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Can judges force defendants with drug addictions to stay clean as part of probation?

July 17, 2018

Can judges force defendants with drug addictions to stay clean as part of probation? A Q&A with Prof. Stephen Morse

This month the Massachusetts Supreme Judicial Court (SJC) decided a case that had potentially far-reaching implications for the criminal justice system, Commonwealth v. Eldred. The Court ruled unanimously that the sentencing judge did not abuse her discretion by imposing on the addicted probationer the common probation conditions that she remain drug-free and submit to random drug testing. They also ruled that the sentencing judge acted properly in finding that the probationer’s drug use was a “willful” violation of the conditions of her probation. 

Stephen Morse, the Ferdinand Wakeman Hubbell Professor of Law, Professor of Psychology and Law in Psychiatry, and Associate Director of Penn’s Center for Neuroscience & Society, co-authored and filed an amicus brief on behalf of the plaintiffs. In the brief Morse and his co-authors assert, “This case has profound criminal justice implications and should not be decided on the basis of highly contested, evolving concepts of science.”

Professor Morse spoke with Penn Law’s Office of Communications after the Court’s decision was announced.

Penn Law (PL):  Briefly, what was the case about, and what position did your amicus brief outline?

Stephen Morse (SM):  The case involved whether it was constitutional to impose as a condition of probation that a drug-addicted probationer remain drug-free and to detain her in custody if she failed to stay clean. The petitioner, the defendant in this case, had agreed in writing to stay drug-free and to submit to  random testing. Eleven days after she was put on probation, during a random drug test, she tested positive for fentanyl, an opioid.

There was no in-patient treatment bed available for her so the judge remanded Ms. Eldred to custody for about 10 days until an in-patient treatment bed was found. She later claimed that detaining her for a condition she was helpless to prevent – relapsing into drug use – was unconstitutional. The Supreme Judicial Court of MA agreed to hear the case. I wrote and submitted an amicus brief with three co-authors, addiction psychiatrist Sally Satel (American Enterprise Institute and Yale department of psychiatry) and two psychologists who are addiction experts, Scott Lilienfeld (Emory University) and Gene Heyman (Boston College.)

We argued that on scientific grounds, there was not good reason to accept the defendant’s claim, because most drug addicts do retain the ability not to use; that addicts do respond to incentives and to the possibility of going to prison if they fail a drug test; and that a decision establishing a constitutional defense of addiction would be legally dangerous.  

PL:  Did the SJC’s decision directly address what you argued in your amicus brief?

SM:  No, in fact, the decision was very narrow, it did not address any of the scientific or philosophical issues about the nature of addiction, or whether people who are addicts have the ability to abstain – except for one footnote which said there was not a consensus in the scientific and clinical community about the nature of addiction. It recognized and acknowledged there is substantial disagreement.

PLThe Court stated the defendant’s claims about addiction were based onscience that was not tested.”

SM:  Yes, not tested in the following sense, and here is the narrowest possible reading of the case: The Court was at pains to say that there had been no real airing of the scientific issues in the lower court [prior to the case being heard in the SJC]. The lower court was faced with a number of affidavits from the defendant’s supporters, who claimed that she could not help but relapse because she suffered from the disease of substance use disorder (addiction). But as the SJC said, the trial judge didn’t have to accept the validity of those affidavits as there was no full adversarial testing of the science.

PLWhere are we in terms of the body of scientific knowledge about addiction, substance use disorder?

SM:  We are at a contested point. There is no doubt whatsoever that persistent drug use will change the brain. Everyone is in agreement about that.  But all experience, especially repetitive experience, changes the brain. The fact that brain changes occur does not mean the person suffers from a disease. And it doesn’t mean that people can’t help themselves when their brains change in those ways.

Since the late 1990s, the National Institute of Drug Abuse (NIDA), which is the leading funder of addiction research in the U.S., has taken the position that addiction is a chronic and relapsing brain disease. But as advocates for that model have conceded publicly, the reason they did that was because if you call something a disease, it’s much easier to obtain funding for it. In fact, the disease model of addiction and whether or not addicts can abstain once addicted are contested, but the best evidence suggests addiction is not a chronic and relapsing brain disease. The majority of addicts – and in some studies a supermajority – quit on their own without treatment. Studies of relapse are done on addicts who are in treatment, not a random sample of addicts.

These are points we made in the brief, but because the Court ruled on very narrow grounds, it didn’t have to address these issues. In a future case, if a petitioner tries to raise these questions of science and philosophy at the trial level, and there is a full adversarial hearing of these contested issues we raise in our brief, then the SJC or a court in another state will have to address these issues head-on.

PLIn the wake of this decision, where do we go from here, and how should this impact our laws?

SM:  First, a word about the term, “substance use disorder:” That assumes it is a disorder. Certainly, the American Psychiatric Association thinks it is, NIDA thinks it is, and for what it’s worth, I think it is. But using the word addiction is much more descriptive and less question-begging. Experts in the field practically and clinically define addiction as the persistent seeking and using of substances, especially despite adverse consequences. It’s a behavioral disorder, not a brain disorder. Again, undoubtedly the brain changes as a result.

The question is this: In terms of public policy, a state legislature or Congress might decide after careful consideration that under certain conditions being addicted would be a defense, to crime, to revocation of probation, and so on. The problem is it would be based on science that is contested, and it would cause extensive ripple effects in criminal law. If the Court, however, came up with a constitutional defense, it would be tying the hands of the legislature as it tries to deal with the problems of the opioid epidemic and drug use generally.

Many people thought this decision would be a wedge toward the decriminalization of drugs. I’m a proponent of decriminalization, but I don’t think it should be done by a constitutional criminal law defense. In addition, if the Court had held that you can’t revoke someone’s probation for failing to stay clean because the probationer can’t help but use, that would gut much of criminal justice’s current approach to the problem of drug use.

PLCould you describe how you view your scholarship, and your role as a scholar, in terms of engagement in law and policy issues?

SM:  My view is that virtually all law professors’ scholarship should have normative impact. We try our best to be dispassionate, logical, and to go where the evidence takes us, but ultimately as law professors we care about how the world works and how to make it better. All my scholarship should have some public policy payoff. I’m always recommending to a decision-maker – whether it’s a judge, a legislature, or administrative body – “Here’s what I think you ought to do and here’s why.”  I try to make the best arguments for my recommendations using the pertinent evidence and logic.

PLHas an issue like this come up elsewhere in case law?

SM:  One of the issues our brief discusses is that in 1968 the U.S. Supreme Court decided, Powell v. Texas, a case that raised very similar issues to the present case. The issue in that case was whether the defendant, Powell, could be criminally blamed and punished for being drunk in public when there was no doubt whatsoever that he was a chronic alcoholic, and the medical evidence in support of Powell suggested that being drunk in public was a compulsion symptomatic of his disease of alcoholism. Justice Marshall’s plurality opinion wrote that holding for Powell would go too far based on too little evidence, and rejected establishing a one-size-fits-all constitutional compulsion doctrine that was not well-understood and that would apply to all jurisdictions. He thought that the legal response to addiction should be left to the laboratories of the states.

The advocates for the probationer in the case just decided in the SJC essentially claimed that the science was now sufficiently advanced to justify a court adopting a one-size-fits-all constitutional defense. I think that Justice Marshall was right in 1968 and that his clinical and legal reasons are still valid. Addiction and its consequences are still contested and the criminal justice implications are unknown.