Julie Eldred’s highly symbolic case attracted support from many of the best and brightest in addiction science community. They hoped a state supreme court would say, loudly and clearly, that addiction is not a moral failing, but rather a chronic brain disease.
In a ruling last Monday the Supreme Judicial Court of Massachusetts did not do that. Neither did it endorse the opposite view. Far from it.
It simply rejected her legal claim without reaching most of the big questions. Which wasn’t hard to do. For while Eldred and her allies were right on most of the science, they were wrong on the law.
Almost exactly two years ago, while on probation for a drug-related theft, Eldred tested positive for an opioid, violating a condition of her probation: that she remain drug-free. A Massachusetts judge sent her to jail, where she spent 10 days before being released to inpatient care.
Her attorneys—backed by, among many others, the American Academy of Addiction Psychiatry, Sarah Wakeman, MD (medical director of Mass General’s Substance Use Disorders Initiative), the Grayken Center for Addiction Medicine (led by President Obama’s ONDCP chief Michael Botticelli), the Massachusetts Medical Society, and, eventually, the New York Times editorial board—argued that this “criminalization” of her relapse violated the cruel and unusual punishment clause of the Constitution. (“If addiction is a disease, why is relapsing a crime?” read the Times editorial’s headline.) Her breach of the condition wasn’t “willful,” they argued, because modern science shows that addictive drugs alter the chemistry of the brain in ways that diminish an individual’s free will and power to resist cravings.
It’s not hard to see why the case inspired so much passion. The greatest barrier to getting compassionate and effective treatment to people suffering from opioid use disorder (and other addictions) is stigma. Addiction is still widely viewed as a moral failing—self-indulgence, hedonism, criminality—rather than as what brain scans and other scientific evidence have shown it to be: a chronic brain disease.
The best treatments for this disease—methadone and buprenorphine—are too often shunned, simply because they are themselves opioids, which, to critics, means that the patients using them must still be “addicts.” To this day, many patients, families, politicians, and even doctors continue to resist the use of these FDA-approved pharmaceuticals against this lethal disease, despite an overwhelming consensus in the public health community that they are the safest, most effective treatment regimen.
So, understandably, much of that community wanted a court to declare: Eldred’s relapse was a symptom of her disease, so she couldn’t be jailed as a consequence of it.
The seven-justice Supreme Judicial Court of Massachusetts unanimously declined that request Monday. But not because it doubted that relapse was a symptom of her disease. The problem, rather, was that Eldred’s claim, if accepted, would have turned the criminal sentencing system upside down. It would have overturned principles that permit tens of thousands of drug courts to deal with addiction humanely, flexibly, and pragmatically, giving addicted defendants a chance to rehabilitate themselves while also protecting them from themselves and protecting society from them. This had been a central concern of eleven addiction authorities who signed an amicus brief siding with the state in the case, including the first NIDA director, Robert DuPont, and addiction psychiatrist and writer Sally Satel.
The seven justices agreed that the “actions of the … judges and the probation department involved in this case were exemplary.”
Importantly, Justice David A. Lowy, writing for the court, did not reject the core of Eldred’s scientific arguments. Though he largely dodged the scientific issues, claiming that the appellate record was insufficient, he actually endorsed key elements of Eldred’s case, including that “relapse is a part of recovery.”
What seven justices unanimously agreed upon was that, far from having acted unconstitutionally, the “actions of the district court judges and the probation department involved in this case were exemplary.” Between the lines, they seemed to credit the prosecutors’ contention that these officials may have saved Eldred’s life. Here’s why.
On July 18, 2016, Eldred, then 28, was charged with felony larceny for stealing jewelry from a family for which she worked as a dog-walker. She admitted the crime and said she’d done it to get money to buy heroin, to which she was addicted.
On August 22, 2016, the trial level judge showed mercy. He let her avoid a criminal record. After she admitted facts sufficient to establish guilt, the judge released her on probation without entering a conviction. His conditions were routine: she had to start outpatient substance abuse treatment, remain drug free (other than the addiction medication itself), and submit to random drug tests. She agreed.
On August 29, she started on medication-assisted treatment, using Suboxone, a branded preparation of buprenorphine.
Three days later, on the Friday before Labor Day, a random drug test showed that Eldred was using unprescribed fentanyl, one of the most powerful and dangerous opioids available—up to 50 times more powerful than heroin. (According to the CDC’s most recent provisional data, fully 60 percent of the estimated 49,000 opioid overdose fatalities in calendar year 2017 involved fentanyl.)
Because Eldred’s parents—her main support network—were on vacation, unable to take responsibility for her, the probation officer filed notice of a probation violation and called for an immediate, interim hearing before a judge, known as a detention hearing. The probation officer testified that she “couldn’t have [the defendant] leave [the probation officer’s] office testing positive for fentanyl,” according to the the lower court judge’s ruling.
Legally—and factually—it is simply incorrect to say that her relapse is being treated as a crime.
Again, the judge showed mercy. If Eldred’s attorney could find an inpatient treatment slot available, he’d send her there. But if not, he’d have to detain her in jail until a bed opened up. Unfortunately, the defense attorney couldn’t find a place that could take her. So Eldred was incarcerated for 10 days until an inpatient slot became free, at which time she was moved there. (Yes, the lack of adequate treatment beds is a scandal. But it does not render unconstitutional the orders of the judge.)
Legally—and factually—it is simply incorrect to say that her relapse is being treated as a crime. Conditions of probation routinely include prohibitions against doing things that are not crimes (like drinking alcohol or coming within 200 yards of an ex-girlfriend), as well as demands that the probationer do things that cannot ordinarily be required of anyone (like visiting a probation officer and submitting to random drug tests). When defendants violate the contractually agreed upon conditions for the mercy they were shown at sentencing, the judge must then resentence the person for the underlying crime—in Eldred’s case, theft of her client’s jewelry—in light of the changed circumstances. This is not empty formalism. Rehabilitation of the defendant is an important goal, but so is protecting society from larceny and other crimes.
In November 2016, Eldred’s formal probation revocation hearing was held. For a third time, the presiding judge showed mercy. He did not send her to jail. He ordered her to continue inpatient treatment, which Eldred’s attorney did not object to.
The appellate case was about the 10 days Eldred had to spend in jail waiting for the inpatient bed to open up. According to Eldred and her allies, courts are powerless to order addicted defendants to stay drug free while on probation and, thus, powerless to act if such a condition is violated. If a defendant uses illicit fentanyl, well, we must roll the dice and give them another chance. Maybe with a few more milligrams of Suboxone they’ll turn the corner. Or maybe they won’t, and they’ll be the 49,001st overdose fatality that year.
Eldred is correct that science does now show that addictive drugs impair self-control mechanisms in the brain. It does not yet prove, however, that those control mechanisms are so demolished as to foreclose criminal responsibility for one’s acts. And if, one day, the science does prove that, then we will need a new legislative structure to handle these cases—akin to how we currently handle those who plead not guilty by reason of insanity.
Because if people with opioid addiction are truly powerless to control themselves, then how can we convict them of larceny in the first place? If they are powerless to refrain from using opioids, it follows that they are powerless to refrain from stealing money to get their hands on those opioids. And if they need to break into a house to commit that larceny, how can we fault them for that? And if they need to rob someone on the street, by threatening violence, who are we to judge?
The science has not brought us there yet.
Despite all the good intentions of those fighting for Eldred, this case was correctly decided.