Claire Foster Blog

A recent op-ed in The New York Times “challenges the practice of requiring people with substance use disorders to remain drug-free as a condition of probation for drug-related offenses, and of sending offenders to jail when they relapse.” Since substance use disorder is an illness, relapse should not be criminalized. Sick people need help, not jail time.

Other chronic, relapsing illnesses such as cancer, diabetes, and fibromyalgia are not punished the way addiction is. Another recent Times article explained how 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.” Yet, people with other illnesses are not penalized for their connection to tragic accidents.

Now, a new court case hopes to change the way that people with substance use disorder are treated by the criminal justice system. The case centers around Julie Eldred, a woman in Massachusetts who tested positive for fentanyl 11 days into serving her sentence for a larceny conviction. Part of Julie’s sentence was a zero-tolerance abstinence requirement. Ordering someone with substance use disorder to abstain from use is “tantamount to mandating a medical outcome.”

The op-ed says, “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.”

CriminalizingCriminalizing a relapse creates a massive obstacle for people with substance use disorder. Legal consequences, such as jail time, make it much less likely that someone will admit to a relapse or other related complication. Add to that the stress of incarceration, plus the stigma of addiction, and the results can be deadly.

“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.”

Although many people with substance use disorder are not completely at the mercy of their illness, “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.” Fear, shame, and lack of options for help compound the factors that create relapses and overdoses. Ironically, the same ‘tough love’ laws that are designed to beat people out of their mental illness worsen their conditions, and can actually make them sicker.

Mark Kleiman, a professor of public policy at New York University, said, “It’s not that [people with substance use disorder] don’t have free will. It’s that they are exerting that will against such a colossal force.”

The op-ed points out that relapses are common in people with substance use disorder: “specialists say that most opioid addicts relapse an average of five to six times before achieving full sobriety.” A positive urine test shouldn’t guarantee jail time. It’s a clear signal that the person needs peer recovery support or other help with their recovery.

Taking criminal justice out of addiction is not only humane. It would also ease a seriously overburdened system of courts, public defenders and district attorneys, police departments, jails, and prisons. Treating people with substance use disorder like people, rather than criminals, is a step closer to helping people recover.