On July 18, 2023, the Bernalillo County Metropolitan Court announced the launch of the Overdose Prevention, Treatment and Intervention Court (“OPT-In” Court). It is the first court program in the state designed to prevent opioid overdose upon contact with the criminal justice system. The “OPT-In” Court will connect newly arrested individuals at high risk of overdose with lifesaving resources and treatment before they are released from custody back into the community.
According the announcement the “Opt-In Court” recognizes that there is a critical window in which the courts can intervene and help people engage with resources to assist them on their path to recovery. The goal of the “Opt-In Court” is to save lives by diverting individuals at high risk of overdose into treatment.
Metropolitan Court Judge Claire A. McDaniel, who battled a heroin addiction herself more than a decade ago, will preside over the local diversion program. Judge McDaniel called the OPT-In Court “a different approach” toward drug users and said this:
“We’re trying to treat [drug users] with dignity and respect and make them feel human again, and give them what the appropriate treatment is … We’re being very realistic. We know you can’t cure addiction, it’s a lifelong struggle. It really is just about getting people to not die and get their feet in the door of treatment and on a path to recovery. … Opt-In Court recognizes that there is a critical window in which we can intervene and help people engage with resources to assist them on their path to recovery. … Our goal is to save lives by diverting individuals at high risk of overdose into treatment. We are hopeful that this approach will also reduce recidivism rates.”
COLLABORATIVE EFFORT
The “OPT-In Court” is a collaborative effort among the Second Judicial District Attorney’s Office, the Law Offices of the Public Defender, the Private Defense Bar, and community providers. It is inspired by the first Opioid Treatment Court out of Buffalo, New York.
As part of the program, all individuals booked on felony charges in the Metropolitan Detention Center will undergo screening by court staff to determine overdose risk. If deemed at-risk, the OPT-In Court Team will review to determine if the individual is a good fit for the program as agreed by the prosecution and defense. If accepted, the court will coordinate the release, transportation, and immediate placement of the individual into detox services or treatment.
FENTANYL CRISIS
The creation of the “OPT-In Court” was caused in part by the “fentanyl crisis.” Between 2019 and mid-2022, fentanyl killed at least 1,215 people in New Mexico. Last year, fentanyl was involved in at least 574 overdoses across New Mexico. Since April 19, the program has identified 147 people who were booked into MDC with a high risk of overdose.
HOW IT WORKS
All charged defendants booked on felony charges in the Metro Detention Center will be screened. Those charged with murder, manslaughter or sexual offenses are not considered for the program. If court staff, prosecutors, and defenders decide an individual might be helped by the treatment, the individual will be sent to detox or treatment, rather than traditional jail. The accused person would meet with caseworkers and Judge McDaniel during the 90-day program. After that, they’ll have their case dismissed. Participants may be referred for inpatient or outpatient detox as necessary and will have access to Medication Assisted Treatment (MAT)
When someone is booked into the Metropolitan Detention Center on a felony charge, they speak with Metro Court’s background investigators. With OPT-In, several questions have been added to that conversation to learn if someone is at risk of overdose upon release from MDC.
Sample questions include questions like:
Do you use drugs alone?
Have you overdosed in the past?
Do you mix opiates with other drugs, particularly alcohol or benzodiazepines like Xanax?
If a defendant is flagged as high-risk, the OPT-In team will determine if the person is “a good fit” for the program, which must be agreed upon by the prosecution and defense. Those charged with murder, manslaughter or sexual offenses are not eligible. If accepted into OPT-In, Metro Court will coordinate the person’s release from jail and placement into detox services or treatment within the community. While in the program, participants will also meet with OPT-In case managers weekly, meet with McDaniel monthly for status conferences and have access to methadone or suboxone treatment.
Upon successful completion of the program, the individual’s case will be dismissed with prejudice meaning the charges will be legally barred from ever being brought again. The individual defendant will have continued access to the court’s case manager for long-term support or care. If the team determines that an individual needs additional time in the program beyond the court’s jurisdiction on the felony charges, the DA’s Office may amend the charge(s) to a misdemeanor.
Judge McDaniel had this to say about the overall screening process:
“ If you’re a fentanyl user, that already pretty much qualifies you of being someone at risk of overdose. … With fentanyl, it seems like things are falling apart for people much faster. … And it’s a lot more lethal. … Our program will facilitate a warm handoff at every point and cut the red tape in recognition that these people are in survival mode. … And if they’re released without any of this, they’re at risk of overdose or recidivism, and going right back into jail on new charges.”
Judge McDaniel acknowledged that due to the high need for the services provided by the “OPT-In Court”, she knows there are going to be limitations such as a waiting list and barriers such as inpatient programs that don’t allow methadone. McDaniel said this:
“We have to work within those limitations. … There’s all these weird things that we haven’t even thought of but there’s such a need in the community. We’re just trying to get off the ground and running.”
Funding for OPT-In Court comes from the court’s general fund through utilization of existing court staff and resources.
DISTRICT ATTORNEY AND PUBLIC DEFENDER SUPPORT OPT-IN COURT
Second Judicial District Attorney Sam Bregman and the Law Offices of the Public Defender have both expressed support for OPT-In and its mission.
District Attorney Bregman said his office is “all for it,” calling fentanyl a “huge driver of crime in our community.” Bregman said this:
“We want this program to save lives and we want people to get out of this cycle of crime because they’re feeding their addiction. … We want people to get the resources they need and hopefully (they’ll) never be seen in the criminal justice system again.”
Public Defender Dennica Torres said this:
“It is encouraging to see our courts acting on the fact that we can’t arrest and jail our way out of addiction issues. … It recognizes that people suffering through addiction have other challenges in their lives that make it so hard to get and stay sober, this court program and prosecutor buy-in has the potential to support substantial improvement in our clients’ lives and in our community.”
The links to quoted news source material are here:
TWO OTHER METRO COURT DIVERSION COURTS
There are two other Metro Court Diversion courts that are worth mentioning. They are the DWI Recovery Court and the Veterans Court.
DWI RECOVERY COURT
The DWI recovery court has been around since 1987. The DWI Recovery Court program team consists of 1 judge, 5 probation officers, a lead worker, a program manager, and a programs division director.
The program blends judicial oversight by a program judge, supervision by probation officers, a designated court calendar, use of incentives to reward and improve performance, graduated sanctions for non–compliance, and comprehensive substance abuse treatment and ancillary services to address causative factors associated with the offense.
Since 1997, the program has served over 4,200 program participants including more than 2,700 successful graduates.
the DWI Recovery Court Program has been successful at maintaining a 73% graduation success rate and an historical 5.5% three–year recidivism rate.
This is in comparison to a 40–60% recidivism rate of general population DWI offenders who do not enter into a drug court program.
This program is extremely cost efficient, costing an average of approximately $10.26 per day versus the daily incarceration cost in Bernalillo County of close to $80.00 per day.
VETERANS COURT
The Veterans Court has the following 6 eligibility criteria for participants:
- Must be 18 years of age or over
- Charged with a misdemeanor offense in Bernalillo County
- Must have served in the U.S. Armed Forces or the corresponding reserve branches and/or members of the National Guard. Less than honorable discharges are reviewed on a case by case basis
- Eligibility for CVC is not determined by eligibility for benefits from the Veterans Administration
- An identified treatment need/issue substantially related to the offense
- Consent of the prosecuting authority for pre-plea referral to the CVC or post plea if a presumptive commitment to prison/ jail exists.
Acceptance in the program is contingent upon meeting the full eligibility criteria of the program and approval of the CVC Presiding Judge.
You may be excluded from the CVC Program if you:
- Have a conviction or a guilty plea to any offense deemed violent or inappropriate for the CVC.
- Have been found guilty for any degree of murder, voluntary or involuntary manslaughter, or an offense involving a weapon.
- Have been found guilty of a sexual offense.
- Have another pending criminal case in which you would be deemed ineligible
- Are on probation/parole supervision for another case.
COMMENTARY AND ANALYSIS
By all accounts, diversion criminal courts such as the DWI Recovery Court and the Veterans Court are indeed highly effective. Such courts place tremendous concentration on diversion from jailing with an emphasis on treatment and counselling. The DWI Recovery Court has been especially successful since 997 with a 73% graduation success rate and an historical 5.5% three–year recidivism rate.
The Overdose Prevention, Treatment and Intervention Court is following the essential elements of opioid intervention courts and will likely be highly successful recognizing that the jailing of induvial who are drug addicted will in no way solve drug addiction.