Massachusetts to Rule Whether Opioid Addicts Relapse is Considered a Crime

Julie Eldred seen back at home in Massachusetts. Before this, she was sentenced to a treatment program for opioid addiction as part of a probation agreement, and then sent to jail when she relapsed. Addiction specialists are speaking out, saying it’s unjust.

Jesse Costa/WBUR

Massachusetts native Julie Eldred has been combating addiction with opioids for more than 10 years and claims the criminal justice system punishes her for it.

Last year Julie was placed on probation for theft, while working as a part time caretaker in the city of Acton. Having been already struggling with her sobriety, she knew staying opioid free was going to be an issue, and she was in the midst of an active withdrawal symptoms. But with the parameters of her probation clear, she didn’t have much of a choice.

“I was in the midst of active addiction, so I was actively using. But you’re forced to go into this saying I’ll be drug-free or you go to jail,” Eldred says.

She upheld the terms in her probation conditions, she claims – Getting herself into an outpatient treatment program, a therapist and addiction medication, but then failed her court ordered drug test. Eldred was honest with her probation officer and told her that she was in the beginning stages of her treatment and had relapsed but was working to get back on track.

Julie’s probation officer was unconcerned with her other progress and sent her before a judge for sentencing.

“She didn’t look at that picture,” Eldred says. “She didn’t look [to see] that I had just gotten started getting everything in order. She just saw that I had ‘dirty urine,’ and she just sent me in front of the judge to go to jail.”

She was then sentenced to jail for the probation violation and consequently, Eldred says she received no treatment.

“I had a cellmate in there for murder, but she wasn’t sentenced yet,” Eldred says. “You’re with people who know they’re going to be sentenced and they know they’re going to be in there a long time, so they don’t care. There is a lot of violence — girls will jump you. It’s scary.”

After 10 days in lockup, Eldred’s lawyer found her a bed in a residential treatment center once she was released.

Her Lawyer – Lisa Newman-Polk – then took Eldred’s case before the Massachusetts Supreme Judicial Court, saying that the courts should not punish people for suffering from the disease of addiction.

“This idea that a court can order a person to stop using — with the threat of punishment — is not grounded in reality,” Newman-Polk says. “If it worked to punish people for addiction and relapse we would have a cured nation.”

“An order to be drug-free is an order that a person with a substance use disorder needs to be in remission or cured of addiction. It’s not practical or reasonable, in view of what we know about the brain science and what we know about addiction,” She continues.

The legal briefs in this case are filled with mentions of the science of addiction, many focused on the results from research about how much control patients like Eldred has over their drug use and if consequences like incarceration actually inspire patients to stop using.

A brief from the Massachusetts Medical Society reads relapse is a symptom of addiction that needs to be treated, not punished.

“Even Lindbergh bounced down the runway a couple of times before he became airborne,” says Massachusetts Medical Society President Dr. Henry Dorkin, “and we would not want to incarcerate people at the first sign of relapse if we’re treating this as a chronic disease.”

But there are some in opposition, arguing whether addiction is a brain disease that truly leaves users powerless over drug use. Alternatively, the National Association of Drug Court Professionals says supervision and drug testing help keep people in recovery.

Drug courts are praised as effective and already work for people who are getting help for addiction, instead of incarcerating them. It warns the Massachusetts court not to allow “any particular theory of addiction to influence its decision.”

Gene Heyman, a senior lecturer in psychology at Boston college cites studies that say many people are forced into terminating their drug and alcohol use on their own, because of the negative consequences they face if they do not. “The empirical question at stake is, if you ask someone not to use drugs and you provide a reason not to use, can the person respond?” Heyman says. “And the data say yes they can — they can stop using drugs.”

Attorney general for Massachusettes brings up a valid point that Eldred was originally placed on probation for theft – and eventually she did enter into drug treatment or else she would be placed into custody.

While hearing the case this month, the (Supreme Court) justices asked tough questions of both sides. Justice Barbara Lenk asked Newman-Polk where judges should draw the line if someone can’t control their behavior.

“Now, if somebody didn’t have the ability to resist the urge to use drugs, how is it that she could resist the urge to commit other petty crimes in order to support her drug habit? How is it that she could have the self-control to continue in a treatment program that presumably doesn’t want her to use drugs?” Lenk asked.

“Crimes should be punished,” Newman-Polk responded. “But committing crimes is not a symptom of addiction.” Massachusetts’s assistant attorney general, Maria Granik argued for the state, claiming that addiction is not a defense for a probation violation or for criminal responsibility in general. Granik also argued that incarceration is one tool judges can use if necessary.Alternately, what if a judge decided to use the probation violation to sentence Eldred for the underlying crime of larceny? Massachusetts Supreme Judicial Court Chief Justice Ralph Gantz asked Granik.

“What you need to come to grips with — and I don’t hear it frankly,” Gantz continued, “is, is it appropriate for a judge under these circumstances, recognizing that relapse routinely occurs in these circumstances, to impose a two-and-a-half-year sentence in the House of Correction for her probation violation?”

“I don’t think we could go that far,” Granik answered.

Gantz says the high court will be creating guidelines for all courts so judges can decide how to hand down rulings with what has become a revolving door in the criminal justice system for those fighting addiction.

The Massachusetts Bar Association is expecting the high court’s ruling will then cause state lawmakers to fund more towards addiction treatment. Martin Healy, the association’s chief legal counsel and chief operating officer, believes the ruling will set a precedent.

“It is probably going to be one of the most important cases that our court will bring down — over the last decade,” Healy says. “And I think it will result in some dramatic changes to the way that society treats addiction.”

As for Julie Eldred, she is no longer on probation and says she’s committed to working on her recovery.

“Hopefully this is it,” Elred says. “But I can’t say that I won’t ever relapse again. Right now I feel strong, but this is a lifelong journey. Some people think you get clean and that should be it. It’s not.”

The ruling from Massachusetts highest court is expected by this coming spring.

Original source: http://www.npr.org/sections/health-shots/2017/10/26/559541332/court-to-rule-on-whether-relapse-by-an-addicted-opioid-user-should-be-a-crime