LETTER Cannabis, Coerced Care, and a Rights-Based Approach to Community Support

Johannes Wheeldon and Jon Heidt

Introduction

Recently, a special section in this journal reviewed the widespread misuse of compulsory drug detention and rehabilitation centers.[1] Although the issue was a welcome addition to the literature, most contributors focused on formal responses to injected drugs. A detailed discussion of the rise of coerced treatment as part of cannabis decriminalization was notable by its absence.[2] Cannabis remains the most used psychoactive substance under international control. In 2020, the United Nations Office on Drugs and Crime reported that cannabis enforcement is undertaken in almost all countries worldwide.[3] Any focus on the harms of compulsory treatment must consider the worrying trend by which cannabis decriminalization is being married with police-led diversion to mandated treatment programs.

Mandated cannabis treatment programs are consistent with the definition of “compulsory” that informs the special section.[4] We argue that blending public safety and public health in this way represents a Faustian bargain.[5] This has been explored in terms of law, society, and medicine.[6] Masquerading as progressive drug reform, coercive treatment undermines autonomy, agency, and respect, which are the values that form the basis of therapeutic relationships.[7] Efforts to confront compulsory treatment must not ignore mandated programming as part of cannabis diversion programs. We agree with calls in the special section that more voluntary programs be piloted.[8] Likewise, this expansion must be combined with meaningful and informed program evaluation.[9] Such an approach could allow for the extension of voluntary community-based programming.[10] However, unless programs are rooted in theories that support communities to reduce harm, they may not withstand the tendency to replace a focus on care with approaches emphasizing control, punishment, and abstinence.[11]

Cannabis, public health, and coercive care

Cannabis’s status as the most widely used and extensively sanctioned illegal drug globally is based on policies driven by ethnic animus.[12] Historically, these approaches served colonial and neocolonial goals.[13] Internationally, the War on Drugs, focused mainly on cannabis, has undermined human rights wherever it has been waged.[14] As cannabis reforms take root around the world, adaptations by governments where cannabis is not yet legal often de-emphasize public safety by investing in public health.[15] For example, public health was identified as a focus of the first decriminalized cannabis policy in the Netherlands.[16] Today, more than 30 countries implement models of drug decriminalization based on public health interventions and drug treatment.[17]

These approaches often expand rather than constrict compulsory treatment.[18] In practice, treatment is organized through police-led diversion programs nominally designed to “direct people away from criminal sanctions and towards educative, therapeutic, or social services.”[19] Too often, coercive cannabis treatment backed by the threat of criminal prosecution imposes public safety policies using public health mantras.[20] Coercive cannabis programs cannot be divorced from other forms of compulsory treatment. For example, Claudia Stoicescu and colleagues note that treatment is considered compulsory if individuals are denied the unconditional right to refuse treatment, due process protections, or evidence-based drug treatment.[21]

Although those arrested for possession of cannabis can refuse treatment, this choice comes with conditions. While described as “voluntary,” many programs threaten criminal prosecution if participants fail to comply with guidelines. Further, such programs do not result in improved outcomes.[22] In fact, they can result in harm.[23] This is of particular concern given racial disparities in cannabis arrests.[24] The inequalities that result have recently been framed as the consequence of “predatory” arrangements that dominate the criminal justice system in the United States.[25] For example, in 2016, it was reported that US$1.6 million was collected through diversion fees in the state of Arizona, and most of those referred were arrested for cannabis possession.[26] A year later, in the same state, an individual stopped by police with a small amount of cannabis was offered two options: up to two years in prison and a maximum fine of US$150,000, or seek treatment through the Marijuana Diversion Program, at a cost of US$950.[27]

Attending a program is certainly better than prison. However, a review of cannabis diversion programs suggests numerous coercive features. Most are based on the 12-step model of Alcoholics Anonymous, a culturally prominent but psychologically problematic means to address problematic drug use.[28] This approach requires people with addiction to accept that they have a disease and engage in recovery based on surrendering to a “higher power.”[29] Not all programs are religious. However, a cannabis diversion program in Pennsylvania requires that those referred not just attend but “successfully” complete the program.[30] Although a program in the state of Texas explicitly notes the problems of stigma for “employment, education, and housing opportunities,” completing a “four-hour education class” is required to avoid arrest and prosecution.[31]

Examples exist around the world. In the United Kingdom, the Johnson government has announced a new policy to ensure that those arrested for drug possession face jail sentences if they refuse treatment.[32] Even in Portugal, where all drugs are decriminalized, people who use drugs report that policy reforms have led to increased surveillance and invasions of their privacy. This includes drug testing, routinely implemented without informed consent by untrained law enforcement personnel to “pressure, impose, or coerce people who use drugs into decisions or actions,” including treatment.[33] Research in Scotland suggests that problems emerge when diversion embeds health-focused support “within criminal sanctions, rather than acting as alternatives.[34] The problematic criminalized consequences of noncompliance within cannabis diversion programs are expressly noted in Australia.[35] Even well-intentioned programs may unconsciously adopt abstinence frames by relying on risk-based messaging.[36]

Illusions of reform and a community model of support

The problems with compulsory drug detention and rehabilitation centers have recently been itemized.[37] Despite the potential for community-based treatment and care, coercive programming endures.[38] This is true for cannabis, despite its relative safety.[39] As has been noted, 90% of people who use drugs do not develop problematic or dependent drug use, and this number is even smaller for people who use cannabis.[40] Nonetheless, coercive public health models, including cannabis diversion programs, are growing, and ideological obstacles remain impediments to reform.[41] Furthermore, cannabis’s changing legal status has resulted in the state’s regulatory expansion.[42] As noted by Stan Cohen, new regulatory arrangements often reproduce within the community the same coercive features of the older carceral system.[43]

The United Nations’ recommendation that states adopt policies that provide for “decriminalizing drug possession for personal use” is important.[44] However, in the United States, there is a reasonable fear that public health may be expanded in ways that constrain human rights.[45] Replacing the idea that people who use drugs are moral failures requires rethinking the theories by which we organize community-based responses.

Restorative justice, harm reduction, and voluntary community-based treatment

Important lessons can be gleaned from Kathy Fox’s work on how community justice centers (CJCs) in the US state of Vermont support those in conflict with the law. Some of these lessons are theoretical.[46] Others are practical.[47] Community-based alternatives that are credible, consistent, and effective engage trained volunteers, are rooted in relationship building, and are based on mutual respect.[48] The value of CJCs includes mitigating exclusion and isolation, embracing destigmatization, and creating relationships based on shared obligation.[49] CJCs are a novel application of restorative justice principles.

Restorative justice is often linked to re-integrative shaming.[50] As Liz Elliott argues, this nomenclature is unfortunate. Instead, she posits that restorative justice should provide a means for communities to respond to harm.[51] This includes the harm done to people who use drugs under prohibition.[52] Replacing coerced treatment models with a “non-judgmental” approach focused on care, treatment, and harm reduction requires a paradigm shift and the explicit inclusion of communities.[53]

Programs based on support and connections to existing resources serve as an authentic alternative to the expansion of the punitive character of the criminal justice system. Such an approach affirms rather than demeans and offers access to voluntary treatment based on consent and respect. While most cannabis users do not and never will need such support, harnessing the vital role of the community when substance use becomes problematic can be protective against the traditional system. For example, problematic use can trigger meetings where community members signal their concerns, offer their support, and inform people of existing services.

Conclusion

The unethical blending of public safety goals through public health policies is pernicious.[54] It can escalate moral injury by increasing the influence of private treatment professionals and mercurial addiction counselors.[55] Critics reasonably worry about the role of cannabis diversion schemes in providing a constant supply of clients.[56] These worries may increase given the tendency for justice systems to “financially exploit subjugated communities.”[57] Using the language of care and treatment to emphasize control and abstinence undermines trust and may limit those who might otherwise seek treatment in the future.[58] As is increasingly apparent, such concerns have international dimensions.[59]

Interest in models of voluntary community-based treatment for people who use drugs is growing.[60] As we have observed, cannabis policy serves as a case study in moral-legal-cultural renegotiation.[61] It provides a window into the opportunities and challenges of a rights-based approach to community care for people who use drugs. Staffed by trained and caring volunteers, voluntary programs can recast treatment as social support. The international liberalization of cannabis should be seen as an opportunity to understand how states adapt to the legalization of once illicit substances. Learning from cannabis may offer a means to understand how tolerance, harm reduction, and community support can be expanded.

Johannes Wheeldon is an adjunct professor at Norwich University, Northfield, United States.

Jon Heidt is an associate professor of criminology at the University of the Fraser Valley, Abbotsford, Canada.

References

[1] C. Stoicescu, K. Peters, and Q. Lataire, “A Slow Paradigm Shift: Prioritizing Transparency, Community Empowerment, and Sustained Advocacy to End Compulsory Drug Treatment,” Health and Human Rights Journal 24/1 (2022).

[2] See K. Tinasti, “Toward the Emergence of Compulsory Treatment for Drug Use in Morocco?,” Health and Human Rights Journal 24/1 (2002), p. 172.

[3] See United Nations Office on Drugs and Crime, World Drug Report 2021 (Vienna: United Nations Office on Drugs and Crime, 2021).

[4] See Stoicescu et al. (see note 1), p. 134.

[5] M. Ashton, “The New Abstentionists,” Drug Scope 1/1 (2008).

[6] C. Spivakovsky, K. Seear, and A. Carter (eds), Critical Perspectives on Coercive Interventions: Law, Medicine, and Society (Abingdon: Routledge, 2018); M. Szalavitz, Undoing Drugs: The Untold Story of Harm Reduction and the Future of Addiction (New York: Hachette, 2021).

[7] T. Price, T. Parkes, and M. Malloch, “‘Discursive Struggles’ between Criminal Justice Sanctions and Health Interventions for People Who Use Drugs: A Qualitative Exploration of Diversion Policy and Practice in Scotland,” Drugs: Education, Prevention and Policy 28/2 (2021).

[8] R. Ali and M. Stevens, “Moving toward Voluntary Community-Based Treatment for Drug Use and Dependence,” Health and Human Rights Journal 24/1 (2022).

[9] P. Tanguay, A. Chabungbam, and G. Vumbaca, “Transitions from Compulsory Detention to Community-Based Treatment: No Transparency without Data, No Accountability without Independent Evaluations,” Health and Human Rights Journal 24/1 (2022).

[10] M. Cole, “Capacity-Building in Community-Based Drug Treatment Services,” Health and Human Rights Journal 24/1 (2022).

[11] Ashton (see note 5).

[12] S. Tosh, “Drugs, Crime, and Aggravated Felony Deportations: Moral Panic Theory and the Legal Construction of the ‘Criminal Alien,’” Critical Criminology 27/3 (2019).

[13] C. Daniels, A. Aluso, N. Burke-Shyne, et al., “Decolonizing Drug Policy,” Harm Reduction Journal 18/120 (2021).

[14] J. Braithwaite, “Glimmers of Cosmopolitan Criminology,” International Criminology 1 (2021).

[15] J. Wesley and K. Murray, “To Market or Demarket? Public-Sector Branding of Cannabis in Canada,” Administration and Society 53/7 (2021).

[16] S. Sifaneck and C. Kaplan, “Keeping Off, Stepping On and Stepping Off: The Steppingstone Theory Reevaluated in the Context of the Dutch Cannabis Experience,” Contemporary Drug Problems 22/3 (1995).

[17] N. Eastwood, E. Fox, and A. Rosmarin, A Quiet Revolution: Drug Decriminalisation Policies in Practice across the Globe (London: Release, 2016).

[18] J. Wheeldon and J. Heidt, “Cannabis Criminology: Inequality, Coercion, and Illusions of Reform,” Drugs: Education, Prevention and Policy (2022).

[19] See A. Stevens, C. Hughes, S. Hulme, and R. Cassidy, “Classifying Alternative Approaches for Simple Drug Possession: A Two-Level Taxonomy,” Northern Kentucky Law Review 48/2 (2021), pp. 346–347.

[20] Wheeldon and Heidt (see note 18).

[21]  See Stoicescu et al. (see note 1), p. 134.

[22] D. Werb, A. Kamarulzaman, M. Meacham, et al., “The Effectiveness of Compulsory Drug Treatment: A Systematic Review,” International Journal on Drug Policy 28 (2016).

[24] A. Sanchez, M. Orr, A. Wang, et al., “Racial and Gender Inequities in the Implementation of a Cannabis Criminal Justice Diversion Program in a Large and Diverse Metropolitan County of the USA,” Drug Alcohol Dependence (2020).

[25] J. Page and J. Soss, “The Predatory Dimensions of Criminal Justice,” Science 374/6565 (2021).

[26] See Fines and Fees Justice Center, “Litigation: Briggs v. Montgomery” (June 18, 2019), https://finesandfeesjusticecenter.org/articles/briggs-v-montgomery/.

[27] See S. Dewan, “Caught with Pot? Get-Out-of-Jail Program Comes with $950 Catch,” New York Times (August 24, 2018), https://www.nytimes.com/2018/08/24/us/marijuana-diversion-program-maricopa-arizona.html.

[28] See M. Szalavitz, “Codependency Is a Toxic Myth in Addiction Recovery,” New York Times (July 8, 2022), https://www.nytimes.com/2022/07/08/opinion/codependency-addiction-recovery.html.

[29] For an overview of programs, see Substance Abuse and Mental Health Services Administration, National Survey of Substance Abuse Treatment Services (N-SSATS): 2020 (Rockville: Substance Abuse and Mental Health Services Administration, 2021).

[30] See County of Berks, Pennsylvania, “Marijuana Diversion Program,” https://www.co.berks.pa.us/Dept/DA/Pages/Marijuana-Diversion-Program.aspx.

[31] See Office of District Attorney, Harris County, Texas, “Misdemeanor Marijuana Diversion Program,” https://www.harriscountyda.com/MMDP; Office of District Attorney, Harris County, Texas, “Misdemeanor Marijuana Diversion Program” (March 1, 2017), https://app.dao.hctx.net/sites/default/files/2017-03/MMDPOverview.pdf.

[32] For recent coverage, see J. Grierson, “Middle-Class Drug Users Could Lose UK Passports Under Boris Johnson’s Plans,” Guardian (December 5, 2021), https://www.theguardian.com/society/2021/dec/06/middle-class-drug-users-could-lose-uk-passports-under-boris-johnsons-plans.

[33] See International Network of People Who Use Drugs, Drug Decriminalisation: Progress or Political Red Herring? Assessing the Impact of Current Models of Decriminalisation on People Who Use Drugs (2021), p. 34.

[34] See T. Price, T. Parkes, and M. Malloch, “‘Discursive Struggles’ between Criminal Justice Sanctions and Health Interventions for People Who Use Drugs: A Qualitative Exploration of Diversion Policy and Practice in Scotland,” Drugs: Education, Prevention and Policy 28/2 (2021), p. 118.

[35] See Alcohol and Drug Foundation, “Decriminalisation in Detail,” https://adf.org.au/talking-about-drugs/law/decriminalisation/decriminalisation-detail/.

[36] See T. M. Watson, J. Valleriani, E. Hyshka, and S. Rueda, “Cannabis Legalization in the Provinces and Territories: Missing Opportunities to Effectively Educate Youth?,” Canadian Journal of Public Health 110/4 (2019), p. 474.

[37] Ali and Stevens (see note 8).

[38] T. Vuong, M.  Shanahan, N. Nguyen, et al., “Cost-Effectiveness of Center-Based Compulsory Rehabilitation Compared to Community-Based Voluntary Methadone Maintenance Treatment in Hai Phong City, Vietnam,” Drug and Alcohol Dependence 168 (2016).

[39] D. D’Souza, M. DiForti, S. Ganesh, et al., “Consensus Paper of the WFSBP Task Force on Cannabis, Cannabinoids, and Psychosis,” World Journal of Biological Psychiatry (2022).

[40] See Cole (see note 10).

[41] Wheeldon and Heidt (see note 18); see Ali and Stevens (see note 8), pp. 185–186.

[42] E. Aaronson and G. Rothschild-Elyassi, “The Symbiotic Tensions of the Regulatory-Carceral State: The Case of Cannabis Legalization,” Regulation and Governance 15 (2021).

[43] S. Cohen, Visions on Social Control (London: Polity Press, 1985).

[44] See Chief Executives Board for Coordination, Summary of Deliberations, UN Doc. CEB/2018/2 (2019).

[45] J. Page and J. Soss, “The Predatory Dimensions of Criminal Justice,” Science 374/6565 (2021).

[46] K. Fox, “Theorizing Community Integration as Desistance-Promotion,” Criminal Justice and Behavior 42/1 (2015).

[47] K. Fox, “Restoring the Social: Offender Reintegration in a Risky World,” International Journal of Comparative and Applied Criminology 38/3 (2013).

[48] K. Fox, “Redeeming Communities: Restorative Offender Reentry in a Risk Society,” Victims and Offenders 7/1 (2012).

[49] See Fox (2015, see note 46), p. 82.

[50] J. Braithwaite, Crime, Shame and Reintegration (New York: Cambridge University Press, 1989).

[51] E. Elliott, Security, with Care: Restorative Justice and Healthy Societies (Halifax: Fernwood Publishing, 2011).

[53] See Ali and Stevens (see note 8); E. Elliott, “Con Game and Restorative Justice: Inventing the Truth about Canada’s Prisons,” Canadian Journal of Criminology 44/4 (2002).

[54] M. Newhart and W. Dolphin, The Medicalization of Marijuana: Legitimacy, Stigma, and the Patient Experience (New York: Routledge, 2019).

[55] Aaronson and Rothschild-Elyassi (see note 42).

[56] C. Isaacs, Treatment Industrial Complex: How For-Profit Prison Corporations are Undermining Efforts to Treat and Rehabilitate Prisoners for Corporate Gain (Philadelphia: American Friends Service Committee, 2014).

[57] Page and Soss (see note 45), p. 291.

[58] J. Kaplan, Marijuana: The New Prohibition (Cleveland: World Publishing Company, 1970).

[59] T. Kerr, K. Hayashi, L. Ti, et al., “The Impact of Compulsory Drug Detention Exposure on the Avoidance of Healthcare among Injection Drug Users in Thailand,” International Journal of Drug Policy 25/1 (2014).

[60] See United Nations Office on Drugs and Crime, Transition from Compulsory Drug Detention Centers for Drug Users to Voluntary Community-Based Treatments and Services (Bangkok: United Nations Office on Drugs and Crime, 2015).

[61] Wheeldon and Heidt (see note 18).