Justice as Relationship? Rethinking the Role of Legal Leverage in Court-Based Treatment and Beyond

By: Julian Adler (he/him/his)

Courts Featured Jurisdictions Substance Abuse May 22, 2020

It’s time for criminal justice professionals to reconsider whether and to what extent leveraging a jail or prison sentence is necessary to effectively engage people in behavioral health treatment – or, for that matter, in pretrial services, or parole and probation supervision.

Indeed, the cudgel of incarceration or reincarceration for non-compliance has long been seen as a staple of court-based treatment. But what if that assumption – or at least the field’s overreliance on it – is wrong? Not just from a values perspective, but empirically?

In the spirit of the Safety and Justice Challenge, which is seeking to reduce the use of jail across America, my colleagues and I recently published a brief called “The Myth Of Legal Leverage?”, which explores this question further. Drawing on various bodies of empirical research, the paper posits that relational factors are likely the best and most salient predictors of good outcomes – from recidivism reduction to sustainable recovery.

Strikingly, this argument resonates more broadly across the sciences (e.g., epigenetics, interpersonal neurobiology, attachment, post-traumatic growth, etc.), where there has emerged an elegant consensus about how people change. From our earliest moments as infants and throughout the course of our lives, our capacity for change turns on our access to good, supportive relationships.

The “still-face experiment”.

Consider the oft-cited “still-face experiment”, where a mother plays with her baby, and then unexpectedly stops responding to the baby with a still face. You can watch it being conducted by Harvard researchers here. The baby very quickly picks up on the mother’s non-engagement, and uses all her abilities to try get the mother back. She smiles, she points, she cries, seeking to get her mother to respond. In just two minutes, when babies don’t get a normal reaction, they feel the stress of the experience, and lose control of their bodies due to the overwhelming and destabilizing anxiety.

It turns out that people retain this sensitivity to—and constitutional need for—intersubjective connection their entire lives. Even the brain of a person who has experienced severe abuse and neglect can still “rewire” in a positive and healthy way once it finds a secure, healing relationship. All of these developments point to the fact that we’re relational beings, and that relationship is a space where we can overcome obstacles in our past and enable us to heal and thrive in the future.

Admittedly, centering relationship marks a challenge to the whole criminal justice field, to shift from a model that pathologizes people, and seeks to control them, to one that values them as human beings that need help and support. Among other things, we will need a seismic culture change to make it happen.

But if we listen to people with lived experience with the criminal justice system, we repeatedly hear that being treated on a human level, in a collaborative and empathic way, and in a way that affirms their ability to overcome challenging life circumstances, is absolutely key to their success.

Since the completion of “The Myth Of Legal Leverage?”, we have witnessed significant reductions in the use of jail due to COVID-19. As we gaze ahead to a post-COVID-19 justice landscape, many of us are wondering whether and how we might sustain—or even accelerate—these reductions. Is this moment a proof of concept for a country that can safely thrive with far less incarceration? Will we make the necessary investments in community-based and-led preventative programs to keep people out of the justice system in the first instance? Will we take an unflinching and intersectional look at how system actors exercise their discretion to incarcerate? For folks with more acute behavioral health needs, can we effectively prevent a “third wave” of institutionalization by finally creating a comprehensive and equitable continuum of outpatient services (in lieu of psychiatric and correctional institutions)?

While there are rarely easy answers, there is little doubt that a finer realization of justice in America will demand a deeper appreciation of relationship and our shared humanness.

Changing policy responses to drug use must be shaped by a new perspective on addiction

By: Craig DeRoche

Interagency Collaboration Substance Abuse May 6, 2020

Have you heard about the latest addiction problem in America? They’re calling it an explosion—a “heroin epidemic.”

Americans are turning to drugs in unprecedented numbers, and our leaders are concerned. In 2014, drug overdoses, largely from heroin and prescription pain pills, killed more people than car accidents, homicides, or suicides, and thousands of others are trapped in cycles of addiction and incarceration. People not normally portrayed as addicts in the media—like youth, soccer moms, and professionals in predominantly suburban and rural areas—are fueling the recent explosion of opioid drug use, broadening the visibility of drug addiction in communities largely untouched by the urban-based drug waves of the ‘80s and ‘90s.

In response, President Obama has asked for over $1.1 billion to address the problem. More than 20 governors have set up a task force to come up with recommendations to stop the scourge of addiction. Advocacy groups are pushing for a solution to this problem that is ravaging our communities, destroying families, and overburdening our local jails.

According to a recent report, 68 percent of jail inmates have a diagnosable substance abuse problem.  However, less than 15 percent of people receive substance abuse treatment behind bars. It’s clear that the criminal justice system is not an effective response to public health problems. Our leaders are working diligently and in a remarkably nonpartisan way to address what could be the largest behavioral health issue of our time. A bill recently passed by an overwhelming majority in the Senate and awaiting a vote in the House would give grant money to help communities develop drug treatment programs as an alternative to incarceration and provide treatment and prevention programs for those behind bars, a promising step.

But in addition to legislative reform, to truly solve this drug crisis, we must also understand the basis of addiction. Our society has historically portrayed both crime and drug use as problems. Most parents, siblings, and friends of those living in addiction or engaging in criminal activity say to the person they love, “You have a problem.”

The truth is, for the person living in addiction, the drugs and alcohol are their solution, not their problem. The person has problems for sure, but we should be clear: they are seeking a solution—to loneliness, shame, traumatic experiences, or other causes of emotional pain—and they have chosen drugs as their antidote. The same is true for people who commit crime as a solution to problems like poverty, homelessness, or lack of employment. We need to help these people find better solutions, and this requires rethinking our perspective on addiction. The War on Drugs failed in part because it neglected the vital role of restoration throughout the criminal justice system.

Our criminal justice system is a place that commands the attention of people involved in it. In many cases, this attention lasts for years as they move through the different phases of the criminal case trajectory, and becomes all-encompassing during incarceration. What we do with this time to help people arrive at a constructive, worthy outcome is critical. Does our criminal justice system, from arrest and trial to sentencing and reentry, focus on solving the problems that lead to the crime? While in the system, are people exposed to a constructive culture to unwind the years of decisions that landed them in drug use and criminal activity? And what about those who have repaid their debt and found a healthy solution to their problems? Are we celebrating them and inviting them to use their experience for the benefit of others, or are we continuing to punish them to no end with collateral consequences of prior convictions, like disqualification from jobs?

Too many times, unfortunately, the answers to these questions show that we are missing an opportunity for rehabilitation, and as a result, overburdening our jails with people who cycle through them. In some jurisdictions, however, local leaders are rethinking how to improve both public health and public safety. In Gloucester, Massachusetts, the police chief, Leonard Campanello, made an announcement that “any addict who walks into the police station with the remainder of their drug equipment (needles, etc.) or drugs and asks for help will NOT be charged. Instead we will walk them through the system toward detox and recovery.” In Maine, a proposed bill would create a local-state partnership to assign low-level offenders struggling with addiction to community-based treatment and support instead of jail or prison. These are better solutions to addiction.

I learned this important lesson the hard way. I recently chronicled the pathway I took in 29 years of addiction, arrests, and eventual recovery in a book called Highly Functional: A Collision of Addiction, Justice and Grace. The book was written to help people who are currently living with problems that have no visible solutions. It is also written to help families, friends, and our community leaders understand what addiction and criminal choices look like from the inside.

During my experience with addiction, I was called “highly functional” by some people who didn’t understand what addiction and crime actually feel like from those caught in the middle of it. I was successful in business, held high political office at a very young age, and was married with children—and yet, I was in and out of addiction the whole time. Once I got sober, I learned I had a lot of unhealthy “solutions,” such as substance abuse, which I used to call my problems. I work to change them now, one at a time. I was fortunate that my misguided solutions never broke up my family or landed me in jail for longer than a night, but that doesn’t mean my coping strategies were healthy or effective. By working to get healthier myself, I remember that I’m not really better than anyone currently involved in the justice system. I’m also reminded of how silly the phrase “highly functional” really is.

The Importance of Peer Support

By: Lisa Maye, MSW

Mental Health Pretrial Services Substance Abuse April 13, 2020

Given the serious mental health and substance use issues among justice-involved individuals, you might think that the criminal justice system would rely heavily on peer support groups to help address their needs. Unfortunately, this is not the case.

Peer support is an effective and helpful approach that can divert people with mental illness and substance use issues from the criminal justice system. When implemented correctly, it can be a formidable force.

It also has the potential to vastly reduce jail populations, in line with the goals of the Safety and Justice Challenge.

“Peer support providers are people with a personal experience of recovery from mental health, substance use, or trauma conditions who receive specialized training and supervision to guide and support others who are experiencing similar mental health, substance use or trauma issues toward increased wellness,” says the definition developed by the International Association of Peer Supporters (INAPS).

“The term peer supporter is an umbrella for many different peer support titles and roles,” the INAPS definition says. “Such as peer advocate, peer counselor, peer coach, peer mentor, peer educator, peer support group leader, peer wellness coach, recovery coach, recovery support specialist, and many more.”

The INAPS has also developed “National Practice Guidelines for Peer Supporters” which outlines 12 core ethical values for the practice of peer support: Peer support is voluntary; Peer supporters are hopeful; Peer supports are open minded; Peer supporters are empathetic; Peer supports are respectful; Peer supporters facilitate change; Peer supporters are honest and direct; Peer support is mutual and reciprocal; Peer support is equally shared power; Peer support is strengths-focused; Peer support is transparent; Peer support is person-driven.

Peer supporters provide services in both one-on-one and small group formats. They can assist individuals with an array of recovery-based topics, such as coping skills, developing personal recovery plans, crisis and relapse prevention, illness management and healthy lifestyle behaviors.

As many criminal justice offenders also have a long history of psychosocial problems that have contributed to their substance abuse, interpersonal difficulties with family members, difficulties in sustaining long-term relationships, emotional and psychological problems and disorders, difficulty managing anger and stress, lack of education and vocational skills, and problems finding and maintaining gainful employment, the utilization of peers for diversionary purposes to reduce the number of people booked into jail can prove to be a highly effective strategy.

While not getting too far into showing how many similarities exist between substance abuse treatment for those in the criminal justice system and for those in the general population, people in the criminal justice system have added stressors, including but not limited to their precarious legal situation. Criminal justice clients also tend to have criminal thinking and criminal values characteristics that affect treatment.

Peers can have more of an opportunity than treatment staff to observe each other’s behavior. Peers using a group treatment modality have the capacity to give more immediate feedback for positive steps to change and for negative thinking and behavior while in the community. Peers can often give feedback in ways that the client can more readily assimilate, enabling criminal justice clients to often quickly and accurately see the relapse signs in themselves. Using peer support and feedback also serves to prepare incarcerated criminal justice clients for using peer support organizations in the community.

One of the very tangible benefits that peer supporters bring is their first-hand, lived experience with mental health issues. Because of this, they can easily relate to individuals who are still struggling with their own personal challenges. They can also share the tips, tools, and strategies which have been useful for them, which may also be worthwhile for the person they are helping.

Perhaps one of the greatest gifts peer supporters bring to others is hope and inspiration, for they are a living role model of how it’s possible to grow, learn and have a fulfilling life while still coping with a significant and sometimes lifelong health challenge.

Broader understanding of peer support and its potential to reduce jail populations can only be a good thing for the criminal legal system. For those curious to learn more, I’d recommend a documentary which aired in April on KPBS in Florida, entitled The Definition of Insanity. It explores a peer support model in Dade County, Miami, through the eyes of people involved.

­–Lisa Maye, MSW is a Senior Project Associate at Policy Research, Inc.



Jails’ COVID-19 Response Must Support People With Behavioral Health Challenges

By: Ashley Krider, MS

COVID Mental Health Substance Abuse March 25, 2020

In an effort to prevent the spread of COVID-19, criminal justice system players across the country are engaging in new or broadened management strategies.

Many jails are releasing individuals who are medically at-risk, and reducing jail bookings for non-violent and low-level offenders where possible. Likewise, court systems have settled some cases with guilty pleas, and released people who are being held on non-violent and low-level offenses. Police have also begun or increased issuing summonses in lieu of arrest for such offenses.

These are, of course, positive steps. This is particularly promising as many of the changes being instituted now have long been suggested by those seeking to bring about justice system reform while maintaining public safety.

However, many affected individuals are those with mental illness or other behavioral health challenges, and it is crucial that we do not simply send them back into the community without ensuring they have access to adequate treatment, services and support.

Behavioral health issues have not yet featured loudly enough within the flurry of COVID-19 news coverage focused on jails and prisons. Even amidst a national health crisis, we urge real thoughtfulness concerning the needs of this vulnerable population.

We agree that people with behavioral health challenges should indeed be among the high-risk jail populations currently being prioritized for release. But people with mental health needs and substance use disorders face increased challenges amidst a global pandemic, including not being able to meet with their service providers.

For those struggling with addiction, social isolation can contribute to relapse. Add to that the anxiety of being released from jail into uncertain housing or medical circumstances. We risk setting people up to fail without adequate support.

Put simply, addiction and mental illness do not care about the coronavirus outbreak. Consistency in care is more important than ever during this time of stress and uncertainty. Potentially releasing individuals to housing uncertainty and homelessness further calls for thoughtful release planning to reduce the impact on stressed homeless care networks and the wellbeing of each individual.

Justice systems are called upon to truly collaborate with community-based service providers to allow for creativity in care and flexibility in ridged policies. Communities are prioritizing services, triaging caseloads, using technology, removing barriers, and embracing new partners, including harm-reduction services.

The phrase “Divert to what?” has a new urgency during this challenging time. Community services must be funded, be accessible, and have capacity. One potential opportunity from the current crisis is that diversion and justice system management measures put in place now, out of necessity, have the potential to prove their longer-term value.

One potential opportunity from the current crisis is that diversion and justice system management measures put in place now, out of necessity, have the potential to prove their longer-term value.

We encourage justice stakeholders to examine and articulate their criteria to divert or release, and to track relevant data and outcomes to further our collective understanding of how public safety can be maintained through public health strategies.

We urge all stakeholders working to contain and control the coronavirus within their justice systems to consider the long-term impact of crisis-driven decision-making on people with behavioral health needs.

Let us remember that weaknesses in our systems of care for people with behavioral health challenges do not end when a person walks through a jail door, whatever the circumstances of their release. We urge communities to continue to work together constructively to address these challenges, long after the current crisis.

Pioneering a New Model for Addressing Substance Abuse

By: Betsy Pearl

Community Engagement Substance Abuse May 3, 2018

As recently as 2017, the city o­­f Dayton, Ohio was considered the epicenter of the nation’s opioid epidemic. That year, Dayton logged the highest overdose death rate in the state and one of the highest rates in the country.

Since then, however, the city has cut its overdose deaths in half. Led by Mayor Nan Whaley, Dayton has pioneered a new model for addressing substance misuse that is reshaping the way that communities think about addiction.

When the opioid epidemic hit the Dayton region, there was no roadmap for effectively addressing substance misuse crises. Previous epidemics were tragically mishandled, with policymakers relying on “tough on crime” approaches that criminalized addiction and targeted communities of color. With a commitment to avoiding the mistakes of the past, Dayton leaders forged a new path that focused on treating addiction like a disease—not a crime. The community came together to mount a coordinated response, taking risks along the way that ultimately established Dayton as a national model for saving lives.

Through the Mayors for Smart on Crime initiative, the Center for American Progress teamed up with Mayor Whaley to tell Dayton’s story. The resulting report, authored by Erin Welch, serves as a guide for other leaders to develop a compassionate, comprehensive response to substance use epidemics. Welch joined Mayor Whaley’s team last summer, as part of her Master of Public Policy and Management program at Carnegie Mellon University. She wrote the report in memory of her brother, who died of an overdose in January 2018.

For policymakers looking to stem the tide of opioid misuse, Dayton’s experience offers a number of key lessons:

  • Follow the data. Data is at the heart of all of Dayton’s interventions. In fact, the epidemic went largely undetected until the Dayton Police Department launched a collaborative effort in 2012 to identify the root causes of high property crime rates. An analysis of interagency data found that many of the individuals involved in property crimes were struggling with opioid addiction, revealing for the first time the scope of substance misuse in the city. Data helped catalyze the city’s response to the emerging crisis and has continued to guide decision-making ever since. Partners across the public and nonprofit sectors have established a data sharing structure that allows for regular analysis of overdose patterns, providing a fuller picture of trends across geographic and demographic groups. Armed with timely and comprehensive data, service providers are able to more effectively target outreach and interventions to meet the needs of the community.
  • Fight the stigma. Too often, the stigma attached to addiction prevents people from seeking help. Stigma can also shape the way that medical professionals and justice system practitioners respond to people with substance use disorders, creating additional barriers to accessing effective treatment. To combat the stigma around substance misuse, Dayton has built a community of support and recovery. Each week, a local nonprofit hosts a meeting for individuals impacted by addiction, where the group celebrates the milestones of individuals in recovery and offers support for those who are in active addiction. Unlike traditional 12-step programs, which emphasize the anonymity of participants, Dayton’s program invites loved ones to join meetings to learn about the nature of the disease and raise awareness about the number of people affected by addiction. Partners also sponsor community-wide events, from rallies to business roundtables, focused on educating the public on substance use disorders and offering a message of hope for those impacted by addiction. Through collective effort, Dayton is establishing a shared understanding that addiction is a chronic illness, not a personal failing.
  • Prioritize saving lives. Dayton’s first priority is saving lives. Whereas traditional approaches to addressing substance misuse tend to be singularly focused on promoting abstinence, Dayton’s model is rooted in the understanding that individuals can only successfully enter recovery when they’re ready to take that step. The community has taken bold action to support the wellbeing of those in active addiction until they are ready to seek treatment, focusing on reducing the risk of disease and fatal overdose. This philosophy is known as “harm reduction.” Dayton was one of the first jurisdictions in the state to declare a state of emergency in response to the opioid epidemic, a move that freed up resources to devote to harm reduction services. All first responders are now equipped with naloxone, the lifesaving overdose reversal drug, and many members of the community are trained to use and carry the medication as well. With widespread access to naloxone, the community has seen a significant decline in the fatality rate of overdoses. Dayton also launched a syringe exchange program, called CarePoint, where residents can swap used syringes for sterile injection equipment. In addition to limiting the spread of disease, CarePoint serves as an entry-point for treatment. CarePoint staff members build trusting relationships with clients, building a support system for individuals struggling with substance use disorders. Once clients are ready to enter recovery, CarePoint staff can quickly help them get the treatment they need.

Though there’s still much work left to do, the city has made significant strides towards combatting the opioid crisis. As communities grapple with this national epidemic, policymakers should look toward the compassionate, collective model developed in Dayton, Ohio.