Introduction 1182 I. The Background of Federal Supervised Release 1187 A. The Federal Parole System 1189 B. The Supervised Release Act of 1984 1190 C. The Intersection of Supervised Release and Drug Use 1191 II. The Mechanisms for Drug-Related Technical Violations 1194 A. Constitutional Questions 1194 B. Evidence-Based Psychosocial Interventions in Substance Use 1196 C. Prisons Are Not Treatment Centers 1199 1. Substance Use Treatment Inside Federal Bureau of Prisons 1202 2. Rampant Exposure to Drugs in Prison 1204 III. How to Move Forward in a System that Relies on Prisons 1206 A. Judicial Interventions 1207 B. Substantive Changes to the Law and the Safer Supervision Act of 2023 1214 C. Harm Reduction Grant Programs 1219 Conclusion 1223
INTRODUCTION
If criminal defendants relapse from substance use disorders (1) while on community supervision, should they be sent back to prison? In 2018, the Massachusetts Supreme Judicial Court unanimously ruled that a judge can require defendants on probation for substance use disorder to abstain from drugs and face incarceration for violations, including a relapse. (2)
Julie A. Eldred challenged this probation requirement under the cruel and unusual punishment clause of the Eighth Amendment. (3) Ms. Eldred, a 30-year-old woman driven by the need to fund her heroin addiction, stole jewelry, ultimately landing her a larceny conviction. In 2016, a district court judge in Massachusetts sentenced her to a year of probation, facing up to an additional 30-month sentence for violating a condition of her probation, namely drug use. (4) As part of the mandated probation programming, the judge ordered her to begin outpatient substance abuse treatment three times each week and remain drug-free. (5) Ms. Eldred enrolled in a court program and began taking Suboxone, a medication used to minimize withdrawal symptoms. (6)
Within 11 days of beginning probation, Ms. Eldred tested positive for fentanyl--an illegal and highly addictive drug--during a random drug screening. (7) Her probation officer alerted the court, and during a detention hearing, the judge ordered Ms. Eldred to attend inpatient treatment. (8) However, no inpatient facility was immediately available. (9) Ms. Eldred tried to explain to the judge that she was "just getting back on [her] feet" (10) and pled for another chance at outpatient programming. (11) The judge discretionarily denied Ms. Eldred's request to remain in the community for drug programming and sent her to a medium-security prison until her lawyer could find an available inpatient program. (12) After ten days passed, and thanks to the advocacy of her attorney, she was finally able to enter a treatment program where she remained for nearly eight months. (13) During the ten days she was remanded to custody, Ms. Eldred underwent withdrawal without any drug counseling or treatment. (14)
Ms. Eldred's drug use began when she was only 15 years old, (15) and her first attempt at detox was almost ten years later. (16) Between the age of 25 and her incarceration at the medium-security prison at the center of this controversy, she attempted various forms of substance use treatment. (17) Ms. Eldred says that part of her addiction was fueled by avoiding withdrawal systems, which include "sweats, shakes, aches, and stomach cramps." (18) Achieving a sense of normalcy and coping with the physical and psychological effects of withdrawal can contribute to continued substance use. (19)
In an amicus brief prepared to support her case, an addiction medicine expert supports Ms. Eldred's argument that the judge's decision to jail her would not stop her addiction: "a person suffering from SUD cannot simply be ordered into remission." (20) The brief affirms that "incarceration of those with SUDs who relapse does not have the intended deterrent effect" because "incarcerating individuals suffering from a health condition tends to worsen the preexisting condition, especially in the case of addiction." (21) During active addiction, the brain undergoes substantial changes making relapse a predictable hurdle (22)--signifying active addiction rather than an intentional disregard for court mandates. (23) There has been a notable shift in acceptance of the brain-disease model posited by Ms. Eldred. (24) However, the braindisease model of addiction is still being updated to reflect evolving scientific understanding. (25) Ms. Eldred's amici presents the prevailing perspective despite criticism within certain medical circles. (26)
In Ms. Eldred's appeal, the questions before the court included: (1) where a person who committed a crime is addicted to illegal drugs, whether a judge may require as a condition of probation that a person abstain from illegal drug use; and (2) "at a detention hearing, if there is probable cause to believe that a person with a 'drug free' condition of probation has violated that condition by using an illegal drug, may that person be held in custody while awaiting admission into an inpatient treatment facility, pending a probation violation hearing." (27) Ms. Eldred ultimately lost her appeal, (28) but the case probes several critical issues about the status of addiction criminalization.
Following eight months in an inpatient facility, (29) Ms. Eldred has remained sober for six years. (30) On the surface, it might seem reasonable to conclude that Ms. Eldred's probation violation and her time in jail led her to a semblance of stability and successful treatment for her addiction. However, her attorney argues that the court's path was counterproductive and harmful, contending that "she's in recovery because of sustained treatment with medication and family support, which is what the court interrupted by jailing her." (31) The detrimental impact of jailing someone like Ms. Eldred, who inevitably underwent withdrawal inside, cannot be understated. As Justice Stewart noted, "imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." (32) Rather than allowing Ms. Eldred to pursue ongoing outpatient treatment with an understanding that relapses are a common part of the recovery process, the judge revoked her liberties and her from the community after the first failed drug test, opting for detention before beginning inpatient treatment.
Ms. Eldred's legal involvement took place in the state system, but her experience as someone using drugs is not unusual and presents similarities between those on community supervision who are cycling through federal and state facilities. Judges frequently grapple with the dilemma of either sending individuals to prison when they fail drug conditions of supervision or holding onto the hope that sustained treatment and community networks will work to overcome the power of addiction.
Supervised release is the federal system's version of community supervision. (33) This sentencing option is frequently paired with custody time in federal sentencing practice. (34) The consequences for violating supervised release are significant, often resulting in additional incarceration that can exceed an original sentence. (35) Individuals on supervised release typically face strict drug-related conditions like testing and mandated treatment. (36) Under 18 U.S.C. [section]3583(d), "the court shall also order, as an explicit condition of supervised release, that the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least two periodic drug tests thereafter." (37) Failing to follow these guidelines can result in a technical violation--a violation of supervision but not an activity that constitutes a criminal charge. (38) Despite these measures, technical violations remain a key reason for supervision termination. (39) Approximately 350,000 people, representing one-third of the population under supervision, are sent back to prison for condition violations. (40) Individuals caught violating supervised release for drug-related violations may be "revoked" and sent back to prison. Court programs like those discussed in Part III are necessary steps currently utilized to tackle the intersection of addiction and supervised release.
The need to address our federal drug policies is immediate. This urgency stems from the dramatic rise in drug use: substance and overdose deaths are shattering all previous records. (41) The crisis is fueled by the lasting impacts of the COVID-19 pandemic and the widespread availability of potent synthetic opioids. (42) In 2022, there were more than 100,000 drug-involved overdose deaths (43)--a 250% increase since the end of the century. (44) Pandemic research reveals a rise in substance use, particularly among those with anxiety, depression, and COVID-19 stress. (45) Practitioners, judges, and the court may feel inclined to use prison as the stopgap in handling the intersection of drug use and criminal activity. Ms. Eldred's case, along with others, shows that the prison bandage does not address the bleeding wound of addiction criminalization. In fact, it often aggravates the problem. Faced with a drug crisis, the United States needs federal law to adapt and embrace proven solutions to addiction, such as evidence-based interventions and harm reduction programming, to move forward successfully.
This Note focuses on the American legal system's use of statutory prohibition on drug usage as a proactive solution to solving potential drug abuse concerns among those on federal supervised release. Revoking supervised release based on a technical violation, such as drug use or possession, unrelated to the underlying charge fuels mass incarceration and is an unproductive use of resources. Supervised release is frequently considered a wholly...
