A yawning black abyss: section 35 and the equal protection of women in the Commonwealth of Massachusetts.

Author:Chisholm, Gregory D.

"The lack of DPH [(Department of Public Health)] publicly funded substance abuse treatment facilities has created a situation where people are using Section 35 as a means to access the MCI-Framingham publicly funded detox program." (1)

"MCI-Framingham is not designed, equipped or staffed to serve as an acute treatment facility for substance abusers.... [W]omen should not be civilly committed to MCI-Framingham." (2)

Since January 2010, more than 1,000 women spent at least one night at MCI-Framingham on a civil commitment for substance abuse. (3)


    In Massachusetts, an individual with a drug or alcohol problem may be confined against his or her will in a publicly funded detoxification facility. (4) such a confinement is known as a civil commitment, and may occur (pursuant to chapter 123, section 35 of the Massachusetts General Laws (Section 35)) upon the petition of certain relatives of the individual or other official personnel, and after both an examination by a psychologist and a hearing before a district court judge. (5) A civil commitment may last up to ninety days. (6) When no beds are available at a publicly funded detoxification facility, an individual may nonetheless be detained in one of two facilities: Bridgewater State Hospital (BSH), if male; or the Massachusetts Correctional Institution at Framingham (MCI-Framingham), if female. (7) BSH is a state hospital specifically designed to provide "specialized care and treatment." (8) MCI-Framingham is a state prison, "not designed, equipped or staffed to serve as an acute treatment facility for substance abusers." (9)

    This Article argues that the dichotomy created by Massachusetts's civil commitment laws for alcoholics and substance abusers, which sentence men to a hospital and women to a state prison, is a violation of the equal protection of Massachusetts's laws. The Massachusetts Constitution contains what is commonly referred to as the Massachusetts Equal Rights Amendment (MERA), which provides that: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (10) The Massachusetts Supreme Judicial Court (SJC) has interpreted the MERA to mean that any law that invokes a sex-based classification is suspect and is constitutional only if it is narrowly tailored to achieve a compelling government interest. (11) This Article contends that based on the SJC's equal protection jurisprudence interpreting the MERA, the civil commitment law that sends men to a hospital and women to a prison is unconstitutional. part II of this Article examines the history and evolution of the civil commitment law. part III explains the commonly accepted equal protection jurisprudence under the Federal Constitution. Part IV examines the SJC's own sex-based equal protection jurisprudence. part V argues that based on this jurisprudence, the civil commitment law is unconstitutional.


    Massachusetts has a history of civilly committing alcoholics via statute dating back to the nineteenth century. (12) Indeed, sex-based division in the statutory scheme also has a history nearly as long: in the early twentieth century, alcoholic men were committed to a special hospital for alcoholics, while their female counterparts were detained in one of the state lunatic hospitals. (13) Today, this division endures, if in slightly different form. The modern incarnation of the civil commitment statute was enacted in 1970 and provides that men may be civilly committed to BSH, while women instead are eligible to be committed to MCI-Framingham. (14) This part examines the statutory history of the civil commitment of alcoholics and substance abusers.

    1. Historical Precedent for Section 35

      In 1885, the Massachusetts legislature enacted a law providing that "[w]hoever is given to or subject to dipsomania, or habitual drunkenness, whether in public or in private, may be committed to one of the state lunatic hospitals...." [15] Such a commitment was predicated on the presiding judge's determination that the "dipsomaniac" (16) was not "of bad repute or of bad character, apart from his habits of inebriety." (17) These commitments were indefinite and would last until "it appear[ed] probable that [the committed individual would] not continue to be subject to dipsomania or habitual drunkenness, or that his confinement therein [was no] longer necessary for the safety of the public or for his own welfare." (18) The mechanics of the commitment procedure were otherwise applied from those preexisting procedures "relative to the commitment of an insane person to a lunatic hospital." (19) The procedures relative to insane persons required a hearing before a judge and the testimony of medical personnel. (20)

      Four years later, a special hospital for inebriates--the Massachusetts Hospital for Dipsomaniacs and Inebriates (MHDI)--was established. (21) At this time, the civil commitment procedure was modified so as to commit the inebriate to MHDI and not to a lunatic hospital. (22) Further, the period of commitment was limited to two years. (23) However, those committed who would "not continue to be subject to dipsomania or inebriety" or were otherwise provided for by "guardians, relatives or friends" were eligible for a revocable "permit to be at liberty." (24)

      Just two years after establishing commitment to MHDI, the legislature instituted the first sex-based division concerning these civil commitments. In 1901, the Massachusetts legislature amended the commitment laws to commit only male dipsomaniacs to MHDI--females would be committed to lunatic hospitals. (25) In 1915, the prohibition against women alcoholics and drug addicts being admitted to MHDI--a hospital specifically designed to help such patients--was lifted by statute, only to be implemented again in 1917. (26) Finally, in 1918, the Massachusetts legislature reversed the laws a third time, allowing women to be committed to the hospital for dipsomaniacs (by then called Norfolk State Hospital). (27) The 1918 provision also called for the immediate transfer thereto of "all female persons who [were] inmates of state hospitals for the insane and were committed thereto under [the prior legislation]." (28)

      The civil commitment statute, which by 1918 had expanded to provide for the commitment of those "addicted to the intemperate use of narcotics or stimulants," remained largely the same for several decades. (29) In 1956, two important changes in the civil commitment legislative scheme were implemented. First, the statute ceased using the terms "dipsomaniac" and "inebriate," and instead used the term "alcoholic" in their place. (30) Second, the civil commitment procedure--while allowing for both males and females to be committed to any designated state hospital or other private licensed institution--for the first time allowed male alcoholics to be committed to BSH and female alcoholics to MCI-Framingham. (31)

    2. The Making of the Modern Statute

      The modern incarnation of Section 35 emerged with the reworking of the civil commitment statute in 1970. The new law only provided for the commitment of alcoholics, defining such a person as one "who chronically or habitually consumes alcoholic beverages to the extent that (1) such use substantially injures his health or substantially interferes with his social or economic functioning, or (2) he has lost the power of self-control over the use of such beverages." (32)

      As defined, alcoholics could be committed upon the petition of a police officer or physician only. (33) Further, the law required a hearing to be held immediately before a district court judge, at which the person-to-be-committed was afforded the right of representation of legal counsel and the opportunity to present testimony. (34) The judge was also required to order an examination by a qualified physician. (35)

      If, after such a hearing, the court found that the person was in fact an alcoholic as defined by law, and there was a "likelihood of serious harm" as result of the person's alcoholism, the judge was permitted to commit the person for a maximum of fifteen days. (36) The law generally permitted commitment for purposes of inpatient care at any approved public or private facility, although it allowed commitment to BSH for males and MCI-Framingham for females, "provided that there [were] no suitable facilities available elsewhere in which the superintendent [could] offer adequate and appropriate care and treatment and [the superintendent] agree[ed] to admit such person...." (37) Further, the law required these two institutions to "house[] and treat[] [the committed person] separately from convicted criminals." (38) For those to be committed elsewhere, the law required the Department of Mental Health to maintain a roster of available public and private facilities, as well as the number of beds available "for the care and treatment of alcoholism" within those facilities. (39)

      The next two decades saw significant expansions in the legislative civil commitment scheme. In 1973, the commitment law was amended to permit certain "nonofficial" persons to petition to have another committed, thereby allowing spouses, blood relatives or guardians of the person-to-be-committed, in addition to police officers and physicians, to make petitions for commitment. (40) In 1985, the commitment period was extended to thirty days. (41) In 1987, the population of persons who could be committed was expanded beyond alcoholics to "substance abusers," which the statute defined as "a person who chronically or habitually consumes or ingests controlled substances to the extent that (1) such use substantially injuries [sic] his health or substantially interferes with his social or economic functioning, or (2) he has lost the power of self-control over the use of such controlled substances." (42)

      In the twenty-five years since the 1987 amendments, the law...

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