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Linda Rosenberg

President & CEO, National Council for Mental Wellbeing

A Washington Post Story Raises as Many Questions as It Answers About the Justice System and Addiction

October 28, 2015 | Addiction | Substance Use | Comments
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A recent Washington Post article got me thinking about how our criminal justice system deals with addictions and how even the best of intentions can have unintended consequences.

The case the Post sets out is that California voters unknowingly made a bad bargain when they voted to reform the way the courts treat people with addictions; less jail time, but also less leverage to get them to go into treatment programs.

But like so many substance use issues, it turns out to be more complicated. We recently solicited the views of three expert colleagues, who all commend California for keeping more people out of jail, but who had other serious concerns. Here’s what they had to say:

In at least one way, the article neglects an important point. California and other states have to be smarter about finding ways to get people into treatment before they crash into the criminal justice system, says Paul N. Samuels, president and director of the Legal Action Center, who specializes in addiction issues at the public-interest law firm.

Even if California could get more people into treatment, like most states, not enough is spent on treating them, says Tom Renfree, deputy director for substance use disorder services at the County Behavioral Health Directors Association in California. So it’s not clear California could adequately handle all the people who need treatment.

Finally, there are alternatives to threatening people with jail. More states are considering letting people petition the courts to put addicted family members into treatment programs involuntarily. They can already do so for family members with mental illness who pose a threat to themselves or others, says Dr. Andrew Kolodny, chief medical officer at the nonprofit Phoenix House, the nation’s leading provider of alcohol and drug abuse treatment.

This discussion isn’t just behavioral health inside baseball. There are literally thousands of lives and billions of dollars at stake just in California and implications for the rest of the nation.

Here’s the background: In November, California voters overwhelmingly passed Proposition 47 with high hopes of keeping nonviolent offenders convicted of possession out of jail, where they get inadequate treatment resulting in cycles of relapse and incarceration.

“No more drug war,” crowds chanted on election night, holding signs that said “Justice Not Jail” and “End Mass Incarceration.”

By reclassifying drug possession as a misdemeanor, Proposition 47 means people face only a fine, probation and release back onto the street. But without the threat of jail, there was an unintended consequence: People with addictions began saying no to treatment programs as an alternative.

And, the Post reported, some have already been arrested over and over again and continually released. The frustrated police call them “frequent flyers.”

Many states, even red ones, are moving toward keeping people out of jail because, for one, it’s hugely expensive, says Mr. Samuels of the Legal Action Center. He notes California had been sued for prison overcrowding before Proposition 47 and at one point was spending more on prisons than on its vaunted higher education system.

But they’re not putting the thought and the resources into what comes next. Mr. Samuels and others compare it to the deinstitutionalization of patients that began in the 1960s, when everyone agreed giant mental hospitals weren’t helping many patients (a movement driven by cost considerations as well as concern for patients.) But then states merely dumped many of these patients on the streets, where they wound up homeless or in jail.

Mr. Samuels concedes that some in California are choosing to dodge treatment now that Proposition 47 no longer holds jail time over their heads. But, he says, evidence shows many will still seek treatment.

Then there’s the question of treatment capacity. California hasn’t been a big spender on addiction treatment, says Mr. Renfree of the County Behavioral Health Directors Association in California.

He gives the state “a D minus” historically – “it’s always been underfunded” – but a “B” now.

The reasons: The Affordable Care Act means more people can afford treatment through insurance and the expansion of Medicaid in the state means more money for drug treatment. Also, Proposition 47 requires the state to spend two-thirds of what it saves from reducing prison overcrowding on mental health and substance use treatment.

The money won’t start flowing until next year, so the lag means a hole in funds available for treatment programs now. Still, Mr. Renfree says the law is a big step in the right direction.

With a felony conviction on their record and time spent in prison, most drug offenders don’t stand a chance of getting a job or decent housing. The recidivism rate for California prisons is 70 percent, says Mr. Renfree.

“A felony,” he says, “is the kiss of death.”

The Post article followed one “frequent flier” through a depressing months-long litany of arrests and releases – somebody who clearly needs someone to intervene in this destructive cycle.

“It’s a lot easier to get somebody who’s mentally ill into treatment than an addict – you just have to show they’re a danger to themselves or others,” says Dr. Kolodny of Phoenix House.

Which raises the question: Why shouldn’t family members, such as a worried mother, be able to do this for their children whose addiction makes them a danger to themselves?

More than three dozen states permit family members to do this, according to the medical news website Medscape. But not California. Several more states are considering this approach, says Dr. Kolodny, who favors it himself.

As for Proposition 47, it reminds him of moving people out of huge hospitals supposedly to community-based treatment programs in the 1960s. And that worries him a lot.

“These kinds of issues are very complicated. We have to ask ourselves,” he says, “are we sure we’re thinking this through?”

I would add another issue to think through. Science has taught us that addictions are chronic medical conditions, but most addiction treatment is based on an acute model – 30 days of residential with only a fortunate few getting sustained community treatment and support. So, add creating an addiction treatment continuum to the mix.

We’re in the midst of one of the country’s periodic efforts to reform the criminal justice system, which President Obama recently called “broken” in pushing for changes.

I hope this time voters and policy makers carefully consider the complexity of addictions in reforming the justice system. Too often we want simple solutions to highly complex problems and we want those solutions to be cheap. This time we’re determined not to let addictions get lost in ignorance and politics.

Please tell me what you think below. I always look forward to hearing from you. Or Tweet at me (@Linda_Rosenberg).