Battleground of the Opioid Crisis: the Eighth Amendment Right to Medication-assisted Treatment in Prisons and Jails, and Upon Release

• Citation: Vol. 71 No. 6
• Publication year: 2022

Battleground of the Opioid Crisis: The Eighth Amendment Right to Medication-Assisted Treatment in Prisons and Jails, and Upon Release

Claire E. Scavone

BATTLEGROUND OF THE OPIOID CRISIS: THE EIGHTH AMENDMENT RIGHT TO MEDICATION-ASSISTED TREATMENT IN PRISONS AND JAILS, AND UPON RELEASE

Abstract

About eighty percent of all inmates in the United States need but will not receive treatment for their Opioid Use Disorder (OUD). Instead, they will leave prison with a 140 times greater chance of a fatal overdose than before their prison sentence. Although incarceration is conceivably an opportune time for the state to connect individuals with treatment, only about one percent of prisons and jails allow the use of Medication-Assisted Treatment (MAT). This failure has a myriad of causes. Notably, beliefs that OUD is a moral failure and that MAT either does not work or is dangerous are both among the most salient and most dubious justifications for withholding treatment. Inmates instead undergo forced withdrawal, a form of cruel and unusual punishment under the Eighth Amendment.

Worse yet, regardless of whether an individual receives MAT in prison, facilities overwhelmingly lack reentry procedures that connect former inmates with MAT programs in the community. Because even one day without MAT can propel an individual with OUD into relapse and a fatal overdose, post-release treatment is crucial. Prison policies directly impact inmates' tolerance and likelihood of overdose upon release. Accordingly, this Comment argues that MAT, both in jail and post-release, is within the purview of the Eighth Amendment.

This Comment focuses on Pesce v. Coppinger to illustrate the shortcomings of the Eighth Amendment jurisprudence, which have left a large subset of the population without treatment for OUD and do nothing to address post-release overdose rates directly linked to the state. Although some plaintiffs have successfully obtained MAT on Eighth Amendment grounds, the current jurisprudence is insufficient to effectuate inmates' right to treatment, both during and after incarceration.

To fully effectuate the Eighth Amendment right to be free from cruel and unusual punishment, this Comment argues that changes are needed in the current jurisprudence to recognize the State's carceral bargain and a corresponding expanded definition of "punishment." Coupled with a harm reduction argument, these two changes fully recognize inmates' right to MAT and society's evolving standard of decency.

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Introduction...........................................................................................1275

I. Opioids and Medication-Assisted Treatment: History and Background..........................................................................1278

A. The Science of Addiction and Withdrawal Versus Addiction as a Moral Affliction............................................................... 1280
B. Prison and Jail Policies Generally Prohibit MAT in Favor of Forced Withdrawal............................................................. 1283
C. The Physical, Psychological, and Legal Effects of Withdrawal ............................................................................. 1285

II. Legal Implications: Cases Challenging Denial of Medication-Assisted Treatment in Prison.............................1287

A. Eighth Amendment Jurisprudence: Estelle, Farmer, and the Test for Future Harm.............................................................. 1288
B. Pesce v. Coppinger Indicates the Eighth Amendment Mandates the Provision of MAT............................................. 1294

1. Analysis of Pesce v. Coppinger and the Limitation of MAT Litigation Holdings.................................................. 1295
2. ADA Claims as an Alternative to the Eighth Amendment and Limitations of Eighth Amendment Jurisprudence in the MAT Context............................................................... 1297

III. An Alternative Framework for Eighth Amendment Jurisprudence: The State's Carceral Bargain and a Corresponding Strict Liability Standard.............................1299

A. The State's Carceral Bargain Makes Prison Conditions Part of Eighth Amendment Punishment......................................... 1300
B. The Heightened Negligence Standard and Irrebuttable Presumption of Constructive Knowledge ............................... 1304
C. The Framework in Practice: Applying Heightened Negligence to Pesce v. Coppinger............................................................. 1306
D. Post-Release MAT: Punishment and the Issue of Intervening Causation ............................................................. 1310
E. The Slippery Slope Argument: Where to Draw the Line on Post-Release Application ........................................................ 1313

IV. Money and Lives Saved: Public Policy Considerations......1315

Conclusion...............................................................................................1318

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Introduction

A look inside the United States' prisons and jails reveals the key battleground of the nation's decades-long opioid crisis that has come out of the war on drugs.¹ An estimated 80% of the 2.3 million inmates need life-saving treatment for opioid use disorder ("OUD"),² but because "only a small percentage receive any help at all,"³ they face a shockingly high and seemingly insurmountable risk of overdose upon release.⁴ if forced to withdraw and abstain from opioids while in jail, a person with OUD loses their tolerance and "raise[s] the risk of . . . overdose in the first few weeks of reentry by a factor of 140" compared to the general population.⁵

The solution to this problem? A prescription for one of the three evidence-based,⁶ Federal Drug Administration (FDA)-approved Medication-Assisted Treatment (MAT) drugs for opioid dependency—Buprenorphine, Methadone,

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or Naltrexone⁷ —marketed as "safe to use for months, years, or even a lifetime."⁸ MAT has been "unequivocally recommended" for jails and prisons by the Office of National Drug Control Policy and the Centers for Disease Control and Prevention.⁹

Importantly, there are real people affected by the bureaucratic policies, as well as massive financial figures and a staggering death toll associated with the opioid crisis. Prisons' opioid treatment and reentry policies are felt at an individual, family, and community level throughout the country.¹⁰ Geoffrey Pesce recently sued Essex County so that he could continue to take his prescription Methadone treatment while serving a sixty-day sentence.¹¹ Before starting Methadone, Pesce was unemployed, homeless, and estranged from his family for years;¹² he overdosed six times and attempted detoxification four times.¹³ Now, with Methadone, he financially supports his family as a mechanic and once again parents his son.¹⁴ In 2018, Brenda Smith sued the Aroostook County Sheriff in Maine so that she could continue to take the Buprenorphine that she has been prescribed since 2014.¹⁵ Like Mr. Pesce, Ms. Smith's maintenance dose of Buprenorphine enabled her to "regain[] custody of her four

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children, secure[] stable housing[,] . . . obtain[] employment[,] . . . earn[] her high school diploma[,] and . . . take college courses."¹⁶ Ms. Smith has not used drugs in five years.¹⁷ Inmates and advocates are catching on. Mr. Pesce and Ms. Smith are just a few of the recent plaintiffs who have argued against prisons' prohibition on MAT based on either the Eighth Amendment or Title II of the Americans with Disabilities Act (ADA).¹⁸

The fact remains that, in the vast majority of cases, inmates with OUD undergo forced withdrawal in prison,¹⁹ resulting in a drastically decreased opioid tolerance and devastatingly high risk of death upon release.²⁰ More often than not, inmates receive no treatment in prison or post-release and can relapse in "a matter of days."²¹ Although some inmates have been able to assert protection for MAT treatment under the ADA, the Act is alarmingly underinclusive relative to the number of people who need treatment.²² Further, even in prisons and jails that provide MAT, poor reentry policies often negate the resources expended and any medical progress made in prison.²³ Inmates with OUD are essentially forced into a lose-lose situation: undergo withdrawal in custody or start treatment and risk overdose upon release if they are not connected to a MAT provider in the community.²⁴

This Comment argues that an individual's time in prison and subsequent reentry are so inextricably linked that the Eighth Amendment requires prisons and jails to at least minimally facilitate connecting individuals with MAT in the community if they received it in prison or have a known OUD. Based on Sharon Dolovich's theory of the state's carceral bargain and an alternative definition of

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"punishment," this Comment will show that not providing access to MAT post-release is cruel and unusual punishment in violation of the Eighth Amendment, recognizing that even with the shortest sentences, "sending people with addiction into jail or prison may be a death sentence" once they are released.²⁵ It is not only cruel and unusual but it is also unacceptable for a seven-day jail sentence to end in death.²⁶

To begin, Part I examines the origins of the United States' opioid crisis and provides a basic understanding of the science of addiction, withdrawal, and MAT, as well as prison and jail withdrawal policies. Then, Part II details the Supreme Court's jurisprudence, recent successful cases in which plaintiffs obtained injunctive relief against prisons barring MAT use, and the limitations of current Eighth Amendment jurisprudence in the MAT context in relation to the ADA. Part III explains Sharon Dolovich's alternative Eighth Amendment framework based on constructive knowledge, the carceral bargain, and a more inclusive definition of "punishment."²⁷ Part III then applies Dolovich's...