Changing the Narrative: 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.

The following discussion attempts to change the narrative about drug courts.

Reading time approximately 20 minutes

Defining terms

“Addiction” and “substance use disorder” are used interchangeably by scientists and journalists.

As of July, 2018, according to NIDA:

“Addiction is defined as a chronic, relapsing disorder characterized by compulsive drug seeking and use despite adverse consequences. It is considered a brain disorder, because it involves functional changes to brain circuits involved in reward, stress, and self-control, and those changes may last a long time after a person has stopped taking drugs.”

Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs and Health, published in November, 2016, is a summation of the science of addiction for general readers. From Page 4-1:

“A substance use disorder is a medical illness characterized by clinically significant impairments in health, social function, and voluntary control over substance use.”

We are all people.
Implications for treatment

Based on these research-derived definitions, providers of treatment for addiction would need expertise in treating brain disorders and medical illnesses. Addiction treatment advisories given by those without medical expertise could be construed as the unauthorized practice of medicine.

Further, any claims to providing treatment for addiction would require providing medical care. Indeed, The Surgeon General’s Report defines first-line treatment for addiction as medical care and medications, then counseling if medical care does not result in adequate symptom reduction, and support for achieving stability, including social support.

Employees of the criminal justice system rarely have medical training, and even more rarely at the level required to treat brain disorders. Those who lack sufficient expertise to treat addiction would include most judges, drug court judges, probation and parole officers, police officers, and employees of jails and prisons. Rarely, too, do employees of the “addiction treatment providers”who partner with the criminal justice system have this level of specialized medical training.

“Drug courts” – also termed “treatment courts” – were founded to provide treatment to nonviolent offenders with drug-related charges.

Drug court participation is offered in place of jail time. Participants must enter guilty pleas or plea bargains, sign away rights, undergo mandated treatment and court supervision, and “voluntarily” agree to abide by drug court policies.

For no other health condition would this list of drug court sanctions and controls be considered components of a medical treatment plan.

Participants in drug court must abstain from substances. Yet, the defining symptom of addiction is persistence in use. People with medical illnesses who receive treatment may still display symptoms of those illnesses. It is the nature of medical illnesses to defy human volition.

Mandated abstinence creates a case of double jeopardy: If participants were symptom-free of the illness for which they are in “treatment court,” i.e. if they had been able to exert voluntary control over use and abstain, they would no longer need treatment. Drug court participants are jailed repeatedly for producing urine drug screens positive for substances, i.e. for continuing to display the defining symptom of the medical illness for which they are in treatment.

For example, drug court judges incarcerate drug court participants with methamphetamine use disorder for returning to use.

However:

“Multivariate binary regression models run for the amphetamine-using participants [in drug court] being employed and being a parent as predictive of successful completion of the program, whereas being sanctioned to jail during the program was inversely related to program completion.”
– Wu et al., Predicting drug court outcome among amphetamine-using participants, Journal of Substance Abuse Treatment, 6/2/12

If punishment worked to “cure” addiction, the trauma, humiliation, jail time, and expense of a single arrest would suffice for the vast majority.

Hence:

“Drug courts, therapeutic justice programs for individuals charged with drug offenses, have sub-optimal completion rates.”
– Jones, et al., Order in The Court? The Association Between Substance Use, Exposure to Violence, Risky Sexual Behaviors & Observed Court Behaviors Among Women Involved in the Criminal Justice System, Journal of the National Medical Association, April 2019

Attending drug court hearings

In essence, drug court policies and drug court judges’ actions stem from the belief that addiction is a moral and criminal choice, not from the findings of science that addiction is a medical condition.

Journalists who attend drug court hearings may see drug court judges attempting to persuade or force people with the medical illness of substance use order to “make better choices.” Journalists may witness drug court judges subjecting American citizens to medical protocols without a medical license – including denial of life-saving addiction and mental health medications – personal advice without a counselor’s license, financial advice without financial adviser credentials, and legal sanctions, including jail time, without an attorney present.

Drug court handbooks routinely mandate which medications participants may and may not take. Locally, drug court handbooks – for which there is no public access – have “banned substances” lists including many cold medications, mouthwash and hand sanitizer containing alcohol, and foods with poppy seeds. Participants with banned substances in their urine risk sanctions that may include essay-writing, additional community service hours, and jail time.

Return to substance use, therefore, may be perceived as direct defiance of a judge’s orders to abstain, a personal insult against a judge, and therefore deserving of a harsh sentence – first for “being an addict and a criminal” – then with time added for “disrespecting” the judge.

This is an exchange I witnessed at a local drug court hearing that ended in dismissal of a participant:

Attorney: “These positive drug screens are due to her addiction, correct?”

Judge: “No. They are due to her continuing to use drugs. Addiction is there. But she continues to use drugs.”

Challenging the constitutionality, legality, and humanity of drug courts

At the national level, the U.S. Department of Justice’s Civil Rights Division has begun an initiative to remove discriminatory barriers to treatment for those in the criminal justice system.

“There is limited scientific literature evaluating compulsory drug treatment. Evidence does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms. Given the potential for human rights abuses within compulsory treatment settings, non-compulsory treatment modalities should be prioritized by policymakers seeking to reduce drug-related harms.”
– Werb et al., 2015

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 Americans 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.

Recent reports on related legal cases (most recent first):

Further potential lines of inquiry

  • 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, unmerited 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.
  • Lack of trauma-informed programming. More than 2/3 of people with substance use disorders have experienced trauma, particularly in early childhood – including the chronic trauma of poverty and economic hardship . Research in 2019 on the Nashua, New Hampshire drug court found that, “On average, 12.5% of the population have a score of four or more [adverse childhood experiences {ACEs)].We’re finding in our research that people coming into our [drug court] program is more around 75%.”
  • “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 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 Celentano, When treatment means punishment, San Francisco Bay View, 5/13/19

Drug court journalism

Journalists who seek citation-rich writing on drug courts might find these articles of interest (most recent first):

Research on drug courts

The summative guide to the research on drug courts up to mid-2017 is Neither Justice Nor Treatment: Drug Courts in the United States, Physicians for Human Rights, 6/15/17.

Here are key excerpts:

“The criminal justice objectives of drug courts often overrule the medical needs of the patient in ways that threaten the rights and health of participants…some drug courts require total abstinence from substance use, including prescribed medications, and refuse to allow medication-assisted treatment, despite the fact that treatment for opioid use disorder often requires long-term medication. Such approaches are counterproductive and unsupported by evidence.”

“Among its recommendations, PHR [Physicians for Human Rights] urges federal and local officials to enact clearer standards for drug courts, [and] defund drug courts that disallow medication-assisted treatment.”

“‘The U.S. federal government has historically failed to adopt harm-reduction strategies in place of draconian criminal justice methods that treat substance use disorders as crimes,’ said PHR’s Dr. Venters. ‘In such a climate, drug courts and other diversion programs must be reformed and backed up by sound science. As it is, the United States is pushing overly-punitive, dysfunctional drug policies that are harmful to health and human life.'”

Several reports can be downloaded from the Neither Justice Nor Treatment: Drug Courts in the United States, Physicians for Human Rights page.

Commentary on the report by one of its authors can be found here and here.

In 2011, the Drug Policy Alliance issued Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use.

In 2009, the National Association of Criminal Defense Lawyers issued America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform.

Problems with most drug court research

The primary focus of research on medical treatments is whether or not the protocol results in reduction of symptoms or in remission from the condition. The primary focus of drug court research is recidivism, i.e. the measure of whether or not participation in drug court reduces the number of future contacts with the criminal justice system.

In addition to its astounding focus on criminal justice system outcomes – rather than personal or public health outcomes – the first problem with drug court research is selection bias. Drug court participation is not open to all individuals in the criminal justice system. Participants are pre-selected based on each one of an estimated 3,000 drug courts’ eligibility criteria. Therefore, each drug court’s participants are not representative of the population intended to be analyzed, i.e. people in the criminal justice system with substance use disorders and/or mental illnesses.

Pre-selection is intentional, as evidenced by this excerpt from the National Drug Court Institute template for drug court program design:

TARGET POPULATION
Those offenders with characteristics, which the treatment court team has identified, to involve in the treatment court program. Include the risk and need level for target population and include the incentive (“carrot”) to enter the program. Describe in this section the name of the risk assessment instruments used to determine risk. Identify what risk level does your program accept (i.e. high risk or low risk), include this is based upon the risk instrument including the scoring guideline. For example, eligible clients must score between a 20 and higher based upon the LSCMI risk assessment tool. Identify and describe the risk instruments that are used. Likewise, write out eligibility based upon needs. For example, based upon DSM-5, we accept people who are moderate to severe. Describe in the section the name of the validated assessment instruments used.

(More about the Level of Service/Case Management Inventory (LS/CMI) is here.)

The second problem with drug court research is that completion rates often do not include dropouts. If x% of people who enter drug court drop out, of the remaining individuals (total – x%), if only y% complete the program, “success rates” are significantly reduced.

Example:

100 people enter drug court.

Claim: 50% graduation success rate would equal 50 people.

Correction: If 20% drop out, of the remaining 80 people, a 50% graduation success rate would equal only 40 people.

A third problem with drug court research is that drug court programs are not uniform and each is highly controlled by individual drug court judges. For example, if an individual drug court judge is opposed to medications, no drug court participants are allowed to have them. Each drug court is the equivalent of a case study. Therefore, research reporting on one jurisdiction’s drug court population cannot be generalized reliably to apply to other drug courts’ populations.  “Despite the widespread use of the drug court model, standardized performance measures for drug courts are not uniformly utilized, and rarely include process measures,” reports B. Henry in Improving the Quality of Drug Court Clinical Screening: A Call for Performance Measurement Policy Reform, Criminal Justice Studies, 7/3/18.

An examination of template documents for establishment of drug courts from the National Drug Court Institute, the training arm of the National Association of Drug Court Professionals, reveals outlines, nearly devoid of content or guidance.

A fourth problem with drug court research is research design. To truly test the efficacy of drug courts in achieving desired outcomes, a clinical trial would require subjects to be assigned to these groups: 1) drug court only, 2) medical care, and other evidence-based treatment (EBT) only, 3) drug court + EBT, and 4) neither drug court nor treatment. Such a ghastly research design – already underway in America’s homes and on its streets – is considered unethical for human subjects research.

Post-2017 drug court research

With those caveats, here are highlights of research findings since the mid-2017 publication of Neither Justice Nor Treatment: Drug Courts in the United States, Physicians for Human Rights (most recent first):

“Using three time points, our findings indicated that MAT [medication-assisted treatment for opioid use disorder] did not play a significant role in the reduction of substance use, risky behaviors, or mental health symptoms or increasing the odds of successful court graduation. However, there was an overall improvement from intake to termination in reduction of substance use, risky behaviors, and mental health symptomatology. Other factors, including social support, may play a role in drug court graduation.”
– Baughman et al., Evaluation of Treatment and Other Factors That Lead to Drug Court Success, Substance Use Reduction, and Mental Health Symptomatology Reduction Over Time. International Journal of offender therapy and comparative criminology, 7/30/18

(About the Baughman study, a lengthy Twitter discussion occurred among medical researchers,  medical providers, and journalists cognizant of addiction research questioning the number of subjects, selection bias, and/or absence of consideration of dropouts.)

“Examining any two-year post-program recidivism (defined as an arrest, conviction, or incarceration), over one third (37.6%) of graduates and almost all program terminators (95.3%) had two-year post-program recidivism ( p < .001). For the overall sample, age, outpatient treatment, marital status, number of times treated for a psychiatric problem in a hospital, substance use (i.e., past-30-day cocaine use and intravenous opiate use), number of positive drug tests, and receiving any sanction/therapeutic response were associated with two-year post-program recidivism.”
– Shannon, et al., Examining Individual Characteristics and Program Performance to Understand Two-Year Recidivism Rates Among Drug Court Participants: Comparing Graduates and Terminators, International Journal of Offender Therapy and Comparative Criminology, 4/1/18

Potential ethics violations by treatment providers

Giving medical advice. Research has concluded that addiction is a medical condition. Counselors who make recommendations for medications, or to allow or disallow medications, may be violating the American Counseling Association’s Code of Ethics.

Recommending naltrexone or extended release naltrexone (Vivitrol) for opioid use disorder. For opioid use disorder, extended release naltrexone (Vivitrol) has been recommended in place of buprenorphine and methadone by a) counselors (non-medical professionals), b) non-prescribing medical professionals, and, c) prescribing medical professionals. Extensive research literature exists that reports, for most people with opioid use disorder, naltrexone is an inferior treatment compared to methadone and buprenorphine. Numerous media reports reveal Vivitrol’s manufacturer, Alkermes, has marketed Vivitrol directly to drug court judges and others associated with the criminal court system. Naltrexone locks receptors damaged by opioid overuse in their damaged state, relegating the person to suboptimal perception of pain and limited experience of positive feelings. Naltrexone does not treat the problems of craving, withdrawal, or depression. Naltrexone is contraindicated for patients with symptoms of depression. Naltrexone may cause liver damage, contraindicated for substance use disorder patients with co-occurring hepatitis C. See: Comparing medications to treat opioid use disorder, Harvard Health Blog, 1/3/18.

Indented sections are from the American Counseling Association’s Code of Ethics:

C.7.a. Scientific Basis for Treatment
When providing services, counselors use techniques/procedures/modalities that are grounded in theory and/or have an empirical or scientific foundation.

C.7.c. Harmful Practices
Counselors do not use techniques/procedures/modalities when substantial evidence suggests harm, even if such services are requested.

Performing urine drug screens. Counselors who perform urine drug screens may be violating the American Counseling Association’s Code of Ethics. Research data does not support the use of urine drug screens as an effective technique/procedure/modality for achieving desired treatment outcomes.

C.7.a. Scientific Basis for Treatment
When providing services, counselors use techniques/procedures/modalities that are grounded in theory and/or have an empirical or scientific foundation.

Urine drug screens are experienced by many individuals as a harmful violation of their rights to personal and corporal privacy.

A.1.A. Primary Responsibility
The primary responsibility of counselors is to respect the dignity and promote the welfare of individuals.

C.7.c. Harmful Practices
Counselors do not use techniques/procedures/modalities when substantial evidence suggests harm, even if such services are requested.

Urine drug screen results are often read by counselors and others untrained in immunoassay. Individuals are deemed to have “relapsed” according to unqualified readings of urine drug screens. Reportage by counselors of findings to the criminal justice system and medical professionals may be required, and individuals can experience probation and/or parole violations, a return to jail or prison, and a loss of life-saving medication based on those untrained readings.

E.2.a. Limits of Competence
Counselors use only those testing and assessment services for which they have been trained and are competent.

E.3.b. Recipients of Results
Counselors consider the individual’s and/or examinee’s welfare, explicit understandings, and prior agreements in determining who receives the assessment results.

E.4. Release of Data to Qualified Personnel
Counselors release assessment data in which the individual is identified only with the consent of the individual or the individual’s legal representative. Such data are released only to persons recognized by counselors as qualified to interpret the data.

E.9.b. Instruments With Insufficient Empirical Data
Counselors exercise caution when interpreting the results of instruments not having sufficient empirical data to support respondent results. The specific purposes for the use of such instruments are stated explicitly to the examinee. Counselors qualify any conclusions, diagnoses, or recommendations made that are based on assessments or instruments with questionable validity or reliability.

Counselor-executed evaluations via urine drug screens violate the counselor-individual relationship and counselor-individual boundaries.

E.13.c. Individual Evaluation Prohibited
Counselors do not counsel individuals they are evaluating.

Challenging the narrative

After reading the above, journalists might feel equipped to assess these claims from the National Association of Drug Court Professionals:

“Treatment courts are the most successful intervention in our nation’s history for leading people living with substance use and mental health disorders out of the justice system and into lives of recovery and stability.”

“Treatment courts prove that providing supervision, structure, and evidence-based treatment was a far more successful approach to substance use and mental health disorders than punishment.”

“Instead of viewing addiction as a moral failing, they view it as a disease. Instead of punishment, they offer treatment. Instead of indifference, they show compassion.”

“Together, treatment courts have saved over 1.5 million lives and billions of dollars.”

Drug court participants as sources

This is my informed opinion, based on my research and experience, but it is not backed by research.

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. 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 paternalistic rather than punitive.

If I can be of further assistance, please contact me.

Last updated 10/3/19

Anne Giles, M.A., M.S., L.P.C., is a counselor in  private practice in Blacksburg, Virginia. She can provide counseling and consultation services to residents of Virginia only. 

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.