Health / Wellness

When Drug Addiction Is A Crime, Not A Sickness

If we acknowledge that drug addiction is a brain problem and not a criminal act, is it fair to incarcerate people who relapse?

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There are pivotal points we come to in an enlightened society when the way we view certain truth changes.  For example, in the 1960s, it was common for adults and teens to smoke cigarettes.  Smoking was glorified as sexy and sophisticated.  I dare you to find a movie from the 1940s through the 1970s where someone sipping a cocktail was not also smoking a cigarette. The Marlboro Man became the icon of macho — independent, free-thinking, tough.

Then came the 90s and the aughts, and smoking became abhorrent, looked at as dangerous, obnoxious, and downright gross.  I remember one of my kids telling me with shock that a friend’s mother “smoked cigarettes” as if this was tantamount to watching child porn.

What caused the change in public opinion?  In large part, scientific studies that documented the hazards of nicotine for the smoker and others who breathed it in second hand.

Now we come to drug use.  All drugs, whether oxycodone, mollies, crack, or heroin, have been associated with crime.  In particular, crack was believed to make people stronger and more violent, like a perverse version of Popeye eating spinach.  (This theory is now discredited.) Criminal penalties were imposed for mere possession and hefty jail sentences doled out.  Undercover cops pretended to be dope-sick users and busted addicts for selling (or even giving) them half of their methadone bottles.

Nowadays, however, we’re approaching a tipping point on drug addiction. Like the 180-degree flip on cigarettes, addiction is beginning to be viewed less as a crime and more as a health issue.  But if it’s a disease like diabetes or cancer, why should people be punished for suffering it?

Neurological studies have shown that certain brains are more susceptible to developing drug addictions than others.  It’s also clear that addiction often goes hand-in-hand with a spectrum of mental illnesses including depression, anxiety, and schizophrenia.

While health professionals are recognizing these truths, the criminal justice system has lagged behind.  Drug use which leads to criminal behavior is still largely viewed as a choice as opposed to an illness, and although so-called drug courts (courts formed as alternatives to incarceration) are springing up around the country, relapse is still viewed as something that must be punished rather than treated.

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If we acknowledge that drug addiction is a brain problem and not a criminal act, is it fair to incarcerate people who relapse?

This issue was recently explored in Massachusetts in the case of Julie Eldred.  Julie had been given probation for the crime of larceny with the condition that she remain drug free. The court believed that since Julie stole in order to buy drugs, if she stayed drug free she’d be less likely to commit crime.  A reasonable position from one perspective, but from another — isn’t that tantamount to blaming a diabetic for needing more insulin?

Eldred’s lawyers argued that since drug addiction is a brain disease with relapse a documented symptom, it would be unfair to punish her for falling off the wagon.  A decision in Eldred’s favor would have ushered in a new era of thinking about addiction — incarceration, unfair; continued treatment, fair.  But instead of addressing the issue head on, the Massachusetts Supreme Court punted and analyzed the case from a contract perspective.

Because Eldred agreed to remain drug free as a condition of her probation, by breaking that promise, the judge had a right to imprison her.  (Luckily for her, at the time of this writing, she was only sentenced to an in-patient program, although she remained in jail until the program was found.)  Many judges, however, routinely sentence users to jail upon relapse.

The issue is tricky.  It’s in no one’s interest to believe that drug abusers lack all free will, although their ability to control their choices may be more limited than others.  However, to take the position that drug abuse is completely controllable and can be thwarted through punishment is not accurate either.

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While the threat of jail might discourage some people from using drugs, it will not stop others until they’re good and ready to quit. For some that means hitting bottom — coming to a personal point in their lives when they’ve gone so low, there’s no other option.

The problem with jail is that it’s not a treatment center.  Most inmates, although forced to go practically cold turkey by jail personnel (titrated off methadone within days), can still find drugs illegally on the inside.

It’s time to look at rehab as a long process.  If a person commits further crimes that deserve punishment while in rehab, that’s a reason to jail them.  But if their urine tests dirty for drugs, that merely means they’re still grappling with their problem and need more time and help.  Let’s not put them in jail.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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