Feds to Drug Courts: You Will Feed Their Addiction

In a stunningly senseless act of non-understanding, the federal government is going to try to force drug courts to give drugs to participants.

A while back, a member of our local drug court asked me to look at the requirements for a federal grant.  I was more than a little shocked when I came across a requirement that any drug court receiving the grant would have to spend a certain percentage of its grant on drugs for the participant (as I recall 20%, but I don't have the papers anymore). What the purpose seemed to be was to have participants use buprenorphine (subutex / suboxone) and possibly even methadone.  Needless to say, our drug court chose not to apply because this requirement is contrary to the purpose of the program: to help people become productive, drug-free members of society.  Shortly thereafter, I forgot all about that grant - believing it to be some sort of specialized grant with a specific type of court in mind that must exist somewhere else.

But, no, it turns out the federal government has decided to gut drug courts by requiring drug use to be allowed during the program.

"A spokesman for the Office of National Drug Control Policy . . . said that applicants for drug court grants will be required to affirm that they will allow access to medications such as Suboxone (buprenorphine) and will not force defendants to ween off the medication as a condition of participating in court programs."

The reason?

"Suboxone (buprenorphine) is a semi-synthetic opioid that eliminates an addict’s cravings, largely prevents overdoses and, if used properly, does it without causing intoxication. Its use to combat heroin and other opioid addiction is widely endorsed by the medical establishment."

Guess what?  It's not "used properly." A few years back, a doctor came to our county and gave all us attorneys and judges a lecture about the new wonderdrug that was non-addicting, couldn't be used to get high, and would stop all cravings for opiods: buprenorphine.  It was so wonderful that it solved all the problems that methadone treatment has and would supplant it. Unlike methadone (highly addictive, abused in its own right, and basically a legalized high substituted for an illegal high), buprenorphine's inability to make someone high meant it could be prescribed by doctors and taken home by patients without any danger of abuse or resale.  Of course, about 15 minutes after this drug started being prescribed by doctors the people who got it from them figured out what they could mix it with to get high and it has become a fixture as one of the top drugs sold illegally in our community.

Beyond the fact that buprenorphine is a readily and commonly abused drug, there are other problems with it being allowed for participants in a drug court. First, it is an opioid. That means that in drug tests it will trigger the opioid indicator - just like oxycodone, hydrocodone, and heroin.  I don't think most ready use drug tests differentiate (a hand-held test is only so sophisticated) and therefore samples would have to be sent off to the lab and one of the key premises of drug court is defeated (quick punishment for choosing to use).

On the other hand, let's assume I'm wrong about the ability of a hand-held test to determine the differences between different types of opioids (or that one could be easily developed or that there are already more expensive tests which could be used).  The next problem you run into is that since buprenorphine is an abused drug, you would have to test for quantity in a participant's system to see if the participant has more than should be there for mere inhibition.  Again, that means sending the sample to a lab to be tested and defeats the quick punishment for choosing to use (study after study after study claims that it is the rapidity of the punishment which is the most effective element in changing behavior). 

The Office of National Drug Control Policy needs to stop schlepping for whatever companies are selling this drug and whichever doctors are fronting for them (either out of a misguided belief that it can't and won't be abused or pure, simple greed). The reality is that if used properly this drug can be used to switch people off whatever drug their drug of choice is (just like methadone). Thereafter, the patient is supposed to be slowly weened off the substitute drug by getting lower and lower doses (just like methadone). However, no one ever seems to get actually weened off the drug (just like methadone).  As long as everybody keeps using the drug people keep making money. If you actually ween them off . . .

If the ONDCP really put some thought into this and wanted to incorporate buprenorphine usefully it would not demand that people be allowed to use it throughout the entirety of drug court.  Instead, it could mandate a pre-program. This program could be six months long and during that period doctors approved by the drug court could switch the participant from her drug of choice to buprenorphine and then ween that person off over the six months before they enter the abstinence based drug court proper.

The ONDCP's requirement feels like they are trying to do a good thing without taking the time to actually figure out how things work in the real world. Thus, they are doing more harm than good. Will some drug courts take their poison pill? Sure. Drug courts can be expensive and any money that is found from any source can be extremely helpful.  However, those who do will be poorer programs for taking the King's shilling.

How Far Does Bail/Bond Extend?

Last week, I saw a bondsman answering a show cause.  The defendant had been found  guilty, sentenced, and given a delayed date to self report to the jail.  Shockingly, he did not follow through on his promise to self-incarcerate.  The judge called the bondsman to court to answer why the bond should not be forfeited to the court. The bondsman showed up with a lawyer (which was tres unusual and why I started paying attention) and the lawyer argued that after the sentencing the bond no longer existed and therefore could not be forfeit.  The judge looked on quizzically and then did what judges always do in show causes against bondsmen - he set the case off for a number of months to see if the fugitive could be found.

I was left wondering when exactly a bondsman's obligation ends, so I went and looked.  To begin with one of the conditions which a judge must consider in setting a bond is whether a defendant "will not appear for trial or hearing or at such other time and place as may be directed."  I suspect the "such other time and place as directed" is probably meant to cover things like reporting to pre-trial services for pre-trial monitoring (drug tests, etc.), but it is language broad enough to include reporting to jail at an ordered time. However, this is just information the judge is supposed to use to determine the defendant's bond not a description of the bond itself. Va. Code secs. 19.2-120 and 121.

You have to go back to the definitions to actually resolve this question.  Per  Va. Code sec 19.2-119, bail is "pretrial release" and bond is the posting of a sum of money as a condition of bail. Thus, it seems the bondsman's attorney was correct. Once the trial was over there was no bail and therefore no bond as a condition of bail.

The next question which came to my mind was whether bail extends from the period of the guilt/innocence part of the trial and the sentencing hearing (typically 2-3 months later). It's something of an ambiguity under the sections on bail - particularly since the General Assembly put trial under Chapter 15 of 19.2 and sentencing under Chapter 18.  However, a little more research finds a specific addendum to bail requirements under 19.2-298 "Pronouncement of Sentence": "Pending pronouncement, the court may commit the accused to jail or may continue or alter the bail except that in those cases where the accused is convicted of a murder in the first degree, the court shall commit him to jail and he shall not be allowed bail pending the pronouncement of sentence." Thus, even if the sentencing is not part of the trial a defendant can have bail pending it.

A more interesting question might be whether a judge or magistrate can authorize bail prior to a probation violation hearing under 19.2-306.  People on probation generally end up in jail one of two ways prior to their probation violation hearing. First, they are arrested by their probation officer under the old parole board powers (PB15); locally this is usually quickly replaced by a capias (bench warrant) and the PB15 is lifted. Second, they abscond  and have a capias issued for them to be brought before the judge. The Supreme Court of Virginia has been clear in stating that probation hearings are post conviction proceedings, not under the same rules as a criminal trial.  See Henderson v. Commonwealth.  I can find no statute specifically authorizing bail for someone facing a probation violation hearing.

Another approach to looking at the possibility of bail for a person with a capias for a probation hearing would be to look to the rules which apply to capiases. 19.2-234 and 19.2-80 require an officer who arrests someone per a capias to bring that person in front of a judicial officer for a hearing as to bail.  The judicial officer must then either admit the accused to bail or send him to jail.  Thus, it appears that it is from the capias which the defendant receives relief when a bail is given. This is the best explanation which I can find for the manner in which bail is currently given when a capias is served on someone for a probation violation.

However, the capias is not the basis for decision making in setting a bail. All that it does is order the person taken into custody and brought before the judge.  It can be for an indictment (which culminates in a trial), indirect contempt of court (which culminates in a trial), or a probation violation hearing (which culminates in a post trial hearing). Thus, there is no pre-trial release in a probation violation hearing and therefore no bail available. Thus, no judicial officer should grant a bail/bond on a capias for a probation violation.

Is this the way it works in the real world? Nope. Magistrates and judges put people charged with violating probation on bail all the time.  Maybe they know some of some statute I could not find authorizing it.  Maybe they just do it because everyone always has and no one has bothered to look at the statutes before.