by Steve Horn
It has killed far more Americans than the terrorist attacks of September 11, 2001, claiming over 200,000 lives since 2010 according to the U.S. National Institute on Drug Abuse. It has swept the nation, from large cities to small towns in every state. A 2017 report from the White House’s Council of Economic Advisers put its estimated cost at $504 billion in 2015 alone.
“It” is the opioid epidemic, which has left a trail of addiction and death in its wake. As with crack cocaine and meth, opioid abuse has led to a new front in the so-called War on Drugs, filling prisons and jails with those who sell and use heroin, fentanyl and prescription meds such as oxycodone and hydrocodone.
While some of the people convicted of opioid-related charges face involuntary civil commitment or court-ordered drug treatment, most end up in prisons or jails where there is a general lack of substance abuse programs. Worse, some correctional facilities have banned medications that doctors and public health officials say could help treat opioid addicts who end up behind bars.
In addition, a black market has developed inside jails and prisons to provide opioids to incarcerated addicts, leading to overdoses and deaths.
Some detention facilities, however, have taken innovative approaches to tackling the opioid problem, swapping incarceration for treatment. Others emphasize medication-assisted treatment (MAT), which involves the use of drugs that can fend off withdrawal symptoms and keep addicts off illegal opioids.
Solutions to the opioid epidemic are desperately needed; according to the National Institute on Drug Abuse, “Every day, more than 130 people in the United States die after overdosing on opioids. The misuse of and addiction to opioids – including prescription pain relievers, heroin, and synthetic opioids such as fentanyl – is a serious national crisis that affects public health as well as social and economic welfare.”
President Trump declared the epidemic a national emergency in August 2017; that year alone over 47,000 people died due to opioid overdoses.
Opioid Epidemic in Prisons and Jails
It is not clear exactly how many prisoners have substance abuse problems. What is clear, though, is that a huge percentage of the nation’s prison and jail population suffers from drug addiction. The Bureau of Justice Statistics (BJS), part of the U.S. Department of Justice (DOJ), estimated in a 2017 report that two-thirds of offenders held in state prisons and local jails had substance abuse problems, yet only a quarter of that group received adequate drug treatment.
The BJS data was collected between 2007 and 2009. A 2016 study published in the journal Substance Abuse and Rehabilitation estimated that between 24 and 36 percent of opioid-dependent adults cycle in and out of jails each year, creating a cycle between drug addiction and incarceration. And studies indicate that addicts swept up in the opioid epidemic have not fared well while locked up.
One of those studies, a long-term look at state prisons in North Carolina, found that prisoners who were addicted to opioids were 42 times more likely to die from an overdose within the first two weeks after their release than people in the general population, partly because they had lost their tolerance for drug use during their incarceration. Even a year after release, former prisoners were 11 times more likely to suffer a fatal overdose. A similar study in Massachusetts put the risk of overdose deaths even higher, at 142 times that of the general populace.
The North Carolina study, titled “Opioid Overdose Mortality Among Former North Carolina Inmates: 2000-2015,” published in August 2018 in the American Journal of Public Health, examined data over a 15-year period. Covering 230,000 former prisoners, it is the largest study of its kind in the United States.
The Massachusetts report, “An Assessment of Fatal and Nonfatal Opioid Overdoses in Massachusetts (2011-2015),” was published by the state’s Department of Health in August 2017. It found that 50 percent of all deaths among released prisoners could be traced back to the opioid epidemic.
Shabbar Ranapurwala, lead author of the North Carolina study, said there must be improvements made in the support system for released prisoners, of whom many are mentally ill and most of those – two-thirds, in fact – are not receiving treatment. The Affordable Care Act extended Medicaid coverage to help this population, but at least 34 states have terminated coverage for parolees, leaving them with few other resources.
“As a society, we do not do enough to rehabilitate formerly incarcerated individuals back into our world,” Ranapurwala observed.
Maryland officials were lauded in 2016 for their decision to ease Medicaid enrollment for newly released prisoners by providing them presumptive eligibility for temporary enrollment while their applications are processed. But two years later that process had barely been used, with officials claiming it was meant only as a “backup” for enrolling former prisoners through the state’s normal application system.
The state’s Department of Health “works to ensure Maryland Medicaid services are available to all those who qualify,” stated spokeswoman Brittany Fowler. But officials said the number of released prisoners enrolling in Medicaid now – 217 a month, or 12 percent – has barely changed from the number enrolling when the presumptive eligibility process was implemented. At that time, state health officials said there were about 150 enrolling every month, or 11 percent of those leaving Maryland state prisons.
“What a bummer about how this is playing out on the ground,” said Dan Mistak, who serves as general counsel for a national advocacy group called Community Oriented Correctional Health Services.
“It’s great they got this [presumptive eligibility] passed, but in order for it to be meaningful it needs to be implemented,” agreed Deborah Agus, executive director of the nonprofit Behavioral Health Leadership Institute, who wants to see the state use its authority to sign up more newly released prisoners for temporary Medicaid coverage.
Maryland Department of Public Safety and Correctional Services spokesman Gerard Shields said the agency plans to eventually offer more treatment programs to prisoners before their release, under a five-year, $378 million plan announced by Governor Larry Hogan. The state counted 1,848 overdose deaths in the first nine months of 2018 – about four times as many as during the same time period in 2010 – with most of the recent deaths linked to fentanyl.
According to the federal Centers for Disease Control, fentanyl deaths spiked by 1,000 percent nationally from 2011 to 2016.
An article published in the Annals of Internal Medicine catalogued post-release mortality rates of former Washington Department of Corrections (DOC) prisoners from 1999 through 2009. A seminal study that has been cited 133 times by other academic papers, according to Google Scholar, it examined over 76,000 releasees from Washington prisons during that time period and concluded that opioid overdoses were responsible for more than 14 percent of all post-incarceration deaths.
There is an apparent disconnect between a prisoner’s addiction, which is a medical problem, and his incarceration, which is focused on punishment – or as the co-authors of the North Carolina study put it, “society incarcerates individuals to punish them for unacceptable behaviors and criminal activities but does very little to rehabilitate them back into the society upon release from incarceration.” While prisons and jails largely fail to provide treatment to prisoners with drug problems, the criminal justice system continues “to incarcerate those with substance use disorders.”
Many within the medical and academic communities insist that things don’t have to be this way, pointing instead to a simple solution for people addicted to opioids: medication-assisted treatment.
Just as it sounds, MAT provides various medications along with counseling to fend off the chemical dependency that is part of opioid addiction. Three main types of MAT drugs exist: methadone, buprenorphine (e.g., Suboxone) and naltrexone (e.g., Vivitrol). All are common outside of prisons, but although hailed within the scientific and medical communities as a key component of a comprehensive treatment plan, most correctional facilities have prohibited their use.
Maryland allows incoming prisoners already on methadone to continue receiving treatment, but that form of MAT isn’t offered otherwise. The federal Bureau of Prisons (BOP) allows new prisoners to receive methadone for detox, but it isn’t provided to those already on the drug for treatment. Rhode Island makes all three MAT drugs available for state prisoners addicted to opioids.
While the North Carolina study pointed out that MAT is an ideal way of dealing with the issue of opioid dependency, few prisons and jails in the U.S. allow medication-assisted treatment. For example, a spokesman for the National Sheriffs’ Association said in a July 2019 article published by The Appeal that over 270 local jails offer some form of MAT – out of more than 3,100 jails nationwide.
Those dynamics are a result, the authors of the North Carolina study wrote, of a lingering “stigma surrounding these modalities.”
The U.S. Department of Health and Human Services considers MAT to be the standard of medical care for people with opioid addictions.
“Offering MAT in correctional settings has been shown to reduce recidivism, overdoses, and criminal activity among people who are incarcerated, and help support them in their recovery from substance use disorders,” stated Evan Frost, spokesperson for New York’s Office of Alcoholism and Substance Abuse Services.
In March 2018, the DOJ announced that it was investigating whether the Massachusetts DOC’s ban on certain MAT options violated the Americans with Disabilities Act (ADA), which the DOJ argued protects people with opioid addictions. While not concluding that the state had violated the law, DOJ officials reminded Massachusetts that it “has existing obligations to accommodate this disability.”
Following up on the DOJ’s letter, the American Civil Liberties Union (ACLU) of Massachusetts filed a federal lawsuit in September 2018 against the state DOC over its MAT policy. On November 26, 2018, the district court issued an injunction that halted the policy and ordered the DOC to provide methadone to the plaintiff in the case, prisoner Geoffrey Pesce, as part of his opioid dependency recovery process. The case remains ongoing but has been stayed pending settlement negotiations. See: Pesce v. Coppinger, U.S.D.C. (D. Mass.), Case No.1:18-cv-11972-DJC.
Ironically for the DOJ, the Bureau of Prisons was sued in March 2019 by Stephanie DiPierro, a Massachusetts federal prisoner who asked a U.S. district court to allow her to continue methadone treatment for her recovery from heroin addiction. The 38-year-old DiPierro was convicted of collecting food stamps and disability benefits while failing to report income from a job she also held, and received a sentence of one year and a day. She developed her addiction to opioids in her teens, following her mother’s death from cancer.
“Methadone gave me my life back,” said DiPierro, who began treatment in 2005. Without methadone treatment, upon her release, “I will lose control of my addiction and I will relapse, overdose and die,” she said.
In her lawsuit, she raised claims under the Eighth Amendment, the Rehabilitation Act and the Administrative Procedures Act. The BOP agreed to provide DiPierro “with access to her physician-prescribed methadone dose throughout the duration of her incarceration,” and informed the court that she will be sent to the Federal Medical Center in Carswell, Texas to receive methadone treatment for her heroin addiction.
Based upon that agreement, the case settled in June 2019. See: DiPierro v. Hurwitz, U.S.D.C. (D. Mass.), Case No. 1:19-cv-10495-WGY.
“This resolution affirms one basic principle: People suffering from substance use disorder deserve just treatment,” declared Carol Rose, executive director of the ACLU of Massachusetts, which represented DiPierro alongside the Boston-based law firm of Goodwin Procter.
While estimating that 40 percent of its 180,000 prisoners have drug addictions, the BOP typically allows methadone only to help pregnant prisoners and those who need detoxification upon intake, but not for ongoing treatment. [See: PLN, Dec. 2017, p.14].
On March 27, 2019, U.S. District Court Judge Nancy Torresen granted plaintiff Brenda Smith’s motion for a preliminary injunction, ordering Aroostook County, Maine and its sheriff, Shawn D. Gillen, to allow Smith to receive prescribed buprenorphine for her opioid addiction during her upcoming sentence at the county jail, or to release Smith “on medical furlough if the jail is otherwise unable to accommodate her needs.”
Smith, who was convicted of stealing $40 left behind at a Walmart checkout terminal in December 2017, was due to begin her 40-day sentence on April 1. After her attorney learned that Smith would not be allowed to continue her medication-assisted treatment at the jail, she filed suit claiming the denial of MAT would violate the Americans with Disabilities Act and her rights under the Eighth Amendment. Smith once spent seven days in the York County jail without her medications, and described her withdrawals as “the worst pain she has ever endured.” She also recalled “experiencing suicidal thoughts for the first time in her life.”
“Given the well-documented risk of death associated with opioid use disorder, appropriate treatment is crucial,” Judge Torresen wrote in her order granting the preliminary injunction. “People who are engaged in treatment are three times less likely to die than those who remain untreated.”
Judge Torresen noted that the defendants’ initial filings had said “categorically that buprenorphine is not allowed in the Defendants’ facility and ... do not mention the possibility that [they] would in any way accommodate Ms. Smith’s request for her medication.” However, “just over a week before the evidentiary hearing on the Plaintiff’s preliminary injunction motion was scheduled to begin, the Defendants changed tack. They now argue that the Jail has always made a case-by-case assessment of the medical needs of inmates who have been prescribed MAT by outside providers, and that the Defendants will do the same for Ms. Smith.... The Defendants’ insinuation that this is all merely a misunderstanding is unsupported.... The more probable story is that the Defendants realized that they faced a greater risk of losing this lawsuit than they first thought, and that their efforts to rewrite the history of this case are meant to muddy the waters and avoid an unfavorable ruling.”
Judge Torresen found that Smith was “likely to succeed on her ADA claim under a disparate treatment theory,” because a pregnant woman was once allowed to receive her MAT drugs at the Aroostook County jail, and was also “likely to succeed on the theory that she was denied a reasonable accommodation” under the ADA. See: Smith v. Aroostook County, 376 F.Supp.3d 146 (D. Me. 2019).
The district court’s order granting the preliminary injunction was affirmed by the First Circuit Court of Appeals on April 30, 2019, which found no abuse of discretion by Judge Torresen. See: Smith v. Aroostook County, 922 F.3d 41 (1st Cir. 2019).
Following the judicial rulings, Aroostook County officials decided to reduce Smith’s sentence to a $100 fine with no jail time. She was represented in her lawsuit by the Maine ACLU.
And on April 29, 2019, the ACLU of Washington and Whatcom County officials filed a proposed settlement in federal district court. The agreement requires the Whatcom County Jail (WCJ) and Whatcom County Sheriff’s Office to provide medication-assisted treatment to prisoners suffering from opioid addiction.
The proposed settlement resulted from a class-action suit filed by the ACLU on behalf of plaintiffs Gabriel Kortlever and Sy Eubanks. The class includes all non-pregnant prisoners who have an opioid use disorder (OUD) and are, or will be, held at the WCJ.
According to the complaint, when prisoners suffering from OUD are forced into withdrawal, there is a high risk they will experience a fatal overdose within two weeks of their release. Left untreated, people with OUD will return to using opiates in the same quantity or dosage as before they were incarcerated.
The WCJ’s former policy provided MAT, including methadone and Suboxone, only to prisoners who were pregnant. All other prisoners were required to go through withdrawal, aided only with Phenergan (an antihistamine for treating nausea and vomiting), Imodium for treating diarrhea and Tylenol.
Additionally, prisoners with OUD who were already participating in MAT when they were booked into the jail were forced to discontinue their treatment. Kortlever asserted that his withdrawal from MAT – he had been prescribed Suboxone – was more severe than withdrawal from heroin. Once a person’s medication-assisted treatment is interrupted, it is extremely difficult to get back on it. In such cases, many people with OUD return to using opioids, including heroin, which puts them at risk of fatal overdoses.
In addition to providing MAT to opioid-addicted prisoners at the WCJ, the settlement requires the jail to make transition planning available to all prisoners participating in MAT so they may continue treatment upon their release. The district court granted final approval of the settlement on July 9, 2019, including $25,000 in attorney fees and costs plus $1,000 payments to Kortlever and Eubanks as class representatives. See: Kortlever v. Whatcom County, U.S.D.C. (W.D. Wash.), Case No. 2:18-cv-00823-JLR.
Expanding Prison-Based MAT Programs
A 2018 Boston Globe article claimed letters of the sort sent by the DOJ to the Massachusetts DOC, and subsequent legal actions taken either by that agency or civil rights groups, could become more common.
“There is going to be a national move on the part of the U.S. Department of Justice to start addressing these blatant violations of the Americans with Disabilities Act,” said Leo Beletsky, a professor of law and health sciences at the University of California-San Diego and Northeastern University, who added that prison and jail policies opposing MAT “are baked in stigma” and “not based on any scientific rationale.”
Echoing his comments, the American Medical Association (AMA) has called for the expansion of prison MAT programs. Rhode Island officials report that the state’s “$2 million program has already saved lives,” with just nine deaths attributed to drug overdoses among recently incarcerated prisoners in the first half of 2017 – a 60.5 percent drop from 26 deaths during the same period the previous year.
To date, however, just a handful of other states have followed Rhode Island’s lead.
In February 2019, Maine Governor Janet Mills issued an executive order to increase access to MAT in the state’s prisons and jails, which the DOC had previously banned. The policy change was endorsed by Corrections Commissioner Randall A. Liberty, who has served as warden of the Maine State Prison since 2015.
Additionally, according to July 2019 news reports, the Delaware Department of Correction has taken steps to expand the use of prison-based MAT programs, including the provision of buprenorphine, methadone and Vivitrol to prisoners with opioid addictions.
A report by the Delaware Drug Overdose Fatality Review Commission, released in May 2019, found that of the 400 people who suffered fatal overdoses in the state in 2018, 30 percent had previously been incarcerated and half of those deaths occurred within three months of release.
“Eventually for folks who are going to be released from prison, who we know had an opioid use disorder in the past, we now have the ability to offer to start them on MAT about a month or so before they leave prison and most importantly link them to the community so they continue to get their medication and treatment in the community,” said Dr. Marc Richman, chief of Delaware’s Bureau of Correctional Healthcare.
MAT programs are also available in state prisons in Pennsylvania, Connecticut, Vermont, New Hampshire and New Jersey. The Virginia DOC recently indicated it plans to start a MAT program, too. While New York City’s jail system provides medication-assisted treatment, MAT only recently became available at one New York state prison – the Elmira Correctional Facility – for prisoners on methadone who are serving two years or less. Previously, New York jail prisoners had to taper off MAT drugs before being sent to state prison. [See related article on p.14].
Rhode Island Governor Gina Raimondo said more states could adopt prison-based MAT programs if there is sufficient political will.
“Our medically-assisted treatment program – that could easily be federally funded,” she noted. “It could be done in 50 states tomorrow. For a small investment, we could save thousands, tens of thousands of lives.”
The United Nations’ World Health Organization (WHO) has also weighed in on the issue, saying all opioid-dependent prisoners should have access to medication-assisted treatment. The WHO further specified that MAT should not center around Vivitrol, a drug that serves as a “valuable additional option, because it gives a lower rate of relapse,” but which should not stand alone. [See: PLN, Oct. 2014, p.24].
“Patients not in treatment in prison should be given the opportunity to start methadone or buprenorphine in prison, even if they have only a short period of their sentence left to complete,” the WHO wrote in its 2009 “Guidelines for the Psychosocially Assisted Pharmacological Treatment of Opioid Dependence.” Beginning what is technically known as “opioid agonist maintenance treatment” while people are incarcerated “reduces the high risk of overdose and death on leaving prison, and reduces reincarceration rates,” the report added.
The odds of ending the cycle of addiction increase by a multitude of 14 for those who participate in a comprehensive MAT program during and immediately after incarceration, according to a 2013 journal article in Swiss Medical Weekly. Yet while MAT is known to be highly effective, common sense has not prevailed on its use in the U.S. prison system.
“[I]nitiating MAT behind bars and linking re-entering patients to community-based treatment services should be a widespread, standard practice,” declared a 2015 paper published by the Northeastern University Law Journal. “Shockingly – and inexplicably – this is far from reality, as MAT availability to opioid dependent individuals in incarceration settings is almost entirely lacking.”
That may change soon in California, however, where the number of prisoner overdoses more than doubled from 469 in 2015 to 997 in 2018.
In October 2018, Clark Kelso – a law professor at the University of the Pacific who was appointed by a federal court to oversee medical care in California’s prison system – authored a memorandum calling for the state to move toward implementing MAT. The memo was in response to a paper written by a doctor at San Quentin State Prison.
“Detailed planning will occur over the next four to six months with the expectation of presenting the initial plan to the Administration and Legislature in time for possible inclusion in the 2019-2020 budget,” Kelso stated.
California Governor Gavin Newsom subsequently included $71.3 million in his May 2019 revised budget to establish MAT and other treatment programs in all state prisons. That funding will increase to $161.9 million in 2020.
“Our nation has seen an unfortunate increase in drug overdoses, hospitalizations and deaths due to opioids in recent years and the California state prison system is no exception,” stated California Department of Corrections and Rehabilitation (CDCR) spokeswoman Vicky Waters.
Going to the MAT for Vivitrol
At the federal level, the Trump administration has signaled support for MAT but only for one of the treatment drugs: Vivitrol. This has caused some to question the White House’s relationship with Alkermes, the drug’s manufacturer, whose stock price shot up immediately after the administration announced its support in March 2018.
During the 2018 midterm election cycle, Alkermes gave heavily to candidates running on both sides of the political aisle on the federal level, donating more than $200,000 in total. The company has also spent over $4.7 million on lobbying at the federal level during Trump’s first two years as president.
Additionally, Alkermes’ lobbyists have written the company or its products into 70 different pieces of legislation in 15 states, according to an investigative story published by National Public Radio (NPR)in June 2017. One of those bills, in Indiana, even had Vivitrol’s name in its title.
In a flashy press release on December 11, 2018, Wisconsin’s Department of Homeland Security (DHS) announced that it had issued over $1.3 million in grants for MAT in 16 county jails in response to the opioid epidemic, with the funding authorized by Wisconsin Act 261. Yet that legislation mandates such funding “may be used only to provide nonnarcotic, non-addictive, injectable medically assisted treatment to inmates of county or tribal jails who voluntarily receive the treatment within the five days immediately preceding release from jail into the community.”
The “non-addictive, injectable” language was tailor-made for Vivitrol. But to make it crystal clear, the Wisconsin DHS included that same linguistic framework in its list of county grantees for MAT funding.
Alkermes’ aggressive politicking has raised concerns for U.S. Senator Kamala D. Harris, a contender for the 2020 presidential nomination, who has launched a probe into the company.
“Drug addiction touches every community and family in America, and it’s clear that pharmaceutical companies like Alkermes have way too much influence and power and too little accountability,” Harris said in a press release announcing a letter she sent to the company in November 2017 concerning its promotion and distribution of Vivitrol.
“We are at the height of a crisis and companies are taking advantage of pain in order to profit,” Harris said. “We must hold these companies accountable for their deliberate actions that magnify the opioid epidemic and drive up the cost of drugs for Americans.”
In response, Alkermes said it would provide documents pertaining to Harris’ investigation, and made its case as to why it believes Vivitrol is a key component of the opioid addiction recovery process.
“Our goal is to be part of the national solution in addressing a crisis that is consuming families and entire communities,” wrote company CEO Richard Pops. “We encourage you to truly look into the treatment framework in this country. You will find that it is broken and that we can help.”
Yet in Rhode Island, only one percent of prisoners choose Vivitrol from the three MAT options available. Simply put, people who receive medication-assisted treatment claim it does not do as good of a job as the other two drugs – methadone and buprenorphine – in controlling withdrawal symptoms.
“Vivitrol blocks opioids from producing a high. But it doesn’t help with withdrawal symptoms, so it isn’t appropriate for newly incarcerated inmates,” Politico reported in an August 25, 2018 article. “Unlike methadone and Suboxone, Vivitrol doesn’t relieve pain, and its users have to turn to non-opioid analgesics for pain relief.”
Medical experts have called for a mixed solution and patient-centered approach to medication-assisted treatment. In practice, that would mean different MAT options during different parts of the recovery process depending on a patient’s needs.
In September 2018, jail officials in Alameda County, California began offering Narcan – a nasal spray containing the anti-overdose drug naloxone – to newly released prisoners at risk of opioid overdoses. Of 78 prisoners offered the drug in the program’s first three months, 56 accepted.
“We don’t expect every inmate to have their own health care,” said sheriff’s Lt. Ross Clippinger, who works with the county jails. “So, we’re trying to bridge that gap.”
Since the summer of 2016, the sheriff’s office has also equipped deputies with Narcan to use both in the county’s jail system and on the streets. In that time it has been used to save at least eight prisoners at the Santa Rita jail and has been credited with saving two investigators who were exposed to fentanyl in 2017.
Adapt Pharma, Narcan’s manufacturer, counts similar programs around the U.S., said spokesman Thom Duddy, including one at New Mexico’s state prison and another at the Cook County Jail in Chicago. [See: PLN, June 2017, p.38; June 2016, p.22].
“It’s a very progressive approach of going after a very high-risk population,” Duddy said.
Narcan is credited with saving two prisoners who overdosed in January 2019 at Vermont’s Northwest State Correctional Facility; it was also used to save two other prisoners who overdosed in 2018.
“After the weekend here we’ve made a change in policy to make sure that all staff have access to the Narcan,” said Vermont Corrections Commissioner Mike Touchette, who added the recent overdoses were likely due to synthetic cannabinoids known as K2, or Spice. “Generally, our response times [to any incident] are between 10 and 30 seconds, but you know with any overdose event, time matters. Seconds matter.”
Prison Opioid Overdoses, Black Market
Though cordoned off from the outside world, prisons do not provide a safe haven from drug trafficking, thus prisoners with addiction problems often have easy access to drugs – which undermines available treatment programs. Many case studies exist as to how opioids and other drugs find their way into prisons and jails, but the end result is more deaths and hospitalizations due to overdoses.
Ohio’s Ross County Correctional Institution saw 29 people hospitalized for exposure to fentanyl in August 2018. One prisoner who overdosed “was not responsive and not breathing when he arrived at the emergency department,” the Columbus Dispatch reported.
In November 2018, a prisoner at the Miami-Dade County Jail in Florida died after overdosing on a synthetic strain of fentanyl created by two other prisoners, who now face murder charges. Under a law passed in Florida in 2017, dealers of this potent synthetic opioid, which is 50 times stronger than the average variety, can receive a life sentence or even face the death penalty. North Carolina passed a similar law, charging at least 20 opioid dealers with murder over the past two years.
In 2017, two prisoners at the Miami-Dade County Jail died due to drug overdoses and others had to be hospitalized. In October 2018, the Miami Police Department announced that it would be using a $1.6 million federal grant to divert people who overdose on opioids to hospitals and health care facilities rather than jails.
In the last six months of 2018, emergency medical services responded to 155 calls for an ambulance from San Quentin State Prison in California, according to the county’s public health director, Dr. Matt Willis. Of those calls, ten were for suspected overdoses, two of which proved fatal for Herminio Serna, 53, and Joseph Perez, 47, who were both awaiting execution on the state’s death row.
“This is clearly a spike in overdose events, on top of a baseline of one or so per month,” Willis said.
“Drugs do find their way into the state’s 35 institutions,” admitted Terry Thornton, a CDCR spokeswoman. “There’s no tolerance for this. It really undermines safety.”
Twenty-nine CDCR prisoners succumbed to fatal drug overdoses in 2016, with another 40 deaths in 2017 and 35 more through the beginning of December 2018, according to California Correctional Health Care Services.
And in June 2019, one Virginia prisoner died and seven others were hospitalized due to overdoses at the Haynesville Correctional Center.
The carnage from opioid overdoses in recent years has stretched not only into large states like California, Florida and Ohio but also to Oklahoma, Rhode Island, Connecticut and beyond. In April 2019, four Connecticut prisoners at the Hartford Correctional Center overdosed on fentanyl. One of them died.
This begs the question: How do the drugs get inside prisons and jails?
California officials report that drugs have been thrown over the fences of state prisons, brought in by visitors, sent in through the mail or even dropped from drones. [See: PLN, Sept. 2016, p.18].
A Minnesota prisoner who smuggled heroin into the Hennepin County jail in a body cavity was convicted of third-degree murder in February 2019, after she admitted giving a lethal dose of the drug to her cellmate. Cortney Ann Metcalf, 32, will serve an extra six months in the county workhouse in connection with the death of Kristina A. Duren, 40, in early 2018.
New Orleans jail prisoner Darrell Fuller, Jr., 32, pleaded guilty to a manslaughter charge in June 2019 and received a five-year sentence; he had supplied drugs to another prisoner, Colby Crawford, 23, who suffered a fatal overdose in 2017. Under Louisiana state law, drug dealers can face murder charges if their customers die due to overdoses.
But drugs are often smuggled into jails and prisons by employees, including guards and contract workers.
In South Carolina in October 2018, guard William Shaquille Shuggs was arrested after he allegedly attempted to bring 40 oxycodone pills and 65 ecstasy pills into the Evans Correctional Institution. In August 2018, guard Edwin Berrios, Jr., 22, was arrested at the Camden County, New Jersey jail when he reportedly tried to smuggle opioids to a prisoner, acting as a mule for the prisoner’s girlfriend.
In April 2018 at the South Woods State Prison in Bridgeton, New Jersey, guard David Cade, 53, was arrested for allegedly accepting $1,000 to smuggle Suboxone into the facility. Massachusetts Correctional Institution-Norfolk guard William Holts, 51, pleaded guilty in May 2018 to accepting $2,000 for bringing Suboxone to a prisoner. And in Newport, Vermont, in October 2018 a federal grand jury indicted Northern State Correctional Facility guards Grant Vance and Gregory Paradis for smuggling buprenorphine for prisoners.
There are numerous other examples which indicate the issue of illicit drugs in prisons and jails is often an internal problem involving staff members.
Involuntary Civil Commitment: False Solution?
A type of quasi-incarceration for people with drug addictions is involuntary civil commitment – forced confinement in a treatment center or similar program for weeks or even months. While such programs sometimes include MAT, critics take issue with holding people with drug addictions – a medical problem – against their will.
“Civil commitment for drug treatment is different from the programs offered in drug courts or mental health courts, in which someone who’s charged with a crime, often a low-level offense related to his or her substance use disorder or condition, is given a choice between treatment and jail,” explained a July 19, 2018 article in U.S. News & World Report. “There’s no choice with civil commitment.”
Massachusetts relies heavily on involuntary civil commitment for drug addicts for a period of up to 90 days, known as Section 35 commitments. [See: PLN, July 2018, p.38]. One involuntary civil commitment center is actually located inside the Hampden County jail in Ludlow, Massachusetts. Though not held in cells – those housed at the facility can move about freely within it – it still looks like a jail in photos published by Boston-based radio station WBUR-FM.
“When I was [at a civil commitment center], there were at least 10 fights,” said one former resident. “There’s a lot of physical violence going on there. A lot of people are in a prison mentality. When I was there, I was beat up by two people the first day I was there, and then I went to the hole unit, which is a cell with no toilet, no running water.”
The same source added, “It’s a prison. It’s punishing addicts for being addicts.”
When it comes to battling the opioid epidemic, a 2016 meta-analysis concluded that the rehabilitative results for involuntary civil commitment were mostly negative. The analysis examined nine studies, of which only two found positive outcomes for involuntary civil commitment.
“Three studies (33%) reported no significant impacts of compulsory treatment compared with control interventions,” explained the meta-analysis, published in the International Journal of Drug Policy. “Two studies (22%) found equivocal results but did not compare against a control condition. Two studies (22%) observed negative impacts of compulsory treatment on criminal recidivism. Two studies (22%) observed positive impacts of compulsory inpatient treatment on criminal recidivism and drug use.”
The meta-analysis concluded, “There is limited scientific literature evaluating compulsory drug treatment. Evidence does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms.”
The Massachusetts Department of Public Health studied opioid-addicted patients between 2011 and 2014, finding that those who faced involuntary civil commitment died of an overdose “at more than twice the rate of people who had voluntary treatment.”
Almost 40 states allowed involuntary civil commitment for drug addicts as of 2015, according to the National Alliance for Model State Drug Laws, even though involuntary treatment is contrary to the ethical codes of organizations such as the Association for Addiction Professionals.
“Addiction Professionals understand the right of each client to be fully informed about treatment, and shall provide clients with information in clear and understandable language regarding the purposes, risks, limitations, and costs of treatment services, reasonable alternatives, their right to refuse services, and their right to withdraw consent within time frames delineated in the consent,” the organization’s ethical guidelines state.
Involuntary civil commitment is now under increased scrutiny in Massachusetts, which created a Section 35 Commission in 2018 to examine involuntary civil commitment programs and develop solutions out of the investigative process and accompanying public hearings. The Commission released its final report with a number of recommendations on July 1, 2019.
Broken System, Legal Options
By most metrics, beyond promising developments in a small number of states, such as the adoption of prison-based MAT programs, the U.S. corrections system fails to address the needs of prisoners with opioid addictions. So what can be done? The policy arena is one obvious option, such as legislation, but there is also the legal arena.
A 2015 article published in the Northeastern University Law Journal, titled “Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose among Individuals Newly Released from Incarceration,” offered a list of potential solutions.
One is the “duty of care” argument, which generally applies to health care providers and relates to the legal and regulatory standard of care they owe to their patients. The article argued that prisons and jails have become de facto mental health care facilities which have abdicated their duty of care to imprisoned patients.
“Given that most incarcerated individuals typically go through some form of a health assessment during the intake or booking process, a court may find that a correctional institution has a duty of care after an individual overdose becomes foreseeable as a result of this screening,” the co-authors explained. “This is especially true if the individual exhibits or attests to symptoms or prior diagnosis of substance use disorder or other risk factors for post-release overdose.”
Under the “duty of care” doctrine, plaintiff Stephanie Watson sued the state of Kentucky in federal court in 2015 for violating the ADA by prohibiting any medication-assisted treatment in the state’s Monitored Conditional Release Program.
“This lawsuit is not very complicated, it is whether or not the Court System has a right to interfere with the doctor/patient relationship and prohibit individuals such as Stephanie Watson from receiving competent medical care,” the complaint stated.
“The Defendants’ insistence that Suboxone, Methadone, Vivitrol, or other appropriate drugs are being prohibited from treating drug addiction is inconsistent with the weight of medical opinion including the Federal Office of Drug Policy which indicates that Suboxone, Methadone, Vivitrol, and similar drugs are proper treatment drugs for opiate addicts.”
Watson’s complaint was dismissed in July 2015 after the district court held it was not up to the federal courts to decide what to do about treatment options for addicted prisoners. Instead, U.S. District Court Judge Amul R. Thapar deferred to Kentucky’s state court system to address the issue, and granted the state’s motion to dismiss.
“The Court sympathizes with Watson’s plight. Drug addiction has no easy cure,” wrote Judge Thapar, now a member of the U.S. Court of Appeals for the Sixth Circuit. “Yet, the debate over best practices is something best left to the doctors and state court judges – both of whom deal with drug addiction much more frequently than federal judges. Most importantly, the federal court remains an equal counterpart to the states, not a superior forum.” See: Watson v. Commonwealth of Kentucky, U.S.D.C. (E.D. Ky.), Case No.7:15-cv-00021-ART-EBA; 2015 U.S. Dist. LEXIS 86998.
Yet Watson’s case was never heard by a Kentucky state court – a major step backward for the “duty of care” argument. Indeed, the Northeastern University Law Journal article acknowledged that any such tort claim would face an uphill battle.
“In sum, the strongest torts claim will have elements of timing (proximity to release), continuing supervision, reasonably foreseeable risk (from health screenings, intakes, and observations in custody), a showing of particularized harm to the plaintiff or plaintiff class, knowledge of drug use while in custody, and a failure to intervene that substantially contributes to the harm, ideally to a point of malfeasance on the institution’s part,” the co-authors of the law journal article stated. “Even with all of these elements, depending on the jurisdiction, individual litigants or mass tort suits may face considerable barriers, such as the public duty doctrine, the lack of a customary standard of care, intervening acts that break the chain of causation, and governmental immunity.”
The article also explored other legal avenues, though all present various challenges. More important, the authors argued, is the role litigation can play in spawning potential legislative fixes that get at the root of the opioid epidemic.
“Whether or not impact litigation is ultimately successful in the courtroom, however, it can be used to bring public attention to what is essentially an invisible crisis among our society’s most vulnerable and disenfranchised individuals,” they wrote.
“[A]dvocates will need to educate legislators about the need for these interventions, address common concerns, and explain their potential health, economic, and societal benefits,” the article added. “Even more fundamentally, advocates should appeal to a sense of duty to correct a life-threatening problem of the state’s own making. Indeed, by advancing punitive policies of incarceration for drug use and failing to provide adequate treatment and support services, the state is responsible for substantially exacerbating the risk that someone who leaves a government-run institution will die.”
Still, impact litigation can have results.
In March 2019, Oxycontin maker Purdue Pharma reached a $270 million settlement with the state of Oklahoma. Most of the money – $200 million – will fund a new drug treatment research center at the state university. While $12.5 million will go to local municipalities, five counties that were plaintiffs in the suit have refused to settle, according to their attorney.
Opioid manufacturer Insys Therapeutics agreed to settle federal criminal and civil investigations in June 2019 by paying $225 million. According to NPR, “As part of the settlement, Insys Therapeutics admitted to bribing doctors to prescribe its opioid painkiller,” a fentanyl-based drug called Subsys. Previously, five of the company’s executives, including its founder, John Kapoor, were found guilty of federal racketeering conspiracy charges.
Further, a federal judge in Cleveland, Ohio is currently presiding over a consolidated lawsuit against the pharmaceutical industry brought by roughly 2,000 local governments, Native American tribes and labor unions, which seek to recover their costs to deal with the opioid epidemic. Summit County, Ohio is seeking funds to cover a $6.8 million increase – 43 percent – in public safety and criminal justice expenditures between 2013 and 2016. Hamilton County, Ohio claims its annual costs for its coroner, public defender, sheriff, juvenile court and heroin coalition shot up by $13.5 million between 2014 and 2018.
“That’s a $20 million increase for just two counties,” observed Suzanne Dulaney, executive director of the County Commissioners Association of Ohio.
“A single drug overdose will necessitate the response of two police officers, probably three EMS folks, three vehicles, and that’s on top of the time and equipment,” stated Jay McDonald, president of the Fraternal Order of Police of Ohio. “And in towns like Marion, those happen three or four times a day. And those aren’t fatal overdoses, those are just overdoses.”
The consolidated case, which is being heard by federal judge Dan Polster, remains pending settlement negotiations. Various state attorneys general have filed separate lawsuits against opioid manufacturers, too.
In August 2019, an Oklahoma judge ordered Johnson & Johnson to pay $572 million for its role in driving the state’s opioid crisis.
Meanwhile, on the policy front, U.S. Senators Lisa Murkowski and Margaret Wood Hassan introduced federal legislation, the Mainstreaming Addiction Treatment Act (S.2074), on July 10, 2019. A similar bill was introduced in the House by Rep. Paul Tonko and a number of co-sponsors (H.R.2482).
A New Beginning
The opioid epidemic has slogged on for years in the U.S. – some scholars even say it has lasted for decades – with no end in sight. It is only receiving attention now because it has grown in size, the number of fatal overdoses has increased due to more powerful drugs such as fentanyl, and the crisis is impacting certain zip codes it had not reached previously.
And yet our nation’s criminal justice system has only just begun to tackle the issue, with many states still refusing to do so. Advocates have warned that maintaining the status quo on this problem is equivalent to “a death sentence for so many Americans.”
“As long as politicians remain addicted to mass incarceration, they are needlessly exposing an already disadvantaged group to further risk of substance abuse,” wrote Michelle Chen, a regular contributor to The Nation, in an article published by NBC News. “By contrast, less punitive, socially rooted policies – including rehabilitation programs in prisons and supportive reentry services for people after release – could empower former inmates to live safe, healthy and free in their communities.”
One example of the latter approach can be found in Campbell County, Tennessee, which has implemented a rehabilitative program to give former prisoners with opioid addictions a chance to get into the workforce and obtain steady jobs.
The county’s partner is a non-profit organization called A New Beginning, which forged a relationship with BMT Manufacturing – BMT is shorthand for “Better Made Trailers” – a company that makes heavy-duty trailers for trucks. BMT announced the creation of 148 jobs in July 2018, with the partnership bolstered by support from then-Governor Bill Haslam.
“A New Beginning, Inc. is a jail-to-job training program based in Campbell County, Tennessee where a skilled workforce is lacking due to rampant drug abuse and insufficient training,” the non-profit’s website explains. “The program offers previously incarcerated men who desire to change the direction of their lives trade-skills training and a job at a local business such as BMT Manufacturing with the goal of securing a long-term career. A New Beginning is not rehab; it is a work and training program that reminds people of their value and provides the tools needed to leverage their knowledge and talents for the betterment of themselves, their families, and the community.”
The program demonstrates a paradigm in which a stable career and income is just as important, if not more important, to former prisoners than medication-assisted treatment alone. One scholar who spoke to The New York Times agreed.
“We’ve known since the late 1960s that employment is a powerful predictor of low patterns of alcohol use and better responses to treatment,” said Kenneth Leonard, director of the Research Institute on Addictions at the University at Buffalo. “Similarly, some data suggests that when those addicted to opiates are stably employed and in a relationship with someone who doesn’t use drugs, the outcomes are better.”
Whether it is the adoption of prison and jail MAT programs, other substance abuse treatment options, diversion programs that keep drug addicts out of jail or help obtaining post-release employment, more needs to be done to assist prisoners with opioid addictions, who are at increased risk of fatal overdoses if corrections officials and policymakers fail to take action.
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