A Yawning Black Abyss: Section 35 and the Equal Protection of Women in the Commonwealth of Massachusetts
Chisholm, Gregory D., Suffolk University Law Review
"The lack of DPH [(Department of Public Health)] publicly funded substance abuse treatment facilities has created a situation where people are using Section 35 as a means to access the MCI-Framingham publicly funded detox program." (1)
"MCI-Framingham is not designed, equipped or staffed to serve as an acute treatment facility for substance abusers.... [W]omen should not be civilly committed to MCI-Framingham." (2)
Since January 2010, more than 1,000 women spent at least one night at MCI-Framingham on a civil commitment for substance abuse. (3)
In Massachusetts, an individual with a drug or alcohol problem may be confined against his or her will in a publicly funded detoxification facility. (4) such a confinement is known as a civil commitment, and may occur (pursuant to chapter 123, section 35 of the Massachusetts General Laws (Section 35)) upon the petition of certain relatives of the individual or other official personnel, and after both an examination by a psychologist and a hearing before a district court judge. (5) A civil commitment may last up to ninety days. (6) When no beds are available at a publicly funded detoxification facility, an individual may nonetheless be detained in one of two facilities: Bridgewater State Hospital (BSH), if male; or the Massachusetts Correctional Institution at Framingham (MCI-Framingham), if female. (7) BSH is a state hospital specifically designed to provide "specialized care and treatment." (8) MCI-Framingham is a state prison, "not designed, equipped or staffed to serve as an acute treatment facility for substance abusers." (9)
This Article argues that the dichotomy created by Massachusetts's civil commitment laws for alcoholics and substance abusers, which sentence men to a hospital and women to a state prison, is a violation of the equal protection of Massachusetts's laws. The Massachusetts Constitution contains what is commonly referred to as the Massachusetts Equal Rights Amendment (MERA), which provides that: "Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin." (10) The Massachusetts Supreme Judicial Court (SJC) has interpreted the MERA to mean that any law that invokes a sex-based classification is suspect and is constitutional only if it is narrowly tailored to achieve a compelling government interest. (11) This Article contends that based on the SJC's equal protection jurisprudence interpreting the MERA, the civil commitment law that sends men to a hospital and women to a prison is unconstitutional. part II of this Article examines the history and evolution of the civil commitment law. part III explains the commonly accepted equal protection jurisprudence under the Federal Constitution. Part IV examines the SJC's own sex-based equal protection jurisprudence. part V argues that based on this jurisprudence, the civil commitment law is unconstitutional.
II. SECTION 35: CIVIL COMMITMENT OF ALCOHOLICS AND SUBSTANCE ABUSERS
Massachusetts has a history of civilly committing alcoholics via statute dating back to the nineteenth century. (12) Indeed, sex-based division in the statutory scheme also has a history nearly as long: in the early twentieth century, alcoholic men were committed to a special hospital for alcoholics, while their female counterparts were detained in one of the state lunatic hospitals. (13) Today, this division endures, if in slightly different form. The modern incarnation of the civil commitment statute was enacted in 1970 and provides that men may be civilly committed to BSH, while women instead are eligible to be committed to MCI-Framingham. (14) This part examines the statutory history of the civil commitment of alcoholics and substance abusers.
A. Historical Precedent for Section 35
In 1885, the Massachusetts legislature enacted a law providing that "[w]hoever is given to or subject to dipsomania, or habitual drunkenness, whether in public or in private, may be committed to one of the state lunatic hospitals. …