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The Failure of Catch and Release Drug Treatment Court

My son's experience of drug treatment court highlights a system that misunderstands addict psychology with fatal results.

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By Ellen Sousares

07/08/14

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At least if he’s in jail, I know he is safe, I thought, desperately, as I accepted the collect charges from my son. I’m not sure if it was his fourth or fifth incarceration since he’d entered the drug treatment court program—I’ve lost count of the seven to 14 day sentences he has “served” for his disease in the last four months (not to mention the associated fees).  

Four months ago (six years into his addiction) my son was arrested on his first felony charge for possessing what amounted to two single doses of heroin for personal use. He was held for seven to 10 days and then seen by a drug court judge who offered to reduce the charges to a misdemeanor if he successfully completed a drug court treatment program.

Naturally, I was ecstatic—Finally! Help! I thought. However, the drug court’s first play at “treatment” was to release my son—a long term, daily heroin user in a chronic state of addiction—to the streets, on his own accord, with instructions to return another day to meet with his probation officer.  

My hope crumbled into horror.

What the court failed to consider is that my son struggles with a severe, life threatening disease which hijacks the same parts of his brain that are responsible for motivation and choice—a disease that produces cravings that speak to the same parts of the brain that stimulate him to breathe, or to feel hunger and eat. Who of us, if locked starving in a cage for a week, would not eat the first edible thing we laid eyes on the moment we were released?  

It was no startling or unanticipated surprise when he relapsed and missed his probation appointment. Conversely, the most startling occurrence in this sequence of events was that the same court that expects my son to remain abstinent under the threat of a felony conviction, did nothing to assess the severity of his addiction and to provide the treatment it promised.   

Within days, my son was apprehended on a warrant for failure to appear, and the near deadly cycle of punitive catch and release began. Rather than sending him to inpatient treatment when he was apprehended for a second and a third time, the drug treatment court, following its standard protocol, repeatedly released my son to the street.  

On his third or fourth drug court hearing, after being incarcerated for 10 days for failure to make his probation appointment yet again, the court probation officer inquired of the judge, “Should we roll the dice on this one?”

My son’s life was then reduced to a gamble, and he was placed at an unfair disadvantage to inevitably wind up on the losing end. With a low drug tolerance and a high risk for overdose—brought on by 10 squandered days of detainment with no treatment—my son overdosed on heroin just hours after he was, once again, released from jail. 

In the midst of my excitement at a possible solution, and along with the chaotic daily landscape that parents with addicted children often live in, I had obviously neglected to do my homework on drug courts. Within a few short weeks of my son entering drug treatment court, serious questions and concerns arose about this program that my son, with a felony hanging over his head if he fails, is now committed to.  

And although it is apparent, as is the case with most forms of treatment, that drug court is very effective for those for whom it works, most of what I’ve discovered about this method of “treatment-meets-punishment” has left me just as anxious about my son’s safety and access to appropriate treatment as I was when he was lost to the streets. 

Graduated Sanctions: A Deterrent to Drug Use or a Life-Risking Gamble?

“Flash incarcerations,” or short jail stints such as those sanctioned against my son shortly before he overdosed, are widely used within treatment courts as a method to deter participants from further drug use. The National Association of Drug Court Professionals (NADCP) refers to this practice as “graduated sanctions” and hails it as an “evidence based practice” and one of “10 Key Components” for an effective drug court.  

The evidence for the effectiveness of sanctions, as well as drug courts in general, is a hotly debated topic between NADCP and other groups who prefer a health centered approach to the disease of addiction, such as the Drug Policy Alliance and the National Association of Criminal Defense Lawyers. There is limited research on the effectiveness of graduated sanctions within drug courts, and virtually no research on the correlation between overdose and flash incarceration.  

No information was found on the overdose risk these sanctions create on either the NADCP website or its sister educational site National Drug Court Institute (NCDI).  Also, aside from a link to SAMHSA’s overdose prevention toolkit, I found no mention of overdose prevention assessment or planning within drug courts on the NADCP site.  

However, overdose is no stranger to drug treatment courts, even within the courtroom itself. Yet, when a drug court juror overdosed in a Boston courtroom in March, it was a community member, from the community based organization Learn to Cope, who happened to have the naloxone in her purse that saved a life in the courtroom that day. 

My son was fortunate to have survived his post-incarceration overdose, unlike others struggling with addiction who have died from overdose shortly after being released from incarceration.  

A Lack of Appropriate Treatment Leaves a Family Grieving 

On April 2nd, 25-year-old Tasha Riley of Marion, OH overdosed within two weeks of being reassigned from prison to drug treatment court. Riley had written her sister from prison saying, “My judge is wanting to judicial me out in 30 days. He is wanting me to do drug court and I guess that is an 18 month program. I’m better off doing my time and get[ting] out without papers.”  

Riley’s mother, Janie Wagers, says her daughter wanted to stay in prison because she knew she was still at risk of relapsing and had not had enough time in a structured environment. Nonetheless, she was enrolled in treatment court and in a period of two weeks, according to her mother, Riley tested positive for drugs twice.   

Wagers stated that the drug court took no action to intervene after her daughter tested positive for drugs, such as mandating inpatient treatment or dismissing her from the program and returning her to incarceration. Enrolled for merely two weeks in drug treatment court, and just hours after her 2nd positive drug test, Tasha Riley overdosed on heroin and died, leaving behind three children under the age of eight.

Marion County judge Jim Slagle, who created the drug treatment court last year, flatly denied that Riley had ever tested positive for drugs.

Relapse is a frequently occurring symptom of addiction—and relapse for people addicted to opiates carries a high risk of mortality and morbidity. Even with just a few days of abstinence, an addicted person’s tolerance for opiates is dramatically decreased. Much less of the drug is needed to create the same effects, and resuming drug use at prior levels can flood opiate receptors in the brain’s respiratory center and quickly lead to overdose. It is common knowledge within the drug treatment community that the highest risk of opiate overdose occurs when a person has had a period of abstinence, such as during treatment or incarceration.  

The drug court “key component” of graduated sanctions, which shuffles participants in and out of jail, sometimes in a weekly cycle of “catch and release,” can have devastating and deadly consequences from the repeated overdose risk it creates—consequences that Tasha Riley’s three children and the rest of her family and loved ones must now live with on a daily basis.

Why drug treatment courts do not assess and intervene on the overdose risk generated by “flash incarceration” is a perplexing and troubling question—one that deserves to be addressed with the same life and death urgency that this risky practice creates.

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.

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