3

The Role of Law Enforcement, Arrest, and Prosecution

This panel’s speakers focused on the earliest stages of the individual’s encounter with the criminal justice system: interaction with law enforcement officials, getting arrested, and attending court proceedings. Session moderator Mary Lou Leary, formerly of the Office of National Drug Control Policy, noted that drug policies affect communities of color across every stage of the criminal justice system. Speakers were asked to discuss how race affects all aspects and stages of the criminal justice system, and the intersection of drug policies and race. Following the panel presentations, Leary moderated a discussion with speakers and panelists.

RACE AND INCARCERATION

Josiah “Jody” Rich, of the Center for Health and Justice Transformation (formerly the Center for Prisoner Health and Human Rights) at the Miriam Hospital and Brown University in Rhode Island, began his career treating patients living with HIV/AIDS, including individuals in the prison system. This led to a realization that many individuals experiencing imprisonment were also dealing with untreated addictions and/or mental illness. Other chronic diseases, including cancer and hypertension, were also prevalent in this population and were also more advanced when compared to the nonincarcerated population. At the same time, there is very little access to health care in the communities that individuals experiencing incarceration are from.

Rich also noted that in the United States, “We overincarcerate.” In other words, incarceration is often the first tool that is considered and used.

His opinion is, “The vast majority of them [individuals living imprisoned] do not need to be locked up.” Further, many other tools can be used with the population of individuals experiencing incarceration. “What is the purpose of incarceration?” Rich asked. He believes that while it is a form of behavioral intervention, incarceration is also about punishment and the intention for this punishment to serve as a deterrent for other people.

In contrast, Rich described the correctional system in Norway. The goal of imprisonment in Norway, he said, is to return the individual to the community, where they can be a good neighbor to others. Correctional officers are trained more like social workers; each officer has two prisoners that they meet with for 15 minutes every day. This system of “dynamic security” involves the creation of a supportive relationship between the officer and the prisoner. Goals for the incarcerated individual are discussed. Comparing the American correctional system to Norway’s correctional system, Rich stated that in the United States, it is about racial and economic disparities. He said, “There’s never been a society that incarcerated this much of their populace.” Additionally, many if not most of the individuals who are incarcerated also have an addictive disorder. Incarceration, he explained, is not going to work successfully to address addictive disorders, adding “Punishment does not work in addiction.” He also said it is costing society a huge amount of money, especially given the magnitude of the number of people who live with substance use disorders.

It is clear that there are very high rates of overdose deaths among individuals just released from incarceration, Rich explained. In Rhode Island, the use of an effective treatment called MAT (medication-assisted treatment for opioid use disorder) lowered the death rate from overdoses by 60 percent. A key piece is connecting individuals leaving incarceration with treatment on the outside in their communities.

In closing, Rich offered Portugal as an example of a country that has successfully dealt with illicit drugs. Prior to the decision to decriminalize the personal use of and possession of illicit drugs in 2001 (Hughes and Stevens, 2010), Portugal was among the worst nations in Europe in terms of drug use, overincarceration, and overdose rates. After the decriminalization decision, overall drug use decreased. Police no longer arrest individuals for the use or possession of drugs. There is a lesson here for the United States to study and replicate, Rich concluded.

DRUG USE AND OVERDOSE DEATHS

Scott Nolen, director of the addiction and health equity program at the Open Society Institute in Baltimore, Maryland, began his presentation by noting that his comments are based on “the fact that addiction sits in a space with all the other types of issues that people may have—social determinants of health, racism, poverty, housing—you name it.”

Nolen noted the dramatic increase in overdose deaths in the city of Baltimore from about 800 in 2012 to more than 2,000 in 2017. The reason, he said, was fentanyl. In particular, cocaine or heroin that has been cut with fentanyl has led to an increase in overdose deaths.

Neither the general public nor police officers have a nuanced understanding of drug use. Nolen explained that there is a continuum of drug use, from social or recreational use to chronic use. It is chronic use that should be the focus of our attention, he said. This lack of understanding of the continuum of drug use leads to the “tough love” policies that are based on the belief that if only a person would stop using drugs, then their lives would stabilize and turn around. Rather, stated Nolen, what is needed is to first stabilize the person’s life. Then the drug use can be treated. For example, an individual experiencing homelessness is more concerned about where he or she will be sleeping that night than addressing their heroin problem. Therefore, the focus should be on stabilizing housing, family relationships, and treating chronic medical conditions first.

Nolen pointed out that the United States is the biggest incarcerator in the world. During the 10 years between 1985 and 1995, one new prison opened every week, he said. Nolen believes the construction of all these new prisons was intentional; the intention was to fill them. Thus, any discussion of solutions to opioid use must be rooted in a recognition of these historical missteps.

More specifically, Nolen explained that many African Americans believe that treatment options that now exist for opioid use are related to the fact that White people are experiencing opioid dependence. In contrast, there were never treatment options for crack cocaine use, because it was used primarily by Black people. “I don’t trust what’s going on right now because of what happened to my community over and over again,” he said, explaining how the community views treatment options. “People of color have always been affected by overdose,” Nolen said. Although overdose rates are increasing for White people, absolute numbers indicate that overdoses are occurring mostly among people of color.

Harm reduction is an essential component of any expansion of treatment, he said. Unfortunately, in Maryland, legislation that includes harm reduction also typically includes punitive measures such as increasing penalties for the distribution of drugs, Nolen said, adding that this functions to nullify any positive effects of harm reduction.

Drug Treatment Courts, Part I

Nolen shared his thoughts about the role of drug courts as a way of addressing addiction, explaining that they are very time intensive and provide a great deal of oversight for the individual. Most people do not need that level of oversight or intrusion if they have the right support

system, Nolen said. A second challenge is that the judge who is administering the drug court typically does not have a background in public health. Addiction should be seen as a health issue rather than a criminal issue, he noted.

Good Samaritan Laws

A Good Samaritan law allows a bystander or friend to call emergency services in the case of a drug overdose; it is so named because the point is that the individual who makes the call—often an individual who is also using or carrying drugs—cannot be prosecuted for drug use or possession of paraphernalia. This law took years to establish in Maryland, Nolen said. Unfortunately, after 3 or 4 years of the law being in place, he explained, local officials in Baltimore started treating overdose scenes as homicides. Consequently, the word got out that detectives will come in to investigate, thereby defeating the purpose of Good Samaritan laws. This reinforces the stigma and the lack of respect experienced in these situations.

A second example of the disconnection between public health and the criminal justice system occurred in Maryland a couple of years ago, said Nolan. In correctional facilities within the state, officials grew concerned about Suboxone film¹ being smuggled into the facilities inside of books. In response, the staff at the correctional facilities decided to stop allowing all books into the facility.

In conclusion, Nolen emphasized that the fertile ground right now is at the local level, with the use of innovative public health-focused policies. This is particularly true for mental health issues. What is needed, he said, are two things: greater availability of Naloxone² and Suboxone and syringe exchange. In particular, syringe exchange is important because it includes a connection with another person. Overdoses, he said, are a “disease of disconnection.” Similarly, there is a need to provide safe spaces for individuals using drugs where they can exist without fear.

LAW ENFORCEMENT AND DRUG USE

Leo Beletsky, of the Northwestern University School of Law, discussed the role of law enforcement as a social determinant of health, and how this affects the health of people of color, using the examples of syringe access and drug-induced homicide prosecutions.

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¹ Suboxone (brand name) is a prescription medication that is often used in medication-assisted treatment for opioid use disorder. It is similar to a fruit roll-up that is placed on the tongue, where it dissolves. Use of Suboxone lowers the risk of a fatal overdose.

² Naloxone is a medicine that rapidly reverses an opioid overdose. Making this available more widely will reduce overdose deaths.

Beletsky shared his perspective on the importance of language in this discussion. For example, he said, “We tend to use antiquated, stigmatizing language such as ‘abuse’ and ‘abuser’ in discussions relating to substance use.” We cannot change policy and practice, he explained, without changing the narratives and the language that is used to discuss substance use, addiction, and broader drug policies.

There is a distinction between the terms dependence and addiction, Beletsky explained. Dependence is “a natural state of people depending on drugs for their health,” such as insulin dependence. It is not, he emphasized, a synonym for addiction. Another term to avoid, Beletsky pointed out, is marijuana. This is because of the early laws criminalizing this drug were expressly racist. He prefers the term cannabis.

While noting that there is a continuum of harm that results from drug use, Beletsky also said that legalization is “a strange way of framing” the goals of reform. Some drugs are fully legal and regulated, while others have become a province of the criminal justice system.

One major inequity between people of color and White people is the number of fatal overdoses. In many jurisdictions, fatal overdoses disproportionately affect people of color, Beletsky said, and Native Americans, in particular, have high rates when compared to White people. This has led to fatal overdoses being seen as only a problem in communities of color. He also pointed out that there are major racial disparities for infectious diseases such as HIV and hepatitis between people of color and White people.

Beletsky believes that these racial inequities are attributable, in part, to differential policing at the street level. For example, the New York Times found that traffic encounters between police and motorists of color are far more frequent than police encounters with White motorists (LaFraniere and Lehren, 2015). Another example can be seen in New York State’s implementation of cannabis decriminalization. Beletsky explained that even though decriminalization has changed the actual number of encounters between police and people of color, the disparity of police contact with people of color increased after legalization.

Ongoing aggressive drug law enforcement and its disproportionate effect on people of color have special relevance to current HIV and overdose prevention measures. Police activity around syringe exchange programs offers an example of how racial disparities in police encounters can translate into health disparities. One case study conducted in Baltimore and funded by the Open Society Foundations found that people of color were far more likely than White people to be arrested en route to or from the location of the syringe exchange program. This means that people of color are less likely to access these services, whereby police activity acts as a structural barrier to prevention services.

A final example highlighted by Beletsky is the racial disparity in how drug-induced homicides are prosecuted. The overall number of

drug-induced homicide prosecutions has risen dramatically in the last decade (Ghandnoosh and Anderson, 2017). However, about half of those prosecutions are situations where the dealer is a person from a community of color and the deceased victim is a White person. Beletsky pointed out that this plays into the ongoing narrative of people of color, especially African Americans, wreaking havoc on White communities. When looking at sentencing for these crimes, Beletsky went on to explain, there is a 4-year difference in sentencing for people of color (almost 9 years) and sentencing for White people (5 years).

These prosecutions also affect how Good Samaritan laws are used. Beletsky said that many studies indicate that the main reason for not intervening during an overdose episode is because people who witness an overdose are afraid of the legal consequences of intervening. Law enforcement involvement in a drug overdose episode means that drug-induced homicide charges can be filed against the individual who tried to intervene (NASEM, 2017).

The legacy of harm from punitive drug laws and their enforcement also affects efforts to deflect and divert people who use drugs to treatment and supportive services, Beletsky explained. Some jurisdictions have created an amnesty approach that when an individual using drugs approaches a police station, they can receive help in finding treatment. This can help fill a gap that exists for many communities in accessing high-quality treatment; most of these jurisdictions are disproportionately in White communities. Beletsky noted that this approach is unlikely to benefit communities of color because these communities “are so thoroughly traumatized by police interactions that they probably would never go to a police station to seek help for their addiction.”

Beletsky concluded by saying, “Substance use and especially problematic substance use is one of the key civil rights issues of our time” because of how this has systematically disenfranchised people of color. This, in turn, translates into health disparities.

DISCUSSION

A workshop participant asked about the privatization of jails and prisons and how these institutions are often housed in rural areas. In rural areas, this can serve as a local economic engine, he noted. In response, Nolen said that he grew up in a rural county in Arkansas and this is a major issue for rural areas. There is a long history of underinvestment in poor rural communities, particularly those communities primarily made up of people of color.

Another participant highlighted his views on how law enforcement is changing, owing to what he called the “overdose epidemic.” There is more

of an effort to put naloxone into the hands of law enforcement officials, he said, and he hopes that these programs and initiatives will expand to have more of an effect on communities of color.

Nolen responded that the way the system is currently set up, individuals go through the criminal justice system to get access to treatment. “It just shouldn’t be this way,” he said. This can lead to a revolving door system, where people get arrested and get sent back to the street before they can even make it to court.

Beletsky explained that from his perspective as a supporter of harm reduction models, the harm reduction from policing also needs to be considered. The end result, he said, must be a reduction in the role of policing and criminal justice in the lives of people of color.

Rich added that treatment for substance use disorder cannot be effective without access to needed medications. So a simple focus on inpatient treatment is likely to be unsuccessful without the medications. He estimated a 90 percent relapse rate. So although the law did increase funding for inpatient treatment, it is unlikely to be successful.

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