The US Criminal Legal System Continues To Fail People Who Use Drugs

The United States remains an outlier among peer nations for its expensive, ineffective healthcare system, world leading incarceration rate, and leading overdose death rate. While elected officials remain unable or unwilling to address these deeply intertwined crises, overdose deaths continue to rise at alarming rates in the United States.

In 2022, an estimated 109,680 people lost their lives to drug overdoses in the United States, with the majority stemming from synthetic opioids such as fentanyl. This remains true for the nearly 2,500 drug-related deaths in 2021 that occurred in Georgia where we practice, where 70% of those deaths involved opioids, the majority involving fentanyl. These lives lost are even more troubling given that OUD has remarkably safe and effective treatments. Despite this, when it comes to drug policy, much of the state’s resources continue to go toward the criminal legal system and its outsized policing, jail, and prison infrastructure.

The most dangerous attitude towards this crisis is apathy. Shifting to a mentality of empathy can allow us to demand meaningful change.

What has become clear since the so-called “war on crime” was launched in 1965 followed by the more formalized “war on drugs” in 1971, criminalization and incarceration are key drivers of drug overdoses. This misguided crusade disproportionately affecting poor people of color who use drugs has failed to make anyone safer and certainly has not eliminated drug supply or use. The iron law of prohibition predicts that criminalization of drugs will not make them disappear but instead make the drug supply more unpredictable and potent. This has ultimately led to the ubiquity of fentanyl and other synthetic opioids, as well as other substances like xylazine, in the drug supply coupled with increasing overdoses and a sprawling carceral regime incapable of addressing it.

People with substance use disorders, and OUDs more specifically, are disproportionately represented in jails and prisons, with close to one in five reporting regular opioid use prior to incarceration. Oftentimes, it is the substance use itself leading to incarceration, through either direct criminalization or arrests stemming from minor crimes driven by poverty and addiction. There is no justifiable public safety reason to be incarcerating thousands of people for use of certain substances. Despite this, incredibly, the most common arrest nationally remains for simple possession of an illicit substance. While some view a “tough love” approach as necessary to “treat” addiction, this misunderstands that American jails and prisons are contributors to, not solutions to, the overdose crisis. This is in no small part due to the carceral environment being far from therapeutic but instead characterized by neglect, boredom, violence, and trauma.

Ultimately, decriminalization and regulation of substances is a public health necessity.

At present, very few people are being offered evidence-based treatment for OUDs within jails or prisons in Georgia or elsewhere across the country. Our own surveying of local jails across the state confirmed just how bleak the OUD treatment landscape remains. This is despite the fact that incarcerated patients have a legal right to treatment that is on par with care in the community and a multitude of guidelines which have existed for years recommending and providing guidance for treating OUD in jails. However, these guidelines are not often enforced and the medical rights of incarcerated people exist more on paper than in practice.Treatments including methadone, naltrexone, and buprenorphine have strong evidence of efficacy in reducing opioid use, accidental overdose, and death. The denial of these medications has also been ruled a form of discrimination in violation of the Americans with Disabilities Act. Withholding these treatments is unethical and continues to have devastating implications for incarcerated and formerly incarcerated individuals. Without treatment, following release, 75% of individuals with OUDs relapse within the first three months. Upon release the risk of overdose can be as high as 129 times the general population in the first few weeks. This is due to the change in tolerance to opioids often lost in jail or prison, lack of treatment provision while incarcerated, and lack of linkage to treatment upon release. Overdoses are even rising in jails and prisons themselves.

More rigorous medical oversight, including for OUD treatments, in jails has long been needed. A few states have taken steps forward. However, looking to the future, recovery is best served not in the criminal legal system but in the community. It is support and care, not coercion that ultimately proves effective at keeping people who use drugs alive and offers the best chance of recovery. At present, community-based treatment is not nearly as accessible or affordable as it could be. In order to begin addressing opioid overdoses we must dramatically increase investments in harm reduction services and eliminate all potential barriers that deter people from engaging with treatment when ready. This includes cost, as one study demonstrated that increasing the daily copay of buprenorphine by just one dollar decreased retention in treatment by 12-14 percent. Investing in local, comprehensive systems of care would not just save lives, but ultimately prove cost-effective as well.

The long-term focus must remain on dramatically decreasing the use of policing and incarceration as "solutions" to problems stemming from inequality and poverty.

Jails and prisons must make these medications widely available but should not be framed as idealized service providers. As professor and prison abolitionist Angela Davis said, “prisons do not disappear social problems, they disappear human beings.”

Ultimately, decriminalization and regulation of substances is a public health necessity. The long-term focus must remain on dramatically decreasing the use of policing and incarceration as "solutions" to problems stemming from inequality and poverty. We must collectively reject the dual processes of dehumanization that label these patients “drug user” and “criminal,” unworthy of care or compassion. Instead, an embrace of harm reduction, including the essential tenet that people will use substances, and that we should take actions to minimize the harm this use causes them, is needed.

Over the next 18 years, there will be over $50 billion in settlement money given to state and local governments from pharmaceutical companies and businesses for their role in the opioid crisis. The money has the capacity, if implemented equitably, to transform the OUD treatment landscape. This money should not serve as a blank check for the criminal legal system, which prioritizes punishment over healing. Instead, it should go toward supporting the people who have been affected by the opioid crisis focusing on prevention and repair.

The most dangerous attitude towards this crisis is apathy. Shifting to a mentality of empathy can allow us to demand meaningful change. The challenge now is not a lack of knowledge, but rather unwillingness to implement the necessary changes. As journalist Maia Szalavitz said, “Most of the harm we tend to think of as being drug-related is actually drug-policy-related.” Take the next step to find out if your local jail has treatment for OUDs available. If not, find out what is holding them back from providing this life saving care.