Presumed Democratic presidential nominee Joe Biden released his “Plan for Black America” on May 4, which discussed some of the drivers of racial inequality and how he proposes to fix them. The plan rightly identifies the criminal justice and prison systems, and drug enforcement, as disproportionately targeting Black Americans. But its proposed solutions either don’t go far enough or are likely to create their own harms.
Biden “will end, once and for all, the federal crack and powder cocaine disparity, decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions, and end all incarceration for drug use alone and instead divert individuals to drug courts and treatment,” the plan reads.
The federal crack disparity refers to a law that Biden himself sponsored and partially wrote: the Anti-Drug Abuse Act of 1986. If someone was caught with 5 grams of crack cocaine, they would be charged and sentenced as if it were 500 grams of powder cocaine. Legislation signed by Presidents Obama and Trump repealed or reformed certain aspects of the law, but today the law still treats each gram of crack as if it were 18 grams of powder.
Biden supports decriminalizing cannabis and expunging prior convictions for use, despite his recent espousal of the dubunked “gateway theory.” Filter has reported on the massive and, in some places, worsening harms caused to Black and Brown Americans by marijuana enforcement, as documented by the ACLU. But the ACLU report was unequivocal: While marijuana decriminalization is a step forward, legalization is still the best solution for reducing racial disparities in enforcement. Biden refuses to support federal legalization.
So under Biden’s plan, what would happen to people who are arrested for crack, powder cocaine, marijuana, or any other drugs? He says he wouldn’t send anyone to prison for use alone. (Presumably, therefore, he would still want to lock up people who sell drugs.) But his alternative, “[diverting] individuals to drug courts and treatment,” can be very harmful in its own way.
How a President Biden would implement this isn’t exactly clear. His campaign’s opioid crisis plan does say that he would expand substance use treatment access by enhancing the Affordable Care Act, expanding Medicaid, and investing federal funds in local treatment programs.
But setting aside important questions around the efficacy of mainstream, abstinence-based treatment in the US, there is a huge ethical difference between voluntary treatment and forced (or coerced) treatment.
As things stand, Healthline reports that 37 states and the District of Columbia allow law enforcement, families or medical providers to petition to have someone ordered into treatment. Under some laws, people can be involuntarily confined even without a judge’s order if they are deemed a threat to themselves or others. These short-term civil commitments may last 24 hours to 15 days. In some states like Florida and Massachusetts, commitments have more than doubled in the last 20 years.
Some research on involuntary drug treatment has shown it may be ineffective or even more harmful than helpful. A 2016 study in the International Journal of Drug Policy looked at such programs around the world, and found little evidence they are effective while finding potential harms and human rights abuses. A 2017 report by Physicians for Human Rights found that involuntary drug treatment programs in the US are often overly punitive and harm patients. Some of the programs they examined weren’t even run by medical professionals, and deny people evidence-based medications like methadone or buprenorphine.
Disturbingly, a 2016 report by Massachusetts public health officials found that people who were involuntarily committed to drug treatment were more than twice as likely to die of an opioid-involved overdose as people who went to treatment voluntarily. (In fact, they were nearly twice as likely to die of any cause.)
When it comes to drug courts, Biden’s plan explains that he “will require federal courts to divert [arrested people] to drug courts so they receive appropriate treatment and services. He’ll incentivize states to put the same requirements in place. And, he’ll expand funding for federal, state, and local drug courts and other programs that divert individuals who commit crimes as a result of or in furtherance of substance use disorders to treatment rather than incarceration.”
Drug policy reform advocates have long objected to the coercive, punitive nature of drug courts—as illustrated, for example, by the influential 2011 Drug Policy Alliance* report, Drug Courts Are Not the Answer.
Filter has reported on the mixed outcomes and ethical dilemmas presented by such courts, as well as on researcher and author Dr. Kerwin Kaye’s documentation of some of the problems with this model—in which prosecutors and district attorneys play an outsized role. A defendant who goes to drug court is subject to the whim of a judge without medical qualifications. They also forfeit the ability to enter a plea bargain, meaning they might might ultimately be charged with a more serious crime and serve a longer sentence.
As Kaye describes, the meat and bones of drug courts are not the court but the mandated treatment program where the defendant spends most of their time. This could be a 24/7 inpatient therapeutic community, another residential treatment program, or outpatient treatment. The programs often impose severe restrictions on a defendant’s freedoms and basic rights and dignity.
Though Joe Biden’s drug policy and criminal justice plans are an improvement over existing laws—including laws, we should remember, that he himself helped pass—his plans risk perpetuating the harms of the War on Drugs and mass incarceration through different means.