People with opioid use disorder (OUD) are disproportionately represented in jails and prisons, with close to one in five reporting regular opioid use prior to incarceration. Oftentimes, it is the substance use itself leading to incarceration. While many have been conditioned to believe hitting rock bottom is necessary for recovery, this line of thinking has proven harmful and misunderstands that jails and prisons are in some way a therapeutic intervention.
This “jail as treatment center” ideology often centers anecdotes of recovery in carceral spaces while ignoring the incredible amounts of trauma, suffering, and premature death inflicted upon most who are detained. The focus on jails as a salve to the ongoing crisis of opioid-related overdoses dismisses far better alternatives and likewise ignores the structural harms of incarceration. The endorsement of carceral humanism — or the possibility of a healing, gentler cage — remains seductive to many but is badly misguided. These cognitive gymnastics launder coercive, punitive political structures to the public as interventions of care, framing jails as both necessary and desirable. This leaves the legal system as the primary intervention, despite its decades of abject failure, for what is decidedly a public health issue.
The Problem
The U.S. remains an outlier among peer nations for both its world-leading incarceration and overdose death rate. While elected officials remain unable or unwilling to address these deeply intertwined crises, overdose deaths continue to rise at alarming rates. In 2022, nearly 108,000 people lost their lives to drug overdoses in the U.S., with the majority stemming from synthetic opioids such as fentanyl. The iron law of prohibition predicts that criminalization of drugs will not make them disappear but instead make the drug supply more unpredictable and potent. In the past 20 years, this has led to the ubiquity of fentanyl and other synthetic opioids coupled with increasing overdose rates and a sprawling carceral regime incapable of addressing it. Overdoses are even rising in jails and prisons themselves, more than doubling since 2000.
At present, troublingly few people are offered treatment for OUDs within jails or prisons across the country. Methadone, naltrexone, and buprenorphine are all medications with strong evidence for reducing opioid use, accidental overdose, and death. This systematic refusal to provide vital treatment in detention speaks not only to a lack of accountability and oversight but a culture that is unable to shift its punitive focus.
Without treatment, following release, 75% of individuals with OUDs relapse within the first 3 months. The risk of overdose can be as high as 129 times the general population risk in the first few weeks. This is due to the lethal combination of lost tolerance, lack of treatment provision, and poor linkage to care upon release. Methadone or buprenorphine treatment during incarceration can lower overdose risk on reentry by over 80%. Despite decades of effective and safe therapies, only a few states have made meaningful strides forward.
This refusal to provide treatment persists due to the widespread stigmatization of people who use certain drugs, incarcerated people, and the use of medications for substance use disorders. Guidelines already exist for treating OUD in jails, yet are not often followed and almost never enforced. The denial of OUD medications has been ruled a form of discrimination in violation of the Americans with Disabilities Act. Despite the fact that incarcerated patients have a legal right to treatment that is on par with care in the community, the medical rights of incarcerated people exist more on paper than in practice. The carceral environment remains one characterized by neglect, boredom, violence, and trauma.
Jail Care Is Failed Care
To access any basic need only as a result of criminalization and incarceration points to the abysmal and callous state of our society’s “safety net” for the most vulnerable and marginalized. Jail care, or the accessing during incarceration of previously unavailable resources — such as food, water, shelter, or medication — should not be lauded. Quite simply, jail care is failed care. It remains more expensive and largely ineffective at delivering health or safety. Putting faith in the criminal legal system to address overdose deaths is foolishly misguided as carceral facilities remain contributors to, not solutions to, the overdose crisis.
Unfortunately, when it comes to drug policy, most resources continue to flow to the criminal legal system and its outsized policing, jail, and prison infrastructure. There remains no justifiable public safety or public health reason to incarcerate thousands of people for use of certain substances. Incredibly, the most common arrest nationally remains simple possession of an illicit substance. Likewise, through harmful policies — such as drug-induced homicide laws, enhanced criminal penalties for fentanyl distribution, onerous parole requirements, the restriction of methadone access, and bans on safe injection sites — the legal system remains invested in a coercive, failed approach. As harm reduction journalist Maia Szalavitz succinctly put it, “Most of the harm we tend to think of as being drug-related is actually drug policy-related.”
A Way Forward
At present, community-based treatment is not nearly as accessible or affordable as it could be. We have never built robust systems of care at a scale equal to the need, as the reversal of Oregon’s decriminalization measure shows. Addressing this requires acknowledging how addiction and overdose death interface with other crises of housing affordability, poverty, inequality, and labor exploitation. We must dramatically increase investments in harm reduction services and eliminate all potential barriers that deter people from engaging with treatment when ready, including cost.
Investing in local, comprehensive systems of care will not just save lives, but ultimately prove cost-effective as well. Over the next two decades, over $50 billion in opioid settlement money will go to state and local governments. This money has the capacity to transform the OUD treatment landscape. The settlements should not serve as a blank check for the criminal legal system. Funds should instead go toward supporting the people and communities most affected by the opioid crisis and the hyper-criminalization of drugs, focusing on repair and future prevention.
Yes, jails and prisons must make OUD treatment medications widely available. Progress on this front remains agonizingly slow. However, we should forcefully reject any framing of jails and prisons as idealized service providers. Nothing epitomizes the need for a non-carceral community-based approach more than the decades-long persistent refusal to treat OUDs in jails or prisons. Recovery is best served not in the criminal legal system but in the community, requiring decriminalization of substances as a public health necessity.
The long-term focus must remain on dramatically decreasing the use of policing and incarceration as “solutions” to problems stemming from inequality and poverty. As professor and prison abolitionist Angela Davis said, “Prisons do not disappear social problems, they disappear human beings.” An embrace of harm reduction, including the essential tenet that people will use substances, and that we should take actions to minimize the harm this use causes them, is urgently needed. It is support and care, not coercion, that ultimately proves effective at keeping people who use drugs alive and offers the best chance of recovery.
Kaitlin Cole is a medical student at Emory University School of Medicine in Atlanta. Prior to enrolling in medical school, she worked as an opioid prevention outreach coordinator with AmeriCorps. Mark Spencer, MD, is an internal medicine physician and assistant professor of medicine at Emory University. His work focuses on the contribution of American policing and carceral systems to adverse health outcomes and health disparities.
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