Is it constitutional to send someone back to prison for relapsing?

A Massachusetts lawyer is arguing that it's unconstitutional for offenders with drug addictions to be sent back to prison for relapsing — and she's taken her case to the state's Supreme Judicial Court. 

Lisa Newman-Polk is representing Julie Eldred, who was on parole for a larceny offence when she failed a court-mandated drug test and was sent back to jail. 

Eldred was found to have fentanyl in her system, violating the probation condition that she be drug free. 

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"The specific order to be drug free, and to impose an imputative criminal sanction on somebody who is addicted to substances and then relapses… is unconstitutional," Newman-Polk told As It Happens host Carol Off.

Now, justices from the state's highest court are deciding whether it is a cruel and unusual punishment for an offender struggling with addiction to be sent back to prison for having drugs in their system. 

Eldred was mid-treatment 

Newman-Polk said that Eldred was putting in the effort to remain clean once she was let out on probation. She had enrolled in an outpatient addiction treatment program, and started a daily dose of Suboxone to subdue her cravings.

A few days after she was released, she relapsed and immediately told her doctor, who adjusted her Suboxone dose.

Eldred remained sober from there on out, but the fentanyl was still in her system when she was tested for drugs. 

"During that whole week before [the drug test] she had just really been getting going with her treatment," Newman-Polk said. "But the court seemed to be under the impression that she was not cured of her addiction right away."

'Relapse is a symptom' 

Newman-Polk argues that a substance-use disorder is a medical diagnosis, and cannot be cured by a probation order.

"Relapse is a symptom of this disorder and so a court cannot just simply order a symptom away," Newman-Polk said. "If we could, we would have a cured nation."

What most people need is guidance, compassion, help and a stable environment to get better.- Lisa Newman-Polk

After she was sent back to jail for relapsing, Newman-Polk was able to get Eldred out and into a residential treatment program.

That was after Eldred spent 10 days in jail with no access to treatment whatsoever. 

She went on to spend nine months in the treatment program. Though she did relapse again, she has now been clean for a year.

The prosecution argues that the threat of prison time is an incentive for people like Eldred to remain clean, but Newman-Polk says in her experience as a public defender and addiction therapist, the opposite is true.

Jail is not an incentive 

"While someone like Julie Eldred, and all the people I've worked with are afraid of going to prison ... the fear of that is not going cure somebody," she said.  

Instead, Newman-Polk would like to see the probation conditions changed to the offender having to actively engage in court-mandated treatment.

If they relapse, instead of being sent back to prison, the person can work with their treatment team to find a system that helps them stay clean. If they chose not to engage with that treatment, Newman-Polk says that could be considered a violation of probation.

She also wants the courts to be more aware of the trauma many drug addicts who go through the legal system have experienced — and of how going back to prison can set them back even further. 

"Most of my clients have been suffering from the time they were small children with all sorts of traumas and violences being perpetuated against them," Newman-Polk said. 

"So this idea of just being hurt further is really more of the same. What most people need is guidance, compassion, help and a stable environment to get better."

Written and produced by Sarah Jackson.