Addiction and Incarceration: Mainstream Stop-Gaps vs. Breaking the Cycle

By Derek Ren

Background and Problem: Addiction and Incarceration 

Over the past 40 years, the number of people in U.S. prisons has increased by more than 600% to 2.3 million people. 65% of the incarcerated population – or 1.5 million people – meet the DSM-IV medical criteria for substance abuse or addiction, but only 11% – generally those with more wealth and power, but not necessarily with less “criminal” offenses – receive any support or treatment behind bars. Much of the increase in the prisoner census is a result of the “War on Drugs” and the United States’ criminalization of and lack of treatment or support for addiction and mental illness. Prisons and jails across the nation detain large numbers of individuals with substance abuse disability, which not only increase the prevalence of infectious diseases, but also the risk of mortality after prison release and repeat interactions with the criminal justice system. 

The population disproportionately likely to be incarcerated with an untreated substance abuse disability is a disabled, low-income marginalized minority and who is ineligible for or unable to access most federal health services like Medicaid. If detained, members of this population are highly likely to be “low-risk” or “moderate-risk” defendants – arrested for minor crimes such as vagrancy, drinking in public, disorderly conduct, or other such behaviors or actions that “disturb the peace” – while being the least likely to be able to afford bail. Those unable to pay bail are jailed prior to their court hearing; nationally, about 47 percent of felony defendants with bonds remain jailed before their cases are heard because they cannot make bail. Detaining low- and moderate-risk defendants, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition; when held for 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. These few days in jail pretrial can change the course of one’s life – not only in the inherent violence experienced, but in the loss of a job for missing shifts, in the lack of time and ability to see family and community – and thus increase the likelihood and severity of a sentence of incarceration, reduce future economic prospects, promote future interactions with the law, and worsen the health of those who enter. Jail is a gateway to more lasting involvement in the criminal justice system with considerable costs.

For the recently released, federal standards used by the Health Resources and Services Administration (HRSA) and United States Department of Housing and Urban Development (HUD) consider correctional facility confinement (i.e., jail or prison) as being “housed”; thus, upon community reentry, the recently incarcerated are generally not eligible for many housing subsidies because they do not meet the definition of chronic homelessness. As a result, the disproportionately high number of those who enter jails from minority communities – or who suffer from disability, addiction, and homelessness – tend to find themselves trapped in a cycle of addiction, incarceration, disability, and homelessness. These costs are also borne by their families and communities, depressing economies, contributing to increased surveillance, and straining familial and social bonds. 

Moreover, taking a step back, given the overlapping systems of oppression that the marginalized face on a daily basis, substance abuse and addiction are understandable reactions to coping with trauma. The pervasiveness of environmental and medical racism, imperialism, colonialism and war, lack of reliable access to safe and clean water, lack of reliable access to healthy food, unsafe and undignified work, and effects of poverty among others are constantly traumatizing experiences. The trauma‐to‐prison pipeline posits that because low‐income marginalized populations are more likely to experience multiple and intersecting forms of trauma, they are more likely to exhibit trauma reactions – such as addiction – and are more likely to be monitored and punished for such reactions. Trauma is a cause and consequence of addiction and vice-versa, and addiction (which is a disability experience – and disabled people are significantly overrepresented in prisons and jails) can be singled out for criminalization. 

Addiction, criminalization, incarceration, and trauma (and homelessness and more general disability) exist in a perpetuating cycle in our current society. In order to address the issue of high rates of substance abuse and addiction in individuals who interact with the criminal justice system, the experience and infliction of trauma must also be addressed. 

Mainstream Stop-Gap: Improving Pretrial Systems and Diverting “Patients” Away From Jails and Prisons and Towards Medical Treatment 

The most progressive of the policy solutions that have existed or currently exist on the Congressional floor is (a) the abolition or reform of current pretrial systems, and (b) the creation of pretrial policies and programs that would support initiatives to divert potential “patients” to medical facilities and treatment centers instead of jail or prison. The intention is to treat the epidemic of substance abuse in the incarcerated population like a public health issue rather than a criminal justice issue and thus would reduce the overall issues of incarceration and improve public health. Prison-reform advocacy groups, such as the American Civil Liberties Union (ACLU), support the passage of the Pretrial Integrity and Safety Act (2018) as a viable next step forward given the current political ecosystem.

The idea is that increasing access to treatment for offenders with substance use disability provides a unique opportunity to decrease the rate of incarceration and reduce associated criminal behavior. Diverting offenders with substance-use disorders to treatment programs is both more successful and more cost-effective than increased corrective actions like longer incarceration periods when looking to reduce the overall epidemic of incarceration and improve public health. Reducing the overlap between incarceration and substance abuse should primarily aim to deter detainees with substance-abuse disorder from prison and towards treatment – in part, by eliminating the money-bail system in favor of a more rehabilitation-focused pretrial system with better substance abuse and mental health screening. This would be done by shifting the default away from cash bail and pretrial detention toward less-restrictive pretrial alternatives such as supervised release, electronic monitoring, and enhanced pretrial services. The pretrial system, implemented in D.C. in 2009, is usually suggested as an applicable case study in support of nationwide pretrial reform. 

Instead of requiring individuals to pay bail, D.C. Pretrial Services Agency conducts an assessment of the person’s needs and risks and makes a recommendation to a judge, in which that person will be released with specific requirements such as regular check-ins with pretrial officers and–where applicable–additional conditions such as drug testing and deferral to a drug court or halfway house. In the District of Columbia, approximately 90% of all persons arrested and charged with a crime are released to the community, either on personal recognizance–the pretrial release of a defendant from jail without bail–or with supervised release conditions, during the pendency of their criminal case. About two-thirds of defendants are released with terms that include drug testing, stay-away orders, or weekly phone or in-person reporting, while approximately 82.5% of subsequent releases were placed into a supervision program, 13% into a treatment program, and 4.5% were released on personal recognizance.

Despite more-limited evidence on the causal effects of providing pretrial services, the District of Columbia and some charitable bail organizations (e.g., The Bail Project and Bronx Freedom Fund) have used these services to apparently great effect. It is well-publicized that in the District of Columbia, pretrial misconduct rates are below the national average despite nearly all defendants being released without monetary conditions. Treatment is also more cost-effective: state correctional spending has increased to $50 billion annually, which is now the fastest-growing area of government spending after Medicaid; however, drug treatment can not only reduce substance-abuse by 40-60%, but also significantly reduce relapse and overdose death rates for just one-sixth of the cost of incarceration. For high-risk defendants as well as low-risk defendants, pretrial detention generates large net costs to defendants and society; less-restrictive alternatives can accomplish criminal justice objectives and should justify immediate nationwide implementation.

A commonly mentioned logistical weakness of the D.C. Pretrial system is the effectiveness of using screening when sorting defendants into pretrial detention or substance-abuse or mental health treatment. Of the 82.5% in the supervision program, more than two-thirds were recommended to receive additional assessment and screening for substance-use disorder or mental illness. The programs used for placement are unchanged and outdated since 2009, with placements into the Specialized Supervision Unit (SSU) representing 85‐90% of all treatment program placements and Drug Court – which accounts for less than 0.5% of all defendants subsequently released – as the least frequently used release program for defendants initially detained. 

The policy supplement that is then proposed is to expand national access and eligibility for healthcare. Individuals can then seek treatment themselves or pending referral from the pretrial officer. An applicable case study would be the expansion of the Affordable Care Act (ACA) in 2015, which included substance-use disorder services as an essential benefit and increased access to these services for the low-income individuals at highest risk of incarceration. The 2015 ACA expansion not only lowered national rates of substance-abuse, but also reduced rates of recidivism, violence, and property crime while yielding an estimated annual benefit of $2.9 – $5.1 billion in avoided crime.

Shifting the default away from pretrial detention and toward less-restrictive alternatives still depends on the ability of jurisdictions to place clear limits on which substance-involved individuals are appropriate candidates for pretrial detention rather than treatment. The intent is to design a system to both deter low- and medium-risk defendants on their own recognizance to treatment, and to detain high-risk defendants without bail. What defines a defendant as being high-risk to criminality, however, is largely left to the discretion of courts, which can lead to many defendants being detained for weeks while they await a hearing to challenge the preventive detention.

In 2017, the ACLU released a statement that supported the passage of the 2018 Pretrial Integrity and Safety Act, a bipartisan bill introduced by Sens. Kamala Harris (D-CA) and Rand Paul (R-KY) that provides resources to states looking to reform or remove their money bail systems: “The Pretrial Integrity and Safety Act would be a strong step toward countering the injustices of the money bail system and building safer communities, stronger families, and a more fair criminal justice system. While this bill is not perfect, its reforms would be progress towards fixing the systemic problems that have led to mass incarceration [and the proliferation of addiction and abuse].”

The True Solution: Tearing Down Carceral Structures

The policy solution above (and the way that it approaches the problem) is simply redefining who gets to be human, who gets to have access to healthcare, and who gets to be less exposed to the disabling conditions and experiences found in jails and prisons. Like criminalization, trauma and addiction remain some of the biggest risk factors in marginalized communities for who are targeted for psychiatrization. The issue, however, is that (a) defining who gets to be human in this way relies on dehumanizing other groups of people, and (b) carcerality and dehumanization and the infliction of trauma still exist in medical and psychiatric treatment structures, which will perpetuate this union of addiction and incarceration.

Most forms of treatment that are available in the U.S. are advocated for by people with power, wealth, privilege, and resources. A diversion to medical treatment is still carceral because it is coercive and manipulative and the medical industry as a whole still relies on the pathologization of the people who are receiving those services or treatments. The Pretrial Integrity and Safety Act specifically refers to an increase of assisted outpatient treatment, and if people do not voluntarily go to this treatment pending pretrial, they will be jailed. 

In the blogpost “What Makes Institutions Bad,” Mel Baggs speaks about the carcerality of psychiatric and medical institutions, and how the same tools of power and control are shared with that of prisons and jails. Although treatment facilities look more beautiful, are well-funded, lack bars or physical restraints, there still exists a level of violence – now intangible and indirect. Patients are under constant surveillance and are manipulated into acting, behaving, thinking, and feeling a “correct” way; deviations are met with dehumanization and a loss of control over treatment (what can be put in one’s body) and autonomy. 

With addiction specifically, the focus is solely on addiction treatment as a form of “rehabilitation.” The most progressive iteration of addressing addiction is harm reduction – which is a set of practical strategies aimed at reducing negative consequences associated with drug use such as providing clean needles, a safe place to live, and not pushing for the abrupt cessation of a substance dependence – does theoretically discourage (but do not eliminate) the punitive effects of pathologization and encourage the humanization of patients in their best form, but in reality still operate in institutions that are rooted in classist, racist, white supremacist, and settler oppression – and, overall, in ableism. As a result, they still use techniques of isolation, segregation, and control. 

In placing harm reduction practices under the current medical institutions and in connection with jails and prisons, those in power are still making a statement about whose body and minds are socially acceptable, are allowed to interact with the community and occupy space, are valuable, worthy, and desirable. Individuals who suffer from addiction (and drug use itself) are not inherently bad, but they can still experience individually or communally distressing experiences. In redefining who does and who does not deserve treatment of support by ignoring why or how addiction came to be (for example, through the effects of overlapping and multiple trauma), those in power are once again arbitrarily depriving individuals from needed and necessary resources.

Conclusion

Carcerality in any form is never a solution. What is truly needed to address the narrow issue of addiction in the incarcerated population is to recognize the spectrum of interdependence and disability as not inherently bad and not to be addressed with dehumanization and alienation. Policy solutions that wish to actually solve the high prevalence of addiction in the incarcerated population require (a) the abolition of the careral structures that pervade the United States – not just the pretrial system – including jails, prisons, medical and psychiatric institutions, so that marginalized individuals are not punished for experiencing and reacting to trauma, and (b) universal access to not only healthcare, but also housing, work, security, food, water, and related needs and supports for people and communities to survive and thrive.