Opioid misuse can often lead to arrests and incarceration. There is little evidence that such sentencing helps to reduce drug related crime or provide rehabilitation for those involved. Sometimes, courts mandate opioid use disorder treatment during sentencing. This is still rare, but is growing in popularity as we change our focus from punishment to treatment.
The state court system is a top referral source for addiction treatment within the United States. Experts in the medical community feel that far too many people go to jail for addiction instead of receiving the medical treatment they need and deserve. 
Opioid Crimes & the Legal System
Illegal opioid possession and distribution often results in legal action. Research conducted between 2009 and 2019 showed that: 
- More than a million people are arrested each year for drug related offenses.
- Only 1 person in 13 with an addiction gets treatment while incarcerated.
- More than 305,000 drug possession arrests in 2019 involved heroin, cocaine, or derivatives.
- More than 62,000 drug possession arrests in 2019 involved synthetic or manufactured drugs.
- While marijuana-related arrests decreased during the study period, opioid arrests remained much the same.
Heroin & the Law
Heroin is a Schedule I controlled substance in the United States, meaning it is not recognized as having any valid medical application.Because it has no legitimate medical indication, anyone in possession of heroin is breaking the law.
Prescription Opioids & the Law
Possession of some prescription opioids (by the person to whom they were prescribed) is legal if a few conditions are met.
You can use opioids legally if you meet these criteria:
- You have a valid prescription.
- The prescription is in your name.
- You use the drug per your doctor’s orders.
Even though some opioids are permitted with a prescription, the prescription specifically names a patient for whom the opioids are intended. That means only that person with the prescription can legally possess or consume the opioids.
Some people believe these drugs can be distributed or shared with family or friends because the medications were legally obtained. This is untrue. It is illegal to give an opioid to a friend or family member even if you personally have a prescription for that medication.
Sharing one’s opioid prescriptions with friends or family is illegal, even if one’s intention is not to sell them but merely to help treat pain. Never share your prescription medications with others.
Prevalence of Drug-Related Arrests
In 2020, close to 87% of all arrests involved the possession of a controlled substance. Less than 14% involved the sale or manufacture of drugs.
The number of people arrested for drug offenses has skyrocketed during the past several decades. In 1973, the FBI’s Uniform Crime Reports noted about 328,000 arrests for drug law violations. In 2020, there were 1,155,610 such arrests.
Controversies Over Drug Crimes & Sentencing
There is significant controversy over drug related crimes and punishment in the United States. There is ample evidence that minority populations are disproportionately punished for drug related crimes. In addition, there is a lot of controversy over the lack of treatment programs for individuals charged with drug related crime.
Many seek to reform our federal drug laws to be more equitable and to help get people with addiction disorders into treatment instead of punishing them legally.
Here we will break down some of the more common controversies around drug sentencing:
Controversy 1: Sentencing Varies Greatly Between States
Sentencing for possession with the intention of distribution depends on how much of a drug is being given away and where (in what state) the crime occurs.
Here is one example: In Arizona, people spend an average of 17 months in prison for these offenses. In Iowa, they spend 111 months.
Here is another example: Tennessee imprisons three times more drug offenders than New Jersey, even though the states’ rates of self-reported drug use are about the same. 
Many think it is unfair that people can receive different punishments for the same drug related offense based solely on what state they live in.
Controversy 2: Incarceration Does Not Deter Future Drug-Related Crime
Despite the launch of the War on Drugs and zero-tolerance policies, decades’ worth of research and studies have shown that incarcerating people for crimes related to opioid possession and distribution has little effect on deterring these individuals or others from misusing drugs in the future. Instead, incarceration is associated with increased mortality from opioid overdoses. Because incarceration does not reduce the rates of recidivism to drug use, many feel that our drug laws require reform.
Controversy 3: Incarceration Does Not Adequately Address Substance Use Disorder
Many incarcerated individuals are imprisoned for drug-related crimes due to unidentified or untreated substance use disorders. However, addiction treatment and recovery resources in the prison system are notoriously limited. Less than 10% of all prisons provide all three approved medications to help people with OUD.
Individuals with OUD often promptly resume their habits upon release from prison, particularly if they’re not maintained on medication. Researchers say people recently released from prison have a 40-fold increase in overdose fatality risks compared to the general population.
Controversy 4: Racial Inequalities in Opioid Arrests & Incarceration
People of color face much more stringent consequences when they enter the legal system:
- Black people are 19 times more likely to be convicted of drug crimes than their white counterparts.
- By age 35, about half of all Black men have been arrested, and 35% have been convicted.
- Experiencing incarceration as an adult is associated with a lower life expectancy for Black people.
In state prisons, 34% of people identify as Black, when they only make up 12% of the United States population.
These are just a few of the many statistics that reflect racial inequities in drug-related incarcerations in the United States.
Controversy 5: Mandatory Minimums
Mandatory minimums are the policy of mandating that a person convicted of a crime receive a standardized punishment regardless of any unique or extenuating factors that might otherwise be taken into account by a judge when sentencing.
Charges with mandatory minimum sentences are brought against Black defendants at higher rates. As a result, Black males receive sentences that are about 20% longer than white males. 
Controversy 6: Lack of Efficacy of Incarceration in Addressing Public Safety
Despite all the money and effort put into incarceration to deter drug crimes, the wide scale imprisonment of people for opioid-related crimes has not been shown to improve public safety.[4, 13]
How Much Money Is Spent on Drug Arrests?
The United States has spent over a trillion dollars pursuing prosection for drug related crimes, and yet drug use has continued for decades.
In 2015, state governments spent $7 billion to arrest and imprison people for drug-related charges.
In North Carolina alone, the government spent $70 million that year arresting people for possession. Georgia spent $78.6 million, which is 1.6 times more than the state’s budget for substance misuse treatment. 
Many feel that if we put as much money into treating Substance use disorders as we do into prosecuting drug crimes, we would be much more adequately addressing this country’s opioid epidemic.
A Changing Approach to Opioid Sentencing: Treatment Instead of Incarceration
In attempts to deter further crimes related to opioid use, many courts sentenced people arrested for opioid-related crimes to mandatory treatment programs instead of incarceration (“drug courts”), the rationale being that treatment is more effective than incarceration at preventing recidivism.
Studies suggest that drug courts and treatment can reduce recidivism rates, although this is hard to study given the current wide range of types and models for various drug treatment programs which vary greatly state by state. 
Nonetheless, Drug courts are potentially a viable alternative to incarceration for opioid related crimes. 
In health care, we understand how misguided it is to treat OUD with legal punishment instead of medical care. However, unfortunately our legal system has not yet caught up to this way of thinking. Both the medical and legal communities will continue to advocate for the expansion of drug courts and treatment programs to help reduce drug-related crime recidivism.
Medically Reviewed By Elena Hill, MD, MPH
Elena Hill, MD; MPH received her MD and Masters of Public Health degrees at Tufts Medical School and completed her family medicine residency at Boston Medical Center. She is currently an attending physician at Bronxcare Health Systems in the Bronx, NY where ... Read More
- Convening, Collaborating, Connecting: Courts as Leaders in the Crisis of Addiction. National Judicial Opioid Task Force. https://www.ncsc.org/__data/assets/pdf_file/0018/15840/njotf_final_report_111819.pdf. 2019. Accessed December 2022.
- Principles of Drug Addiction Treatment: A Research-Based Guide. National Institute on Drug Abuse. https://nida.nih.gov/sites/default/files/675-principles-of-drug-addiction-treatment-a-research-based-guide-third-edition.pdf. January 2018. Accessed December 2022.
- Drug Arrests Stayed High Even As Imprisonment Fell From 2009 to 2019. Pew Charitable Trusts. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2022/02/drug-arrests-stayed-high-even-as-imprisonment-fell-from-2009-to-2019. February 2022. Accessed December 2022.
- More Imprisonment Does Not Reduce State Drug Problems. Pew Charitable Trusts. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/03/more-imprisonment-does-not-reduce-state-drug-problems. March 2018. Accessed December 2022.
- Heroin. Drug Enforcement Administration. https://www.dea.gov/sites/default/files/2020-06/Heroin-2020.pdf. April 2020. Accessed December 2022.
- Arrests and the Criminal Legal System. Drug Policy Facts. https://www.drugpolicyfacts.org/chapter/crime_arrests. August 2022. Accessed December 2022.
- Controlled Substance Laws by State 2022. World Population Review. https://worldpopulationreview.com/state-rankings/controlled-substance-laws-by-state. Accessed December 2022.
- After 50 Years of the War on Drugs, 'What Good Is It Doing for Us'? NPR. https://www.npr.org/2021/06/17/1006495476/after-50-years-of-the-war-on-drugs-what-good-is-it-doing-for-us. June 2021. Accessed December 2022.
- The Impact of the Opioid Crisis on U.S. State Prison Systems. BMJ. https://healthandjusticejournal.biomedcentral.com/articles/10.1186/s40352-021-00143-9. July 2021. Accessed December 2022.
- Race and Ethnicity. Prison Policy Initiative. https://www.prisonpolicy.org/research/race_and_ethnicity/. Accessed December 2022.
- Beyond the Count: A Deep Dive Into State Prison Populations. Prison Policy Initiative. https://www.prisonpolicy.org/reports/beyondthecount.html. April 2022. Accessed December 2022.
- Do Mandatory Minimums Increase Racial Disparities in Federal Criminal Sentencing? Undergraduate Economic Review. https://digitalcommons.iwu.edu/cgi/viewcontent.cgi?article=1574&context=uer. 2020. Accessed December 2022.
- Many Americans Are Convinced Crime Is Rising in the U.S. They’re Wrong. Five Thirty Eight. https://fivethirtyeight.com/features/many-americans-are-convinced-crime-is-rising-in-the-u-s-theyre-wrong/. August 2020. Accessed December 2022.
- America Has Spent Over a Trillion Dollars Fighting the War on Drugs. 50 Years Later, Drug Use in the U.S. Is Climbing Again. CNBC. https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-drugs.html. June 2021. Accessed December 2022.
- Ending the War on Drugs: By the Numbers. American Progress. https://www.americanprogress.org/article/ending-war-drugs-numbers/. June 2018. Accessed December 2022.
- Experts Divided on Drug Court Effectiveness. Prison Legal News. https://www.prisonlegalnews.org/news/2021/apr/1/experts-divided-drug-court-effectiveness/. April 2021. Accessed December 2022.
- Alternatives to Arrest for Illicit Opioid Use: A Joint Criminal Justice and Healthcare Treatment Collaboration. Substance Abuse. https://journals.sagepub.com/doi/full/10.1177/1178221820953390. August 2020. Accessed December 2022.
- LEAD Program Evaluation: Recidivism Report. Seattle: University of Washington Harm Reduction Research and Treatment Lab. http://static1.1.sqspcdn.com/static/f/1185392/26121870/1428513375150/LEAD_EVALUATION_4-7-15.pdf?token=3Yt3f9rd%2BwqvJvZhv1xvUGjlIQA%3D. March 2015. Accessed December 2022.
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