Should Massachusetts Put Women with a Substance Abuse Problem in Prison?: A Critique of the Use of G. L. c. 123, § 35 to Involuntarily Commit Female Drug and Alcohol Abusers
by Jennifer Honig
The scourge of substance abuse afflicts women in the Commonwealth in alarming numbers. In 2012, one-third of all adults admitted to treatment programs in Massachusetts were women. And even before the Commonwealth was hit with the recent opioid crisis, the overall demand for substance abuse treatment for both men and women exceeded the state’s available capacity. Now, the system is strained yet further. “The epidemic is growing at rates that are faster than we can provide support services,” lamented the head of the Association of Behavioral Healthcare, in March, 2014. Here’s the broader perspective: on a national level, only 11% of people with substance abuse problems receive the treatment they so desperately need.
In light of this crisis, the time has come to reevaluate the Commonwealth’s use of Section 35 of General Law Chapter 123 to civilly commit people in need of substance abuse treatment. Most disturbing, for women, the use of this statute leads to housing women in state prison when they have committed no crime. There, women receive deficient treatment while enduring the trauma of imprisonment.
The Legal Basis for Involuntarily Committing Substance Abusers
The Massachusetts Legislature first addressed substance abuse in 1885. St.1885, c. 339, §§ 1, 2. Nearly a century later, our modern authority for civilly committing substance abusers (passed in 1970) is General Law Chapter 123, Section 35. Section 35 provides for the involuntary commitment and treatment of a “person who chronically or habitually consumes alcoholic beverages … or consumes or ingests controlled substances ….” To commit a person, the court must find that she is an alcoholic or substance abuser and there is a likelihood of serious harm as a result of her alcoholism or substance abuse.
Many other states passed similar provisions after 1962, when the U.S. Supreme Court held that although treating addiction as a crime was unconstitutional, a state could establish a program of compulsory treatment, including periods of involuntary confinement. Robinson v. California, 370 U.S. 660, 665 & n.7 (1962). Consistent with Robinson, the Supreme Judicial Court, in 1968, held that civil commitment was justified, but only for the protection and treatment of the individual and the protection of the public, and only if it had a rehabilitative focus. Nason v. Superintendent of Bridgewater State Hosp., 353 Mass. 604, 610-11 (1968) (noting the practice, at other public mental health hospitals in Massachusetts, of “encourage[ing] patients to [make] progress towards out-patient status”).
A decade after Robinson, the U.S. Supreme Court spoke of involuntary civil commitment as a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509 (1972). The Justices also explained that although a court may involuntarily commit a person under a state’s parens patriae interest in providing care to its citizens who are unable to care for themselves, such action requires a showing that the person is incapable of understanding and protecting her own interests and safety because of a mental disability. Id. at 509, n.4. Also, under its police power, a state may involuntarily commit an individual who, as a result of mental illness or mental abnormality, poses a serious danger to self or others. Addington v. Texas, 441 U.S. 418, 426, 427-28 (1979) (person with mental illness); O’Connor v. Donaldson, 422 U.S. 563, 570 (1975) (same); Kansas v. Hendrick, 521 U.S. 346, 360 (1997) (sex offender). These interests imply that the state has an obligation to offer care and treatment consistent with the judgment of qualified professionals.
These common-law principles are incorporated in our current statutory law. Section 35 permits a court to involuntarily commit an abuser of alcohol or drugs for up to ninety days—even absent any criminal behavior—when that abuse: (1) substantially injures the person’s health or substantially interferes with her social or economic functioning; or (2) has resulted in the person’s loss of self-control. The statute appears grounded primarily in the exercise of parens patriae authority: “[s]uch commitment shall be for the purpose of inpatient care in public or private facilities … for the care and treatment of alcoholism or substance abuse.” G. L. c. 123, § 35, par. 4.
The statute also dictates where a person should be civilly committed: the court must first seek placement at an inpatient facility approved by the Department of Public Health (DPH). G. L. c. 123, § 35, par. 4. However, when a DPH-approved facility is unavailable, the court may commit a man to the Massachusetts Alcohol Substance Abuse Center (MASAC) treatment facility located in Bridgewater State Hospital, and a woman to state prison (to be housed separately from inmates, if she is not a pretrial detainee or convicted criminal). Devlin v. Commonwealth, 83 Mass. App. 530, 534 (2013). The person’s commitment must be reviewed by the superintendent of the facility after 30, 45, 60, and 75 days to determine whether continued commitment is necessary to ensure the person’s health and safety. After ninety days, DPH must provide one year of case management to arrange and coordinate support and services in the community.
Finally, involuntary civil commitment may only occur when less restrictive alternatives to commitment are unavailable. Donaldson, 422 U.S. at 576; see also Commonwealth v. Nassar, 380 Mass. 908, 917-18 (1980). Thus, judges hearing Section 35 petitions should consider whether less restrictive alternatives to civil commitment are feasible to address the presenting addiction problem.
For Many Women, Section 35 Commitments Provide Deficient Treatment
Under Section 35, the first choice for housing a civilly-committed woman for substance abuse is a DPH-approved facility, such as the Women’s Addiction Treatment Center (WATC). This center is a ninety-bed, staff-secure treatment facility in New Bedford. At WATC, women receive detoxification services and post-detoxification treatment. Eventually, women are allowed to leave the facility to participate in community activities. Upon discharge, women may participate in additional step-down programs providing treatment and support services in the community.
Although a DPH-approved facility like WATC is the preferred place to house civilly-committed women, WATC consistently operates at capacity and cannot accommodate all of the women committed under Section 35. In February, 2014, a WATC representative stated, “Our beds are filled every day, all our beds ….” When WATC is full, courts send women—even those with no connection to any criminal activity—to MCI-Framingham, a locked, medium-security prison operated by the state Department of Correction (DOC). At least 60% of women housed at MCI-Framingham under Section 35 have no criminal basis for being housed there.
But MCI-Framingham cannot and does not provide adequate treatment for civilly-confined women. As a state prison, MCI-Framingham follows DOC treatment/detoxification protocols, which are more limited than those available at DPH-licensed facilities. For instance, women withdrawing from heroin at MCI-Framingham receive only over-the-counter medication, such as acetaminophen and ibuprofen, rather than federally approved drugs for the treatment of opioid addiction, such as methadone, Suboxone, or Vivitrol. Moreover, although detoxification takes one week or less, the average duration of recent confinements ranges from 8 to 22 days.
In addition, MCI-Framingham, unlike WATC, offers no post-detoxification treatment to women without criminal involvement committed there pursuant to Section 35. Instead, the prison moves civilly-committed women to a modular structure with no post-detoxification services—one that also houses pre-trial detainees—to await discharge.
To be sure, in 2013, MCI-Framingham began referring discharged, civilly-committed women to services provided by community programs. But women who receive these services fare much worse than those who receive post-detoxification treatment from WATC.
Deficiencies in treatment aside, what is more troubling for women civilly committed to MCI-Framingham is the trauma and stigmatization of imprisonment. The shame and humiliation that go along with being housed with criminals significantly impedes these women’s attempts to recover from their serious substance abuse problems.
Committing Substance Abuse Victims to State Prison May Be Unconstitutional
A group of women civilly committed to MCI-Framingham under Section 35 (with no criminal basis for their commitment) has recently filed a class action in federal court, alleging that their commitment violates substantive due process. They claim that their imprisonment is incompatible with the statutory purpose of inpatient substance abuse treatment, and substantially departs from any current professional standard of care for helping people recover from addiction. According to the plaintiffs, Massachusetts is the only state that imprisons women on the purely civil basis of substance abuse disorders. The suit also alleges disability discrimination under federal law, on the theory that commitment under Section 35 criminalizes addiction, and thus unnecessarily stigmatizes women for their disease. The suit was filed on the heels of at least nine reports (written between 1987 and 2011) recommending that Massachusetts stop using Section 35 to commit women to MCI-Framingham on purely civil grounds.
In light of these problems, the Legislature should amend Section 35 so that women without criminal involvement cannot be sent to MCI-Framingham. At the same time, the Legislature must ensure sufficient funding for court-ordered detoxification, both at DPH-approved facilities, and after a patient’s release from such a facility. Although the Legislature did augment funding for WATC in June, 2014, it remains to be seen whether the additional monies will suffice to prevent women from having to be committed to state prison under Section 35.
Beyond Section 35: Voluntary Substance Abuse Programs
Involuntary commitment does not best address the problem of substance abuse facing Massachusetts women. Since Section 35 was enacted, research has shown that, whenever possible, treatment should be: (1) voluntary; (2) available long-term; and (3) community-based. Accordingly, in addition to amending Section 35 to eliminate the danger of housing women in state prison solely for substance abuse, Massachusetts should shift resources to programs that meet these treatment criteria.
First, the Commonwealth should devote its resources to voluntary treatment. Indeed, a review of thirty years of research into the efficacy of coerced substance abuse treatment found no consistent evidence that involuntary treatment produced better outcomes than voluntary treatment. Besides affording women additional opportunities to overcome their addictions, voluntary treatment would also save money. In fiscal year 2012, DPH spent $34 per day for each person committed under Section 35, to cover the expense of “civil commitment level of care.” And this expenditure does not include the additional costs associated with the judicial process.
Additionally, the Commonwealth should expand access to longer-term post-detoxification care. While treatment duration varies, for most people, long-term or repeated episodes of care are essential for enduring abstinence. Today, it is more difficult to access post-detox care than detox care, in part because insurance usually covers detox care (although, curiously, not at MCI-Framingham), but does not cover longer-term care, which is funded by DPH. Effective October, 2015, insurance coverage for detox and step-down services will expand, but coverage will still be limited to the initial phases of treatment.
Finally, Massachusetts should shift resources from inpatient to community-based care, particularly for opioid addiction, which has surpassed alcoholism among women committed under Section 35. Recent guidelines on opioid treatment, issued by the Institute for Clinical and Economic Review (ICER), suggest that, for most patients, long-term medication is more effective than short-term inpatient detoxification. Concerning post-detoxification treatment, ICER’s founder argues that most patients get equal or better results from long-term outpatient treatment than from inpatient rehabilitation. Increasing community-based care also makes sense given many women’s roles as caregivers—53% of women admitted to WATC have children. Finally, outpatient care benefits the large number of women with co-occurring mental-health and substance abuse disorders, a combination that is associated with poorer treatment outcomes and higher rates of dropout from substance abuse treatment.
In conclusion, Section 35 needs immediate revision to end civil commitment of women to MCI-Framingham. Beyond that change, our growing understanding of women’s substance abuse treatment should promote an examination of the legitimacy of the Section 35 treatment model and a thorough review of the options available to women, and men, for voluntary, community-based treatment.
Jennifer Honig is a Senior Attorney at Mental Health Legal Advisors Committee (MHLAC) where she focuses on institutional advocacy and community rights of persons with disabilities. She graduated from Georgetown University Law Center in 1991 and has been at MHLAC since 1992.
 Mass. Dep’t Pub. Health, Findings of the Opioid Task Force and Department of Public Health Recommendations on Priorities for Investments in Prevention, Intervention, Treatment and Recovery, June 10, 2014, http://www.mass.gov/eohhs/docs/dph/substance-abuse/opioid/report-of-the-opioid-task-force-6-10-14.pdf, at 2.
 Steven Schwartz, Punishing the Handicapped: The Discriminatory Treatment of Women with Alcohol Disabilities, 76 Mass. L. Rev. 120, 124 (1991).
 Although General Law Chapter 125, Section 16, requires that DOC maintain at MCI-Framingham “a facility for the treatment and rehabilitation of alcoholics,” it never established such a facility. To the extent that MCI-Framingham has substance abuse programs for sentenced prisoners and pretrial detainees, DOC does not allow civil committees to participate (although civil committees are allowed to comingle with pretrial detainees).
 As of June 2013, more women are referred to residential treatment from MCI-Framingham (43%) than from WATC (21%), fewer women from MCI-Framingham are released to an outpatient facility (32%) than from WATC (58%), and more women from MCI-Framingham return to court (11%) than from WATC (3%) or to an awaiting trial unit (5% compared to 0%). Erika Kates, Moving Beyond Prisons: Creating Alternative Pathways for Women: Briefing Note #1 Civil Commitments for Women in Massachusetts (2013), https://www.wcwonline.org/pdf/ekates/CivilCommitmentsForWomenInMArev.pdf, at 2.
 Jane Doe v. Patrick, No. 1:14-cv-12813 (D. Mass. filed June 30, 2014). In 1989, advocates addressed the same issues in a civil-rights damage action on behalf of civilly-committed women at MCI-Framingham pursuant to Section 35, challenging such commitments as punitive and harmful. The parties settled, with state defendants agreeing to create new community-based treatment programs and cease the practice of committing such women to prison. Hinckley v. Fair, C.A. 88-064 (Hampshire Super. Ct. Nov. 13, 1990).
 See An Act relative to the civil commitment of women for alcoholism and substance abuse to MCI-Framingham, H. 1790, 188th Gen. Ct. (2013-2014).
 Even if the Legislature approves spending, ongoing funding is susceptible. The acute treatment system was downsized in the early and mid-2000s, resulting in an increase in commitments to MCI-Framingham.
 Jeffry C. Eisen, Civil Commitment for Substance Abuse, 15 Virtual Mentor 844 (Oct. 2013), http://virtualmentor.ama-assn.org/2013/10/pdf/ecas4-1310.pdf, at 847. One might argue that the state could wholly abandon involuntary treatment without ill effect. Although most substance abusers are not dangerous, a shift to voluntary services would still allow the confinement of persons who have evidenced dangerousness through the commission of a crime. Limiting confinement to individuals who enter the criminal justice system is preferable to a system that involuntarily confines a broad swath of people who suffer from addiction, a medical condition.
 Mass. Dep’t Pub. Health, Sec. 35 – Civil Commitments: FY 12 Year End Report (2012), at 15. In Fiscal year 2012, 14 % of women committees were self-referrals. Id. at 14.
 National Institute on Drug Abuse, Principles of Drug Addiction Treatment: A Research-Based Guide (3d. ed. Dec. 2012) http://www.drugabuse.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition/principles-effective-treatment.
 In Fiscal Year 2012, almost half of the women admitted to WATC were addicted to opiates and only 38% to alcohol. Mass. Dep’t Pub. Health, supra note 9, at 13.
 ICER, Management Options for Patients with Opioid Dependence: A Review of Clinical, Delivery System, and Policy Options, July 2014, at 48-51, http://cepac.icer-review.org/wp-content/uploads/2014/04/CEPAC-Opioid-Dependence-Final-Report-For-Posting-July-211.pdf.
 Felice J. Freyer, Priorities in addiction treatment bill debated: Some say inpatient stays are ineffective, Boston Globe, July 29, 2014, at B1.
 Mass. Dep’t Pub. Health, supra note 9, at 14.
 SAMHSA, Substance Abuse Treatment: Addressing the Specific Needs of Women: A Treatment Improvement Protocol 51 (2014), http://store.samhsa.gov/shin/content//SMA14-4426/SMA14-4426.pdf, at 158. Many female substance abusers need mental health services. In Fiscal Year 2012, 53% of women admitted to WATC were taking psychiatric medication, and 14% had experienced psychiatric hospitalization within the previous six months. Mass. Dep’t Pub. Health, supra note 9, at 14. A study of the effects of managed care on the Massachusetts Medicaid population found that substituting outpatient for inpatient care for dually diagnosed individuals led to a decrease in hospital admissions and length of stay. Barbara Dickey et al., Limiting Inpatient Substance Use Treatment: What are the Consequences?, 60 Med. Care Res. Rev. 332 (2003).