January 01, 2018 Judicial Ethics

The Problematic Role of the Judge in Assessing Addiction

By Marla N. Greenstein

Ethics guidelines for judges are founded on a traditional view of judging: deciding a legal dispute between two opposing viewpoints. In 2018, most ethical dilemmas for judges arise out of situations that do not reflect this traditional model. Whether presiding over a therapeutic court or engaging in community-based restitution programs, judges today are asked to expand their roles and so too their decision-making base. The articles in this issue covering the various aspects of addiction highlight one of these issues: To what extent may a judge find or assess an addiction and to what end?

Beyond the scope of an ethics column, the answer, as with all ethics issues, will be defined by the specific circumstances in which the issue arises. There are myriad situations where judges may encounter addiction in the courtroom. Judges who must determine the placement of children in difficult family circumstances often will be faced with the allegation that one proposed custodian is suffering from addiction. So too, a large percentage of criminal activity is perpetrated by those who may be addicts. And attorneys appearing before the judge may be impaired due to an addiction. The role of the judge in assessing whether the individual is suffering from an addiction will be different in each circumstance and is governed both by law and by ethics.

The articles in this issue approach addiction as a disease. Similar in many ways to mental health issues presented to the court, judges must discern first what their role in the matter is; second, whether the fact of addiction is something that can be appropriately considered; and finally, if it can be considered, how the law in the jurisdiction approaches the condition of addiction. As judges know too well, the law evolves at a slow pace. While having compassion and understanding for the travails of addiction and the anticipated relapses that accompany almost any recovery, the judge and the court may be limited in its accommodation to that condition. Outside of the therapeutic courts or similar innovative resolution models, judges may find that the law limits their ability to accommodate addiction recovery efforts.

In a case currently pending before the Massachusetts Supreme Judicial Court, these issues are squarely presented. In Commonwealth v. Eldred, the defendant admitted to stealing valuables to support her drug addiction. When placed on probation with the usual restrictions that the offender refrain from drug use and submit to drug testing, she predictably tested positive for a drug. Consequently, she was remanded to prison to await a space in a treatment facility. The issue before the Massachusetts court is whether imposing a condition of abstaining from drug use on a person with a proven addiction and then imposing prison for failing to meet that condition can be considered “cruel and unusual” punishment.

Regardless of the ultimate outcome in the Eldred case, it is clear that courts and the law are ill-equipped to address addiction. Judges must uphold and apply the law fairly and impartially (Rule 2.2, Model Code of Judicial Conduct). While it is likely that the current restraints on judicial decision making provide little flexibility in treating a person suffering from drug addiction differently from another person similarly situated, judges also can work toward improving the law and the legal system. This is likely an area where the judiciary as a whole may need to work with other policymakers to address the enormous population suffering from addiction and who encounter our courts daily.