Robin Shellow Attorney | Alternatives to incarceration
Using treatment as an option to rehabilitation of criminals yields better results ultimately.
treatment, rehabilitation
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thoughts on current issues

Treatment Works: Alternatives To Incarceration

Probuphine, a buprenorphine implant designed to mitigate opioid withdrawal symptoms and stave off cravings, is expected to be approved by the FDA within a week. This is great news for heroin and other opioid addicts, as the physical pain of withdrawal and the mental anguish of cravings often derail recovery and lead addicts into criminal behavior to satisfy the intense physical and mental need for opioids. The obtaining and maintaining of their addiction results in the addict facing jail, prison and the collateral consequences which go with a criminal conviction. These consequences rarely affect the addict alone, a situation grasped by Titan Pharmaceutical CEO Sunil Bhonsle when he commented upon the “millions of patients and their families suffering from opioid addiction” in an industry article regarding the FDA’s recommendation of Probuphine.  Buprenorphine is terribly expensive and I have railed enough about the profits of Big Pharma in a previous post. But, the reality is most jails and prisons cannot or will not allow inmates to take Suboxone—largely due to the price. If real prescription drug costs are not lowered, a person on Suboxone–either before or after their arrest–will face another collateral consequence known to many criminal justice stakeholders, namely that prisons and jails provide lousy and minimal health care.

Throughout the country, in counties of states both big and small, the criminal justice system has implemented a thing called Drug Court. These courts come in different models. In some jurisdictions, successful completion of a drug court program means that the offender is relieved of all or most of the consequences of a criminal conviction. Other models operate as the last stop before a prison sentence. Both models suffer from a fundamental flaw. While addictionologists and others on the front lines of alcohol and other drug abuse (commonly known as AODA) know that relapse is part of the disease, drug courts—regardless of the model–do not operate under the disease management theory of addiction.

The reason I find myself revisiting topics such as these so often is that, since The Shellow Group (TSG) was founded in the late 80’s, successfully representing addicts is something I consider a point of pride, as well as an area of criminal defense which tends to be woefully underserved. I have operated my office as something of an ad hoc drug court long before drug courts were a normal part of the criminal justice system. For nearly 29 years, whether a person had a marijuana offense or was charged with embezzlement, I have always asked clients to take urine drug screens as a matter of course. For over 10 years The Shellow Group included a Masters Degree-certified social worker, an investigator who ran interference with our clients’ drug-abusing friends, and working relationships with treatment centers throughout the world which continue to this day. Using our own re-offense data, we have been able to show drug courts that long term sobriety dramatically lowers recidivism, as evidenced by the re-offense rate of my clients being less than 2 percent. Today, overall re-offense rates outside of drug courts run between 50 and 65 percent within the first year of release from incarceration, and 50 percent within 6 months of being placed on probation. TSG’s re-offense rates are so low because our representation involves a time commitment that often runs into hundreds of hours from bail to sentencing. My philosophy is that “we hold addicts accountable for managing their own diseases so that courts, taxpayers, and probation agents don’t have to”. Or, as some successful former clients have commented, “TSG was so tough on me that probation was easy”. The first tenant of our work is: Don’t lie to your lawyer. As many long-suffering parents are painfully aware, addicts lie. They lie to cover up their use, they lie to hide their sources of drugs and income, they lie about where they are going and where they have been. The addict’s most familiar mantra is “I will go to treatment—I promise—just not today”. The lawyer who is hired by parents and spouses before their loved one has arrived at bail court—a window of time of roughly 3-4 days in my home county of Milwaukee—can put in place a plan that is consistent with a good criminal justice and clinical outcome. During that time, it is crucial to get a plan in place before the client has hit the streets. Families have joked that TSG operates in the early stages of representation akin to an “air traffic controller”.

Parents of adult children often think they can’t force their sons and daughters into treatment and that, despite being arrested, they can’t make them go involuntarily. While that is technically true, I have taught scores of parents, whether divorced or intact: (a) How to be on the same page so that their adult addict son or daughter cannot divide and conquer. (b) How to curb enabling behaviors and financial support that unwittingly allow their child’s addictions to go unchecked. No, I won’t pay your cell phone bill. No you cannot use my car, No, I won’t help with car insurance. No, I won’t help cover school costs, No, I won’t babysit. No, I won’t bail you out—- unless you go to treatment. This is called family-centered representation. However, unless given explicit and always revocable permission, I keep the privileges and confidences of my clients sacred.

Sometimes before a lawyer or a parent even knows that their adult son or daughter has been arrested as a result of the behaviors associated with addiction, a member of law enforcement has gotten to them first. The Faustian bargain usually sounds something like “If you cooperate and debrief on all your suppliers and their customers, we can help you with the district attorney”. Therefore, by the time the addict has become the client, they feel as if there is a Hobson’s choice: go to treatment or cooperate. It is an individual client’s decision. In America’s high schools, prep schools and colleges, police have hundreds of informants who have been given the exact same choice. While it is an individual choice, drug-impaired choices are usually not the most well thought out. Law enforcement cannot deliver on the promises they so often make to get the newly-arrested addict to cooperate. Thus, should those addicted sons and daughters fail to meet law enforcement’s expectations—either because they only have a few sources who may or may not already be informants, or because they withhold the name of a best friend because “friends don’t tell on friends”–those young people often face even more severe charges because lying to the law enforcement becomes obstruction of justice. When law enforcement believes their informants have not been truthful, they are the ones to whom the charging authority relies when deciding the severity of the initial charging offense. A legal promise—such as not to charge a person with a crime–is only enforceable if the charging attorney for the particular state charging agency or federal government makes that promise to the criminal defendant or his or her attorney. Law enforcement also routinely lie to America’s drug-soaked sons and daughters on the street, in their dorm rooms and in police stations. For law enforcement bent on getting your son or daughter to cooperate, often the first words out of their mouths are “don’t tell your parents and don’t hire a lawyer”.  Keeping secrets prolong an addict’s sickness. The police can’t lie on a witness stand? They do. Law enforcement can’t lie in a sworn affidavit in support of a search warrant? They do that too. Not all police officers lie, but some do. For the narcotics officer in particular, lies and disinformation are mainstays of their work on the street, it is allowed and encouraged in the pursuit of drug cases. It is distinctively not allowed, however, when delivering sworn testimony on the witness stand. If proven, sometimes the fruits of the crime may be suppressed and sometimes a case gets dismissed. More succinctly, the philosophy is to simultaneously litigate and mitigate.

In my 29 years of experience, no client has ever had a worse outcome for engaging in rigorous AODA treatment. Courts recognize a genuine commitment to a drug free lifestyle as demonstrated by deeds, not merely words. Getting clean reduces the potential legal consequences to clients, reduces re-offense rates and satisfies a sentencing court’s need to protect the public. On a daily basis, in every city in America, addicts are telling their stories, becoming sponsors to other addicts, and helping others to reduce relapse. Reducing relapse reduces recidivism. The addict who is honest the day or week after relapse–telling his or her sponsor and not waiting for the next drug test to come up dirty–shortens the relapse. The shorter the period of relapse, the less likely the addict will re-offend. Addicts who have not undergone treatment do not learn that lying to the people in their corner is the quickest route to relapsing and reoffending.

In my 29 years of assisting addicts obtain good court outcomes, not a single court has ever said that it is giving more time because a client has learned to manage his addiction. What we try to teach courts is that the steadfast, vigilant and recovering addict is the first line of defense in deterring others.

Being an addict is not a crime.

The decision to seek treatment is not a crime.

Courts listen to real change.

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