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Opioid-Related Arrests, Incarceration & Mandated Treatment Statistics

April 18, 2022

Table of Contents

Opioid misuse can often lead to arrests and incarceration related to the illegal possession and sale of opioids. Sometimes, a person may be mandated to attend opioid use disorder treatment as part of their sentencing.

Opioid Crimes & the Legal System

The National Center for State Courts writes that in 2017, 55% of chief justices and state court administrators reported severe impacts of opioids on their respective courts.[1] Arrests relating to drug crimes, including the unlawful possession and distribution of opioids, were “skyrocketing.”  Across the many communities represented by the court officials responding to the survey, court dockets and probation cases consisted overwhelmingly of people with mental health and substance use disorders. 

The number of people incarcerated for drug offenses, including opioid possession and distribution, was 171,000 in 2019, and these rates continue to grow.[2] Almost two-thirds of the people who are serving sentences for drug-related offenses meet the criteria for substance use disorder, but only a small number of them receive appropriate treatment for their conditions. 

The states with the most drug arrests are Florida, Texas, and California. This is partly due to the sheer size of those states, the three most populous in the country (sharing almost 90 million people between them). However it may also be due to the fact that these states are common entry points for heroin smuggled into the US from Central and South America.[3]

Opioid Possession, Distribution & Intent

What does it mean to be illegally in possession of opioids?[4] Drug possession is the crime of being willfully in possession of controlled substances either heroin or prescription opioids (if not used for their intended purpose). 

There are two legal criteria that have to be met for someone to be charged with drug possession:

  1. The defendant has to knowingly be in possession of the substance.
  2. The defendant has to know, or should reasonably know, that the drug found on their person or their property is not legal for them to have.

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, and therefore possession or distribution of heroin in any amount is a felony under US law.

Prescription Opioids & the Law

Possession of some prescription opioids (by the person to whom they were prescribed) is perfectly legal. Even though some opioids are legal with a prescription, the prescription specifically names a patient for whom the opioids are intended. That means that only that person is legally allowed to possess and consume the opioids. Some people may be under the impression that, because prescription opioids can be legally obtained, this means they can be distributed or shared with family or friends. This is untrue. It is illegal to consume a prescription opioid if you are not the individual for whom the prescription was written. 

This also means that someone distributing the prescription opioids — whether selling them online or handing them out to friends and family — is likewise breaking the law. Patients should be aware that sharing their opioid prescriptions with friends or family, even if the intention is not to sell them but merely to help treat pain, is nonetheless illegal.  

Prevalence of Drug Related Arrests 

Someone in America is arrested for drug possession every 25 seconds.[5] Since 1980, the number of Americans arrested for possession has gone up three fold, to as many as 1.3 million arrests in 2015, which is six times the number of arrests for actual drug sales/distribution. Around 456,000 people - 20% of the incarcerated population in the country - are behind bars for a drug-related offenses.

Controversies Over Drug Crimes and Sentencing

Controversy 1: Sentencing Varies Greatly Between States

Sentencing for possession with the intention of distribution depends on how much of a drug (in this case, a prescribed opioid painkiller) is being given away and where (what State) the crime takes place. In federal court, for example, a conviction under federal controlled substance laws could put someone in prison for up to 30 years. In contrast, in California, a person could see no more than one to five years in prison if a judge decides that there were extenuating factors. Therefore the degree of sentencing varies greatly by state and by the specifics of an individual’s violation of the law.

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 study 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. [6] Instead, incarceration has been found to be associated with increased mortality from opioid overdoses. 

Controversy 3: Incarceration Does Not Adequately Address Substance Use Disorder

Many incarcerated individuals are imprisoned for drug related crimes as a result of unidentified or untreated substance use disorder. However, resources for addiction treatment and recovery in the prison system are notoriously limited. This is evidenced by the fact that Individuals with SUD often promptly resume their habits upon release from prison, particularly if no medication assisted treatment (MAT) or therapy is provided while in-house. With decreased tolerance after prolonged abstinence within the prison system, often take too much of an opioid and succumb to overdose. In the first two weeks after being released from prison, people who had been arrested for drug offenses were almost 13 times more likely to die from drug-related causes than the general population. In most of those cases, the cause of death is overdose. 

Controversy 4: Racial Inequalities in Opioid Arrests & Incarceration

Despite white and Black Americans having broadly equal rates of substance misuse it is Black Americans who are more harshly sentenced for the same crimes.[7] This phenomenon of racial injustice in the US prison system has been heavily documented and researched.  White patients are more likely to be prescribed opioids for pain than Black patients, likely due to implicit biases in the health care system[8,9] Black people are almost six times more likely to be arrested and imprisoned for drug-related offenses. Of the people who are behind bars for a federal offense related to opioid possession or distribution, nearly 80% of them are Black or Latino. At the state level, 60% of people doing time for drug offenses are people of color.  Black defendants convicted of a non-violent drug offense served almost the same amount of time as a white defendant convicted of a violent crime.

Controversy 5: Mandatory Minimums 

People of color are 70% of all the defendants who are convicted of charges with a mandatory minimum sentence. 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. Mandatory minimum sentences have come under criticism for increasing racial disparities in drug-related sentencing, but they remain the de facto form of punishment in most drug-related cases.[10] Reviews of cases have found that prosecutors are twice as likely to seek a mandatory minimum sentence for a Black defendant than they are a white defendant who has been charged with the same opioid-related offense, such as possession or intent to distribute.[11] Furthermore, Black defendants in opioid cases are less likely to receive any form of sentencing relief from mandatory minimum sentences. Overall, defendants who are subject to mandatory minimum sentences — the majority of whom are overwhelmingly people of color — tend to be sentenced to prison sentences that are five times longer than people convicted of other offenses.

Controversy 6: Lack of Efficacy of Incarceration in Addressing Public Safety 

Despite all the money and effort that have been put into incarceration to serve as a deterrent to drug crimes, the wide scale imprisonment of people for opioid-related crimes has not had a significant positive effect on public safety.[12] Crime rates have gone down since the 1990s, but criminology researchers say that a huge degree of that trend is explained by other factors.[13]

How Much Money Is Spent on Drug Arrests?

The United States has spent over a trillion dollars going after drug dealers and smugglers, but drug use has continued unabated for decades.[14] In 2015, state governments spent a combined $7 billion to arrest and imprison people for drug-related charges, [15] In North Carolina alone, the government spent $70 million that year arresting people for possession. Georgia spent $78.6 million putting mostly people of color in prison for drug charges, which is 1.6 times more than the state’s budget for substance misuse treatment.[16]

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 in lieu of incarceration (“Drug courts”) The idea is that such measures will be more effective than continuing the cycle of (costly) incarceration and recidivism. Law enforcement and criminal justice systems have understood the futility and misguidedness of treating opioid use disorder as a purely criminal issue. They have sought to integrate more elements of health care and social support to help nonviolent criminals break out of the cycle. 

Drug court programs show considerably lower rates of recidivism compared to the traditional incarceration model (40% recidivism versus 53%)[18]. Participating in drug courts was found to reduce future instances of offenses related to opioid possession and distribution .One study in Oregon found that, 14 years after enrolling in a local drug court program, participants were 24% less likely to be arrested for another drug-related crime. Nearly 30% were less likely to experience recidivism. Across the country, drug court participants were 26% less likely to report using opioids or other controlled substances after they finished their program compared to people who went through the traditional court model.[19] People who go to drug court after being arrested for an opioid-related offense are less likely to report having difficulty with education, employment, and finances compared to people in  the traditional court model. 

While this change in policy is certainly a step in the right direction, success continues to be limited by insufficient availability of both medication assisted treatment programs (MAT) and insufficient access to counseling and therapy. Drug courts are not universally successful. They have a wide range of completion rates, from as high as 70% to as low as 30%. People in ethnic and racial minorities have lower rates of successful graduation from drug courts, likely due to the environmental risk factors many of them have in their everyday lives once they are released from incarceration. Additional funding and support for these programs on both a state and national level would further their efficacy at addressing opioid use disorder and lowering recidivism.

Assisted Diversion Through LEAD Programs

Police departments are also trying to change their tactics in making drug-related arrests.

Law Enforcement Assisted Diversion (LEAD) programs are intended to give police officers the choice to send nonviolent drug (and opioid) offenders to substance use disorder treatment or relevant social services instead of putting them into the incarceration cycle (especially if the people involved do not pose a threat to public health or safety). 

In Seattle, where the first LEAD program was trialed, drug and opioid users were 58% less likely to be arrested again for a similar offense compared to people who were put through the traditional criminal justice system model.[20]

People who are referred to their local LEAD program are 33% more likely to get (or maintain) a job with benefits. They are also 46% more likely to have a job or some form of vocational training, and 89% more likely to get permanent housing, than they were the month before they were introduced into the program. 

For every month a person spends in stable housing, they are 17% less likely to be arrested for a drug-related charge. Similarly, every month of employment has a 41% reduced rate of being arrested for the same reason. 

A person who is in a LEAD program spends 39 fewer days in jail, and is 87% less likely to be incarcerated, than someone arrested for opioid possession or distribution who is processed through a traditional incarceration model. 

For every person put through a LEAD program, the criminal and legal system saves $2,100 a year on processing costs. On the other hand, a person arrested for an opioid-related offense who is not put through LEAD costs their local court and police $5,961 a year.

A Viable Alternative for Opioid-Related Incarceration 

Drug courts are widely held as a viable alternative to incarceration for crimes related to illegal opioid possession and the intention to distribute.[21] Voices in both the medical and legal communities advocate for their use as a way of helping people caught up in opioid misuse stay away from the cycle of addiction and recidivism.

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 she works as a primary care physician as well as part time in pain management and integrated health. Her clinical interests include underserved health care, chronic pain and integrated/alternative health.

Medically Reviewed By

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Citations

  1. Drug Arrests Stayed High Even as Imprisonment Fell From 2009 to 2019. Pew 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 March 2022.
  2. Want to Know Where Most Drugs Cross the Border? Look at the Border Patrol’s News Releases. The Washington Post. https://www.washingtonpost.com/politics/2019/02/01/want-know-where-most-drugs-cross-border-look-border-patrols-press-releases/. February 2019. Accessed March 2022.
  3. New Washington State Law Makes Drug Possession a Misdemeanor. U.S. News & World Report. https://www.usnews.com/news/politics/articles/2021-05-13/new-washington-state-law-makes-drug-possession-a-misdemeanor. May 2021. Accessed March 2022.
  4. Report: Every 25 Seconds, Cops Arrest Someone for Drug Possession. The Intercept. https://theintercept.com/2016/10/12/report-every-25-seconds-cops-arrest-someone-for-drug-possession/. October 2016. Accessed March 2022.
  5. Brian Mann, “After 50 Years Of The War On Drugs, 'What Good Is It Doing For Us?' NPR. 2021. Available at https://www.npr.org/2021/06/17/1006495476/after-50-years-of-the-war-on-drugs-what-good-is-it-doing-for-us Accessed March 2022.
  6. Comparing Black and White Drug Offenders: Implications for Racial Disparities in Criminal Justice and Reentry Policy and Programming. Journal of Drug Issues. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5614457/. December 2016. Accessed March 2022.
  7. Racial Differences in Opioid Use for Chronic Nonmalignant Pain. Journal of General Internal Medicine. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1490156/. July 2005. Accessed March 2022.
  8. Racial Bias in the US Opioid Epidemic: A Review of the History of Systemic Bias and Implications for Care. Cureus. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6384031/. December 2018. Accessed March 2022.
  9. The Impact of Federal Sentencing Reforms on African Americans. Journal of Black Studies. http://www.jstor.org/stable/2784855. November 1997. Accessed March 2022.
  10. Black Men Sentenced to More Time for Committing the Exact Same Crime as a White Person, Study Finds. The Washington Post. https://www.washingtonpost.com/news/wonk/wp/2017/11/16/black-men-sentenced-to-more-time-for-committing-the-exact-same-crime-as-a-white-person-study-finds/. November 2017. Accessed March 2022.
  11. More Imprisonment Does Not Reduce State Drug Problems. Pew Trusts. Available at https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/03/more-imprisonment-does-not-reduce-state-drug-problems. March 2018. Accessed March 2022.
  12. 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 March 2022.
  13. 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 March 2022.
  14. How Much of Your Money Is Wasted in the War on Drugs. Open Society Foundations. https://www.opensocietyfoundations.org/voices/how-much-your-money-wasted-war-drugs. February 2013. Accessed March 2022.
  15. Mass Incarceration: The Whole Pie 2015. Prison Policy Initiative. https://www.prisonpolicy.org/reports/pie2015.html. December 2015. Accessed March 2022.
  16. Adult Drug Courts: Evidence Indicates Recidivism Reductions and Mixed Results for Other Outcomes. GAO-05-219, Report to Congressional Committees. https://www.gao.gov/products/gao-05-219. February 2005. Accessed March 2022.
  17. Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety. Journal of the American Medical Association. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2681083/. January 2010. Accessed March 2022.
  18. Minimizing Harm: Public Health and Justice System Responses to Drug Use and the Opioid Crisis. New York: Vera Institute of Justice. https://storage.googleapis.com/vera-web-assets/downloads/Publications/for-the-record-public-health-justice-system-responses-opioid-crisis/legacy_downloads/Minimizing-Harm-Evidence-Brief.pdf. December 2017. Accessed March 2022.
  19. 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 March 2022.
  20. The Height of the Opioid Epidemic 2016-2019. National Center for State Courts. https://www.ncsc.org/information-and-resources/resource-centers/resource-centers-items/opioids-and-the-courts. July 2019. Accessed March 2022.
  21. 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 March 2022.

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