The Failure of Catch and Release Drug Treatment Court
On the Wrong Shoulders: Defendants Held Accountable for Drug Court Failures
I applaud Janie Wagers for her willingness to speak out about her perception of the drug court’s negligence in her daughter’s death. Families are often stigmatized just as harshly as their loved ones who struggle with addiction, and as a result, many family members become shamed into silence and fear speaking out despite the pain of the injustices they have witnessed.
From listening to numerous mothers tell their stories of losing their addicted children in similarly unjust ways, there is no doubt that Janie Wagers speaks for many more families than hers alone. Wagers has received criticism for her outspokenness by those who misunderstand and therefore stigmatize addiction as moral weakness and mistakenly view relapse as a matter of simple choice.
If addiction was a matter of simple willpower, people would not be destroying their lives—sleeping in the snow and losing limbs, digging through dumpsters for something to sell, going against their own long held values and committing theft or selling their own bodies and souls—all in pursuit of a drug.
I’ve watched my son tearfully apologize even as he’s sprinting out the door toward his next fix one too many times to have a single doubt that what I am observing is the hi-jacking of the parts of his brain responsible for motivation and choice—in other words, what I am witnessing in those moments is a chronic and progressive illness at its worst.
We don’t throw patients with heart disease in jail for relapsing on bacon and cigarettes.
We don’t deny these patients treatment and then blame them when they die. The federal government, various health care disciplines and even the NADCP itself proclaim that addiction is a disease, but they, like society itself, have yet to treat it as such.
If a person with diabetes was shamed, punished and thrown in jail for continuing to eat sweets, and if the “diabetes court” promised the “defendant” treatment, but instead sent her home with no insulin and she subsequently died, we would be appalled at the hatred and callousness of anyone who would dare tell that diabetic defendant’s grieving mother that her child was to blame and the treatment court was not at fault, because after all, it was her daughter’s free choice to eat donuts despite the consequences.
Drug Courts: Slapping a New Façade on an Old, Tired Drug War
In drug treatment courts, the traditional roles of the court staff are abandoned. The judge becomes the leader of a treatment team and prosecutors and probation officers utilize a reward and punishment “carrot and sticks” approach to motivate defendants into sobriety.
Public defenders are either entirely absent or are expected to shirk their ethical obligations as zealous advocates for their clients’ expressed interests, and instead are expected to encourage their clients’ compliance with the whims of the judge. Judges have the ultimate authority as to what types of treatment a participant receives. Judges go so far as to play doctor in many courts, as medications and even their dosages must be approved by the judge, if allowed at all.
Defendants sign contracts to participate in drug treatment court with the understanding that they are expected to maintain abstinence, and with a promise from the court to provide treatment to assist them in doing so. Defendants often have difficulty maintaining their end of the bargain when the drug treatment courts have virtually abandoned theirs.
Participants are often sanctioned to jail for their “failures” despite the more glaring failure of drug courts to offer appropriate treatment, if any at all.
For instance, my son, after multiple “failures” to succeed at self-help outpatient treatment (an inappropriate level of care for a long term, daily heroin user to begin with), was offered a 90-day inpatient treatment program with a medication assisted component in a locked treatment facility. Yet, when he was released from jail he was instead transported to a halfway house with an open door policy located walking distance from an area where street drug dealers are known to frequent.
Given that defendants can be sanctioned and incarcerated, or even evicted from the drug treatment program altogether to face sentencing on a felony if they don’t maintain abstinence, why are drug treatment courts not held accountable to provide appropriate treatment to assist participants in reaching this goal?
With anywhere from 30-70% of participants failing drug courts, are drug treatment courts nothing more than a new façade on an old drug war; one that ultimately funnels low level drug “offenders” into the newest, multi-million dollar, privatized prison?
Drug courts celebrate their 25th birthday in the U.S. this year. They are the darlings of popular media, often applauded for their high rates of success. However the “proof” of this success is deceiving, because the research that the NADCP so proudly touts only examines the outcomes of drug court successes.
These reports focus on the low recidivism rate of drug court graduates and laud this as success and cost savings, while altogether neglecting any mention of the 30-70% of participants who fail to ever graduate (or who die trying). With such incredible success being attributed to drug courts we should be witnessing the growth of a “treatment industrial complex” and a mass movement of prisons being demolished and converted into shopping malls or some other (also) profitable venture.
Instead, the prison industrial complex continues to grow, with a deplorable percentage of its profit coming from the entrenched drug war practice of punishing people for the crime of struggling with an illness.
It is unlikely that drug courts, which receive federal funding and create business for drug monitoring labs, backlogged treatment services, and privatized halfway houses and prisons, will be closing up shop anytime soon, especially when many states contract with privatized prisons to keep beds at full capacity or pay out our tax dollars in penalties.
If nothing more than in the name of profit, never mind humane treatment or compassion, it would (literally) pay to keep my son and others addicted to opiates alive in order to keep the lines—and the dollars—pouring through the doors of the establishments that drug courts refer their “business” to.
Confronting the Mortality Risk and Treatment Failures of Drug Courts
What can drug treatment courts do to begin providing the treatment they promise while addressing the mortality risk they create?
In the face of an opiate crisis, with over 100 deaths per day due to overdose, a rate which surpasses even motor vehicle accidents to make it the top cause of injury death in the United States, drug courts must be held accountable for addressing opiate addiction in a way that minimizes, rather than perpetuates, the mortality risk.
The loose and broad model drug courts employ takes no account of the differences between the various types of addiction. For instance, a person facing cocaine or methamphetamine addiction is not at the same risk of dying if they relapse on the heels of a drug court “flash incarceration” as is someone who is addicted to opiates.
If the “carrot and stick” method of punishment and rewards has any validity whatsoever, at the very least it needs to be administered in a way that does not put at risk the very lives it claims to improve.
“Flash incarcerations” should be viewed as the life risking gamble they are, and should be abandoned entirely where opiate addiction is concerned.
If judges choose to take the role of treatment provider, deciding if, when, and in what amounts their participants receive treatment and medications, then drug treatment court judges should be held to the same standards of accountability that any medical professional would be held to. And, likewise, participants should be allowed recourse when the treatment provided is inefficient, negligent, or endangering.
Even as participants overdose, drug courts, as part of their “evidence based treatment," throw drug users back on the street until they prove to have “failed” outpatient treatment—treatment which often includes nothing more than weekly urinalysis and mandatory 12-step meetings. All drug treatment court participants should receive a complete multi-disciplinary evaluation by trained and licensed addiction professionals to determine appropriate placement along the continuum of care. Previous treatment records should be consulted as well.
Had anyone, let alone an addictions specialist, examined my son’s records from multiple rehab attempts, it would have been plainly clear that outpatient self-help meetings were a grossly inadequate option to address the severity of his addiction and co-occurring mental health issues. Appropriate assessment and referral to treatment may have saved my son from an overdose and increased his chances of successfully completing the “treatment” court program—thereby reducing the likelihood of an expensive prison sentence, the costs of which would be shouldered by taxpayers for a few years and by my son for the duration of his life.
Drug courts also need to utilize treatment for opiate addiction that works. Despite NADCP’s encouragement of the use of medication assisted therapy (MAT), such as methadone and buprenorphine, within the context of drug treatment court, many courts deny their participants this option. For those with long term, chronic opiate addiction, medication assisted therapy can play a key role in providing stabilization to participants and encouraging their recovery and success. If drug treatment courts truly want participants to succeed, it is imperative that they provide them with the appropriate tools to do so.
Most importantly, drug treatment courts should keep their participants alive.
Rather than graduated sanctions remaining a “key component” of drug courts at all costs—costs that often include lives—the more important “key component," namely overdose prevention, should be prioritized.
Overdose prevention must be taught as a key component of drug court treatment, and rather than negligently confiscating naloxone from participants, drug courts must insure that no incarcerated person with opiate addiction leaves jail without naloxone in hand.
Ellen Sousares is a pseudonym for an overdose prevention and harm reduction advocate, a registered nurse, and mother to a son who struggles with heroin addiction.