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“Isn’t Incarceration Better than Death?”

Katherine L. Record, JD, MPH, MA

Shortly after criticizing Massachusetts for incarcerating innocent individuals with substance use disorder (SUD) when drug rehab facilities are full, I received an email from a woman who lost her son to a heroin overdose just four months ago.

“Is preventing an overdose by detaining the SUD sufferer not a better alternative than leaving them to languish?” she asked.

She had found her 24 year-old son cold and blue, just hours after kissing him goodnight.  He had been evicted from his sober living home for testing positive for drugs, but his mother did not know he had relapsed when he arrived at her front door.  He was, in hindsight, a clear danger to himself – so why did his step-down house let him wander away?  Why didn’t anyone call the authorities?  Is jail not better than death?

Her question captures the crux of our warped approach to SUD.  In what other scenario would a grieving family member have to ponder whether a deceased patient would’ve been better off dead or incarcerated?  Cancer?  Cardiovascular disease?  Diabetes?  The comparison would be ludicrous.

Unfortunately, her inquiry is not absurd.  Her son would probably still be alive had he been committed (in Massachusetts, incarcerated) for his relapse.  To a mother who has lost her child, that is undeniably the better option.  Yet it is neither Constitutional nor humane.

Those with SUD need healthcare just like all others.  But more often than not, it is not available.  Instead there is death or jail.


The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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