Role of Stigma for People with Opioid Use Disorder in the Criminal Justice System

Last week, I had the pleasure to speak with an auditorium full of judges and lawyers about the opioid use disorder crisis and its implications at the 9th Circuit Judicial Conference. I joined former US Attorney Dwight Holton and journalist Sam Quinones, author of Dreamland, for a panel to remind leaders in criminal justice about the implicit bias around opioid use disorder.

Below are highlights from my remarks. The insights below were made possible with the help of terrific colleagues and experts. I’d like to extend a special thank you to Professors Colleen Barry, Alene Kennedy-Hendricks, and Beth McGinty from the Stigma Lab at the Johns Hopkins School of Public Health for mentoring me about the primary literature on stigma. Additionally, the I’d like to thank Clay Stamp, the Executive Director of the Maryland Opioid Operational Command Center, for his advocacy work and educating me on state-level systems considerations of tackling addiction. I’d also like to thank my team at Concerted Care Group for the amazing work they do every day serving over 1,300 with opioid use disorder with high quality care and no stigma. And I’m very grateful for US District Judge Rosana Malouf Peterson and her team for organizing the event and their willingness to learn the science of addiction.

What is stigma?

Research shows that the biases and behaviors of the media, laypeople, and even medical experts are impacted by stigma. My uncle died in part because of an overdose from cocaine and opiates, and in part because of stigma. I implored every judge and every lawyer in the room to look introspectively at each of their individual biases, acknowledge those biases, and hopefully evolve those biases based on scientific fact.

Researchers Link and Phelan define stigma as the link between a label (e.g., addict) and a stereotype (i.e. beliefs held about a group of people, such as those with a substance use disorder). When people link a certain label to a person, and they believe the stereotype, they can react negatively to the person including writing news articles in a negative way, attributing blame to an acquaintance for drug use, or treating their patients differently.

While little research exists on stigma around opioid use disorder and judicial decisions, there are data from the media, lay people, and medical providers that can shed light on stigma in criminal justice.

Stigma is prominent in the media

A content analysis of 100 popular press articles from 2001 and 2011 in which half describe heroin users and half describe prescription opioid users revealed a consistent contrast between criminalized urban black and Latino heroin injectors with sympathetic portrayals of suburban white prescription opioid users.

One of the strongest findings was that “drug use in black and Latino urban communities is not considered newsworthy.” The researchers also found that the media’s omission of personal histories of urban blacks and Latinos who use drugs or struggle with addiction had a dehumanizing effect.

In stories about suburban or rural white drug use, “the etiology of the person’s drug use was often explored, while in accounts of drug use among blacks and Latinos such explanations about why someone started using drugs were missing.”

The researchers found that the media portray black and Latino users differently from white users by allowing white users to have their addiction explained in ways that often left them blameless or at least sympathetic to the reader.

Articles on urban opioid use mostly mentioned arrest or criminal justice involvement, with only one article mentioning methadone and one mentioning treatment. In contrast, articles about suburban and rural prescription drug use mentioned prevention, education, treatment, prescription heroin, drug takeback programs, and cracking down on doctors’ prescribing.

Stigma among lay people

Part of the business model of media outlets is to report stories in a sensationalized way to gain readership, so stigma could be exaggerated for dramatic effect. However, stigma also manifests itself directly in laypeople. A set of Hopkins researchers surveyed over 1,000 laypeople in a nationally representative sample directly about stigma.

They found that a large majority (78%) felt that individuals with prescription OUD are to blame for the problem. Higher stigma ratings were associated with greater support for arresting people with opioid use disorder. Also, higher stigma ratings were associated with lower support for public health–oriented policies like expanding Medicaid insurance benefits to cover prescription OUD treatment.

A separate randomized experiment surveying the lay public about their perception of mothers with opioid use disorder, researchers found that there was a more favorable bias toward mothers with higher SES.

Stigma among medical providers

Stigma doesn’t just affect the media and lay people, it also affects medical professionals. Data from Substance Abuse and Mental Health Services Administration (SAMHSA) suggest that stigma impacts the quality of healthcare services delivered by medical professionals. In my personal experience as a physician, I continue to see fellow doctors still blaming mothers that are taking buprenorphine, when they should instead be celebrating their recovery.

Stigma among judges

Research has shown that stigma negatively impacts the media, lay people, and even providers. While more research is needed in the space, it appears that bias may also play a role in the judicial system. The Massachusetts Supreme Judicial Court ruled on July 16 that it was not cruel and unusual punishment to put a person who is on probation in jail after one positive test for drugs. According to CNN, the defendants lawyer argued that “the requirement that the defendant remain drug-free to avoid jail was unconstitutional because, in part, her relapse was a symptom of her substance use disorder.” The attorney observed that “there was a mistaken idea by the judges about the nature of substance use disorder and what actually helped someone get into recovery.”

What can judges do about their biases?

For judges and lawyers to avoid bias when interacting with people with opioid use disorder, it is important to learn about the science underlying the disease. OUD is a chronic brain disease with bio-psycho-social etiologies. Bio: Addiction is a chronic but treatable medical condition involving changes to circuits involved in reward, stress, and self-control. We don’t stigmatize people with cancer, in fact we celebrate fighting cancer with ribbons during football games. Why are we stigmatizing people with OUD receiving treatment for their chronic disease? Psych: There is significant co-occurrence of mental illness with substance use disorder. Social: upstream health determinants like poverty and food insecurity play a major role in addiction.

Furthermore, after going to prison, like after release from abstinence based “detox”, the risk of overdose is actually higher than before incarceration. In a study of Washington State inmates, the risk of death of former inmates was 3.5 times higher than general WA population, and 12.7 times higher in the first 2 weeks after release. A study out of Rhode Island showed that providing MAT in prison can reduce the risk of overdose deaths.

In addition to understanding what OUD is and how to treat it, it is important to know how to talk about it. Based on research on self-perception theory in social psychology: the way we speak influences the way we think and feel. Research on 1200 individuals that were measured on positive and negative connotation of words showed that the following terms should be removed from our lexicon to avoid perpetuating stigma: “substance abuser”, “addict”, “alcoholic”. Words that are appropriate to use that do not perpetuate stigma are “person with a substance use disorder” and “opioid use disorder”. For a quick reference guide on what language to use and not use, please visit the following resource from Shatterproof.

Another recommendation for both judges and US attorneys is to move criminal justice away from incarceration for illicit drug possession and toward diversion of arrestees into mental health and addiction treatment services. For example, the Massachusetts ANGEL program, where individuals in possession of drugs are not charged but rather directed to an addiction treatment facility, are promising programs. When sentencing, it may be productive to require treatment or evaluation for treatment, but it may be counterproductive to require negative urines because OUD is a chronic remitting and relapsing disease.

One final recommendation is to have more roundtables and convenings like the 9th Circuit Court Judicial Conference to bring together judges, people with OUD, addiction experts, and law enforcement to discuss how implement the best science.

As my colleagues from the Hopkins Stigma lab note, “Reducing stigma toward individuals with OUD might be one way to discourage adoption of punitive policies.” Perhaps by reducing stigma among judges and attorneys, sentencing practices could lead to less incarceration, more recovery, and fewer tragedies like my uncle’s.