In his 23 years as a Minnesota public defender, Dan Lew has seen a number of drugs cycle through the criminal justice system, often accompanied by dire warnings from public officials.
When he started in the mid-1990s, crack cocaine and the violence associated with it were supposedly the “be-all and end-all” of the criminal justice system, he said. By the early 2000s, methamphetamine and the dangerous labs where it was being manufactured took center stage.
Later, attention would shift to synthetic drugs and the prolonged effort to shut down Duluth’s Last Place on Earth head shop.
Most recently, the deadly effects of a nationwide opioid crisis have grabbed headlines and dominated the attention of police and politicians.
“In each of those, our response has been pretty consistent: more laws, more prosecution, intergenerationally incarcerated families,” said Lew, the Northland region’s chief public defender since 2014.
“It’s been a pretty consistent trend line, and there [are] a lot of fears that today’s substance is the worst of them all—yet what outcomes do we have to show for all our work?” he asked.
“We have 5 percent of the world’s population incarcerating 25 percent of all those incarcerated.”
As officials attempt to combat the growing death toll—with particularly high overdose death rates in Minnesota’s St. Louis and Carlton counties—police, prosecutors, defense attorneys, judges, public health officials, and politicians have found common ground on at least one point.
No matter the drug, the decades-old war-on-drugs approach isn’t going to stop the grip of addiction.
“We know if you use opioids, you have a significantly greater chance of dying. And yet, people use opioids,” said 6th Judicial District Judge Jill Eichenwald, who presides over a Duluth-based drug court. “They are willing to risk death. Why do we think risking prison is going to be some kind of motivating deterrent? It’s just not.”
The solution isn’t simple, and probably won’t come any time soon, officials acknowledge. It will involve a reevaluation of every aspect of the criminal justice system—from enforcement actions to sentencing guidelines to treatment options and much more.
In the Northland, officials are already experimenting with initiatives that break the mold, with a program aimed at steering people away from the criminal justice system and at addressing the needs of those suffering from substance-use disorders—though significant work remains.
“If you keep on doing the same thing over and over and over again, and you keep getting the same results, you’ve got to start looking to other avenues,” said Duluth police Lt. Jeff Kazel, commander of the Lake Superior Drug and Violent Crime Task Force.
“And I think that’s what we’ve done here. We’re thinking outside of the box and looking for other solutions to solve problems. That’s what we do as police—try to solve problems.”
Jess McCarthy knows it can be intimidating for people to hear that she works for the Duluth Police Department.
As the department’s opioid technician, it’s her job to follow up with overdose victims and provide chemical-dependency assessment referrals. But many clients can be skeptical of police because they’ve had unpleasant past encounters, she said.
“At first interaction with a lot of folks, I try and get them to just ignore that line on my email signature for a little bit,” she said. “Because all I am trying to do is help. I am never going to seek out to get anybody in trouble.”
In six months on the job, McCarthy said she’s contacted about 70 people in the community—and more than 25 have gotten into some kind of treatment program with her help.
But McCarthy said she doesn’t coerce people into services or even talking with her. Rather, she seeks a “holistic” approach to help clients set goals that make progress toward treatment, housing, employment, health insurance or other areas of need in their lives.
“Sometimes treatment is not the best option for some people,” she said. “Sometimes all they need is stable housing and their life starts getting back in order. Those people are just as successful as the people who went to treatment.
“And some folks I consider to be successful even if they don’t stop using. They can limit their use and use more safely, and they’re still making progress on their goal.”
McCarthy is part of a changing Duluth Police Department. For more than three years, officers have been trained and equipped with the overdose reversal drug Narcan. The department also added a Mental Health Unit, which consists of two officers and two social workers who frequently address addiction issues on the streets.
Those may not be the traditional tasks assigned to police, Kazel said, but they’re ethically the right things to do. Beyond that, he said it’s fiscally sound policy that serves to reduce the devastating effects of opioids on local communities.
According to Kazel, the drug trade fits the classic supply and demand model. While police have typically targeted the suppliers, agencies haven’t always done much to stem the demand, he said.
“If I can take 15 people out of the demand pool, that’s going to decrease the sales for illicit drugs out in the market,” Kazel said. “It’s not going to be as lucrative for someone to come here and sell. There’s not as many people here to buy.”
‘Three-Legged Stool’ Approach
Duluth Police Chief Mike Tusken advocates for a “three-legged stool” response. The approach recognizes enforcement, treatment, and education as co-equal forces needed to stabilize the issue.
“The war on drugs was started in the Nixon administration, and, interestingly enough, we have no less drugs today than we did back then,” Tusken said.
“The idea of arresting our way out of the problem is really foolish. It cannot change the outcomes of addiction.
“By no means will I ever say that enforcement and limiting the source and supply and taking out the people who are poisoning people in our city is not important, but that can’t stand alone. What do we do about the people who are yet to use drugs? And then, more importantly, what do we do to have the people who are suffering from addiction find health and recovery?”
Tusken said the region has always had an active task force working the enforcement side and made significant strides on the treatment front, particularly with the addition of the Center for Alcohol and Drug Treatment’s opioid withdrawal unit in 2017.
But he expressed concern that the dangers of opioids are not being impressed upon the people who are most vulnerable.
“In this city, I believe we have to do better with our education and prevention,” Tusken said.
“The dollars are tight for the city of Duluth. The dollars are tight for ISD 709 and our schools. And yet, I think there is an opportunity to engage young people in considering the long-term impacts of chemical usage and their health. If there’s any area we need to do better at, it’s there.”
Eichenwald agreed that there should be punishment for dealers who take advantage of the community’s most vulnerable. But many people are simply “ensconced” in the lifestyle of using, sharing, and selling drugs for the sake of their own survival, she said.
The judge said addiction issues persist because people are tribal by nature and tend to cast aside those who are different.
“We cannot function as a society and a community if we’re ‘otherizing’ large groups of people,” Eichenwald said.
Focusing on Neighbors, Not Outsiders
The police department is taking some “incredibly good steps,” Lew said, but he still finds the criminal justice system falling into the same old traps.
He said the people getting charged with selling substances almost always have addiction issues themselves. Nearly every defendant Lew sees has a background marked by childhood trauma and poverty, he said.
“We still struggle with the idea that you’re either a consumer or you’re a supplier,” Lew said. “The world is so much more complex than that. But we can’t move beyond those two boxes. I’m afraid we’ll be having this discussion again in 10 years with a new substance.”
Lew said there remains too much focus on the people who are supposedly coming from outside the community to sell drugs and not on “our neighbors who are consuming this vast quantity of substances.”
“I think we’re starting to look at it more as a public health emergency,” he said, “yet the impulse is still to believe that we can address the public health emergency in the court system.”
St. Louis County Attorney Mark Rubin said it’s important to realize that prosecutors aren’t seeking to make criminals out of people who have an addiction. He said substance use is a driver for many crimes, particularly thefts and burglaries, and that the court system is an important tool in addressing the defendant’s needs.
“It’s the behavior that a person engages in that is criminal—be it selling, be it burglarizing, be it in possession of a drug,” Rubin said. “That’s the criminal act. The reason, in part, might be because somebody has a habit or an addiction. But we don’t criminalize addiction. We criminalize the act that was probably committed many times because of an addiction. So, in the sentence, we try to address the causes.”
But even prosecutors have shown a willingness to help steer some people away from the criminal justice system.
The St. Louis and Carlton county attorney’s offices are among a growing number of jurisdictions that have established pre-charge diversion programs that help some would-be defendants resolve their cases without ever going to court.
Diversion programs allow participants to avoid formal charges by completing a probation-like program, with conditions such as remaining law-abiding and undergoing random drug-testing. For those who successfully complete the program, their records remain clean.
“We’re trying to address this whole problem in today’s society of the collateral consequences of criminal records,” Rubin said. “Some people might say, ‘Well, they should have thought about that before they committed the crime.’ Sure, no argument. However, sometimes they don’t.
“Sometimes they turned their life around and learned from it. Is there anything wrong with giving somebody an opportunity to still be held accountable while providing some type of incentive and reward for making better decisions that makes the community safer?”
Still, Lew said more efforts are needed to prevent another generation of mass incarceration and criminalization.
“We can reduce harm by not charging every single soul in the criminal court and not walking more people down that lifetime of being unemployable, unhouseable, unteachable,” he said.
“That takes some courage.”
EDITOR’S NOTE: As of June 27, there were 62 reported opioid-related overdoses in Duluth, according to police figures. Five of them have been fatal. In more than 75 percent of the overdoses, Narcan was used to revive the victims.
Tom Olsen, a staff writer for the Duluth News Tribune, is a 2019 John Jay/H.F. Guggenheim Justice Reporting Fellow. This is a condensed and slightly edited version of an article in an ongoing series on opioid overdoses in the Northland, produced as part of his fellowship project. The full version is available here. To read all stories in the series, go here.