A legal dispute that the Massachusetts Supreme Judicial Court will rule on within the next several months could have significant implications for how substance use treatment unfolds for individuals involved in the justice system. The case rests on the question of whether it is appropriate for judges to threaten or impose jail time when individuals ordered into treatment test positive for substance use during the course of treatment.

The case before the Supreme Judicial Court involves defendant Julie Eldred, who days after initiating court-mandated medication treatment for heroin addiction in 2016 tested positive for fentanyl and was sent to jail for violating terms of her probation. Eldred, who had pleaded guilty on a larceny charge, would eventually complete a mandated residential treatment stay and is no longer in custody, but the case is still active because she is appealing the placement of a probation violation on her record, her attorney told ADAW.

The appellant’s point of view, supported by health care organizations that include the Massachusetts Society of Addiction Medicine and the Massachusetts Medical Society, states that an individual with the chronic illness of a substance use disorder should not be sanctioned simply for exhibiting a symptom of that very disorder, which is characterized in part by continued use despite negative consequences.

“We have specialists that do the best they can to help people get better, and when a court interrupts that process, it’s a problem,” said Lisa Newman-Polk, Eldred’s attorney and a former outpatient treatment provider with a social work background.

Conversely, the state (with agreement from groups such as the National Association of Drug Court Professionals) argues that the threat of incarceration or other sanction serves as an important incentive for justice-involved individuals to enter and remain in treatment.

“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,” Massachusetts Assistant Attorney General Maria Granik was quoted as saying in an Associated Press article about the Eldred case.

Observers of the case believe its outcome could have a profound influence in both the justice and treatment arenas.

“This case is important not only for its legal implications, but I also think it carries a really important reminder for all of us that people relapse,” Michael Botticelli, executive director of the Grayson Center for Addiction Medicine at Boston Medical Center and former director of the Office of National Drug Control Policy, told ADAW. “We have seen something of a similar response from some treatment programs, which routinely do administrative discharges for a patient relapse.”

Details of case

In late August of last year, Eldred, who had a history of drug use and had been in treatment programs in the past, entered a guilty plea on a larceny charge. Two days later, following the conditions attached to her sentence of probation, she met with a physician who started her on a buprenorphine regimen and also participated in an intake for an intensive outpatient program that she would begin the following week.

Despite her participation in treatment over those first several days following her plea, Eldred would relapse and was found in a follow-up court appearance to have tested positive for fentanyl. This was determined to be a probation violation. Eldred was sent to jail, where she remained for 10 days until a placement for her in a 90-day residential treatment program was identified.

Although Eldred is no longer in custody in 2017, her attorney says it was important to challenge how the state proceeded in her case because what she believes was an unjustified probation violation remains part of the record that the justice system will refer to if her client ever again appears before a judge.

“I agree that a criminal charge can be an initiator to get people into treatment,” Newman-Polk said. “But the question is how do we work with somebody once they’re in treatment. I disagree that jail is an example of contingency management. Jail is not an evidence-based practice.”

She added that in her prior work in the treatment arena, she consistently found herself explaining this position to judges, with mixed results. Now as an attorney, she concluded that “I’ve got to go to the [Supreme Judicial Court] so that these judges don’t have the discretion.”

“Imprisoning someone purely for toxicology flies in the face of our understanding of addiction as a chronic illness,” Sarah Wakeman, M.D., who chairs the policy committee at the Massachusetts Society of Addiction Medicine, told ADAW. The state-based organization of addiction medicine specialists signed on to an amicus brief in the case that was filed by the Massachusetts Medical Society.

“There is definitely evidence that positive contingencies can improve engagement in treatment,” Wakeman added. However, “Positive contingencies are far more appropriate” than the stick approach of jail time for a setback, she suggested.

“While we certainly don’t want relapse to occur, it is part of any chronic condition,” said Botticelli, who also signed on to the brief that the Massachusetts Medical Society submitted. In diabetes, if your A1C spikes, we don’t say, ‘We’re taking you out of treatment.’ We adjust the treatment.”

Therefore, he believes that a more reasonable criterion for judging compliance for individuals with substance use disorders in the judicial system would involve their overall engagement in treatment. This argument suggests that a person who is trying to go through the process but experiences a setback should be allowed to stay in treatment with some modifications determined by the care provider, while someone who shows no inclination to engage in treatment would justifiably be subject to additional sanction by the court.

“We all feel that treatment decisions should be made by clinicians, not by criminal justice or court officials,” Wakeman added.

Botticelli did point out that the position of Massachusetts officials in this case should not be interpreted as an indication of an attorney general’s office that is overly punitive in its overall outlook; he says the state’s history does not demonstrate that.

Opposing view

Not all individuals with a health care background who have weighed in on this case share the same point of view. Former national drug czar Robert DuPont and addiction psychiatrist and American Enterprise Institute resident scholar Sally Satel have both publicly warned against a court decision that could hamper justice officials’ authority, with Satel adding in an amicus brief that the case should not be decided on the basis of “contested concepts” around whether addiction is a brain disease.

Of course, many would question that “contested” label. “I can’t think of a chronic disease where people don’t have relapses,” Henry L. Dorkin, M.D., president of the Massachusetts Medical Society, told ADAW. He added that with stress being a precursor to relapse, it would seem that the threat of incarceration would only increase the chances of a relapse.

Observers of the appeal’s arguments before the Supreme Judicial Court on Oct. 2 have said that the seven-member court asked probing questions of both sides and left little indication of how they might rule in this much-watched matter.

Bottom Line…

The outcome of a Massachusetts case in which a defendant with a substance use disorder was jailed after a positive drug test during treatment could shape attitudes and policy in both the judicial and addiction treatment systems.