Petrie-Flom Center Hosts Discussion About the Criminalization of Addiction

Harvard Law School’s Petrie-Flom Center hosted a virtual panel on the highly publicized court case Commonwealth v. Eldred on Thursday afternoon.

The event — entitled “The Criminalization of Addiction: Law, Medicine, and Future Directions” — was led by the defense attorney for the case, Lisa M. Newman-Polk, and Boston University School of Medicine professor Alexander Y. Walley ’93. The discussion revolved around the stigmatization of defendants with drug addiction.

In July 2018, the Massachusetts Supreme Court ruled in Commonwealth v. Eldred that a judge could require probationers — including those struggling from addiction — to remain drug-free as a condition for probation.

Newman-Polk began the panel with a discussion of what she called a “drug war paradox” in the U.S., in which patients are encouraged to take drugs “to feel better” but recreational drugs are criminalized.

“We consume an incredible amount of drugs for medicinal purposes, and yet we categorize a lot of drugs as recreational and therefore criminal,” she said. “It’s a real conundrum in America.”

Newman-Polk went on to discuss the harmful effects of addiction and the long road to recovery from it, which she said is not “one-size-fits-all.”

“What does not help people get better is shame,” she said. “A cell in a jail or prison — it makes people feel a whole lot of this.”

After Julie Eldred stole $250 worth of jewelry to purchase drugs, the court placed her on one year of probation, during which she was required to remain drug-free.

Eldred tested positive for fentanyl during a random screening only 11 days into probation and spent 10 days in prison.

“She had had a relapse that week. She wasn’t sure if it was going to come up on the screen, but thought there was a good chance it might,” Newman-Polk said, noting that Eldred had notified her doctors of her relapse. “I want people to be able to be open about the fact that they’re using — it’s so necessary therapeutically.”

Walley criticized the method of courts primarily deciding the best course of action for defendants addicted to drugs despite a lack of medical expertise.

“The judge also in the mental health case doesn’t decide whether to use Risperidone or whether to use an SSRI, doesn’t pick and choose medications or counseling,” he said. “A lot of probation systems feel empowered to pick and choose what the right or best addiction treatment is.”

Walley added that he believes the stigmatization of drug addiction stops people from both seeking treatment and joining the “field of caring for people who use drugs.”

“Stigmatization of people with addiction is explicit, it’s systemic, it’s systematic, it’s structural, and it’s pervasive throughout both our legal and healthcare systems,” he said. “We continue to stigmatize and criminalize despite adverse consequences — perhaps with good intentions, but really with the opposite effect.”