In 2017 the U.S. Department of Health and Human Services declared a public health emergency to address the national opioid crisis. According to the Centers for Disease Control and Prevention, 70,237 drug overdose deaths occurred in the United States in 2017. Opioids were involved in 47,600 of those deaths—67.8%—and, as such, are the main driver of overdose deaths. In connection to this epidemic, defendants who are incarcerated have a high prevalence of SUD, including OUD. Staggeringly, an estimated fifty percent of all incarcerated persons meet the criteria for diagnosis of SUD. State trial court judges sit at the threshold of the opioid epidemic and the developing science surrounding SUD that comes with it. Using their immense discretion, judges must wrestle with deciding the proper protocol for sentencing defendants with SUD.
In the face of this medical reality, Commonwealth v. Eldred, decided by the Massachusetts Supreme Judicial Court in July 2018, held that a judge may require a defendant with SUD to remain drug-free as a condition of her probation. Additionally, the court found that the defendant’s action constituted a willful violation of such a condition. Courts traditionally punish probation violators with incarceration or more probation. This Note argues that Eldred disregards Massachusetts precedent and violates the Eighth Amendment by imposing probation conditions that defendants with SUD are fundamentally unable to comply with. Moreover, this decision contributes two horrendous social consequences. First, incarcerating a defendant for continued drug use harms her recovery process. Second, the decision perpetuates the dysfunctional way our criminal justice system treats those suffering from SUD by punishing them instead of seeking to rehabilitate them. While judges maintain immense discretion in imposing conditions of probation, bounds do exist. A judge should not, and constitutionally does not, have the power to impose a drug-free condition of probation on defendants who have SUD.
Corinne Zucker is a J.D. Candidate, Temple University Beasley School of Law, 2020.