An Indiana county attorney and police chief are working together to prosecute people who have suffered overdoses with felonies—and to use lifesaving naloxone overdose reversals as evidence against them.

Hancock County Prosecutor Brent Eaton intends to charge overdose victims with felony drug possession by encouraging police officers in Greenfield, a city in Hancock County, to use the administration of naloxone (also known by the brand-name Narcan) as “probable cause” for search warrants in pursuing further evidence of drug possession, specifically an oral swab of the defendant.

In particular, the newly-created “Overdose Report” form (embedded below) accompanying the search warrant affidavit tasks the responding officer with evaluating whether “the use of Narcan [was] effective” in helping the overdose victim “regain consciousness or coherency,” since “Narcan is only effective based on the use of an Opioid drug.” Filter obtained the form through a public records request.

The Hancock County Overdose Report form accompanying search warrant affidavits for oral swabs. Obtained February 19, 2020.

Citing the effective administration of naloxone as probable cause for a felony charge “will be perceived” by some members of the public as a de facto criminalization of the medication that has helped turn the tide on the overdose crisis, Leo Beletsky, a Northeastern University professor of law and health sciences, warned Filter.

The law enforcement officers disagree. “We’re not looking to criminalize someone or put a case on them, but by starting this new process we can help get people into the system,” Jeff Rasche, chief of the Greenfield Police Department, told Greenfield’s Daily Reporter. He and Eaton aim to funnel more people who have experienced overdoses into drug courts and the county’s heroin protocol program—which jails drug defendants, confines them to 90 days of treatment, and surveils them through probation.

Eaton believes he is acting in the best interests of people who use drugs.

“I personally oversee the cases in our drug court. I’ve seen firsthand the power of interventions and treatments in saving lives,” he told Filter. “Through monitoring, supervision, and threat of legal action, the justice system can provide leverage to encourage drug abusers to enter and remain in treatment.”

This so-called encouragement can also be called coercion, and at least one official seems to be aware that defendants may not be keen on being criminalized.

“My main concern with it is that I believe the [swab] has to remain in the person’s mouth for 10 minutes. Not sure they will cooperate,” Janet Strauch, director of laboratory services at Hancock Regional Hospital, wrote to Eaton in a February 3 email obtained by Filter through a public records request. “Also requiring our staff to wear a face shield as I am concerned they may sput at the collector.”

Advocates in Indiana have come out against the policy. “No one should have to incur a coerced felony charge in order to access treatment,” stated the Indiana Naloxone Project on Facebook.

Hancock County already has limited evidence-based treatment options for people who use opioids. There’s only one medical provider authorized to prescribe buprenorphine, a “gold standard” opioid substitution medication, within 30 miles of Greenfield, according to SAMHSA’s practitioner locator.

The scale of the new policy’s impending impact seems be unclear. As of February 12, Eaton has filed one such charge, according to a local Fox News program. Three doses of naloxone have already been administered by the Greenfield Police in 2020, as of February 18.

In 2019, Greenfield police administered 16 doses of naloxone and responded to 23 overdoses in the county of 75,000 residents. That year, 11 people fatally overdosed. In recent years, the county prosecutor’s office has been ramping up drug prosecutions in general. Between 2015 and 2016, drug possession charges leapt from 380 to 612.

But activists fear that the policy will discourage Indianans from seeking already-underutilized medical interventions. “This is going to reduce 911 calls and put people at greater risk,” stated the Indiana Naloxone Project.

Kassandra Botts, executive director of the Indiana Recovery Alliance (IRA), told Filter that “People already do not call for help out of fear of arrest” in a state with weak Good Samaritan laws. As of 2018, Indiana created a new charge, “dealing in a controlled substance resulting in death,” which is of the highest level of felony, carrying a punishment of 20 to 40 years in prison and a $10,000 fine.

She foresees “people being hesitant around naloxone use and second-guessing whether they should administer it” as a result of the policy that, as Eaton described in a February 10 email obtained by Filter through a public records request, is specifically “trying to reach” people who “overdosed and were in need of life saving measures,” meaning naloxone.

Using harm reduction tools as probable cause for criminal charges has been shown to reverse public health wins. For example, as Botts pointed out, cops arrest women, especially transgender women, on prostitution charges for simply carrying condoms. And this seems to discourage condom use. A study by the Red Umbrella Project found that sex workers who experienced condom confiscation by police often went on to engage in unprotected sex. Such policies are incompatible with any commitment to upholding the human rights of sex workers, Human Rights Watch argues.

Ambivalence about wielding naloxone will only worsen the “dismal” state of its accessibility and distribution, Botts said. “While IRA is the largest naloxone distributor statewide, we are under-funded, and have to resort to things like selling merchandise to fund our effort to save lives. This level of lack of funding feels unique to this crisis, compared to other epidemics. People tend not to care about community members who use drugs, in large part due to them being seen as criminals.”

Antonia Sawyer founded the naloxone distribution organization #Shiphappens to fill in this gap. “Stigma prevents our Indiana communities from being able to move forward with naloxone distribution through their local health departments, from hosting community wide naloxone trainings, and from implementing other evidenced-based programs related to harm reduction,” she told Filter. “With this new policy in place in Hancock County, I am concerned it will impede our and other organizations’ efforts to build and sustain community-based naloxone efforts there in the future, making it increasingly more difficult for residents to confidently respond to an overdose and feel empowered to save a life.”

Instead of using naloxone to implicate overdose victims in a crime, Eaton should invest in pre-arrest diversion and the creation of “a cultural atmosphere where people with substance use disorder can access help without fear of incarceration,” said Botts.

“We need more protection from prosecution, not more avenues for prosecution.”

Photograph of naloxone by Mark Oniffrey via Wikimedia Commons/Creative Commons