Mixed Outcomes and Ethical Questions at New York’s “Opioid Courts”

Early one morning in January 2018, Bruce Gramiack Jr. awoke to find his cellmate’s “lifeless body on the floor” at their county jail cell in Pennsylvania. Frederick Adami, 52, had been withdrawing from opioids, “throwing up and going to the bathroom ALL night non stop,” as described Gramiack’s Jr.’s girlfriend on Facebook. Adami’s fatal complications could probably have been prevented if the institutional resources had been in place. Instead, “the man was too ill to even walk to ask for [things to help his withdrawal symptoms] if he had felt he needed them.”

Deaths like Adami’s have, in part, propelled efforts to connect defendants who have substance use disorders with treatment while in pre-trial detention. The New York State Unified Court System is paving the way to make sure arrested people—particularly those with opioid use disorders (OUD)—are “stabilized” before their case is heard in criminal court.

The resulting initiative: opioid courts. These programs are specialized offshoots of existing drug courts, aiming to address the pressing health consequences that could arise for an arrested defendant with OUD. The first opioid court in the state—and the nation—launched in May 2017 as the Buffalo Opioid Treatment Intervention Court. Others, called “Opioid Stabilization Parts” (OSP), have popped up in Monroe County (Rochester) and Ontario County in late 2018. More recently, another rolled out in Montgomery County.

Here’s how the programs work: A defendant who is identified as being at risk of overdose or withdrawal can opt into the program that temporarily suspends their prosecution and refers them to the opioid court, and in turn, treatment.

“Basically in the Opioid court there is a stay of prosecution, a hold on prosecution, to get the person stabilized,” Judge Felix Catena, the presider over Montgomery County Court’s Opioid Stabilization Court, told The Daily Gazette, a regional newspaper.

According to Monroe County District Attorney Sandra Doorley, as well as a wide range of research, “the hours immediately following an arrest can make the difference between life and death. The OSP will provide vital help during that critical window of time so users can get medically stabilized, begin treatment and stay alive.”

Participants are expected to satisfy strict supervision requirements, like showing up in court daily for 30 days. If they fail to do so, they can be remanded to jail for up to two days.

In the case of Buffalo’s program, which on June 30, 2018 had 167 people currently enrolled, some participants are stabilized by medications like methadone, naltrexone or buprenorphine within the first 48 hours after arrest. Once they are not at immediate risk for withdrawal symptoms or overdose, they are required to complete 90 days of treatment to successfully exit the program. Over the course of three spring months in 2018, 24 participants successfully completed the program.

Opioid court participants are expected to satisfy strict supervision requirements, like showing up in court daily for 30 days. If they fail to do so, they can be remanded to jail for up to two days. They can also face brief jailing for using drugs while in treatment. Participants who have been in the program for less than 90 days are drug-tested every day they appear in court. According to a progress report filed for a Bureau of Justice Assistance grant they received, more than half (29 out of 41) of Buffalo participants who had been in the program for more than 90 days—i.e., past their target end date—had tested positive for a controlled substance between the beginning of April and end of June.

In this three-month period, 23 people failed to complete the Buffalo program. Ten of these participants exited unsuccessfully because of “criminal involvement,” which could include technical violations or arrests, among other things; another eight failed because of “lack of engagement,” described as “no-shows” or “nonresponsive.”

Dionna King, a policy manager at the Drug Policy Alliance, told Filter that she was informed by Buffalo’s Judge Craig Hannah in an October 2018 meeting that the use of remandment for opioid use remission is a last resort. King is unsure how other opioid courts are using remandment, but believes “there is a lot of discretion as to how other judges operate this program.” Representatives from the other opioid courts did not respond to Filter‘s inquiries by publication time.

After the court-ordered treatment, which can last as long as a year in Buffalo’s case, the defendant is “brought back into the criminal court,” said Judge Catena, “and it’s handled like any other case.” Successful participants can have their case dismissed—or be directed to drug court to be ordered to participate in more treatment.

One judge leading the charge for Rochester’s OSP beamed about the outcomes: “This innovative court model strives to more effectively respond to the special needs of high-risk offenders suffering from opioid use disorders, helping avert overdoses and bringing greater safety and stability to our communities,” said Seventh Judicial District Administrative Judge Craig J. Doran.

But near-equal rates of participants’ “success” and “failure” in OSPs raise questions about their efficacy. These opioid courts also demonstrate the problems inherent to drug courts in general.

“Drug courts and specialty courts are better than jails and prisons, but they are still punitive and coercive,” said King. The harmful logics of the criminal justice system still apply. For example, opioid courts are recommended by the Unified Court System to be made available to people charged with misdemeanors as well as felonies, yet in practice, Rochester’s and Ontario County’s programs restrict “violent offenders.”

“DPA’s goal is to push for policy that creates services and support networks for people who use drugs that exist outside of the specter of the criminal justice system,” said King. “But while we are working to advance progressive policy, we want to make sure that everyone gets the care they need, including people who are currently incarcerated.”

And that means ensuring everyone incarcerated in New York State can access MAT. The state legislature is currently in committee considering Assembly Bill 833A and Senate Bill 2161, which would establish MAT programs across state correctional facilities.

“Opioid agonist treatments like buprenorphine and methadone are the most effective interventions to reduce overdose and also are effective at preventing the transmission of HIV and hepatitis C,” Mike Selick, the Harm Reduction Coalition‘s hepatitis C training and policy manager, told Filter.

“People who use drugs should be offered these treatments in a compassionate and non-coercive way, rather than being denied effective medical interventions or being required to taper off of their treatment.”

Image via Freestock

Sessi Kuwabara Blanchard

Sessi is an independent drug journalist and drug-user activist. She lives in New York City.

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