Posted October 2, 2017 3:01 PM
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If addiction a disease, should relapse mean jail?

By Alanna Durkin Richer
Associated Press writer

BOSTON — Less than two weeks after a court ordered Julie Eldred to not use drugs while on probation, she tested positive for the powerful opioid fentanyl. The woman, who has severe substance use disorder, spent the next 10 days behind bars in Massachusetts until her lawyer could find a bed for her at a treatment facility.

In a case that could have big implications, Eldred is challenging the practice of requiring people with addiction to remain drug free as a condition of probation. The 29-year-old argues that by jailing people with substance use disorder for failing to stay clean, courts are unfairly punishing users for something beyond their control.

“For the person who suffers from substance use disorder, a court order to be drug free is effectively a court order to be in remission of one’s addiction,” her attorney, Lisa Newman-Polk, told Massachusetts’ highest court today.

Most addiction specialists — including groups such as the National Institute on Drug Abuse and American Society of Addiction Medicine — view substance use disorder as a brain disease that interferes with a person’s ability to control their desire to use drugs.

But the Massachusetts Attorney General’s Office and others fighting Eldred’s case argue that the probation conditions — which are used widely across the country — help users on their path to recovery. The practice should be upheld because people with addiction maintain the ability to make choices, Attorney General Maura Healey’s office argues.

“Taking away the ability to impose the condition and to have those consequences and that aspect of accountability available when sentencing someone with substance use disorder can actually have a negative impact,” Assistant Attorney General Maria Granik told the court.

Justices with the Supreme Judicial Court, which is expected to issue a decision in the coming weeks, asked tough questions of both sides and gave little indication as to how the court might rule.

“This is a really challenging issue,” Chief Justice Ralph Gants said.

Eldred was charged with larceny for stealing jewelry and sentenced to one year of probation, which allows people to avoid jail or prison if they meet certain conditions. She was participating in outpatient treatment when she relapsed and violated no other conditions of her probation when she was sent to jail, where she received no treatment.

The attorney general’s office has said the court may have saved Eldred’s life by putting her behind bars and ensuring she didn’t overdose.

But Newman-Polk told the justices that if the court had been really worried about Eldred’s safety, it could have forced her into treatment by civilly committing her.

The attorney general is being backed in the case by a group of psychologists and psychiatrists who oppose the classification of addiction as a brain disease. Doing away with the probation requirement could have devastating consequences because the threat of jail time encourages users to stay sober, the group argues.

Despite changes in the brain from drug use, people with addiction are not totally powerless to the substances, they say.

“We don’t mean people just snap their fingers and give up drugs,” Sally Satel, a resident scholar the Washington, D.C.-based American Enterprise Institute and psychiatrist who works at a methadone clinic, said in an interview. “But can they respond to incentives and sanctions? We know they can,” she said.

But Justice Barbara Lenk questioned why it wouldn’t be enough to simply order someone with substance use disorder to remain in treatment.

Why do courts need the drug-free probation requirement, when for most people with addiction, “it’s going to doom them to failure?” Lenk asked.

Michael Botticelli, who served as the nation’s drug czar under President Barack Obama, said an interview that people need to be held accountable for their behavior. The measure, however, should be whether someone is committed to treatment, not whether they relapse — a common occurrence in the recovery process, he said.

“To, in essence, incarcerate someone because they relapsed, without any other criminal behavior, I think is antithetical to the understanding that addiction is a disease,” said Botticelli, who’s now executive director of the Grayken Center for Addiction Medicine at Boston Medical Center and signed onto a brief supporting Eldred’s effort.

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