Incarceration of individuals with substance use disorders (SUDs) has been disastrous from the perspectives of public health and policy: It is associated with increased rates of violence, victimization and suicide while in custody, mortality after release and recidivism. If those who suffer from SUDs are to receive proper care, they need to have every opportunity at avoiding incarceration.
Among all the actors in the justice system, criminal defense attorneys are best situated to implement drug screenings and treatment referrals and to usher a case toward one of the approximately 3,000 Drug Treatment Courts (DTCs) — collaborative programs of judicially-supervised treatment — in the U.S.
DTCs have been shown to reduce recidivism and substance use and to relieve the burden on criminal courts of having to repeatedly process low-level offenders. They are also not binary succeed/fail endeavors; even if a defendant participating in a DTC relapses, if the defendant’s attorney is knowledgeable, proactive, and someone the defendant trusts, it is typical for the relapse to be presented to the court as part of the rehabilitation process, with the goal of continuing treatment.
But public defenders who represent indigent defendants are overworked and generally neglected in the furor for reform. Numerous reports have documented the extreme caseloads that these defense attorneys carry. The Sentencing Project found that public defenders were handling almost 400 cases per year. This is a recipe for disaster, as these attorneys simply do not have the time needed to properly screen and represent their clients —and they don’t have the time to take cases to trial, which is the only sure way to curtail prosecutorial overreach.
In our recent study published in The American Journal on Addictions, we found that criminal defense attorneys affirmed an indisputably false belief: They thought their drug offense clients were more likely to reoffend than were their property offense clients, which is concerning, since we also found that believing a defendant will reoffend correlates with worse attitudes toward that defendant.
What, in particular, is needed? First off, greater financial support. Public defense offices are underfunded and understaffed. Without the time and resources to fully engage with and evaluate their clients, defense attorneys cannot be robust allies in the treatment process. Second, education is needed to equip attorneys with the skills required for identifying substance use disorders and making deferral decisions. In addition, education is needed to address misconceptions as well as unconscious biases that impact attitudes toward individuals with substance use disorders.
The Public Defender of Maryland received a relatively modest grant from a Blue Cross Blue Shield affiliate to support efforts in Frederick and Washington counties to help defendants with substance use problems. But much more will be needed on a much larger scale to make any meaningful progress.
Unless we begin to help criminal defense attorneys, we will not be able to help those with substance use disorders, and we will not be able to make good on the promises of drug treatment and criminal justice reform.
Joseph J. Avery, an attorney and psychologist, is a National Defense Science and Engineering Fellow at Princeton University; he can be reached at firstname.lastname@example.org. Jonathan D. Avery is the Director of Addiction Psychiatry and an Associate Professor of Clinical Psychiatry at Weill Cornell Medical College.