Vera Institute of Justice

Focusing on the array of harm reduction strategies currently used in various jurisdictions in the United States, Vera researchers interviewed 14 stakeholders in law enforcement, courts, corrections, drug policy, and the community about how they are responding to opioid-related issues in their communities and about how receptive their agencies and jurisdictions are to harm reduction strategies. For New Mexico, New York, and West Virginia, Vera interviewed stakeholders at both the city and county level: respectively, Albuquerque in Bernalillo County, Ithaca in Tompkins County, and Huntington in Cabell County. For North Carolina, Vera focused on statewide initiatives; interviewees included stakeholders who work across the state and one city-level official.

Of those interviewed, most people discussed wanting to shift from a punishment-oriented model to a treatment-oriented model in their jurisdictions’ response to people who use drugs; many also reported that they had considered implementing some type of harm reduction practice in their jurisdiction, such as the ones discussed above. Collectively, the interviews revealed four key challenges to integrating harm reduction practices:

• defining and understanding what harm reduction means;
• assessing support for a range of harm reduction strategies;
• changing long-ingrained attitudes about crime and addiction; and
• conceptualizing how big or small a role the criminal justice system should have in the lives of people who use drugs. 

When asked to define harm reduction, stakeholders presented a wide range of answers. Some interviewees mentioned its core principle—reducing the negative effects of drug use—though most did not, and several cited the importance of minimizing disease transmission. Other respondents were quite broad in their definitions, describing harm reduction as a way to save lives or using the phrase “harm reduction” to signal approaching drug use as a public health issue rather than a criminal justice issue.

Respondents lacked clarity about the spectrum of strategies that could fall under the umbrella of “harm reduction.” Only three of the 14 people with whom Vera spoke were able to describe a full range of harm reduction techniques for drug use—from LEAD, to MAT, to naloxone distribution, to SEPs, and supervised injection facilities. Others were unaware of the range of options or admitted they were not familiar enough with the evidence base to support currently using a particular technique.

When Vera researchers asked stakeholders more specifically about harm reduction strategies currently being used within the justice system, it became clear that there is a continuum of comfort with different harm reduction techniques. The use of naloxone and MAT are illustrative examples. All jurisdictions discussed in this brief have state laws that provide civil and/or criminal immunity to licensed healthcare professionals for the administration of naloxone.²⁴ Almost all interviewees supported community-based naloxone distribution, often described as an inevitable response to the worsening opioid overdose epidemic or as a technique for which there is mounting peer pressure to endorse. 

However, several interviewees reported lingering resistance to law enforcement carrying or administering the antidote in the jurisdictions where they are based. Interviewees described a lack of resources or bandwidth for police departments to take on added responsibilities, a feeling that the service may not be necessary if fire departments and EMTs were already carrying naloxone, and a continuing concern about liability since police officers are not medical professionals.²⁵ In terms of distribution in jail or prison, Ray Bunce, captain of the Corrections Division in the Tompkins County Sheriff’s Office, recognized the importance of providing overdose education and facilitating access to treatment for people who used drugs, but opposed the practice of naloxone distribution upon release from jail. He cited what some research shows to be a commonly shared misconception—that equipping drug users with naloxone incentivizes riskier using behavior.²⁶ He also noted the challenge of distribution in jail settings, since delivering effective behavioral health services requires rapport between providers and patients, which is inherently challenging in a transient environment. Moreover, many jails lack the staffing and resource capacity to adopt new programs, and have organizational cultures resistant to harm reduction approaches.²⁷ Even with these barriers, there are examples of jail-based MAT programs nationwide, including a program that has been in operation in the New York City jail since 1987.²⁸ 

The use of MAT in drug courts and in correctional facilities was much rarer in Vera’s sample, often due to legal, logistical, or capacity issues. Even as laws change to expand the use of MAT in drug court and federal funding for drug court becomes contingent on allowing access to MAT, wide-scale implementation and accessibility of such programs is dependent on a host of factors. Indeed, courts must address practical and cultural barriers to using MAT by adapting supervision and monitoring practices, developing relationships with treatment programs and prescribing physicians, ensuring that decisions about access to medication are solely the responsibility of trained clinicians, and educating drug court staff about the use and efficacy of MAT.

Although leaders in the criminal justice field increasingly are recognizing the limitations of traditional criminal justice approaches to drug use, interviewees admitted they face challenges when it comes to changing attitudes and implementing practical change. They commonly described how their own attitudes toward drug use and addiction have evolved because of their increasing proximity or even personal connection to people confronting the opioid epidemic. Indeed, the rising numbers of people dying from drug overdoses and the fact that drug arrests continue to be the leading cause of arrest in the United States has changed attitudes and perhaps even diminished stigma around people with substance use disorders.²⁹ Robert Childs, a harm reduction expert in North Carolina, observed what he called a “sea change” in law enforcement due to the fact that most everyone now knows someone who has been affected by the opioid epidemic. The result is that there is more support—at least theoretically—for treatment-oriented solutions.

However, even as interviewees acknowledged that broad attitudes are changing and softening, they also noted that there remains resistance to changing practice on the ground. For example, Joseph Ciccarelli, the police chief of Huntington, West Virginia, described how some police officers can be resistant to LEAD programs because they perceive them as “feel good kind of programs” (see below for “Voices from the Field: On treatment, new models, and old policing methods”). For North Carolina, Mr. Childs cited how some communities are hesitant to implement LEAD because they fear they won’t look tough on crime if they divert people to services rather than arrest them. But other interviewees spoke about confronting more deep-seated beliefs about drug use and addiction. Nan Nash, chief judge in New Mexico’s 2^nd District Court, explained that allowing MAT in drug courts would appear to be a “very radical approach” to some people, even if they can articulate the theory that addiction is a disease, because of deeply ingrained beliefs that anyone can stop using drugs if they just work hard or have enough will power. Thus, despite evidence showing that MAT can aid in recovery, giving people drugs to treat drug addiction may fly in the face of the abstinence-only model on which drug courts traditionally have been based; it asks people to reframe what addiction means and how it can be managed. 

Many of the people in Vera’s sample asserted that, despite increasingly progressive attitudes, change would have to be incremental in their agency or jurisdiction and should be approached cautiously. Interviewees discussed the importance of knowing their audience when advocating for the use of new approaches. Whether people are moved by the human cost of overdose, the financial cost of drug addiction and incarceration, or the framing of substance use as a public safety or public health problem, stakeholders stressed that there is something in this for everybody—that the current system is so broken that there is inevitably some common goal despite different justifications for it. In the words of harm reduction policing advocate Ronald Martin, “Anything you can do to change the temperature one degree is like a win for your organization.” Such comments suggest there is a very pragmatic aspect to the work of changing justice system responses to drug use. Even without broad agreement on the nature of addiction, justice stakeholders may agree on the viability of trying harm reduction approaches.³⁰

While there is growing recognition that harm reduction principles are an essential component of any community’s response to drug use, there are still a range of questions about the appropriate role for the criminal justice system in responding to drug use. For example, if the current or old model is broken, what should the new model look like? Even if there is increasing momentum for adopting harm reduction approaches in the justice system and even if more people agree that the standards of care in the justice system should match those of community care, when is it appropriate for the criminal justice system to be the pathway to treatment, and when is it more appropriate to keep people out of the criminal justice system altogether? What role can criminal justice leaders play in advocating for increased resources for a stronger public health infrastructure to respond to issues rooted in addiction and poverty, and a smaller role for law enforcement, courts, and corrections?

Interviewees were especially reflective in describing the traditional roles their agencies have played in relation to drug use as well as their ambivalence about what a new approach could look like. Court system actors described increasing recognition of the limits of a model that places more emphasis on punishment but were unsure of what a better model would look like. For example, Gwen Wilkinson, the former district attorney in Tompkins County, New York, acknowledged that while her office is mandated to prosecute crime, she sought to integrate harm reduction approaches when applying the law. Judge Nash of New Mexico described how judges easily recognize the need for additional, non-punitive approaches, but also admitted that many lack knowledge about the efficacy of alternatives, especially those that are not abstinence-based.

Police were equally open about the limitations of their traditional approach to drug use and addiction, but all echoed the sentiment that there is no simple solution to confronting the drug epidemic in their communities, short of re-envisioning the role of police. This is not an easy task given the hard work of changing attitudes described above and the reality that different criminal justice stakeholders will invariably be driven by competing priorities or incentives and may operate with varying degrees of knowledge of, or enthusiasm for, alternatives. But the very fact that leaders in law enforcement are starting to articulate questions about the appropriate role of their agency in responding to drug use indicates there are opportunities for conversation about how to define the potential new roles of the various criminal justice actors who find themselves responding to a worsening drug epidemic.

 Notably, a wider role for the police, prosecutors, or judges in responding to drug use—even through the adoption of innovative treatment alternatives and harm reduction approaches—may reinforce the idea that people must enter the criminal justice system in order to get needed health treatment, particularly in places where there is an absence of community-based treatment or services, therefore increasing the number of people who get arrested. For example, Huntington, West Virginia police chief Ciccarelli described having more success with post-arrest diversion than pre-arrest diversion, in part because he believes that the mechanism of arrest often serves as the necessary entrée to recovery for many people—a “wake-up call” of sorts—and keeps officers from feeling that they’re enabling immoral activity. (See below for “Voices from the Field: On treatment, new models, and old policing methods.”)

Several interviewees said they wanted to provide interventions for people struggling with drug addiction outside the criminal justice system, but were unable to do so because pre-arrest or community care options are limited or nonexistent. In Huntington, West Virginia, for example, the Women’s Empowerment and Addiction Recovery Program is a vital pathway to treatment for women who engage in sex work and have a substance use disorder, but it is only open to women arrested on felony charges. Access to treatment is thus dependent on deep criminal justice involvement, which brings a host of long-term collateral consequences such as limited access to employment, public benefits, or participation in civic life.