Incarceration of people who have OUD raises the risk of overdose death. Reducing incarceration for illicit possession of small amounts of illicit opioids (e.g., defelonization in California) has no evidence of adversely affected public health or safety. Some might argue that incarcerating people for illicit opioid possession has an offsetting public health benefit of deterring use by others. There are some deterrent effects of legal sanctions on drug use, but there is no evidence that they are unique to incarceration. Moving to penalties other than incarceration or to therapeutic diversion programs is very unlikely to increase population opioid use. It also could benefit the health of people with OUD. Although not a health harm per se, trust in the criminal justice system is not advanced when small-time heroin dealers are punished more severely than the Purdue Pharma executives who in 2007 pleaded guilty to knowingly helping trigger the opioid crisis, none of whom – shamefully and shockingly - spent even a day behind bars. The Commission therefore recommends an end to incarceration for illicit possession of opioids or drug use equipment intended for personal use.
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