Article: Massachusetts Top Court Okays Requiring Drug-Free Probation

Can a court make a probationer’s staying drug-free a condition of staying out of jail on probation, even if the probationer is already addicted? The top state court in Massachusetts recently answered that question with a resounding “yes,” rejecting a challenge claiming it was cruel and unusual punishment to stiffen probation terms for Julie Eldred, who had tested positive for drugs, and disappointing some advocates who had hoped the case might reshape that area of the law.

But the Massachusetts Supreme Judicial Court’s unanimous 27-page decision in Commonwealth v. Julie A. Eldred on July 16 rejected the claim that it was unconstitutional to require a drug addict to stay off drugs in order to stay on probation.

Already Drug-Dependent at an Early Age

Julie Eldred started using alcohol and marijuana at the age of 14. Ten years later, she had been diagnosed with a severe substance use disorder, and faced larceny charges for stealing jewelry from the home of a client whose dog she walked, and selling the jewelry to support her heroin habit.

Never having been in trouble with the law before, she got probation from the trial judge, on several conditions, including having to go to drug rehab, and stay drug-free while on probation, as verified by random drug testing.

Julie Eldred Received Medication-Assisted Treatment While on Probation

Although her outpatient rehab program prescribed buprenorphine (sold under the tradename Suboxone), a drug to fight opioid cravings, less than two weeks after starting the program, Eldred tested positive for fentanyl, the highly addictive synthetic opioid. Relapse into drug use is very common, even for patients have undergone complete detoxification for opioids; one study found a relapse rate of 88%.

Backing Eldred’s appeal of her further tightened probation terms (she was ordered to an in-patient rehab program) was a variety of medical, psychiatric and civil liberties groups, many of whom cited the 1962 U.S. Supreme Court case of Robinson v. California, which disallowed as unconstitutional a state law making it a crime to be have the status of being “addicted to use of narcotics.”

The defendant and some supporting groups argued advances in brain science showed persons with substance use disorder are unable to stay off drugs. So Julie Eldred was being punished, they argued, for having a brain disease leaving her unable to do something (refrain from drug use) which her terms of probation required her to do.

Since relapse was a predictable part of Julie Eldred’s recovery, they contended, it was unconstitutional to revise her probation and send her to jail until there was an opening for in-patient rehabilitation (which Eldred had initially rejected, but accepted after being jailed for ten days).

Massachusetts and some other advocates disputed that model of addiction, and argued judges considering probation terms needed the greatest possible flexibility to protect defendants and the public from the dangers of their conditions.

The top Massachusetts state court also ruled the Robinson case was not applicable, since Eldred’s case involved illegal actions, not merely a criminalized status. The decision did not reach the controversy over whether substance abuse disease removes a drug user’s free will (an argument very likely to continue being made elsewhere); instead, it found that every stage of the probation process had been properly handled and reflected legitimate state interests.