Can We Help Opioid Abusers Without Jailing Them?

As the nation continue to suffer from the opioid epidemic, programs that can divert substance abusers away from the criminal justice system are critical. One increasingly popular approach called “deflection” partners police and public health workers.

Out of the tremendous heartbreak and suffering of our nation’s opioid epidemic, something new and hopeful is happening in communities across the country.

Police officers and drug treatment providers, previously unaccustomed and sometimes even reluctant to partner with one another, now can be found working side by side to reverse overdoses and connect people to drug treatment.

And while these emerging public safety-public health partnerships are not limited to combatting opioids—they also can address drug use in general, housing, mental health, and social services—it is the overwhelming number of people overdosing and dying from opioids that has accelerated the growth of these collaborations, and catalyzed their value in both saving lives and fighting crime.

The new approach is called ‘deflection.”

In deflection, law enforcement plays the critical role of connecting people to community-based treatment partners. This interaction may occur right on the street at the point of encounter, in the police or fire station, at the person’s home, or wherever the initial encounter occurs, all without fear of arrest.

On the receiving end of this “warm hand-off” are treatment providers and/or peer recovery partners who follow through to ensure the individual’s access to services. The operational specifics of each deflection program depend on the design of the local initiative, but the core idea is consistent: Instead of being a doorway into the justice system, law enforcement instead deflects people with substance use disorders to treatment.

Taken together, these new relationships signify the growing importance of “deflection,” which operates squarely at the intersection of law enforcement and treatment.

Sometimes referred to by other terms such as pre-arrest diversion, deflection is growing rapidly from its infancy. A few such programs came about in the 1990s and then faded, but the opioid epidemic has prompted new urgency for these efforts, birthing, or rebirthing, a wide variety of deflection efforts.

The most visible entry to this new stage was Seattle’s Law Enforcement Assisted Diversion (LEAD) program in 2011. Others soon followed, from the 2014 Civil Citation Network in Alachua and Leon County (FL) and the 2014 Drug Abuse Resistance Team (DART) in Lucas County, Ohio; to the 2015 “Angel” and “Arlington Outreach” programs in Massachusetts and the 2015 Quick Response Teams (QRT) developing in communities in Ohio and elsewhere around the country.

Combined with its longer-serving counterparts on the mental health side—such as Crisis Intervention Teams, co-responders, and triage centers—deflection is changing the narrative about fighting crime from “We can’t arrest our way out of this” to “We have better options than arrest.”

Deflection as a term is differentiated from its cousin in the justice system: diversion. In deflection, it is the presence of a behavioral health issue that is driving the contact with police that in turn triggers the deflection (movement) away from the justice system and to community-based behavioral health.

In the vast majority of these cases there are no criminal charges present, responding to the reality that 81 percent of police encounters are, in the final analysis, social service calls. (There are a smaller number of deflection efforts that allow for criminal charges to be placed in abeyance by the police or a citation with mandatory treatment is issued but still in these cases, no traditional justice involvement is required.)

To be sure, some ongoing contact between law enforcement and treatment is helpful beyond that deflection handoff. In some cases, ongoing communication between partners can serve to de-conflict ongoing encounters, share status updates, and support the person who’s been deflected to treatment.

Still, the intent is not meant to add to the already unrealistic expectations placed upon law enforcement to solve chronic social problems, but instead to lighten the burden from where it does not belong – law enforcement – and instead place it with community treatment, housing, healthcare, and social services.

Deflection does increase the demand for treatment capacity and, as such, strategies and action are needed to assure quick and sufficient treatment availability wherever deflection initiatives exist.

In looking at the variety of existing deflection programs, five “pathways” broadly summarize different ways that law enforcement is connecting people to treatment:

  • Self-referral
  • Active Outreach
  • Naloxone Plus
  • Officer Prevention
  • Officer Intervention

Each of these pathways describes the linkage point between police and treatment. While jurisdictions will usually start by facilitating a single pathway, in time as they get experience in deflection and see first-hand the power of their collaborative work, they will begin to add in additional pathways.

Currently, out of 18,000 law enforcement agencies in the United States, it is estimated that slightly over 600 departments are doing some type of deflection.

In the face of a national opioid epidemic, the growth of the field has occurred almost entirely in the last three years. As such, programs continue to be developed and implemented across the county—responding not just to opioids, but to any drug crises that communities face—collectively they can actually reduce the flow of people into the criminal justice system, while also offering necessary referrals to community-based treatment, housing, and services.

Annually, our nation’s 800,000 law enforcement officers encounter 68 million people, some 12 million of whom will end up churning through our jails. Police also encounter millions of people each year for whom there are no criminal charges present, but who have health, housing, and social service needs.

Jac Charlier

Jac A. Charlier

And, given that the majority of people who currently enter the justice system have a substance use disorder, a mental health condition, or both, deflection provides the opportunity to redirect people to treatment before they reach the justice system, emergency rooms, or homeless shelters.

In a country where over 72,000 people died from overdose in 2017 alone, the expansion of these deflection efforts by law enforcement, and the parallel expansion of treatment capacity, cannot happen soon enough.

Jac A. Charlier is executive director of the TASC Center for Health and Justice, and co-founder of the Police, Treatment, and Community Collaborative (PTACC). He welcomes readers’comments. NOTE: Jac is among the speakers scheduled for this year’s John Jay/HF Guggenheim Symposium on Crime in America. Please watch our site for upcoming information on how to register.


The Perils of ‘Off-Label Sentencing’

Risk-assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, are increasingly being applied to sentencing decisions. But they may cause more harm than good, writes a University of Richmond law professor.

Current criminal justice reform efforts are risk-obsessed. Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.

And recently, risk-based reforms have entered a new arena: sentencing.

Through the practice ofactuarial sentencing” (also called “evidence-based sentencing”), jurisdictions across the country are allowing or requiring sentencing judges to consider the recidivism predictions of actuarial risk assessment tools.

An actuarial risk assessment tool is essentially a structured survey that inquires whether an individual has certain “recidivism risk factors,” or characteristics that statistically correlate with recidivism. The individual is scored points for the presence or absence of these factors, and based on the individual’s total score, he or she is deemed to pose a low, medium, or high risk of recidivism.

Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison. Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

 And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.

In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone. Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

 As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another. If we know how to predict recidivism, why not use that information broadly?

Isn’t this a prime example of an approach that is smart—rather than tough—on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration—and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.

They are intended to be used after a judge has announced the sentence. They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due. In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate. While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly—not because doing so will increase her prospects of rehabilitation, but because it will increase public safety.

In other words, they may use the risk prediction to incapacitate, not rehabilitate.

This conclusion begs the question: Don’t we want judges to consider an individual’s risk level when determining a sentence? Quite frankly, no—at least not in the way these tools measure and define risk.

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system. In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are.

Moreover, risk assessment tools define recidivism risk broadly. Many define it as the likelihood an individual will be convicted of a crime of unspecified severity in the preceding years. Others are even less precise, predicting the likelihood that a person will be arrested for any reason (regardless of whether the arrest is justified or results in charges).

Thus, the question these tools answer is: how likely is it that a person with these characteristics will commit or be arrested for any type of criminal activity—including low-level nonviolent activity—in the coming years? Even if we accept that judges should be mindful of public safety in determining a sentence, these tools do not advance that inquiry.

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand—the risk that counts for sentencing purposes.

Thus, it is not clear that these correctional tools advance a sound sentencing inquiry. But even if they did, it is questionable whether they actually enhance the accuracy of the predictions judges would make in their absence.

In fact, computer scientists recently found that people with little or no criminal justice expertise were able to predict recidivism at the same level of accuracy—approximately 65 percent—as a popular risk assessment tool.

One thing is clear: many recidivism risk factors are markers of relative structural disadvantage and reflect historically biased criminal justice practices.

Thus, even if actuarial sentencing benefits people who are sufficiently low-risk to be diverted from prison, that benefit will not be evenly or fairly distributed amongst the defendant population. And those who are deemed a high risk based on these same factors may be more likely to be incarcerated, and perhaps for longer periods.

Erin Collins

Erin R. Collins

As I conclude in “Punishing Risk,” as top criminal justice policy makers call for a revival of the war on crime, “now, more than ever, we [must] carefully scrutinize how data is incorporated into criminal justice decisions, with particular attention to how we label people as ‘risky,’ and the consequences of that label.”

Erin R. Collins is an Assistant Professor of Law at the University of Richmond School of Law. She welcomes readers’ comments.