Note: This post is written in response to a guest opinion in The Intelligencer that I just happened to come across. You can read the original comments here: Further, the opinions stated in this piece do not necessarily reflect the opinions of everyone at the Colorado Mental Wellness Network, nor are they advocating for or against any particular policy. This post is simply offering alternative ways of thinking about substance use.

Substance use disorder – a medical condition or bad behavior?

The Massachusetts Supreme Judicial Court is apparently deciding a unique case – whether the incarceration of a woman with opioid use disorder following her violation of probation terms by taking fentanyl is cruel and unusual punishment. In her lawyer’s words, the woman did not have a choice. Now, I understand why this idea is controversial in itself. Consuming opioids is illegal and no one compelled her to consume them besides her own brain. However, the commentary linked above goes beyond the controversy and states unequivocally that drug abuse is bad behavior, not a mental health problem. It criticizes a public health approach and favors a criminal justice approach.

The author of these comments acknowledges that chronic substance use changes the brain and body, creating physical and psychological dependence, emotional health problems, and other issues, but argues that treating this as a health condition instead of a criminal behavior “shield[s] addicts from the consequences of negative behavior.” He cites that jail is a beginning of recovery for many. Unfortunately, he ignores the individuals for whom jail/prison exacerbates their condition, introduces new problematic substances, and generally creates the type of stressful environment that promotes relapse and illness progression. He ignores people that stay sober in jail/prison and relapse or overdose within hours of their release.

He concludes by discussing the fact that removing personal responsibility (read: criminal justice involvement) from people with substance use disorder will remove opportunities for recovery and make the opioid crisis worse. That, somehow, treating a health condition as a health condition means people won’t recover from it.

Two scenarios of substance use intervention

To address these beliefs, I’m going to offer two scenarios. Which one sounds more conducive to recovery?


In both scenarios, our person is someone with opioid use disorder. They were initially prescribed opioid medication following a surgery, like many people who end up with opioid use disorder. When the medication ran out, they experienced heightened pain and withdrawal symptoms, which prompted them to get a refill. After they were eventually cut off from the drug, they instead switched to buying them on the street. Their tolerance increased, because that’s biology, and they stop being able to afford pills. They switch to heroin because it basically does the same thing, but it’s a lot cheaper. Remember that opioid withdrawal is like the worst flu you will every experience. You sweat, shake, have restless legs, nightmares, barely sleep, and everything hurts. People are obviously afraid of experiencing that.

Scenario 1: Criminal justice involvement

This person is caught purchasing heroin in a sting. They are put into jail and forced to withdraw without assistance. They become unbearably ill and their entire body screams for the one thing it knows will make them feel better. They aren’t interested in getting high, they’re only interested in making the suffering stop. Jail staff decide to isolate them because a shivering, shaking, sweating, diarrheal mess of a person is someone the others don’t want to be around. They don’t have anything to do or anyone to talk to while they suffer through this.

After their withdrawal and release, they are incredibly depressed. Things that naturally give our brain bumps of neurotransmitters, like exercise, talking to someone we love, meeting with a friend, eating good food, watching a TV show, etc. don’t do anything anymore. Their brain has stopped making its own neurotransmitters because it depends on opiate consumption. Of course, the fact that they have mounting legal debt, are being monitored constantly, and have lost their job/family/classes/whatever else they were doing makes them more depressed. They also start to have panic attacks over all of these things.

They haven’t had to cope with emotions for a really long time, and they are all super overwhelming. They can’t afford therapy or other psychiatric care, and their probation officer has only one interpretation of what recovery means. They have to go to 90 NA meetings in 90 days, which is challenging and fairly unhelpful for this particular person, and stay sober. No Naltrexone, which they can’t afford anyway. Their PO doesn’t believe in opioid replacement therapy, which they also can’t afford anyway, so no suboxone. It’s just them, their emotions, and their cravings. Eventually it becomes too much to deal with and they relapse.

They get caught. They go back to jail. Their legal debt is getting even higher. They are facing even more time in jail. “Why can’t I just stay sober?” they ask themselves. “Why am I always screwing everything up?” They withdraw again, fall into even more severe episodes of depression and anxiety. When they get out, they have nothing to do. They’ve lost their kids, their jobs, and any semblance of a normal life. Everything that drove them to use again last time is back, but worse. Would you not reach for the one thing that makes everything bearable?

Scenario 2: Health intervention

This person is caught purchasing heroin. Imagine this is Portugal, for example. The person selling them the heroin is punished, because (s)he’s the one breaking the law here, not the consumer. The consumer is required to go meet with a social worker to talk about their problem. They see the social worker and take some assessments to put into perspective how their life is being negatively impacted by substance use. They aren’t ready to quit yet, but they stay in touch with the social workers through semi-regular phone calls. At this point, all they say is “no thanks, not interested,” but they aren’t falling off the surface of the earth. Someone knows that they are there and is reaching out until they want help.

Over time, they decide that they no longer want to deal with the financial cost, physical toll, and social consequences of heroin dependence. Fortunately, they know a social worker who can connect them with treatment services. Treatment is pretty affordable and accessible here because money that would go into prosecuting substance users instead goes into treating them. They go through withdrawal with the support and monitoring of medical staff that know how to ease the symptoms. It isn’t comfortable, but it isn’t the worst sickness ever experienced. They see counselors to deal with their unresolved emotional pain, they go to classes to learn how to better manage their finances and lead a healthy lifestyle, and they participate in job training to make them more employable.

During treatment, they of course feel depressed and anxious, but they have therapy and medications that help them cope. They are coached through these challenging feelings, not isolated in their apartment with the only coaching being “don’t do drugs.” They might slip up and have a lapse, but they aren’t thrown into jail for it. They’re just helped.

When they’re done with the treatment program, they re-enter society with no scarlet letter. Nobody has to know that they were heroin dependent, it’s not like it shows up on background checks. They are able to find employment and resume parenting. They have developed a social support network and have clinicians that help them stay healthy. Most importantly, they aren’t stigmatized and labeled as some sort of criminal deviant. They’re just a person who had a health problem. If they relapse, they know where to go, who to talk to, and that withdrawal really isn’t so bad in a detox center.

Legal consequences are not universally effective deterrents

They can, in some cases, make the problem worse. People who end up with felony possession convictions are often never able to afford treatment because they can’t find a job, can’t get college financial aid, can’t get into subsidized housing, and can’t develop a social support network. They can’t afford to leave the community that they grew ill in. They fall into a cycle of use, punishment, and relapse. They can overdose when they are released, or die of other causes while living on the street.

Treating substance use disorders as a health condition mitigates a lot of these problems. More opportunities are open to people that recover, improving their chances of staying in recovery. Jails and prisons will need less federal funding for “treating” adults in custody, which can go to treatment programs that actually work. They are not permanently restricted by their previous convictions and are able to find meaningful community roles after recovery rather than be stuck in their old life patterns trying desperately to avoid what they are instinctively driven to do.

Further, legal consequences are not the primary motivator to recover for a lot of people. People are motivated by their poverty, losing ability to parent, hurting their loved ones, experiencing health problems, and simply running out of the support and resources they need to sustain their dependence. I have substance use disorder and legal consequences did not even cross my mind when I decided to recover. I was tired of being sick, tired of pushing everyone away, tired of failing out of school, and tired of the constant race to acquire substances before withdrawal started. And I’m really not unique in that.

Finally, if legal consequences are the only thing that will work for someone, they could very well experience those eventually anyway. Regardless of the legal status of substance use, stealing to support a habit will continue to be illegal. So will driving under the influence, writing bad checks, driving without a license, and not paying traffic tickets. So will selling and manufacturing substances, which remains illegal even in countries like Portugal, which has entirely decriminalized personal use. There are a lot of things about a substance-dependent lifestyle that sometimes involves breaking rules, so it’s not like decriminalizing or minimizing legal consequences of personal use will eliminate all legal consequences. This is really what drug court should be for, in my opinion. Much like mental health court, it isn’t about the mental health condition or substance use disorder being a crime. It’s about bringing intervention to people who commit criminal acts due, in part, to their condition.

What a public health approach is

A public health approach isn’t just throwing caution to the wind and saying “YOU GET DRUGS, YOU GET DRUGS, EVERYBODY GETS DRUGS!” It’s looking at what the real impact of our current approach is and deciding if that it truly in the best interest of the public. Is throwing substance users in jail and slamming them with court fines, probation, and scarlet letters actually helping to improve the health of the nation? It doesn’t seem to be. The opioid crisis keeps getting worse.

So maybe we should get to roots. What community factors are contributing to substance use rates rising, and how can we help mitigate those factors? What are the barriers to treatment and recovery and how can we help bring them down? Why do people relapse after release and how can we prevent that from happening? How are prescription drug policies influencing substance dependence and how can we change those policies to reduce incidence? How can we prevent people from dying of overdose or lifestyle factors before they can recover? How do we get more people into recovery programs?

Asking these questions is critical right now. We aren’t getting anywhere with a criminal justice approach. Maybe it’s time to change our tune.

Don’t mistake a public health approach for “not doing anything about it.”

Kate Fitch

I've been with the Network since 2015, when I started as a volunteer. I've been on staff as the Communications Specialist since January 2017. I'm currently in college and pursuing a dual BA in Public Health and Public Administration. I'm most passionate about making sure that people with mental health conditions are fairly represented in the media, at policy tables, and in treatment system planning. In my spare time, I like to crochet, knit, and be the best cat mom ever.

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