DEATH BY DETOX: SUBSTANCE WITHDRAWAL, A POSSIBLE DEATH ROW FOR INDIVIDUALS IN CUSTODY.

• Author: Carleton, Dorothea R.

TABLE OF CONTENTS I. INTRODUCTION 161 II. BACKGROUND 163 A. The Subjective and Objective Prong 163 B. Leading Cases for Deliberate Indifference Claims 165 C. Who is an Individual in Custody, and How Do Their Rights Differ? 167 D. How Your Medical Detox Differs from Jail Detox 168 E. The Law Surrounding an Individual's Rights and Standards in Correctional Facilities 172 III. ANALYSIS 173 A. Substance Withdrawal is a Major Concern for Jails and Prisons and Presents a Need for a Higher Standard of Care 173 B. Strain was Incorrect in its Determinations about the Subjective Prong 175 C. The Effect of the Supreme Court Denying Certiorari 177 D. Presumption of the Subjective Prong is Needed for Withdrawal Cases 178 1. Being in Jail is What is Triggering the Problem 178 2. Nature of the Officer's Job & Not Being an Ordinary Person 179 3. Certain Symptoms Create a Sufficient Subjective Awareness 180 E. Proposed Legislation that Provides a Clear Standard 180 IV. CONCLUSION 182 I. INTRODUCTION

In the landmark case of Estelle v. Gamble, (1) the United States Supreme Court guaranteed that those in custody were entitled to necessary medical care as a Constitutional right. This care extends to treatment for withdrawal from substance abuse. However, this is not what occurs. The experience for many individuals in custody regarding basic healthcare, and especially for those withdrawing from substance abuse, is just about everything short of a bearable or pleasant experience. For some, it can even be deadly. (2)

It would seem common sense that because, as a society, we have strict standards for healthcare, it would not be any different for an individual in custody. Especially when death by withdrawal is the third leading cause of death for individuals in custody. (3) But, searching for these standards, one immediately comes face-to-face with many of the issues that make healthcare for individuals in custody subpar. (4) These issues include the fact that authority for those very standards is given to people who do not necessarily need a medical degree. (5) Moreover, individuals in custody face many challenges, even in bringing a suit against a correctional facility for inadequate care. (6) Further, these individuals are faced with inconsistency within the courts. (7)

One of the inconsistencies faced by individuals in custody is the differing standards applied to different claims related to abuse or mistreatment. Specifically, this note focuses on claims brought by an individual in custody suffering from inadequate treatment for withdrawal bringing a deliberate indifference claim. The Supreme Court in Farmer stated the rule for deliberate indifference cases under the Eighth Amendment has both an objective and subjective prong. Those two prongs are (1) that the officer knew that the inmate faced a substantial risk of serious harm and (2) disregarded that risk or failed to take reasonable measures. (8) The Supreme Court in Kingsley stated the rule for excessive force cases under the Fourteenth Amendment, which requires only the objective prong: that the force purposely or knowingly used against him was objectively unreasonable. (9) Some plaintiffs have argued that the Kingsley excessive force standard, the objective prong only standard, should be used for deliberate indifference cases for pretrial detainees. This note argues that the subjective prong should be presumed and that this standard should be used in deliberate indifference claims regarding substance withdrawal for all individuals in custody, which includes pretrial detainees and inmates. (10)

Problems obtaining adequate care for those in custody facing withdrawal are made exponentially worse by the recent denial of certiorari for the case of Strain v. Regalado. (11) As the Tenth Circuit faced the objective and subjective prong argument as Strain argued that the proper standard to be applied in a deliberate indifference claim for the failure to provide adequate medical care during substance withdrawal by a pretrial detainee is the single objective prong, as used in Kingsley. (12) However, the Tenth Circuit ruled that both the objective and the subjective prong were needed. (13) The plaintiff's main basis of the argument for the objective prong only standard was based on the precedent of Kingsley. The court declined to accept this based on the fact that the Kingsley decision was specifically directed at an excessive force claim, since the court did not directly extend its holding to deliberate indifference claims. (14) The court then addressed how both claims were brought under the Fourteenth Amendment but found that the claims--deliberate indifference versus excessive force--serve different purposes. (15) A deliberate indifference claim does not relate to punishment, but rather safeguards a detainee's access to adequate medical care. In contrast, an excessive force claim protects a pretrial detainee from punishment. (16) That excessive force is often an affirmative act, whereas deliberate indifference is often inaction. These differences require different state of mind inquiries. The court additionally noted that removing the subjective prong would go against the precedent in Farmer. (17)

By denying certiorari for Strain, the Supreme Court declined to consider resolving a circuit split pertaining to whether there was deliberate indifference under the Fourteenth or Eight Amendments, as it pertained to the individual in custody's medical care for alcohol withdrawal. Under the Tenth Circuit's analysis in Strain, the proper standard for analyzing a challenge to adequate health care is a two-prong test with both an objective and subjective prong; however, other circuits believe the proper test for these cases is a single objective prong. (18) By failing to clarify the standard, the Supreme Court has made hurdles to adequate health care even more challenging.

This note argues that those in custody are entitled to a higher standard of healthcare and that being put in jail and forced to detox should not be a possible death sentence. Correctional facilities need to be equipped with the training and medical supplies to adequately treat those going through withdrawal. If and when these standards of healthcare fail, however, individuals in custody need to be able to seek justice. Those in custody would be better able to accomplish this better if the Supreme Court unified the current Circuit Court standards of analysis into the two-prong test, with a presumed subjective prong. This can be done by presuming the subjective prong for cases of deliberate indifference for inadequate medical care for an individual in custody suffering from substance withdrawal. Where the presumption is based on the volume of detoxing inmates, which makes the substantial risk of medical complications known to the correctional officers. In making this argument, this note first discusses the subjective and objective prongs and the leading cases for deliberate indifference claims. The note then discusses withdrawal, how it is treated, and the history of medical treatment for individuals in custody going through withdrawal.

The note will then focus on the case of Strain v. Regalado and will discuss how its decision differs from those made in other circuits. It will then explain how the Supreme Court should not have denied certiorari for Strain because of the damage that the non-unified standard has and will cause for individuals in custody who are challenging inadequate care for withdrawal treatment. It will suggest that either the Court reconsider its decision or grant certiorari for the next similar case in order to unify the Circuit standard to a two-prong test, with the subjective prong presumed in the case of deliberate indifference of substance withdrawal. Additionally, this note will argue that federal legislation is necessary to codify the standard for deliberate indifference claims for those suffering from withdrawal.

2. BACKGROUND

1. The Subjective and Objective Prong

   The objective prong, one that some courts have chosen to use as the only prong necessary for a deliberate indifference claim, asks "whether the harm suffered rises to a level sufficiently serious to be cognizable under the Cruel and Unusual Punishment Clause of the Eighth Amendment." (19) The subjective prong, "in turn, asks whether the defendants knew [the individual in custody] faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." (20) Another court explained that for the subjective prong, an individual in custody "must prove more than negligence but less than subjective intent--something akin to reckless disregard." (21) That for the "subjective" requirement, [] to violate the Eighth Amendment a prison official must have a sufficiently culpable state of mind." (22)

   In Farmer v. Brennan, (23) the court held that when there is a deliberate indifference claim under the Eighth Amendment, it needs to be analyzed under both the objective and the subjective prongs. (24) The case came to address the issue of defining the analysis for deliberate indifference when a transgender inmate was put into the general population and was thereafter assaulted. The inmate alleged that the correctional facility workers were aware of this risk. However, the court of appeals affirmed the lower court stating the prison officials lacked sufficient knowledge of the risk to be held liable. (25) Since there needs to be both an objective and subjective prong for a deliberate indifference claim under the Eighth Amendment. (26) Stating that "[t]he Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation." (27)

   In rebutting arguments for the single...