Overdose Prevention Policies Help People Involved with Criminal Justice System

January 10, 2025 | JoAnne McClure

After years of consistently increasing overdose fatality rates, 2023 ushered in the first notable decline in the United States since 2018. Interventions that reduce overdose-related illness and death—especially within disproportionately impacted populations (e.g., people who use drugs, those involved with the criminal justice system)—remain critical. People with a substance use disorder (SUD) are at greater risk of involvement in the criminal justice system and tend to experience higher incarceration rates. Moreover, overdose is the third leading cause of death for people in U.S. jails and the risk of overdose upon release from incarceration is heightened.

To continue reducing fatal overdose rates and support those justice-involved people, state and territorial legislatures are considering policies supporting pretrial diversion programs, expanding problem solving courts (e.g., drug courts), and linking incarcerated people to care so their recovery continues.

Many Points of Opportunity

There are multiple intervention points in the criminal justice system to support those with substance abuse-related issues. SAMHSA’s sequential intercept model (SIM) illustrates these various contacts and highlights where different interventions can help prevent overdose and provide linkages to care.

SIM outlines six interception points ranging from non-law enforcement crisis support lines to law enforcement engagement, pre-trial, to jail and trial, to incarceration, and community corrections like parole. Designed to guide community-based responses for justice-involved individuals with SUD, SIM incorporates best practices that promote culturally relevant and equitable strategies for overdose prevention.

Pretrial Diversion (Intercept 2)

Pretrial services gather information about a person after arrest, allowing the court to make informed decisions about releasing someone before trial or setting appropriate release conditions. Across the country, communities have introduced pre-arrest and deflection programs to connect people who use drugs with treatment and services rather than incarceration.

In 2021, Illinois passed the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act that includes extensive reforms across many areas of the state’s criminal justice system, including pre-arrest diversion, policing, pretrial, sentencing and corrections. Notably the act abolished cash bail, which some criticize because it keeps low-income people in detention while awaiting a trial since they cannot afford relatively low bail amounts, exacerbating the financial harm. In lieu of cash bail, the new law instructs the Illinois Supreme Court to create a statewide Pretrial Practices Data Oversight Board to collect and analyze pretrial practices. With bail reform, those with substance use issues are able and typically required to begin substance use treatment timely allowing for people to be linked to care that otherwise would not be available in jails.

Building on these efforts, Illinois enacted two bills in recent legislative sessions related to pre-trial services. The Community Partnership for Deflection and Substance Use Disorder Treatment Act (HB 3819), passed in 2023, broadens the scope of the existing partnership programs, allowing local government agencies, law enforcement, and first responders to establish a deflection program in partnership with one or more licensed providers of SUD treatment services and one or more community members or organizations. The law also requires that a local deflection program includes case management and restorative justice aspects. In 2024, Illinois amended its Pretrial Services Act (HB 4621), which codifies the Office of Statewide Pretrial Services, standardizes their services, and provides pretrial services to circuit courts and counties without such agencies.

Problem-solving Courts (Intercept 3)

In the late 1980s, problem-solving courts, also known as specialty courts or collaborative justice courts, began to address drug related crimes. They have since expanded support to include veterans and those experiencing problems with mental health and domestic violence. An alternative approach to the justice system, problem-solving courts typically include an interdisciplinary team led by a judge (or parole authority) and work collaboratively using case management to expedite the process and reduce caseload. This method helps address SUDs and other underlying issues without jeopardizing public safety and due process.

In 2024, Maine enacted LD 1596, expanding their use of drug treatment courts to ensure that substance use disorder treatment programs through drug treatment courts are available and accessible statewide. Additionally, California enacted SB 910, which requires courts with treatment court programs to incorporate the same best practices and guidelines to alleviate the variations in operations and eligibility criteria previously set by each county.

Incarceration and Release (Intercepts 4-5)

Not only are there high rates of fatal overdoses in carceral settings, drug overdose is the leading cause of death for people who are released from incarceration, especially in the days and weeks immediately following their release. As a result, some states are providing medications for addiction treatment (MAT) in jails and prisons prior to release, though continuation of treatment after release can pose a challenge. 

There are a few ways for states to ensure treatment is available to those in carceral settings prior to and after release. These include legislation establishing MAT programs, requiring private insurance coverage of addiction treatments, and extending Medicaid coverage to people about to leave incarceration.

In 2024, Colorado enacted HB 24-1045, requiring their Department of Health Care Policy and Financing to seek federal authorization to provide MAT, case management services, and a 30-day supply of prescription medication to Medicaid recipient members upon release from jail or a juvenile institutional facility. Oregon’s HB 4002 establishes the Oregon Jail-Based Medications for Opioid Use Disorder Grant Program, which provides treatment and transition planning services to people in custody in local or tribal correctional facilities.

Both Colorado and Oregon’s new laws also prohibit private insurers from requiring prior authorization for FDA-approved addiction medications, which can help with more immediate access to treatment. 

To support transition-related strategies, the Centers for Medicare and Medicaid Services released guidance in 2023 encouraging states to apply for a new Section 1115 demonstration opportunity outlining how jurisdictions can provide Medicaid coverage just prior to release for eligible people who are incarcerated. Access to reentry services can be crucial as they facilitate smoother transitions in care—especially for those with behavioral health needs—ensure continuity of health coverage, minimize disruptions in treatment, improve health outcomes, and help reduce recidivism rates. As of August 19, 2024, Centers for Medicare and Medicaid Services has approved 11 states’ Section 1115 reentry waiver requests, while an additional 13 states’ requests remain pending.

In 2024, Utah enacted HB 501 that requires the health department to apply for a Medicaid waiver allowing eligible adults and youth who are incarcerated to apply for and receive Medicaid coverage up to 90 days prior to release to help setting them up for care continuity. 

ASTHO will continue to monitor this issue and provide relevant updates.