The Massachusetts Supreme Judicial Court has ruled that drug users can be forced to remain sober while on probation.
In this highly-anticipated decision, the state's highest court weighed concerns for public safety and a defendant's welfare against the argument that substance use disorder is a disease, and relapsing is a symptom that shouldn’t be criminalized.
This case centered around a woman named Julie Eldred. She was on probation for stealing jewelry to pay for drugs. One of the requirements of her probation was to remain drug-free.
But only a handful of days later, Eldred relapsed and tested positive for fentanyl, the potent opioid. The defense counsel could not find a place in a drug treatment facility, so Eldred was sent to jail for violating her probation.
In front of the state’s highest court in October 2017, the attorney repressing Eldred, Lisa Newman-Polk, argued that because Eldred suffers from a severe substance use disorder, her constitutional rights were violated when she was jailed for 10 days. It was impossible, she said, for her client to remain sober by willpower alone.
“A court order to be drug-free is effectively an order to be in remission of one’s addiction,” Newman-Polk argued.
She said that for defendants diagnosed with this disorder, courts should consult with medical professionals before sentencing. She was open to involuntarily committing defendants to a treatment program but not to incarcerating them for relapse.
The Attorney General’s office agreed that substance use disorder is a disease but argued that judges need to be able to require a person remain drug-free -- and to potentially incarcerate them for failing.
Assistant Attorney General Maria Granik argued the Supreme Judicial Court should “embrace the kind of discretion and flexibility that already exists in terms of crafting probation conditions.”
She went on to say that not only is the ability to impose jail time for using drugs important for public safety but it also might have saved Julie Eldred from dying of an overdose. Further, they said, some people find that drug-free testing is helpful in reaching recovery goals.
In the end, the Supreme Judicial Court sided with the Attorney General and said that, in appropriate circumstances, judges can require sobriety as a probation requirement.
"It underscores the discretionary nature of probation,” said Daniel Medwed, a professor at Northeastern and a WGBH legal analyst. "A judge has wide latitude, ample discretion to set the terms of probation as long as those conditions are reasonably related to the rehabilitative goals of the criminal punishment," he added.
The decision argued that a judge’s ability to mandate sobriety is important for public safety. However, Leo Beletsky, also a professor at Northeastern, said, “the evidence is strongly on the side of the opposite rationale, in that criminalization of addiction actually aggravates public safety problems.”
Jonathan Scott, the head Victory Programs a chain of Boston-area treatment facilities, was also concerned about the ruling.
“Every red light and alarm went off,” he said.
Victory Programs believes that substance use disorder needs to be treated like any other disease -- and people are not jailed for symptoms of hypertension or lung diseases.
“I think that the psychological and the physical damage that can happen to people while they are in jail will do nothing, in my opinion, but perpetuate a cycle of addiction,” Scott said.
And Scott’s skeptical of one often-heard argument, which was in this case suggested by the Attorney General: “If the judge hadn’t put me in jail after my relapse, I’d be dead today.”
That may happen occasionally, he said, but in the vast majority of cases treatment is cheaper and more effective outside of prison.
All sides of this case agree that because of the opioid epidemic, there just aren't enough treatment facilities to deal with the number of people struggling with substance use disorder.
But, as for the question of whether judges can require sobriety, that is now settled.