WHEN CRIMINAL JUSTICE ADMINISTRATORS MAKE MEDICAL DECISIONS

CANDACE SAYS HER RECOVERY STORY “isn’t linear.” I tell her that is okay and, as far as I can tell, really common. In other words, she has been in recovery for years but has had periods of relapse, which are becoming less and less frequent over time. If she compares her life today to her life ten years ago, there is no doubt that she is doing better.

Candace started using opiates when she was eighteen, but that was not her first drug—just her favorite drug, and the one she couldn’t stop no matter how hard she tried. She remembers first wanting to use drugs in the second grade. Her parents had been watching the nightly news, and the news anchor described children sniffing glue in class to get high. The next day, Candace tried it. She tells me over the phone, “I wonder if maybe I was just kind of born a little bit unbalanced.” As a baby, she used to self-harm, which she believes was an indicator of future depression. In fact, throughout her life Candace has had extreme bouts of depression, including suicide attempts. She suspects that drugs may have initially served as a coping mechanism, but even after receiving treatment for depression, the cravings for drugs continued.

At twenty years old, feeling depressed and ashamed that her life’s purpose now consisted of obtaining and using heroin, she began an intensive outpatient program. The IOP she joined consisted of almost daily group counseling and biweekly individual counseling. Despite regular attendance, however, she still spent all day thinking about getting high. The cravings were too intense for the IOP alone to help. She wanted additional help and knew residential rehab wouldn’t cut it. Her parents had once paid for an expensive rehab in the Northeast, consisting entirely of detoxification, twelve-step programming, and counseling; as soon as she left, she had relapsed.

Candace decided to enroll in formal Suboxone treatment, hoping to add it to her IOP regimen. She had previously bought Suboxone on the street to prevent withdrawal symptoms, and she remembered it had helped with cravings too. Additionally, she had once tried heroin shortly after taking Suboxone and the combination made her violently sick. No longer wanting to buy medications off the street, she asked the IOP if they offered Suboxone. They said no. And furthermore, they said if they found out she was utilizing Suboxone, she would not be able to participate in some of the group counseling.

Fortunately, another former drug user suggested that Candace contact a new buprenorphine provider that had just opened a clinic across town. The clinic provided two things: weekly group counseling and weekly buprenorphine prescriptions. The clinic required participation in both treatment modalities simultaneously. Candace was not excited about resuming group counseling. She remembers walking in one day at the IOP with her hair disheveled and clothes unwashed but proud of herself for showing up despite cravings and feeling sick. Seeing how Candace looked, however, the counselor suggested that she put more work into her appearance. Since then, group counseling had always felt awkward. The main reason Candace continued at all was that group counseling at the IOP was a corequisite of individual counseling—in other words, you couldn’t attend individual counseling if you weren’t also attending group counseling. And Candace really liked her individual counselor who helped her work through some of her mental health issues.

When Candace began regular buprenorphine treatment across town, she was surprised to find the group counseling more helpful than it had been at the IOP. It occurred much less frequently—just for one hour, once per week—but in some ways it felt more relevant. Much of the discussion explicitly addressed medication compliance, side effects, and stigma surrounding buprenorphine. It was not twelve-step based, though some patients did attend Alcoholics Anonymous or Narcotics Anonymous in the community too.

For one year, Candace made significant progress. Her parents were speaking to her again, and she even started working on a bachelor’s degree at the local university. Unfortunately, since starting her on the buprenorphine program, the providers had repeatedly told her that buprenorphine was not intended to be used long term and that the clinic policy required tapering after one year. Exceptions were sometimes granted; but, perversely, they were never granted to people who had fully stabilized and appeared to be doing well—even if medication was the reason they were doing well. As expected, after about one year, the provider tapered Candace off. Even though while on a stable dose she could go days without thinking about getting high, the tapering process terrified her. It felt too fast, and her old cravings began to reemerge. But clinic policy was strict: no long-term buprenorphine treatment. About two months after quitting the lowest dose of buprenorphine, she started using again.

After once again feeling her life spiral out of control, Candace called the buprenorphine clinic, explaining that she had relapsed. The clinic said she could restart treatment. As before, she resumed weekly group meetings and weekly buprenorphine prescriptions, which she took at home daily. About one year later, the clinic tapered her off again, as per clinic policy. As before, she was fine for a few weeks without the medication and then relapsed.

PRESSURE FOR CANDACE TO QUIT buprenorphine has not only come from her prescriber. It has also come from the criminal justice system. In fact, Candace’s worst relapse occurred while she was participating in a local drug court program. As she describes her experience over the phone, she breaks into tears. We pause the interview multiple times, but Candace is adamant about sharing her story in case it helps others.

The second time the clinic forced Candace to taper off buprenorphine, she returned to heroin use. One day, the cops pulled her over for driving erratically, immediately noticing that she was high. They searched the car and found an empty syringe with trace amounts of heroin. She did not try to argue, accepting her fate as they booked her into the city jail. Then a miracle seemingly occurred—she was given the opportunity to participate in the local drug court rather than face imprisonment.

Drug courts are special courts, called problem-solving courts, where the goal is not merely punishment but also rehabilitation. In theory, the judge and his or her “treatment team” assist you on your recovery journey, becoming almost like a second family. In fact, some drug court judges take on parental roles, asking participants about their personal relationships, progress with employment, and feelings as well as providing advice in these highly personal areas. It is a strange hat for a presumably neutral, unbiased decision-maker to wear.

Currently, over three thousand drug courts exist in the United States.250 To a certain extent, each drug court is unique, with its own policies, priorities, and biases—an island in the criminal justice system. Nevertheless, there are certain practices you can expect to see in most: regular hearings in front of a judge and your fellow participants wherein your recent successes or failures are publicly discussed; random urine drug screens; closed treatment-team staff meetings wherein treatment requirements and participation are discussed; case manager–participant meetings; and, of course, treatment. In my study of Indiana¹⁰⁴ and Florida drug courts, I have rarely seen courts provide treatment, though Florida courts sometimes pay for it. Rather, treatment usually occurs at an affiliated outside clinic but is carefully monitored by the court treatment team. Often, one of the counselors or case managers on the court staff works at a large treatment agency, making information sharing seamless.104,²⁵¹

Despite being called a “treatment team,” the drug court staff is really supposed to be there to monitor or enforce treatment, with treatment decisions made by qualified health care providers, such as nurse practitioners or physicians. Hardly any of the treatment team members have a medical background, with the team typically consisting of a judge (the team head), attorneys, law enforcement, the prosecutor, case managers, court administrators, and a sprinkling of counselors.^104,252 Counselors may or may not have graduate degrees. In my 2016–2017 study of twenty Indiana drug courts and veterans’ courts (which are like drug courts but for veterans), only two teams included a physician.

One may wonder how a court treatment team with essentially no medical personnel led by a judge can properly assist participants in recovery, especially with respect to medication-assisted treatment. I certainly did. According to governmental agencies, judges and their staff are supposed to rely on medication decisions of qualified health care practitioners, with the nonclinical team members enforcing the clinicians’ decisions through predictable, graduated sanctions.²⁵² But in my interviews with judges in courts from two states, Indiana and Florida, I have found wide discrepancies with this preferred approach. Some drug court judges enforce the decision made by clinicians without second-guessing clinicians’ motivation or effectiveness, while other judges seem to treat clinicians’ decisions as nothing more than a recommendation that can be discarded if it fails to fit into the abstinence-only philosophy of the court treatment team. As a result, people with opioid use disorders who should have access to MAT are often prohibited from having potentially lifesaving medication.

I ASK CANDACE TO DESCRIBE her experience in drug court, and her experience is not dissimilar from the experiences of some others whom I have interviewed. When provided the opportunity of drug court rather than incarceration, Candace felt she had been granted a gift—the opportunity to clear her criminal record, so long as she completed all the drug court requirements, including treatment, successfully.

She entered drug court full steam ahead. She attended the mandatory hearings, took the random urine drug screens, went to the required group counseling at the same IOP center she had once attended, and participated almost daily in AA. Very quickly, however, she knew she needed medication too. To her knowledge, no official court policy prohibited Suboxone treatment, but she asked her case manager just in case. The case manager asked the judge, who discussed the idea with the court treatment team. The treatment team said no.

I ask Candace whether she was surprised by the treatment team’s response. She wasn’t. Explaining herself, Candace described the following story. During one court hearing, in which all court participants stand as a group in front of the judge and answer the judge’s questions, a fellow participant casually mentioned that some people get high off gabapentin, a nonopioid medication for nerve pain. Hearing the comment, the judge turned to another participant and said, “Hey, aren’t you on that stuff?” The participant nodded, to which the judge responded, “Oh, you’re not anymore, honey.” The participant had been taking gabapentin to prevent seizures and a short time later suffered one.

Reflecting on the judge’s role on the treatment team, Candace says, “[Judges] are deciding what treatment you get and how you are treated very literally, and they have no training for it . . . and there wasn’t a doctor on staff saying this medication is okay for this person.” I ask whom the judge was receiving medical advice from. Candace says, “He was getting his advice from counselors, but our head counselor had gone to school at the University of Phoenix, and it was just for counseling. It’s not the same as a doctor.” I ask why no physicians participated on the treatment team. Candace thinks it’s because they are too expensive and the court can’t afford them.

This reason rings true. In a series of interviews with drug court judges, I repeatedly heard that paying for additional staff is virtually impossible. In fact, drug court staff often hold multiple roles in the criminal justice system to keep court costs down, with funding for one role subsidizing the other role. For example, a full-time felony court judge will become a drug court judge one day per week, with the salary for the drug court role paid by the felony court position. It’s the same deal with probation officers, law enforcement, prosecutors, and multiple other treatment team members, many of whom wear a drug court staff member “hat” one day per week. Paying for a physician would require extra money that in many tightly stretched counties simply does not exist. And frankly, it is not clear to me that many physicians would be interested in the job, even for a few hours per week. Physician interviews have revealed that they often don’t take kindly to the idea of having their medical decisions or expertise potentially overruled by a judge with no medical training. In fact, a 2019 ethics bulletin from the American Society of Addiction Medicine urges physicians to maintain autonomy in decision-making as far as possible, even when criminal justice system employees try to impose their own views regarding treatment.253

Candace’s time in drug court proved heartbreaking. Unable to access the only treatment that she felt had ever helped, she repeatedly relapsed. Even though the first few relapses resulted in little more than a slap on the wrist, with punishments ranging from more AA meetings to writing an essay about the dangers of drug use, the sanctions eventually became more and more severe. She remembers once being given a week in jail, which proved particularly unfortunate given that she was in the middle of pursuing her bachelor’s degree. Interestingly, the court team decided to spread out the jail time to let Candace continue attending university classes during the weekdays, but in exchange she had to spend each weekend of an entire month in jail. Unfortunately, Candace continued relapsing, always to heroin. Finally, the judge had had enough. Candace was ousted from the court program and incarcerated for a few months. She was unable to finish her bachelor’s degree while in jail and no longer has the heart to start it again.

Today, Candace is on probation and on her third stint at the buprenorphine clinic. Unfortunately, she feels like the only way to stay at the clinic long-term is to repeatedly relapse, with no reward for doing well on a stable dose. Candace says some people from the clinic have done just fine after the taper, but she is not one of those people. She explains, “I guess that’s kind of how the pattern has been for most of my life without maintenance treatments; I usually last about three months. The maintenance doesn’t have to be opiates. I’ve also done Vivitrol, and I do really well on that too.” Unfortunately, Vivitrol is even less accessible in her city than buprenorphine and is very costly.

I ask her why the buprenorphine clinic insists on tapering her off. She responds, “The goal is for nothing [meaning, no medication], which now when I look at it, that’s really weird to me, because I see family members who take lithium and the doctors are in no hurry. And it’s the same for so many other medications that people take; there’s not this inherent desire to get them off. So now I see it as weird; but at the time, I just thought, of course that’s the goal.”

She thinks insurance providers also exert some of the pressure; she remembers a prescribing doctor at the clinic saying tapering looks good for insurance purposes. As I speak to her, I can hear the tension in her voice. I ask if she is worried about having to come off Suboxone again. She answers, “Oh yeah, but it’s something I’d just rather not think about.”

IN 2017, CURTIS HILL, the Republican attorney general of Indiana publicly stated that incarceration is good for drug users, helping them jump-start recovery. In fact, he called longer jail terms more “compassionate” than shorter jail terms.254 His argument rested on two highly questionable assumptions: first, that quality treatment is available in jails; and two, that jails give people an “Aha!” moment, motivating them to start treatment. In some ways, the arguments resemble those from the Anslinger era and those voiced by Nelson Rockefeller, the adamant supporter of mandatory minimum drug sentences.

One could examine the attorney general’s statement from a number of angles and arrive at the same conclusion—that he is wrong, and that sticking people in jail or prison for drug use or possession is actually impractical and harmful. From a fiscal standpoint alone, it doesn’t seem to make sense. An often-cited study in California found that every dollar spent on addiction treatment saves four dollars in health care costs and seven dollars on law enforcement costs.²⁵⁵ Addiction treatment in the community more than pays for itself, particularly by helping people avoid incarceration. Additionally, incarceration is a failed strategy for preventing relapse. One study estimates that 95 percent of inmates incarcerated for drug offenses will resume substance use within three years of release, with one-third resuming substance use in only two months.²⁵⁶

I decided to examine the effect of incarceration on recovery by interviewing people in recovery—particularly those who had experienced addiction treatment, or the lack thereof, in the criminal justice system. During in-depth confidential phone interviews with people in recovery, about half of whom came from Indiana, I repeated the attorney general’s claim and asked if they had any comment on the matter. Did they agree or disagree, or were they unsure? Almost four dozen people answered the question. Not one person agreed with Hill’s statement and the vast majority believed that putting someone with an addiction in jail or prison actually causes the opposite result—relapse, or at least a delay in the recovery process.

I accumulated so many powerful, memorable quotes in response to this question, that it took me some time to decide which ones to include in this book. Even interviewees who had until that point been entirely matter-of-fact and unemotional in their interview responses suddenly turned passionate after hearing Hill’s claim. They did not hesitate in giving clear explanations for why jail or prison was bad for recovery. The financial impact, for one, can be enormous, costing one’s employment and saddling one with debt. Poverty is not a great foundation for recovery. As one of my favorite addiction psychiatrists in Indiana explained, you have to have something to live for! If you are homeless and unemployed, recovery may not even seem worth it; the warm feeling of drugs running through your veins may be the closest you’ll feel to happiness all day, so why give it up?

Relatedly, criminalization increases shame, something that people in recovery says makes you want to use drugs more, not less. According to Sarah, “When you’re in the depths of that sickness and that dark place, you don’t like yourself and you’re already shaming yourself.” In response to throwing someone in jail or prison for using, Sarah says, “You talk about shame and stigma and reasons to keep using? That’s another reason to keep using. And another reason to hate yourself.” Multiple people argued that criminalizing the symptoms of a disorder is counterintuitive to treating the disorder. Alyssa thinks it’s hypocritical to put anyone in jail or prison who committed a drug-related crime due to a health condition. She says even television anchors are calling addiction a disease these days: “It just seems like we don’t believe what we’re publishing [in the medical literature].”

One of the strongest arguments against jail or prison for drug use is that it can disrupt a recovery process that has already started, keeping in mind that recovery is rarely a onetime, relapse-free experience but is more often experienced as a journey with fewer and fewer relapses, hopefully resulting in an end to dangerous drug use all together. James, who is in recovery himself and helps direct a syringe exchange program on the East Coast, described helping connect Rick, a young man, to the local methadone clinic. They became acquainted when Rick joined the syringe exchange program and was still regularly using heroin. After just a few weeks at the methadone clinic, Rick had almost entirely stopped using heroin and was attending group counseling. Most importantly, he was motivated to stop drug use and felt that he had the tools to do so, given enough time. Then he got arrested for paraphernalia possession. Rick was thrown into jail by the local judge for forty-five days. According to James, before the jail time, Rick was stabilizing: “He’d started getting his stuff together in recovery.” But in jail, Rick was forced to endure a painful, cold-turkey detoxification from methadone that disrupted everything. Frustrated, James explains, “Rick got out and now he’s back in that cycle [of regular heroin use]. He just got incarcerated again the other day. It’s just a mess.” James is confident that if Rick had not been arrested, he would be further along in recovery than he is today.

And then, of course, there is the frequently voiced argument that jail and prison are rampant with drugs to begin with. As interviewees describe it, if you take people and throw them into a cage where they are miserable, the prison drug dealer becomes the most popular person—he or she is the only source of happiness experienced during the day. And while using drugs in prison, incarcerated people are actively thinking about how to access more drugs upon release. Even people in a high security prison, where hardly any drugs seep into the cells, often feel miserable enough that their first plan of action upon leaving is to get high. This may be one of the reasons that people leaving prison are at exponentially higher risk of overdose death than are nonincarcerated people.257 Furthermore, people incarcerated for minor drug convictions are frequently mixed in jails and prisons with people convicted of violent crimes or other very serious violations. With plenty of time on their hands, incarcerated people learn from each other. Rather than being a time of rehabilitation, one interviewee stated, “Prison is graduate school for criminals.”

Most directly addressing Hill’s point, no interviewee stated that he or she obtained adequate treatment in jail or prison. This is not surprising in light of the published evidence. For example, fewer than 20 percent of incarcerated people have access to MAT,258 even though a meta-analysis* of dozens of studies found that connecting people to MAT in prison or jail decreases opioid misuse and relapse, increasing postincarceration treatment engagement by a factor of seven, and through postincarceration treatment engagement may decrease re-incarceration rates and opioid overdoses.²⁵⁹

IT SEEMS CLEAR THAT JAIL or prison time is an impractical and damaging way to deal with opioid addiction. Are drug courts any better?

In 2016, I became fascinated with a particular question: What does treatment for opioid addiction look like in drug court? As someone trained in both law and public health, I found the intersection of the criminal justice system and medical world intriguing. I quickly discovered that very little information was published about treatment practices in drug courts. Legal scholars of drug courts referred to “treatment” in vague, generic terms in their publications without defining the type or efficacy of treatment provided.^260,261 Studies of treatment practices and policies for opioid addiction in drug courts were almost nonexistent. Yet effective treatment for opioid addiction in drug courts was and still is desperately needed. In a 2010 national study, approximately half of drug courts reported that 20 percent or more of their participants had opioid use disorder.²⁶² Rates have likely continued to rise.

Except for the groundbreaking 2010 study by Matusow et al. (published in 2013),²⁶² few studies have examined MAT access in drug courts. Using a national survey, Matusow et al. found widespread prohibition of buprenorphine and methadone, with neither option allowed in approximately half of drug courts.262 Furthermore, only one-third of courts allowed participants to start buprenorphine or methadone, as opposed to continuing medication previously prescribed prior to drug court participation. Despite clear evidence by this time that MAT is the most effective treatment for opioid addiction, including evidence that the medications prevent relapse among people with involvement in the criminal justice system, and may therefore prevent re-incarceration, a large portion of drug court participants with opioid addiction were being denied access. An even more recent study found that of criminal justice participants referred for OUD treatment, only 20 percent were referred for treatment with buprenorphine or methadone, the gold standard of care for OUD.²⁶³ And of referrals from the criminal justice system for OUD treatment, referrals from drug courts were significantly less likely than referrals from jails and prisons to include buprenorphine or methadone.²⁶³ Yet, unlike jails and prisons, the purpose of drug courts is to engage people in and monitor treatment.

The reasons found by Matusow et al. for drug court prohibitions of buprenorphine and methadone varied somewhat by medication and court location. For example, rural courts were more likely than urban courts to say that buprenorphine prohibitions were related to lack of providers.²⁶² Common reasons for denying buprenorphine and methadone treatment included the following: MAT was against drug court policy, probably a catchall for “we just don’t like it”; cost; participants had already completely detoxed prior to starting drug court; and risk of diversion.²⁶² The study also confirmed something I had suspected for some time: widespread misconceptions about agonist medications exist in the criminal justice system. For example, Matusow et al. found almost half of drug court staff were unsure whether buprenorphine prevents relapse, and two-thirds were unsure whether methadone prevents relapse. Over one-quarter believed that methadone “rewards drug users” for drug use. One might not expect criminal justice personnel in general to be up to speed on the latest scientific evidence about addiction treatment, but remember that drug courts are specifically created to assist people with addiction treatment.

In 2016, I decided to study the drug court treatment landscape in Indiana. I believed policy makers and public health scholars needed a deeper understanding of the anti-MAT attitudes and policies in drug courts, including how decisions were made in courts, the role of court treatment teams in providing treatment, and how judges get their information about medications. Then armed with this information, policy makers could start to address some of the treatment gaps in drug courts. Broadly speaking, my results confirmed the results of Matusow et al., albeit six years later and in one Midwestern state. But I discovered some new information that helped me understand how misconceptions about MAT arise, spread, and persist in drug courts.

First, treatment-related decisions are made by teams headed by judges who rarely acknowledge their own powers of persuasion. For example, Judge Jackson said: “If there are eleven people on the team that have to have a vote, then I have eleven votes, I guess. But I’m not one that has extensive knowledge of treatment services and things like that, so all the non–mental health professionals and non–substance abuse treatment professionals are certainly going to rely on the experts for their recommendations.” Yet despite such claims of humility, throughout interviews judges clearly revealed the powerful role they held on treatment teams, revealing how their own views impact other team members. For example, after describing her supposed deference to treatment providers, Judge Ruiz said, “[So] nobody’s on methadone in drug court. I don’t allow that.”

When judges disapprove of MAT, it can be very difficult for other treatment team members to sway them. The following quote from Judge Noble exemplifies this difficulty: “Probably up until this year we’ve had a pretty strong bias against medication-assisted treatment, and that’s probably been largely because of my biases . . . [but] as it stands now, I suppose that if the treatment folks are recommending medication-assisted treatment and the participant is open to the treatment, then I’m probably going to go along with it.”

Judge Barron revealingly states, “I . . . we, we allow the clients to use [Suboxone] short term to age them from a more serious drug and addiction process and kind of bring them down slowly. But whether it’s Suboxone or whether it’s methadone, I am not a fan of marginalizing our clients for life and saying that we’re going to cast them away as lost souls, and we’re just basically going to drug them for life. If you’re going to use Suboxone, or you’re going to use methadone, [or] you’re going to use some type of pharmacological response to addiction, it needs to be short term.” Note the frequent use of the word “I” rather than “we.” While giving lip service to respecting clinical experts, Judge Barron is making treatment decisions based on personal beliefs, namely that MAT is harmful and prevents true recovery.

Some judges feel they have special knowledge about addiction that community clinicians, especially MAT physicians, lack. After all, drug court judges see their participants weekly in a pseudoparental relationship, learning about the participants’ family, friends, employment, and motivations, while physicians see a patient monthly for maybe half an hour in a relationship that is formal and at arm’s length. As a result, some judges feel clinicians must first prove themselves as truly knowledgeable addiction specialists before they are given deference regarding MAT. Judge Jefferson revealingly stated, “Now I’m willing, personally, as a judge, to have pretty much an open mind about it. If I can find a provider who will give me good, evidence-based reasons for using a particular drug-assisted or medicine-assisted kind of intervention, I’m willing to consider it.” Similarly, Judge Hale explained, “It’s very difficult to establish quality working relationships with doctors in a drug court setting, and what I mean by that is that I think I have found challenges in finding doctors who really understand about addiction and recovery.”

It seems that any effort to expand access to MAT in drug courts must target the judges who oversee drug courts whether or not they acknowledge their own importance. Once one recognizes the role played by the judge’s attitudes and beliefs regarding treatments in drug court, stories from interviewees, such as Candace’s, really start to make sense. For example, in another series of interviews, Timothy described the turmoil he experienced when he started Suboxone treatment as a participant in a rural drug court last year. Having not been told that the court prohibited Suboxone, he found a buprenorphine provider. Two weeks later, the Suboxone he was legally prescribed appeared in a routine court urine drug screen and was brought to the attention of the judge.

In front of other participants, the judge demanded to know where Timothy received the Suboxone, and Timothy described his participation in treatment through a community physician. In response, the judge threw Timothy into jail for a month. Then Timothy’s mother, whom I also interviewed, did something I rarely hear interviewees doing: she found an attorney to fight the judge. The attorney argued that the denial of Timothy’s medication and the jail sanction violated the Americans with Disabilities Act. The judge was not persuaded. Then, like a miracle, the judge was replaced. He had been an interim judge while the court looked for a permanent person for the position. The new judge examined the situation and determined that there was nothing legally wrong with Timothy taking Suboxone. Perhaps she was afraid of a lawsuit targeting the drug court so soon after starting her new position. However, the new judge is still not entirely persuaded of Suboxone’s efficacy. Nevertheless, according to Timothy, the judge allows it because it could be helpful, and a legitimate physician is prescribing and overseeing the treatment. To date, Timothy is still in the three-year-long drug court program but unfortunately cannot count the month he spent in jail toward the three years. He takes Suboxone daily as prescribed but believes that the rest of the court treatment team still doesn’t view his treatment choice as a proper recovery method. Nevertheless, they defer to the judge’s decision.

WHY DO SOME JUDGES harbor extreme antagonism toward MAT? For example, one judge told me Suboxone is no different than heroin or whiskey. Another judge called methadone “a hideous, awful thing.” Relatedly, why are other judges neutral toward or even in favor of allowing medication? If judges are to remain key treatment decision-makers, then significantly more research is needed into this topic. But my own study provides some clues.

First of all, some judges are very, very worried about abuse or diversion of the medications. The role of such fears in their personal decision-making process was revealed when judges said they might allow Probuphine, a surgical implant that slowly releases buprenorphine in the arm over six months, even when they explicitly banned oral versions of buprenorphine. Unlike oral forms, Probuphine is unlikely to be diverted or abused. Basically, diversion or abuse would require ripping the implant out of one’s arm—presumably causing extreme pain—and then somehow getting the buprenorphine out of the implant. When I conducted the study, Sublocade, a once-per-month extended-release injection of buprenorphine provided by a physician, was not yet available, but one could imagine judges feeling more favorably toward this formulation than the oral kind as it is likewise difficult to divert or misuse.

It is not surprising that judges are particularly attuned to something that is itself a criminal activity—medication diversion and misuse. After all, judges have far more training in responding to criminal activity than in providing health care services. It would be unfair of the public to expect otherwise, which is exactly why reforming addiction treatment services in the criminal justice system requires a larger role for medical professionals and a smaller role for judges and other criminal justice personnel in medical decision-making.

At the same time, buprenorphine diversion and misuse is often misunderstood. The very first objection I hear to buprenorphine from judges, probation officers, and law enforcement is that it is sold on the street and has street value, as if that alone makes it an ineffective or dangerous medication. It can be very difficult for criminal justice administrators to understand why something sold on the street can be good for a drug court participant. Relatedly, criminal justice administrators often automatically assume that people purchasing buprenorphine on the street are doing so simply to get high. But when people buy buprenorphine on the street, they are usually not intending to get high. Multiple studies, including my own ongoing study, have identified prevention of withdrawals and limited access to formal treatment as the primary reasons for illicit buprenorphine purchases.72,^232,264–²⁶⁷

I have asked dozens of interviewees across multiple US states about their experiences with buprenorphine diversion and misuse. Specifically, I ask why people buy buprenorphine on the street. The overwhelming majority says it is to prevent withdrawal symptoms. Rarely do interviewees even identify “trying to get high” as a reason for illicit purchases, let alone as the sole reason for illicit purchases. Of course, some people do purchase buprenorphine to get high, but this fact must be taken with a large grain of salt. Someone regularly using heroin, fentanyl, or prescription painkillers who then takes buprenorphine will feel no euphoria and will become very sick from the combination. He or she will experience precipitated withdrawal symptoms, which as previously noted, are even worse than normal withdrawal symptoms. Therefore, who would buy buprenorphine on the street illicitly to get high? The most likely individual would be opioid naïve, meaning someone who does not regularly take other opioids—in other words, someone whose tolerance is so low that buprenorphine will give them a buzz. But even then, their body will quickly build tolerance, sometimes in just a few days, and they will no longer feel high from the buprenorphine. Furthermore, the street offers much better options for a high, and often at a better price; so overall, buprenorphine would be a strange choice. To use this rationale as the basis of a drug court’s policy for banning buprenorphine treatment is misguided and irrational. After all, a drug court participant with severe opioid addiction—exactly the kind of person who would benefit from buprenorphine—is unlikely to be opioid naïve.

Even aside from fears of buprenorphine diversion, some drug court judges fear that monitoring treatment, a key part of their job, would become a logistical challenge if MAT were permitted. One source of this challenge stems from the lack of existing, trusting relationships between drug court treatment teams and local MAT providers. If judges trusted a local provider, then they would leave some of the treatment monitoring in the provider’s hands. For example, they would trust the MAT provider to contact the court if the drug court participant was failing to attend treatment. They would trust the MAT provider to prescribe a proper dosage rather than one that is too high or too low. Without this kind of trust, court treatment teams feel that allowing MAT is adding an extra layer of work. In contrast, court treatment teams typically have close relationships with one or two local mental health or addiction treatment clinics, almost always abstinence-based. If this local agency does not provide MAT, and statistically it is unlikely to do so,20,²³⁵ then the judge no longer has a provider whom he or she knows and trusts.

Trust is a particularly important theme in my interviews with judges. Just as there have been unscrupulous physicians prescribing painkillers for the “wrong reasons” or with improper monitoring, so too have there been seedy buprenorphine prescribers and overrun methadone clinics. One judge specifically pointed to a news story describing the arrest of a buprenorphine provider as the basis for the court’s policy prohibiting buprenorphine altogether. In contrast, during interviews, judges never revealed distrust of counselors or fears of unscrupulous counselors. In fact, some judges trust counselors so much that they use counselors to vet potential MAT prescribers, to determine physicians’ legitimacy and whether they are “philosophically” in line with the court treatment team. Specifically, court teams often look for physicians who express preference for short-term MAT, despite the stronger evidence base for longer-term MAT.77 This philosophical preference for short-term MAT is reflected in court policies that prohibit drug court participants from graduating while still utilizing MAT. In fact, half of the judges in my study who permitted buprenorphine required participants to stop the treatment quickly, with arbitrary timelines ranging from two weeks to a few months. For example, Judge Pruitt explained that he would permit MAT under the following condition: “[I’ll allow it] provided you have the right professional administering it and working to wean them off of it. One of the problems that we saw was that we didn’t feel like the people administering them were trying to wean them, or cut back and slowly get them off of this medically assisted treatment, and wanted to keep them on it for, I hate to say it, but basically their financial gain.” Any future studies of drug court policies, therefore, must examine not only whether courts permit MAT but also how long courts permit MAT.

On the flip side, not surprisingly, physicians don’t necessarily want to work with court teams. As Judge Hawkins noted, “I don’t think physicians enjoy having their clients be part of our program. . . . I hate to speak for them, but it puts them in a position where we ask that we’re permitted to be able to access all the treatment and monitoring. We require our participants to sign a release, and I’m not sure that the doctors appreciate us snooping around or looking at what’s going on. So I . . . we don’t have a real good relationship with them, I don’t think, throughout the community.”

Judges’ arbitrary time limitations for using MAT are clear examples of inappropriate medical decision-making by personnel without proper medical credentials. Practicing medicine without a license is illegal in all states, yet judges sometimes appear blind to the fact that they are making medical decisions. For example, Judge Becker stated, “Yeah, it’s not a deal where [they can take Suboxone] for ninety days. I mean, I don’t pretend to be a doctor, but our theory is, you know, you can’t substitute one drug for another. . . . Well, it’s up to the doctor, but we want them off as soon as they can get off. . . . I wouldn’t say more than the thirty days at most. Typically it’s two to three weeks.”

Judges’ anti-MAT attitudes clearly stem, in part, from disbelief in MAT as an effective treatment, or even as treatment at all. Repeatedly during interviews, judges would call counseling “treatment” but would refer to medication as an adjunct to treatment rather than treatment itself. For example, some judges said that participants could access MAT so long as they were also getting “treatment,” meaning counseling. Of course, the terminology “medication-assisted treatment,” an antiquated phrasing that suggests medication is either not part of the treatment or is, at best, assisting the “real” treatment (i.e., counseling), doesn’t help the situation. Scholars are increasingly choosing to call buprenorphine, methadone, and naltrexone “pharmacotherapy” or “medications for opioid use disorder” instead of MAT, but few people seem to know these terms, limiting their usefulness in conversation.

Importantly, judges also appear to trust support groups as a recovery method more so than MAT, leading nineteen of twenty Indiana drug and veterans’ courts in my study to require support group participation for people with opioid addiction. Requiring participants to attend AA, NA, or some other spiritual support group likely violates the First Amendment.268 Judges readily acknowledged that participants could select their own local support group for this reason. But what if no support groups other than AA or NA exist in the area—a very likely situation in rural counties? Though a few judges permitted online support group attendance, many judges appeared to not have considered this problem, likely resulting in nonspiritual participants being forced, for lack of an alternative, to attend spiritual support groups. Requiring support group participation is also problematic if the local groups stigmatize MAT and the participant is undergoing MAT. As discussed in chapter 2, MAT-related stigma is common in twelve-step groups, and when few local support groups exist, people cannot effectively “shop around” until they find a group with which they are comfortable.

Courts that deny MAT access may eventually find themselves in legal trouble. For one, a blanket prohibition of any medication can be considered prejudging facts before hearing evidence from both sides in a case, especially if no rationale is provided. If the matter is appealed to a higher court, then the higher court may call out the lower court for abusing its power and rendering a baseless decision.²⁶⁹ Additionally, courts that ban MAT are arguably violating the Americans with Disabilities Act, as already mentioned in Timothy’s account. Since some federal courts have interpreted this act to include substance use disorder, preventing effective treatment for a disability could be considered a legal violation.

In fact, in 2019 the Circuit Court of Appeals in the First Circuit found that denying buprenorphine to someone in jail may violate the Americans with Disabilities Act.²⁷⁰ In that case, a woman who had been successfully undergoing buprenorphine treatment for years was arrested for pocketing cash left at a Walmart register. She was arrested, and the jail refused to continue her buprenorphine treatment. A federal district court heard her case, deciding in her favor, with the higher court later agreeing. In the district court opinion, the judge made the following remarks:

In a randomized, controlled trial conducted in the Rhode Island correctional system, incarcerated people who were permitted to continue taking their prescribed methadone were seven times more likely to continue treatment after release than were inmates who were forcibly withdrawn from MAT. The evidence of MAT’s benefits has become so compelling that it would no longer be possible to conduct the kind of randomized trial that was used in Rhode Island . . . researchers would not consider it “ethically feasible to deny a group a medication that has such [a] proven track record at improving outcomes.” 270

DRUG COURTS CLEARLY have significant room for improvement. But lest we forget, a large percentage of people in the criminal justice system for drug-related crimes are not in jail, prison, or drug court but rather are on probation. Even though being on probation means you can continue to live at home and attend work, it differs from drug court in some significant ways. Treatment, for one, is not necessarily required, even for addiction-related crimes; however, some judges require it in the terms of probation. When treatment is required, decisions are rarely made by a “treatment team,” giving the judge and probation officer a lot of power. For example, until this year in Oregon, probation and parole officers had to approve criminal justice system participants’ utilization of methadone or buprenorphine, even when prescribed by a qualified physician.^271,272 Unlike in drug court, relapse while on probation is rarely tolerated, often resulting in immediate incarceration. In contrast, in drug court a series of relapses will lead to termination but not just one or two. Despite even the lack of a veneer of clinical credentials, probation officers make medical decisions—especially when it comes to MAT.

Kristen, who has opioid addiction, was commanded by the judge to attend the local mental health and addiction treatment center as part of her probation terms. That treatment center, chosen because the probation officer was most familiar with it and trusted it, did not offer MAT. Kristen asked the judge if she could attend treatment at a different local center that offered MAT instead. The judge responded, “If your probation officer deems that it is acceptable.” To Kristen’s knowledge, the probation officer’s credentials consisted of a bachelor’s degree in criminology, hardly the credentials one needs to assess the validity of different local treatment centers or their treatment modalities. Fortunately, the probation officer did allow Kristen to attend the other treatment center and to start Suboxone. Nevertheless, the probation officer viewed the medication with skepticism, pushing Kristen to quit. Kristen says, “The entire time I was on probation, every time I saw my probation officer, she’d be like, ‘Are you going down yet [on the Suboxone dosage]? Are you getting out of there?’ Or, ‘How close are you to leaving?’ She was just very pushy about it and didn’t seem to think that it was a good enough program for me. And I’ve been clean this whole time. It’s worked out great for me. I don’t see why [she] thinks it’s such a bad thing.”

Dawn had a similar experience with her probation officer, who technically allowed Suboxone but took regular opportunities to bash the medication and urge Dawn to taper. “My probation officer said it’s not clean being on that. She’d [look at me] like I was crazy and disgusting and a drug addict and that was it. And then continue to talk about do I have a plan for when I’m going to get off of [the medication].” When I ask Dawn how such comments made her feel, she says, “You cannot tell me that this isn’t helping me, that it’s just me trading one drug for another because it’s not the same! I got to go to a pharmacy to pick up my prescription and there is nothing scary or unsafe about it. And if my kids are around when I pick it up, they would have no idea [what it is] . . . they would just think I’m picking up my prescription and that it helps Mommy.”

Even if people are permitted to access MAT while on probation, the judge or probation officer may not view the treatment center providing MAT as adequate for meeting court-imposed treatment requirements. In such a case, the judge or probation officer sometimes requires the individual to attend two treatment centers at the same time: one that the criminal justice administrator trusts and the other one that the participant actually likes. As mentioned above, trust is an important theme when it comes to criminal justice administrators and MAT providers. The price of distrust is either denial of effective treatment or forcing people in recovery to spend twice as much time and money in treatment centers as necessary. For example, Mark described being required to attend an abstinence-only treatment center with group counseling, individual counseling, and urine drug screens because his probation officer did not trust the quality of counseling and urine drug screens required by the MAT-providing treatment center. The constant driving back and forth is interfering with Mark’s construction job—something that he really needs in order to afford the treatments to begin with.

In contrast to their attitudes toward buprenorphine or methadone, criminal justice professionals often exhibit a markedly different attitude toward extended-release naltrexone. In my 2016 study, judges overwhelmingly preferred extended-release naltrexone, sometimes going out of their way during hearings to praise participants doing well on the medication to encourage other court participants to try it. Since extended-release naltrexone cannot be diverted or misused, judges feel more comfortable with it than with the other medications. Nevertheless, four judges in my study still would not let participants graduate on extended-release naltrexone, as if merely utilizing the medication was a sign that you are not fully in recovery. In 2018, my colleagues and I conducted a survey of 135 Indiana court personnel, including judges, that confirmed our suspicion that attitudes toward extended-release naltrexone in that population are better than attitudes toward buprenorphine; and attitudes toward buprenorphine are better than attitudes toward methadone.273

Judges’ favoritism toward extended-release naltrexone might also be explained by the manufacturer, Alkermes, directly marketing the medication to judges⁵⁶ and taking advantage of courts’ historical antagonism toward buprenorphine and methadone. In my own study, Judge Janice stated, “We work really closely with the drug rep from Alkermes, which makes the drug, and they’ve been very supportive in funding us, giving us discounts for some of our people, even providing a month or two or three of free doses to get somebody started where they don’t have insurance.” But it is exactly that push from judges to get people on extended-release naltrexone that makes some people in recovery hesitant. For example, John, who is treated with buprenorphine, says, “I looked into [Vivitrol] and realized that the makers of Vivitrol were hitting up the court system, kind of like drug reps do at doctors’ offices. That made me nervous . . . that kind of freaked me out about it.” Given the frequency with which people in recovery negatively experience the criminal justice system, a medication with close ties to judges can unsurprisingly raise a red flag.

THE PATH FORWARD to changing anti-MAT practices in the criminal justice system, including in drug courts, will not be easy. Drug courts often operate as isolated islands, with treatment teams rarely including physicians and judges ruling with no medical experience. Locals rarely know how drug courts operate or even what they are. Many Americans don’t care about access to effective medical treatment in prisons and jails when so many law-abiding citizens outside of the penal system cannot access or pay for their own health care as it is. But changes in the criminal justice system, a uniquely isolated health care sector, require public awareness.

When drug court judges wear multiple hats (e.g., as both the felony court judge and the drug court judge), the public may fail to properly evaluate judges’ roles with respect to the drug court. Therefore, states providing funding to drug courts should require them to publicly post treatment-related policies, the names and roles of court treatment team members, program graduation rates, and other basic data annually on publicly available websites. The public, including local health care practitioners, cannot possibly comment on court policies or effectively volunteer their services to the court without such information. Policy makers and researchers can then use such public data to compare policies and outcomes across jurisdictions.

Voluntary professional organizations, such as the National Association of Drug Court Professionals (NADCP), should also more strongly encourage judges to permit MAT and dissuade them from making treatment-related decisions. In fact, almost every judge whom I interviewed stated that he or she attends the NADCP national conference annually, describing the conference very positively. In many cases, it is the primary addiction-related education received by judges. Given the pedestal on which many judges seem to hold the NADCP, state and federal governments should partner with the organization when instituting reforms in drug courts.

Money, of course, is also a potential policy lever. Drug courts, prisons, and jails all get funding from some government source, whether local, state, or federal, and that funding can have strings attached. In fact, the federal government under the Obama administration instituted a new policy wherein drug courts that prohibit MAT access would be stripped of federal funding.274 But my study found that few Indiana drug courts rely on federal funding, making state or local funding a potentially more effective policy lever. Judges also overwhelmingly disagreed with the idea of tying funding to local court policies, viewing the federal government as encroaching on their authority. Nevertheless, tying funding to MAT signals the importance of MAT as a recovery method. For example, Judge Marion explained, “We’re all a little skeptical of [MAT] around here. But I know from going to the NADCP meetings, and not that we get any federal funding, but federal funding is tied to it . . . the federal government will not fund anything if we don’t allow medically assisted treatment. . . . It means that, well, there’s somebody that thinks that it’s pretty important.”

Finally, policy makers should critically reexamine the purpose of drug courts. Clearly, drug court participation is preferable to incarceration, but that does not mean that our current approach to drug courts is best. Perhaps after more than three decades the current drug court model should be flipped on its head with drug courts restricted to serving two purposes: monitoring treatment compliance and connecting participants to wraparound services.

In fact, a court “treatment” team, at least as currently conceptualized, wouldn’t really be needed at all. Instead, all medical decisions, including the type and frequency of treatment, would be made by counselors and physicians outside of the court who would then inform the court staff about progress in treatment. The judge would enforce sanctions in the event of lack of treatment participation, but only after the court case manager addresses potential barriers to treatment access, such as insurance or transportation.

In this hypothetical model, courts would not even conduct urine drug screens because a positive drug screen may simply signal that the current treatment plan needs adjustment—a decision better left in the hands of medical professionals. Relatedly, judges would only sanction participants for failure to attend treatment rather than for relapse, which would be understood as a symptom of the medical condition. The court case manager would connect participants to wraparound services, such as employment or housing.

So far I have interviewed only a few courageous drug court judges taking this approach. But many seem open to the idea, so long as they can be convinced that local MAT providers are trustworthy. Perhaps a state agency should create a preapproved list of clinicians for treating drug court participants, essentially granting a seal of approval on which judges and court staff could base their ever-important trust. Preapproval could include such factors as having had no disciplinary action from a state licensing board, allowing or providing all forms of MAT, and/or quality indicators, so long as the quality indicators are based on solid research. By having a preapproved list of providers, rather than just one or two agencies with whom the drug court collaborates, participants would also have greater choice in treatment, an important benefit since liking your treatment provider (a component of “therapeutic alliance”) is a strong predictor of continuing treatment.275

Finally, even if problem-solving courts operate on an ideal model wherein their role is limited to monitoring and enforcement, health care costs may still serve as a barrier to participants accessing MAT. For example, despite her openness to MAT, one Florida judge explained to me that hardly anyone in her court utilizes MAT because local MAT providers do not accept Medicaid and many individuals in her court program are ineligible for Medicaid. The latter point confused me. Do drug court participants have a high income in her jurisdiction? Then she explained that under Governor Rick Scott, Florida refused to expand Medicaid coverage, preventing single young men from accessing Medicaid despite being poor. She described one participant who had lost custody of his child due to drug use but was motivated to participate in treatment as a path to regaining custody. Unfortunately, by losing custody of his child, he also lost his eligibility for Medicaid in Florida, because he was no longer legally a parent. In contrast, in states that expanded Medicaid, anyone below 133 percent of the federal poverty limit can access Medicaid, regardless of their gender or parental status.276

In Florida, some providers can access other sources of public funds. One source of funding repeatedly mentioned in interviews is a special grant available for Vivitrol but no other forms of MAT. However, one judge with whom I spoke believes it’s unconscionable to send drug court participants to Vivitrol providers in a climate of uncertain funding. What happens when the funding runs out, the participant’s cravings reappear, and the participant, who is no longer tolerant, overdoses?

In 2019, I began collaborating with Florida’s Office of the State Courts Administrator, which has a new awareness campaign educating judges and court staff about the benefits of MAT and person-centered care. So far, I am encouraged by what I have seen, such as judges in some jurisdictions consciously increasing deference to provider decisions, but a long road still lies ahead, especially in states without an agency championing evidence-based practices in courts.

* Meta-analyses examine and pool results from many independent studies after excluding those with bad methodologies. Among analytic techniques for determining the evidence-base for medical treatments, meta-analysis is considered the top of the pyramid of approaches for weighing the efficacy of medical treatments. For more information, see “Meta-analysis: What, Why, and How” on the Cochrane UK website (https://uk.cochrane.org/news/meta-analysis-what-why-and-how).