“They won’t prosecute, but they will though:” the continuing struggle between criminalization and harm reduction within the criminal justice system in the context of an opioid overdose crisis

Abstract

People who use drugs (PWUD) come into frequent contact with the police including after calling for emergency medical services when witnessing an opioid overdose. Good Samaritan laws have been passed in many jurisdictions to protect people from prosecution if they call for emergency services. Other interventions have used police to connect people to harm reduction and drug treatment services. In contrast, more traditional policing practices that criminalize drug use persist, potentially increasing overdose risk and decreasing the likelihood that PWUD will call 911 in the case of an overdose. Little research has examined how all these different and contradictory policies have been implemented in practice. This paper presents data from in-depth interviews with 66 PWUD about their overdose experiences. Interviews explored the context in which overdose occurred; what actions participants took when witnessing an overdose, including whether they administered naloxone or called 911; and if they called 911, what law enforcement and emergency medical services (EMS) offered or did upon arrival (e.g. offer naloxone, refer to treatment, arrest, or confiscate drugs). Participants reported frequently being arrested following overdoses as there were many exceptions to the Good Samaritan Law. While in prison or jail, participants were not provided MOUD or naloxone and many experienced an overdose while in custody or shortly upon release. Few participants reported receiving referrals to drug treatment or ham reduction, and many described law enforcement officers’ engaging in practices that discourage PWUD from calling 911.

Introduction

Over one million people have died from opioid overdose from 1999 to 2018 [1]. Modeling studies and some empirical evidence suggest that expanding access to medications to treat opioid use disorders (MOUD) and overdose education and naloxone provision to reverse the effects of opioid overdose are key to substantially reducing opioid overdoses [2, 3]. However, considerable expansion of both overdose education and naloxone distribution and MOUD is needed to address the opioid overdose crisis [2] Efforts to expand access to MOUD and naloxone continue to be hampered by stigma and criminalization of substance use throughout the US [4].

Research suggests that the criminalization of drug use has contributed to the opioid crisis in several ways [5, 6]. People who use drugs (PWUD) are frequently incarcerated both for possession of drugs but also for theft, trespassing, prostitution, and other behaviors engaged in to support drug use [7, 8]. A recent meta-analysis estimated that 30% of men and 51% of women in carceral settings have a drug use disorder, a trend that has been increasing in the past few decades [9]. A cross-sectional study conducted in rural counties with high rates of opioid overdose in 10 states (Illinois, Wisconsin, North Carolina, Oregon, Kentucky, West Virginia, Ohio, Massachusetts, New Hampshire and Vermont) between 2018 and 2020 found that 42% reported recent incarceration; because incarceration is also a period of enforced abstinence risk of overdose is increased enormously [10].

These negative interactions can discourage PWUD from calling 911 in the case of an emergency as law enforcement frequently respond to overdose calls [11]. Good Samaritan laws, which protect bystanders who try to intervene to save a life in an emergency from arrest, are recommended as one best practice to reduce overdose mortality by the Centers for Disease Control and Prevention [12]. However, Good Samaritan laws vary considerably by state and even local jurisdiction [13]. Further, police are often ignorant of Good Samaritan laws even when they are in place [14, 15] and may continue to question, search or arrest bystanders and the person overdosing [16]. Some PWUD are not aware of Good Samaritan laws; others who are aware of the law do not trust that it will protect them in the case of an overdose [16, 17]. Finally, research has consistently shown PWUD are afraid of being charged with homicide if they supplied the drug in cases of overdose [18]. These very significant differences in implementation may help explain the mixed effectiveness Good Samaritan laws have shown in reducing overdose deaths with some studies showing no significant effect and others slight reductions in overdose mortality rates [12, 19, 20].

Good Samaritan laws proscribe law enforcement from certain actions during overdose events that may discourage PWUD from calling for assistance. However, police can also play a more active role by helping to divert PWUD out of the criminal justice system to more appropriate harm reduction and treatment services [21–27]. A sample of 438 representative US counties found that approximately 47% had some form of law enforcement diversion program, with 17% specifically having a version of the Law Enforcement Assisted Diversion (LEAD) program [28]. The Police Assisted Addiction Recovery Initiative (PAARI) is another diversion program that has been replicated in multiple sites [29, 30]. However, law enforcement diversion programs differ in several ways, including location, staffing, PSS, eligibility criteria, and services offered.

Little research has examined the types of treatment participants of law enforcement diversion programs receive [31], although research suggests that MOUD such as methadone and buprenorphine are underused in drug courts or community corrections [32–35]. Police and drug court judges can oppose MOUD, seeing it as “just another drug” that gets in the way of abstinence [32]. One study found that fewer than one in twenty justice-referred adults receive MOUD [34]. The same study found that courts and community corrections were the least likely among all criminal justice sources to refer to MOUD [34]. Research has shown considerable variation in the quality and type of drug treatment provided [36, 37], which is likely to significantly impact the effectiveness of law enforcement diversion programs in reducing substance use and recidivism [22, 31].

Until recently, MOUD was not offered in correctional settings [38] and forced withdrawal was common [39, 40]. Lawsuits have required some states to offer MOUD and others have followed suit in anticipation of similar rulings. However, MOUD uptake has been slow, and many facilities show a strong preference toward opioid antagonist naltrexone versus potentially more effective opioid agonists like buprenorphine [41]. Negative and stigmatizing attitudes toward MOUD and PWUD by criminal justice professionals influence knowledge of and screening for MOUD, as well as types of MOUD prescribed, and likelihood of being prescribed MOUD versus receiving non-medication treatment referral only [38, 42, 43].

Modeling and empirical studies suggest that only providing all 3 FDA-approved MOUD will be sufficient to curb the overdose crisis [44]. A modeling study compared the cost-effectiveness of providing no MOUD, naltrexone only, and all 3 medications on reducing overdose found that naltrexone reduced overdose but not nearly as much as providing all 3 medications. Furthermore, providing all medications was much more cost-effective than offering naltrexone alone [41]. Offering MOUD in carceral settings has also shown significant decreases in overdose rates and re-incarceration, improvements in employment [39, 45, 46], and increased the odds of people continuing MOUD post-release [47, 48]. Some systems began by continuing treatment for prisoners who are already on MOUD, a clear improvement as research suggests that experiencing forced withdrawal personally or vicariously discourages PWUD from initiating MOUD [49]. Literature clearly suggests benefits of initiating and continuing MOUD treatment in carceral settings for patient outcomes and reducing overdose deaths.

As demonstrated in this introduction, criminal justice actions can contribute to increased rates of overdose; at the same time, there are interventions involving criminal justice personnel that have attempted to reduce opioid overdose risk by linking and connect PWUD to MOUD and other harm reduction services. While there has been some research on PWUDs’ experiences with implementation of Good Samaritan laws, less research has examined other PWUDs’ experiences with other criminal justice programs such as police deflection. Qualitative research with individuals who have survived an overdose and have intervaced with the criminal justice system can reveal the extent to which such efforts are reflected in PWUD’s experience and critical junctures where decisions made by criminal justice personnel either increased overdose risk or decreased it. This paper presents in-depth interview data from people who have suffered one or more nonfatal overdoses about their experiences with the criminal justice system. Results suggest law enforcement action is often not in line with best public health practice including things proscribed (questioning, searching, arresting) and not doing things prescribed (opioid education and naloxone distribution, referral to MOUD or harm reduction).

Methods

This analysis was part of a larger study to examine community-level overdose prevention interventions in two counties (one urban, the other suburban) in a midwestern state. We conducted in-depth interviews with people who use opioids and had suffered from or witnessed an opioid overdose in the past year. All project procedures were reviewed and approved by the Institutional Review Board at the Medical College of Wisconsin, and all participants gave their informed consent. Participants were recruited through outreach to local drug treatment and harm reduction services in the two counties and by snowball sampling, although we attempted to sample for diversity in terms of race, ethnicity, and gender. After giving informed consent, participants were asked to describe their experiences with overdose including: details about the context in which overdose occurred; what actions participants took when witnessing an overdose, including whether they administered naloxone or called 911; and if they called 911, what law enforcement and emergency medical services (EMS) offered or did upon arrival (e.g. offer naloxone, refer to treatment, arrest, or confiscate drugs). Interviewers were research staff and graduate students with significant experience and training in qualitative research with PWUD.

All data were recorded, transcribed verbatim and analyzed using the qualitative software MAXQDA. The research team read transcripts and coded transcripts collaboratively until a final codebook capturing key content areas was agreed upon. Thereafter, coding was done independently by SK, JO and reviewed by JDG. Analysis focused on participants’ actions when they witnessed overdoses and post-overdose experiences with law enforcement and EMS and whether those actions were in-line with public health recommendations or were likely to increase the harms associated with opioid use, including overdose death. We then compared those who had experiences more in line with harm reduction principles with those who had more punitive experiences to determine some of the factors underlying this variability using a constant comparison process.

Results

We conducted 66 in-depth interviews, 33 women, average age for all participants 36 years old. Overall, four main themes emerged. (1) Post-overdose responses seldom follow “best practices” when it comes to harm reduction and treatment. Many participants described experiencing practices by law enforcement that increased their risk of overdose, including searches, interrogations, and arrests post-overdose, although this varied greatly. Few law enforcement officers offered harm reduction materials or referrals to drug treatment, and when referrals did happen, it was seldom to MOUD. (2) Participants also reported that overdose frequently occurred in jails and prisons, and that post-overdose responses in carceral settings were generally punitive. (3) Post-release, participants described being especially vulnerable to overdose due to reduced tolerance from forced abstinence. Finally, (4) Fear of arrest caused some participants not to call for help or practice safe injection practices.

1. Post-overdose responses seldom follow “best practices” when it comes to harm reduction

Most participants were aware of the good samaritan laws. However, they did not trust good samaritan laws to protect them in practice as there were many exceptions to the rule including for people on probation or parole. In 2022, 5.4 million people were under community supervision, with researchers estimating that approximately 60–80% of people in community supervision have substance use disorders [50].

M143: The one time I overdosed, and the cops came– well, two of the times I got arrested. They took me to the hospital to be medically cleared. One time they let me go. One time I went to jail because I was on probation.

Interviewer: Okay. So, you do know about the Samaritan law, right?

M143: Yeah, but I do know it does not work all the time…. And I know plenty of people that have fucking gone down for people that have overdosed in their houses and they didn’t have anything to do with it. They didn’t give them the drugs. They didn’t do anything. It was just they were there, and that person died and now they’re in jail for four years.

While it is not clear what the people above were charged with, it appears as if the participant may be referring to Wisconsin’s Len Bias law which provides a mandatory minimum prison term of 20 years for drug distribution that leads to the death or injury of the person. In practice, it is difficult to differentiate between a person who uses drugs who may also purchase drugs for a network member and a “drug dealer“. More often, participants reported that they were charged with relatively minor crimes such as possession or carrying paraphernalia. Although these charges rarely led to serving any jail time, participants were often taken to jail to document the arrest or citation.

M104: They’ll always take you. If it’s just like paraphernalia, you’ll just get a ticket and you’ll get let go after you get like fingerprinted and stuff. But if you get caught with like heroin, then you’re more than likely gonna go to jail…. Either I’d go to jail because I was on probation, or I’d catch a new charge. They’d find a needle on me or something, and I’d have to go to jail.

This processing can be lengthy. Bystanders who witnessed a nonfatal overdose are sometimes forced to wait hours before they are released from jail and may experience the uncomfortable symptoms of withdrawal. While not life-threatening, the experience is uncomfortable enough to weigh in participants’ decisions of whether to call 911 during an overdose.

Many participants also described experiences with police that were consistent with public health recommendations, including not arresting or interrogating individuals or confiscating drugs or syringes. As the research was conducted in Southeastern Wisconsin, many participants described very different experiences when they spent time in neighboring Illinois.

W104: They would Narcan me. They would bring me back and a lot of the times, it actually happened down in Illinois because I lived down there for a while. Down there, their laws must be different because they let me go. But the overdoses up here, I would almost always get arrested.

Some participants feared being arrested for homicide if they were the ones who provided fentanyl. In addition, some states and provinces in the US and Canada, including WI, have recently passed tougher sentencing laws for possession of fentanyl than other drugs [51]. Substantiating this fear, many participants reported that police often performed searches and interrogated people at the scene. When asked whether she was arrested, one participant answered.

W106: No. I actually didn’t have anything in the house because they did go through the house. So, I didn’t have anything. They did ask if I was on anything and I was honest and I told them, but they didn’t arrest me. They just gave me a serious talk you could say… They only arrested him because he had the warrant. So, they didn’t arrest him obviously then, but when he was woken up and that.

Having the warrant for his arrest was one of the many exceptions that participants mentioned for not being covered by the “Good Samaritan Law”.

M133: I’ve had where the cops come over — when he overdosed one time and they started going through my room and walking around my house, “What are you guys doing? You’re here to help him, not to fucking search my house and go through my stuff.”

Although there are post-overdose community paramedicine and a few law enforcement diversion models being implemented in some jurisdictions in Southeast Wisconsin in which people on-scene or as follow-up after an overdose would receive naloxone and referral to drug treatment, few participants reported having been directly offered these connections. It is difficult to know whether participants were simply not offered these services in areas where these programs had already been implemented or whether such programs did not yet exist in the areas in which they had encounters with police or paramedicine since they are not available in every jurisdiction, so this is an area for future research. However, as this participant points out, immediately post-overdose can be a difficult time to engage PWUD in discussions about treatment as they are sick with withdrawal.

Interviewer: Have they [police or paramedics] ever talked to you about medication-assisted treatment such as buprenorphine or methadone?….

M112: No. But the only times I had dealings with them was… when I got pulled over and had blood on me and when I had already overdosed and that was pretty much they just get you to the hospital, you know. They bring you back and you’re kind of like gone, like not all there type….and then being Narcaned, you go into immediate withdrawals, so I don’t think I would’ve been listening if they did. But no, it’s more like the treatment I need to get to the hospital anyway so it’s not like we had a lot of time to talk.

When police did recommend treatment, it was generally presented as a recommendation without any resources or direct referrals as the participant below describes.

M118: Every time I’ve been arrested, pretty much, they offer me. They tell me, you should get help and get in treatment. But they don’t actually help you get into treatment; they just say it’s something you need. But I haven’t really been pointed in the right direction. I’m actually somewhat looking to try to find treatment.

M136: They just give you the things and say, “You should get treatment.” I haven’t had an officer– they never just take a person to treatment. They’ll give you a number or something that you can call to get treatment.

Very few participants received direct referrals to treatment, and on those few occasions when they did, they were not offered MOUD, the gold standard of treatment [52]. On some occasions, like the participant below describes, participants’ own treatment preferences were ignored.

W120: I just do my best. I mean, I’m trying to stay sober right now because I’m supposed to go to a TLP [Temporary Living Placement, through probation]. And I’ve been just kinda staying away from everyone and focusing on my job. And you wanna know what is really messed up? Is when I got out of jail, I asked my probation officer to let me go to a treatment center and she wouldn’t, the DOC nor would the Health and Human Services pay for me to go to treatment…. They said I needed outpatient. I’ve been doing drugs the past eight days or something and they’re just gonna push it aside? That is bullshit. I told them all the shit that had happened and they’re really gonna call it “intensive outpatient”? That’s me crying, asking for help from my probation officer. And I said, “Do you want me to relapse on purpose?” And she’s like, “No, you’ll go back to jail.”

Whether or not the participant was better suited to inpatient or outpatient treatment, MOUD would have controlled their cravings and protected them from overdose had it been offered. It is important to note, however, that many participants preferred non-MOUD treatment, despite it being the recommended first-course of treatment.

In the few cases of diversion in which police officers were reported to have taken a participant to drug treatment instead of jail, participants were often sent to medically managed detoxification or “detox” centers. This was also true for those who went to ERs seeking post-overdose or psychiatric care.

W103: I ended up going to detox after I was in the hospital for, I think it was just a day, a day and a half-ish…. They ended up giving me, I forget what you call it, I think stuff kind of like lorazepam, or whatever, but it was just trying to help because I was talking about anxiety and stuff. And I was having panic attacks, but that’s the only thing they really gave me. I did freak out the first night because I didn’t wanna be locked down into a room. I don’t know what they gave me, but I passed out.

Detox programs are often one of the few places that accept patients late at night and so in some cases it is the primary option for officers to take someone actively using drugs or with a substance use disorder. At the same time, detox and abstinence-based programs decrease tolerance and thus increase the risk of overdose during relapse.

W102: I had a detective and an incident happen and then he knew and understood that it was all because of my addiction, so he made me a deal, rather than going to jail or any of that, he would– if I would set up to go to some type of treatment, he would let it roll and he would help me do it. I got set up, went to the place. Then when I finally came home, I stayed sober for 10 months. I ended up going to a halfway house for 90 days… and that was subsequently actually where I met the girl who later Narcaned me.

Halfway houses and jails were among the most frequent places that participants reported experiencing overdoses with some of the most serious nonfatal consequences as will be seen below.

2. Overdoses are frequent in jails, prisons, and halfway houses

Although incarceration can increase risk of overdose after release, in part because tolerance decreases after forced abstinence, the risk of overdose within jails and prisons is also high. Drug supplies are frequently interrupted, and drug quality May vary, increasing the risk of overdose when drug supplies become available.

M120: I’d seen my dope man come into the jail. Like the one I actually would call for dope when I was on the streets, and then he was locked up. He just came to me and gave me some dope for some phone time… and I’d been clean for like three or four months at the time because I was locked up. I had just did it. I went to the day room and I just don’t remember anything after that…Woke up on the floor in the day room at the jail.

Interviewer: Okay. Did they give you Narcan?

M120: They gave me Narcan three times they said.

Interviewer: Okay. What happened after that?

M120: I went to County. I went to the hospital. I wanted to go to the hospital obviously to get out of jail for a little bit. Then I had got put into protective custody…. because I wouldn’t tell them who gave me the dope. For my own health, for my own safety they said they put me on protective custody.… It was like I was in the hole, but I wasn’t. You know what I mean? I didn’t tell them who gave me the dope… Even though they knew who gave me the dope… They had everything on camera. Just because I wouldn’t admit to it, they were like fuck it. They were gonna punish me in one way.

Other participants also reported being punished after calling for help when their cell mate was overdosing.

M124: There was a guy that I was in jail with who had snuck some in and he– the plan was to do a little bit at first until after lockdown, we were gonna do you know do our thing and enjoy a little bit more. Well, it wasn’t even like a half hour later and the guy was lying in his bunk. I don’t know, like wheezing, he’s turning colors, and not responding to anything…. I didn’t really know what exactly would happen because I had never seen anybody before this. So, I asked some of the other inmates around and I don’t know, nobody was really able or willing to tell me a whole lot. In the end he ended up– I ended up having to call for help and they came in and Narcan’ed him a couple of times….

The participant above ended up losing privileges after calling for help because he had also done some of the drugs. However, it is also noteworthy that in addition to being punished after calling for help, the participant above and other people incarcerated were not provided with overdose education and naloxone to respond in the case of an emergency, potentially delaying reversal and increasing the risk of permanent cognitive damage or death.

3. Decreased tolerance after imprisonment

As mentioned, overdose risk increases after imprisonment due at least in part to decreased tolerance. Participants were aware of this fact and warned their peers; however, overdoses in such situations were still common.

M106: And then after that, it would be like you don’t realize that when you haven’t used in a week or two, like when you’re in jail which is very common, I’m sure you heard that from a lot of people who gets out of jail, and then goes and do the first dose like they normally do before they go in. And then they overdose on that because they haven’t used so much and stuff like that. Cause that happened to us too…. I tell everybody this, all the time, I don’t care what you– how much or how experienced or how [much] tolerance you have, always start off small. You can always add more later any stuff so. But they just go and do their normal dose and then they overdose right there in front of us.

In spite of this known risk for overdose, few participants reported being given naloxone to reverse overdose upon release. In this case, the participant’s friend who had been released from jail with him, was able to drive him to the hospital, but in other cases participants reported witnessing people overdose when naloxone administration could have saved their life.

M144: So, what happened was I went to county jail and I was there for about three weeks. So, my tolerance was really, really low. And when I got out, I was still kind of sick still. I haven’t slept in weeks, and I still had the symptoms of withdrawal. So, I went and got some heroin and the next thing I know I was, like, wow, this is some good stuff. And then I woke up in the hospital. So, luckily, I was with somebody…. I woke up in the hospital. So, he drove me to the hospital. And I’m a big guy. I’m 240 pounds, so he couldn’t pick me up. So, he had to pull up in front of the door and get a nurse and stuff.

4. Fear of arrest causes some participants not to call for help or practice safe injection practices

Participants reported that fear of being arrested prevented them from calling 911 in the case of accidental overdose. While there was a Good Samaritan law in effect in Wisconsin at the time, participants did not trust that the law would protect them from arrest as there were many exceptions to the prohibition of arrest at the scene of an overdose as discussed above

M115: This last time when I had to call the ambulance, obviously I was in fear of being arrested and all of that, and a different person may have not called the ambulance because of that fear. I’m not going to let somebody die, regardless if I would’ve had to go to jail for ten years, you know? I’m not going to let somebody die. But I know other people in that situation won’t call an ambulance and will let a person die, because they’re afraid of prosecution.… I think something should be done in that sense.

Interviewer: Do you know about the Good Samaritan law in Wisconsin?

M115: I do know about the Good Samaritan law, and I know it’s– you know, they won’t prosecute, but they will, though. You know what I mean? They will. They will, if they know that you provided the person, the drugs. Catch 22, you know?

Those who were on probation and parole reported that they were especially in danger of being arrested if they were to be found by police at the scene of an overdose, as substance use is considered a violation of the terms of parole. This participant described a time when he was experiencing an overdose and those around him tried to revive him by administering naloxone.

M109: Yeah, they were wanted…. I was on probation at the time too and they [people at the scene] were scared to call for me because… I was in and out of incarceration. I was just released two months before that. They were scared for me to go back, and they were wanted. Really, I think it was because they were wanted.

Other participants reported protecting other people who were using drugs at a party by transporting a person who was overdosing to the emergency department.

M137: So, I drug him to the bathroom and threw him in the bathtub and turned on iced cold water thinking that– shock him out of it. It didn’t work. So, I mean I didn’t wanna lose my fucking friend, and I was worried because I mean everybody was getting high in this apartment… I drug him down the stairs and threw him in the back of my car, and one of my friends… got in the car and we had to race him down to the hospital and I was zigzagging between cars. And at the hospital, I almost took out the front of the hospital when I pulled in. And I slammed on the breaks, jumped out, told them that, yeah, he was overdosing because he was blue. And I was like, “He overdosed. He has to be overdosing.” And then they’re like, “How do you know that?” I said, “Well, we were at a party and people were partying and stuff like that and I think he’s overdosing.” “No. You said he’s overdosing.” I said, “I think he is. I mean look at him. He’s blue. You don’t get that way with drinking.” And he’s like, “Oh, what’s your name?” I said, “I’ve gotta go,” and I took off.

The participant in this case seemed to assume that the questioning by emergency personnel was designed to get them to admit to opioid use, but it is possible that providers were trying to gather as much information as possible to treat the patient. Inconsistency in overdose responses, however, erodes trust in the emergency medical system. Other patients reported leaving the emergency department against medical advice for fear of being arrested.

M115: At the hospital, at the time, I was on probation. So, in the hospital, they wheeled me into the room. One of the nurses had mentioned that I didn’t have to be there if I didn’t want to, and I immediately left, because I was concerned of the police coming, and since I was on probation, I was worried that I would be arrested. So, I left.

Similarly, many participants reported administering naloxone and waiting to see if that revived their peers before calling 911 to avoid the risk of arrest.

M142: Over 10 different situations, I’ve witnessed it happen. And 90% of the times, I was able to Narcan them and bring them back. One time, I had to call the emergency and have first responders come and revive them…. I just made the call, and I kinda just watched, far. I did what I could, prior to them coming, to keep lives. And when they came, I just removed myself, to avoid the police, pretty much.

Others left people who overdosed outside the building where they had overdosed to protect people still inside from being arrested.

M143: It was kind of a rule at houses that if you overdose and they Narcan you or whatever, they’re gonna take you outside. If you don’t wake up right away, they’re gonna take you outside so that you don’t get caught in their house. If you’re lucky, they’ll call for you. Otherwise, yeah.

Other participants reported leaving the scene before police came if it occurred outside.

M112: I called and got out of the area as soon as I could.… Or put myself in a place where I can slip around the corner of a building or something. You know? [inaudible] Obviously I try to keep my head on and administer CPR. I’ve been a first responder for quite some time, so I’d do anything to try and keep somebody alive. It’s hard to put a value on a person’s life, you know, whether they use or not. I don’t want nobody to die.

Discussion

Staff in various parts of the criminal justice system at times act in ways that are counter to harm reduction principles and may increase overdose risk. These include things that they either choose not to do or are not equipped to do such as providing naloxone after release from prison or jail or post overdose [53, 54]. There are also examples of actions that harm PWUD by potentially increasing their risk of overdose and the stigma around effective treatment (MOUD). These include questioning, searching and arresting people at overdose scenes, practices that discourage people from calling 911 in the case of an emergency which may save a life if someone is experiencing an overdose. Unfortunately, this is the case not only in Wisconsin as a recent study found that a third of police officers reported making an arrest at the scene of an overdose within the last six months [55]. As in our study, many participants in this study reported waiting to see if naloxone reversed the overdose and sometimes administered naloxone multiple times before calling 911. These delays can result not only in death but can also result in permanent health problems [56]. One participant reported permanent hearing loss and other cognitive difficulties after such a delay. Finally, the minority of participants in this study who were given direct referrals to treatment for opioid use disorder were often sent to detox or other abstinence-based treatments which have been found to be less effective than MOUD and which, again, decreases tolerance and increases the risk of overdose [52]. These results confirm the necessity to engage law enforcement and the criminal justice system in harm reduction efforts to curb the opioid overdose trends in local communities.

Findings such as these have led some to call for an end to police response to overdose calls; others have argued that police are needed for the safety of emergency medical personnel and others [11, 57]. There have been few reports of violent or negative interactions in areas that have eliminated law enforcement from overdose response teams [58]. In addition, people who inject drugs and people who use drugs at raves have long provided safety to their peers. Efforts to institutionalize them by, for example, legalizing medically-supervised injection centers or through mandating harm reduction safety practices at music festivals have resulted in the creep of more traditional policing practices (e.g., drug sniffing dogs at entrances to sites or police monitoring of injection centers) that result in increased harms [59]. The logics and philosophies of policing versus harm reduction are not easily bridged, but not necessarily impossible. Similarly, drug treatment and harm reduction have often occurred in silos. Although the goals of treatment and harm reduction are separate, they are not necessarily incompatible. However, recent research suggests that harm reduction and drug treatment services are poorly integrated [60]. Some of this tension and bias toward abstinence as the goal of drug treatment persists and is evident in some of the stigmatizing attitudes toward MOUD which some equate as harm reduction rather than drug treatment, particularly when delivered to provide “low-threshold” access, i.e., without requiring abstinence from other drugs or attendance at psychosocial counseling sessions [4, 61].

Our results do not paint a uniformly bleak picture as participants also reported experiences in which they were not questioned post-overdose and did receive naloxone. These kinds of programs can and should serve as models for other departments and jurisdictions to emulate [28–30]. Several projects have demonstrated the effectiveness of interventions to educate officers about addiction as a chronic brain disorder and MOUD as a safe and effective treatment [62]. Other interventions have used social contact and implicit bias training to encourage officers to refer rather than arrest people with SUD [63]. Such programs, however, can only be successful if there are sufficient community drug treatment and harm reduction services available. Many popular diversion and deflection models function as partnerships between criminal justice and various governmental and non-governmental programs to serve this need. Many also employ social workers or certified peer support specialists to follow-up with PWUD post-overdose because, as many participants pointed out, people going through withdrawal are often “not in the mood to talk” or at least not immediately, which is often why a follow-up visit can be important. While such programs are expanding rapidly, there were limited law enforcement diversion/deflection programs in the study sites which may help to explain why so few participants reported having been referred to treatment post-overdose.

Several studies that have tried to replicate successful law enforcement diversion/deflection programs have failed, principally due to a lack of buy-in from rank-and-file officers who see harm reduction as incompatible with their role as law enforcement officers [64–66]. While research is just beginning in this area, leadership support and ease of referral has been shown to increase buy-in and support for such programs [67]. In addition, in some rural communities, law enforcement is the only resource available to respond to an emergency. More research is needed to understand factors that affect implementation of law enforcement diversion, deflection, and naloxone leave behind programs as police and criminal justice will continue to play an essential role in the overdose response. Wisconsin DOJ has recently funded multiple proposals to expand naloxone leave behind and other diversion and deflection programs; longitudinal research on these and other community level efforts to reduce overdose can help us further refine efforts.

Intervention is also needed to change some of the practices that can be harmful, starting with the continued criminalization of drug use. This has led some to call for the decriminalization of illicit drug use. Portugal was one of the first to decriminalize all drugs by making it an exclusively administrative violation with additional resources for drug treatment and harm reduction services. Data from Portugal has shown the prevalence of drug use and associated health conditions, including drug-related deaths, has decreased [68]. More recently, Oregon enacted a similar law. Initial evaluations of the Oregon program, however, have proven less encouraging, with many officers considering it a failure as street level drug use and overdose deaths continued to rise [69]. Although proponents of the measure argued that drug treatment and other services were not in place to replace jail, the measure was repealed in March 2024. There has been progress in Wisconsin and across the US in providing access to MOUD treatment in jails and prisons. For example, some WI Counties have utilized Opioid Settlement Funding to increase access to MOUD in criminal justice settings [70]. These efforts are important; however, much of this progress occurred after our participants were interviewed and no participants in our project reported having been offered or continuing MOUD while in prison or jail. A number of studies have shown increased risk of overdose upon leaving prison or jail when abstinence is enforced; coerced abstinence-based “drug treatment” similarly results in increased risk of overdose post-release [71].

A limitation of this study is that we cannot be sure whether PWUD did not receive referrals or naloxone because they didn’t exist or because they were being poorly implemented which is important for program implementation efforts. Similarly, because Good Samaritan laws and other programs can vary widely in content and implementation within relatively small geographic areas and over time, it would be nearly impossible to match participants’ recollections of post-overdose events with particular programs or polices in effect at the time. We are also limited by the non-representative sample; although we attempted to recruit for diversity, some subgroups may have been missed.

The law enforcement and criminal justice systems are integral parts of any efforts to control the harm associated with opioid use including overdose deaths. However, efforts to change their roles in relation to illicit drug use are not simple or straightforward and many good-intentioned efforts can “fail from within” if those who are implementing do not believe in them [38]. Without such engagement and change, we may continue to be frustrated in our efforts to decrease opioid overdose in the US. Further, such efforts must discourage harmful practices including referrals to abstinence only drug treatment, while also encouraging prescriptive actions to engage criminal justice personnel in linking PWUD to harm reduction and MOUD.

Author contributions

JDG conceptualized the study and wrote the main draft; SK and JO conducted interviews and analyzed data; all authors reviewed and edited the manuscript.

Data availability

Data used in this article can be obtained from the corresponding author by reasonable request.

Declarations

Competing interests

The authors declare no competing interests.