The notion that drug addiction is a health condition is not, in the main, controversial in 2017—not politically and not medically. For decades, doctors and researchers have categorized it as a disease, and in recent years the majority of the American public has caught up with them, with widespread support for increased access to treatment and reduced reliance on incarceration. But this consensus hasn’t entirely translated to the courts.
There’s perhaps no case that illustrates this disconnect more clearly than one that’s playing out in Massachusetts. There, the state Supreme Court is considering whether 29-year-old Julie Eldred should have been sent to jail for violating her probation. She’d been under court supervision for theft for 12 days in 2016 when she took a mandatory drug test that came up positive for fentanyl, a powerful opiate. She’s suing over the 10 days she spent in jail following the test, before she was sent to an inpatient treatment facility.
Eldred says that she shouldn’t be punished for her inability to abstain from drugs, and that the jail time violated her constitutional protection against cruel and unusual punishment. Relapse is a symptom of her illness, she’s argued, and doesn’t amount to a purposeful violation of court orders. On the one hand, the top law-enforcement officer in Massachusetts would seem to agree: Attorney General Maura Healey told the Associated Press last year that “for far too long” addiction hasn’t been treated like a medical condition: “I think about addiction as a disease in the same way we think about diabetes as a disease or heart disease as a disease.” But in Eldred’s case, that thinking hasn’t influenced the state’s argument: Healey’s office has refined its stance to say that, in a legal setting, it’s not the same thing.
Eldred’s lawyer, Lisa Newman-Polk, told me that to her knowledge, this case marks the first time that a court will debate whether relapse should be considered a medical symptom. Should the court rule in Eldred’s favor when it releases its decision this spring, it would have ramifications for how probation guidelines are imposed across the state, and likely spur similar suits across the nation. Legal observers have called this the most important case to come before the Massachusetts Supreme Court in the past decade.
As it stands, judges have tremendous discretion to determine when a failed drug test during probation should be met with additional treatment or incarceration. Though the judge in Eldred’s case ultimately moved her into inpatient treatment from jail, under Massachusetts law he could have put her behind bars for the remaining two-and-a-half years of her theft sentence.
Newman-Polk’s argument, which is shared by many medical professionals, is that incarceration poses a threat to the recovery process—not that court-ordered drug treatment or testing is unfair, or that criminal sanctions shouldn’t be imposed on probationers who don’t comply with treatment. Eldred had been on a regime of anti-craving medicine, Suboxone, for five days when she relapsed.
“From a therapeutic perspective, it is very disruptive to put somebody in a position where they’re afraid if they talk about relapse—or even talk about cravings to relapse—they could be jailed,” said Newman-Polk, who previously worked as an addiction counselor. “If the court feels that addiction treatment is a necessary probation condition, then the court system shouldn’t interrupt the treatment process.”
Assistant Attorney General Maria Granik’s argument in the case has contrasted sharply with her boss’s public remarks about substance abuse. In a brief to the court, Granik wrote that “most people with drug addiction retain the ability to exercise choice.” And in her oral arguments in early October, she said that it could “not be determined with any kind of scientific or medical certainty” that Eldred’s relapse was involuntary. By putting her in jail, the Commonwealth was protecting her, Granik has claimed.
Eldred has struggled with substance abuse for years. She first experimented with OxyContin in high school, which helped ease her social anxiety, she told The Boston Globe. “It made me feel like I could fit in wherever I wanted,” said Elred, who told the paper her biological parents both had issues with addiction. Occasional use became daily, and in her early 20s, she turned to heroin.
Elred’s 2016 probation violation wasn’t her first, though that doesn’t appear to have influenced the judge’s decision making. She was put on probation four years ago for a previous theft charge, but after testing positive for heroin in a drug test, she served two months in jail. That period of incarceration was counterproductive to her recovery, she’s said: Drugs were easily available, and the trauma of witnessing inmate-on-inmate violence and undergoing invasive search procedures set her back emotionally. “I wish they could spend one night in [jail], all the people who think it’s a good idea to send us there,” Eldred told the Globe.
While Eldred’s case may seem to spring from the ongoing opioid crisis, the debate at the heart of it is an old one. Newman-Polk’s argument resurfaced a 1962 Supreme Court decision, Robinson v. California, in which the high court ruled that it is unconstitutional to criminalize the state of being addicted to narcotics. Delivering the opinion for the court, Justice Potter Stewart wrote:
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eight and Fourteenth Amendments.
We cannot but consider the statute before us as of the same category.
However, the justices did not decriminalize behavior associated with addiction, such as possessing narcotics—or using them against court orders, as Eldred did. Case law in Massachusetts has precedent for arguing that a person cannot be incarcerated for an infraction they committed unwillingly—an indigent defendant, for example, cannot be jailed for their inability to pay restitution to a victim. Newman-Polk has argued that this logic applies here, too. “Julie Eldred did not ‘choose’ to relapse any more than a person who has hypertension chooses to have high blood pressure, a person who is homeless chooses to sleep in an alley, or a person who is destitute chooses not to pay court-ordered fees restitution,” she wrote in a court brief.
These analogies make sense to Kristen Underhill, a Columbia Law School professor who studies how law influences health choices and risk behavior. “Expecting people to remain drug-free as a condition of probation is not a realistic condition given what we know about how this addiction works,” she said. However, “the extent to which you buy into that analogy depends on how appreciative you are of the science on why people are addicted to drugs.”
Eldred’s suit has attracted attention from medical experts, as well as from progressive groups like the ACLU. The American Academy of Addiction Psychiatry; the Massachusetts Medical Society; and Charles O’Brien, founder of the University of Pennsylvania’s Center for Studies of Addiction, have each filed amicus briefs.
Meanwhile, the attorney general’s office has drawn support from specialists who maintain that addiction is not primarily a brain disease; as well as Richard Nixon’s former drug czar, Robert DuPont, and the National Association of Drug Court Professionals. “Of course there are brain changes in addiction. The question is, to what extent do those changes preclude self-control?” said Sally Satel, a psychiatrist and resident scholar at the American Enterprise Institute, a conservative think tank in Washington, D.C., who contributed to an amicus brief on the Commonwealth’s side.
Satel said consequences are an essential deterrent for patients at the methadone clinic where she works part-time. “I see that every day in my clinic. Why do you think that people are coming in?” she said. “They know someone will leave them, or they know that they’re going to jail.”
If the justices rule for Eldred, they wouldn’t necessarily be setting precedent for decriminalizing addiction-associated behavior. “I don’t think … we need to go all the way down the slippery slope,” Underhill said. The opinion “could be written extremely narrowly to apply to the probation context, and it could reserve judgment to any other permeation of this argument.”
Even among those who strongly believe in the brain-disease model, there are some who think incarceration shouldn’t be entirely taken off the table as punishment. John Kelly, a Harvard Medical School psychiatry professor who teaches addiction medicine, claims neither Newman-Polk’s nor the Commonwealth’s argument is totally accurate.
He agrees with Newman-Polk that relapse is a symptom of disease and that punishing a person for “expressing symptoms” is “unethical.” Still, he said, the attorney general’s office is right in arguing that the degree to which a person loses their ability to avoid relapsing depends on their addiction’s severity. A deterrent, like mandatory treatment or even brief jail time, can augment recovery if the conditions are right, he said. “I would argue that you can require someone to remain drug-free, but instead of the threat of jail you can have the threat of more treatment,” Kelly said.