When people think about the War on Drugs, they often picture long prison sentences: mandatory minimums, three-strikes laws, federal prosecutions, and decades behind bars. But one of its most devastating impacts happens much earlier—before trial, before conviction, and often before a person has had any meaningful chance to defend themselves.
The War on Drugs did not simply change who went to prison. It changed who was arrested, how often they were arrested, how courts decided who could go home, and how much pressure legally innocent people faced to plead guilty. In doing so, it reshaped the front end of the criminal justice system and laid the groundwork for a dramatic expansion of pretrial detention.
Fifty-five years ago this summer, in June 1971, President Richard Nixon told the country that drug abuse was “public enemy number one” and called for a “new, all-out offensive.” That same day, he sent Congress a special message requesting new funding and authority to expand the federal response to drug abuse. What followed was not just a change in drug policy. It was a change in the basic posture of the criminal legal system.
Before the punitive turn of the 1970s and 1980s, bail was largely understood as a tool to make sure someone returned to court. The core question was simple: Will this person come back for their hearing? At the same time that drug enforcement escalated, courts and lawmakers began asking a different question: Is this person dangerous?
That shift reshaped the entire pretrial system. Detention transformed from a narrow administrative tool into a broader mechanism of preventive punishment.
The 1984 Bail Reform Act made this change explicit at the federal level. It allowed judges to consider not only whether someone was likely to return to court, but whether their release might pose a danger to the community. It also created a rebuttable presumption of detention for certain serious drug charges. In practical terms, that meant some people accused of drug offenses entered court already facing the assumption that no release conditions would be enough to keep the public safe. They had not been convicted, but the charge itself could mark them as “too risky” for freedom.
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That federal logic reflected a broader political shift that spread through state and local systems, where drug offenses were increasingly treated not just as unlawful behavior, but as threats to public order. This matters because most pretrial detention does not happen in federal prisons. It happens in local jails.
As police departments targeted Black, Latino, and low-income neighborhoods with aggressive drug enforcement, local courts had to process an overwhelming number of cases. Cash bail became one of the main tools they used to do it.
For people with money, cash bail can be an inconvenience. For people living paycheck to paycheck, it can function like a sentence before conviction. A judge might set bail at $5,000 and say a person is eligible for release. But if that person does not have the money, the result is the same as being denied release altogether.
The system says people are presumed innocent while holding them in cages because they are poor.
This novel use of bail would reshape jails. Soon, they became warehouses for people who had not been convicted of anything, and in most places that is how they remain. Many people in jails are being held on low-level drug charges, probation or parole holds, or the accumulated burdens of living in a heavily policed community. Many are eligible for bail but cannot afford the amount at which it has been set. Organizations like the one I work for, The Bail Project, encounter people caught in this cycle every day—individuals detained not because they have been convicted, but because they cannot afford to buy their freedom.
According to data compiled by the Prison Policy Initiative in its 2026 “Whole Pie” report, roughly 1 in 5 incarcerated people is locked up for a drug offense—about 362,000 people on any given day. Local jails hold 136,000 of them, nearly as many as state prisons. Most of those people—about 108,000—have not been convicted of the charge for which they are being held, compared with just 28,000 who have. In other words, the drug war did not simply expand prisons. It helped fill local jails with people who had not yet been convicted of anything.
For people with substance use disorders, that punishment can also become a health crisis. Daliah Heller, a public health practitioner and former New York City assistant commissioner for alcohol and drugs, argues that the criminal justice system often misunderstands drug use from the start. “A lot of the time,” she said, intoxicants used for “pleasure,” “emotional pain,” or “to just detach” are “responding to a psychological need.” But the systems built to address those needs are divided. “The systems have developed separately and stay separate,” Heller said. Mental health services often tell people to address their drug use first, while drug treatment programs may treat mental health needs as beyond their scope.
That separation follows people into jail. A person may enter detention with trauma, untreated mental illness, physical dependence on drugs, unstable housing, or all of the above. Jail does not resolve those conditions. It often intensifies them.
Latandra’s experience in Pensacola shows how quickly that can happen. She was arrested after the overdose death of a close friend and accused of unauthorized use of a financial instrument. Her bail was set at $2,500, an amount she could not afford. Inside the Pensacola jail, she said she was cut off from Suboxone, which she used for opioid use disorder, and Zoloft, which she used for her mental health. “I was sick for weeks,” she said. “I could barely keep food down. I was shaking. Sweating. Dizzy.” Jail staff offered little more than ibuprofen and anti-nausea medication. “I had to fake passing out,” she said. “That’s what it took for them to look at me.”
Amber, a mother in Atlanta, described the same pattern. She was supposed to be going to rehab the day she was arrested. Instead, she spent six months in Fulton County Jail because her family could not afford to bond her out. She went through withdrawal without medical care. Asked whether she received help, she said, “Oh no. No. No. No.” She remembered nausea, vomiting, sleeplessness, and hot and cold sweats. “It was horrible.”
These stories are not exceptions; they reveal how the system operates. People enter jail with medical needs, addiction histories, trauma, and plans for treatment. Then jail interrupts the very things that might help them to stabilize.
Heller put it plainly: “Jail and incarceration . . . are dungeons.” For people dependent on opioids, incarceration often begins with withdrawal. Without medication, withdrawal can be painful, destabilizing, and dangerous. Heller said jail officials often resist offering medications such as buprenorphine and methadone because of fears they will be abused. But that fear misses the point. “You are incarcerating people who go in there and they’re in withdrawal,” she said. “There is an economy for opioids in your jail.”
In other words, withholding treatment does not eliminate drug use. It creates desperation.
Pretrial detention also changes the outcome of cases. As scholars Will Dobbie, Jacob Goldin, and Crystal Yang have shown through extensive analysis of data, people held in pretrial detention are more likely to be convicted, as well as more likely to struggle to get and keep employment. A person sitting in jail can lose a job within days. Moreover, they can fall behind on rent, lose custody of their children, be unable to take their medication, and watch their family collapse. That makes detention an incredibly powerful weapon for prosecutors. When someone is offered the choice between fighting a drug charge from jail for months or taking a plea deal to go home today, a guilty plea can feel less like an admission of guilt than an emergency exit.
Through our work at The Bail Project, we often see firsthand how cash bail traps people in cycles of desperation. Two people from Arizona come to mind as examples.
Jimmy had been stuck in an Arizona county jail for six months and was scheduled to sign a plea that he believed could send him back to prison for more than a decade. He had grown up around addiction, instability, violence, and untreated trauma. He was homeless when he was arrested and had no money to buy his freedom. “I figured, you know, this is it for me,” he said. We were able to help him make bail and he entered a treatment facility. He worked on recovering and eventually was able to resolve his case without returning to prison. “The biggest relationship that has been restored has been with myself,” he said.
Max was in a similar situation when we were able to help him make bail. After two prior prison terms and a relapse, he was arrested again and believed he was “absolutely screwed.” “Immediately after I got bonded out, I got sober,” he said. He went to rehab, moved into sober living, attended AA meetings, and began rebuilding his life. For Max, pretrial freedom changed not only his recovery but how he could appear in court. “When they see someone coming to court dressed in nice, real clothes instead of orange,” he said, “I think the judge looks at you different because you’re showing up on your own accord.”
The War on Drugs fueled mass incarceration by supplying the people. Cash bail supplied the trap. Pretrial detention supplied the leverage. Together, this system made local jails a central engine of mass incarceration—and a frontline behavioral health crisis.
If we can remove the wealth trap of cash bail, however, the coercive power of detention is weakened. When people are released, they no longer have to choose between their lives and a guilty plea. They can return to their families, keep their jobs, access treatment, and fight their cases from a position of freedom.
Even if people can make bail, tying up their money so the state can coerce them into returning to court is a bad use of their limited resources. Our data has shown that people do not need to have money on the line in order for them to return to court: The Bail Project’s 36,000 clients receiving bail assistance attended 91 percent of their court appearances without any financial incentive to do so. In other words, the rationale for money bail is false. Courts are simply punishing people before they have even been convicted. And in the process, they are often making recovery harder rather than easier.
The War on Drugs reshaped the pretrial system around the premise that more surveillance, more detention, and more punishment would produce safer communities. Decades later, that premise has become so embedded in our institutions that it often goes unquestioned. But the experiences of people like Jimmy, Max, and countless others suggest a different lesson. The barriers that keep people trapped in the criminal legal system are factors like lack of stability, treatment, and support.
Fifty-five years after Nixon’s declaration, the challenge is not simply to rethink drug policy. It is to rethink the pretrial system that grew alongside it, and to ask whether accountability is better served by punishment before conviction or by helping people remain connected to their communities and get the help they need.
Image source: Jon Tyson / Unsplash
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