Kicking Opioids in Prison
By Mandy Gardner and Paul Frysh
Nov. 11, 2022
It was Christmas Eve 2017 in Madawaska, Maine, when Brenda Smith noticed $40 right there in the Walmart self-checkout where she was about to pay for her things. Without thinking much about it, she pocketed the money, paid for her items, and walked out the door.
At first, Smith thought of it as a simple matter of "finders keepers," says Maine attorney Andy Schmidt, who worked on Smith's case with Emma Bond from the ACLU. But the police didn't see it that way. They tracked her down from video and payment information and charged her with theft. The facts were undisputed and the judge sentenced her to 40 days in the Aroostook County Jail.
Smith took responsibility for her actions and accepted her sentence once she understood that a previous customer had returned for the money, Schmidt says.
But, Schmidt says, what Smith could not — would not — accept was that the Aroostook County Jail would withhold the medication that was keeping her life together: A twice daily dose of buprenorphine, part of a medication-assisted treatment, or MAT, for opioid use disorder.
Now Smith feared that 5 years of sobriety was about to go up in smoke.
Opioid Use Disorder in the U.S.
Smith was right to worry. Opioid use disorder, or OUD, killed about 80,000 Americans in 2021. That's more Americans than died in all of the Vietnam War. The fallout from lost wages, lost productivity, medical bills, incarceration, and wrecked families is almost impossible to calculate.
And the rate of OUD in U.S. jails and prisons is more than 7 times higher than in the regular population.
So it's no surprise that opioid overdose is the leading cause of death among people released from prison. In fact the chance of overdose death for someone leaving prison is, by some accounts, more than 100 times greater than for the average person (see sidebar: What Happens After Prison).
And even if they avoid an overdose, people with untreated OUD can become a burden to their families and communities after release. They are more likely to engage in crime, domestic violence, and risky behaviors that can spread infections like HIV and hepatitis. They're also more likely to end up back in jail or prison.
Clearly, says Schmidt, Smith didn't want to end up another statistic.
A Constitutional Right to Care
A landmark 1976 Supreme Court ruling (Estelle v. Gamble) gives people in U.S. jails and prisons a constitutional right to health care, including for substance use disorder.
Smith's treatment, MAT, is the gold standard for OUD. MAT includes one of three FDA-approved medications — methadone, buprenorphine (Suboxone), or naltrexone (Vivitrol) — along with mental health counseling. (Doctors refer to the medications by themselves as MOUDs, short for Medications for Opioid Use Disorder.)
And it's a proven treatment. Studies show that MAT cuts the risk of overdosing and reduces both relapse and future crimes and arrests. A recent study found that people with OUD who got MAT in New York City prisons were 80% less likely to die from an overdose in the month after their release from prison.
So you might think Smith, with a clearly diagnosed condition and a physician prescribed treatment, would be able to continue her successful treatment in prison.
But that wasn't the case. As in many jails and prison systems across the country, MAT simply wasn't available for Smith.
"The jail wanted to force her through withdrawal from her medication," Schmidt says.
Smith knew what that meant. She told the court that a previous forced withdrawal from her medication caused the worst pain she's known and led to suicidal thoughts for the first time in her life.
And yet for Smith, it wasn't the physical torture of withdrawal that frightened her most, it was the risk of rekindling her abuse of opioids. "She knew losing her medication posed a threat to her future, and especially to her ability to care for her children," he says.
That's why Smith and her legal team went directly to federal court — to try to force Aroostook County to provide her prescribed medicine. That delayed Smith's sentence and meant she didn't have to worry about her OUD or withdrawal symptoms — at least not until a federal judge ruled on the matter.
Why Is Drug Treatment So Uneven?
It starts with the wording of the standard itself: The state cannot meet the health care needs of those in prison with "deliberate indifference," according to the majority decision in Estelle v. Gamble.
"But what that means is extremely subjective," says Brendan Saloner, PhD, associate professor in health policy and management at the Johns Hopkins Bloomberg School of Public Health.
The case law of individual jurisdictions determines the meaning of that standard, and that case law can vary wildly, Saloner says. That's why medical care in prison, including for OUD, can be so uneven from one state to the next. Even in states where MAT is available, treatment options vary. Some programs provide all three of the MAT medications, some only one. Some offer counseling to go with the meds and some don't. And experts agree that the medications are not interchangeable — what works for one person may not work for another.
Prison transfers add to the problem. One large Southeastern state made over 20,000 inmate transfers in 2020 alone, according to a study (that didn't name the state).
It's also a problem of resources, says Elizabeth Salisbury-Afshar, MD, MPH, associate professor of family medicine and community health at the University of Wisconsin School of Medicine and Public Health in Madison.
Drug treatment programs, especially for opioid misuse, may require special licenses and lots of staff, Salisbury-Afshar says. Qualified personnel must watch as an inmate takes their daily methadone, for example. That can be a problem, Salisbury-Afshar says, "especially in smaller jails, where there often isn't consistent medical staffing."
Justice Department: OUD Is a Disability
In 2019, the Federal Court for the District of Maine ruled the Aroostook County Jail had to provide MAT care to Brenda Smith during her sentence. In her opinion in favor of Smith, the judge wrote that since becoming sober with the help of MAT, Smith had "regained custody of her four children, secured stable housing for her family, and obtained employment. She has earned her high school diploma and has begun to take college courses."
The judge ruled that failure to continue her treatment would cause "serious and irreparable harm" to Smith, and would violate the Americans With Disabilities Act.
In the end, Aroostook County suspended the sentence, so Smith didn't have to serve at all. But the ADA violation was key to the ruling and will change the way similar cases are treated in the future, says David Sinkman, former assistant U.S. attorney for the Eastern District of Louisiana.
"Opioid use disorder is a disability — like diabetes," Sinkman says.
"No jail or prison would deny a diabetic person insulin, yet the vast majority of the nation's correctional facilities prevent people with OUD from receiving this doctor-prescribed and lifesaving treatment," says Sinkman, who was both the opioid and civil rights coordinator for his office.
"This is cruel and terrible criminal justice and bad public health policy," Sinkman says. The reluctance to offer MAT is due in part to misguided stereotypes and stigma, he says. Some people — even health care providers — think MAT just replaces an old addiction with a new one. But people typically change their tune once they know the facts, says Sinkman, now a visiting scholar at New York University School of Global Public Health.
That's why the American Medical Association, the National Sheriffs' Association, the American Society of Addiction Medicine, and other major professional organizations have all begun to support MAT as the standard of care for opioid addiction in prisons and jails.
In April 2022, the U.S. Justice Department followed suit. They put out guidance that people in prison with addiction disorders should not be blocked from "evidence-based treatments." That means jails and prisons across the country could risk federal sanction for ADA violations if they don't find a way to provide MAT for those with OUD.
With almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and other facilities, it's going to take some time to put these programs into place, Sinkman says.
Still, some states are already moving in that direction. A MAT drug treatment program in Rhode Island now allows any person in the prison system in the state to get cutting-edge treatment for opioid use disorder simply by asking. Even on release, former prisoners have the option to continue treatment in a community setting. Initial results are impressive.
In just the first 6 months of the program, there was a 61% drop in overdose deaths in people leaving prison.
Applied to the entire U.S. prison population, this translates into thousands of lives that could be saved every year. It's important to remember, Sinkman says, that each one of those lives has an individual story to tell — individuals just like Brenda Smith.