Legal system looks to source of drugs
Updated 9:25 am, Wednesday, January 18, 2017
NEW CANAAN — Eleven Wesleyan students were looking for a night of fun when they took MDMA, otherwise known as “molly” in February 2015. What they got was 108-degree temperatures, causing them to be hospitalized.
U.S. attorney for Connecticut Deirdre Daly charged the Wesleyan students who sold the molly with distributing controlled substances. At least two faced jail time.
“It was really precedent-setting,” said Bridgeport attorney Ed Gavin. “Normally, the federal government doesn’t get involved if a kid is smoking a joint in his dorm. Deirdre Daly’s logic was it was a public health concern.”
Gavin agrees with Daly’s logic and has seen cases against dealers increase in the past few years. Even gifting someone with drugs can be viewed as distribution or even manslaughter if the user dies from an overdose.
“Distributors are always being charged on a public health basis,” Gavin said. “Prosecutors are going after individuals, even if they’re younger because they’re concerned.”
This has trickled down to New Canaan. Mark Lynch, 57, of Parade Hill Road, is facing manslaughter, possession and distribution charges after providing the heroin that led to his son’s fatal overdose. The charges reflect a shift in the legal system where prosecutors are shifting their focus from addicts to the people supplying the drugs.
With possession of small amounts of narcotics going from a felony to a misdemeanor, courts are more attuned to the needs of people with drug addictions. Initiatives like diversionary programs allow addicts facing possession charges to attend drug education classes and do community service to have charges dismissed.
“Throwing these people in jail for two to three years, taxpayers pay $150,000,” Gavin said. “Then they come out and are in the same position. People are realizing that locking up people is costly and they’re better off getting treatment.”
Many judges are also willing to show leniency toward a defendant if they are getting treatment, often letting them defer court dates while they complete an approved program. Patients, with the court’s approval, can choose between intensive inpatient programs or outpatient programs that allow them to live outside the hospital while they receive treatment.
“Typically judges will, with court permission and sufficient proof of inpatient treatment, tend to allow defendant with an open case to stay inpatient until they finish treatment,” said Stamford-based attorney Mark Sherman. “That seems to be an unspoken rule because the courts typically want to encourage sobriety, especially when accused is making a commitment to inpatient. That’s essentially jail but with added bonus of resources you need to rehabilitate yourself.”
Sherman said courts focus on individual cases to deem what’s best. He said generally, judges want to see recovery and have been sensitive to the wave of opioid abuse. But the problem lies in addicts being charged as distributors when they sell small amounts to support their own habits.
“If you have someone selling for the sole purpose to make money, they’re the people who are going to get punished the most, but the people that are selling small amounts of opiates to support an addiction, it’s really critical that defense attorneys explain that to judges and prosecutors to distinguish them from profiteering dealers,” Sherman said. “Initially, all charges look the same on the front of a file, but a defense attorney really needs to drill down and construct a narrative about a client that shows an addiction struggle and get leniency in the system.”
Right now, the mandatory minimum sentence for selling up to one ounce of heroin in Connecticut is five years.
“The mandatory minimum that were established by lawmakers predate the recent popularity of opiates,” Sherman said. “It doesn’t take into consideration how addictive and widespread this problem is, so we have young kids facing felony mandatory minimum jail time and thankfully, prosecutors have the discretion to look at cases and reduce charges where they see fit which they do.”
This search to target distributors has also led to police using people facing drug charges as informants, offering defendants lighter penalties in exchange for them offering information on dealers.
“The police, and I don’t begrudge them for this, but they lean very hard on people arrested for opiates to be concealed informants so they can get to the source of the drugs,” Sherman said. “Sometimes that can be very helpful for a defendant, but sometimes can be very dangerous and that really should be discussed with lawyer before any decisions made.”
Sherman said being an informant can lead to potential retaliation from dealers, putting an already vulnerable defendant in danger.
Another area of concern is when an addict goes to jail according to Dr. Eric Collins, physician-in-chief at Silver Hill Hospital. Collins said in his experience, courts have been very willing to work with hospital patients in treatment, whether it be one of Silver Hill’s inpatient programs, outpatient programs or a residential program where patients live on the grounds but have a lower level of treatment.
“We don’t have complete control and there are situations where the legal system won’t be flexible if the charges are purely drug-related,” Collins said. “But I’ve never seen a case where they didn’t work with us flexibly to accommodate someone in treatment...It’s case-by-case. In certain situations and circumstances, the court might not be entirely flexible, but by and large patient problems with legal consequences are usually well accommodated for treatment.”
But the problem arises when someone is in prison and can’t get help for their addiction. Some may not be able to continue the medications they were on for detox when they enter a correctional facility. After going through withdrawal in prison others are likely to come out and possibly overdose when they begin to use again.
“Most criminal justice settings don’t make it possible or easy for patients to continue on methadone treatments,” Collins said. “That’s a major concern and there’s some people pushing for maintenance for the criminal justice population with a once a month shot.”
This shot of naltrexone blocks the opioid receptors so the drug doesn’t get into the nervous system and users don’t feel high. While Collins said it isn’t recommended for everyone, it may help prevent overdoses once users are out of prison and at the highest risk for overdose.
Despite this treatment option, many addicts in prison may still struggle to access methadone, often used to treat opioid addiction, as well as access things like therapy which may help them deal with their addiction.
But things are improving as attorneys, prosecutors and judges learn more about an increasingly sweeping epidemic.
“The courts aren’t here to throw addicts in jail,” Sherman said. “That’s not their purpose, that’s not what they can do and I don’t think there’s enough bandwidth in the state to even put all addicts in jail. That’s not what they want to do.”