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

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

Resources:


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

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  • Jeremy K Galloway

    Some interesting news from the National Association of Drug Court Professionals, who lobbied against buprenorphine (Suboxone) treatment…

    http://www.huffingtonpost.com/entry/drug-court-hhs-addiction_us_56bb676de4b0b40245c4d975?utm_hp_ref=tw

  • Jennifer Walton

    Great article Jeremy! Great insight and
    Clearly makes sense. Our county in GA is just starting to accept MAT and I think will Prove successful versus the previous abstenince model which just set our
    Young adults up for failure!

  • Freedom&justice

    I appreciate this article, both the criticism of Drug Courts – which have fundamentalist acolytes who pretend they are a magic bullet and refuse to hear the data on their real impact – and the search for other more integrated activities. But I have a couple of quibbles: the use of the term “offender” is often a misnomer because for many people their “offense” is a dependence on drugs. In addition asking for trained medical personnel at every stage is only superficially useful when “training” around addiction and drug use in the US is stuck in 1970’s refer-madness mentality. A lot of trained “counselors” still use the gateway theory for marijuana and others easily debunked. As long as “treatment” in the US means only abstinence-based and “success” is measured by no use of any substance ever. Medical professionals are not going to be part of the solution. We need more treatment including harm reduction, that can be tailored to each users’ needs. That said: glad to see someone willing to call out the failures of Drug Courts. This is a great contribution to a needed discussion.

  • Freedom&justice

    I appreciate this article, both the criticism of Drug Courts – which have fundamentalist acolytes who pretend they are a magic bullet, and refuse to hear the data on their real impact – and the search for other more integrated activities. But I have a couple of quibbles: the use of the term “offender” is often a misnomer because for many people their “offense” is a dependence on drugs.

    Also, asking for trained medical personnel at every stage, is only superficially useful when “training” around addiction and drug use in the US is stuck in 1970’s refer-madness mentality. A lot of trained “counselors” still use the gateway theory for marijuana, and theories that are easily debunked. As long as “treatment” in the US means only abstinence-based, and “success” is measured by no use of any substance, ever, medical professionals are not going to be part of the solution. We need more treatment, including harm reduction, that can be tailored to each user’s needs.

    That said: glad to see someone willing to call out the failures of Drug Courts. This is a great contribution to a needed discussion.

    • Jeremy K Galloway

      I couldn’t agree more about the poor quality of training and misinformation when it comes to many treatment professionals. Unfortunately, doctors and licensed psychiatrists or psychotherapists are, if included in the process at all, only tangentially engaged with most drug courts. This need to be treated as a public health problem and a medical problem, which means including doctors somewhere in the process.

      I also think we need to move beyond the “a drug is a drug is a drug” myth. That’s not true, and we have evidence to back that up. I’d love to see a more harm-reduction-oriented approach, but in my encounters with drug court judges I don’t see them being ready to embrace that (they’re usually too busy patting themselves on the back for the great work they’re doing. Getting medication-assisted treatment accepted in most drug courts is still an open issue–even after the Obama admin’s threat to withhold federal funds. One county here in Georgia has agree to “consider” MAT for participants, and even that decision and which medications are acceptable is left in the hands of judges, who aren’t medically trained.

      I see this as the first step in a long process. Hopefully it gets people talking about more effective solutions–and this is definitely not the only front on which we’re fighting this battle. The whole system needs a transformation.

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  • Rene Leeper Beisel

    Hello, Im from Tampa, Florida and here they are using drug court like “civil” probation…. punitive in nature. My wife and I fell victim to some incompetent DEA, HSI, and ICE agents that had no clue what they were doing, and had no proof of any drug activity other than a controled delivery of some salt. They entered, and searched my house without a warrant and when they couldnt charge me with a crime, they decided to call the child abuse hotline cuz they found a loaded pistol in a bedroom that was not mine, while my kid was in school. I got the shaft and got railroaded in my trial by a proponderence of the evidence, appearently and we ended up in drug court.

    I had no idea what that was or how corrupt these mothersuckers were. I now found case law, BROOKE NICOLE MULLIN v. KEN JENNE in which it is illegal to order someone into drug court, if the administrative order by the cheif judge of the county states in the order that participation is by choice or volontary. Im starting habeas corpus proceedings as soon as my motion for extrordinary relief is denied. I am so pissed off I study law just to get at these mothertruckers.

    I have a 42 USC 1983 suit against judge jack espinosa jr. for violating my constitutional rights, and for permitting other drug court participants to goto a doctor and recieve the benefit of medical treatment but denies it to me, even scumbags in prison get medical treatment and can sue for 8th amendment violations if not treated with proper medical care, but I get no medical care.

    I further assert that denying me of medical treatment, as prescribed by my physician and offering no referal to any medical treatment that may be permitted after reviewing my medical records/history, that jack espinosa jr. was ptacticing medicine without a license, and is liable for up to $5,000 and guilty of a violation of state law as well as violating my constitutional rights. email crackdatgrill@gmail.com for any help or advice you need, or can give on any of these subjects. also see, beisel v. espinosa in the district court middle florida, tampa division

  • Rene Leeper Beisel

    Oh, by the way. I forgot to mention Im accused of importation of narcotics to the U.S. Not formally charged, or indicted but why would anyone put a suspected high level drug dealer in drug court, with a bunch of morons that have been working and saving their hard earned chump change….. need I say more…. fox…. henhouse. What a screwed up system!!!!

  • Selena

    I am a participant of Drug Court in NJ and medically assisted prescribed vivitrol monthly injections. If they sanction me for a ‘dilute’ it’s a week sanction (I wasn’t trying to dilute) and I miss my monthly injection because I am in jail is this denying me my medical rights? Bergen County NJ Drug Court Is corrupt they do not follow procedures and they make their own rules. I have been clean of all drugs and mood or mind altering substances for 16 months. I believe the idea of drug court is great but these officers are on power trips and make things up as they go along and truly do not care for our well being. It’s really as if they want to put hoops in front of us that we can not jump then say oh well you failed. I have more stress than help from the people who are supposed to be helping me

    • Rene Leeper Beisel

      Thanks for the feedback Selena, I believe if you have an ongoing prescription and the judge orders sanctions that impede you, or prevent you from obtaining or legally taking youre medication ordered and prescribed by a medical doctor then you should file a 42 U.S.C. 1983 civil suit for violating youre constitutional right under the 8th amendment to have adequate medical care. You are also entitled to equal protection by the law, which falls under the 14th amendment. And I have done just that…. I have also asserted that a judge is a medical practitioner if they decide who needs medication and or what type of meds are permitted or who can or cant take them, requiring the judge to have a medical license. Even if you lose the lawsuit, you have exposed the unfair and unconstitutional aspects of this kangaroo court they call drug court. You have to be committed and it costs like 400$ to file the suit, unless you dont work, you can do it for free, its called …… In forma pauperis. As long as I have to be subject to monthly court dates, I am going to file a lawsuit at every hint of me thinking my constitutional rights were violated. I recommend this exposure, there is a good info website called caught.net and it gives a lot more ideas on how to tame down a kangaroo judge…. but I take full credit for the 1983 suit tactic. Its taken me the last 6 months of reading and reading about all this civil law crap and constitutional violations and Im starting to get much better and more savy. If I keep throwing crap at the wall it is bound to stick at least once, and these judges think they are untouchable, I laugh at that and keep suing them, eventually when the judges name is googled it will reveal a list of lawsuits against that judge and the voters will surely be turned off and vote the other way…. by by captain kangaroo!! That is my rant for the day, Thank you

      • Selena

        Thank you so very much your information will be extremely helpful to me!