Should an addict’s relapse be punished with a criminal sanction? Ms. Eldred has put that question before the Massachusetts Supreme Judicial Court, in a case that may have widespread ripples, as hundreds of thousands of addicted people tumble into the criminal justice system. Remaining drug-free is an almost universal requirement of probation. Violating it can bring sanctions ranging from a warning to, frequently, jail.
In a brief supporting the prosecution, psychiatrists, psychologists and legal scholars assert that the brain-disease model is contested. Changes in brain structure from drugs do not necessarily translate into an inability to resist them, they said. With carrot-stick prompts, many addicted people can choose to abstain.
And, prosecutors said, two such prompts include an expunged record for completing probation or, for relapse, jail.
A brief submitted by the National Association of Drug Court Professionals on behalf of 3,400 drug courts noted that the success of these programs depends on a judge being able to apply graduated sanctions, to propel a defendant through treatment.
Prosecutors have pointed to Hawaii’s Opportunity Probation with Enforcement (HOPE) as a model. Probationers are told they will be tested randomly and frequently. Incarceration, though brief, will be swift and certain. The program’s low rate of recidivism for crime and drug use has drawn national acclaim.
But recent studies show that replication efforts failed. They reduced neither rates of drug use nor crime.
Probation, writes Fiona Doherty, a clinical professor at Yale Law School, is “a hidden body of law” that needs scrutiny because judges and probation officers have wide latitude to define a defendant’s “good behavior.”
If addiction is a disease, why is relapsing a crime?
Policies that punish relapse with jail time and keep sufferers from proven treatments are part and parcel of a nearly 50-year war on drugs, predicated almost entirely on criminalization, that no reasonable person would say is working. It costs about $33,000 a year to imprison someone for a nonviolent drug offense and $6,000 to treat someone with MAT.
A ruling in Ms. Eldred’s favor would mark a positive step toward rethinking this strategy.
It would not, as some critics contend, necessitate freeing everyone with a diagnosis of a substance abuse disorder from facing any consequences for drug use. “It doesn’t have to be, and it shouldn’t be, an all-or-nothing proposition,” Mr. Kleiman says. “You still want to have consequences, but they should be fair.”