In the wake of the passage of SQ 780, which reclassified simple drug possession as a misdemeanor, legislators and advocates began to discuss how the state should adjust its approach to substance abuse. Among the most pressing questions was what would happen to drug courts: District Attorneys warned that people with addictions wouldn’t opt into the drug courts’ intense 18 to 36 month treatment regimen if they faced a maximum penalty of only a year in jail. Without the “hammer” of a longer prison sentence, the DAs have contended that they cannot force a defendant into seeking treatment, leaving them to return to their addictions and the escalating crime that addiction fuels.

Legislators have considered several proposals to address these issues in the 2018 session, and one of them looks likely to pass. HB 2881 would allow defendants to access drug court programs without the approval of the District Attorney’s office, potentially opening the program for more defendants seeking help. As Oklahoma continues to adjust to SQ 780, evidence from other states provides lessons that our lawmakers should consider: drug courts can work for misdemeanor defendants, and increasing funding for treatment before a person enters the justice system is the most effective way to combat substance abuse.

SQ 780 created a huge shift in Oklahoma’s justice system

SQ 780 has already flipped Oklahoma’s court system upside down, reversing a long shift towards more felonies and fewer misdemeanors. Simple drug possession and low-level property crimes like theft accounted for a high proportion of felony cases before SQ 780’s passage; in the six months following SQ 780’s implementation, the number of felonies filed dropped by 26 percent compared to the same period the year before.

Simple drug possession has long been the most common charge for people entering Oklahoma’s prisons, accounting for almost 1 in 5 prison admissions between 2005 and 2015. Because simple drug possession cases filed just before the reclassification are still being resolved with prison sentences,  the savings calculated from the changes as required by SQ 781 will likely be disappointing this year, but that should grow significantly when the savings are calculated in 2019.

Fewer felony filings means a much smaller group of defendants eligible for felony drug court, but policymakers can and should opt to open up those programs to the growing number of misdemeanor defendants.

Oklahoma’s excellent drug court model could be adjusted for misdemeanor offenses

Oklahoma’s drug court program began in 1995 and currently operates in 73 of the state’s 77 counties. After a person is arrested for a drug crime, the case against them is screened by a drug court team consisting of a judge, a District Attorney representative, a defense representative, a treatment court coordinator, a treatment service provider, and a community supervision provider. Participants who are selected and choose to enter the program are placed on supervision in the community and must submit to regular drug testing, undergo behavioral health and substance abuse treatment, and pay fees related to their case. The program consists of five phases of 2 1/2 to 6 months that grow progressively more difficult, starting with clean drug tests and therapy sessions and advancing to steady employment. It’s a long, intensive, hands-on approach to dealing with addiction.

Successful misdemeanor drug courts in other jurisdictions follow a model very similar to Oklahoma’s: a period of intense supervision and stabilization, followed by longer periods of drug testing, therapy, and check-ins. Instead of Oklahoma’s five phases over a collective minimum of 18 months, a misdemeanor drug court in Fort Bend County, Texas, for instance, comprises three phases over a minimum of 10 months.

Although drug court programs for misdemeanor defendants are allowed by Oklahoma law, they remain exclusively for felony defendants in practice. But the success of misdemeanor drug court programs like the one in Fort Bend County show that the threat of a lengthy prison sentence isn’t always necessary to encourage a person to seek drug treatment. Avoiding incarceration is a motivator, but the length of that incarceration – whether one or four years – appears not to matter as much. 

We must invest in substance abuse services, and accepting federal funding to expand health coverage is a clear first step

While drug courts can be a good option for people with addictions after they are arrested, the majority of people who have substance abuse problems won’t come into contact with the justice system. People with less advanced addictions can often manage to get by, but with a lower quality of life and a higher risk of endangering their own life or the lives of the people around them.

That’s why the best policy is to extend substance abuse treatment services to those who need it before they are put in a position to be arrested. Unfortunately, Oklahoma has a long way to go on that front: our funding for mental health and substance abuse services is only $53 per capita, ranking 46th among the states, and only 1 in 3 Oklahomans who need those medical services are getting them. While Oklahoma’s overall rate of illicit drug dependence is relatively low, our rate of deaths from drug overdoses is high. 

We could take a huge step in the right direction by accepting federal funds to expand health coverage in Oklahoma. States that have done so have been able to provide substance abuse services to much higher numbers of people at little cost to the state. Doing so measurably reduces crime by intervening earlier, before a person’s addiction spirals out of control, reducing the need for interventions within the criminal justice system.

Oklahoma has to find better ways to fight substance abuse than prison

Policymakers cannot simply hope that the system adjusts itself to the new reality created by SQ 780. Putting people with addictions in prison did little, if anything, to combat substance abuse, but we now have no choice but to develop a new approach.

The best approach going forward will emphasize robust funding for people before they come into contact with the justice system in order to ensure that those who seek treatment have easy access to it. For those involved in the justice system, Oklahoma’s strong drug court program can and should be adapted to meet the needs of misdemeanor offenders. Oklahoma voters demanded a new approach to substance abuse when they approved SQ 780 by comfortable margins. It’s up to legislators and other policymakers to use what we know to create a system that works.