Incarceration should not be a death sentence for people who use opioids

The opioid epidemic has gripped communities for more than 20 years. From 1999 to 2022, nearly 727,000 people died from overdoses of prescription or illicit opioids.

Litigation has dramatically changed the political landscape in substance use disorders, and today more than $50 billion in opioid settlements from drug companies, distributors, pharmacies, counselors and others flow into state and local coffers. This creates an unprecedented opportunity to invest in life-saving treatment for substance use disorders.

Importantly, a separate wave of litigation is changing the way prisons and jails care for incarcerated people with opioid use disorder. These lawsuits seek to require prisons and jails to provide opioid use disorder (MOUD) medication to all people for whom it is medically appropriate.

The data is clear: MOUD saves lives. Treating opioid use disorder with methadone and buprenorphine—two of the three FDA-approved MOUDs—is associated with a 50% reduction in mortality.

How MOUD increases positive health outcomes in prisons and jails

People in prisons and jails are far more likely to suffer from opioid use disorder than the general population, which is why MOUD is essential during and immediately after incarceration. The period immediately following release from prison is an extremely dangerous time for drug addicts, particularly those who were denied MOUD while in prison. Recently incarcerated individuals who did not have access to MOUD while in jail or prison are dozens of times more likely to die from an overdose in the weeks following their release than the general population. For those recently released from prison or prison, access to MOUD was associated with a 75% decrease in mortality and an 85% decrease in overdose deaths in the month following release.

How lawsuits help improve access to MOUDs

Denying MOUD access to incarcerated individuals is not only wrong; it is also illegal. With court victories in Massachusetts, Maine, New York, and West Virginia, and settlements and other positive resolutions in Washington, Kansas, Illinois, and New Mexico, the legal foundation is shifting to require access to this life-saving care. In 2022, the U.S. Department of Justice released guidance reaffirming that denial of MOUD may constitute a violation of the Americans with Disabilities Act, and the DOJ resolved several cases requiring prisons and correctional facilities to provide access to MOUD .

Many legal cases on this issue to date have attempted to change policies and practices to require jails or prisons to provide MOUD. In general, these lawsuits do not seek financial compensation for neglected care. That too is changing. Recent lawsuits in West Virginia, Maine and New York resulted in damages claims against prisons and jails that failed to provide adequate care. If these cases are successful, prisons and jails that do not provide MOUD risk not only time-consuming and expensive litigation, but also the possibility of awarding large amounts for the pain, suffering, and even wrongful death of those in their custody pay those who have been denied adequate medical care.

Policymakers must make MOUD a requirement in prisons and jails

A strong policy push at the federal, state, and local levels to expand access to MOUD for incarcerated people has made a big difference. The Biden Administration launched the Medicaid Reentry Section 1115 Demonstration Opportunity, which allows states to apply for federal Medicaid grant funding for certain pre-release services – including MOUD – during the final 90 days of incarceration. The Bureau of Justice Assistance has funded the expansion of MOUD services in prisons, and the Federal Bureau of Prisons is in the process of implementing MOUD programs in all of its facilities. Sixteen states now require access to MOUD in prisons, prisons, or both.

Today, 22.1% of prisons offer buprenorphine maintenance treatment to people already taking buprenorphine in the community, and 16% of prisons offer methadone maintenance treatment to people already taking methadone. While these numbers represent real progress compared to the few prisons that provided MOUD just a few years ago, there is still much work to be done. Many people in prison or prison suffer from opioid use disorder but have not had access to MOUD in their communities. Jails and prisons must also provide clinically appropriate MOUD care to these people.

Investing in MOUD post-incarceration is critical

While litigation is an important tool for effecting policy change and expanding MOUD access in prisons and jails, litigation in every single jurisdiction in the country would take many years. Opioid arbitration funds can expedite this process and help bring about policy changes and provide MOUD in prisons and jails now. With more than $50 billion in settlement funds flowing to states and other local jurisdictions over the next two decades, local governments should use a portion of their settlement funds to establish MOUD programs in their state prisons and local jails to save countless lives.

Investing in this critical care is a critical step not only in improving the lives of those incarcerated, but also in providing medically necessary support for people with opioid use disorder long after incarceration. Studies show that MOUD not only saves lives but also reduces relapses. To continue this positive trend, recently incarcerated people with opioid use disorder need places in the community to go for treatment. They need probation and parole authorities and housing providers who will not unlawfully discriminate against them for using MOUD.

Importantly, people who are not yet ready for treatment still need and deserve life-saving harm reduction services. Communities must think broadly and comprehensively about investing the $50 billion in opioid arbitration funds across the continuum of care and services—including harm reduction, workforce development, community treatment, and MOUD in prisons and jails—to ensure sustainable, broad, and meaningful access to provide life-saving care and treatment.

Joseph Longley is a staff writer for the ACLU Disability Rights Program. For more than 100 years, the ACLU has worked in courts, legislatures and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, the ACLU takes on the toughest fights for civil liberties to achieve freedom and justice for all. To learn more about the ACLU and read features from other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.

DIST. FROM CREATORS.COM

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