Barriers to drug treatment in police diversion programs and drug courts: A qualitative analysis

Abstract

Drug treatment courts and police diversion programs are designed to divert people away from incarceration and into drug treatment. This paper explores barriers in linking people who use drugs (PWUD) into drug treatment facilities in urban, suburban and rural areas of Connecticut, Kentucky and Wisconsin. Between December 2018 and March 2020, study teams in the three states conducted in-depth, semi-structured interviews with key informants involved in programs to divert PWUD from criminal justice involvement including police, lawyers, judges and others who work in drug treatment courts, and substance use disorder (SUD) treatment providers who received referrals from and worked with police diversion programs or drug courts. Police diversion programs and drug treatment courts showed intra-program variation in the structure of their programs in the three states and in different counties within the states. Structural barriers to successfully linking PWUD to treatment included a lack of resources, for example, a limited number of treatment facilities available, difficulties in funding mandated treatment, particularly in Wisconsin where Medicaid expansion has not occurred, and PWUDs’ need for additional services such as housing. Many police officers, judges, and others within drug treatment court, including drug treatment specialists, hold stigmatizing attitudes toward medications to treat opioid use disorder (MOUD) and are unlikely to recommend or actively refer to MOUD treatment. Drug courts and police diversion programs offer a welcome shift from prior emphases on criminalization of drug use. However, for such programs to be effective, more resources must be dedicated to their success

Introduction

People who use drugs (PWUD) often come into contact with the criminal justice system. A 2016 survey from the Department of Justice reported that almost half of people incarcerated in federal and state prisons meet DSM-IV criteria for a drug use disorder, and approximately 20% had an opioid use disorder (OUD) (Bronson et al., 2017; Maruschak et al., 2021; Mumula & Karberg, 2006). It is estimated that approximately one quarter of people with OUD pass through US jails and prisons each year (Bronson et al., 2017). Opioid users leaving prison are 10 to 100 times more likely to have a fatal overdose compared to the general population (Berg, 2019; Binswanger et al., 2007). Few prisoners receive drug treatment while in jail or prison (de Andrade et al., 2018; Friedman et al., 2012) and rates of relapse post-release are high (Binswanger et al., 2015; Chandler et al., 2009).

Because of the high costs of imprisonment and high rates of recidivism, there has been some attempt to divert non-violent drug offenders away from jail and prison (Brown, 2010; Harrison & Scarpitti, 2002; Taxman & Bouffard, 2002). The Sequential Intercept Model (SIM) (Munetz & Griffin, 2006; Substance Abuse and Mental Health Services Administration) shows points when people who use drugs interact with the criminal justice system which are also points for intervention with the hope that most people will be intercepted early, decreasing numbers at each subsequent point. The interception points are law enforcement and emergency services; initial detention and initial hearings; jails and courts; reentry from jails and prisons; and community corrections and community support (Munetz & Griffin, 2006). Two increasingly popular models to divert PWUD from time in jails or prison are police diversion programs and drug courts (Munetz & Griffin, 2006). Police or emergency diversion programs are the first point of intervention and seek to divert people before they are arrested. Drug courts are the second point of diversion and seek to divert people to drug treatment after arrest, either as an alternative to prosecution or as an alternative to incarceration. This paper will use qualitative interviews to explore the implementation of police diversion practices and drug courts in different areas of the country.

Police diversion models can be placed into two broad categories: outreach models and walk-in models. In outreach models an officer or an interdisciplinary team interacts with PWUD upon being stopped for a non-violent drug offense or in response to a non-fatal overdose to help connect individuals to substance use disorder (SUD) treatment or harm reduction services (Bagley et al., 2019; Davoust et al., 2021). In walk-in models, individuals are encouraged to enter police departments or other designated locations and request assistance without fear of consequences for having used drugs (Schiff et al., 2017) (Hartford et al., 2006; University of Cincinnati Center for Police Research and Policy, 2021). Police in diversion programs have considerable discretion in determining who to refer for treatment. In some cases, police can refer individuals who are known to police as using drugs but are not committing a crime at the time of referral (University of Cincinnati Center for Police Research and Policy, 2021). Programs also differ in whether PWUD are referred directly to drug treatment programs or to an intermediate agency where they will be assessed, and in the strength of programs’ connection to community resources, including drug treatment programs (University of Cincinnati Center for Police Research and Policy, 2021).

Drug treatment courts are intended to intervene at the next point in the SIM model, when individuals have been arrested and charged. The purpose of these programs is to link non-violent criminal offenders to drug treatment instead of serving prison or jail sentences. Drug courts vary according to whether they are pre-adjudication or post-adjudication models (Marlowe, 2006; Marlowe et al., 2005; Matusow et al., 2013). Drug courts can also vary in whether they work with multiple community organizations to provide drug treatment or have an in-house drug treatment program from which they contract some or all beds (Barton, 2008; Brown, 2010; Gottfredson et al., 2005; Granfield et al., 1998; Marchand et al., 2006; Rempel & Destefano, 2001; Taxman & Bouffard, 2002). Drug courts also vary in the kinds of other services they provide such as housing subsidies, vocational training, or adult education (Brown, 2010; Gottfredson et al., 2005; Peters & Murrin, 2000). Defendants can also be diverted to treatment in criminal or community courts that deal in low level “quality of life” offenses.

Both police diversion programs and drug courts are highly dependent on the availability and accessibility of drug treatment programs in the community (Welsh et al., 2015; Yatsco et al., 2020). Treatment options are limited in many communities, and so drug court participants are often assigned to treatment organizations based on their availability and geography (e.g. close to the offender’s placed of residence) rather than treatment needs (Taxman & Bouffard, 2002). Similarly, police diversion programs are hampered by the limited availability of drug treatment services (Wood et al., 2020; Yatsco et al., 2020). In one study, the majority of participants were placed in detoxification which, if not accompanied by longer term maintenance treatment, is contraindicated because of the high rate of relapse and overdose after short-term detoxification, particularly for opioids (Schiff et al., 2017). The authors speculated that participants may have been referred to detox programs because, unlike many drug treatment programs, they often have available treatment spots and because this was the protocol at many emergency departments in the area. Formalized inter-agency collaborations may help to decrease barriers to appropriate treatment (Hartford et al., 2006; Yatsco et al., 2020). Collaborations with non-treatment community agencies can help address other needs such as housing or employment, and programs that include case management to address these needs have been found to be more successful than those that do not (Hartford et al., 2006)

Little research has examined where participants are sent by drug courts or police diversion programs (Joudrey et al., 2021), although some research suggests that medications for opioid use disorder (MOUD), such as methadone and buprenorphine, are underused (Krawczyk et al., 2017; Matusow et al., 2013; Matusow et al., 2021; Morris, 2020). Retrospective comparative effectiveness research of MOUD and non-pharmacological treatment showed that only MOUD was associated with reductions in overdose and serious opioid-related acute care use (Wakeman et al., 2020). Further, while the literature examining the effects of MOUD on criminal-justice involved populations is relatively sparse compared to the general population, MOUD has been found to be effective in reducing drug use and recidivism (de Andrade et al., 2018; Schwartz et al., 2018). Police and drug court judges are often hostile to MOUD, seeing it as “just another drug” that gets in the way of abstinence (Matusow et al., 2013). One study found that fewer than one in twenty justice-referred adults receive MOUD (Krawczyk et al., 2017). Criminal justice referred participants were less likely to be referred to MOUD (4.6%) than those referred by other sources (40.9%). The same study found that courts and police diversion programs were the least likely among all criminal justice sources to refer to MOUD (Krawczyk et al., 2017). Research has shown considerable variation in the quality and type of drug treatment provided (Ducharme et al., 2006; Ducharme et al., 2007) which is likely to have a significant impact on the effectiveness of police diversion and drug courts in reducing substance use and recidivism (Joudrey et al., 2021; Taxman & Bouffard, 2002).

Whereas police diversion programs and drug courts have expanded in the US in general, their spread has varied according to geographic region (West, Midwest, South and Northeast) and among jurisdictions of different sizes (Lattimore et al., 2020). Approximately 17% of US counties in a nationally representative sample of US counties implemented the specific police diversion program LEAD and 31% implemented another police diversion program. Police programs were reported more often in Western and Northeastern jurisdictions, followed by the Midwest and South. More highly populated counties were also more likely to report pre-trial diversion programs than less populated areas. Problem solving courts were reported as implemented in about 60% of the jurisdictions, spread evenly across geographic regions and were implemented more often in jurisdictions between 100,001 and 500,000 residents compared to the smallest and largest jurisdictions (Lattimore et al., 2020).

This article will use qualitative interviews with key informants from three states that represent three geographic regions (Northeast, Midwest and South). Key informants included police officers, drug court personnel and drug treatment providers, and interviews focused on barriers to implementing drug court and police diversion programs. First, we review differences in the structure of police diversion programs and drug courts in different municipalities in the three states and barriers to effective implementation of these. Structural barriers included a lack of resources, for example, a limited number of treatment facilities available, difficulties in funding mandated treatment, particularly in Wisconsin where Medicaid expansion has not occurred, and PWUD’s need for additional services such as housing. In addition, many police officers, judges, and others within drug treatment court, including drug treatment specialists, hold stigmatizing attitudes toward MOUD and are unlikely to recommend or actively refer to MOUD treatment.

Method

Study Overview

The current study is part of a larger project that aims to compare factors that influence the effects of opioid-related laws and policies in Connecticut, Kentucky, and Wisconsin on the transitions from prescription opioids to heroin, fentanyl, and/or injection drug use. An urban, suburban, and rural area was selected in each state to examine the role of the local context on these transitions. Key informant interviews were conducted between December 2018 and March 2020.

Study teams in each state conducted in-depth, semi-structured interviews with two groups: key informants and people who use heroin or prescription opioids nonmedically. The present paper uses data from key informants involved in programs to divert PWUD from criminal justice involvement, including police, lawyers, judges, and others who work in drug or community courts, and SUD treatment providers who received referrals from and worked with police diversion programs or drug courts. We identified an initial list of key informants using the expertise of the research teams located in each state. We then asked key informants for the names of additional people who occupied other key roles. Key informants were at least 18 years old. We conducted 55 interviews with drug treatment providers (CT=9, KY=28, WI=18), 20 interviews with drug court personnel (CT=1, KY=6, AND WI=13), and 26 interviews with police or other first responders (CT=6, KY=10, WI=10).

Potential participants were contacted by an email in which they were given a brief description of the study and told why they were being asked to participate. If these candidates expressed interest, interviewers scheduled a time to conduct a face-to-face interview when possible, or a phone interview. All participants were told that their participation was voluntary and would be kept confidential and each provided written informed consent to participate in the study. Two participants refused to participate; another 4 did not respond to emails or phone messages. Interviews were conducted by five researchers experienced in conducting in-depth interviews. Interviews lasted approximately 30 to 60 minutes and were audio recorded. All procedures were approved by the Institutional Review Board at the Medical College of Wisconsin.

Interview Content

Interview guides and probes differed depending on the sector to which participants belonged. All key informants were asked to describe their current job and responsibilities, and to assess the extent of and factors that have contributed to prescription opioid, heroin, and fentanyl misuse in their communities. Drug court personnel and first responders were asked where they referred PWUD for drug treatment, the factors that were considered when placing individuals, their attitudes toward PWUD and barriers to treatment. Drug treatment personnel were asked whether they received referrals from drug courts, or police and their experiences in dealing with drug courts. The current paper focuses on barriers and facilitators to police diversion programs and drug courts.

Data Analysis

All interviews were transcribed verbatim. We used a collaborative approach for data analysis (Boejie, 2010). First, we selected a transcript that was read by the multi-state research team to develop a preliminary list of codes. The preliminary coding list was then applied to three additional transcripts—which were purposively selected to reflect different experiences (e.g., the sector to which the key informant belonged, state, local area) and refined until the research team reached consensus on a final list of codes, their meanings, and the procedures for assigning them to text data (Glaser & Strauss, 1967). The research team then used MAXQDA software to apply the final list of codes to the transcripts. The coding was completed by six members of the multi-state research team. Coding, development of new codes, and memoing (jottings done by coders to capture relationships between codes or initial hypotheses) were tracked by the team. We also used bi-weekly team meetings for troubleshooting and quality checks that included the principal investigator of the study.

We used a constant comparative approach to analyze data for this paper, a procedure for evaluating data in which data are coded and compared across categories to identify patterns (Fram, 2013; Hewitt-Taylor, 2001). First, we identified quotes that focused on police and court diversion programs, how they worked, and how and where drug treatment was selected for clients. We then compared how key informants from different states perceived diversion programs and the challenges to implementing them. In constant comparative analysis, all data are systematically compared to all other data in the dataset and analysis continues until all data are explained. Qualitative software allows easy comparison across codes and participatants in this manner. As sometimes key informants are the only participants who fill a particular role in a geographic area, we did not seek saturation so much as to ensure that every relevant perspective was captured to the extent possible. Nonetheless, themes were identified across roles and geographic areas.

Results

Three themes were discovered in analysis related to implementation of police diversion programs and drug courts: the lack of SUD treatment programs with capacity to take in PWUD in their programs and other resource problems such as insurance payments and a lack of transportation; the need for integrated psychosocial services for PWUD with mental illness and PWUD experiencing homelessness; and MOUD stigma which prevents many programs from recommending MOUD to their clients. Table 1 shows the frequency of each theme according to participant type. It should be noted, however, that many police interviewed did not have formal police diversion programs in their jurisdictions and so would not have directly experienced some of these barriers.

Table 1:

Proportion of Key Informants who discussed theme

	Lack of SUD Treatment Capacity	Insurance barriers	Homelessness	Mental health needs	MOUD Stigma
Police	29%	14.3%	14.3%	64.3%	29%
Drug Courts	47.4%	36.8%	26.3%	26.3%	25%
SUD Treatment Providers	88%	76%	12.0%	48%	54%

Structure of diversion programs

Types of police diversion programs differed among the states and in different counties within the states. Wisconsin and Kentucky had no formal police diversion programs in the three counties at the time of the study, although two counties not part of the research project did have police pre-arrest diversion programs. Connecticut had two different models operating in the state. In the HOPE (Heroin/Opioid Education and Prevention) model, which was used in one county studied, PWUD could come into the police department, ask for help, and be linked to resources without fear of being arrested. Also, some Connecticut counties followed the Law Enforcement Assisted Diversion (LEAD) model, which uses outreach to refer PWUD to treatment at the time police encounter them committing a crime. The LEAD model was also used in Kentucky, although not in the communities studied.

Drug treatment courts are available in 118 counties in Kentucky, including the counties in this study, and in all three of the study sites in Wisconsin. Connecticut does not have drug treatment courts, but rather special “community courts” (as opposed to regular criminal courts) for low-level offenses, which can mandate treatment in lieu of incarceration. Defendants with “quality of life” charges such as breach of peace, prostitution, criminal mischief, criminal trespass and shoplifting, which are often committed by PWUD or people experiencing homelessness, are referred to community court. Community court deals with a wide array of minor crimes in addition to drug possession but does not focus exclusively on drug related crimes or crimes committed by people with a drug use disorder. In addition, Connecticut has a Drug Intervention program that operates in the cities of New Haven and Danielson. These are not in separate courts with dedicated staff but do require defendants to enter treatment and have a prolonged period of court supervision in which a judge monitors their progress and compliance with the program. In contrast, those in community court are under the direct supervision of the Court Support Services Division for up to two years. In Wisconsin, in counties without drug treatment courts, charges can be diverted or deferred if the prosecuting and defense attorney agree.

Lack of SUD treatment options

Personnel in both police diversion programs and drug court or other pre-trial diversion programs reported that a lack of treatment facilities limited their ability to help PWUD who might be appropriate for treatment as an alternative to incarceration. In some cases, this may tempt judges or police officers to send or keep people in jail for fear that they may overdose if left on the street to continue to use.

The judges would love it if I could show them a bed [in a drug treatment facility] for every single person, they’d let every single person out [of jail]. They understand the problem. It’s just that we don’t, we don’t have the capacity. Unfortunately, sometimes I think they think they’re saving somebody’s life by putting them in jail and they might be right.

(Public defender, rural CT)

Police may feel more pressure to connect someone to drug treatment immediately or risk losing contact with the individual. Drug and other courts, on the other hand, can afford to wait more time to find an appropriate treatment center for a client as they are likely to be in regular contact with PWUD while they are completing drug court ordered treatment.

We have some people who are involved specifically on directing for treatment…. Part of our plan that we implemented was to do site visits, so with these providers we’d like to go out and go see what the place is like and talk to the staff. They come present to us because we know that the level of the provider does impact our outcomes. And some are better than others. We know this, and so because of the limited resources, we sometimes use places that are not high on our list, but if you don’t have another place and somebody’s sitting in jail, then you say, well, let’s give it a shot. And so, we try to monitor that

(Milwaukee drug court personnel).

Drug courts can also buy time by keeping clients in jail while a space is found. There is a limit, however, to how long members of drug courts feel that defendants can or should be kept in jail while waiting for treatment. This creates a dilemma when working with PWUD who may be appropriate for a residential level of care.

A lot of times, unfortunately, we’ll have someone who we assess. They need to be placed into an inpatient and we’re holding them in custody and there are no beds. And then you get to that dilemma of what do you do because you don’t want to hold them in custody. You can’t legally hold them in custody forever while you’re waiting for a bed, but if you let them out, they’ll use. So, we’ve gone to the use of electronic monitoring so if someone is waiting for a facility, we’ll put them on house arrest where we have them electronically monitored

(Suburban WI drug court personnel).

Because police are often trying to link PWUD to drug treatment immediately, they also are often expected to transfer them directly to drug treatment facilities. This creates problems and barriers to the success of the program when the only available treatment facilities are distant from police officers’ jurisdictions.

A lot of other counties don't have that ability, so my regular patrol officer, odds of them getting someone that says, "I want to go to rehab," – and the officer says, "Great." They're like, "Well, my rehab is in Radcliff, Kentucky. Can you take me?" "I can't." So, that's one of the things that we're kind of able to do through our unit is be able to actually transport those individuals to facilities that are a pretty good distance away. And going to Georgetown for our patrol officers is a big deal. You gotta send a request all the way up the chain to be able to go out of county. So, to be able to take someone to a rehab facility in Georgetown is huge.

(KY state police).

The police officer quoted above was a team member of a community paramedic program designed to respond to frequent 9-1-1 callers, including PWUD who experience overdoses, to link them with appropriate services. Their team included a social worker and had other funding to help support their work, including money for transportation. Most departments did not have a dedicated social worker to help first responders find appropriate treatment and, as the participant mentions, did not have the ability to offer transportation, which hindered their ability to divert PWUD from arrest to treatment.

Police would often take PWUD to behavioral health crisis centers instead of arresting them. These crisis centers offer a temporary place where PWUD will be safe and can be assessed to determine the appropriate treatment facility. Such sites also have social workers who can help navigate treatment options and find a place with available space.

We have a large number of people who come in through our crisis center. We have people who are brought in by police, by family or sometimes by themselves looking for detox, or intoxicated and not knowing what they want. We try – since we don’t have an active ambulatory detox right now, we often use our crisis center as a means of keeping them safe until they are capable of making decisions for themselves. While they are here, we’ll often use that as an opportunity for our crisis pros, for me, for the psychologist who is working with me in our new recovery program to spend some time talking with them, say, “Hey, look. You don’t have to keep doing this. You have an option. We have this recovery program.” And we try to talk them into it. So, a lot of people come in that way.

(WI rural drug treatment provider)

These types of centers eliminate the necessity for police to try to determine whether any of multiple drug treatment agencies have space for a PWUD in their custody.

Difficulties paying for treatment

Another barrier to successful implementation of police diversion programs and court ordered drug treatment is the difficulty funding treatment for participants of such programs. Most programs relied on participants’ insurance to fund the programs with state and local block grants to make up the difference. However, private insurance varies considerably in the kind of treatment services they will cover, limiting treatment options for participants (Dickson-Gomez et al., In press). In such cases, decisions are not necessarily made based on the needs of the participant, but on what their insurance will pay for.

People have access to different benefits. So, to some extent, they go where their benefits permit them to…. There’s a drug treatment court coordinator who – and a drug treatment court team and I think they spend a lot of their time trying to figure out who in town would be able to take people. Because we have people without insurance and without an easy entry point and they have people try to solve that problem

(Milwaukee drug treatment court personnel).

Because of the different restrictions on types of treatment covered by private insurance and Medicaid, some drug court personnel reported that it was sometimes easier to find treatment for participants without insurance. In such cases, treatment could be paid for by state and county grants.

The weird thing is it’s almost worse if you’re insured in Milwaukee County because insurance is so – private insurance struggles to pay for treatment. And it can be such a pain to go through the pre-authorization process and get someone to fund and if you tell the insurance they’re involved in the court systems, forget it, because then they don’t think that the person wants to do it and they think they’re being required by the court. So, really, it’s almost more of a hassle to get people approved for treatment services when they’re privately insured. People that are on state insurance [Medicaid], it gets approved pretty much immediately, you just have to call and it’s like, “Yep, we accept that. Here ya go, you’re good to go.” [But] state insurance does not cover residential treatment, so there’s where, what Art [pseudonym] was talking about, Milwaukee County Behavioral Health Division approves those individuals and pays for them – to go to residential.

(Milwaukee drug court)

Decisions about whether treatment for an SUD is authorized by private insurance is supposed to be based on whether the treatment is “medically necessary” since passage of the parity laws, including the Mental Health Parity Act in 1996, the Paul Wellstone and Pete Domenici Health Parity and Addiction Equity Act in 2008, and the Patient Protection and the Affordable Care Act (ACA) in 2010. Being “motivated” is not a criterion to determine medical necessity.

Some grant funding, however, is also limited to particular treatment modalities, such as intensive outpatient or residential treatment. The presence of a grant can therefore lead diversion programs to recommend certain treatments over others, as described by the participant below, whose county received a grant to provide naltrexone to PWUD involved in the criminal justice system.

Now in Dodge County we’ve just recently gotten a grant through the Department of Human Services… We have someone that goes into the jail through one of our other grants every day to screen persons who are in the jail and screen them for treatment needs, whether it be drug treatment needs or mental health. So, if we do find that there’s someone who is an opiate user, we can talk to them about Vivitrol [naltrexone]. We can have lab work and set up an injection before they leave the jail and coordinate treatment for them when they are in the community and a follow-up medical appointment…. But now suppose that funding ran out or whatever grant there was that funded that went away…. Right now, we have money for Vivitrol

(WI rural drug court).

As the participant mentioned, grant funding is also often temporary and some, like the grant providing naltrexone, is awarded only to those counties that apply for it.

State grants are used to purchase space in treatment facilities in Wisconsin and Kentucky.

We work really closely with the drug courts in the city, so family drug treatment court, criminal court, veterans’ court, and mental health court. All those courts might be a referral source to us. The P.O.s [parole officers] might be a referral source to us … One of the things we do have at our residential facility right now is 10 beds are purchased… 10 of the 43 beds are purchased by the Department of Corrections, DOC.

(Milwaukee drug treatment provider)

Although these treatment facilities operate independently from criminal justice, this limits the options available to participants who, without private insurance, may be encouraged to enter treatment facilities that have already been purchased.

Psychosocial needs

Police and court diversion programs were also limited by the lack of psychosocial services they were able to offer participants. Homelessness is prevalent among PWUD and often drove the decision to send participants to residential treatment.

So, we try to use the ASAM [American Society of Addiction Medicine] criteria. And so, we rely on our treatment providers to assist us with deciding what type of treatment is correct for a participant. And we try to not go straight to long-term residential in-patient treatment unless there is a need. Let’s say, this person is probably homeless, and they have no life skills, and there’s just no way that they’re going to be able to do outpatient services. That person may be more qualified for a residential facility, first and foremost, before we try and do other things

(KY suburban drug treatment court personnel).

However, participants are unlikely to exit homelessness while in a residential treatment facility either by receiving a housing subsidy or by gaining employment and saving money to pay for housing. Residential treatment usually does not allow patients out of the treatment facility, particularly in their first days of treatment. Further, residential treatment days are usually very structured and filled with therapy and group sessions. Patients with jobs, therefore, are often not able to attend their regular work schedules and those who are unemployed have little time or freedom to search for employment. Housing subsidies, such as housing choice vouchers or Section 8 or permanent supportive housing programs can help people experiencing homelessness achieve housing. However, most of these programs have long waiting periods (Fenelon et al., 2018). Thus, residential treatment is only a temporary solution to the problem of homelessness and, as the key informant below points out, extending residential treatment long-term may be harmful to participants who do not have an opportunity to practice sobriety skills learned in treatment in real life settings.

I think that there probably needs to be more inpatient resources, short-term inpatient resources. I’m not sure you need to be in an inpatient program for 90 days. I actually think that sometimes that the management of this illness in recovery is about learning where your triggers are and learning how to live with those triggers. So, I think if you’re isolated from your natural environment, when you return you may not have fully understood how to deal with it. So – but I think there are times where somebody needs to be – safely go through a detoxification protocol and be able to stay someplace that’s safe for them because the lack of safety is a – and lack of safe housing is one of those traumatizing effects on people that might be vulnerable to drugs.

(Milwaukee drug treatment court personnel)

In Milwaukee, bridge funding can be used to facilitate the transition from residential treatment to community living or can be used to support PWUD with housing while they attend outpatient treatment. However, bridge funding is only available for three months and there are few halfway or transitional housing places where this funding can be used.

The other thing we run into all the time is housing and lack of housing that is stable for individuals. As I mentioned, a lot of them have burned bridges with family or family doesn’t trust them to live there anymore. And there’s only a few locations, we call them bridge housing, where people can go and the county will pay for them to live there, so for three months and then that housing’s up so the person has to have found a job by then. So, being flexible can be difficult when we are met with barriers such as housing, or no more treatment, or lack of mental health.

(Milwaukee drug court personnel)

As the participant above mentions, another unmet need for PWUD who are involved in the criminal justice system is for mental health services. While drug court is not intended to be used for people with serious mental illness, many PWUD who participate in the program suffer from depression, anxiety, or post-traumatic symptoms.

We’re really struggling with mental health… It’s hard to get in to see a therapist. I mean even for somebody that has private insurance, it’s really hard to call a doctor and say, “Hey, I need to get in.” They’ll tell you, “You got to wait six months.” Well, somebody that’s dealing with extreme depression can’t wait six months; that’s a problem. So, we’re really seeing that as being an issue… Mental health has a large part to do with why people use substances. So, you’re depressed so you’re going to use a drug. So, I think we’re trying to figure out the best way to do that and to find programing for individuals right off the bat to address both mental health and their substance use

(Milwaukee drug treatment court personnel).

The need for mental health services integrated with drug treatment is also an issue in police diversion programs as most drug treatment programs do not offer mental health services. And, as the key informant above points out, community mental health services are scarce and difficult to access.

MOUD Stigma

Another barrier to diversion programs for people with opioid use disorders is the stigma that many police officers, judges and other court personnel have toward MOUD. Courts traditionally have not accepted MOUD, feeling that it is “just another drug” and that a person on methadone or buprenorphine is not really free from drugs. Some suspected that MOUD providers were more interested in making money than treating people, as the police officer below describes.

You know you hear different things about the methadone. That’s just a different kind of drug that they're taking and they're doing it to make money

(Milwaukee police officer).

A methadone provider described a decrease in MOUD stigma as a result of education to drug courts.

The changes that I’m seeing in the past nine months… I think the stigma is erasing. And used to, we couldn’t have clients in drug court, that was something. We would have clients enrolled, doing well, perfect drug screens, and drug court would tell them, “Either you get off the Suboxone or go to jail.”

(KY suburban drug treatment provider)

While judges cannot directly prohibit the use of MOUD, MOUD providers reported receiving few referrals from drug courts. Methadone clinics are particularly unlikely to receive referrals from drug courts.

Drug courts typically in eastern Kentucky are not accepting of MAT [medication assisted therapy, another term for MOUD] …. That’s one of the challenges we identified earlier in the year that we’d like to work with on our outreach program. So, we want our outreach program to go out and visit these probation/parole offices and these drug courts and let them know we’re not the old-school MAT. We’re bringing something different to the table. We’ve made a giant push and actually had some debates with some providers that we’ve had as we go forward in our management, and our corporate office backed this, we’re medically assisted treatment. We’re not treatment-assisted medicine. So, we’re pushing the treatment. We’re pushing it hard. You can’t come in here and just get your dose and go home. That’s not good enough. We want progress, we want goals, we want legitimate clinical stuff happening. And if we can let the probation parole officers and drug courts know that’s actually what’s going on, not the stuff that gets the bad reputation and the bad name, we’re not that, then we feel like we can probably eventually work out some agreements with them that allows us to serve those people.

(KY rural drug treatment provider)

Like the participant above, many MOUD providers reported actively reaching out to drug courts to educate them about MOUD, often by emphasizing the other services such as counseling and urine screening tests that they provide. This is in spite of the fact that recent research shows that MOUD is a highly effective treatment for OUD, and that MOUD alone is just as effective as MOUD combined with other drug treatment such as cognitive behavioral therapy (Wakeman et al., 2020).

Other MOUD providers reported getting many referrals from drug courts. While this may have been a difference in the courts’ attitudes in different jurisdictions, it may also have been a difference in attitude toward organizations that provide MOUD as part of their other treatment options such as adding buprenorphine to intensive counseling services as described by the participant above. Although MOUD is being accepted in drug courts to a much larger extent than seen just a decade ago, many drug court personnel want defendants to taper-off MOUD by the time they graduate from drug court.

We use medicated-assisted treatment if the participant wants to participate in that. And we find that it’s a vital tool for a lot of people. Some people don’t like it, and that’s fine. And ideally, we like for people to be off of it by the time they graduate from Drug Court. But for some people, it’s not a possibility. So, we leave that up to the doctor that’s prescribing it.

(KY urban drug court personnel)

Research suggests that methadone and suboxone should be considered long-term medications with 12-months being considered the minimum. The typical length of participation in drug courts for those who graduate is between 12 and 18 months. Thus, the desire that participants taper off the medication before graduation may be premature and risk relapse.

Discussion

Police diversion programs and drug courts intercept PWUD at different points along the Sequential Intercept Model and show great promise in linking PWUD to drug treatment rather than incarcerating them. However, results from this study indicate several barriers that may work to limit the success of police diversion programs and drug courts in linking criminal justice involved PWUD to treatment as an alternative to incarceration. While few police interviewed participated in formal police diversion programs, they reported about twice as many barriers to diverting participants to drug treatment or harm reduction services pre-arrest. Part of these differences are due to the more limited amount of time and resources that police have to divert PWUD while on active duty. While there are advantages to diverting PWUD pre-arrest, the greater number of barriers to implementing police diversion programs have not been recognized in the Sequential Intercept Mode.

Many of the barriers to successful implementation of police diversion programs and drug treatment courts, regardless of their structure, are due to the limited number of community treatment options available and insurance barriers to paying for treatment. In addition, as reported by our participants, a sizeable number of PWUD have complex psychosocial issues such as a need for transportation, housing or mental health treatment, that are difficult to address. In these circumstances, diversion programs and drug courts send participants to drug treatment programs that have space available and for which the participants’ insurance or state grants will pay, not to the program that best fits participants’ needs or to those considered to be the highest quality. Finally, MOUD stigma was reported or expressed, and MOUD is underused, as found in previous research. (Friedman et al., 2012; Krawczyk et al., 2017; Matusow et al., 2013; Matusow et al., 2021; Morris, 2020; Taxman & Bouffard, 2002)

Personnel working in drug courts and police in diversion programs reported they had a hard time finding drug treatment services that were accepting new patients. This is consistent with previous research showing that most drug courts use a “brokerage” model in which participants are sent to already existing drug treatment services in the community (Taxman & Bouffard, 2002). The difficulty in finding drug treatment providers is felt keenly by police trying to refer PWUD to treatment as they often must transfer the participant at once or risk losing the window of opportunity in which PWUD are highly motivated to enter treatment. Further, they may worry that a person who uses opioids may accidently overdose, a reasonable concern as overdose deaths have continued to rise, in part, due to increases in fentanyl mixed with heroin, other opioids or other drugs (Centers for Disease Control and Prevention, 2020). Drug court personnel and police officers in diversion programs described a particular lack of availability of residential treatment and detoxification. Residential may not be appropriate for PWUD who are opioid dependent, who comprise a large proportion of current criminally involved PWUD, as research has shown that residential treatment to be less effective than MOUD among people with OUD (Wakeman et al., 2020). Detoxification, in particular, is contraindicated for those with OUD as detoxification does not provide counseling or teach skills necessary for PWUD to remain drug free (Acevedo et al., 2018). More education is needed for drug court personnel and police officers to increase knowledge of evidence-based drug treatment programs and to reduce MOUD-related stigma in criminal-justice settings (Matusow et al., 2021).

Formalizing organizational linkages between drug courts, police diversion programs and community-based drug treatment programs may help to reduce the barriers to referral mentioned by key informants in this paper. Interventions to improve interorganizational linkages between community corrections and drug treatment have shown some promise in improving referrals from drug courts (Friedman et al., 2015; Welsh et al., 2015), juvenile justice courts dealing with adolescents who use drugs (Becan et al., 2018), and police (Yatsco et al., 2020). Some of the cities studied in this project had a limited number of spaces in drug treatment facilities to which PWUD could be referred. However, most did not have formal linkages and courts and police reported struggling to find placements for PWUD in a timely manner. In the absence of formal agreements with drug treatment facilities or crisis centers to accept referrals from police, many police end up arresting PWUDs or taking them to the emergency room. Having specialists in drug treatment as part of the internal team, as is often the case in drug courts, might also help police diversion programs in referring PWUD to treatment centers. The police diversion program in Kentucky had a full-time social worker who could help in referrals.

The problem of paying for drug treatment is another barrier in the implementation of drug court and police diversion programs. The programs in our study required participants to pay for their drug treatment through their state or private insurance, with a minority of beds paid for directly by the Department of Justice. This is typical of drug courts in the US; slightly over 60% of them indicate that they have dedicated drug treatment services, but even these rely more heavily on community treatment programs (Taxman & Bouffard, 2002). Public and private insurance do not cover all treatment modalities, and drug court personnel reported having to find grants to pay for treatment for some participants. Expansion of direct payment for drug treatment by police departments or drug courts may help to expand the kinds of treatment available to participants. Department of Justice funding could also be used to pay for mental health services, transportation, and housing which many participants in drug court and police diversion programs need. This may also help address the tendency of police diversion programs and drug courts to refer homeless participants to residential treatment in order to address their housing needs. Providing participants with opioid use disorder with MOUD and housing subsidies is likely less expensive, and more appropriate, than residential treatment or incarceration. Drug treatment programs have been shown to be cost-effective and off-set costs associated with increased hospitalization, loss of productivity, and the costs of incarcerating PWUD (Cartwright, 1998; French et al., 2008; NIDA, 2020). Although more research is needed (Committee on the Examination of the Integration of Opioid and Infectious Disease Prevention Efforts in Select Programs, 2020), some research has suggested that permanent supportive housing is cost-effective (Chalmers McLaughlin, 2010).

While this study offers some insight into barriers of police diversion programs and drug courts, it also has some limitations. As in most qualitative studies, the sample size was small and cannot be generalized to other communities’ drug courts or police diversion programs. Further, research sites were selected based on differences in state PDMPs and other policies to decrease opioid misuse and diversion, not on the basis of their drug courts or police diversion programs. Only one site studied had a formal police diversion program, although all police interviewed came into frequent contact with PWUD. Future research focused on comparing and evaluating different police diversion programs that are being implemented is urgently needed as such programs are increasingly popular and being adopted in many police departments across the U.S.

Drug courts and police diversion programs offer a welcome shift from prior emphases on criminalization of drug use. Criminalization contributes to the high rates of HIV and HCV among PWUD and fatal and non-fatal overdoses (Waddell et al., 2020). Further, incarceration causes the separation of parents from children, increases poverty among low-income families and has long term negative consequences for families and communities (Choi & Ryan, 2007; Marin-Navarrete et al., 2018; Perez-Lopez et al., 2017; Young et al., 2007). However, for such programs to be effective, more resources must be dedicated to their success. In particular, educating courts and making MOUD the first course of treatment for people with opioid use disorder may help to address some of the challenges facing drug courts such as a limited number of treatment beds while offering the best treatment option available.

Public policy statement:

Drug courts and police diversion programs are hampered by a lack of resources including a limited number of treatment facilities available, difficulties in funding treatment, a need for psychosocial services such as mental health treatment and housing, and continued underuse and stigmatization of medications to treat opioid use disorder.