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How State Courts Are Fighting Our National Opioid Epidemic

By Indiana Chief Justice Loretta Rush | December 2, 2018, 8:02 PM EST

Hon. Loretta Rush %>
Hon. Loretta Rush
In the early 2000s, when I was a juvenile judge, I began to see a significant increase in the number of babies going through opioid withdrawal at birth. The babies’ symptoms were devastating: tremors, trouble sleeping, poor feeding, seizures, vomiting and diarrhea, to name a few. Upon further investigation, I learned that during pregnancy the mothers would go pill shopping at emergency rooms, dentists and doctors — often obtaining hundreds of OxyContins at a pop.

I have now grown to understand that this was the beginnings of our nation’s opioid epidemic. At the time, I convened a meeting with local doctors and said that this was a problem. I was startled by their deflection of responsibility.

The Nature and Scope of the Problem

The enormity and breadth of the current opioid crisis is difficult to grasp. Despite knowing the national statistics well and reciting them in dozens of speeches, they never cease to grip my attention.

  • Every day more than 115 people in our country die from overdosing on opioids;

  • Drug overdose, driven primarily by opioids often containing fentanyl, is the leading cause of unintentional death in the United States — surpassing fatal motor vehicle crashes;

  • Each year, more people in the United States die of overdoses than those who died in the Vietnam War, the Korean War, or any armed conflict since World War II;

  • More than half of all Americans know someone who suffers from opioid addiction;

  • More than 11 million people abused prescription opioids in 2016. And last year, health care providers prescribed opioids at a rate of 66.5 prescriptions for every 100 Americans — totaling more than 214 million prescriptions. In nine states, the number of opioid prescriptions is greater than the number of residents in the state;

  • This is a uniquely American problem. Approximately 80 percent of the world’s opioid drug supply is consumed in the United States;

  • The secondary impacts on children and families include dramatic increases in the number of children placed in foster care and a rising incidence of neonatal abstinence syndrome;

  • Finally, the Centers for Disease Control and Prevention estimates that the total economic burden of prescription opioid misuse in the United States is over $78.5 billion per year, which includes the costs of health care, lost productivity, addiction treatment, and criminal justice involvement.

The Indiana Experience

As the Chief Justice of Indiana, I am acutely aware of the trauma and disruption that opioid use and abuse have inflicted on our communities. Families have been destroyed, lives irretrievably lost. I have become actively engaged in this issue, partly because our state is located in the region of the United States most severely impacted by the epidemic. My approach has been one of “all hands on deck.”

In July, the Indiana Supreme Court convened a statewide Opioid Summit, bringing together almost 1,000 community stakeholders from all 92 counties. Working in judge-led teams, we focused on a comprehensive understanding of opioid addiction and learned about the best practices for treating Opioid Use Disorder, or OUD, particularly the essential use of medication-assisted treatment. We also urged communities to use the Sequential Intercept Model and mapping as a means to better understand the best times, locations and opportunities for successful intervention.

Extending our efforts beyond state borders, Indiana is a participating member of the Regional Judicial Opioid Initiative. This is a voluntary effort undertaken by judicial leaders from eight surrounding states that are similarly impacted by the opioid crisis. We are concentrating our efforts on cooperative engagements that address potential cross-border impediments to successful responses. These engagements include sharing information to increase our understanding of the issues, sharing data to improve outcomes, and sharing successful programs and practices that can be replicated in other jurisdictions.

The National Judicial Opioid Task Force

Opioid addiction is not confined to Indiana and surrounding states: It has swept into every community and has flooded every court across our country. This is a national crisis. But it is a situation in which well-reasoned, evidence-based judicial interventions can get people to treatment, deliver appropriate consequences, cut the destructive supply, support families and save lives.

Federal, state and local leaders have mobilized an attempt to address many of the primary impacts on our communities. But the secondary impacts on state court systems have yet to be fully acknowledged or addressed. Not only state criminal courts, but all jurisdictions — including juvenile and civil dockets — have been exponentially affected by the scope and magnitude of the problem. For example, a misdemeanor drug offense often results in a host of other issues that can spread across numerous courts. Those issues may involve eviction, removal of children, bankruptcy, conservatorship or other major life-altering matters. And the number of children placed in foster care has dramatically risen, outpacing many communities’ capacity to provide the services that these children and their families need. State courts have also been facing a lack of adequate community-treatment options for those with OUD.

At the same time, according to the Substance Abuse and Mental Health Services Administration, the No. 1 referral source to get addicted individuals to treatment is the criminal justice system. And 95 percent of all cases in our country are filed in state courts. So in developing a successful national policy response to the opioid epidemic, equipping state courts with the crucial resources to identify and respond to the need for treatment is essential.

In August 2017, the Conference of Chief Justices and the Conference of State Court Administrators established the National Judicial Opioid Task Force, or NJOTF, as part of the National Center for State Courts. The goal of the task force is to examine and develop responses to the opioid epidemic at the state court level. I am privileged to serve as the co-chair of the task force, along with Tennessee State Court Administrator Deborah Taylor Tate. We join an executive committee composed of other state chief justices and state court administrators. Other NJOTF members include trial and appellate judges and a wide spectrum of court employees and subject-matter experts. These members bring firsthand experience with our nation’s opioid epidemic, including the impacts on and responses by the state courts. We are indebted to the State Justice Institute for the generous financial support for our work.

To guide our work developing tools and resources, the NJOTF adopted five overarching principles:

(1) A Comprehensive Approach: The justice system should lead the way in delivering solutions to the opioid epidemic and must be equipped to address the harms of substance use disorders for every person at every intersection point of the justice system. The courts should, in partnership and cooperation with other public and private actors, identify, encourage and employ a broad range of evidence-based interventions spanning the entire justice system.

(2) All Hands On Deck: Judges should maximize their roles as conveners, bringing together government agency and community stakeholders such as law enforcement, corrections, child welfare and schools. Educating all court personnel on the science of substance use and mental health disorders, effective treatment interventions, the impacts of trauma and appropriate court responses is imperative to this effort.

(3) Individualized Treatment and Services: Courts should use validated screening and assessment instruments to ensure that treatment services target the individual’s needs. Individualized services may include treatment for substance use, mental health, adverse childhood experiences and other trauma, and co-occurring disorders along with psychiatric services and medication assisted treatment. Treatment should not be limited to only opioid use disorder, but on all substance use disorders because substance abuse trends show that the use of other dangerous drugs, including cocaine and methamphetamines, is also rising. Services should be available at all points in the justice system including diversion programs, drug courts, alternatives to incarceration, incarceration-based programs, naloxone access for overdose prevention, telehealth services, guardian and continuation services, and other evidence-based programs.

(4) Protecting Children and Supporting Families: Interventions should incorporate a continuum of treatment strategies along with recovery support services such as parenting classes, housing assistance, employment services and child care. Services should be accessible to vulnerable populations such as babies, adolescents, inmates, mentally ill persons, those with a history of trauma, and other historically underserved populations. Family support groups, peer recovery coaches and mentoring programs should be made readily available. Further, courts should encourage and adopt strategies to insure the expeditious placement of children in a safe, stable environment.

(5) Making a Difference and Measuring Success: The courts should use data-driven decision-making approaches and establish robust data collection and quality assurance to use data for objectively assessing performance.

Work is underway on a long list of tools, resources, bench cards, webcasts, podcasts, white papers, educational resources and policy recommendations — all of which will be made available as they are completed and published. An online resource center will be completed and available before the end of this year, but available now to the public is an excellent website — ncsc.org/opioidsandcourts — that provides a broad array of information and material geared toward the state court community. We are actively involved in collaboration and outreach efforts, including meetings with members of Congress, representatives of federal agencies, and a host of national organizations. To that end, I participated as the representative of state courts in a meeting of state and local officials at the White House Opioids Summit.

We are also excited to be collaborating with the Legal Services Corporation and are grateful for the excellent leadership provided by the LSC Opioid Task Force. Legal services attorneys — critically important to the work of state courts and the civil justice system — have a unique opportunity to play a significant role in the opioid crisis response. They work at the grassroots level with clients who need OUD treatment or related services for themselves, their children or other family members; and these attorneys are often aware of their clients’ needs long before a court appearance. This ability to assess needs and assist clients in accessing services as early as possible is vital — and potentially lifesaving. We look forward to the LSC Task Force’s final action on the other suggestions and recommendations currently under consideration. And we welcome the opportunity to learn from and make use of the LSC Task Force’s efforts in the development of a comprehensive judicial branch response.

It’s true: the tasks are daunting. But I am inspired by the innovative and insightful work taking place in courts across our country in response to the opioid crisis. For example, a New York state court judge has developed an opioid intervention court that, within hours of arrest, links participants with treatment services. In Florida, a large number of early childhood courts address the needs of very young children in child welfare cases with a special focus on understanding and responding to the often lifelong effects of early childhood trauma. Kentucky has created treatment and recovery teams that combine best practices in courts, child welfare, treatment and peer recovery. Montana judges are using new technologies to respond to the special needs of participants and the complications of providing treatment and services in rural and often remote communities. And courts in Tennessee are focusing on the needs of pregnant women with OUD and children born with neonatal abstinence syndrome; they have already experienced some promising results. In sum, judges, court employees, attorneys and other judicial partners are providing leadership in state and local opioid task forces that now exist in almost every state.

These efforts provide a hopeful beginning. We are dedicated to building on these successes, learning from our mistakes, and working collaboratively — with our judicial branch partners; legislative and executive colleagues; and local, state and federal governments — to commit the resources and craft the responses and solutions that are required. “All hands on deck.”



The Honorable Loretta Rush is chief justice of Indiana and co-chair of the National Judicial Opioid Task Force. She was appointed to the Supreme Court of Indiana by Gov. Mitch Daniels in 2012 and named chief justice in 2014.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.