Collateral Consequences of Criminalizing Substance Use Disorder
July 25, 2023
Overview
The “War on Drugs” could better be described as a “War on People.” In addition to obvious negative impacts such as incarceration and increases in drug-related harm, this “War” also leads to collateral consequences that can last for years —or even a lifetime. Collateral consequences are legal barriers resulting from a person’s conviction in addition to incarceration, parole or probation, and fines and fees.
One of the many examples of such collateral consequences is found in a federal law that excludes certain individuals from participation in Medicare and State health care programs (42 U.S.C. § 1320a-7).
Under the law, individuals are prohibited from receiving funds from federal health care programs if they have been convicted of certain crimes. Mandatory exclusions include felony convictions relating to controlled substances. The law specifies a very broad definition of “conviction” which includes people who have had their conviction expunged or participated in a deferred adjudication program where no judgment of conviction was ever entered.
Under this law, an individual can do everything “right” and still be locked out of employment opportunities for years. Not making exceptions for expunged convictions or participation in deferred adjudication programs works against the purpose of having those options available. In theory, those programs should restore a person to their position prior to their encounter with the criminal legal system. Instead, laws such as this one prevent those individuals from returning to positions they held prior to their conviction, potentially for the rest of their lives.
For example, the Network received a request from a registered nurse who had developed an opioid use disorder following the use of prescription pain medication after a medical procedure. This person began diverting pain medication from a pharmacy for their own use.
The person reported themself to the nursing board in their state and checked themself into an inpatient rehabilitation program. While in the program, they were notified of a warrant for their arrest, and turned themself in upon completion of their rehabilitation program. They pled guilty to felony counts of obtaining narcotics by fraud and entered the county’s drug court program. After successfully completing that program, their conviction was vacated and expunged, and their nursing license was restored.
Despite doing everything the system asked of them, including self-reporting to the nursing board, checking into inpatient rehabilitation, completing house arrest and drug court, and obtaining an expungement, the person was placed on the Office of Inspector General’s exclusion list for a minimum of five years because of the broad definition of “conviction” under 42 U.S.C. § 1320a-7. As it is nearly impossible to work as a nurse without receiving funding from a federal health care program, this exclusion essentially bars this qualified nurse from working in their profession.
Employment helps reduce recidivism and improves recovery from substance use disorder. Yet, this person will not be able to return to their profession as a registered nurse for five years after they entered a diversion program. During that time, they will likely have to learn a completely different skills set or attempt to get by in entry level or minimum wage positions until they are removed from the exclusion list.
This is not an isolated story. Laws across all 50 states and federally that create collateral consequences for people with substance use disorder-related convictions, keep them out of employment opportunities. Policymakers who want to encourage employment and recovery should re-examine these punitive and counter-productive laws.
This post was written by Ashleigh Dennis, Staff Attorney, reviewed by Corey Davis, Director, Network for Public Health Law Harm Reduction Legal Project, in response to issues raised by Chris Kyzar RN, BSN..
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.