Barely a day passes on my beat without my meeting someone with a harrowing story about the impact of zero-tolerance drug policies on their lives. But few of these stories have impacted me personally as much as that of a young man I’ll call “Jay.”
Jay was severely injured in a motorcycle accident in August 2017. At 23, he’s handsome and healthy-looking, and a father of two children—but the accident left him paralyzed from the chest down. Jay relies on a catheter, and uses a wheelchair. And the first time I met him, he was several months into daily fentanyl and heroin use.
Jay suffers from Restless Leg Syndrome as a result of his accident, and experiences deeply unpleasant and painful sensations that make it almost impossible for him to sleep at night.
RLS, or “spasticity” when applied more generally to conditions known to cause muscle spasms, is pretty common in patients with severe spinal cord injuries.
Jay receives a prescription for 10mg oxycodone pills from his doctor. This is the lowest dose available, and has done little to relieve Jay’s physical pain, let alone his emotional anguish (which is often overlooked as a reason people use opioids, despite their extreme, if sometimes temporary, effectiveness in this area).
So last summer he began making trips to Kensington—where my own research has suggested that upwards of 80 percent of all street dope contain illicit fentanyl or one of its analogs—in search of something stronger. The dangers of unregulated fentanyl use, with no guarantee of dosage, are clear. But regulated fentanyl is sometimes successfully used to treat spasticity.
Jay’s fiancee, herself only a few years out of high school, had recently moved out of the home they shared, in part due to the pressure that comes with caring for someone in his condition. So Jay now lives alone, in a home he owns, working tirelessly to get disability payments activated while he slowly sells off personal belongings to survive financially. One day it was a snow blower, the next a set of tools. Recently he almost drove all the way to Brooklyn to sell a spare set of rims from his Volkswagen GTI.
On at least three occasions, Jay said, a would-be benefactor took his money and never came back.
It takes an enormous effort for Jay to get himself out of his modified car—behind the wheel of which is the only place I’ve ever seen him—and into his wheelchair. So he’s forced to rely on the services of other users to obtain his illicit drugs whenever he ventures into North Philly for this purpose.
This is relatively common practice; many middle- and working-class users, particularly those with jobs or who are hiding their habit from their family, pay other heroin users to cop for them. This mitigates the risk of arrest, but presents other problems, and it hasn’t always worked out in Jay’s favor.
On at least three occasions, he said, a would-be benefactor took his money and never came back. But by the time we crossed paths he had linked up with one of my longest-running Kensington fixers, “Miz,” who was reliably acquiring fentanyl (frequently mixed with heroin) for Jay almost daily.
One day Miz sent me an emotional text ruminating on Jay’s situation. I shared that text on social media, and it elicited an outpouring of empathy for Jay:
I had no idea how soon Miz would have his answer. Only a few weeks later, on February 8, 2019, Jay had that encounter with police. But it wasn’t in Kensington. Instead it happened 40 minutes away in Upper Bucks County, the middle-class suburb north of Philadelphia where Jay lives.
“I was sitting in my car in the driveway eating some food I just bought and heard a tap on my window and I looked up and saw two police officers there,” he told me. “I thought, what did I do?”
The officers instructed Jay to get out of his vehicle. They then placed him on a stretcher and wheeled him to a waiting ambulance.
Jay was taken to a local hospital, where was initially admitted to the ER due to some wounds on his leg that doctors said needed treatment. Later he was visited by a psychiatrist, who informed him that his father had filled out paperwork seeking to force him into rehab under Section 302 of Pennsylvania’s code, covering mental health procedures and “involuntary examination.”
Jay had no choice in what was about to happen to him, even though he was being accused of no crime and was sitting in the driveway of his own home, on private property, minding his own business, when he was approached by law enforcement.
His story is far from unique.
As the overdose crisis intensified, states began quietly revising their laws to allow for longer periods of commitment with fewer legal hurdles for people who use illicit drugs.
According to a dataset published last year by researchers from Health in Justice Action Lab at the Northeastern University School of Law, by March 2018, 38 states had laws on the books detailing procedures for civilly committing people with substance use disorders.
“A large and surging number of jurisdictions have provisions to deprive people of liberty for substance use.”
The researchers identified 16 states with especially invasive provisions, including the authority to legally restrain, medicate or even conduct surgery on a person they deem to be addicted to drugs—all without the individual’s consent.
“There are a large and surging number of jurisdictions that have provisions to deprive people of liberty for substance use, as a response to the opioid crisis,” said Leo Beletsky, JD, the principal investigator for the project and director of the Health in Justice Action Lab. “The arbitrary legal standards and procedures on these systems leave the door open to abuse, and do not provide patients with evidence-based treatment as a rule, placing patients at higher risk of overdose when they relapse.”
The research demonstrates the ambiguity of many statutes, which vary greatly by state. In some states the bar for compelling individuals into treatment against their will is extremely low.
Take Florida, for example, where an individual with substance use problems can be held for up to 90 days against their will with almost no regard for the principles of due process. A petition can be filed by “any adult with direct personal observed knowledge of the respondent’s impairment,” and must only show probable cause that the individual has “lost the power of self-control with respect to substance abuse” and is “incapable of making a rational decision regarding his or her need for care.”
Probable cause is among the lowest evidentiary thresholds in American jurisprudence. It is frequently invoked, for example, by police to conduct warrantless searches.
Some would see the rise of involuntary commitment as benign paternalism, but there’s nothing benign about it. It takes away basic rights and agency with little realistic legal recourse for the victim.
Even if we set ethics aside, questions of efficacy remain. According to legal experts, an individual can only be treated against their will until they are “better”—in the sense that they are no longer an imminent danger to themselves. While the argument could be made that regularly injecting street fentanyl of unknown potency is like playing Russian Roulette, once the withdrawal period is over, it’s difficult for authorities to justify keeping a person. In that sense, compelled treatment is sub-par even by treatment standards.
“Involuntary commitment gives someone a lifelong marker.”
Addiction experts say this could actually increase risk of overdose, as drug users return to the community without the physical tolerance they had only days or weeks earlier.
“Often what will happen is that people will remain sober through treatment but then rapidly return to use as soon as they are out,” said Kirk Bowden, a certified addiction clinician and former president of the Association for Addiction Professionals.
Meanwhile, detaining a person who has committed no crime—based only on what they might do in the future—has potentially severe long-term repercussions.
“Involuntary commitment gives someone a lifelong marker that interferes with their ability to get health care coverage or own a firearm, and it could prevent them from getting certain jobs, like federal employment,” Mary Catherine Roper, of the the American Civil Liberties Union of Pennsylvania, told me last year. (I was reporting at the time on several new bills in Pennsylvania aimed at making it easier to civilly commit someone for substance use disorder. So far, none of those bills have been signed into law.)
Jay would find one of these consequences especially problematic. A firearms enthusiast, he would be barred from owning a gun for life under federal law, even if he never used drugs again. It’s possible to get a civil commitment expunged from one’s record, but the pathway is onerous, and it could take months or even years to accomplish.
Luckily, an acquaintance of mine who served on the Philadelphia Mayor’s Office Task Force to Combat the Opioid Epidemic noticed my tweet and reached out to her connections at the hospital where Jay had been admitted to check on his well-being. He was doing fine, she said. He was being medicated. Jay also managed to keep his phone and stay in touch with me throughout his almost five-day ordeal.
Finally a psychiatrist visited him and told him that there were no grounds to keep him based on the petition that had been filed by his father. She even listened to him about the beneficial effects fentanyl had on his condition and prescribed him several days’ worth of fentanyl patches. But there were no refills.
I have twice reached out to Jay’s father to ask him for comment on his decision to try to get Jay committed, but he’s yet to get back to me.
Jay is now at home, living in the same way except even more isolated.
When I bumped into him in Kensington several days after his release, he told me he was fast running out of options. His family, including an aunt who occasionally helped him out with money when he was in trouble, had all cut him off.
“I haven’t talked to my dad in nearly a week,” he said. “He won’t return my calls.”
Before he left, he asked me if he could borrow $40.
“My [oxycodone] script is up in a few days. I have a buyer lined up. I can pay you back then, I swear.”