Van Wagner: A Lawyer’s Personal Stare-Down with the Opiate Epidemic, Part 1

Ed. Note: This is part one of a guest post by Madison, Wisconsin, criminal defense lawyer Christopher Van Wagner. You can find part two here.

SHG has written recently of the sadness and challenge of the country’s current opiate epidemic and the difficulties of doing anything more than emote, wring hands, and move on to the next click. A punitive criminal court approach failed under Rockefeller and Reagan, and I saw the failures firsthand. An upstate NY dorm room was my 70’s home when then Gov. Rockefeller enacted the “nation’s toughest drug laws” – which did nothing more than turn our college VP into a mediator whose task was to stave off any on-campus undercover presence. The unstated goal:  protect the University, and no one else.

Then, as an 80’s AUSA in Madison, Wisconsin, I was an OCDETF prosecutor as we sought to “weed” out this hovel’s newly-minted crack and cocaine dealers (read: minority drug users/dealers who plied their trade on the street and not the suburban bedroom) and “seed” those same streets for a chance at new life (read: spend Great Society sums to make those areas more habitable). The unstated goal:  build a virtual “wall” for lovely little Madison (which back then had just been named by Money Mag as the “best place to live in America”) that would keep out Chicago street gangs and their crack cocaine trade. In more recent years, in now my third decade of solo criminal defense here, I have sometimes, if reluctantly, allowed my young middle-class opiate-addicted clients to become police operatives for the stated goal of sparing spare them a “Lenny Bias” homicide prison term.

SHG accurately notes that none of this does anything to address the real problem, which is the combined struggle of mental health and addiction. Who knows if there is more or less addiction than any previous generation, but today’s readily available, bargain-basement opiates (through prescriptions that are abused plus the country’s current flood of heroin) have one difference: unregulated street-market opiates kill suddenly, shockingly and randomly across all social strata. And, much like when federal LSD guidelines started putting “beautiful” young people in prison for 5 and 10 years, more people of power and influence are raising their voices, pulling back the curtain, and relating their painful, life-altering stories of tragic, sudden, young death. But to what end, for what good? People will always suffer addictions and drunks will always drink.

This question is often front and center in our daily work. Those sad stories of opiate death do not end at the swinging gate of the bar for those of us who make a living in the criminal courts, though, and we each have far more knowledge of and insight into the day to day struggle of the addict, particularly the modern-day opiate addict. They range from the SPD-represented impoverished clients to the sons and daughters of wealthy local scions of business and industry.

Some of the latter, known to the private bar personally and socially, often seek the most confidential, most non-public judicial system treatment of their addicted offspring. And those particular young people whose deaths are later portrayed by attention-seeking media as “shocking” and “tragic,” get the best private treatment (albeit using many outdated treatment models), they get the most protection from public view and they get some of the best lawyers.

Alas, that second item – protection from public view – is evidence of the stigma that, even in this day and age of public acceptance of alcoholism as disease, still shames opiate addicts into secrecy and shadows. The middle and upper class addict still hides her use and her addiction most days. Why? Because her greatest fear is shame and rejection by her own family and non-addicted peers. “Heroin addict” is still a pejorative descriptor. It still conjures images of back-alley drug deals and dangerous hypes with needles.

Thus it was that in May of this year, when a new young client became my third dead client as the victim of opiate overdose in the past 3 years, I was driven from my case work to sit down and write an essay intended to raise awareness of this growing middle class epidemic of fatalities of beautiful, talented young people from what the media likes to call “good families.”

My essay, shared via my firm’s Facebook page, was the subject of countless likes, shares and comments. Many of those comments, and many more PM’s, though, were nothing more than the verbalized sobs of many parents whose own children died before my clients and yet who still seek answers that never come. So this “successful” post, which made folks tear up and react, still left this lawyer feeling helpless; nothing really changed, as far as I knew. No one was saved. No one lived longer. No one beat their addiction because of that essay. No one ever will. Tears shed, yes. Lives spared, no.

Beyond those hopes, real ones when I wrote that essay, I was also dealing with the reality that my own oldest daughter had struggled for four years with her own heroin addiction, along with her other addictions (mainly alcohol), and her underlying but deep, deep mental health struggles – debilitating anxiety and depression. We had tried everything, for nearly a decade, in our natural parental effort to cajole, to encourage, to discipline and to try to lead her out of her struggles, away from her demons. We did so hoping she could get to a solid enough place to resume the incredibly promising life she lived before the tumult of addiction.

We even tried to use the criminal court here (with its model opiate drug treatment court) by insisting on her arrest and prosecution after our last, best efforts failed.  We had not hidden her struggles; but she did, as addicts always do. We had gotten her to the best possible places to get help; but like many addicts she ultimately listened to her addiction instead. It told her we did not really love her, we had no real answers for her, and that her only hope for life was to use again, in order to make things better, easier, softer, more tolerable.

Suicide was often on her mind. And then, every once in a while, for a moment or three, this cunning disease of addiction would recede momentarily. When it did, our daughter would tackle her struggles – though always briefly – with zeal and gusto, and even some happy moments. Like any parents, we took cautious hope and saw in her a new chance to overcome her addictions. We did not want her life to end like my clients’ lives had, though we knew it was possible at any moment. But the addiction always roared back, always, and nothing we parent did seemed to give her the tools to succeed.

This personal parental struggle changed my approach and tone with young addicted clients. I told every one of them and their families of my own daughter’s struggles. This allowed me to speak with some authority as to the best course of action in their cases. I well understood – indeed, witnessed – the addict’s daily fight to stave off withdrawal, their thefts from family and friends, their lies, their incredible powers of manipulation and coercion, all aimed at one thing: to get to their next dose while avoiding police and jail.

Jail is the worst fear an addict has, and why is now very obvious to me: they know they will be forced into withdrawal if jail is for more than 48 hours, and they are almost never “ready” to tackle the agony of opiate withdrawal THAT day; tomorrow will work. Indeed, most addicts tell themselves they are getting ready to quit, but when truly forced to do so, they panic. Armed with this personal knowledge, I was able to get and hold my clients’ attention and their parents’, too.   And what came of my newfound, firsthand authority on the subject? Abject failure. They kept using. And so did my own daughter. Two of them (Tony and Jeremy) died while in the best opiate court our locals could design. The third died after having “graduated” from it. As a lawyer, I pressed on, but with a sense of defeat that knows no bottom. I forced myself to continue to try (and to this day I continue to try) to help them find the right ladder to climb out of that deep, dark hole of mental health and addiction struggles.

Then, one late September morning a few weeks ago, following jury selection in a rural Wisconsin county, while listening to a cookie-cutter DV opening statement of a small-town career prosecutor, I did something unusual. I uncharacteristically reached into my briefcase and checked the alerts on my phone. One was from our daughter’s roommate in Maine, where we had just had a positive visit weeks earlier with our struggling daughter. I read it. It told me our daughter was found dead of an overdose that morning.

What ensued is foggy still, but I walked silently to the bench, handed the judge my cell phone and pointed at it. He and the prosecutor read it. A mistrial was called. The jury filed out, offering kind words that seemed muted by my fog. And I became a member of that club I never wanted to join. The intervening weeks flew by, blurred by the same unspeakable sadness all families endure. But as the dictates of my professional life required, I returned to my work, as effectively as possible, in mourning but still the lone bread winner, the lawyer for clients still in dire need of me. As defense lawyers, we spend our lives trying to bring order to the chaos of our clients’ lives, and they still needed that help.

One question lingered in this lawyer/parent’s mind, though, the same one SHG has posited:  what might we say, what might we do, to spare another parent the unbearable pain of such a loss? How could I, a public persona with some high profile media cases, a grizzled veteran of the local defense bar, take action beyond telling a sad story of how this scourge had ravaged us personally? We have no solid answers, and SHG poses good questions: What will change, what can change, what can be done, how might we help the next client, the next family, the next addict? In Part 2 of this essay, I will try and outline some of our answers to these valid questions posed here recently.