By Michael Grohs, Contributing editor

The problem seems to be an American one. According to the National Institute on Drug Abuse, from 1991 to 2011, the number of opioid prescriptions dispensed by U.S. pharmacies tripled from 76 million to nearly 220 million. The U.S. consumes 80% of the world’s opioids. Between 2006 and 2016, 21 million hydrocodone and oxycodone pills were sent to just two pharmacies in Williamson, West Virginia, a town with a population of 3,191. According to a Centers for Disease Control (CDC) study, in 2012 in Hawaii, doctors wrote 52 opioid prescriptions for every 100 people. The statistic is important because it was the fewest amount of any state. Alabama was highest with 143 prescriptions per 100 people.
The epidemic is a public health crisis. It is so bad that according to the National Center for Health Statistics, a branch of the CDC, the U.S. Life Expectancy has dropped for the second year in a row. That has not happened since the early 1960s when a spike in flu deaths was likely to blame. In 2014, 78 Americans died every day from an opioid overdose. That is 28,470 cases. At the time that was more than any year on record. According to the CDC, two years later that number was 63,600. That is more than how many American service members died in the Vietnam War.
Drug overdoses have surpassed auto accidents as the leading cause of injury death in the United States. Most involve prescription painkillers, but a growing number are the result of a heroin and fentanyl, a synthetic opioid that people with Substance Use Disorders (SUDs) often pursue when their prescriptions run out. It is not an urban phenomenon either. Some of the largest concentrations of deaths were in Appalachia, the Southwest, and rural areas in which access to treatment, especially medication-assisted treatment, which is often required for rehabilitation, is limited. In urban areas there may be more resources to help, but there are not enough of them.
Scenes of parents overdosing have gone viral. In one, a crying four year old in Frozen pajamas pulls at her mother as she lay in the aisle of a Family Dollar store in Massachusetts. Prosecutors did not have enough evidence to charge her with a drug related offense, and overdosing itself is not a crime, but she was charged with child endangerment. She pleaded not guilty and was sentenced to treatment, drug testing, and probation. In another, a married couple in Memphis was recorded writhing on the sidewalk. The two were revived by paramedics and have since divorced. The woman was arrested on outstanding petty theft charges. Another viral photo from East Liverpool, Ohio, showed two adults overdosing as a four-year-old boy sat in the back seat of the car. After the event, the man was charged with driving under the influence and child endangerment. He was sentenced to 360 days in jail. The woman, the boy’s grandmother, was sentenced to 180 days. The boy’s great aunt and great uncle were awarded custody. The common thread is all of these cases involved the courts.
Michelle White, principal court consultant at the National Center for State Courts (NCSC), notes that traces of the epidemic can be seen on every type of docket. Opiate-related arrests have skyrocketed. Many court dockets and probation caseloads are filled with individuals with opioid-use disorders. (In 2014, 1.9 million Americans had a substance-use disorder involving prescription pain relievers, and 586,000 had a substance-use disorder involving heroin.) The financial impact is enormous. In 2015 the Ohio Department of Mental Health and Addiction Services began providing about $30 million in substance-abuse treatment in the state’s prisons, $4 million on housing for individuals in recovery, and $1 million over two years for naloxone to reverse drug overdoses. The State Highway Patrol spent over $2 million expanding and improving their crime lab to keep up with substance testing.
‘It’s a Tsunami’
It is not only a public health matter. Courts are the backbone of a law and order society, and the nation’s courts are under enormous stress because of the epidemic. Everyone has heard the term “flooding the courts.” The opioid epidemic is worse. As Chief Justice of Indiana Supreme Court Loretta H. Rush says, “It’s a tsunami. I’ve never seen anything like this.” She points out that it is not just a criminal matter. It is also a matter for debt cases, guardianship cases, and commitment cases for situations in which a family may have a member who had overdosed numerous times, and the family wants to force them into hospitalization. There are legal considerations such as interstate families and getting children across state lines. In Indiana, foster care cases have doubled. Courts, she says, are seeing it across the spectrum. She notes, though, that the judiciary does have levers to pull, and the courts have an important role in finding solutions.
White concurs that the impact affects every aspect of public safety and the judicial system. She points out the effect it has on court involved people. Probation workers and child welfare workers have significantly larger workloads. There are also fewer foster homes available. Most people are familiar with the emotional impact first responders encounter. Court personnel are also affected by their day-to-day jobs. An Administration for Children and Families report found that nearly 75% of states reported a rise in the number of children entering foster care from 2014 to 2015. From 2012 to 2016, the percentage of removals as a result of parental substance abuse increased 13% to 32.2%.
What Courts Are Doing
In response to the epidemic, state court leaders formed a task force to find solutions, examine current efforts, and make recommendations to address the opioid epidemic’s ongoing impact on the justice system. The NCSC, on behalf of the Conference of Chief Justices and the Conference of State Court Administrators, jointly adopted a policy resolution at their annual conference to establish the task force. Chief Justice Rush and Tennessee State Court Administrator Deborah Taylor Tate are co-chairs. The task force will document current inter-branch activities to address the epidemic and make further recommendations. The work plan for the judicial branch task force includes convening representatives from state and federal government as well as national organizations to share strategies and identify needs, creating partnerships with entities addressing the impact of opioids on children with specific emphasis on foster care, assisting state courts in developing opioid task forces, working with existing state task forces to make recommendations for local response efforts, developing guiding principles that state courts can use for successful collaboration among treatment providers, criminal justice systems, and child welfare agencies, and creating a checklist of state legislation, policy, and court rules that aid or inhibit response effort.
Chief Justice Rush says that important elements to address the epidemic include ramping up treatment that begins in jail. A problem, she says, is when someone is released after a period of incarceration without treatment, their tolerance is down, and they are released and overdose. Drug courts have been studied extensively and have shown profound success in treating people with SUD. In 2016, Buffalo, N.Y., experienced 300 overdose deaths and is now experimenting with the nation's first opioid crisis intervention court, which can get users into treatment within hours of their arrest, requires daily check-ins with a judge, and puts participants on strict curfews. The primary goal, rather than the administration of justice, is “keeping defendants alive.” City Court Judge Craig Hannah presides over the program, which is funded with a three-year $300,000 grant from the United States Justice Department. The intention is to treat 200 people in a year and provide a model that can be used as a template for other cities.
One tactic Justice Rush stresses is judicial education. Barbara J. Pariente, Florida Supreme Court Justice agrees, and stresses that the time to act is now. On the Court’s website she posted actions that can be taken immediately to address the crisis with which opioids are affecting the courts. Actions include requesting and seeking out judicial education regarding education, understanding psychopharmacology, addiction, and substance abuse treatment, learning the purpose of and best practices for medically-assisted treatment, and understanding the ramifications opioid treatment will have on the Adoption and Safe Families Act. Judicial leadership should also create a trauma-responsive environment and identify gaps in services and needed funding and resources.
The judiciary, she says, should also coordinate all related cases involving one family to ensure that judicial decision-making is based on comprehensive information about a family as well as reading case documents through a trauma lens and use trauma-responsive court practices to ensure the gathering of necessary information to make good decisions, make determinations regarding the best interests of the child in child abuse and neglect proceedings with an understanding of opioid addiction and treatment, and hold treatment providers accountable for using evidence-based treatment models.
It is that sort of cooperation, innovation, and information sharing that Chief Justice Rush says is needed. “We need to develop family recovery courts.” For example, if a child is placed in foster care, the court should consider what kind of treatment there should be for the mother so she does not deliver another drug addicted baby. Information sharing across jurisdictions, developing new drug courts, and promoting regulation of treatment are those levers the judiciary can use.
The wound from the epidemic is deep. In the summer of 2016, a multi-state, regional summit convened in Cincinnati. Over 150 attendees who represented states at ground zero of the opioid epidemic, largely in Appalachia, met to discuss the impact of the opioid epidemic in the region. Summit delegates developed a regional action plan with strategies to combat the opioid epidemic and formed the Regional Judicial Opioid Initiative (RJOI). “The opioid problem confronting this region does not recognize geographical, political or governmental boundaries and is simultaneously a criminal justice, public health, family disintegration and social service crisis that necessitates multiple approaches and multiple solutions.” CT


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