The law and opioids

Moving from punishment to recovery support

By Vanessa della Bitta — A few months have past since Part Two of Progressive Dane’s coverage of the opiate use epidemic and now, with 2017 underway, we conclude this series with the third and final segment.

In September’s Part One, we discussed the severe rise in opiate overdose, and some of the harm reduction efforts and legislation designed to address it. Part Two explored the nature of treatment services and recovery supports for those with opioid use disorder, as well as current barriers to getting help. Here, we focus on the role of Dane County law enforcement in the opioid epidemic, as well as the legal consequences of using and their effect on an individual’s road to recovery.


The majority of addictively used opiates fall into the category of either Schedule I or Schedule II narcotics, as defined by the United States Controlled Substances Act. This is because they meet certain criteria including high potential for abuse or severe psychological and physical dependence. Heroin is a Schedule I drug, which means that it has no currently accepted medical use in the United States, while Schedule II drugs, like oxycodone, have an accepted medical use, but under regulation.

Even minor possession of these drugs for personal use (without a prescription) is a felony charge in Wisconsin, carrying a penalty of up to 3.5 years in prison and $10,000 in fines. While alternatives to incarceration are currently available to many first or second time offenders, having a felony arrest or conviction on one’s record is highly obstructive.

Depending on the nature of the felony charge, a person’s conviction may jeopardize rights such as those to vote, hold office, hold a license, or to receive federal student financial aid or health benefits. It may result in deportation, which is of particular concern in today’s political climate. Along with the restriction of certain civil liberties, felonies and criminal records entail tremendous social stigma and a tangle of obstacles to everyday living that radiate out far beyond primary sentencing.

The quintessential symptom of untreated opioid use disorder is, naturally, using opioids. As the possession of substances like heroin and oxycodone is illegal, this chronic medical condition is effectively criminalized, rendering an already vulnerable population even more vulnerable. Individuals in active addiction are susceptible to catching charges and facing prosecution even in their most defenseless state—during an overdose.

While Wisconsin has a Good Samaritan law that provides relative immunity for someone who calls 911 in the event of a co-user’s overdose, our state currently has no legal protection for the individual who is experiencing the overdose.

One of the most traumatic experiences of my life was witnessing as first responders busted a locked bathroom door to administer Narcan to someone I loved—and then, as their law enforcement counterparts searched the premises for drugs while she was already on her way to Meriter Hospital. The image of her, draped on the tiles in the kitchen, persists vividly in my mind, even three years later.

Moments after revival, she was trying to lie incoherently as the cops asked her what had happened, despite the obvious, because she knew the legal consequences. Sometimes, in active use, lying seems the only way.

In that moment, I was overwhelmed by a clash of relief and devastation at realizing that her life had been saved, and now she was in trouble.

Most overdoses result in criminal charges—at the least, possession-level offenses. After the person has been given Narcan to reverse the effects of the opioid overdose, officers on the scene are indeed called to search that person and the area for drugs and paraphernalia, and they have a duty to report the individual who overdosed.

If no further drug-related material is retrieved, simply the evidence of the drug in an individual’s system may serve as grounds for an arrest. As wholly wrong as it felt to me when I experienced this practice up close a few years ago, the truth is that the officers were simply doing their job.

While mandates of the law have made for a tricky line to walk regarding opioid use disorder, Madison Police Department, in partnership with devoted local treatment and community resources, is introducing a new program this summer that aims to improve drastically upon the current procedures.


This June, Madison Addiction Recovery Initiative (MARI)—funded with a $700,000 smart policing grant from the United States Department of Justice—will launch as a three-year pilot program. The application is as follows: upon an overdose, apprehension, or referral to the police department, “individuals will be offered a choice of either facing the charges or agreeing to undergo a professional assessment for substance use disorders and of treatment needs, and to engage in the recommended treatment.”

If the latter is chosen, the person’s case will be held open for one year while they engage in the suggested treatment, and upon successful completion of the program, charges will be avoided completely.

The MARI Program Narrative specifically states that relapse will not be considered an “immediate non-compliance, as it is a part of the disease of addiction,” and they site statistics from the National Institute of Drug Abuse (NIDA) that state that 40–60% of patients with addiction relapse.


In Part Two of this series, we discussed the hub-and-spoke model of comprehensive treatment initiated in states like Vermont. This template offers a centralized hub to which anyone seeking help can connect, where intake counselors assess treatment needs and refer individuals out to existing community resources and services—i.e., the spokes.

MARI proposes to adopt a similar system by building on what Madison already has in place. Currently, there is only a once-per-week time slot when any person in the county can show up to request help finding services—Monday mornings at the Tellurian Detox Center. Once underway, MARI plans to provide for a “hub” to operate five days per week and eight hours per day.

For those taking part in MARI via the Madison Police Department, trained officers will bring them to the assessment center during open hours or, during off-hours, will put them in contact with a trained recovery coach who will provide peer support until they can access the hub. This way, the person is never left without a lifeline, and the reassurance that help is on the way.

MARI is a movement toward embracing the person who is in an active use cycle, along with intuitively restructuring the process of getting them from everyday using to appropriate treatment. Furthermore, the overt, legally defined shift in the role of Madison Police Department from enforcers to helping agents symbolizes a much-needed evolution in culture and practice in the opioid epidemic.


Currently, Dane County offers three alternatives-to-incarceration tracks for lower-level drug-related offenses. Upon referral at an initial appearance in court, a defendant may be given an assessment, sorting them into one of three categories: low, medium, or high risk to re-offend. Upon agreement from the District Attorney and the treatment court judge, the individual can sign a contract to participate in one of the three programs tailored to each respective category.

High-risk offenders may be eligible for the Drug Court Treatment Program (DCTP), and medium-risk offenders may be eligible for the Drug Court Diversion Program (DCDP). Both of these options involve appearing consistently before a judge together with other offenders in the program, voluntary participation in treatment services and drug testing.

Upon violations of the contract, such as positive drug tests, sanctions may be issued, including spending a day or several days in jail. Success (as defined by the program designers) in DCTP will result in the avoidance of a prison sentence and, in DCDP, will often result in the avoidance of felony convictions or any convictions at all.

Low-risk offenders may be eligible for programs run by the Deferred Prosecution Unit (DPU) of the Dane County District Attorney’s Office. Successful completion of DPU will typically mean dismissal of charges altogether. For the last four years, the DPU has run a program called the Opiate Initiative, available for those eligible for DPU with opioid-specific charges. The progressive goal of this program is to “provide the best wrap-around services as can be offered toward the recovery of each participant.”

James Sauer is the Opiate Abuse Counselor in the DPU Opiate Initiative Program. He has spent decades in both the legal and treatment fields as a clinical director, coordinator, and counselor, among other roles. Conversely to the general DPU option, Sauer says the Opiate Initiative is more intense, but more tailored to offenders’ needs and recoveries, involving weekly face-to-face check-ins, written assignments on substance use, random weekly drug-testing, mandatory treatment, and abstinence.

He clarifies that they do not automatically kick people out for positive drug tests. In their program, he says, “Success really has more to do with [the question of whether] the individual [has] again embraced a different lifestyle that is conducive to their own health and wellbeing.”

Sauer’s approach is holistic and focuses on laying the groundwork for the gradual, long-term building process of recovery, rather than treating it as an acute condition. “Treatment protocols still have many quick-turn-around cut-offs. You do an intensive group and maybe you step down to a recovery group and do a couple of individual [sessions] and then you’re discharged—well, that just doesn’t really work for a lot of folks here.”

In terms of cultivating the foundational elements of recovery, he says, “There’s a process of getting them the help and support needed. Many of the individuals that are referred here have lost jobs, don’t have an income, sometimes don’t have a place to live, often don’t have adequate transportation, many times aren’t valid in driving, they have violations against their license that are not resolved, they owe fines, they owe restitution—so I try to pick a place with each individual, a starting place—what can we build on first? What can we get going?”

When I asked how many opiate abuse counselors the program had, he said, “You’re talking to him.” The justice assistance grant that had been funding the program ended with no chance of renewal at the conclusion of 2016. They applied for two highly competitive grants in the hope of continuing the work that they do.

Of concern is the limited space in all three of the county’s drug diversion programs. If the programs are full, for individuals facing charges, Sauer says, “Unfortunately there’s this big word called, ‘wait.’ They have to wait. And we know with this population that waiting is dangerous. And,” he adds, “It also indirectly promotes additional crimes.” (For example, according to the Madison Police Department, of the 650 burglaries reported annually, individuals supporting regular drug use commit roughly half.)

“Then,” says Sauer, “you have a much more complicated legal maze or legal trail to follow, which continues to also take the time of DAs, public defenders, and other attorneys, and the courts and the judges. So, yeah, we just can’t do enough quick enough to avoid a lot of that, at least at this point.”

Further funding sources for the Opioid Initiative and the launch of MARI could propel us into an era of greater availability of services and quicker action.


Entangled with the criminalization of opioid use disorder and its manifestations, the tremendous social stigma surrounding addiction becomes even harder to shake for those who have any arrest or conviction history. Wisconsin’s Consolidated Court Automation Program (CCAP) is a prime example of this challenge.

CCAP is an online database that contains all state court records and allows users to search for any person’s record of convictions, pending charges or open cases. While this technology allows for easier navigating of legal records, which are indeed lawfully open to the public, it also serves as an open book of all documented criminal history. Anyone can access CCAP using the Internet—including employers and landlords—to search anyone.

Sauer explains CCAP as one of the “fallouts” as a result of being charged. “You have a pending felony … you may be in a deferred program, you may be in treatment, you may be in a sober house, you may be in a halfway house, you may be extremely inwardly devoted to community support like AA or NA, yet that remains on CCAP and you’re judged by that.”

The Wisconsin Fair Employment Act (WFEA) technically protects people with arrest or conviction records by barring any employer from using an employee’s or job applicant’s criminal history as grounds for firing or refusing to hire them. Within the law, however, the exception is when circumstances of the individual’s case are “substantially related” to the nature of the job in question—for example, if an applicant has two convictions for operating while intoxicated, an employer that requires an employee to drive regularly may not hire them on that basis.

CCAP warns employers of WFEA. Still, there are plenty of ways to avoid proof of having discriminated against someone on the basis of their criminal history. I have seen friends in recovery get hired for a job and, halfway into a positive training experience, be abruptly let go, offered only vague explanations that did not add up.

It is not uncommon for a person with a felony record to stay in an unhealthy work environment, or in a job that does not provide adequate financial support or benefits, out of fear that they will not find anything better. The same goes for finding safe housing and a landlord who will not use one’s history as a reason for refusal.

Sauer says that employment is one of the two primary goals to tackle with a new individual, next to treatment. “Everything stems from income. It’s one of the core base things.” Employment and housing are basic necessities for anyone, and they are integral building blocks needed to establish a healthy and productive lifestyle.

In part, recovery is about developing a day-to-day experience that has positive momentum and is compelling enough warrant an opportunity cost for returning to the cycle of using. Barriers to sources of income, safe housing, funding for student loans, etc., can thwart chances of nurturing growth and moving past the old way of living. Entering into recovery is challenging enough without the added stress of being branded.

It is useful for us all to consider a “mistake” of our past—something that, isolated and taken out of context would cast us in an unappealing or untrustworthy light. Now, imagine if those errors in our history were on display for our neighbors to see, a new date, the hiring supervisor of our dream job—or any job.

Despite conducting ourselves with integrity, and in a way unrecognizable from our past actions, the outside world could be sizing us up, judging us, or dismissing us based on that one fact of our history. In the case of the individual with opioid use disorder, possession of opioids is not a mistake but a function of a brain disease—a chronic, bio-psycho-social condition.


“The one thing about the legal system,” Sauer says. “[Is that] it does present an external situation where now somebody is faced with something outside of themselves which hopefully translates to facing something within themselves.”

Sauer acknowledges the detriment of something like CCAP, while also noting that the legal penalties for using can be a powerful motivator. I, too, have heard from many friends and community members that if it were not for drug court or court mandated treatment, they do not know if they would be in recovery today. The “silver lining,” as Sauer calls it, of the criminalization of opioid use is that it can be a compelling shove in a new direction. Programs like drug court and DPU provide a certain level of accountability that can be useful, and the fear of incurring charges is certainly a prompt.

However, what we know about this disorder is that the willingness to stop using is not merely a function of loss or the threat of loss in one’s life, even though sometimes it may seem that way. To a person who is has not experienced addiction firsthand, it can be confusing when a person still will not stop, despite abandonment by a partner, parents or kids, or a looming felony conviction.

So, while external consequences, like prison time or felonious records, are not what get or keep a person sober, they certainly can play a role. Is there a way of maintaining a balance of consequence and respect for substance use disorder as a disease in need of treatment? What will be the result of programs like MARI that truly aim to approach a person in active use as someone with a medical condition rather than as a criminal?

In early 2016 I participated in a panel discussion about heroin at a Dane County drug enforcement officer training. Our scheduled time was at the end of a highly concentrated two-day conference—one of the last commitments of the day—but as I surveyed the audience, all I saw were alert faces. It was apparent during the session that there was eagerness to bridge the legal dividing line between law enforcement and people who have experience with using opiates.

After we wrapped, a high-ranking officer approached my fellow panelists and me to express his gratitude. He said, “We obviously can’t stop arresting people at this point because that’s our job, but we know we can’t arrest our way out of this problem.”

It was a relief to hear those words from him—a reminder that we are all seeking a better solution to this circumstance, from every angle. Let us continue to work together to embrace those in the margins, and to make available rightful services and opportunities for everyone in our community.