CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, January 3, 2022

Kelly & White on Criminalization of Substance Use Disorder

Brittany Kelly and Diana White (Indiana University Robert H. McKinney School of Law and affiliation not provided to SSRN) have posted Community Level Intervention Strategies to Confront the Criminalization of Substance Use Disorder: Cross-Sector Collaboration Along the Sequential Intercept Model Applying a Critical Race Theory Lens (Forthcoming, The Journal of Law in Society, Wayne State University Law School) on SSRN. Here is the abstract:
Among the medical community, substance use disorder is understood to be a disease of the brain, rather than a moral failing. Substance use disorder is a medical diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is widely used by health care professionals. Even in light of this understanding, substance use disorder continues to be criminalized, with an estimated one-half of all people in prison in the United States meeting the criteria for substance use disorder. Alarmingly, someone enters the criminal justice system based on nothing more than an allegation of drug possession for personal use every twenty-five seconds in the United States.

Both substance use disorder and its criminalization have increased exponentially over the last few decades. Nationwide, the criminalization of substance use disorder has disparately impacted the Black community. These inequities are the result of longstanding systemic racism in the United States criminal justice system. Many advocates across multiple disciplines agree that decriminalization and legalization of substances is necessary. However, federal and state-level initiatives around decriminalization and legalization can be non-existent or slow moving, depending on the state.

This article begins by discussing the negative outcomes of criminalization of substance use disorder, with attention to the disparate impact current laws and policies have on the Black community using a Critical Race Theory lens, a practice developed by legal scholars including Kimberlé Crenshaw who coined the term. It then looks briefly at current federal and state attempts to decriminalize and legalize substances and substance use disorder. Given the challenges around large-scale decriminalization and legalization, the article then lays out strategies for effective community level interventions to divert individuals experiencing substance use disorder from the criminal justice system.

Specifically, the intervention proposed by the authors to combat the complex problem of substance use disorder criminalization is Cross-Sector Collaboration along intercepts zero, one, and two of the Sequential Intercept Model. A key component of this approach is to include various sectors from the community as well as the population most affected in the creation of a solution. By focusing on intercepts zero, one, and two of the Sequential Intercept Model when initiating cross-sector collaboration, people experiencing substance use disorder can be effectively diverted from the criminal justice system in a way that builds recovery capital in the process. The article provides specific examples of cross-sector collaboration along the Sequential Intercept Model in Indiana. Finally, the article ends with a call to action for all readers. Communities are uniquely situated to take this approach and this article attempts to mobilize them to do so.

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