dallas-Fort Worth. https://www.nbcdfw.com/news/local/dallas-new-overdose-response-team-saving-lives-one-person-at-a-time/3221710/.
33Conn, A. (2022). Boone County Quick Response Team recognized by W.Va. DHHR. WCHS. https://wchstv.com/news/local/boone-county-quick-response-team-recognized-by-state
34Public Safety-Led Post-Overdose Outreach Programs | Drug Overdose | CDC Injury Center. (n.d.). https://www.cdc.gov/drugoverdose/od2a/case-studies/public-safety.html
35Mays, J. C., & Newman, A. (2021). Nation’s first supervised drug-injection sites open in New York. The New York Times. https://www.nytimes.com/2021/11/30/nyregion/supervised-injection-sites-nyc.html.
36OnPoint NYC. (n.d.). OnPoint NYC - Making History. Saving Lives. Retrieved from https://onpointnyc.org.
37Levengood, T. W., Yoon, G. H., Davoust, M. J., Ogden, S. N., Marshall, B. D., Cahill, S. R., & Bazzi, A. R. (2021). Supervised injection facilities as harm reduction: a systematic review. American journal of preventive medicine, 61(5), 738-749.
38Werle, N., & Zedillo, E. (2018). We can't go cold Turkey: Why suppressing drug markets endangers society. Journal of Law, Medicine & Ethics, 46(2), 325-342. Retrieved from https://ycsg.yale.edu/sites/default/files/files/we_can't_go_cold_turkey.pdf.
39Khan, A., Khan, Q., & Kolb, E. (2021). Supportive alternate site provision of buprenorphine: Overcoming barriers and improving patient outcomes. Journal of Substance Abuse Treatment, 123, 108256. Retrieved from https://www.jsatjournal.com/article/S0740-5472(20)30513-4/fulltext.
