“What I should be doing is harm reduction, if I'm doing my job right”: Engagement with harm reduction principles among prosecutors enacting drug policy reform in the United States

Abstract

Background

Prosecutorial discretion to pursue or decline criminal charges is a powerful mechanism determining criminal justice outcomes among people who use drugs (PWUD). In the US, prosecutors are increasingly employing this tool to prevent arrest, incarceration, and subsequent health and social harms among PWUD. Many cite harm reduction as a basis for these reforms; however, the extent of prosecutors' knowledge and understanding of harm reduction principles, and how they are operationalized in the policy process, remains unclear.

Methods

We assess references to and application of harm reduction in the policy design and implementation process of prosecutorial drug policy reform in 14 US jurisdictions. In-depth-interviews (N = 16) were conducted with elected prosecutors and their policy staff from November 2021-April 2022. Through initial structured analysis, policymakers’ understanding and utilization of the term ‘harm reduction’ emerged as a salient theme which we conducted secondary thematic analysis to further explore.

Results

While all participants identified as progressive, there was wide variation in their ideologies, policy provisions, and engagement with harm reduction principles. Eleven participants explicitly referred to ‘reducing harms of drug use’ or ‘harm reduction’ as guiding their policy approach; the remainder did not invoke ‘harm reduction’ by name but highlighted relevant concepts like racial equity and ‘public health approaches’ as core policy tenets. While some prosecutors demonstrated familiarity with traditional harm reduction principles (meeting PWUD where they are, reducing harms to them), others focused on harm to the wider community (the ‘public,’ businesses, etc). Invocation of harm reduction was not always consistent with specific policy provisions: prosecutors implemented policies ranging from unconditional non-prosecution of drug possession to diversion, some of which were odds with core harm reduction principles of dignity and justice (i.e., involving coercive treatment incentives/requirements).

Conclusions

As prosecutors shift their approach to redress the harms caused by drug criminalization, clarity is needed on what a harm reduction approach to using discretionary powers entails. Targeting reform-minded prosecutors with messaging on the principles, evidence base, and best practices of harm reduction is merited.