Mass. bill would ease penalties on probationers who fail drug tests

Massachusetts lawmakers are weighing a bill that would require courts prioritize treatment over penalties for people on probation who fail drug or alcohol tests.

Typically, failing a drug or alcohol test is considered a violation of probation, and a judge could incarcerate the person. Advocates say if passed, Massachusetts would be the only state that would specify that a positive test should not result in incarceration.

The bill, known as "An act relative to treatment, not imprisonment" was the subject of a legislative briefing Wednesday. A group of mental health and addiction experts and attorneys told lawmakers that the threat of incarceration impedes addiction treatment and punishes relapse, which they say is part of the disease of addiction.

"I saw hundreds of individuals placed in custody for merely relapsing, a symptom of their substance use disorder," said Deborah Goldfarb, Director of Behavioral Health at Boston Medical Center's Grayken Center for Addiction. "A correctional environment is not one that fosters recovery. And not only were folks not receiving appropriate treatment in custody, they are ripped away from any treatment connections they have."

The legislation, sponsored by state Rep. Ruth Balser and state Sen. Cindy Friedman, specifies that a positive drug or alcohol test or other signs of relapse would not be considered a probation violation if someone is following a treatment plan, trying to get care or has completed a program and is complying with other conditions of probation. The bill would also prohibit the courts from ordering more substance use testing than required by a treatment provider.

Attorney Lisa Newman Polk told lawmakers that her clients who were jailed for positive drug tests were often re-traumatized, jeopardizing their recoveries.

"The dehumanization of being strip searched, being ordered to bend over and show the bottom of yourself while naked, of being talked to as if you're an object and not a human being, I cannot emphasize enough how incredibly degrading this is, and how much that actually causes worse outcomes for addiction," Newman Polk said.

Remaining drug and alcohol-free is a common condition of probation, even if the crime for which someone is charged did not involve substance use. It's estimated that tens of thousands of people are on probation in Massachusetts.

The bill is now before the Joint Committee on the Judiciary. Similar legislation has been proposed before, but lawmakers didn't vote on it. Some say that could change amid rising opioid overdose deaths and more knowledge about substance use treatment.

"There is growing concern about the increasing problem of drug use and public policy makers are becoming more educated," Balser said. "So I'm hopeful the legislature will be receptive to changing policies to better reflect the science about the best way to respond to those with substance use disorders."