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    Wisconsin Lawyer
    January 01, 2016

    In the Crosshairs: Heroin’s Impact on Wisconsin’s Criminal Justice System

    Wisconsin’s treatment courts struggle with a new epidemic, the explosive growth in the number of heroin addicts and overdoses. Despite the challenges, treatment courts are better equipped to assist heroin-addict offenders than are standard criminal courts.

    Thomas John Walsh

    heroin syringe and spoonThe problem of substance abuse in the United States is reaching alarming proportions. Each day, approximately 120 people die in the United States from drug overdose.1 Marijuana, cocaine, abuse of prescription drugs, alcohol dependence, and other controlled-substance use are creating ever greater burdens on the criminal justice system. These substances bring more people into the system not only to receive punishment for violations of the law but also for rehabilitation. This is where the substance abuse problem intersects with a different criminal justice issue – overcrowding in our jails and prisons.2 To address both substance abuse recidivism and overcrowding, many counties in Wisconsin and other states have developed treatment courts (also called specialty courts or problem-solving courts) with a view toward directing specific resources at specific problems.

    The Wisconsin Legislature has taken up a series of measures to attack the problems associated with heroin use.3 In Brown County, a dedicated treatment court focuses on heroin-related issues. This article looks at treatment courts and the struggle with heroin in Wisconsin’s criminal justice system. First, it gives an overview of the history of treatment courts across the country and their current status in Wisconsin. Next, it discusses heroin in Wisconsin and Brown County’s heroin treatment court. Finally, the article discusses the effect of treatment courts in Wisconsin.

    History of Treatment Courts

    The first U.S. treatment court was launched in 1989 in Miami-Dade County, Florida.4 At the time, the justice system nationwide was being flooded with new offenders using a new drug – crack cocaine.5 The prevailing view at the time was that addiction should be “punished” out of the offender.6 But the punishment philosophy was not working. Many offenders were getting locked up for a few days, sometimes on multiple occasions in any given calendar year, and then going right back out and using again.7 As a result, law enforcement officials were “angry, disgusted, and feeling hopeless.”8 The problem was rampant, and morale was low in the law enforcement community.

    The treatment court was advanced as an alternative not only for the offender, but also for members of the criminal justice system burned out by lack of progress. Wisconsin’s first treatment court was established in Dane County in 1996.9 Others followed, and by the summer of 2014 there were 61 treatment courts in the state. While some Wisconsin counties have no treatment courts, most counties have at least one and some counties have more than one.

    As with most such initiatives, funding is key. To that end, a decade ago the Wisconsin Legislature passed 2005 Wis. Act 25, which authorized “grants to counties to enable them to establish and operate programs, including suspended and deferred prosecution programs and programs based on principles of restorative justice, that provide alternatives to prosecution and incarceration for criminal offenders who abuse alcohol or other drugs.”10 These treatment alternative and diversion (TAD) grants were used to establish or extend treatment courts in various counties.

    In 2000, there were 29 heroin-related deaths in Wisconsin. By 2014, that number reached 199.

    A study regarding the results of the 2005 grants was conducted through a collaborative effort by the Wisconsin Department of Justice Assistance, the Wisconsin Department of Corrections, and the Wisconsin Department of Health Services. Their report was issued in December 2011 and concluded, inter alia, as follows:

    “TAD projects have positive impacts on individual offenders, communities, and local service systems. The results of the current evaluation reveal that the TAD program effectively diverts nonviolent offenders with substance abuse treatment needs from incarceration and reduces criminal justice system costs. The TAD program meets all of the legislative requirements detailed in 2005 WI Act 25.”11

    As a result of this report, additional grants were authorized by the state legislature in subsequent years. Brown County received one of those TAD grants in June 2014.

    The Problem of Heroin: A Case Study for Treatment Courts

    In recent years, a subgroup of substance users, comprising heroin users, has grown dramatically. The tragedy that is heroin usage is the best example of the need for treatment courts. Deaths from heroin overdose in the United States increased 175 percent between 2010 and 2014.12 Trial court systems are flooded with heroin offenders and offenders who commit other crimes simply to make money to support their heroin habit. Thus, in many ways, the epidemic that was crack cocaine in the 1980s is, in 2016, the heroin epidemic.

    The heroin epidemic has moved into communities regardless of race or income status. No community is immune. Studies show that “in 2000 non-hispanic black persons aged 45-64 had the highest rate for drug-poisoning deaths involving heroin (2.0 per 100,000). In 2013, non-hispanic white persons aged 18-44 had the highest rate (7.0 per 100,000).”13 Geography is also no barrier. In fact, the Midwest seems to be a focal point of the drug. Between 2000 and 2013, “the age-adjusted rate for drug-poisoning deaths involving heroin increased for all regions of the country, with the greatest increase seen in the Midwest.”14

    Thomas J. WalshThomas J. Walsh, Hamline 1992, is a Brown County Circuit Court judge.

    These national statistics suggest that Midwestern states are in the crosshairs of heroin. Wisconsin court system figures bear that out. In 2000, there were 29 heroin-related deaths in Wisconsin.15 By 2014, that number reached 199.16 The number of heroin cases the Wisconsin State Crime Lab processed for court also increased dramatically.17 In 2008, the Wisconsin State Crime Lab analyzed 270 heroin cases18 from 28 of Wisconsin’s 72 counties.19 In 2014, the State Crime Lab analyzed 1,130 heroin cases from 53 of Wisconsin’s counties.20 That is more than a four-fold increase in six years. Failing to recognize the heroin problem is a recipe for disaster.

    A drug court was established in Brown County in 2010 to address the overall issues related to drug use in the community and to implement alternative judicial methods offered by the treatment court concept. Brown County also has a veterans court and a mental health court. These courts have many successful graduates. However, Green Bay and its metropolitan area also fell victim to the tide of heroin. In 2008, Brown County had 13 heroin cases analyzed by the State Crime Lab. By 2014, that number had risen to 100 cases. (These numbers do not include cases that are charged as other crimes such as thefts or burglaries but are based on the offender’s need for money to buy heroin.) Brown County had moved into the crosshairs as well.

    Brown County Heroin Treatment Court

    In spring 2015, with funding from the state TAD grant, Brown County established a treatment court dedicated to treating the devastation that follows in the wake of heroin. The decision to do so was based on several factors.

    1) The rate and quantity at which this drug was coming into the community was astounding, and the caseload would soon overwhelm the previously existing “drug court.” The cross-section of people involved with heroin knows no racial, ethnic, economic, gender, or marital status boundaries. Although the Brown County drug court was still managing fine, the tide was rising and resources were taxed.

    2) Heroin was coming into the county and being experienced in the county in different ways than other drugs. Specifically, many people become addicted to heroin by starting with prescription opiates used as pain killers. They become addicted to the prescription pills, the prescription runs out, and they turn to heroin because it is a cheap substitute. Other people use heroin in combination with other drugs such as marijuana, cocaine, and alcohol.

    Another novel way the drug is experienced is in combination with use of the revival drug narcan. If used promptly after overdose, narcan can be injected to revive the overdosed person from certain death. The situation can arise when two users get together to use heroin. One of them injects heroin and the companion stands by with the narcan in case of overdose. A very strange scene to conjure up, but it is a reality.

    3) There are treatment paths distinct to heroin, and it is believed by many people that special expertise on the part of the court team is beneficial in working with this subgroup of people. This last factor, perhaps the most significant, will be discussed later.

    heroin spoonThe Treatment Court Team. To combat this problem, the county established a court team consisting of a judge, an assistant district attorney, two assistant public defenders, a representative of Green Bay law enforcement, a probation agent, and a social worker, all of whom had training in heroin addiction treatment before being assigned to the team. All team members had a commitment to the concept of the treatment court and all were convinced that heroin was a growing problem that needed attention in the community. In that sense, the design of the court is very similar to many other treatment courts in Wisconsin.

    Admission to the Court. For the average individual, the door to a treatment court is opened by following a protocol. Protocols for the various Wisconsin treatment courts are becoming more standardized as the state develops more experience using them.21 To that end, to get into a treatment court, an individual must first be charged with a crime. This does not necessarily mean a conviction is needed because participation in a treatment court could be required pursuant to a deferred-prosecution or deferred-judgment agreement.

    The first level of screening involves the prosecutor and the defense attorney. Either of these attorneys can refer the defendant to treatment court. In Brown County, a treatment court coordinator does a “triage” of the case. That is, the coordinator determines which treatment court is most appropriate for the offender. The prosecutor does a legal assessment to determine if the defendant is appropriate for the court, for example, is there a history of violence. Because violent offenders are not allowed to participate in the treatment court, this is the stage at which such offenders are eliminated.

    After the initial triage and legal assessment are done, the team discusses whether to accept the defendant into the program. If the defendant is accepted, the social worker does an assessment to set up a treatment plan. At the time of sentencing, the standard required sentence for Brown County heroin court is three years of probation with a set amount of conditional jail time to be used at the discretion of the heroin court judge.

    Problems Facing the Court. While some of the problems confronting the new court are similar to a drug treatment court, the subset of heroin users brings some unique issues. One is that the general population is not aware of the extent to which this drug has permeated the community and the extent to which it cuts across socioeconomic boundaries. As a result, outreach to the community is important. In 1992, Brown County established a Criminal Justice Coordinating Board. This term is applied to “informal or formal committees that provide a forum where many key justice system agency officials and other officials of general government may discuss justice system issues.”22 The Brown County board’s membership includes elected officials, law enforcement representatives, court personnel including judges, probation and parole agents, public defenders, and prosecutors, jail personnel, and members of the public. This board was an excellent outlet and source of support for dissemination of information about the application for a TAD grant and where those funds should be funneled – including the new heroin court.

    Other community outreach efforts, such as contact with local civic groups, continue. Most of the outreach comes from team members’ direct efforts. While this dissemination of information is never a completed task, it is an important effort in the context of another problem: silence by the embarrassed relatives of addicts. Often, families do not speak out about the heroin addictions of family members because of embarrassment or fear of being stigmatized.23 As one mother put it, “[w]e’ve seen other deaths when it’s heroin, and families don’t talk about it because they’re ashamed or they feel guilty. Shame doesn’t matter right now.”24 The public is always better off when it understands a problem fully and understands that it can strike people of all backgrounds.

    Many community organizations offer services to heroin users – places to sleep, food and clothing, group meetings or therapy, employment, and sometimes treatment. Most of these organizations are privately run and work with public agencies or the treatment court on a case-by-case basis. While they are doing good work, they are often competing with other organizations for public or private dollars. Waiting lists can arise for one service provider while another provider, offering the same or similar services, is not being fully used. While fixing this issue is beyond the purview of the Brown County heroin court, representatives of these various organizations are routinely invited to address the team regarding the services they provide so the heroin court team can be efficient in allocating its resources. Other efforts are also being made to get some of these disparate groups to meet to discuss how to coordinate and streamline services.

    Heroin addiction is different from many other types of addictions, such as cocaine addiction, because of the availability of medications to reduce the very serious withdrawal symptoms. When heroin enters the brain, it is converted to morphine and binds to opioid receptors.25 Abusers typically report that they have a surge in pleasurable sensations.26

    Heroin produces high degrees of tolerance as well as physical dependence.27 As tolerance increases, more of the drug is needed to produce the same effect.28 With physical dependence, the body adapts to the drug’s presence in the system, and withdrawal symptoms occur if use is reduced rapidly.29 Symptoms include “restlessness, muscle and bone pain, insomnia, diarrhea, vomiting, cold flashes with goose bumps (‘cold turkey’), and leg movements.”30 Once a person becomes addicted to heroin, seeking and using the drug becomes the person’s primary goal.31 However, these symptoms can be abated with medications such as methadone, buprenorphine, and naltrexone. While there are many who advocate behavioral therapy without medication as the best way to address heroin addiction, “[s]cientific research has established that pharmacological treatment of opioid addiction increases retention in treatment programs and decreases drug use, infections, disease transmission and criminal activity.”32

    While these medications are often successfully used by heroin addicts to assist in coming down from their addiction, the medications can themselves be addicting and thus the regimen must be carefully monitored by a physician; otherwise, the addict simply replaces one addiction for another. But finding physicians willing to work with heroin addicts to prescribe and monitor medications as well as resources to pay for the medication is not an easy task. Obtaining this physician participation and medication coverage has become one of the primary tasks of the Brown County heroin court team.

    Recently enacted Wis. Stat. section 51.422 attempts to take up this issue. That section requires the Wisconsin Department of Health Services to “create 2 or 3 new, regional comprehensive opioid treatment programs to provide treatment for opiate addiction in rural and underserved, high need areas.”33 The statute also requires that treatment programs created under the act offer initial assessments to individuals to determine their individual needs. Such programs are also required to “provide counseling, medication-assisted treatment, including both long-acting opioid antagonist medications and partial agonist medications that have been approved by the federal food and drug administration, and abstinence-based treatment.”34

    This legislation, passed in 2013 and often referred to as the H.O.P.E. law (Heroin Opiate Prevention and Education), contains some promise for counties seeking to use medication-assisted heroin treatment. However, limiting this program to “rural and underserved” areas creates some road blocks for “urban high-need areas.” In addition, passing such legislation does not automatically result in physicians willing to participate. It is important to keep in mind, however, that many people start using heroin because they were prescribed or, on occasion, overprescribed, prescription opiate pain killers. In that sense, the medical community should have an inherent interest in assisting the justice system in getting addicts off the opiates. The Brown County heroin court engages with local physicians and has occasionally brought them to team meetings to discuss cooperation and to exchange information.

    Another identified problem is basic: living arrangements. Housing is difficult to obtain for active users. Further, most shelters are unwilling to take either active users or, at least in Brown County, those on global positioning system (GPS) devices. The answer might seem simple: leave them in jail until they sober up. Although that is an option, withdrawal symptoms are very serious, and the jail’s employees are not trained to handle people with them. The jail takes heroin users, but does so with grave concern. If the addict can make bail, he or she can remain an active user essentially until sentencing, and the desire to enter into forced withdrawal while in jail is very low. By the time of sentencing, the treatment team has nowhere to place offenders even if they want to enter the treatment court.

    Thus, the Brown County heroin court has obstacles to overcome. Nevertheless, after several months there are many success stories. No one has yet been discharged unsuccessfully from the court and back into the standard justice system. The solutions to the above challenges will likely determine the ultimate long-term success of the heroin court.

    The Impact of Treatment Courts in Wisconsin

    Very reasonable people within and outside the court system believe that specialty courts, such as the Brown County heroin court, are not worth the trouble or the money.35 These people, including many judges and lawyers, do not agree that treatment courts do any better than probation or prison plus parole. They also argue that treatment courts are too resource intensive for the number of participants. According to this view, the public is not being well served by these courts, and the justice system is wasting its time. 

    Despite this view, it cannot reasonably be disputed that treatment courts are “different” than probation, parole, and incarceration. No probationer, parolee, or inmate has a team of seven people from a cross-section of the judicial system meeting to discuss his or her case every week. Nor does any probationer, parolee, or inmate meet once a week with a circuit court judge to discuss the individual’s progress. Treatment courts give offenders a different experience, and these differences suggest that an analysis of the outcomes is useful.

    Relevant statistics seem to overwhelmingly endorse the concept that treatment courts have a positive effect in the community and on the functioning of the court system.36 A five-year analysis of 23 drug courts conducted in 2011 by the Urban Institute found that “drug courts did reduce the number of crimes, re-arrests, and the overall time that offenders spent incarcerated in those jurisdictions.”37

    Almost as important, a study by the Justice Management Institute concluded in 2003 that drug courts “have raised the awareness of the bench and court staff, law enforcement and probation officers, and other social service providers, and the community about the treatment and other needs of substance-involved offenders.”38 Thus, treatment courts are serving important functions not only for the offender but also for individuals working in the criminal justice system.

    In assessing the statistics about success rates and the wisdom of replicating these courts elsewhere, it is useful to look at the average sentencing hearing in a Wisconsin circuit court. A misdemeanor sentencing hearing often is very short because information available to the judge is limited. Frequently, in felony cases, a presentence investigation report is submitted for sentencing.

    Nevertheless, in many felonies and misdemeanors, underlying causes of criminality and addiction are not identified. Failure to address underlying problems over time can lead the sober substance abuser right back to the substance. Family-of-origin problems are commonplace; abuse and neglect often occurred at a young age or continues to occur in the household. Thus, no support network exists in cases in which such a network is desperately needed. In some cases, the treatment court team is the only community structure the participant has.

    Mental health issues often underlie substance abuse so that when the substance is withdrawn, what is left is an untreated mental health issue. Lack of education, lack of job skills, extensive criminal records, and large restitution amounts are also obstacles facing the person coming off a substance addiction. A heroin-addict parent’s need to care for his or her children, assuming they have not been removed by social services, is also a stumbling block to recovery because the parent might be focused on the children rather than on his or her own recovery. All these things undercut the ability to operate independently and move beyond addiction to a functional lifestyle.

    The individualized team approach is the reason treatment courts have a positive effect on participants. A key component of this individualized approach is the judge’s participation. A judge’s attendance at a weekly team meeting and a weekly interaction with a participant positively affects the participant. Fortunately, in Wisconsin the position of circuit court judge still carries some respect. Bringing that position to any given person each and every week tends to impress upon the participant that they are engaged in an important process. Committing time once per week to advise a drug addict that the judge does not want to put the addict in jail and wants the addict to realize sobriety and recover makes a difference. Again, the participants are screened before entering the program. Individuals with a complete lack of moral compass and a total commitment to a life of crime are going to have no respect for a judge and no place in a treatment court. This is an experience that is not paralleled in standard criminal court proceedings.

    Conclusion

    Wisconsin’s treatment courts show how principal players in the criminal justice system come together to creatively resolve problems. They are not perfect. Some people who go into the treatment courts relapse and will continue to do so. However, studies comparing the two very different methods by which drug-addict offenders move through the criminal justice system demonstrate that treatment courts work. They benefit the offender because they often lead to recovery. They benefit the criminal justice system because they are more responsive, solve problems, and thereby lift morale.

    They benefit the public for the same reasons: The addict is getting help, and the morale of the criminal justice system is improved. The public is, therefore, being protected more effectively. The alternative to this individualized effort is simply to terminate that effort and continue moving cases through the system as before. That process did not stop the crack cocaine problem and it is unlikely to stop the heroin problem.

    Despite the many challenges, the experience of the Brown County heroin court is illustrative. It is having success, it is responding to specific, identifiable challenges, and it is dealing with an intractable problem with flexibility and creativity. It is a recipe that can be emulated in other geographic areas and with other community issues.

    Endnotes

    1 CDC and FDA, New Research Reveals the Trends and Risk Factors Behind America’s Growing Heroin Epidemic (July 9, 2015).

    2 See Wisconsin Court System Receives Grant to Improve Criminal Justice System, 81 Wis. Law. (2008) (noting that between 1990 and 2008, prison population in Wisconsin tripled).

    3 Bob Hague, Nygren Offers Four New Opiate Bills, Wisconsin Radio Network (Sept. 9, 2015).

    4 Lauren Kirchner, Remembering the Drug Court Revolution: Stories from the 25th Anniversary Celebration of the Nation’s First Drug Court, Pacific Standard (April 25, 2014).

    5 Id.

    6 Id.

    7 Id.

    8 Id.

    9 Wisconsin’sDrug Courts are 50 and Counting, Milwaukee J. Sentinel (April 14, 2013).

    10 Wis. Stat. § 165.955.

    11 Id.

    12 Azam Ahmed, U.S. Heroin Demand Spurs Boom in Mexico, N.Y. Times (Aug. 30, 2015).

    13 Holly Hedegaard, Li-Hui Chen & Margaret Warner, Drug-Poisoning Deaths Involving Heroin: United States 2000-2013, National Center for Health Statistics Data Brief (March 2015).

    14 Id.

    15 Wisconsin Dep’t of Justice, Heroin: A Dangerous Epidemic, (last visited Dec. 3, 2015).

    16 Id.

    17 Wisconsin Department of Justice, Heroin Cases by County.

    18 Id.

    19 Id.

    20 Id.

    21 See Wisconsin Association of Treatment Court Professionals, Wisconsin Treatment Court Standards (2014); see also Wisconsin Supreme Court, Wisconsin Treatment Courts: Best Practices for Record-Keeping, Confidentiality & Ex Parte Information (Dec. 2011).

    22 U.S. Dep’t of Justice, Guidelines for Developing a Criminal Justice Coordinating Committee ix (2002).

    23 Dan Sewell, Ohio Couple Calls out Heroin in Teen Daughter’s Obituary, Associated Press (Sept. 7, 2015).

    24 Id.

    25 National Institute of Drug Abuse, Heroin.

    26 Id. at 3.

    27 Id.

    28 Id.

    29 Id.

    30 Id.

    31 Id.

    32 Id.

    33 Wis. Stat. § 51.422(1) (emphasis added).

    34 Id. (emphasis added).

    35 Seegenerally The Drug Policy Alliance, Drug Courts Are Not the Answer: Toward a Health Centered Approach to Drug Use.

    36 Seegenerally Christopher Krebs, Pamela Lindquist & Christine Lattimore, Assessing the Long-Term Impact of Drug Court Participation on Recidivism with Generalized Estimating Equations, 91 Drug & Alcohol Dependence 57 (2007); Aimee Baehler, Suzette Brann & Jane Pfeifer, Adult Drug Courts: A Look at Three Adult Drug Courts as They Move Toward Institutionalization (Dec. 2003); Shelli Rossman, John Roman, Janine Zweig, Michael Rempel & Christine Lindquist, The Multi-site Adult Drug Court Evaluation: The Impact of Drug Courts (June 11).

    37 Lauren Kirchner, Drug Courts Are the Answer, Pacific Standard (August 2013), citing Rossman, Roman, Zweig, Rempel & Lindquist, supra note 36.

    38 Baehler, Brann & Pfeifer, supra note 36, at vii.




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