New bill could prevent jail time for relapse in Massachusetts

When a judge ordered Meghann Perry to a drug court program on a drug trafficking charge, she was addicted to heroin and weaning off of it with methadone. The court-ordered treatment program gave her the opportunity to care for her infant and earn a job working with horses, which she found deeply healing.

However, in a bad moment on her path to recovery, she smoked a joint with her neighbor. She failed her next drug screen and was forced to spend the weekend in jail. She lost her job and missed her first Mother’s Day with her daughter.

Now, a bill before the Massachusetts Legislature could prevent people with substance use disorder from being sent to jail only for relapsing. If the bill is enacted, people diagnosed with substance use disorder who are on probation or are pretrial would be diverted to treatment and prohibited from being drug-tested.

Massachusetts Senator Cindy Friedman, who is a the primary sponsor of the bill and chairwoman of the Joint Committee on Mental Health, Substance Use and Recovery, said drug-free court orders unfairly punish people for a normal condition of substance use disorder that is bound to appear on the path to recovery: relapse.

The bill comes after the July decision handed down by the Massachusetts Supreme Judicial Court in Commonwealth v. Eldred that affirmed mandating people remain drug-free is a valid condition of probation. The defendant, Julie Eldred, who was incarcerated after testing positive for fentanyl while on probation, argued that drug-free court orders amount to cruel and unusual punishment.

Lisa Newman-Polk, a lawyer for Eldred and former outpatient therapist who worked with people on probation and parole, said the threat of incarceration prevents people from speaking openly to their treatment providers. She said when people with substance use disorder relapse, that situation should be exclusively addressed by clinicians, not the courts, because punishment has proven to be ineffective in stemming substance use.

“The definition of addiction is continued use despite negative consequences,” Newman-Polk said. “It’s pretty nonsensical that we try to use negative consequences to fix something that has been shown not to be responsive to negative consequences.”

Perry, who is now an addiction recovery coach, said it is difficult for people suffering from addiction to find recovery on their first try, even if they’re threatened with jail time.

“For most of us, it takes multiple tries, and the way the system is set up now, it’s like each time that you struggle, you are penalized so profoundly that it puts you way back at the beginning again,” Perry said.

Being sent to jail for relapsing exacerbates existing trauma, Perry said, not just for the person suffering from substance use disorder, but also for family members. This collateral damage can make recovery even more difficult.

James Pingeon, litigation director at Prisoners’ Legal Services of Massachusetts, said the jail environment is also often not conducive to recovery because drug use is common and treatment resources are poor.

“Drugs are widespread in prisons in general, but they sort of concentrate [on] people who have substance use issues,” Pingeon said. “It’s hard to get clean when there’s so many people using all around you.”

Sally Satel, a psychiatrist and co-author of an amicus brief calling into question the legal, clinical and moral implications of the defense’s argument in the Eldred case, said that sanctions for relapsing are an effective behavioral therapy strategy, known as contingency management, that holds people accountable for their actions.

“I can’t tell how many patients I’ve known who are grateful for [drug-free court orders],” Satel said. “I’ve had a patient who specifically took a job where he’d be drug tested to have that sense of leverage over him.”

Stephen Morse, a professor of psychology and law in psychiatry at the University of Pennsylvania Law School and another co-author of the Eldred case amicus brief, wrote in an email that the argument for eliminating drug-free court orders is based on a scientifically and conceptually contested model of addiction.

He and his co-authors argue in their amicus brief that while drug use results in changes to the brain, this doesn’t mean that people suffering from addiction don’t have control over their behavior.

To Perry, incarceration was a traumatic, discouraging and dehumanizing experience that she said didn’t confront the source of her pain.

“Though being incarcerated made me take a hard look at myself and at my substance use disorder,” Perry said, “I never felt that it helped me address the underlying issue of why I struggled so much and never helped me address the fact that I have a disease called substance use disorder.”

CORRECTION: A previous version of this article incorrectly stated that Massachusetts Senator Cindy Friedman was a co-sponsor of the bill, when she is the primary sponsor of the bill. The current version reflects these changes.