Judges Can Require Drug Users On Probation To Remain Drug-Free, Court Rules

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Julie Eldred at her home. (Jesse Costa/WBUR)
Julie Eldred at her home. (Jesse Costa/WBUR)

The state's highest court on Monday ruled that judges may jail someone with an addiction who is on probation if that person does not remain drug-free.

In a unanimous ruling, Supreme Judicial Court justices rejected the argument that it is unconstitutional to incarcerate someone who violates probation by relapsing because relapse is a symptom of the disease of addiction.

"[I]n appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug," said the 27-page ruling, written by Associate Justice David Lowy.

The case involves 30-year-old Julie Eldred, who in 2016 was put on probation for a year on a larceny charge. Her probation conditions stipulated that she remain drug-free and submit to random drug tests. One of those tests, taken 12 days after she was placed on probation, came up positive for the opioid fentanyl.

Because that was a violation of her probation, she was sent to jail.

Eldred's lawyers argued that incarcerating her for relapse was punishing her for her disease. But the court said in its ruling that jail is a tool that judges may use to encourage recovery and protect public safety.

Eldred's attorney, Lisa Newman-Polk, said Monday that this ruling doesn't do either of those things.

"I think if we really want to improve public safety," Newman-Polk said, "we need to be treating people who suffer from substance addiction humanely and recognize all ... that a person needs in order to achieve recovery — and further punishing and hurting a person is not what they need."

After 10 days in jail, Eldred was released to complete inpatient treatment.

Newman-Polk said Eldred relapsed while she was in treatment and many people worked not to inform the courts about it — so Eldred would be allowed to stay in treatment, rather than go back to jail and receive no treatment.

The ruling added that "a defendant who violates probation is not being punished for violating a condition of probation, but rather 'the defendant is essentially being sentenced anew on his [or her] underlying conviction.' "

The case brought up the science of addiction — much of it focusing on what researchers say about how much control patients like Eldred have over their drug use — and whether consequences motivate people to stop using.

The ruling had little to say about the issue. It said that the justices realize that relapse is part of the disease of addiction, but that Eldred's relapse was a willful violation of her probation conditions.

Massachusetts General Hospital addiction specialist Sara Wakeman wrote a brief in this case, saying that addiction should be treated like other diseases such as diabetes.

Wakeman said Monday that many times addiction patients will opt for a jail sentence over probation because of the strict reliance on drug tests and stress about not knowing if relapse will put them behind bars.

"I think that situation will continue, unfortunately, and really doesn't parallel the way we think about treating any other chronic medical condition," she said.

Martin Healy, chief legal counsel and chief operating officer of the Massachusetts Bar Association, said he thought the court would have issued a broader ruling that could have affected the thousands of people on probation in the state who have an underlying substance use disorder.

"They basically didn't go down that road at all, which is surprising," Healy said. "I thought this particular case had the potential to be a landmark case where the SJC could have come out and ordered the Legislature to provide additional resources. They basically looked at this case as a pure violation of the original probationary terms."

The ruling does say there is contested science about substance use disorders and that it is up to a judge to set probation conditions and modify them if necessary for each probationer.

Many advocates on Monday expressed concerns about the ruling; some question whether judges will incarcerate more people.

Leo Beletsky, associate professor of law and health sciences at Northeastern University, said the ruling is inconsistent.

He said if Massachusetts allows the involuntary commitment of people to addiction treatment because their substance use is uncontrollable, then it's not logical to say that someone can willfully violate a court order to remain drug-free.

"In many ways it's high time for us to revise how the law considers addiction," Beletsky said. "If you say someone dealing with addiction isn't capable of making decisions and we can lock them up to pursue treatment, we can't then say on the criminalization side that people with addiction retain control over their decisions."

But Beletsky and others say the ruling leaves open the possibility that the high court will revisit this question in the future.

This article was originally published on July 16, 2018.

This segment aired on July 16, 2018.


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Deborah Becker Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.



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