Massachusetts High Court Rules Judges Can Require Sobriety as Part of Probation in Commonwealth v. EldredPosted: November 6, 2018
by Martha Coakley and Rachel Hutchinson
On July 16, 2018, the Massachusetts Supreme Judicial Court unanimously ruled in Commonwealth v. Eldred, 480 Mass. 90 (2018) that judges can require individuals with substance use disorders to remain drug-free as a condition of probation. Although the Court stressed that judges should consider the challenges of addiction, the Court nevertheless found that judges must also “have the authority to detain a defendant” who has violated probation by using drugs. Id. at 99. It appears that the SJC is the first state supreme court to reach and decide this issue.
I. The Addiction Debate
Remaining drug-free is an almost universal requirement of probation. Many courts, including specialty courts such as drug courts that take a public health approach to substance abuse, require offenders to stay clean, and respond to relapses with sanctions ranging from warnings to jail time. But as the opioid crisis has swept the nation, many have begun to question the central role that courts play in battles with substance abuse.
Eldred cut to the heart of this growing debate. The defendant, Julie Eldred, argued that requiring her to remain drug-free as a condition of probation violated her constitutional rights. According to Eldred, addiction is a chronic brain disease that interferes with one’s ability to abstain from drugs. Eldred argued that punishing addicts like herself for a relapse punishes them for something over which they have no control and negates willfulness. The prosecution disagreed, arguing that addiction is a condition that ranges in intensity and is responsive to penalties and rewards. According to the prosecution, sanctions like jail time are an important tool that judges can use to encourage recovery and promote public safety.
Many of the Eldred amici weighed in on the science of addiction, focusing on the degree of control addicted individuals have over their drug use. For instance, the Massachusetts Medical Society argued that relapse was a symptom of a disease that must be treated, not punished. Other amici, however, pointed out that the scientific community has not yet reached consensus about whether addiction leaves someone powerless over their drug use. The National Association of Drug Court Professionals noted that supervision and drug testing combined with graduated sanctions helps keep individuals in recovery, and cautioned the SJC against allowing “any particular theory of addiction to influence its decision.”
II. The Eldred Decision
Eldred arose out of the 10-day incarceration of Julie Eldred after she failed a court-ordered drug test. Eldred, who had suffered from substance use disorder since age 15, had originally been convicted of larceny for stealing jewelry to support her addiction. Eldred’s probation required her to enroll in outpatient treatment, submit to random drug screenings, and remain drug-free. Although Eldred originally complied with her probation, enrolling in a program and starting on a course of Suboxone, she relapsed shortly thereafter and tested positive for fentanyl, a powerful opioid. Because no inpatient drug treatment facilities had open spots, the judge overseeing Eldred’s detention hearing ordered her held in custody until one became available 10 days later. Eldred, 480 Mass. at 93.
At the full hearing on her probation violation, Eldred argued that this 10-day detention was unlawful because her substance use disorder “rendered her incapable of remaining drug free.” Id. at 92. The judge disagreed, finding that Eldred had violated her probation, but nevertheless granted Eldred’s motion to report the question regarding the lawfulness of the drug-free condition to the SJC. The SJC found that the question was improperly reported, but agreed to consider it nonetheless because it presented “issues of significant magnitude.” Id. at 94.
Although the parties and amici focused their arguments on the addiction debate, the SJC declined to weigh in on the science. Instead, the Eldred decision focused on a judge’s role in setting probation conditions. Based on longstanding precedent, the SJC decided that judges may continue to require individuals to remain drug-free while on probation, and may detain individuals who violate that condition until their probation hearing.
The SJC framed the reported question in three parts. First, when someone who is addicted to drugs commits a crime, may a judge require her to remain drug-free as a condition of probation? Second, if an individual violates the drug-free condition, can she be subject to probation revocation proceedings? Third, may she be held in custody while awaiting admission to an inpatient treatment facility? Id. at 94.
The SJC answered all three questions in the affirmative. While the Court noted that judges who deal with those who suffer from substance use disorder should act with “flexibility, sensitivity, and compassion,” the Court ruled that judges “must have the authority to detain a defendant facing a probation violation based on illicit drug use.” Id. at 95, 99. The Court disagreed with Eldred that the judge’s decision to detain her constituted a punishment for her relapse. Rather, the Court likened it to a bail decision, since no final determination on whether Eldred had violated her probation had been made. The Court noted that the judge simply sought to detain Eldred until an inpatient facility became available. It also held that “although the appellate record before the court was inadequate to determine whether SUD affects the brain in such a way that certain individuals cannot control their drug use,” the trial court did not abuse its discretion in concluding that there was a wilful violation of the defendant’s probation. Id. at 104.
Finally, although the SJC agreed with Eldred that substance use disorder itself cannot be criminalized, it pointed out that “relapse is dangerous,” both for addicted individuals and the community in which they live. Id. at 99. The Court noted that judges, who are on the front lines of the opioid epidemic, “face unresolved and constantly changing societal issues with little notice and, in many situations, without the benefit of precedential guidance.” Id. The Court characterized these decisions as “especially unpalatable” when an offender is addicted to drugs. Id. While the Court, pointing to its own Standards on Substance Abuse, acknowledged that relapse is an accepted part of recovery, the Court stressed that relapse was dangerous nonetheless, and ruled that judges must continue to have the authority to detain defendants after a relapse that violates their probationary terms.
III. Eldred’s Implications
Although Eldred maintained the status quo for judges dealing with addicted offenders, it is unlikely to be the final word on the subject. As the opioid epidemic grows, the way we view addition is changing. Even the Attorney General’s Office acknowledged in its briefing that “exclusively punitive responses to addiction … do not make us safer.” While the criminal justice system may be on the front lines of the crisis for now, that role may change as other jurisdictions, legislatures, agencies, and disciplines grapple with the same questions faced in Eldred.
Martha Coakley, the first female Attorney General of Massachusetts, served from 2007-2015. Her prior experience includes District Attorney of Middlesex County; Special Attorney, Boston Organized Crime Strike Force; and Resident Fellow, Harvard Institute of Politics, John F. Kennedy School of Government. Martha has been a national leader in consumer protection, and civil rights, among other areas. As an active member and then President of the Women’s Bar Association, Martha supported and participated in the §12S petition panel for young women needing counsel in Court. NAAG recognized her outstanding accomplishments in 2014 when she received the Kelley-Wyman Award, given annual to the AG who has done the most to achieve NAAG objectives, Martha graduated from Williams College and the Boston University School of Law. She is a Partner in Foley Hoag’s Administrative Department where she focuses on government and internal investigations, litigation, data privacy and security, and healthcare.
Rachel Hutchinson is an associate in the firm’s Administrative Law and Litigation departments, where she represents individual and corporate clients in a wide range of regulatory matters and civil disputes. Her practice focuses on regulatory compliance, government investigations, and white collar crime. Rachel also maintains a pro bono practice focused on civil rights and LGBT issues.
Voice of the Judiciary
Twenty years ago, then-Attorney General Janet Reno was instrumental in establishing the first drug court in the United States in Miami-Dade County, Florida. With financial support from the federal government, as well as technical assistance in the form of training for drug court teams, drug courts were established throughout the country. The judicial branch in many states systematically incorporated drug courts into their courts’ operations.
The situation was somewhat different in Massachusetts. Drug courts began where an individual judge undertook to join with an individual probation officer and other team members to start a drug court in a single court in the District and Boston Municipal Court Departments. There was no state-wide organized approach to setting up drug courts.
Meanwhile, the national drug court movement was expanding and refining its approach and purpose. Data collection was a key requirement of existing drug courts. As a result, successful strategies were identified and promulgated; ineffective approaches were eliminated or modified to improve results. The ten key components of drug courts were developed. From these components, a series of best practices were developed. The ultimate goal of drug courts was, and is, to break the cycle of substance-addicted individuals committing crimes, serving a sentence, committing a new crime, serving another sentence, and so on. The method of accomplishing this goal is to target high risk, high need defendants, sentence them to intensive probation supervision, mandate substance use disorder treatment, require frequent and random drug testing, and bring them before the same judge on a weekly or bi-weekly basis for support and accountability.
The data collected over the past twenty years has been subjected to meta-analysis. The evidence supports the conclusion that drug courts which target the correct participants, operate with a full team, conduct staffing, and impose appropriate sanctions and rewards, are successful in reducing recidivism.
What differentiates a drug court session from a regular criminal session in the district or municipal court? A drug court session utilizes a team approach to a targeted population of offenders. It requires intensive probation supervision, which includes mandatory substance use disorder treatment, frequent and random testing, and home visits. It enhances accountability by requiring weekly or bi-weekly court appearances before a single judge who directly interacts with the defendant and utilizes a system of graduated sanctions and incentives.
The proven success of drug courts nationally led to the creation of other specialty courts, including mental health courts, veterans’ treatment courts, prostitution courts, and homelessness courts. These courts target a specific population, and take certain components of the drug courts and apply them to the needs and circumstances of the targeted population. For example, a participant in a mental health session may be required to keep appointments with mental health providers, take prescribed medications, report on a weekly basis to probation, and be paired with a peer supporter in the community as conditions of participation in the mental health court session. Successful completion of the court results in a beneficial outcome of the criminal case, such as dismissal or reduction of the charges.
In 2013, the Massachusetts Trial Court adopted a strategic plan which outlines the Court’s goals for the next ten years. Key among its recommendations is the establishment of a cohesive approach to specialty courts. The Trial Court has defined specialty courts as follows:
Specialty courts are specialized court sessions which target individuals with underlying medical, mental health, substance use and other issues that contribute to these individuals coming before the court with greater frequency. Specialty court sessions promote improved outcomes which reduce recidivism and enhance public safety by integrating treatment and services with judicial case oversight and intensive court supervision.
The Trial Court’s strategic plan envisions that all residents will have access to appropriate specialty courts regardless of court jurisdiction, and that all high need and at-risk communities either have a specialty court or are part of a regionalized court resource model.
To this end, the Trial Court requested and received funding from the Legislature to establish new specialty courts. This funding includes allocations for probation officers and drug testing as well as funding for the Trial Court’s justice partners in the Bureau of Substance Abuse Services of the Department of Public Health, the Department of Mental Health, and the Department of Veterans Services. In the current fiscal year, new drug courts have opened or will open in the District Courts in Dudley, Lowell, Fall River, Brockton and in Taunton Juvenile Court. This will bring the total number of drug courts in Massachusetts to thirty-five. In addition, the total number of mental health court sessions will increase from five to seven, and two additional Veterans Treatment Courts will open. The Trial Court intends to request similar funding from the legislature for FY 2016 to add an equivalent number of specialty courts. The Trial Court’s ultimate goal is to double the number of specialty courts by 2017.
A key component of the expansion effort is training and technical assistance to judges, probation officers, and other justice partners. Utilizing funds from a Bureau of Justice Assistance grant, several state-wide trainings have occurred. Here, clinicians and treatment providers as well as judges, probation officers, and court staff learn the latest information concerning the science of addiction, mental illness, and brain functioning, modalities of treatment, and effective supervision techniques. The grant also provided the foundation for the establishment of a Center of Excellence for Specialty Courts.
Recently, the Trial Court has partnered with the University of Massachusetts Medical School to formalize the Trial Court’s Center of Excellence for Specialty Courts. The purpose of the Center of Excellence is to standardize proven best practices for the operation of specialty courts and to assist the Trial Court in a certification process for specialty courts. The Center of Excellence will also encourage innovative practices, support effective data collection to inform the development of best practices, and assist in ongoing training of specialty court staff and their partners.
The expansion of specialty courts throughout the Commonwealth reflects a recognition by the leadership of the Judicial Branch that the court system is called upon to address issues of mental illness, substance use disorder, and trauma in the context of criminal cases each day, and that public safety requires that the courts’ response to these issues be informed. As Chief Justice Gants said in his State of the Judiciary Address on October 16, 2014: “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism. And we need to ensure that our sentences are hand-crafted to accomplish that. This means harnessing the social science that can provide us guidance, taking advantage of the knowledge and experience of our judges and probation officers, and learning from the successes and failures of the Federal government and the other 49 states.”
The Honorable Mary Hogan Sullivan is the Director of Specialty Courts for the District Court Department of the Massachusetts Trial Court. She established the Norfolk County Veterans Treatment Court, the first of its kind in Massachusetts. Judge Sullivan was appointed to the bench in 2001 and currently presides in the Norfolk County Veteran’s Court.
Voice of the Judiciary
“For four months, I tried to kill myself every day,” Louis ‘Phil’ Theodore recounted to at the Lynn Drug Court graduation ceremony on October 22, 2014 reported by the Lynn Daily Item. “This drug court went to bat for me, they just never gave up. Today I can say I consider myself a citizen.”
The Massachusetts Trial Court has undertaken the initiative to expand the presence of drug courts throughout the state, consistent with the national trend toward evidence-based practices in the criminal justice system. The National Association of Drug Court Professionals indicated in 2010 that more research had been published on the effects of adult drug courts than virtually all other criminal justice programs combined. (Marlowe 2010). According to the United States Bureau of Justice Assistance, evaluation studies consistently show that while offenders are participating in adult drug courts, they are less likely to commit crime, and, consequently, states and localities save money on criminal justice system costs. (BJA citing Government Accountability Office, 2005; Huddleston, Marlowe, & Casebolt, 2008; Marlowe, 2010).
For the judges, clerks, probation officers, police officers, attorneys, and treatment providers who work in drug court sessions, these lofty aspirations are but a backdrop to the intense and daily struggles of the individuals who appear before them. As heroin and opiate overdoses reach epidemic proportions across Massachusetts, the drug courts have become a front line in fighting addiction. For those who work in drug court, drug court goes beyond preventing crime: it is a commitment to saving lives.
“When people first come into drug court, you see them at their worst. They don’t have anybody. They have stolen so much, and lied so much, and manipulated so much, they have burned every bridge they ever had. They are raw, on the street, selling themselves, stealing, living in cars, living in shelters, or lucky to be in jail,” observes Lynn District Court Probation Officer Kelley Montgomery, who has worked in the Lynn drug court for fifteen years. “In drug court they evolve into the person they could have been, had they not gotten into taking drugs in the first place.”
In the City of Lynn, Deputy Police Chief Leonard Desmarais believes that community policing is about fixing problems. “If you’re only working on the symptoms, you’re not fixing the problem. If someone is addicted to heroin, heroin is the most important thing in their life. They’ll commit crimes of opportunity, for which they can and should be arrested. But if we don’t get them off the heroin, we’re not addressing the root cause, and we’re not fixing the problem.” Drug courts in Massachusetts are targeted at intervening in the lives of defendants who have a significant, but non-violent, criminal history. One theory supporting drug court is that targeting resources at this select group of perpetrators will impact crime reduction over all.
“Terry came, and he came with help.” When a recent drug court graduate spoke to the Lynn Drug Court, he was referring to his own arrest by the Lynn Police Department and Lynn District Court Probation Officer Terence Ward. Drug courts have fostered partnerships between local police departments and local probation officers that have strengthened information sharing and warrant response. Probation Officer Terence Ward notes that working closely with the Lynn Police department positively impacts individual probationers, and ultimately lives. “Due to the rise of heroin use and overdoses in our community, the police and the probation department have come closer, to work in concert, to impact drug addicted people who most immediately need help.”
The Lynn Police Department has been an active partner in the Lynn drug court session, bringing important law enforcement resources to bear on integrating drug court participants back into the community, arresting probationers on drug court warrants, and providing treatment information to families and victims of overdoses. “The police are very proactive on this issue,” says Judge James LaMothe, the presiding justice of the Lynn drug court. Judge LaMothe describes a process in which Lynn police officers responding to overdoses takes steps to provide patients and families with information on local treatment and counseling services. An experienced narcotics detective is also a member of the drug court, to be “our eyes and ears on the street, to provide support for drug court participants in the community.”
Substance abuse treatment providers are also invited to drug court sessions, a practice that furthers information sharing goals and provides the court with input on available treatment options. Probation Officer Kelley Montgomery emphasizes the importance of working with treatment provides to develop treatment plans specific to each individual in drug court. “A treatment placement is not just about sticking someone in any bed. Drug court works as a team to find the best possible treatment match for each person. The best match can change over time. Treatment providers have [probation officers’] cell phones and email – there is constant communication.”
The multi-agency involvement in the Lynn drug court highlights issues central to drug court success – the integration of resources and knowledge. Judge LaMothe reflects, “drug court brings together people from all different perspectives – the defense attorneys, the district attorneys, the treatment providers, and law enforcement. Everyone understands the idea is to prevent recidivism. This unified systems approach is what makes drug court work.” Deputy Chief Desmarais sees drug court as an effort to prevent a vicious cycle. “We work hand in hand [with the drug court] because we’re dealing with the same population. If the drug court process is successful for someone, they won’t be an addict, and they’ll stop committing crimes.”
The drug court model adopted by the Massachusetts Trial Court is a post-dispositional model. After a defendant’s criminal case is disposed, usually by way of a guilty plea or a probation surrender, a defendant may be evaluated by the Probation Department for drug court eligibility. This process may be initiated by the defense attorney, but not exclusively. Often the presiding judge or probation officer will be familiar with the defendant and his or her history of addiction motivated crime, and will recommend a screening for drug court participation.
Melrose defense attorney Thomas Belmonte has been representing clients in the Cambridge District drug court for ten years. He indicates that success in drug court requires a level of commitment from the client to make sobriety a life priority. “Serving time doesn’t treat the underlying problem. That’s the reality. Drug court is not for everyone. The client has to express an interest in wanting to change their circumstances, deal with their addiction and their recidivism. A less structured probation doesn’t necessarily prevent a return to the criminal justice system. A highly structured program like drug court provides an opportunity more comprehensive in nature. Building life skills, sobriety skills, building a sense of responsibility – that’s developed through the residential treatment and counseling drug court offers.”
A defendant must enter into drug court voluntarily. The drug court model integrates treatment and services with judicial case oversight and intensive court supervision. What this means for individuals in drug court is a rigorous regimen of inpatient treatment, recovery home assignments, and eventual community re-entry. Accountability is central, with regular court appearances and drug screens. “The goal is not short term recovery. The goal is life-long freedom from addiction,” says Marie Burke, Drug Court Coordinator for the District Court. “People can stop using for short periods of time. But drug court is not just about staying clean. It addresses the underlying behaviors and emotions that lead people back to substance abuse. Drug court is about accountability and helping people to make the right choices in life.”
Attorney Belmonte, who takes drug court cases largely on a pro bono basis, emphasizes that drug court cases are very different for defense attorneys than other criminal matters. “These cases are in many ways tougher for a defense attorney than standard probation cases. The attorney spends a lot of time going over the client’s rights, and the court’s access to privileged information, which is necessary to get the best out of the drug court model. The process takes a lot of effort from defense counsel and from the drug court team. And to enter into drug court, there must be acknowledgement by the client that they want to take this step to make significant changes. Drug court is for clients who have a longer view – grasping concepts and building a safety network in their life, that’s paramount. Those are the folks who succeed in the long term.”
For those who work in drug courts, it is about the success stories. Judge LaMothe describes the impact that presiding over the Lynn drug court has had on him personally and professionally. “Drug abuse can rip a family apart. Addicts lie, steal, and completely tear apart the relationships they should hold most dear. Seeing family members invited to a drug court graduation can be the first time that a family is back together. When parents, children, or siblings say, ‘thank you, Judge, for saving this person’s life,’ I tell them, ‘it wasn’t me.’ I didn’t save anyone’s life. The participant did the work. They got themselves clean and sober. We gave them that chance, but they did the work.” Reflecting on the impact of a recent drug court graduation, Probation Officer Terence Ward states, “It is a road to recovery. Seeing someone who graduated a year ago, still clean and sober, come back to talk to other drug court graduates – that’s the reason why I continue to do what I do.”
Sarah Weyland Ellis is the Deputy General Counsel to the Administrative Office of the District Court. She is a graduate of Boston College Law School and Kenyon College.