Criminal justice interventions during the overdose crisis

Executive summary

As policymakers and criminal justice agencies review how they have addressed problems related to illegal drugs over the past decade, it is useful to examine relevant data and policy changes from this period. This paper first analyzes trends in multiple criminal justice indicators related to drugs, focusing primarily on the period from 2010 onward. It then highlights a handful of noteworthy policy changes that have been implemented, accelerated, or in some cases reversed during the ongoing overdose crisis. Finally, it presents some key findings from the analysis and offers some recommendations to policymakers and criminal justice practitioners.

Key findings

Trends in criminal justice indicators

• From 2010 to 2019, drug offenses accounted for 12%-16% of all reported arrests nationwide, making them the largest category of arrests during that period.
• Data from the Uniform Crime Reporting system show a decline in drug possession arrests from 2010 to 2019, primarily driven by a reduction in cannabis-related arrests. When excluding cannabis, drug possession arrests increased, largely due to the “Other − dangerous nonnarcotic drugs” category, which includes methamphetamine.
• More recent trends are harder to track due to changes in how the Federal Bureau of Investigation collects and reports arrest data. However, our analysis of data from 17 states with reliable National Incident-Based Reporting System coverage suggests that drug arrests—even excluding cannabis—generally declined from 2017 to 2022.
• While caution is advised when interpreting drug seizure data for insights into law enforcement or drug seller behavior, the data show a sharp increase in fentanyl seizures and a noticeable decrease in heroin seizures. Methamphetamine seizures surged for much of the period but appear to have reversed in recent years.
• As with most offense types, more individuals convicted of drug offenses are supervised in the community (e.g., via probation or parole) than incarcerated.
• The number of individuals on probation or parole for drug offenses dropped by approximately 22% and 15%, respectively, between 2011 and 2021. However, due to incomplete data on offense types, these figures are rough estimates.
• The federal and state prison populations for individuals serving sentences for drug offenses have also declined substantially over the past decade. Notably, the most significant drop in state prison populations was among Black individuals, whose numbers decreased by more than 50% between 2010 and 2019.
• There are limited data on drug prices over the past decade, though one study found that the purity-adjusted price of fentanyl powder in the lower-wholesale market dropped significantly from 2016 to 2021, despite the sharp increase in seizures.

Changes in drug policies and practices

• A growing number of jurisdictions have implemented police-led diversion or deflection programs aimed at facilitating treatment and reducing arrests and criminal justice consequences. However, the evidence base for these emerging programs remains thin.
• At the same time, there has also been an increase in the application of drug-induced homicide laws and Good Samaritan laws. While both Oregon and Washington have relaxed their drug possession laws in recent years—Oregon through a ballot initiative and Washington via a court decision—both states’ legislatures later passed laws recriminalizing possession.
• Carrying naloxone to respond to overdoses is now a common practice among U.S. police. Though less common, some law enforcement agencies have also made efforts to follow up with individuals who have overdosed.

Recommendations

• Improve data infrastructure: Although data collection on drug-specific arrests has improved significantly, major gaps remain in many criminal justice indicators related to drugs, particularly regarding jail admissions, the role of drugs in probation and parole revocations, and drug prices (especially purity-adjusted prices). Data infrastructure and access should be improved to enable comprehensive analysis and informed policymaking.
• Refrain from using drug-induced homicide laws: Jurisdictions should avoid enacting or applying drug-induced homicide laws, as there is no empirical evidence supporting their effectiveness and they run counter to what we know about how deterrence works. These laws may also deter individuals from calling authorities during an overdose.
• Pilot and evaluate police-led diversion and deflection programs: Police-led diversion and deflection programs should be piloted and rigorously evaluated. We must also recognize that the success of these programs will likely vary depending on the outcomes measured (e.g., overdose deaths versus rearrests) and the availability and quality of services in the community.
• Consider context and evidence when evaluating alternatives to criminal penalties for drug possession: The liberalization of drug possession laws in Oregon and Washington coincided with a surge in fentanyl use. In Oregon, the substance use disorder treatment infrastructure was already weak and there were serious implementation issues related to the rollout of Measure 110. While drug possession arrests have clearly declined, many other outcomes remain uncertain and lack consensus. Jurisdictions exploring alternatives to criminalizing possession should consider the experiences of Oregon and Washington, the emerging research on these policies, and evidence from other countries on decriminalization.
• Reconsider how criminal justice resources are allocated: In areas heavily affected by fentanyl, law enforcement agencies currently focused on supply-reduction efforts—in the hope that such efforts will increase fentanyl prices and thus curb consumption in the long run—may want to consider reallocating some of these resources to other strategies. Depending on the jurisdiction, these can include addressing open-air drug markets that create disorder and trauma in neighborhoods, partnering with service organizations to pilot diversion and deflection programs, training and equipping officers to respond to overdoses, and combating the violence, corruption, and money laundering tied to illegal drug markets.

While the evidence base for some alternative approaches to traditional drug law enforcement remains limited, this sometimes reflects their novelty rather than their potential. Meanwhile, current efforts are not often grounded in evidence-based best practices. Given the severity of the overdose crisis and the widespread and increasingly entrenched presence of fentanyl in much of the country, policymakers and criminal justice practitioners must think outside the box. Experimenting with promising new approaches, even when evidence is scarce or unavailable, is urgently needed to improve upon the status quo. As these models are implemented, it is crucial to rigorously evaluate them to determine what works and establish best practices for law enforcement’s response to fentanyl and the overdose crisis.