The Criminalization of Addiction

This past April, the television show ‘60 Minutes’ pointed out that the US now has more people in prison than we do attending college. That was a powerful eye-opening statement. Our policy of mass incarceration has an estimated 2.3 million Americans locked up(1) and costs an incredible $182 billion per year(2). When you factor in short term holds and long term supervision, the number of people affected balloons up to an astonishing 6.8 million. We have just under 5% of the world’s population, yet hold over 25% of its prisoners (statistics more commonly associated with totalitarian regimes, not the leader of the free world). National estimates suggest that up to 80% of prison inmates meet diagnostic criteria for supstance use disorders (SUD)(3). We are essentially criminalizing the disease of addiction, and that makes no sense whatsoever, on so many levels.

For every $1 spent on treatment, we receive $7 in criminal justice savings(4). That doesn’t even begin to factor in the social costs of more broken families on welfare, food stamps, and unemployment, likely to be stuck in a cycle of generational incarceration. It also doesn’t account for the fact that SUD is a supstantial risk factor for committing a criminal offense(4). Yet, despite all of these salient points, it’s estimated that fewer than 10% of people with SUD get treated in prison; we’re simply returning them to the streets where they will most likely again use drugs, drink alcohol and re-offend(4). Relapse and overdose death rates are significantly higher for someone who has been released from prison(5). Think of all the societal benefits we could achieve, money we could re-direct to better purposes and lives we could save if we only re-imagined a criminal justice system more interested in solving problems than in meting out punishment. Well, you shouldn’t have to try too hard because that potential already exists in the form of Alternative Sentencing (AS). However, as a nation we’ve been slow to adopt it, for reasons that stem from little more than inertia, even though there’s clear evidence it can dramatically improve the landscape of both addiction treatment and criminal justice.

Exactly what is Alternative Sentencing?

When someone gets in trouble with the law, he or she is eventually brought in front of a judge to face the music. The crime itself can run the gamut, including crimes for possession or sale of a small quantity of drugs to petty offenses related to a person’s SUD. In the past, judges (especially federal judges) had little flexibility in doling out punishment. The law or statute called for a sentencing range of a particular period of time to be served in jail (a short term facility), prison (for longer sentences), or on home confinement and probation for (lesser crimes). As the number of drug and DUI offenses began to swell, local courts came to appreciate the need for alternatives to alleviate over-crowded jails, and began implementing what generally came to be known as ‘Diversion’ programs. In Diversion, offenders are given an option, serve out a sentence in jail OR attend mandatory drug/alcohol treatment and counseling, often including AA or NA meetings. They also had certain other restrictions like home confinement. These programs lacked uniformity in the beginning as judges experimented to see what worked best, but over time most programs began to resemble each other throughout the country, as the use of AS has slowly expanded to the state and federal level. However, it is nonetheless still a woefully under-used tool.

The implementation of AS typically involves the creation and use of specialized courts commonly referred to as Drug Courts and DUI Courts. In many locales, the Drug Courts are used to handle all instances involving both drugs and alcohol, so I’ll just refer to the term Drug Courts for the sake of simplification. These courts are designed to give people with SUD the tools they need to change their lives.

To qualify, a person typically:

  1. May not have committed a violent crime,

  2. May not have a prior criminal record,

  3. Must demonstrate that he/she can benefit from outpatient and inpatient rehab,

  4. Must complete an evaluation with a mental health professional, and

  5. Demonstrate a dedication to getting clean and sober.

Most curriculum lasts 12 to 24 months and require strict attendance combined with zero-tolerance sobriety. Participants must also adhere to curfews, retain employment, pay any applicable fines and restitution, and supmit to random drug testing. Failure to comply results in imprisonment. Successful implementation of Drug Courts has led to the creation of other specialized problem solving courts such as those involving mental health disorders, homelessness, domestic violence, gambling and school truancy.

More than 25 years of exhaustive scientific research has proven that Drug Courts are both effective and cost-effective(6,7). Studies have demonstrated that Drug Courts can reduce recidivism by an average of 8-15%, with the best of them topping out at 35-80%6. Moreover, not only do they reduce crime, they also result in significantly reduced supsequent drug and alcohol use, improved family relationships and increased access to required financial and social services. Independent evaluations have demonstrated cost savings ranging from $1,500 to $8,000 per participant(6). However, if coverage were expanded, it seems logical to expect even greater savings, considering it costs in excess of $31,000 annually to house each federal inmate,8 not accounting for the related medical and social costs.

Additional societal benefits include:

  1. Reduced overcrowding in courts and prisons now overwhelmed with drug/alcohol related cases.

  2. Eliminating the root cause of drug related crimes, instead of just addressing the symptom.

  3. Allowing addicts to be contributing, tax-paying members of the community, instead of a drain on resources.

  4. Stabilizing family relationships to minimize the damage to innocent children caught in the crossfire.

As of December 31, 2014, there were 3,057 Drug courts in the US, representing a 24% increase in five years(6). Those Drug Courts adjudicated an estimated 127,000 cases during 2014. While the increase in the use of Drug Courts is very positive, it’s a mere drop in the bucket considering that 11 million Americans passed through the turnstiles of local and county criminal justice in 2015(9). Only 56% of the counties in the US have Drug Courts and only 60% of US States and territories have Drug Court authorization legislation6. The only federal drug court program I came across was from the Central District of California and that’s only been in place since 2012. The recently passed 21st Century Cures Act provides for a nationwide rollout of Federal Drug Courts, but is only funded for two years and must share a budget with general addiction treatment and mental health programs. We need to do more.

We should also consider greater flexibility. The criminal justice system is often the first institution to ‘catch’ those suffering from SUD. As a result, many people only receive treatment once the situation is critical. The criminal justice model is structured around harsh punishment. As we all know, addiction treatment and the road to recovery is fraught with mis-steps. These are not tolerated in a system with a ‘one strike you’re out’ policy for failing drug tests or missing court appointments. We are perverting justice by effecting harsh punishment for problems that would be better served through medical or therapeutic intervention(9).

Finally, we can’t ignore the financial and racial disparities that lead to a greater percentage of addicted minorities being sent to prison. People with means can intervene earlier in the process, while certain ethnic and economic groups have fewer treatment options and far more legal consequences(9). As a result, two-thirds of all persons in prison for drug offenses are people of color(1).

So what’s holding us back?

It’s not a lack of public support. According to a poll released by the Pew Research Center in November 2016, 91% of respondents agreed that drug addiction was either a ‘very big’ (58%) or ‘moderately big’ (33%) problem. Yet, the primary reasons for slow progress in AS appear to be insufficient funding and a lack of resources for treatment and supervision6. There is a major disconnect between what the people want and the political will to make it happen. These sentiments were echoed by the former US Surgeon General Vivek Murthy, blaming these same problems as major catalysts in the explosion of addiction. Not only do treatment centers need more assistance with AfterCare, but Drug Courts too can make use of RecoveryBound to improve and expand their use of Diversion for everyone’s benefit.

Utilizing Diversion as part of Alternative Sentencing is no longer just a good idea for a novel experiment. It must be brought into the mainstream as a regular, viable, primary alternative to direct incarceration. It’s gotten to the point of mission critical for both addiction treatment and criminal justice. For each person incarcerated, there’s a broken family left behind to pick up the pieces. For each person incarcerated, there’s an increased likelihood of someone who will just get out, re-abuse drugs and re-offend. For each person incarcerated, we are imposing a detrimental domino effect on the next generation, when we could have more compassionately and effectively stopped that cycle in its tracks with increased use of treatment and intervention.

Footnote Sources

  1. Substance Use Correlates of Depression Among African American Male Inmates, HHS Public Access, May 2016.

  2. The Prison Policy Initiative, 2016.

  3. Brain Potentials Predict Substance Abuse Treatment Completion in Prison Sample, Brain and Behavior, April 2016.

  4. Facing Addiction in America, US Surgeon General Report, November 2016.

  5. Extended Release Naltrexone to Prevent Opioid Relapse in Criminal Justice Offenders, The New England Journal of Medicine, March 2016.

  6. Painting the Current Picture: A National Report on Drug Courts, National Drug Court Institute, June 2016.

  7. Adult Drug Courts: Evidence Indicates Recidivism Reduction, United States Government Accountability Office, February 2005.

  8. Federal Bureau of Prisons, 2015.

  9. Declaring Addiction a Health Crisis Could Change Criminal Justice, The Atlantic Magazine, November 2016.