Attorney General Eric Holder galvanized the law enforcement and treatment communities in the middle of the quiet news month of August by declaring that it’s time for the federal government to move away from mandatory minimum sentencing for nonviolent drug offenders, and instead to divert these offenders with substance abuse problems to treatment. “Today, a vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities,” Holder told the American Bar Association on August 12. “However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.”

The speech signaled the potential for an important sea change on the federal level. In the first days after the announcement, ADAW interviewed experts on the possible effects of the initiative on substance use disorder (SUD) treatment. We learned that now is the time for advocacy on state and local levels on this, even though Holder’s initiative is limited to the federal prison system.

John Carnevale, Ph.D., called the reform “a much-welcomed change in how the Department of Justice views its role in addressing this nation’s drug problem.” Carnevale, Office of National Drug Control Policy (ONDCP) budget director for three administrations and four different drug czars, added that after more than two decades, the Department of Justice “finally understands that we cannot arrest our way out of the drug problem.”

No windfall for treatment

The big question for treatment advocates is whether the cost savings from reduced incarcerations will be used to fund treatment, and if so, what mechanism that would take. A few states have worked out some solutions to the conundrum.

“States like Texas and Georgia which have reformed their criminal policies are showing real leadership in taking an evidence-based approach to drug policy reform,” said ONDCP spokesman Rafael Lemaitre. “The results we’re seeing as a result of justice reinvestment at the state level can serve as a model for the federal government in expanding access to treatment and breaking the cycle of drug use, crime and incarceration.” He did not comment on our question about whether money can be shifted to public health as a result of this reinvestment, however.

The Department of Justice did not respond to our request for comment.

It can be difficult to capture the savings from one part of government (law enforcement/corrections) and put them into another (public health). As one Washington insider told ADAW, “It is just so difficult to get perceived savings and costs to move from one agency’s budget to another…One would think that the president or the White House might be able to see across jurisdictional boundaries, but it rarely happens.”

And there are no actual dollar “savings” from reduced incarcerations that would become available as discretionary funds, said Carnevale. Rather, the “Smart on Crime” reform is a “political opportunity to reallocate criminal justice funds in a manner that supports treatment,” he told ADAW. One opportunity is to expand funding for Justice Reinvestment Initiatives, currently ongoing at the state level, he said. So far, at least 17 states are participating in these initiatives, which redirect spending from building new prisons to programs promoting community corrections, where offenders can serve their sentences on probation or other alternatives to incarceration. “There is also often a drug treatment component associated with these programs,” said Carnevale. “These programs have received bipartisan support but are too new to determine any long-term outcomes.”

Holder’s comments “reflect a growing sentiment that it’s possible to get ‘smart on crime’ without compromising public safety,” Fred C. Osher, M.D., director of health services and systems policy at the Council of State Governments (CSG) Justice Center, told ADAW. But the policy change recommended by Holder only affects the federal prison system, and cost savings will depend on how any change is implemented, said Osher.

“There has been a concerted effort at the state level to identify cost savings from slowing prison growth that can be reinvested in community activity that improves public safety, including substance abuse treatment,” said Osher, who heads the Justice Reinvestment Program at the CSG.

Incarcerating people with SUDs

People with substance-related disorders are overrepresented in corrections, said Osher, adding that 53 percent of people in state prison, 35 to 40 percent of people on probation and parole, and 68 percent of the people in jail have substance use disorders. “The need is great,” he said.

“We are very excited about the attorney general’s announced policy shift away from mass incarceration and toward a community-based, public health approach for people convicted of certain drug crimes,” said Gabrielle de la Gueronniere, director for national policy with the Legal Action Center (LAC). “The attorney general acknowledged that this policy reform builds on the ONDCP drug control strategy’s emphasis on expanding access to addiction treatment and promoting alternatives to incarceration,” she said. “When fully implemented, this policy reform should save huge amounts of federal money for the justice, health and other systems and greatly improve the health of individuals and communities.”

De la Gueronniere also cited the Affordable Care Act (ACA) as contributing to coverage for addiction services, saying the Legal Action Center “will continue to work to ensure that justice-involved individuals with addiction treatment needs have better access to quality care.”

Advocacy

“We have some new funding opportunities that need to be taken advantage of before asking for more money,” said Osher. For example, the ACA offers the opportunity for more people to have health insurance through Medicaid or the exchanges, he said. “This, coupled with the Mental Health Parity and Addiction Equity Act, if fully implemented, could result in access to community-based treatment.”

Advocacy can stop short of demanding more money, said Osher. For example, the CSG’s recently released framework on adults with behavioral health needs under correctional supervision provides a roadmap for identifying and prioritizing treatment and supervision services, within the confines of the correctional system.

The federal involvement itself could expand state-led reinvestment efforts at a greater pace, said Carnevale. Holder’s initiative could expand the reinvestment concept on a national level “and bring a focus on drug treatment for those criminal justice clients in need,” he said.

The need for advocacy for treating instead of incarcerating nonviolent drug offenders with substance use disorders is not new, said Laura Brookes, director of policy for Treatment Alternatives for Safe Communities. “What’s new is that the acceptability of this notion is being embraced by decision makers more and more,” she told ADAW. Holder’s announcement is the latest validation of what advocates have been saying for years, she said. Even though it applied only to the federal prison system, it’s important because it “sends a message to everyone who heard it, which includes people who work outside the federal system.”

“Revolving-door recidivism remains troublingly high, and the evidence about that isn’t new,” said Brookes. What Holder, the top law enforcement official in the country, did when he made that statement was to help the decision-makers — people with oversight over state budgets — make the right decisions, she said. “That’s where the lion’s share of the money is coming from,” she said. “If people at the top, not necessarily within one department or another, can say that health funding is important, that will help convince those people who have to be convinced,” said Brookes. “The public discourse is changing in a way that makes it safer to decide” to fund public health, instead of incarceration, for people with SUDs.

But the work can’t be left up to Holder, said Brookes. “This will require advocacy,” she told ADAW. “And now is the time to really rev it up, because it’s working.” Policymakers need continued support to follow Holder’s initiatives, she said.

New York state invested in treatment when the Rockefeller Drug Laws were first amended so that the treatment field would have sufficient capacity to treat the numbers of people who would be diverted, said de la Gueronniere of the Legal Action Center. “The LAC and other stakeholders continue to advocate that savings resulting from diversion of people from prison into treatment should be reinvested into treatment.”

For more information on the CSG’s Justice Reinvestment Program, go to www.csgjusticecenter.org.

Bottom line

Attorney General Holder’s “Smart on Crime” initiative, which would reduce federal incarcerations for low level drug offenders, is welcomed by treatment and many criminal justice advocates.