Memo to the New Court: Let’s Avoid ‘Stupid’ Law

A former Supreme Court Justice once said, allegedly quoting Thurgood Marshall, that the Constitution doesn’t prohibit legislatures from enacting “stupid laws.” The only check on judicial ignorance or duplicity is engaged voters, says a commentator on drug issues.

Whatever we think of individual policemen, lawyers, or judges, we have a lofty idea of the Law itself, ingrained in us by noble if flawed depictions in the media or civics classes.

Although we talk of someone “escaping justice” due to a loophole or a technicality, by and large, we believe that if you’re not guilty, you won’t be arrested.

If by some mistake you are arrested even though innocent, you will not be convicted. And even when its execution is faulty, the Law is backed by principles of Justice, of fair play and, above all, finding the truth.

Until we run afoul of the law, anyway.

Then we remember that the Law is mostly about control, maintaining order, enacted by legislators who may have political or personal motivations and that it need not be fair or rational.

The Law is Allowed to be Stupid

Former US Supreme Court Justice John Paul Stevens said—allegedly quoting fellow former justice Thurgood Marshall, though I can find no attribution that doesn’t come by way of Stevens, who did not share in what context he may have made the statement—“The Constitution does not prohibit legislatures from enacting stupid laws.”

Just as one may be released for a constitutional violation by the police or courts that does not in itself show their innocence, so too, one who has been convicted may not have evidence of innocence considered if there is no constitutional violation.

On two occasions, Supreme Court Justice Antonin Scalia almost said that innocence is no reason to halt an execution or compel a lower court to consider new evidence. (Actually, he said “claims of innocence,” as in affidavits.)

Similarly, if a law is based on demonstrably incorrect beliefs, that’s not enough reason for the courts to overturn the law.

As one commentator put it, if the government can show that the law is “rationally related or legitimate” in serving its purposes … even if it is idiotic”, the courts will likely grant it deference. Many judges believe that is still in the purview of the legislators, and they are under no obligation to change the law to correspond with the facts.

Marijuana

Take marijuana, or cannabis as many proponents of legalization prefer to call it.

Under federal drug law, it is kept on Schedule I of the Controlled Substances Act, the most restrictive list, and so is considered irredeemable: It is, according to the law, extremely addictive. It has no medical use. And, even if it did (which the law says it doesn’t), it has no safe use even under the direct supervision of a physician.

As applied to marijuana, those assertions are demonstrably false. It’s not just anecdotal evidence either.

All of those contentions have been contradicted by scientific study:

  • Millions of Americans and others have used marijuana “safely”. They have suffered no health problems, continue to hold down jobs, raise families, and contribute to society. No one has ever died from an overdose of marijuana, as even the Drug Enforcement Agency has affirmed. That’s more than can be said for many drugs that are on Schedule II or III, such as the opioids driving the opioid epidemic, aspirin, or alcohol which isn’t anywhere on the CSA.
  • There is some doubt as to whether marijuana is addictive at all. If it is, it’s an extremely low risk of addiction, with none of the severe side effects withdrawal from most addictive substances entail. Some researchers and rehab facilities in California believe marijuana can replace highly addictive opioids such as oxycodone and hydrocodone for treatment of chronic pain, actually preventing addiction.
  • Medical use. Thirty states now recognize that marijuana has medical benefits and allow its use for a range of conditions, including chronic pain, anxiety, epileptic seizures, and post-traumatic stress disorder.

There are fewer protests that cannabis can’t help some patients with some health conditions. Judge Alvin Hellerstein of the Southern District of New York said, “We recognize now that there are medical purposes marijuana can be useful for.”

Hellerstein was hearing a lawsuit that argued it was irrational and unconstitutional to place marijuana on Schedule I. He clearly didn’t buy that part of the government’s argument but decided that wasn’t enough reason to compel the Congress or the courts to do so.

Instead, he dismissed the case, arguing the plaintiffs should have exhausted the administrative process, i.e. continued to petition the Drug Enforcement Agency (DEA) to reclassify marijuana.

Many plaintiffs have tried. In the eyes of even a sympathetic judge, they should just keep banging their heads against the wall.

One reason the DEA has given for keeping marijuana on Schedule I appeared in its 2017 Drugs of Abuse resource guide: “the U.S. Food and Drug Administration that has the federal authority to approve drugs for medicinal use in the U.S…. has not approved a marketing application for any marijuana product for any clinical indication.”

That has since changed. In June, the Food and Drug Adminstration approved Epidiolex, an epilepsy medicine for children derived from marijuana—specifically, from cannabidiol (CBD), a non-euphoric, non-psychoactive cannabinoid found in marijuana and hemp.

It won’t get you high, so it’s not the same as marijuana—except that as recently as May, the DEA considers CBD as illegal as marijuana, and persuaded a federal appeals court to agree. It appears that a case could be made that FDA now considers marijuana as medicine.

Drug Courts

Some drug courts have likewise ignored the facts when it comes to how to treat drug offenders.

Some send offenders, even if not themselves drug users or drug addicts, to drug rehab camps that are more like work camps. No rehab other than free physical labor. If perchance the inmate/patient tests positive for drug use while there, they instead go to a traditional prison for the full sentence, no second chance, no sentence reduction for time already served.

As a New York Times article expressed it, if addiction is a disease, as even the US Surgeon General’s office now agrees, why is relapsing a crime? Statistics and experts at the National Institute on Drug Abuse say that relapse is likely, as it is with any “chronic medical illnesses such as diabetes, hypertension, and asthma.”

A relapse may be a one-time event. It may not be a return to constant or regular drug use. Sure, some may be people trying to game the system and stay out of jail without ever intending to stop using, but this system penalizes almost all addicts for being addicts. How many times has it taken more than one attempt to quit smoking?

Travel Ban

Likewise, the Supreme Court has upheld the latest version of the President’s travel ban. Lower courts had stalled the immigration ban because as a candidate Trump had promised “a total and complete shutdown of Muslims entering the United States”, which would violate the Establishment Clause’s religious freedom protections.

Once in office, he said, “I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” meaning the first version of his travel ban. Later, adviser Rudy Giuliani said, “When he first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally’”.

That sounds like Trump wanted a ban on Muslims from entering the country, and the only reason he doesn’t call it that is because he wants it to seem legal.

The Supreme Court said, no, that would be an unwarranted assumption.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters”, said Chief Justice John Roberts. Besides, not all of the countries on the amended list are majority Muslim, and “The text says nothing about religion.”

Of course, the Court couldn’t have called President Trump before them and asked him, under oath, whether he intended the eight-nation immigration ban to be a Muslim ban – it only has appellate jurisdiction—but this seems like more than judicial restraint.

It seems like determined judicial ignorance or duplicity in disguise.

Is There a Solution?

Legislatures and chief executives can craft laws inelegantly, or deliberately obfuscate, but the question is when or if the courts should intervene. Like it or not, whether or not the laws are rational is not a legal ground.

The problem is not that the legislatures, executives, and judges aren’t rational, it’s that people aren’t rational. From smoking to overeating, drug abuse to pollution, personal relationships to personal finances, people are inconsistent, illogical, and with all the survival instincts attributed to lemmings.

All people make mistakes or betray hidden prejudices, but they don’t like to be told when they are wrong. They would rather double-down on their misconceptions—belief perseverance—and there’s no reason to believe judges are immune, and certainly not legislators.

The best remedy isn’t in the courts or the congresses, but the voting booth. Vote. Organize. Stay informed. Otherwise, all those other idiots will make decisions for you.

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

from https://thecrimereport.org

Memo to the New Court: Let’s Avoid ‘Stupid’ Law

A former Supreme Court Justice once said, allegedly quoting Thurgood Marshall, that the Constitution doesn’t prohibit legislatures from enacting “stupid laws.” The only check on judicial ignorance or duplicity is engaged voters, says a commentator on drug issues.

Whatever we think of individual policemen, lawyers, or judges, we have a lofty idea of the Law itself, ingrained in us by noble if flawed depictions in the media or civics classes.

Although we talk of someone “escaping justice” due to a loophole or a technicality, by and large, we believe that if you’re not guilty, you won’t be arrested.

If by some mistake you are arrested even though innocent, you will not be convicted. And even when its execution is faulty, the Law is backed by principles of Justice, of fair play and, above all, finding the truth.

Until we run afoul of the law, anyway.

Then we remember that the Law is mostly about control, maintaining order, enacted by legislators who may have political or personal motivations and that it need not be fair or rational.

The Law is Allowed to be Stupid

Former US Supreme Court Justice John Paul Stevens said—allegedly quoting fellow former justice Thurgood Marshall, though I can find no attribution that doesn’t come by way of Stevens, who did not share in what context he may have made the statement—“The Constitution does not prohibit legislatures from enacting stupid laws.”

Just as one may be released for a constitutional violation by the police or courts that does not in itself show their innocence, so too, one who has been convicted may not have evidence of innocence considered if there is no constitutional violation.

On two occasions, Supreme Court Justice Antonin Scalia almost said that innocence is no reason to halt an execution or compel a lower court to consider new evidence. (Actually, he said “claims of innocence,” as in affidavits.)

Similarly, if a law is based on demonstrably incorrect beliefs, that’s not enough reason for the courts to overturn the law.

As one commentator put it, if the government can show that the law is “rationally related or legitimate” in serving its purposes … even if it is idiotic”, the courts will likely grant it deference. Many judges believe that is still in the purview of the legislators, and they are under no obligation to change the law to correspond with the facts.

Marijuana

Take marijuana, or cannabis as many proponents of legalization prefer to call it.

Under federal drug law, it is kept on Schedule I of the Controlled Substances Act, the most restrictive list, and so is considered irredeemable: It is, according to the law, extremely addictive. It has no medical use. And, even if it did (which the law says it doesn’t), it has no safe use even under the direct supervision of a physician.

As applied to marijuana, those assertions are demonstrably false. It’s not just anecdotal evidence either.

All of those contentions have been contradicted by scientific study:

  • Millions of Americans and others have used marijuana “safely”. They have suffered no health problems, continue to hold down jobs, raise families, and contribute to society. No one has ever died from an overdose of marijuana, as even the Drug Enforcement Agency has affirmed. That’s more than can be said for many drugs that are on Schedule II or III, such as the opioids driving the opioid epidemic, aspirin, or alcohol which isn’t anywhere on the CSA.
  • There is some doubt as to whether marijuana is addictive at all. If it is, it’s an extremely low risk of addiction, with none of the severe side effects withdrawal from most addictive substances entail. Some researchers and rehab facilities in California believe marijuana can replace highly addictive opioids such as oxycodone and hydrocodone for treatment of chronic pain, actually preventing addiction.
  • Medical use. Thirty states now recognize that marijuana has medical benefits and allow its use for a range of conditions, including chronic pain, anxiety, epileptic seizures, and post-traumatic stress disorder.

There are fewer protests that cannabis can’t help some patients with some health conditions. Judge Alvin Hellerstein of the Southern District of New York said, “We recognize now that there are medical purposes marijuana can be useful for.”

Hellerstein was hearing a lawsuit that argued it was irrational and unconstitutional to place marijuana on Schedule I. He clearly didn’t buy that part of the government’s argument but decided that wasn’t enough reason to compel the Congress or the courts to do so.

Instead, he dismissed the case, arguing the plaintiffs should have exhausted the administrative process, i.e. continued to petition the Drug Enforcement Agency (DEA) to reclassify marijuana.

Many plaintiffs have tried. In the eyes of even a sympathetic judge, they should just keep banging their heads against the wall.

One reason the DEA has given for keeping marijuana on Schedule I appeared in its 2017 Drugs of Abuse resource guide: “the U.S. Food and Drug Administration that has the federal authority to approve drugs for medicinal use in the U.S…. has not approved a marketing application for any marijuana product for any clinical indication.”

That has since changed. In June, the Food and Drug Adminstration approved Epidiolex, an epilepsy medicine for children derived from marijuana—specifically, from cannabidiol (CBD), a non-euphoric, non-psychoactive cannabinoid found in marijuana and hemp.

It won’t get you high, so it’s not the same as marijuana—except that as recently as May, the DEA considers CBD as illegal as marijuana, and persuaded a federal appeals court to agree. It appears that a case could be made that FDA now considers marijuana as medicine.

Drug Courts

Some drug courts have likewise ignored the facts when it comes to how to treat drug offenders.

Some send offenders, even if not themselves drug users or drug addicts, to drug rehab camps that are more like work camps. No rehab other than free physical labor. If perchance the inmate/patient tests positive for drug use while there, they instead go to a traditional prison for the full sentence, no second chance, no sentence reduction for time already served.

As a New York Times article expressed it, if addiction is a disease, as even the US Surgeon General’s office now agrees, why is relapsing a crime? Statistics and experts at the National Institute on Drug Abuse say that relapse is likely, as it is with any “chronic medical illnesses such as diabetes, hypertension, and asthma.”

A relapse may be a one-time event. It may not be a return to constant or regular drug use. Sure, some may be people trying to game the system and stay out of jail without ever intending to stop using, but this system penalizes almost all addicts for being addicts. How many times has it taken more than one attempt to quit smoking?

Travel Ban

Likewise, the Supreme Court has upheld the latest version of the President’s travel ban. Lower courts had stalled the immigration ban because as a candidate Trump had promised “a total and complete shutdown of Muslims entering the United States”, which would violate the Establishment Clause’s religious freedom protections.

Once in office, he said, “I’m establishing new vetting measures to keep radical Islamic terrorists out of the United States of America,” meaning the first version of his travel ban. Later, adviser Rudy Giuliani said, “When he first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally’”.

That sounds like Trump wanted a ban on Muslims from entering the country, and the only reason he doesn’t call it that is because he wants it to seem legal.

The Supreme Court said, no, that would be an unwarranted assumption.

“We cannot substitute our own assessment for the Executive’s predictive judgments on such matters”, said Chief Justice John Roberts. Besides, not all of the countries on the amended list are majority Muslim, and “The text says nothing about religion.”

Of course, the Court couldn’t have called President Trump before them and asked him, under oath, whether he intended the eight-nation immigration ban to be a Muslim ban – it only has appellate jurisdiction—but this seems like more than judicial restraint.

It seems like determined judicial ignorance or duplicity in disguise.

Is There a Solution?

Legislatures and chief executives can craft laws inelegantly, or deliberately obfuscate, but the question is when or if the courts should intervene. Like it or not, whether or not the laws are rational is not a legal ground.

The problem is not that the legislatures, executives, and judges aren’t rational, it’s that people aren’t rational. From smoking to overeating, drug abuse to pollution, personal relationships to personal finances, people are inconsistent, illogical, and with all the survival instincts attributed to lemmings.

All people make mistakes or betray hidden prejudices, but they don’t like to be told when they are wrong. They would rather double-down on their misconceptions—belief perseverance—and there’s no reason to believe judges are immune, and certainly not legislators.

The best remedy isn’t in the courts or the congresses, but the voting booth. Vote. Organize. Stay informed. Otherwise, all those other idiots will make decisions for you.

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

from https://thecrimereport.org

How Drug Courts Can Respond to the Opioid Crisis

Evidence-based reforms could make them more effective, writes an addiction expert. He offers one example: stop limiting approved medication-assisted treatment to Vivitrol.

When both sides of an issue agree on something, it can suggest a sensible consensus has emerged. But it could also mean that everybody’s trying to do the minimum without expending more energy on thinking clearly about the subject.

I believe that when it comes to drug abuse, the latter holds true.

Here’s one glaring example: As the nation’s opioid crisis continues to accelerate, liberals and conservatives both seem to have fixated on using drug courts as an alternative to punishment.

President Donald J. Trump has endorsed the recommendations of his President’s Commission on Combating Drug Addiction and the Opioid Crisis, in particular the establishment of drug courts in every federal district court.

The fact is, drug courts are not a panacea—at least as currently implemented.

In general, drug courts or drug treatment courts (DTC) divert individuals arrested for drug offenses to court-monitored drug treatment programs instead of prison. Eligibility varies. Usually, drug dealers or drug traffickers are not allowed in; nor are “violent” offenders.

Sometimes the crime for which an individual is arrested is not directly connected to drug use, although stealing to support a drug habit is. Failure to complete drug treatment or drug use within treatment under the court order can result in imprisonment.

Drug courts, we’re told, can fix a lot more of our justice system problems than the rising rate of substance abuse. They supposedly will reduce our bulging prison populations by removing many of the nonviolent drug offenders who have been subject to the tough mandatory-minimum sentencing that was a component of the “war on drugs.”

“Drug courts are known to be significantly more effective than incarceration,” declared the commission, adding, “For many people, being arrested and sent to a drug court is what saved their lives, allowed them to get treatment, and gave them a second chance.”

But one crucial, and largely unexplored, issue is what kind of “treatment” the individual substance abuser is mandated to receive as part of the diversion process. Some argue that the current paradigm of medication-assisted treatment (MAT) is badly conceived.

For example, In response to the president’s endorsement, addiction journalist Maia Szalavitz tweeted: “right, drug courts, ~2/3 of which ban meds proven to reduce mortality, that’s what we need.”

Although Trump’s initiative also calls for increased support for MAT, he only endorses one such medication-assisted treatment, which most experts consider the least effective.

There are three medications commonly used in MAT: are methadone, buprenorphine (usually in its Suboxone formulation with naloxone), and naltrexone in its once-monthly injectable Vivitrol formulation.

Most drug courts only allow the use of Vivitrol in MAT because it is the only one of the three commonly used anti-abuse medications that is not itself an opioid. Instead, it is what’s called an “opioid antagonist.”

That means it will prevent offenders from getting high on opioids even if they relapse. Because of this, it can’t be initiated before the patient has been weaned off opioids completely, or they will go through instant, painful, and possibly fatal withdrawal.

Alex Azar

HHS Secretary Alex Azar via Wikipedia

A directive from the Substance Abuse and Mental Health Services Administration mandates Vivitrol for those entering MAT after detox, even though the new US Health and Human Services Secretary Alex Azar has acknowledged to STATnews “that doesn’t mean it’s the best form for all populations.”

However, methadone and buprenorphine (which are, respectively, an opioid agonist or partial agonist) are now largely regarded as more effective. Although when taken in large-enough doses, they can produce a high, when taken as prescribed, they just prevent withdrawal. They may be started sooner than Vivitrol, and allow a patient to resume normal life and responsibilities, such as holding down a job.

Methadone is normally dispensed only one dose at a time at a doctor’s office or clinic to prevent abuse. Buprenorphine can be prescribed as a multi-month implant, and may soon be available as a monthly injection, too.

Of course, the patient offender could still take an additional opioid to get high. That’s why it’s called medication-assisted treatment, not medication-only treatment. Additional treatment, inpatient at a luxury executive rehab or outpatient at a community clinic is necessary.

So why do drug courts limit the use of methadone and buprenorphine? The problem here is one of perception, prejudice and morality.

Many still feel people with a substance abuse disorder are morally deficient or weak, not sick. The idea of giving these people drugs to combat their addiction is seen as wrong, as substituting one drug for another. (Similarly, safe injection sites are opposed because they might make drug use seem “acceptable,” although the evidence is that they save lives and prevent the spread of HIV and hepatitis.)

Methadone use, in particular, can last years.

Even some addicts share this prejudice and refuse MAT that uses methadone or buprenorphine.

But a 14-year-long study conducted by the National Institutes of Health, entitled “Opioid agonist treatments and heroin overdose deaths in Baltimore, Maryland, 1995-2009” concluded that “Increased access to opioid agonist treatment”—particularly buprenorphine—”was associated with a reduction in heroin overdose deaths.”

In a 2016 article for The Huffington Post, Maia Szalavitz wrote the following:

Research shows that people who stay on methadone or buprenorphine long term have half the death rate of those who detox from these medications or participate in abstinence-only treatment. (There is no similar data for antagonist medications, including Vivitrol).

Another problem is that the maker of Vivitrol, Alkermes, has lobbied intensively for its product over all others, including to politicians and drug court judges. According to ProPublica, Alkermes adopted this strategy when the usual approach to doctors and patients encountered resistance.

Having judges without medical training in effect prescribing medical treatment is unsettling to some addiction specialists and civil rights advocates.

But the lack of medical expertise associated with drug courts is only one of the issues that merit skepticism about their use.

Their overall effectiveness can be questioned. The available data don’t always account for people who drop out of the program before completion. (The same is true of 12-step programs, such as Alcoholics Anonymous and Narcotics Anonymous, which many of these courts also mandate.)

Worse, some studies show that some populations do worse after drug court than before.

According to a 2013 study of New York adult drug courts, the success rate for drug courts— i.e. fewer re-arrests— varied based on whether the cases were felony drug (better) or felony property (worse), or whether the patient offender had three or more prior arrests (one to 5 percent better) or no priors (10 percent worse).

Drug treatment vs. incarceration shouldn’t be an either-or choice.

An addict in prison may still have access to drugs, and hence to the risk of overdose. If substance abusers stay drug-free, but still remains addicted, upon release they are likely to be more vulnerable to a fatal overdose, because they no longer have the tolerance for the drug that they had prior to incarceration.

Beond the problem of how to treat substance abusers in drug courts is the question of who should be tried in them.

Some judges have sentenced offenders guilty of an offense that would normally result in a suspended sentence or parole to drug court, and then locked them up when they almost inevitably failed the program. Recovery is far less likely if participation is coerced rather than voluntary if the offender doesn’t want to quit using.

Some judges also sentence non-addicts to drug court based on a false positive test (confirmed by multiple negative tests), forcing the defendant to plead guilty to a false drug charge or face harsher sentencing. Not even the National Association of Drug Court Professionals thinks non-addicts arrested for drug crimes should qualify.

Stephen Bitsoli

Stephen Bitsoli

And while most drug courts only accept non-violent offender addicts, they may not be the ones who need the help the most. According to a CASAColumbia study, the majority of prisoners who committed property crimes (77 percent) and violent crimes (65 percent) either had a history of or were under the influence of alcohol and drugs when they committed their crimes. Reducing violent crimes and drug abuse seems a worthwhile goal.

Drug courts may be more cost-effective—financially and socially—than prison time, but as currently constituted they have some serious flaws. Evidence-based reform is needed, not the purely punitive solutions of the past.

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

from https://thecrimereport.org

Reentry Courts-No Difference in Arrests-New DOJ Study

  Prison Cells Observations Reentry court recidivism, like most offender rehabilitation and reentry programs, show limited results as to new arrests, revocations and returns to prison. Author By Leonard A. Sipes, Jr. Thirty-five years of supervising public affairs for national and state criminal justice agencies. Interviewed by every national media source multiple times. Former Senior Specialist […]

  Prison Cells Observations Reentry court recidivism, like most offender rehabilitation and reentry programs, show limited results as to new arrests, revocations and returns to prison. Author By Leonard A. Sipes, Jr. Thirty-five years of supervising public affairs for national and state criminal justice agencies. Interviewed by every national media source multiple times. Former Senior Specialist […]

from https://www.crimeinamerica.net

The Dubious Track Record of Offender Rehabilitation

Observations Is an honest discussion about offender rehabilitation programs possible? The collective data indicate that programs for offenders either don’t work, or make things worse, or have very limited results. If we support offender rehabilitation, we need to question current results. We need to demand better answers. If we don’t, nothing will change. Author Leonard […]

Observations Is an honest discussion about offender rehabilitation programs possible? The collective data indicate that programs for offenders either don’t work, or make things worse, or have very limited results. If we support offender rehabilitation, we need to question current results. We need to demand better answers. If we don’t, nothing will change. Author Leonard […]

from https://www.crimeinamerica.net

Drug Courts Produce Modest Results Per Federal Report

Observations Do drug and other specialty courts reduce recidivism? President Trump Wants Drug Courts-Do They Work? Like evaluations of programs for serious offenders, outcomes for drug, mental health, and veteran’s courts are limited to small decreases in recidivism. For many, the focus is on low-level, low-risk offenders who may not need intensive treatment. Author Leonard […]

Observations Do drug and other specialty courts reduce recidivism? President Trump Wants Drug Courts-Do They Work? Like evaluations of programs for serious offenders, outcomes for drug, mental health, and veteran’s courts are limited to small decreases in recidivism. For many, the focus is on low-level, low-risk offenders who may not need intensive treatment. Author Leonard […]

from https://www.crimeinamerica.net

Will Federal Alternative-to-Prison Programs Survive the New Administration?

The future of Obama-era initiatives to offer reduced time for federal offenders if they complete programs of counseling is uncertain, says the U.S. Sentencing Commission. But it called for more studies of their effectiveness.

Emerging efforts to develop alternatives to incarceration for federal offenders have an uncertain future since drug sentencing guidelines were toughened by the Department of Justice this year, says the U.S. Sentencing Commission (USSC).

The charging and sentencing policies outlined by Attorney General Jeff Sessions in a May 10 memo “may have the effect of limiting the number of participants in the federal alternative-to-incarceration programs,” the USSC said in a report released this week.

“Without the support of the government, some of these… court programs may cease to exist, at least in their current forms.”

Alternatives-to-Incarceration (ATI) programs, in the form of drug courts, mental health courts and so-called “therapeutic” or “problem-solving” courts have been a fixture on the state judicial landscape for more than two decades.

Since the first drug court was launched in Miami in 1989, over 4,000 such alternative state courts now exist around the U.S.. Today, an estimated 55,000 adult state offenders participate annually in drug courts alone.

The state programs have been supported by national organizations such as the National Center for State Courts and the Conference of Chief Justices. However, they have also raised questions about their effectiveness in treating addiction or reducing recidivism.

At the same time, the USSC noted the “cost savings” realized from reduced prison beds and other factors is one reason they have been supported and promoted as a viable alternative to lengthy terms behind bars.

Nevertheless, such courts have been slow to emerge at the federal level, partly as a result of perceived conflicts with the 1984 Sentencing Reform Act and Supreme Court decisions. Today, federal ATI programs operate in 17 districts around the U.S.

Unlike “diversion courts,” which divert individuals to alternative channels such as treatment that will avoid a criminal record, the federal ATI courts offer convicted offenders an opportunity for reduced time if they successfully complete a program of counseling.

The USSC studied five federal ATI programs in an effort to assess their record in reducing recidivism, but concluded that there was still insufficient data to determine their overall success. It observed that the criteria used in evaluating the success of state programs did not automatically translate into evaluations that could be applied at the federal level.

“Proponents of (these) programs have pointed to limited data showing low recidivism rates of graduates of certain programs,” the study said.

“Although important, such data needs to be supplemented with data showing both the long-term recidivism rate of participants who did not successfully complete the programs, and the long-term recidivism rate of a meaningful comparison group of similarly situated offenders who received traditional dispositions of their cases.”

The five programs examined were:

  • South Carolina’s “Bridge Program” for drug abusers, launched in 2010;
  • The Conviction and Sentence Alternatives (CASA) program in the Central District of California;
  • The Pretrial Alternatives to Detention Initiative (PADI) in the Central District of Illinois;
  • The Repair, Invest, Succeed, Emerge (RISE) program of the District of Massachusetts;
  • The Sentencing Alternatives Improving Lives (SAIL) program of the Eastern District of Missouri.

Most of the programs involved only small numbers of federal offenders, relative to those charged and sentenced in traditional ways, but USSC staff interviewed judges, attorneys and other stakeholders in an effort to identify the areas that needed further study by social scientists.

The programs were “collegial” in stark contrast to the adversarial nature of federal courts, the USSC said.

“The presiding judge often does not wear a robe and sits at a table with the other team members rather than on the bench, (and the programs) involve weekly or semi-monthly meetings with multiple participating defendants,” the study reported.

Similar to state programs, the federal court teams typically address specific mental health and substance-abuse issues afflicting a defendant, and they work as well to improve defendants’ lives through counseling on family relationships, physical health, education and employment.

Nevertheless, the USSC observed that the handful of evaluations of federal “reentry” court programs so far showed results that were “mixed at best” in terms of their effectiveness and their rehabilitative potential compared to traditional supervisory programs.

The study said the programs needed more examination, for example, of the role of judges in such courts, and an analysis of whether they resulted in genuine cost-savings to taxpayers.

“Not only are the programs relatively new in the federal system and only have graduated a small number of participants to date, they have also developed in a decentralized manner and differ from each other in significant respects,” the USSC said. “Thus they cannot yet be evaluated empirically to determine whether the programs meet their articulated goals.”

The USSC acknowledged that the new Justice Department’s hardline approach to drug sentencing might make such questions academic.

The nascent federal ATI programs are an outgrowth of Obama-era reforms, encouraged by then-Attorney General Eric Holder as a way of prioritizing alternatives to lengthy drug sentences.

But the May 2017 Sessions memo effectively reversed the trend, calling on federal prosecutors to charge and pursue “the most serious, readily provable offense(s)…those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

At the same time, the USCC also noted that any expansion of federal ATI programs could also be hampered by the long-standing opposition in Congress to changing federal sentencing guidelines to encompass alternatives to punishment.

Nevertheless, the USCC made clear that it believed further empirical studies were necessary in order to effectively evaluate whether the programs were worth pursuing on a larger scale—and in particular whether they reduced racial disparities in sentencing.

“The recent emergence of federal alternative-to-incarceration court programs has raised several legal and social-science issues that must be carefully considered and informed by meaningful data before they can be answered by courts and policymakers,” study said.

For the complete version of the USSC report, please click here.

from https://thecrimereport.org

The Wrong Path: Involuntary Treatment and the Opioid Crisis

The use of involuntary commitment for drug addiction is expanding across the country, as desperate families seek help for their loved ones. But it is likely to make things worse.

In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

Leo Beletsky

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 in this preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Elisabeth Ryan

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach 

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs publichealthlawwatch.org, on Twitter at @phlawwatch. They welcome comments from readers.https://twitter.com/phlawwatch 

from https://thecrimereport.org

Congress OKs $1 Billion to Tackle America’s Drug Crisis

The 21st Century Cures Act approved yesterday contains provisions aimed at curbing the nation’s opioid epidemic including treatment programs and drug courts. It’s the second piece of legislation impacting criminal justice passed in this Congress’ final days.

Photo by Kaushik Narasimhan via Flickr

Photo by Kaushik Narasimhan via Flickr

The Congress that some feared would fail to pass any significant criminal justice legislation has produced one more major bill in its final days—the 21st Century Cures Act.

While the measure that got final approval in the Senate yesterday concentrates on mainstream health issues, it also contains several elements that are welcomed by advocacy groups and officials in the justice field.

President Obama has vowed to sign it before he leaves office next month.

The key provision authorizes $1 billion in grants over two years to states to address drug addiction problems via prevention, treatment, prescription drug monitoring, and other programs.

Much legislation that emerges from Capitol Hill suggests that it will bring huge sums that never materialize, but this one is almost certain to come with actual funds.

Congress must pass an appropriations bill to keep the federal government in operation into Donald Trump’s presidency starting Jan. 20.

Yesterday, the same day that the “Cures” bill passed, House Appropriations Committee Chairman Hal Rogers (R-KY) introduced a government spending bill that would provide the first year’s portion of the grant money, $500 million. The money is expected to be backed by legislators from both major parties.

Sen. Rob Portman (R-OH), whose state has been hard hit by the opioid epidemic, noted that one life is lost to opioid addiction in the U.S. every twelve minutes. He said the new bill “will give the millions of families affected by addiction more hope, and I believe that it will make a difference in their lives.”

When the House approved the “Cures” bill just last week, Rep. Ann Kuster (D-NH) of the House Bipartisan Task Force to Combat the Heroin Epidemic, said, “We’ve long known in New Hampshire that the opioid epidemic needs to be treated like the public health emergency that it is.”

Another provision of the new bill would create federal drug courts. States have widely adopted the drug court model, in which defendants are ordered to get treatment under close supervision of judges and other officials, since the first one was created in 1989 in Miami by the late former U.S. Attorney General Janet Reno, then the chief local prosecutor, and others. There are now more than 3,000 drug courts around the U.S., but none in the federal court system.

Among other provisions, the new legislation creates a program for alternatives to incarceration for people with substance-abuse problems, expands the existing STOP Act (Sober Truth on Preventing Underage Drinking), and authorizes $12.5 million for “community crisis” responses to both substance abuse and mental disorders.

The “Cures” bill contains several provisions proposed by Sens. Chris Murphy (D-CT) and Bill Cassidy (R-LA) to improve mental health care nationwide. The measures may have a spillover impact in the criminal justice system, where a large number of prison and jail inmates suffer from mental problems.

The new law supplements the Comprehensive Addiction and Recovery Act (CARA), which President Obama signed last summer. That law was passed with bipartisan support from candidates for election last month who were being pressured to take some action to deal with the opioid overdose crisis that has hit many parts of the nation.

Yet CARA provided relatively little new funding, a problem that the measure passed yesterday will help solve.

One looming question is whether the administration of Donald Trump, who may reduce some federal justice programs such as monitoring of local police departments for civil-rights violations, will embrace more spending on anti-drug efforts.

Advocates are optimistic. They note that during the campaign this fall, Trump praised CARA as “an important step,” vowed to expand first responders’ access to the life-saving substance Narcan, encourage treatment for people struggling with addiction, and incentivize state and local governments to mandate treatment, reported STAT, a website focusing on health, medicine, and science news.

The number of deaths in the U.S. from opioid overdose has almost quadrupled since 1999, reaching a record high of more than 28,000 in 2014. STAT noted that the problem has been especially severe in rural counties along the Rust Belt, which provided crucial support to Trump in historically Democratic areas.

While Congress in the waning days of its two-year session took action on the drug problem and on a bill known as Justice for All that deals with forensic testing, prison rapes, and other issues (for more details, see The Crime Report, December 2, 2016), there were no final votes this year on a number of competing bills aimed at reforming the federal sentencing system.

Given opposition to one such bill approved by the Senate Judiciary Committee by panel member Jeff Sessions (R-AL), Trump’s nominee for attorney general, and a clear lack of support by Trump himself, the outlook for sentencing reform next year seems bleak.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments are welcomed.

Memo to Trump: Add Drug Courts to Your Anti-Crime Strategy

During the last campaign, Donald Trump promised to address drug addiction by expanding access to treatment and providing incentives for states to use drug courts and mandatory treatment programs. That’s one election promise he should fulfill.

Marchers at Michigan "Celebrate Recovery Palooza," Sept 2014. Photo by Sacred Heart via Flickr

Marchers at Michigan “Celebrate Recovery Palooza” Sept 2014. Photo by Sacred Heart via Flickr

During most of the campaign, President-elect Donald Trump’s main strategy for preventing drug abuse in the United States seemed to center on stopping drug trafficking at the Mexican border.

But in New Hampshire weeks before Election Day, Trump promised to do more for people with substance-use disorders than build a wall.  He offered several strategies for helping people recover from drug addiction.

While he advocated a tough-on-crime approach to stop drug trafficking, he also appeared to favor a treatment-first approach for people addicted to drugs.

The president-elect said he would expand access to treatment and provide incentives for states to use drug courts and mandatory treatment programs.

That’s one election promise he should fulfill.

The number of drug courts in the United States has been increasing for two decades. In 2015, more than 3,400 drug courts across the country served 55,000 defendants annually, according to a recent report from the surgeon general.

They were a key component of the Obama administration’s drug control policy, receiving nearly $100 million in annual funding throughout his years in office.

Numerous studies indicate that court-ordered addiction treatment reduces relapse and recidivism rates. Inmates receiving treatment are less likely to exhibit conduct problems, and they’re more likely to pursue education or employment after leaving incarceration.

A coalition of mental health organizations, including the American Psychological Association and the National Association of Social Workers, recently advocated for an increased focus on the link between mental health issues and substance abuse within the criminal justice system at a meeting in Washington, D.C.

Key members of the coalition met with Sen. Al Franken (D-MN) who has advocated for expanding access to mental health courts.

The coalition’s recommendations included increasing financial and technical assistance for local governments, providing integrated treatment for co-occurring mental health disorders and improving communication between law enforcement and health providers.

Drug courts can be an effective forum for communication because they rely on partnerships between community health care providers, law enforcement agencies and social service programs. The effectiveness of the programs varies by state and county because they’re administered locally.

In 2014, the Los Angeles Times reported that many drug courts were overwhelmed with defendants facing marijuana charges. One consequence of this, the Times reported, was that expensive treatment designed for people with severe substance use disorders was administered to individuals arrested for possessing small amounts of marijuana.

Court-ordered treatment programs have also been criticized for not accepting people with co-occurring mental health disorders or suicidal thoughts. Critics add such programs haven’t done much to reduce the prison population.

But these criticisms conflict with the promising statistics provided by the National Association of Drug Court Professionals (NADCP). On its website, the NADCP says 75 percent of drug-court graduates don’t get arrested within two years of graduation. Moreover, drug courts save taxpayers more than $3 in criminal justice costs for every $1 invested.

These figures are backed up by studies cited by the Office of National Drug Control Policy, which found drug courts reduced crime by between 8 and 26 percentage points. The most effective drug courts reduced crime by up to 35 percent compared to traditional criminal justice efforts.

Surgeon General Vivek Murthy’s recent report on alcohol, drugs and health said DUI courts reduced recidivism at rates similar to adult drug courts. It also found that nonviolent offenders were the most likely to avoid incarceration after being accepted into a drug court.

The surgeon general recommended that criminal justice systems continue to take less punitive approaches and more health-focused approaches to addressing offenders with substance use issues.

It’s unclear how the Trump administration will balance a tough-on-crime approach with its promises to expand treatment access.

Trump’s advisors will play a large role in developing the details of drug policy. But it’s hard to tell whether “hard” or “soft” approaches will prevail until we learn the names of key appointees in the Department of Health and Human Services and the Department of Justice, which work together to coordinate technical assistance and federal funding for local drug court programs.

Those appointees will likely be vetted by Vice President-elect Mike Pence, whose record on drug policy is ambiguous.  As Indiana governor, Pence advocated for tougher penalties on drug traffickers. His decision to sign an Indiana law requiring mandatory minimum sentences of 10 years for anyone convicted of dealing meth or heroin was supported by Trump.

But Pence also wanted expanded access to an overdose-reversal drug called naloxone, and he supported Medicaid reform to cover inpatient detoxification in the state.

Trump’s nominee for Attorney General, Sen. Jeff Sessions (R–Ala.) has adamantly opposed marijuana decriminalization and legalization. He’s condemned President Obama’s lax approach to enforcing federal laws banning the use of marijuana.

In 2002, Sessions said he supported tough mandatory minimums for drug dealers, but he acknowledged that sentencing laws involving crack and powder cocaine had failed. In August 2016, Sessions criticized Obama for commuting the sentences of non-violent drug offenders, saying the president had acted recklessly.

Sessions did support drug courts in his home state of Alabama and on the national level, but he has also criticized the DOJ for failing to adequately evaluate the effectiveness of the programs. Thus, it’s unclear how he would approach mandatory minimums and the use of drug courts as attorney general.

Drug courts aren’t the only way to incorporate treatment into the criminal justice system, though.

Mandatory treatment can be a condition of probation or parole. It can also be administered during a prison sentence. But authorities have to be careful with the type of treatment that they mandate. Individuals whose substance-use disorders are not severe enough to warrant inpatient treatment can benefit from peer support groups, but most groups have spiritual components.

Participation in 12-step programs such as Alcoholics Anonymous (AA) and Narcotics Anonymous are common conditions of probation or parole for offenders with a history of substance abuse, but they require a belief in a higher power.

Law enforcement can’t require people to participate in programs that conflict with their religious beliefs.

In 1997, the U.S. Court of Appeals for the Second Circuit ruled that Orange County couldn’t require Robert Warner, a chronic DUI offender, to participate in AA meetings to complete his probation because he was an atheist.

In 2010, the U.S. Court of Appeals for the Ninth Circuit said that John Pirtle’s due process rights were violated when the California Board of Prison Terms denied him parole because he wouldn’t participate in a 12-step program. Pirtle, an atheist, had a history of alcohol abuse.

In 2013, the same court ruled that Barry Hazle’s parole officer couldn’t fine him for refusing to participate in a residential program that required him to accept the existence of a higher power.

Drug courts usually only accept offenders without a history of violence, but the prison system has a number of treatment options for inmates with a history of substance abuse.

The federal Bureau of Prisons (BOP) runs 89 residential drug abuse programs at prisons across the country. The treatment programs use a therapeutic community model approach to teach inmates social and vocational skills. Analyses of the programs indicate they reduce relapse and recidivism rates.

The BOP also offers a 12-week nonresidential program for offenders who don’t meet the criteria for residential treatment or who are transitioning back to the community. Participants receive cognitive behavioral therapy, recognized as one of the most effective therapies, to improve communication and critical thinking skills.

Like all government programs, drug courts have challenges that have to be addressed.

But drug courts and mandatory treatment programs can be effective. If implemented properly, they can reduce the cycle of relapse and recidivism among individuals with histories of substance abuse.

It would be tragic if President-elect Trump and his team ignored their record of success.

Chris Elkins

Chris Elkins

Chris Elkins is a senior writer for DrugRehab.com, an online resource that provides the latest information about addiction-related topics. DrugRehab.com publishes news articles and comprehensive guides covering evidence-based prevention, treatment and recovery strategies. Readers’ comments are welcome.