A Comparative Study of the Massachusetts Criminal Justice System's Effectiveness in Rehabilitating Offenders Convicted of a Crime Related to Substance Abuse by Sam Tarplin

Massachusetts Drug Laws

      Compared to the rest of the United States, the laws in Massachusetts pertaining to drug possession offenses are considered to be somewhat lenient. However, in comparison to many European countries, Massachusetts drug laws would be considered quite harsh. In the Commonwealth of Massachusetts. offenders are rarely jailed for simply possessing a drug when convicted, unless it can be proven that the narcotics in question were intended for distribution or trafficking. For first time offenders, punishments may include loss of driver's license, monetary fines, probation with drug testing and/or enrollment in a drug court or drug-awareness class (St Louis 1-4). Jail sentences are an option for any drug possession conviction, but are not usually implemented unless aggravating circumstances are present.

      Sentencing for possession and distribution of narcotics also varies widely depending upon the classification of the drug. Massachusetts has established five classes of narcotics (St Louis 6):

• Class A drugs are substances with very high addiction and harm potential. Sentences for possessing and/or distributing these drugs are the most severe. Examples include the following: heroin, morphine, and “date rape” drugs, such as GHB, and Ketamine.
• Class B drugs are also highly addictive, but are considered less lethal and/or have a legitimate medical purpose. Sentencing pertaining to these substances are severe, but usually less so than Class A substances. Some examples include the following: cocaine, prescription opiates such as Oxycontin and Percocet, LSD, ecstasy and
  methamphetamine.
• Class C drugs are considered to have somewhat less addiction and harm potential than Class B or Class A drugs. Examples of Class C drugs are benzodiazapines (Klonopin, Xanax, and Librium) and psilocybin mushrooms.
• Class D substances are considered to have a low potential for addiction and a low potential for harm, the most common of which is marijuana. Penalties relating to Class D substances are far less severe than Class A,B and C substances.
• Class E substance charges are typically for lighter doses of prescription narcotics containing codeine (Tylenol #3), morphine, or opium (St Louis 6).

       It should be noted that although technically a crime, public intoxication is rarely prosecuted. Also, addiction can be viewed as a mitigating factor during sentencing in Massachusetts, in that cases in which addiction or substance abuse are ruled to be a contributing factor are often sentenced to drug courts and other out-of-prison programs which aim to rehabilitate the offender.

Federal Mandatory Minimum Sentencing Laws

       Every Federal judge in the United States, including those in Massachusetts, are bound by mandatory minimum sentencing laws set by the U.S. Congress. These laws automatically trigger much harsher sentences if a crime meets certain standards (ie. a certain amount of a certain drug), or if a specific type of violence occurs during the commission of a crime (ie. terrorism or harm to a law enforcement officer) (FAMM 1-10). Someone charged will only be prosecuted in a Federal court, and will be effected by Federal mandatory minimum sentencing laws if their alleged criminal activity has been 1) committed in more than one U.S. State or territory or, 2) was investigated and brought to

prosecution by a Federal agency such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), the Bureau of Alcohol, Tobacco and Firearms (ATF) or U.S. Federal Marshals (OAS 1-4). Because this report is focusing on the Massachusetts criminal justice system, these Federal laws will not be looked at further in this report; however, they should be noted as they can affect the outcome of prosecutions of some crimes committed in Massachusetts.

Massachusetts' “Melissa's Law” and Other “Three Strikes” Laws

       Massachusetts recently passed its own form of a mandatory minimum law by joining several other states in implementing a three strikes law in 2012. This is a law which mandates that an offender who “has been convicted three or more times of an enumerated violent offense shall be considered a habitual offender and shall be punished by incarceration at a state prison for the maximum term provided by law. No sentence thus imposed shall be reduced or suspended, nor shall such person be eligible for probation, parole, work release or furlough (Wall, 2).”

      This same law, known as “Melissa's Law,” actually lessened the penalties for those convicted of nonviolent drug offenses in many ways. In fact, several components of Melissa's Law involve protecting, helping and/or lessening punishments for nonviolent drug offenders, including:

• reducing the mandatory minimum sentences for some nonviolent drug offenses,
• increasing the drug weight requirements necessary to be eligible for certain minimum sentences,
• allowing prisoners serving a mandatory sentence to be eligible for authorized vocational and educational programs,
• reducing the size of a school zone area, which triggers a mandatory minimum sentence for certain drug offenses from 1,000 feet to 300 feet,
  • also excluding violations in such areas between the hours of midnight and 5:00 am,
• allowing prisoners to receive increased “good time,” or days of credit for educational or vocational programming, and
• allowing for “Good Samaritan” provisions which
  • allow doctors to prescribe an opioid antagonist (Narcan) to opioid drug abusers and their family members, and
  • allow a person in good faith to seek assistance for someone experiencing an overdose without being prosecuted (Wall, 2).

      Compared to the mandatory minimum and three strikes laws of most other states, most notably California, Massachusetts' laws are quite lenient. Today, twenty-four states in all have some form of a three strikes law. The exact application of the three strikes laws varies considerably from state to state, but the laws call for life sentences without possibility of release for at least 25 years on a violator's third strike. Most states require one or more of the three felony convictions to be for violent crimes in order for the mandatory sentence to be pronounced. Crimes that fall under the category of “violent” include the following: murder, kidnapping, sexual abuse, rape, aggravated robbery, and aggravated assault. Some states include additional, lesser offenses that one would not normally see as violent.

      For example, California's three strikes law, known as Proposition 36, is arguably the most well known as well as the most controversial of such laws in the United States. Proposition 36 has lead to life imprisonment for many nonviolent drug offenders as it nullifies eligibility for probation, parole and treatment for many drug-related crimes. It must also be noted that the social costs of California's Prop. 36 are borne disproportionately by African American men, who constitute only about 3% of the state's population, but represent approximately 33% of second-strikers and 44% of third-strikers among California prison inmates (Chen 345–370). Texas was the first state to implement a three strikes law in 1974. Also seen as controversial, Texas does not require any of the three felony convictions to be violent (Texas Penal Code 12.42).

Massachusetts' Efforts At Rehabilitating Drug Offenders

      According to the Massachusetts Department of Correction (DOC), 75% of the state prisons' population has a Substance Abuse Need based on the Texas Christian University Drug Screen (Pelletier 2). Throughout the various departments and levels of the Massachusetts criminal justice system, there are several programs designed to rehabilitate offenders with substance abuse issues. Upon admission to a Massachusetts state correctional facility, every inmate will be assessed for substance abuse disorders. If is determined that an inmate would benefit from a substance abuse treatment program, they will be encouraged, but not mandated, to enroll in such a program (Pelletier 3). The programs offered are both residential and non-residential (Pelletier 4). Before release from incarceration, the inmate is put on a health insurance program through Mass Health or a private insurer. Once released and insured, medication-assisted treatments such as Vivitrol, Suboxone and Methadone are offered as well as referrals to doctors, social workers and therapists in the community to which they are being released (Pelletier 4).

     From July, 2014 through December 2014, 42% of inmates with a need for substance abuse treatment completed a residential treatment program, and 15% completed a non-residential treatment program. On the contrary, 37% of inmates assessed to have a need for substance abuse treatment were housed at facilities where substance abuse treatment was not available (Pelletier 6). The Massachusetts DOC has a stated goal of 70% of inmates assessed to be in need of substance abuse treatment to complete a program prior to release by July of 2017 (Pelletier, 6).

     At the county jail level, substance abuse treatment programs vary widely from county to county,

but most do offer some form of treatment (Pelletier, 7). In Barnstable County, a residential, boot-camp-style residential treatment program, known haste Residential Substance Abuse Treatment Program (RSAT), is available to male inmates who meet program admissions criteria. Barnstable County House of Corrections is also one of the few county-level correctional facilities in the United States to offer facilitation of medically assisted substance abuse treatment, in this case, Vivitrol, just prior to, and after an inmate's release (What Happened, 2014).

Rehabilitation Efforts of Other Jurisdictions

       Portugal: Several countries in Western Europe have taken their own innovative approach to combating drug addiction. These countries have mostly decriminalized all drug possession for personal use crimes; they have expanded drug treatment and have implemented large, well funded harms-reduction programs run by the national government. Portugal was the first Western European country to implement such a policy, and the policy's results have been very well studied.

In 2001, Portugal decriminalized simple drug possession (possession for personal use) crimes. The new law maintained the status of illegality for using or possessing any drug for personal use without authorization. However, the offense was changed from a criminal offense with prison as a possible punishment, to an administrative offense if the amount possessed was no more than ten days' supply of that substance (EMCDDA, 2011). Data from a comprehensive 2009 report on Portugal's new drug policy indicates that decriminalization has had no adverse effect on drug usage rates. However, drug-related pathologies, such as HIV/AIDS and deaths due to drug usage, have decreased dramatically as seen in the graph below. (Greenwald, 10).

           Several years before the implementation of these eased drug possession laws, Portugal had created a large, state run harms-reduction program, utilizing the country's pharmacies as venues for needle exchanges which promote safe use and drug treatment options to addicts. The needle exchange program, "Say NO! to a used syringe," is a nationwide syringe exchange program which has been

ongoing since October 1993, involving some 2,500 pharmacies throughout Portugal. It is run by the

National Committee against AIDS, and was set up by the Ministry of Health and the National

Association of Pharmacies, a nongovernmental organization representing the majority of Portuguese pharmacies. All drug users can exchange used syringes at pharmacy counters across the country. They get a kit with clean needle syringes, a condom, rubbing alcohol and a written message motivating users to prevent AIDS and to seek addiction treatment. From 1994 to 1999, pharmacies delivered around three million syringes annually (EMCDDA 2011).

      In addition to these other measures, Portugal has expanded drug treatment options for addicts. Health care for drug users in Portugal is organized mainly through the public network services of

treatment for illicit substance dependence, under the Institute on Drugs and Drug Addiction, and the Ministry of Health. In addition to public services, certification and protocols between NGOs and other public or private treatment services ensure a wide access to quality-controlled services encompassing several treatment modalities such as detoxification units, inpatient rehabilitation programs, and intensive outpatient programs. The public services provided are free of charge and accessible to all drug users who seek treatment. There are 73 specialized treatment facilities (public and certified private therapeutic communities), 14 detoxification units, 70 public outpatient facilities and 13 accredited day centers provide full coverage of drug outpatient treatment across all but four of Portugal's eighteen districts (EMCDDA 2011).

      Because there is little reliable information about drug use, injecting behavior or addiction treatment in Portugal before 2001, a thorough study on the impact of Portugal's new drug policy has not been done (EMCDDA 2011). There are, however, statistical indicators that suggest the following correlations between the drug strategy and the following developments from July 2001 up to 2007:

• Reduction in new HIV diagnoses amongst drug users by 17% (Cardoso et al. 14).
• Reduction in drug related deaths although this reduction has decreased in later years (Cardoso et al. 14) (Hughes and Stevens 3).
• More addicts entering treatment facilities (Hughes and Stevens 6).
• Drug use among adolescents (13-15 yrs) and "problematic" users declined (Hughes and Stevens 2010).
• Drug-related criminal justice workloads decreased (Hughes and Stevens 2010).
• Decreased street value of most illicit drugs, some significantly (Hughes and Stevens, 2010).

      Texas: At the other end of the spectrum, the U.S. State of Texas is known for its lack of harms

reduction and drug treatment practices. Texas does not permit access to clean syringes for intravenous drug users, does not have naloxone (Narcan) training and distribution programs available to the public, and has no Good Samaritan law (Drug Policy). Texas relies heavily upon its law enforcement and criminal justice system to curb drug use and addiction, having some of the toughest drug sentencing laws in the United States, and a high number of drug arrests per capita. There is also a very high racial disparity in Texas, with blacks arrested for drug crimes disproportionately more than whites (Drug Policy). Treatment options for inmates are offered in the Texas state prison system; however only 8,200 program placements are available for 152,000 drug-related offenders (Maxwell 19).

Since 1998 to 2013 in Texas,

• Methamphetamine, heroin and marijuana use have been steadily on the rise (Maxwell 31).
• The percentage of drug users infected with Hepatitis C virus (HCV) has increased (Maxwell 20).
• The number of heroin-related deaths has almost quintupled, jumping from 122 deaths in 1999 to 564 deaths in 2010 (Maxwell 28)
• The number of deaths related to methamphetamine deaths has drastically increased from 21 deaths in 1999 to 349 in 2013 (Maxwell, 34).

Recommendations Based on Research

      Within the United States, Massachusetts is often looked upon as socially and politically liberal. Indeed when compared to much of the rest of the U.S., Massachusetts is often a leader in creating innovative social programming. However, when looked at in comparison to the rest of the developed

world, Massachusetts' policies, especially those centered around narcotics and prisons, could be seen as lacking and outdated.

       Harm Reduction: This report's research, along with numerous other studies done on the subject of drug policy would indicate that societies which focus on harm reduction practices for individual drug addicts end up reducing the harm done to the whole society by drugs.

By funding and implementing needle exchanges and safe injection sites staffed with medical and mental health professionals, the Commonwealth of Massachusetts could significantly reduce the spread of bloodbourne pathogens (ie. HIV Hepatitis C), and significantly reduce the number of drug overdose deaths. These sites could also serve as a powerful liaison with the addicted community in promoting drug treatment options.

       Increased Drug Treatment in State Prisons: Compared to Texas and several other states, Massachusetts has good drug treatment options for inmates in state prisons. However, there is room for improvement. By making drug treatment programs available to all inmates who seek them, and by making these programs a central theme in inmates' daily lives and combining them with educational and vocational programs already in place, a drop in recidivism rates would certainly be seen. In fact, the more closely state prisons resemble treatment centers, focusing on rehabilitating inmates, the better they will serve their collective purpose as “correctional facilities.”

       Decriminalization: The effects of decriminalization of all narcotics for personal use in Portugal are clear. The ease of the workload on Portugal's criminal justice system, the willingness of addicts to enter treatment, the drop in adolescent use rates, and the decreased monetary value of street drugs are all directly attributable to Portugal's decision to decriminalize narcotics. Although this policy would seem far out of reach for Massachusetts for many years due to a largely more conservative constituency and view on drug addiction than that of Portugal, this could be a goal to look forward to

sometime in the future.

In Conclusion

       Because most of the world has criminalized behaviors associated with drug addiction, the disease of addiction has been largely treated by law enforcement instead of by mental health and medical professionals. This does a disservice to addicts by punishing them instead of rehabilitating them, to health professionals by not allowing them to offer their services to those who need it, and to law enforcement professionals by forcing them into roles which they are not properly trained and prepared for.

       Here in Massachusetts, we have often been leaders in innovation and changes in policy which the rest of the United States later follows. As we move forward in our attempt to curb drug-related crimes and deaths in Massachusetts, we must once again look outside of established social norms and stigmas to find our solution and deliver it to the rest of our country.

Works Cited

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Chen, E. Y. "Impacts of "Three Strikes and You're Out" on Crime Trends in California and Throughout the United States." Journal of Contemporary Criminal Justice 24.4 (2008): 345-70. Web.

Drug Policy Alliance. "Texas." Texas. Drug Policy Alliance, Jan. 2015. Web. 02 Apr. 2015. <http://www.drugpolicy.org/texas>.

Greenwald, Glenn. Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. Washington, D.C.: CATO Institute, 2009. Print.

Hughes, C. E., and A. Stevens. "What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?" British Journal of Criminology 50.6 (2010): 999-1022. Web.

Hughes, Caitlin, and Alex Stevens. "The Effects of Decriminalization of Drug Use in Portugal." (n.d.): n. pag. CORE. The Beckley Foundation Drug Policy Programme, Dec. 2007. Web. 3 Apr. 2015. <http://core.ac.uk/download/pdf/91904.pdf>.

"Massachusetts." FAMM. Families Against Mandatory Minimums, 2014. Web. 04 Apr. 2015. <http://famm.org/states-map/massachusetts/>.

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Moreira, Maria, Brendan Hughes, Claudia C. Storti, and Frank Zobel. (n.d.): n. pag. EMCDDA Drug Policy Profiles. European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), 2011. Web. 15 Mar. 2015. <http://www.emcdda.europa.eu/attachements.cfm/att_137215_EN_PolicyProfile_Portugal_WEB_Final.pdf>.

OAS. "Guide to Criminal Prosecutions in the United States." Information Exchange Network for Mutual Assistance in Criminal Matters and Extradition. Organization of American States, 2007. Web. 03 Apr. 2015. <https://www.oas.org/juridico/mla/en/usa/en_usa-int-desc-guide.html>.

Pelletier, Kyle. "Substance Abuse Treatment and Corrections: An Investment in Public Safety."  (n.d.): n. pag. Website of the Executive Office of Public Safety and Security. Massachusetts  Department of Corrections, Jan. 2015. Web. 1 Apr. 2015. <http://www.mass.gov/courts/docs/specialty-courts/specialty-courts-doc-presentation.pdf>.

St Louis, Michael R., Esq. "Massachusetts Drug Laws and Sentencing." Avvo. Avvo, 23 May 2012.                     Web. 22 Mar. 2015. <http://www.avvo.com/legal- guides/ugc/massachusetts-drug-laws-                     and-sentencing>.

Wall, Troy. "Melissa's Bill Key Priorities and Crimes Summary." Scribd. Troy Wall, 20 July, 2012.                       Web. 07 Apr. 2015. <https://www.scribd.com/doc/100627241/Melissa- s-Bill-Key-                              Priorities-and-Crimes-Summary>.

What Happened Here: The Untold Story of Addiction on Cape Cod. Dir. Sam Tarplin. By Zach                             Gallagher. Prod. Nate Robertson and Sam Tarplin. Perf. Ali Carlisle and Steve Mullally.                     Tarplin-Robertson Productions, 2014. DVD.