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If addiction is a disease, why does the probation system treat relapses as a crime?

The revolving door of court-treatment-prison has to stop.

Andrea Macone, who works for the Bureau of Substance Addiction Services, helped to plant some of the 20,000 purple flags in the Common that commemorate Overdose Awareness Day and kick off Recovery Month on Aug. 29, 2022. The purple flags represent the lives lost to overdose in Massachusetts over the past 10 years.Jessica Rinaldi/Globe Staff

Someone commits a petty crime — theft, say — to feed an addiction and is put on probation. The judge orders them into treatment and says not to take drugs or drink alcohol.

But kicking a drug habit isn’t something that people with substance use disorder just do. It’s a medical intervention. Success isn’t guaranteed. Relapses happen.

The question for the state should be, is it really appropriate to imprison probationers if they experience a relapse but are otherwise obeying the terms of their probation and staying out of trouble? At the least, judges and the probation system need to embrace a flexible approach that recognizes the difference between a relapse that doesn’t truly endanger others — and one that does.


To be clear, it’s perfectly appropriate to jail people on probation who commit another crime. But by itself, relapsing into an alcohol or drug addiction is not illegal and may not pose a threat to anyone else.

“The courts regularly order people to drug treatment as a condition of probation, but also to be drug-free, and then, if they relapse, incarcerate them as punishment for violating the drug-free condition,” explained attorney Lisa Newman-Polk. “Sometimes judges use their discretion and choose not to incarcerate a person for a relapse, but the threat of incarceration is always there, which is extremely damaging for people who struggle with addiction.”

Newman-Polk challenged the practice on behalf of a client in a case heard by the Supreme Judicial Court in 2018 in which she argued “Punishing relapse is ‘clinically contradicted.’ As this case makes clear, it is also morally indefensible.”

The court rejected the argument, taking more than nine months to do so. Justice David Lowy wrote, “Judges cannot ignore the fact that relapse is dangerous for the person who may be in the throes of addiction and, often times, for the community in which that person lives.” He also noted that in cases involving relapses, “judges are faced with difficult decisions that are especially unpalatable.”


Last week, a decade after the mental health profession reframed the national debate around addiction as “substance use disorder” — a treatable disease — the SJC issued new standards to help sort through those unpalatable decisions. The new guidelines are for judges and other court personnel in dealing with those diagnosed with the disorder who come before them. It is the first change in its guidelines since 1998 and includes a recognition that “Recurrence of substance use is common, and is best approached as an opportunity to reset treatment and recovery planning and goals.”

The standards aim to provide “flexibility” for judges and to encourage continuity of treatment, but also note that “sometimes it is necessary for the judge to revoke probation and sentence a defendant to incarceration to protect public safety.”

How that will work day in and day out in the courtroom — there is an education component for all court personnel — is still anyone’s guess.

But for the sake of people with addiction, the system needs to do more to avoid incarcerations that aren’t necessary to protect the community — and which can do needless harm.

The subject of that 2018 case, Julie Eldred, had been placed on probation in 2016 after stealing jewelry to pay for drugs. In a filmed interview given several years later for the Institute for Innovation in Prosecution, she talked about her history of drug use over more than a decade, starting at the age of 14, and her attempts at rehab until one “clicked.”


She recalls the day a judge in Drug Court held in Concord crumpled up a note she had written before sending her off to the state prison in Framingham for several months.

“Being in jail does not stop drugs or overdoses,” she added.

But it usually stops treatment.

And even as a recent state Department of Correction policy aims at some continuity of care, “A correctional environment is not one that fosters recovery,” Deborah Goldfarb, of Boston Medical Center’s Grayken Center for Addiction, said at a recent briefing for legislators. “And not only were folks not receiving appropriate treatment in custody, they are ripped away from any treatment connections they have.”

“Addiction itself is not a crime,” Todd Kerensky, medical director of addiction medicine at South Shore Hospital, told that same session. “Rather addiction is a chronic-relapsing brain disease.”

He pleaded with legislators to not continue to support a system that “asks judges and probation officers to be pseudo doctors.”

Kerensky, Goldfarb, and Newman-Polk had come to speak in favor of legislation, filed by Senator Cindy Friedman and Representative Ruth Balser, aimed at changing that dynamic. The bill would mandate that if someone on probation is diagnosed with substance use disorder and is in treatment “a positive drug or alcohol test or other indicator of relapse shall not be considered a violation of the conditions of probation.”


The bill would not in any way prohibit the reincarceration of those who committed another crime while on probation. Rather, it seeks to keep people out of prison when there is no public-safety reason for them to be there — and when jailing them creates a serious risk.

“Incarcerating people who have had a lapse is putting the person into a system that we know is placing them at higher risk for further decompensation, overdose, and death,” Kerensky testified. “It is well accepted medical fact that periods of incarceration are associated with higher risk for overdose and death post-release.”

Newman-Polk’s unsuccessful battle before the state’s highest court was waged more than five years ago. Times change. The science behind substance use disorder continues to evolve, leading to new treatment strategies.

And yet that is still at the heart of how the state’s probation system operates. That has to change — and it can change. If changing lives with treatment is the point — and it should be — this legislation is the way to get there.

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