Sometimes it makes sense to jail addicts

Proposed legislation, however, would prohibit incarceration

NO SENSIBLE PERSON wants to “punish addiction” or needlessly imprison addicts. But this is precisely what some accuse the criminal justice system of doing when courts incarcerate addicted criminals who violate their condition of probation or parole by returning to drugs.
In a recent editorial, the New York Times claimed that relapsing shouldn’t be a crime because addiction is a disease. The Philadelphia Inquirer similarly referred to the practice in a huge headline as “punishing addiction.”
The threat of incarceration as an incentive for the addict to remain substance free is a nation-wide criminal justice practice that affects thousands of addicts and is endorsed by the National Association of Drug Court Professionals. But pending legislation in the Commonwealth would limit judges’ options as they respond to addicted offenders who violate their condition of release by testing positive for substances. If passed, judges would categorically be prohibited from incarcerating the addict and must instead order more treatment, even in cases in which incarceration might be therapeutically helpful. Drug testing would be limited to four times per month.
There is an interesting back story to this unique legislation. It addresses the same issue as a 2018 Massachusetts court case, Commonwealth v. Eldred, which received national attention. In Eldred, the Supreme Judicial Court was asked to rule that incarcerating Eldred for violating her probation condition of remaining drug-free was an unconstitutional imposition of cruel and unusual punishment. The rationale was that her resumption of substance use (termed “relapse” by advocates) is allegedly a symptom of the disease of substance use disorder (roughly equivalent to “addiction”).  The court unanimously rejected this claim in a decision that reflected admirable constitutional reticence.
But proponents of this approach now hope to achieve in the Legislature what the court denied them. Although the main goals of the legislation are laudable—enhancing public safety, permitting treatment to continue and succeed, and avoiding unnecessary incarceration and privacy intrusions—the categorical prohibition and limits are unwise.
The Legislature is the appropriate body to make sweeping changes in drug policy, but the scientific and clinical premises that underlie the new proposal are flawed. The legislation is based roughly on the pervasive view that addiction is typically a chronic and relapsing brain disease and that addicts are mostly helpless to avoid relapsing. But despite the claims of the National Institute of Drug Abuse, the nation’s primary funder of addiction research, and others in the field, this position is scientifically controversial at best and wrong at worst.
The primary sign of addiction is persistent seeking and using of substances, often with disastrous consequences. If a person is not persistently seeking and using, he or she is not addicted. Seeking and using are human actions, not mechanisms, like the anatomical or physiological changes caused by an underlying biophysical pathology.
How the extremely complex and usually dysfunctional condition of addiction should be understood and addressed is not firmly established scientifically, clinically, or conceptually. Addiction is not a medical disease like any other, although it may share some features with other diseases.
Seeking and using, like all human actions, respond to incentives, such as rewards and punishments. Research demonstrates that use by addicts varies with price changes. Further, many effective addiction treatment programs hinge on the efficacy of sanctions.
Human actions can contribute to making some diseases better or worse, but the underlying pathological process is not a human action, nor does it respond to potential punishments or rewards. Cancer does not respond to threats that patients will be forced to undergo chemotherapy unless their cancer improves. Nor does Alzheimer’s disease respond to incentives to improve memory. The commonly accepted analogy of addiction to most physical illnesses is flawed.
Data indicate that after some failed attempts, most addicts stop using without professional intervention, despite the changes in the brain caused by persistent use. Addicts tend to quit, often with the help of family, friends, and others, when the incentives are strong enough. Addiction can be an exceedingly difficult habit to break, and some addicts never seem to escape the cycle of repeated substance use despite concerted effort. But considering addiction as a chronic and relapsing brain disease is woefully incomplete and misleading.
The existence of brain changes in addiction has led some to conclude that the action of using drugs must be a symptom of the disease. This reasoning is logically confused. All human experience, including reading this article, changes the brain. Brain changes do not mean that associated mental or behavioral changes are symptoms. Chronic use of certain substances can sometimes damage the brain, but such damage does not eradicate the capacity to choose, including the choice to quit.
Despite the compelling scientific and conceptual evidence that addiction is not best regarded as a chronic and relapsing disease, the National Institute of Drug Abuse continues to insist on this characterization. One cannot be sure why, but the history suggests that the institute’s virtually complete medicalization of addiction was a response to Congress’ greater willingness to fund research on medical rather than on behavioral conditions. The institute’s approach, although presumably well-meaning, has hindered much promising research and undermined addicts’ ability to help themselves.
How should legislatures and judges respond to the uncertainties about addiction? Decision makers must retain the flexibility to respond appropriately in individual cases. Many addicts who violate probation conditions by using may not need potential sanctions to help them stop and they should of course not be incarcerated  In contrast, others may require sanctions, either initially or after repeated treatment failures. The legislation assumes that repeated treatment without the possibility of sanctions is more likely to succeed than other forms of treatment, but this assumption is not backed by rigorous evidence. Some addicts may need testing more frequently than four times a month to ensure that they stay drug-free.
The Legislature’s one-size-fits-all approach fails to recognize the marked differences among addicts. The approach will almost surely encourage some addicts to “game the system” and promote the erroneous view that addicts are mostly helpless to refrain from substance use.
Expectations are powerful influences on behavior. As those who treat addicts know, it is rarely if ever helpful to blame addicts, but it is crucial to encourage them to exercise their capacity to control their dysfunctional behavior.
Prohibiting judges from using incarceration in appropriate cases may also have negative unintended consequences. Judges may be far more hesitant to grant release if they cannot revoke it. Prosecutors may challenge release more strenuously or charge differently if incarceration isn’t available. Although motivated by good intentions, this legislation may disadvantage addicted criminals as a class and may especially harm those who might ultimately succeed if the threat of incarceration is one available tool for the criminal justice system to employ.
The pending legislation might have broader implications. If it is wrong to punish addicted parolees and probationers for possessing and using in violation of their release conditions because they are helpless to avoid using, it is difficult to escape the conclusion that it is also wrong for the Legislature to criminalize possession and use of drugs when these crimes are typically committed by addicts. Any steps that might lead to such a wide decriminalizing change in criminal law should be approached with extreme caution.
Instead of prohibiting sanctions, which are a standard feature of successful addiction treatment programs, judges must be allowed to engage in careful, individualized decision- making. Judges should order incarceration if and only to the extent that this seems necessary, according to a totality of the circumstances test that would focus on the individual addict’s history and needs, and the interests of the community (some addicts will commit more crimes or harm themselves if left free).
Massachusetts, like all other jurisdictions, needs more secure, treatment facilities for those addicts who require close supervision and are at risk of being harmed by criminal justice incarceration. Indeed, that was the preferred response for Eldred, but there was no bed available. As soon as a treatment bed became available, she was released from prison and sent to the facility.
Judges already have the power to act as we suggest. The Massachusetts Legislature should provide the funds for adequate drug treatment facilities and programs in the community and in jail and prison. It should not tie the hands of the criminal justice system.
Stephen J. Morse is professor of law and professor of psychology and law in psychiatry at the University of Pennsylvania. Scott O. Lilienfeld is Samuel Candler Dobbs Professor of Psychology at Emory University in Atlanta and the editor-in-chief of the journal Clinical Psychological Science. Together with Gene Heyman and Sally Satel, they were authors of an amicus, friend-of-the-court brief on behalf of the Commonwealth in the Eldred case.