How Prosecutors Are Stuffing Our Prisons

Rev. Alexander E. Sharp Mandatory Minimums

As a nation, we are beginning to change our draconian laws. Seventeen states have developed alternatives to criminalizing at least some drug users. But barriers to change remain, most notably prosecutors across the country who continue to insist on the need for criminal sanctions.  

In a superb new book Charged, Emily Bazelon tells us why. She shows how county prosecutors, often unconsciously, exploit the Reagan-Bush-Clinton era drug laws described in Michelle Alexander’s The New Jim Crow to their own professional advantage.  

Mandatory minimum sentencing and “three-strike” laws enable prosecutors to threaten long prison terms, and then coerce a plea bargain agreement that nevertheless leads to incarceration. Can we believe in the fairness of our criminal justice system when 95% of all cases are now plea-bargained, usually in secret?

Bazelon is right to focus on prosecutors as obstacles to change. By demonstrating what prosecutors can and will do, she helps us see that we can never end the War on Drugs as long as criminal sanctions against drug use exist.

Consider my home state of Illinois. In January, reformers filed HB 2291, a bill that would reclassify low level drug possession offenses as misdemeanors rather than felonies. They did so because felony convictions are far more likely than misdemeanors to wreck lives.

The bill got a respectable hearing even as it was opposed by the Illinois States Attorneys Association, composed of county prosecutors. Why? The states attorneys argued that only with the threat of felony sanctions can they force drug users into treatment. In other words, society needs criminal sanctions to keep people from becoming criminals.

This view sounds illogical, and it is. It also contradicts convincing research that prison sentences do not reduce drug use.  In fact, people who go prison once are more likely to go back. In 2015, the Illinois State Commission on Criminal Justice and Sentencing Reform found that “long sentences have not had the desired deterrence effect, but have consequences that can be disproportionate and counter-productive.”  

If incarceration does not deter drug use, is it at least effective as a threat against those who might not otherwise belong in prison? Prosecutors and judges use it that way, often stipulating that charges or convictions will be set aside upon successful completion of treatment. This, too, often does more harm than good.

Since the possibility of treatment is not widely available for those who need it, many will, in fact, end up in prison solely for this reason. Further, using prison as a threat ignores the possibility of relapse, at which stricter punishment will kick in. Criminal penalties stigmatize those who use drugs so that they avoid treatment they might otherwise seek. Finally, programs that divert individuals too often engage in “skimming,” offering treatment only to the “easiest” cases.

It will be a tough to convince prosecutors not to oppose HB 2291 in Illinois and similarly compassionate programs in other states. When I asked Bazelon about this last week, she commented, “Oh, we charge people with crimes, so we can coerce them into treatment? That’s not what the criminal code is for.”

We should be profoundly grateful to Emily Bazelon for helping us to understand prosecutorial behavior. But we must go further even than she takes us. As long as a drug possession is a crime, the justice system will harm people who do not deserve to be treated as criminals. At the end of the day, decriminalizing all drug use is the only sane and decent path.

Rev. Alexander Sharp, Executive Director

Charged: A Damning Portrait of The Role Prosecutors Play in Mass Incarceration

Tom Houseman Mandatory Minimums, Uncategorized

Mass incarceration didn’t happen overnight. Since 1980, the prison population in the United States has increased by more 500 percent, and only in the last few years has the number of people imprisoned at either a state or federal prison leveled off. There is certainly enough credit to go around for the rapid expansion of America’s incarceration system. Between the War on Drugs policies of the seventies and eighties and the “tough on crime” initiatives of the nineties, the blame is largely placed on policy makers, and with good reason. But in her recent book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, journalist Emily Bazelon asks us to shift our gaze from the people crafting the policy to the people enforcing it: prosecutors.

Most people imagine the court system as being a triangle in which prosecutors and defenders are, as Bazelon writes, “points… on the same plane, with the judge poised above them.” The evidence laid out in Charged shows that this is clearly not the case.

Prosecutors play a crucial role in determining what crime a person will be charged with when they are arrested. This decision is largely arbitrary, but it can mean the difference between a multi-year prison sentence and never having to spend a night behind bars. Prosecutors also have control over the other two most crucial factors that will determine whether and for how long a person will spend time in prison: plea deals, and bail.

Bazelon points out that by demanding excessively high bail (a point on which judges virtually always defer to the prosecutor), prosecutors can push somebody to plead guilty to a crime they didn’t commit. As a result, the number of people who never get their day in court is staggering.

What is most troubling about the work of prosecutors is the adversarial role they take against the defense in criminal cases. Despite how they are presented on TV and in movies, the goal of prosecutors shouldn’t be winning cases, but rather seeking truth. Yet when prosecutors are rewarded for winning cases, and are trained to view defendants as the enemy, they become willing to subvert justice in pursuit of victory.

Sometimes this effect is subconscious; Bazelon describes the “tunnel vision” that prosecutors get as they become unwilling to examine evidence that could exonerate a defendant. This psychological effect is reinforced by the culture of prosecutors and district attorney, and the politicization of their jobs. If a prosecutor lets somebody off with a light sentence and they reoffend, it could destroy their career or cost them reelection. Better, it seems, to err on the side of overcharging.

Often, however, prosecutorial malfeasance is more direct and deliberate. Charged goes into detail about the Brady rule, which requires prosecutors to share evidence beneficial to the defense. That was not always mandatory, and the lengths to which prosecutors go to get around the Brady rule is astonishing.

If Charged simply rattled off statistics about how prosecutors stuff prisons with people who may be innocent, it would be sufficiently damning. But it is Bazelon’s journalistic abilities and storytelling prowess that elevate it to a truly haunting call to action. The book’s throughlines are two stories that reveal the two major problems with America’s prosecutorial system: one exemplifies the structural flaws of a punitive institution that is unforgiving and arbitrary; the other is a horror story of an overzealous prosecutor who will go to any lengths to secure a conviction.

Kevin is a young black man living in a Brooklyn public housing project who took credit for possessing a gun as a way to protect a friend. The prosecutor handling the case had complete control over whether the state charged Kevin with criminal possession of a weapon in the second degree (mandatory minimum sentence three and a half years), third degree (two years), or fourth degree (a misdemeanor, no jail time).

Bazelon follows Kevin through the kafkaesque New York City gun court that is meant to expedite these cases, but instead merely strips nuance from complex situations. Through the youth diversion program YCP, Kevin is allowed to stay out of prison, but the lengths to which he must go to appease judges and, more importantly, prosecutors, is absurd. Constantly forced to toe the line and with the fear of a lengthy prison sentence hanging over his head, Kevin’s case stretches on for years.

Noura, by contrast, is a white teenager in Memphis, who becomes the target of District Attorney Amy Weirich. After her mother is found murdered, Noura becomes the only suspect, despite nothing but circumstantial evidence tying her to the case. Weirich’s methods are ethically and constitutionally dubious, showing that she prioritizes defeating Noura in court over finding out who killed Noura’s mother. As Bazelon shows, this behavior is not anomalous, and not only is it rarely punished, but it is often rewarded.

The stories that unspool in Charged—and the data behind them—reveal just how broken our criminal justice system is. But while Bazelon offers no happy endings or tidy resolutions, she does show the promise of a new generation of District Attorneys determined to reform the prosecutorial landscape.

Winning elections on waves of support, progress has already been made in Chicago by Kim Foxx, in Philadelphia by Larry Krasner, and in other cities around the country. Every proposal by these firebrand reformers is met with resistance by a system designed to defend the status quo, but while progress is slow, they are already making a difference.The prosecutorial system is deeply ingrained in America’s courts, and the Supreme Court has given District Attorneys stunning amounts of power and leeway in how they handle cases. In Charged, Bazelon lays out the facts unflinchingly, but also offers a way forward, as well as realistic alternatives that can drastically reduce the prison population without sacrificing public safety. Bazelon’s book is more than an indictment of a dangerous and broken system, it is a call to action that nobody who reads it will be able to resist.

Tom Houseman, Policy Director

“BLESSED ARE THE MERCIFUL, FOR THEY SHALL RECEIVE MERCY”

Rev. Alexander E. Sharp Clemency, Faith Perspectives

University of St. Thomas School of Law professor Mark Osler.

Those of us who have grown up attending church  can recall at least a few familiar Biblical passages. For attorney and law professor Mark Osler, these passages have guided his life.  

In 2011, he was a federal prosecutor in Detroit.  His job was to send those accused of dealing, or even possessing, crack cocaine to prison, sometimes for life. Under the law, those with crack, usually African Americans, faced sentences 100 times greater than those, mostly Whites, with powder cocaine.

One day Osler remembered Jesus coming upon a group of pharisees who were about stone to death a woman caught in adultery.  When they asked him what they should do, Jesus answered, “Let him who is without sin cast the first stone.” All the men present dropped their stones, and walked silently away. (John 8:7-8)  In the courtroom, Osler realized, “I was the guy with the rock.”

Osler resigned his position and took a teaching job at Baylor Law School, where he and legal colleagues successfully challenged the 100 to 1 crack-to-powder disparity. In 2011, he moved to St. Thomas Law School in Minneapolis and founded the first law school clemency clinic in the United States. He was instrumental in the creation of the Clemency Initiative at the end of President Obama’s second term.

Osler’s work continues to attract national attention. Last week he spoke with Clergy for a New Drug Policy about the Obama Clemency Initiative and prospects for clemency under the Trump administration.

Q: Of the 1,715 individuals who received clemency under the Obama Clemency Initiative, how many of their convictions were in some way related to the draconian laws of the War on Drugs?

A: Nearly all of them.

Q: In light of this, what changes would you propose in our drug laws?

A: I would argue for changes in our tactics and strategy, as well as in our drug laws. One of the biggest drivers of unfair sentences is that we use the weight of the drugs at issue as a proxy for culpability.

That’s just wrong. If I hire somebody for $500 plus expenses to go down to Laredo and pick up some kilos of methamphetamine, I’m going to make tens of thousands of dollars once I sell those kilos.  If we both get arrested, we are going to face the same sentence because we’re involved in the same activity. But we are not equally culpable, or anything close to it.

We should not be addressing people at all.  When it comes to interdiction, the most we can hope for because of the laws of economics is to marginally and temporarily raise the street price of drugs. It’s supply and demand. As long as the demand is there the supply is going come back.  Labor is especially easily replaced.

What they should go after is the cash flow because you’re never going to close down a business by sweeping up low wage labor but you can close down a business by denying them cash flow and credit.  The FBI have become real experts at grabbing money going back to terrorist groups. We can apply that expertise to narcotics, and shut them down that way. This would demonstrate a whole new model: The guy who’s selling crack isn’t going to be in prison, he’s just not going have that job anymore.

Q: Concerning drug laws, I thought you would say that we need to get rid of mandatory minimums and three strikes.

A: Absolutely. The First Step Act is starting to move towards that.

Q: If we had proportionate, fair sentencing laws, would we still need clemency?

A: You wouldn’t need it as much, but we would still need clemency to take into account people who received long sentences, even if they had serious involvement in narcotics or other crimes, who have changed their lives, who aren’t the same person.

You take Rudy Martinez. That was not a case where someone got racked up for a minor role. He was transporting  a lot of cocaine, but the person he was when he did that is fundamentally different than the person he is now. That idea of redemption is that there can be a transformation in a person’s life. You would always need clemency to account for those people whose lives have changed, whose souls, and hearts, and minds, are different.

Q: How does that argument apply to the hardest core crimes? Let’s take first degree murder. No matter how repentant, no matter how much one changes, isn’t there degree of retribution needed for some crimes?

A: Certainly there is a role for societal retribution. It helps to avoid vigilantism. As long as people are assured that the state is going to take an approach that ensures punishment, they are not going take action into their own hands. But, even for the worst crimes, we can’t rule out the possibility of redemption. King David was a murderer. Paul was a murderer in a conspiracy. They were redeemable. They were given a role.

We visit those in prison with the goal of there being a role, a vocation, even for those people who have done terrible things.

Q: The Obama Clemency Initiative chose to look only at individuals on a case-by-case basis.  Are there categories he could have used? For example, the ACLU report A Living Death argues that we should review all non-violent offenders who have been given life sentences without parole.

A: You could look at people who received really long sentences before they were 22 years old.  We know the brain science which tells us how much people change after that age. We are not serving public safety by spending millions of dollars to incarcerate those people.

One thing we could do is go to the warden of each prison and ask “Who doesn’t belong here?” They will tell you. My students go into the prison to interview their clients and the guards say, “This is the guy who should be getting out.”

Q: Mark Mauer of The Sentencing Project has argued for no sentences longer than 20 years.  

A: I don’t think that’s politically feasible. We’re a long way from that.  There’s an ongoing argument within the advocacy community: Do you go for incremental changes, or do you try to have everything change right now? Even the briefest analysis of our political history will tell you that everything’s incremental. That’s how things change. Look at the civil rights movement.  There wasn’t a before and after. There was a movement toward what’s better. It’s that gradual arc towards justice.

Q: Are there other nations with better drug laws?

A: Portugal is a reasonable model to look at. It has decriminalized all drugs.  But they also have treatment on demand. One thing that we have to take into account is that the United States is a much greater consumer of narcotics than a nation like Portugal. Our usage rates outstrip those of any other country. The social costs are significant. Most of us know someone who is consumed by opioids and the tragedy that goes with that. We’re going to have to put more resources towards treatment, for example, than a country with a lower rate of consumption.

Q: Why do we consume so much more?

A: I think it’s in part because of our individualism. We all believe that our lives have to be significant, important, and exciting. Drugs do that. In the same way that Americans all want to be on television, we all want to see things in an exciting way. Selling or doing drugs provides that.

Q: What is your assessment of the First Step Act brought forward and passed under the Trump Administration?

A: I wrote a piece in the Minneapolis Star Tribune supporting it.

It’s an incremental step and frankly, it’s a lot more than people expected to come from this administration. I think the response is, “That’s great. Let’s keep moving. Let’s get to that next step.”

Q: Who is going to implement it?  Attorney General Barr does not seem sympathetic. In his first term as Attorney General, he said, “We have a choice between more prisons and more crime.”

A: I think that there is some real opportunity in this administration. In the past, the bar to reform has consistently been the Department of Justice.  Politicians and presidents tend to defer to DOJ. This President does not. This brings a remarkable opportunity We saw that with the First Step Act.

The First Step Act includes a lot of things we did not get from the Obama Administration, and the reason was because DOJ said, “Don’t do that.” Well, Donald Trump doesn’t care what DOJ thinks.  On that score, we’re better off. Also, there is a remarkable advocate for reform within the inner circle of this White House. That’s Jared Kushner. Because of the experience of his family due the incarceration of his father, I think he’s really motivated to take action in this area.

The third thing is that Attorney General Barr is a believer in the unitary executive theory: the president has to re-claim from the bureaucracy the power that is given to him or her by the Constitution.  This is completely consistent with our argument on clemency: the president has to claim that power and take it back from DOJ.

Q: Our discussion thus far pertains to the 181,000 people in the federal prisons system.  This is a small percentage of the over 2.1 million individuals in state prisons and jails.  Is there anything federally that can affect what happens in the states?

A: Not directly.  But hopefully, we will see some “leading by example.” It helps that there are some conservative Republicans leading the charge at the national level.  This gives conservatives at the state level permission to do the same thing. When you’ve got Senator Mike Lee and the Koch Foundation arguing for this, it sends a signal to the states. Harsh punishment across the board is no longer entirely a core Republican belief. That’s a game changer.

Q: In the introduction, we commented on your Christian faith. Are there other scripture passages that have guided your work?  

Micah 6:8 is common to a lot of people.  I remember first coming across that when I was a prosecutor. On the surface, it seems almost glib. You have three values:  justice, mercy, and humility. They are all good, but in criminal law they are in tension with one another.

If justice is viewed as treating similarly situated people the same way, it’s fairness.Mercy cuts into that.  In a way, it is an argument for unfairness. What we learn is that the criminal justice system can’t be all mercy or all justice. It has to have aspects of both if it’s going to be principled.

Our tendency in the United States is to have all justice and no mercy.  The active push from people who take those principles seriously has to be towards mercy because we are too far towards the other pole.

We also need to learn humility. Consider juvenile life without parole. We are saying someone is irredeemable.  We are playing God when we have such certainty about something that is ultimately unknowable, namely the chance of redemption for someone we barely know.

Christ also told us, “When you visit those in prison, you visit me.”  This is transformative for me. There is an imperative to visit all those in prison, not just innocent people, not political prisoners, not our friends, but all those who are in prison.

The power of that directive is shrouded until people actually do it. I have students who have generally had fairly privileged lives. My clinic students are required to go a prison and spend two days with a client.  They come back transformed. Taking down someone’s life story as they sit in a cell is something that alters the way they see the world. That is exactly what Jesus is after when he tells us to visit those in prison.

Finally, those of us who are Christian usually believe Jesus’ life wasn’t just a series of random events. He was born into poverty so that we would understand the importance of poverty and that great things can come from poor people.

For that same reason, so much of what happens to Jesus, especially during the Holy Week, is about criminal law, being judged, being condemned, being convicted, and being executed. We are being told that this is important. The way we judge and sentence is crucial to the Christian mission just as the way we address poverty is important.

Q: What would you say to Jeff Sessions about clemency?

A: I would bring a Bible and say, “We have this in common, Mr. Sessions. Let’s start in these four Gospels and talk about justice and mercy and what it means.”

Having a common faith with people is an advantage because we are starting from the same place. I often talk to people about the need to go to conservative Christians to talk about these things because If we can convince them, we win.

[This interview has been edited for clarity and length]

The War on Drugs is a War on Families

Tom Houseman Drug Education

Last month, Clergy for a New Drug Policy partnered with Unbound, an online journal and community that examines, expresses, and provokes social justice as inspired by the prophetic gospel of Jesus Christ. Policy Director Tom Houseman wrote about how the War on Drugs tears apart families and undermines communities. With their permission, the full piece is reprinted below. It can also be read here.

Drug use is often framed as a personal issue, one of choices and consequences. “Do the crime, do the time.” Supposedly, harsh penalties aim to reduce irresponsible use of drugs. In reality, however, the War on Drugs has not succeeded in “protecting individuals” from their own choices. Instead, it has systematically incarcerated people of color (especially Black Americans) and devastated the family structures of entire communities.

When considering the punishment for a drug violation, whether it is prison, probation, or mandated treatment, we tend to only think about the impact that a conviction will have on an individual. Far too rarely is the impact on their families and their dependents considered.

After the investment of over $1 trillion dollars, drugs are as plentiful as ever, with seemingly little impact on drug use rates. While failing to win the war, we have, as Michelle Alexander tells us in The New Jim Crow, found a new way to enslave people of color. We send them disproportionately to prison for even minor drug offenses.

As we examine the collateral damage of this unjust war, two figures hit us between the eyes:

  1. At current rates of arrest, one out of every three African American males born today will spend time in prison.
  2. Approximately 2.7 million children have at least one incarcerated parent and over 10 million have lost a parent to prison at some point in their lives. (These figures affect 1 in 9 African Americans, compared to 1 in 57 White children.

The War on Drugs is a major driver of these disparities. Drug policies have had far more negative impact in terms of social justice, of family justice, than they have had any sort of impact on drug consumption and abuse. Urban neighborhoods have been ravaged by mass incarceration, leaving young men to rely on gangs for support, protection, and economic opportunities.

The people in prison for drug violations are not just people with drug use disorders or who had to sell drugs because they lacked any other source of income. They are heads of households, breadwinners for families, caretakers for children. Their prison sentences do not operate inside a vacuum, but have consequences that last for generations. And children do not choose to grow up with their parent incarcerated.

When examining the War on Drugs, it is also crucial to acknowledge how unevenly these laws are enforced. Black people are multiple times more likely to be arrested for drug possession than White people, despite the fact that countless surveys show the two groups use drugs at the same rate. Black people also receive lengthier prison sentences than White people for identical violations. Families of color and those living in poverty are over-policed and over-imprisoned. They are also the most vulnerable to the damage that a prison sentence can do to a family when it loses a breadwinner or a caretaker.

Whether prisons are merely meant to serve as a form of punishment or to help rehabilitate those who enter them, it is crucial to understand the ramifications of removing somebody from their family and community and placing them behind bars. Several studies have documented the impact of incarceration on families, both in the short term and long term.

In their essay, “Incarceration in Fragile Families,” Christoper Wildeman and Bruce Western write about how imprisonment “diminishes the earnings of adult men, compromises their health, reduces familial resources, and contributes to family breakup.” This effect is particularly acute for families already living in poverty. Putting a parent in prison not only takes them away from their children, but impacts their ability to provide structure and support for their long after they have served their sentence.

Growing up with a parent in prison has profound, long-lasting effects on children. In a report from The Nation, Sociology professor Kristin Turney detailed how “children with incarcerated parents were three times more likely to suffer from depression or behavioral problems, and twice as likely to suffer from learning disabilities and anxiety.” It is not surprising that students who have at least one prison in parent are more likely also less likely to finish high school or go to college.

These negative effects last even after a person is released from prison. Those with felony convictions are often barred from housing assistance, federal loans for education, and safety net programs such as the Supplemental Nutrition Assistance Program. In states that do not prevent employers from asking about felony convictions, even a conviction for non-violent drug possession can make it almost impossible to find a job or housing.

In Paternal Incarceration and Support for Children in Fragile Families, Amanda Geller, Irwin Garfinkel and Bruce Western examine how “the negative effects of incarceration on fathers’ financial support are due not only to the low earnings of formerly incarcerated men but also to their increased likelihood to live apart from their children.” When a parent is not present—or not able to support their children—because of a drug conviction, the effect is deeply damaging.

There are other collateral consequences of drug violations that can impact the family of people who are caught possessing or selling drugs. Considering that there is a drastic public housing shortage in the United States, it is very easy for someone to be disqualified from public housing, or even evicted, because of a family member with a drug conviction. For example, In 2002 nearly 50,000 public housing applicants were rejected because of a policy that excludes people with criminal records from public housing.

There are no winners in the War on Drugs, but there are millions of victims. That number will only grow until these policies are changed. The War on Drugs has failed. Both for the sake of the families already torn apart and for those that will be torn apart in the future, we must end the war.

We are reaping the consequence of what our nation has sown. And although we cannot choose to unilaterally end drug abuse, it is our choice to end the needless suffering of America’s “Other Vietnam”.

Tom Houseman, Policy Director

A ‘Quiet Revolution’ Gains Momentum

Rev. Alexander E. Sharp Diversion


Diverting individuals from drug use to treatment rather than arresting them is becoming increasingly common in the United States. In this interview, Jac Charlier, co-founder of the Police, Treatment, and Community Collaborative (PTACC), describes this “quiet revolution” and brings us up-to-date on its progress.

Jac Charlier, Executive Director, TASC Center for Health and Justice

What are police diversion and deflection?

Pre-arrest diversion is what happens when police direct individuals to treatment or other services when facing criminal charges that will be held in abeyance instead. Deflection is when police connect individuals into community-based treatment, housing, and services without involving the criminal justice system.

Why did you start focusing on diversion and deflection?

Diversion is the right thing to do. It’s hard to work in law enforcement and see that the tools we have on our belt — a gun and badge — aren’t solving the problem of addiction and mental health, the two largest drivers of justice involvement in the United States. Diversion is a way to say, “Let’s get these folks into treatment in the community, which will then stop them from having encounters with the justice system in the first place.”

Should police ever arrest someone for low level drug possession?

How often do we hear the phrase “We can’t arrest our way out of this.”  That’s the wrong statement. What we say in deflection is, “Do we really need to arrest in the first place?” Sometimes police drive away from someone when there are no other charges but they know the person needs help. They have compassion: Deflection says, “We need to be trained in how to work together with behavioral health to say, “I’m not driving away.  I know how to connect you up with treatment. No need to wait for a crisis to act.”

What is PTACC?

PTACC stands for Police Treatment and Community Collaborative. We are the national voice of the emerging field of deflection and pre-arrest diversion. PTACC represents a field that’s about seven years old, sitting at the intersection of law enforcement, first responders, community-based behavioral health, mental health, trauma, housing and other services. PTACC is made up of 31 national sponsoring organizations.

When it comes to deflection, the vast majority are rural or medium-size departments, and so you’re getting 30 people a year, you’re getting 15 people, 10 people per department. We also still don’t have a lot of departments doing the deflection. 18,000 law enforcement departments, we think we’re at about 750 right now, up from 400 two years ago.

What are your greatest accomplishments?

We are demonstrating that police and drug treatment providers can work together. In the past they have had a kind of indifference to each other, not knowing that to reduce crime, they actually need each other. Police would go sit outside methadone clinics and wait for people. Those days are behind us and now police are carrying naloxone.

The second big thing we’ve done at PTACC is to save lives, whether it’s in response to the opioid epidemic or to other mental health issues.

Third, we have advanced the conversation at the federal level.  In 2019, for the first time, the Office of National Drug Control Policy included the words “deflection” and “pre-arrest diversion” as a formal strategies to combat drug use. That’s a big deal.

You give police five pathways when they encounter drug users.  Which are the most successful?

You have to look at what problem you’re trying to solve, and what resources you have. If you have opioid overdose, you’re going do Naloxone Plus.  Self- referral happens more in rural and medium-size area where the amount of investment needed to start deflection is light. Treatment is mostly what you need to get self-referral going.  

Active outreach starts with the idea that we have a group of folks that our officers are running into over and over. About 10 percent in this group consume 80 to 90 percent of public health dollars in emergency room costs, repeat visits, and other chronic issues.  Under active outreach, you target proactively people to connect them to treatment.

Officer prevention and officer intervention give officers what we call third option, which is the power of deflection while working their beat or on patrol. Everybody gets the first option: the power to arrest. They forget the second option, which is police can drive away and do nothing. In deflection, officers can instead take people directly to treatment, housing, and services.

Since deflection started, how many people have actually been deflected?

We estimate we are over 40,000 people.

Aren’t we really just asking police to be social workers?

About 80% of police calls have some amount of social service component to them. They’re not just getting called to go after the bank robbers. People are calling them because they don’t know what else to do.

In officer training, I’ll say “We don’t want you to be drug counselors or social workers. We do want you and your counterpart in drug treatment and mental health and housing to know each other and know how to connect people between each other.”

We want police out of the business of social services and into “Well, I don’t know. It’s not my thing, but here, wait five minutes. We’ll have someone come over, he’ll take you to drug treatment center.” The police would love that. They could get back to catching the bad guys.

What are the barriers in getting police to divert and deflect?

Police law enforcement is a paramilitary culture. You need the chief to give the command that the department is going to do this. You absolutely need leadership.  Number two is the broader culture, meaning the line officer and the sergeant. You need them saying, “This is what I expect you to do. I want to see what you’re doing on your shift.” The third thing is pressure from the public. They might say, Where did you take that guy? You got to take him to prison.” You have to learn how to respond to this so the crime reduction aspect of deflection is what happens.

Much of this work depends on the availability of treatment.  How much treatment is available?

Nationally, about 22 million people in the US are active users of drugs.  Against that, it is estimated that there are about 2.5 million drug treatment slots.

My daughter is an emergency room doctor. She says she does not have any place to refer opioid overdose “deaths.” What are the pathways to address that?

There is in the United States a huge and massive disconnect between emergency rooms at the hospitals and behavior health. The payment structure for services in hospitals includes a form that lists a discharge plan. But the case management to ensure that you do what the plan says is needed is rarely funded once you walk out of the ER. We need to find a way for hospitals to sit down at the table with local behavioral health, insurance companies, and the State Medicaid office, to develop a payment structure for follow-up to happen. We need specialized case management that bridges these worlds together.

Are the five pathways confined pretty much to smaller cities and towns?

San Francisco, New York, and even Chicago have small versions of it underway now. San Francisco has a small officer prevention approach that they are starting. New York City has someone.  Chicago has both mental health — down in Roseland, they have the mental health drop off center, and they have the west side triage and wellness center over on Madison and Pulaski.

Baltimore has begun an officer prevention approach. Officers are trained to deflect in the high drug areas. Boston is underway with that. San Francisco. Spokane, Washington has a whole behavioral health unit fully integrated between officers and treatment.

What impact does deflection have on communities?

It can aid in police-community relations. Consider the normal scenario: Squad car drives down the street. Person is arrested, put in the squad car and driven away. Twenty-four hours later, he calls home from the jail and says he has been arrested. That cycle is repeated over and over.

With deflection, squad car drives down the street, person goes in the squad car, two hours later he calls, he says, “Hey, mom and dad, I’m in drug treatment.  I’m in housing. I’m in a mental health center. Hey mom, I’m back home and Tomorrow at 10:00 a.m. I have to report to treatment.”

Deflection changes the script on how police are viewed. We have anecdotal evidence, especially in high drug use areas, that that is in fact happening. The recovery community is beginning to come alongside police and say, “We’re spreading the word about what you’re doing.” That’s powerful.

Can churches and faith leaders be helpful?

What I really want churches to do is, first, be advocates for deflection and the funding of community-based treatment. Advocate for funding and resources.  Second, let’s recognize that congregations have people in recovery who could help others in recovery. If you had seven churches in a small community, those seven churches might have thirteen folks in those congregations who are in recovery.  What a calling in response to the Gospel it would be to say, “I’m going to use my recovery to help somebody else who is struggling. If you need someone, call me at 2:00 in the morning and we’ll set up a tree, we’ll figure out who to call and we’ll be there.”