Incarceration as Harm Reduction: The realities of lethal street-based opioid overdoses in neoliberal Philadelphia

Philadelphia is the poorest of the ten largest cities in the United States and has one of the highest rates of fatal opioid-related overdoses in the state of Pennsylvania. Faced with a limited landscape of social services and community-based support, and the responsibility of keeping their defendants alive, judges and attorneys in Philadelphia have begun to use probation and incarceration as a form of harm reduction – at least in state custody, they reason, people who use drugs are safe from overdose and death. Drawing on over twenty four months of fieldwork in the context of court-mandated drug and alcohol treatment in Philadelphia, this essay explores the perspectives of these criminal legal actors and outlines the double binds of the decarceration movement in the opioid crisis and the neoliberal social service landscape available to respond to it.

The hard wooden bench squeaks beneath me as I adjust my position. The bustling courtroom is tough to track and so an adjustment of position is the only tool I have to make sure my eyes are where they need to be. The judge, the court crier, the public defender, the probation officer, and the district attorney are all running through the daily “list” of defendants on today’s docket together. As if checking off a to-do list, they move from one defendant to the next, some of whom are in the room, some of whom are not. These criminal legal actors bargain, scuffle, and occasionally threaten one another, shuffling the fates of the thousands of criminal defendants in their hands like poker chips. I listen to the muffled conversation between these actors about the defendants who have not been brought down from the city jails, trying to understand this jumbled process of decision making around the provision of appropriate punishment and social services. Suddenly, the volume of the conversation breaks the surface din of the courtroom.

“How did he get out!?” Judge Bryant repeats his question more loudly this time. The defendant in question had violated probation by submitting “dirty urines” [multiple urine drug screening samples with traces of illicit drugs] and getting caught with eight bags of heroin. As the probation officer had explained to the Judge just moments before: “I had to take him into custody…I don’t think he’s a bad person, your honor, he just has a bad addiction, and the only reason I took him off the street was because the only way I saw him getting help or being saved is going to inpatient (drug treatment) from custody.” It was after this explanation that Bryant asks again, “How did he get out!?” The public defender stationed in Judge Bryant’s room responds:

“His detainer was lifted.”

“By whom?” the Judge retorts.

“In his detainer hearing.” The public defender grins; she knows what’s coming.

“Oh this is interesting,” Judge Bryant says, appearing to relax as he leans back into his chair. His hand finds his chin. The current criminal legal reforms had taken the power out of his hands once again. These reforms were enacted by various municipal stakeholders but primarily put into practice by Philadelphia’s District Attorney, Larry Krasner. These reforms changed the legal proceedings around probation as well as the criminal charging of many petty crimes associated with illicit drugs and prostitution. By refusing to charge defendants with crimes like prostitution that would have brought them into Bryant’s courtroom and rendered them eligible for publicly-funded treatment, and by limiting the judge’s power over criminal legal probation proceedings, these reforms had jeopardized Judge Bryant’s power and approach to care. For Judge Bryant and many others, the power of the detainer – the legal entity that gives probation its unique power – the captivity of the jail, and the possibilities of endless, free inpatient treatment [on the part of the defendant] that could be mandated by the courts, together shaped a system of harm reduction. This system eschews a simple, value-based duality around freedom and incarceration in the context of street-based poverty and dispossession. By taking Judge Bryant and the defendants he presides over seriously, a different and urgent need emerges for those enduring in street-based poverty and addiction. This need ultimately guides us towards a productive, political agenda that agitates for targeted public spending and investment in spaces of reprieve and containment defined by strength-based care rather than punitive criminalization.

Philadelphia is at the epicenter of the wave of opioid related overdoses and deaths. Currently the poorest of the ten largest cities in the United States, in 2016 Philadelphia had a notoriously high incarceration rate that has dropped precipitously since the election of progressive DA, Larry Krasner in 2017. At the time of this writing, the jail population is half of what it was when Krasner took office, down from 8,500 people to around 4,500. Krasner’s administration has decriminalized petty drug possession and sex work, among countless other minor crimes that cycled defendants through the city’s jails. During the second year of Krasner’s tenure, his attention shifted to the inner workings of probation and the system’s use of detainers – the legal entity that denies a defendant who is on probation the possibility of bail and keeps them incarcerated. Probation, a form of community supervision that ballooned in the early 2000s to reduce jail overcrowding, essentially ties the defendant to the judge. Historically, the judge held all of the power, while the department of probation and parole enforced that power when the defendant had strayed by way of violating the conditions of probation. No missed appointments, no drugs, no new criminal charges, the former two called “technical violations” and the latter called “direct violations.” This enforcement on behalf of probation officers happened through the form of the “detainer.”

A detainer, or the legal entity that defines the unique power of probation, contains the power of the probation officer, on behalf of the court, to not only move a defendant into jail, but keep them there, often indefinitely. Detainers are immune to bail and can only be lifted by the judge in charge of probation, thus tying the defendant and the judge together. Power, care, and control weave together to form this tie between judges and their probationers that can become deeply personal. For defendants with longstanding substance use or mental health issues, the course of probation can span decades. Historically, when someone violated probation, they were under the thumb of two people: their probation officer and their judge. No bail, no jury. Probation law that is just evolving now to become more constitutional.

Judge Bryant sits up suddenly and speaks sternly: “OK, if he comes back with a dirty urine you are to drop a detainer and I am to be notified personally. I like to do my own detainer hearings unless you have a problem with that?” He stares at the public defender. She explains that Larry Krasner’s administration has been speeding up the Gagnon I hearings – the first violation of probation hearing –so trial commissioners have been conducting these hearings instead of the busy judges. To be fair, the Gagnon I hearings never really used to be hearings. They were more like a blip in a busy court room day. The incarcerated defendant’s name would be called in the courtroom, announcing their incarceration for a violation of probation, and the judge and their clerk would offer a date for the next hearing. The defendant would almost always remain incarcerated.

“Well I am doing my own, we’ll see if Krasner has a problem with it.” Judge Bryant then repeats what he has said at least once every day I’ve observed in his court room. “I am tired of death certificates coming across my desk.”

As part of his reform efforts, DA Krasner had focused on lifting detainers quickly so that people would not have to sit in jail while they waited to see their judge and be sentenced for violating their probation. Krasner’s move effectively interrupted the relationship between defendant and judge, and put the power to lift detainers in the hands of a random trial commissioner. Defendants would have their detainers lifted, be released from jail, and return to the streets where they would reinitiate drug use. Judge Bryant wasn’t having it. He was tired of the death certificates, he was tired of the overdoses, and he sought to use the power he had to mitigate the damage that opioids wrought in people’s lives. It wasn’t a perfect system, but it was the one he had, and possibilities and duties of that system to save lives was clearly a spiritual commitment.

Over the course of more than three years of fieldwork in drug and alcohol recovery houses, intensive outpatient treatment centers, and the jails in Philadelphia, I began to understand Judge Bryant’s logic, albeit reluctantly: it was a twisted form of harm reduction. My interlocutors who are defendants would talk about the need for probation to hold themselves accountable, or the need to “sit” in jail once in a while to get them out of a downward spiral. Sometimes this spiral was related to drug use, sometimes a crisis could reactivate old patterns of violence; often it was a blend. I grew to understand “sitting” as a break from the chaos of street-based urban poverty and addiction. State custody offered a break from the streets in a context where death or lengthy state prison sentences were extremely common. Sometimes probationers and their families even initiated this break. Moms would call probation officers, judges, anyone with the power to take their child off the street.

Meech, 38, expressed frustration about the apparent endlessness of his original probation sentence, which had now extended into ten years. At the time of our conversation, Meech was participating in court-mandated inpatient drug and alcohol treatment. His judge would never let him do the jail time to “max out” the probation and finally terminate the sentence: “nope he would start it (the probation sentence) over, start it over.” After a pause, Meech pivoted: “Probation saved my life though, man. This time, I woulda died out there. Nothing was bringing me back.”

The system grabbed him, “brought him back” to life with a force that nothing in the community could. As social service provision in Philadelphia were cut and retrenched, as the deindustrial transition gutted the lower-middle and working classes and ballooned the subproletariat classes, what was left of the social service landscape privatized and evolved in tandem with the metastasis of the criminal legal system. In a separate interview, Judge Bryant reflected on these changes:

“I’m your only help. If you don’t have insurance, good luck getting in an inpatient facility. If you commit a crime and I order it they have to accept it, I can order a FIR [a court drug and alcohol evaluation and community-based care referral system]. If you’re not on probation or something, it’s a terrible system, but it’s what we’re stuck with. We are your social services. When you’ve hit rock bottom and you’re selling drugs and shoplifting, we are your hope, we are your salvation…a lot of people don’t realize they need treatment and we force ‘em in. How many times have you been in that courtroom and heard me say ‘I know you’re not gonna like this but for your own good I’m gonna keep you in right now.’ People come back a year later and say thank you, you saved my life. We have become a social service. Right now it’s the best we have. Should there be more social services out there? Absolutely. It’s almost impossible to get them if you’re out there. If you’re an average citizen and middle or working class individual, and you don’t qualify for these social services, you’ll go bankrupt…”

And further, if you do get into treatment, and you leave, no one is there to force you back. You are left, as Meech and others put it, “out there.” What another interlocutor, Poderoso, unambiguously calls “hell.”

The paternalism and coercion here on the part of the judges and attorneys are not new critical targets in scholarly analyses of addiction treatment and the criminal legal system [Tiger, 2015; Cooper, 2018]. The deeply problematic entangling of the presupposed “criminality” – the bedrock of the carceral turn in the 1970s – with “social support,” too, has not lost its stink. As abolition movements gain critical power across the country (Davis 2003), a liberal rejection of the racialized caste system on which mass incarceration hinges (Wacquant 2001), these judges and attorneys are forced to manage crises in the “meantime” (McKay, 2018). As Judge Bryant says, “should we have more social services out there? Absolutely,” but for right now, “this is what we have.”

In Hunted: Predation and Pentecoastalism, Kevin O’Neill (2019) reflects on this dynamic of release and capture in his work on Pentecostal drug rehabilitation centers in the context of the post-war, austerity-driven Guatemalan state. This dialectical movement between release and capture is locally referred to as “hunting,” a Christian idiom shorn of any legal, liberal, or democratic pretense that the term “probation” or “detainer” carries. Pastors hunt released captives who relapse on the dangerous and violent streets of Guatemala City in order to save their lives, or to be their “salvation,” as Judge Bryant and the Guatemalan pastors both describe it. O’Neill writes, “To spread these cards across a tabletop, to take them in all at once, demonstrated the ways both empathy and abduction formed overlapping forms of predation. It also charted the affective dimensions of being ‘chased’ as well as living in captivity – while also addressing the paradoxes of escape as not a singular event but a constant effort” (2019:15). Social service-oriented probation exists in this ethically murky territory, the space where empathy and abduction merge and blur to create a novel permutation of predation. It is also the space where the jail as a social service provider operates [See Kim Sue’s (2019) Getting Wrecked: Women, Incarceration, and the American Opioid Crisis and Carolyn Sufrin’s (2017) Jailcare: Finding the Safety Net for Women Behind Bars on this point].

Somehow, over the course of the past three decades, the courts became the largest purveyor of social services to the poor in Philadelphia – and of drug and alcohol treatment, specifically. And somehow, many judges like Judge Bryant, and attorneys and probation officers, understand a significant aspect of their practice to be social work. They grow to feel responsible for the fates of their defendants and parolees, to fix the unemployment, the addiction, and what they frame as “trauma” in the lives of their clients. They want to save lives. Judge Bryant has even been trying to find an affordable path to a Masters degree in drug and alcohol for himself over the past few years.

“Oh absolutely, I take it personally. You’ve probably heard me tell the story about Jason, it bothers me till this day that I didn’t save that kid. I can’t save everyone, but something told me that I should take him in right now [that day], he’s not gonna make it to Wednesday. He was gonna go to a detox, his mother was there, I gave him the Narcan, and everything, and damn if he didn’t die on me. It sticks in my mind every time. I blame myself for that. I should have taken him in that day and given him a fighting chance.”

The “right now,” the moment to moment volatility in the lives of the vulnerable when there are few, viable existing alternatives. O’Neill writes that in order to disrupt the “dialectic of predation, to move beyond the overlapping cycles of hunting and being hunted,” we need to begin a conversation about the conditions that “enable hunting to happen” (145). Judge Bryant’s legal style of predation, one that depended on the tools of the criminal legal system rather than the indentured labor of other captives, was something he was not willing to give up without an immediate alternative. This was his problem with Krasner’s reforms:

“To be fair to Mr. Krasner I think he really believes in what he’s preaching, I think he’s a true believer. I just think that there has to be some middle ground. Like I said, I’m only coming from the point of treatment, and if he’s not charging, I can’t get them into treatment. That’s all I care about. If we could come to some sort of compromise, I like a lot of what he’s done…I kind of understand his philosophy but at the same time he’s interfering with my ability to provide rehabilitative services and that’s why I disagree with him.”

Without changing the grinding landscape of street-based poverty and scant, privatized social services, Judge Bryant’s views and practices highlight the intricate webs that probation and the criminal legal system had woven with the needs and vulnerabilities of the addicted poor. I echo Bryant’s questions here, “should there be more social services out there? Absolutely”, albeit in different terms. I echo them as a provocative beginning, a complex place to think and politically act from that avoids the simple, value-based duality of incarceration and freedom in the context of extreme urban poverty, addiction, and dispossession. In this context, both freedom and incarceration are social and political failures. Neither offers a space of thriving that promotes human dignity. When freedom and incarceration “represent two failing alternatives,” as O’Neill puts it, we are pushed into a different conversation altogether.

Because my interlocutors who were/are defendants in courtrooms like Judge Bryant’s continuously brought up the need to “get out” or to “sit” somewhere outside of the community, I am left wondering about other places where people could get a break, where they could be voluntarily “grabbed” and moved. Where people could get “the pause” that they need. Local hospitals experience the power of this need, too, not just the jails. As Diego, a recovery house resident put it:

“It took me all that time until now, back and forth to mental institutions, where I really didn’t need to be there, but I used it as an escape route to either get out of jail or I knew that something was wrong with me but I didn’t know what, but I was just so desperate to get out of the streets that anything has to be better than this, even if I have to be somewhere locked down for 14 days. At least I’m not out here. At least I’m not using. If I need some drugs, they’ll give me some drugs. So, I used the hospitals and the rehabs as a way out, you know, mentally, so in a way I did need it, that’s what the people and this government doesn’t get.”

We could create alternative spaces to care for those who are in crisis and just need “a way out.” Even if the conditions of poverty and addiction don’t change, perhaps the spaces and people that provide an escape route could.

I have highlighted this need for an “escape” from the streets amongst those who endure street-based poverty and addiction in U.S. cities by following Judge Bryant and taking seriously his system of harm reduction. The need for a “time out” renders incarceration and freedom “failing alternatives,” in Kevin O’Neill’s terms; this need points us towards a different political imaginary altogether. What kind of strength-based institutions might offer this reprieve and how could we imagine them outside the logics of carcerality? How might we acknowledge the crushing conditions of street-based poverty without depending on paternalistic capture to relate to those enduring in these conditions? I think these questions are a productive beginning for a different political movement that rallies for public spending and investment into alternative, strength-based containing spaces outside of the community.

Tali Ziv, PhD, recently graduated from the University of Pennsylvania with a doctorate in Anthropology and is now a postdoc at Johns Hopkins University. Her dissertation research explores the contemporary decarceration efforts in Philadelphia, examining the community-based institutional transformation that has shaped the incarceration alternative landscape. She does so through a global analysis of the historical, economic and political forces that have formed both carceral and decarceral approaches to the social issues of addiction and poverty as well as an intimate analysis of individual experiences navigating these systems. Tali is committed to an anthropology of inequality, addiction, and incarceration, and to ethnographic relationships forged in these contexts.

Works Cited

Cooper, Jessica. 2018. “Unruly Affects: Aempts at Control and All That Escapes from an American Mental Health Court.” Cultural Anthropology 33 (1).

Davis, Angela. 2003. Are Prisons Obsolete? New York, NY: Seven Stories Press.

McKay, Ramah. 2012. “Documentary Disorders: Managing Medical Multiplicity in Maputo, Mozambique.” American Ethnologist 39 (3): 545–61.

O’Neill, Kevin Lewis. 2019. Hunted. Class 200: New Studies in Religion. Chicago, IL: University of Chicago Press.

Sue, Kimberly. 2019. Getting Wrecked. California Series in Public Anthropology 46. Berkeley, CA: University of California Press.

Sufrin, Carolyn. 2018. Jailcare. Berkeley, CA: University of California Press.

Tiger, Rebecca. 2012. Judging Addicts. Alternative Criminology. New York, NY: New York University Press.

Wacquant, Loic. 2001. “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh.” Punishment and Society 3 (1): 95–134.