Wednesday, November 18, 2020
By Tamar Ezer (Acting Director, Human Rights Clinic, University of Miami School of Law)
& Gita Howard (Student Fellow, Human Rights Clinic, University of Miami School of Law)
During the past few months in the wake of George Floyd’s painful murder at the hands of police, we’ve seen our country grapple with our overreliance on criminalization to address social issues.
Criminalization seeks to lock people away and make difficult issues invisible, but does not deal with root cause. This was also a theme picked up by country representatives in the U.S.’s recent Universal Periodic Review by the U.N. Human Rights Council. Malta, for instance, urged the U.S. to take a hard look at the role of policing as a response to social problems related to poverty.
One area in which criminalization has dominated with severe negative impacts is in our treatment of drug use. As the Human Rights Clinic at the University of Miami underscored in a recent submission to the U.N. Working Group on Arbitrary Detention, our current highly punitive approach particularly disadvantages racial minorities, people with low incomes, and women. These groups are more likely to be arrested for non-violent crimes in the first place, less likely to afford bail, and more likely to face harsher sentences. Several states also criminalize the pregnancies of women who use drugs, impeding access to necessary health services. Moreover, once incarcerated, pregnant women often do not receive adequate health care.
Recognizing our broken system of incarceration for drug use, the U.S. relies on drug courts to divert people to treatment. However, as the Human Rights Clinic and Drug Policy Alliance addressed in a second submission to the Working Group on Arbitrary Detention, drug courts, while well-meaning, suffer from fundamental flaws. They put treatment in the hands of the criminal justice system, which lacks medical expertise, resulting in the denial of evidence-based treatment and punishment for relapses that are a normal part of recovery. Moreover, drug courts function in a context where treatment that is not court-mandated is often inaccessible, monopolizing scarce resources.
It is time to change our approach and provide care and support, not criminalization.