Is this Now?

Summer Newsletter 2023

By Nikki Tierney, JD,LPC,LCADC, CPRS
NCAAR Policy Analyst

Albert Einstein, the great physicist, was once travelling from Princeton on a train when the conductor came down the aisle, punching the tickets of each passenger. Although Einstein feverishly searched, he could not find his ticket. Despite assurances from the conductor that everyone knew who he was and a ticket was unnecessary, Dr. Einstein continued to search. The conductor said, “Dr. Einstein, Dr. Einstein, don’t worry. I know who you are. No problem. You don’t need a ticket. I’m sure you bought one.” Einstein looked at him and said, “Young man, I too know who I am. What I don’t know is where I’m going.”

Much like Dr. Einstein, New Jersey’s direction and policies regarding mental health and substance use disorders, often appear rudderless and uncertain of their intended destination. “We cannot arrest our way out of this problem” has become one of the most oft used phrases by elected leaders, law enforcement, health professionals, and even people with lived experience when discussing the appropriate response to the mental health and substance use disorder crises we are facing. What New Jersey, and America’s stakeholders cannot seem to agree upon, is what will help to get ourselves “out of this problem.” In the absence of a clear solution and direction, there is a void that is too often filled with a plethora of accepted exceptions to the “no arresting our way out of this problem” talking point, all with purported rationalizations for the same. These policies are exacerbating the crises we are in, and while perhaps well intentioned, are contributing to the deaths and harm from substance use disorders.

Nowhere is this uncertainty of a coherent pathway to our destination more evident than in some of the recent actions by the New Jersey legislature. New Jersey has made some astounding strides in eliminating barriers and increasing access to treatment and harm reduction supplies, investing in education and prevention programs, with regard to suicide, mental health and substance use disorders, and embracing the harm caused by responding to behavioral health issues with criminal or punitive responses. However, New Jersey has also taken several steps backwards and sideways in responding to the present mental health and substance use disorder crises by falling for the allure of punishment and retribution. This despite 50 years of proof, a la the failed “War on Drugs,” that punishment does not work to change behaviors associated with mental health and substance use disorders.

There is a consensus amongst multidisciplinary professionals that substance use changes a person’s brain. Drugs impact the way neurons send, receive, and process signals via neurotransmitters, overstimulates the brain’s “reward circuit,” and diminishes the functioning of the prefrontal cortex. ¹ All of these changes combine to “make a person with a substance use disorder seek the drug compulsively with reduced impulse control.”² Consequently, scientists, mental health professionals, criminologists, physicians, data, and thousands of studies reveal that punishment and punitive responses are directly at odds with the dominant definition of substance use as a public health problem and also at odds with evidence-based public health responses to preventing substance-use related harms.³ Stated otherwise, punitive responses do not work to change behavior. Such draconian responses are ineffective and cruel. Despite this knowledge, the New Jersey Legislature is taking some alarming actions as the severity of the substance use disorder epidemic is worsening.

For example, the New Jersey Senate passed S3325, which enhances the penalties for distribution and manufacture of certain amounts of fentanyl, 32 to 0. Admittedly, this legislation still needs to be passed in the General Assembly and signed by the Governor before becoming law, but the vote of 32 to 0 speaks volumes on the authenticity of our commitment not to “arrest our way out of this problem.” The bill was justified as not intending to target people with substance use disorders, but only ‘high-level drug dealers.’ While that premise is highly questionable, even assuming arguendo it was true, supply side interdiction alone will not produce any real decreases in the amount of deaths and damage from the current substance use disorder crisis. In fact, the supply shock that resulted after the implementation of the prescription drug monitoring program actually contributed to the current epidemic. Supply shock decrease without adequate treatment led to higher rates of suicide and more importantly to migration to over-accessible substitute drugs such as fentanyl and heroin.⁴ Thus even if this law would only lead to the incarceration of ‘high-level drug dealers’ and decrease the supply of fentanyl analogues, it still will not decrease deaths or harm from substance use disorders. Even if effective in its stated purpose, this bill is ineffective.

In a similar fashion, the legislature has introduced S2155/A2119 which adds illicit fentanyl to Schedule I in the “New Jersey Controlled Dangerous Substances Act;” A5488 which classifies xylazine as a Schedule III controlled dangerous substance under certain circumstances and requires reporting of xylazine prescriptions; and S3973, introduced as recently as June 15, 2023, reinstates the penalty for underage possession and consumption of alcohol and cannabis as a disorderly person offense. This last law not only advocates for punishment, but punishment of juveniles whose brains are not fully developed. Again, these proposed bills will have absolutely no net effect on the negative impacts our state is suffering from substance use disorders. These proposed laws threaten the recent progress New Jersey has made in its commitment to “not arresting our way out of this problem.”

Next, New Jersey is also the first state in the nation to legislatively require the use of medically correct and non-stigmatizing terminology in its statutes and government entity names related to substance use disorder. In its last session before summer break on June 30, 2023, the Senate voted in favor of S3511, 37 to 0 and the Assembly approved its version, A5096, 76 to 2, which both respectively remove all stigmatizing language from its statutes and government names. As with the suicide legislation, and legislation to allow treatment in homeless shelters, there was almost complete agreement by all legislators, from all parties, representing consultants of all parts of New Jersey that disrespect, dehumanization, and punishment will not help the historical challenge we are facing with regard to mental health and substance use disorders.

Not only was the number of legislators opposed to the bill troubling, but so was the nature of the opposition. Senator Steinhardt, who opposed the bill stated “[u]nder the Democrats’ bill, an offender would be able to hire a social worker to say they experienced depression, and that could be enough to get them into the diversion program. Any criminal who actually ends up in jail under this law would have to be a complete idiot.” This statement attacks the professionalism and ethics of mental health professionals and uses such stigmatizing words like “offender”, “criminal”, and “idiot” in reference to people with mental health disorders. Not only can we “not arrest our way out of this problem,” but we cannot “insult” our way out of it either. Notably, acting Essex County Prosecutor Ted Stephens testified, “It has been an overwhelming success. In the 12 years we’ve been running the program — approximately at 30 or so individuals every year — only two individuals in our record have ever had any recidivism.” The cognitive distortion, bias, stigma, and ignorance demonstrated in the opposition to this bill seemingly reveals that while the New Jersey Legislature may be known as the State who protests that “we cannot arrest our way out of this problem,” we do not know our final destination or how to get there.

New Jersey has led the nation in enacting some evidence-based legislation that will unquestionably save lives and reduce the harm endured by people in our state with mental health and substance use disorders. At no time has this direction been more necessary as the current epidemic is the worst it has ever been and with the recent frequency of xylazine in our drug supply, it will likely only worsen. New Jersey must adopt policies that are effective, humane, and consistent with the principles that make our State a leader in the nation in terms of access to free naloxone, removing stigma, and implementing evidence-based principles of harm reduction. The ‘cost’ of straying from our destination will impose the worst punishment of all, in terms of lives damaged and lives lost.