Substance-Free Probation Conditions for Drug-Addicted Criminals: Reformation or Criminalization?

• Author: Pickering, Alexandra

"The fact that relapse is an almost inevitable feature of [Substance Use Disorder] leads to the straightforward conclusion that relapse is 'not a weakness of character or will.'" (1)

1. INTRODUCTION

   Substance Use Disorder (SUD), a pervasive disease affecting more than forty million Americans, requires ongoing and professional treatment. (2) Currently, there are more than thirteen thousand rehabilitation centers in the United States. (3) Unfortunately, many individuals are still unable to obtain treatment, and when left untreated, many addicts find themselves behind bars for crimes committed to sustain their habit. (4)

   In 1962, the Supreme Court attempted to resolve this criminalization issue in Robinson v. California. (5) In Robinson, the Court determined that holding a drug addict criminally liable for using drugs constitutes cruel and unusual punishment. (6) The Court reasoned that the criminal justice system should not punish someone simply because of his or her "status" as an addict. (7) This ruling was immediately controversial, as some argued Robinson would positively change the way society treats drug addiction, while others argued the Court was impermissibly attempting to overhaul state substantive criminal law. (8) Good or bad, in the almost sixty years since Robinson, the Court's ruling certainly changed the way states handle substance abuse in the criminal justice system. (9)

   For example, in the recent case Commonwealth v. Eldred, (10) the Massachusetts Supreme Judicial Court upheld a requirement for the defendant and drug addict, Julie Eldred, to remain drug-free as a condition of her probation. (11) After testing positive for fentanyl, and thus violating her probation, Eldred's primary argument was that the drug-free probation condition violated the holding established in Robinson because it punished her status as a drug addict. (12) Eldred, who was diagnosed with SUD, was subsequently incarcerated for violating her probation condition. (13) Many view this outcome as going against precedent set in cases like Robinson, arguing that such an outcome allows judges to punish individuals based on their status as a drug addict. (14)

   This Note addresses the potential legal implications of Eldred, and analyzes possible alternatives by looking to other jurisdictions. (15) Section II.A discusses the history of substance abuse in the United States and how Massachusetts uses probation to induce rehabilitation. (16) Section II.B provides an overview of Eldred, as well as the precedent that guided the court's rationale. (17) Section II.C addresses the ways other jurisdictions have approached issues similar to those raised in Eldred. (18) Then, Part III analyzes the likely legal implications of Eldred and argues for a more balanced alternative to the court's holding. (19) Finally, Part IV concludes by reiterating the issues associated with criminalizing substance abuse and recognizing that while there is not an easy solution to the criminalization problem, more access to rehabilitation is necessary. (20)

2. HISTORY

   1. SUD and Its Treatment in the Legal System

      The Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) classifies SUD as a chronic disorder featuring continued drug use, despite negative consequences and practically inevitable relapse. (21) SUD affects multiple parts of the brain, such as areas involved with inhibition, reward, and motivation. (22) Because SUD is a classified disorder, it is logical to compare it to other disorders and diseases, such as the common cold. (23) If the other disorders mentioned are widely considered involuntary and consist of symptoms beyond the individual's control, this raises the issue of whether the "symptom" of continued drug use by an individual with SUD constitutes a voluntary act. (24)

      Experts in the field have long debated the question of voluntariness as it relates to drug addicts' continued substance abuse. (25) These experts generally agree, however, that the initial decision to take drugs is voluntary, but the continued use of drugs at least impairs an individual's ability to exert selfcontrol. (26) Experts' theories tend to differ though on the extent to which an individual has the ability to exert self-control at this point. (27) Regardless, research suggests that SUD does not fit neatly into one category, but rather into a gray area between a drug addict's voluntary and involuntary acts. (28) This gray area calls for a more holistic approach to treatment, one that encompasses biological, social, and behavioral components. (29)

      While psychological research supports multiple theories of the voluntariness debate, the legal system takes its own view. (30) The law considers it a choice when someone uses drugs, and because the law prefers binary categories of voluntariness and involuntariness, it is difficult for judges to recognize any gray area regarding the voluntariness of drug use. (31) For that reason, some argue the legal system has criminalized SUD, which has resulted in disproportionate effects within the legal system, such as higher incarceration rates of certain minorities over white adults. (32) Massachusetts has taken some measures, however, in an attempt to avoid such criminalization. (33) For example, judges must be well-informed about the problem of substance abuse and should order substance abuse treatment for criminals struggling with SUD. (34) Nevertheless, while these precautions exist, judges have great leeway when imposing probationary conditions on individuals with SUD. (35)

      Judges in Massachusetts can create probation conditions as long as they are permissible within the statutory confines of the probation process and align with the articulated probationary goals. (36) The two primary goals of probation in Massachusetts are rehabilitating the defendant and protecting the public. (37) Judges have also articulated other goals, such as punishment, retribution, and deterrence. (38) Probation is meant to "enable the person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer." (39) With these goals in mind, Massachusetts judges must abide by legal precedent, which states that the probation condition needs to be "reasonably related" to the articulated probationary goals. (40)

      Another issue that arises regarding criminal defendants with SUD is the need for rehabilitation. (41) Court-ordered rehabilitation is sometimes required, but it is estimated that only about 20% of incarcerated individuals who require treatment actually receive it. (42) Recent statistics show that "68[%] of local jail inmates reported experiencing symptoms that met the criteria for drug dependence, abuse, or both the year prior to their incarceration.... but only 16.9[%] participated in treatment programs while in prison or jail." (43) Without such treatment, an estimated 95% of inmates arrested for drug-related crimes continue abusing drugs and other substances upon release, and between 60% and 80% of them commit a new crime upon release. (44)

      Further, incarceration often does not stop addicts from obtaining illegal substances while in prison. (45) Those struggling with SUD unfortunately often end up in jail for crimes they committed to support their addiction, and they do not receive the professional treatment they require. (46) For those who do receive treatment, these court-ordered programs can "serve as a diversion from traditional criminal justice methods for individuals struggling with substance abuse who have committed a crime." (47)

   2. Robinson and Its Aftermath

      Robinson marks the first Supreme Court case to decide that criminalizing a person's status as an addict is unconstitutional as it violates the Eighth and Fourteenth Amendments. (48) In Robinson, a California statute made it a crime to be addicted to narcotics. (49) The defendant, Robinson, was charged under the statute, and later convicted at trial. (50) But upon his arrest, there was no evidence of actual narcotic use, and consequently no proof Robinson actively did anything illegal. (51) He appealed up to the Supreme Court, which ultimately overturned his conviction, and held that the statute penalized the status of being a drug addict without requiring proof of drug possession or any otherwise illegal conduct. (52) The statute was ultimately struck down by a majority vote, despite dissenting opinions from Justices White and Clark. (53)

      Since Robinson, the Supreme Court and state courts have faced similar situations, and have continuously been asked to answer the question of whether particular statutes impermissibly criminalize a person's status as a drug addict. (54) While criminal defendants have raised this question in varying contexts over the years, one of the most recent contexts relates to probationary conditions. (55) Eldred, the case at issue in this Note, presents an example of this question. (56)

      In July 2016, Eldred was charged with larceny for stealing jewelry, and admitted she stole the jewelry to support her heroin addiction. (57) As a result, the judge imposed a one-year probation term, with a special condition requiring Eldred to remain drug free and submit to random drug testing. (58) Eleven days later, Eldred tested positive for fentanyl. (59) At a detention hearing, the judge determined Eldred had violated her probation condition and ruled she be placed in an inpatient treatment facility. (60) Because none were available at that time, Eldred spent ten days in custody until finally being released into an inpatient treatment facility. (61)

      At Eldred's probation violation hearing, she argued for the first time that she suffered from SUD, and therefore did not willfully violate her probation condition when she used drugs. (62) She further argued that the probation condition violated several state and federal constitutional rights, but the judge denied her motion to...