PROMOTING EXPUNGEMENTS TO MINIMIZE THE ADVERSE IMPACT OF SUBSTANCE USE DISORDER CRIMINALIZATION.

• Author: Kelly, Brittany

1. INTRODUCTION

   Research has already documented the irreparable harm of the criminalization of drugs. In the United States, these policies have led to disproportionate rates of incarceration of Black, Latino, and Native American people, (1) separated children from their parents in foster care and custody proceedings, (2) and often left people unable to secure employment and housing. (3) Criminalization has also had harmful impacts from a public health perspective. (4) Substance use disorder (SUD) is a medical condition with established criteria for diagnosis. (5) Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition. (6) Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs. (7)

   Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary. (8) While some states and localities have begun to decriminalize and legalize drugs, (9) most do not. And in many jurisdictions, this would be unrealistic in the near future. Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense. (10) The state legislature in fact elevated syringe possession to a felony in 2015. (11) What other legal strategies are available when decriminalization and legalization are not?

   This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder. First, this article discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization. Next, it describes expungement law generally and provides an in-depth summary of Indiana's expungement laws. Given the substantial nuances within expungement law, this article provides an analysis of how they can be best structured to promote their use. It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

2. CRIMINAL SYSTEM RESPONSES TO SUBSTANCE USE DISORDER

   The United States has long relied on criminal system approaches to respond to substance use disorder. (12) Instead of reducing substance use, it has led to mass incarceration, broken families, and death. (13) In order to mitigate the limitations of the criminal system's response to SUD, other justice-based strategies have developed. (14) But these strategies are built on the foundations of criminal law and continue to fall short. (15)

   For example, problem-solving courts such as drug courts, mental health courts, and veterans courts are used in every state to improve access to treatment and diversion for individuals with SUD. (16) The administration of these courts is decentralized and varies widely between jurisdictions. (17) In many counties, prosecutors determine who is eligible for drug court (18) and often select individuals with the shortest records at the expense of those most vulnerable. (19) As a participant in a drug court program, individuals often spend more time in jail following drug tests than they would have had they pled guilty upon being charged. (20)

   Efforts have also increased to improve access to substance use disorder treatment for incarcerated individuals. (21) However, few state prison systems offer comprehensive substance use disorder treatment options that include all three forms of medication-assisted treatment (MAT) for opioid use disorder. (22) Even fewer jails provide MAT coverage. (23)

   A variety of law enforcement diversion programs have cropped up across the country. (24) Police Assisted Addiction and Recovery Initiative (PAARI) (25) and Law Enforcement Assisted Diversion (LEAD) (26) programs seek to link individuals with SUD to treatment. Few diversion programs have been implemented nationwide, and although existing programs have seen some success, (27) comprehensive evaluations to measure their impact are lacking. Furthermore, their success is limited by law enforcement's discretion to make an arrest and many communities' distrust of police. (28)

3. PUBLIC HEALTH IMPACTS OF CRIMINALIZATION

   In March 2019, the San Francisco Health Commission passed a resolution identifying incarceration as a public health issue. (29) The Commission acknowledged in its resolution that incarceration impacts the health of those incarcerated as well as their families and communities. (30) In fact, any entanglement with the criminal justice system is harmful to the health of the person involved. For individuals with SUD, these entanglements can affect their access to health care, economic security, and family stability. (31)

   Incarcerated individuals have less healthcare access. (32) As discussed above, MAT for opioid use disorder, for example, is inconsistently offered in prisons and rarely offered in jails. (33) Similarly, the cure for hepatitis C, which disproportionately burdens individuals suffering from SUD, (34) is regularly denied in state prisons. (35) Adverse Childhood Experiences (ACE) is a questionnaire to identify risk factors during childhood including food and housing insecurity or abuse. (36) A high ACE score is linked to poor health outcomes including increase in substance use and substance use disorder, heart disease, stroke, diabetes, and suicide. (37) The questionnaire includes an inquiry regarding incarceration of a parent. (38) Thus, incarceration of a parent contributes to poor health outcomes for children. (39)

   Even after release from incarceration and completion of a sentence, the existence of a criminal record alone imposes collateral consequences related to housing, employment, transportation, and education, among other areas. (40) These areas are social determinants of health, which impact the overall health and well-being of an individual. (41)

   Substantial evidence demonstrates that stable housing is essential for individual health. (42) Housing instability is linked to reduced mental and physical health and even death. (43) Individuals with a criminal record are often unable to secure public housing (44) and even private rental housing due to the increased use of background checks. (45) The collateral consequences around criminal convictions are countless. These often "invisible punishments" (46) are present in both state and federal codes and can be almost impossible to navigate. (47) The National Inventory of Collateral Consequences of Conviction (NICCC) is a project that was undertaken by the American Bar Association in 2012 in an attempt to provide structure to the hidden effects of conviction. (48) In 2018, the database was restructured to further improve usability. (49)

   The NICCC warns that while some collateral consequences are put in place for purposes of public safety and are directly related to a particular crime, others have no relationship to the crime committed. (50) Many collateral consequences do not consider the amount of time between the crime and the consequence and certainly do not factor in a person's efforts toward rehabilitation taken since the conviction. (51)

   The U.S. Commission on Civil Rights released a report in June of 2019 after spending several years looking at collateral consequences across the country. (52) The report states that harsh collateral consequences unrelated to public safety increase recidivism by limiting people's access to resources that allow them to successfully reintegrate into society after incarceration. (53) In addition, it found that the general public, as well as attorneys and courts, are not familiar with the collateral consequences in their jurisdiction and this lack of awareness undercuts the intended deterrent effect of such consequences. (54)

4. EXPUNGEMENT LAW

   Expungements are "[t]he removal of a conviction... from a person's criminal record." (55) The scope, eligibility, and process for expungements vary substantially from jurisdiction to jurisdiction. For example, federal legislation does not allow for expungements, but federal circuit court judges sometimes are able to provide them. (56) State expungement laws differ in their availability and scope, among other areas.

   This section first provides a general description of state approaches to expungement laws. It then offers a detailed summary of Indiana's expungement laws as a case study. Expungements are a form of record relief (sometimes referred to as erasure). (57) This article will use the terms expungement and record relief interchangeably.

   1. State Approaches

      According to the Collateral Consequences Resource Center (CCRC), in a report that takes a look back at the year 2019 and efforts to reduce collateral consequences of conviction, thirty-one states and D.C. enacted up to sixty-seven bills all aimed at some form of record relief. (58) Five states enacted their very first law expunging or sealing convictions. (59) Specifically, North Dakota, New Mexico, West Virginia, Delaware, and Iowa all now offer criminal record relief that was formerly unavailable. (60) Many states that already had expungement laws on the books showed that their work around record relief was not done. Fifteen U.S. states worked to expand expungement relief "under existing law." (61) Eleven U.S. states offered expungement of certain non-convictions for the first time, (62) and twenty-seven states and DC made certain classes of convictions newly eligible for expungement. (63)

      Although laws that allow for some form of record relief, whether new or an expansion of existing laws, are certainly steps in the right direction, what often follows is a tangled, confusing mess of procedures, filing fees, and requirements, also known as the "uptake gap." (64) The "gap" describes the phenomenon in petition-based schemes where a large percentage of eligible individuals never apply for relief because of unnecessary and...