It’s Time to Challenge the Narrative About Drug Courts

“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.

Changing the NarrativeHowever, as Katharaine 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):

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.

To Those Considering Counseling for Substance Use

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