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How the New Healthcare Law Can Improve the Criminal Justice System

Implementation of the Affordable Care Act can expand mental health and drug treatment services for people who are cycling in and out of prisons and jails.

For millions of people cycling through jails and prisons, January 1, 2014 was not just the start of a new year, but perhaps the start of new lives. That’s because they became eligible for health care under the federal Affordable Care Act, which was signed into law in 2010 and is now being implemented.

While prison inmates receive basic health care while they are incarcerated, there is no guarantee of care either for people who are released pending trial or for former prisoners once they are released. Without appropriate care, chronic and other diseases and disorders – including addictions – can deteriorate or re-occur, leaving pre-trial defendants or former prisoners either vulnerable to poor health outcomes or more likely to engage in risky behavior.

But, now people involved at various points in the criminal justice system could be eligible for health care coverage under the ACA, mostly under Medicaid. Although that generally does not include people who are incarcerated, it does include the approximately 10 million people who cycle in and out of the nation’s jails each year (as long as they are not detained), the 650,000 people released from prison each year, and the nearly five million ex-offenders who are on probation or parole at any given time.

Amy L. Solomon, senior advisor to the Assistant Attorney General, Office of Justice Programs at the U.S. Department of Justice, calls this development a “game changer.” Speaking at a conference last October on the impact of the ACA on the criminal justice system, Solomon said that the law “will greatly increase the portion of the justice-involved population eligible for health care coverage. It will ensure that coverage for the newly eligible includes essential health benefits, including mental health and substance abuse benefits at parity. And it will increase the focus on delivering high-quality, integrated care.”

Many criminal justice reform advocates hope ACA can help more people with health issues stay out of the criminal justice system altogether. And they are starting to focus specifically on diverting more people with substance abuse and mental health issues who have been arrested and are awaiting trial into community treatment.

“Up until now,” says Timothy Murray, executive director of the Pretrial Justice Institute, which is a Public Welfare Foundation grantee, “treatment simply has not been affordable for most of those who get arrested.”

Offering more treatment as a diversion option at the pretrial stage could prevent arrestees from becoming more deeply involved in the criminal justice system and help reverse the trend of over-incarceration.

In the past 40 years, the number of people in U.S. prisons and jails has increased to 2.3 million, attributed in no small part to the war on drugs. Managing health care for this large population has been a major concern – as well as a major expense – for federal and state corrections departments. Each year, an estimated $7 billion to $10 billion is spent on health care in correctional facilities.

Under the ACA, Medicaid will broaden its coverage beyond children, pregnant women and disabled adults below certain income levels and will include all non-elderly low-income adults. By 2016, it is expected that nearly six million or one-third of the newly insured Medicaid population of adults between the ages of 19 and 64, will be people who have been booked into jails during the year.

The federal government has agreed to pick up 100 percent of the costs of the expanded Medicaid coverage until the end of 2016, and, so far, half the states are planning to expand. In addition to possible coverage through Medicaid, people who have been arrested but not detained might also qualify for coverage through state health exchanges.

Most significantly, the ACA, together with the federal Mental Health and Addiction Equity Act, will require health insurers to cover mental health and substance abuse treatment at the same or similar levels that they cover medical and surgical services.

Making these services available at the front end of the system is critical to long-term success. A recent report from the National Association of Pretrial Services Agencies notes, “Research studies estimate that 65 percent of all adults in the U.S. corrections system meet medical criteria for drug and/or alcohol use disorders, and treatment participation reduces subsequent criminal activity by 33 to 70 percent, depending on the model.”

Yet, the treatment options have been limited for someone with substance abuse or mental health issues who has been arrested and is released while awaiting trial. Probably fewer than five percent could be sent to a potentially effective intervention program such as drug court.

Murray and other pretrial reform advocates hope that justice systems will now develop routines and protocols to maximize ACA’s potential.

Murray speculates that, “Now, with ACA-funded community resources, the court could order, as a condition of pretrial release, that an individual get a clinical assessment and a referral for the appropriate treatment instead of languishing in jail at public expense and further exacerbating their behavioral health  disorders.”

The potential benefits of the ACA to the individual and to society are enormous. “If a pretrial defendant is assessed and placed in a treatment program and does well, the court is likely to acknowledge that at sentencing and order a continuation of that treatment,” says Murray. “In the long term, that is going to be a much more effective way of enhancing community safety.”

As Solomon put it, “If more people get the treatment they need, they are more likely to get out and stay out of the criminal justice system.” They are also, “more likely to be able to work, to support themselves and their families, to pay their taxes and contribute to our communities. That serves our collective interest.”

ABOUT THE PUBLIC WELFARE FOUNDATION

The Public Welfare Foundation supports efforts to advance justice and opportunity for people in need. These efforts honor the Foundation’s core values of racial equity, economic well-being, and fundamental fairness for all. The Foundation looks for strategic points where its funds can make a significant difference and improve lives through policy and system reform that results in transformative change. For more information, visit www.publicwelfare.org. Follow the Foundation on Twitter or on Facebook.

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