Drug Court Judges Should Never Act as Doctors—Here’s a Better Way Forward

drug courts
Feb 05 2016

Drug Court Judges Should Never Act as Doctors—Here’s a Better Way Forward

Over a decade of heroin use taught me there are many paths to recovery.

Robert Lepolzski, a 28-year-old sales rep from New York, was denied the opportunity to discover this for himself. He was enrolled in a medication-assisted treatment (MAT) program, taking methadone, when he entered a state drug court. There, Judge Frank Gulotta, Jr ordered him off MAT. Shortly after, in August 2014, Lepolzski died from a heroin overdose.

Gulotta’s perspective on MAT is troubling: They are crutches–they are substitutes for drugs and drug cravings without enabling the participant to actually rid him or herself of the addiction.”

Methadone has been used in the US to treat opioid addiction since the 1960s and is considered the “gold standard” for long-term treatment and reduction in risk factors like disease, crime, and mortality. The California Society of Addiction Medicine cites long-term success rates between 60-90%. A 2010 UK study showed an 85% reduced risk of mortality with treatment of a year or longer and a 1990 US Study showed “major improvement in the survival of heroin addicts” who remained in methadone treatment. Other studies as early as 1978 show “death rates of patients after leaving treatment were more than twice the death rates of patients who remained in treatment.”

In September 2015 New York passed an important law requiring drug courts allow participants access to MAT, but a SAMHSA survey reveals less than 20% of drug courts provide this option, instead favoring spiritually-based 12-step programs (a practice ruled unconstitutional by several courts).

Following a Huffington Post report on the wave of overdose deaths in Kentucky’s abstinence-based drug court system, the federal government threatened to withhold funding from drug courts which prohibit MAT. Since most of these programs are state-funded, however, the threat has had limited impact.

In 2007, shortly before my 30th birthday, my substance use disorder (SUD) earned me two years in prison. The judge sentenced me to Georgia’s Residential Substance Abuse Treatment (RSAT) program, but the Department of Corrections never sent me. Instead, I served my time at a prison which offered no treatment and few re-entry services.

Nick, a close friend I met there, was busted breaking into vending machines for quarters a few years later. When offered drug court as part of a plea deal he jumped at the opportunity. Not long after, he told me he should have served his time in jail, a sentiment echoed in a Drug Policy Alliance (DPA) report on drug courts:

“Not only will some drug court participants spend more days in jail while in drug court than if they had been conventionally sentenced, but participants deemed “failures” may actually face longer sentences than those who did not enter drug court in the first place (often because they lost the opportunity to plead to a lesser charge).”

Nick was released on the condition he enter a Bible-based recovery program. This program offered no treatment, immediately sent clients to work, and required them to use their wages to pay rent, “treatment” costs, and tithes. He left after two weeks. The operators were later convicted on federal money laundering charges, reflecting poor judgement and potentially dangerous behavior by the drug court.

Nick later found stable housing and employment. When his scooter broke down, leaving him without transportation, the judge gave him a weekend in jail, which cost him his job. He found legitimate treatment later and recovered in that program for nine months. One night he returned after having a couple drinks, a violation of the program’s abstinence-only policy. He was back in jail the next day.

That treatment program offered him a second chance, but he never made it back. Nick died from an overdose, his body dumped in his mother’s yard by a “friend” who was scared to call 911 for help.

Stories like Nick’s are common. So are stories of mothers with young children, ordered to residential treatment, who rely on MAT in violation of program policies and afraid to speak up for fear of losing custody.

Drug courts force square pegs into a system of round holes. This all too often sets participants up for failure. Despite allegations of “cherry picking” participants to demonstrate reductions in recidivism and selecting offenders accused of marijuana-related crimes over those who use more potentially harmful substances1, most drug courts still show mixed success rates and rely on coercive, retributive tactics and an archaic “one-size-fits-all” treatment model.

When our legal system denies medical treatment it produces harmful, lifelong consequences for offenders. Coercion and punishment for a public health issue is cruel, unjust, and fails to address underlying social problems which contribute to substance use issues.

Medical conditions like SUDs and related psychosocial factors belong in the hands of trained professionals. Drug court judges are playing a dangerous game of doctor.

Criminal courts advocating abstinence-only policies don’t comprehend that MAT shows the greatest chance for success or that methadone and Suboxone (buprenorphine) maintain tolerance to opioids, providing a critical safety barrier from lethal overdose. This is important because many opiate-related overdoses result from a return to drugs after long periods of abstinence.

Like many others, I found myself trapped in our revolving-door justice system until I entered a methadone program, found a healthy support system, and discovered alternative programs which support MAT, such as SMART Recovery.

I never revealed this to my probation officer. Looking back, that was a wise choice, because I might still be stuck in that harmful, self-perpetuating cycle today.

Transformative Justice: A Better Path

However much we might object to the model, drugs courts are well-established (with over 2,700 in the US) and won’t disappear overnight. But the existing drug court infrastructure, despite its flaws, contains potential stepping stones toward a highly promising new model.

Transformative Justice (TJ) is a liberatory approach focused on safety and accountability for offenders and communities, which doesn’t rely on the isolation, punishment, and structural violence produced by our existing retributive justice system.

Much like its older sibling, Restorative Justice (RJ), it’s a process which engages victims and offenders in striking a healthy balance between individual justice and community safety. TJ takes this a step further and addresses social factors which contribute to crime and substance use issues, disrupting the cycle of harm and suffering.

TJ can also embrace the reality that there is no “one-size-fits-all” treatment solution, and that many secular alternatives to 12-step programs are available, including SMART (which provides 24/7 online meetings), LifeRing, Moderation Management, SOS International, and MAT with individual counseling. These programs use evidence-based tools which are proven effective for many people with SUDs.

We believe a three-part framework, which incorporates elements of Restorative and Transformative Justice, is vital toward making them work within the US drug court system:

1. Trained medical professionals must be involved at every stage.
Treatment with potential clinical risks, including death, doesn’t belong in the hands of people with no clinical  training. Drug courts should be reserved for cases involving offenses against persons or property (rather than simple possession) which are directly linked to an SUD, and should employ people with professional specializations in this areas.

2. Offenders need a voice in the treatment they receive.
Drug courts have adopted a disease model of addiction, while simultaneously penalizing any further drug use with incarceration. They lock participants into predetermined “treatment” plans based on non-standardized initial assessments, allowing little room for change.
2 Healing from substance use problems is more likely when people feel empowered and receive opportunities to engage in services that will improve physical and mental health. A change of course should be permitted when the selected treatment isn’t working. By engaging offenders in a process which deeply impacts their lives, we can equip them with vital tools for regaining a sense of control they’ve lost.

3. Drug offenders require social support networks and services to achieve success.
Peer-support groups alone can’t provide access to employment, housing, or education and can’t heal the damage caused to vital relationships. These are critical elements, especially for offenders with a history of incarceration. Reentry skills and coping mechanisms are key components for reintegrating drug offenders into our communities.

Restorative and Transformative Justice have been successfully applied within criminal justice systems in the United Kingdom, Canada, Australia, and New Zealand and as an alternative to criminal courts by aboriginal groups in British Columbia and Generation Five, a US coalition focused mainly on domestic violence.

The Penobscot Nation’s Tribal Wellness Court (Maine) incorporates these elements, placing a primary focus on wellness of offenders and communities and relying on incarceration only as a last resort.

The TJ process examines not only the offender’s mistakes, but social factors and limitations which produce them. The result? Collaborative agreements which actively engage offenders in the decision-making process. These are newer justice models, but where Restorative Justice has been applied it’s shown reductions in recidivism, improvements in victim and offender satisfaction, and increased restitution compliance. TJ builds on that success by proactively seeking ways to reduce risk factors for substance use and criminal behavior.

To create an ideal climate to heal, reduce harm, and save lives, reform advocates, families, offenders, and the justice system must focus on engaging each other in collaborative, wellness-centered solutions.

We have a blueprint to make that happen. By inserting it into the existing drug-court infrastructure, we would harness its enormous potential to reduce disease transmission, harmful behaviors and unnecessary deaths.


1. Huddleston, West, Doug Marlowe and Rachel Casebolt. Painting the Current Picture: A National Report Card on Drug Courts and Other Problem-Solving Court Programs in the United States. National Drug Court Institute 2(1), 2008

2. Murphy, Illness or Deviance? Drug Courts, Drug Treatment, and the Ambiguity of Addiction, 2008


Jeremy Galloway is a co-founder and Harm Reduction Outreach Coordinator for Georgia Overdose Prevention, Overdose Prevention Coordinator of Families for Sensible Drug Policy, and a certified SMART Recovery meeting facilitator in the North Georgia mountains.

Barry Lessin is a harm reduction psychologist in Philadelphia, PA and is Co-founder, along with healthcare advocate Carol Katz Beyer, of Families for Sensible Drug Policy (FSDP), a global drug policy reform advocacy organization. You can follow him on Twitter: @BarryLessin