Substance Abuse Disorder and The Law: An Unfortunate Intersection

If Substance Abuse Disorder is genuinely a mental health condition, why is it handled as a criminal issue?

The Birth of an Epidemic

As early as the 1860s, medical professionals identified that opioids, although effective as pain relievers, particularly on Civil War battlefields, were also highly addictive. This recognition led to their near elimination from medical use. More than a century later, some misleading research claimed that opioids were no more addictive than other narcotics and could be highly beneficial for pain management in medicine. Despite lacking scientific evidence to support this claim, pharmaceutical companies developed new, powerful opioid painkillers like Oxycontin and Hydrocodone, promoting them aggressively to physicians. Often influenced by incentives, doctors began over-prescribing these drugs for minor ailments, such as toothaches and back pain, without informing patients of their addictive potential. This resulted in a generation of unintended addicts.

With this surge of new addicts, the government began to take action by implementing strict regulations and restrictions on access to opioid substances in an effort to save lives. Substances were scheduled, regulated, and electronically reported. Physicians had protocols to stop prescribing in anything but limited numbers. But what did this mean to those who were now addicted to these opioid painkillers? It meant going to drug dealers instead of doctors and getting hooked on substances that were easier to get than Oxycontin: methamphetamines, heroin, and eventually fentanyl. And with this turn to street drugs for pain management came the countless deaths of users and the birth of the Opioid Epidemic. Today, fentanyl is everywhere and in everything. Overdoses are rampant, and somehow, the government has decided that the criminal justice system is the proper battlefield to fight this war. However, the issue doesn't fit the traditional definition of a crime as understood by our justice system. So what does this mean for the thousands of individuals whose physical pain has brought them into courtrooms or jails?

Possession of Controlled Substances: A Felony Offense

In Kentucky, possessing any substance classified as Schedule I or II (according to Kentucky's definitions), along with certain specifically named substances, is considered a felony. Common substances in this category include: Heroin, Ecstasy, LSD, Methamphetamines, Methadone, Cocaine, Crack, Oxycontin, Fentanyl, PCP, GHB, Rohypnol, and most benzodiazepines. It is important to note from this non-exhaustive list that many of these substances are "legal" when prescribed and used properly.

For a first offense, the maximum sentence upon conviction ranges from one to three years in prison. However, individuals charged with a first offense are automatically eligible for pre-trial diversion, which focuses on treatment rather than punishment. It's crucial to understand that treatment doesn't necessarily involve an in-patient program; instead, it involves an assessment by a qualified clinician and adherence to their treatment recommendations. Others eligible for pre-trial diversion under KRS 533.250 include those who haven't been convicted of a felony in the past decade or those who have successfully completed another diversion program within the last five years.

Even if diversion isn't an option, drug court remains a possibility. In Kentucky, drug court serves as an alternative court specifically designed to assist individuals battling addiction in achieving and maintaining sobriety. This intensive program demands frequent court visits, though not in a confrontational setting. Lawyers are absent, and the judge overseeing drug court ensures its smooth operation. Graduating from drug court is a significant achievement, having genuinely benefited numerous individuals throughout the Commonwealth of Kentucky.

Most importantly, anyone dealing with possession charges should know that hope and assistance are within reach. Unfortunately, substance abuse disorder is among the many mental health issues that enter the criminal justice system when other systems fail. The fear of facing a felony charge often leads to feelings of hopelessness. At Bennett Law Kentucky, our mission is to guide our clients into the program that best suits their needs, while maintaining a value and judgment-free environment. Essentially, we care about YOU, not just your case. We are here to help in any way we can, knowing that there is no one-size-fits-all solution.