Most troubling, the criminal-justice system is often the first institution to “catch” those suffering from substance-use disorders. As a result, many people only receive treatment once the situation is critical—like after getting arrested and involved with the criminal-justice system, or after a medical crisis, such as an overdose. Lynch takes a hard line on the system’s capacity to provide care: “I would like to see addiction not go through the criminal-justice system,” she said.

“You see that in higher economic strata of our society,” she said. “People whose children become addicts and they have resources to mobilize all kinds of private interventions that don’t involve the criminal-justice system.” People with means can intervene much earlier than others, including by paying for expensive private-treatment facilities or by keeping a loved one safe at home and off the street to limit their potential interactions with law enforcement. It “gets so raced and classed,” Lynch said, describing how users in certain ethnic and economic groups have fewer treatment options and far more legal consequences.

Yet even if state and federal governments take cues from the surgeon general—and begin addressing addiction as a health crisis first—any reforms to the existing criminal-justice system would have immediate, unintended economic effects via institutional competition. “There’s now huge, monstrous criminal-justice institutions that have been built over 30 or 40 years in our country at the state and federal level that are going to be resistant to shrinking,” Lynch said. If treating addiction as a public-health problem gains more traction—and federal dollars are redirected to health-care programs—then penal “institutions are going to compete to deal with it. They’re going to seek money to deal with addiction through the criminal-justice system,” she said.

The “starved” mental-health and public-health institutions that would, in advocates’ view, be better suited to treat people “are not going to have the same power to say, ‘We need resources to be able to do this; we’re fit to be able to do this,’” without major federal buy-in, Lynch said. Setting up any statewide or national approach for diverting addicts into treatment and away from jails is a massive undertaking that will probably not happen in the near future. But there are steps that towns and cities can take in that direction.

One of them is to offer crisis-intervention training for officers so they can identify mental-health crises during emergency calls. Several cities, like San Antonio, Texas, have found this approach successful in reducing arrests, identifying repeat users, and reducing housing costs in their facilities. But with over 18,000 police departments in the country, the cumulative effect of local efforts will be limited if the message that addiction is a health issue—and not a criminal one—does not become part of the modus operandi for criminal-justice practitioners. And it will be especially limited if the federal government, more than any other body, does not get fully on board.

* This article originally misstated the name of the Prison Policy Initiative as the Drug Policy Institute. We regret the error.

This article is part of our Next America: Criminal Justice project, which is supported by a grant from the John D. and Catherine T. MacArthur Foundation.

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