Prosecutors Must Learn From Drug Users—But That Takes Humility

    Across the US, most health professionals can now find opportunities to learn how to integrate harm reduction into their practice, if they so choose.

    For example, last year within the space of a couple of months in the greater Philadelphia region, the New Jersey Department of Health hosted a Harm Reduction workshop bringing healthcare providers, people who use drugs, and government officials into the same room for discussions about stemming preventable overdoses—and the College of Physicians of Philadelphia and the city’s Department of Public Health hosted a “Harm Reduction 101” event for doctors and other healthcare practitioners.

    In contrast, law enforcement, and especially prosecutors, have almost zero opportunities to authentically learn the values and practices developed by people who use drugs with the goal of keeping their peers alive. That is because of criminalization, which has at its root our Puritanical and racist history in the United States.

    This is troubling, as law enforcement has the most devastating tools at its disposal to undermine these effortslike guns, handcuffs, jails and prisons. Often, what they are taught is anathema to effective harm reduction. Law enforcement are trained that violators of any law should only be kept free if limited resources dictate that their attention be spent on more serious crimes. Such logic continues to permeate even prosecutorial announcements of decriminalization policies, even though it mandates that, in a post-scarcity world, every user of illegal drugs would be rounded up and arrested—presumably so they can be “saved.” 

    This completely ignores the realities of why people use drugs: sometimes for recreation, but often as social bonding, a salve for trauma, or other reasons. Frequently, these needs overlap. Sometimes, drug use is a phase that people grow out of. An “invisible majority” of drug use does not inhibit people from having a productive, meaningful life.

    Law enforcement officials are encouraged to have a lack of comprehension in this area, and people who use drugs understandably do not trust members of law enforcement. For a mutual dialogue to occur, forward-thinking members of law enforcement must make the first move, because they have a history of making things worse.

    As part of this programming, before any new conversations, the police chiefs must concede that their departments have wronged the communities.

    This mirrors the racial reconciliation work in policing that the National Network for Safe Communities has led. In collaboration with that organization, a handful of police chiefs have attempted to kindle a two-way dialogue with communities of color harmed by both violent crime and racist policing. As part of this programming, before any new conversations about policy reforms are underway, the chiefs must concede that their departments have wronged the communities, both historically and presently. 

    In similar and overlapping ways, police and prosecutors have frequently used unjust laws to victimize communities of people who use drugs by saddling people who harm no one else with future-crushing criminal convictions. And just as communities of color often face a higher rate of unsolved homicides despite much more pervasive policing, people who use drugs have been “overpoliced and underprotected.” 

    This is seen by the fact that police only started carrying naloxone with some regularity after fatal overdoses became so frequent that they were a daily news story. Essentially, a certain critical mass of dead young people had to be reached before helping impacted people became a part of police officers’ duties. 

    All the while, police and prosecutors historically and presently cut down common-sense legislation like Good Samaritan laws for overdoses, in the name of hamfisted enforcement like drug-induced homicide prosecutions.

    Some seeds of reconciliation between law enforcement and people who use drugs have been planted by LEAD, or Law Enforcement Assisted Diversion. LEAD is unique because police officers can bring a person found using drugs in public to treatment, rather than conducting an arrest and giving that person an arrest record. LEAD’s National Support Bureau reports that “An unplanned, but welcome, effect of LEAD has been the reconciliation and healing it has brought to police-community relations.” 

    In addition, police recruitment is changing, which could improve the potential for reconciliation. In many US cities in past years, an admission of drug use could spell out a bar from getting hired at police departments. Those requirements are now getting more relaxed—a serendipitous byproduct of fewer people applying for police jobs today as a result of high-profile coverage of police brutality and shootings.

    There has been some further growth amongst a small subset of US law enforcement leaders. For example, a group of elected prosecutors under the Fair and Just Prosecution banner recently visited Portugal to learn about that country’s successful policy of reducing harm and overdoses through drug decriminalization and a bulked-up public health sector.

    Still, it is hard to imagine even these reform-minded prosecutors meeting knowingly with their local constituents who also happen to use drugs for dialogue with active, respectful listening. It goes against the most obvious reading of their own job descriptions

    But doing exactly this is what public safety should mean in the throes of an unabating overdose crisis

    This would not be a goal to pursue lightly. Keeping things open and honest would be necessary for a fruitful conversation⁠, even if prosecutors might hear things that make them feel defensive or ashamedor, less promisingly, make them feel that the people they serve are disrespectful, or ungrateful for prior reforms. 

    People who use drugs might well point out, for example, that drug courts exist not to help them be “well,” in an objective sense, but to undermine their deeply personal choices to alter their consciousness. 

    They might also note that even the most progressive District Attorneys, like Philadelphia DA Larry Krasner and Boston DA Rachael Rollins, are still pursuing drug possession charges for “harder” drugs like heroin to coerce people into drug treatment.

    As DA Rollins is still prosecuting these cases many months into her first term, she has clearly backed off the “decline to prosecute” policy she first proposed on the campaign trail. And while DA Krasner finally started dropping non-marijuana drug possession cases as a matter of policy in December 2019, people still need to come back to court to show proof of treatment if they are to benefit from the change.

    As Filter laid out in 2018, drug policy as set by top local prosecutors across the country all goes downhill from Rollins and Krasner. But pointing this out is likely to hurt feelings, as drug courts and forced treatment are largely still seen as “humanitarian” in the US.

    Yet for any sort of reconciliation to be meaningful and hold out the prospect of real change, law enforcement officials have to be willing to set aside their egos, accept the culpability of their profession, and recognize that it takes great and arguably reckless courage for a member of a criminalized population to even meet with them.

    If prosecutors and police really want to know what can end the overdose crisis, they should be making a point to genuinely listen to people who use drugs. But they must come to the table with the necessary humility to earn any trust from the people they are meant to help. 

    Photo adapted from Ben White on Unsplash.

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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