Kate Boulton: To help end overdose, we have to transform probation

As an increasing number of criminal justice policymakers acknowledge that we can’t punish our way out of the overdose crisis and as America faces a broader reckoning around our criminal legal system, we must address community supervision and its role as a driver of mass incarceration.

For people who struggle with drug and alcohol use, this is a particular problem. All too often, people are being sent to jail for violations of probation that reflect their unmet health needs rather than any public safety concern.

Approximately 1,500 years of additional criminal justice supervision result from substance-related resentencing of Pennsylvanians sentenced to community supervision each year, according to a recent research report from the Pennsylvania Commission on Sentencing. Around three-quarters of this additional supervision is probation, but it also represents jail and prison incarceration.

The driver of this additional criminal justice supervision? Primarily technical violations, or violations of the rules of supervision, such as a failed drug test or missed appointment, rather than a new criminal offense.

Incarcerating people because they struggle with substance use doesn’t make our communities safer or improve health outcomes. Yet incarceration-based sanctions and probation revocation for substance use are the natural consequences of an approach driven by abstinence-based responses to people who use drugs. At a time when the overdose epidemic claimed more than 70,000 lives last year and continues to devastate communities, we need a new approach. For safer and healthier communities, we need to root our response to drug use in public health and harm reduction, for all people, including those on probation.

The Pennsylvania Commission on Sentencing’s research, which was funded by Vital Strategies, examined substance use as a driver of probation revocation and resentencing in the commonwealth. The results were stark. Nearly one-third (up to 30.5%) of all resentencing events for people sentenced to community supervision are attributable to substance use. Individuals who are substance-involved also experience worse outcomes. They are 29% more likely to be resentenced compared to those without known substance involvement and 34% more likely to be resentenced for a technical violation. While it may seem obvious that people who struggle with substance use will have worse probation outcomes, what this really speaks to is the fact that conditions of supervision and lack of access to evidence-based treatment and other essential supports often set people up to fail.

The stakes are high for the choices we make to support people with substance use disorder who are under supervision. Pennsylvania was estimated to have over 4,300 drug-related deaths in 2019 and recent experience suggests that the covid-19 pandemic is intensifying the overdose crisis in the commonwealth. At the end of 2018, there were over 178,000 people on probation in Pennsylvania.

In our work at Vital Strategies, we recognize that addressing the intersection between substance use, probation and incarceration is key to any effort to reduce overdose deaths overall. Research and data consistently demonstrate the relationship between criminal justice policy and the overdose crisis. For example, research has shown that nearly two-thirds of all people in jail have a substance use disorder, that more than half of people who face multiple arrests report a substance use disorder, and that people who have been recently incarcerated face a significantly elevated risk of fatal overdose soon after release.

Relying on incarceration as a response to substance use by individuals under supervision is a no-win solution. Even a short jail stay as a sanction for a substance-related violation can be highly disruptive to a person’s work, housing, and family situation, in addition to placing them at increased risk of fatal overdose. Correctional settings are also amplifiers of infectious diseases such as covid-19 because social distancing is not possible and other risk reduction measures are often inadequate.

In this context, the injustice of sending someone to jail for a missed appointment or positive drug test is even more apparent. For those who aren’t sent to jail but instead receive additional probation time, extensive supervision conditions and abstinence-based requirements can continue to disrupt their lives, and place them at ongoing risk of incarceration. Importantly, the report recommends improving access to evidence-based treatment for those under supervision, and consideration of less reliance on incarceration for substance use-related violations of probation.

Given the disproportionately harmful impact of the criminal legal system on communities of color, shifting how probation and judges respond to drug-related technical violations would also reduce the inequitable harm of the overdose crisis. Resources currently directed at incarceration and lengthy probation terms for people who use drugs would be better spent on voluntary evidence-based treatment options and harm reduction supports.

Kate Boulton is legal technical adviser, Overdose Prevention Program, for Vital Strategies.