Relapsing shouldn’t be a crime
When Julie Eldred tested positive for fentanyl in 2016, 11 days into her probation for a larceny charge, she was sent to jail. Such outcomes are typical in the American criminal justice system, even though, as Eldred’s lawyer has argued, ordering a drug addict to abstain from drug use is tantamount to mandating a medical outcome — because addiction is a brain disease, and relapsing is a symptom of it.
Eldred’s case, now before the Massachusetts Supreme Judicial Court, has the potential to usher in a welcome change to drug control policies across the country. The case challenges the practice of requiring people with substance abuse disorders to remain drugfree as a condition of probation for drug-related offenses, and of sending offenders to jail when they relapse.
The prosecution’s counterargument — that the disease model of addiction is far from settled science — is weak. The National Institute on Drug Abuse, the American Medical Association and the Diagnostic and Statistical Manual of Mental Disorders, which is the final authority on psychiatric conditions that qualify for insurance reimbursement, all define addiction as a chronic, relapsing brain disorder that, like diabetes and heart disease, is caused by a combination of behavioral, environmental and biological forces.
The prosecution’s argument is also somewhat beside the point, because it is clear that relapses are common in people struggling to overcome addiction, whether one considers it a disease or not; specialists say that most opioid addicts relapse an average of five to six times before achieving full sobriety.
It is fair to say, as prosecutors and several briefs filed in the case do, that people who suffer from substance abuse disorders are not wholly unable to choose to abstain from drug use. Most addicts do, after all, manage to refrain from using in any number of public places, in the course of any given day. But their ability to choose rationally and consistently is still impaired, by both brain changes caused by chronic substance use and the sheer force of addiction itself. “It’s not that they don’t have free will,” says Mark Kleiman, a professor of public policy at
Addicts can and do respond to incentives. But the balance of evidence suggests that carrots work far better than sticks, and that in any case, the particular stick of jail time thwarts the treatment process.
New York University. “It’s that they are exerting that will against such a colossal force.”
It’s also true that addicts can and do respond to incentives. But the balance of evidence suggests that carrots work far better than sticks, and that in any case, the particular stick of jail time thwarts the treatment process.
“Our patients are far less likely to talk honestly about their relapses and their struggles with recovery if they think it’s going to land them in jail,” says Sarah Coughlin, a social worker and addiction specialist in Charlestown, Mass. “It puts us in a tough spot, because it breeds mistrust.” It also breeds fear: As The Boston Globe reported, one woman committed suicide in the bathroom of a Lowell, Mass., drug court after she watched at least 23 of her 41 fellow probationers get sentenced to jail for relapses and other violations, and after she became convinced that she would soon be sentenced as well.
Of course, criminalizing relapse isn’t the only absurdity that exists at the intersection of drug addiction, criminal justice and public health. As a recent Times article explained, states across the country are enacting laws that allow for homicide charges against just about anyone connected to an overdose death, even if that person is also suffering from addiction.
The irony is both dark and profound: Only in death do drug users become victims. Until then, they are criminals.
In addition, a vast majority of American prisons deny opioid addicts access to medication-assisted therapy, or MAT, which uses Food and Drug Administration-approved medications that can relieve opioid cravings and withdrawal symptoms. Most addiction specialists say MAT is far and away the most effective treatment for opioid use disorder.
ANTI-MAT policies have a number of unconscionable effects. They mean that incarceration necessarily disrupts a promising treatment before it has time to work. They also force addicts who are in treatment but faced with incarceration to rapidly and dangerously taper off serious medications. And they increase the risk of post-incarceration overdose deaths. “A lot of the overdoses that lead to homicide charges occur upon release from jail,” says Josiah Rich, a Rhode Island doctor who treats addiction in the prison system. A study by Rich and his colleagues found that providing MAT to inmates suffering from addiction could reduce such deaths by more than 60 percent.
Policies that punish relapse with jail time and keep sufferers from proven treatments are part and parcel of a nearly 50-year war on drugs, predicated almost entirely on criminalization, that no reasonable person would say is working. It costs about $33,000 a year to imprison someone for a nonviolent drug offense and $6,000 to treat someone with MAT.
A ruling in Eldred’s favor would mark a positive step toward rethinking this strategy.
It would not, as some critics contend, necessitate freeing everyone with a diagnosis of a substance abuse disorder from facing any consequences for drug use. “It doesn’t have to be, and it shouldn’t be, an all-or-nothing proposition,” Kleiman says. “You still want to have consequences, but they should be fair.”
The outcome of the Eldred case won’t have much effect on Eldred herself. With the help of her lawyer, she was diverted into a treatment program and is now in remission and rebuilding her life. But a decision for Eldred could help ensure that other people suffering from addiction get the chance she did.