Incarceration Should Not Be a Death Sentence for Individuals Who Use Opioids

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

Litigation has dramatically changed the substance-use disorder policy landscape, and today, more than $50 billion in opioid settlements from pharmaceutical companies, distributors, pharmacies, consultants and others are hitting state and local coffers. This creates an unprecedented opportunity to invest in substance-use disorder care that saves lives.

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

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

How MOUD Increases Positive Health Outcomes in Jails and Prisons

People in jails and prisons experience opioid-use disorder at far higher rates than the general population, making MOUD during and immediately after incarceration essential. The time period immediately after being released from incarceration is an extremely dangerous time for those addicted to substances, especially for those who have been denied MOUD during incarceration. Recently incarcerated people who did not have access to MOUD in jail or prison are dozens of times more likely than the general population to die of an overdose in the weeks following release. For those recently released from jail 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 To Increase Access to MOUDs

Denial of MOUD access for incarcerated people is not just wrong; it is also illegal. With court victories in Massachusetts, Maine, New York and West Virginia, as well as settlements and other positive resolutions in Washington, Kansas, Illinois and New Mexico, the legal groundwork is shifting toward requiring access to this life-saving care. In 2022, the U.S. Department of Justice released guidance reaffirming that denial of MOUD can amount to a violation of the Americans with Disabilities Act, and the DOJ has settled several cases requiring jail and prison facilities to provide access to MOUD.

Many of the legal cases on this topic thus far have sought to change policies and practices to require the jail or prison to provide MOUD; generally, these lawsuits do not yet seek monetary damages for failure to provide care. That, too, is changing. Recent lawsuits in West Virginia, Maine and New York have brought damages claims against jails and prisons that have failed to provide adequate care. If these cases succeed, jails and prisons that fail to provide MOUD risk not only a time-consuming and expensive lawsuit, but also the possibility of owing large amounts for the pain, suffering and even the wrongful death of people in their custody who were denied adequate medical care.

Policy Must Make MOUD a Requirement in Prison and Jail

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, allowing states to apply to receive federal Medicaid matching funds for certain prerelease services -- including MOUD -- in the last 90 days of incarceration. The Bureau of Justice Assistance has funded expansion of MOUD services in jails, and the federal Bureau of Prisons is in the process of launching MOUD programs in all of its facilities. Sixteen states now require access to MOUD in jails, prisons or both.

Today, 22.1% of jails provide buprenorphine maintenance care to people who were already on buprenorphine in the community, and 16% of jails provide methadone maintenance to people already on methadone. While these numbers represent real progress from the handful of jails providing MOUD just a few years ago, there is so much more work to be done. Many people in jail or prison have an opioid-use disorder but were not able to access MOUD in their communities. Jails and prisons must provide those people, too, with clinically appropriate MOUD care.

Investment in MOUD After Incarceration Is Vital

While litigation has been an important tool to make policy change and expand MOUD access in jails and prisons, litigating in each and every jurisdiction in the country would take many years. Opioid settlement dollars can expedite this process and help to enact policy change and provide MOUD in jails and prisons now. With more than $50 billion of settlement money starting to go to states and other local jurisdictions over the next two decades, localities should use some of their settlement dollars to establish MOUD programs in their state prisons and local jails to save countless lives.

Investment in this critical care is a vital step toward not only improving the lives of the incarcerated, but also toward providing medically necessary support for people with opioid use disorder long after prison. Studies show that MOUD not only saves lives but also reduces recidivism. To continue this positive trend, recently incarcerated people with opioid-use disorder need places in the community to go to receive treatment. They need probation and parole departments, and housing providers, that don't illegally discriminate against them for their use of MOUD.

Importantly, people who aren't ready for treatment still need, and deserve, life-saving harm reduction services. Communities must think expansively and comprehensively about investing the $50 billion in opioid settlement money across the continuum of care and services -- including in harm reduction, workforce development, community treatment and MOUD in jails and prisons -- to establish sustainable, widespread and meaningful access to lifesaving care and treatment.

Joseph Longley is a staff attorney at 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 civil liberties fights in pursuit of liberty and justice for all. To find out more about the ACLU and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.