Massachusetts General Laws Chapter 123, Section 35 permits the court to involuntarily commit to an inpatient substance abuse treatment someone whose alcohol or drug use puts themselves or others at risk. Last week the Massachusetts ACLU, together with Prisoners’ Legal Services and the Center for Public Representation, filed a class action suit in US District Court in Boston challenging the constitutionality of sending women committed under Section 35 to state prison.

Melanie

Melanie grew up in a close-knit, working-class Boston family. When she had her first child, “The hospital messed up my C-section and left staples inside.” She developed a painful infection, and was prescribed Fentanyl, Percocet and Klonopin. Her second child also was delivered by C-section, and again there were complications. Six surgeries and many pain clinic sessions later, Melanie muses, “Maybe I was hooked on meds, but nothing touched the pain.” At about that time an acquaintance suggested heroin, which successfully quelled the agony while opening up whole new sets of challenges. A year or so later she moved out of the house she shared with her children and husband and moved in with her parents because she didn’t want her kids to see her high on drugs. Maintaining a close relationship with them, she shuttled back and forth between the two households nearly every day for a year or so.

Melanie’s parents desperately wanted to help but were out of their depth. Finally one day, after she called them from the police station in a neighboring town to tell them that she had been picked up for shoplifting at a local pharmacy, they discussed with the police and the judge the best course of action. Her parents and the judge decided that given the absence of a criminal record and the presence of a supportive family (and, I surmise, the fact that she and her family are white) the judge did not charge her with shoplifting. Rather, he civilly committed her under Section 35.

For the purposes of Section 35, a substance abuser or alcoholic is defined broadly and rather vaguely as a person who “chronically or habitually” uses controlled substances or alcohol to the extent that “such use substantially injures his health or substantially interferes with his social or economic functioning . . . or . . . he has lost the power of self-control over the use of [controlled substances or alcohol].” Petitions for civil commitments can be made by a relative, guardian, police officer, physician or court official, or one can petition for commitment on one’s own behalf. While the law requires that the court call for a psychological assessment, it is unclear what that assessment means. In any case, there is no trial, no due process, and no possibility for appeal.

What Melanie’s parents didn’t know is that under Massachusetts law, a person can be committed under Section 35 to prison if there is no space available at a licensed substance abuse treatment facility. Melanie’s parents thought they were doing the right thing. They thought Melanie would receive treatment for her addiction and maybe even for her chronic pain. They were shocked to see her handcuffed and led out of the courtroom. Sick and vomiting, she sat in a holding cell at the courthouse for a full day. And then she was shackled and put on the bus to MCI-Framingham, the medium security women’s prison where she spent the next month.

According to ACLU staff attorney Jessie Rossman, upon arrival at MCI-Framingham, women committed under Section 35 are strip-searched, deprived of their personal possessions, and issued a prison uniform and number. Then they “are sent to the medical unit for detox – what [the Department of Corrections] calls detox, which essentially is just you being given a bucket. They are given over-the-counter drugs like Tylenol and Tums,” but no medication such as methadone, Suboxone or Vivitrol which are frequently used to facilitate detox. After detoxification in the medical unit, civilly committed women are sent to “The Mod”, a large room with bunk beds where women being held pre-trial are imprisoned. Unlike other prisoners they cannot visit the library, pray at the chapel, or participate in prison programs. Civilly committed women at MCI-Framingham cannot even access the addiction treatment programs available to sentenced prisoners. Ironically, the original reason for this policy seems to have been to discourage MCI to be used as a treatment facility.

“If you build it they will come”

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The way out of this mess suggested by nearly everyone – judges, prison officials, public health officials, legislators, Governor Deval Patrick and most advocacy groups — is to fund and allocate more substance abuse treatment “beds” (that’s the term that is used) in non-prison facilities.

On the face of it this argument makes sense, but a bit of digging through the record indicates otherwise.

Massachusetts opened the Women’s Addiction Treatment Center in 2007 in order to provide an appropriate treatment setting for women committed under Section 35. In a classic instance of “if you build it they will come,” the Massachusetts Department of Public Health reported in a February 12, 2014 hearing held at the Massachusetts State House that the number of women committed through Section 35 dramatically increased over the following years, growing from 347 in FY 2006 to 1591 in FY 2012. At the same hearing, Department of Correction Commissioner Luis S. Spencer reported that the number of women committed to MCI-Framingham also continued to increase, going up from 221 women in 2007 to 310 women in 2012.

Spencer explained that many of the people committed under Section 35 are not only dealing with addictions but also with other mental health challenges as well as physical health problems including diabetes, heart disease, COPD, liver diseases, infectious diseases, Hepatitis C and dementia. Many have long histories of sexual victimization, self-injurious behavior, and psychiatric treatment. Brian Sylvester of the Massachusetts Department of Public Health estimates that 20% of those committed through Section 35 do not meet the criteria for commitment; rather, they are committed because no one knows where else to send them. People self-commit and are committed by others because there are insufficient spaces in detoxification facilities, because their insurance will not pay for detoxification or rehabilitation or even because they cannot afford housing. According to Sylvester, “Section 35 has become the catch-all for gaps in the system: substance abuse, mental health, criminal justice and medical.”

It is a travesty that drug users who have not been arrested, arraigned, tried or sentenced are sent to prison. And it is a travesty that needs to be seen in the broader context of local and national policies. The National Institute on Drug Abuse states in its Principles of Drug Addiction Treatment, “To be effective, treatment must address the individual’s drug abuse and any associated medical, psychological, social, vocational, and legal problems.” But how (and the Institute does not ask this) can an individual’s vocational problems can be addressed when so many Americans work at jobs that do not pay a living wage, and when individuals with criminal records often cannot land a job at all? How can an individual’s social problems be addressed when poverty locks millions of people into communities with high rates of violence, when a quarter of American women experience sexual or intimate partner violence at some point in their lives? And how can an individual’s legal problems be addressed when the United States has the highest incarceration rate in the world?

As a nation we’ve gone the route of building more and more prisons in unsuccessful efforts to manage the devastation caused by economic and racial inequalities. I’m far from convinced that building more and more “staff-secured” treatment centers will prove any more successful.

You can read more on the confluence of punishment and treatment in Incarceration by Any Other Name: A Return to the Cuckoo’s Nest?