By: Katy Naples-Mitchell
People who use opioids are more likely to be incarcerated or otherwise involved with the criminal legal system than people who don’t. So, it’s no surprise that almost 50% of people in state and federal prisons meet the criteria for a substance use disorder, according to 2019 data from the National Survey of Drug Use and Health.
Experts agree that punishment does not solve the problem of drug use. In fact, the criminalization of drug use often exacerbates drug-related harms and disproportionately burdens vulnerable populations.
District attorneys can play a crucial role in supporting reform to the criminal legal system’s approach to drug criminalization. In recent years, prosecutors across the country have begun adopting reformist policies, such as diverting people into treatment rather than jail and declining to prosecute drug-related charges so people can seek healthcare and treatment on their own terms.
This fall, we must elect district attorneys in Massachusetts who will commit to using their power responsibly, fairly, and justly, prioritizing treatment over incarceration.
Incarceration for drug-related offenses perpetuates addiction and recidivism.
When a person is arrested, district attorneys and their staff work with law enforcement and make decisions at initial court appearances about whether the charges the police filed should stick and what charges that person will ultimately face.
Prosecutors can choose to recommend a person for treatment or dismiss the case altogether. They can even dismiss the case “prior to arraignment,” so the person does not have a criminal record despite being called to appear in court. Research from real prosecution data in Massachusetts has shown that dismissing low-level misdemeanor offenses early, especially for people who have not been criminally charged before, improves community safety and reduces future arrests.
But often, district attorneys contribute to the criminalization of addiction by imposing harsh charges with mandatory minimum sentencing laws. And rather than trying to address the underlying health condition, prosecutors may charge people for selling drugs even when they are just trying to support their own use. The result: Too many people suffering from addiction spend time incarcerated rather than getting treatment, stable housing, or other sources of support proven to help people heal.
Addiction is a public health issue that requires clinical treatment, not punishment.
Substance use treatment programs work to reduce addiction and recidivism. Experts explain that successful treatment programs include detox services as well as job training, anger management, parenting classes, and other opportunities to build life skills.
In recent years, Massachusetts has made significant strides in offering at least some forms of evidence-based treatment for opioid use disorder throughout county jails and state prisons.
A 2024 report by the Massachusetts Department of Public Health concluded that people treated with medications for opioid use disorders while incarcerated were more likely to receive treatment after being released and were less likely to be re-incarcerated or experience an opioid-related overdose than those who were not treated.
However, the quality of clinical treatment in correctional facilities can vary widely based on the medical provider and the underlying substance use condition.
Deprived of quality treatment, many people continue to struggle with addiction upon release. Studies show that 68% of those convicted of drug-related offenses are rearrested within 3 years of release. Research from the Massachusetts Department of Health released in 2017 found that the opioid death rate is 120 times higher for people with histories of incarceration than those without.
The criminalization of addiction disproportionately harms Black and Latino communities.
Beginning in the 1970s, the war on drugs introduced a more punitive approach to drug-related offenses as lawmakers looked for ways to address rising crime. These harsher sentences and mandatory minimum sentencing laws became contributors to the disproportionate incarceration of Black and Latino communities.
While white people use and sell drugs at relatively similar rates as Black and Latino people, there is a stark racial disparity among those serving sentences for drug offenses. According to a 2023 survey of sentencing practices by the Massachusetts Sentencing Commission, 51% of people serving sentences for drug offenses are Black or Latino, though those groups make up less than 20% of the state’s population, according to census data.
Prosecutors play a key role in perpetuating these disparities. Research has shown that police and prosecutors are likely to charge Black and Latino people with more severe drug offenses for the same underlying conduct as white people. In Massachusetts, Black and Latino people charged with drug offenses are more likely to be incarcerated and receive longer incarceration sentences than white people charged with similar offenses.
To address this injustice, prosecutors can review and adjust their charging and sentencing patterns, and ensure that all people, regardless of their race, get access to evidence-based interventions to help them heal or change problematic behaviors.
Here’s why your vote matters.
Overall, our criminal legal system’s approach to drug criminalization requires reform to prioritize redress and harm prevention. This requires creative thinking about both safety and accountability when it comes to people whose behavior is driven by addiction.
Too often, criminal punishment relies on incarceration, which separates people from medical providers and sources of support in the community. And although prisons and jails are closed environments, drug use behind bars is prevalent and uniquely lethal. Forced withdrawal from addictive substances can also have deadly consequences.
Our district attorneys in Massachusetts wield tremendous power to drive change in individual cases by declining to bring charges for simple drug possession, or for many low-level offenses where the conduct was motivated by addictive behavior, and by emphasizing access to treatment over incarceration and restorative justice rather than punishment.
On a broader scale, prosecutors who support reforms — like repealing mandatory minimum sentences for drug offenses, supporting harm reduction and overdose prevention, decriminalizing drug offenses or legalizing and regulating substances, and increasing opportunities for diversion treatment programs — can be a powerful force for making long-overdue changes that would reduce mass incarceration and systemic racism.
This fall, we must elect district attorneys committed to prioritizing treatment rather than incarceration to create a more just criminal legal system for all people.
The ACLU of Massachusetts — together with our network of partners — is dedicated to spreading the word about What a Difference a DA Makes. Join our Action Team to help out!
