People in Massachusetts who are accused of harmful drug use often face court petitions by family members, law enforcement or medical professionals that request their involuntary commitment. And when this happens, they are often denied their constitutional right to due process, Boston-based public defense attorneys tell Filter.
Under Section 35, a Massachusetts law, if a person is ruled by a court to have an alcohol or substance use disorder and be likely of causing “serious harm” to themself or others, that person can face up to 90 days of involuntary commitment at a treatment facility. Some of these facilities are located in prisons.
The Committee for Public Counsel Services (CPCS) offers court-appointed legal representation for people unable to afford an attorney, including those who face a Section 35 petition. In Fiscal Year 2018, 5,359 Section 35 cases were assigned to private counsel, and 603 were assigned to public representation. CPCS’s public defenders have been overwhelmed by this caseload—and by the rushed Section 35 hearing process that can jeopardize the ability to mount a robust defense.
“Usually, everything happens in one day—the petition is filed, the warrant is issued, the respondent is arrested and the hearing is held,” Ann Grant, a CPCS staff attorney based in New Bedford, described to Filter. The timeline is crunched because “there is no mechanism for holding a respondent overnight or on weekends prior to the hearing.”
The rushed nature of Section 35 case hearings is compounded by defense attorneys’ additional caseload. “Defense attorneys assigned to these sections are typically ‘on duty,’ meaning they are assigned to the courthouse that day to pick up new criminal matters and argue bails, in addition to defending involuntary Section 35 commitments,” said Grant.
This means that time-pressed, overworked defenders have little-to-no chance to interrogate the evidence presented by the petitioner. “There is no discovery process,” Boston-based CPCS staff attorney Jessica Gallagher noted, bluntly—referring to a critical part of the defense process that also continues to be limited in other contexts.
“The petitioner has the advantage of marshaling his or her facts prior to filing the petition,” Grant explained, “whereas the respondent usually has no notice that the hearing is going to happen until he/she is arrested and transported to lockup for the hearing to happen that same day.”
Low Standards of Proof and “Perversion” of the Law
But the problem goes deeper. The very standard for proof is far lower than for many other trial cases—meaning much of the evidence presented in Section 35 cases would not be admissible in other civil cases, except for temporary detention orders. For Leo Beletsky, associate professor of law and health sciences at Northeastern University School of Law and a member of the Section 35 Commission, these standards are “ambiguous” and are “broadly” interpreted by judges, leading to legally questionable commitments.
A judge in a Section 35 case is tasked with determining whether the petitioner presented “clear and convincing evidence”—not “proof beyond a reasonable doubt”—to demonstrate first, that the respondent has an alcohol or substance use disorder, and second, that they are likely to cause serious harm to themself or others.
“Many respondents are committed on what would be insufficient evidence in other court proceedings.”
Evidence usually takes the form of oral testimony—documentation is “extremely rare,” according to Gallagher—and must be found by the judge to meet the standards of “substantially reliable hearsay.” Petitioners are often unaware of this, since many don’t have legal representation or education.
“Well-intentioned judges know that petitioners are laypeople and often do not hold them to either standard,” said Grant, “which means that many respondents are committed on what would be insufficient evidence in other court proceedings.”
Out of respect for client privacy, Grant was unable to comment on specific cases. However, to give general examples, CPCS has “seen people committed on bare allegations that substance use disorder makes them engage in risky behavior, like returning to an abusive partner. We have seen people committed for failing to use the petitioner’s preferred treatment, even when the respondent’s preferred treatment was chosen in consultation with the respondent’s own doctor. In general, we can state that we see many respondents committed on insufficient evidence.”
While Beletsky considers this to be “a perversion of the law,” State Representative David Finn, who also sits on the Section 35 Commission, doesn’t necessarily find this concerning.
“If someone comes in and says that My loved one is dangerous to myself and others because of their substance abuse, then I don’t see how that’s depriving them of any liberties when, at the end of the day, they are saving a life,” Rep. Finn told Filter. “Even though it’s hearsay, it doesn’t necessarily make it inaccurate.”
Grant believes it’s reasonable to claim that “the respondent’s due-process rights are violated” in some cases.
She points out that social biases could impinge on a judge’s determination of what’s “reliable”—and who isn’t. Due to learned stigma, “All people are primed to disbelieve the accused ‘addict,’ even when the evidence that one suffers from a substance use disorder is weak.” Because of this implicit discrediting of respondents and the already-diminished standard for evidence, Grant believes it’s reasonable to claim that “the respondent’s due-process rights are violated” in some cases.
Rep. Finn doesn’t take issue with the low standard of proof because, if the respondent disagrees with commitment, “through the legal process, they can appeal it.” Citing the built-in process to challenge a judge’s power, Finn disagrees with the claims made by CPCS lawyers that Section 35 respondents lack robust representation. “The notion that they are being denied of any judicial relief: it’s inaccurate,” he said.
But for Grant, “the way appeals are currently structured works against the filing of appeals, which means judges are not being held to account as often as they otherwise would be.” That’s because cumbersome filings are required prior to first appeal. In CPCS’s experience, it can then take up two weeks for the first round of hearings to take place, though more commonly can be a month or longer.
The process is so slow that the client has almost always been released by the time the first appeal is heard, according to CPCS.
Pathways and Obstacles to Reform
In Beletsky’s opinion, “The procedural protections and systems that exist do not offer a meaningful opportunity to challenge those decisions.”
Charged with overseeing the civil commitment process, the Section 35 Commission is considering a number of reforms. The trial court rules for civil commitments, which include standards for evidence and the appeals process, were already revised in 2016.
“The solutions to these problems are not easy.”
Massachusetts public defenders may also be seeing a bit of a relief in 2019: CPCS projects a total of 332 Section 35 case assignments this year—almost a 50 percent decrease from last year. The burden on defenders could also be reduced by ensuring representation for petitioners and possibly a court designated to hearing these petitions, recommended Grant.
Meanwhile, Rep. Finn is pushing for more treatment and civil commitment resources in the western part of the state, while State Senator Will Brownsberger, who represents the Boston area and also sits on the Section 35 Commission, told Filter that he is “generally concerned that the Section 35 process is overused. I favor much broader outreach to recruit people to voluntary treatment.”
“The solutions to these problems are not easy,” Grant admitted. One thing she is sure about: The facilities in which respondents are committed need to change. Currently, there are few beds available, especially in Finn’s under-resourced district. Because of this, some people are sent to facilities housed in correctional settings, like MASAC at Plymouth—which is under fire in an ongoing lawsuit filed by Prisoners Legal Services alleging mistreatment.
Given that respondents have not been convicted of—or even accused of—a crime, “jail [or prison] is clearly inappropriate,” stated Grant. Another member of the Section 35 Commission, State Representative Ruth Balser, told Filter that she also objects to commitment to programs housed in correctional facilities. “These are individuals who suffer from an illness, and have not committed a crime,” wrote Balser. “They need services from the health care system, not the criminal justice system.”
Rep. Balser declined to comment on the challenges faced by defense attorneys, but she did make clear that where people are committed needs to change. “My focus is more on shifting Section 35 services away from correctional facilities and have all run by health care (public health and mental health) facilities instead.”
“I do not have a problem with [civilly-committed] people being in jail.”
But Rep. Finn disagrees, ideologically and practically. “To say that corrections should not be involved in recovery is false,” he said. “I do not have a problem with [civilly-committed] people being in jail. If the effort is being made [to treat them], why not corrections?”
Grant suggests that the issue of overcrowding, and by extension, the incarceration of civilly-committed people in correctional facilities, could be avoided in the first place by ensuring fair trials defined by adequate time and resources for defense attorneys to represent their clients to the best of their abilities.
“Committing people who do not meet the criteria likely takes beds away from people who do,” she said. “These commitments are intended to address only the needs of individuals who are in the most dire circumstances, and that’s because liberty and the right to refuse medical treatment are fundamental rights that should not be abridged lightly.”
Photograph: Carol M. Highsmith via Wikimedia Commons. John W. McCormack U.S. Post Office and Courthouse Courtroom in Boston, Ma.