by Ed Lyon

While most states have laws allowing the involuntary civil commitment (ICC) of the mentally ill, some states extend such laws to addicted drug abusers. Massachusetts is the only state to specify by statute that people whose substance abuse problems “pose a serious risk of harm” can be civilly committed against their will for up to 90 days. The law, known simply as Section 35, has been used to commit thousands of people; according to a January 9, 2018 news article, more than 6,500 substance abusers in Massachusetts were placed in treatment under an ICC order during fiscal year 2016 alone.

Often, ICC is sought by parents for an adult child who needs a structured, secure treatment environment. The Massachusetts Department of Correction (DOC) operates five treatment centers for drug abusers admitted under ICC orders. Patients who escape from the centers – the DOC says they “elope” – may have warrants issued for them, but they are not actual fugitives since they have not been criminally charged or convicted.

Sean, who declined to provide his last name, eloped from the Massachusetts Alcohol and Substance Abuse Center (MASAC), which opened in May 2017 at a former state prison in Plymouth. He said his withdrawal from methadone was too severe to handle without medication, which MASAC is not licensed to provide.

However, Patty Vehmeyer credited MASAC with saving the life of her 28-year-old drug-addicted son. Calling the ICC order she obtained under Section 35 “the only way I could get him in somewhere for longer than two or three days,” she acknowledged several negative factors: She is not allowed to visit, she has to pay to receive phone calls, and her son complains about unsanitary conditions and crowding at the facility. Still, she remains grateful.

“He’s treated like a prisoner, he eats awful food like the prisoners, but it’s worth it because he’s alive,” she stated.

Sherry Green, president of the National Alliance for Model State Drug Laws, said ICC orders historically have been rarely used to force addicts into drug treatment because judges are reluctant to strip civil rights from people who are still mentally competent (other than sex offenders, that is). As a result, many people are simply unaware that the option exists.

But with a nationwide opioid epidemic claiming around 90 lives every day, more people are looking into civil commitment as an option. ICC statutes in most states can be extended to substance abusers. Even in the 23 states where the definition of mental illness specifically excludes substance abuse, all but seven have a separate ICC process for drug users. However, an ICC order cannot be used on addicts in Alabama, Arizona, Idaho, Illinois, Nevada, New Hampshire and Wyoming.

In the states where an ICC can be applied to substance abusers, only two – Delaware and Indiana – accept commitment petitions from people who are not family members, health professionals or the police. The time period for which a person can be involuntarily held varies from one day to a year.

Legislation proposed in New Hampshire would add an ICC process for addicts in that state. Another law introduced in Washington would specifically extend the state’s ICC to cover opioid users, allowing the detention of anyone with three or more drug-related arrests in a 12-month period, anyone hospitalized for drug use or anyone who has three or more visible “track marks” from intravenous drug use. An ICC law proposed in Pennsylvania would let parents appear in court with a health professional who has devised a treatment plan, which a judge would then make mandatory for their child.

In May 2017, Massachusetts Governor Charlie Baker revived his two-year-old proposal to allow emergency room physicians to detain opioid addicts up to three days without a court order. A lawsuit filed by the ACLU forced the state to open a treatment facility for women in 2015, which is licensed to dispense medications used to treat opioid addiction.

At MASAC, 250 male detainees are committed for 30 to 90 days at the former prison, where they receive counseling from a privately-contracted staff of 17 substance abuse counselors after completing an initial stay of three to six days in a detox unit. There are no locks, but a staff of 100 guards maintains security and deters elopements, placing detainees who threaten harm to others or themselves in “watch cells.”

“I’m not treating criminals, they’re not here serving a sentence,” remarked MASAC Superintendent Tom Neville. “They are here for the sole purpose of treatment and getting them back into society.”

Barbed-wire fencing was added to the facility to further deter “guys who just want to wander away and not participate in the program,” Neville stated. But there are no beds licensed for addiction treatment medication – the reason Sean said he absconded from the facility.

Once he was caught, he became one of 14 MASAC detainees transferred to the Massachusetts Treatment Center (MTC) in Bridgewater. DOC Commissioner Thomas A. Turco III ordered the transferees moved after they assaulted other detainees or staff, or eloped from MASAC. But at MTC, the non-violent substance abusers were mixed into a population of convicted sex offenders.

“So I’m a Section 35 on [an ICC] and I’m housed next to someone who raped a mentally retarded 11-year-old girl and killed her,” Sean said. “The whole time he’s threatening me, threatening my family. These people are mentally ill and I’m withdrawing from methadone.”

Prisoners working in the MTC kitchen sent the ICC detainees “meager” portions of food contaminated with foreign objects, like staples. Some of the detainees suffered up to 10 percent weight loss due to fear of eating the meals. Forced to wear MTC orange jumpsuits and carry cards describing themselves as “inmates,” they were not allowed any visitors other than attorneys. Their mail was read and their phone calls monitored. In lieu of the 20 hours of weekly treatment they were supposed to receive for their drug addictions, they were given word-search puzzles to complete.

Attorney Bonita Tenneriello intervened on their behalf, obtaining an order from a Suffolk County Superior Court judge to return the 14 ICC detainees held at MTC to MASAC. The DOC said the practice of housing ICC detainees at MTC will end, but the problem of trying to treat addiction without medication persists at MASAC.

“People who use substances and have addictions still have civil rights,” noted Dr. Alex Walley, director of an addiction medicine fellowship at Boston Medical Center. “The real question is whether effective treatment is available, which in the case of opioids, is going to be medication. And it’s not OK to limit it to just one medicine.”

Of the three medications approved for opioid addiction, only one or two are licensed in most secure facilities, according to Dr. Sarah Wakeman, director of addiction medicine at Massachusetts General Hospital.

Experts like Dr. Walley say the availability of treatment medication is crucial to sustaining a recovery program – even more important than whether a person is forced into treatment or seeks it on their own, since long-term recovery rates are similar for both groups. Most people in addiction treatment are coerced into such programs by courts, family members or employers, according to Arthur Schut, former CEO of Arapahoe House, a rehabilitation center.

Sean was not among the plaintiffs named in the lawsuit filed by Tenneriello. His wife, Heather, said that if they knew treatment medication was unavailable at MASAC, people would not seek ICC orders for their family members because the facility is too much like a prison.

“The state stopped sending women to the Framingham prison because they thought it wasn’t fair to put addicts in prison,” she said. “So why are they putting men there [in MASAC]?”

According to Leo Beletsky, an associate professor of law and health sciences at Northeastern University, it is desperation that drives a disregard for substance abusers’ civil rights in order to get them into treatment – even treatment without medication, for which he said there is a lack of supporting evidence.

“The treatment sector in the state, as well as nationally, is in dire need of reform,” he stated. “The answer is not to keep people by force in bad treatment but to put in treatment that is respectful and effective.”

Of course, the civil commitment of drug users ignores the reality that people convicted of crimes due to substance abuse addictions need treatment, too. An estimated 80 percent of prisoners have abused alcohol or other drugs, often directly related to their incarceration. 

Sources: www.clinics.law.harvard.edu, www.pewtrusts.org, www.wbur.org, Boston Globe, www.tonic.vice.com

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