If, say, you were the type of person to leaf through new legislation filed in the State House, you might not even stifle a yawn as you perused a bill “to make certain changes to references in the banking laws” or one “relative to the excise tax on marine vessels.”
But, standing in a state that has suffered from a scourge of opioid overdoses, your eyes might stop when you saw this: “An Act to decriminalize being in the presence of heroin.”
State Senator James B. Eldridge, an Acton Democrat, one of the chamber’s most liberal members and an advocate of criminal justice reform, filed legislation this year that would repeal a law that makes it illegal to be knowingly present at a place where heroin is kept.
Eldridge called the law on the books “very troubling,” said it dates to the 1970s, and explained his proposal is rooted in his belief that people are responsible for their own actions, not those of someone else.
“What’s particularly troublesome about this law is that it literally makes it a [crime] to be in the presence of heroin,” Eldridge said in a recent phone interview. “You’re not using heroin, you’re not dealing it, you just happen to be there.”
Eldridge said the proposal is part of his effort to change laws and allow for more non-violent drug offenders to get treatment rather than go to to jail.
So has there been a rash of prosecutions of people under this statute? Eldridge was not sure, but he said it is a common-sense idea to repeal it.
And it appears he’s not the only one who thinks so. Three more Democrats, state Senators William N. Brownsberger of Belmont, Jason M. Lewis of Winchester, and Patricia D. Jehlen of Somerville, are co-sponsors.
A summary of the legislation provided by Eldridge’s office said under Massachusetts law “it is illegal to be in the knowing presence of heroin and no other drug.” It also said “repealing this section of the law would mean that innocent bystanders cannot be arrested for being in the wrong place at the wrong time.”
But former Middlesex district attorney Gerard T. Leone Jr. said there is a reason the law is on the books, it can be a useful tool for law enforcement and society, and the idea that the statute is primarily aimed at innocent bystanders is not quite right.
Leone recalled, years ago, before he was DA, prosecuting “a significant heroin trafficker” who was dealing drugs out of an apartment in Lowell that the dealer shared with his girlfriend and her young children.
He said the girlfriend, who knew of the drug dealing and was getting a cut of the drug proceeds, was initially charged with trafficking in heroin. Leone said he did not want to prosecute her under a statute that had a mandatory minimum sentence. But he did want her to be held accountable for her actions, including knowingly sharing in the proceeds of the drug dealing, and creating an unsafe environment for her children.
Leone said he discussed the case with his supervisor, and they agreed to charge the girlfriend with knowingly being in the presence of heroin, allowing for “accountability and remediation, but no incarceration nor significant criminal record.”
That, he said, allowed for state agencies to help the children and their living situation in a “remedial way without taking their mother away.”
Looking back, he said it was “a good, creative and constructive use” of prosecutorial discretion and that law.
Joanne Peterson, executive director of Learn to Cope, which offers support to families affected by addiction, said she was of two minds about repealing the law.
“I do feel if someone knows there is heroin in the home, and they allow it, then they are contributing to the problem,” she said in an e-mail. “Then again, sometimes families are held hostage by [a] person’s addiction because they don’t know where to turn or what to do.”