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January 01, 2018

When Less Is More: Reforming the Criminal Justice Response to the Opioid Epidemic

By Jonathan Giftos and Lello Tesema

The young man in clinic, whom we’ll call Angelo, bought his first bag of heroin when he was 19. At 24, he was in jail for the fourth time on charges related to his drug use. This time it was for selling a bag of heroin to an undercover police officer.

It started as a casual habit—sniffing a couple of bags a day with his girlfriend. With time, he needed more and more drugs to get the same effect. Angelo also began to get sick if too much time passed between use. As his tolerance for heroin increased, and the withdrawal symptoms became more severe, he found it more efficient to inject instead of sniff. Today he shoots 20 bags of heroin a day and lives with hepatitis C acquired through sharing needles.

To physicians who work in the largest jails in the country, Angelo’s story is both tragic and familiar.

Half of U.S. state and federal prisoners and nearly two-thirds of jail inmates have a substance use disorder—a rate fourfold higher than the general population. Of this group, a large proportion have an opioid use disorder, typically involving heroin or prescription pain medication. Death rates from overdoses involving opioids have quadrupled since 1999, and overdose has eclipsed motor vehicle accidents as the number one cause of death in Americans under age 50. In addition to overdose, having an opioid use disorder also raises the risk of other medical conditions such as HIV or hepatitis C infection. The health and economic costs of the opioid epidemic range from $80 billion to $500 billion per year, a substantial portion of which is incurred by the criminal justice system.

While staggering, these numbers do not surprise us. We have seen too many people like Angelo cycle in and out of jails and prisons for reasons related to their drug use. Their continued struggle is a sign of both a broken safety net and excessive reliance on a criminal justice system ill-equipped to respond to their needs.

Each time Angelo gets arrested, he gets “detoxed,” many times without appropriate medical supervision, only to relapse to heroin use soon after he is released. The one time he was referred to treatment, his insurance had been suspended while incarcerated, and so he was denied care due to lack of insurance coverage. Most recently, he overdosed and almost died just hours after leaving jail.

The criminal justice system confers significant additional health risks to patients with an opioid use disorder. Forced detoxification from opioids while incarcerated lowers a patient’s opioid tolerance and is associated with a 129-times increased risk of overdose death in the first two weeks after release into the community. And untreated opioid withdrawal—a syndrome characterized by vomiting, diarrhea, intense muscle cramps, and paralyzing anxiety—is a major risk factor for suicide in jails and prisons.

Buprenorphine and methadone— medications collectively referred to as opioid agonist therapy—have been shown to reduce the opiod overdose death rate by as much as 50 percent for community-dwelling patients with an opioid use disorder when compared to detoxification and counseling alone. Prescribed by a medical provider and taken daily, these medications mimic short-acting opioids such as heroin or oxycodone by binding to the same receptors in the brain—the opioid receptors. The effect of this receptor binding is twofold. First, it prevents onset of withdrawal symptoms and reduces the patient’s craving to use more dangerous illicit opioids. Second, by sufficiently occupying the opioid receptors, these medications effectively block the euphoric response to additional opioids the patient may take, thereby reducing the incentive to use. Collectively, the effects of opioid agonist therapy reduce the risk of relapse to heroin use, while also reducing the chance that a relapse event will be fatal.

Yet, despite their established effectiveness, use of opioid agonist therapy is exceedingly rare in correctional settings. Fewer than 40 of the 5,000 correctional institutions in this country offer methadone or buprenorphine maintenance. And the majority of individuals receiving these medications prior to arrest are frequently forced to withdraw from them once incarcerated.

This disruption is problematic. Incarceration often undoes meaningful gains made toward long-term recovery. Research shows that forcing someone to withdraw from methadone while incarcerated leaves them less likely to restart treatment after leaving custody. And like Angelo, the majority of people with public insurance have their coverage suspended while incarcerated, leading to dangerous gaps in access to treatment upon return to the community.

Still, offering evidence-based treatment in custody can be life-saving. Despite scarce implementation, recent studies have shown that offering methadone or buprenorphine maintenance to incarcerated patients with an opioid use disorder is associated with an 85 percent reduction in overdose death in the first four weeks after release. Research also shows that when these treatments are available in correctional settings, fewer people die of overdose while in custody. In light of such strong supporting evidence, some jurisdictions are working to expand the availability of opioid agonist therapy. But lack of access to this vital treatment is still the pervasive norm in correctional settings across the country.

Reluctance to offer opioid agonist therapy in correctional settings is rooted in concerns both practical and philosophical—but not in science. Although these medications can be diverted, the health risks posed to other inmates is marginal when compared to the wider, long-term benefits of ensuring access to treatment. And careful oversight over the storage and administration of these medications can mitigate this risk, as demonstrated in New York City, which has used these medications successfully for many years. More problematic is the perception by many in corrections that maintenance on opioid agonist therapy is simply “replacing one drug with another” and therefore does not reflect authentic recovery. Despite decades of evidence demonstrating the public health benefits of these treatments, this bias has posed a durable barrier to more widespread acceptance of opioid agonist therapy in correctional settings.

The story behind a third and newer Federal Drug Administration (FDA)-approved medication for the treatment of opioid use disorder—injectable, long-acting naltrexone (also known as Vivitrol®)—underscores the long-standing bias against opioid agonist therapy. Despite its $1,000 a month price tag and a smaller body of evidence to support its use, this opioid antagonist (an opioid blocker) has seen remarkable uptake in criminal justice settings. Injectable, long-acting naltrexone is often marketed directly to stakeholders in criminal justice, potentially leveraging stigma against proven treatments such as methadone and buprenorphine. While the evidence base for naltrexone is growing, especially among self-selected and highly motivated patients, there is not sufficient data to support naltrexone being offered as the sole treatment to justice-involved patients. Ultimately, the best medication is the one that is specifically suited to a patient’s needs and goals, and the one that the patient is motivated to continue taking. For this reason, we argue that all three FDA-approved medications—methadone; buprenorphine; and injectable, long-acting naltrexone—should be offered to justice-involved patients with opioid use disorder.

Naloxone—a rescue medication that reverses the effects of an opioid overdose—is another important tool in reducing overdose deaths. In many cities around the country, health departments have partnered with public safety to train police officers to identify an overdose event and respond appropriately with naloxone administration. This undoubtedly has saved many lives. Additionally, research has shown that people who use drugs are also likely themselves to be first responders to an overdose. In response to this finding, a few jail systems, such as New York City and Cook County, Illinois, and the New York State prison system have instituted programs to train and distribute naloxone to soon-to-be-released inmates or their families. Still, this crucial harm reduction strategy has yet to be adopted by the vast majority of jails and prisons.

Alternatives to Incarceration for Patients with an Opioid Use Disorder

Angelo’s case is now being heard in a treatment court. But the judge is offering him a year in a residential treatment program that cannot provide him with buprenorphine, the only treatment that has allowed him to achieve abstinence in the past. He worries that he is being set up to fail and wonders if he should just take the two years in state prison instead.

In response to an evolving recognition of addiction as a chronic medical illness and not a moral failing, many jurisdictions are seeking alternative strategies to arrest and incarceration that promote public health while preserving public safety. This broad-based reform effort has taken many shapes, from treatment courts to pre-arraignment diversion. Thoughtful decriminalization also is being seriously considered.

Drug treatment courts represent an alternative to traditional criminal court for cases where problematic drug use was thought to be an underlying risk factor for the alleged offense. These specialized courts share the common feature that a court-supervised treatment alternative is offered to patients in exchange for deferred or suspended sentencing. But in practice, the 3,100 drug courts in the United States vary tremendously, even across individual states. The heterogeneity of drug courts makes it difficult to understand the key elements of their success or measure how well they work overall.

The theoretical benefit of the drug court model is that it provides a pathway for people to receive treatment while avoiding incarceration. Studies have shown some short-term benefits to these courts by way of reduced in-program drug use and reduced rates of re-arrest. But success largely hinges on one’s ability to carefully navigate the court-supervised process, which can be challenging for patients without social support or stable housing. Additionally, there is some evidence that racial minority participants are more likely to be terminated from drug courts, raising concerns that long-standing racial disparities in the criminal justice system exist in treatment courts as well.

Some critics argue that drug courts are coercive. Patients often must plead guilty to the top arraignment charge in exchange for a treatment alternative. Others note that the treatment plans of drug courts are not always clinically appropriate, often mandating drug treatment for those who would not benefit from such services, while failing to render evidence-based treatment to those who need it. For example, a national survey in 2010 noted that less than half of drug courts offered opioid agonist therapy with methadone or buprenorphine for patients with an opioid use disorder.

Lastly, drug courts require abstinence. Given the chronic, relapsing, and remitting nature of addiction, an abstinence-only model reflects a narrow measure of recovery that can be hard to attain for many. If drug court participants “fail” court-supervised treatment, they too often face harsher, longer sentences than they would have received had they pled guilty to the original charge in criminal court. This calls into question whether drug courts are fulfilling their goal of transforming the way drug users are seen from criminal defendants to people in need of medical care or social support.

While drug courts provide select patients with a substance use disorder an opportunity to avoid incarceration, they still represent a criminal justice intervention to a public health problem with all the limitations noted above. As a result, a small but growing number of cities across the country are re-imagining the way law enforcement engages people who use drugs through an intervention called pre-arraignment diversion.

The Law Enforcement Assisted Diversion (LEAD®) program, first launched in Seattle, Washington, in 2011, is one such example. Through this program, police officers can direct low-level, nonviolent drug offenders directly to community services and support, while bypassing deeper involvement with the criminal justice system. Unlike drug courts, abstinence is not required to receive services, and success is measured by meaningful engagement in care. While the health outcomes of this pilot program are forthcoming, early studies have shown this model to reduce risk of subsequent incarceration—with all its attendant health risks—by 60 to 90 percent for program participants.

Despite less criminal justice system exposure, and more direct connection to services tailored specifically to patients’ needs, pre-arraignment diversion still involves an initial arrest event. The fear of arrest is known to drive people who use drugs into the shadows, where the risks of adverse events like overdose and infectious diseases loom large, and access to treatment or harm reduction services is limited. One way to minimize these risks is to decriminalize certain types of possession or use.

Safe consumption spaces (also known as supervised injection facilities) are one such example. Safe consumption spaces are safe, sanitary locations where individuals can take or inject pre-obtained drugs in the presence of trained staff who can monitor users for adverse events such as overdose, as well as provide linkage to various health care services as necessary. Despite concerns that these facilities may increase drug use, evidence has shown this not to be the case. Instead, these programs have been shown to reduce public injection, reduce overdose death rates and HIV risk behaviors, and provide a portal of entry to care for an otherwise highly marginalized population. Several jurisdictions around the country are in various stages of exploring the role of safe consumption spaces as part of their local response to the opioid epidemic. Broader decriminalization of drug possession or use, with reinvestment of interdiction resources in prevention, harm reduction, and treatment, should be seriously considered as part of a public health strategy to reduce the harms of drug use.


As our country organizes its response to the opioid epidemic, it will be important to acknowledge the complicated role the criminal justice system plays in the lives of patients. We must recognize that drug use is primarily a public health problem. Arrest and incarceration confer substantial health risks to patients with an opioid use disorder—including an increased risk of overdose death—and the majority of correctional settings fail to provide the evidence-based treatments known to prevent relapse and save lives. Drug treatment courts represent one alternative to the traditional model, yet they retain many features of criminal courts such as coercion and looming sanctions for relapse that are hard to reconcile with a medical model of addiction. Pre-arraignment diversion has shown significant promise, balancing concerns of public safety with more patient-centered interventions. Ultimately, thoughtful decriminalization may allow the creation of safer spaces for patients to engage in harm reduction and treatment services, while freeing up important financial resources to support such efforts. The less we rely on the criminal justice system to solve this public health crisis, the closer we move toward meaningful reform. The lives of patients depend on it. 

The views and opinions expressed in this article are those of the authors and do not represent the official policy or position of their respective employers.