Rights vs. recovery: Courts embark on delicate balancing act

September 8, 2017
By

By Seth Daniel

Special to the Gazette

After more than a year of planning, the Boston Municipal Court has embarked on a pilot program led by Judge Kathleen Coffey to help make it easier for police and physicians to involuntarily commit people who are a threat to themselves and the public because of their addiction – and it’s a process that requires a delicate balancing act.

Judge Coffey appeared before the South End Forum’s Opiate Working Group last month to detail the new program that began in May and is already showing promise. At the same time, she and other recovery professionals said it’s a program that could easily slip and slide onto a slippery slope that takes away the civil rights of an addict.

“This has to be balanced with the fact that we are taking away someone’s liberty,” she said. “The law is clear and a person just being drug-addicted cannot be petitioned. We may agree they can benefit from going to treatment, but we have to establish the likelihood of harm to themselves or others…This is not an opportunity to round up all the undesirable people in the Mass/Cass area and force them into treatment. That’s not the spirit of the program or the idea.”

But it is something that many worry about now that it’s being used more often. In an effort to rid a growing problem of open, public drug use, some worry that using involuntary commitments for a vulnerable population could become a problem.

“We have to be very careful of how we apply that because I worry in our good intentions that it has the potential to violate people’s civil rights if not done right,” said Michael Botticelli, the former White House drug czar and now the director of BMC’s Greyken Center. “We have to be really careful to apply the law judiciously.”

Coffey works out of the West Roxbury District Court, but has special sessions for Homeless Court at Pine Street Inn and a new Recovery with Justice Court that has three sessions at Boston Medical Center.

The latest initiative, though, is the reforms in what is known as a Section 35 – or the involuntary civil commitment of individuals. Being “sectioned” means that one hasn’t committed a crime, but they are addicted to drugs or alcohol and represent an immediate threat of harm to themselves or others.

A section petition can be made by a family member, a spouse, a guardian, a police officer, a court official (probation officer) or a physician. Most sections are made by family members and it basically forces a person against their will into a recovery program or detox facility.

In the Mass/Cass area, however, many people have no family members, or family members have long given up on them. In those cases, only police officers and physicians are there to section a person, and Coffey said the old law was highly underutilized due to the fact that it was impractical for doctors or police to go through the process.

In a one-year study of such issues by a task force from the trial court, Coffey said they discovered the problem and the fix.

“We learned it is unrealistic for the court system to expect an emergency-department doctor to come to court to apply for a warrant and come back for a hearing,” she said. “It made no sense.”

She said the process has long been underutilized in Boston, citing statistics for Fiscal Year 2017 that showed just as many Sections in Orleans District Court (27) as in South Boston District Court (26).

“The majority of people putting them in are family members,” she said. “That’s great, but if you’re dealing with a population that’s homeless with no family or someone whose family has given up on them, this tool isn’t around as a resource…You can tell me there are more drug-addicted people in Orleans needing intervention than in South Boston.”

Since May, Coffey’s court in Jamaica Plain (West Roxbury District Court covers about 40 percent of Boston, including West Roxbury) has been taking Sections from police officers and physicians across the city using a lower threshold affidavit process and a court hearing.

To date since May, they’ve had 63 successful Sections under the new process, with 36 coming from the Mass/Cass area and seven from BMC.

“We’re optimistic if this proves to be helpful that it will be made a department-wide practice and not just a citywide only pilot program,” she said, noting that the pilot program for sections will last one year.

While many cheer the new tool to get people off of the streets of the South End – those who frequently overdose and use drugs openly – it’s also a delicate balancing act in terms of Civil rights.

That not only includes the civil rights of those being sectioned, but also the civil rights of the community that has to deal with the consequences of their neighborhood being ground zero for the opiate epidemic.

“I have to push back on the civil rights piece,” said Sue Sullivan, president of the Newmarket Business Association. “What about the rights of the bus drivers or commuters who accidentally run over one of these people who fall into the street, and are dealing with being traumatized by that. I wonder about the rights of the business owners who are finding people on their steps all the time. The mental health and emotional toll it’s taking on everyone down here is tremendous. We can’t forget about the civil rights of the kids at Clifford Park who have to sweep for needles before they can play football. Where is this line drawn?”

Coffey said that is precisely what the pilot is about, and what judges and the American system of justice is all about.

“That’s what America is all about,” said the judge. “It’s this balance and the weighing of rights of the individual with the rights of those kids at the park and the community. As a judge, that’s the balancing we do in a program like this.”

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *