Beyond Crime and Punishment: Addiction Stigma in the Law

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In the U.S. legal community, there is extensive formal treatment of issues relating to substance use. After all, substance use is often illegal or regulated, and there is prominent case law touching on various matters regarding addiction, including the medical model of addiction. In this post, we are setting aside the formal treatment to touch upon two areas within the legal context that are often overlooked and thus warrant discussion: one, societal treatment of individuals who were formerly incarcerated for drug offenses and, two, stigma against attorneys who struggle with substance use disorders (SUDs).

Five percent of the U.S. population meets criteria for a drug use disorder, but an astounding 50% of state prison and jail inmates meet the same criteria (Bronson et al. 2017). More than a million individuals with SUDs pass through the criminal justice system each year (Rich et al. 2011). When these individuals are released from state control, they face daunting struggles to resume their lives: their jobs have often disappeared, family and friends are wary, and many find themselves without a place to live (see Western, 2018). A criminal record, on its own, brings significant social stigma (Moore et al. 2015). Stigma relating to criminal offender status often is compounded by formal and informal marginalization, including voting rights restrictions, employment difficulties, and other important aspects of daily life (Pogorzelski et al. 2005). Not least on account of psychological responses to stigma, criminal offenders’ reintegration remains challenging (Winnick and Bodkin 2008; Morani et al. 2011).

On this blog, we have discussed the myriad challenges posed by addiction stigma. For those who have been incarcerated, however, these challenges are compounded by the presence of stigma against criminals. This is especially true for individuals convicted of drug crimes. A study of over 30,000 individuals released from Washington State prisons found that, during the first 2 weeks after release, the risk of death was 12.7 greater than normal (Biswanger et al. 2007).

The U.S. government has taken some steps to protect individuals with SUDs. There are formal protections, such as the Americans with Disabilities Act (ADA) of 1990 and the ADA Amendment Act of 2008, and these protections are broad. They require that employers allow for modified schedules so that treatment can be received, and they also require that rehabilitation does not negatively impact job security. They even require reassignment to less stressful posts (Aoun and Bazzi 2017).

However, formal protections can only go so far. Just as there is well-documented stigma towards individuals with criminal records and towards individuals with SUDs, those with dual-identities face significant, if not compounding, stigmatization by members of society. We fear that the brunt of this compounding stigma is felt by members of minority groups, given that, after controlling for usage rates, minority individuals are more likely to face criminal sanctions for their drug use (Munger and Seron, 2017; see also Carson, 2016; Chin, 2013).

Attorneys with Substance Use Disorders

Attorneys experience SUDs at high rates (Chung 2017), and attorney rates of alcohol use disorder are greater than those for the general population (Schiltz 1999). According to a 2016 study conducted by the Hazelden Betty Ford Foundation and the American Bar Association, 21% of lawyers qualify for an alcohol disorder (Krill et al. 2016). Even though the survey was confidential, a full 75% of attorneys surveyed declined to answer questions related to drug use, suggesting that the effects of both fear of professional loss and stigma (see Zimmerman, 2017). And we know that substance use impacts attorney decision making: an estimated more than half of disciplinary proceedings and malpractice claims against lawyers involve substance use (Marlowe, 1997).

It is believed that substance use is especially pernicious in the legal realm given “high levels of stigma” (Butler Center for Research 2017). In short, while it can be shameful for an attorney to misuse substances, it is equally or more shameful for such an individual to seek help for the disorder (Vincent 2018). This is unsurprising, as one can easily imagine how substance use would be a mark of shame in a highly productive environment like a law firm. If the first eight years of practice are a quest for superior performance and the chance at making partner, then seeking treatment for addiction would represent a significant deviation.

In recent years, there have been repeated calls for law firms and legal organizations to devise interventions for addiction stigma (Zaretsky 2017). Largely in response to these calls, the American Bar Association is set to begin sharing testimonials of attorneys’ struggles with substance use and their paths to recovery (Krill 2018). The ABA also released an extensive report on lawyer well-being, large portions of which focused on mental health. Yet there remains a significant need for greater resources to assist attorneys with substance use disorders (Krill et al. 2016).

Conclusion

These two issues—stigma against formerly incarcerated drug offenders and stigma against attorneys with SUDs—prompt a question. What can be done to combat societal stigma? In past entries on this blog, we outlined some approaches, including education and training. In future posts, we will discuss approaches that are both successful for treating SUDs and diminish societal stigma, such as using peers in recovery. Perhaps the best place to start, however, and it is where we will leave the topic for now, is with awareness; it is with stories. This approach has been championed by Brian Cuban, an attorney who struggled with alcohol and cocaine use disorders and who now works to encourage his peers who are battling addiction and addiction stigma (see Cuban, 2017). He writes, “Many people who struggle want to tell their story but they are too ashamed and afraid. They project out the worst possible response” (Cuban, 2019). But the more that such stories are shared, the better the responses. We have created an online training module that features videos of individuals in recovery and interviews with family members. In a previous post on this blog, Robin Kellner discussed her daughter Zoe’s struggle with substances. While it may be daunting, we encourage the creation of spaces in which everyone who struggles with SUDs can share their stores without fear of retribution; indeed, can share with the hope that others will encourage them on the path to recovery.

This post was adapted from Avery, J. (2019). Addiction stigma in the U.S. legal system. In J. D. Avery & J. J. Avery (Eds.), The stigma of addiction: an essential guide (pp. 153-166). New York: Springer Publishing.

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