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Executive Summary

Criminal justice jurisdictions across the United States are increasingly implementing diversion programs for individuals charged with drug offenses. These programs differ in specifics, but they all share a similar goal: to send those charged with drug offenses to treatment instead of jail or prison.

The growing popularity of diversion programs has increased demand for drug treatment services. To date, much of the discussion surrounding these programs has focused on the necessary work of demonstrating their value to criminal justice stakeholders. Often absent from such discussions is an assessment of whether the surrounding community has the capacity to handle the increased demand for services that diversion programs create.

The purpose of this study is to gain a better understanding of the justice system’s ability to connect people with drug treatment services by focusing on recent efforts in Harris County, Texas, which has historically had the highest rates of drug arrests and prosecutions in the state. In 2016, the county created the Reintegration Impact Court, which diverts most nonviolent defendants facing drug charges from incarceration to secure residential facilities or community-based treatment in an effort to reduce the racial disparities in and the rate of incarceration for drug offenses. These features make the county ideal for a case study of the effectiveness of the diversion process.

Using a survey of community drug treatment providers, qualitative interviews with community providers and state and county officials, and a review of relevant public documents, we provide a comprehensive understanding of the resources made available to those charged with drug offenses through the court diversion process, the challenges in offering these resources, and the interactions between the criminal justice and drug treatment systems.

Findings: Gaps in Care

Through this project, we identified several gaps in community care in Harris County. These gaps exist for all indigent, uninsured county residents with substance use disorders (SUDs), but are particularly pronounced for justice system-involved individuals.

Residential Treatment

Survey data and follow-up interviews with treatment providers and county officials highlight a sizable gap between the need and availability of residential treatment. Only 29% of survey respondents said their facility offers residential treatment. During interviews, several respondents commented on the frequency with which there are no available beds for indigent and uninsured justice system-involved populations.

Research suggests that treatment outcomes are at least partially dependent on treatment setting. While people with less severe SUDs can benefit from outpatient settings, matching patients who have more severe SUDs with more intensive care is critical to improving treatment outcomes. The inability to match an individual with the appropriate setting is likely to limit the effectiveness of the treatment component of diversion efforts.

Medication-Assisted Treatment (MAT)

While roughly 57% of community providers surveyed offer MAT directly or coordinate with MAT providers, these services are not frequently utilized by the justice system-involved population.

Interview respondents identified stigma and funding as the two biggest barriers to MAT access, both for justice system-involved clients and for opioid users generally. Perceptions of MAT continue to evolve, and while respondents noted greater acceptance for MAT today than in the past, skepticism toward it remains an obstacle to securing needed funding and connecting justice system-involved individuals with these services.

Funding remains a significant barrier to receiving care, despite recent federal and state opioid response efforts that have increased MAT availability. A problem frequently cited by interview respondents, for example, is that state reimbursement rates for MAT providers are too low to be economically viable, often not covering the full cost of service provision. This limits the number of providers willing to accept state-funded clients, and among providers that do accept these clients, it limits the number they are able to serve.

Other limitations in MAT and MAT-related services include the lack of detoxification services; the underutilization of MAT, especially extended-release naltrexone, to treat alcohol use; the absence of the therapeutic component of MAT in most state-funded treatment settings; continued stigma against MAT among some treatment providers; and a lack of physicians in the area willing to prescribe buprenorphine to patients.

Treatment for Individuals with Co-occurring Mental Health and Substance Use Disorders

Co-occurring mental health and substance use disorders are common among justice system-involved populations, with an estimated 50% to 85% of adults who frequently cycle through local jails and emergency departments having dual diagnoses. Findings from this project suggest Harris County lacks the resources to respond to the needs of these clients. Sixty-nine percent of providers surveyed reported treating co-occurring disorders, but of this 69%, only 26% (a total of 10 facilities surveyed) provide medications for psychiatric disorders. This suggests a gap between the number of providers who say they treat cooccurring disorders and those that have the complete resources to do so.

Consistent with survey findings, follow-up interviews highlight the lack of integrated services for mental health and substance use. Several respondents noted that most drug treatment professionals are not trained to address mental illness, and that many mental health providers are unwilling to address addiction. Other challenges to integrated care include separation of state funds for mental health and substance use services and low reimbursement rates for providers in both service areas. Treatment for justice system-involved individuals is often complicated by the lack of continuity of care between correctional and community settings.

Ensuring Standards of Care

The Harris County courts and probation department are largely unable to monitor outcomes for clients that receive court-mandated services from community providers. The county has memoranda of understanding with several providers, but because the majority of these agreements are not paid contracts, most providers are not required to deliver outcome data to the county.

Several interview respondents felt that justice system-involved clients need more guidance in selecting appropriate treatment. The data collection process for this project also suggested difficulty navigating the field of options to find available, affordable, and appropriate drug treatment.

It is well-documented that the drug treatment field as a whole is not held accountable for providing evidence-based care. By requiring participation in drug treatment as a condition for diversion from incarceration, the justice system assumes some responsibility for the quality of these alternative services, making the lack of accountability especially problematic.

Limitations of the Justice System’s Role in Drug Treatment

Harris County has made a concerted effort to improve its handling of individuals charged with drug offenses. Despite improvements, challenges remain in the county’s ability to effectively connect people charged with drug offenses to drug treatment and other services. Insufficient community resources are a significant factor in explaining these limitations, a problem that affects treatment availability for all indigent and uninsured populations, and one that the county is largely dependent on the state to help solve.

More fundamentally, while the county should be commended for its efforts to reduce incarceration of individuals charged with drug offenses, findings from this project are consistent with prior research that suggests the justice system generally is not designed to meet the needs of a large segment of the diverted population, many of whom do not present a direct threat to public safety but do have many unaddressed social, psychological, and physical needs.

Recommendations

We recommend that drug use among individuals arrested for nonviolent drug offenses be treated primarily as a public health issue. Such an approach would significantly reduce the role of the criminal justice system in addressing the needs of people who use drugs, as reliance on this system ultimately conflicts with public health goals and results in resource expenditures that would be better spent on building an affordable and comprehensive treatment services model within the community.

This shift, already taking place in some U.S. cities, would involve reducing legal oversight of people arrested for and charged with drug offenses. It would also require greater emphasis on providing access to a full continuum of substance use care that includes harm reduction measures, peer support services, sober living options, and low-barrier MAT programs, as well as services in related areas of need, such as physical and mental health care, housing, and employment. While reducing drug use would remain a policy goal, individuals would not face legal sanctions for continuing drug use so long as they were not risking harm to others as a result of that use.

The criminal justice reforms that would most effectively begin the shift toward treating drug use as a public health issue would be for: 1) the state of Texas to reduce the penalty for possession of less than one gram of a controlled substance from a state jail felony to a misdemeanor, and 2) Harris County (and other localities) to divert those found in possession of drugs from the legal system prior to arrest and court involvement.

While we believe strongly that these reforms are needed to address the inherent shortcomings of using the justice system to respond to drug use, we also recognize that current political realities at both the state and local levels severely diminish the prospects for adoption.

Given such realities, the following recommendations are more moderate measures that state and local officials can take to improve their handling of individuals charged with drug offenses. Several of these recommendations are also geared toward changes in the broader drug treatment infrastructure that are needed to improve service provision for justice system-involved individuals and that would also lead to better outcomes for the general population

Criminal Justice Policy Recommendations for the State of Texas

1. Incentivize probation departments to reduce the population under supervision.
    
2. Ensure access to all three types of medication-assisted treatment for justice system-involved individuals.
    
3. Eliminate legally mandated drug education classes and driver’s license suspensions as penalties for drug offenses.
    
4. Create a process for automatic record expungement for diverted drug offenses.

Criminal Justice Policy Recommendations for Harris County

     5. Urge state officials to make needed policy changes.

     6. Reduce the focus on drug use in diversion programs.

     7. Continue reducing barriers to compliance with probation and diversion requirements.

Drug Treatment Policy Recommendations for the State of Texas

      8. Increase the state budget for drug treatment.

      9. Increase funding for integrated mental health and substance use treatment.

     10. Increase funding for medication-assisted treatment for alcohol misuse.

     11. Increase funding for detox services.

Drug Treatment Policy Recommendations for Harris County

     12. Advocate for increased community drug treatment resources.

     13. Coordinate local health systems to improve access to harm reduction services.

     14. Increase public outreach and data collection related to drug use trends and services.

This material may be quoted or reproduced without prior permission, provided appropriate credit is given to the author and Rice University’s Baker Institute for Public Policy. The views expressed herein are those of the individual author(s), and do not necessarily represent the views of Rice University’s Baker Institute for Public Policy.