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News Roundup: June 1, 2018: Can Relapsing Be A Crime?
By ROGER PARLOFF|June 1, 2018
Jair Lazaro Unsplash
Quick Takeaway
  • If addiction is a disease, can a probationer be sent to jail for relapsing?
  • Purdue Pharma knew more, earlier than previously known.
  • Since 2015, more than 1,000 people have been convicted of homicide for sharing drugs with a friend, who then died.

This week the New York Times editorial board took a strong stand on an important and highly symbolic case pending before Massachusetts’ highest court. It involves a woman convicted for a drug-related crime. She violated the terms of her probation by taking illegal drugs. Now the question is whether it’s unconstitutional for the judge to punish the woman by putting her in jail. The headline was: “If Addiction Is a Disease, Why Is Relapsing a Crime.”

Although the Times’ heart is in the right place, we think the court will rule against the woman—and properly so.

Also this week, an updated version of Times reporter Barry Meier’s seminal 2003 book Pain Killer came out, revealing that Purdue Pharma officials knew earlier than previously known of OxyContin’s susceptibility to abuse; Axios reports that the Trump Administration is about to release an “engage and enrage” anti-opioid ad campaign; and a common-sense, bipartisan bill to aid Customs and Border Protection agents’ ability to intercept international mail packages containing illicit fentanyl continues to encounter inexplicable obstacles.


The case the Times editorial board wrote about, which was argued before the Supreme Judicial Court of Massachusetts last October and has not yet been decided, involves Juliette Eldred. (Maia Szalavitz wrote about her case last September for Vice.) Eldred’s lawyers argue that since addiction is now widely recognized to be a chronic, relapsing brain disease, jailing her for relapsing—an inherent feature of her disease—violates her federal constitutional due process rights and her right to be free of cruel and unusual punishment. Her substance abuse “left her powerless to exert control over the compulsion to use opioids,” her lawyers write. She “did not ‘choose’ to relapse any more than a person who has hypertension chooses to have high blood pressure.”

Viewing addiction as a disease seems to be (a) correct, as a scientific matter, and (b) crucial to removing the stigma that has long prevented those suffering from it from receiving proper treatment, insurance coverage, and, more fundamentally, empathy and respect. That is doubtless one reason Eldred enjoys support from so many well credentialed authorities. Besides the Times editorial board, her case has been supported by the American Academy of Addiction Psychiatry, the Massachusetts Medical Society, the ACLU, the former “drug czar” (under President Obama) Michael Botticelli, the Recovery Research Institute, and Sarah Wakeman, the medical director of the Massachusetts General Substance Use Disorders Initiative and co-chair of its Opioid Task Force.

News Roundup: June 8, 2018: Pain Refugees

That said, Eldred’s argument draws unwarranted conclusions from its premises. Though the disease greatly impairs the will, it does not demolish it, the way, say, Alzheimers or schizophrenia does.

If courts could never, henceforth, order a defendant to stay clean of illegal drugs as a condition of probation, what would that mean? To begin with, some 3,400 drug courts across the country, handling at least 55,000 defendants per year, would be deprived of the chief means of enforcing their orders. A brief from the National Association of Drug Court Professionals cites six studies concluding that “drug courts have been shown to reduce drug use, reduce recidivism, improve family functioning, increase employment, and enhance other factors related to long-term recovery.” The state’s position is also backed by an amicus brief from eleven addiction experts, including Robert DuPont, the first director of the National Institute on Drug Abuse.

Massachusetts treated Eldred in not just a reasonable way, but an enlightened one—at least by the standards of most states.

If Eldred is found to have been treated unconstitutionally on these facts, then the nation’s courts will be crippled in their ability to play a constructive role in the epidemic.

Eldred admitted committing a felony larceny—stealing jewelry to support her opioid addiction, according to the Vice article. At her sentencing, she was ordered placed on outpatient buprenorphine-assisted therapy—a humane and sensible fate. She was also ordered to remain clean as a condition of probation. Less than 12 days later a urine test showed she had taken the often deadly opioid fentanyl. The judge ordered her detained until she could be placed in an inpatient treatment facility—10 days, in turned out. At her revocation hearing, the judge declined to revoke her probation, merely requiring that she remain in inpatient treatment. She was later “diverted into a treatment program, and is now in remission and rebuilding her life,” according to the Times editorial.

If Eldred is found to have been treated unconstitutionally on these facts, then the nation’s courts will be crippled in their ability to play a constructive role in the epidemic.

  • MURDER BY OVERDOSE If the Massachusetts authorities acted reasonably, the same cannot be said for the prosecutors described in this terrifying New York Times article, who have obtained homicide convictions—more than 1,000 in 15 states since 2015—against individuals who shared drugs with their lovers, siblings, friends, or even parents. In many cases, both individuals overdosed, one survived, and then the survivor was indicted. One defendant was “a son who gave his mother heroin after her pain medication was cut off.”


PURDUE PHARMA: The New York Times carries a front-page story by Barry Meier that encapsulates the key new reporting contained in the newly released, updated version of his seminal and prescient 2003 book, Pain Killer. Basically, Purdue knew more, earlier, than previously known about how OxyContin was being abused. Sales reps began reporting abuse as early as 1997. In addition, three of the company’s top executives came closer to felony indictments in 2007 than was previously known. Advised by Rudolph Giuliani and two top law firms, Purdue was able to persuade top Bush Justice Department officials to let the officers plead guilty to misdemeanors, Meier writes. Meier is also interviewed here on NPR’s The 1A show.

Chronic Pain

  • SYMPOSIUM: Today the NIH continues the second day of a two-day symposium on chronic pain and the opioid crisis.
  • “DEPRESCRIBING” CLINICS: In an interview with Opioid Watch, Stanford addiction psychiatrist Anna Lembke explains how she believes physicians should treat chronic pain patients currently on high-dose opioid therapy.

Also of Note

  • INSYS THERAPEUTICS: Mother Jones has the latest big take on this company’s allegedly depraved sales practices, bribing doctors to prescribe its Subsys fentanyl products for off-label uses. This article focuses on evidence emanating from whistleblower cases pending in federal court in Los Angeles.


  • ANTI-OPIOID AD CAMPAIGN: The Administration is about to unveil a shock-and-awe ad campaign that Axios likens to the old “this is your brains on drugs” spots. Stanford addiction psychiatrist Keith Humphreys tells WBUR that such ads have been studied and found to not work. They “glamorize” the vice and can backfire among the adolescents who are being targeted.


  • FENTANYL: NPR describes the bipartisan legislation that could aid Customs and Border Protection personnel to intercept international packages containing illicit fentanyl. Supported by Juliette Kayyem’s Americans For Secure Packages, it would require 191 foreign postal services—notably China’s— to provide the same sender and consignee information that UPS and FedEx already do, known as “advanced electronic data.” The US Postal Service opposes the law, and the bill’s sponsors, Sens. Rob Portman (R-Ohio) and Amy Klobuchar (D-Minn.), can’t get a vote set.


  • PRESIDENT TRUMP: The AP interprets, and then fact-checks, what the President meant at a Nashville political rally last week when he said of the opioid crisis, “the numbers are way down. … It’s way down. We’re doing a good job with it.”


  • OPIOID ALTERNATIVES: The Wall Street Journal discusses several nonopioid painkillers, including tanezumab, which prevents certain proteins from activating pain-signaling neurons.


  • 118 POUNDS OF FENTANYL: That’s what Nebraska state troopers found wedged beneath the refrigerator unit in an empty 18-wheeler it stopped for a routine traffic violation. Wrapped in foil packets, the drugs were worth more than $20 million and could kill 26 mllion people, according to the Washington Post.


  • TELLING WARNING: Delaware authorities issued a warning about lethal heroin, marked on its packaging with a distinctive stamp, that killed two people within 24 hoursaccording to the AP. Though grim, that much of the story would be routine. The really disturbing part was this: “The department says it’s not identifying the stamp so people will not seek out the drug.”
Filed under: Addiction/ News Roundup