When President Trump attacked Hunter Biden for using cocaine during the first presidential debate, Joe Biden hit back with a forceful defense of his son.
“My son, like a lot of people, ...had a drug problem,” Biden said. “He’s overtaken it. He’s fixed it. He’s worked on it.”
Looking directly into the camera, the Democratic nominee added emphatically: “And I’m proud of him. I’m proud of my son.”
It was a poignant moment — one that resonated with Americans affected by substance-use disorder. The exchange also offered a window into Biden’s striking evolution on drug policy from an enthusiastic champion of tough-on-crime bills as a US Senator in the 1980s and early 1990s to a rehabilitation-not-retribution reformer.
“No one should be going to jail because they have a drug addiction,” Biden told ABC in August. “They should be going into mandatory drug treatment. That’s why I set up drug courts.”
Despite three decades of intensive research, however, experts remain deeply divided over the efficacy — and ethics — of such courts.
Drug courts essentially offer a choice to defendants whose alleged crimes are deemed to have been the result of a substance use disorder: Take a chance at trial and potentially serve time behind bars, or plead guilty, enroll in drug court, and submit to an intensive daily regimen of recovery services, drug tests, and court hearings that can last as little as 12 months or stretch to two years or longer.
The programs, most of which are run by states with some federal funding, typically surround defendants with a team of medical treatment providers, probation officers, and other specialists, all overseen by a judge. Those who stay sober and meet other requirements “graduate” at a ceremony and, the idea goes, move on with their lives.
Proponents say these courts are both a compassionate alternative to incarceration and a more efficient form of justice, achieving lower crime and recidivism rates for less money than traditional criminal processes.
“We knew we weren’t dealing well with substance-abusing offenders,” said retired Massachusetts judge Robert Ziemian, who founded the state’s first drug court in 1995 and now serves as president of the New England Association of Drug Court Professionals. “Now, they have the option of going to drug courts, which are probably the most successful program in the criminal justice system.”
National data cited by supporters show reductions in crime of 8 percent to 26 percent in jurisdictions with drug courts. In Massachusetts, a 2018 assessment of 179 drug court graduates one year after graduation found a recidivism rate of under 30 percent, far better than the national average of around 70 percent for high-risk male offenders.
Addiction specialists say one reason drug courts may work is because they often provide earlier intervention in the course of substance-use disorder compared to those who voluntarily seek treatment. Also critical, they say, is that defendants have the option of enrolling, making it less likely that they will resent and reject treatment.
“Social psychology tells us that when people are given a choice they’re much more likely to succeed,” said Dr. John Kelly, the director of the Recovery Research Institute at Massachusetts General Hospital, who supports drug courts as a “smart” way to treat the root cause of crime.
In embracing such an approach, Biden is turning away from his own longtime efforts to outflank the GOP on law-and-order, including backing harsh anti-drug laws. In 1991, he famously held up a coin on the Senate floor and boasted that, under a bill he had sponsored, any American caught with a similarly-sized amount of crack cocaine — the drug to which his son would later become addicted — would be automatically sentenced to five years in jail.
Critics say such policies contributed an era of mass incarceration and disproportionately hurt Black and brown communities. Yet that attitude hasn’t entirely faded: The opioid crisis of the past decade prompted some prosecutors to bring murder charges against heroin users whose companions suffered fatal overdoses.
In Suffolk County, which includes Boston, District Attorney Rachael Rollins says that eye-for-an-eye approach merely inflicts additional suffering — and makes it less likely drug users will call for help in the event of an overdose — without solving the underlying problem. She supports Biden’s call to expand drug courts, moved in part by her own experience helping to raise the children of siblings who struggled with substance-use disorder.
“It costs $55,000 a year to send somebody to [jail] — I’d rather use half of that and send them a program where they’re not harming themselves or the community and they’re getting the treatment they need to be better,” Rollins said in an interview.
But enthusiasm for drug courts has waned since their heyday in the 1990s and 2000s as a reform measure with bipartisan appeal. Today, even supporters concede the country’s 4,000-plus drug courts appear to work only for “high-risk, high-need” defendants facing serious charges and substance-use problems — not first-time offenders. And they stress that drug courts must adhere to a strict set of operating principles, carefully measure outcomes, and only enroll their “clients” in evidence-based addiction treatments in order to be effective.
Critics go farther, arguing drug courts are ineffective and perpetuate the retrograde idea that people with substance-use disorder lack agency and personal responsibility and need to be isolated and “fixed.”
Carl Hart, a neuroscientist at Columbia University, said drug courts are wrong to hold up addiction as the ultimate cause of crime, when most crimes are the result of a complex set of circumstances that can include mental illness and unmet basic needs.
“It’s a political calculation,” Hart said of Biden’s proposal. “He figures if he says, ‘treatment instead of jail,’ Trump can’t attack him for being too liberal and he satisfies everybody. But if we want to help people, we have to first assess what their problems actually are.”
Opponents contend this flaw helps explain drug courts' surprisingly thin scientific track record.
Many studies on the programs lack control groups, do not track post-graduation relapses, and only examine successful graduates while excluding drop-outs. A 2012 analysis of 92 drug court evaluations found that only 25 percent were “relatively rigorous," with the best-designed evaluations showing the weakest effect on recidivism.
Even relying on potentially cherry-picked data, large studies-of-studies on drug courts still find only modest benefits, with the majority showing reductions in recidivism of less than 15 percent over relatively short time periods. In Massachusetts, recidivism two years after graduation from drug court was nearly 50 percent in 2018.
And in some areas, critics say drug courts are prone to sweeping up people who don’t actually have substance-use disorder — in Philadelphia, marijuana was the drug of choice for more than two-thirds of drug court participants — while turning away others who might actually benefit because their crimes are considered too serious. The programs also disproportionately exclude defendants of color.
“Because of the enthusiasm for drug courts we tend to widen the net,” said Mass. state senator William Brownsberger, who once promoted drug courts to policymakers in other states before becoming a skeptic. “I think of drug court like chemotherapy — it’s an extremely blunt instrument that is bad for people unless they really, really need it.”
One main objection of Brownsberger and others is that, far from being a form of mercy, drug courts frequently impose more onerous probation-like conditions (and harsher punishments for violating them) than would have resulted from ordinary criminal proceedings. The whirlwind of drug tests and court hearings can make it hard to hold down a job, and even minor relapses sometimes land drug court defendants back in jail. One defendant in Massachusetts committed suicide in a Lowell drug court in 2015, certain the notoriously tough judge was about to incarcerate her for flunking an alcohol test.
The quality of court-ordered addiction treatments can also vary widely, especially in rural areas with poor access to healthcare. While defendants in Massachusetts are now often able to access such drug-replacement therapies as buprenorphine and methadone — considered the standard of care by leading specialists — those in other states are sometimes ordered to enroll in questionable abstinence-based programs that provide no medication. In one extreme case in Oklahoma, a drug court sent hundreds of defendants to a “treatment” center that functioned as little more than a source of unpaid labor for nearby chicken processing factories.
“Because our laws are not well-calibrated to address actual problematic drug use, the criminal justice system has developed these alternative pathways to keep people out of jail," said Leo Beletsky, an associate professor of law and health sciences at the Northeastern University School of Law who specializes in drug policy. “It might sound progressive, but when you look at the implementation, ‘mandatory rehab’ oftentimes is just another arm of the carceral system."