Indiana Law Journal

Document Type


Publication Date

Spring 2019

Publication Citation

94 Indiana Law Journal 389 (2019)


This Article identifies and explores a new, local law enforcement approach to alleged drug offenders. Initially limited to a few police departments, but now expanding rapidly across the country, this innovation takes one of two primary forms. The first is a diversion program through which officers refer alleged offenders to community-based social services rather than initiate criminal proceedings. The second form offers legal amnesty as well as priority access to drug detoxification programs to users who voluntarily relinquish illicit drugs. Because the upsurge in addiction to —and death from—opioids has spurred this innovation, I refer to it as “opioid policing.”

This new approach improves in key ways upon previous state responses to illicit drug use. Opioid policing has explicit public-health aims—seeking improved life outcomes for people addicted to drugs without relying on arrest. By contrast, the War on Drugs incentivized arrests, which create myriad negative consequences for drug-law offenders—with few discernible offsetting social gains. Opioid policing also avoids the most problematic aspects of specialized drug courts. Scholars and reformers have documented how these courts provide substandard treatment and employ procedures that frequently lead to more, rather than less, entanglement with the criminal system. Unlike the drug court, opioid policing operates at the pre-booking phase, rather than after legal proceedings have already begun, allowing drug users to avoid the harms of criminal processing entirely.

Notwithstanding its salutary features, opioid policing retains key troubling characteristics of both War on Drugs policing and drug courts. The structure of opioid policing programs creates incentives for law enforcement to expand, rather than reduce, surveillance of marginalized populations. What is more, opioid policing may re-entrench rather than disrupt the distributive inequities of race and class that permeate previous state responses to illicit drug use. Ultimately, the assessment this Article undertakes reveals both the limitations of drug-reform efforts situated within law enforcement as well as the reach and the power of the contemporary carceral state.