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July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 at 10:22 AM | Permalink


Robert Downey Jr. was committed to rehab many times by the judge. He would celebrate graduation from rehab by meeting his dealer in the parking lot. He was found unconscious, face down in LA's skid row. The judge said, enough. He put him in prison. That time in prison separated his brain from cocaine for several months.

He came out and made several movies with a $20 million salary, each. He was seen back with his wife at award ceremonies.

That judge saved his life, career, and family, by his prison sentence.

Posted by: David Behar | Jul 16, 2018 11:30:22 AM

Given that possession of a controlled substance without a prescription is a crime, a probation condition that a person shall not possess or use a controlled substance without a prescription should not be shocking or even debatable. The essence of probation is that society is opting not to incarcerate the defendant immediately upon the general condition that the defendant will take appropriate steps to comply with the law in the future and continuing to violate the law is contrary to the essential nature of the bargain underlying probation. All probation conditions are properly judged by whether they contribute to assuring that a defendant is not violating the law and taking steps to remedy the circumstances that led them to initially violate the law.

In the case of any probation violation, including continued violation of the law on controlled substance, the issue should be how trial court's exercise their discretion when a person violates a condition of probation. In my state, almost every court -- including rural courts -- treat the first positive UA as indicating the need for the defendant to enter some type of treatment program (typically outpatient). Where the courts differ is how many positive UAs it takes to go from outpatient to inpatient to revoking probation. (For non-violent offenses, the court can't revoke probation until the inmate has done an in-custody program.)

Posted by: tmm | Jul 18, 2018 1:42:50 PM

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