Criminal legal penalties, substance use, and overdose: a concept mapping study examining Colorado’s criminal legal penalties

Abstract

Background

In the USA, many states, including Colorado, have increased criminal penalties for illicit opioid possession, which may alter overdose risk. We aimed to evaluate the relationship between Colorado’s increased drug-related criminal legal penalties, risk of overdose, and substance use patterns.

Methods

We used concept mapping — a mixed-methods approach used to develop a conceptual understanding of an issue from a community lens — to engage with people with living and/or lived experience with the criminal legal system, substance use, and/or overdose, their loved ones, and service providers. In facilitated discussion, we used the prompt: “Do you see overdose and substance use, in Colorado, being impacted by an individual's involvement with the criminal legal system?” Participants — recruited from community-based organizations — identified, rated, sorted, and categorized factors affecting criminal legal involvement, substance use, and/or overdose in their community. We used groupwisdom to develop concept maps and to analyze findings.

Results

Twenty-four individuals (ages 18–70) participated; most had living and/or lived experience. Participants identified 100 distinct factors, which were sorted into 9 clusters: societal impacts of criminal legal involvement, lifesaving benefits to decreased criminal legal penalties, environmental barriers of criminal legal involvement, structural barriers to recovery services, essential culturally aware community-based services, strategic allocation of funding, strategies to improve law enforcement’s impact, changing policies to keep law enforcement accountable and better educate law enforcement on community culture, and community issues with law enforcement to prioritize. Of the 40 most influential and common factors, most related to structural impacts of criminal legal involvement and barriers to recovery (e.g., long waitlists, job loss).

Conclusions

Using concept mapping, we worked with community members to identify and prioritize factors associated with substance use and overdose amidst increasing drug-related criminal legal penalties. These insights (e.g., law enforcement’s role should be acting as a bridge to mental health and recovery services) are critical for policymakers and service providers, as they speak to the need for investing in re-entry services, harm reduction services, and co-responder models for behavioral health crises.

Background

While the United States (US) houses 5% of the world’s population, it houses nearly one-quarter of the world’s incarcerated population [1]. Between 1980 and 2015, drug-related arrests nearly tripled, largely due to the “War on Drugs” [1, 2]. One-in-five individuals are now incarcerated for a drug-related reason, and there are vast inequities in these incarcerations. Black, Latinx, and Indigenous individuals, those with low-income, and women are disproportionately incarcerated for drug-related reasons [3].

While incarceration has been used as a tool to combat drug use, harsher penalties for drug use are not associated with a reduction in use [4]. Furthermore, these incarcerations are associated with worsening family health and well-being, reducing employment and housing opportunities, and increasing stigma [5]. These barriers, combined with reduced tolerance post-release and lack of medications for opioid use disorder in carceral facilities and the community, dramatically increase the risk of overdose post-release [5, 6].

In the midst of the growing overdose crisis, now largely driven by high-potency synthetic opioids (e.g., illicitly manufactured fentanyl and fentanyl analogs), most US states have introduced legislation intended to combat this crisis [7, 8]. There is substantial variation in how state legislatures are responding to the overdose crisis ranging from increased education and harm reduction efforts (e.g., Naloxone laws) to increased criminal penalties [7]. In May of 2022, Colorado signed House Bill 22–1326, which increased the penalty for knowingly possessing fentanyl weighing 1–4 g from a misdemeanor to a felony [9].

While studies have quantified the relationship between criminalization, substance use, and overdose [10,11,12], few studies have conducted qualitative research to understand the perspectives of communities and individuals directly impacted by the criminalization of drug possession and use. Such research is a necessary prerequisite for designing interventions and policies meant to disrupt the cycle of criminal legal involvement for those people who use drugs (PWUD) [13, 14]. Furthermore, prior qualitative work is limited for the following reasons: (1) to inform local and state policy, findings generated from qualitative research must be relevant to local context, and (2) participants are typically not involved in qualitative research data analysis, thereby leaving interpretation to the research team rather than those who would be affected by interventions and policies [15, 16].

To ensure that participants have a voice in the research process and in providing insights into drug-related programs and policies, we used a community-engaged approach and the method of concept mapping [17]. Our aim was to understand how those with living and/or lived experience with the criminal legal system and substance use view the relationship between increasing criminal legal penalties and future criminal legal involvement, substance use, and overdose. Community-engaged approaches focus on co-learning alongside community members to co-build new knowledge [18]. This approach is especially critical when working with marginalized communities around legislation and policy decisions that are generally made without their voices but that directly impact their lives [19].

Methods

This study is part of a larger project funded by the Colorado Department of Human Services as part of Colorado House Bill (HB) 22–1326. The content of HB 22–1326 is noted above but also included an amendment for an independent mixed-methods study analyzing the health effects of increased criminal penalties for fentanyl possession. Our overall aim of the qualitative component was to evaluate the relationship between Colorado’s increased drug-related criminal legal penalties, risk of overdose, and substance use patterns. We chose a concept mapping approach for this, as it is producing accessible results for community audiences, including legislators [17].

Concept mapping is a mixed-methods approach used to develop a conceptual understanding of an issue from a community lens [17, 20]. It does this through facilitating a discussion of a focal issue by participants collectively brainstorming a response to the focused question and then individually rating and categorizing factors [21]. Groupwisdom software then creates visual maps of this information by positioning factors on the map to reflect their interrelationships and organizing factors into conceptually similar clusters [22]. These maps are then presented and negotiated with participants to arrive at consensus for one map and cluster title.

Participants and setting

Potential participants were identified in partnership with the study’s community engagement consultant (BC) and with community-based organizations (e.g., peer support organizations, social service organizations) working at the intersection of re-entry, harm reduction, and substance use treatment programs across Colorado. Interested individuals were eligible to participate if they had personal living and/or lived experience with the criminal legal system, substance use, and/or overdose, were a loved one of someone with these experiences, or provided services to individuals with these experiences for at least 1 month at their current employer. Potential participants had to be at least 18 years old and speak English. Participants were compensated US $50 cash for each meeting. Participants were offered to participate either in-person at a community-based recovery organization or virtually. The first three meetings were held separately for in-person and virtual participants, while the fourth session was hybrid.

Data collection

Data collection took place over four meetings between June and July 2023. In the first meeting, participants were asked to respond to the following prompt: “Do you see overdose and substance use, in Colorado, being impacted by an individual's involvement with the criminal legal system?” They were encouraged to describe factors that both increased and decreased criminal legal system involvement and that positively and negatively affect overdose risk and substance use. They were also asked to describe both the current and future role of law enforcement in addressing the overdose crisis. After the first meeting, the research team combined the factors of items produced by both the in-person and virtual groups by removing duplicates and combining similar concepts. In the second meeting, participants reviewed the combined list to confirm that it accurately represented their perspectives. Each participant was then asked to rate each factor on a 5-point Likert scale (1 = very weak influence, 5 = very strong influence) in terms of (1) how much each factor related to substance use, overdose, and criminal legal involvement and (2) how common the factor was in their community. In the third meeting, each participant was asked to sort the factors into piles and to name each pile. During the fourth meeting, the research team showed how the computer program displayed the factors as points on a map (additional details below). The study team used the graphs and maps to facilitate group conversations to reach consensus around which map best captured the factors at the intersection of the criminal legal system, substance use, and overdose in their community.

All sessions were co-facilitated by two authors (S. N., B. C.), and additional authors took field notes prior to, during, and after sessions (K. L., C. J.). Sessions were audio-recorded and transcribed verbatim, and transcripts were checked for accuracy. Each session lasted approximately 1 h.

Data analysis

Groupwisdom software was used for data analysis [22]. First, this software creates a similarity matrix by generating two coordinates for each statement from the sorted data (e.g., how participants categorized factors together). Second, a multidimensional scaling algorithm creates a point map representing each factor with distances between points representing how often factors were sorted together, and each map received a stress value indicating goodness of fit [17]. Third, using a hierarchical cluster analysis and Ward’s algorithm, the factors on the point map are grouped into clusters of statements that come together to form a concept [23]. Clusters that are narrow on the spatial map indicate greater agreement between participants’ sorting, and larger clusters indicate greater diversity within its factors. Broadly, the distance on the spatial map indicates how participants saw the clusters as related to one another [20]. While data from the point map can be divided into any number of clusters, the optimal number is decided by researchers and participants [23]. The research team provided provisional labels for each cluster based on the category names from the sorting exercise, and participants were encouraged to provide alternative cluster labels. Lastly, the average ratings for each factor’s perceived importance for (1) criminal legal involvement and (2) substance use and overdose were plotted on a bivariate graph.

Transcribed group discussions were analyzed for emerging themes and explanations of how the factors interact with one another. All quotes presented below are from transcribed group discussions during concept mapping sessions. The research team then identified cluster groupings, which enhance overall interpretability of the concept map and emerged inductively as participants recognized local groupings of the clusters [23]. Lastly, in November 2023, in partnership with our participants, we held a community forum to share findings with influential advocates, discuss their implications, and strategize next steps. We took notes during the community forum which were used for further discussion.

Results

Of the 45 people sent the screening survey, 24 individuals participated (ages 18–70), all of whom resided in the Denver Metropolitan Area of Colorado (Table 1). Participants were majority female (n = 16, 67%) and White non-Hispanic (n = 15, 63%). Seventeen individuals (71%) had living and/or lived experience with substance use and/or the criminal legal system, while the remaining seven (29%) were loved ones of those with living and/or lived experience with substance use and/or the criminal legal system but did not have an experience of substance use and/or the criminal legal system themselves. Many individuals worked with those with living or lived experience with substance use (n = 13, 54%) and/or criminal legal involvement (n = 12, 50%).

Table 1 Demographic characteristics (N = 24)

In participants’ responses to the question “Do you see overdose and substance use, in Colorado, being impacted by an individual's involvement with the criminal legal system?”, 128 factors were generated across the in-person and virtual groups. Following the meeting, this was consolidated to 100 factors by merging similar items and removing duplicates. In the first step, the factors are visualized in a point map, with distances between points representing how often factors were sorted together, along with their corresponding numbers (Additional file 1: Fig. S1). This is also known as a similarity matrix, and information on how factors are sorted by similarity or dissimilarity is used to then sort factors into clusters into the cluster map (Fig. 1). The cluster map is the visual representation of how the participants viewed an individual’s criminal legal involvement relating to substance use and overdose. In Table 2, the factors are listed with their corresponding number. Factors listed in virtual and in-person groups were consistent. Participants agreed that the 100 factors of the consolidated list included the central factors that captured how overdose and substance use are affected by criminal legal involvement.

Fig. 1

Cluster map related to the criminal legal system, substance use, and overdose

Table 2 One-hundred factors within cluster map related to the criminal legal system, substance use, and overdose

Clustering of factors that influence overdose, substance use, and criminal legal involvement

Maps with 9 and 10 clusters appeared to most accurately and comprehensively encapsulate responses. These two options were presented to all participants in the final hybrid session, and the nine-cluster solution was selected. Through a discussion with participants, the final labels for the clusters were as follows: societal impacts of criminal legal involvement, lifesaving benefits to decreased criminal legal penalties, environmental barriers of criminal legal involvement, structural barriers to recovery services, essential culturally aware community-based services, strategic allocation of funding, strategies to improve law enforcement’s impact, changing policies to keep law enforcement accountable and better educate law enforcement on community culture, and community issues with law enforcement to prioritize. These clusters represent the perceived ways that criminal legal involvement relates to substance use and overdose, with the factors representing the elements within each cluster. To help summarize the results across the related clusters, clusters were then grouped into the following cluster groups: post-release reintegration, relationships with law enforcement, noncriminal legal actors, and lifesaving benefits to reduced penalties.

Post-release reintegration

Participants grouped discussions of how individuals lose access to resources while incarcerated, which makes recovery more difficult post-release, into the societal impacts of criminal legal involvement cluster. One factor in this cluster included incarceration as being “destabilizing in that housing, jobs, and medical treatment all stop when [you are] charged.” Another factor detailed that individuals are often released from jail in the middle of the night, making it difficult to immediately be connected to resources even if they were working with a case manager and/or peer support specialist and had a reentry plan. The discussion around this factor focused on the need to include the word “societal,” as these were barriers imposed by societal structures.

Difficulties of individuals reintegrating post-release were also grouped into the environmental barriers of criminal legal involvement cluster. Examples of factors in this cluster included (1) the loss of substance use tolerance post-release combined with increased shame, stigma, and stress, (2) the lack of coping skills that people had to work through these difficulties, (3) the loss of community connections people experience while incarcerated, (4) constant surveillance by the criminal legal system, and (5) difficulties in getting reconnected with community providers post-release. Individuals discussed this cluster as encompassing difficulties faced during incarceration and how this led to difficulties post-release, described as “continued legal jeopardy” by one participant. Individuals also often faced structural barriers to recovery services such as long waitlists and poor experiences due to sobriety requirements without appropriate support. In the discussion, participants emphasized that the “structural” piece of the title was critical to the barriers faced.

Relationships with law enforcement

When discussing law enforcement’s involvement, participants had differing views on how police should be involved in behavioral health, ranging from wanting to improve their access to training to removing police involvement entirely. Factors in the cluster community issues with law enforcement to prioritize included police needing a better understanding of substance use and police suffering from compassion fatigue and being overworked. One factor stated that police were being asked to do something impossible — be both a clinician and a soldier at the same time. When discussing the concept map, participants shifted from focusing on tensions with police to expressing a desire to build community with law enforcement so that officers have a deeper understanding of substance use. One participant stated, “I feel like that's the thing that is missing, is as soon as the police officer maybe comes in the room, we're going to all kind of change our tone a little bit. And that shouldn't necessarily be the case. I don't know how this all comes back together, but I feel like that's the ultimate policy change is we're trying to build a community.” Another agreed that they wanted to build “a community that [law enforcement are] a part of. That there’s not just cops and robbers or drug addicts and police.”

In the changing policies to keep law enforcement accountable and better educate law enforcement on community culture cluster, factors included the need to change policies to reduce arrests for drug use, increase connections to community-based resources and agencies, and the need for a harm reduction model for police officers. While individuals first discussed the need for educating law enforcement, they quickly pivoted to policy changes. One participant said that when they saw the label “educating law enforcement” for a cluster, they felt that “a lot of that wouldn't change if you educate law enforcement. It's more of a policy thing. So it's like alternative policies and approaches for law enforcement better than educating law enforcement because then you're including that next level stuff. Who dictates what the law enforcement does?” Another agreed that “you can educate an officer all you want, but if there's still a policy that they have to follow then there's nothing [they] can do about it. So, get the policy and then you can educate in hand with the policy. That's when things change.”

Lastly, the strategies to improve law enforcement’s impact cluster included factors such as the need for co-responder programs, police acting as a bridge to mental health services, and the need for law enforcement to partner with others to improve their impact and ultimately help save lives. One person emphasized the need to “[have] another person there…social workers, peer navigators, you name it. Being there as a team to help them do a better job.”

Noncriminal legal actors

In addition to discussing police partnering with noncriminal legal actors, two clusters emphasized the need for more investment in these noncriminal legal actors. First, the cluster essential culturally aware community-based services included the need for trauma-informed care, for peer support, and for tailored approaches for each individuals’ recovery. These facets would all work toward developing a sense of community that individuals said they often lacked, particularly in the post-release setting.

Second, the cluster strategic allocation of funding included the need for crisis intervention teams and harm reduction programs. Factors included the need for street outreach by police as well as non-police. Participants included specific co-responder and alternative responder programs in the local area as programs that needed additional funding. Additional factors included the need to divest money from jails and prisons and to invest in treatment and recovery.

Lifesaving benefits to reduced penalties

The final cluster, lifesaving benefits to decreased criminal legal penalties, was located in the middle of the clusters on the map and spoke to how reduced criminal legal involvement could decrease stress and trauma and allow individuals to create consistency in their lives, ultimately reducing the likelihood of continued substance use and overdose. Participants suggested adding “lifesaving” to the beginning of this cluster to emphasize that reducing these penalties would save lives.

There were several factors describing how jail-based resources could be helpful for individuals and how increased criminal legal penalties could push some individuals to stay sober. These factors included how people sometimes had to go to jail to receive services but also how some jails lack robust services — and that those incarcerated desperately need these services (e.g., the ability for peer support specialists to reach people in jail, developing communities in jail). These factors were assigned to clusters on the map corresponding to how factors were sorted and rated by participants.

Perceived relevant influence of factors

Next, participants rated how much each factor influenced someone’s involvement in the criminal legal system and how much each factor influenced substance use and overdose in their community, both on a 5-point Likert scale. These ratings were plotted together on a bivariate graph (Fig. 2). Factors in the top right corner are perceived to have the strongest influence on both criminal legal involvement and substance use and overdose. Of the 40 most influential and common factors, 14 were from environmental barriers of criminal legal involvement, 13 from societal impacts of criminal legal involvement, 5 from strategic allocation of funding, 3 from structural barriers to recovery services, 3 from essential culturally aware community-based services, and 1 from each cluster pertaining to law enforcement.

Fig. 2

Perceived influence of factors affecting criminal legal involvement, substance use, and overdose. This bivariate graph represents the average rating values for each factor on a 5-point Likert scale of 1–5. The four quadrants are each related to how participants rated the individual factors, which can be viewed in Table 2 . The maximum and minimum value for each axis is the maximum and minimum average for the factors across the entire map

Community forum

Participants identified influential community advocates to invite to the forum: policymakers, healthcare providers, law enforcement officers, treatment providers, loved ones, and educators. These influential community advocates were invited via e-mail from the research team and by participants distributing flyers; all of these influential groups attended the forum. We also co-created a brochure (Additional file 1: Fig. S2) about the study with participants to share with influential advocates at the forum and in the community. The research team and participants co-facilitated discussions in small groups about the concept mapping results, how to build trust across communities, and ideas for future collaborations. Group discussions focused on the need to (1) understand co-occurring disorders and mental health diagnoses but not define a person by them, (2) center personal stories, (3) document how current systems are or are not working (e.g., co-responder programs) to hold them accountable, and (4) to ensure that the recovery community is inclusive not only of those practicing abstinence but also those practicing harm reduction. Groups discussed who was not at the forum, particularly the need to engage rural areas, youth, Spanish speakers, politically conservative individuals, and those who use stimulants. Discussions enabled attendees to reflect on the experiences, strengths, and challenges of those with living and lived experience in the criminal legal system and with substance use and raised awareness of issues impacting health and well-being from the perspective of those with living and lived experience.

Discussion

We used concept mapping as a tool for community engagement to develop a collective understanding of the factors related to criminal legal involvement that affect peoples’ risk of substance use and overdose. We utilized this participatory method in the context of a recent law change that increased the criminalization of fentanyl possession during the overdose crisis to ensure that those with living and/or lived experience with the criminal legal system and substance use had a role in researching a topic that directly impacts their lives. While the recent legislation was the impetus for this work, the project more broadly focused on understanding community member-identified factors that exist at the intersection of criminal legal involvement and overdose. In organizing the factors into nine clusters, participants developed a consolidated map to explain how criminal legal involvement is related to substance use and overdose in their community in the Denver Metropolitan Area. While each factor or cluster alone may not be unique, concept mapping provides us with rich information as to how each factor may be related to each. In doing so, future legislative decisions can be made through a more holistic lens than traditional research allows for. Insights from the study, specifically how increasing penalties were not a solution to the overdose epidemic and how law enforcement’s role should be acting as a bridge to mental health and recovery services, are critical for policymakers in Colorado and across the USA. Our study underscores the need for investing in re-entry services, harm reduction services, and co-responder and alternative responder models for behavioral health crises. This work is also meant to be accessible to a diverse group of individuals from policymakers to organizations providing direct services. Concept maps can be used as visual aids by, for example, community organizations to determine funding priorities or focus areas. By concept maps highlighting topics that are closely related, community organizations are able to increase their effectiveness by focusing on these areas with overlap rather than disparate issues. Different groups may also find various parts of the study and of a concept map more illustrative than others. For example, policymakers on judicial committees may want to spend time focusing on understand the three clusters related to relationships with law enforcement, whereas harm reduction agencies may focus on understanding the factor, essential culturally aware community-based services.

The relationship between criminal legal involvement, substance use, and overdose is known in the public health literature [5, 6, 24], as are non-carceral solutions to decrease overdoses and improve individuals’ re-entry success (e.g., peer-delivered harm reduction) [25, 26]. However, the concept mapping process allows participants to develop a visual of how these factors overlap and play out in their lives and in their community. Further, the importance of these findings is punctuated by the fact that they were directly produced by those with living and/or lived experience with the criminal legal system and substance use. This is a critical step in community members participating in substance use and overdose prevention [19], particularly in the context of ever-changing policies around drug criminalization. In fact, in the 2023 legislative session, at least 46 US states introduced opioid-related crime bills with at least 103 bills being enacted into law [7].

Our findings emphasize that co-responder models and any models with a law enforcement presence must include community building with people who use drugs and who have experience with the carceral system, in addition to providing connections to services. This builds on prior work, which has primarily focused on co-responder teams responding to mental health crises. This work has found that individuals feel less threatened and stigmatized when interacting with co-responder teams compared to traditional police response, and these individuals are more likely to be linked to community mental health services [27]. Our study points to the need for these programs to specifically build community with people who use drugs.

These findings also emphasize that for those who do experience jail or prison incarceration, including peer support professionals on teams within carceral settings is necessary to address wellness, reentry, and overdose safety planning to support individuals as they transition back into the community. Prior work has shown that when unhoused incarcerated individuals work with peer support professionals to plan for post-release services, they are more likely to be engaged in behavioral health services [28]. Upon release, individuals also need to be connected to peer support professionals and social services agencies, which prior qualitative work with those with living and lived experience with substance use and incarceration has also called for (Nall et al., 2024) and which prior studies have shown to be successful at improving health, motivation to engage in substance use treatment, and linkage to housing and employment [29, 30].

Strengths and limitations

This study has many strengths. The concept mapping process demonstrated the co-learning process and democratization of knowledge, identifying what participants view as most influential or central to the intersection of the criminal legal system, substance use, and overdose [18]. This development of a shared vision led to many participants co-presenting at the community forum, wanting to share their experience with the criminal legal system and substance use, and co-presenting at both local and national conferences. Concept mapping can be an important community engagement method to help policymakers understand the impact of proposed and enacted legislation through learning directly from their impacted constituents via visuals and a small, digestible set of topics (i.e., clusters) [17].

There are important limitations to note as well. Participants were recruited via policy coalitions, harm reduction, treatment, reentry, and recovery agencies and organizations. As such, all participants were connected to community organizations and are therefore likely not representative of all formerly incarcerated individuals and their loved ones with substance use needs. Additionally, all participants spoke English and resided in the Denver Metro Area, making our results potentially less representative of the state as a whole. Furthermore, criminal legal policies related to substance use are quite variable by state, and resources for re-entry and substance use treatment and recovery vary widely by locale, indicating that our results may not generalize to other jurisdictions. Although our sample size may not support broad generalizability, this was not the intent of our study. Also, our participants were well versed in the link between criminal legal involvement and substance use disorders though this knowledge may not be ubiquitous. Future work on this topic in other jurisdictions may require both additional background data as well as nuanced prompting questions. Lastly, our guiding question may have been too restrictive, limiting the novelty of our findings. We chose this question to address, broadly, how criminal penalties are related to substance use and overdose across the entire state. Future studies may consider more targeted questions to a smaller geographic region, individuals from specific demographic groups, or around specific criminal penalties. Doing so may solicit responses that are more actionable at a local level.

Conclusions

This study provides insight into community member-identified factors associated with substance use and overdose amid increasing drug-related criminal legal penalties. As new carceral and anti-carceral drug-related policies are considered (e.g., overdose prevention centers, spending of opioid abatement funds), the need for equitable representation and inclusion of community perspectives of people with living and/or lived experience on research teams and as participants is critical. This inclusion is critical in understanding the implications of these policies on the health and wellbeing of the broader community and, ultimately, in combating the overdose crisis.