Should Drug Testing Violators Be Sentenced to Jail – Or A Hospital?

Here’s a very interesting hypothetical legal question:  Let’s assume that “Dave Defendant” is convicted of a certain crime – whether a misdemeanor or felony –and is sentenced to probation.  Part of his probation terms require that he remain drug-free, and submit to random drug tests administered by the Department of Probation.

One day, Dave Defendant’s drug tests come back positive for a controlled substance.  His probation officer brings Defendant back before a judge, for what’s known as a “probation violation” hearing. The judge finds that Defendant had indeed tested positive for prohibited drugs, which means that Defendant violated the terms of his probation – which authorizes the judge to sentence Defendant to jail.  Should this be done – should such a person be sentenced to jail for relapsing during drug recovery?

That’s the very interesting question soon to be addressed by the Massachusetts Supreme Court (SJC) – and even more interesting, are the arguments for and against sentencing such defendants to jail.  On the defense side, a very interesting – and engaging – legal theory is being advanced to cease this practice.  As a Massachusetts criminal defense attorney that defends people accused of drug crimes, I very much support the general theory, which, very loosely, goes as follows:  Drug addicts are not criminals – they are addicts.  Those two are not – and should not be – the same thing.  But sadly, in our criminal justice system, they have always been considered the same thing.  And they’re not:  People who are drug addicted are just that – addicted.  Addiction is not just a “bad habit” – it is a medical, neurological disorder that originates in the brain. For a judge to say to a defendant, “You’re ordered to refrain from using XXX drug, or any other drug – and if you are found to have violated this probation order, you’ll be sentenced to jail,” is inadvisable on a number of levels:

• First, it is unjust to sentence to jail a person who has a neurological, medical addiction.   It is not grounded in reality.
• Second, it’s counter-productive because it doesn’t get the defendant the medical help she or he needs to stay off drugs. Yes, probation officers can and do provide such probationers with support group resources such as Narcotics Anonymous.  But those groups are only one tool – and they do not provide the medical attention that such addicts need.
• Third, sentencing such defendants to jail time only perpetuates the problem, recycling addicts in and out of prison, sometimes many times. Our public policy should be focused on eradicating drug addiction – not perpetuating it.  The best analogy to this misguided practice?  Sentencing drug addicts to jail time is like sentencing debtors to “debtors prison” (which was done even as recently as a hundred years ago.)  How could you enable a debtor to repay a financial debt, when he’s thrown in prison, unable to earn the necessary money to repay the creditors’ debt?  Sentencing defendants who violate drug probation conditions guarantees that the underlying problem will not be addressed, and in fact only made even worse.
• Fourth, it only adds even more prisoners to our jails and prisons – nonviolent offenders who do not belong behind bars. Dangerous, violent criminals are the people who should be sentenced to jail and prison time – presuming they’ve had a fair trial and received a talented, aggressive legal defense, that is.

There are, of course, two sides to every legal coin, and I’ll address the other side of this argument, which advocates that such drug probation violators should be sentenced to jail for such probation violations – in Part Two of this post, later this week.