When Jarrod* went before a Clinton County, New York judge in November 2017 to address a no-contact order violation, he didn’t expect his 13 years on buprenorphine to come into question.
“I sent a couple bad texts,” he admits, referring to the reason for the initial restraining order. “But it was just that: a text message. It wasn’t anything with drugs. When I went before this judge, he said, ‘You’ve been on Suboxone 13 years, I find that suspicious,’ and ordered me off by February [2018]. I was dumbfounded.”
Jarrod, 36, is a tree logger who prides himself on his work ethic. He has four children, two of whom live with him full-time in a household where he is the sole breadwinner. The youngest of those kids was newly born when Jarrod was given just 90 days to get off his medicine.
But the judge did not consider that. Nor did he consider Jarrod’s 13 years of remission from an opioid use disorder—thanks, says Jarrod, to the buprenorphine. “I pay taxes, I have my family, I don’t do anything wrong,” he asserts. “I just take my medicine in the morning and go about my day like millions do with the medicine they require.”
The judge’s order filled Jarrod with trepidation, fueled, in large part, by past experience. “I tried to get off it before. In eight or nine days, I lost about 15 pounds. It was horrible.”
Remember the “President’s Commission”? It convened in 2017—including politicians like former New Jersey Governor Chris Christie and Congressman Patrick Kennedy, plus a single addiction expert, a psychobiologist named Bertha Madras—to discuss opioid-involved overdoses and other harms. Unsurprisingly, its recommendations, with a few exceptions, were lackluster, and the White House response even more so. One recommendation President Trump did latch onto, however, was about education—focusing on adolescents in public schools in similar style to the laughably ineffective DARE program of the 1980s.
Telling kids to “just say no” won’t help. But a different kind of education just might. We need to fund programs that educate legal professionals about the science of addiction. It might sound strange to advocate teaching judges and other members of the bar about opioids and evidence-based care. But doing so could reduce the severe harms that members of this profession currently cause.
Methadone and buprenorphine are proven to reduce mortality and other harms among opioid-using populations. Despite this, judges still frequently and inexplicably take the kind of discriminatory action experienced by Jarrod.
“What happens is judges prohibit people from being on medication-assisted treatment,” says Sally Friedman. She is the legal director at Legal Action Center, a New York-based nonprofit dedicated to fighting medication discrimination, and also serves on the Opioid Task Force at Legal Services Corporation, a legal aid nonprofit providing free consultations and other services for low-income clients involved in civil disputes.
“They give them these arbitrary timetables to come off. It could be three weeks or four months; it’s completely arbitrary. Then their lawyers—if they even have a lawyer—they don’t object. That’s what happens when people don’t understand addiction and effective treatment.”
Like it or not, in our current system of criminalized drug use, these professionals play a frontline role in our country’s response to the overdose crisis.
Even if there isn’t a specific order to discontinue medication, judges’ decisions routinely amount to exactly that. Several studies have shown that the first several weeks after release from jail or prison are the time when people who use opioids are most likely to fatally overdose. That’s because in most correctional facilities, people with opioid use disorders are forcibly detoxed but not offered any kind of evidence-based medication treatment. Nonetheless, judges continue to sentence people with non-violent drug charges to stints in facilities that don’t offer methadone or buprenorphine during incarceration or upon release.
Drug court alternatives to incarceration are often no better in this regard. Opioid-addicted participants can still be denied access to the best medication for their condition—or forced off of it if they’re already engaged in care.
Legal professionals’ ignorance around this issue matters hugely. Like it or not, in our current system of criminalized drug use, these professionals, as much as any doctor’s office, play a frontline role in our country’s response to the overdose crisis.
Approximately one-third of heroin users, for example, pass through the criminal justice system. Additionally, at least two-thirds of child services cases involve parental substance use, implying that the civil legal system is also flooded with people with drug issues.
Drug decriminalization would be a welcome part of a re-imagined new system. Until then, educating judges, prosecutors and defense attorneys could be a valuable way to reduce the harms imposed by the current one.
When the judge ordered Jarrod to stop taking his buprenorphine, a therapist he was seeing put him in contact with the Legal Action Center. Sally Friedman was one of the attorneys who represented him. It took a partnership between LAC and two law firms, working pro bono on Jarrod’s behalf, to finally convince the judge to allow Jarrod to stay on his medication.
On the day of the hearing, Friedman recalls, four people from LAC and the two firms “marched into the court together” to present an argument on Jarrod’s behalf. They submitted an affidavit by an addictions expert, stating that buprenorphine is the standard of care for addiction, and that forcibly removing a patient from this medication could cause immense harm.
Jarrod was lucky, but he knows most people who find themselves in these shockingly common situations don’t have access to the help he received. Instead, they are often forced to simply give in to the demand that they withdraw from a medication that has succeeded in keeping them alive and addiction-free.
“It’s just something wrong in our society,” Jarrod laments. “It’s not helping people, it’s hurting people; it’s keeping the jails full and keeping people in front of a judge. It’s just a messed up system.”
Jarrod’s experience doesn’t just highlight the discrimination regularly faced by people with substance use disorders. It also proves that educating judges works. It may have taken a three-organization partnership and hours and hours of attorneys’ time, but the judge did eventually listen to the facts.
Addiction is characterized by compulsive drug use that continues despite negative consequences. That means you can’t imprison someone out of their addiction—no matter how many times you try—nor can you dangle removal of their children or other punishments in order to get them to stop using.
When it comes to addictive use of opioids, only two treatments have proven consistently effective. These are: buprenorphine, the partial opioid agonist Jarrod is prescribed; and methadone, a long-acting full opioid agonist. Both drugs work by filling the brain’s opioid receptors enough to stave off withdrawal and block the effects of other opioids. They are administered at individually tailored therapeutic doses. Some people take 80 milligrams of methadone daily, while others might need 180.
But some judges, even if they allow patients to continue taking their medication, deem themselves qualified to decide that a certain dose is too high and order a reduction. For example, as I previously reported for Filter, a patient of Florida-based physician Stephen Straubing was ordered to dose down to 30 mg of methadone as part of the conditions in a child welfare case. That kind of medically misinformed practice could be stemmed by simply getting judges the right information.
“Education is always a good way to combat ignorance,” says Kate Nicholson, a civil rights attorney who worked in the Justice Department for 20 years, though she adds that the longstanding War on Drugs and the vast library of media misinformation create enormous barriers to justice. “I think very few judges really understand [addiction] on a deeper level, and that lack of understanding is going to inform their sentences and their ideas.”
The common outcome of this dual ignorance is “a terrifying catch-22.”
There are nonprofit organizations and enlightened individuals out there trying to do this work. For example, the National Judicial Opioid Task Force is a solutions-focused project of the National Center for State Courts, a nonprofit that functions with the approval of the Conference of Chief Justices. The task force aims to provide better judiciary-level interventions for people with charges related to opioid addiction.
At the grassroots level, the Law Enforcement Action Partnership** is a nonprofit comprised of criminal justice professionals—from cops to judges—devoted to drug policy reform. LEAP’s chair, police Lieutenant Diane Goldstein (Ret.), believes that evidence-based medications, including methadone and buprenorphine but also heroin-assisted treatment, are key to turning the tide on the overdose crisis.
And Mary Jeanne Kreek, senior attending physician at Rockefeller University’s Laboratory of the Biology of Addictive Diseases and also part of the team that first developed methadone as an addiction treatment in the 1960s, believes that authority figures currently ignorant of the science of addiction are “highly educable.” She does her best to facilitate that education, whether by speaking to individual judges or by speaking at conferences involving criminal justice workers.
Sally Friedman has also traveled the country trying to educate various members of the bar about opioid addiction and treatment, as part of her work on Legal Services Corporation’s Opioid Task Force. Her advocacy includes everything from holding trainings for judges to speaking at drug policy and criminal justice conferences.
“It can sometimes be challenging to get people past the one-size-fits-all approach,” she says. “It’s just really hard for people to wrap their heads around the idea there’s not just one cure for everybody and that some people may need to be on methadone or buprenorphine for a long time, and it’s not something judges should interfere with.”
She adds that she is excited by the growing number of task forces dedicated to the issue of opioid addiction as it intersects with the legal system. “There are finally a lot of people addressing this. It’s very welcoming for me to see.”
As Friedman and Nicholson note, the issue does not lie only on the shoulders of judges, but also on defense attorneys who are not presenting the arguments necessary to benefit their clients. “Your job as a lawyer is to educate the judge,” Nicholson says. “That is why lawyers really need resources too.”
Friedman describes the common outcome of this dual ignorance, exemplified by Jarrod’s situation, as “a terrifying catch-22″—one in which patients know they face the likelihood of relapse and associated risks if they come off the medication, but the certainty of imprisonment (and likely forced detoxification while incarcerated) if they stay on it.
Some government efforts, particularly at state level, are being made to address misinformation in the courts. For example, Patrick Gallahue, senior press director for the Mayor’s Office of Criminal Justice in New York City, says that the city’s justice system “is adapting many of its processes to be more responsive to the needs of individuals with drug dependencies. We believe that wherever appropriate, people should be guided toward help and support.” Earlier this year, the city helped organize informational sessions to educate judges about medication treatment for opioid addiction.
But a much larger, federally funded educational effort is required. It shouldn’t fall on already-overburdened indigent-aid nonprofits like Legal Services Corporation or Legal Action Center to fund this huge, nationally imperative task.
If the White House is going to throw money at “opioid crisis” education, it should be directed at the legal professionals who can make a difference in the real lives of people with opioid addictions—not wasted on public school campaigns that just don’t work.
*Name has been changed to protect privacy.
**LEAP is the fiscal sponsor of The Influence Foundation, which operates Filter.
Photo by Mari Helin on Unsplash