Last week, the Massachusetts House of Representatives passed H. 3944 (now H. 3947), An Act Relative to Substance Abuse, Treatment, Education and Prevention. The bill will, if passed, aim to curb the increasing numbers of opioid addictions and overdoses in Massachusetts. The House and the Senate, which passed a different version of the bill, will now wrangle over a final version. But there is one thing that both bodies agreed on: that our state is long overdue to end the incarceration of women who have been civilly committed for substance addiction. To that end, the House and the Senate separated out H. 3956, an Act Relative to Civil Commitments for Alcohol and Substance Use Disorders, and sent it to Governor Charlie Baker, who enacted the bill into law on January 25, 2016.
The law brings long overdue reform to a troubling system of civil commitment in Massachusetts. G.L. c. 123, section 35 is the law that governs the civil commitment of people who are addicted to alcohol or drugs. People in their lives—from family members to police officers—can petition the court to civilly commit a person they believe to be addicted. If the court agrees, it can commit that person to a treatment facility for up to ninety days. The problem is that the treatment facilities in Massachusetts are often filled to capacity, especially the ones that accept civil commitments. When the beds are full, the courts don’t stop committing people. Instead, the courts shunt them off to prison. Men are sent to Bridgewater, a minimum security facility where they continue to get addiction treatment comparable to the treatment they might have received in a hospital. They’re in prison—despite not having committed, or being charged with committing, a crime—but at least they are getting treatment.
People assigned to women’s facilities haven’t been so lucky. When the one hospital in the state that accepts them is full, as it often is, they get sent to MCI Framingham, per the terms of the law itself. MCI Framingham is a medium security prison, the highest security prison for women in the state. Women who are civilly committed are put through all the intake procedures that other prisoners are put through. They are strip searched and cavity searched. Their belongings are taken from them. They are forced to participate in call with the rest of the prisoners four times a day. They are in a secure facility, guarded by prison guards, and subject to the same rules and discipline as other prisoners, including solitary confinement. When they detox, they do so in a room with up to five women and one open toilet. They are given over-the-counter medication, but none of the prescription medications that are usually given to people undergoing detox—including people who are committed to hospitals instead of prisons. When detox is over, they receive no other treatment. At MCI Framingham, prisoners gain access to addiction resources and treatment only if they are serving a prison sentence.
There is enormous gender inequity in this system. Only civilly committed women face incarceration in a medium-security prison. Only women face the possibility of being imprisoned for three months without having committed a crime, and without access to any of the treatment that their loved ones were promised they would receive. But even beyond the gender inequality, there are serious legal and ethical implications to the idea that someone can be incarcerated for months solely because they are struggling with addiction. They lose their jobs, they have limited access to their families, and they suffer the indignity and shame of being imprisoned. And on top of that, if they are women, they don’t even get treatment.
The new law changes this. There will be more money for more beds in treatment facilities, and it becomes much more difficult to commit someone to a secure facility. It is an important step forward. But though the wheels of justice seemed to move quickly in the few days that it took to separate the bill from the omnibus drug package, approve it in both houses, and get it signed into law, the fact is that advocates have been protesting the incarceration element of Section 35 for at least twenty-five years. Hundreds of women have been forcibly incarcerated via civil commitment in that time. For decades, advocates have protested and journalists have reported on the problematic system and the abuses suffered by the civilly committed women. Though numerous public officials pledged to address the problem, no one did. Indeed, as recently as 2014 and 2015, Governor Patrick, Governor Baker, and other named defendants actively defended themselves against a class action lawsuit, filed by WilmerHale and ACLU Massachusetts, aimed at dismantling this process.
So what changed? In a word, the population of women vulnerable to civil commitment. The opioid epidemic has hit, and is perceived as hitting, a wealthier and a whiter subset of the population than has traditionally been associated with drug use. There just was not enough political traction to dismantle section 35 when the victims were, or were perceived to be, poor women of color.
The new law is overdue and necessary. Moving forward, it means that fewer women will get a jail sentence instead of treatment. But it does not wholly negate the troubling practice of committing individuals against their will for having an addiction—a federally recognized and protected disability. And it does not negate the troubling fact that women who were vulnerable before may well remain vulnerable to abusive confinement or commitment proceedings.