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Tips and Topics: Nonviolent drug offenses; justice transformation; honesty and addiction

Vol. #16, No. 3                                                                    June 2018
Welcome to the June edition of Tips and Topics (TNT). Glad you could join us this month and if you are in the Northern Hemisphere, enjoy your summer. If not, stay warm.
David Mee-Lee, M.D.
DML Training and Consulting
SAVVY

The June 25, 2018 edition of National Public Radio’s (NPR) “Here & Now” news show had a segment titled: “Trump Pardon Of Nonviolent Drug Offender Raises Hopes For Others Currently In Prison“. President Trump recently pardoned Alice Johnson, who had been in prison for more than 20 years for a first-time drug conviction, and is considering commuting the sentences of more nonviolent drug offenders. You can listen to the 10-minute segment:
TIP 1
Consider if it is worth incarcerating people who committed nonviolent crimes due mainly to the disease of addiction and/or related social ills.
The statistics jolted me again:
  • About 2,000 people with nonviolent drug offenses are incarcerated and serving life without parole.
  • Just under half of the total federal prison population of 185,000 is serving some time for a nonviolent drug offense.
  • By far, drug offenses (46.2%) make up the federal prison population. See the Federal Bureau of Prisons’ bar graph statistics updated May 26, 2018: Bureau of Prisons Statistics
  • In California, it costs over $75,000 to house a prisoner for one year. While it is about half that in Federal prison, that is still a great amount of money.
What is a drug offense?
“A drug offense refers to the possession, use, sale or furnishing of any drug or intoxicating substance or drug paraphernalia, prohibited by law. Most drug offenses are felonies.” Definition of drug offense
All too rare bipartisan initiatives continue to transform criminal justice services to help people with drug offenses, who have addiction and/or social problems like poverty, rather than just lock them up. However, there are not a lot of Alice Johnsons of the world who have Kim Kardashian advocating for them. (“Who is Alice Johnson and Why is Kim Kardashian involved”)
 
TIP 2
Come together to achieve public safety, promote recovery and justice for all.
The National Association of Drug Court Professionals (NADCP) just completed their 2018 NADCP Annual Training Conference. With over 5,000 attendees and 300 educational sessions this is “the world’s largest conference on addiction, mental health, and recovery in the justice system!”
I was privileged to present five sessions. I met and interacted with judges, attorneys, probation and parole officers, law enforcement, treatment court administrators and coordinators, recovery coaches, peer mentors and treatment providers. All of these professionals comprise the “team” who can bring about transformation of justice and treatment services:
  • To incarcerate those who truly threaten the public safety.
  • To treat those with addiction and mental illness whose only threat to the public was behavior caused by untreated and unstable behavioral health conditions.
  • To be good stewards of all resources and spend our tax dollars wisely to increase public safety by promoting recovery and well-being for the sick; and for the socially and economically-disadvantaged people driven to crime to survive.
The Multidisciplinary Team
NADCP Practice Standards define the Multidisciplinary Team like this:
“A dedicated multidisciplinary team of professionals manages the day-to-day operations of the Drug Court, including reviewing participant progress during pre-court staff meetings and status hearings, contributing observations and recommendations within team members’ respective areas of expertise, and delivering or overseeing the delivery of legal, treatment and supervision services.
A. Team Composition
The Drug Court team comprises representatives from all partner agencies involved in the creation of the program, including but not limited to a judge or judicial officer, program coordinator, prosecutor, defense counsel representative, treatment representative, community supervision officer, and law enforcement officer.”
Source: National Association of Drug Court Professionals (NADCP), ADULT DRUG COURT BEST PRACTICE STANDARDS VOLUME II
It is going to take more that just drug and treatment court teams to advance justice services evolution. If President Trump was on board, as was President Obama who granted final commutations to 330 nonviolent drug offenders, we’re off to a good start.
SKILLS & STUMP THE SHRINK

During my presentations at NADCP, my goal was to bridge the gap between justice services and treatment services:
  • To help court teams know what good treatment should look like.
  • To help treatment providers understand what to put in update reports so court teams can know if participants are progressing or not.
  • To find ways to work together to protect the public and use resources wisely – treat participants for flare-ups of addiction or mental illness; sanction and incarcerate for threats to public safety.
  • To promote recovery and well being to achieve public safety, rather than compliance and incarceration.
As part of that process of bridge-building, I had many conversations and questions during and after the conference. Here is one of those.
TIP 1
How to craft policies allowing for mistakes and promoting honesty; not zero tolerance.
In part, this is what one attendee wrote to me:
Our court already has “warnings” for a lot of the supervision pieces – first missed curfew is a warning, first missed drug screen is a warning and loss of clean time, if admitting to drug use there is no sanction.
 
However, we have a “zero tolerance” policy for honesty. I tried to argue that these folks have spent the better part of their lives lying about anything and everything and the expectation that they are going to join this program and immediately start being honest in unrealistic. I suggested we have a “warning” for their first lie – when it is an honesty issue only. For example, a drug court participant may own up to the fact that: “I lied on my AA meeting sheet”, “I lied about leaving the jurisdiction”, “I lied about going to community service” – etc.
 
I would still address this in treatment with a redo of Step 1 if they have even passed that step, but as far as the sanction of a day in jail for an honesty violation – my hope is that we add in a warning to give them an opportunity to learn the system and learn how to be honest.

Do you have any hard research evidence indicating that this is best practice? The judge specifically said, “What are we losing by doing it the way that we do it?”

Drug Court Therapist
My Response
Thanks for writing and I think you have a tough task getting these points across. Here are some thoughts and resources:
Look at “Principles of Drug Abuse Treatment for Criminal Justice Populations – A Research-Based Guide” is from the National Institute on Drug Abuse. Here is a link if you haven’t seen it already  NIDA Principles of Drug Abuse Treatment
Principle #1, Drug addiction is a brain disease that affects behavior
Addiction is a brain disease, it isn’t just a behavioral disorder where behavior modification is the only method to address behavior. The behavior modification method of escalating warnings/sanctions does not address the complexity of addiction. Behavior modification is a single-theory approach to a complex multidimensional disorder.
Principle #2, Recovery from drug addiction requires effective treatment, followed by management of the problem over time; and….
Principle #3, Treatment must last long enough to produce stable behavioral changes.
Principles 2 & 3 require engaging participants in an ongoing therapeutic process focused as much on dropout prevention as on relapse prevention.
With any behavior problems it is important:
  • To understand what went wrong in the therapeutic process so poor outcomes like missed drug screens, positive drug tests, lying, attendance problems etc. are occurring.
  • To identify what the problem is and focus on how the participant can learn from their mistakes.
  • If the participant is willing to follow a new treatment plan addressing whatever problems were behind the behavior (e.g, hanging out with the wrong friends; not knowing how to deal with anger without using; struggling with a flare up of PTSD or chronic pain; scared to be honest about drug use, because of zero tolerance policies etc….) then treatment should continue, not warnings and sanctions.
  • Treatment is not about having people be perfectly well-behaved, but in helping them change attitudes, thoughts and behaviors around the assessed problems they have which threaten public safety. If they could be perfectly honest, abstinent and pro-social, they wouldn’t need treatment!
Principle #4, Assessment is the first step in treatment; and..
Principle #5, Tailoring services to fit the needs of the individual is an important part of effective drug abuse treatment for criminal justice populations.
These principles emphasize:
  • How important assessment is.. how important individualized treatment is to improve services to fit whatever new needs are assessed and discovered.
  • Assess and treat, instead of activating a series of warnings when something goes wrong in addiction flare-ups, such as substance use, lying or antisocial behavior.
  • This is important not just at the start of treatment, but in an ongoing process. Self-defeating choices and flare-ups of old and new problems can occur at any time of the recovery process.
Principle #6, Drug use during treatment should be carefully monitored so that any “detected use can present opportunities for therapeutic intervention”.
  • Policies permitting mistakes and honesty allow the participant to move away from criminogenic thinking and antisocial behavior.
  • Zero tolerance pushes any impulses or actual substance use underground preventing “opportunities for therapeutic intervention”.

How to respond to the judge who says: “What are we losing by doing it the way that we do it?
Unintended negative consequences of a predominantly behavior modification approach of warnings and sanctions and zero tolerance:
  • Creates an environment that fosters participants’ need to lie about any use they have from an addiction flare-up;
  • Causes participants to be more focused on looking good and compliance, rather than on learning from mistakes and changing their treatment plan if things are not going well.
  • Increases the need for participants to “con” the treatment and court team if they make a mistake. Instead they could be putting their energy into being honest about their struggles to use, cravings and triggers, ambivalence about changing people, places and things like hanging with certain friends; or going to certain neighborhoods.
  • If a participant misses a curfew or receives a positive drug test, it creates the incentive to lie to save face and use criminal thinking to scam the system, a behavior they are already too good at.
What you have to lose is to see:
  • Continued high dropout rates and poor “graduation and completion” rates.
  • Continued recidivism of participants who graduated but didn’t really change in their attitudes and behavior which threatens public safety.
  • Incentives for participants to focus on compliance and avoiding warnings and sanctions, rather than focus on adherence to an individualized treatment plan to achieve real, accountable and lasting change in function.

SOUL

This must be my NPR Here & Now month.
Last month, there was a May 21, 2018 segment about the Supreme Court’s ruling that struck down a 1992 federal law preventing states from permitting sports betting. I was interested not just because it raised awareness about the neglected manifestation of addiction, gambling disorder, but because of the lawyer who spoke about his addiction and recovery.
Michael Burke, now executive director of the Michigan Association on Problem Gambling, said:
  • “I stopped drinking 40 years ago. But what I did is I traded it for another addiction. I never got involved in drugs after my treatment because the people at the treatment center terrified me about trading an alcohol addiction for drug addiction.”
  • “I probably had gambled 14 or 15 years…..They opened a casino in Windsor that was less than an hour from Howell, where I lived. I found that I started going over a couple days a week, spending what I thought was a reasonable amount of money – up to $300. I set the limits, I maintained them. But …it changes and I start chasing the money I’ve lost. And I actually ended up embezzling $1.6 million from my clients, and I spent 3 to 10 years as a result of this in Jackson [State Prison].”NPR’s Here & Now Gambling Addiction
Here was a lawyer who was dishonest, told lies and cheated his clients – all because of the ravages of addiction. His addiction first manifested as alcohol use disorder but then later, a gambling disorder.
I hope one day all the judges and lawyers who want to sanction, give warnings and incarcerate people with addiction who lie while in treatment will have a chance to talk to the Michael Burkes of the recovery community.
Of course, it is not OK to lie and be dishonest. I bet lawyer, Michael Burke, in long-term recovery, knew that, while he continued lying to his clients, embezzling their money. That is the cunning and baffling nature of addiction – to say and do bad things you know you shouldn’t do.
But when participants in treatment courts are in the throes of their addiction (using or lying) with no recovery time or skills, that is the time to “do treatment” not “do time”.
Craft policies that allow for mistakes and promote honesty; not zero tolerance.

Until next time
Thanks for reading Tips & Topics this month. See you soon again in late July.
                                                                                                                        

David

                                                                                                                        
David Mee-Lee, M.D.

916-715-5856
davidmeelee@gmail.com

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