Why We Need Deflection to Reduce Overdose Deaths (and Drug Diversion) in 2023

The United States is still reeling from a devastating opioid epidemic. The Centers for Disease Control and Prevention (CDC) report that death from drug overdoses reached just under 108,000 between 2020 and 2021. That is enough to fill over four professional baseball stadiums. 

This staggering number of overdose deaths is due to many factors, including the sale of counterfeit medications and illegal drugs that often contain deadly doses of illicitly manufactured fentanyl and other synthetic opioids; inadequate access to quality treatment and recovery support services; and resistance to implementing, and limited access to, medication for addiction treatment (MAT), particularly for those who are involved with the criminal justice system. Those in the justice system have a high prevalence of substance use disorders (SUD) that usually go untreated. The Bureau of Justice Statistics estimate that 58 percent of state prisoners and 63 percent of sentenced jail inmates meet the criteria for SUD, not including those with an alcohol use disorder. 

Many individuals are incarcerated because of a low-level drug or drug-related crime (e.g., when a healthcare professional diverts drugs in a hospital for personal use). Treating the underlying cause of the arrest and incarceration without involving the justice system is a smart, effective way to deal with those with SUD. Deflection may be the answer. 

Understanding Deflection, and How it Differs from Diversion

Deflection immediately places the offender into a treatment program and connects him or her with ancillary services (e.g., recovery support) with the sole purpose of preventing future involvement with the justice system. 

This approach originated in 2011, is a smarter way to stop the cycle of crime and an alternative to incarceration. It has surged among law enforcement professionals: Every year, there are approximately 1.5 million drug-related arrests, and many offenders suffer from co-occurring mental health and substance use disorders. 

Today, deflection is a central component of the White House’s Model Law Enforcement and Other First Responders Deflection Act released in March of this year, a collaborative effort that aims to keep individuals with substance-use disorders out of prison and get them into treatment. The purpose of the model act is for states to develop and use deflection programs to prevent those with an SUD from entering the justice system, where they won’t likely receive the actual treatment they need. 

While some critics believe that deflection programs are “soft on crime” because the offenders do not have the firm hand of the justice system hanging over them, support for deflection programs is continuing to grow among various stakeholders. 

The International Association of Chiefs of Police, for example, recommends deflection programs for minor, non-violent offenses and noncriminal behavior, “law enforcement agencies should empower police officers . . . to use alternative remedies such as drug and alcohol treatment, hospitalization, and other diversionary programs, when appropriate, as these can help citizens, save money, and reduce recidivism.” Additionally, support for deflection programs has been included in the National Drug Control Strategy since 2019.  

Deflecting people from the criminal justice system affords first responders the time to focus on dangerous crimes rather than on low-level crimes, where offenders continuously cycle through the criminal justice arena. SUD is a chronic relapsing brain disorder. After more than 25 years of working on policy issues on substance use and the criminal justice system, I have learned that treating substance users like criminals without addressing their underlying behavioral health issues is not only wrong but is also ineffective and expensive.

The Key Benefits of Deflection

Given the recent momentum around deflection, there is no better time for entities to deepen their understanding of its benefits, as well as how it can best be applied to reduce overdose deaths and drug diversion.

One of the most substantial benefits of deflection involves cost savings. It is difficult to find current research on the dollar value of deflecting individuals into community treatment versus incarcerating them, but over the last several years, I have read that every dollar spent on community treatment yields approximately $8 in overall societal benefits and almost $20 in savings related to crime. In general, imprisoning someone for a low-level offense can cost between $25,000 to $65,000 per person, per year. 

Without treatment and support services for those with a substance use disorder, it is almost guaranteed that such individuals will relapse, continue to commit crimes, and continue to cycle in and out of the criminal justice system. 

Deflection programs produce a number of benefits. As Jac Charlier, Executive Director of the Police, Treatment, and Community Collaborative (PTACC) and Executive Director of the Treatment Alternatives for Safe Communities (TASC) Center for Health and Justice, noted in Police Chief Magazine, deflection can effectively reduce crime due to reduced drug use, and avert “the cascade of collateral consequences that come from justice involvement.” 

In Practice: Incorporating Deflection-Centered Approaches  

The March 3 release of the model act by the White House is a positive step because it demonstrates the federal government’s commitment to deflection programs. The act provides state legislators and other policymakers with a tool to help begin deflection programs in their states.     

As stated in the Police Chief article, deflection programs differ depending on the needs of each specific jurisdiction. For example, major hospitals and health systems have been wracked by instances of drug diversion, but what are they doing about it? In many states, there has been growth in alternative-to-discipline (ATD) programs, a type of deflection approach supported by state nursing boards and other state governing bodies that relies on treatment, education, and ongoing monitoring as conditions of employment. These programs have demonstrated success rates of between 60% and 90%. 

If an ATD program is not in place, there is no incentive for someone to admit that they have a substance use disorder and needs help for fear that they will get fired or face termination. They likely will never get the help they need and will continue to hide their substance use. 

In addition to such programs, jurisdictions should look to existing, comprehensive state laws (and the model law that ONDCP released in March) to see other deflection-centered programs. Illinois’ deflection law was the first in the nation and the primary foundation for the model law on deflection. Currently, 25 states and the District of Columbia have statutory provisions that explicitly encourage deflection programs. 

A lot can be learned from deflection strategies in private businesses, such as the construction industry where, according to SAMHSA, an estimated 16.5 percent of workers suffer from alcohol- and substance-use disorders. Given the correlation between substance use disorders and safety, a growing number of construction organizations are urging at-risk employees to take time off through benefits-sponsored programs like the Family Leave Medical Act, to focus on their recovery.  According to a recent LifeWorks/Hazelden Betty Ford Foundation survey, several other industries have similar benefits; however, just under half (44 percent) of U.S. workers say that they do not know whether their employer offers any resources for substance use disorder treatment. 

While no single strategy can fully abate the illicit use of substances and the concomitant criminal activities that go with it, deflection is a compassionate and prudent option for states. In the wake of the largest opioid crisis in history and in a period of economic uncertainty, having access to life-saving community treatment programs rather than incarcerating people with substance use disorders makes sense for a host of reasons. 

About Susan P. Weinstein, Esp. 
Susan P. Weinstein, Esq, is the President of the Legislative Analysis and Public Policy Association and an advisory board member of HealthcareDiversion.org

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