One of the nation’s oldest involuntary commitment laws designed specifically to target people who use drugs is facing a court challenge in Kentucky. The Matthew Casey Wethington Act for Substance Abuse Intervention—shortened as “Casey’s Law”—was enacted in 2004 and remains one of the primary models for similar statutes in other states. It was adopted in Ohio in 2012, and advocates have pushed for its expansion nationwide.
It’s being challenged in Kentucky on the grounds that it violates the First Amendment, as well as a person’s constitutional right to due process and equal protection under the law. The suit was brought by the Kentucky Department of Public Advocacy, the state’s public defender office, on behalf of an unnamed client in late June.
The complaint is currently sealed, making it difficult to ascertain the details of the case. (Filter reached out to the Kentucky Department of Public Advocacy for comment; this article will be updated if they respond.) But the constitutional ramifications of civil commitment for drug use have echoed through many states and cases.
Over the past decade, civil commitment laws have taken off—an unfortunate consequence of the evolving national conception of addiction as a “disease.”
While all states have procedures for committing individuals to psychiatric care if they are perceived to be violent or in imminent danger of hurting themselves, until recently these laws did not typically apply to substance use cases, which were frequently the domain of the criminal courts.
Over the past decade, civil commitment laws have taken off—an unfortunate consequence of the evolving national conception of addiction as a “disease” over which sufferers have no agency. 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, 37 states and the District of Columbia had laws on the books detailing procedures for civilly committing people with substance use disorders. Most of the statutes were enacted or expanded between 2015 and 2018, at the height of the overdose crisis.
The Kentucky law’s namesake, Casey Wethington, died in 2002 of a heroin overdose. He was 23 at the time. After his death, his mother, Charlotte Wethington, began strongly advocating for a law to provide an avenue to force people with substance use issues into treatment—even those who are not charged with a crime. In 2004, the law was passed unanimously by the Kentucky Senate and 94-1 by the House, although according to a study of its use in Kentucky, it was rarely invoked prior to 2014.
Charlotte Wethington described her reasoning in a 2017 blog post:
“The reality is that everyone using an illegal substance has committed a crime. People driving drugged have committed a crime. Many, like Casey, are never incarcerated and ordered to treatment, dying before their arrest. Casey’s Law is the intervention that can come before the crime and an untimely death.”
No one would wish to unduly criticize a bereaved parent, but the problems with this framework of criminalization and paternalistic control—the very opposite of a harm reduction approach—are evident. It falls into the category of punishing people for behaviors that are not crimes; while possessing drugs may fit the bill, simply being someone who uses them is not a prosecutable offense.
Under Casey’s Law, a friend or family member of the impacted person can petition for up to 360 days of forced treatment for a person who is:
“suffering from alcohol or other drug abuse who (1) presents an imminent threat of danger to self, family, or others as a result of alcohol or drug abuse, or there is a substantial likelihood of such a threat in the near future, and (2) can reasonably benefit from treatment.”
The committed person is granted an evaluation and the right to appeal a decision. They can be held at any certified treatment facility, with the cost paid by the petitioner (not the state).
The Kentucky challenge is currently being argued before the state Court of Appeals. Attorney General Daniel Cameron insists the law is constitutional. “Casey’s Law is critical to Kentucky’s ongoing fight against the drug epidemic, and we are doing everything in our power to defend it in court,” he said in a July 1 statement. “With a rise in illicit drugs like crystal meth and fentanyl, Casey’s Law is an important intervention.”
Studies show that forced treatment is frequently ineffective, and fraught with ethical issues.
But efficacy—even if we were to accept that doubtful premise—does not imply that something is ethical or legal. Even if a tactic worked 100 percent of the time, that wouldn’t make it constitutional. Studies show that forced treatment is frequently ineffective, and fraught with ethical issues.
In other states the legal hurdles to involuntary commitment are even lower than those required by Casey’s Law. In Florida, for example, anyone with direct knowledge of a person’s drug use can file a petition—from a disgruntled ex to an angry neighbor—with no more direct evidence than probable cause.
Beyond the basic ethics of involuntary confinement per se, conditions are another factor. In Massachusetts, for example, civilly committed people—whose confinement may be requested by a police officer, among others—are held in facilities at prisons or jails. This has resulted in at least one lawsuit, as Filter has reported. Harm reductionist and Filter contributor Jesse Harvey was held in a jail treatment program earlier this year, and responded to his detention by going on hunger strike.
Given the sensitive nature of such decisions, it’s hard to pin down just how often laws like Casey’s Law are applied; even in Kentucky, application varies greatly by county. But beyond statistics are so many human stories of suffering and harm.
In February 2019 I wrote for Filter about a paraplegic man I called “Jay,” who found himself surrounded by police in his own driveway one afternoon as he ate lunch. Without other options, Jay had taken to using illicit fentanyl he bought in Kensington, Philadelphia to mitigate the lingering effects of serious injuries sustained in a motorcycle accident.
I learned late last year that Jay had passed away.
The police weren’t there to arrest him, though, as he had committed no crime. With the overdose crisis in full swing, it was the opinion of Jay’s father that the young man’s fentanyl use made him a danger to himself; so he contacted the authorities in his suburban community and had Jay taken to a psychiatric facility. He would be kept there against his will for nearly a week under Section 302 of Pennsylvania’s Mental Health Procedures Act.
Jay was capable and cautious, and had done enough research on the efficacy of fentanyl in treating his condition that he convinced a psychiatrist at the facility to prescribe him several days’ worth of fentanyl patches after he was finally released. He was a vulnerable person who should never have been subjected to that experience.
Absent a regular safe supply of the drug, however, Jay soon found himself back in Kensington purchasing the street variety of fentanyl. I learned late last year that Jay had passed away. His death was reportedly due to complications related to his injuries.
Those of us who find involuntary commitment a gross violation of vulnerable people’s rights and autonomy should watch the current Kentucky case with interest. Just as the 2004 adoption of Casey’s Law had widespread influence, a finding in favor of the plaintiff now may have ripple effects that could help unwind a troubling, dangerous trend.
The vast majority of people who use drugs are not “severely mentally impaired.” Many use for pleasure, and many for other rational reasons. Most drug use is not harmful. If all potentially deadly activities were considered cause for civil commitment, extreme sports, motorcycles and a whole variety of other activities would suddenly fall under the rubric of compulsory psychiatric care.
Civil commitment could actually increase overdoses, by releasing people still likely to use drugs, but now with reduced tolerance.
Meanwhile, detaining a person who is charged with no crime, based solely on how their drug use is perceived by others, 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, pointed out when I interviewed her for the Daily Beast in 2017, just as states were ramping up their involuntary commitment laws.
Roper added that even in cases where drug users are openly suicidal, once they are detoxed it will become increasingly difficult to justify involuntary detention. That means that, in practice, the period of commitment is likely to be much shorter than a petitioner would like.
And in that context, civil commitment could actually increase overdoses, by releasing people still likely to use drugs, but now with reduced tolerance due to an enforced spell of abstinence. One study of incarcerated people in North Carolina found them 40 times more likely than the general population to die of an overdose in the first two weeks after their release.
The case against Kentucky’s law is welcome. But given the extremes of drug panic and stigma, it’s sadly likely that the US Constitution will continue to be bent to the will of those who spread fear.
Photograph of a facility that hold civilly committed patients in Massachusetts, via Hampden County Sheriff’s Office.