Q&A with Chief Justice Loretta H. Rush, Indiana Supreme Court

Q: From your perspective as Indiana Supreme Court Chief Justice, how are judges, court staff, and attorneys specially positioned to support people with opioid use disorders who come in contact with the court system?

That’s the fundamental question: What is our role? Let’s take a step back. This isn’t our first drug epidemic. In the 1980s, there was the crack cocaine epidemic, and we struggled with that. Shame on us for not having a better response then. Maybe if we had, the courts wouldn’t be flooded, and so many families and individuals wouldn’t be further harmed by the system that should be there to get them back on track.

Judges have to get more informed about substance use disorders. Substance use is a behavioral health issue, so judges have to start looking at the issue from that angle. Otherwise, we can’t combat the epidemic and its widespread effects.

If someone is experiencing a substance use disorder, they’re more likely to be involved with the criminal justice system. But it’s not just criminal dockets—all dockets are affected. We have had an explosion of children going into the foster care system that has increased guardianships in Indiana. We have about 60,000 grandparents who are raising their grandchildren; and, we have an increase in babies with neonatal abstinence syndrome, who are born drug-exposed. We have workforce development issues, workman’s compensation issues, housing issues, and collection issues stemming from the opioid epidemic—all affecting state court dockets. And we have so many people who are dying because they detox in our courts and jails, then come out after release and use substances while their tolerance is still down, leading to overdose.

When you look at the purpose of the justice system, it has been to rehabilitate and reform, and now it’s also to keep people alive. We’re training attorneys about the opioid epidemic so that, if a judge isn’t trained on it, the attorney can educate them and share resources, such as the toolkit developed by the Conference of Chief Justices. And there are a lot of resources to train judges on the science of addiction and what treatment works, and it’s key to make sure they know about them. For instance, a judge might not like methadone or buprenorphine, but science says they are both effective for people with opioid use disorder, so judges need to be armed with that information. Probation officers also should work with prosecutors and public defenders, as well as mental health providers, to ensure that supervision is tailored to the needs of someone suffering from substance use disorder.

We on the Indiana Supreme Court need to think about the role of the state courts and the importance of partnering with them, because there are a lot of levers that courts can pull. Simply put, there’s a lot of work we have to do within ourselves to help people with substance use disorders.

Q: You co-chair the National Judicial Opioid Task Force (NJOTF), which provides recommendations to state courts for responding to the opioid epidemic. One recommendation is that state courts take a data-driven approach to decision making and engage in data collection to measure performance. What are some key data points or measures that you recommend for assessing a state court’s performance in serving individuals with opioid use disorder?

The purpose of the national judicial opioid task force is to get tools before courts. Our website houses the Resource Center for Courts and offers very broad information.

This crisis is at the intersection of law and medicine. So you can’t just use your own organization’s data; you really have to pull data from other groups. There are many examples of how this data sharing is effective:

We have prescription drug monitoring programs in Indiana, as a lot of states do, which allow us to track the types and units of drugs people are being prescribed and to share that information with courts and probation agencies. Other important data points that courts should consider include rates of recidivism and program retention as well as screening and assessment data.

Courts also have to look at the Centers for Disease Control and Prevention’s information. We have a heat map for Indiana that tracks drug overdoses each week, and I send that information out to the counties and judges. This allows us to look at where our hotspots are. For example, if in the small Jennings County of 23,000 people there 30 overdoses and however many deaths, we can inform courts there of the intensity of the issue. You can also see which counties are unaffected on the heat map, and judges can contact those counties and ask, “What are you doing? What’s being done right there?” There’s some real synergy with regard to looking at what other counties are doing.

And our court captures the percentage of child protection cases involving parents with substance use disorder, how long their treatment will last, and where their children are. We then look at the outcomes of these cases to see what services worked. Ultimately, courts need to track people from the time of arrest and pre-trial, seeing where the person with the substance use disorder went from that point, what services were offered, and what the outcomes were. To get this kind of comprehensive view across all of our cases, we have to look at data from child welfare, treatment, mental health, corrections, education, probation, and the U.S Department of Veterans Affairs (VA).

Speaking of the VA, something we’re doing with technology is sharing electronic records with the VA when we have a veteran who is arrested and in jail. This allows us to immediately determine the availability of veterans court and the services that may be accessible through the local VA entities.

Ultimately, in the court system, we’re used to “cookie cutter” approaches—this means making changes can be a hard sell for our judges. But changes are needed, and difficult questions must be asked. Are we equipping our jails with what is needed when so many people are detoxing in them without medical supervision? And regarding policing, do officers know what to do with a person showing signs of substance use disorder other than take them to jail?

Lastly, we must adapt to consider how courts are treating people not only with substance use disorders but also with mental and co-occurring disorders. Like it or not, our jails and the criminal justice system have become de facto mental health providers. We have a lot of work to do.

Q: You have led statewide work with other judges to support Indiana community stakeholders in identifying and developing multiple points of intervention along the Sequential Intercept Model (SIM) for people with opioid use disorder. Can you share an example of how this approach resulted in better outcomes in a particular county or region of Indiana?

Two thirds of our counties have completed a SIM training. Judges, health providers, prosecutors, sheriffs, public defenders, and county council members have participated.

I expected courts to be mainly interested in Intercepts 3 and 4, when people with mental and substance use disorders start interacting with the court system. But I was wrong—they said, “We want Intercepts 0 to 1. We want to not have them come to court.” So now, a couple of the participating counties are developing marketing materials to promote their community’s awareness of local resources. That’s with Intercept 0. At Intercept 1, we had a bunch of counties do Crisis Intervention Team training for local law enforcement to support diversion, instead of just “catching and releasing” or arresting people, or administering naloxone and bringing them back into the system. At Intercepts 2 and 3, courts wanted funding for pre-trial officer positions for more screening and assessment so that people are screened at the pre-trial phase. And at Intercepts 4 and 5, courts were looking at hiring peer recovery coaches to work with people with substance use disorders, since peer recovery models from around the country have demonstrated success in assisting individuals with substance use disorders during incarceration and under community supervision upon reentry.

At every intercept, the judges and the teams came away saying, “We’ve got to train our court personnel and treatment providers.” So, I asked our state for funding to train more jurisdictions, and now, between this and next year, each county has a total of $120,000 to start implementing their SIM. Every county qualifies, even small counties like Marion County, which is where Indianapolis is. So these grants are coming in to support these big ideas, and next we’ll follow up to see how are these big ideas working out.

We also have some models for medical-legal partnerships, allowing somebody with a substance use disorder to access legal and other supports when they go into treatment, whether that means having access to a civil legal aid attorney or to a medical provider who knows who can help with housing, employment, or licensing needs. Accessing supports through these medical-legal partnerships can divert some people from potential future interaction with the criminal court.

Notably, we had a statewide opioid summit last year where we invited every county, 92 of them, to bring a team down. We provided training on the science of addiction and had breakout sessions on topics such as Medication Assisted Treatment (MAT), jail recovery programs, family recovery courts, what data we have, and what we can get to you. Every county showed up. We had a thousand people, and over lunch, we provided training on the SIM. We realized it just wasn’t enough. That’s why we were doing regional trainings. You think about how busy judges and sheriffs and everybody are, and yet they’re coming. They’re hungry for this information because they know this “just lock them up” mentality is not working.

Q: What drives you personally to address the opioid epidemic and its impact on your state?

I’ve been a judge or a lawyer for almost 40 years, and I was a juvenile court judge from 1999 until 2012 when I got appointed to the Supreme Court. I’ve never seen an issue like this.

I remember around 2007 and 2008, I started seeing so many babies with neonatal alcohol syndrome, and I would have the mother come to court. I’d learn that she was getting a hundred Oxycontin here or there, and then going to this emergency room, and that emergency room, one prescriber after another, looking for more. And I would think, “How can you have access to so many drugs?” They were hooked, and their babies started their lives with addition disorders too. At one point, I called the doctor at the neonatal intensive care unit, and I asked, “What percentage of your babies are born drug exposed?” She said, “Twenty-five percent.” Then I had a meeting with all the doctors in my community, and as a judge, I alerted them: “There’s a problem. You’re overprescribing. These people are pill shopping.” And the doctors said, “Well, this isn’t our fault.” They said that pain was the fifth vital sign. People were dying at high rates from prescription drug use even before the current heroin epidemic. Nobody was taking responsibility.

At my summit, a father who was a judge played his call to 911 after his son had overdosed. That was how we started the conference, at the father’s request. This epidemic is killing a lot of people. It’s destroying generations. I’m sad that I’m not seeing it covered in the press like it should be. More people have substance use disorders than have cancer, heart disease, or diabetes. And we’re not paying enough attention to the stigma of it. It is a crisis, and I don’t think we’ve turned the corner. In some states, the numbers are still going up. We have to do better.

So I ask myself, what do I have control over? I have control over the judiciary in Indiana, and we are going to set up a model for dealing not just with opioids but with whatever drug comes along next. Let’s set up a model that shows we can effectively deal with substance use disorders at every point of system interaction. We’re not giving people a pass for criminal behavior, but we’re dealing with the disease on an individualized basis, separate from the criminal behavior. I feel very strongly about this and am more convinced than ever that the judiciary has a lot of levers it can pull. And to pull them is part of our mission.

Criminal justice, GAINS

The views expressed by the blog post author are their own and do not necessarily represent the official views of Policy Research Associates, Inc.

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