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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

‘All of a sudden it was like, Holy Cow’—The opioid epidemic is ravaging northeastern Minnesota—and its legal system

Duluth lift bridge, Aneese © Getty Images

Duluth’s heroin problem started with prescription opioids—pain pills. In the first decade of the new century, St. Louis County didn’t record a single heroin overdose. Beginning in 2011, the heroin deaths began to mount and have remained in the double digits every year since. The epidemic levels of opioid abuse have created a state of perpetual crisis in drug courts and the child protection system.

Heroin didn’t used to be a thing in Duluth.

Before Judge David Johnson was appointed to the 6th Judicial District bench back in 2006, he spent a decade as an assistant St. Louis County attorney, a capacity in which he prosecuted drug crimes. In those days, the hardcore narcotics scene in Duluth was dominated by speedy drugs—crack, cocaine, and lots of home-cooked meth. But Johnson never saw heroin, let alone its synthetic counterpart, fentanyl, now the deadliest driver of the nation’s snowballing opioid epidemic.

6th Judicial District Judge David Johnson

In an indirect way, it was the 9/11 attacks that gave Johnson his first glimpse into the dope-sick world. After getting his JD from the University of Notre Dame, Johnson had been a prosecutor with the Marines and, even as he embarked on his civilian career, he remained in the reserves. So after the Twin Towers went down, Johnson was called to active duty. By 2005, the future drug court judge found himself in Afghanistan, where he was assigned to a multi-agency team tasked with gathering evidence against accused terrorists held at Guantanamo Bay.

Johnson’s job wasn’t to prosecute cases but, rather, to bring a prosecutor’s perspective to the investigations. He worked side by side with regular military and guys from an alphabet soup of federal agencies. He’s still got a souvenir crystal DEA ball on his desk in his chambers to prove it. All told, Johnson spent six months in Afghanistan, traversing the countryside in search of witnesses and leads. It was fascinating work.

Most of the time, the team was ferried about in military helicopters. From above, Johnson couldn’t help being struck by what we saw.

“There were huge purple fields everywhere,” he recalled. “It was all poppies.”

That wasn’t an aberration. Afghanistan has long been the world’s top heroin-producing nation—a distinction it has managed to retain even as U.S. markets are increasingly flooded with black tar heroin from Mexico (and, as befits the workings of our global economy, often cut with black market fentanyl from China).

When Gov. Tim Pawlenty appointed Johnson to the bench in 2006, those endless fields of poppies might as well have been outside the gates of Oz. Heroin still hadn’t made inroads in Duluth. Meth was the overriding concern and remained that way when Johnson took over Duluth’s drug court a decade ago.

To Johnson and many others who work in the court, it seemed like everything changed overnight. The people with pinprick eyes were everywhere and the bodies started piling up.

“All of a sudden, five years ago, it was like, holy cow,” recalled Johnson, a wave of lingering disbelief crossing his face. Currently, there are 50 people enrolled in his drug court. Forty-seven of them, the judge estimated, are addicted to prescription pain pills, heroin, or another of the dizzying array of opioids.

•••••

As the crisis morphed into what is now routinely characterized as the deadliest drug epidemic in history, the grim opioid headlines have kept pace. There are the celebrity overdose stories—think Prince and Tom Petty, both sent to early graves by fentanyl—as well as the far more numerous non-celebrity overdose stories, stories that only make the B section or maybe just an oblique reference in a paid obituary.

There are plenty of weird stories about some new phenomenon related to opioid abuse. Did you know that desperate addicts are ingesting huge quantities of the over-the-counter anti-diarrhea drug Imodium to ease withdrawal symptoms, sometimes resulting in fatal heart attacks? It’s become enough of a problem the FDA wants the drugs packaged differently to deter such abuse.

But much of the time, the opioid news of the day is statistical in nature, a body count.

Nationwide, according to the Centers for Disease Control, more than 64,000 people died of drug overdoses in 2016, with opioids implicated in about 42,000 of those deaths. That opioid-driven toll has made drug overdose the leading cause of mortality for people under 50—taking more American lives in a single year than did 17 years of war in Vietnam, and more than HIV at the peak year of the AIDS epidemic in 1995 (around 50,000). It dwarves the approximately 24,000 killed in the nation’s peak year for homicides.

To borrow a phrase, “this American carnage” has not been spread equally. The overdose rate in the hardest-hit regions of the country make Minnesota’s troubles look like a blip. Cabell County, West Virginia, recorded 101 deaths per 100,000 residents in 2016—five times the death rate found in Minnesota’s opioid hot spots.

But by Minnesota’s standards, Duluth is as dope-sick as it gets.

In her 2017 state of the city address, Duluth Mayor Emily Larson listed “addressing the opioid epidemic” as a top priority. “Heroin and opioid drug overdose deaths have more than doubled in the past few years,” Larson said. “St. Louis County has the highest per capita rate of opioid-related overdose of any county in the state—higher even than Hennepin and Ramsey counties.”

As is the case elsewhere, Duluth’s heroin problem started with the pills. In the first decade of the new century, St. Louis County didn’t record a single heroin overdose. Beginning in 2011, the heroin deaths began to mount and have remained in the double digits every year since. All told, between 2011 and 2016, county officials tallied 167 overdose deaths from opioids—a rate of fatal overdose nearly double the statewide average over the same period.

The body count in St. Louis County would be higher if not for one thing: In the spring of 2016, the Duluth police started carrying the anti-overdose drug naloxone.

St. Louis County Attorney Mark Rubin

In an interview in early December, St. Louis County Attorney Mark Rubin was quick to point to the efficacy of the drug, which is known more commonly by the brand name Narcan. Just the day prior, Rubin noted, Duluth police successfully revived four overdose victims in a 24-hour period.

“All the first responders carry it now—ambulance, fire, police—and they are saving lives. Those four individuals yesterday had all stopped breathing when police arrived,” said Rubin.

Although he was not certain, Rubin speculated that the recent rash of ODs was the result of a batch of fentanyl-tainted heroin hitting the streets. “It has been showing up more lately. We had a case on the Range recently where law enforcement went in with a search warrant and found a person dealing fentanyl. They had three children in the house,” Rubin said.

The region’s opioid crisis has put extra strains on government at virtually all levels, from police to social services to the courts.

St. Louis County’s two drug courts—one located in Duluth, the other in Virginia—are filled to capacity all the time. While the 13 prosecutors in the county attorney’s office are keeping up with the increased criminal load, according to Rubin, it has been tougher to keep up with the surge in child protection cases.

Statewide, according to the Minnesota Department of Human Services, parental drug use accounted for approximately 14 percent of children taken from their homes in 2012. By 2016, that figure swelled to over 25 percent and, with that, drug abuse surpassed neglect as the most common reason for removal.

In St. Louis County, the numbers are worse. In November, St. Louis County Commissioner Patrick Boyle told the Duluth News Tribune that “a super-majority” of the approximately 800 children in out-of-home placements were removed as a result of parental opioid abuse.

Assistant St. Louis County Attorney Ben Stromberg

In the 6th Judicial District, which includes St. Louis County as well as neighboring Carlton, Lake, and Cook counties, child protection petitions increased by 64 percent between 2010 and 2017. That’s made for a big increase in the work load for the 11 lawyers who work for the county’s public health and human services division, according to Assistant St. Louis County Attorney Ben Stromberg, who heads up the division.

“As of right now, seven of the attorneys are spending a majority of the time doing child protection work and 10 of 11 are doing child protection on regular basis,” said Stromberg. A decade ago, that work was the province of just four of the office’s lawyers.

The swelling case load has been driven by multiple factors, including the hiring of 20 additional child protection workers by the county two years ago and worsening bureaucratic hurdles. But Stromberg is convinced that the rise in parental opioid abuse has been the prime driver.

“The numbers are just so striking,” said Stromberg. “In Duluth, it’s unusual to have a new case come in and not have opioids be at least a factor.”

Stromberg said the extent of the problem became evident to him in 2013.

“Over a span of a few months, every new child protection case we had involved people abusing this prescription drug nobody had ever heard of before, Opana,” Stromberg recalled. More powerful than Oxycontin, Opana was taken off the legal market last year at the urging of the FDA. But by then, many addicts had already moved on from pills to the cheaper, more readily available, and more potent alternatives—heroin and fentanyl.

Rubin, who has been a prosecutor in Duluth since 1978, has seen his share of drug scourges over the years. Four years ago, the now-defunct head shop The Last Place on Earth made Duluth ground zero in the legal fight over the sale of so-called “synthetic” marijuana and bath salts. The saga ended when the shop’s owner, Jim Carlson, was sentenced to prison for 17 years, while state lawmakers, at the urging of Duluth’s legislative delegation, passed tough new laws cracking down on synthetics.

In November, St. Louis County was out front again when it became the first county in the state to authorize a lawsuit against the drug manufacturers and distributors widely blamed for igniting (and then stoking) the epidemic. A few weeks later, Rubin joined his counterparts from Hennepin, Ramsey, and Washington counties at a joint press conference announcing their intention to go after Big Pharma. Not long afterward, Rubin tapped the national law firm Motley Rice to take the case on contingency.

With that move, Minnesota joined a legal stampede that has been gathering steam since 2014, when Chicago became the first big city to go after manufacturers and distributors in court. Currently, about 400 such claims from various city, county, and tribal governments have been consolidated before U.S. District Court Judge Dan Polster in Cleveland, and he is said to be pushing for a global settlement.

Will the litigation play out like the state’s 1990s suit against Big Tobacco, which produced a $6.1 billion settlement for the state of Minnesota? Rubin was agnostic in his responses to that question. But whatever money comes into the county’s coffers, he said, ought to be set aside to pay for treatment and, perhaps, an expansion of drug courts.

•••••

There is an adage in the world of drug courts: If you’ve seen one drug court, you’ve seen one drug court.

The saying underscores the notion that drug courts are by nature idiosyncratic, often experimental enterprises shaped by collaboration between multiple parties—the presiding judge, probation officers, social workers, prosecutors, police, public defenders, and others.

But the drug court world is also one of established best practices. Jared Hendler, the coordinator for treatment courts in Duluth, Cloquet, and Virginia, has two volumes of them stuffed in binders on the shelf above his desk in the Duluth courthouse. Among the most important, in Hendler’s view, is the proper screening of prospective drug court participants. The goal is to ensure they are both high risk and high need.

“In the beginning, low-risk offenders were often put in these programs. But studies have shown that with low-risk people, drug court can do more harm than good,” Hendler explained as he readied himself for the Friday afternoon session of Judge Johnson’s drug court.

Before the drug court participants have their weekly chat with the judge, however, Hendler and the other members of the team gather in a jury room. On the first huddle of the New Year, Johnson opened with an announcement. After nine years presiding over Duluth’s drug court, he’s moving on. “It’s time for a new judge to come in,” said Johnson, explaining that he would be assuming responsibility for criminal cases.

But Johnson also cited the grind of drug court work as a reason for leaving. “It’s emotionally exhausting,” he said to the group. “You guys do it every day and I don’t know how.”

With that, the huddle was turned over to a pair of probation officers, who provided the latest updates on the court’s clients. It was a litany of addict screw-ups—failed drug tests, court dates missed, treatment sessions missed, fines unpaid. Sanctions and options were debated. Housing and employment woes were constant themes. One client’s boyfriend recently overdosed. He also spent all the rent money, so she needed a new place to live.

As the team mulled the case of a woman who was recently discovered nodding off and had to be rushed to the hospital, Dan Lew, the chief public defender for the 6th Judicial District, piped up.

6th Judicial District Chief Public Defender Dan Lew

“Did you try the opioid withdrawal unit?” Lew asked, making reference to a newly opened facility for opioid addicts at Duluth’s Center for Alcohol and Drug Treatment. The first publicly funded detox of its kind in the state, the six-bed unit is designed to care for opioid addicts in those critical first few days when they are kicking. The typical stay is three to five days.

In an interview later, Lew expressed the hope that the new detox will spare some of his clients from a common horror: going cold turkey behind bars.

“The most frustrating comment I hear is, ‘The only safe space for this person is in jail.’ That is a very short-term solution that can lead to a very sad outcome,”
said Lew.

 Like everyone involved in the drug court, Lew regards the screening of prospective participants as the critical challenge. But unlike some of his colleagues—including county attorney Rubin—Lew thinks dealers ought to be allowed to participate.

 “I think that’s something that needs a fresh look. Are we selecting the right people? Are we ruling out too many folks? Are we devoting the resources to the highest need and the highest risk?” Lew said. “We have 500 people who could use the services of drug court and we take the first 50. It can be a very cruel approach.”

For public defenders practicing in the age of opioids, the very real possibility that an addicted client will overdose upon release from custody has changed some of the legal calculus. “Our goal has always been to secure freedom for the client,” said Lew. “We need to change the narrative to securing freedom and obtaining a safe place for withdrawal.”

In Judge Johnson’s drug court, the most striking thing to an outsider is the informal and sometimes downright jocular tone of the proceedings. They commenced with a simple question: Who’s got good news?

One guy announced that he was recently accepted into Section 8 housing. That good news was met with a murmur of hosannas. Then a wan woman in her mid-20s told Johnson that she barely avoided a relapse over the holiday. She had the pills in her hand before she changed her mind and flushed them.

“I never thought I’d be disgusted by doing drugs,” she told the judge.

“How did it feel when you flushed the drugs?” Johnson asked.

“I feel stronger but it’s scary, too, because I got so close,” she responded.

“You know you’ve got inner strength. Congratulations and thanks for sharing that,” Johnson said.

When another client admitted he’d been using, Johnson didn’t scold him, either. “You stumbled but you stood up and admitted it. Huge turn around,” the judge said. “Sorry you relapsed but you handled it really well.”

Relapses are par for the course in drug court. But when Johnson started out on the drug court, he said, the prevailing attitude about how to handle relapse was different.

“It was basically a grid. If you relapse, you go to jail for 48 hours. Second relapse you go to jail for seven days. Third relapse you go for 30 days,” he said. “And we used to have a one-year rule. You had to have one year of sobriety before you could graduate. Now 60 or 90 days of sobriety is what you need to graduate.”

Critics might interpret that as a free pass but, in Johnson’s view, it’s not that simple. After all, an addict can’t just turn off the cravings for 60 or 90 days. “You expect relapses, you expect that struggle,” Johnson said. “Almost always our response is going to be therapeutic: Tell your counselor and we’ll abide by what they do.”

That’s not the only change in Johnson’s thinking over the decade he’s spent on the court. Among the biggest is the acceptance of medically assisted treatments, prescription drugs such as Suboxone and methadone, to help opioid addicts control cravings. Because such drugs are themselves opioids and thus subject to abuse, their use has been controversial in those treatment circles where absolute abstinence is an overriding concern.

“That was a huge change,” said Johnson. “I was one of the people who used to say we’re just substituting one addiction for another. But it’s not true. People can function normally on methadone or suboxone.”

In court, Johnson mostly engaged in small talk with drug court participants, asking everyone what they did for the holidays, what gifts they received. “Anybody says anything about the Star Wars movie before I see it, they’re going to jail,” the judge interjected at one point. That got a belly laugh.

Johnson refrained from using familiar jargon. There are no references to “dirty U.A.s” but plenty of emphasis on what Johnson refers to as “pro-social, pro-sober activities.” Still, at the end of the day, three participants are facing more jail time.

•••••

How and why Duluth emerged as an epicenter of Minnesota’s opioid crisis are questions that many in the city’s public health and criminal justice communities have contemplated. The answers are elusive.

“Why is northeast Minnesota afflicted more than other areas in the state? I don’t know,” said County Attorney Rubin. But Rubin hopes that the county’s lawsuit against opioid manufacturers and distributors might provide some answers. Because opioid addiction tends to begin with pain pills, evidence of over-prescribing in the area could explain the local demand.

Duluth Police Lt. Jeff Kazel, who heads up the Lake Superior Drug & Violent Crime Task Force and is a regular participant in Judge Johnson’s Friday morning huddles, cited another reason. With limited competition, according to Kazel, out-of-state dealers have learned they can charge twice as much in the Twin Ports as they get in the more mature drug markets of the Twin Cities. In March, state and federal authorities announced they they’d broken up a large heroin ring that operated in accordance with that model, moving product from Chicago to the Twin Cities to the Twin Ports. More than two dozen people were charged and more arrests were expected.

6th District Court Judge Shaun Floerke

6th District Court Judge Shaun Floerke runs Duluth’s award-winning DWI court and co-chairs the Drug Court Initiative, a Minnesota Judicial Council advisory committee; in late March he was named to a national judicial task force on opioids. He is blunt when asked why the area has been hit so hard.

“I don’t know. We can do a lot of guessing,” said Floerke.

Floerke is as big a Duluth-booster as you will find. A Wisconsin native, he fell for the city while on vacation with his wife. When a prosecutor’s job opened in the St. Louis County Attorney’s office in 1996, he leaped at the chance. Floerke, who rides his bicycle to the courthouse year round, revels in Outside magazine’s designation of Duluth as “Best Town Ever”—a paean to the city’s natural splendors, as well as more urban virtues like a thriving food scene and walkable neighborhoods.

But Floerke has no illusions about what opioid epidemic has done to his adopted town, how it has “kind of reshaped the whole feel of the place.”

It’s an unavoidable topic of conversation with his five kids, all teens or young adults. “They see the destruction. They’ve had friends and classmates who died,” he said. But that doesn’t mean the realities are any less shocking. Last summer, Floerke took his 13-year-old daughter fishing at Thompson Reservoir, where they came across a discarded needle. “We’re in the middle of this beautiful lake and she’s like, ‘What’s that doing up here?’” Floerke said.

During an interview, Floerke pulled up an article from the Guardian newspaper about Portugal’s much-heralded experiment with drug decriminalization. What intrigued Floerke wasn’t that the Portuguese had changed their drug laws. It was the degree to which cultural attitudes about drugs and drug users had changed. Addiction had been destigmatized and re-framed as a public health issue.

“In our country, there’s still so much shame and stigma. Junkie. Addict. So much of that in our culture,” Floerke said. For opioid addicts who rely on drugs to stay off drugs, that stigma can be particularly problematic. “The talk is, you’re not really sober because you’re using methadone or suboxone.”

Floerke has no such reservations. “I put the first client ever in the opioid unit last week,” he explained. “He’s going to do his detoxification in a medically controlled safe environment and then we’ll figure out the consequences.”

Does he see anything that makes him think that the tide has started to turn with Duluth’s opioid epidemic?

“Am I optimistic about the numbers? No way,” Floerke said. But the community awareness of the problem has never been greater and, Floerke maintains, the institutional systems in place to address the crisis have improved. “We’re not burying our heads in the sand. We’re learning fast. That makes me hopeful.”

Floerke likes to repeat an allegory he firsts heard from Don Coyis, a leader in the Native American “wellbriety” movement. Coyis’s idea is that the mono-focus on sobriety isn’t enough to make addicts better.

The story goes like this: 

Three sisters come to a river and see that it is full of babies. The first sister jumps in and begins hauling babies to shore but there are too many to save. The second sister jumps in and teaches kids how to swim, and then those kids teach the other kids. But it’s still not enough. There are still kids drowning. So the third sister takes off running upstream.

“In court, we’re getting people after the arrest, after the overdose, after child protection,” Floerke said. “I hope that somebody’s running upstream, trying to figure out why we have so many babies in the water.”

 


MIKE MOSEDALE is a freelance writer in Minneapolis. A New York City native, he has written on a wide array of topics for numerous publications, including City Pages, the Star Tribune, Politics in Minnesota and, most recently, Minnesota Lawyer.

 

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