Where bail was set for Shira Diner on a charge of heroin possession, she is stuck in jail because she doesn’t have $250 – and could be there for months. As the Salem News stated: “In a filing on Friday, the Committee for Public Counsel Services and the group Equal Justice Under Law are asking the Supreme Judicial Court to take up the case of Jessica Wagle, a woman who is currently being held on $250 bail in a heroin possession case brought by Lynn police.
Wagle’s case was heard on Wednesday in Salem Superior Court, where her attorney argued that her $250 bail should be reduced to personal recognizance because she cannot afford to pay it and has no family in the area who are willing to post the bail.
Wagle’s lawyer, Shira Diner, told Judge Timothy Feeley on Wednesday that Wagle was being “punished for being poor.”
Feeley disagreed, pointing to a history of missed court appearances, or “defaults,” in her past cases as a reason to keep the bail at $250, the amount originally set on July 19 by Lynn District Court Judge Richard Mori, four days after her arrest.
Wagle, 32, who has struggled with heroin addiction for six years, her lawyers said, had been free during those four days after her arrest, until she walked into court and prosecutors sought to have her taken into custody on bail.
Her lawyers argue that both the SJC and the United States Supreme Court have repeatedly held that no person can be kept in jail solely because of poverty — and argue that neither Feeley nor Mori took into account Wagle’s ability to pay.
“This case raises an issue of fundamental importance to the Massachusetts justice system: Can a person be kept in a jail cell because she cannot make a monetary payment?” the attorneys for Wagle say in their filing.
“Although that basic rule has long been a pillar of our legal system, it is overlooked as a matter of daily practice in courtrooms and jails throughout the Commonwealth. This case is about the irrationality and harmfulness of wealth-based pretrial detention. Such a practice is terrible for public safety and grossly unjust,” the filing says.
I note that residents of Massachusetts are routinely locked up for what looks, to me, like insane, dehumanizing amounts of time for not paying the $150.00 counsel fee [which goes to the general fund, not the attorney appointed to represent the destitute or indigent individual] or not paying probation fees. I ask again, how does that differ from debtor’s prison, and isn’t debtor’s prison, of paying for access to justice actual illegal under our Massachusetts constitution.
I refer here to ARTICLE XI, which states: ”
Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
…but I’m having a hard time getting worked up over $250 which sounds like a pittance as bails go, especially if she does have a history of missed appearances. Plus, isn’t it insurance that you get back once you do appear? Of course if it is possession without intent to distribute you are welcome to argue that it should be treated as a civil and public health matter rather than criminal, but I don’t think I found that argument in this particular diary.
$250 sounds like a pittance to me too. But not everyone is as well off as us, and if you aren’t able to recognize that you have no business commenting. $250 is serious money for someone living in poverty, whether or not they’ll get it back. If you’re living on, say, the average SSDI payment of $1166/month, or a job paying the equivalent, that’s going to be tough. Rent’s probably about 400 if you have a voucher, 600-700 otherwise if you have no kids. Groceries another 200 . Transportation 200 or so. We’re already up to 800 assuming you have no other expenses at all. No medical bills, no utility bills, all of your entertainment comes from library books, you never eat out, never need to fix a car or appliance, etc. And it sounds like she has a drug problem, so that’s probably eating up the rest. Where are you going to find $250?
I happen to think the bail was appropriate here in light of her history of defaults. But please, don’t trivialize it by pretending it’s a small amount.
…but as an objective comparison to other bail amounts in my understanding I stand by my comments.
A woman with a medical problem is arrested because of that condition and sent to jail unless she comes up with $250. She cannot and so she is kept in jail where she is now costing the state at least $50 per day (my guess is that this us much higher).
Now maybe if we had programs to help people like her, she would avoid getting arrested and held in jail, but those programs are expensive and we’re already straining our budgets with the high cost of incarceration of individuals……..so we find ourselves in a deep hole and the mood of the state is to “keep digging until we find a way out of this”…
Is bail unconstitutional for all indigent defendants?
People aren’t supposed to be imprisoned unless they’ve been proven guilty beyond a reasonable doubt. There’s an obvious exception for those who try to evade the law by not appearing in court, because one shouldn’t be able to avoid a just imprisonment by simply flouting the law. But other than that, courts have no business putting people in jail without a trial and shaking them down for money to get out.
…makes a reference to prohibiting “excessive” bail. I can’t agree with your logic. I think there does need to be some allowance for holding someone very likely to be dangerous over for trial. It also seems like the history of this defendant meets the “obvious exception” standard you suggest.
Amber, the Atty argues indigenice. The court responds with prior missed appearances.
I agree with the premise that poverty should be taken into account, but this seems like a bad example. I note the language that family is not WILLING to pay. We’re they stiffed in a prior missed appearance?
Just as poverty is not a reason to hold, it is not a Get Out of Jail Free card either.
A problem in this case is that the judge would not accept evidence as to this woman’s ability to pay. If an Affidavit of Indigency was filed, as I believe it was, this needed to be properly adjudicated.
Locking someone up for longer than the sentence would be if they were convicted over bail is just wrong. Further, the courts are so clogged with possession cases that it is, in fact, likely this woman will be locked up for far longer than any sentence she might receive. And by the way, the cost to taxpayers is far higher for locking her up. It is often true that the disease of addiction leads to burned bridges with family, who may have been disappointed in countless ways, and given up on this woman. I should mention that under Governor Romney the number of addiction treatment beds in our state was cut by 50%. And for those who think addiction is a choice, well, maybe initially [though for some it starts as early as age 14 when they are trafficked for sex and addicted by a pimp]. And as to “destitute”, some have at most food stamps and zero cash income, and are too far gone to hold any job. I have represented clients who are, frankly, that desperate and are involuntarily placed pursuant to Section 35. A new bill has barred the practice of putting such people in the Framingham Women’s Prison with hardened criminals, but where will the beds be found? See
Treatment no longer behind bars
Saturday
Posted Mar 19, 2016 at 11:25 PM Updated Mar 19, 2016 at 11:25 PM
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By Brittney McNamara
MetroWest Daily News, Framingham
@BMcNamara_MW
FRAMINGHAM – Coming off of opiates is indescribably awful, Kerriann Kilcoyne said, like no flu non-addicts have experienced before. The best explanation she could think of for the feeling is like an exorcism – something awful ripping through your body. And that, Kilcoyne said, is how it feels in the ideal setting for detox, a treatment facility with nurses, comfortable beds and medication. In prison, she said, it’s even worse.
Detoxing from heroin in prison is one thing when you’ve committed a crime, Kilcoyne said. Section 35 of Massachusetts General Law Chapter 123, however, allowed a judge to mandate women who had never been convicted of a crime to come off drug or alcohol addiction in prison at MCI-Framingham if all the addiction treatment beds in the state were full. While some women are sent to the Women’s Addiction Treatment Center in New Bedford, where people civilly committed under Section 35 are intended to go and receive care and treatment for their disease, others were locked in MCI-Framingham where Sen. Karen Spilka said the treatment was lacking.
“If (a woman) was committed and taken to MCI-Framingham, she would go to the infirmary. She would get medical help for five days,” said Spilka, D-Ashland. “Unless a criminal charge was attached, she was not eligible for the full rehab that (she would have gotten) if she went to a … treatment center. That’s what was adding insult to injury. It doesn’t make sense.”
In January, the state Legislature passed a bill to end the practice of sending people with substance use issues to prison under civil commitments. Though the bill bans the practice for men and women, Spilka said it will most affect women because men were already typically heading to treatment. The new law demands the state find a treatment bed for women committed under Section 35, a measure Spilka, who filed the bill, said will not only make access to treatment more equal, but hopefully – coupled with the state’s new opiate bill passed by Gov. Charlie Baker – make for more successful treatment and recovery for more women addicted to opiates.
Spilka said she started investigating the civil commitment law after she heard women were being sent to prison without having committed a crime. Because addiction is a disease, Spilka said, it didn’t make sense to her that part of the way the state was treating it was with prison.
What is civil commitment?
Massachusetts General Laws Chapter 123, Section 35 permits the courts to involuntarily commit someone whose alcohol or drug use puts themselves or others at risk. Such a commitment can lead to an inpatient substance abuse treatment for a period of up to 90 days.
Under the law, the person can be committed to a licensed treatment facility or, if none is available, to a separate unit at the correctional facility at Bridgewater for men or Framingham for women.
In 2006, a new system of care for women was established and in 2008, a similar one was established for men. The Women’s Addiction Treatment Center (WATC) is in New Bedford and the Men’s Addiction Treatment Center (MATC) is in Brockton. Both provide intake and treatment for those civilly committed under this law.
Source: Mass.gov/eohhs
“Often if the judge did not have beds available, they would end up committing the woman to MCI-Framingham. Many families, if not the majority, had no idea that’s where their loved one would end up. They thought they were bringing the issue to court to have them committed to treatment and rehab,” Spilka said. “It seemed outrageous to me at the time. Women struggling with substance abuse need treatment, not jail, not prison.”
Kilcoyne, 31, said she has detoxed a few times in jail and many times in treatment. She is now nearly two years sober and working as a recovery specialist at Boston’s Dimock Center. Though she was never committed under Section 35, Kilcoyne said she saw women detoxing under Section 35 during her stays.
“(These women) haven’t committed any crimes and they’re literally next to someone who has murdered two people. Where’s the balance there?” Kilcoyne said. “They are not getting the medication they need, they are not getting the treatment they need by the doctors or the nurses. Framingham (prison) is not a treatment facility, it’s not a hospital. It’s a prison.”
Women committed to the prison under Section 35 are supposed to be separated from the general population.
Research by Dr. Erika Kates at the Wellesley Centers for Women shows women who were sent to MCI-Framingham under Section 35 were not, in fact, receiving the same treatment as women sent to the Women’s Addiction Treatment Center.
According to a fact sheet from Kates’ Women’s Justice Network, the treatment center housed 1,247 women under Section 35 in 2012, and the prison accepted 310 Section 35 commitments. Unlike the prison, the treatment center is not a locked facility and provides a series of care including transitioning into society and re-entering the family, the fact sheet states. According to the treatment center website, it provides detox services with 24-hour nursing care, individual and group counseling, education on relapse prevention and coping skills, family education and short-term residential treatment. The prison allows women to detox and provides information on and referrals for treatment once women are released, the fact sheet says.
“Women do not receive treatment following detoxification because a court order prohibits the prison from offering treatment to women with Section 35 commitments,” Kates’ research shows. “(The Woman’s Addiction Treatment Center) provides women with community referrals following their treatment; but women in MCI-Framingham did not receive placement assistance for treatment from (the Department of Public Health) until 2013.”
Kilcoyne and Kates agreed that civil commitments, while somewhat punitive, are often necessary. Kilcoyne said she only got clean after she was forced to sit, detox, and think about her life. Kates asked women in residential recovery programs whether detoxing in prison “saved their lives,” after hearing many judges claim they were sentencing women to do just that. While some said prison helped them turn around – as it did for Kilcoyne – the women agreed it wasn’t the detox that made the difference.
“Very few of the women said I think it did save my life. What they will all agree is that wasn’t enough,” Kates said. “The treatment that followed was inadequate in a prison setting. Maybe that night it worked and the next night. But ultimately, that type of treatment doesn’t work. What they need is the kind of place in which I held these focus groups: residential.”
Treatment where women are made to detox, then provided with community and peer support, various options to include their children and families, and a place to live that encourages sobriety are ingredients that form a successful program, Kates said. In prison, she said there is no community of support and no focus on sober living. The impact that environment can have on a woman’s mindset while detoxing, Kilcoyne said, is significant.
“What can happen unfortunately is you get used to the life. That happens to a lot of people,” Kilcoyne said. “What I’ve seen is they get back on the street with that jail mentality. You get kind of stuck in that life, as opposed to treatment. Jail, you really don’t have to work on yourself, you can kind of just go through the motions. But programs, you have to look at why you end up here.”
The introspection in treatment is the biggest difference, Kilcoyne said.
“In a program setting, they really encourage women, ‘don’t go home, you need further treatment,’” she said. “If a female is sitting in Framingham, she’s going to be almost revengeful. There’s no thought of treatment.”
District Attorney Marian Ryan said the reason the prison shouldn’t be used as a detox center goes back to why Spilka proposed the bill in the first place.
“We have had the experience of having people tell us that … was a turning place for them. We certainly have had people say that,” Ryan said. “I think the difference here was that people were being committed under Section 35 were not convicted of committing a crime. That is a place where we usually send people awaiting a trial or serving a sentence. It has that impact of being more punitive.”
Spilka said her civil commitments bill is designed to get all women into the environment that they need. The legislation will now put women in Shattuck and Taunton State Hospitals, where the state will add a total of 43 recovery beds to accommodate the change. The state dedicated $5.8 million for the 43 beds, which Spilka said makes a total number of beds for civil commitments more than had been housed in the prison at any one time. The state will add 20 more beds in Taunton this summer, according to a press release from the governor’s office.
It is unclear if the number will actually meet demand, though. A Freedom of Information Act request for the total number of civil commitments at MCI-Framingham over the past three years on record was still pending with the Department of Corrections at presstime.
“We are creating more beds than are normally being taken at any one time at MCI-Framingham,” Spilka said. “I am hoping we have enough beds, I am hoping more women take advantage of this.”
Ryan said that whether or not the added beds are enough, there’s a requirement that the state find a bed for civil commitments.
“There’s a requirement that a place be found. My understanding is there is some ability … to use private facilities,” Ryan said. “The number of detox beds and the availability is a challenge every day.”
Beyond the beds, though, Spilka said she hopes the legislation, coupled with the newly signed opioid bill, concretely change how the state treats addiction. Rather than treating it as a crime, Spilka said the state should recognize addiction for what it is: a disease.
“It’s wonderful to see both having a more appropriate treatment for women and to finally be looking at this as a disease and approaching this as we would another disease,” Spilka said. “It’s been a long time coming to get to this.”
Brittney McNamara can be reached at 508-490-7463 or by email at bmcnamara@wickedlocal.com. Follow her on Twitter at @bmcnamara_MW.
WAS an affidavit filed? You believe so, but before using this as an example that should be verified.
WAS the family held financially responsible for the prior failures to appear that were mentioned? If the bond was 10%, they are on the hook for $2,500. I question why the family is not WILLING to pay, as stated.
And about the disease aspect – let us pretend this is not the currently ‘hot’ issue of opioid abuse. Let’s say it is another disease like kleptomania. Should a kleptomaniac be allowed to continue to shoplift? At what point does it stop being a medical problem and become preying? Should all kleptomaniacs be given the ability to skip court appearances due to their disease?
It is not a great shock that an addict is not merely poor but destitute. But her behavior is still illegal, just like the shoplifter. At what point do laws become overruled by medical diagnoses? You are an attorney, you understand the implications of this. If medical condition allows no bail, must you BE indigent? Can a millionaire drug addict also not post a bond? Addiction is not a class based disease – both are equally sick. How should the LAW treat them, not society, but the blind justice system?
BTW, I live in an area with ZERO female beds, public or private for decades so MCI was always where women had to go. Being able to detox in the local jail was a big step forward.
DSM-5 and other sources would be a good place to start. Our current problems with opioid addictions is much more than a “hot issue” like “Pokemon Go”, it is a symptom of a society that is ill. It is not limited to the individual, like a broken arm or astigmatism.
Our growing wealth disparity causes people to feel they are excluded and this social reality produces a depressive effect on many. People in depression seek a way out and mind altering drugs are a way out.
We have a sick society. We have to stop digging.
…as to which DSM afflictions should be decriminalized? Remember, in its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.
Or steal jewelry. Or use heroin. So applying equally to Rich and Poor, which conditions deserve to be treated as medical issues rather than legal ones?
It is a scientific publication and it ought to be a guide as to what amounts to a crime and what is an illness. Or do you propose we go back to our roots and start dunking people? whose behaviors we object to and do not fully understand?
We need to get past policies that are ideologically driven. What we need is evidence-based policy—what works to lessen this sort of behavior instead of just punishing it. Look around the world and you will see that this current system only increases addiction, poverty and crime.
My impression, as a lay person, is that most criminal statutes include language about motive and intent.
It seems to me that, even under existing law, those defendants who have competent legal counsel and who can show a connection between one or more disorders (including those in DSM-5) and their alleged actions are already able to avoid incarceration.
I’m not sure the proposal is to “decriminalize” anything (although our current legal approach to heroin is insane). I think the commentary here is, instead, to emphasize that in a state that often fails to provide competent legal counsel to indigent defendants, the effect is to jail the indigent for being poor.
When the same act is committed by a destitute woman and by a more prosperous matron, and the destitute woman goes to jail because she can’t afford a competent lawyer while the prosperous matron walks because she can, then we are effectively punishing poverty by prison.
To specifically answer your question, there is no dichotomy between “medical” versus “legal” issues. The “Poor” should be as able as the “Rich” to show that the behavior was caused by a medical issue and should not, therefore, be punished as a criminal matter.