Policies and practices of the courts
In our sample, only one court (Bronx County) had a clear practice of welcoming persons already receiving MMT and including MMT as an option for court-referred treatment. Albany County was characterized by treatment providers as having zero tolerance for methadone; all MMT patients and persons who wanted to receive methadone or buprenorphine as court-mandated therapy were excluded.
The Manhattan and Brooklyn drug courts, among the largest in the state, required any existing methadone patients before the court to withdraw from MMT. The two policies, according to their respective handbooks, are the same [28, 29]. To participate in the drug court, methadone patients must agree to participate in a phased withdrawal from MMT, of which the first phase includes demonstrating “abstinence from all other substances”, receiving a methadone dose reduced by half, and having four months “sanction-less time”. The second phase is complete “detox from methadone” as well as abstinence from other substances and unspecified “accumulated drug-free time” of which the duration depends on the offense with which the person is charged.
The Western District, including eight counties and the city of Buffalo, which reportedly followed the guidance of treatment providers, was typical of those districts with a general policy of allowing MMT only for a fixed period as a “bridge to abstinence”. The Western District was of particular interest because a leading drug court judge in the district, the Hon. Robert Russell, had been board chairman of NADCP, which has a resolution on the benefits of MMT not as a bridge to abstinence but for whatever period is needed [30]. Asked about the difference between the 8th District’s policy and the NADCP policy, Judge Russell asserted that “expressing the aspiration that all people will be drug-free” is not counter to the spirit of the NADCP policy.
In the Bronx, where the drug court welcomed methadone patients, treatment providers noted, however, that the position of the drug court was undermined by the policy and practices of another state-funded program operating in the criminal courts, Treatment Accountability for Safer Communities (TASC)a. TASC is meant “to integrate alcohol and substance abuse treatment into justice processing to provide continuous treatment and supervision for substance-involved justice populations, and there is a large TASC-supported program in the Bronx [31]. According to treatment providers, persons receiving services from TASC-supported community organizations are prohibited from MMT. Treatment providers elsewhere in New York City also reported that TASC programs’ intolerance for MMT was a problem for their patients.
It was predicted by state lawmakers that the reform in 2009 of New York’s strict drug laws -- known as the Rockefeller drug laws–would lead to an expansion in demand for participation in drug treatment court programs [32]. Treatment providers with experience before and after the reforms were asked whether they perceived that the reforms were associated with a greater opportunity for opioid-dependent defendants in criminal and drug courts to be diverted to community-based MMT. None reported evidence of any increase in referrals to MMT by the courts.
Obligatory rapid tapering as a medical concern
MMT providers in most counties expressed concern about the widespread idea in drug courts that MMT is meant only as a bridge to abstinence–i.e. that treatment cannot be maintained over a long period or indefinitely. Treatment providers were especially concerned about court orders for abrupt “tapering” to abstinence for persons already in MMT. Some treatment providers, including in Manhattan and Brooklyn, reported that they and their staff spent a great deal of time fighting these orders. Case by case, they mobilize doctors’ statements and advocate with court officials. For some, this is a major burden on their staff that has grown with the prominence of the drug courts. Also of concern was the courts’ usurping the role of the treating physicians in deciding when patients should stop taking their medication as prescribed.
Some providers said that they manage to win these arguments at least some of the time, and the fight, though time-consuming, is worth it to give patients access to care they need. Others indicated that they know they can’t win and have largely given up. A treatment provider in Albany County said that his clinic even had the support of the Albany City Police in advocating for MMT, but the court would not entertain this possibility. Treatment providers asked to explain why they thought the drug courts did not tolerate extended MMT attributed these attitudes to the personal biases of judges and drug court coordinators. “Methadone always has this stigma associated with it”, said one provider. “People can’t think of it as medicine”.
We heard from some treatment providers that MMT patients and potential patients who wanted to be in the drug court or in a TASC program were finding alternative ways to get the opioids they needed. One provider told us: “People are finding ways to get around the courts’ methadone prohibition by getting prescriptions for short-acting analgesics like oxycodone. The judges allow those prescriptions, but not methadone or buprenorphine. We’re seeing patients come back to the methadone clinic after going through these court-mandated programs for help with getting off the prescription drugs. Addiction to prescription drugs is one of our biggest problems”.
Upon referral from a treatment provider, we interviewed a woman aged 33 years who had come to drug court after being arrested for felony drug possession. Like all other defendants in New York, to be eligible to participate in drug court she was required to enter a guilty plea to the original criminal charge and in her case faced a mandatory 5-7-year prison sentence if she failed to complete the court’s requirements. She had a history of opioid dependence but found, while in drug court, that buprenorphine maintenance therapy was effective for her and enabled her to keep a job. Nonetheless she was required by the court to be “clean”–that is to stop taking buprenorphine -- within 45 days before she could “graduate” from drug court. She was supervised by four different judges who cycled through the court over 18 months, and completed a six-month stay in a residential treatment facility, followed by a year of frequent urine toxicology tests on demand. She told us: “I had to leave my job every time they called me in for a tox test. They would call me at 9:00 or 9:15 in the morning and demand that I be at the court by 4:00 or 5:00 that day”. She had a supportive employer and social network and managed through remarkable personal initiative to stop buprenorphine therapy abruptly for the required period so that she could graduate from drug court. She said: “I want to take the medication more than I want to get high. I don’t want to live like that anymore and I will go back into treatment as soon as my case is over”.
Waiting lists
Treatment providers in upstate counties reported that there were waiting lists for places in MMT programs, averaging several months. The number of MMT programs and places within programs is restricted by state and local regulations and affected by stigma and community resistance, resulting in demand far outweighing availability. In Onondaga County, treatment providers could sometimes reserve a few spots for people referred by the drug courts, but this was not always possible and not at all possible in other upstate counties. As treatment providers noted, even if the courts were friendlier to MMT, waiting lists would be an impediment unless there were assistance from the state enabling clinics to expand or to retain slots for court-referred patients. One director said to us: “I have 100-150 people waiting to get into treatment on any given day. How can I bump someone who’s committed a crime ahead of them?” Existing MMT patients who find themselves in the drug court would presumably not face this barrier, though in some jurisdictions they would face arbitrary “tapering off” deadlines.
Communication between courts and treatment providers
Treatment providers reported a variety of models of regular communication or contact between themselves and drug court personnel. In the Western District, treatment providers may choose to station staff members at the courthouse on the days the drug treatment court is in session. Health or social service staff who are present are invited to help evaluate the treatment possibilities for drug court participants. Treatment providers in Onondaga County said they had regular meetings with drug court personnel. In other counties, MMT providers reported that they did not generally have contact with drug court staff unless they needed to go to court to argue on behalf of patients. In one of the larger counties, a provider who has worked at the same MMTP since 1970 told us: “It used to be if a judge ordered a person into MMT, we’d go back to court and fight that. Now we’re left out. We need a single system where MMT is a part of the treatment options. With drug courts, the choice is taper or jail. The science doesn’t count”. Another said: “It varies from jurisdiction to jurisdiction. We see typically 5-10 people a year forced by the courts to reduce their [methadone] dose to zero”. A provider in a smaller county recounted two recent cases of patients being forced to stop taking their methadone by the court: “A patient in her mid 20’s, doing well in MMT was ordered by the judge to stop taking her methadone. She was facing a lot of jail time and somehow managed to do it long enough to graduate the drug court program. She went back into MMT when she got out. Another patient in a different county was ordered to stop MMT and we don’t know what happened to him. We lost contact”. He added: “We don’t have the staff to fight those battles in court like the bigger MMTPs in the City”.
A few said that they invited drug court personnel to visit their facilities but the invitations were not accepted. One provider who has worked in MMT for over forty years said: ‘A few years ago we invited drug court staff to visit our program. They sent their social service people to present to us what they do, but it’s the judges and prosecutors who won’t allow MMT in their program”. Another provider told us: “We do trainings for the courts at the judges’ request. There’s no hierarchical structure controlling the judges and they have very little knowledge of MMT”. The Western District was exceptional in that when the drug court was established, the judge convened a meeting with treatment providers, including the methadone clinic staff in the jurisdiction.
One legal advocate we interviewed had this to say about the relationships between providers and the drug courts: “Treatment providers should be considered the fourth leg of the stool…The drug courts have no rules; the judges make their own rules. The treatment providers need to better understand the criminal justice system and that criminal defense lawyers are natural allies. There’s undue deference to prosecutors and judges and so few defense lawyers understand the literature, science and research that supports their arguments”.
Methadone for detainees
Methadone treatment is generally not available to persons in jails and prisons in New York, except in Rikers Island, New York City’s main jail. Some of the upstate treatment providers reported that they are sometimes able to get permission from the drug courts for methadone to be brought to existing patients who are in pretrial detention while they are under orders to “taper” and eventually cease methadone treatment.