Abstract

The policy brief provides an overview of the historical trajectory of drug policies in the United States, discussing the shift from punitive measures to evidence-based, rehabilitative approaches within the criminal justice system. It highlights the effectiveness of various solutions such as cognitive therapy, medical interventions, and sustained support in mitigating recidivism and addressing the broader complexities of substance abuse and mental health within the justice system.

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Executive Summary

The pervasive issue of substance abuse within the criminal justice system in the United States and other parts of the globe has deep historical roots, with punitive measures and mandatory minimum sentencing dominating policies since the declaration of the "war on drugs" in 1971. The severity of this approach is evident in the tripling of drug-related arrests from 1982 to 2007 and a disproportionate impact on Black and Latino individuals. Recognizing the inefficacy and counterproductivity of this stance, the Obama administration marked a pivotal shift, emphasizing evidence-based policies and passing the Fair Sentencing Act to reduce sentences. Despite these changes, the challenge still continues to persist, calling for a crucial examination of alternative approaches to this vital issue. This policy brief aims to explore a multitude of programs, policies, and practical solutions to combat this issue.

Overview

A. Pointed Summary

• Substance abuse is highly prevalent within the criminal justice system, with “more than 80% of state prison and local jail inmates” having used an illegal drug at least once.
• The impact of substance abuse exacerbates criminal behavior, leading to higher rates of recidivism and complicating the rehabilitation process.
• Limited resources, overcrowded facilities, and systemic barriers hinder the implementation of effective interventions, further perpetuating the cycle of substance abuse within the criminal justice system.

B. Relevance

Substance abuse within the criminal justice system is a pervasive issue with crucial implications for society. Individuals with substance use disorders often find themselves entangled in the system, as their addiction can drive their resulting criminal behavior and actions. This places a substantial burden on the justice system, which can further exacerbate present issues such as overcrowded prisons and strained resources. This nature of substance abuse and criminal involvement can lead to a cycle of recidivism, hindering efforts toward rehabilitation and reintegration of those individuals into society after release from prison. Therefore, addressing these pressing concerns are not only for the well-being of those directly affected but also for the overall health and functioning of society. Breaking this cycle can lead to reduced crime rates, lower incarceration costs, and a more productive and safer community for all.

History

A. Current Stances

Americans are generally in favor of treatment over imprisonment; according to a Pew Research Center report, 67% of Americans favor a rehabilitative approach to drug treatment. Additionally, 63% of surveyants approved of decisions to rid of a “mandatory minimum” sentencing for drug-related crimes. Those 65 and older and Republicans were found less likely to support treatment approaches than young people, Democrats, and independent voters. 

B. Tried Policy

In 1971, now-former President Richard Nixon famously declared a “war on drugs,” creating the Drug Enforcement Administration and Controlled Substances Act to combat the rise in recreational drug use. The Reagan Administration later passed the Comprehensive Crime Control Act of 1984 and Anti-Drug Abuse Act of 1986, both of which established mandatory minimum sentencing for drug-related crimes. Later, former President Bill Clinton introduced the “three-strike rule” through the Violent Crime Control Act and Law Enforcement Act of 1994, creating the possibility of life imprisonment for three-time drug offenders.

As a result of these strict policies, annual drug arrests have tripled from 1982 to 2007. Additionally, the average length of one’s sentence increased from two years in 1986 to seven years in 2005. These stringent laws disproportionately affect Black and Latino individuals; Black men are incarcerated at 9.6 times the rate of White men, and varying by state, this metric can go up to 26 times. Additionally, according to the Drug Policy Alliance, “In 2013, Latinos comprised almost half (47 percent) of all cases in federal courts for drug offenses.”

The Obama administration denounced this “war on drugs” approach, stating that incarcerating through the crisis is “counterproductive, inefficient, and costly.” This administration believed in evidence-based policies that emphasized early intervention and accessibility to treatment as dictated by neuroscience research on addiction. This administration passed the Fair Sentencing Act, which lowered the average sentence of a drug offender from 106 months to 71 months. Historically, evidence-based policies that deemphasize incarceration reduce prison time, while stringent drug policies increase imprisonment drastically.

Policy Problem

A. Stakeholders

According to the National Institute on Drug Abuse, research shows that approximately 65% of the US prison population actively has a Substance Use Disorder (SUD). Policies surrounding the treatment and justice related to substance-abuse in the United States especially affect 1) individuals released after a drug-related conviction 2) individuals currently incarcerated due to substance abuse 3) individuals in alternate substance abuse treatment programs like drug courts 4) individuals currently in the system, going through the process of either being incarcerated or being a part of alternative programs. In addition, since the Juvenile Criminal Justice System of the United States is substantially influenced by the Adult Criminal Justice System in terms of policies for substance abuse and treatment, these policies directly affect how the juvenile population of the United States dealing with substance abuse is treated as well. Substance Abuse policies in the criminal justice system drive rehabilitation and recidivism for substance abuse offenders, which in turn affects everyone that the offender comes in contact with after release, whether that be family or the community around them. In recent years, the racial and ethnic disparities in the allocation of substance abuse treatment in the Criminal Justice System have particularly negatively impacted  Black, Latino and several other racial and ethnic minority groups in the United States. 

B. Risks of Indifference

To sustain the effectiveness of the treatment, it is essential for the treatment to follow through after release. A large number of incarcerated individuals who need this treatment do not even receive it behind bars, much less have it continued after release. For those who do receive it, “treatment provided is inadequate.”. Those suffering with Opioid Use Disorders particularly face similar challenges. While in prison, untreated inmates eventually gain a reduced tolerance to opioids. However, due to inadequate follow-up treatment after release, many inmates return to similar doses of opioids as before incarceration, increasing their own chances of overdose. Therefore, one of the challenges that the US Criminal Justice System currently faces is an insufficient system of “pre-release and/or post release follow up” for the treatment of incarcerated individuals with SUDs. In 2020, the National Academy of Sciences report on Medications for Opioid Use Disorder collected that merely 5% of inmates with opioid use disorder gain access to medication treatment. Even though there are programs and policies in place to offer treatment, without effective policies to reinforce treatment, not only are the resources allocated towards SUD treatment for prisoners not being efficiently allocated but these individuals are not being successfully rehabilitated, posing potential threats to both themselves and the community in which they are to be released. 

An alternative for Substance Abuse offenders in the United States are Drug Courts. Drug Courts are “resource intensive”  rehabilitative programs generally only reserved for non-violent drug offenders who are not benefited from a less intensive supervision. However, Drug Courts, as well, are not effective if not followed by drug court monitoring. Those who benefit from drug courts are often those who complete the program and graduate, excluding those who do not complete the program. In addition, despite there being programs such as drug courts, they do not eliminate the offender’s chances of being incarcerated after being in the program. Even though offenders might receive reduced sentences after completing the program, many are still incarcerated which, in some cases, can even negate the progress conducted through drug courts. 

According to the California Department of Corrections and Rehabilitation, the majority of inmates incarcerated for drug offenses conducted low-level offenses such as drug possession. Given that incarceration is an ineffective strategy for drug offenders, the incarceration of such individuals and the threat that their recidivism might pose to the society remains yet another significant factor to be considered. 

Offenders with mental illness in the United States recidivate similarly as undifferentiated offenders; However, inmates with both mental illness and substance abuse disorders in the US recidivate at higher rates than others. Although the drug court model in the United States has been proven successful in comparison to incarceration, individuals with mental health illnesses in drug courts are at an advantage. Treatment in drug courts may tend to focus on drug addiction “neglecting co-occuring mental health problems.” In addition to the fact that seven US states — Wyoming, Nebraska, South Dakota, North Dakota, Rhode Island, Connecticut, and New Jersey —  do not have Adult Mental Health Treatment Courts, there is a need for drug courts across all 50 states to acknowledge the mental health component of substance abuse and provide tailored treatment for those who suffer from both. 

C. Nonpartisan Reasoning

After former Democratic President Obama’s Fair Sentencing Act, in 2021, former Republican President Donald Trump declared a nationwide public health emergency over the increase in overdose deaths, declaring that in order to prevent drug addiction and convictions caused by substance abuse, it is necessary to prevent people from abusing drugs. During a recent survey by the Pew Research Center , regardless of their political party or beliefs, the majority of individuals responded in agreement “that current drug laws should be less strict”. In addition, 83 percent of the respondents, regardless of political parties, favored emphasizing rehabilitation over incarceration for non-violent drug crimes. Given that the major provisions of the SUPPORT Act, signed into law in 2018, ended with the Fiscal Year 2023, at the beginning of 2023, the House Energy and Commerce Subcommittee on Health took into consideration 28 pieces of legislation that related to substance use disorder including The Due Process Continuity of Care Act , The Residential Substance Use Disorder Treatment Act and The Reentry Act of 2023, all of which directly affect incarcerated individuals. However Congress is yet to act upon any of those 28 introduced bills.

Policy Options

For those struggling with substance abuse, incarceration is not an effective way of overcoming addiction or deterring criminal recidivism. Research has shown that one of the most effective methods of reducing drug abuse and recidivism is the creation of a comprehensive drug abuse treatment.

Comprehensive treatment consists of five key features: (1) a qualified staff, (2) the aid of correctional authorities, (3) adequate resources, (4) a therapy course that covers lifestyle change beyond substance issues, and (5) continued care after release from prison. Without these features, a treatment is not likely to reduce recidivism. Having a caring staff makes offenders feel part of a community and as though they matter to people, motivating them to fight their addiction. Additionally, having the backing of correctional authorities will help reinforce the positive behaviors of offenders. Providing offenders with adequate resources and therapy that focuses on changing their overall lifestyle gives them the tools to reshape their lives absent of drugs. Offenders who continue treatment after prison have the best outcomes since they have the ability to receive help with problems that occur after release. In prison, there are fewer opportunities to find and take drugs. When released, offenders are dealt with a new environment and situations that could lead to relapse, whether it be their community or peers who sell or use drugs. A program that continues drug treatment creates an easier way for offenders to deal with these challenges. 

Drug courts, which incorporate treatment in prison and treatment after release, are also effective. Drug courts are a unique collaboration between offenders, the judiciary, and the broader community. This collaboration connects offenders to law enforcement and treatment groups that can help address their housing and job training needs after release from prison. Treatment in drug courts is a combination of judicial monitoring, including random drug tests, and treatment after release being imposed as a condition of probation. Since they operate on a local level, drug courts can provide supervised programs that keep offenders accountable. Drug courts offer a strong incentive to complete the program; completion results in dismissal of charges, reduced sentences, or lesser penalties. Adequately implemented drug courts in the United States have had a significant effect on recidivism. A study funded by the Department of Justice found that 84 percent of drug court graduates had yet to be rearrested within the first year after graduation and 72.5 percent after two years. 

Another effective treatment option is therapeutic communities. Drug treatments are much more influential when the offender takes part in a therapeutic process, learning skills that can help them avoid recidivism. Therapeutic communities offer a unique balance of rewards and sanctions, encouraging positive behavior and participation in treatment. These communities enforce positive behavior through “social reinforcers,” who recognize the progress and effort of offenders, motivating them to continue. Using consistent sanctions, becoming more severe as offender behavior worsens, helps offenders understand what behavior is best for their recovery. 

Therapeutic communities also integrate mental health treatment. Studies show a correlation between mental health issues and substance abuse, with the offender population having high rates of mental health problems. Research has shown that implementing a wide range of rehabilitation programs that focus on “milder” punishment alternatives is better at solving substance abuse compared to imprisonment and longer prison sentences. This can include therapy (of different forms) and reentry programs instead of harsh punishments. These programs have a much more positive impact and are a better alternative to prolonged jail time. Through these programs and ways, we can help reduce recidivism and redefine the criminal justice system and its importance. 

Therapy, as mentioned, is the most effective option that can successfully combat substance abuse within the justice system. According to the research paper, Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety, motivational and cognitive therapy is one of the best ways to combat this issue. Cognitive therapy is essential as it focuses on teaching and fostering healthy behaviors towards drugs and addictions, such as a change in decision-making skills and coping mechanisms, as well as creating a shift in attitude, which is more effective in reducing the recurring return to substances. 

Motivational therapy is also fundamental as it helps motivate the patients to not participate in the same abusive behavior and, in the long run, helps the patients have the same attitude even after the treatment has finished.    

Another way that has indicated achieving a substantial change within the recurring abuse problem is proper medical treatment with board-certified medicines. The use of medical treatments paired with counseling has a higher advantage to combat substance abuse in a much better way than just counseling. According to the paper, “Medications such as methadone, buprenorphine, and naltrexone are beneficial for the treatment of heroin addiction and naltrexone and topiramate for the treatment of alcoholism.” Thus, the usage of this medication under supervision can help the offenders achieve a better understanding and attitude towards substance abuse. When the theory was tested, it demonstrated that the “patients who received methadone plus counseling were significantly less likely to use heroin or engage in criminal activity than those who received only counseling.” Therefore, implementing this on a larger scale can benefit the justice system more extensively. 

Another essential way to reduce recurring substance abuse is to utilize organizations and previous offenders. By using this method, abusers are able to combat this problem successfully and create a better attitude towards substance abuse in the long run. Organizations such as Alcoholics Anonymous and Narcotics Anonymous are immensely valuable and helpful when it comes to reducing substance abuse as they can help provide support groups, different programs, and resources that can help fight alcoholism and drug abuse. Alcoholics Anonymous facilitates support for people who are suffering from alcoholism through their free fellowships and programs, and implementing a similar approach in the justice system can help create a better and a more rehabilitative environment. It is also vital to show the addicts positive role models who have successfully gotten away from their substance abuse problem while living within the justice system, as that helps create a more positive attitude toward their treatment.

According to the same paper, another way to help offenders receive help in a way that is curated to their requirements and their issues is through intervention. There are multiple times during the incarceration process when criminal justice professionals can intervene and help individuals who are suffering from a substance problem. For example, during prosecution, court officials can intervene through diversion programs, drug courts, and community-based treatment (Table with intervention opportunities).  

Discontinued treatment poses a large issue to why people can never get out of the substance abuse cycle. When the said offenders are within the correctional facilities, they can receive some form of treatment. Still, when they are, for example, released from the said facilities, the treatments are discontinued for various reasons, which eventually leads to them relapsing. Therefore, it is highly crucial that the justice system focuses on creating clinics or other ways that can help people to continue receiving some form of treatment so that they do not relapse.  

A key point that is beneficial to note is the neurobiology and neuroscience of substance abuse. This topic is significant for understanding why people behave the way they do, and by understanding them better, we can create better rehabilitation circumstances. Many substance abuse offenders usually suffer from mental health diseases; understanding how drugs affect people’s brains and, in turn, their actions, especially in the criminal context, can help create better programs and ways to achieve an addiction-free and a space without addiction-motivated crime. 

The paper also highlights the cost-effectiveness of these programs and continued treatment. There is a substantial economic advantage for the government as they can use the money to fund other vital issues, such as facilitating continued treatments for patients. By addressing the mental health problems of offenders, such as depression and anxiety, the treatment solves a possible root cause of drug addiction.

Conclusion

In the criminal justice system, tackling the challenge of substance abuse requires a dynamic approach. Instead of traditional measures, there is a need for a shift towards more well-crafted rehabilitation strategies and personal development-specific tactics such as therapeutic communities regarding post-release interventions. For the treatment of alcohol addiction, therapy combined with routine support from organizations such as Alcoholics Anonymous is an effective way to intervene. The most efficacious way to curtail the repetition of addictive behaviors is through a well-organized comprehensive plan. Additionally, possessing a deep understanding of the neurobiology of drug abuse and prioritizing mental health is vital for the progress of eradicating the prevalence of substance abuse.

Acknowledgment

The Institute for Youth in Policy wishes to acknowledge Michelle Liou, Joy Park, Nolan Ezzet and other contributors for developing and maintaining the Policy Department within the Institute.

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