I found a quote on the drug war that I want to share with you in closing. “The war against drugs provides politicians with something to say that offends nobody, requires them to do nothing difficult, allows them to postpone, perhaps indefinitely, the more urgent questions about the state of the nation’s schools, housing, employment opportunities for young black men, the condition to which drug addiction speaks as a symptom not a cause. They remain safe in the knowledge that they might as well be denouncing Satan and so they can direct the voices of prerecorded blame at metaphors and apparitions, wars and battles.” The war on drugs becomes a perfect war for people who would rather not fight. A war on which politicians who stand fearlessly on the side of the good, the true, and the beautiful need do nothing else but strike noble poses as protectors of the people and defenders of the public trust. We can’t let that continue.
—Judge Nancy Gertner, United States District Court, Boston, Massachusetts
IN THIS CHAPTER, I FOCUS on drug crime. The reason for discussing drug crime in a separate chapter is because of the many unique and far-reaching consequences drug use and drug crimes have for the U.S. criminal justice system, criminal justice policy, economic and social costs, and public health.
Drug control and the “War on Drugs” have played a fundamental role in U.S. criminal justice policy over the past forty years. The statistical evidence is clear: absent the War on Drugs, the incarceration boom would have been considerably smaller in scale (Caplow and Simon 1999) and U.S. prisons would be incarcerating nearly 500,000 fewer prison inmates today. Approximately 25 percent of all inmates incarcerated in state prisons are drug offenders (over 350,500 inmates) and 65 percent of federal prison inmates are drug offenders (over 136,300 federal inmates). Moreover, drugs contribute substantially to overall crime problems. Research (Caulkins, Rydell, Schwabe, and Chiesa 1997) estimates that 25 percent of crime in the United States is directly drug caused (not just drug related). Add drug-related crime to drug-caused crime and it is close to 50 percent of crimes, if not higher. A 1996 study found that between 50 and 80 percent of individuals arrested for a nondrug crime tested positive for drugs at the time of their arrest (Freeman 1996).
In 2014, somewhere between 60 and 80 percent of inmates in U.S. prisons and jails met the standard diagnostic criteria in the DSM-IV for alcohol and/or drug dependence or abuse. Because rehabilitative programming is essentially nonexistent in prisons and jails, at best 15 percent of those in need of substance abuse treatment receive any intervention, let alone treatment that realistically meets their needs. Extrapolating the numbers amounts to somewhere between 1,100,000 and 1,540,000 prison and jail inmates in need of substance abuse treatment. Between 165,000 and 231,000 receive any treatment while under correctional control.
The National Institute on Drug Abuse estimates that 5 million of the 7 million individuals under correctional control in the United States (prison, jail, probation, and parole) would benefit from substance abuse treatment (that is, 71 percent, a figure that has repeatedly been replicated as a reasonable estimate of the percent of the criminal justice population that is abusing, dependent, or addicted to substances).
Of the approximately 600,000 to 700,000 inmates released each year, approximately 400,000 of those in need of substance abuse treatment leave prison and jail untreated. Over a ten-year period, these are numbers rivaling the entire population of Los Angeles, the second-largest city in the United States, or the populations of Chicago and Indianapolis combined.
The connection between substance abuse and crime is well established, as is the failure of punishment to reduce the likelihood of substance use, let alone substitute for treatment. The cycle continues as addicted and substance-abusing individuals repeatedly reenter the justice system, causing the expenditure of police, jail, prosecutor, court, and corrections resources each time they cycle through.
There is a clear relationship between substance abuse and homelessness. The National Institute on Drug Abuse estimates that 31 percent of homeless Americans suffer from drug or alcohol abuse. Whether cause or effect, the result is that both addiction and homelessness are criminogenic circumstances (National Coalition for the Homeless 2009). The problems with addiction and homelessness are particularly acute among individuals released from prison and jail. Survey data from several states indicate that anywhere from 10 to 30 percent of individuals released from prison are homeless (Bureau of Justice Assistance 2006; Rodriguez and Brown 2003). When mental illness is added to the mix, the criminogenic situation becomes dramatically exacerbated.
Drug and alcohol abuse take a tremendous toll on U.S. public health and have extraordinary fiscal impacts such as lost productivity, physical and mental health consequences, and crime. The Substance Abuse and Mental Health Services Administration (SAMHSA), a federal agency that sponsors research and provides funding for direct services, reports that in 2009, there were nearly 2.3 million hospital emergency department visits for health issues associated with drug abuse. A recent study by the National Institutes of Health (Caldwell et al. 2013) estimates that the median cost of an emergency department visit is $1,233. Extrapolating the number of drug-related visits indicates a cost of those 2.3 million visits of around $2,835,900,000. It is also estimated that every year, there are approximately 30,000 drug-related deaths in the United States. The Johns Hopkins University estimates that the total economic impact of substance abuse, including lost productivity and health- and crime-related costs, exceeds $600 billion annually. By way of comparison, in 2011, the fifty states combined had budget expenditures from state general funds of $637 billion. Moreover, cancer costs society $172 billion annually, and diabetes costs $132 billion annually.
The National Center on Addiction and Substance Abuse at Columbia University reports that in 2005, state and federal governments combined spent over $467 billion on substance abuse and addiction. Only 1.9 percent of those funds were spent on treating and preventing addiction. As noted in their 2009 report “Shoveling It Up: The Impact of Substance Abuse on Federal, State and Local Budgets” (2):
A staggering 71.1 percent of total federal and state spending on the burden of addiction is in two areas: health and justice. Almost three-fifths (58.0 percent) of federal and state spending on the burden of substance abuse and addiction (74.1 percent of the federal burden) is in the area of health care where untreated addiction causes or contributes to over 70 other diseases requiring hospitalization. The second largest area of substance-related federal and state burden spending is the justice system (13.1 percent).
The title of the National Center’s report—“Shoveling It Up”—is a reflection of the nearly exclusive focus of federal and state spending on the consequences of substance abuse and addiction, rather than on treatment and prevention. As noted in the report, for every dollar that federal and state governments spend on prevention and treatment of substance abuse and addiction, they spend nearly $60 on shoveling up the consequences, primarily in terms of public health, crime, and criminal justice consequences. In 2005, federal and state governments spent over $207 billion on the health consequences of substance abuse and addiction. Nearly 10 percent of the federal budget, 16 percent of state budgets, and 9 percent of local budgets are spent on the consequences of addiction and substance abuse.
SAMHSA estimates that, in 2011, there were 21.6 million individuals in the United States in need of alcohol and/or drug treatment; 2.3 million received treatment at a specialty facility. Nearly 20 million individuals in need of treatment did not receive it. The primary reasons for not receiving treatment are lack of health care coverage and inability to pay for treatment out of pocket.
There appears to be clear agreement that the consequences of substance abuse and addiction have substantial fiscal impacts, particularly with regard to health care and criminal justice. Moreover, there is scientific consensus that substance abuse and addiction treatment is effective and cost-effective. The National Institute on Drug Abuse estimates that the return on investment of drug/alcohol treatment may exceed 12:1, meaning that for every dollar invested in treatment, there is an expected savings of $12 in drug-related health care and criminal justice costs.
The U.S. demand for drugs—some call it our insatiable appetite—has consequences that reach well beyond our own borders. That demand has resulted in one-half to two-thirds of the marijuana in the United States originating in Mexico; 95 percent of the cocaine that enters the United States travels through Mexico; Mexico is also a major supplier of heroin and methamphetamine to the United States. It is estimated that between $19 and $29 billion are being put into the coffers of the cartels annually by U.S. drug users. It is further estimated that the drug trade makes up approximately 10 percent of the Mexican economy. By way of comparison, the entire manufacturing sector of the U.S. economy constituted 11.7 percent of total gross domestic product in 2010.
In 2006, Filipe Calderon initiated a massive crackdown on the Mexican drug cartels. In the time since that initiative was launched, over 50,000 people have been killed in drug-related violence. Included in this figure are over 3,000 Mexican soldiers and police. Beginning in 2010, the targeting of the cartel-initiated violence began to shift to elected officials in Mexico, including nineteen sitting mayors and numerous other elected officials. Moreover, the Mexican government is experiencing substantial and widespread corruption and economic hardship, leading many observers (for example, Stratfor, a private firm that provides strategic intelligence on economic, security, and geopolitical affairs) to predict that Mexico is on a path to becoming a failed state. At the heart of all of this is the U.S. demand for illicit drugs.
U.S. DRUG CONTROL POLICY
In 1970, President Richard Nixon declared war on drugs in signing the Comprehensive Drug Abuse Prevention and Control Act. Nixon declared “the nation faces a major crisis in terms of the increasing use of drugs, particularly among our young people.” The next year Nixon ramped up the language: “Public enemy No. 1 in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.”
Nixon also brought drug control policy into the executive branch of the federal government by creating the Drug Enforcement Administration (DEA). Control of drug policy over time continued to be concentrated in the White House. The Reagan administration shifted focus from heroin as the drug of primary concern to cocaine. Obviously, the concern over cocaine was greatly fueled by the crack epidemic, which began in 1984 on the west coast of the United States and quickly spread east. The conversion of powder cocaine to crack was a business decision by the drug cartels. Faced with an oversupply of powder cocaine and consequently falling prices, the cartels launched crack, which was sold in smaller quantities, was easy to use, and was profitable. By 1987, crack was available essentially throughout the urban areas of the United States.
A significant amount of violence accompanied the introduction of crack in U.S. cities. While the conventional wisdom at the time largely viewed the violence as a pharmacological effect of crack, the reality was that it was due to the “negotiations” of street gangs for the new, profitable crack markets. That violence added an accelerated level of fear to the drug problem.
The Reagan administration took a hard, punitive line regarding drug control policy, implementing mandatory minimum sentences for federal drug law violations in 1986, ramping up the punishment for drug crimes in the Federal Sentencing Guidelines in 1987, taking a zero-tolerance stand on drug law violations, and positioning the drug problem as a national security threat. Nancy Reagan’s “Just Say No” campaign reinforced the idea that drug use and addiction are willful acts, presumably due to a weakness of character. The solution: just don’t do it. That logic fits well with a primarily punitive approach to drug use. Punishment should be an effective remedy to a conscious, willful decision.
The National Drug Abuse Act of 1988 created the Office of National Drug Control Policy (ONDCP). It was signed into law in 1988 by then-president Reagan. The War on Drugs metaphor was extended by the designation of the director of the ONDCP as the Drug Czar. The first Drug Czar, under President George H. W. Bush, was William Bennett, a conservative on a variety of social issues, who expanded the arsenal of the War on Drugs to the Department of Defense. The drug control efforts were further expanded under the Clinton administration, in part as a consequence of the Republican Contract with America initiative, as well as a shift in the political equity associated with crime control policies, that is, the Clinton administration’s tough on crime stance.
The aftermath of September 11, 2001, led to framing the War on Drugs as a part of the war on terror. As President George W. Bush put it: “If you quit drugs, you join the fight against terrorism.” The Bush administration dramatically expanded U.S. interdiction in Columbia and Afghanistan, aimed at reducing production of cocaine and heroin, and interdiction in Mexico (the Merida Initiative), targeting drug trafficking activities in Mexico, Central America, and parts of the Caribbean.
For most of its forty-plus-year existence, the bulk of the federal effort and the funding for the War on Drugs have focused on controlling supply. Trends in the budget for the Office of National Drug Control Policy show an increasing emphasis on supply reduction, compared to demand reduction. In 2002, 27 percent of the federal drug control budget was for drug treatment and 54 percent was for supply reduction (domestic law enforcement, interdiction, and international activities). By 2006, the treatment budget fell to 23 percent compared to the supply reduction increase to over 62 percent. In 2011, the drug treatment budget was at 25 percent, but supply control rose to 64 percent. The 2012 budget significantly increased allocations for treatment (34 percent) and supply control was reduced somewhat to 59 percent. The 2013 budget was quite similar (36 percent for treatment and 59 percent for supply control). In addition to that funding stream, asset forfeiture laws helped provide a built-in incentive to keep drug control efforts focused on supply reduction. Local law enforcement and prosecutors are able to lawfully retain assets seized in the course of drug arrests and prosecutions. These assets include money, property, and real estate, among other things, and they provide a significant, generally unaudited revenue stream to operating budgets
Over the past decade, the federal government has spent nearly $100 billion on efforts to control the supply of illegal drugs in the United States. The obvious question is whether and to what extent this approach has been successful.
There are two readily available metrics regarding the impact of the U.S. drug control strategy: the street-level cost of illicit drugs and usage rates of illicit drugs. The drug cost metric is a simple reflection of supply and demand. Assuming demand is constant, if supply control efforts are sufficiently successful in reducing supply, there should be some evidence of that on the street in higher prices. Use rates of illicit drugs should go down over time if efforts to reduce supply (and deter drug use) are successful.
To be fair, these are “wholesale” metrics that focus on drug prices and drug use rates for the United States as a whole. It is quite possible that these aggregate statistics mask local variation that reflect greater or lesser impacts of drug control policy. However, our question is whether on balance, U.S. policies have had the desired impacts and outcomes.
Street-level drug price data for the period from 1980 to 2009 indicate that while there is some year-to-year fluctuation, the general trend for cocaine, crack, heroin, and methamphetamine has been downward. There was a dramatic reduction in price that began in the early to mid-1980s and continued through the early to mid-1990s. Prices essentially stabilized through the early 2000s. Marijuana follows a slightly different trend, actually increasing in price through the early 1990s, declining through the rest of the 1990s, and then essentially stabilizing through the early 2000s (Office of National Drug Control Policy 2011).
The data on illicit drug use over the period from 1979 to 2010 for the population twelve years of age and older reflects a significant drop in “current use of any illicit drug” from 1979 to 1988, followed by a period of stabilization from 1990 to 2000, then an increase between 2001 and 2010. Much of the trend is driven by marijuana use because it is the most common drug in the category “any illicit drug.”
About 22.6 million U.S. residents used any illicit drug in 2010. The majority, 17.4 million, used marijuana; 7 million used psychotherapeutics (stimulants, pain relievers, tranquilizers, and sedatives); 1.5 million used cocaine (including crack); 1.2 million used hallucinogens; 0.7 million used inhalants; and 0.2 million used heroin.
The expectations, if U.S. drug policies were working, would be noticeable increases in drug prices and noticeable declines in drug use. The evidence indicates, at least according to these metrics, that U.S. drug policy does not seem to be working.
In 1990, the journal Science noted that the United States was “still flying blind in the war on drugs.” Little has changed. There continues to be substantial discussion (but much less debate) about the effectiveness of the U.S. supply control efforts. The conclusions are approaching unanimity. The War on Drugs as it has been waged has not worked. There is no shortage of commentary declaring at least a ceasefire, if not an all-out surrender, with regard to the supply control effort. Every major (and many more minor) media outlet has reported the growing consensus:
“‘War on drugs’ has failed, say Latin American leaders,” The Guardian, April 2012
“It’s time to end dismally failed ‘war on drugs,’” Chicago Sun-Times, June 2011
“It’s time to end the failed war on drugs,” The Telegraph, November 2012
“Commentary: 40 years of War on Drugs Failure: Rethink the warfighting model,” The Palm Beach Post, June 2011
“The Drug Czar’s Report Card: F,” New York Times, October 2008
“Kofi Annan, George Shultz say drug war a failure,” Christian Science Monitor, June 2011
“The War on Drugs is a Failure so Give Drug Policy Back to the States,” Forbes, July 2011
“U.S. Drug war has met none of its goals,” NBC News, May 2010
“War on Drugs a Trillion-Dollar Failure,” CNN, December 2012
“Let’s Be Blunt: It’s Time to End the Drug War,” Forbes, April 2012
“U.S. can’t justify its drug war spending, reports say,” Los Angeles Times, June 2011
“Numbers Tell of Failure in Drug War,” New York Times, July 2012
“Obama should have the ‘audacity’ to end the war on drugs,” Daytona Times, May 2013
“Chicago’s Top Cop Calls U.S. War on Drugs ‘Wholesale Failure,’” Huffington Post
Gil Kerlikowske, the Obama administration’s director of National Drug Control Policy until March 2014, conceded the strategy hasn’t worked. “In the grand scheme, it has not been successful,” Kerlikowske told the Associated Press. “Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified.”
Former president Jimmy Carter wrote in the New York Times (June 2011) a plea to “Call Off the Global War on Drugs.” He stated:
In a message to Congress in 1977, I said the country should decriminalize the possession of less than an ounce of marijuana, with a full program of treatment for addicts. I also cautioned against filling our prisons with young people who were no threat to society, and summarized by saying: “Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself.” These ideas were widely accepted at the time. But in the 1980s President Ronald Reagan and Congress began to shift from balanced drug policies, including the treatment and rehabilitation of addicts, toward futile efforts to control drug imports from foreign countries.
In June of 2011, the Global Commission on Drug Policy issued a report that articulated the failure of the U.S. supply side drug control effort. The Commission, consisting of former presidents and prime ministers of five nations, a former United Nations secretary general, as well as George Schultz (former Secretary of the Treasury and Labor under President Nixon and Secretary of State under President Reagan) and Paul Volcker (former chair of the Federal Reserve under Presidents Carter and Reagan), concluded that the “global war on drugs has failed with devastating consequences to individuals and societies around the world.” The Commission’s conclusions are an extraordinary indictment of U.S. (and other nations’) drug policies.
Vast expenditures on criminalization and repressive measures directed at producers, traffickers and consumers of illegal drugs have clearly failed to effectively curtail supply or consumption. Apparent victories in eliminating one source or trafficking organization are negated almost instantly by the emergence of other sources and traffickers. Repressive efforts directed at consumers impede public health measures to reduce HIV/AIDS, overdose fatalities and other harmful consequences of drug use. Government expenditures on futile supply reduction strategies and incarceration displace more cost-effective and evidence-based investments in demand and harm reduction.
The U.K. Drug Policy Commission concluded back in 2007 that the drug control policies of the United Kingdom, the United States, or other nations do not influence the number of drug users in that country, nor the proportion of drug users who are dependent, abusing, or addicted (Reuter and Stevens 2007). That conclusion led the Commission to recommend that the area in which national drug control policy can have an effective impact is in terms of harm reduction strategies. A similar conclusion was offered by the Beckley Foundation’s global report on cannabis use and policy. They conclude that the principal goal of a government’s drug control policy should focus on harm reduction.
Most recently, on August 12, 2013, in a speech before the American Bar Association, Eric Holder, the Attorney General of the United States stated:
As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective—and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach.
Public opinion has shown remarkable consistency over the past ten to fifteen years in Americans’ recognition that the drug problem in the United States has not gotten better, and that the War on Drugs has failed. As far back as the mid-1990s, the public recognized these failures, but ironically they also supported continued expenditure of resources for the drug war (Blendon and Young 1998). At the same time, public opinion is fluid regarding remedies. In 1990, 41 percent responded that convicting and punishing for drug crimes “would do the most to reduce the drug problem in this country.” Five years later, only 21 percent thought such a strategy would remedy the problem. A Pew survey found a similar pattern. In 1988, nearly 40 percent believed arresting drug users was a productive strategy. By 2001, that had dropped to 30 percent. Moreover, the 2001 Pew survey found that the majority (52 percent) of respondents believe that drug use should be treated as a disease, rather than as a crime.
Two recent public opinion polls, one conducted in June 2012 and one in November 2012, continue to show that the public believes that the War on Drugs has been a failure. In June 2012 (Angus Reid, June 6, 2012), an online poll found that 66 percent of respondents believe U.S. drug policy has been futile (only 10 percent believe it is a success, and the rest do not know). The November 2012 telephone poll (Rasmussen, November 13, 2012) found that 82 percent of respondents believe the war on drugs has been a failure. In addition, only 23 percent of respondents in the Rasmussen poll believe that the United States should spend more on the War on Drugs, although it is not clear from the survey whether these respondents think that U.S. drug policy would be effective if more money were spent. Moreover, two-thirds of the nation’s chiefs of police believe the War on Drugs has been a failure.
The consensus of the evidence is that supply strategies have not worked. Crop eradication and border control efforts have not had any truly noticeable impact on the supply of illicit drugs in the United States. Nor has punishment and its threat had significant effects on distribution/dealing and drug use in the United States.
Research first conducted two decades ago confirms the failure of control strategies to produce positive outcomes and the fact that supply control efforts are a waste of public funds. An important cost benefit study conducted by The RAND Corporation in the 1990s revealed the relative and sizable disparity in the cost-effectiveness of supply versus demand approaches. RAND found that $1 invested in control tactics produces a cost savings of 15 cents if used for source country control efforts, 32 cents if used for interdiction strategies, and 52 cents if used for domestic (U.S.) enforcement strategies. They also found that $1 used for drug treatment produces a societal cost savings of $7.48.
U.S drug policies have not been effective, in simple terms, because demand is high and generally inelastic. There is so much money to be made and international drug distribution cartels have become extraordinarily sophisticated, adopting organizational strategies of successful large-scale corporations, but also relying on ruthless violence. High demand combined with highly efficient and effective distribution channels result in ample supply entering the United States.
While popular perception may suggest that U.S. prisons are filled up with low-level drug users, the reality is that the target of much of domestic drug intervention has been those involved at some level in distribution (Sevigny and Caulkins 2004). There are relatively few low-level drug users and relatively few high-level drug distribution kingpins incarcerated in U.S. prisons. The majority of incarcerated drug offenders are lower- to midlevel dealers. Most lower-level drug users occupy the nation’s jails and probation caseloads. Significant numbers of them eventually graduate to prison upon conviction for more serious offenses.
Punishment does not significantly inhibit distribution of drugs (distribution within the United States) largely because of relatively high demand. The key reason that law enforcement efforts and incarceration do not impact drug dealing to any significant extent is because of the replacement effect. Arresting and incarcerating a dealer removes that individual from the street but does not remove the drug dealing. The removal of the dealer simply provides the opportunity for another individual to fill the vacancy. Economists have provided the evidence and the rationale for the replacement explanation (Bushway and Reuter 2011).
Punishment does not work for drug abusers and addicts because it does not change behavior. Recreational drug use may be affected by threats of punishment, but recreational use is not the primary concern. Chronic drug use—abuse, dependence, and addiction—have extraordinary consequences for public health, productivity, collateral crime, family integrity, and more. It is precisely these drug users, those who are abusing, dependent, and addicted, for whom punishment has no effect.
Those collateral consequences and costs of drug abuse are not mitigated by a national and local drug control policy that focuses largely on supply reduction and punishment. Absent a focus on demand reduction, abuse of drugs and alcohol will continue unabated at or near current levels and the costs and consequences will continue as well, requiring enormous expenditure of public resources.
The supply control efforts to date have had, as I have shown, little consistent, long-term impacts on street-level prices of drugs. Thus, an obvious question is: How much supply control is sufficient to trigger a price elasticity of demand effect, meaning that prices are high enough to dissuade users from purchasing drugs? Economists have shown that there is some evidence that initiation of use (not addiction, but recreational use) is price elastic (Rhodes et al. 2000). As prices increase, use levels decline. This is not particularly strong evidence, but it is suggestive. Thus, the argument is if we could sufficiently reduce supply to the point at which the price elasticity effect kicks in, we could in theory reduce at least initiation or recreational drug use. On the other hand, economists have demonstrated that demand for drugs among hardcore users (abusers, those dependent and addicted) is generally price inelastic—addiction trumps price.
ILLICIT DRUG USE AS A PUBLIC HEALTH ISSUE
Public opinion lags behind the scientific community’s findings that drug abuse and drug addiction are clinical conditions. For example, a 2005 Ohio survey found that 72 percent of respondents believe drug users are to blame for their substance abuse problem. Forty percent of New Jersey survey respondents in a recent poll stated that substance abuse and addiction are a moral failing. Depending on the survey and question wording, roughly one-half of respondents state that they believe that substance abuse should be treated as a disease. Another survey found that the majority of Americans believe that drug abuse, dependence, and addiction are medical conditions and should be addressed that way (Pew Center on the States 2001). Somewhere between one-third and one-half believe it is a crime and is the business of the criminal justice system.
Substance abuse and dependence are diagnoses in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The American Psychiatric Association, which produces the DSM, has announced significant revisions regarding substance abuse disorders, including expanding the number of recognized symptoms for drug and alcohol addiction and reducing the number of criteria required for a substance abuse diagnosis. The Surgeon General identified substance abuse and dependence as a disease years ago. The American Medical Association, the American Psychiatric Association, and the American Psychology Association have all recognized the disease model of substance abuse and addiction. The National Institute on Drug Abuse (NIDA) defines addiction and substance abuse as a chronic, often-relapsing brain disease that causes compulsive drug use, in spite of substantial harmful consequences to the addicted individual and to those around him or her. NIDA also notes that while the initial decision to take drugs is willful or voluntary, the changes to the brain caused by chronic substance use inhibit the ability to resist impulses to take drugs. One would be hard pressed to find a public health, medical, or mental health professional who denies the scientific evidence regarding the fact that substance abuse and addiction are a disease.
Physicians and Lawyers for National Drug Policy (PLNDP) is a partnership of physicians, lawyers, judges, medical organizations, and bar associations that has been in existence since 2004. Its purpose is to advocate for an evidence-based public health approach to national drug policy. PLNDP’s policy priorities include removing barriers and increasing access to drug and alcohol treatment, using alcohol and drug screening as a clinical and public health tool, making substance abuse treatment available throughout the criminal justice system, and providing policymakers with research-based evidence for informed decision making.
In 2010, the Obama administration announced that it was shifting focus regarding illegal drug use. The new approach was a more comprehensive, balanced strategy, which included an enhanced emphasis on drug prevention and drug treatment, through a focus on evidence-based practices. Gil Kerlikowske, Obama’s Drug Czar, stated “We’ve never worked the drug problem holistically. We’ll arrest the drug dealer, but we leave the addiction.” Kerlikowske said the new policy focus “changes the whole discussion about ending the war on drugs and recognizes that we have a responsibility to reduce our own drug use in this country.” Kerlikowske criticized past drug strategies for measuring success by counting the number of children and teens who have not tried marijuana. At the same time, he said, the number of deaths from illegal and prescription drug overdoses was rising. “Putting treatment into the primary health care discussion is critical.”
Thus, the new policy emphasizes treating drug use more as a public health issue, resulting in an enhanced focus on treatment and prevention. “By boosting community-based prevention, expanding treatment, strengthening law enforcement and working collaboratively with our global partners, we will reduce drug use and the great damage it causes in our communities,” President Obama said. “I am confident that when we take the steps outlined in this strategy, we will make our country stronger and our people healthier and safer.” The Obama administration’s national drug control policy signaled a significant rebalancing of efforts.
On June 11, 2012, Kerlikowske clarified the Obama administration’s position on drug and alcohol abuse and addiction. Kerlikowske stated: “Drug addiction is not a moral failing on the part of the individual, but a chronic disease of the brain that can be treated.” Kerlikowske declared that the paradigmatic shift in policy is necessary because an emphasis primarily on incarceration and the criminal status of drug users fails to effectively address the problem by disregarding prevention, treatment, and recovery. In launching the Obama administration’s 2012 National Drug Control Policy, labeled the 21st Century Drug Policy, Kerlikowske stated:
Outdated policies like the mass incarceration of nonviolent drug offenders are relics of the past that ignore the need for a balanced public health and safety approach to our drug problem. The policy alternatives contained in our new Strategy support mainstream reforms based on the proven facts that drug addiction is a disease of the brain that can be prevented and treated and that we cannot simply arrest our way out of the drug problem.
The rhetoric of the Obama administration indicates a more balanced approach, and the reality shows significant movement in that direction. Perhaps the most compelling evidence of that is the provision in the Affordable Care Act, passed in 2010, that requires, by 2014, insurers to cover substance abuse treatment just as they cover treatment for any other chronic disease (discussed in greater detail later in this chapter). The Obama administration has also revised some of the more punitive federal laws regarding punishment of drug offenders under the Federal Sentencing Guidelines and there are likely more revisions to mandatory drug sentences underway as part of General Holder’s Smart on Crime initiative.
At the same time, while the 2011, 2012, and 2013 national drug control budgets reflect a trend toward modest increases in treatment and prevention resources, the clear majority of funds are still allocated to supply control efforts, essentially 60/40 supply reduction versus demand reduction. And the relative allocation of demand reduction and supply reduction resources has not changed in any significant ways since at least the early 2000s.
DEMAND REDUCTION
The primary reasons that punitive supply control strategies have failed are: (a) substance abuse, dependence, and addiction are disorders of the brain and punishment is not a clinical intervention that can change that behavior; and (b) arresting and incarcerating drug distributors does not remove the drug dealing—the replacement effect.
Demand reduction has two primary components: prevention and treatment. The scientific evidence is reasonably compelling with regard to prevention and very compelling regarding treatment.
Prevention
Most of the scientific evaluation of prevention focuses on child, adolescent, and teenage prevention programs. Babor and colleagues (2010) reviewed the drug abuse prevention literature and concluded that the effects of youth prevention efforts are modest and variable. One limitation is that most of the research has focused on delaying initiation of marijuana use, rather than harder drugs. Another limitation is the inability to address whether delaying initiation of marijuana use translates into lower lifetime use rates of marijuana and other drugs. Others observe that the gap between best practice and implementation is substantial and that many school-based programs are poorly implemented, especially those with higher-risk populations. With these (and other) limitations in mind, the authors concluded that such prevention programs are probably worthwhile (in terms of relatively low cost and modest benefit) regarding delaying initiation of drug use.
The research suggests that programs that are effective provide early intervention in the relevant environments of school and family and that focus on social and behavioral development. It has also been observed that effective school-based prevention programming may be less about a specific curriculum and more about the creation of an atmosphere of appropriate attitudes and expectations (Manski, Pepper, and Petrie 2001). Research shows that factors that predict the onset of a drug problem are the same as those that predict school failure, social isolation, aggression, and other behavioral problems. Thus, programs that address these root causes and that promote a more favorable developmental environment are more productive than those that simply provide drug information including the harms of drug use. And this makes intuitive sense as well. Programs that provide alternatives to drug use and reduce the motivation or need to use drugs are more productive than programs such as “just say no.” Much of the prevention approaches in the United States have simply focused on the obvious problem: drugs and drug use. Programs (like DARE) that primarily provide drug-related information are not effective because they do not address the underlying causes or precipitants of drug use.
One of the key policy issues with such prevention programs is whether simply delayed initiation of marijuana (or other drugs) use is of sufficient benefit to warrant supporting these initiatives. At this point, the research is not dispositive regarding lifetime use effects as well as longer-term health, mental health, economic, social, and criminal justice consequences. However, the relatively low cost, as well as the other potential collateral benefits associated with engaging these programs (enhanced academic success, social development, reduction in aggression, and so on), indicate that they are worthwhile (Manski, Pepper, and Petrie 2001; Caulkins et al. 2002).
Treatment
One of the key concerns from a policy perspective is how to prevent individuals from entering the justice system on a drug-related incident in the first place and, for those who have entered, how to reduce the likelihood that they will return. The scientific evidence indicates that a key component of the solution to both is effective substance abuse treatment. Treatment not only reduces drug use, it also reduces the risk of intoxication-related crimes, the urgent need for money for drugs and therefore the need to take immediate risks, and it puts distance between the treated individual and the subculture of users and dealers.
Substance abuse treatment in the free world has been shown to be quite effective in reducing substance use when the treatment protocol follows evidence-based practices and is followed by long-term aftercare or maintenance, typically in the form of twelve-step programs like Alcoholics Anonymous and Narcotics Anonymous. Dr. Nora Volkow, the director of the National Institute of Drug Abuse, stated in 2004:
In fact, recovery from addiction is an established reality, achieved through a variety of treatment modalities when they are matched for the needs of individual patients. Numerous studies have shown that addiction treatments are comparable in effectiveness to treatments for other chronic illnesses.
The evidence clearly indicates that drug addiction treatment fails for reasons quite similar to why treatment for other chronic diseases like asthma, diabetes, and hypertension fail (McLellan et al. 2000). The key appears to be long-term adherence to treatment and behavioral change. In the Journal of the American Medical Association analysis by McLellan and colleagues, treatment compliance, drop-out rates, and relapse rates were similar for drug/alcohol addiction, diabetes, hypertension, and asthma.
Substance abuse treatment in the free world is more effective than treatment in the corrections system. There are many reasons for that, including the fact that individuals in the free world likely have fewer criminogenic needs, may be more motivated to engage in treatment, are engaging in treatment in a more therapeutic environment compared to prison and jail, and have fewer of the challenges and limitations associated with the justice system. It is also likely that substance abuse treatment in the free world is more appropriate in terms of matching the intensity of treatment to the assessed need, implementing cognitive behavioral modalities, having well-trained treatment staff, and addressing co-occurring disorders, among others.
Historically, substance abuse treatment has been a stand-alone specialty, set apart from the general medical environment. Most treatment facilities are small, offering mainly outpatient services. Only about 25 percent of providers offer inpatient residential treatment. Treatment often does not employ current generation medications such as buprenorphine for opiate addiction. Moreover, evidence indicates that many treatment facilities are staffed by individuals with limited professional training (Buck 2011).
One of the major challenges in obtaining substance abuse treatment outside of the justice system has been cost—lack of personal resources and lack of proper insurance coverage for behavioral health treatment. The Affordable Care Act of 2010 will implement significant changes to the substance abuse treatment landscape, resulting in significantly enhanced access to treatment that is better integrated with general health care, and increased treatment capacity. The Affordable Care Act will expand the coverage in health plans for substance abuse treatment, and will dramatically expand the number of insured individuals with substance abuse disorders by a substantial increase in Medicaid eligibility. As Buck (2011: 1408–1409) concludes:
Transforming the public substance abuse treatment system was never one of the explicit goals of health reform. But policies expanding health insurance coverage and providing substance abuse treatment benefits at parity with medical and surgical benefits are likely to have that effect. The result will be a different system of treatment, with a greater variety of larger providers in the mainstream of general health care. This will be a more ambulatory-based, medically oriented, and physician-directed system. … Although not originally designed to do so, health reform’s changes offer the potential to address some of the concerns associated with the current system of public substance abuse care. These include limited funding and access to services, and the failure to develop and implement plans of care that effectively treat those with both substance abuse and physical health conditions. If health reform even partially addresses these problems, the result will be a system of care that greatly improves the treatment of substance abuse disorders in the United States.
In addition to the cost barriers to treatment, there is also the issue of denial of the problem and resistance to treatment. Adding to that difficulty is the fact that because substance abuse treatment has historically been segregated from general medical care, there are not that many entry points or portals into treatment.
Screening, Brief Intervention, and Referral to Treatment (SBIRT)
Every year, there are 7.6 million admissions to the nation’s emergency rooms. Forty percent of those admitted have a positive blood alcohol concentration (BAC). Adding to that those on drugs results in 60 percent of ER admissions under the influence of drugs or alcohol. The Substance Abuse and Mental Health Services Administration (SAMHSA) has championed an integrated, comprehensive public health approach to early substance abuse intervention that was developed twenty-five years ago. The SAMHSA Screening, Brief Intervention and Referral to Treatment (SBIRT) model is a substance abuse early intervention strategy that makes imminent sense. Primary care offices, hospital emergency rooms, college and university health clinics, trauma centers, and community health centers are the intercept or contact points for engaging patients who have a substance abuse problem or are at risk of developing a disorder.
SBIRT consists of four components. First is universal screening during routine medical and dental visits, using a validated, standardized screening instrument, which assesses substance use and identifies people with substance use problems; the modal time for the screen is three to six minutes; SBIRT can be implemented by a wide variety of health professionals such as physicians, nurses, social workers, health educators, and paraprofessionals. Second, the brief intervention utilizes motivational interviewing techniques designed to enhance patients’ awareness of substance use and its consequences, and motivate them toward positive behavioral change. Third, the therapy portion of the intervention may continue for those requiring more than the brief intervention mentioned above; this may involve additional motivational interviewing, further assessment, education, problem solving, coping mechanisms, and creating a supportive environment. Fourth, for individuals assessed as high risk, the SBIRT model provides referral to specialty substance abuse treatment.
One of the determinants of the success of SBIRT is the existence of well-established specialty care referral networks. It is also important that transitions from screening and assessment to brief interventions to referral to treatment be as seamless as possible. Simply referring individuals to treatment is insufficient. Efforts must also include follow-up to determine compliance, engagement, and participation.
SBIRT is designed to integrate and coordinate screening, intervention, prevention, and treatment into a comprehensive system of care. An essential characteristic is linking community health care and social service agencies with appropriate specialty substance abuse treatment. The goal is identifying risky and harmful use of substances, with the objective of securing treatment for those who are high risk and to reduce the number of people who are on the path to addiction through prevention, education, and treatment.
SBIRT is a unique, proactive community health initiative that places substance use, abuse, and addiction squarely in the arena of public health. That is an important step in what appears to be the right direction. The next question is: What do we know about how it works and whether it is effective?
The Columbia University National Center on Addiction and Substance Abuse has published (November 2012) an overview addressing the population that SBIRT is targeting, how SBIRT works across various settings, and whether it is effective. Their overall conclusion is that brief, targeted, opportunistic interventions are effective in helping at-risk individuals change their behavior. A summary of the results of fifteen systematic analyses and meta-analysis reveal the following (National Center on Addiction and Substance Abuse 2012: 4–5):
1. Most people with substance use problems do not seek formal treatment.
2. While risky substance users are often reluctant to seek specialist addiction treatment, about two-thirds do visit their general practitioner each year.
3. Substance use problems are overrepresented in populations seeking medical care, but screening and brief interventions for substance use are rarely performed in primary care.
4. SBIRT—even a five-minute intervention reduces risky substance use.
5. SBIRT in medical settings reduces health-related diseases and consequences related to risky substance use (for example, emergency room visits).
6. Screening and brief interventions work across settings, though the effects are more powerful in some than in others (primary care has very good outcomes).
7. Screening and brief interventions work across populations (for example, pregnant women, college students).
8. Simple feedback on risky substance use based on a brief screening is one of the most important factors in why people change.
The short answer to does SBIRT work is yes. Research demonstrates significant short-term (six-month) abstinence from alcohol and drug use as well as reductions in heavy use of alcohol and drugs, improvements in quality of life including education, employment, housing stability, reduced criminal justice involvement, and reductions in risky behaviors (Madras et al. 2009; Insight Project Research Group 2009; SAMHSA 2009, 2011). The evidence indicates there are also irrefutable improvements in short-term health and mental health and indications of substantial long-term benefits (Babor et al. 2007). There are demonstrated significant cost savings associated with SBIRT as well (SAMHSA 2009, 2011), including significantly reduced hospital admissions, traumas and injuries, and a conservative health-related cost benefit of 1:4, meaning for every $1 invested in SBIRT, there is a $4 savings in health-related costs.
Results from SAMHSA’s initial SBIRT Cohort 1 Cross Site Evaluation indicate that 118 sites screened 658,000 patients between 2005 and 2009. The evaluation results demonstrate that SBIRT is associated with significant reductions in drug and alcohol use, up to a 27 percent reduction among high-risk individuals, as well as a reduction in the harms associated with substance use. The evaluation also indicates that SBIRT is economically viable and sustainable (SAMHSA n.d.: 33).
It is not clear how extensively SBIRT is implemented and how its implementation is distributed across different public health contact points (ERs/EDs, primary care clinics, school/college clinics, behavioral health settings, and employee assistance offices). At best probably fewer than 10 percent of those eligible for or in need of substance abuse intervention receive any SBIRT services.
The research evidence regarding the short-term prevention and treatment effects/benefits from alcohol and drug screening indicate it is a valuable and worthwhile intervention strategy. The current Office of National Drug Control Policy has as one of its action items increasing the adoption of and reimbursement for implementation of SBIRT. In announcing a funding enhancement to SBIRT in July 2012, the Obama administration acknowledged the importance of the public health approach of screening and intervention (ONDCP July 25, 2012).
“This program saves lives, saves money, and can reduce the significant burden our drug problem places on both health care and criminal justice systems,” said Director Kerlikowske. “SBIRT represents the future of drug policy in America and I commend our partners in the medical community for working with us to implement smart approaches in health settings to reduce our Nation’s challenges with substance use.
SAMHSA has recently issued a technical assistance guide for implementing SBIRT in a variety of settings (SAMHSA n.d.: 33).
Treatment in the Justice System
Substance abuse treatment among the incarcerated population is relatively absent. Research shows that approximately 80 to 85 percent of prison inmates in need of drug treatment do not receive it (Chandler, Fletcher, and Volkow 2009). Despite the challenges and limitations, treatment in an incarceration setting can be successful, though less so than community-based justice treatment programs. The therapeutic community (TC) model has been shown to be the most successful approach for the incarcerated population in terms of reducing both relapse and reoffending (Mitchell, Wilson, and MacKenzie 2007). The TC approach has existed for nearly forty years. It is a residential treatment model that incorporates stages of treatment that reflect increased levels of personal and social responsibility. It is at its core a peer-based approach that through a variety of group processes helps individuals acquire and assimilate social norms and social skills. The primary difference between TCs and other treatment approaches is the use of the community or peers as the key agents of change. TC members and staff interact to influence attitudes, perceptions, and behaviors associated with drug use. The concept of mutual self-help, also a core component of TCs, places partial responsibility for recovery on peers in the community.
There are many barriers to adequate treatment in the justice system. One of the ironies is that among policymakers and legislators, drug and alcohol abuse and addiction tend not to be recognized as medical conditions. Thus, there is no constitutional right to treatment as there is under the Eighth Amendment for medical conditions. Other barriers include lack of funding and resources (the priority by far under crime control has been control and punishment, at the expense of programming) and lack of infrastructure and trained treatment staff. For those who do receive treatment while incarcerated, the continuity of care postrelease is often missing, so loss of the treatment effect dramatically increases the likelihood of relapse and recidivism.
The scientific community is quite clear regarding what works in correctional substance abuse treatment. What is missing for both the incarcerated population and the community supervision population of offenders is the widespread institutional recognition and acceptance that treatment is essential for longer-term crime and recidivism reduction, not to mention the broader social, economic, and public health benefits. Moreover, there often seems to be an institutional disregard for doing what needs to be done to enhance the likelihood of longer-term success.
There is commonly a significant gap between what the evidence indicates is effective (evidence-based practices) and what the interventions look like in practice (when they exist at all). A survey of the integration of evidence-based practices into day-to-day correctional treatment programming (Taxman et al. 2007) uncovered the overall failure of the justice system to adopt best practices. Findings include: less than one-third of correctional agencies use a standardized risk assessment tool; less than 20 percent of the agencies report using cognitive-behavioral modalities in their clinical interventions and fewer yet use a manualized (that is, documented) treatment curriculum; only 30 percent report having substance abuse treatment programs of ninety days or more in duration; medications for substance abuse are rarely used (for example, methadone and other medications play a fundamental part in the treatment of opiate addiction and alcohol addiction); and a majority of agencies use passive referral methods to assist offenders in obtaining access to community-based resources. The evidence clearly indicates that an active approach is much more effective.
On balance, it is clear that correctional substance abuse treatment is hit and miss in terms of even adopting the basics of best practices. The quality of care is another matter. Research by the Urban Institute and the Council of State Governments Justice Center indicates that individuals in the justice system who do receive treatment services likely do not receive the appropriate level or intensity of treatment. The most common forms of intervention are self-help groups like Alcoholics Anonymous and Narcotics Anonymous, and alcohol and drug education classes. The lack of appropriate, high-quality drug and alcohol treatment in the justice system, particularly in prison, has been well documented (Belenko and Peugh 2005; National Center on Addiction and Substance Abuse 2004; Mumola and Karberg 2006).
The evidence is clear about the individual-level effects of drug and alcohol treatment. The proper dosage of treatment, with sustained aftercare, dramatically reduces relapse and criminal justice involvement. However, what does the evidence indicate about aggregate effects of treatment? Does treatment reduce crime and recidivism in the aggregate? Does drug treatment improve public health? In effect, is treatment a viable, effective, and cost-effective policy for larger-scale criminal justice benefits, public health benefits, and social and economic benefits?
The Efficacy of Substance Abuse Treatment
The scientific evidence is conclusive regarding the effects of drug and alcohol treatment. Treatment reduces drug use. Reducing drug use also reduces many of the collateral consequences, for example morbidity, mortality, economic, social, and familial impacts, as well as their economic and social costs. Treatment reduces crime and incarceration, reduces the public health consequences of abuse and addiction (including HIV and hepatitis B and C, as well as reducing ER and hospital visits), increases economic productivity and employment, improves family functioning, and enhances mental health.
Various sources document the statistical impacts of drug treatment. The National Treatment Improvement Evaluation Study (1997) found that treatment reduces rearrest by 64 percent, drug use by 50 percent, and criminal activity by 80 percent. The National Institute on Drug Abuse conducted extensive research on the effects of drug treatment (the Drug Abuse Treatment Outcome Studies or DATOS) and has compiled an impressive portfolio of evidence showing a variety of positive outcomes. These include consistent behavioral and psychological improvements, reductions in criminality and recidivism, enhanced social performance, psychological functioning, and full-time employment. The DATOS research also showed that the effects are generally sustained five years after completion of treatment (Hubbard, Craddock and Anderson 2003; Simpson and Flynn 2008).
The director of the National Institute on Drug Abuse, National Institutes of Health makes a very powerful case for the large-scale adoption of drug treatment for reducing drug abuse, dependence, and addiction, and their collateral social, economic, public health, familial, and criminal justice consequences. Director Lesher notes that research from the National Institutes of Health, Columbia University, University of Pennsylvania, and many other prestigious institutions have demonstrated that drug treatment reduces drug use by 50 to 60 percent, reduces arrests and therefore criminal justice involvement by 40 percent or more, increases employment by 60 to 80 percent, reduces cases of HIV, and provides many other public health benefits.
While Reuter and Pollack (2006) acknowledge that drug treatment is effective and cost saving, they caution that it is still imperfect, often not eliminating drug and alcohol use completely for those who have gone through treatment. They note that countries like The Netherlands, and other democracies that have liberal treatment availability, have not been able to treat their way out of a drug problem. What this demonstrates is what I mentioned earlier: substance abuse is a chronic disease, and just like other chronic diseases, it requires certain behavioral changes, a maintenance regime, and sometimes medication, especially for opiate addiction. Thus, relapse is a real possibility.
The research is clear on the economics or cost/benefit of treatment. The calculable economic benefits of drug treatment significantly and substantially exceed the costs, whether it is in-prison treatment or treatment provided under community supervision. While the cost-benefit results vary across settings and assumptions, they all indicate that economic benefits exceed costs of treatment by a substantial margin. McCollister and French (2003) reviewed the results of eleven economic studies of the cost-benefit of drug and alcohol treatment. They estimate that the annual economic benefit accrued in the domains of avoided crimes, employment, avoided health service utilization, employment income, and money not spent on substances was $42,905 greater than the cost of treatment. The vast majority, $42,151, was due to avoided criminal activity. Other reviews of the economic analyses of the costs and benefits of treatment (for example, Cartwright 2000) and analyses in other countries (for example, Godfrey, Stewart, and Gossop 2004) report similar findings.
Dr. Nora Volkow, the director of the National Institute of Drug Abuse in 2006, stated:
Recent studies show it is actually less expensive for communities to treat drug-abusing offenders than to let them sit in jail or prison. It is estimated that every dollar invested in addiction treatment programs yields a return of $4 to $7 in reduced drug-related crimes. Savings for some outpatient programs can exceed costs by a ratio of 12 to 1.
The economic benefits of drug treatment are consistent and robust. It is safe to suggest that the estimates are conservative in that they generally do not consider the lifetime economic benefits of interrupting the cycle of criminal offending.
The National Institute on Drug Abuse (2006) has developed thirteen principles of effective treatment of addiction for criminal justice populations:
1. Drug addiction is a brain disease that affects behavior.
2. Recovery from drug addiction requires effective treatment, followed by management of the problem over time.
3. Treatment must last long enough to produce stable behavioral changes.
4. Assessment is the first step in treatment.
5. Tailoring services to fit the needs of the individual is an important part of effective drug abuse treatment for criminal justice populations.
6. Drug use during treatment should be carefully monitored.
7. Treatment should target factors that are associated with criminal behavior.
8. Criminal justice supervision should incorporate treatment planning for drug abusing offenders, and treatment providers should be aware of correctional supervision requirements.
9. Continuity of care is essential for drug abusers reentering the community.
10. A balance of rewards and sanctions encourages prosocial behavior and treatment participation.
11. Offenders with co-occurring drug abuse and mental health problems often require an integrated treatment approach.
12. Medications are an important part of treatment for many drug abusing offenders.
13. Treatment planning for drug abusing offenders who are living in or reentering the community should include strategies to prevent and treat serious, chronic medical conditions, such as HIV/AIDS, hepatitis B and C, and tuberculosis.
Research evidence indicates several additional elements should be incorporated into the treatment protocol. Not all individuals entering treatment are equally motivated to change (Prochaska and DiClemente 1992). Treatment amenability or readiness can be determined by using assessment instruments that measure stages of change. Five stages of change have been identified: precontemplation, contemplation, preparation, action, and maintenance. Treatment motivation or readiness for change is easily assessed using validated assessment instruments such as the University of Rhode Island Change Assessment (URICA) and the Stages of Change Readiness and Treatment Eagerness Scale (SOCRATES) instruments. When an individual is in the precontemplation or contemplation stage, motivational interviewing (MI) can be used to enhance internal motivation (Rubak et al. 2005) and sanctions can be used to apply external pressure (Nace et al. 2007). MI is successfully used in a variety of clinical settings and has been found to be very effective in moving individuals to the proper stage to begin intervention. Justice pressure is also effective in motivating individuals to begin treatment. Court-ordered treatment has been shown to result in higher treatment retention rates, increased number of days abstinent, and decreases in criminal offending.
Research also indicates that there are two effective therapeutic modalities for substance abuse treatment: behavioral therapies and pharmacological treatment, although these are not mutually exclusive. When indicated, medication can help reduce craving and withdrawal symptoms and also serve as an effective therapy for opiate addiction. However, behavioral therapy should be used in conjunction with any pharmacological intervention. Behavioral therapies include cognitive-behavioral, contingency management, motivational interviewing, and multisystemic therapy, among others.
There are two factors that are worth reemphasizing. One, criminal offenders with a substance abuse problem are likely to have additional criminogenic circumstances. The NIDA framework mentions co-occurring mental health problems. There are often several more that co-exist with substance abuse and it is important that justice agencies identify these and address the more critical problems in a holistic manner. Only addressing the substance abuse problem may not reduce criminal involvement. This is a point that cannot be overemphasized.
Second, aftercare is one the components of substance abuse treatment that is often neglected. Research indicates that absent aftercare (maintenance), the necessary behavioral changes associated with the treatment effect are likely lost. Again, this is not that different from patterns evident in other chronic diseases.
Supply reduction and demand reduction both share the common goal of reduction of use. Harm reduction on the other hand acknowledges that no matter how successful supply and demand strategies are, drug use and problem drug use will always be a fact of life. Supply control is ineffective and treatment in the United States for substance abuse is currently limited and high threshold. Treatment is limited in terms of capacity and public funding and because of cost barriers to access (lack of insurance coverage, affordability). It is high threshold because it generally requires total abstinence. Add to the treatment challenges the fact that some level of motivation for treatment is required. In many cases, that motivation is absent. Again, even in the best-case scenario, drug use and problem drug use are realities. Harm reduction is a complementary strategy that can be implemented to help mitigate the harms associated with substance use and abuse.
Most of the efforts at harm reduction have focused on the harms to the user, such as health, economic, and social/familial consequences. The most prominent harm reduction strategies have primarily targeted user health: needle exchange programs and heroin substitution. The research evidence clearly supports the effectiveness and cost-effectiveness of these two strategies. Needle exchange programs have repeatedly been shown to significantly and substantially reduce the incidence of HIV, hepatitis, and other bloodborne diseases. In 1998, the U.S. Surgeon General concluded that “there is conclusive scientific evidence that [these needle exchange programs], as part of a comprehensive HIV prevention strategy, are an effective public health intervention that reduces transmission of HIV and does not encourage the illicit use of drugs.” It is worth repeating: there is a large body of research that shows that needle exchange programs do not increase illicit drug use. The Surgeon General’s report also noted that needle exchange programs have spillover effects in that they provide an opportunity to identify and refer individuals to treatment.
Heroin substitution, typically in the form of methadone or buprenorphine, is a safe, effective way to manage heroin addiction. Methadone does not have the euphoria associated with heroin and does not compromise cognitive functioning and employability. It serves essentially as a method for addressing the withdrawal symptoms of heroin. Heroin substitution has been shown to be effective and cost-effective, saving $4 to $7 dollars in social and health costs for every $1 dollar invested in these programs. Moreover, because methadone reduces needle use, it can also reduce the transmission of HIV, hepatitis, and other diseases. Heroin substitution is also associated with lower criminality and enhanced health, social functioning, mental health, and productivity.
A federal ban on needle exchange programs was put into effect in 1988. That ban survived through the George H. W. Bush, Clinton, and George W. Bush administrations. The ban was lifted by the Obama administration in 2009. Heroin substitution has been in effect for decades and has been generally supported by various administrations’ drug control policies. It is still the case, however, that only a fraction of heroin addicts receive methadone treatment, in part because of barriers to access.
Drug use as well as drug manufacture and distribution have significant negative consequences for communities and neighborhoods, as well as cities, states, and the nation. One of the greatest concerns is violence. Drug-related violence has little to do with the actual ingestion of controlled substances. Instead, the violence associated with drugs is largely a consequence of prohibition. The U.S. Department of Justice conducted an assessment of the research and concluded in 1994 that alcohol is the only substance that often increases aggression and that the violence that is commonly attributed to the consumption of drugs is a product of their prohibition and distribution. The Drug Policy Task Force, convened by the New York County Lawyers Association, reached a similar conclusion (NYCLA 1996: 17):
it appears that the overwhelming causes of violent crimes, which often find categorization under the heading “drug related” are caused by various factors unrelated to actual pharmacological effects of controlled substances upon human behavior. Rather, much of the violent crime can be said to be “drug prohibition-related,” insofar as it results from the high costs and huge profits and great stakes involved in the world of drug commerce as it is carried out in the cities, states and nations of the world.
The Mexican cartels pose significant and real threats to the well-being of individuals in communities on both sides of the Mexican border. They also pose real threats to communities throughout the United States as their distribution channels are highly sophisticated, well resourced, and have high potential for violence. Even absent the cartel threat, drug distribution at the local level has tremendous impacts on public safety and public well-being. Much local gang activity is driven by drug distribution and it is a reality that in many areas of many cities in the United States, gang activity is a prevalent feature with substantial consequences for public safety, public health, and quality of life.
Caulkins and Reuter (2009), two of the nation’s leading experts on drug control policy, expand the idea of harm reduction beyond the harm to the user and consider how drug manufacture and distribution harm communities and, in turn, how law enforcement can help reduce some of that harm. Once again, I invoke the principle of problem solving. In this case, it is recognizing the broader harm that drug use and drug distribution cause in communities and developing strategies to help mitigate some of that harm. For example, one of the consequences of drug use is the harm that intoxicated individuals can cause others, harm as a result of neglect and abuse of dependents, or the harm from engaging in dangerous, disorderly, or threatening activity. Thus law enforcement’s intoxication control interventions should be expanded to help reduce these impacts of drug use on others.
Drug dealing can cause serious harm when rival gangs engage in violence to establish markets, or when a dealer or buyer is robbed. Dealing can also perpetrate more subtle, chronic harm in the deterioration of quality of life in a neighborhood (a “broken windows” effect). Police intelligence and tactics can be used to contain or relocate drug distribution markets, and reduce distribution-related violence. Much distribution-related harm can be minimized by simply relocating a drug market away from a school or a residential neighborhood. The goal in such a strategy may not be use reduction, but simply moving transactions to a less vulnerable place. Local law enforcement can also develop strategies to minimize violence associated with dealing. For example, informing gangs that the priority is the reduction in violence and that violence will be met with a very repressive response that will interfere with their business may cause them to think differently about using violence.
The point is that by employing problem-solving principles in combination with a focus on harm reduction, local law enforcement has the potential to significantly impact harm in a broader context.
DECRIMINALIZATION AND LEGALIZATION
There has been some confusion over the meaning of decriminalization, legalization, and harm reduction. It seems that some have lumped them together in an effort to derail efforts at harm reduction. Let’s be clear here. For my purposes, decriminalization and legalization are different from harm reduction. Harm reduction involves working within the law to reduce harms. Legalization and decriminalization may impact harm, but they require statutory changes, as well as changes in policy and procedure.
The other thing to clarify before I discuss these issues is that drug use and addiction should not be reduced to an emotional, moralistic judgment. Labeling drug use and addiction as a character flaw or a weakness has not gotten us out of the drug problem. Those are unproductive arguments that are also counter to the scientific evidence. The American Medical Association (AMA) defined addiction as a disease in 1956. In 1991, the AMA endorsed the dual classification of addiction as a medical and psychiatric disorder. It really should not be a matter of right and wrong. The United States has made it clear that drug use is wrong, both in principle and in the law. Making it wrong, however, has not been terribly effective in reducing use and the problems and harms associated with its use, manufacture, and distribution.
Three 2012 surveys indicate significant support for legalizing marijuana. According to Gallup, 16 percent of respondents favored legalization of marijuana in 1970. All of the recent surveys indicate it is now more than 50 percent. The headlines from nearly any newspaper after the November 2012 election reported (in addition to Obama’s reelection) that two states had legalized possession of “personal” quantities of marijuana. The New York Times reported:
DENVER—For supporters of legalizing marijuana it was a historic moment, one that drew comparisons to the end of Prohibition: On Tuesday, voters in Colorado and Washington State made it legal to smoke pot recreationally, without any prescription or medical excuse.
There is a federal interest in this issue because it is still a violation of federal law to possess marijuana. However, the Obama administration has signaled (December 2012) that it will not make possession of personal amounts of marijuana a federal priority. In addition, statements by U.S. Attorney General Eric Holder (August 14, 2013) indicate that the Obama administration is questioning the efficacy of our traditional drug policy. In the 2012 Rasmussen poll cited earlier, 60 percent believe that legalization of marijuana is a state, not a federal, issue. And on August 29, 2013, the U.S. Attorney General indicated that the federal government will not attempt to block the Colorado and Washington laws.
In May 2013, the Vermont legislature passed legislation that decriminalizes possession of a limited amount of marijuana. Vermont is the seventeenth state to reduce the sanction for possession of a personal quantity of marijuana. Because the legalization in Colorado and Washington has opened the door on the issue, it may be time and smart policy to consider expanding the legalization of possession of marijuana to all states and at the federal level. Here are some of the reasons why this may be a prudent path. First, individuals will use marijuana regardless of whether it is legal. Second, between 1990 and 2002, drug arrests in the United States increased by 450,000. Eighty-two percent of that growth in arrests was for marijuana and the vast majority (79 percent) of that was for simple possession of marijuana. In 2010, the FBI reported that there were nearly 854,000 arrests in the United States for marijuana-related offenses; 88 percent of those were possession only. Marijuana arrests now comprise over one-half of all drug arrests and 46 percent of all drug arrests in the United States are for possession of marijuana. It is estimated that $4 billion annually is spent on the arrest, prosecution, and incarceration of marijuana offenders.
The impact of the criminal justice response on marijuana possession and use has been trivial to nonexistent. The price of marijuana has declined or remained stable since 1992 and the potency has increased by over 50 percent (King and Mauer 2006). Current use rate levels by high school seniors are what they were in 1975, thus ramping up the justice response does not appear to have had substantial impacts on reducing use of marijuana.
Moreover, the scientific evidence provides little support for the idea that legalization or decriminalization would encourage or substantially increase use. Nor is there conclusive evidence to support the assertion that marijuana is a gateway to more serious drugs (Caulkins et al. 2012), although there is at least anecdotal evidence to that effect.
On the other hand, there are serious concerns associated with marijuana use and abuse. There are significant health and mental health consequences that cannot be ignored. For example, chronic, heavy smoking of marijuana can cause respiratory and pulmonary damage. Chronic use can cause neurocognitive impairment as well. The mental health consequences include potential dependence and addiction, and increased rates of anxiety, depression, and schizophrenia.
Clearly, the benefits of legalization of possession of marijuana need to be balanced against these risks. Perhaps one of the key questions to consider is the impact of legalization on initiation of use and frequency of use. Will legalization lead to increased rates of initiation and will it increase the frequency of use? If not, then from a use perspective, we are in the same position with or without legalization.
Research in other countries, especially in Portugal and Holland, indicates little impact of decriminalization on use rates. Research published in Scientific American and the British Journal of Criminology both confirm that decriminalization resulted in declines in use rates of illicit drugs, especially among problematic users and adolescents. A 2004 comparative study in The Netherlands found no support for the prediction that decriminalization of marijuana leads to increases in use, or changes in negative patterns of use such as earlier age of onset and increased frequency of use. Moreover, The Netherlands’ research disconfirmed assertions that marijuana is a gateway drug to harder, more dangerous illicit substances (Reinarman, Cohen, and Kaal 2004).
The Dutch and Portuguese drug policies are both decriminalization, not legalization policies. Both focus on harm reduction in that they are designed to encourage treatment for problem users, although in different ways. The Portuguese model decriminalizes personal possession of all illicit drugs (manufacture and distribution are still serious crimes, punishable by incarceration). The Dutch model decriminalized marijuana possession and use of small quantities. Possession of harder drugs as well as manufacture and distribution are prosecuted and punished.
The evidence for Portugal and The Netherlands is consistent and compelling. There is no necessary relationship between decriminalization of marijuana and increases in use rates, age at onset of use, and frequency of use. The Global Cannabis Commission Report “Cannabis Policy: Moving Beyond Stalemate” (2010) concludes that lessening of penalties and decriminalization of marijuana in a number of jurisdictions has not been followed by upsurges in use. A May 2013 report issued by the Organization of American States (OAS) went on the record discussing the potential benefits of legalizing marijuana, eventually leading to the reallocation of resources away from controlling drugs and drug users, to preventing and treating problematic use and shrinking criminal markets and criminal enterprises involved in drug manufacture and distribution (OAS 2013).
Uruguay’s lower house voted to legalize marijuana (August 1, 2013), rendering Uruguay the first South American nation to legally regulate production, distribution, and sale of marijuana. It is estimated that marijuana is a $40 million dollar commodity on the illegal market in Uruguay. The senate passed the bill and the president of Uruguay signed the legislation in December of 2013.
Let’s be clear. Marijuana is not a public good. It does have potentially harmful effects. But there are many substances that have potentially harmful effects. There are many activities that have potentially harmful effects. These substances and activities are not illegal or banned outright. Many are regulated. If the evidence indicates that under proper management, legalization or decriminalization of marijuana use does not lead to increased frequency of use, increases in numbers using, and/or an earlier age at onset of use, the advantages in terms of justice system savings and avoiding criminalizing users are quite significant benefits.
The cost of keeping marijuana possession illegal is substantial, especially with regard to the criminal justice system. A 2010 report by the Cato Institute (Miron and Waldock 2010) estimates that legalization of marijuana could save $8.7 billion per year in criminal justice costs. They also estimate that legalization of marijuana could net $8.7 billion in tax revenue per year if marijuana was taxed at rates similar to those of alcohol and tobacco.
The illegality of marijuana possession also has personal consequences that are not necessarily trivial. Conviction of possession of marijuana can have a variety of consequences, some short term and some longer term. For example, in Texas the least severe charge for possession of marijuana is a Class B misdemeanor. A conviction of possession of marijuana may have any and all of the following consequences:
• Up to 180 days in jail
• Up to a $2,000 fine
• Up to two years on probation
• An adult driver’s license suspension of 180 days
• A minor’s driver’s license suspension of one year
• Disqualification from obtaining a concealed weapon license if charged within five years prior to the application
• Prohibition to ship, transport, or receive a firearm or ammunition
• Expulsion from school if the student is on or within 500 feet of school property or attending a school-sponsored or school-related event
• Denial of a permit to sell alcoholic beverages
Also, those who have obtained or want to obtain a professional license from the state of Texas (such as doctors, lawyers, CPA, dentist, nurse, physician’s assistant, electrician, cosmetologist, air conditioning technician, and many others), may face other consequences. Those include suspending or revoking the license or denying a person the opportunity to take the licensing exam. Moreover, the licensing authority may consider a person convicted even if the case is dismissed. Access to rental housing may also be affected, depending on the criminal background criteria of landlords. In Florida, the consequences may include a three-year ban on public housing for any misdemeanor or felony conviction, a lifetime ban on the right to possess a firearm, ineligibility for state financial aid, ineligibility for public employment, ineligibility for certain permits, state licenses, or certifications, and a five-year ban on the eligibility to adopt a child or become a foster parent.
One of the results of entering and being processed through the U.S. criminal justice system is the criminalization of the offender. Incarceration is criminogenic, meaning that when individuals are released from prison they have a higher likelihood of reoffending, net of other risk factors. The mere fact of arrest, indictment, conviction, and punishment can be criminogenic as well. The question at this point is whether on balance it is wise, prudent, and useful to continue to criminalize marijuana possession and to continue to punish marijuana offenders well after they have been discharged from the criminal justice system.
The advantage we have today is that we can conduct a natural experiment on legalization of possession of marijuana. We can study the experiences of Colorado and Washington State, learn from those experiences in terms of the consequences of legalization, the particulars of administering legalization, amount of revenue generated from taxes and regulatory fees, and how to improve policies and procedures going forward.
The manufacture and distribution of marijuana will need to be regulated just as tobacco, alcohol, and prescription medication are regulated. This will require state regulation, and federal regulation where federal jurisdiction is involved, such as transportation across state lines or national boundaries. States will also have to develop statutes and procedures for manufacture, distribution, and use. Just as is the case with alcohol, there will need to be laws governing any potential public harms that come from use of marijuana, such as public use, intoxication, and so on. How it will be distributed will need to be addressed as well as enforcement of age requirements for purchase. Revenue from taxation could be used to pay for regulation and will likely provide states with additional income, some of which could be used to fund public substance abuse treatment. If legalization moves forward, Congress will need to draft federal law that is broad enough to accommodate anticipated variation in state statutes and procedures.
While there is a growing political will to legalize (or at least substantially decriminalize) possession of marijuana in the United States, the political reality is quite different for other illicit drugs such as cocaine, crack, methamphetamine, heroin, and a variety of other drugs. The political climate in the United States is currently not conducive to a discussion of legalization of possession of “harder” drugs. There is probably merit to these concerns. Research indicates that the potential harm from these harder drugs is significantly greater than from marijuana. There is greater risk for addiction, as well as implications for physical health, social functioning, and economic productivity. Moreover, there is little current public support for legalization of these other drugs.
At the same time, a very compelling argument can be made for the negative consequences of the criminalization of drug use and the failure of supply side strategies to reduce available quantities, increase prices, and in turn reduce use rates. So what is the path forward regarding possession and use of more serious drugs?
Decriminalization of possession of personal amounts of more serious drugs can provide an important new opportunity, which is that arrest for possession can serve as a portal into a system that treats drug users differently than in the past. Decriminalization can potentially: (a) reduce the criminalizing effects of arrest and conviction; (b) provide an opportunity and the leverage to channel appropriate individuals into treatment; and (c) allow a more problem-solving approach to addressing the needs of individuals, including harm reduction, education, and medical attention, among others.
For simplicity, let’s assume that there are just two types of drug users: occasional, recreational users, and problem, dependent, abusing, addicted users. All of those in the latter category likely started as occasional, recreational users. There is little evidence that legal sanctions had much of an impact on preventing recreational users from becoming problem users. In fact, research indicates that across a variety of circumstances and environments, decriminalization does not lead to increases in use (for example, Rosmarin and Eastwood 2012). Thus, continuing to criminalize occasional, recreational use seems of little value, either in the short term or long term, and can have substantially negative consequences for those arrested and prosecuted as well as for the criminal justice system.
However, differentiating between the occasional, recreational user and the problem user requires that we get much smarter about sorting offenders once they come into the system. Arrest should be considered an opportunity to intervene, not punish. Arrest should serve as the entry point to comprehensive screening and assessment, clinical decision making, and development of appropriate interventions, not “you’re busted” case making and punitive consequences. Once again, it is useful to reiterate that drug use is first and foremost a public health problem.
It is also a global issue. The U.S. demand for drugs, which is a consequence of many factors, has profound effects not only on the United States, but on the international community. The production and distribution of drugs have global consequences and impact many nations in addition to the United States. The consequences for Mexico are fairly obvious, even to the casual observer. Manufacture and distribution of drugs present significant problems in Central America, the Caribbean, South America, Southwest Asia (Pakistan and Afghanistan), and Southeast Asia (Burma/Myanmar and Laos). Distribution involves quite sophisticated criminal organizations that accrue tremendous amounts of money, are able to evade detection by government agents, compromise legitimate social, economic, and political structures through violence, intimidation, corruption, and extortion, and challenge the authority of local and national governments. In short, drug trade organizations compromise political, economic, and social stability in many of the nations through which they channel drugs.
When U.S. policymakers do confront the international consequences of the U.S. demand for drugs, it is nearly exclusively in the form of supply control strategies such as international drug interdiction, crop eradication, and so on. The point is a simple one: while the United States is legitimately concerned about the impact the U.S. drug demand has on this country, it is not alone in the consequences of the drug trade. Once again, we are faced with reducing the financial incentives of the drug trade by effectively reducing demand and legalizing or decriminalizing the possession of marijuana and potentially other substances.
The Cato report mentioned earlier also estimates the revenue savings and revenue gains due to the legalization of all controlled substances. Legalization of all illicit drugs would save approximately $41.3 billion per year in enforcement and prohibition costs. The bulk of it, $25.7 billion, would accrue to state and local governments, and $15.6 billion per year would accrue to the federal government. Tax revenue from the sale of drugs would generate $46.7 billion annually. These are just estimates. Obviously, there would be costs associated with the administration and management of the sale of drugs as well as tax collection. Assuming no major increases in drug use and drug abuse, there would still be the social and economic costs associated with use and abuse, including drug-related crimes, medical and mental health consequences, and lost productivity, as well as others.
Perhaps a reasonable first step is to focus on legalization of marijuana. Again, Colorado and Washington State can serve as the test cases for this, and policymakers across the nation can learn valuable lessons about how and how not to go about such legalization.
THE DRUG PROBLEM GOING FORWARD
The United States has been on a concerted supply reduction path for forty-plus years. Most informed observers as well as most of the general public have concluded that these efforts have not been effective. There is little evidence of significant reductions in supply and reductions in drug use because of that. Fifteen years ago, the vast majority of the public (70 percent) reported that U.S. drug policy was a failure. That failure to reduce prevalence does not mean that supply reduction initiatives (and, specifically, law enforcement) are having no impact on drug markets. It is widely—and reasonably—argued that supply reduction contains the expansion of drug markets, even if it fails to reduce markets and overall supply.
Drug use has been a highly emotional, politicized issue. Drug use, and in particular, abuse, dependence, and addiction, have been viewed as a moral failing. For example, the Obama administration’s Drug Czar Gil Kerlikowske recently admitted that during his thirty-seven-year law enforcement career, prior to becoming the director of national drug policy, he held the belief that drug abuse was a moral problem.
At least for the past ten to fifteen years, the vast majority of Americans indicate that they believe drug abuse is a disease. Moreover, a 2000 Harvard School of Public Health survey indicates that drug abuse was mentioned as a “very serious public health problem” by 82 percent of respondents, more than mentioned any other public health problem, including cancer, heart disease, HIV/AIDS, smoking, and obesity, among others. The public understands that drug abuse is a disease and a very serious public health issue.
There is considerable public support for addressing the drug abuse problem in this country. In 2002, three-quarters of respondents to a national survey supported mandatory treatment for those arrested for possession and for selling small amounts of illicit drugs. Large majorities in other surveys indicate that they support drug treatment for those incarcerated as well as after release.
The public no longer believes that a nearly exclusive punishment-focused approach to the drug problem is appropriate. Public opinion is clear: punishment is not doing the job. It does not address drug abuse and addiction.
What does this mean for drug control policy? It means a dramatically ramped-up effort at drug demand reduction, primarily though not exclusively focused on treatment. Some prevention/education and some supply control are warranted. But as the title of this chapter implies, it is time to significantly recalibrate or rebalance drug policy. It means continuing supply control efforts, although at reduced levels than has been the case. It means addressing drug abuse and addiction for the justice-involved population as well as those outside of the justice system, many of whom are at risk of becoming justice involved.
For the justice involved, it means treatment in diversion settings (such as diversion court, probation, deferred adjudication, and deferred prosecution) as well as treatment for those incarcerated in jail and prison, and those released on parole or some form of mandatory supervision. But not just treatment. Instead, treatment that conforms to what the research indicates is the most effective for the needs of each individual case.
For the nonjustice involved, it means access to affordable substance abuse treatment, either through adequate insurance coverage for those with insurance or access to public treatment. It simply makes sense that we should keep as many individuals out of the justice system as possible. The primary path for accomplishing that is access to substance abuse treatment.
It is troubling that we knew at least fifteen years ago what we know today about what works and does not work in terms of drug abuse, justice responses to illicit drugs, and public opinion regarding what should and should not be done to address the drug issue. It is pretty clear that elected officials and policymakers have failed taxpayers, those with drug problems, and the criminal justice system. It is time to rectify that.
Probably the most important change that will dramatically increase access to public substance abuse treatment is the Affordable Care Act of 2010 (ACA). The ACA will fundamentally expand insurance coverage for substance abuse and transform the nature of substance abuse treatment. The U.S. Department of Health and Human Services reports that in 2014, approximately 5.1 million individuals with health insurance lack access to substance abuse treatment. In addition, 27 million individuals lack any health insurance coverage at all. In total, the ACA will expand access to substance abuse treatment to 32.1 million under- and uninsured individuals. The ACA also has a parity provision that requires insurers who provide limited substance abuse coverage to expand that coverage to be comparable to the federal standard. This will affect an additional 30.4 million Americans.
Historically, substance abuse treatment has been a separate, typically nonmedical system of treatment facilities. Treatment has generally been focused on counseling and education. Research (Buck 2011) shows that substance abuse treatment facilities that rely mainly on public funding typically offer counseling and education by individuals who have limited professional training. Fewer than half employ Master’s-level counselors; one-third do not have a physician on staff or under contract; and three-quarters of the directors of these facilities have a bachelor’s degree or less.
It is anticipated that this situation will also change dramatically under the ACA. In addition to expanding coverage, the ACA will also elevate substance abuse treatment to the level of other chronic diseases. This means that substance abuse will be considered a medically “essential service.” Substance abuse treatment will be “medicalized,” meaning it will be integrated into the primary practice of medicine, with much greater involvement and participation by physicians, psychologists, nurse practitioners, and other health professionals. Treatment will typically be physician directed because that is generally a requirement for Medicaid reimbursement. Thus, the ACA requirements and Medicaid reimbursement requirements will lead to significant improvements in the substance abuse treatment model, service delivery, staffing of facilities, and overall quality of treatment. The ACA will also likely result in consolidation of the substance abuse treatment industry, leading to a number of larger, better-managed and resourced treatment providers in the market. While expansion of access and the transformation of substance abuse treatment were not the primary goals of the ACA, these are important collateral consequences. As Buck (2011: 1408) concludes:
The result [of the ACA] will be a different system of treatment, with a greater variety of larger providers in the mainstream of general health care. This will be a more ambulatory-based, medically oriented and physician-directed system … health reform’s changes offer the potential to address some of the concerns associated with the current system of public substance abuse care. … If health reform even partially addresses these problems, the result will be a system of care that greatly improves the treatment of substance abuse disorders in the United States.
The ACA will provide the framework within which to effectively and cost-effectively address the most common criminogenic need among the correctional population in the United States. It is a problem for which 23 million Americans are in need of treatment, but do not receive it, largely because of barriers to access. This represents a sea change in substance abuse treatment and a tremendous opportunity for addressing one of the most important public health problems in the nation. That is good news, especially for those states that have opted to participate in Medicaid expansion (as of November 2014, twenty-eight states have elected to participate). Twenty states have declared that they will not participate in the Medicaid expansion under the ACA and three are still considering it. Rick Perry, the governor of Texas, by far the largest state to opt out and the state with the largest Medicaid qualifying population, seems to be basing his decision not to participate on mainly political grounds. On April 1, 2013, Perry was quoted by Reuters as saying:
Seems to me April Fool’s Day is the perfect day to discuss something as foolish as Medicaid expansion, and to remind everyone that Texas will not be held hostage by the Obama administration’s attempt to force us into the fool’s errand of adding more than a million Texans to a broken system.
Perry has failed to offer what will be done for the health needs, or any mental health and substance abuse needs, of those 1.5 million Texans. For those states that have decided not to participate in Medicaid expansion, there are still benefits from the ACA, however, absent an alternative, significant segments of the population will remain uninsured.
Moving in the direction of smart policy regarding substance abuse treatment will require leadership. While the consequences of substance abuse are local and efforts to remedy the problem will occur locally, it makes sense that the process begins with leadership at the national level. After all, crime control, sentencing reform, and the corrections explosion all originated as national initiatives, with financial assistance and technical assistance from the federal government. The advantage is that a national focus will span state-level agendas and provide some continuity and consistency of policy. A national focus will also be more visible, especially a coordinated effort involving Health and Human Services, the Department of Justice, the Surgeon General, and others forging a strategic initiative funded largely by federal resources under the ACA.
Another very important component of recalibrated drug policy is a problem-solving focus on harm reduction. There are obvious, effective, and cost-effective harm reduction policies such as needle exchange, heroin substitution, and use reduction.
In addition to harm reduction, demand reduction, supply control, and prevention/education, there seems to be significant evidence supporting legalization of possession of marijuana. Research indicates that contrary to some expectations, legalization seems to not result in increased usage or increased problem usage. There is also public support; a Pew survey conducted in March 2013 indicates that 52 percent of the public favor legalization of marijuana and over 60 percent believe marijuana use is either morally acceptable or is not a moral issue. Moreover, nearly three-quarters believe that government efforts to enforce marijuana laws cost more than they are worth.
Tokenism is not going to accomplish the task. Just as is the case with drug diversion programs, limited funding and capacity are not going to noticeably impact crime. What is envisioned in this effort to address the drug problem in the United States and get the U.S. criminal justice system out of the business of punishing drug possession offenders to no productive end is a proactive, concerted, national drug policy that is based on what is effective and cost-effective—and appropriately funded. This will involve substantial changes to sentencing laws (the U.S. Attorney General is taking the lead in initiating changes to federal drug sentencing laws), including the elimination of mandatory and mandatory minimum sentences, providing the statutory ability to divert nonviolent drug offenders, and the elimination of asset forfeiture laws that provide incentives for law enforcement and prosecutors to seek traditional criminal justice responses to drug cases. Once again, it is a properly balanced set of initiatives that includes first and foremost dramatically expanded demand reduction (public substance abuse treatment, diversion to treatment, prevention and education), as well as harm reduction, supply control, and federal and state legalization of possession of marijuana.
Most importantly, any drug policy initiatives must be considered in the context of drug use as a public health problem. Thus, tax revenues generated from legalization and regulation of marijuana should be invested in public substance abuse treatment. If the climate becomes amenable to decriminalization of additional substances, cost savings to the justice system should be directed to expansion of treatment.
