How Drug Courts Can Respond to the Opioid Crisis

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Photo by Cindy Shelby via Flickr

When both sides of an issue agree on something, it can suggest a sensible consensus has emerged. But it could also mean that everybody’s trying to do the minimum without expending more energy on thinking clearly about the subject.

I believe that when it comes to drug abuse, the latter holds true.

Here’s one glaring example: As the nation’s opioid crisis continues to accelerate, liberals and conservatives both seem to have fixated on using drug courts as an alternative to punishment.

President Donald J. Trump has endorsed the recommendations of his President’s Commission on Combating Drug Addiction and the Opioid Crisis, in particular the establishment of drug courts in every federal district court.

The fact is, drug courts are not a panacea—at least as currently implemented.

In general, drug courts or drug treatment courts (DTC) divert individuals arrested for drug offenses to court-monitored drug treatment programs instead of prison. Eligibility varies. Usually, drug dealers or drug traffickers are not allowed in; nor are “violent” offenders.

Sometimes the crime for which an individual is arrested is not directly connected to drug use, although stealing to support a drug habit is. Failure to complete drug treatment or drug use within treatment under the court order can result in imprisonment.

Drug courts, we’re told, can fix a lot more of our justice system problems than the rising rate of substance abuse. They supposedly will reduce our bulging prison populations by removing many of the nonviolent drug offenders who have been subject to the tough mandatory-minimum sentencing that was a component of the “war on drugs.”

“Drug courts are known to be significantly more effective than incarceration,” declared the commission, adding, “For many people, being arrested and sent to a drug court is what saved their lives, allowed them to get treatment, and gave them a second chance.”

But one crucial, and largely unexplored, issue is what kind of “treatment” the individual substance abuser is mandated to receive as part of the diversion process. Some argue that the current paradigm of medication-assisted treatment (MAT) is badly conceived.

For example, In response to the president’s endorsement, addiction journalist Maia Szalavitz tweeted: “right, drug courts, ~2/3 of which ban meds proven to reduce mortality, that’s what we need.”

Although Trump’s initiative also calls for increased support for MAT, he only endorses one such medication-assisted treatment, which most experts consider the least effective.

There are three medications commonly used in MAT: are methadone, buprenorphine (usually in its Suboxone formulation with naloxone), and naltrexone in its once-monthly injectable Vivitrol formulation.

Most drug courts only allow the use of Vivitrol in MAT because it is the only one of the three commonly used anti-abuse medications that is not itself an opioid. Instead, it is what’s called an “opioid antagonist.”

That means it will prevent offenders from getting high on opioids even if they relapse. Because of this, it can’t be initiated before the patient has been weaned off opioids completely, or they will go through instant, painful, and possibly fatal withdrawal.

Alex Azar

HHS Secretary Alex Azar via Wikipedia

A directive from the Substance Abuse and Mental Health Services Administration mandates Vivitrol for those entering MAT after detox, even though the new US Health and Human Services Secretary Alex Azar has acknowledged to STATnews “that doesn’t mean it’s the best form for all populations.”

However, methadone and buprenorphine (which are, respectively, an opioid agonist or partial agonist) are now largely regarded as more effective. Although when taken in large-enough doses, they can produce a high, when taken as prescribed, they just prevent withdrawal. They may be started sooner than Vivitrol, and allow a patient to resume normal life and responsibilities, such as holding down a job.

Methadone is normally dispensed only one dose at a time at a doctor’s office or clinic to prevent abuse. Buprenorphine can be prescribed as a multi-month implant, and may soon be available as a monthly injection, too.

Of course, the patient offender could still take an additional opioid to get high. That’s why it’s called medication-assisted treatment, not medication-only treatment. Additional treatment, inpatient at a luxury executive rehab or outpatient at a community clinic is necessary.

So why do drug courts limit the use of methadone and buprenorphine? The problem here is one of perception, prejudice and morality.

Many still feel people with a substance abuse disorder are morally deficient or weak, not sick. The idea of giving these people drugs to combat their addiction is seen as wrong, as substituting one drug for another. (Similarly, safe injection sites are opposed because they might make drug use seem “acceptable,” although the evidence is that they save lives and prevent the spread of HIV and hepatitis.)

Methadone use, in particular, can last years.

Even some addicts share this prejudice and refuse MAT that uses methadone or buprenorphine.

But a 14-year-long study conducted by the National Institutes of Health, entitled “Opioid agonist treatments and heroin overdose deaths in Baltimore, Maryland, 1995-2009” concluded that “Increased access to opioid agonist treatment”—particularly buprenorphine—”was associated with a reduction in heroin overdose deaths.”

In a 2016 article for The Huffington Post, Maia Szalavitz wrote the following:

Research shows that people who stay on methadone or buprenorphine long term have half the death rate of those who detox from these medications or participate in abstinence-only treatment. (There is no similar data for antagonist medications, including Vivitrol).

Another problem is that the maker of Vivitrol, Alkermes, has lobbied intensively for its product over all others, including to politicians and drug court judges. According to ProPublica, Alkermes adopted this strategy when the usual approach to doctors and patients encountered resistance.

Having judges without medical training in effect prescribing medical treatment is unsettling to some addiction specialists and civil rights advocates.

But the lack of medical expertise associated with drug courts is only one of the issues that merit skepticism about their use.

Their overall effectiveness can be questioned. The available data don’t always account for people who drop out of the program before completion. (The same is true of 12-step programs, such as Alcoholics Anonymous and Narcotics Anonymous, which many of these courts also mandate.)

Worse, some studies show that some populations do worse after drug court than before.

According to a 2013 study of New York adult drug courts, the success rate for drug courts— i.e. fewer re-arrests— varied based on whether the cases were felony drug (better) or felony property (worse), or whether the patient offender had three or more prior arrests (one to 5 percent better) or no priors (10 percent worse).

Drug treatment vs. incarceration shouldn’t be an either-or choice.

An addict in prison may still have access to drugs, and hence to the risk of overdose. If substance abusers stay drug-free, but still remains addicted, upon release they are likely to be more vulnerable to a fatal overdose, because they no longer have the tolerance for the drug that they had prior to incarceration.

Beond the problem of how to treat substance abusers in drug courts is the question of who should be tried in them.

Some judges have sentenced offenders guilty of an offense that would normally result in a suspended sentence or parole to drug court, and then locked them up when they almost inevitably failed the program. Recovery is far less likely if participation is coerced rather than voluntary if the offender doesn’t want to quit using.

Some judges also sentence non-addicts to drug court based on a false positive test (confirmed by multiple negative tests), forcing the defendant to plead guilty to a false drug charge or face harsher sentencing. Not even the National Association of Drug Court Professionals thinks non-addicts arrested for drug crimes should qualify.

Stephen Bitsoli

Stephen Bitsoli

And while most drug courts only accept non-violent offender addicts, they may not be the ones who need the help the most. According to a CASAColumbia study, the majority of prisoners who committed property crimes (77 percent) and violent crimes (65 percent) either had a history of or were under the influence of alcohol and drugs when they committed their crimes. Reducing violent crimes and drug abuse seems a worthwhile goal.

Drug courts may be more cost-effective—financially and socially—than prison time, but as currently constituted they have some serious flaws. Evidence-based reform is needed, not the purely punitive solutions of the past.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

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