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Civil Litigation may be the saving grace by which this Policy and the Legal Wild West is tamed…

Updated: Apr 1

Covid and Overdose


2020 turned out to be one of the worst years in centuries. I, along with other medical, policy, legal, and social experts saw this disaster coming from miles away. We began screaming from the rooftops about the perfect storm brewing for those suffering from substance use disorder (SUD), coupled with economic insecurity, isolation, and grossly inadequate mental health and SUD services in the midst of Covid.[1]


Unfortunately, death from overdose reached all-time highs in 2020 exactly as predicted. “81,230 in the 12 months ending last May — set a record for the most such deaths in a one-year span, according to a report issued by the Centers for Disease Control and Prevention.”[2] Overdose was the leading cause of death for individuals under 55 in the United States and has been exacerbated exponentially by Covid, the Drug War, lack of regulation and/or resources, and ultimately as a result of the lack of regulation, results in exploitation of vulnerable adults suffering from SUD in desperate need of adequate care and services. “But despite the fact that more than 20 million Americans have some type of substance use disorder, there are only 4,400 actively practicing certified addiction specialist physicians in the U.S., according to the American Society of Addiction Medicine.”[3]


Lack of Regulation and Oversight Fueling The Flames Of Fraud And Abuse


For over half a century, this country has declared SUD a medical/mental health/brain disorder and/or disease while simultaneously criminalizing the behaviors associated with this medical condition. Much of this motive is due to racial disparities in the targeting of minority communities. While these issues are of dire importance, it exceeds the scope of this article, but I authored an entire legal journal article based solely on these issues and their impacts upon the disenfranchised sufferers.[4] Overdose and the Criminalization of said medical issue is one of the most complex biopsychosocial issues of our time. It touches every home in this country, and every heart of those that lost a loved one to either the grave or the penitentiary. Sometimes both.


The confusion and misunderstanding surrounding this juggernaut creates a stigma within our social fabric, tearing it in two. On one hand, we expect untrained law enforcement to solve the social issues arising out of SUD. The social symptoms are not pleasant. They include but are not limited to; domestic violence, homelessness, vehicular homicide, broken homes, and heartbreak. This unpleasantness causes citizens to bury their head in the sand while these issues may be happening under their own roof. Some fear calling 911 because they don’t want to see their loved one go to jail or suffer criminal penalties, resulting in many unnecessary deaths.


Even when brought to healthcare facilities, sufferers are treated with disdain and contempt by the health facility’s own staff. Understandably, both law enforcement and healthcare providers are frustrated due to several factors. One being the lack of education that surrounds mental health/SUD and secondly, the lack of resources to deal with individuals that have been internally deemed “frequent fliers.” “When these patients get to the ER, it's a remarkably underwhelming work-up. We remove their urine-soaked clothes, put them on our monitors and for the most part let them "MTF" — metabolize to freedom, which is to say they can leave when they can walk.”[5] This statement, expressed by a Chicago ER physician symbolizes the approach taken by most hospitals across the country. This is particularly dangerous because by “treating and streeting” these individuals, many times only minutes or hours after resuscitation, they are placed back on the street with nowhere to go and extreme cravings. This often results in death because these desperate individuals seek out black market narcotics which has been flooded by fentanyl. The U.S. doesn’t have an opioid crisis anymore, we have an overdose crisis spurred by fentanyl and other synthetic opioids. “However, the most recent cases of fentanyl-related harm, overdose, and death in the U.S. are linked to illegally made fentanyl. It is sold through illegal drug markets for its heroin-like effect. It is often mixed with heroin and/or cocaine as a combination product—with or without the user’s knowledge—to increase its euphoric effects.”[6]


On the other hand, due in part to the stigma and criminalization, an under regulated treatment industry ran by many times unqualified owners and operators has sprung up due to these difficult conversations not being had in our mental health/SUD struggles not being brought into the light, front and center. On October 1, 2019, the Committee on Energy and Commerce issued a request for information acknowledging what they would call “Wild West of Law and policy.”[7] There is virtually no oversight by the federal government over the treatment industry and its regulation has been left in the hands of the states. For example, in Florida, treatment center, sober home, detox facilities, and outpatient programs are regulated and overseen by the Department of Children and Families Services, not the Department of Health. You need no formal education to open a treatment center or detox facility, you need only undergo a background screening and put the proper administration/procedures in place for licensing purposes. In 2016, the 15th judicial circuit State Attorney’s office issued a grand jury report stating the inadequacies of the current oversight and called for either proper funding or movement of this regulatory body to a more appropriate agency.[8]


Although many legislative suggestions were issued, very few have been implemented at the state level. Palm Beach County was the epicenter of fraud and abuse. The county now tries to lead the way to reform and humane treatment of these vulnerable adults. Much remains to be done due to lack of regulation coupled with inadequately educated/trained providers, creating a recipe for abuse, neglect, and exploitation through patient brokering that claims the lives of many young Americans. Many times, untrained individuals are placed with vulnerable adults resulting in sexual assault, unethical interactions, and many times the wrongful death of the client because the motive of profit exceeded that of patient care.[9]


Qualified Immunity and SUD


As previously mentioned, this article lacks the bandwidth to properly extrapolate all of the systemic racial issues within the criminal justice system and the Drug War. The impacts of qualified immunity have hit minority communities suffering from SUD especially hard. Qualified immunity is essentially protection from legal action against government actors for malfeasance, wrongful conduct, and/or negligence. Even some of the officers who killed George Floyd by kneeling on his neck for over eight minutes may evade accountability for criminal or civil actions through qualified immunity. Federal Judge Carlton Reeves recently handed down an opinion where his words were un-minced. “Judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.”[10]


There is currently legislation being introduced in Tallahassee that would make it easier for an individual to take civil action against government entities for misconduct. The bills, HB 261 and SB 670, would allow a person to more easily pursue legal action against a government employee for wrongdoing.”[11] Government misconduct must be kept in check and violators must swiftly be brought to Justice. Right now, Justice is out of reach for most everyday people. It is a well-known fact that 60 to 80% of the people behind bars are there for nonviolent substance offenses or technical violations while on probation and not new crimes. Private prisons created a genius business model which guarantees recidivism and places a revolving door upon our jails and penitentiaries. Large corporations that own private prisons/jails currently trade on Wall Street and essentially guarantee certain levels of incarceration to their investors. This is morally repugnant. These companies realize criminalizing substance use disorder, lobbying for harsher penalties and less treatment, they have guaranteed repeat business in their well-oiled injustice machines.[12]


Before I became a lawyer and represented individuals who died at the hands of law enforcement or treatment center abusers, I studied sociology. One of my professors changed my thought process in an instant. It was as if a veil had been lifted from how I previously perceived our society to how it actually functions. I looked across the table while defending my thesis at the Honors College at Ole Miss. The topic wasSocietal Dysfunction.[13] I adamantly told one of my thesis chairs that “our criminal justice system is inherently broken.” He calmly looked back across the table at me and rebutted, “what if it is operating exactly the way it was designed to?”


That statement is one of about half a dozen that altered my perception forever. You see, before I was representing clients or writing journal articles or theses, I was an incarcerated individual suffering from substance use disorder with no education. My introduction to these issues were up close and personal, intimate, and have become invaluable to my work now. I personally witnessed and experienced the abuse and neglect that our systems impose on those caught inside. My formal education helped me become objective, and dispassionate enough to detach from the emotional pull I feel for this work, so that I may not allow my emotions to overpower my intelligence when combating what seems to be insurmountable odds against all too powerful opponents. Whether it’s first responders refusing to administer lifesaving Narcan to opiate overdose victims, or the refusal to administer proper healthcare while incarcerated, the answer remains the same. Bad actors must be held accountable and no one is above the law.


Civil Litigation is the Solution


Why is this so important and how does it all tie together? Our Founders knew exactly what they were doing when they enacted the seventh amendment to the Bill of Rights which gives United States citizens the right to a jury trial. There have been many issues covered in this article and most require legislative change for any meaningful results. The question becomes, how do we arrive at that legislative change? I have served on multiple task forces across the Southeast in relation to drug policy and criminal justice reform on both the local and state levels. I wish I could tell you that these meetings and brain storming sessions led to meaningful and sustaining change. My experience has been quite the opposite.


State attorney Al Johnson, said it best and simplest when he stated, “there is a carrot and a stick method to legislative change.” The carrot being the lawmaking and lobbying efforts for legislative change. I like to call it the “shaking hands and kissing babies method.” Al is a brilliant lawyer and a gifted policy maker. He has been able to bring about change and awareness on these issues at the highest levels. Here in Florida, he understands the inner workings and underbelly of how legislation is formed. However, it is very hard to combat special interest groups, corporate lobbyists, and the inherent “compromises” made during session. While this method is certainly needed, I feel from personal experience that litigation enhances motivation for change.


Litigation is the stick. A car manufacturer that produces a deadly design defect, such as the improper placement of the gas tank or inadequate screws to hold the seats and ignores these defects many times until litigation ensues, which forces the corporate giant to make safer products. Capitalism has created the greatest country in the history of the world here in the United States. However, the goal of capitalism is to maximize profit while reducing costs. Many get lost while pursuing profit to consider the harmful effects that cutting corners may have on their consumers. It is exactly the same within the treatment industry and the criminal justice system. No one is going to beat their representative’s door down to alter public health or safety policy while making money hand over fist. Many times, it is only a trial attorney standing in between giant corporate interests and the harm it causes on those that it exploits.


Something just short of magic happens when you place six strangers in a box and ask them to make a decision on Justice. Those in power know that this magic exists and have gone to great lengths to limit one’s access to a jury trial. Binding arbitration agreements are one weapon, tort reform, caps on damages etc. We have safer food, cars, planes, churches, magnetic hotel keys, and streetlights all from trial lawyers holding corner cutters accountable. Juries carry common sense and non-legally trained minds, which ironically improves their sense of justice because they are not bogged down in legalese, procedure, or precedent. We are currently watching how diabolical giant pharmaceutical companies can be through the opioid MDL litigation in Ohio. Once again, trial attorneys protect the little guy from behemoth corporate oligarchies. We all love the David and Goliath stories, and those that have the underdog prevail. Juries and trial attorneys make that possible for everyday people.


Substance use disorder is probably this nation’s number one public health and criminal justice issue. It has its tentacles in every aspect of our culture and affects each one of us at a personal level. We need change, we need heroes, those not afraid to speak truth to power or to stand steadfast in the pursuit of Justice despite the odds. The civil justice system is a cornerstone of American democracy and integral to our ability to maintain a somewhat level playing field. It has become my method for legislative change when representing those who have lost a loved one or suffered unspeakable injuries while in vulnerable positions. We will change the Drug War, Qualified Community, Patient Brokering, and the way Treatment Center Abuse, Neglect, and Exploitation are handled in this country one client at a time if we have to. Walk softly, love deeply, seek Justice, and try to practice humility. But never be afraid to carry a Stick.


Joshua Horton is an attorney at The Joshua S. Horton Law Firm, PA, licensed in Florida and Washington D.C. He practices in Substance Use Disorder Law, and is works on public policy at the local, state, and national levels. Horton also has dual degrees including a juris doctor from Ole Miss and founded a non-profit, Southern Recovery Advocacy in Oxford, Mississippi. His work has been recognized nationally and internationally.

[1] https://www.sun-sentinel.com/coronavirus/fl-ne-south-florida-addiction-treatment-on-the-rise-20200913-b5mn4bdqxfdg3msbj6nov34bru-story.html [2] https://www.washingtonpost.com/health/81230-overdoses-set-record-for-such-deaths-in-a-12-month-period-cdc-says/2021/01/22/a8b29e7a-5c06-11eb-a976-bad6431e03e2_story.html?fbclid=IwAR1Nrw4BPOq6vvVrdSp8T0c202hfI28FLjAlg_4xMgXKT-SUdxXin2BeeIg [3] https://thehill.com/policy/healthcare/538706-drug-overdose-crisis-worsens-in-shadow-of-covid-19-pandemic?fbclid=IwAR1hAwiJIOTkqEVVJ1vSGbSwsqpoYHyWyNQqRYGGFrR0sTZvyOs2gYEfwS0 [4] Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives Criminal Law Bulletin Vol. 53, (2018) [5] https://www.chicagotribune.com/opinion/commentary/ct-er-alcohol-addiction-doctors-health-care-perspec-1009-jm-20151008-story.html [6] https://www.cdc.gov/drugoverdose/opioids/fentanyl.html [7] https://www.asam.org/docs/default-source/advocacy/letters-and-comments/100119-rfi-on-sud-treatment.pdf?sfvrsn=e7f74fc2_2 [8] http://www.sa15.state.fl.us/stateattorney/SoberHomes/_content/GrandJuryReport2.pdf [9] https://www.npr.org/2021/02/15/963700736/as-addiction-deaths-surge-profit-driven-rehab-industry-faces-severe-ethical-cris?fbclid=IwAR0rFGhGNIjlGk5gPqk7hAi5NrDeCQO2aommIZx4HNI8cRQ6K-qc6v0iQkk [10] https://www.aclufl.org/en/news/lower-courts-agree-its-time-end-qualified-immunity?fbclid=IwAR0P2_TjW4MDcKtcCjz55odtwV8AGO_Dvj6a6NCi_reyLvovPO7SBNpzpmM [11] https://floridapolitics.com/archives/395894-michele-rayner-shervin-jones-file-bill-to-end-qualified-immunity [12] https://www.investopedia.com/articles/investing/062215/business-model-private-prisons.asp [13] Horton, Josh (2015) Societal Dysfunction: The Floundering Policies of Rehabilitation and Incarceration for non-violent alcohol and drug offenders in the United States of America. Undergraduate thesis, under the direction of Ross Haenfler from Sociology, University of Mississippi.



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