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

First, Do No Harm: The intersection of opioids and the courts

The growing number of opioid users entering the legal system poses many challenges for courts, not least in the area of devising pretrial release protocols that minimize the danger of death by overdose. This article, written in consultation with a physician specializing in the treatment of addiction, spells out factors to consider when courts face opioid-using defendants.

There has been a great deal of discussion about the crisis America faces as a result of the prescribing and misuse of opioids. The crisis is certainly making itself felt in the courts. How judges address individuals appearing before them who use opioids is a critical matter. This article offers a bench checklist to help judges and other officers of the court in devising pretrial release procedures that recognize the distinctive nature of opioid addiction. 

According to the Centers for Disease Control, overdose deaths involving prescription opioids have quadrupled since 1999, as have the sales of these prescription medications. From 1999 to 2015, more than 183,000 people died in the U.S. from overdoses related to prescription opioids. In 2016, approximately 64,000 people died from overdoses. Three-fourths of all drug overdose deaths are now caused by opioids. A new report from Police Executive Research Forum (PERF), an independent research organization that focuses on “critical issues in policing,” puts these numbers into context, noting that more Americans died from drug overdoses in 2016 than died during the entire Vietnam War (58,200).

In Minnesota, the number of people who died from opioid overdoses rose more than 500 percent in that same period, from 60 in 1999 to 319 in 2014 to 637 in 2016, according to the Minnesota Department of Health. In Minnesota, the counties with the highest rates of death from opioid overdoses between 1999 and 2014 were Anoka, Carlton, Cass, Hennepin, Mille Lacs, and St. Louis, confirming that urban and rural areas have been equally affected by this crisis.

The causes of the crisis have been linked to the over-prescribing of opioids for pain, especially chronic pain. In an online interview, Dr. Audrey Klein, executive director of the Hazelden Betty Ford Foundation’s Butler Center for Research, noted, “Overdose has now surpassed traffic accidents as the number one leading cause of accidental deaths. In 2014, nearly 19,000 overdose deaths were related to prescription pain killers. Another 10,574 were related to heroin. These numbers likely underestimate the actual number of deaths due to opioids, since most death certificates don’t list the type of drugs involved in the overdose. The remaining number of deaths for illicit opioids like heroin, for example, rose sharply again in 2015 and continued to increase in 2016. According to the CDC, over 33,000 Americans have died from an opioid overdose of one kind or another in 2015.”

Our state and national leaders are attempting to address these ongoing concerns, and I will not address my opinion relating to the causes in this piece, but instead focus my attention on best practices for judges in dealing with opioid users.

A complex profile

Opioid users who appear before the courts may have complex psychological profiles. As Klein noted in her online interview, “Most of our clients in their 20s tend to be IV heroin users. What we learned about this population is that there is a high correlation between IV drug use and childhood abuse. In addition, we noticed that many of these clients have had some kind of close experience with overdose and death.” 

It is clear that this group has different needs from those who appear before the courts as users of marijuana, cocaine, methamphetamines, or alcohol. The primary difference relates to the fact that there is a significant risk of overdose death for those who are using opioids, depending on the pretrial conditions of release set by the courts. The primary risk stems from the fact that when an individual is apprehended and discontinues the drugs, their tolerance quickly becomes lower, while craving drastically escalates. Once released, resuming the same opioid dose to which they were accustomed can readily cause overdose and death.

Pretrial release protocols

I approached Marvin D. Seppala, MD, the chief medical officer of Hazelden Betty Ford, to assist me in preparing a bench checklist to help judges, prosecutors, probation agents, and defense attorneys to craft pretrial release protocols that minimize the risk of loss of life to opioid-using defendants who appear before the courts. What follows are some of the measures that Dr. Seppala believes would be helpful. 

When incarcerated for less than a week, defendants would be in withdrawal and have a high level of craving but a low risk of death upon return to opioid use, as there would be minimal loss of tolerance to the effect of opioids. This group would still benefit from formal addiction treatment that includes:

  • abstinence from all addicting substances;
  • Buprenorphine maintenance treatment or Buprenorphine detoxification and extended release Naltrexone (Vivitrol);
  • urine drug screens; 
  • regular long-term follow up; naloxone, an opioid overdose antidote, should also be provided to these people.

Defendants incarcerated for 10 days or more would be in withdrawal or just over it. Their cravings will be at a high level, and loss of tolerance to opioids would be established, leaving them at a high risk for opioid overdose and death. (The risk of overdose increases further upon resumption of opioid use if abstinent for over two weeks.) This is the group that can leave court and drop dead upon return to opioid use. This group needs immediate attention and could benefit from all of the features of formal addiction treatment listed above. 

It should be noted that protocols may be different for those who appear before the courts using methamphetamines, cocaine, or other drugs, as well as alcohol, as continued use after a period of abstinence from these substances does not carry the same inherent risk of overdose. This should not minimize other risks associated with the continued use of these drugs after pretrial release. Most people use a combination of substances, yet the primary concern associated with return-to-use overdose risk remains the opioids, irrespective of whatever else they may also be using.

Buffalo, New York has the first opioid treatment courts in the U.S. It is my understanding that the courts get eligible defendants into court-supervised addiction treatment programming almost immediately, and place any drug-related charges on hold for a minimum of 30 days. Successful completion of the program can lead to charges being dropped.

Our chief justices in Minnesota, as well as state and national leaders, have been proactive in addressing the impact of alcohol and other drugs in the courts by supporting drug treatment courts, veterans’ treatment courts, and family drug courts to respond to the long-term needs of defendants who are addicted and have a high risk to reoffend. But not all courts in the U.S. have access to drug courts, and as a result, the majority of judges in the U.S. need tools to address early intervention and treatment for opioid addiction to avoid potential loss of life and future victimization.

Once the defendant has stabilized and is in treatment, a long-term treatment approach has shown excellent results in reducing recidivism.

Key questions for courts

Some of the questions and responses that Dr. Seppala believes probation agents and judges should ask in formulating helpful pretrial release conditions is as follows:

1. “Do you use opioids daily?” They will either tell us the whole story or not. We are not going to find out if they refuse to tell us, unless there is clear evidence related to the reason they are in court. If they are not daily users, the risk of loss of tolerance is not a consideration. They could still overdose by using an excessive amount, but not because they have lost tolerance to the amount they are usually using. Our primary goal is twofold: to prevent the risk of overdose in those who have been off opioids long enough to have lost their tolerance to the effects of the drug, and to initiate addiction treatment.

2. “Do you need more now than you did a few weeks ago to get the same high?” This establishes if they have increased tolerance, revealing an increased risk of overdose after a period of abstinence.

3. “Have you experienced opioid withdrawal when you’ve suddenly stopped opioids?” The symptoms include diarrhea, nausea, vomiting, gooseflesh, anxiety, and insomnia. This provides a sense of the severity and regularity of use, also helping establish risk of overdose upon return to use.

4. “Have you ever overdosed on opioids?” This is a predictor of future overdoses. 

5. “When was your last use of opioids?” If they have not used for over a week, they have been experiencing significant withdrawal and a slight reduction in tolerance, adding to the risk of overdose upon return to use. Past the two-week mark they have lost more, if not most, of their tolerance and are at a high risk of overdose upon returning to the same doses they were using prior to stopping.

6. “Would you like to continue to use opioids or would you like to stop?” This helps determine motivation and the type of resources to consider. For those who have no interest in stopping, the use of Buprenorphine to limit withdrawal and prevent use could still be in order, but probably not an unstructured treatment program. For those who want to stop, a formal treatment program with medications would be an option either at the time or at a later date. Use of a drug court for either group would be ideal. Even those who do not want to stop can come around with a period of abstinence and are greatly helped by drug courts.

7. “Have you ever used Buprenorphine, either by prescription or on the street?” This will help in gauging their knowledge base as well as their interest in stopping. And understanding their own experience with this medication would help in decision-making related to their situation.

It is my hope that following these protocols will be helpful for judges and probation agents as they consider pretrial release conditions for individuals appearing before the courts who are using opioids.

10th Judicial District Judge ROBERT G. RANCOURT, chambered in Chisago County, was appointed to the district court bench on Feb. 8, 2002. In 2013, he was inducted into the Stanley Goldstein Drug Court Hall of Fame, the highest honor bestowed upon people who work in drug courts. In 2015, Judge Rancourt began a four-year term on the National Advisory Council on Drug Abuse.

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