Prosecutors try to keep people out of pandemic-clogged courts through diversion programs

Since 2018, Judge Jason Lidyard of Rio Arriba County, N.M., has forged a new model for a drug court. Instead of demanding abstinence from drugs as the price to stay out of jail, Lidyard uses respect and personal relationships to seek a redefinition of success: making substance abuse less deadly and less socially crippling. Violating the court's requirements to get treatment results in more help, not jail. The less punitive approach seemed to reduce overdoses until a new fentanyl surge complicated the picture. Almost all of the people who've gone through the court have avoided new felony arrests.

Like standard drug courts, the Penobscot Nation's Healing to Wellness Court refers people facing drug-related criminal charges to substance abuse counseling as an alternative to punishment. But this court and other tribal wellness courts are steeped in indigenous customs, blended with restorative justice approaches, to emphasize rehabilitation based on trust, support, and native traditions. The threat of punishment looms over participants should they fail in their counseling program. But no one has been jailed in the past two years in the Penobscot program.

Drug courts can help some people with serious drug problems who face serious criminal charges, if such court programs are run carefully, based on evidence-based approaches. But, too often, such courts – which push criminal defendants into treatment as an alternative to incarceration – can do more harm than good. The proof of drug courts' effectiveness is mixed, and fairly thin. Thousands of such courts exist, based on widespread political support for an approach seen as less punitive. But many critics say the courts' track record overall is weak and their approach can be just another form of punishment.

Eagle County's two problem-solving courts put treatment ahead of punishment when addressing crimes committed by people with substance abuse problems. Originally set up as one court, they now function separately to address drunken driving and drugs and serve people "teetering on the edge of serious prison time" for repeat offenses. More than 90 percent of participants in 2020 maintained sobriety and more than 80 percent avoided new legal troubles. While the threat of punishment is used to win compliance with rules, prosecutors say they're more interested in permanently curing the underlying disease.

The Mecklenburg County district attorney stopped prosecuting non-violent, low-level drug cases to free up resources to handle a backlog of more serious cases that built up during the pandemic. The policy had the effect of freeing people from the permanent stain of a criminal conviction and offering them drug treatment as an alternative to punishment.

Four UK police forces have adopted drug-decriminalization policies over the past five years, diverting hundreds of cases toward treatment and harm-reduction counseling, and away from criminal convictions, fines, and incarceration. The policies, which apply even in cases involving heroin and cocaine, have been found to reduce drug offenses and conserve police resources for more serious crime. Based on those programs, West Midlands, the second-largest police force in England and Wales, is launching a one-year pilot project aimed at diverting 1,500 people's cases away from the criminal process.

The Penobscot Nation's Healing to Wellness Court is a drug court, diverting people charged with drug offenses from possible fines and jail into therapy. But it has an added cultural element, providing traditional healing approaches alongside mainstream behavioral therapy. The cultural piece recognizes that Native Americans' historical trauma and disconnect from their culture can contribute to the problems that lead to addiction. The court is far less expensive than jail or prison, and its participants have not been jailed for failing treatment in more than two years.

In Philadelphia, people facing felony drug charges can opt for a yearlong program in a treatment court where their progress is monitored to ensure they avoid substance use, get treatment and stay in contact with their case managers. Judges presiding over the court work with those who miss those goals to help them reflect on how they can graduate, even if there are stumbles along the way. Those who successfully complete the program can work to get the felonies expunged from their records.

Intervention Court provides programming and support to those struggling with addiction, connecting them to jobs, schooling and skills training to help them stay sober, re-enter society and stay out of jail. Nearly 11,000 people have graduated from one of the 42 drug courts throughout the state, and the courts average a recidivism rate of just 2.9% compared to the Mississippi Department of Corrections’ 35.4%.

While the decriminalization effort Measure 110 failed to fully meet the mark, the Health Justice Recovery Alliance joined forces with local law enforcement to create a pilot program that helped locals struggling with addiction. Through the program, police can contact an outreach worker who will come to the scene and connect the person struggling with addiction to support services such as detox care and housing, helping lead them toward long-term recovery. So far, the pilot program has helped over 200 people.