By Matthew Segal and Jessie Rossman

The Massachusetts civil commitment statute, known as “Section 35,” makes it the nation’s only state that imprisons people suffering from addiction who have not been convicted of a crime. Worse yet, women imprisoned under Section 35 are sent to MCI-Framingham, where addiction treatment is offered only to convicted prisoners; women merely “civilly” committed receive none. That’s why three groups—Prisoners’ Legal Services, the Center for Public Representation and the ACLU of Massachusetts—joined with the law firm WilmerHale in June 2014 to file a federal class-action suit challenging the imprisonment of Massachusetts women who are civilly committed for addiction.

Today, Massachusetts public officials announced that they share with us the goal of ending this practice. At a press conference on Governor Charlie Baker’s proposed legislation concerning opiate addiction, Secretary Marylou Sudders of the Executive Office of Health and Human Services, in discussing one aspect of the proposal, acknowledged that public officials have been pledging since 1987 to eliminate MCI-Framingham as a place where civilly committed women are sent. She pledged that the Baker administration will do it once and for all.

That is good news, but it is not enough especially in light of the overwhelming role of criminal justice in this proposal that is supposed to be dealing with a public health crisis.

For starters, proposed legislation is just that—a proposal. And in the specific area of women being incarcerated for an addiction, we do not know whether any legislation will pass. And we certainly don’t know whether legislation that does pass will in fact eliminate MCI-Framingham as a place that houses—but, again, does not treat—women suffering from addiction. Precisely because public officials have been making pledges on this issue since 1987, as Secretary Sudders noted, we need to see concrete change and not just good ideas.

But even if it were certain that legislation would pass in the future, that would do nothing for the women who are and will be imprisoned at MCI-Framingham in the meantime. Although more than 15 months have passed since we sued, civilly committed women are still being imprisoned without treatment. Just last month, there were 23 to 29 of these women—our clients—at MCI-Framingham every day.

These women have not been convicted of any crime.

They are not receiving treatment.

And they are in prison right now.

The Governor pointed out today that the opiate addiction is in many ways about pain. Pain drives people to seek medication, which in turn can lead to the pain and suffering of addiction. As the Governor said, some pain is acute and some is chronic.

For civilly committed women imprisoned at MCI-Framingham, their pain has been both acute and chronic. They suffer the acute pain of being imprisoned without treatment because they suffer from a disease. And, in the aggregate, they have suffered this pain chronically for nearly three decades, while public officials failed to solve the problem. And perhaps worst of all, this pain has been inflicted upon them by their own government.

We welcome the news that the Baker administration agrees with us that this practice must stop. But it needs to stop immediately, and for good. We will not rest until it does.

Matt Segal is the legal director and Jessie Rossman is a staff attorney at the ACLU of Massachusetts.

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By Kade Crockford, director of the ACLU of Massachusetts' Technology for Liberty Project.

Today, Governor Baker signed a sweeping opioid bill, expanding access to the overdose-reversing drug naxolone and to medication assisted treatment for people suffering with opioid-related substance use disorders, including for people locked up in Massachusetts jails and prisons. Importantly, thanks to the lobbying efforts of public health experts and the ACLU, the law does not include authorization the Governor sought for judges to commit people to facilities against their will.

Those provisions of the new law have received loads of media attention. But there’s a hidden gem in the law that you probably haven’t heard about.

In a huge victory for patient privacy, the opioid legislation imposes a warrant requirement for law enforcement access to medical records stored in the state Department of Public Health’s prescription monitoring database. Massachusetts now joins over a dozen other states in requiring that police and prosecutors get warrants before digging around in sensitive patient information.

Before this reform, the law in Massachusetts allowed police and prosecutors to rifle around in patient medical records without any judicial oversight whatsoever. The result? Astonishing numbers of law enforcement searches of patient medical records.

Information obtained by the ACLU through a public records request reveals that over a period of less than two years, between August 2016 and March 2018, enforcement entities accessed patient records without warrants nearly 11,000 times—or about 20 times per day.

Politicians and even law enforcement officials acknowledge that substance use disorders are public health problems that won’t be solved by the criminal legal system. But our policy doesn’t yet reflect that reality. Across Massachusetts, police continue to arrest people for drug possession, and prosecutors continue to send people to jail merely because they are struggling with addiction.

That’s not right. Thankfully, the state legislature has moved us in the right direction by requiring law enforcement get warrants before demanding patient records, bringing us one step closer to removing police, prosecutors, and prisons from our response to substance use issues altogether.

UPDATE, January 2019:

Just weeks after securing this important victory, prosecutors succeeded in overturning it by securing an amendment to the supplemental budget that included a carve-out to the warrant requirement for District Attorneys. Thankfully, Governor Baker rejected that amendment, and the ACLU worked to secure a compromise that is a huge improvement over the previous status-quo, under which police, prosecutors, and federal agents could obtain our prescriber information without any judicial oversight or probable cause. The compromise amendment, which Governor Baker signed into law this week, requires that law enforcement obtain warrants to access records in the prescription drug monitoring database, except in cases where someone has died of an overdose—and in those cases, prosecutors are only allowed warrantless access to the records of the person who died.

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