According to the National Survey on Drug Use and Health, about 9 percent of Americans are addicted to drugs and/or alcohol, and less than a quarter of these receive substance abuse treatment. Another study estimates that 37 percent of those who do are referred by the criminal justice system. Because of the lack of accessible, community-based resources, many people gain access to the treatment they need only after being arrested.

In recent years, the use of drug courts—court-regulated treatment and supervision programs that serve as alternatives to incarceration for people arrested for a drug-related offense—has increased dramatically. There are now nearly 2,500 across all fifty states. But though they have helped a small percentage of people struggling with addiction, drug courts may be widening rather than shrinking the net of criminal justice control. And they have helped delay the expansion of community-based treatment-on-demand that will best reduce addiction and the harms it causes.

How so? Without drug courts in the mix, some addicts might have received the help they needed without getting involved in the justice system. Before, if a person was arrested for possession, the prosecutors might have dismissed charges, put him in touch with a social worker or issued a warning or referral for treatment. A clear and growing demand for community treatment might have pushed policy-makers to expand resources. Now well-meaning police, prosecutors and judges send people to drug court, and given the lack of other options, people are often grateful for the opportunity to get treatment.

The real catch, though, is that generally a person must plead guilty to participate, with the conviction reduced or overturned only if he or she is successful. Disobeying court rules or experiencing a relapse—which is a natural part of recovery—can result in jail time. And when people fail drug court, they face traditional sanctions. In this way, participants become vulnerable not just to incarceration but to the pervasive aftereffects of a criminal conviction—which can include difficulty finding employment, being banned from benefits like public housing and food stamps and denied the right to vote. In addition, some drug courts have come under fire for "cherry-picking" participants, misdirecting resources to people who might have succeeded with a less intensive and expensive intervention. Those with felony or violent offenses or records are often excluded, even if they are the ones who would benefit most.

We know that community-based treatment is about nine times more cost-effective than drug courts. A study in Washington State found that drug treatment in the community produces $18.52 in public safety benefits in terms of reduced crime for every dollar spent, whereas treatment in prison produced only $5.88 in benefits, and drug courts less than $2.10 in benefits for every dollar spent.

Expanding people’s access to treatment before they become involved in the justice system will help increase public safety, save money and improve people’s life outcomes. Shifting the way we think about addressing drug use away from "back end" solutions like drug courts and toward a public health model will have a positive and lasting impact on people, save money in the long run and create a healthier and safer society for all of us. You shouldn’t have to get arrested in order to beat an addiction.

Read more from the special forum on drug policy reform:

Ethan Nadelmann, "Breaking the Taboo"
 
Marc Mauer, "Beyond the Fair Sentencing Act"
 
Bruce Western, "Decriminalizing Poverty"
 
David Cole, "Restoring Lost Liberties"
 
Laura Carlsen, "A New Model for Mexico"