Vera Institute of Justice

There is now widespread recognition in the United States that the punitive drug policies of the early 1990s have failed to deter drug use. Instead, the common stigma around drug use and the risk of facing criminal penalties have discouraged users from seeking help and promoted risky practices that increase rates of infectious disease and death.⁷ In turn, over the last decade communities and public officials have increasingly called for an approach to drug use that employs harm reduction principles, making the issue a public health concern rather than one to be managed by the criminal justice system.⁸ Various harm reduction strategies can be incorporated at different points in the community and criminal justice system, from pre-arrest to post-reentry. Current strategies include law enforcement-assisted diversion (LEAD), medication-assisted treatment (MAT), distribution of naloxone (an antidote that reverses the effects of opioid overdoses), and syringe exchange programs (SEPs). All of these strategies have an established evidence base and proven viability at different intercepts in the criminal justice system, yet remain inaccessible to large groups of people.⁹

A small but growing number of jurisdictions across the country are developing law enforcement-led responses to improve health outcomes while protecting public safety. Seattle, for example, established the first LEAD program in 2011 and LEAD has since been launched in four additional jurisdictions; it is in development or under consideration in 39 more.¹⁰ LEAD programs give police officers discretion to divert people involved in illegal activities who have behavioral health needs, such as substance use disorders, to case-management services, where a person can receive a wide range of community-based services including housing, employment support, and/or drug treatment. A three-year evaluation of the Seattle program demonstrated that LEAD participants fared better in multiple ways when compared to control participants who were arrested, taken into custody, and had criminal charges filed against them. LEAD participants were, on average, less involved in the criminal justice and legal systems and had lower associated costs; they were less likely to recidivate in the short-term (six months subsequent to entry) and the long-term (up to nearly three years subsequent to entry depending on length of program participation); and they were significantly more likely to obtain housing, employment, and legitimate income in the 18 months following their LEAD referral (compared to the month prior to their referral).¹¹ Such results bolster support for diversion as a part of a comprehensive strategy to minimize the harms caused by substance use.

Experts agree that providing MAT, in combination with appropriate behavioral treatments, can help deter or alleviate drug dependence. A significant body of research demonstrates that medications like methadone and buprenorphine help people remain in treatment, decrease opioid use, and reduce criminal activity.¹² Nonetheless, justice-system actors—particularly courts and corrections professionals—have been slow to integrate MAT. A 2010 national survey of drug courts showed that although 98 percent reportedly had participants with opioid addictions, only 56 percent offered MAT.¹³ Meanwhile, a 2008 national survey of prisons found that only 55 percent of facilities offered methadone, only 14 percent offered buprenorphine, and fewer than half referred people to MAT programs upon release.¹⁴

However, jurisdictions are beginning to respond to these gaps in treatment. Indiana, New Jersey, New York, and West Virginia state legislatures passed bills in 2015 that require drug courts to permit people to receive MAT for substance use disorders; Indiana and West Virginia’s bills also make way for corrections departments to offer MAT to people in custody.¹⁵  Furthermore, federal funding for drug courts is now contingent upon making MAT available to participants.¹⁶ This gradual trend toward increasing the availability of MAT for people involved in the criminal justice system sets a new standard for making evidence-based treatment practices available in justice settings, even if implementation challenges remain.

The distribution and administration of naloxone—an antidote that reverses the effects of opioid overdoses—has gained increasing support in communities, given rising rates of opioid overdose deaths and the fact that naloxone is inexpensive and has no addictive properties. Largely as a result of legal changes, public access to and training in naloxone distribution has expanded dramatically. A 2014 survey by the Harm Reduction Coalition showed that between 1996 and 2014, community-based organizations across the United States provided training and naloxone kits to over 150,000 laypersons—including people who use drugs, their families and friends, and service providers—and received reports of over 26,000 overdose reversals.¹⁷ By June 2016, 47 states had passed legislation designed to improve public naloxone access.¹⁸

Currently, overdose education and naloxone distribution is less established across the criminal justice system and varies largely by jurisdiction and sector. The number of law enforcement agencies carrying naloxone has increased steadily in recent years—with 1214 law enforcement departments in 38 states carrying naloxone as of December 2016.¹⁹ However, only a few jurisdictions are taking steps to adopt corrections-based overdose education programs or provide naloxone to people as they leave custody—a critical intervention point, given the high rates of drug-related death that occur in the period following one’s release from prison. (One study in Washington State found that the relative risk of death from a drug overdose was over 12 times higher for people released from prison as compared with other state residents; the risk of overdose is even greater in the first two weeks after release).²⁰ In the past year, some efforts have emerged to make naloxone use more widespread for people in custody: the National Commission on Correctional Health Care adopted a policy position supporting increased access to naloxone in correctional facilities and some states are implementing overdose prevention measures for people transitioning from jail or prison to the community. (Examples can be found in jails in Durham County, North Carolina and San Francisco, California, as well as in prisons in New York and Rhode Island, among other locations).²¹

There are additional strategies to reduce the harms associated with drug use that do not necessarily take place at specific criminal justice intercepts but nonetheless require cooperation from criminal justice system actors to ensure that community members have access to needed services. SEPs—also known as syringe service programs, needle exchange programs, and syringe-needle programs—have long been considered a vital resource in curbing the spread of disease and infection among injection drug users; a 2014 survey estimates that 194 SEPs now operate in 33 states.²² But law enforcement officers may actively discourage the use of these facilities by targeting enforcement efforts around needle exchange sites or using “drug paraphernalia” laws to arrest drug users who are returning used injecting equipment. They also may be unaware of or unfamiliar with the benefits of SEPs, such as a reduction in the number of needle-stick injuries that law enforcement officers experience. Indeed, policing practices in numerous jurisdictions still target SEP participants, despite the proven benefits such programs provide.²³