North Dakota Changes the Rules on Solitary

In a response to the growing consensus that the practice of solitary confinement  is cruel and ineffective, North Dakota has reduced the number of infractions that sends prisoners into isolation—and has changed how inmates are treated if they are sent into “administrative segregation.” The reforms came after a visit by Leann Bertsch, the state’s prison chief, to Norway.

Among the slightly more than two million people incarcerated in the United States, thousands serve time in solitary confinement, isolated in small often windowless cells for 22 to 24 hours a day. Some remain isolated for weeks, months or even years.

In recent years, there has been a growing consensus that the practice of solitary confinement, sometimes known as “administrative consensus,” is cruel and ineffective.

North Dakota is one state that is addressing the drive for change..

Thanks to efforts by  Leann Bertsch, North Dakota’s director of corrections and rehabilitation, and president of the Association of State Correctional Administrators, the state has begun to change solitary from an exclusively punitive  approach to one aimed at changing behavior and helping inmates develop new skills that they can use when they are released from administrative segregation—and from prison.

Her inspiration came after a trip to Norway organized by U.S. prison reform groups.

Bertsch called it a defining moment and decided to speed up reforms already in the works for the state’s prison system.

“There’s such an overemphasis on punishment and punitiveness,” Bertsch says. “You know Norway talks about punishment that works and when they mean it to work, it’s to actually make society safer by getting people to be law-abiding individuals and desist from future reoffending.”

North Dakota prison officials met to figure out how to do that in the United States.

Bertsch says they worked to define what could land people in segregated housing in the first place.

“There were a lot of different behaviors that could get you in before so we really narrowed it down,” she says.

The Old Prison Philosophy

Solitary confinement goes by many names: the hole, isolation, protective custody, the SHU (special housing unit). Whatever the name, its designed purpose is to punish disruptive inmates who break rules and to keep the prison safe by removing them from the general population.

But for many inmates,  it left psychological scars.

“You’re shut off from the world and you wait,” says Olay Silva, a 41-year-old inmate serving time in Bismarck, N.D.’s maximum-security prison. Silva spent six months in solitary after he was involved in a stabbing.

“You just sit there and wait.”

During a tour of the state penitentiary in Bismarck, Chief of Security Joe Charvat walks over to the West Wing and gestures toward the solid doors that close off the entrance of each cell.

“This area used to house our administrative segregation unit which has since been moved to another area,” he explains.

“Administrative segregation” used to be the prison system’s name for solitary confinement. In those days, there was little contact between corrections officers and those behind the doors. Warden Colby Braun says for years,

North Dakota’s isolation unit operated just like many others.

“It was 23 hours a day lockdown. So you had one hour of recreation a day including showers. That was for five days a week,” he says. “So on the weekends you were generally locked down for 24 hours… you were in your cell, you do not come out for any reason.”

The European Influence

Now things are different. There’s much more recreation time for inmates in solitary. Prisoners spend several hours learning new skills. And they also focus on changing their behavior.

They dropped minor infractions like talking back to a corrections officer, and created a top 10 list of dangerous behaviors, such as serious assault, using a weapon and murder. The new name for the prison’s segregated housing became Behavior Intervention Unit (BIU).

Clinical Director Lisa Peterson says the goal is to help people succeed after they leave, as it was clear the old way wasn’t working.

“The idea that somebody is just going to sit there and think about what they did and magically know how to handle a situation differently in the future is not accurate. So we have to be pro-active in helping people know how to change,” Peterson says.

The state penitentiary in Bismarck can house about 800 inmates. They are mostly white. Native Americans make up the largest minority population. In late 2015 when North Dakota started changing its solitary confinement practice, there were 80 to 90 people in isolation. In late June of this year, there were only about 20.

The people in the unit go through a mental health screening to determine in part if they have any suicidal thoughts. They participate in group therapeutic sessions, and learn skills, such as how to cope with anger.

As correctional officers make their rounds, they talk with inmates about how they’re doing. Instead of just writing up an inmate for any negative behavior, officers also write “positive behavior reports” for any positive activity they notice. Skill building and rapport building are big at the prison now.

Solitary’s Impact

In the BIU, Cell 102 is empty. The door has a long vertical window plus a slot for food. Warden Braun walks in and sits on the slim mattress on top of the metal bed. In the room, there’s also a metal toilet and sink, a small metal desk and seat.

What’s surprisingly different is that there also are several electrical outlets in the room. Some prisoners who own a TV or a tablet can have it in the cell. Another narrow, vertical window lets in light from outside.


Chief of Security Joe Charvat walks the halls of the state penitentiary’s Behavior Intervention Unit (BIU) — the prison’s name for solitary confinement. Typically there are about 20 inmates in the cells, far fewer than in previous years. by Cheryl Corley/NPR

“So when you get closer to the end of the wing, the person can actually see cars going by,” Braun says.

Medical groups have issued strong warnings about how prolonged isolation causes human damage — depression, anxiety, a loss of contact with reality and suicide, especially among the mentally ill. The United Nations and other groups call it torture and say in most cases, solitary confinement should be banned. In North Dakota, the average stay for inmates, with some exceptions, is 30 to 45 days.

Inmates Respond 

Michael Taylor says the first time he landed in the old segregation unit it was for using the law library without permission.

Taylor says he was angry and acted out whenever he was placed in solitary.

“I would go back there and trash the tiers,” the 21-year-old says. “I’d argue with staff, I just didn’t care.”

Taylor says working with the therapists in the new solitary unit has made a difference. So much so that Taylor says he’d like to become a counselor after he gets out.

lay Silva agrees the switch has helped change an often tense situation between inmates, whom Silva says would curse the prison staff, and corrections officers who would often ignore the people in solitary or didn’t get them things they needed.

“That’s not really the case a lot now,” Silva says. Now officers “reward you for being involved. They don’t let you just sit back there and just basically dwell.”

Staff Buy-In Wasn’t Easy

Corrections Director Bertsch says getting buy-in from the staff wasn’t easy. The staff had to overcome the damaging perception that violence would increase and that the changes would put them at risk.

“We still have some resistance,” Bertsch says, “but when we started doing this, there was a lot of resistance and some people just needed to leave.”

Even Warden Braun had misgivings.

“I was scared to death,” he says. “I was scared for staff. I was scared for the facility. I was scared when we talked about specific guys leaving, and I was wrong.”

One of the staffers who stayed on the job is Case Manager David Roggenbuck, who oversees officers and activities in the BIU. He worked previously as an officer in the old solitary unit and was skeptical about the change at first.

“Kind of the mindset is if you don’t like being in prison, don’t come. Don’t commit a crime, don’t come. You’re here — well, tough cookies,” he says. “I’ve really looked at that and what does that accomplish? If I have that type of mentality, all that’s going to do is keep a person the same as when they came in, if not make them worse.”

Roggenbuck admits it took him awhile to change his attitude. Now, he says, everyone deserves a second chance.

For Sgt. Frantz Jean-Pierre, the switch to a unit that focuses on behavior has meant that he and other corrections officers get to know the people in the unit on a more personal level — not just as some inmate locked up in a cell. Jean-Pierre says he believes the changes have made a difference.

“In 2016 we probably had an incident down here on our shift at least maybe three or four times a week. By incident,” Jean-Pierre explains,” I mean someone trying to commit suicide, or someone trying to flood their cell, or being completely disorderly. We haven’t hardly had any of that this year. I think we’ve had one or two on our shift.”

North Dakota Advantages

North Dakota corrections officials admit that changing the prison’s solitary confinement policy may be less difficult in a state with a mostly homogenous prison population and few prison gangs.

Cheryl Corley

Cheryl Corley. Photo by Steve Barrett/NPR

Even with the reform efforts though, North Dakota officials say there are some prisoners too dangerous to eliminate segregated housing completely.

Corrections Director Bertsch says even so, prison has to be about providing an opportunity for change so that North Dakota’s effort to use solitary confinement as little as possible,  and in a different way makes sense.

Cheryl Corley, a correspondent for NPR’s national desk in Chicago, is a 2-18 John Jay Justice Reporting Fellow.  An earlier version of this story was broadcast on NPR’s “Morning Edition.”


Why Do We Keep Jailing Runaway Kids?

In the U.S., youth are routinely sent to detention centers and then incarcerated because they’ve been picked up for status offenses such as truancy or running away from home—and a large number of those affected are young girls. Two researchers say there are safer and more effective ways to help them.

Earlier this month, a young female was arrested and ushered into our criminal justice system. The cause? According to local reporting, she was charged with being “[b]eyond [p]arental [c]ontrol.”

The young girl had run away from home the previous day and, rather than escorting her home, law enforcement arrested her and took her to Idaho’s Kootenai County Juvenile Detention Center.

Sadly, this is not an isolated incident. In the United States, youth are routinely sent to detention centers and then incarcerated due to status offenses such as truancy, running away or “being beyond parental control.” While most of the incarcerated youth spend time behind bars because of the harm they caused to person or property, status offenders are only penalized because of the age at which they commit these otherwise mundane “offenses.”

In fact, if they were just a few years older, there would be no legal consequences at all.

While the circumstances or final consequences of this particular girl’s decision to run away are unknown, if her case resembles that of the median youth held for a status offense, she will be detained for 21 days. And if she is adjudicated and committed, she will be incarcerated for an additional 63 to 106 days.

The decision to incarcerate youth who commit status offenses has contributed to a significant proportion of the youth population behind state bars today. According to data from the Office of Juvenile Justice and Delinquency Prevention (OJJDP), in 2015, approximately one in five youth detained in Nebraska were incarcerated due to a status offense.

Emily Mooney

Emily Mooney

According to the same data, a staggering 45 percent of youth detained in West Virginia were held for status offenses—less than 26 percent of that total were incarcerated for actually harming anyone. Even in New York, a state known for its liberal leadership, 17 percent of detained youth were held for status offenses that same year.

What’s worse, girls are disproportionately harmed by the policy. In 2015, one in four female youth held in private facilities were incarcerated for such offenses and approximately one in nine female youth were mandated residential placement for the same cause. Comparatively, only one in twenty-five boys were held.

Empirical evidence suggests runaway youth are an especially troubled group who need our compassion and help, rather than to be confined to the walls of a jail cell. Research using national survey data provides evidence that females, youth of lower socioeconomic status and young adolescents who have experienced neighborhood victimization (such as witnessing someone being shot or having their house broken into) or personal victimization are more likely to run away.

While arresting these children is not the answer, leaving youth on the streets is also not ideal. A 2017 review of the current research summarized that runaway youth are at an increased risk of sexual victimization, substance abuse, mental health issues and physical abuse: “[t]hese youths often flee their homes to escape abuse in their home environment, only to emerge on the streets, and be exposed to consistently high levels of sexual and physical victimization, in addition to constant exposure to violence.”

Indeed, a 2012 study including 350 runaway youth found that 39 percent reported experiencing physical abuse, 14 percent reported sexual abuse and over a third reported neglect. Poor family communication and worries about family relationships had the largest reported impact on runaway youth depression, anxiety and disassociation.

The good news, however, is that states have options besides incarceration or leaving at-risk young people on the street and instead can choose more compassionate and effective alternatives when young people run away from home.

Nia Bala

Nia Bala

Community-based diversion and prevention programs present a safer, more effective way to get to the heart of family problems, trauma or simply a poorly thought-out decision. Rather than compounding underlying issues, research shows that these intervention and diversion programs are far better at preventing future delinquent behavior.

Moreover, these programs provide more flexibility than detention and correctional centers and can engage entire families in the growth process at an appropriate level for the individual’s risk.

Most importantly, they rebuild the systems that support youth rather than isolating them from the very people and institutions that know them best.

And that’s an alternative that is cheaper and better for us all.

Emily Mooney is a criminal justice research associate with R Street Institute. Nila Bala is the associate director of criminal justice policy for R Street and a former Baltimore, Maryland public defender. They welcome comments from readers.


Solitary Used More Often for Inmates with Mental Illness: Study

The odds that mentally troubled prisoners will be sent to solitary confinement for misconduct are 36 percent higher than for those without mental illness, according to a University of Massachusetts study of data from a 2004 national survey.

Inmates with mental illness are more likely to be placed in solitary confinement than other inmates, and are more likely to be punished with administrative segregation compared with other less disciplinary actions, according to a study published in the Criminal Justice and Behavior.

Kyleigh Clark, a researcher at the University of Massachusetts, analyzed data from the U.S. Census Bureau’s 2004 Survey of Inmates in State and Federal Facilities, which questioned inmates on a wide range of topics including their behavior, criminal histories, personal backgrounds, and experiences within and outside of prison.

The survey also specifically asked inmates whether they have been diagnosed by a medical professional prior to incarceration with various mental disorders: depressive, psychotic, personality, manic/bipolar, posttraumatic stress disorder, anxiety, or any other disorders.

The researcher compared the experiences of those with mental illness to those without them and found that even though both groups most often lose privileges for misconduct, the odds of those with a mental illness being put in solitary confinement for misconduct are 36 percent higher than those without mental illness.

Furthermore, those with mental illnesses are 40 percent less likely to be given other, less severe disciplinary action, 27 percent less likely to lose privileges or be confined to their own cell, 23 percent less likely to be given extra work, and 19 percent less likely to be given bad time.

It is not clear why inmates with mental illnesses are disproportionately placed in solitary confinement, but one possible explanation the author suggests is that prison management may be paying more attention to those with mental illnesses, or more attention to the actions of those with mental illnesses, and this in turn results in more infractions and harsher punishments.

Relatedly, people with mental illness are viewed as dangerous to themselves and to others, the author explained.

“[And] because many institutions suffer from a lack of resources, space, and staffing, isolation of mentally ill prisoners can be seen as the only viable option in dealing with these inmates,” Clark added.

About 37 percent of inmates have mental illness, according to U.S. Department of Justice.

The researcher excluded inmates in federal facilities due to possible unmeasured factors in those prisons that may affect their use of segregation, such as intuitional structures. The sample was further restricted to those who committed at least on misconduct during their incarceration and were not missing data for mental illness and disciplinary action

The author argued that despite news stories outlining the problematic use of isolation for mentally ill inmates, the issues had not been extensively researched until now.

He said future research should investigate whether imposing solitary confinement on mentally ill inmates, even ostensibly for their own protection, is ultimately “counterproductive.”

“Multiple studies have shown that those with mental health problems may be more susceptible to the negative effects of solitary confinement, thereby creating a cycle in which mentally ill offenders are put in solitary confinement due to their mental illness, which is made worse by isolation, leading to further or worsening symptomatic behavior,” he wrote.

“Although solitary confinement may be considered a more economical or practical choice for containing these inmates, better mental health care can be more cost effective in treating their behavior.”

A copy of the study can be downloaded here.

J. Gabriel Ware is a TCR News Intern. He welcomes comments from readers.


Are ‘Orders’ from the Tweeter-in-Chief Legally Enforceable?

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore President Trump’s tweets calling for investigations into cases like the recent unsigned op ed in The New York Times. But how long can we rely upon this assumption? 

While many commentators have written about President Trump’s predilection for interpreting law via Twitter (whether the actions of his personal lawyer, Michael Cohen, in allegedly arranging “hush money” payoffs, were a crime, for example), a different presidential tweet poses even more difficult questions.

After Attorney General Jeff Sessions committed to not allowing the Department of Justice to be improperly influenced by political considerations, the President tweeted the following:

Jeff, this is GREAT, what everyone wants, so look into all of the corruption on the “other side” including deleted Emails, Comey lies & leaks, Mueller conflicts, McCabe, Strzok, Page, Ohr…FISA abuse, Christopher Steele & his phony and corrupt Dossier, the Clinton Foundation, illegal surveillance of Trump Campaign, Russian collusion by Dems – and so much more. Open up the papers & documents without redaction? Come on Jeff, you can do it, the country is waiting!

While the tweet about Michael Cohen’s actions not being a crime raised questions about whether the tweet constitutes a legal determination that is binding on the executive branch, the tweet about Sessions amounts, in my view, to what appears to be a presidential directive to investigate political opponents.

To what extent may federal authorities, particularly the DOJ and the FBI, respond in ways that are consistent with their interpretation of law and policy?

The question has become even thornier with the president’s recent comment that Sessions should investigate an anonymous Op Ed published by the New York Times. The author of the Op Ed claimed that members of the administration have worked to thwart some of the president’s agenda and inclinations, though he did not suggest any crimes were committed.

On the face of it, there is no reason why such an unclassified Op Ed would not be protected by the First Amendment.

The jabs at Sessions thus raise questions about a president’s constitutional duty—as Chief Executive—to “take care that the laws [be] faithfully executed” (Article II). Let me try to unpack some of those questions from the vantage point of the civil servants actually conducting investigations.

In other words, when President Trump calls for Sessions to investigate Op Eds or look into the “other side,” what does that mean for investigators?

Most FBI agents don’t carry around a copy of the Constitution in their pocket (well, some probably do), but they all have easy access to the Domestic Investigations and Operations Guide (DIOG), which “applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States” (DIOG, § 1.1).

More generally, as both an intelligence agency and a law enforcement agency within the Department of Justice, the FBI’s power is dependent upon the authority vested in the office of the Attorney General, who may delegate authority to the FBI’s officials. This has been done in part through the DIOG, as well as through documents such as the Attorney General’s.

These documents standardize the FBI’s investigation policy in national security and criminal law cases. Specifically, the DIOG permits four basic ways for the FBI to “look into” crime:

  • Assessments
  • Preliminary Investigations
  • Full Investigations, and
  • Enterprise Investigations

An Assessment is the most basic type of formal FBI investigation. Notably, the DIOG states that “[a]lthough ‘no particular factual predication’ is required, the basis of an Assessment cannot be arbitrary or groundless speculation, nor can an Assessment be based solely on the exercise of First Amendment protected activities…FBI employees who conduct Assessments are responsible for ensuring that Assessments are not pursued for frivolous or improper purposes….” (DIOG, § 5.1).

The DIOG goes into great detail about the various types of Assessments that may be opened and the standards for conducting them. As one would expect, moving to Preliminary (DIOG, § 6), Full (DIOG, § 7), and Enterprise Investigations (DIOG, § 8) requires even more exacting rules with respect to investigative scope, predication, techniques, and so on.

Preliminary Investigations are predicated based upon “’allegation or information’ indicative of possible criminal activity or threats to the national security” (DIOG, § 6.1), while Full Investigations are predicated upon an “’articulable factual basis’ of possible criminal or national threat activity” (DIOG, § 7.1).

Finally, Enterprise Investigations are opened as Full Investigations, but with respect to “a group or organization that may be involved in the most serious criminal or national security threats to the public” (DIOG, § 8.1).

Does the unsigned Op Ed, or for that matter, the suggestion to look at corruption “on the other side” fulfill any of these four guidelines for launching an investigation?

Working outside of this stringent framework would indeed be uncharted territory—at least since President Richard Nixon (and presidents before him) ordered investigations that resulted in solely political and personal information unrelated to national security.

So it hasn’t been terribly long since presidents successfully used the FBI as their personal spy agency.

The US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (or the “Church Committee”) helped expose a variety of widespread information-gathering tactics—including illegal searches and surveillance under the FBI’s COINTELPRO program from the mid-1950s through the early 1970s.

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore requests for investigations without a firm, non-arbitrary investigative basis that is consistent with policy.

But how long can we rely upon this assumption?

And there is a deeper question that has higher stakes: If there is disagreement about whether the Executive is taking care that the law be executed faithfully, what are the long-term implications for the rule of law in the United States given a dysfunctional executive branch?

Our history illuminates how executive authority and discretionary power have grown to such a degree that it is trending toward illiberal practices and policies. This is not a Republican or a Democratic problem. It is a broader problem regarding the limits imposed by the legal, political, and philosophical norms of a constitutional democracy in the liberal tradition.

Luke Hunt

Luke William Hunt

Although it may sound alarmist, the evidence suggests that we are returning to an older model of executive power that entertains political whims. There is no doubt that presidential executive power includes a great deal of discretion, but all of us should take care that we remain a state governed by the rule of law—not executive discretion.

Luke William Hunt is Assistant Professor of Criminal Justice at Radford University. After law school and a federal judicial clerkship, he worked for seven years as an FBI Special Agent and Supervisory Special Agent in Charlottesville, VA, and Washington, D.C. After leaving government service, he completed his doctoral work in philosophy at the University of Virginia. He is the author of “The Retrieval of Liberalism in Policing,” forthcoming with Oxford University Press.


Is Fentanyl Deadly to the Touch?

Despite recent “scare” stories, there’s no evidence that simply touching fentanyl can lead to overdoses. No one disputes that it’s a dangerous drug, but unsupported fears about the effects of exposure could make first responders less willing to help individuals who are overdosing, writes TCR’s columnist on addiction issues. Meanwhile AP reports on a new test strip that can help heroin users detect fentanyl.

Fentanyl—the synthetic opioid that was responsible for up to 40 percent of the deaths by drug overdose in 2017—is routinely described as 50 times stronger than heroin. Government health officials and law enforcement have warned that it is so deadly that even touching it is enough to cause an overdose.

Over the past several months there have been a number of news stories which appear to back up the warning. In Ohio last month, for example, corrections officials announced 28 people (23 guards, four nurses and one inmate) at the Ross Correctional Institution in Chillicothe had fallen ill after exposure to a substance believed to be fentanyl. Pennsylvania corrections authorities were investigating similar incidents.

Fentanyl is far stronger than heroin or prescription opioids—such as Vicodin, OxyContin, and Percocet, which so often lead to heroin and fentanyl abuse or a stint at a rehab for opiate addiction—but is it really so deadly that a contact high can kill you?


If you remember earlier exaggerations of the toxicity and addictiveness of other drugs such as crack cocaine, or the ease of transmission for diseases such as AIDS and HIV, you know that even well-meaning people can get it wrong and that parties with an interest in fear-mongering can deliberately mislead.

(For example, during the “War of the Currents,” Thomas Edison tried to discourage people from adopting AC electricity over his own far less efficient DC electricity by using AC to electrocute animals, as if to say, “See how dangerous AC is?”)

As bad as fentanyl is, it also has become a scapegoat. Whenever there is a rash of drug overdoses, fentanyl is suspected. In just July and August:

  • Dozens of users of the synthetic marijuana drug K2 overdosed in a New Haven park. Authorities said it might have been laced with fentanyl since administering the opioid antagonist Narcan (which most authorities say has no effect on K2 overdoses) seemed to reverse the ODs. (Later analysis found no evidence of fentanyl.)
  • Prisons in Ohio and Pennsylvania (see above) were on lock-down in late August for drug overdoses that may have affected non-users, too, perhaps by skin contact. (One prison attributed it to exposure to a fine white powder later determined to be heroin mixed with fentanyl; the cause of the other overdoses is still unknown.)
  • The U.S. government released a seven-minute video and guidelines detailing safety precautions for law enforcement on the proper handling of fentanyl encountered in the course of their jobs, involving gloves, protective eyewear, and respiratory masks.

Fentanyl is deadly, especially when you don’t know that you are taking it.

Musicians Prince and Tom Petty likely didn’t know what they were taking. Drug dealers often substitute it for other, less powerful opioids, because it is cheaper and because it is easier to smuggle a significant quantity, even through the US mail. However, its potency also makes it difficult for drug dealers to measure properly, so a fatal overdose is far more likely.

There have been reports of K-9 unit dogs that have overdosed just from stepping on fentanyl as well as getting it on their noses and mouths, maybe in their eyes. Special canine first aid kits have been created; Narcan works with dogs, too.

Adding to the danger: police officers haven’t been trained in how to tell if a dog is overdosing. Each dog reacts differently to fentanyl, depending on its personality, temperament, and metabolism. Some become more excited, some become lethargic.

And because they have 20 times the tolerance for opioids as humans, if they do have a reaction, there’s a lot of fentanyl around.

Even so, there’s little evidence that fentanyl is quite that deadly. Junkies and addicts don’t get high by touching fentanyl or heroin because skin is not a good conduit for drugs to enter the bloodstream. (unless you apply an alcohol-based hand sanitizer that can facilitate skin absorption; it took a lot of work to create a transdermal patch for fentanyl that worked.)

Some people in the field dispute this and suggest researchers are using medical-grade fentanyl, which is harder to absorb than the street-quality fentanyl encountered by law enforcement.

Also arguing against the toxicity of touching fentanyl is the dearth of evidence. Fentanyl is used by medical doctors and veterinarians (it’s one of the World Health Organization’s essential medicines), but as a group, they haven’t reported a slew of accidental overdoses. Large numbers of OD deaths of drug dealers while preparing fentanyl for sale or distribution haven’t manifested either.

That doesn’t make fentanyl safe, just safer than its reputation.

The risk to law enforcement, human and canine, is not so much with getting fentanyl on their hands but rather where we put our hands afterward—the nose, mouth, and eyes—as well as accidentally breathing in or swallowing loose fentanyl specks in the air.

Researchers have determined that we touch our faces every two to five minutes, which gives bacteria and germs access to our eyes, nose, and mouth, all gateways to our insides where we are most vulnerable. These are also places where fentanyl can enter our bloodstream and make us high or potentially overdose.

According to Jeremy Faust, an instructor at Harvard Medical School and an emergency room physician, he has never seen or heard of an OD by skin contact alone with documented evidence such a blood or urine test.

In the absence of evidence, exaggerating the lethality of fentanyl will make first responders overly cautious, less likely or less willing to come into contact with people overdosing.

Whatever they said earlier, the Centers for Disease Control and Prevention, The American College of Medical Toxicology and the American Academy of Clinical Toxicology all now agree that for emergency first responders, the risk of overdosing merely from attending to someone who has taken fentanyl is “extremely low.”

The Drug Enforcement Agency and the White House also agree now that “brief occupational skin exposures to fentanyl and its other potent opioid analogs pose no clinical threat to anyone.”

Not that there’s no risk, but it lies in breathing in fentanyl, accidentally getting it in your mouth–not touching it.

In July 2018, a PhD in neuroscience and pharmacology shot video of a former opioid user touching a large quantity of verified fentanyl to show it had no immediate ill effects.

But while there’s no proof of the opposite, scare stories carry weight with the general public, even among first responders. The so-called “nocebo” effect can make people feel ill without cause like the placebo effect makes you feel good without cause.

Stephen Bitsoli

Stephen Bitsoli

In the early days of AIDS, people worried you could catch the sexually transmitted disease from patients by shaking their hands. The media, always looking for a sensational story, ran with it.

Fentanyl is deadly for its users—by the number of overdoses, half-again as deadly as prescription opioids and twice as deadly as heroin—but with reasonable precautions, it should be safe for law enforcement and EMS to do their jobs without unreasonable fear.

In related news, the Associated Press reports on the newest tool in the fight against opioid overdoses:   an inexpensive test strip that can help heroin users detect fentanyl.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.


Rural Jails Grapple With Opioid Epidemic’s ‘Revolving Door’

One of the biggest barriers to fighting the spreading opioid epidemic in rural northeast Washington is the lack of providers authorized to prescribe  drugs for treating opioid dependence. That’s why local jails need support for providing medication-assisted treatment, says a local doctor.

In 2013, Dr. Barry Bacon saw two problems: an area overrun with opioid addiction, and a revolving local county jail door that sweeps addicts in as quickly as it shoves them out.

The now-60-year-old Spokane, Wa., physician, along with another doctor who worked in the  jail in Stevens County in northeastern Washington state, hatched a plan to offer people treatment while they’re locked up.

“Ninety-five percent of people in the jail were dealing with an opioid addiction at some point and the fallout from a life out of control,” Bacon says, anecdotally. “Options [for treatment] were limited, and we were basically just punishing people for dealing with addiction.”

Bacon’s efforts to use what’s known as medication-assisted treatment — where patients are prescribed one of three drugs approved by the FDA to treat opioid dependence — is part of a national conversation about how to address the opioid epidemic.

Along with a behavioral health counselor, Bacon started volunteering his time seeing Stevens County inmates in Colville, Wa., offering to start them on Suboxone, which contains the drug buprenorphine and is considered by many experts as the standard of care for opioid addiction.

After about a year, Bacon says nine out of the 19 people he’d started treating were doing “measurably better.” They were no longer taking illegal drugs. They were moving their lives forward in work, school, housing and familial relationships, he says — what he considers a major success.

But by 2015, Bacon had to stop prescribing to new patients in the jail. He was maxed out on the number of people he could legally prescribe Suboxone to, he says. (To prevent abuse, doctors are limited on the number of patients they can prescribe these drugs to.) Bacon continued to treat those patients until 2017 when he resigned from his job as a physician in Northeast Washington Health Programs and moved out of Stevens County for personal reasons.

The problem was, few other physicians in the area were authorized to prescribe the drug, he says. Due to a lack of money, knowledge or willingness of health providers, or some combination of the three, Bacon says he could no longer continue seeing patients in Stevens County.

“I was treating more people in Colville than all of Stevens County combined,” he says. “Patients were scrambling. Some bailed and said, ‘I guess I’ll just wean myself off.'”

Bacon believes the biggest barriers in rural northeast Washington, which extend to the jails in that area, are the lack of providers authorized to prescribe the drugs as well as those willing to become authorized.

Studies show that treating people with methadone or buprenorphine before they’re released from incarceration, and connecting them with services in the community afterward, increases the likelihood they’ll continue treatment and reduces the risk of death after release. Drug treatment behind bars has also been shown to reduce crime, recidivism and the cost to taxpayers.

Now, five years after Bacon began treating people in the Stevens County Jail, three corrections officials in those northeast rural counties say people addicted to opioids continue to cycle through their jail doors. Bacon aims to work with providers and jails in Ferry, Stevens and Pend Oreille counties to begin prescribing Suboxone again.

“I recognized how important this was and how few are doing it in rural areas,” Bacon says. “It’s really good medicine, and not just the drug, but in terms of restoring lives to sanity.”

There are approximately 47,700 Washingtonians addicted to opioids, according research from University of Washington professors Marc Stern and Lucinda Grande. More than half of those people, about 25,500, will exit the doors of a Washington jail this year, Stern and Grande estimate.

“The numbers showed us that the jails are the epicenter of the opioid crisis,” Stern says. “So in some ways, the jail is unfortunately the perfect place to address this problem. It’s where you can change behaviors and turn someone’s life around.”

Stern and Grande’s research — a survey of 33 jails across the state, of various locations and sizes — shows a “high level of interest” for medication-assisted treatment among jail administrators. A lack of resources, as in doctors legally authorized to prescribe the drugs, and in money available in jails’ budgets to pay for them, as well as gaps in knowledge, were among the biggest barriers, Stern says.

For example, “some [jail officials] were not aware that patients can die from complications such as dehydration due to vomiting and diarrhea, or suicide due to distress from opioid withdrawal symptoms,” he writes in the report.

Fourteen of the 33 jails surveyed offer at least one of the three drugs approved to treat opioid dependence, the most common being buprenorphine (one of the active drugs in Suboxone).

None of the smaller facilities included in the survey (average population of less than 50 people) offered medication-assisted treatment.

“It’s the smaller places that are really challenged in resources and knowledge,” Stern says. “It’s disproportionately harder to provide good health care in a small jail.”

The Washington State Opioid Response Plan calls for “jails and prisons to initiate and/or maintain incarcerated persons on medications for opioid use disorder.”

This year, the state has applied for a federal grant worth about $21 million to increase access to medication for opioid treatment in jails and the community generally, says Charissa Fotinos, deputy chief medical officer for the state Health Care Authority.

“Many jails in the state are interested in starting people on medication-assisted treatment or continuing it,” Fotinos says. “One challenge jails have had is the medication is expensive. People’s Medicaid is suspended, and jails don’t have a way to pay for buprenorphine.”

She adds that one of the state’s priorities is to target people released from jails and prisons “because they’re at the highest risk for a fatal opioid overdose.”

Additionally, the American Civil Liberties Union of Washington is suing Whatcom County on the west side over its refusal to offer this treatment to jail inmates. A decision in favor of the ACLU would be “groundbreaking” and could set a statewide precedent, ACLU spokesman Doug Honig says.

The need for opioid treatment in three of Eastern Washington’s northern rural counties is apparent to those who watch the jail population cycle in and out of custody.

Although none of the jail facilities in Ferry, Stevens or Pend Oreille counties currently track how many people pass through their doors struggling with opioid dependence, there are some general indicators.

For example, felony drug charges filed in Stevens County, with a population of about 43,700 people, shot up from 35 in 2013 to 131 in 2017. As of June, prosecutors had already filed 50 felony drug cases, though not every charge involves opioids. For the tri-county area that includes Ferry and Pend Oreille, 33 percent of all criminal charges filed in 2017 involved drugs.

Additionally, the opioid prescription rate for those counties — 106, 97 and 104 respectively per 1,000 people — is significantly higher than the statewide rate of 77.

Consider the Ferry County Jail, a 45-bed facility in Republic, as an example. Both the jail’s superintendent, Shawn Davis, and the Ferry County prosecutor, Kathryn Burke, agree that drug addiction and the crime that comes with it are significant issues.

But there are currently no providers in Ferry County who can prescribe buprenorphine or methadone, Davis says.

“The population of locals in the jail is growing due to drug charges and the heroin epidemic,” he says. “We typically have one or two people on a rolling basis that require that attention or treatment.”

Beyond the logistical barrier, Davis says he is concerned about inmates potentially abusing or selling their drugs to others, which is a common objection from jail administrators across the country. But, he says, if someone comes into the facility with a prescription, the jail is required to provide the appropriate medication. Short of that, inmates can be left to go cold turkey or are taken to the hospital.

“It’s hard to prevent prescription drugs from being smuggled back into the population,” Davis says. “Inmates will swallow hydros, for example, go back to their room and throw them up and hand them off. It’s amazing what people are willing to do to get some kind of high when they’re addicted.”

Davis says he is generally not supportive of medication-assisted treatment, which he believes is essentially trading one addiction for another.

Additionally, Ferry County’s therapeutic drug court specifically restricts participants from taking drugs such as buprenorphine and methadone, Burke says. Generally, drug courts are carrot-and-stick alternatives to traditional prosecution where participants agree to complete court-ordered drug treatment, and in exchange their charges can be dismissed.

However, Burke acknowledges that “some people probably really do need it, so if we had the ability to do it in our jail, I wouldn’t oppose it.”

For Bacon, the lack of providers in Ferry County is precisely why a medication-assisted treatment program is high priority.

An essential piece of that work, Bacon says, will be connecting people with services and resources after they’re released from jail.

Throughout Washington, there is a patchwork of medication-assisted treatment in jails — from Spokane County’s methadone program, to Ferry County’s complete lack of providers, to Whatcom County’s refusal to provide such treatment to Island County’s full-tilt support. In Spokane, eight people have died in the jail since June 2017, including one woman on Aug. 25. Several of the deaths are suspected to be drug related.

Last week, the Spokane County medical examiners ruled that one of the eight people, 52-year-old David Good, died after choking on his own vomit and that “opiate and methamphetamine intoxication” played a role. Jail medical staff had directed that Good be checked every 15 minutes. But 32 minutes passed from a guard’s last check and the time Good was found not breathing, according to internal records.

In Island County, located north of Seattle, before the jail started prescribing Suboxone, inmates were transported two counties away to receive opioid treatment, Chief Jail Administrator Jose Briones says.

“We have a captivated audience, and we can put them through treatment rather than warehouse them and set them on the same track they were on before,” Briones says. “We’re not going to have people suffering through withdrawals in our facility.”

Briones adds that Island County’s drug court does not exclude people who take buprenorphine or methadone.

He acknowledges that his budget for medication spiked from $8,000 to about $20,000 in the past two years, as counties typically take on the medical expenses for people in their custody. But, he says, “with modern corrections, it’s the right thing to do. The transportation was an issue and it’s expensive, but with the direction we’re taking our facility, we want to do evidence-based treatment.”

Island County started its treatment program in March of this year and is collecting data to gauge its effectiveness, Briones says. It’s too early to draw any conclusions, but similar programs elsewhere in the U.S. have shown success.

In Rhode Island, for example, where the state prison and jail systems are combined, a preliminary review of the treatment program shows post-release overdose deaths plummeted by 61 percent.

Aside from the life-saving potential, Stern, the UW professor, points to data from the Washington State Institute for Public Policy showing that drug treatment in prisons, and in the community after a person is released, have huge cost-saving impacts.

Additionally, a 2006 report from WSIPP shows that in-custody drug treatment can reduce crime by 5.7 percent and save nearly $8,000 per patient, when considering damage to crime victims, benefits to taxpayers and the cost of providing the treatment.

“For a moment, you have your hands on 50 percent of the opioid dependent people in the state at a time when they’re malleable,” Stern says, emphasizing that the most effective treatment includes a plan after a person is released.

“If you invest money in this problem, including outside the jail, you can actually make your money back.”

Mitch Ryals is a 2018 John Jay Rural Justice Reporting Fellow. This story was originally published in The Inlander. Readers’ comments are welcome.


Johnson v United States: Three Years Later

The Supreme Court struck down a part of the Armed Career Criminal Act that permitted sentencing enhancements for repeat violent offenders in 2015. But the debate over its impact on public safety and recidivism continues, pitting Attorney General Jeff Sessions against proponents of sentencing reform.

In at least two speeches this August, Attorney General Jeff Sessions called the consequences of a three-year-old Supreme Court decision “devastating for Americans.”

He was referring to Johnson v. United States, a 2015 ruling in which the Supreme Court struck down the residual clause of the Armed Career Criminal Act (ACCA), finding it unconstitutionally vague.

ACCA imposes sentencing enhancements on repeat offenders who commit crimes with guns. Specifically, under ACCA, a defendant who is convicted of being a felon in possession of a firearm and who has three or more prior convictions for serious drug offenses or violent felonies is subject to an increased prison term of at least 15 years.

The residual clause had included under the definition of “violent felony” any crime punishable by imprisonment for a term exceeding one year that “involves conduct that presents a serious potential risk of physical injury to another.”

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences. Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.

For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes? If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?

This post looks at some of the different factors at play.

Recidivism and Reentry After Johnson

In his speeches, Sessions indicated that Johnson “has resulted” in more than 1,400 inmates obtaining early release from sentences originally enhanced for prior convictions under ACCA’s residual clause. Of this population, he said, 600 have been arrested again.

Sessions highlighted certain crimes. For instance, in a speech on Aug. 1, he discussed six individuals who allegedly went on to commit murder, rape and aggravated assault after their release.

“Releasing repeat offenders has consequences,” he said.

Sessions called this recidivism rate “staggering” and “likely an underrepresentation” of illegal activity. He also cited a 2016 U.S. Sentencing Commission report on recidivism that found a 69.5 percent recidivism rate for people sentenced as career offenders, including those sentenced under ACCA.

Sentencing-reform advocates question the conclusions Sessions drew from his data.

Priya Raghavan of the Brennan Center for Justice observes that it’s unclear from Sessions’ speech what offenses caused the rearrests. She also suggests that the individuals specifically mentioned by Sessions are not representative of the entire population of 1,400 released prisoners. She points to two studies by the U.S. Sentencing Commission, the one on recidivism mentioned by Sessions and one on career-offender sentencing enhancements.

The second report indicates that the most frequent “most serious” offense committed by people sentenced as career offenders who were rearrested was assault, not homicide or rape. The report also reveals that the percentage of rearrested career offenders who had assault as their most serious new charge (24.9 percent) was the same as for non-career offenders.

Raghavan clarifies that assaults are not all violent; simple assault “typically involves only a verbal threat against another person.”

The career-offender report does not include the percentages of rearrested career offenders who had homicide or rape as their “most serious” recidivism offense. However, the recidivism report shows that homicide and rape were the “most serious” post-release offenses committed by only 1.3 percent and 1.9 percent of all rearrested offenders, respectively. It’s not clear how many homicides and rapes were committed by people sentenced as career offenders, but Raghavan believes these low rates suggest that only a small percentage of the 600 rearrested prisoners released after Johnson committed such crimes.

Even for those who have recidivated, the extent to which being released early after Johnson contributed to their recidivism remains unclear. Amy Baron-Evans, the national sentencing resource counsel for Federal Public and Community Defenders, adds that the proper comparison for recidivism by those released early after Johnson would be with recidivism by those who served full sentences under ACCA’s enhancement.

It is “too early” for such an analysis after Johnson, but Baron-Evans points to a third U.S. Sentencing Commission report, “Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment.”

Although focused not on those sentenced as armed career criminals, but on drug offenders who received a sentence reduction after the Sentencing Commission gave retroactive effect to an FSA guideline amendment for certain drug offenses, the report reveals “no difference in the recidivism rates of offenders who were released” early and “similar offenders who served their full sentences.”

To confront recidivism, Sessions called on Congress to “fix the law so violent career criminals are not let out of jail early.” But Raghavan contests the implication that longer sentences will lower crime rates.

A Brennan Center report, “How Many Americans Are Unnecessarily Incarcerated?,” reviews social science that “indicates that in the worst case scenario, longer lengths of stay produce higher recidivism rates, while the best case scenario points to diminishing returns of incarceration on public safety.”

John Seibler, a legal fellow at the Heritage Foundation, suggests that longer sentences can reduce recidivism somewhat because individuals “age out” of criminality. However, echoing Raghavan, Seibler reports “general consensus” among researchers about the importance of prison programming toward reducing recidivism.

And indeed, to the extent that inmates released after Johnson have recidivated, that may be in part because they did not receive re-entry programming, despite the existence of policies promoting such support.

According to a 2007 program statement, the Federal Bureau of Prisons claims that the reduction of inmate recidivism is an objective of its Release Preparation Program. This program includes classes on different topics, such as employment and personal finance. Inmates “should enroll” in the program “no later than 30 months prior” to release. Additionally, a “unit release preparation phase” provides inmates with individual assistance from staff, which “usually begins in earnest” 11 to 13 months before release. This phase includes a focus on concrete “release plans” that address aftercare, conditions of supervision, release destination, relocation, residence and employment.

Inmates bringing Johnson claims for shortened sentences were often not in the final 13 or even 30 months of their original sentences. As a result, they did not all receive adequate re-entry planning before they were released, according to Benji McMurray, an assistant federal public defender in Utah. McMurray adds that the bureau rebuffed his attempts to coordinate important late-stage programming for his Johnson clients.

Bureau policy does state that “inmates are encouraged to participate in RPP courses throughout their confinement,” but McMurray says his clients report that meaningful opportunities did not always exist or were not helpful. Todd Bussert, an attorney in private practice with more than 20 years’ experience addressing issues related to the bureau, including as a member of the Sentencing Commission’s Practitioners’ Advisory Group, says of the bureau’s re-entry services that “a chasm between policy and practice” exists, so that the stated policy is not a “true barometer” of what is available to prisoners.

McMurray’s and Bussert’s anecdotal concerns find support in the Office of the Inspector General’s 2016 Review of the Federal Bureau of Prisons’ Release Preparation Program. The report, which was not focused just on those released as a result of Johnson, indicates that the bureau “does not ensure that the RPP meets inmate needs” and “releases many inmates who have not completed the RPP.”

Despite recidivism by some after Johnson, there are success stories as well. McMurray reports that clients of his have gone to school and joined the work force. One now runs a mechanics business.

Congressional Response

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.

According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause. They disagree on how broadly the law would sweep. Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.

People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee. Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress.

Andrew Hamm

Andrew Hamm

At the same time, Seibler observes that “if there’s anything Congress can efficiently pass, it’s a criminal penalty, especially when law enforcement wants it.”

Andrew Hamm, a scholar and commentator on the Supreme Court, writes the SCOTUSblog. A 2012 graduate of Harvard University, where he studied archaeology and government, Hamm previously completed a fellowship at the American Constitution Society for Law and Policy and an internship with the Campaign for Youth Justice. The Crime Report is pleased to reprint this blog article with the permission of the author, and welcomes comments from readers.


Seizing a Second Chance: An Ex-Inmate Brings Hope Back to Her Community

Karen Loftin was a drug addict and prostitute who served 16 years in prison. Today, at 52, she’s working towards a masters degree at Syracuse University while helping other former incarcerees rebuild their lives.

Karen Loftin sits on the edge of the park bench. She tucks a strand of hair back behind her ear, her long, perfectly manicured nails shining in the afternoon sunlight. A gold chain clinks around her neck. She wears a shirt embossed with one bold word — “Confident.”

Turning to the camera, she smiles unwaveringly. After the shutter goes off, she stands up.

“Take a photograph of me near the tree!” she says, her face lighting up with childlike energy. She runs towards a trunk covered in vines.

Karen’s warm demeanor is one of her most striking traits.

I first met her at PEACE Inc.’s Emma L. Johnston Southside Family Resource Center in Syracuse, N.Y. PEACE is a non-profit organization which provides services to the community, one of which is re-entry support for former prisoners and parolees.

Before I met Karen, I was aware she had served some jail time on drug abuse and prostitution charges, but that was the extent of what I knew about her.

A few days after our first meeting, Karen told me about her involvement with PEACE. Over banana bread and coffee, she told me that after being off parole for 16 years, PEACE hired her to work under the Family Reunification Pilot grant. Her job was to work with each former prisoner and parolee and give them specialized support to smooth their transition from prison to family life.

On our way to the center that morning, Karen told me she was HIV positive. She said she had discovered her status more than 25 years ago after the birth of her second child. She told me in the most matter-of-fact way, but shared talking about her disease hasn’t always been this easy because of the stigma that surrounds her condition.

A regular volunteer at the center, Karen helps people in the community living with HIV by showing them how they can effectively manage the disease and stay positive throughout it all.

“Society says once you’re something, you’re always going to be that. There’s no room to change,” Karen said. “That was one thing I have always had to fight through.”

A Rebel At 12

Karen was born in 1965 on the southwest side of Syracuse to a family of seven children. From a young age, she was rebellious and outspoken. At 12, she was smoking marijuana and constantly getting suspended from middle school.

Her childhood was unstable. Her father was abusive towards her mother, but Karen often found herself taking his side when the police showed up at home.

“I was a daddy’s girl,” she said.

This caused deep cracks in Karen’s relationship with her mother that never fully healed. Her mother passed away while Karen was in prison.

“One of my biggest regrets is that I never got the chance to fix things with my mom. No matter what good things I do in my life, that’s one thing I can’t ever fix,” Karen told me in her apartment, one rainy afternoon.

Karen Loftin

If you come into contact with young people that are struggling, and their dreams have somehow turned, just encourage them to not give up,” says Loftin. Photo by Zachary Krahmer/The Stand

She pointed to a picture of a serious woman with steady eyes. An uncanny resemblance.

“When I look back on my life, I realize she loved me, she cared for me, she supported me, but because of how I was internalizing things, I couldn’t see it that way,” she said.

A few years later, Karen’s mother sent her to live with her dad and his new family in Puerto Rico. Although passing in school was an effortless task for Karen, she felt under-motivated and abandoned.

“I was searching for something. I felt so abandoned at home; I was always in the streets, searching and searching,” she said. “Finding a place where I could be me.”

Karen says she has seen children in her neighborhood who have gone through similar experiences because they feel so misunderstood and neglected.

“The kids internalize these perceptions of who they are and how the world looks at them,” Karen said. “I was one of them.”

After graduating from school with no foreseeable plans for the future, Karen took to the streets. It was there at age 19 that she got into a relationship with a man 10 years her senior.

Karen’s relationship with the man quickly turned abusive after she discovered he was a heavy narcotics user. It was out of shame that she stayed with him, she said.

It was around that time that Karen went to jail for the first time for stealing and cashing checks. She received probation, but violated it at 21. By then, she was doing cocaine, working as a prostitute, cashing checks and doing whatever else she could to support her drug habits, she said.

In 1985, Karen went to county jail, and three years later, served her first prison term. What followed was a series of back and forths in and out of jail. In 1990, Karen’s father passed away and she violated parole. She took off with a man to Connecticut. He ended up becoming the father of her two children.

Karen gave birth to her daughter in 1991 at age 25, and her son in 1994. During this time, HIV was transitioning between gay, white men to intravenous drug users, spreading primarily through shared needles and syringes. Because she was still an active drug user, Karen got HIV tested after each of her pregnancies. The first time, the results came out negative. But the second time, she tested positive.

It was a result that turned her world upside down.

Behind Bars, Again

After discovering her status, Karen had another prison sentence waiting for her. She found herself behind bars, yet again.

Karen wasn’t HIV tested when she entered prison and didn’t end up sharing her status until two years into her sentence.

“I felt like if I could just smoke marijuana in jail and stay under the radar, I’d be fine,” she said. “Telling people about my status would have made me vulnerable. I couldn’t deal with that.”

Karen says during the 1980s, the HIV epidemic was growing at a much faster pace than people could handle. She says she remembers sitting in prison with other women and wondering how they would protect themselves, considering many high-risk groups go to jail.

Shortly after this, the prison Karen started a program to educate and empower women coming in. Karen and her inmates wanted to quell fears about HIV, so they pushed legislation from inside the prison.

Through a close friend she made at the program, Karen met her “guardian angel,” Kathy Bouldin, another prisoner and social activist. Bouldin pushed Karen to disclose her HIV status to the other inmates, as well as become a peer educator for the HIV program.

“It was just so funny because I’d grown up being such a black radical — black power this, black power that,” Karen said. “And here was this white Jewish woman from Brooklyn telling me all I had was a big mouth, and that I should use it for something good.”

Under Bouldin’s guidance, Karen became an educator in the program. She helped develop workshops for new inmates. She grew into her position and says she found her calling. But there were difficult times.

Karen recalls one particular support group for female inmates she spent a great deal of time organizing. But when it came time to talk about HIV, the women weren’t interested. They told her they’d rather watch a movie.

“I was so hurt,” Karen said. “I asked them, do you not want this information? And they were like, no, because we got you for that!”

Karen says she remembers going back to Bouldin and crying. Through her tears, Karen had an epiphany.

“You can set everything before some people and they still wouldn’t know what to do with it. Working with the women, I realized because of their circumstances and how they were raised, they actually didn’t know any better,” Karen said. “They needed someone to speak for them. They needed me.”

Karen says forcing people to speak up about what they are facing is not social advocacy.

“I don’t have a problem speaking up and talking about my status because I know people out there that are afraid and they look to me and people like me for empowerment,” Karen said. “But that doesn’t mean they have to pick up a microphone and declare they are positive themselves.”

Returning Home: The Disconnect

A few months after her epiphany, Karen finished her prison sentence and was able to go back to her family.

By this time, her children were already walking and talking. But from the first day, Karen felt an utter disconnect from her son and daughter. Karen says she remembers her children crying because they didn’t want to leave their old home and family behind.

“They might have assumed that everything they learned from the people who had them when they were young was what they should go by,” Karen said.

Karen Loftin

Loftin, now pursuing a Masters at Syracuse U, hopes to help troubled youth in the community by opening her own resource center. Photo by Saniya More/The Stand

“I felt like any of the values and standards that I was implementing in my household were kind of overlooked, like I was this lady that just came home and got her kids back.”

Time has helped Karen’s relationship with her children, she says. But there are times when she feels like they don’t know each other as a family.

“I still feel like my incarceration is playing a part in our relationship. If I could, I would love to go to therapy with my children, because we never sat down and talked about how me not being in their lives affected them,” Karen said.

“We just never had those conversations.”

Bruce Western, author of “Homeward: Life in the Year After Prison,” examines how incarceration impacts the individual and the family. His recently released book shows how failures of social support trap many fresh out of prison in a cycle of vulnerability despite their best efforts to rejoin society.

The perspectives of women are unique to this study, the author says, with each sharing their specific challenges in reestablishing connections with family, particularly on bonding again with offspring.

“When women enter prison, they have accumulated long histories as victims of sexual and other violence and are also more likely than men to have serious drug problems,” Western writes in his book.

“After prison, they were much more likely than men to be living with family. Finding work was a leading challenge for men after incarceration, but for women employment often took a back seat to staying clean and rebuilding family relationships.”

A few weeks after Karen and I started talking, I met her 23-year-old son Joshua Loftin. I wondered if he felt the same disconnect with his mother.

We meet on the first floor of Bird Library on the Syracuse University campus. He’s wearing a Syracuse sweatshirt and tells me Karen dropped him off. He has her smile.

He tells me about finding out his mother is HIV positive.

“We were in the car, I was about 9 or 10. My mom was talking to my older sister about it, but I didn’t understand what was doing on, so I asked,” he said. “I remember feeling like nothing had changed in that moment. It didn’t matter. This was the only mother I was gonna get, and this was the only mother I wanted.”

Karen says her relationship with her parents has, more than anything, shown her what kind of parent she does not want to be. Raising children after going through incarceration presented its own challenges, though, and Karen rarely discussed her prison experiences or her status with her children.

“I didn’t want to overwhelm them,” she said.

Joshua said Karen only really started to open up about her experiences after he started going to community outreach events with her.

After discovering his mother’s status, Joshua went through a period where he blamed himself for it. Because Karen found out she was HIV positive after he was born, he felt like it was his fault she was living with the condition. He has gotten over it over the years, he says, but it’s still hard sometimes.

“She would sometimes come to our school and talk, and she’d ask my sister and I, ‘Am I embarrassing you at all?’ We would always say ‘not at all. This is what helps you. You’re teaching others. Teaching us; teaching yourself,’” Joshua said.

“I don’t want her to feel like she can’t tell her story because of the way I felt back then.”

Karen says one of the hardest things about parenting has been to ensure her children don’t take to the streets like she once did. At the same time, Karen is wary of stopping them from living their own lives.

“I never wanted my children to think I was afraid of them turning out to be like me,” Karen said. “I want them to grow into themselves.”

Joshua says that at times, he feels that Karen expects unrealistic things from him — expectations he doesn’t think he can live up to, like getting a specific job or living life a certain way.

“She pushes and pushes and pushes,” he tells me. “Growing up, I felt like I wasn’t the golden child that she wanted me to be.”

But Joshua says he understands where his mother comes from. He says he is incredibly proud of how far she has come, even if they bump heads often.

“She can heat up quicker than me,” he says with a laugh. “I know she’s been through way more though, that’s probably why.”

The Stigma of Prison

When Karen left prison about 20 years ago, she faced a lot of stigma, especially when it came to job-hunting.

Since then, she says society has become much more understanding of a person’s criminal history, even though people like her still face discrimination every day, particularly because of their race, gender and HIV status.

“The African-American community continues to dominate the top of every negative list,” Karen said. “Local leaders are somewhat negligent when it comes to addressing the needs of black people.”

Karen Loftin

Loftin with Nicky Jennings, the PrEP Education Specialist at Upstate, co-hosted a talent showcase in April to give local teens a space to perform and to provide HIV awareness education. Photo courtesy The Stand.

Karen says state-funded grants like the one PEACE received, and which is still under review for renewal, aren’t always designed to help the community.

“It all comes down to politics,” she said.

She says working in some sort of human service capacity is the perfect job for someone who has just left prison, because many organizations are looking for people who can form meaningful connections with members of the community going through similar problems. It is also a way for ex-prisoners to redeem themselves by improving their community.

“We need to be willing to seize whatever opportunities we can find, rather than wait to be given them,” Karen said. “By being the generation before them, we started this problem and it’s going to take us to fix it.”

Structural reform is a much-needed development in Syracuse, particularly when it comes to prison management and community outreach, Karen says.

“There is a need for therapeutic assistance, community outreach and counseling, especially for young adults about to move away from home,” Karen said. “This is when they develop their perceptions of the world and their place in it. After that, their way of life is set and it’s harder to change them.”

Not too long after getting involved in PEACE, Karen enrolled at Syracuse University and graduated with a bachelor’s degree in child and family studies in 2017. Her degree sits in her living room, illuminated by the lamp next to it. It’s a source of great pride for her.

Karen hopes to use her degree to start her own youth center in the future. She believes there needs to be more centers that provide emotional support and resources for Syracuse’s youth — a place where children from troubled households can feel safe and appreciated.

Through her youth center, Karen hopes to instill a renewed sense of togetherness in her community. Her primary goal is to focus on youth and family development — strengthening relationships between children and their parents.

Gazing at the hail that has unexpectedly started to fall outside her window, I ask Karen if she plans to stay in Syracuse forever.

She smiles for a moment. “I’m here for now,” she answers.

“I recently asked an old friend of mine who owns a business here, why are you still here?” she shared. “You know what he told me? If everyone left, there’ll be no one to keep this town running, and the kids in this community are going to suffer,” she said.

Finding Herself

When Karen was little, she struggled with her dark complexion. It was a source of great insecurity for her.

“One of those days, I remember my grandma pulling me onto her lap and telling me ‘God makes no mistakes. No one is better than you in the eyes of God, but always remember, you’re not better than anyone either,’” she said.

Karen’s confidence is something she has developed over time, and she is well aware that people have judged her and will perhaps never stop judging her.

One of the last times we meet, I ask her what she would say to people who made assumptions about her. She doesn’t think twice before responding.

“I probably wouldn’t say anything,” she said. “I’ve never been one to try and convince someone that I’m someone I’m not. I’ve definitely made some mistakes in my life, and I might agree with some things people say and disagree with others, but I’m not going to have that conversation. It’d be a waste of time.”

Instead, Karen has a message for the whole world.

“If you come into contact with young people that are struggling, and their dreams have somehow turned, just encourage them to not give up,” she says, looking directly into the video camera recording her.

“I think that’s an important thing we can all do.”

Watch a Video of Karen Loftin

See also Part One of the series, ‘The Day I Came Out of the Shadows’

This is a condensed and slightly edited version of a story published in The Stand, a community newspaper produced in Syracuse, N.Y., in partnership with S.I. Newhouse School of Public Communications. Ashley Kang, director of The Stand, is a 2018 John Jay/H.F. Guggenheim Justice Reporting Fellow. Readers’ comments are welcome.


Exporting Murder: US Deportations and the Spread of Violence

Gangs like MS-13 are increasingly portrayed as threats to U.S. national security. But they are also the product of U.S. policies that deport criminal offenders back to Central America, where they have fueled the violence that has sent many refugees fleeing north, say two researchers.

The humanitarian organization Doctors Without Borders recently published a report documenting the threats that drive 500,000 Central Americans away from their homes every year. The three countries of the so-called Northern Triangle— Honduras, El Salvador and Guatemala—are among the most violent places on earth, with levels of violence that match the world’s deadliest war zones.

Many of those fleeing extreme violence in their homelands seek asylum in Mexico and the United States. According to the UN High Commissioner for Refugees, the number of refugees and asylum seekers from Northern Triangle countries has increased ten-fold since 2011. Notably, recent research by Michael Clemens of the Center for Global Development finds that the massive inflow of unaccompanied minors across the southern border of the U.S. since the summer of 2014 has been due, in large measure, to violence in their communities of origin.

Within a public discourse that often portrays refugees as a threat rather than victims who deserve help and compassion, one part of this story has largely been ignored: U.S. border control policy—notably the deportation of criminal offenders back to their countries of origin—has played a critical role in the spread of violence in Latin America.

Although immigration rhetoric and policies have become increasingly hostile under the Trump presidency, it is fair to say that use of deportation is nothing new.

One pillar of immigration policy since the mid-1990s has been a tough stance on immigrants who have committed criminal offenses while in the U.S. Between 1996 and 2015, the U.S. deported 5.4 million individuals back to their homelands. Forty percent of these—2.2 million – had committed a felony while in the U.S. By deporting convicted felons, the U.S. returns home persons likely to have developed connections with transnational organized crime upon incarceration in the U.S., and who are likely to have refined their set of criminal skills.

Christian Amborsius

Christian Ambrosius

The case of El Salvador is particularly illustrative.

This small Central American country has a Salvadoran-born diaspora of 1.2 million people in the US, corresponding to a fifth of its total population of 6.3 million. Two rival gangs, the MS13 (Mara Salvatrucha) and the 18th Street gang, have turned El Salvador into one of the most violent places on earth. Both gangs originated on the streets of Los Angeles, home to a large Salvadoran community in California.

El Salvador is also the country that received one of the highest per capita inflows of deported offenders from the U.S. By 2015, the U.S. had deported 95,000 criminal offenders—an amount equal to 1.5 percent of that country’s total population.

Journalistic investigations have linked the deportations of convicted gang members to the spread of gangs in Central America. But can we be sure that the gang expansion was caused by deportations? Or did gangs simply adopt the style and habits seen in the U.S. and the media while inhabiting a longer tradition of violence in a country torn by social conflict and civil war?

Digging into Salvadoran data provides evidence that gang-related violence has indeed been exported from the U.S.

Gangs did not pop up everywhere in El Salvador. Instead, the rise of homicides after the 1990s is strongly linked to patterns of emigration and deportations. The areas of El Salvador that are suffering the most from gang violence are those whose expatriates settled in U.S. cities with high criminal activities, such as Los Angeles and the Washington, D.C. area.

Why is that? When the U.S. started to deport convicted gang-members in the mid-1990s, those deported were mainly children of Salvadoran migrants who had settled in poor urban neighborhoods where they had been socialized into existing gang cultures. Deportees then returned to the communities where they had been born. As a result, homicide rates skyrocketed precisely in these places. This did not happen when migrants settled in U.S. cities where they had no contact with gangs.

Many might argue that El Salvador is a specific case that does not permit general claims about the export of violence via deportations. In our recent research, we therefore looked for systematic evidence across a large sample of more than 120 countries since the early 2000s. We asked whether the number of persons deported from the U.S. to a particular country had a statistically discernable impact on the rate of homicides in that country.

David Leblang

David Leblang

Our findings are striking. Even after utilizing a very conservative statistical approach, we find that, on average, an additional inflow of 10 offenders per 100,000 persons translates into more than two additional homicides per 100,000 inhabitants in the receiving country. Importantly, we only found this effect for the deportation of criminal offenders; no similar impact was observed if we focused instead on non-criminal deportations.

To illustrate the magnitude of the effect, consider the case of Honduras.

Honduras is one of the most violent countries in the world with a homicide rate in 2012 of 92 per 100,000 residents. Honduras also received one of the highest influxes of deported offenders that same year: 162 per 100,000 residents. Hence, our model assigns roughly a third of all homicides that year to the inflow of deported offenders.

Our results hold most robustly for the countries of Latin America. This occurs largely for two reasons. First, the deportation of convicted offenders is most relevant for Latin America in quantitative terms: almost 90 percent of all deported offenders over the period 1996 to 2015 were sent to Latin America. Second, the deportation of convicted offenders seems to fall on fertile grounds in many countries of Latin America: deportees are sent back to an environment where economic, political and social opportunities are likely limited.

It is also a region that has been characterized by historically high levels of social conflict and violence, and where criminal enforcement capacities of states are often weak.

The ‘Third Wave’ of Central American Immigration

Central America has seen three migration cycles over the last decades. In the 1980s, migrants fled civil wars between military governments and guerilla movements. In the 1990s and 2000s, the migration flow was dominated by Central Americans escaping poverty and the lack of employment opportunities at home.

Today, we are witnessing a third wave of immigration from Central America driven by violence. There is strong evidence that this violence has been fueled by the deportation of convicted offenders. This has several important policy implications. Not only does their deportation carry huge follow-up costs at migrants’ countries of origin, largely to be borne by innocent people. These policies are also ineffective in discouraging migration.

To the contrary: America’s export of offenders feeds a vicious migration cycle by further destabilizing countries that are already suffering from high levels of conflict and social exclusion.

Finally, these policies bear the risk of trans-nationalizing crime that may feed back into neighboring countries and back to the U.S. The most troubling example: the Central American gangs that have turned into a region-wide concern.

A sensible migration policy would not imprison and traumatize a new generation of innocent children as happened in the summer of 2018, but instead search for ways to help countries break the vicious migration cycle that haunts Central America.

Christian Ambrosius is a lecturer at the Institute for Latin American Studies and the School of Business and Economics at Freie Universität Berlin and currently visiting professor at the National Autonomous University (UNAM) in Mexico City. David Leblang is Ambassador Henry J. Taylor Professor of Politics and Professor of Public Policy at the University of Virginia and a senior fellow at the Miller Center of Public Affairs. This essay is an expansion of an article by the same authors that previously appeared in the Washington Post. They welcome comments from readers.


Can ‘Preventive Detention’ Replace Money Bail?

Under a new law that went into effect this month, New Hampshire judges can no longer keep individuals accused of low-level offenses behind bars just because they can’t afford to pay cash bail. But reformers who welcome the “culture shift” also worry about a companion rule allowing those considered public safety threats to be held in “preventive” custody.

At one point in June, the Hillsborough County jail in Manchester, New Hampshire, held 32 people on bail amounts of $1,000 or less.

The charges against them—none had yet been convicted—included criminal trespassing, drug possession, breach of bail conditions, driving under the influence, shoplifting, burglary, misdemeanor assault and being a felon in possession of a weapon, according to a report from the Hillsborough County Department of Corrections.

One man, charged with “misuse of 911 system,” was held on $160 bail.

New Hampshire, by national standards, keeps relatively few people in jail pending trial. But defense lawyers say some alleged offenders, like those in Hillsborough County, are nonetheless kept in jail because they cannot afford to post even low bail amounts.

That could soon change.

Earlier this month, a significant rewrite of the state’s bail statute took effect. The new law prohibits judges from setting bail in an amount that keeps a defendant in jail because he or she is unable to post it.

At the same time, the law vastly expands the ability of judges to use preventive detention—detention without bail—for defendants whose release could endanger the public or themselves.

“It’s a cultural shift for all of our courts, because we are one of the states that has used cash bail over the years as a means of detaining people,” said Judge Edwin W. Kelly, the administrative judge of New Hampshire’s circuit courts.

How exactly that shift will play out is unclear, according to interviews with a dozen defense lawyers, prosecutors, judges, and legal experts.

The new law, those observers said, seems likely to keep those accused of low-level crimes out of jail while their cases are pending. Less clear is the role preventive detention will play, and how it will intersect with new language that bars judges from basing detention decisions solely on drug addiction or homelessness.

“What the bill affords and gives is tremendous discretion to judges,” said Colin Doyle, a staff attorney with the Criminal Justice Policy Program at Harvard Law School who studies pretrial laws and practices nationwide.

 Downplaying Cash

New Hampshire’s bail changes—passed as Senate Bill 556 with bipartisan sponsorship and signed into law by Gov. Chris Sununu in July—come at a time when other jurisdictions, including New JerseyCalifornia and Cook County, Ill., are reducing or eliminating the use of cash bail.

Reformers argue that linking pretrial release to money discriminates against people with low incomes, violates the constitutional presumption of liberty before trial and does nothing to improve safety or court appearance rates.

“We currently have a system where a lot of people are serving time behind bars before they’ve been convicted of anything,” Alex Parsons, the managing attorney of the New Hampshire Public Defender office in Keene, said last month. “And that should not be the norm.”

But New Hampshire’s bail-reform push was not without critics. County attorneys raised concerns about public safety, saying it could mean the release of some defendants who pose risks. Andrew Shagoury, president of the New Hampshire Association of Chiefs of Police, warned in an op-ed that the reform, to be successful, would require a costly expansion of pretrial services—things like monitoring, drug testing and reminding defendants of court dates.

Cash bail and other pretrial release conditions have two basic aims: making sure someone shows up to court and making sure the public is safe.

Until this month, those two prongs intertwined. A judge would decide a defendant seemed to endanger public safety, run the risk of missing court appearances or both, and come up with a bail order that accounted for those factors.

The new law effectively splits that analysis in two. If convinced that outright release would endanger society or the defendant, a judge can now order that person held without bail or impose restrictive conditions like electronic monitoring.

Otherwise, judges can set cash bail if they believe the prospect of forfeiting money will encourage defendants to show up.

But there’s a caveat: The defendant must be able to afford it and cannot be detained merely because they can’t pay.

“Essentially, if the issue that you are confronting in court is whether or not this person is going to appear, that person has to walk out the door of the courthouse,” Kelly said.

That could have an impact in Cheshire County. As of Tuesday morning, the county jail housed 46 pretrial inmates, 25 of whom had been there for longer than a month.

Some of them, accused of violent crimes, sexual assaults or other egregious offenses, were held on high bail amounts and would likely be ordered held without bail under the new statute.

Often, Cheshire County defendants who face less serious allegations are released on personal recognizance — without having to put up money. But not always. As of Wednesday morning, the county jail held nine people on bail of $1,000 or less, according to the facility’s booking department.

 Emphasizing Prevention

While cautiously optimistic about the change to cash bail, Parsons, the public defender, said he worries about the courts’ new preventive-detention powers. “My fear is that we have a lot more people simply detained without bail, whereas before they might have at least … had a chance of getting out,” he said.

Previously, New Hampshire judges could refuse bail in just a handful of situations, such as violations of domestic-violence protective orders and certain homicide cases.

In practice, that restriction led to extremely high dollar figures in some cases, all but guaranteed to keep a person charged with a serious violent offense behind bars.

“I’ve said on the record, ‘I’m setting a bail I don’t think you can post, because I think you’re dangerous,’ ” said Judge David W. Ruoff, who presides over Cheshire County Superior Court in Keene.

Usually an effective route to detention, that system was imperfect. “I’ve had cases where bail was set at $100,000—and the person had the money,” Paul G. Schweizer, a Keene-based defense attorney, said.

Prosecutors and judges said a range of offenses could qualify for preventive detention under the new law—serious assaults, sexual assaults, nighttime home invasions, perhaps some drug sales or repeat DWIs—but stressed that detention decisions will always depend on the circumstances of a case.

“Every bail decision is unique to the facts of that case,” Ruoff said. “There are cases, I think, when someone’s engaged in drug distributions where that conduct raises serious safety concerns to themselves and to the community. There may be distribution cases where that’s not true.”

Albert “Buzz” Scherr, a University of New Hampshire law professor who helped draft the law, said built-in procedural safeguards should keep detention in check.

For instance, a judge can find someone dangerous only after hearing “clear and convincing evidence”—the second-highest standard in the legal system.

“Much of this is going to be how aggressive defense lawyers are at putting the prosecutors to their proof,” Scherr said.

Unease over preventive detention is not unique to New Hampshire. California last week passed a sweeping bail-reform package that, according to Politico, eliminated the use of cash bail while expanding preventive detention and the use of standardized risk assessments.

The provisions about detention and risk assessments alienated some of the bill’s onetime supporters. Critics say standardized risk assessments can discriminate against minorities by reflecting underlying racial disparities.

The Granite State’s law, by contrast, makes no mention of risk assessment tools, though Kelly said a state criminal-justice council is looking into the possibility.

Doyle, of the Criminal Justice Policy Program, said an approach like New Hampshire’s “allows for a more case-by-case approach.” But that flexibility can make outcomes less certain, he added.

“Judges’ incentives can easily get misaligned,” he said. “… If they release someone pretrial, and that person commits a crime, then the judge’s photo shows up in the newspaper.”

Meanwhile, local prosecutors say they’re waiting to see how the courts will interpret a key provision of the law, which says findings of dangerousness “shall not be based solely on evidence of drug or alcohol addiction or homelessness.”

One question, Cheshire County Attorney D. Chris McLaughlin said, is “how you deal with a situation where, you know, someone’s a heroin or fentanyl addict, they’ve got a long history of committing crimes while under the influence, they’ve overdosed 10 times in the past, and they’re homeless.”

The new law doesn’t force judges to ignore concerning behavior just because it’s linked to drug use, McLaughlin and others noted. “If somebody commits a serious felony-level offense, the fact that they are addicted really wouldn’t impact your decision on dangerousness,” Kelly said.

Whether a judge can detain someone whose substance use puts them at serious risk of a fatal overdose is less clear. Kelly believes he cannot. “The Legislature is saying, ‘You can’t consider that,’ ” he said. Ruoff, however, said some of those cases aren’t just about addiction but “addiction plus the level of their use.”

Sullivan County Attorney Marc Hathaway worries the language about addiction will hinder efforts to detain people whose use of potent illegal drugs endangers themselves or others. He said he plans to ask for rulings that clarify those issues.

“Remember what the purposes of bail are: to protect the public safety, to protect the accused and to protect against the risk of flight,” he said. “There is no greater risk to a person in our society today than being addicted to heroin or using fentanyl and carfentanil.”

Ultimately, Scherr said, it’ll be up to lawyers and judges to work through those issues — nothing unusual in a system that depends on judicial discretion and the adversarial process.

“It would be a bad law if it was (based on an) algorithm,” Scherr said. “… We want to force the judges to pay attention to the individual more, but we want to force them to do it in an environment with some clear standards.”

 Paul Cuno-Booth, a staff writer for the Keene Sentinel, is a 2018 John Jay Rural Justice Reporting Fellow. This article, which was published this month in the Sentinel, was part of his fellowship project. Follow Paul on Twitter at @PCunoBoothKS. He welcomes readers’ comments.