Article from the Spring 2018 Guidepoints Newsletter. Complete newsletter available to NADA members.
A Criminal Justice Problem and a Public Health Crisis by Chuck Pyle
Editorial note: This report has been condensed due to space constraints. The full report is available upon request from the NADA office.
From October 30, 2017 to March 30, 2018, I served as the US Magistrate Judge in Flagstaff, Arizona. I arrived in Flagstaff as an experienced judge with no prior understanding of criminal justice, cultural or even geographic issues impacting Native American tribes in Northern Arizona.
What confronted me raised extraordinary concerns, particularly related to the impact of substance use disorders on these tribal communities. The criminal docket in the US District Court in Flagstaff is very busy and more than 75% of defendants are Native American. The vast majority of these cases involve acute alcohol abuse at the root of the criminal activity. The physical, emotional, family and community harm caused by such extensive alcohol abuse is devastating and intergenerational.
The response of the criminal justice system focuses on incarceration, punishment and shaming. None of these tactics will make any noticeable improvement to the underlying problems of this community crisis, and frequently exacerbates those problems. What follows is my impression of the problems we face and ideas for new responses to those problems. I recognize that I am an outsider culturally, geographically, and in terms of mission. As such, some of my conclusions or suggestions may be wrong or impractical. Worse, some of my comments may be unintentionally offensive to one group of people or another. For that I apologize.
Impact of Substance Use Disorders on Tribal Nations in Northern Arizona
The primary substance being abused in Indian sovereign nations in Northern Arizona is alcohol. The devastating physical outcomes have obvious negative implications for the mental health of those ill or injured, as well as those close to them. The adverse mental health outcomes from alcohol abuse are severe and can be persistent. But it is more important to understand that mental health conditions, most frequently untreated, can be the underlying cause of the alcohol use disorder. Many Native Americans have experienced traumatic events and have undiagnosed and untreated mental health conditions. My guess is that less than 20% of the Native American defendants that came before me have a previously diagnosed mental health condition, and far less than 10% are in treatment at the time they came to court. This means this community’s mental health needs are being grossly underserved. Of particular concern to me is the criminal justice system’s lack of awareness of the impact of trauma on behavior. Because of breath, blood and urine testing, the criminal justice system is good at identifying substance use disorders. And we frequently respond with treatment, although our treatment options tend to be focused on traditional twelve-step treatment models. Breath, blood and urine tells us nothing about mental health conditions, so judges and probation officers are frequently unaware of underlying mental health conditions. This lack of awareness of underlying, untreated mental health concerns seems particularly acute with Native American defendants. However, we are slowly becoming more aware of mental health conditions as a co-occurring disorder with substance abuse, and now more frequently provide treatment alternatives. The third leg of the stool is response to trauma, and this is where the criminal justice system is most unresponsive. Traumatic occurrences are regrettably commonplace in Native American communities, and this is compounded by the impact of intergenerational and historical trauma. Yet our understanding of and response to trauma remains nascent.
The impact of alcohol abuse on Native American communities is devastating. Our responses tend to be residential rehabilitation in remote locations followed up by “old school†AA model therapy. The relapse rate is extraordinarily high. Several defendants told me in court that they did not have a single friend who had successfully recovered from alcohol abuse. Despite this lack of success we have done little to try new therapies or to incorporate Native American cultural healing practices. Given the lack of success it is time to focus less on blaming and shaming, and more on developing alternative therapies to provide more paths to successful recovery. Â
Increased Collaboration and New Therapies
The federal criminal justice system serves a critical public safety mission in tribal communities. While ongoing law enforcement protection is usually provided by tribal police, the federal criminal justice system is the most serious consequence for unlawful conduct in Indian Country. Necessarily, the consequences of involvement in the federal criminal justice system have significant negative impacts on the family and community of the person who is incarcerated. However, in pretrial and post-conviction supervision, the federal criminal justice system has the opportunity to effectively encourage positive behavior change. Because the criminal justice system has such a potentially positive and negative impact on the safety, health and well-being of tribal communities, and because related functions are performed separately within the tribe and the court, increased engagement and collaboration between tribes and the court is vital to improving outcomes for individuals, families and communities. Efforts to improve those relationships do occur, but they need to be more persistent and quickly lead to specific collaborative projects with measurable outcomes. Native American communities and families should be seen as a critical ally in criminal justice supervision. Native American community leaders should recognize the significant impact the federal criminal justice system has on their communities, and reach out to the courts to assure that positive impacts are enhanced and negative impacts are lessened. As discussed earlier the overwhelming majority of the criminal cases before the court involve substance use disorder, with alcohol being the predominant substance abused. The court has contracted with many residential and outpatient treatment providers for both residential and outpatient services. Most of the residential services are remote, in Phoenix, Gila River or even out of state. The services provided appear to be a traditional combination of the AA Model with newer behavior modification strategies such as moral reconation therapy. It is unclear to me if the providers incorporate traditional healing practices. I also have concerns about treatment providers not recognizing, responding to, or being qualified to respond to underlying mental health or traumatic experience concerns. I suggest exploring adding medically assisted treatment, acudetox and traditional healing practices to our present treatment regimes.
Medically Assisted Treatment
Medically assisted treatment (MAT) is proven effective in responding to opioid and alcohol abuse, but is grossly underutilized in the general public and almost never utilized in the criminal justice system. In five months as the federal judge in Flagstaff, I only had one case where MAT was used for alcohol use disorder. That one example was thanks to the persistent efforts of the defendant’s wife, who hounded the private insurance carrier until it finally agreed to cover Naloxone. MAT was life-changing for that defendant and his family. While “most Americans†know someone with a substance use disorder, almost all Native Americans do, and most have experienced the tragic outcomes of substance abuse. The level of under treatment of substance use disorders and co-existing mental health conditions in Native American communities in Northern Arizona is no doubt even worse than the national statistics . Judges, probation officers, medical care professionals and even substance abuse rehabilitation counselors have little to no knowledge about MAT, and what they do know may be largely based on the misinformation that MAT is just “replacing one drug with another.†Given the dramatic impact of alcohol and substance abuse on our Native American communities and our criminal justice system, that lack of knowledge about MAT needs to be corrected.
Acudetox
Another underutilized treatment option is acudetox, an acupuncture protocol for dealing with addiction and stress that has been used in parts of this country for more than 40 years. Dr. Michael Smith began using auricular acupuncture in 1974 to treat drug and alcohol addiction at Lincoln Hospital in the Bronx. Like MAT, ear acupuncture is a complimentary therapy to be used with other behavioral modification strategies. There are many advantages to acudetox. It is inexpensive. For people uncomfortable with needles, particularly children, magnetic beads can be used instead of needles, also at low cost. There are no logistical requirements. Ideally, this therapy is facilitated by comfortable chairs in a quiet room. However, folding chairs along the outside of a room, a park bench or even rocks by the side of the road can be the environment for delivery of this therapy. Recipients are asked to sit quietly for 30-40 minutes. There is no magic drug on the end of the needles, so no concern for negative drug interaction. Any side-effects other than the brief pricking sensation when the needle is inserted are virtually unheard of. In addition to being low cost and low risk, acudetox is highly supportive. In particular, it is completely non-judgmental, a sharp contrast with how society and the criminal justice system deal with substance use disorders. The protocol ignores the past and the future and focuses on the present – “are you ready for me to insert the first needle?†The immediate impact can be minutes of quiet, perhaps reflection or even sleep, for someone who is frequently in a stressful and chaotic state. Because of its calming effect, the NADA protocol has also been found to be effective as an ancillary treatment for Post-Traumatic Stress (PTS). The acudetox therapists from Lincoln Recovery Center used it extensively to treat people in the immediate aftermath of 9/11. People were so traumatized they were not initially interested in talk therapy, but did find relief from the auricular acupuncture. There is extensive evidence of undiagnosed and untreated trauma and PTS in Indian communities. Some Native Americans may be initially reluctant with talk therapy. Acudetox could help provide relief and build trust. In disaster sites, acudetox is used to treat victims and first responders. In a correctional setting, I envision acudetox being available to treat both prisoners with substance use disorders or stress, as well as correctional officers dealing with the stress of their job. In Indian community settings, I envision group treatments for both people dealing with substance use disorders as well as others dealing with trauma, grief and loss. One big advantage to acudetox over MAT is that physician supervision is not required. Many states license acudetox providers to use the NADA protocol for treating addiction and PTS. As sovereign nations, each tribe could establish its own regulations for people to be authorized practitioners in their nation. When making these regulations, government and private insurance reimbursement is a consideration. NADA can help with the development of specific regulations. An acudetox practitioner could provide hundreds of treatments each year, if not more, at low cost and in conjunction with other therapies. Not only does this avoid the bottleneck of physician availability, it means members of the community are putting healing hands on other members of the community.
Traditional Healing Practices
There is no silver bullet for treatment of addiction or PTS. Success requires a flexible and holistic combination of therapies that is subject to adjustment over time and circumstance. Our current treatment protocols greatly underutilize traditional healing practices when treating Native Americans for substance use disorder. Since our relapse rates are so high, those of us from the Western world should be slow to reject traditional healing methods.
Intermediate Sanctions and Mentors
Another important area of collaboration between probation officers and tribal communities is assistance in developing intermediate sanctions for non-compliance with supervision conditions. The prevailing practice in the face of non-compliance is no action except threats of action in the future until finally months of incarceration are imposed. To be effective we need to be able to promptly impose a proportionate sanction. When the court thinks of sanctions, it thinks of incarceration, home detention, halfway house or imposing deadlines for task accomplishment. Probation officers need a wider range of less draconian options. In coordination with tribal communities there could be education, service, and even arts and crafts sanctions. Have a positive urinalysis – you need to attend a two-hour lecture on traditional practices. Miss a UA and you need to stack wood at the community center for three hours. Or write an essay on how your relapse impacts those closest to you. Or carve artwork with your children. Or spend the weekend in the tribal detention center. These may seem like mild sanctions, but it is more than a threat of something in the future, plus the experience could be positive.
Cultural Influences On and Off the Reservation
Culture has a powerful, persistent influence, sometimes positive and sometimes negative. It is important to understand these positive and negative influences, retaining what is positive and changing what is negative. The culture of the criminal justice system needs significant change in my view. We rely too much on only two tools: threats of incarceration and incarceration. Supervision of offenders should focus on behavior change necessary for successful, law-abiding reintegration with family and community. An essential behavior modification concept is the prompt, predictable and proportionate imposition of rewards and sanctions. Our system almost never provides rewards of any kind. Sanctions take months to impose. Non-compliant conduct is met with either no action or several months’ confinement. This is neither predictable nor proportionate in any instance of non-compliance. A better approach would be to celebrate success and be more reluctant to accept failure. We need to understand that mental health and alcohol disorders are not volitional and not improved by shaming and imprisonment. Zero tolerance policies are not appropriate for this population, but just as importantly, failure to respond to non-compliant behavior encourages continued non-compliance. Finally, the judges, attorneys and officers in the criminal justice system need to develop strategies to encourage offenders to not only succeed and remain law-abiding, but to “pay-it-forward†with service to family, community and people troubled with substance use and mental health issues. The criminal justice system can incorporate cultural awareness and cultural practices into programming and supervision. Cultural awareness, talking circles, intergenerational discussions, crafts, art, writing, and native language learning can all be important to helping a person find the stability, connection and self-awareness needed for long-term recovery.
A Call to Action
This memorandum is a little intimidating in the breadth of the suggestions for change. For the most part, the suggested changes can be considered and implemented piecemeal. Any successful change will create an environment for further successes. The problem of alcohol abuse in Indian Country in Northern Arizona is one that must be encountered by many entities collaboratively. Ten tribes are involved, requiring representatives from tribal councils, law enforcement, behavioral health, community leaders and healers. State and federal judicial and probation officers should be involved. Representatives of relevant federal agencies, particularly BIA and IHS should be involved. Different projects will identify additional necessary participants. This memo provides a lot to chew on. The point in not to find fault with past practices, but to focus on providing more treatment options going forward. It is easy to feel defeated before you get started when facing this problem. But with enough communication, collaboration, and commitment, substantial improvements are possible. Anyone who wants to share thoughts and ideas with me can get in touch at (520) 444-7854 and pyle.charles@gmail.com. I look forward to hearing from you and I appreciate your interest in this important service need.