If addiction is a disease, is it fair to punish people for showing symptoms of it? That's the question raised by a case going before the Massachusetts Supreme Court next week, one that has national implications for the intersection between drugs and the law in the Trump era.
Last year, Julie Eldred was ordered to remain drug-free as a condition of probation after being convicted on a stolen property (larceny) charge. This wasn't the first time the 29-year-old's heroin addiction got her into trouble; according to the Boston Globe, Eldred did two months in state prison in 2013 over a previous opioid-related probation violation. The charge she pleaded guilty to more recently consisted of stealing jewelry to get money for drugs.
This time, less than a week into court-mandated medication treatment, Eldred relapsed again—and got slapped with ten days in jail after testing positive for the powerful opioid fentanyl. The woman's attorney, Lisa Newman-Polk, argues that it makes sense for a court to mandate someone like her client receive care. But requiring that Eldred essentially be cured within days—and subjecting her more than once to a cell when she failed—was unconstitutional, according to the attorney.
As Newman-Polk summed up the case, "While a court may order a probationer to attend and adhere to treatment, a court cannot constitutionally order a medical/mental health outcome."
If Eldred prevails, drug courts, parole and probation systems in Massachusetts might be prevented from punishing people in similar situations—and a legal precedent set recognizing addiction as a disease that impairs self-control.
As you might expect in a country where a drug war has been raging for the better part of a century, the case is drawing high-profile amicus briefs on both sides. Those supporting Eldred include the American Academy of Addiction Psychiatry, the Massachusetts Medical Society, the University of Pennsylvania's Charles O'Brien (who helped write the diagnostic criteria for addiction) and even President Barack Obama's former "drug czar" Michael Botticelli. Bolstering the state are groups like the National Association of Drug Court Professionals, addiction psychiatrist and American Enterprise Institute resident scholar Sally Satel, and Richard Nixon's former "drug czar" Dr. Robert DuPont.
In many ways, the case is an old-school clash between law and medicine. The medical establishment—including the Surgeon General and the American Medical Association—has long accepted addiction as a medical rather than a moral problem. But Congress and the courts continue to treat drug possession like a crime, and to support the use of punitive measures like prison.
Newman-Polk seems uniquely qualified to lead the defense. She's worked as a public defender, outpatient social worker and mental health professional in a prison, where she saw the many ways the system can harm people with addiction. Social work training emphasizes the research showing that establishing an honest, nonjudgmental and supportive relationship is the key to successful therapy. Legal pressures, however, often work at cross-purposes with that. How can you trust and open up to counselor who might report to your probation officer? What is "nonjudgmental" when relapse often results in literal judgment and jail?
"All this punishment was having utterly no positive impact," Newman-Polk told me of her client. "I think the constitutional argument here is that if this is a medical and mental health condition, how in the world can the court order away a symptom? If we could simply order away a symptom with punishment, we would have a cured nation."
Eldred's case seemed like a natural way to press for change because she is not denying she screwed up: She admitted the initial theft and accepted responsibility. According to Newman-Polk, when her client relapsed, she was genuinely trying to comply with probation—and did everything asked of her, including attending outpatient therapy and seeing a doctor for medication.
"It's just so crazy how my brain works," Eldred, who was already coping with the aftermath of prior relapse after three solid years of recovery, told me when recalling her slip-up in 2016. Shame, she said, powered her drug use. "I'd had everything in order, and as soon as I picked up for the last time, I lost everything," she said. "I was just so disappointed in myself… The disease just crept up on me and said, 'Just do it one last time, you'll be OK.'
"As soon I used, I said 'Why did I do that?'" she said.
When she relapsed, Eldred returned to her doctor, who determined her opioid maintenance medication dose was too low, and raised it, she recalled. Nonetheless, the judge ordered her to jail after the drug test came back positive.
Newman-Polk—and those who support her client—consider this a violation of the Eighth Amendment, which bars cruel and unusual punishment. In this case, they say, the government is punishing someone for behavior they cannot control. Advocates note that addiction is defined by the federal government's own National Institute on Drug Abuse as "a chronic, relapsing brain disease that is characterized by compulsive drug seeking and use, despite harmful consequences" and that it is similarly described in psychiatry's diagnostic bible, currently the DSM 5.
As former drug czar Botticelli—who is himself in recovery—put it in an email, if this is how addiction is defined, "incarcerating people based solely on them having a relapse when they have not committed another crime is antithetical to our understanding of addiction." He added that people should be held accountable if they avoid treatment, "but the expectation should be that they are in treatment, not that they are relapse free."
Eldred's behavior clearly fits the pattern of continued use in the face of harm, the hallmark of addiction. Her story is also rife with involuntary addiction risk-factors. Adopted shortly after birth, Eldred said, she was told she'd probably been exposed to cocaine in utero. This suggests both genetic risk and an environmental exposure that may have further increased her potential for addiction.
Indeed, even as a young child, Eldred told me, she was so agitated and unable to focus that she was given medication to regulate her stress. But despite therapy from an early age, she said she never felt right and couldn't succeed at school. After all, she added, she been diagnosed with attention deficit/hyperactivity disorder (ADHD), depression and an anxiety disorder—all of which raise the odds of addiction.
"I have the most amazing parents ever," Eldred said of the people who raised her. However, she noted, "I felt as though I didn't deserve the love I got—and it's so strange to feel that way at five or six." So when she tried opioid pain pills with a friend at 15 or so, she recalled, "It was almost like something in my body saying Oh my God—this is what I've been missing."
Under such circumstances, it's hardly surprising someone might persist despite negative consequences associated with drug use.
Massachusetts, meanwhile, has argued that Eldred's relapse was "willful," and that the legal system needs to have the threat of jail-time in its arsenal for offenders like her.
"It is critical that we improve access to substance use treatment services across the board, and for some, the court system can be an important part of their recovery journey," state attorney general Maura Healey's office said in a statement. "Research shows that drug-free testing can help probationers reach recovery goals, and testing can help defendants remain engaged in treatment and avoid long-term incarceration."
In their brief, prosecutors argued the evidence supporting the idea that addiction is a disease is invalid. For example, scans showing differences between the brains of people with addiction and others are often said to prove that the condition is a disease and that drug use has become involuntary. However, other things like driving and falling in love also appear to involve demonstrable brain changes. These activities, of course, aren't seen as pathological or necessarily involuntary.
As Satel of the American Enterprise Institute put it, "My colleagues and I believed it was very important to argue against the claim that people addicted to drugs are incapable of responding to contingencies; that is to sticks and carrots." She added, "Persistent seeking and using drugs are human actions—not uncontrollable products of brain activity—and the literature on the responsiveness on such actions, even in the presence of addiction-related brain changes, provides overwhelming support for the ability of addicts to change their behavior in response to incentives."
As I see it, the data does show that addiction can respond to incentives—it is rare to see people shooting up in court, for example. But it responds unpredictably, takes time to change, and is far more responsive to rewards than to punishment. This does not mean that addiction is not a medical problem: depression and ADHD can also change in response to the environment; that doesn't mean those changes are simply chosen, nor that people can just snap out of it if they try hard enough.
Addiction is a condition of impaired choice—not one involving zombies devoid of free will. This makes litigating these issues difficult: drug policy scholar Mark Kleiman, a professor of public service at New York University, told me he "hopes both sides lose." He sees completely ruling out punishment when people with addiction interact with the justice system as being as absurd as relying exclusively on punishment.
Of course, the United States tends to err overwhelmingly on the punitive side. Samuel Bagenstos, who served as the principal deputy assistant attorney general for civil rights under President Obama, noted that the last time the Supreme Court took up these kinds of arguments, in 1962, the nation's highest Court tilted liberal.
In that case, Robinson v. California, a man was convicted of a drug crime simply because he had tracks on his arms and a past history of drug use. The Court ruled that this was impermissible because it punished him for the state of being addicted, saying this was like punishing someone for "being mentally ill, or a leper," and left him open to arbitrary conviction at any time. But since then, it's often seemed like any behavior has been fair game when it comes to crime and punishment in America.
Massachusetts may choose another approach.
"This is saying that we know more about the science now than when other courts rejected these arguments," Bagenstos told me, adding, "It really is punishing someone for who they are when you are punishing a drug addict for taking drugs."
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