Does the Punishment Fit the Crime in Drug Court?

Is it right to punish a drug addict who violates a drug court probation order to “remain drug free?’ Or should society recognize that the word addict, which we apply to the habit of drug use, because it essentially means “slave,” refers to a person with a severe substance use disorder—one that she cannot always control—and so make allowances for her relapse?

That is the root issue in a case now before the Massachusetts Supreme Judicial Court. Julie Eldred, addicted to opioids, pleaded guilty to theft of $250, which she used to buy dope. The judge ordered  probation requiring her to continue in rehab, pay back the money, and stay drug free. That’s a pretty routine order in most states.

Two weeks later her probation officer found she had tested positive for fentanyl, a pain medication that also relieves anxiety and depression. Illegal fentanyl is coming in from Mexico and China and offers a cheap and powerful high. Eldred was remanded to court on a violation of probation. She could go to jail for that.

Her lawyers persuaded the judge to report the case up to the appellate courts on the issue of whether the probation order was unconstitutional on the ground that jailing an addict for a slip up is a form of cruel and unusual punishment. They argue Eldred’s relapse was out of her control and sentencing her to jail would be punishment for something she couldn’t help.

In a “friend of the court” brief, the Massachusetts’ Medical Society put it this way: “As a common – almost inevitable – feature of opioid use disorder, relapse should not be characterized or treated as an individual choice or failing and should not be the basis of incarceration. Indeed, most patients experience several recurrences before achieving complete abstinence, and a person can remain at increased risk of relapse for many years.”

The prosecution argues the law is fair under the Constitution, because even drug addicts retain a level of self-control and can quit using. For that reason, there was nothing wrong in ordering Eldred to “remain drug free” during her probation, and her violation was an intentional act justifying punishment.

Another “friend of the court” brief supports the prosecution’s argument. This brief was filed by treating specialists, scholars and scientists who argue that addicts are not helpless; research data supports the claim they retain sufficient control to respond positively to incentives such as the threat of jail time. They argue that addiction is not a disease of the brain like Alzheimer’s or schizophrenia. Recovery from those diseases or anything we think of as a disease is not a matter of patient choice. Substance disorders are different. Research, they point out, shows most addicts choose to quit their drug use and many do so even without rehab.

In an earlier blog I agreed with these brief-writers that addiction should not be called a disease of the brain. I have read their writings and found them persuasive. But, it does not follow from this conclusion that people with addiction should be treated in law the same as any other defendant who violates probation. Harvard psychology professor, Dr. Gene Heyman, is one of the brief’s signatories. In his book Addiction: a Disorder of Choice, he admits that quitting an addiction can be extremely hard and in some cases impossible. (Page 114) None of these experts suggests it is easy to avoid relapse. If it were we would not call it addiction.  And all of them agree that addiction involves a change in brain circuitry, which compromises self-control.

In their book Brainwashed, two of these experts, treating specialists Satel and Lilienfeld, note that  patients do not want to be addicted. They know it is self-destructive. If this is true, and I believe it is, how can we conclude that every case of relapse was within the patient’s control. The literature of addiction is clear that one with addiction, who believes she is hooked and that quitting is beyond her ability in the present, is a captive victim. She doesn’t want this disorder, but is trapped in her own distorted self-identity as a helpless drug user destined to continue using until the doctors heal her.

Hopefully she will in time learn otherwise, but data showing the successes of others in quitting should be legally irrelevant in cases like  Eldred’s. Each of our brains is wired differently.The brain region called the dorsal striatum imprints impulses and routines in all brains, but it is an unconscious part of the brain that makes no thoughtful judgment. It takes on imprints based on the individual life experiences. It is stimulated by neurotransmitters such as dopamine, which initiate habitual coping behaviors deeply ingrained there. In the case of drugs,the addict has learned to cope with stress by taking the drug, so that when anxiety is lighted up and craving starts, taking the drug is the dominating incentive. The prefrontal cortex where thoughtful judgment and self-regulation reside may vary from one person to the next as to its health and ability. For the addict, it is not likely functioning very well at all and can be overpowered by the striatum and the striatum’s motivation element, the nucleus acumbens.

This is an over-simplification of what goes on in human heads, but the point is that for the relapsing addict there is a biological chain of events, in which under some circumstances, the addict’s control is just not strong enough to over-rule the automatic operation of the unthinking regions of the brain. Taking a drug is not completely involuntary, but for Eldred it may have been darn close to it.

I hope Eldred’s attorneys are able to make this point to the Massachusetts high court and that the Court seriously considers the question:  Is this a person we should consider it fitting to put in jail for relapse? Does the severe punishment of jail time fit the “crime” committed? I don’t think so. What do you think?


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