Commonwealth v. EldredCommonwealth v. Eldred
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.2 Accordingly, we affirm
Background and prior proceedings. On July 18, 2016, the defendant was arraigned on a felony charge of larceny for stealing jewelry valued over $250 from the home of an individual for whom the defendant provided dog-walking services. The defendant admitted to the police that she had stolen the jewelry and had sold it to obtain money to support her heroin addiction. On August 22, 2016, the defendant admitted to sufficient facts to warrant a finding of guilt. A judge in the District Court continued the defendant‘s case without a finding, and imposed a one-year term of probation with special conditions related to her substance abuse that included requiring her to remain drug free, submit to random drug screens, and attend outpatient substance abuse treatment three times each week.3 Prior to accepting the terms of her probation, the defendant did not object to the condition that she remain drug free, or otherwise
On August 29, 2016, the defendant began outpatient addiction treatment at a hospital. As a component of her treatment, an addiction specialist prescribed the defendant a medication that is used to treat symptoms of withdrawal and addiction to opiates.
On September 2, 2016, only eleven days after the case had been continued without a finding and the probation had been imposed, the defendant tested positive for fentanyl, following a random drug test administered by her probation officer. The probation officer encouraged the defendant to enter inpatient treatment, but the defendant allegedly refused. The probation officer then filed a “Notice of Probation Detention Hearing”4 with the District Court. The detention hearing was conducted on the same day as the defendant‘s positive drug test because, as her probation officer testified, the defendant‘s parents were out of town and “it was the Friday before Labor Day and [the probation officer] felt that [the probation officer] couldn‘t
Based on the evidence presented at the hearing, the judge, who was the same judge who had accepted the defendant‘s plea and imposed the conditions of probation, determined that there was probable cause to believe the defendant had violated the “drug free” condition of her probation by using fentanyl. Because defense counsel was not able to secure a placement for the defendant at an inpatient treatment facility, the judge ordered that the defendant be held in custody until a placement became available. The defendant was released into an inpatient treatment facility after ten days in custody.
On November 22, 2016, a different District Court judge presided over the defendant‘s probation violation hearing. Despite conceding that she had used fentanyl, the defendant contested that she had violated the terms of her probation. The defendant argued, for the first time, that she had been diagnosed with SUD, which rendered her incapable of remaining drug free. In the defendant‘s view, her use of drugs could not constitute a wilful violation of her probationary condition to remain drug free. She submitted several affidavits from experts in support of her claim; however, no expert testimony was offered at the hearing to opine on SUD or its potential effects on the brain.
Discussion. 1. The reported question. The judge sought to report the question to the Appeals Court under
“Where a person who committed a crime is addicted to illegal drugs, may a judge require that person to abstain from using illegal drugs as a condition of probation? If that person violates the ‘drug free’ condition by using illegal drugs while on probation, can that person be subject to probation revocation proceedings? Additionally, at a detention hearing, if there is probable cause to believe that a person with a ‘drug free’ condition of probation has violated that condition by using an illegal drug, may that person be held in custody while awaiting admission into an inpatient treatment facility, pending a probation violation hearing?”
As explained infra, given relevant statutes, and court rules and policies, coupled with the goals of probation, we answer each portion of the reformulated question in the affirmative.
The circumstances of the defendant‘s case exemplifies why the imposition of a drug free condition of probation and the enforcement of such a condition are permissible within the confines of the probation process. From crafting special conditions of probation to determining the appropriate disposition for a defendant who has violated one of those conditions, judges should act with flexibility, sensitivity, and compassion when dealing with people who suffer from drug addiction. The rehabilitative goals of probation, coupled with the judge‘s dispositional flexibility at each stage of the process, enable and require judges to consider the unique
2. Probation. a. Disposition. As an alternative or supplement to incarceration, probation is “a legal disposition which allows a criminal offender to remain in the community subject to certain conditions and under the supervision of the court.” Commonwealth v. Durling, 407 Mass. 108, 111 (1990). The primary goals of probation are twofold: rehabilitation of the defendant and protection of the public from the defendant‘s potential recidivism. Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010). Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001) (other goals include “punishment, deterrence, and retribution” [citation omitted]).
“The success of probation as a correctional tool depends on judges having the flexibility at sentencing to tailor probation conditions to the circumstances of the individual defendant and the crime that he [or she] committed.” Goodwin, 458 Mass. at 16. See Lapointe, 435 Mass. at 459 (judge may consider factors not relevant at trial, such as hearsay information about defendant‘s character, behavior, and background). Authority to tailor probation conditions is found in
Where, as here, addiction is an underlying issue in a criminal case, the special conditions “may include, but shall not be limited to, participation by [the defendant] in rehabilitative programs.”
For these reasons, judges have great latitude in imposing conditions of probation, and those conditions are enforceable “so long as the condition is ‘reasonably related’ to the goals of sentencing and probation.” Commonwealth v. Obi, 475 Mass. 541, 547 (2016), quoting Lapointe, 435 Mass. at 459. Even where a condition of probation affects a constitutional right, it is valid if it is “reasonably related” to the goals of sentencing and probation, in light of the defendant‘s underlying crime and her particular circumstances. See Commonwealth v. Power, 420 Mass. 410, 416-417 (1995), cert. denied, 516 U.S. 1042 (1996); Lapointe, supra. Although random drug and alcohol testing constitutes a search and seizure for constitutional purposes under
When a defendant is released on probation, his or her liberty interest is conditional and depends on that defendant‘s compliance with the conditions imposed by the sentencing judge. Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006); Durling, 407 Mass. at 115. “If a defendant violates one or more conditions of probation, a judge may revoke his probation and sentence him to a term of imprisonment for his underlying conviction, or return the defendant to probation, with new or revised conditions.” Goodwin, 458 Mass. at 15. A defendant who violates probation is not being punished for violating a condition of probation, but rather “the defendant is essentially being sentenced anew on his [or her] underlying conviction.” Id. at 17.
The defendant argues that because she suffers from SUD, requiring her to remain drug free sets her up for unconstitutional cruel and unusual punishment when the inevitable relapse occurs. As discussed, revoking or modifying conditions of probation is not a punishment for drug use but for the underlying crime. See Goodwin, 458 Mass. at 17. We also agree with the Commonwealth that the defendant‘s claim of SUD rests on science that was not tested below. Nor do we agree with the defendant that the requirement of remaining drug free is an outdated moral judgment about an individual‘s addiction. Rather, informed by the substance abuse standards discussed supra, the requirement is based on the judge‘s consideration of the defendant‘s circumstances and that she committed the underlying crime to support her drug use.
The judge here did not abuse her discretion by imposing the special condition of probation requiring the defendant to remain drug free.
b. Probation violation proceedings. i. Detention hearing. Where there is reason to believe that a defendant violated a condition of probation, a probation officer may initiate probation violation proceedings. See Rule 4(b) of the District/Municipal Court Rules for Probation Violation
Where the judge determines that the allegation is supported by probable cause, the judge must then consider a number of factors in determining whether the defendant should be held in custody pending the final probation violation hearing:
“(i) the probationer‘s criminal record; (ii) the nature of the offense for which the probationer is on probation; (iii) the nature of the offense or offenses with which the probationer is newly charged, if any; (iv) the nature of any other pending alleged probation violations; (v) the likelihood of [the] probationer‘s appearance at the probation violation hearing if not held in custody; and (vi) the likelihood of incarceration if a violation is found following the probation violation hearing.”
Trial court judges, particularly judges in the drug courts, stand on the front lines of the opioid epidemic. Judges face unresolved and constantly changing societal issues with little notice and, in many situations, without the benefit of precedential guidance. In circumstances where a defendant is likely addicted to drugs and the violation in question arises out of the defendant‘s relapse, judges are faced with difficult decisions that are especially unpalatable. This is particularly true at a detention hearing where a judge must decide whether the defendant should be detained prior to a final violation hearing. The core of this dilemma is that although probation violations often arise out of a defendant‘s relapse, we recognize that relapse is part of recovery. See Standards on Substance Abuse, supra at 5 (“Treatment does not always work the first or even the second time, [and] relapse should not be cause for giving up on a substance abuser“). To achieve this delicate balance, judges must have the authority to detain a defendant
Here, on the Friday before the Labor Day weekend, the defendant tested positive for fentanyl. After the defendant rejected inpatient treatment, and with her home support network unavailable, the defendant‘s probation officer initiated the probation violation proceedings and moved for a detention hearing that day. At that hearing, the judge determined that there was probable cause to believe the defendant had violated the drug free condition of her probation, based on the results of the drug test. The judge first sought to have the defendant admitted to an inpatient treatment facility pending her final violation hearing; however, a placement was not immediately available. To stabilize the defendant‘s situation, the judge held her in custody until a placement at an inpatient treatment
The defendant claims that the judge‘s decision to detain her constituted a punishment for her relapse and positive drug test.7 We do not agree.
The probation violation hearing is comprised of two distinct phases: (1) the adjudicatory phase, and (2) the dispositional phase. See Rule 6(b) of the District/Municipal Court Rules for Probation Violation Proceedings. See also Commonwealth v. Joyner, 467 Mass. 176, 189-191 (2014). In the adjudicatory phase the judge must “determine, as a factual matter, whether the defendant has violated the conditions of his [or her] probation.” Commonwealth v. Pena, 462 Mass. 183, 187 (2012), quoting Durling, 407 Mass. at 111. “A defendant can be found in violation of a probationary condition only where the violation was wilful.” Commonwealth v. Henry, 475 Mass. 117, 121-122 (2016). See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010) (absent evidence of wilful noncompliance, defendant could not be found in violation of condition of probation). See also Commonwealth v. Poirier, 458 Mass. 1014, 1016 (2010) (defendant not responsible for inability to comply with
At a probation violation hearing, both parties “shall be permitted to present evidence relevant to the issue of the alleged violation [and] shall be permitted to cross-examine witnesses produced by the opposing party.” Id. The distinction between the adjudicatory and dispositional phases is important because the “factual decision that a probation violation has occurred in no way compels an order of revocation.” Rule 5 of the District/Municipal Court Rules for Probation Violation Proceedings comment (2000), at 80. Therefore, judges must be precise in bifurcating the adjudicatory phase of probation violation proceedings from the dispositional phase.
Where a violation has occurred, the judge must determine the appropriate disposition for the defendant. See Pena, 462 Mass. at 187. See also Rule 6(b) and (d) of the District/Municipal Court Rules for Probation Violation Proceedings. Permissible dispositions include revoking the defendant‘s probation and sentencing the defendant for the underlying crime, modifying the terms of the defendant‘s
After a violation is found, “[h]ow best to deal with the probationer is within the judge‘s discretion.” Durling, 407 Mass. at 111. In determining the appropriate disposition, the
“Where a defendant has violated a condition of his [or her] probation, a judge‘s authority to modify or add conditions of probation is nearly unlimited should the judge decide not to imprison the defendant but to return him [or her] to probation.” Goodwin, 458 Mass. at 17. At the dispositional phase, a judge‘s decision to modify the defendant‘s probation following a violation must consider both the welfare of the defendant and the community. Id. at 16, quoting Buckley v. Quincy Div. of the Dist. Court Dep‘t, 395 Mass. 815, 818 (1985). Where probation is modified, the defendant is essentially being resentenced on
The defendant contends that the District Court judge erred in finding that she violated the drug free condition of her probation because the violation was not wilful. In the defendant‘s view, her purported inability to refrain from using drugs is tantamount to a homeless probationer not being able to comply with a condition of probation because of the circumstances inherent in that homelessness. Canadyan, 458 Mass. at 579. In Canadyan, we concluded that the defendant did not commit a wilful violation of probation for failing to wear an operable global positioning system (GPS) monitoring device because the evidence conclusively established that the defendant was homeless and that the homeless shelter he was staying at could not accommodate the technological requirements of the GPS equipment. Id. at 578-579. Therefore, “there was no evidence of wilful noncompliance.” Id. at 579. Accord Henry, 475 Mass. at 121-122 (no wilful violation of condition of probation requiring payment of restitution where defendant lacked ability to pay); Poirier, 458 Mass. at 1016 (no wilful violation of condition of probation requiring defendant to wear GPS device where probation department did not have such device available).
After determining that the defendant violated the conditions of her probation, the judge had the authority either to revoke the defendant‘s probation, reprobate her on the same conditions, or modify her probationary conditions to further the welfare of both her and the public. See Goodwin, 458 Mass. at 17. The judge chose to modify the defendant‘s probation, requiring that she continue inpatient treatment. This modification furthered the rehabilitative goal of probation and demonstrated that the judge was not discounting the defendant‘s
Conclusion. We conclude that, based on the evidence presented at each stage of the probation process and for the reasons described above, the judge did not abuse her discretion in concluding the defendant violated her probation. We further answer the reported question, as we have reframed it, in the affirmative: (1) where a person who commits a crime is addicted to illegal drugs, a judge may require that person to remain drug free as a condition of probation; (2) a person may be subject to probation violation proceedings for violating the drug free condition of probation by subsequently testing positive for illegal drugs; and (3) in the appropriate circumstances, a judge has discretion at a detention hearing to hold the defendant, who has tested positive for illegal drugs in violation of the drug free condition of probation, pending a probation violation hearing. We further conclude that the actions of the District
Accordingly, we affirm the judge‘s finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.
So ordered.