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Forging a Right to Substance Use Treatment in the US Criminal Justice System

Douglas Marlowe

Forging a Right to Substance Use Treatment in the US Criminal Justice System
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More than half of US state jail and prison inmates, probationers, and parolees have a moderate to severe substance use disorder. Approximately one-half to three-quarters of persons arrested for violent, property, and financial crimes test positive for illicit drugs or report recent use at the time of their arrest. Despite these facts, less than a quarter of persons with substance use disorders receive any form of substance use treatment in the criminal justice system—the few who do typically receive unstructured services of unproven efficacy and unknown fidelity to evidence-based practices. Amid an opioid epidemic, even fewer justice-involved persons receive medications proven to reduce illicit opioid use, overdose deaths, and transmission of communicable infections like HIV and hepatitis C.

No Right to Treatment in the United States

These sad affairs are possible because of one simple but rarely talked-about fact: there is no right to substance use treatment in the US criminal justice system. A line of case precedent stemming from several decades-old Supreme Court opinions holds that penal sanctions for substance-related crimes are not required to achieve therapeutic effects. Institutional hardships in corrections programs can ordinarily take precedence over a person’s treatment needs. When legislatures elect to offer rehabilitative alternatives to prosecution or incarceration, they are afforded wide latitude by the courts in deciding who may be eligible for the programs, what services are to be provided, and what consequences may ensue from successful completion or unsuccessful discharge.

Grassroots programs developed by sentencing courts (e.g., drug courts), probation or parole agencies, or other justice system stakeholders enjoy even wider latitude if there is no legislative mandate governing implementation. Stakeholders are generally free to decide how many persons they can or wish to serve, who is eligible, what services will be allowed or required, and what criteria must be met for completion. Because the programs are typically developed through group consensus of local officials and community representatives, program operations often reflect the least common denominator of policies and procedures tolerable to all parties:

  • prosecutors may refuse to admit persons with serious criminal records (typically the persons most in need of the services),
  • treatment agencies may assert that they do not have adequate resources to treat persons with serious co-occurring problems like mental health disorders or homelessness (also the ones with the greatest needs), and
  • some representatives may object to using proven medications on the falsely held belief that they merely substitute one addiction for another or are inconsistent with “true” recovery.

By the time this sausage-making process is complete, many programs find themselves delivering less than the best available services to persons with the fewest treatment needs and risk factors for criminal recidivism. And persons denied access to the programs or effective treatments have little recourse because rehabilitation is deemed, essentially, a privilege or an ideal—a worthy, if not naïve, goal admirably pursued but seldom attained.

Forging Access

In the face of long-standing and legally sanctioned impediments to rehabilitation in the criminal justice system, forging access to effective treatment will require good old-fashioned lawyering and partnerships with treatment experts. A new generation of lawyers is needed to

  • build on emerging case precedent interpreting the Americans with Disabilities Act (ADA), other statutory provisions, and professional practice guidelines as establishing a higher standard of care than has previously been recognized; and
  • work alongside treatment experts to demonstrate their clients’ amenability to indicated services.

The time is ripe to revisit stale precedent, challenge undue pessimism, and press client interests for the benefit of public health and safety.

Blanket Medication Prohibitions

Blanket prohibitions against proven treatments are low-hanging fruit. Policies that disallow FDA-approved addiction medications have been the first to fall. Recent federal cases have granted preliminary injunctions against blanket denials of addiction medications in jails or prisons because such practices are likely to violate the ADA by discriminating unreasonably against persons with the covered disability of a substance use disorder. Some older civil rights cases similarly struck down such practices but only when they turned a deliberately indifferent eye to inmates’ serious medical needs, such as painful or protracted drug withdrawal. Professional organizations like the National Association of Drug Court Professionals (NADCP) have also promulgated best-practice standards disapproving of blanket denials of evidence-based treatments, including medications. These provisions are intended to raise the bar of acceptable practices and hold drug courts accountable for failing to follow their own profession’s generally recognized legal, medical, and rehabilitation-focused standard of care.

Blanket Eligibility Disqualifications

Criminal justice professionals are understandably loath to risk untoward events occurring in their program, which could lead to negative publicity and a loss of funding or political support. As a result, many programs exclude persons most in need of their services by drawing excessively conservative eligibility criteria and preventing reasonable discretion in individual cases. Studies estimate that more than 85 percent of persons with drug use disorders are ineligible for evidence-based programs like drug courts because of unduly restrictive eligibility criteria.

Common blanket disqualifications such as a history of domestic violence, simple assault, or drug transactions are, in fact, unwarranted because persons with these offenses often perform as well or better than other persons in high-quality programs. Best practice standards for drug courts provide that eligibility criteria should be predicated on empirical evidence of safety and effectiveness, not staff consensus, when statutorily permissible. Other programs should follow suit in adhering to proven practices.

Expert Consultation

Establishing a foundation for requesting substance use treatment requires more than mere nerve and legal craftsmanship. Substantial familiarity with scientific research and professional practice standards are required to challenge clearly erroneous or irrational policies, provide convincing evidence that one’s client or class of clients is ideally suited for a given intervention or program, and describe this complex information in understandable and actionable terms for criminal justice professionals and reviewing courts.

Because many persons with substance use disorders in the criminal justice system are at high risk for treatment dropout, continued substance misuse, and criminal recidivism, case recommendations must also include provisions for careful monitoring of treatment progress where indicated (e.g., drug testing, court reviews, probation home visits) and swift and certain consequences for willful noncompliance with treatment conditions or criminal recidivism. Treatment prohibitions will rarely be repealed or modified without substantial assurances that doing so will not threaten public safety.

Many, but not all, communities have specialized case management agencies with acronyms like TASC (Treatment Accountability for Safer Communities), FIR (Forensic Intensive Recovery), or CCBHC (Certified Community Behavioral Health Clinics). These programs may be units housed within pretrial services, probation agencies, or public or private treatment programs contracted by the court or probation department to provide assessment and case management services. Case managers in these programs are clinically credentialed professionals, such as social workers or psychologists, who receive specialized training in assessing justice-involved persons’ treatment needs and risk factors for recidivism, developing evidence-based treatment plans, and recommending risk-management strategies to curtail public safety threats.

Well-documented treatment and supervision plans developed by qualified service providers such as these are critical for challenging unwarranted prohibitions and providing reasonable assurances of adherence to safe and effective practices.

What Young Lawyers Can Do

Lawyers with the requisite energy and determination can bring these developments and new research findings to the attention of courts and other justice officials, request an explanation for why programs are ignoring generally accepted practices or applying blanket exclusions, and develop a reviewable record for appeal challenging unwarranted prohibitions. Organizations such as the Legal Action Center and NADCP offer open-access tool kits with sample letter templates that can be used to educate justice officials about applicable legal and professional practice standards and describe scientific evidence supporting effective treatments. Some tool kits contain sample trial motions and memoranda that can be readily adapted to the facts of a case to challenge unwarranted practices, request a hearing and decision on the record, and develop a reviewable issue for appeal if the request is denied.

Where once courts openly questioned what it means to say that addiction is a disease and disparaged the value of treatment, emerging precedent is rejecting outmoded beliefs, looking to neuroscientific evidence demonstrating the destructive impact of psychoactive drugs and environmental trauma on public health and safety, and reconsidering whether treatment might be more than a mere privilege to be meted out only when expedient. A right to rehabilitation is not yet on the horizon, but avenues are opening to build an edifice.