The drug court judges I have listened to seem to believe that the people standing before them are making willful choices to engage in self-pleasure, either by over-indulging in alcohol or using illegal substances. They can’t imagine doing this themselves and are outraged that others do. They believe the people possess depravity so pervasive that people “like that” will steal and assault others to get what they want, breaking laws and committing criminal acts.

Drug court judges’ policies seem based on the belief that “bad people” doing wrong can be made to become better and do right through publicly humiliating scoldings, sanctions, punishments, and incarceration. For substance use disorders, that logic doesn’t hold up.

Substance use disorders and addiction are considered a medical illness of the organ of the brain because of the very presence of what drug court judges use to try to “heal” them: adverse consequences.

If people don’t have substance use disorder, the brain is wired for punishment to work. Most people who try substances – up to 80% – don’t like their experiences (consequences) with substance use and quit or only use occasionally after they try them. The 10% of Americans with substance use disorders who don’t quit – literally and medically – have something going wrong with their brains.

Persistence in use despite negative consequences is the defining symptom of the illness. That the criminal justice system attempts to use the symptom of the illness to treat the illness is nonsensical. And results in tragic harm.

If drug court judges understood and acted upon these three facts, I believe the the whole system would be transformed:

1. Substance use disorder/addiction is a medical illness. We’re all out of our league in helping people with it unless we’re medical professionals or are adding adjunctive services to medical treatment plans.

2. Punishment not only doesn’t work and doesn’t help, it hurts. Punishment doesn’t treat medical illnesses. More than 2/3 of people with substance use disorders have experienced punishing trauma already, particularly in early childhood – including the chronic trauma of poverty and economic hardship. Punishment, particularly sanctions and jail time, decreases the likelihood of any desired outcomes by further traumatizing, stressing, and destabilizing an individual’s already stressed and unstable system.

3. Positive urine drug screens a) have a high incidence of being false positive – for some substances, 20% – and b) indicate nothing more than the presence of the defining symptom of the illness: persistence in use despite adverse consequences. Evidence of using substances may indicate an acute phase of the illness or a negligible flare-up. Determining this, and subsequent treatment, support, and/or monitoring, would belong in the realm of medical/clinical expertise, not legal opinion.

“Drug courts, which coerce people into treatment under threat of criminal punishment, continue to expand nationally. But three decades of evidence clearly shows that most drug courts do not reduce imprisonment, do not save money, do not improve public safety and ultimately fail to help people struggling with drug problems.”

– Katharine Celantano

My understanding is that drug court judges compete among themselves for low dropout and recidivism rates.

Drug court judges would improve their stats if they:

1) Quit jailing people for positive urine drug screens. (See New bill could prevent jail time for relapse in Massachusetts, The Daily Free Press, 2/7/19.)

2) Let people have the meds prescribed to them to treat their diagnosed medical illnesses. (See Setting Precedent, A Federal Court Rules Jail Must Give Inmate Addiction Treatment, NPR, 5/4/19.)

3) Use evidence-based treatment for meth misuse and addiction, particularly contingency management. (Please contact me for a copy of my literature review on evidence-based treatment for methamphetamine use disorder.)

Drug courts are increasingly under attack for medical, legal, and constitutional violations. Perhaps tantalizing drug court judges with the power of evidence-based treatment to improve their outcomes might tempt them to allow it.

For further reading

• Here is my full report on drug courts, approximately 4,500 words.
• Here is the commentary on drug courts from Changing the Narrative.
• Here are highlights from my interview with Changing the Narrative on the false beliefs underpinning drug courts.
• Here are some steps one might take to challenge the narrative about drug courts.
• Here is a summary of my findings about drug courts, several of which I referred to in the Changing the Narrative interview.
• Here is the category that contains all the posts on drug courts.

Image: iStockphoto

Anne Giles, M.A., M.S., L.P.C., is a counselor in  private practice in Blacksburg, Virginia.

The views expressed are mine alone and do not necessarily reflect the positions of my colleagues, clients, family members, or friends. This content is for informational purposes only and is not a substitute for medical or professional advice. Consult a qualified health care professional for personalized medical and professional advice.

I was interviewed about the myths and realities of drug courts with Changing the Narrative Webcast host and journalist Zachary Siegel (@ZachWritesStuff ) on Thursday, July 11, 2019.

Here is a link to Changing the Narrative’s Event page. The interview can be found at “July 11: Drug Court Webinar.”

Below is a summary of my introductory and concluding remarks, a link to references, and other follow-up information.

. . . . .

I really appreciate being asking to be a guest on Changing the Narrative’s webcast. It was an honor to meet you, Zach, Leo Beletsky, Sarah Wakeman, Maia Szalavitz, and over sixty other advocates to found this effort to use words about addiction that are supported by facts.

Before we start talking specifically about drug courts, I would like to provide some context.

In the United States, substance use is generally perceived, at best, to be an immoral act of self-pleasuring. At worst, it is perceived as a crime.

These are beliefs, not facts. The fact is that humans have used substances for over 12,000 years. According to research done by the National Institute of Alcohol and Drug Abuse – an unfortunate, stigmatizing agency title, by the way – people use substances for reasons that are meaningful to them. To paraphrase NIDA’s research findings, people use substances to feel better, to do better, to not feel bad, to not feel worse, and to connect.

So, substance use, and possession of substances to use, would be human. Not immoral. And not criminal.

However, beliefs about substance use, and about the people who use them, have generated an increasing number of laws about substance use and possession. Courtrooms and jails couldn’t hold all the people arrested. Many of those incarcerated for drug-related charges were rearrested. To address the high number of people in the legal system and high recidivism rates, an intermediate state was derived. Termed “drug treatment courts,” people arrested on drug-related charges would not be incarcerated but would be mandated to treatment.

The logic makes sense on some level. Requiring people who use substances to receive treatment would certainly seem likely to decrease the number of people in jails and prisons. And it should “fix those addicts” so they won’t be rearrested.

The logic, however, is based on beliefs, not facts, about substance use.

This is important. The people I have talked with who have been involved in founding drug courts actually had the best of intentions. They were trying to keep people with substance use issues out of jail. And they were trying to get them treatment, including medications.

Supporting drug courts, however, is based on a false, belief-based narrative.

One belief is that substance use is bad, period. The reality is that the vast majority of substance use is non-problematic, historic, normal, and human. However, we have established social norms that don’t jibe with human history.

Further, we have these tut-tut norms about some substances and not others. The data is clear but we wouldn’t know this from media coverage: alcohol kills more than twice the number of Americans as opioids.* But we don’t seem alarmed about deaths from the beloved substances we consume openly and plentifully in public.

Nearly 99% of Americans use some combination of the legal, experience-altering substances alcohol, nicotine, and caffeine. If we count food as a substance, over-consumption of food kills many times more than that.* We are arresting and incarcerating some people and not others, for using some substances and not others.

Another myth is that all people choose to use substances. The reality is that when people use substances, experience adverse consequences, then use the substances again and again, that means the brain is malfunctioning. Put your hand on a hot stove burner, your brain tells you to remove it. Put your hand on a hot stove burner, and you don’t remove it? That’s something up with the brain.

Indeed, that is what researchers have discovered. When substance use is repeated again and again despite the person experiencing negative consequences, that is defined as a medical illness involving the organ of the brain. This brain condition currently affects 1 in 10.

We have widespread access to this knowledge now thanks to the release in November, 2016, of Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs and Health.** In this 400-plus page report, the Surgeon General and panels of experts describe the medical condition of addiction and prescribe a three-prong approach to treatment: medical care first, beginning with a visit to one’s primary care physician. Then individual counseling if needed. Medical care and medications may be sufficient. And, finally, again if needed, we can add what the report terms “recovery support services” which includes access to community social services agencies.

The myth that kills is that punishment treats addiction. The reality is that punishment does not treat any medical illness.

In sum, drug courts were founded on beliefs unsupported by science. The facts overwhelmingly demand the elimination of drug courts, not their proliferation.

In mid-2016, before the release of the Surgeon General’s report, Maia Szalavitz wrote in a letter to the editor of The New York Times, “Shame and stigma are the exact opposite of what fights addiction.” I used Twitter to ask her the equivalent of “Well, what does fight addiction?” She replied, “Love, evidence & respect.”

Those three criteria are useful for evaluating any conversation about substances and addiction. Let’s start with drug courts. Does the existence of drug courts, and do drug court policies, embody “love, evidence & respect”?

. . . . .

• Here are some steps you can take to challenge the narrative about drug courts in your locale.
• Here is a summary of my findings about drug courts, several of which I referred to in the interview.
• And here is my full report on drug courts, approximately 4,500 words.

*Sources

• Opioid-related deaths: 35,000 (2015: Source)
• Gun-related deaths: 35,000 (2014: Source)
• Alcohol-related deaths: 88,000 (2015: Source)
• Obesity-related deaths: 300,000 (Source)
• Tobacco-related deaths: 480,000 (Source)

**The Surgeon General’s Report, published in November, 2016, needs these updates:

• In terms of treatment effectiveness, research data does not support inclusion of 12-step approaches or rehab.
• Research does not support inclusion of naltrexone, or extended release naltrexone, as a primary treatment for opioid use disorder, equivalent to methadone and buprenorphine. Further, naltrexone may be contraindicated for those with liver disease and can be associated with depression. According to Buchel et al., November, 2018, “blocking opioid receptors decreases the pleasure of rewards in humans.”

#ChangingTheNarrative

Anne Giles, M.A., M.S., L.P.C., is a counselor in  private practice in Blacksburg, Virginia.

The views expressed are mine alone and do not necessarily reflect the positions of my colleagues, clients, family members, or friends. This content is for informational purposes only and is not a substitute for medical or professional advice. Consult a qualified health care professional for personalized medical and professional advice.

I’ll be talking about the myths and realities of drug courts with Changing the Narrative Webcast host and journalist Zachary Siegel (@ZachWritesStuff ) on Thursday, July 11, 2019 at 3:00 PM EDT. Click here to listen live.

Listeners are invited to type and submit questions through chat. I would welcome hearing from you. For those who can’t listen in real time, the interview will be posted afterwards on Changing the Narrative Events.

I am honored to be interviewed by journalist Zachary Siegel. When I walked into the hotel lobby in Boston on the September, 2018 morning of what became the founding day of Changing the Narrative, I exchanged a friendly smile with a man with a suitcase. I didn’t know him, but just had a feeling. I asked for a ride. Keith Brown said, “We need to wait for Zach.” I asked, “‘Zach’ as in @ZachWritesStuff?!”

Keith drove, Zach sat shotgun, and I leaned forward from the back seat as we headed towards Northeastern University. My jaw dropped as I began listening to the boldest talk about addiction and recovery I’d ever heard. The clandestine knowledge I had in my own head after reading Maia Szalavitz’s book, the Surgeon General’s report, Facing Addiction in America, and conducting exhaustive literature reviews on the research on addiction was spoken of matter-of-factly in the front seat. I offered a few bits about evidence-based counseling for substance use disorders. Nods, not reprimands! Emboldened, I described constitutional, legal, and humanitarian grounds for opposing drug courts. I was astonished to see the “of course” nods in the front seats.

I got tears in my eyes when I saw this photo of Zach, my CTN co-founder and former co-traveler, who was arrested for recording testimony while doing his work as a reporter. Force can be used, both overtly and covertly, to attempt to silence people who seek facts.

“If you see something, say something.” Thanks to the invitation from Zachary Siegel to speak out, I will say many things – and cite sources – about drug courts.

Here is a summary of my findings.

And here is my full report on drug courts, approximately 4,500 words.

If you find facts altering your beliefs about drug courts, here are some actions you might take:

• Attend a drug court hearing. Watch for drug court judges giving medical advice without a medical license – including denial of life-saving addiction and mental health medications – giving mental health advice without a counselor’s license, financial advice without financial adviser credentials, and legal sanctions, including jail time, without an attorney present.
• Go to your state attorney’s office and ask for a copy of the drug court handbook. (In some locales, individuals who have requested copies have been denied them.)
• Take a copy of the drug court handbook to a medical professional not affiliated with drug court or the administrative/treatment provider and ask if the medical components of the handbook meet medical standards of care for people with substance use disorders and co-occurring mental illnesses.
• Take a copy of the drug court handbook to an attorney not affiliated with drug court or the administrative/treatment provider and ask which of the policies, if any, violate constitutional, legal, and/or human rights.
• Take your findings from independent sources to your local government bodies that fund drug courts and ask why this government body is funding a program that violates medical standards of care and/or constitutional, legal, and/or human rights. (Here is the Commonwealth of Virginia’s explanation of the existence and operation of drug courts.)
• Prepare to hear 1) this rebuttal: “I know it works because I’ve seen it work!” and 2) this threat: “Do you want us to throw the baby out with the bath water? Fine, let’s just dismantle drug court and every criminal addict can go directly to jail. They deserve it anyway.”

That’s as far as I have gotten locally. I cannot get stigmatizing language replaced with factual language (the local use of “addicted babies” is systemic). I cannot get heard the facts about effective addiction treatment or rights violations. I am advised to “go slowly” and “build consensus.” Coercive probation and parole, drug courts, jails and prisons are designed to traumatize. With two-thirds of people with substance use disorder already plagued with trauma symptoms, it’s simply inhumane to exacerbate this condition. One more moment of waiting creates manifold suffering now and into the future.

• If your local addiction policy and treatment culture resists reform from within, contact your local public officials, show them the national data, and your local findings. Ask for them to justify the existence of drug courts.
• Consider initiating lawsuits in your state against drug courts similar to these:
  – Setting Precedent, A Federal Court Rules Jail Must Give Inmate Addiction Treatment, NPR, 5/4/19
  – New bill could prevent jail time for relapse in Massachusetts, The Daily Free Press, 2/7/19
  – Jail Ordered to Give Inmate Methadone for Opioid Addiction in Far-Reaching Ruling, The New York Times, 11/28/18

If you do nothing else, ask your primary care physician to give you an observed urine drug screen. Remember that substance use disorder is a health condition. Use of substances is a symptom of that condition. The presence of substances in your urine would simply be indicative of you continuing to have this health condition.

Become aware of what you feel and think while your genitals are watched during an act of biology – a procedure which can be mandated daily, weekly, and monthly for people with substance use disorder. Don’t ask how much the drug screen costs. You’re responsible for the bill, regardless. Become aware of fighting paruresis – difficulty urinating near others – when you realize that the results of this natural act could cause you to get sent to treatment, fired from your job, lose custody of your children, have you arrested, and, possibly, end up in drug court.

#RecoveryMovement #ChangingTheNarrative

The views expressed are mine alone and do not necessarily reflect the positions of my colleagues, clients, family members, or friends. This content is for informational purposes only and is not a substitute for medical or professional advice. Consult a qualified health care professional for personalized medical and professional advice.

Anne Giles, M.A., M.S., L.P.C., is a counselor in  private practice in Blacksburg, Virginia.

Last updated 7/10/19

“We need more drug courts.”

If that statement were true, then participants in drug courts would 1) achieve a set of desired outcomes better than non-participants, and 2) achieve those outcomes through drug court participation better than they would through other methods.

However, as Katharine Celantano reports, “Drug courts, which coerce people into treatment under threat of criminal punishment, continue to expand nationally. But three decades of evidence clearly shows that most drug courts do not reduce imprisonment, do not save money, do not improve public safety and ultimately fail to help people struggling with drug problems.”

Further, the constitutionality, legality, and humanity of drug courts are being challenged at the national level.

Constitutionality, legality, and humanity of drug courts

Among the charges against the criminal justice system are these constitutional, legal, and human rights violations:

• Violation of Eighth Amendment protections against cruel and unusual punishment. Cruel and unusual punishment is evidenced by: 1) denying individuals with opioid use disorder buprenorphine and/or methadone, 2) denying individuals who have been prescribed methadone and/or buproneorphine by medical professionals the right to take these medications; 3) requiring individuals to prove they “merit” buprenorphine by attending counseling sessions before receiving prescriptions; 4) dissuading individuals with opioid use disorder from taking buprenorphine and methadone.
• Violation of the Americans with Disabilities Act. Persons recovering from, or receiving supervised treatment for addiction to alcohol or drugs, are considered disabled individuals according to the American with Disabilities Act. Entities that receive federal funds – including drug courts and community treatment providers – may not treat individuals with opioid use disorder differently from other individuals who are allowed to take medications as prescribed.
• Violation of First Amendment rights. High courts have ruled that 12-step recovery contains sufficient religious content that federally and/or state funded entities mandating participation in 12-step recovery is unconstitutional, whether through mandatory attendance at meetings, or mandatory “working the steps with a sponsor.”
• Fifth and Fourteenth Amendment violations of due process. In the criminal justice system, individuals are sentenced to jail for returning to use – “relapsing”- by judges for displaying the primary symptom of the illness, often without legal, medical, or clinical representation or expertise present.

In addition, drug courts may be challenged on these grounds:

• Malfeasance. Drug courts denying drug court participants medications prescribed and recommended to them by licensed medical professionals could be construed as an act of malfeasance, i.e. a willful and intentional act intended to punish and cause suffering.
• Malpractice. Licensed medical professionals who prescribe according to the policies of drug court may be considered deviating from the recognized “standard of care” and may be subject to malpractice claims.
• Unauthorized practice of medicine. Drug court handbooks list which medications participants may and may not take, even if the medications are prescribed or recommended to them by a medical professional. Drug court judges without medical licenses dictate which medications participants may and may not take.
• Layperson involvement with urine drug screens. Urine drug screens for drug court are routinely administered and read by non-medical professionals. False positive results for some substances can reach 20%. A positive urine drug screen is considered presumptive of innocence, not definitive of guilt, without secondary analysis. Within drug courts, reliance on urine drug screens, and layperson misunderstanding of immunoassay methodology and lack of technical expertise, false incarceration can result from false positives.
• Urine drug screens as presumption of guilt. Without due process and in the absence of an attorney, participants who, according to a layperson’s reading of an unverified, presumptive urine drug screen, test positive for banned or illegal substances, have been deemed to “relapse,” and may receive sanctions or be dismissed from the program and incarcerated.
• Right to informed consent for treatment. Drug courts can issue strictures about participants’ relationships, employment, and living conditions. No individual, or team of individuals, has expertise on another individual’s life. Drug courts’ decisions about what participants can and cannot do that are not part of a co-created treatment plan may compromise a participant’s right to informed consent.
• Wrongful death. Lawsuits on behalf of individuals with opioid use disorder who were denied buprenorphine and died of overdose may be filed by their families, the Department of Justice, and the American Civil Liberties Union.
• Insurance fraud. Entities that bill individuals and referral sources for substance use disorder treatment that includes 12-step content may be committing fraud. Twelve-step content is available for free.
• Treatment protocol malpractice. Entities that offer 12-step-based content in substance use disorder treatment programs may be committing malpractice. Despite decades of research, 12-step recovery has not been found to be an evidence-based treatment for substance use disorder.
• Violation of the Emergency Medical Treatment and Active Labor Act (EMTALA). Given that opioid use disorder has been declared a public health emergency, the denial of buprenorphine by entities able to provide it to individuals diagnosed with opioid use disorder may constitute failure to provide emergency care.
• Violation of laws protecting against sexual violation. Mandated observed urine drug screens constitute an act of sexual violation by non-consensual observation of a person’s genitals during a private act of personal hygiene, with same sex observation recommended but not always required.
• Transparency. Some drug courts, although they receive funding from taxpayers, refuse to provide copies of drug court handbooks to the public.
• “Drug courts cut costs.”  NIDA reports, “According to several conservative estimates, every dollar invested in addiction treatment programs yields a return of between $4 and $7 in reduced drug-related crime, criminal justice costs, and theft. When savings related to healthcare are included, total savings can exceed costs by a ratio of 12 to 1. See Wikipedia’s “Criticism and controversies” in “Drug courts in the United States.”
• “Drug courts offer an alternative to jail.” According to the Prison Policy Initiative (PPI): “Unfortunately, many mental health and drug courts set participants up to fail, and therefore function more as drivers of incarceration than as alternatives to it. For example, the medical gold standard for opioid dependence treatment is medication-assisted treatment. However, half of drug courts do not offer medication-assisted treatment. Furthermore, although the medical community understands that relapse is often a normal part of recovery, many drug courts require abstinence and punish relapse with incarceration. In order to be effective, drug courts and mental health courts must offer evidence-based treatment in line with medical best practices.”

Drug court journalism

Those seeking citation-rich writing on drug courts might find these articles of interest (most recent first):

• Probation Officers Should Never Direct Medical Care for People With OUD, Filter, 6/6/19
• When treatment means punishment, San Francisco Bay View, 5/13/19
• Exclusive Investigation: The Power and Prejudice of DAs on Drugs, Filter, 11/1/18
• How the Criminal Justice System has Co-Opted Drug Treatment, Medium, 8/29/18
• ACLU Sues Jails for Withholding Life-Saving Addiction Treatment Drugs, Filter, 8/24/18
• How Drug Courts Can Respond to the Opioid Crisis, The Crime Report, 4/12/18
• Expanding drug courts won’t help ease the opioid crisis, Stat, 11/1/17
• How America Overdosed on Drug Courts, Pacific Standard, 5/18/15
• Reevaluating Drug Courts: No Mother Should Have to Go Through What I Did, Huffington Post, 7/29/13
• Want to Go to Drug Court? Say Goodbye to Your Rights, Reason, 8/17/12

Drug court participants as sources for journalists

The majority of drug court participants used as sources by journalists are under coercion, especially at drug court “graduations.” “Graduation” is a public formality with participants usually still under the control of the criminal justice system through probation or parole. Participants cannot afford to offend the drug court judge or members of the drug court “team” for fear of further sanctions or delays. At graduation, they need to thank the judge and the team members for “saving my life.” They are required to draw conclusions from a sample size of one: “If not for drug court, I would have _______.”

To elaborate, since participation in drug court is considered “voluntary” – a forced choice of drug court or jail – participants with complaints are reminded that if they don’t “like” the program, they are welcome to leave it and serve their jail time instead. There is a grievance/complaint procedure, but a participant runs the risk of dismissal from the program for appearing “ungrateful” for the “opportunity” provided by drug court.

Even once participants have received documentation that their sentences have been served, most realize they may have a chronic condition and dare not speak out about injustices and privations suffered at the hands of drug court, given the likelihood they may have contact with the criminal justice system again. For their own protection, they need to stroke the egos of all involved in the hopes that the next contact will be mildly paternalistic rather than severely punitive.

Why don’t drug courts “work”? Because health conditions respond to treatment, not punishment. Please see my full report on drug courts.

I am a member of a network of reporters, researchers, academics, and advocates concerned about the way media represents drug use and addiction. The mission of Changing the Narrative, a project of the Health in Justice Action Lab of Northeastern University School of Law, is to help journalists report accurate, humane and scientifically reliable stories about this complex and often misunderstood terrain. Changing the Narrative’s resource site launched June 10, 2019. Here is the press release.

If I can be of assistance, please feel free to contact me.

Anne Giles, M.A., M.S., L.P.C., is a counselor in  private practice in Blacksburg, Virginia.

The views expressed are mine alone and do not necessarily reflect the positions of my colleagues, clients, family members, or friends. This content is for informational purposes only and is not a substitute for medical or professional advice. Consult a qualified health care professional for personalized medical and professional advice.