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Judges skeptical in case alleging criminalization of addiction
By ROGER PARLOFF|September 14, 2018
The Supreme Judicial Court of Massachusetts in Boston
Wikimedia Commons
Quick Takeaway
  • Can a judge lengthen a defendant's incarceration to give her time to finish a drug treatment program?
  • The judge did it, he said, "not to punish her but to make sure that she gets through a program and is back out on the street safe and alive."

Last week, less than two months after rejecting a defendant’s high-profile claims alleging criminalization of her opioid addiction, Massachusetts’ highest court heard another case raising very similar questions.

Once again the court seemed skeptical of the defendant’s contentions.

In the earlier appeal, the Supreme Judicial Court of Massachusetts ruled unanimously in July that Julie Eldred’s probationary sentence for theft, conditioned on her remaining drug free, could properly be revoked after she relapsed. (She tested postive for fentanyl.) This was so, the court found, even though “relapse is a part of recovery.”  (I have defended that ruling here.)

In the new case, Commonwealth v. Cayla S. Plasse, the court will decide whether it was lawful for a state judge to increase the length of a defendant’s sentence—beyond even what the prosecutor sought—in order to give her time to complete an in-custody drug treatment program.

At the oral argument on September 6, the justices seemed poised to affirm, notwithstanding the unusual harshness of Plasse’s sentence: two years for shoplifting five video games from a Walmart.

Addiction starts before drug use

The justices did not want to second-guess, it seemed, the trial judge’s reasonable fear for Plasse’s life, especially in light of Plasse’s failure in three earlier attempts at drug treatment outside the prison setting. “Many people in Ms. Plasse’s situation just don’t make it,” the trial judge had noted when he sentenced her.

“[The trial judge] had every good intention,” acknowledges attorney Lisa Newman-Polk in an interview, “but he’s misguided in his understanding of addiction to believe that incarceration is health-promoting.”

Newman-Polk, who represented Eldred on her appeal, now represents ten amicus organizations who are supporting Plasse in hers. They include the American Academy of Addiction Psychiatry, the Association for Behavioral Healthcare, the Grayken Center for Addiction Medicine at Boston Medical Center, and the Massachusetts Society of Addiction Medicine.

“Jails and prisons are not designed to treat people. They are designed to deter and punish.”—Lisa Newman-Polk

“The baseline argument,” Newman-Polk continues, “is that jails and prisons are not designed to treat people. They are designed to deter and punish.” In her brief (with attached expert affidavits) she argues that the incarceration environment exacerbates substance use disorders.

She also urges, among other things, that Plasse’s sentence violated Massachusetts’ “best practices” sentencing guidelines, which state that rehabilitative goals are relevant only when setting conditions of probation, not when determining the length of incarceration.

Plasse’s personal attorney, Edward Gauthier, did not respond to inquiries for this article. In his brief, he focused on a 2011 U.S. Supreme Court precedent, United States v. Tapia, which held that a federal district judge cannot lengthen a defendant’s sentence to permit the prisoner time to complete a drug treatment program. But Tapia was based solely on the text of the federal sentencing statutes, which don’t bind Massachusetts state courts. The justices asked virtually no questions about Tapia at last week’s oral argument.

Plasse herself could not be reached for comment. According to Gauthier’s statements at oral argument, she is now free, having completed both her sentence and parole.

Assistant District Attorney Thomas H. Townsend, who argued the appeal for the state, declined comment.

In August 2013, when Plasse stole the video games, she was 21 and living in Millers Falls, Mass., about 40 miles north of Springfield. Charges were brought against her in September, and that December she admitted the larceny in the state district court in Orange. It was a felony charge because the games cost more than $250. Judge David S. Ross placed her on probation, and put off any formal conviction, giving her a chance to avoid a criminal record.

In the months that followed, however, Plasse violated her conditions of probation at least six times. She failed to show up for appointments, missed drug screenings, and tested positive for morphine, cocaine, amphetamines, THC, and alcohol. She fled one court-ordered residential treatment center and was expelled from two others. Finally, she absconded completely for about 13 months.

On October 1, 2016, after she called her parents to tell them she had hit “rock bottom,” police arrested her.

About two weeks later she went back before Judge Ross. She admitted that she was a “weekend warrior” with cocaine, and that she was using two to five bags of heroin a day.

Her then defense counsel, with the support of Plasse’s parents and of Plasse herself, asked the judge to revoke her probation, but to recommend that she serve her prison time at the Western Massachusetts Recovery and Wellness Center in Springfield. WMRWC is a minimum security facility that provides substance abuse treatment. (It has no fences or bars and its doors are not locked, according to a spokesman for the Hampden County Sheriff’s Office, which runs it. It is patrolled by guards, however, and inmates are not free to leave without permission. It does not offer addiction-treatment medications, like buprenorphine.)

Because WMRWC doesn’t accept inmates sentenced to terms shorter than six months, and any sentence Plasse received was going to be reduced by two months for the time she had already served in detention facilities, her attorney asked for a nine-month sentence.

The probation department and the prosecutor recommended 18 months.

“I have to say I’ve never heard of such a bad case of someone who just can’t do it,” Judge Ross said at the hearing. “And it’s frightening because so many people in Ms. Plasse’s situation just don’t make it.”

Ross then noted that any sentence he imposed would, in practice, be cut in half because of parole eligibility, and then further shortened by “time served” and “good time.”

“I’m going to [give her a longer sentence] not to punish her but to make sure that she gets through a program and is back out on the street safe and alive.”—Judge David Ross

“So I am going to deviate from both recommendations,” he continued. “I’m going to do so not to punish her but to make sure that she gets through a program and is back out on the street safe and alive.”

He sentenced her to two years, the statutory maximum.

Five months later, represented by new counsel, Plasse asked Judge Ross for a new sentencing, protesting that he had unlawfully taken rehabilitative goals into account in setting her term of incarceration.

Parrying that Plasse’s original counsel had asked him to do exactly that, Ross rejected the claim as “specious.”

Plasse appealed, and that’s the case that’s now before the Supreme Judicial Court.

Most of the justices appeared unreceptive to Plasse’s position last week. Their concerns may have been encapsulated by Justice Scott Kafker, the past chief justice of the state’s intermediate appeals court, when he asked Plasse’s attorney:

“So [Judge Ross] believes that this program is needed to rehabilitate [Plasse] and save her life, and it’s what the defense counsel asked for, and you’re saying he’s constitutionally required … to [impose] a three-month sentence in jail without all this treatment? Boy. Really?”

A ruling is expected by the end of January.