How the Criminal Justice System has Co-Opted Drug Treatment

Tessie Castillo
Sep 30, 2018 · 7 min read

It was a sweltering summer day and the air conditioner sputtered in the small classroom as I stood up in front of two-dozen very angry cops.

I had just informed the officers that North Carolina had passed a new law protecting people who called 911 to report a drug overdose. In effect, overdoses were going to be treated as medical emergencies and law enforcement would not be able to pursue charges if they found small amounts of drugs or drug paraphernalia at the scene.

“This is bullshit,” said one officer, crossing his arms and leaning back in his chair. Others grumbled in agreement.

I tried to explain that this law would save lives because more people would be willing to seek help for an overdose, but the grumbling only intensified. Finally one cop with a round face and sandy-colored hair addressed me directly.

“Look ma’am,” he said. “I understand the intent behind the law, but tying officers’ hands isn’t going to save anybody. I got parents begging me to arrest their kids because it’s the only way to get them into treatment. This law will keep them away from the one thing that can help them.”

His expression looked earnest, but I had trouble reconciling his sincerity with the weight of his words. The only way to get people into treatment was to arrest them? I could hardly believe it, and yet later, when I looked into the issue, I found he was right. In many areas of the country it is easier to get into treatment through arrest and court order than to walk into rehab off the street.

In the years that followed, I would be confronted again and again with examples of the criminal justice system acting as a de facto treatment center for people with substance use disorders, particularly in regards to drug courts. Drug courts are special programs within the criminal justice system that connect people with substance issues to community treatment centers and other services. The first drug court opened in Miami, Florida in 1989 in response to the influx of people incarcerated for drug-related crimes. The intent behind the program was to offer assistance with treatment and case management instead of merely locking away people with substance use disorders. If participants successfully complete the drug court program, the original criminal charges would be dropped.

Today there are over 3100 drug courts in the United States, and many people have benefited from them. But each court functions differently and some are far from the compassionate, therapeutic environment that they claim to be. Participants can be sanctioned, threatened and thrown back in jail if they don’t comply with the requirements of the program. In addition some drug courts require that participants waive their right to trial and plead guilty to crimes in order to qualify for drug court at all. And in many communities, drug courts sign agreements with local treatment centers to set aside a certain number of beds for their participants (in some cases all of them) so that what the officer had warned me about becomes true — the easiest way to access treatment is through jail.

To learn more about drug courts and community access to treatment, I spoke with Christine Mehta, Research Assistant Professor at Syracuse University, who was part of a team of investigators from Physicians for Human Rights that produced a 2016 report on drug courts.

“People would deny it, but it seemed clear that in some cases if you had the weight of the court behind you, it would bump you up the wait list,” says Mehta. “But even with a court mandate there was a wait and people in drug court would often wait that time out in jail.”

Another issue with drug courts that Mehta pointed out is that sometimes judges and attorneys decide where participants will go for treatment, how long they will stay, and even what kind of medicines will be used to treat them. Having judges and attorneys make medical decisions is particularly problematic for opioid users, where the gold standard for medication treatment, known as medication assisted treatment (MAT) is highly misunderstood and stigmatized outside the substance use treatment community.

There are several different forms of MAT, which help control cravings for illicit drugs and allow the patient to live a normal, functional life. Two of these, methadone and buprenorphine, have decades of research behind them demonstrating their effectiveness. However, although most people use them responsibly, both medications are opioid-based and can be diverted and misused. For this reason, critics of MAT argue that methadone and buprenorphine merely “substitute one addiction for another” and do not consider them valid forms of recovery. Many judges and attorneys sit among these detractors. A study of drug courts in the United States found that while 98% of them reported participants who were dependent on opioids, 44% did not allow participants to take methadone and buprenorphine as part of their treatment regimen.

One pharmaceutical company has capitalized on the stigma within drug courts towards MAT — and is making a killing off it. In 2010, as the opioid crisis was reaching new heights, a small pharmaceutical company called Alkermes won FDA approval to use a new drug, Vivitrol, to treat opioid addiction. Unlike methadone and buprenorphine, Vivitrol is not opioid-based. It blocks opioids from binding on receptors in the body, preventing a high, and comes in the form of a monthly injection. Vivitrol is expensive ($1000 per injection) and not as popular among patients or physicians who prefer the more evidence-based treatment with methadone and buprenorphine.

But Alkermes executives were clever. Since Vivitrol is not an opioid, they decided to tap into the prevalent stigma against other MAT users as “substituting one addiction for another” by claiming their product is non-addictive and has no abuse potential — a powerful selling point for people with pre-existing stigma against MAT users. And what better place to find stigma than within the criminal justice system?

Vivitrol sales representatives started marketing their product to judges instead of doctors with remarkable results. The company sold $30 million worth of Vivitrol in 2011, but $209 million in 2016 — and they are prepping to sell $800 million by 2020. Additionally, Alkermes has dispatched lobbyists to push state and national policymakers to introduce bills that favor Vivitrol, sometimes at the expense of other forms of MAT. Today about 30,000 people are receiving Vivitrol shots, often through drug courts. While Vivitrol may be a viable treatment option for many people, marketing to judges is problematic because it allows non-medical professionals to make decisions regarding a person’s medical care.

Sometimes, the medical recommendations of judges and attorneys are in direct conflict with those of treatment professionals.

“The relationship between treatment providers and the criminal justice system [in drug courts] is set up to be collaborative,” says Christine Mehta. “But it is hard to expect people with conflicting priorities to make decisions that are best for the patient…Most often the prosecutor and judge will come down on the side of punitive action rather than therapeutic solutions for the patient, so the treatment provider is often subtly coerced into putting the interests of the courts in front of the interests of the clients.”

The intrusion of the court system in the therapeutic relationship between patient and treatment provider can take many forms. For example, under normal circumstances, a confidentiality agreement exists between treatment providers and patients. But in drug courts, both providers and patients must sign away these rights as treatment is discussed openly in front of judges, court staff, other drug court participants and even members of the public. Treatment providers are expected to testify in drug court and to provide evidence of patient compliance or non-compliance. This can put providers in an awkward position when they are being asked to testify against a client, which can strain the relationship. Some treatment providers chafe against this. One treatment provider in New Hampshire told Mehta’s team, “It was very difficult to do true treatment and therapy with [drug court] clients because there was this sense that we were going to tell the team and judge, and they would be punished.”

Of course some providers consider the threat of retribution in drug court a benefit to their practice. Denise Tomasini-Joshi, Division Director of the Public Health Program for Open Society Foundations, spent three years analyzing drug courts around the United States. She noted, “If you are not a good treatment provider and have a hard time getting people to come into your program or stay in your program, then drug court is fantastic. Instead of looking at your program and figuring out what isn’t working, you can just call the judge and get problematic clients in trouble. Drug court doesn’t work as well for [providers] who want to do well by their clients because their decisions are often overruled.”

Whatever the benefits of drug court, there are serious concerns about the overreach of the criminal justice system into substance use treatment. Judges should not be making medical decisions for patients. Treatment should not be easier to access through jail than through other routes. And providers should be free to make decisions that reflect the best interest of their patients without interference from the legal system. We need to do better to make substance use treatment affordable, available and coercion-free for people who seek it.

Tessie Castillo

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Tessie Castillo is a freelance writer from Raleigh, North Carolina. She specializes in articles about criminal justice reform, drug policy, and social issues.