Under Section 35, in order for an individual, referred to as the “respondent,” to be involuntarily committed, the courts must find that the individual meets the following two criteria:
- The respondent has an alcohol or substance use disorder, as defined in G.L. c. 123, Section 35, and
- There is a likelihood of serious harm, as defined in G.L. c. 123, Section 1 and through case law, as a result of the respondent’s alcoholism or substance use disorder, to the respondent, the petitioner, or any other person.
Due to insufficient capacity at treatment facilities, 3 out of 4 Section 35 beds are in correctional facilities in Massachusetts.
Placing people in prison because of a disease, no matter how much “treatment” it may offer, is stigmatizing and counter therapeutic.
The following page includes helpful resources if you are seeking representation or simply looking for more in-depth information on Section 35 outcomes and developments.
- Public defender representation at section 35 Civil Commitment hearings through the Committee for Public Counsel Services’ (CPCS) Mental Health Litigation Division
- Section 35 Commission created by the Massachusetts legislature to the efficacy of involuntary civil commitment and develop consistent statewide treatment standards and procedures
- Ongoing and past PLS litigation
- Pending PLS legislation
What is Section 35
Under the Section 35 law, a “qualified person” may request a court order requiring someone to be civilly committed and treated involuntarily for an alcohol or substance use disorder
Some 38 states permit civil commitment of people with substance use disorder (SUD), but Massachusetts is the only state that holds them in a prison. In 2016, the Commonwealth ended this practice for women because the members of the Legislature and the Baker Administration understood that sending people to a correctional institution for treatment is not just morally wrong, it is not evidence-based and is counter-therapeutic.
The Section 35 Process
A qualified person (police officer, physician, spouse, blood relative, guardian, or court official) asks a court to involuntarily commit someone to addiction treatment. Prior to the hearing, a judge must order an exam by a qualified clinician to assess whether the respondent has a substance use disorder and whether the person presents a likelihood of serious harm as a result of their addiction. If serious risk or harm is established, the judge can send that person to addiction treatment for up to 90 days.
In Massachusetts, due to in sufficient capacity at treatment facilities, 3 out of 4 Section 35 beds are in correctional facilities.
Men committed under Section 35 may be sent to any of the following facilities:
- Men’s Addiction Treatment Center in Brockton
- 108 beds
- Operated by High Point Treatment Center
- Overseen by DPH
- Stony Brook Stabilization and Treatment Center in the Hampden County Jail in Ludlow
- 85 beds
- Overseen by Hampden She
- Massachusetts Alcohol and Substance Abuse Center at MCI Plymouth
- 251 beds
- Overseen by Department of Corrections
Why is it harmful
Not matter what euphemistic names they may be given by correctional officials, jails are not an appropriate substitute for inpatient treatment facilities.
Witnesses before the Section 35 Commission described the harm of incarceration
Zachary Wallace described it as “punishment-based” and recounted the use of solitary confinement for minor infractions. He recounted that the Corrections Officers who guard the patients “would call you junkies, losers, whatever.” While previously he had been sober for a year after MATC, he relapsed immediately after his Section 35 incarceration. “I really got nothing out of MASAC.”
For additional witness testimonies please see the PLS Testimony to the Section 35 Commission in May, 2018.
Section 35 incarceration causes trauma
Patients describe a traumatic environment where threats and insults from COs are constant, and even small rule infractions or symptoms of withdrawal can be met with 24-hour solitary confinement. The humiliations are constant, beginning with the strip search on entry and continuing through their stay. According to those PLS has interviewed, patients experience a deep sense of shame and loss of dignity. They do not understand why they are in prison if what they need is treatment and they haven’t broken the law. Many describe MASAC as the worst experience of their lives. Many family members have told us that they would never have “sectioned” their sons, brothers, or husbands had they known they might be placed in prison.
Section 35 programs in correctional facilities are stigmatizing and counter-therapeutic
Putting people in a correctional institution instead of a treatment facility reinforces and perpetuates the stigma that makes recovery so difficult. Family, employers, and friends commonly believe they must have done something criminal. Incarceration can negatively affect their personal relationships, prospects for employment, housing, willingness to continue in treatment after release, and other factors that are critical to their long-term ability to stay clean and sober.
Resources are better invested in civilian settings, rather than expanding Section 35 capacity in prisons and jails
When patients are overseen by correctional staff, rather than treatment staff, the harsh, punitive and traumatizing climate described at MASAC is hard to avoid. And we will be led further down the path of shame and stigma, and away from the Commonwealth’s own recognition that prison is not the place for patients. Moreover, in the long term, investing in establishing a new Section 35 facility will lead to substantial cost savings. The cost of correctional housing is considerable and doing so makes the program ineligible to get reimbursement from federal Medicaid or Medicare programs.
John Does 1-10 v Commissioner of Correction, et al.
We filed this class action on March 14, 2019. Plaintiffs are incarcerated in a prison (called the Massachusetts Alcohol and Treatment Center or MASAC) operated by the Department of Correction (DOC) who have been civilly committed to correctional facilities under Massachusetts General Laws Chapter 123, Section 35 (“Section 35”). They have not been convicted or even charged with any crime, but are imprisoned solely because they need inpatient treatment for an alcohol or substance use disorder. Every year, Massachusetts incarcerates about 2,000 men under Section 35 either at MASAC or the Hampden County Correctional facility.
The legal claims are
- Incarcerating civilly-committed men but not women constitutes gender discrimination in violation of the 14th Amendment to the U.S. Constitution, the Massachusetts Declaration of Rights, and the Massachusetts Equal Rights Act. Under Section 35, men who need inpatient treatment for alcohol or substance use disorder go to prison, while women receive treatment in secure treatment facilities in the community.
- Civil commitment to a correctional institution for treatment of a medical condition constitutes unlawful disability discrimination in violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Article 114 of the Massachusetts Declaration of Rights. By subjecting men to stigma and punishment instead of treatment, Section 35 perpetuates unwarranted negative stereotypes, and reinforces the perception that they are second-class citizens unworthy of bona-fide treatment.
- Civil commitment to a prison violates the substantive due process provisions of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Articles 1, 10, and 12 of the Massachusetts Declaration of Rights. Plaintiffs’ unnecessary incarceration in a prison, rather than in an appropriate treatment facility, represents a substantial departure from accepted professional judgment, practice, and standards. Their confinement in a traumatic and counter-therapeutic environment sabotages the possibility of recovery and bears no reasonable relation to the purpose of Section 35.
For more information about our litigation work, please visit the litigation page