DETAINED AND DOPESICK: THE RIGHT TO MEDICATIONASSISTED TREATMENT FOR INCARCERATED INDIVIDUALS
WITH OPIOID USE DISORDER
Samuel Macomber†
August 19, 2020
Opioid withdrawal is a grueling physical ordeal.
Fortunately, the effects of withdrawal—physical suffering,
mental distress, and mortality—can be mitigated by proper
medical care. In most jails and prisons, however,
individuals with opioid use disorder are denied access to
proper medical care for their disease and are forced to
endure involuntary withdrawal. The refusal to provide
adequate medical care for the serious health condition of
opioid use disorder is unnecessary, unlawful, and deadly.
This article is the first to argue that correctional facilities
have an affirmative obligation to provide medicationassisted treatment to all incarcerated individuals with
opioid use disorder, regardless of whether the patient was
using legal prescriptions or illicit substances prior to
incarceration. Providing medication-assisted treatment
will reduce suffering, save lives, and uphold the state’s
promise of human dignity to those whose liberty is restricted
by incarceration. Further, this article argues that the
Supreme Court should modify the legal standard for
adequate medical care in correctional facilities so that
courts need only consider the objective medical need of
incarcerated individuals.

Law Clerk to the Honorable Landya B. McCafferty, Chief Judge
of the U.S. District Court for the District of New Hampshire. J.D.,
Cornell Law School.
†

Electronic copy available at: https://ssrn.com/abstract=3678011

Introduction ......................................................................... 3
I.

The Opioid Epidemic and Inadequate Treatment ...... 7
a.

The Disease, the Epidemic, and Withdrawal .......... 7

b.

Treatment and the Criminal Legal System ........... 12

II.
The Right to Medical Treatment While
Incarcerated ....................................................................... 17
a.

Overview of the Right to Treatment ....................... 17

b. Treatment for Pretrial Detainees: The Due Process
Clause ............................................................................. 20
c.

Treatment for Prisoners: The Eighth Amendment 24

d. Treatment for Drug Addiction: The Americans with
Disabilities Act ............................................................... 29
III.
The Affirmative Obligation to Provide Treatment
for OUD .............................................................................. 34
a.

The Enforceable Right to Treatment ...................... 34
i.

Implementing the Right to Treatment .............. 37

ii.

Arguments Against MAT .................................... 40

b. The Right to Treatment, Revised: Focus Only on
Objective Medical Need .................................................. 43
IV.

Coda: Solutions Without Suing .............................. 45

a.

Federal Solutions .................................................... 46

b.

State and Local Solutions ...................................... 48

Conclusion .......................................................................... 50

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Introduction
Well you start the hot and cold sweats. And with the
diarrhea, stomach cramps and you throw up and you do
that for like three days straight or four days straight. And
then you be weak as I don’t know what. And when I had
the heart attack I was sleeping and it woke me up out of
my sleep. And it just feels like a cinder-block hit me on my
chest and I woke up in a sweat. Luckily the officer that
was there knew what was going on and they rushed me to
the hospital. And if they didn’t I probably would have
died. –Incarcerated individual discussing opioid
withdrawal.1
[D]enial of medical care is surely not part of the
punishment which civilized nations may impose for
crime. –Justice Stevens, Estelle v. Gamble.2

Sarah was a long-time heroin user.3 When a harmreduction clinic opened in her hometown, Sarah was among
the first to sign up for treatment. She showed up to her
appointments on time and was a friendly, well-liked
patient. Then Sarah was arrested for shoplifting. At the
local jail, the police took Sarah’s prescription Suboxone, a
medication designed to curb cravings and the physical
symptoms of withdrawal without the elation of an opioid
high. Sarah was unable to make bail and, without her daily
dose of Suboxone, soon began experiencing withdrawal.
She experienced fevers and sweats, retched repeatedly,
was unable to sleep, and suffered severe anxiety and
depression. Officers watched as she moaned on the floor of
her cell, in pools of his own vomit and urine, and refused to
give even Tylenol for her pain. Her family made multiple
calls to the jail and to Sarah’s medical provider begging for
help. The police left Sarah’s prescription medication sitting
in a drawer twenty feet from her cell.
Mark started drinking at 13, progressed to
marijuana, drifted to Percocet, then began using heroin.4
Shannon Gwin Mitchell et al., Incarceration and opioid
withdrawal: The experiences of methadone patients and out-oftreatment heroin users, 41 J PSYCHOACTIVE DRUGS 145–152 (2009).
2 429 U.S. 97, 104 (1976) (dissenting).
3 Sarah’s story was shared by her medical provider. Select details
have been modified to ensure anonymity.
4 Mark’s story is adopted from an article published by The
Marshall Project. See Beth Schwartzappel, A Better Way to Treat
1

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At 22, he passed out in a motel room in a position that cut
off circulation to his leg. The leg was amputated, but while
in the hospital he almost enjoyed the unrestricted access to
morphine. He went in and out of rehab and jail for years.
Mark’s pattern of treatment and incarceration was
tragically conventional until his most recent incarceration
at the Rhode Island Department of Corrections. There,
during a twelve month sentence for theft, Mark was part of
a medication-assisted treatment program. Each day he
took a dose of Suboxone. He said that the treatment made
him “feel comfortable in my own skin.” Instead of
wondering when he would get out so that he could get high,
like during his past periods of incarceration, he said that
“within 48 hours I felt like my old self, before I was even
taking drugs . . . this is the first time I’ve ever been here
where I’ve been mentally and physically at peace.”
—
Sarah and Mark were treated differently by their
correctional facilities—Sarah’s experience produced pain,
while Mark’s experience created optimism. There should be
no more stories like Sarah’s. This article argues that all
incarcerated individuals with opioid use disorder have a
right to medication-assisted treatment (MAT), which is the
most successful treatment method for their disease.5 MAT
is the use of medication (for example, Suboxone) in
combination with counseling and behavior therapies.6 In
Addiction in Jail, THE MARSHALL PROJECT, March 2, 2017,
https://www.themarshallproject.org/2017/03/01/a-better-way-to-treataddiction-in-jail.
5 See Nora D. Volkow & Eric M. Wargo, Overdose Prevention
Through Medical Treatment of Opioid Use Disorders, 169 ANNALS OF
INTERNAL MEDICINE 3, 190 (Aug. 7, 2018) https://doi.org/10.7326/M181397.
6 Some patients and providers consider “medication-assisted
treatment” stigmatizing language, and provide the alternative
“medication for addiction treatment.” This author is dedicated to
stopping the stigma associated with addiction, but I use the
traditional term “medication-assisted treatment” here because it is
most prevalent in the academic literature. See, Grayken Center for
Addiction, I pledge to Stop the Stigma Associated with Addiction,
BOSTON MEDICAL CENTER, https://development.bmc.org/wpcontent/uploads/2018/09/Grayken-Center-for-Addiction-at-BostonMedical-Center-Words-Matter-Pledge.pdf; Center for Drug
Evaluation and Research, Information about Medication-Assisted
Treatment (MAT), FDA (Feb. 14, 2019)

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this article, MAT primarily means access to specific
prescription medications.
Roughly two million people in the United States are
struggling with opioid use disorder, like Sarah and Mark.7
Less than 20 percent are treated with effective
medication.8 Regrettably, a high proportion of individuals
with opioid use disorder become involved in the criminal
legal system where most are denied access to treatment.9
Jails and prisons are at the front lines of the opioid crisis,
and have a duty to provide medical treatment to
individuals in their care.10 As phrased by an attorney for
the American Civil Liberties Union of Maine, “[w]e don’t
expect jails to solve the opioid crisis, but the least they can
do is not make it worse.”11
A strategic sequence of cases in the last two years
has established that incarcerated individuals cannot be
denied access to their prescription medication for
addiction, just as for any other disease, because they have
a constitutional and statutory right to adequate medical

https://www.fda.gov/drugs/information-drug-class/information-aboutmedication-assisted-treatment-mat.
7 See National Academies of Sciences, Engineering, and Medicine,
Medications for Opioid Use Disorder Save Lives, THE NATIONAL
ACADEMIES PRESS, 1 (2019) https://doi.org/10.17226/25310. (finding
that the pervasive lack of treatment for OUD is a serious ethical
violation by both health care providers and the criminal legal
system).
8 See id. at 8; Olga Khazan, Why 80 Percent of Addicts Can't
Get Treatment, THE ATLANTIC (Oct. 13, 2015),
https://www.theatlantic.com/health/archive/2015/10/why-80-percentof-addicts-cant-get-treatment/410269/.
9 See id. at 98–99; The Editorial Board, Want to Reduce Opioid
Deaths? Get People the Medications They Need, THE NEW YORK TIMES,
March 26, 2019, https://www.nytimes.com/2019/03/26/opinion/opioidcrisis-sacklers-purdue.html.
10 See Eric Westervelt, County Jails Struggle With A New Role As
America’s Prime Centers For Opioid Detox, NPR.ORG, April 24, 2019,
https://www.npr.org/2019/04/24/716398909/county-jails-struggle-witha-new-role-as-americas-prime-centers-for-opioid-detox; Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (holding that the Eighth
Amendment “imposes duties on [prison] officials, who must provide
humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care.”).
11 Federal Judge Rules Jail Must Allow Access to MedicationAssisted Treatment, ACLU OF MAINE (March 28, 2019)
https://www.aclumaine.org/en/press-releases/federal-judge-rules-jailmust-allow-access-medication-assisted-treatment.

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care.12 This article goes further and argues that
correctional facilities have an affirmative obligation to
provide MAT for all individuals with opioid use disorder,
regardless of whether they were using legal prescriptions
or illicit drugs prior to incarceration. Providing MAT will
save lives, reduce suffering, and uphold the promise of
human dignity to those whose liberty is restricted by
incarceration. Additionally, this article argues that the
Supreme Court should change the legal standard for
adequate medical care in jails and prisons. Currently, an
incarcerated individual must show both that they have an
objectively serious medical need and that a correctional
officer displayed a subjective deliberate indifference in
failing to meet that medical need.13 The Court should
dispose of the subjective indifference requirement and look
only to the incarcerated person’s objective medical need.
This article begins with background on the opioid
crisis and the dire lack of adequate treatment in the
criminal legal system. Part II then shows that incarcerated
individuals with opioid use disorder have a constitutional
and statutory right to medication-assisted treatment. Part
III argues that the right to treatment goes beyond
preventing denial of care and creates an affirmative
obligation for correctional facilities to offer MAT to all
individuals with opioid use disorder. This step is necessary,
because it will save lives, and novel—this is the first
argument for a legal right to MAT across all correctional
systems, regardless of whether the incarcerated individual

See Pesce v. Coppinger, 355 F.Supp.3d 35, 39 (D. Mass. 2018);
Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 152 (D. Me.), aff’d, 922
F.3d 41 (1st Cir. 2019); Dipierro v. Hurwitz, Settlement Agreement, 2
(D. Mass. Jun. 7, 2019); Kortlever et al. v. Whatcom County,
Settlement Agreement, 5–6 (April 29, 2019) https://www.acluwa.org/docs/settlement-agreement-1; Crews v. Sawyer, Kansas and
Missouri ACLU affiliates reach settlement with Bureau of Prisons;
Leavenworth inmate will receive opioid medication tonight, ACLU OF
KANSAS (Kans., Sept. 11, 2019), https://www.aclukansas.org/en/pressreleases/kansas-and-missouri-aclu-affiliates-reach-settlementbureau-prisons-leavenworth; Godsey v. Sawyer, ACLU-WA lawsuit
settled: Federal prison system agrees to provide medication-assisted
treatment for opioid use disorder, ACLU OF WASHINGTON (Wash.,
Dec. 11, 2019) https://www.aclu.org/press-releases/aclu-wa-lawsuitsettled-federal-prison-system-agrees-provide-medication-assisted.
13 See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
12

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was previously using legal or illicit drugs.14 Part III also
argues that courts should consider only a patient’s
objective medical need when evaluating adequacy of
medical treatment in jails and prisons. Part IV advocates
for legislative changes, at both the federal and state level,
that will satisfy the right to medical care while
incarcerated without the need for adversarial litigation.
I.

The Opioid
Treatment

Epidemic

and

Inadequate

a. The Disease, the Epidemic, and Withdrawal
Opioid addiction is a disease, known as opioid use
disorder (OUD).15 OUD damages the brain’s dopamine
system and creates a chemical cycle where the brain
receives signals that it is necessary to continue the
addictive activity in order to survive.16 Like other chronic
See, e.g., Rebecca Boucher, The Case for Methadone
Maintenance Treatment in Prisons, 27 Vt. L. Rev. 453, 454 (2003)
(focusing on scientific findings as of 2003 and Vermont case law to
argue for new bases against the denial of methadone in prisons);
Michael Linden et al., Prisoners as Patients: The Opioid Epidemic,
Medication-Assisted Treatment, and the Eighth Amendment, 46 J LAW
MED. ETHICS 252, 254 (2018) (focusing on MAT in prisons, only for
individuals post-conviction); Corey S. Davis, Derek H. Carr, The Law
and Policy of Opioids For Pain Management, Addiction Treatment,
and Overdose Reversal, 14 Ind. Health L. Rev. 1, 2 (2017) (focusing on
the regulation of medication); Nicholas P. Terry, Structural
Determinism Amplifying the Opioid Crisis: It’s the Healthcare,
Stupid!, 11 Ne. U. L. Rev. 315, 318 (2019) (focusing on the healthcare
system); Emily Mann, Advocating For Access: How the Eighth
Amendment and the Americans With Disabilities Act Open A Pathway
For Opioid-Addicted Inmates to Receive Medication-Assisted
Treatment, 29 Annals Health L. Advance Directive 231, 234 (focusing
on MAT in prisons); Evelyn Malavé, Note, Prison Health Care After
The Affordable Care Act: Envisioning An End To The Policy Of
Neglect, 89 N.Y.U. L. Rev. 700, 700 (focusing on healthcare after
release).
15 See American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders (5th Ed. 2013), 541; Module 5:
Assessing and Addressing Opioid Use Disorder (OUD), Center for
Disease Control and Prevention (accessed Oct. 26, 2018)
https://www.cdc.gov/drugoverdose/training/oud/accessible/index.html.
16 See J.C. Fellers, Management of Addiction Issues in Complex
Pain, Am. College of Physicians (Oct. 2, 2016)
https://www.acponline.org/system/files/documents/about_acp/chapters
/me/management_of_addi ction_issues_in_complex_pain_j_fellers.pdf.
14

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relapsing conditions, such as diabetes, OUD “involves
periods of exacerbation and remission, but the underlying
vulnerability never disappears.”17
Health experts have considered OUD a disease for
decades. For example, in 1997 the National Institutes of
Health declared that “[o]piate dependence is a brainrelated medical disorder,” not an issue of willpower, and
that, “[a]ll persons dependent on opiates should have
access to [MAT].”18 Today, the Center for Disease Control
(CDC) considers OUD a specific type of addiction, defined
as a “problematic pattern of opioid use leading to clinically
significant impairment or distress.”19 Patients with OUD
are prone to overdose and death, creating the present
opioid epidemic.20
The opioid epidemic is a crisis of mortality. 300,000
Americans have died from opioid overdose since 2000, at a
current rate of 175 people each day.21 According to the
CDC, drug overdoses killed over 70,000 Americans in
2017.22 This represents a 9.6% increase in the rate of drug
overdose death from 2016.23 To provide some relative
perspective, that is more deaths per year than from gun
homicides or motor vehicle accidents, more than were
killed by AIDS at the peak of that epidemic, more deaths
See Marc A. Schuckit, Treatment of Opioid-Use Disorders, New
England Journal of Medicine, 357 (Jul. 28, 2016).
18 NIH Nat’l Consensus Dev. Panel on Effective Med. Treatment
of Opiate Addiction, Effective Medical Treatment of Opiate Addiction,
280 JAMA 1936, 1936-38 (1998).
19 Module 5: Assessing and Addressing Opioid Use Disorder
(OUD), Center for Disease Control and Prevention.
20 See Beth Schwartzappel, A Better Way to Treat Addiction in
Jail, MARSHALL PROJECT, Mar. 2, 2017,
https://www.themarshallproject.org/2017/03/01/a-better-way-to-treataddiction-in-jail (noting that formerly incarcerated individuals are 12
times more likely to die and 129 times more likely to die of an
overdose than the general population).
21 See “The Opioid Crisis,” The White House,
https://www.whitehouse.gov/opioids/ (accessed Nov. 27, 2018);
Centers for Disease Control and Prevention, “Opioid Overdose:
Understanding the Epidemic,” https://
www.cdc.gov/drugoverdose/epidemic (last visited Nov. 20, 2018)
(explaining that “[o]n average, 115 Americans die every day from an
opioid overdose”).
22 See Holly Hedegaard, M.D., Arialdi M. Miniño, M.P.H., and
Margaret Warner, Ph.D., “Drug Overdose Deaths in the United
States, 1999–2017,” (Nov. 28, 2018),
https://www.cdc.gov/nchs/products/databriefs/db329.htm.
23 See id.
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than in the entire Vietnam war, and more fatalities than
the wars in Afghanistan and Iraq combined.24 Before the
coronavirus pandemic, the CDC blamed a drop in
American life expectancy on the steep increase in overdose
deaths.25 2014 to 2017 marked the first time that life
expectancy fall since World War II,26 and during that time
drug overdoses became the leading cause of death of
Americans under 50.27 Nationally, over two million
Americans have an addiction to prescription or illicit
opioids and on October 26, 2017, President Trump declared
the opioid crisis a Public Health Emergency.28
The opioid epidemic is exacerbated by the
proliferation of potent synthetic opioids.29 A single trunksized shipment of fentanyl (a synthetic opioid 40 times
more potent than heroin) contains enough poison to wipe
out the entire population of New Jersey and New York City

See Josh Katz, You Draw It: Just How Bad Is the Drug
Overdose Epidemic? N.Y. TIMES, Apr. 14, 2017,
https://www.nytimes.com/interactive/2017/04/14/upshot/drugoverdose-epidemic-you-draw-it.html; “Vietnam War U.S. Military
Fatal Casualty Statistics,” National Archives, Aug. 15, 2016,
https://www.archives.gov/research/military/vietnam-war/casualtystatistics; U.S. Dep’t of Defense, Casualty Status, May 4, 2020,
https://www.defense.gov/casualty.pdf.
25 See Susan Scutti. US Life Expectancy Drops in 2017 Due to
Drug Overdoses, Suicides, CNN,
https://www.cnn.com/2018/11/29/health/life-expectancy-2017cdc/index.html; Lopez, German. Drug Overdose Deaths Were so Bad
in 2017, They Reduced Overall Life Expectancy, VOX, Nov. 29, 2018.
https://www.vox.com/science-and-health/2018/11/29/18117906/opioidepidemic-drug-overdose-deaths-2017-life-expectancy; Josh Katz, and
Margot Sanger-Katz. “The Numbers Are So Staggering.” Overdose
Deaths Set a Record Last Year. N.Y. TIMES, Nov. 29, 2018,
https://www.nytimes.com/interactive/2018/11/29/upshot/fentanyldrug-overdose-deaths.html.
26 Id.
27 See Centers for Disease Control and Prevention, “Underlying
Cause of Death, 1999-2017 Results,”
https://wonder.cdc.gov/controller/datarequest/D76;jsessionid=691162F
2000B175BA5D8ED18C296F130?stage=results&action=sort&directio
n=MEASURE_DESCEND&measure=D76.M3 (accessed Dec. 10,
2018).
28 See “The Opioid Crisis,” The White House,
https://www.whitehouse.gov/opioids/ (accessed November 27, 2018).
29 See Julie K. O’Donnell et al., Deaths Involving Fentanyl,
Fentanyl Analogs, and U-47700 — 10 States, July-December 2016, 66
MMWR MORB. MORTAL. WKLY. REP. 1197–1202 (2017).
24

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combined.30 Only two milligrams of fentanyl can
tranquilize a 2,000-pound elephant.31 Carfentanil, another
synthetic opioid, is 10,000 times more powerful than
morphine.32 Additionally, the proliferation of drugs with
increasing potency is not limited to illicit markets. For
example, the FDA recently approved a new pain killer,
Dsuiva, that is stronger than fentanyl and 50 to 100 times
more potent than morphine.33
To save lives, experts agree that resources should be
funneled toward treatment.34 When an individual with
OUD desires care, and has the courage to ask for help, they
often have nowhere to go. Treatment centers are
chronically overbooked, medical clinics have long waiting
lists, and emergency rooms or fire departments cannot
offer long-term care.35 Continued use may be driven by the
See Andrew Sullivan, The Poison We Pick: Americans Invented
Modern Life. Now We’re Using Opioids to Escape It, DAILY
INTELLIGENCER, Feb. 20, 2018,
http://nymag.com/daily/intelligencer/2018/02/americas-opioidepidemic.html.
31 See id.
32 See Abby Goodnough, This City’s Overdose Deaths Have
Plunged. Can Others Learn From It?, N.Y. TIMES, Nov. 26, 2018,
https://www.nytimes.com/2018/11/25/health/opioid-overdose-deathsdayton.html.
33 See Powerful New Drug Dsuvia Worries Some amid Opioid
Epidemic, AJC, https://www.ajc.com/lifestyles/people-front-linesepidemic-fear-powerful-new-drugdsuvia/bBLIHdH7Xca5s1qrabxttL/amp.html (accessed November 28,
2018); Raeford Brown and Sidney Wolfe, The FDA Made the Wrong
Call on This Powerful, New Opioid, WASHINGTON POST, Nov. 16,
2018, https://www.washingtonpost.com/opinions/the-fda-made-thewrong-call-on-this-powerful-new-opioid/2018/11/16/39b212e2-e46411e8-ab2c-b31dcd53ca6b_story.html.
34 See Josh Katz, How a Police Chief, a Governor and a Sociologist
Would Spend $100 Billion to Solve the Opioid Crisis, N.Y. TIMES, Feb.
14, 2018,
https://www.nytimes.com/interactive/2018/02/14/upshot/opioid-crisissolutions.html. According to a 2018 report from the Surgeon General,
treatment remained unavailable to the bulk of people who need it,
with only one in four people diagnosed with OUD receiving specialty
treatment for illicit drug use. See U.S. Department of Health and
Human Services (HHS), Office of the Surgeon General, Facing
Addiction in America: The Surgeon General’s Spotlight on Opioids.
Washington, DC: HHS, September 2018.
https://addiction.surgeongeneral.gov/.
35 See Abby Goodnough, This E.R. Treats Opioid Addiction on
Demand. That’s Very Rare, THE NEW YORK TIMES, Aug. 18, 2018,
https://www.nytimes.com/2018/08/18/health/opioid-addiction30

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fear of withdrawal, or dopesickness.36 Individuals with
OUD often reorient their entire lives to avoid becoming
dopesick, losing jobs, property, and family in the process.37
Feeling dopesick is a grueling physical ordeal.38
Initial symptoms in the first six to twelve hours include
feeling hot and cold at the same time, goose bumps,
perspiration, and stomach-turning anxiety.39 The body is
acting as an alarm system, signaling to the nervous system
that the body is missing something that it depends on.40 As
the cravings progress, individuals start shaking, slurring
their speech, and experiencing severe stomach cramps.41
Muscle spasms can cause libs to thrash involuntarily, while
vomiting and diarrhea keep individuals crawling to the
bathroom, if they can make it and have access to one.42 The
physical symptoms are accompanied by depression,
anxiety, and the knowledge that the torture would end
with another fix.43 “Outsiders,” or those unfamiliar with
opioid use, “often confuse withdrawal symptoms for the
treatment.html; “Safe Station,” Manchester Fire Department,
https://www.manchesternh.gov/Departments/Fire/Safe-Station
(accessed Dec. 10, 2019).
36 See BETH MACY, DOPESICK: DEALERS, DOCTORS, AND THE DRUG
COMPANY THAT ADDICTED AMERICA, 41 (2018).
37 See PHILIPPE I. BOURGOIS, RIGHTEOUS DOPEFIEND, 20 (2009).
38 See BETH MACY, DOPESICK: DEALERS, DOCTORS, AND THE DRUG
COMPANY THAT ADDICTED AMERICA, 41, (2018); Smith v. Aroostook
Cty., 376 F. Supp. 3d 146, 150 (D. Me.), aff’d, 922 F.3d 41 (1st Cir.
2019) (“[The plaintiff] describes her ensuing withdrawal as the worst
pain she has ever endured and recalls experiencing suicidal thoughts
for the first time in her life.”); Pesce v. Coppinger, 355 F.Supp.3d 35,
41 (D. Mass. 2018) (“When Pesce reduced his methadone dosage from
120 mg per day to 20 mg per day, he became sick, suffered from
insomnia and felt anxious, unmotivated, fatigued and depressed.”).
39 See Shannon Gwin Mitchell et al., Incarceration and opioid
withdrawal: The experiences of methadone patients and out-oftreatment heroin users, 41 J PSYCHOACTIVE DRUGS 145–152 (2009).
40 See id.; Dope Sick: Breaking Down Opioid Withdrawal, THE
FIX, https://www.thefix.com/dope-sick-breaking-down-opioidwithdrawal (accessed October 26, 2018).
41 See Jonathan Reiss, Opioid Crisis: What People Don’t Know
About Heroin, ROLLING STONE, May 18, 2018,
https://www.rollingstone.com/culture/culture-features/opioid-crisiswhat-people-dont-know-about-heroin-630430/.
42 See Dope Sick: Breaking Down Opioid Withdrawal, THE FIX,
https://www.thefix.com/dope-sick-breaking-down-opioid-withdrawal
(accessed October 26, 2018).
43 See Pesce v. Coppinger, 2018 WL 4492200, ¶ 33 (D.Mass., 2018)
(trial pleading).

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effects of the drug, because the effects of withdrawal are
far more noticeable than the euphoria the drug produces.”44
During withdrawal, dopesickness dominates lived
experience 24-hours a day for six to twelve days because
insomnia prevents any respite from sleep.45
b. Treatment and the Criminal Legal System
Fortunately, effective treatment for OUD is
available. Medication-assisted treatment (MAT) uses
prescription
opioids—primarily
methadone,
buprenorphine, and naltrexone—to stop cravings and
prevent the brain from experiencing an opioid high.46 A
patient with OUD should have access to all three
medications so that medical providers “can select the
treatment best suited to an individual’s needs.”47 Some of
these medications activate opioid receptors in the brain to
stop cravings while others block receptors from accepting
their illicit counterparts.48 The medications “normalize
brain chemistry, block the euphoric effects of alcohol and
opioids, relieve physiological cravings, and normalize body
functions without the negative effects of the abused
drug.”49 MAT combines medication with counseling,

See Jonathan Reiss, Opioid Crisis: What People Don’t Know
About Heroin, ROLLING STONE, May 18, 2018,
https://www.rollingstone.com/culture/culture-features/opioid-crisiswhat-people-dont-know-about-heroin-630430.
45 See Dope Sick: Breaking Down Opioid Withdrawal, THE FIX,
https://www.thefix.com/dope-sick-breaking-down-opioid-withdrawal
(accessed October 26, 2018).
46 See Corey Davis and Derek Carr, The Law and Policy Of
Opioids For Pain Management, Addiction Treatment, And Overdose
Reversal, 14 IND. HEALTH L. REV. 1 (2017). For a full list of FDAapproved MAT medications, see Center for Drug Evaluation and
Research, Information about Medication-Assisted Treatment (MAT),
FDA (Feb. 14, 2019) https://www.fda.gov/drugs/information-drugclass/information-about-medication-assisted-treatment-mat.
47 Center for Drug Evaluation and Research, Information about
Medication-Assisted Treatment (MAT), FDA (Feb. 14, 2019)
https://www.fda.gov/drugs/information-drug-class/information-aboutmedication-assisted-treatment-mat.
48 See Corey Davis and Derek Carr, The Law and Policy Of
Opioids For Pain Management, Addiction Treatment, And Overdose
Reversal, 14 IND. HEALTH L. REV. 1, 13–14 (2017).
49 Medication and Counseling Treatment, SAMSHA,
https://www.samhsa.gov/medication-assisted-treatment/treatment.
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behavioral therapy, and other interventions to treat
substance use disorder.50
Experts recognize MAT as the gold standard of care
for treating OUD. MAT decreases opioid use, decreases
opioid-related overdose deaths, reduces criminal activity,
and diminishes infectious disease transmission.51
According to the California Society of Addiction Medicine,
MAT is 60-90 percent effective at preventing relapse, as
opposed to 5-10 percent for abstinence-based recovery.52
Furthermore, MAT maintenance for pregnant women is an
accepted best practice to avoid the medical risks of
withdrawal for the fetus.53 MAT has been provided to
pregnant women in correctional settings for many years
and has been widely researched.54
Without access to MAT, individuals with OUD may
turn to illegally obtained prescription drugs or to illicit
drugs like heroin and fentanyl to satisfy cravings and avoid
becoming dopesick.55 Use of illicit drugs leads to

See Pesce v. Coppinger, 355 F.Supp.3d 35, 40 (D. Mass. 2018).
See U.S. Dep’t of Health and Human Services (HHS), Office of
the Surgeon General, Facing Addiction in America: The Surgeon
General’s Report on Alcohol, Drugs, and Health, 1-1 (November 2016)
https://addiction.surgeongeneral.gov/sites/default/files/surgeongenerals-report.pdf.
52 See Methadone Treatment Issues, California Society of
Addiction Medicine, https://www.csam-asam.org/methadonetreatment-issues (accessed Oct. 26, 2018). See also Amato, L, et al.,
Psychosocial Combined with Agonist Maintenance Treatments Versus
Agonist Maintenance Treatments Alone for Treatment of Opioid
Dependence, Cochrane Database Syst Rev., 10 (2011); American
Society of Addiction Medicine, Advancing Access to Addiction
Medications: Implications for Opioid Addiction Treatment, 13-15
(2013), https://www.asam.org/docs/defaultsource/advocacy/aaam_implications-for-opioid-addictiontreatment_final.
53 See Substance Abuse and Mental Health Services
Administration (SAMSA), A Collaborative Approach to the Treatment
of Pregnant Women with Opioid Use Disorders, HHS Publication No.
(SMA) 16-4978, at 1 (2016)
https://ncsacw.samhsa.gov/files/Collaborative_Approach_508.pdf.
54 See National Sheriff’s Association, Jail-Based Medication
Assisted Treatment at 14 (Oct. 2018),
https://www.sheriffs.org/publications/Jail-Based-MAT-PPG.pdf.
55 See Julie K. O’Donnell et al., Deaths Involving Fentanyl,
Fentanyl Analogs, and U-47700 — 10 States, July-December 2016, 66
MMWR MORB. MORTAL. WKLY. REP. 1197–1202 (2017).
50
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involvement with the criminal legal system and
incarceration.56
Substance use disorder is prevalent and undertreated in correctional faculties. According to the National
Center on Addiction and Substance Abuse, 65 percent of all
incarcerated people in the U.S. meet medical criteria for
substance abuse addiction, but only 11 percent receive any
treatment at all.57 This figure includes all treatment of any
type; however, the rate of treatment using MAT for people
with OUD is far lower. When individuals with OUD are
incarcerated, they are typically forced to go through
See Incarceration, Substance Abuse, and Addiction, The Center
for Prisoner Health and Human Rights,
https://www.prisonerhealth.org/educational-resources/factsheets2/incarceration-substance-abuse-and-addiction/ (“Approximately half
of prison and jail inmates meet DSM-IV criteria for substance abuse
or dependence, and significant percentages of state and federal
prisoners committed the act they are incarcerated for while under the
influence of drugs.”); Effective Medical Treatment of Opiate Addiction.
National Consensus Development Panel on Effective Medical
Treatment of Opiate Addiction, JAMA 280, no. 22, 1936–43 at 1939
(Dec. 9, 1998) (finding that more than 95% of people addicted to
heroin reported committing crimes ranging from homicide to theft
during an 11-year at-risk interval). Unfortunately, the
criminalization of drugs is a twentieth century phenomenon: “In the
nineteenth century you would walk into your local apothecary and
purchase opium, cocaine, or marijuana . . . Many veterans of the
Union army got hooked on morphine after taking it for injuries they
got fighting the Civil War.” PAUL BUTLER, LET’S GET FREE 43 (2009).
At the time, the resulting addiction problem—affecting between two
and five percent of the adult population—was addressed with civil,
not criminal, regulation. Id. For example, in 1906, Congress passed
The Pure Food and Drug Act which restricted certain medicines to
sale by prescription and required labeling for habit-forming medicine.
The public education provided by this non-criminal drug law
“dramatically reduced addiction rates.” Id. at 44.
57 See National Center on Addiction and Substance Abuse (2010)
https://www.centeronaddiction.org/newsroom/press-releases/2010behind-bars-II. See also, National Sheriffs’ Association and National
Commission on Correctional Health Care, Jail-Based MedicationAssisted Treatment (2018) https://www.sheriffs.org/publications/JailBased-MAT-PPG.pdf (finding that more than half of the U.S. jail
population struggles with drug use and dependence); Press Release,
Senator Markey Leads Bipartisan Call for Assessment of Drug
Treatment Availability and Effectiveness in Correctional Facilities,
SENATOR ED MARKEY (May 30, 2018)
https://www.markey.senate.gov/news/press-releases/senator-markeyleads-bipartisan-call-for-assessment-of-drug-treatment-availabilityand-effectiveness-in-correctional-facilities (estimating that 40 percent
of prisoners in the federal system have a substance use disorder).
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involuntary withdrawal instead of receiving proper
medical care.58 Supervised withdrawal is not a treatment
for opioid use disorder.59 In general, imprisonment for drug
offenses
is
ineffective in
curbing
drug
use,60
increases recidivism,61 exacerbates the health risks of drug
use,62 perpetuates stigma,63 balloons costs,64 and
discriminates by race and social class.65
See Amy Nunn et al., Methadone and buprenorphine
prescribing and referral practices in US prison systems: results from a
nationwide survey, 105 DRUG ALCOHOL DEPEND 83, 83 (2009)
(“Despite demonstrated social, medical, and economic benefits of
providing ORT to inmates during incarceration and linkage to ORT
upon release, many prison systems nationwide still do not offer
pharmacological treatment for opiate addiction or referrals for ORT
upon release.”).
59 Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 152 (D. Me.),
aff’d, 922 F.3d 41 (1st Cir. 2019). See also Pesce v. Coppinger, 355
F.Supp.3d 35, 41 (D. Mass. 2018) (“sudden, involuntary withdrawal of
treatment will cause Pesce ‘severe and needless suffering,
jeopardize[s] his long-term recovery and is inconsistent with sound
medical practice.’”).
60 See J. P. Caulkins et al., Mandatory Minimum Drug Sentences:
Throwing Away the Key or the Taxpayers' Money? National Criminal
Justice Reform Service (1997)
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=166127.
61 See Cassia Spohn and David Holleran, The Effect of
Imprisonment on Recidivism Rates of Felony Offenders: A Focus on
Drug Offenders, 2 CRIMINOLOGY 40, 329 (2002)
https://doi.org/10.1111/j.1745-9125.2002.tb00959.x.
62 See R. Douglas Bruce and Rebecca A. Schleifer, Ethical and
Human Rights Imperatives to Ensure Medication-Assisted Treatment
for Opioid Dependence in Prisons and Pre-Trial Detention, 1
INTERNATIONAL JOURNAL OF DRUG POLICY 19, 17 (2008)
https://doi.org/10.1016/j.drugpo.2007.11.019.
63 See Michael Young, Jennifer Stuber, Jennifer Ahern, and
Sandro Galea, Interpersonal Discrimination and the Health of Illicit
Drug Users, 31 THE AMERICAN JOURNAL OF DRUG AND ALCOHOL
ABUSE 3, 371 (2005) https://doi.org/10.1081/ADA-200056772.
64 See E. A. Nadelmann, Drug Prohibition in the United States:
Costs, Consequences, and Alternatives, 245 SCIENCE 4921, 939 (1989)
https://doi.org/10.1126/science.2772647.
65 See Shannon Mullen, Lisa Robyn Kruse, Andrew J. Goudsward,
and Austin Bogues, What will it take to end the inequity?, ASBURY
PARK PRESS, Dec. 5, 2019, https://www.app.com/indepth/news/local/emergencies/2019/12/02/crack-vs-heroin-what-takeend-inequity/4302737002/; Crack vs. Heroine Project: Racial Double
Standard in Drug Laws Persists Today, Equal Justice Initiative
(2019), https://eji.org/news/racial-double-standard-in-drug-lawspersists-today/; Taylor N. Santoro & Jonathan D. Santoro, Racial
Bias in the US Opioid Epidemic: A Review of the History of Systemic
Bias and Implications for Care, 10 Cureus,
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The threat of overdose and death is higher upon
release.66 Studies show that abrupt withdrawal “can lead
to post-release issues including failure to return to
treatment, relapse, overdose, and death.”67 One study
found that nearly 50 percent of deaths among recently
released individuals were opioid related.68
MAT, however, can reduce post-release drug-related
mortality by 80 to 85 percent.69 In a recent case, a federal
court wrote, “[g]iven the well-documented risk of death
associated with opioid use disorder, appropriate treatment
is crucial. People who are engaged in treatment are three

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6384031/. It is
important to note, in particular, the racial disparities in the public
response to the opioid epidemic compared to the crack cocaine
epidemic. See Julie Netherland & Helena B. Hansen, The War on
Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in
Media Coverage of Prescription Opioid Misuse, 40 CULT MED
PSYCHIATRY 664, 665 (2016).
66 See Elizabeth L. C. Merrall et al., Meta-analysis of drug-related
deaths soon after release from prison, 105 ADDICTION 1545–1554
(2010); Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 150 (D. Me.),
aff'd, 922 F.3d 41 (1st Cir. 2019) (“[T]he risk of overdose death is even
higher among recently-incarcerated people and others who have just
undergone a period of detoxification, because opioid tolerance
decreases in the absence of use.”).
67 Smith v. Aroostook Cty., 376 F. Supp. 3d at 151 n.3.
68 See Massachusetts Department of Public Health, An
Assessment of Fatal and Nonfatal Opioid Overdoses in Massachusetts
(2011-2015), 50 (2017)
https://www.mass.gov/files/documents/2017/08/31/ legislativereportchapter-55-aug-2017.pdf. See also, Traci C. Green, et al.,
Postincarceration Fatal Overdoses After Implementing Medications
for Addiction Treatment in a Statewide Correctional System, 74
JAMA Psychiatry 4, 405 (April 2018) (observing “a large and
clinically meaningful reduction in postincarceration deaths from
overdose among inmates released from incarceration after
implementation of a comprehensive MAT program” in the Rhode
Island Department of Corrections).
69 See John Marsden et al., Does exposure to opioid substitution
treatment in prison reduce the risk of death after release? A national
prospective observational study in England, 112 ADDICTION 1408,
1408 (2017) (finding that “prison-based opioid substitution therapy
was associated with . . . an 85% reduction in fatal drug-related
poisoning in the first month after release.”); Smith v. Aroostook Cty.,
376 F. Supp. 3d. at 150 (explaining that “[o]ne study of English
correctional facilities found that treatment with buprenorphine or
methadone was associated with an 80 to 85 percent reduction in postrelease drug-related mortality” and that similar results were found in
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times less likely to die than those who remain untreated.”70
In a randomized, controlled study in Rhode Island,
incarcerated individuals who were permitted to remain on
MAT were seven times more likely to continue treatment
after release than those who were forced to go through
withdrawal.71 In short, America’s criminalization of a
health crisis is ineffective and costly.
II.

The Right to Medical Treatment While
Incarcerated
a. Overview of the Right to Treatment

U.S. Courts have recognized a series of rights and
protections guaranteed to individuals who are incarcerated
and suffering from addiction.72 The progression of cases
shows that individuals with substance use disorder have a
right to adequate medical care for their disease.
First, the Supreme Court held in 1962 that addiction
is an illness and that it is unconstitutional to punish
someone for having the illness of addition.73 In Robinson v.
California, a defendant appealed his conviction for the
crime of being addicted to narcotics.74 The Court held that
addiction is an illness and that it was “cruel and unusual
punishment” to make addiction a criminal offense.75 The
Court further noted that “[e]ven one day in prison would be
a cruel and unusual punishment for the ‘crime’ of having a
common cold.”76 In a subsequent case, Justice Fortas noted
Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 152 (D. Me.),
aff’d, 922 F.3d 41, 150 (1st Cir. 2019).
71 See id. at 151 (“The evidence of MAT’s benefits has become so
compelling that it would no longer be possible to conduct the kind of
randomized trial that was used in Rhode Island . . . researchers
would not consider it ethically feasible to deny a group a medication
that has such [a] proven track record at improving outcomes.”)
(internal quotations omitted).
72 For an insightful analysis of health care in prisons and jails,
see KENNETH FAIVER, HUMANE HEALTH CARE FOR PRISONERS ETHICAL AND LEGAL CHALLENGES (2017).
73 See Robinson v. California, 370 U.S. 660, 667 (1962)
(recognizing that “narcotic addiction is an illness”); Linder v. United
States, 268 U.S. 5, 18 (1925) (recognizing that persons addicted to
narcotics “are diseased and proper subjects for (medical) treatment”).
74 See Robinson v. California, 370 U.S. 660, 660–61 (1962).
75 See id. at 667.
76 Id.
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in dissent that incarcerating individuals with addiction is
punishment with no therapeutic or deterrent value.77
Second, the Court held in 1976 that incarcerated
individuals have a right to adequate medical care.78 In
Estelle v. Gamble, a prisoner claimed that he had received
inadequate medical care for a back injury. The Court held
that the “deliberate indifference to serious medical needs
of prisoners constitutes the ‘unnecessary and wanton
infliction of pain’” in violation of the Eighth Amendment.79
The Court provided examples of constitutional violations,
including intentional denial of care, preventing access to
care, or ignoring a physician’s order and prescriptions.80
The Court noted that denying medical care causes “pain
and suffering which no one suggests would serve any
penological purpose,” and found that “[t]he infliction of
such unnecessary suffering is inconsistent with
contemporary standards of decency.”81 Due to the
circumstances of confinement, “an inmate must rely on
prison authorities to treat his medical needs.”82
Accordingly, the government must provide medical care for
individuals that the state has decided to punish through
incarceration.

See Powell v. State of Texas, 392 U.S. 514, 564 (1968) (“It is
entirely clear that the jailing of chronic alcoholics is punishment. It
is not defended as therapeutic, nor is there any basis for claiming
that it is therapeutic (or indeed a deterrent).”) (Justice Fortas,
dissenting).
78 See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Newman v.
Alabama, 349 F.Supp. 278, 285-86 (M.D. AL, 1972) (“[F]ailure of the
Board of Corrections to provide sufficient medical facilities and staff
to afford inmates basic elements of adequate medical care
constitutes a willful and intentional violation of the rights of
prisoners guaranteed under the Eighth and Fourteenth Amendments.
Further, the intentional refusal by correctional officers to allow
inmates access to medical personnel and to provide prescribed
medicines and other treatment is cruel and unusual punishment in
violation of the Constitution.”).
79 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal citation
omitted).
80 See id. at 104.
81 See id. at 103.
82 See id. See also, Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(requiring that human confinement be accompanied by “adequate
food, clothing, shelter, and medical care”); Spicer v Williamson, 132
S.E. 291, 293 (N.C. 1926) (holding that “[i]t is but just that the public
be required to care for the prisoner, who cannot, by reason of the
deprivation of his liberty, care for himself”).
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Subsequently, in 1979, the Court held that pretrial
detainees deserved an enhanced level of care relative to
prisoners.83 The Court permitted this discrepancy because
the presumption of innocence prevents punishment prior
to conviction, but conditions of incarceration may
constitute punishment post-conviction.84 In Bell v. Wolfish,
the Court noted: “Due Process requires that a pretrial
detainee not be punished. A sentenced inmate, on the other
hand, may be punished, although that punishment may
not be ‘cruel and unusual’ under the Eighth Amendment.”85
For the purpose of this article, a pretrial detainee is
someone who is incarcerated but unable to pay bail or meet
other conditions of pretrial release, while a prisoner is
someone who has been convicted and is serving a criminal
sentence.
However, despite the difference in level of care, both
pretrial detainees and prisoners must show objective need
and subjective indifference in order to prove a violation of
their constitutional rights.86 Under either the Due Process
clause or the Eighth Amendment, people who are
incarcerated and denied medical care must prove the
objective element of the patient’s serious medical need and
the subjective element of correctional officer’s intent to
harm or deliberate indifference to suffering.87 Within this
two-pronged test, some courts have applied a lower
standard to pretrial detainees, abiding by the rationale
that the state may not impose punitive conditions before

See Bell v. Wolfish, 441 US 520, 535 n.16 (1979).
Id.
85 See id. at 535 n.16 (“The Court of Appeals properly relied on the
Due Process Clause rather than the Eighth Amendment in
considering the claims of pretrial detainees. Due process requires
that a pretrial detainee not be punished. A sentenced inmate, on the
other hand, may be punished, although that punishment may not be
‘cruel and unusual’ under the Eighth Amendment.”). See also United
States v. Lovett, 328 U.S. 303, 317-318 (1946) (“[T]he State does not
acquire the power to punish with which the Eighth Amendment is
concerned until after it has secured a formal adjudication of guilt in
accordance with due process of law. Where the State seeks to impose
punishment without such an adjudication, the pertinent
constitutional guarantee is the Due Process Clause of the Fourteenth
Amendment.”).
86 See part III. B. and part III. C, infra; Estelle v. Gamble, 429
U.S. at 104.
87 Estelle v. Gamble, 429 U.S. at 104.
83
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conviction.88 Some courts, however, have applied the same
standard to both groups.89
Finally, in assessing constitutional violations for
failure to provide medical care, most courts apply a
“totality of circumstances” test that considers all conditions
of confinement rather than the specific violation.90 For
example, in Todaro v. Ward the Second Circuit held, “while
a single instance of medical care denied or delayed, viewed
in isolation, may appear to be the product of mere
negligence, repeated examples of such treatment bespeak
a deliberate indifference by prison authorities to the agony
engendered by haphazard and ill-conceived procedures.”91
Some courts, however, reject the totality of the
circumstances test and focus solely on a specific medical
need or condition of confinement.92
b. Treatment for Pretrial Detainees: The Due
Process Clause
Claims challenging the conditions of confinement for
pretrial detainees come under the Due Process clause of the
Fifth and Fourteenth Amendments.93 The Due Process
See Boswell v. County of Sherburne, 849 F.2d 1117 (8th Cir.
1988) (cert denied 488 US 1010).
89 See Anderson v. Atlanta, 778 F.2d 678 (11th Cir. 1985);
Johnson-Schmitt v. Robinson, 990 F.Supp.2d 331, 342 n3 (W.D.N.Y.
2013) (“Although a pre-trial detainee’s challenge to the conditions of
her confinement is properly reviewed under the due process clause of
the Fourteenth Amendment, the standard for evaluating deliberate
indifference to the health or safety of a person in custody is the same
irrespective of whether the claim is brought under the Eighth or
Fourteenth Amendment.”).
90 See McCord v. Maggio, 927 F.2d 844 (5th Cir. 1991); Albro v.
Onondaga County, N.Y., 681 F.Supp. 991 (N.D.N.Y. 1998); Heitman
v. Gabriel, 524 F.Supp. 622 (W.D. Miss. 1981).
91 Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). See also, Holt v.
Sarver, 442 F.2d 304 (8th Cir. 1971) (also considering totality of
circumstances).
92 See Groseclose v. Dutton, 829 F.2d 581 (6th Cir. 1987).
93 See Bell v. Wolfish, 441 US 520, 535 n.16 (1979) (“The Court of
Appeals properly relied on the Due Process Clause rather than the
Eighth Amendment in considering the claims of pretrial detainees.
Due process requires that a pretrial detainee not be punished.”); see
generally, 24 AMJUR POF 3d 467 (“[T]he proper standard for
analyzing conditions of confinement for pretrial detainees arises
under the due process clause of the Fifth and Fourteenth
Amendments. The inquiry is whether the pretrial detainees have
been denied their liberty without due process.”). However, some
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clause prohibits conditions of a pretrial detainee’s
confinement that are punitive in intent; conditions that are
not rationally related to a legitimate purpose in
maintaining safety, security, and efficiency; and conditions
that are rationally related to safety, security, and
efficiency, but are excessive in scope94 or excessive in
length.95 To show a violation of their due process rights,
detainees must prove that conditions of confinement are (1)
subjectively punitive in intent, and (2) objectively beyond
the legitimate state interests of safety, security, and
efficiency.96 This two part test is similar to the Eighth
Amendment analysis, but with a lower bar for violation.97
The earliest MAT cases held that pretrial detainees
should not have to suffer involuntary withdrawal before a
finding of guilt. For example, in 1978 a pretrial detainee
named Tyrone Norris was denied access to methadone
treatment that had been prescribed prior to his
incarceration.98 Without his medication, the pain from
withdrawal drove Mr. Norris to slash his left wrist.99 The
Third Circuit found that “the refusal to allow Norris to
continue to receive methadone operates to deprive him of a
liberty interest without due process of law.”100 The case,
courts continue to apply the incorrect standard for a violation of the
right to medical care. For example, in Nauroth v. Southern Health
Partners, Inc. an Ohio district court applied an Eighth Amendment
test to determine that jail’s policy prohibiting Methadone treatment
did not violate a pretrial detainees constitutional right to medical
treatment. 2009 WL 3063404 (S.D. Ohio, Western Division, 2009). In
this case, a pretrial detainee was being treated with Methadone, but
the jail terminated his treatment immediately upon incarceration.
The application of this heightened standard is a tragic misapplication
of the law.
94 See Bell v. Wolfish, 441 U.S. 520, 536–37 (1979); see also,
Williams v. Community Solutions, Inc., 932 F. Supp. 2d 323, 331 (D.
Conn. 2013) (holding that Fifth Amendment protections against cruel
and unusual punishment typically apply to pretrial detainees and not
to inmates); Oladokun v. Correctional Treatment Facility, 5
F.Supp.3d 7, 14–15 (D.C. 2013) (same).
95 See Campbell v. McGruder, 580 F2d 521, 532 (D.C. Cir. 1978).
96 See Bell v. Wolfish, 441 U.S. 520 (1979); Farmer v.
Brennan, 511 U.S. 825, 837 (holding that section 1983 liability only
attaches if an “official knows of and disregards an excessive risk to
inmate health or safety”).
97 See Part II.c. Eighth Amendment, infra.
98 See Norris v. Frame, 585 F.2d 1183, 1185 (3d Cir. 1978)
99 See id. (noting that “Norris testified that the pain was sufficient
to drive him to slash his left wrist”).
100 Id.

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Norris v. Frame, was decided under the framework that
subjecting pretrial detainees to restrictions other than
those inherent to “confinement itself” or “justified by
compelling necessities of jail administration” violated the
detainee’s due process rights.101
Unfortunately, the Supreme Court restricted
protections for pretrial detainees after Norris. In 1979, the
Supreme Court in Bell v. Wolfish rejected the “compelling
necessity” standard and limited due process protections for
pretrial detainees to conditions that “amount to
punishment of the detainee.”102 The Court held that the
protections of the “presumption of innocence” applies to the
state’s burden of proof and to rules of evidence, but not to
the conditions of confinement.103
Due to the restrictions that the Supreme Court
created in Bell, it became more difficult for pretrial
detainees to make successful claims against denial of
medical care. For example, after Bell, pretrial detainees in
a Pittsburgh jail claimed that the termination of
methadone treatment on the sixth day of detention violated
their constitutional rights.104 The plaintiffs alleged due
process violations because the jail’s detoxification policy
terminated treatment after six days of confinement for a
detainee “who has been receiving methadone treatment
from an authorized treatment center . . . prior to his
incarceration.”105 In light of Bell, and only a year after
Norris, the Third Circuit determined that the termination
of medical treatment after six days did not violate the Due
Process clause because the policy lacked a “punitive
purpose.”106 Inmates of Allegheny demonstrates the
Id.; Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974).
Bell v. Wolfish, 441 US 520, 535 (1979).
103 Bell v. Wolfish, 441 US 520, 533 (1979) (holding that the
presumption of innocence “has no application to a determination of
the rights of a pretrial detainee during confinement before his trial
has even begun”).
104 See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754,
756-57 (3d Cir. 1979).
105 Id. at 758.
106 Id. at 760-61. The plaintiffs succeeded on many counts
including inadequate plumbing and lighting, extreme temperatures,
inadequate supervision that permitted hoarding and vandalism of
necessary supplies, confining detainees with mental instability in a
“restraint room” where they were bound naked to a cot with a hold in
the middle and a tub to collect bodily waste, extended solitary
confinement without a mattress, toilet articles, or changes of clothing,
101
102

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limitations of constitutional protections for access to MAT
that incarcerated plaintiffs faced in the late twentieth
century.
Fortunately, at the turn of the millennium case law
began to shift toward greater medical protection for
pretrial detainees. In 1994, a pretrial detainee named
James Messina sued correctional officers for denying
access to his previously prescribed MAT.107 In Messina v.
Mazzeo, the federal district court denied the officers’
motion for summary judgment because there was a
reasonable likelihood that there was a “medical necessity”
for the detainee to “receive methadone immediately,” and
therefore the prison doctor may have been “deliberately
indifferent” to the detainee’s serious medical need.108
Messina represents a move toward recognizing OUD as
serious medical need and denial of MAT as deliberately
indifferent to that need.
Similarly, in Alvarado v. Westchester County,
pretrial detainees alleged that they were uniformly denied
methadone or other prescription medication over the
course of nine months when it was apparent that their
treatment with over-the-counter medications was not
effective.109 In 2014, the federal district court held that the
detainees had successfully stated a claim that the denial of
treatment for heroin withdrawal was deliberately
indifferent to serious medical needs.110 The case was later
dismissed because the plaintiffs, who were proceeding pro
se, failed to notify the court that their addresses had
changed.111
As a final example of protections for pretrial
detainees, a court in Andrews v. County of Cayuga found
that a detainee’s allegations that jail officials refused to
give him legally prescribed medications were sufficient to
state a claim for failure to provide adequate medical

and isolation in an unfurnished, windowless cell without any clothes
or blankets. Id. at 757.
107 See Messina v. Mazzeo, 854 F.Supp. 116, 140 (E.D.N.Y. 1994).
108 Id.
109 See Alvarado v. Westchester County, 22 F.Supp.3d 208
(S.D.N.Y. 2014) (noting that one detainee was also falsely informed
jail did not have methadone program).
110 See id.
111 See id.

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care.112 The detainee was injured during a withdrawalinduced seizure.113
The standard for adequate medical care is rising;
medical providers now must provide detailed treatment
regimens in order for their care to meet constitutional
minimum standards. For example, in Ramos v. Patnaude a
pretrial detainee experiencing heroin withdrawal was
placed on medical watch that called for observation on at
least 25 occasions by nursing personnel.114 He was
examined by the facility’s medical director, and—despite
skepticism that the detainee’s continuing complaints were
genuine—twice given three-day drug treatment and twice
taken to the Emergency Room.115 The First Circuit held
that this was not deliberate indifference to substantial risk
of serious harm because the medical director followed “a
pharmaceutical protocol he had applied in thousands of
instances of drug withdrawal at the House of Correction,”
and because that protocol has had “overwhelming success
over a period of 30 years.”116 Ramos in 2011 is similar to
Inmates of Allegheny in 1979 because in both situations the
jail offered only a brief period of medical treatment;
however, Ramos is an important progression because of the
higher expectations for the level of care.
These cases indicate that courts may be receptive to
treating withdrawal as a preventable condition of a
treatable disease. In short, the state has a duty to provide
adequate medical treatment for pretrial detainees, and
denial of MAT may violate the constitutional standard of
care.
c. Treatment for
Amendment

Prisoners:

The

Eighth

As previously noted, prisoners are individuals who
have been convicted and are serving a criminal sentence.
Their claims must come under the Eighth Amendment and
require a showing of a “deliberate indifference to serious
medical needs” on behalf of jail or prison officials.117 This
112

2012).

See Andrews v. County of Cayuga, 96 A.D.3d 1477 (4th Dep’t

See id.
See Ramos v. Patnaude, 640 F.3d 485 (1st Cir. 2011).
115 See id.
116 Id.
117 Estelle v. Gamble, 429 U.S. at 104.
113
114

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two-part test derives from the Eighth Amendment
protection against cruel and unusual punishment and
includes both a subjective and an objective prong. A
prisoner must show (1) a deliberate indifference on the part
of prison officials to address the prisoner’s need, and (2) a
depravation or medical need that is, objectively,
significantly serious.118 This test for prisoners is similar in
form to the test for pretrial detainees under the due process
clause but in application is more difficult for plaintiffs to
meet; however, recent cases challenging inadequate
medical care have succeeded under the Eighth Amendment
standard.
Regarding the subjective awareness prong, a
prisoner must show that prison officials knew of and
disregarded a substantial risk.119 In Farmer v. Brennan,
the Supreme Court held, “the [prison] official must both be
aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference.”120 Negligence in diagnosing or
treating a medical condition is insufficient because
“[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”121
Prisoners must go further and show that officials had a
“culpable state of mind.”122
Despite the limitations of the subjective test,
prisoners can still get relief from future harm because “[a]n
injunction cannot be denied to inmates who plainly prove
an unsafe, life-threatening condition on the ground that
See id. See also Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(defining deliberate indifference).
119 See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“We reject
petitioner’s invitation to adopt an objective test for deliberate
indifference. We hold instead that a prison official cannot be found
liable under the Eighth Amendment for denying an inmate humane
conditions of confinement unless the official knows of and disregards
an excessive risk to inmate health or safety.”).
120 Farmer v. Brennan, 511 U.S. at 837. See also id. at 826
(“[P]rison officials may not be held liable if they prove that they were
unaware of even an obvious risk or if they responded reasonably to a
known risk, even if the harm ultimately was not averted.”).
121 Estelle v. Gamble, 429 U.S. at 106 (applying the Eighth
Amendment). See also Daniels v. Williams, 474 U.S. 327, 330-31
(1986) (noting that the same is true for pretrial detainees under the
Fourteenth Amendment: “[M]ere lack of due care by a state official
may “deprive” an individual of life, liberty, or property under the
Fourteenth Amendment”).
122 Wilson v. Seiter, 501 U.S. 294, 296 (1991).
118

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nothing yet has happened to them.”123 Additionally, circuit
courts have held that a persistent pattern of failing to
provide adequate medical care may give rise to an
inference of deliberate indifference, even when individual
instances are mere negligence.124 Similarly, infrequent
access to care may show deliberate indifference.125
Regarding the objective seriousness prong, prison
conditions violate the Eighth Amendment if they result in
the unnecessary and wanton infliction of pain or are
grossly disproportionate to the severity of the crime
warranting imprisonment.126 Conditions that are grossly
disproportionate result in a serious deprivation of basic
human needs or are totally without penological
justification.127 A serious medical need is “one that is so
obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.”128 Put simply, “the
Eighth Amendment forbids not only deprivations of
medical care that produce physical torture and lingering
death, but also less serious denials which cause or
perpetuate pain.”129 A significant risk of future harm may
suffice as a serious medical need;130 however, merely harsh
conditions are “part of the penalty that criminal offenders
pay for their offenses against society,”131 unless they
deprive the individual of the necessities of life.132
The standard for adequate medical care evolves over
time because it derives from the Eighth Amendment. In
Trop v. Dulles, the Supreme Court held that the Eighth
Helling v. McKinney, 509 U.S. 25, 25 (1993). See also, Farmer
v. Brennan, 511 U.S. at 826-27 (“Use of a subjective test will not
foreclose prospective injunctive relief, nor require a prisoner to suffer
physical injury before obtaining prospective relief. The subjective test
adopted today is consistent with the principle that “[o]ne does not
have to await the consummation of threatened injury to obtain
preventive relief.”).
124 See Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977).
125 See Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983).
126 See Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
127 See Rhodes, 452 U.S. at 346, 347.
128 Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208
(1st Cir. 1990).
129 Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977) (“It is clear
from this principle that a constitutional claim is stated when prison
officials intentionally deny access to medical care or interfere with
prescribed treatment.”).
130 See Kosilek v. Spencer, 774 F.3d 63, 85 (1st Cir. 2014).
131 Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
132 See Hutto v. Finney, 437 U.S. 678 (1978).
123

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Amendment “must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society.”133 Further, in Rhodes v. Champman the Court
held that “[n]o static ‘test’ can exist by which courts
determine whether conditions of confinement are cruel and
unusual.”134
Recently, Eighth Amendment law has developed in
favor of prisoners with OUD. Four examples show that
prisoners with OUD have colorable Eighth Amendment
claims when they are denied MAT. First, in 2006 the
Seventh Circuit precluded summary judgment over a
disputed fact regarding denial of MAT. James Davis had a
history of drug and alcohol addition, was in a methadone
treatment program, and received his last dose the day he
reported to Cook County Jail to serve a ten-day sentence
for a traffic violation.135 Mr. Davis made repeated requests
for his methadone, never received medication, and died
from a cerebral aneurism six days into his sentence.136 In
Davis v. Carter, the court precluded summary judgment for
the defendants because there was a genuine issue of
material fact as to whether the county had widespread
practice of inordinate delay in providing methadone
treatment to incarcerated individuals. The disputed fact
was whether the county routinely delayed several days in
providing medication to prisoners coming in with prior
prescriptions for treatment.137 In this case, a several days
delay in treatment would constitute denial of care for a
serious medical need.
Second, in the 2018 case Pesce v. Coppinger, the
federal district court of Massachusetts issued injunctive
relief requiring the Essex County House of Corrections to
provide future-prisoner Geffrey Pesce with access to his
physician-prescribed methadone treatment.138 Mr. Pesce
Trop v Dulles, 356 U.S. 86, 100-01 (1958) (“The basic concept
underlying the Eighth Amendment is nothing less than the dignity of
man. While the State has the power to punish, the Amendment
stands to assure that this power be exercised within the limits of
civilized standards … The Amendment must draw its meaning from
the evolving standards of decency that mark the progress of a
maturing society.”).
134 Rhodes v. Champman, 452 U.S. 337 (1981).
135 See Davis v. Carter, 452 F.3d 686, 688 (7th Cir. 2006).
136 See id.
137 See id. at 695.
138 See Pesce v. Coppinger, 355 F.Supp.3d 35, 39 (D. Mass. 2018).
133

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had a long history of cycles of relapse and remission with
OUD. Most recently, he had been in active recovery for two
years and with the help of physician-prescribed MAT had
not failed a drug test during that time. He worked as a
mechanic, contributed financially to his family, and was
able to spend time with his son. Unfortunately, in July
2018 Pesce’s parents were unable to drive him to the
methadone clinic to receive his normal dose of medication.
To avoid withdrawal, Pesce drove himself to the clinic and
was pulled over for speeding six miles over the speed limit.
Pesce was driving on a suspended license and, as a
consequence, was required to serve a sixty-day sentence for
violating probation for a previous charge. The facility
where Pesce was likely to serve his time required
incarcerated individuals to undergo forced withdrawal
under medical supervision.139 This official policy had no
consideration for an individual prisoner’s specific medical
history and directly contradicted Pesce’s physician’s
recommendations.140 The Court found that Pesce satisfied
the objective prong of the Eighth Amendment test because
his medical need was “either diagnosed by a physician as
mandating treatment or is so obvious that a layperson
would recognize the need for medical assistance.”141 The
Court further found that Pesce satisfied the subjective
prong because the facility’s “course of treatment ignores
and contradicts [Pasce’s] physician’s recommendations.”142
Because the facility’s blanket policy “ignore[ed] treatment
prescriptions given to [Pesce] by [his] doctors,” the court
held that Peace was “likely to succeed on the merits of his
Eighth Amendment claim.”143
Third, in 2019 the federal district court of Maine
found that “withdrawal protocol is not a treatment for
opioid use disorder” and required the prison to provide
MAT.144 In Smith v. Aroostook County, the court noted,
Id. at 37.
See id. at 45–46.
141 Id. at 47 (citing Gaudreault v. Mun. of Salem, Mass., 923 F.2d
203, 208 (1st Cir. 1990)).
142 Id. (citing Alexander v. Weiner, 841 F. Supp. 2d 486, 493 (D.
Mass. 2012) (“Allegations that prison officials denied or delayed
recommended treatment by medical professionals may be sufficient to
satisfy the deliberate indifference standard.”)).
143 Id. at 48.
144 Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 152 (D. Me.),
aff’d, 922 F.3d 41 (1st Cir. 2019).
139
140

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“[t]he evidence presented in this action suggests that a
scientific consensus is growing that refusing to provide
individuals with their prescribed MAT is a medically,
ethically, and constitutionally unsupportable denial of
care.”145 The court explicitly refuted the ideal that
withdrawal is a “necessary evil,” instead finding that
“withdrawal is a counterproductive, painful experience
that is easily identified as an injury.”146 While the court
resolved the case in favor of the prisoner under the
Americans with Disabilities Act without reaching the
Eighth Amendment claim, the opinion suggests that the
prisoner would have been successful under the Eighth
Amendment had the court reached that claim.147
Fourth, the Federal Bureau of Prisons (BOP)
acknowledged their obligation to provide MAT three times
in 2019.148 In response to litigation, the BOP allowed three
non-pregnant individuals to receive MAT while
incarcerated.149 Providing MAT to non-pregnant prisoners
is against BOP policy, but the BOP made exceptions in the
face of strong Eighth Amendment claims.150
These cases indicate that, despite the high bar to
contest an Eighth Amendment violation, prisoners have
colorable claims when they are denied treatment based on
a blanket-policy that ignores the particularized
characteristics of individual plaintiffs.
d. Treatment for Drug Addiction: The Americans
with Disabilities Act
Id. at 161 n. 20.
Id. at 161 n. 21.
147 See part II.d., infra.
148 See Dipierro v. Hurwitz, Settlement Agreement, 2 (Mass. June
7, 2019)
https://www.aclum.org/sites/default/files/20190607_dipierro_settleme
nt.pdf; Crews v. Sawyer, Kansas and Missouri ACLU affiliates reach
settlement with Bureau of Prisons; Leavenworth inmate will receive
opioid medication tonight, ACLU OF KANSAS (Kans., Sept. 11, 2019),
https://www.aclukansas.org/en/press-releases/kansas-and-missouriaclu-affiliates-reach-settlement-bureau-prisons-leavenworth; Godsey
v. Sawyer, ACLU-WA lawsuit settled: Federal prison system agrees to
provide medication-assisted treatment for opioid use disorder, ACLU
OF WASHINGTON (Wash., Dec. 11, 2019) https://www.aclu.org/pressreleases/aclu-wa-lawsuit-settled-federal-prison-system-agreesprovide-medication-assisted.
149 Id.
150 Id.
145
146

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The ADA protects against discrimination on the
basis of a disability, which includes the denial of MAT
based on a person’s OUD diagnosis.151 An individual can
prevail on a disability discrimination claim if they show
“(1) that he is a qualified individual with a disability; (2)
that he was either excluded from participation in or denied
the benefits of some public entity’s services, programs, or
activities or was otherwise discriminated against; and (3)
that such exclusion, denial of benefits, or discrimination
was by reason of the plaintiff’s disability.”152 The ADA
specifies that a person cannot be denied health or
rehabilitative services if they have engaged in drug use,
legal or illegal.153
First, a plaintiff can establish that they have a
disability under the ADA by showing “(A) a physical or
mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such
an impairment; or (C) being regarded as having such an
impairment.”154 The ADA dictates that the definition of
disability “shall be construed in favor of broad coverage,”155
and many courts have held that people with OUD are
qualified individuals with a disability.156 A particularly
See 42 U.S.C. § 12102; 28 C.F.R. § 35.108(b)(2).
Gray v. Cummings, 917 F.3d 1, 15 (1st Cir. 2019). See also
Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000);
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2001). This section on
the ADA, and the citations within it, come largely from the excellent
work by the Legal Action Center. Specifically, their report Legality of
Denying Access to Medication Assisted Treatment In the Criminal
Justice System (2011) https://lac.org/wpcontent/uploads/2014/12/MAT_Report_FINAL_12-1-2011.pdf.
153 See 42 U.S.C. § 12210(c).
154 42 U.S.C. § 12102(1).
155 42 U.S.C. § 12102(4)(A).
156 An individual can show they are “qualified” if, “with or without
reasonable modifications to rules, policies, or practices,” they “meet[]
the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by the public entity.”
See MX Group, Inc. v. City of Covington, 293 F.3d 326, 340–42 (6th
Cir. 2002). Moreover, the U.S. Supreme Court held that a prisoner
with a disability seeking access to a prison programs is a “qualified
individual.” Pennsylvania Dep’t of Corrections v. Yesky, 524 U.S. 206,
210–11 (1999). It is worth noting that individuals challenging
discrimination are not “qualified” if their participation in the program
“poses a significant risk to the health or safety of others that cannot
be ameliorated by means of a reasonable modification.” See New
Directions Treatment Serv. v. City of Reading, 490 F.3d 293, 305 (3d
151
152

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clear example is MX Group, Inc. v. City of Covington, where
a MAT program charged the City of Covington with zoning
discrimination based on the disability of its patients.157 The
court in MX Group held that drug addiction was a
disability under all three prongs of the ADA’s definition of
disability and held that drug abuse is an impairment that
substantially limited major life activities such as
“functioning in everyday life.”158
Second, prison health care is a “service, program or
activity” that individuals with disabilities are excluded
from or denied if they do not receive adequate medical care.
The ADA applies specifically to prison medical services,159
and medical benefits are denied if they do not exist or if the
correctional facility does not provide adequate care.
Incarcerated individuals are eligible for “whatever level of
prison health care the correctional facility is required to
provide pursuant to their governing laws, regulations, or
policies.”160 If someone with a disability is qualified for a

Cir. 2007) (citing Bay Area Addiction Research and Treatment, Inc. v.
City of Antioch, 179 F.3d 725, 734 (9th Cir. 1999)). The assessment of
“significant risk” must be “based on medical or other objective
evidence,” and not subjective speculation. See Bragdon v. Abbott, 524
U.S. 624, 626 (1998). However, there is no objective evidence that
individuals in MAT pose a significant risk to correctional facilities.
See Legal Action Center, Legality of Denying Access to Medication
Assisted Treatment In the Criminal Justice System, 12 (2011)
https://lac.org/wp-content/uploads/2014/12/MAT_Report_FINAL_12-12011.pdf.
157 See MX Group, Inc. v. City of Covington, 293 F.3d 326, 336
(6th Cir. 2002)
158 Id. at 338 (citing Bragdon v. Abbott, 524 U.S. 624, 632-333
(1998).
159 See Pennsylvania Department of Corrections v. Yeskey, 524
U.S. 206, 210 (1999) (holding that the ADA applies to prisons and
that a prisoner is a “qualified individual” for prison programs); Kiman
v. N.H. Dep’t of Corr., 451 F.3d 274, 287 (1st Cir. 2006) (holding that
providing prescription medications—as one part of a prison’s overall
medical services—constitutes a service, program, or activity under
the ADA); Pesce v. Coppinger, 2018 WL 6171881, 6 (D. Mass. 2018)
(“As an initial matter, the medical care provided to Middleton’s
incarcerated population qualifies as a ‘service’ that disabled inmates
must receive indiscriminately under the ADA.”).
160 Legal Action Center, Legality of Denying Access to Medication
Assisted Treatment In the Criminal Justice System, 12 (2011)
https://lac.org/wp-content/uploads/2014/12/MAT_Report_FINAL_12-12011.pdf (discussing how courts have rejected the argument that
generalized fears about MAT create a significant risk).

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service, then they are denied the benefits when such
services are not available.
Third, denial of access to proper medical care in
prisons and jails is discrimination by reason of a person’s
disability. To prove discrimination because of a disability,
a party must show disparate treatment, disparate impact,
or failure to make a reasonable accommodation.161
Disparate treatment claims argue “that the disability
actually motivated the defendant’s adverse conduct.”162
Disparate impact claims argue that a neutral policy
disproportionately affects people with a disability.163
Claims for failure to make reasonable accommodation
argue that the correctional facility refused to affirmatively
accommodate an incarcerated person’s disability “where
such accommodation was needed to provide ‘meaningful
access to a public service.’”164 Incarcerated plaintiffs can
show denial because of a disability if the correctional
faciality has a policy against MAT or practices de facto
denial of MAT. If a correctional facility has a blanket policy
against provision of MAT, an incarcerated individual with
OUD can show disparate treatment because those
diagnosed with that specific disability are being denied
medical care. If the facility denies MAT based on a policy
against all controlled substances, the incarcerated
individual with OUD can allege failure to make a
reasonable accommodation because other correctional
facilities are able to safety provide MAT.165 If the facility
has no explicit policy but refuses to administer MAT in
practice, the individual can also claim of failure to make a
reasonable accommodation. Correctional facilities could
justify denial of MAT only if treatment threatened safety
or “fundamentally alter[ed] the nature of services,
See Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 (2d
Cir. 2003) (overturned by statute).
162 Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145–46 (1st Cir.
2014).
163 See Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 (2d
Cir. 2003)
164 Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145–46 (1st Cir.
2014).
165 See National Sheriffs’ Association and National Commission
on Correctional Health Care, Jail-Based Medication-Assisted
Treatment (2018) https://www.sheriffs.org/publications/Jail-BasedMAT-PPG.pdf (detailing best practices for jail-based MAT and
highlighting successful programs in California, Massachusetts,
Kentucky, Washington, and Rhode Island).
161

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program, or activity.”166 However, MAT does not threaten
safety and is easily administered, as the National Sheriffs’
Association and National Commission on Correctional
Health Care have recognized.167
Pesce v. Coppinger is an example of a successful ADA
claim for denial of MAT. In Pesce, a federal district court in
Massachusetts granted injunctive relief because a
correctional facility’s denial of MAT would likely violate
the ADA.168 The Court made two key findings. First, the
Court found that “Medical decisions that rest on
stereotypes about the disabled rather than an
individualized inquiry into the patient’s condition may be
considered discriminatory.”169 Second, the Court
acknowledged that the correctional facility “identified
legitimate, but generalized, safety and security reasons for
prohibiting the use of opioids.”170 But the Court found that
the facility had “not articulated specific security concerns
relevant to Pesce’s proposed methadone intake.”171 This
case shows that a correctional facility must make
individualized medical and security assessments before
denying medically necessary treatment. A blanket policy,
like the one in Massachusetts, was arbitrary or capricious
implying that “it was pretext for some discriminatory
motive or discriminatory on its face.”172
In a similar case, the federal district court of Maine
granted injunctive relief because a correctional facility’s
denial of MAT would likely violate the ADA.173 In Smith v.
Aroostook County, the Court found that “forcing Ms. Smith
28 C.F.R. § 35.130(b)(7).
See National Sheriffs’ Association and National Commission
on Correctional Health Care, Jail-Based Medication-Assisted
Treatment (2018) https://www.sheriffs.org/publications/Jail-BasedMAT-PPG.pdf.
168 See Pesce v. Coppinger, 355 F.Supp.3d 35, 39 (D. Mass. 2018).
169 Id. at 46 (internal citations omitted). The court first noted that
that “disagreement with reasoned medical judgment is not sufficient
to state a disability discrimination claim” (citing Kiman v. N.H. Dep’t
of Corr., 451 F.3d 274, 285 (1st Cir. 2006)).
170 Id.
171 Id. (“For example, Defendants have not explained why they
cannot safely and securely administer prescription methadone in
liquid form to Pesce under the supervision of medical staff, especially
given that this is a common practice in institutions across the United
States and in two facilities in Massachusetts.”).
172 Id. at 47 (internal citations omitted).
173 See Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 149 (D. Me.),
aff’d, 922 F.3d 41 (1st Cir. 2019).
166
167

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to withdraw from her buprenorphine would cause her to
suffer painful physical consequences and would increase
her risk of relapse, overdose, and death.”174 Accordingly,
refusal to allow MAT was both disparate treatment and
denial of a reasonable accommodation in violation of the
ADA.175 The court held that the correctional facility’s “outof-hand, unjustified denial” of Smith’s request to continue
MAT while incarcerated was so unreasonable that it
showed the correctional facility denied Smith’s request
because of her OUD diagnosis.176 The First Circuit
affirmed this ruling, holding that the jail must provide
Smith with her medication while she was incarcerated.177
According to one expert, “courts around the country will
pay attention to this affirmation that denying inmates in
jail medication-assisted treatment for opioid use disorder
violates the ADA – and is illegal.”178
In short, individuals with OUD have a disability,
criminal justice organizations are subject to antidiscrimination laws, and individuals can show that they
would be eligible for adequate medical treatment but for
their stigmatized disability.
III.

The Affirmative Obligation to Provide
Treatment for OUD
a. The Enforceable Right to Treatment

The right to treatment for OUD has an encouraging
trajectory. In the early 2000s, many courts held that forced
withdrawal without medical supervision is deliberate
indifference to a serious medical need, in violation of the

Id. at 154.
Id. at 160–61.
176 Id. at 159–160 (citing Kiman v. N.H. Dep’t of Corr., 451 F.3d
274, 286 (1st Cir. 2006) (finding that a correctional facility’s
withholding of prescribed medications was not “a medical ‘judgment’
subject to differing opinion[, but] an outright denial of medical
services” that could constitute a violation of the ADA).
177 Smith v. Aroostook Cty., 922 F.3d 41, 42 (1st Cir. 2019).
178 Willis R. Arnold, Setting Precedent, A Federal Court Rules Jail
Must Give Inmate Addiction Treatment, NPR (May 4, 2019)
https://www.npr.org/sections/healthshots/2019/05/04/719805278/setting-precedent-a-federal-court-rulesjail-must-give-inmate-addiction-treatmen.
174
175

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Eighth and Fourteen amendments.179 More recently,
courts have noted that “withdrawal protocol is not a
treatment for opioid use disorder” and held that denial of
MAT violates the Eighth Amendment or the ADA.180 In the
future, courts should hold that prisons and jails have an
affirmative obligation to provide MAT to individuals with
OUD.
The cases and claims in Part II show that, at a
minimum, it is unconstitutional to deny access to
prescribed medical treatment. But denial of care is difficult
to prove because it is difficult to get a medical care case
heard on the merits. If a plaintiff with OUD is incarcerated,
then it is nearly impossible for their legal claim to meet the
stringent requirements of the Prison Litigation Reform Act
(PLRA).181 The PLRA was designed to decrease claims by
incarcerated individuals and requires both an exhaustion
of administrative remedies and a showing of physical
injury for an incarcerated plaintiff to recover damages.182
If a plaintiff with OUD is not yet incarcerated, then it is
difficult to meet threshold question of ripeness and the
stringent requirements of a temporary restraining order or
a preliminary injunction.183 Further, claims for denial of
See Monmouth Cnty., 834 F.2d at 347; Quatroy v. Jefferson
Parish Sheriff’s Office, 2009 WL 1380196, at *9 (E.D. La., May 14,
2009)); Foelker v. Outagamie Cnty., 394 F.3d 510, 513 (7th Cir. 2005);
Sylvester v. City of Newark, 120 Fed. Appx. 419, 423 (3d Cir. 2005);
Gonzales v. Cecil Cnty., Md., 221 F. Supp. 2d 611, 616 (D. Md. 2002);
Anderson v. Benton Cnty., 2004 WL 2110690 (D. Or., Sept. 21, 2004);
Quatroy v. Jefferson Parish Sheriff’s Office, 2009 WL 1380196 (E.D.
La., May 14, 2009); Messina v. Mazzeo, 854 F. Supp. 116 (E.D.N.Y.
1994); U.S. ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 574 (3d Cir.
1979) (per curiam). As cited in Legal Action Center, Legality of
Denying Access to Medication Assisted Treatment In the Criminal
Justice System, 17–18 (2011) https://lac.org/wpcontent/uploads/2014/12/MAT_Report_FINAL_12-1-2011.pdf.
180 Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 152 (D. Me.),
aff’d, 922 F.3d 41 (1st Cir. 2019); Pesce v. Coppinger, 355 F.Supp.3d
35, 41 (D. Mass. 2018) (“sudden, involuntary withdrawal of treatment
will cause Pesce ‘severe and needless suffering, jeopardize[s] his longterm recovery and is inconsistent with sound medical practice.’”).
181 See 42 USC § 1997e.
182 Id.
183 See, e.g., Pesce v. Coppinger, 355 F.Supp.3d 35, 43 (D. Mass.
2018) (“A claim is ripe only if the issues raised are fit for judicial
decision at the time the suit is filed and the party bringing suit will
suffer hardship if court consideration is withheld.”) (internal citations
omitted); Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013)
(“In determining whether to grant a preliminary injunction, the
179

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medical care must be brought as violations of
constitutional rights under section 1983, and 1983 claims
have very low success rates.184
Courts should not use procedural hurdles to avoid
ruling on meritorious claims. Humans are suffering and
dying185—if the criminal legal system is to be fair and
respectful of human dignity, then courts should recognize
that adequate medical care is denied any time a person
with OUD is not offered the opportunity to initiate or
continue MAT.
Courts can hold that the right to medical care goes
further than preventing denial of care without changing
constitutional or statutory interpretation. Correctional
facilities have an obligation to offer MAT to all individuals
with OUD within the existing constitutional and statutory
framework. First, people who are incarcerated have a
constitutional right to adequate medical care.186
Incarcerated individuals can have their right violated by
“prison doctors in their response to the prisoner’s needs or
by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the
treatment once prescribed.”187 Second, adequate medical
care includes MAT for individuals who will experience
district court must consider: (i) the movant’s likelihood of success on
the merits of its claims; (ii) whether and to what extent the movant
will suffer irreparable harm if the injunction is withheld; (iii) the
balance of hardships as between the parties; and (iv) the effect, if any,
that an injunction (or the withholding of one) may have on the public
interest.”).
184 See 42 U.S.C. § 1983 (“Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or
Territory, subjects or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in any
action at law, suit in equity, or other proper proceeding for redress.”).
185 See Legal Action Center, Legality of Denying Access to
Medication Assisted Treatment In the Criminal Justice System, 7
(2011) https://lac.org/wpcontent/uploads/2014/12/MAT_Report_FINAL_12-1-2011.pdf. (“The
consequences of this denied access to MAT are that people relapse,
experience the host of negative consequences associated with
addiction including return to criminal activity, and get sick (and
sometimes die) from withdrawal-related complications.”).
186 See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Estelle v.
Gamble, 429 U.S. 97, 104–05 (1976).
187 Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).

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withdrawal.188 Therefore, instead of a mere right to sue
after treatment is denied, courts should recognize that
correctional facilities must offer MAT to individuals with
OUD as part of their affirmative obligation to provide
adequate medical care.
i. Implementing the Right to Treatment
For pretrial detainees, involuntary withdrawal is
punishment before conviction in violation of the due
process clause.189 The affirmative obligation to provide
adequate medical care to pretrial detainees means medical
evaluation for OUD during booking at jail. If the individual
is identified as high risk for OUD or is facing imminent
withdrawal, they should be offered the opportunity to
voluntarily begin MAT. Treatment should be offered
regardless of whether the detainee was engaged in legal or
illicit drug use prior to arrest and incarceration, and
regardless of the crime for which the individual is being
detained.
This protocol is not a novel concept—the Rikers
Island jail, operated by the New York City Department of
Corrections, has offered methadone treatment since
1987.190 The program has served as a model for other jails
across the country.191 Similarly, a settlement in Whatcom
County, Washington requires the county jail to offer MAT
to all individuals with OUD.192 In Whatcom County, MAT
maintenance must be offered to individuals with OUD who
were in treatment prior to incarceration, and MAT
induction must be offered to individuals with OUD
See supra Part II.
See supra Part II b.
190 See Christine Vestal, At Rikers Island, a Legacy of MedicationAssisted Opioid Treatment, PEW, May 23, 2016,
http://pew.org/27ISkFh.
191 Id.
192 See Kortlever et al. v. Whatcom County, Settlement
Agreement, 5–6 (April 29, 2019) https://www.acluwa.org/docs/settlement-agreement-1; Whatcom County Jail to provide
medications necessary to treat opioid addiction in landmark
settlement proposed in civil rights lawsuit, American Civil Liberties
Union (April 30, 2019) https://www.aclu.org/press-releases/whatcomcounty-jail-provide-medications-necessary-treat-opioid-addictionlandmark (“[T]his is the first time that class-action litigation has
resulted in a jail changing its policy to provide MAT to all individuals
with a medical need for it.”).
188
189

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“regardless of whether they were already taking MAT at
their time of entry to the [jail].”193 The settlement includes
a commitment by the jail to help individuals transition to
community care after release, similar to transition
planning for behavior or medical health issues.194
Failure to provide MAT to vulnerable pretrial
detainees is both subjectively punitive in intent and
objectively beyond the legitimate state interests of safety,
security, and efficiency.195 Forced withdrawal is punitive
because it is a grueling physical ordeal196 and exceeds state
penal interests because MAT presents no security
threat.197
For prisoners, failure to treat opioid use disorder is
deliberate indifference to a serious medical need in
violation of the Eighth Amendment.198 The affirmative
obligation to provide adequate medical care to prisoners
includes providing treatment for an ongoing condition.
Prisoners with a history of opioid use should be offered the
opportunity to continue, or voluntarily begin, a MAT
program. Treatment must be offered regardless of whether
the detainee was engaged in legal or illicit drug use prior
to arrest and incarceration.
This protocol for prisoners, like pretrial detainees, is
already being safely implemented. The Rhode Island
Department of Corrections offers MAT in its state prison
facility with remarkable success: 26 people released from
the facility died from an overdose in 2016, before the MAT
program began, and only 9 died from an overdose in the
same period of 2017, after the facility began providing
MAT.199 Similarly, the Vermont Department of Corrections
See Kortlever et al. v. Whatcom County, Settlement
Agreement, 5–6 (April 29, 2019) https://www.acluwa.org/docs/settlement-agreement-1
194 Id.
195 See Bell v. Wolfish, 441 US 520 (1979); Farmer v.
Brennan, 511 U.S. 825.
196 See supra Part I b.
197 See National Sheriffs’ Association and National Commission
on Correctional Health Care, Jail-Based Medication-Assisted
Treatment (2018) https://www.sheriffs.org/publications/Jail-BasedMAT-PPG.pdf.
198 See supra Part II c.
199 See Traci C. Green et al., Postincarceration Fatal Overdoses
After Implementing Medications for Addiction Treatment in a
Statewide Correctional System, 75 JAMA PSYCHIATRY 405–407 (2018);
Erick Trickey, How the Smallest State is Defeating America’s Biggest
193

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provides MAT to nearly a third of prisoners.200 The
treatment continues “for as long as medically necessary.”201
Recently, the Rikers methadone program expanded to
allow individuals to continue MAT post-conviction while
serving sentences upstate at Elmira Correctional Facility,
under the supervision of New York State Department of
Corrections and Community Supervision.202 Additionally,
the Whatcom County settlement, discussed above, requires
the county jail to provide MAT post-conviction.203 Lastly,
the Federal Bureau of Prisons (BOP) has also
acknowledged their obligation to provide MAT.204 Three
times in the last year, the BOP has agreed to go against its
policy of denying MAT to non-pregnant individuals in

Addiction Crisis, POLITICO MAG., Aug. 25, 2018,
https://politi.co/2wbuwha.
200 See 28 V.S.A. § 801b,
https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT176/
ACT176%20As%20Enacted.pdf; Mike Faher, More than 500 Vermont
inmates receiving addiction treatment, VT DIGGER, Jan. 23 2019,
https://vtdigger.org/2019/01/23/500-vermont-inmates-receivingaddiction-treatment/.
201 28 V.S.A. § 801b,
https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT176/
ACT176%20As%20Enacted.pdf. See also Mike Faher, More than 500
Vermont inmates receiving addiction treatment, VT DIGGER, Jan. 23
2019, https://vtdigger.org/2019/01/23/500-vermont-inmates-receivingaddiction-treatment/.
202 See Alison Knopf, Methadone Now Allowed in Upstate NY
Prison, If Inmates Come From Rikers OTP First, ADDICTION
TREATMENT FORUM, Aug. 7, 2019,
https://atforum.com/2019/08/methadone-allowed-upstate-ny-prisoninmates-come-from-rikers-otp-first/.
203 See Kortlever et al. v. Whatcom County, Settlement
Agreement, 5–6 (April 29, 2019) https://www.acluwa.org/docs/settlement-agreement-1.
204 See Dipierro v. Hurwitz, Settlement Agreement, 2 (Mass. June
7, 2019)
https://www.aclum.org/sites/default/files/20190607_dipierro_settleme
nt.pdf; Crews v. Sawyer, Kansas and Missouri ACLU affiliates reach
settlement with Bureau of Prisons; Leavenworth inmate will receive
opioid medication tonight, ACLU OF KANSAS (Kans., Sept. 11, 2019),
https://www.aclukansas.org/en/press-releases/kansas-and-missouriaclu-affiliates-reach-settlement-bureau-prisons-leavenworth; Godsey
v. Sawyer, ACLU-WA lawsuit settled: Federal prison system agrees to
provide medication-assisted treatment for opioid use disorder, ACLU
OF WASHINGTON (Wash., Dec. 11, 2019) https://www.aclu.org/pressreleases/aclu-wa-lawsuit-settled-federal-prison-system-agreesprovide-medication-assisted.

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response to litigation.205 These federal settlements
required provision of MAT to the named plaintiffs; the
necessary next step is for the BOP to offer MAT to all
individuals with OUD entering correctional facilities, not
just those previously in MAT.
Failure to provide MAT to vulnerable prisoners
shows deliberate indifference to a serious medical need.206
Forced withdrawal creates physical symptoms that cannot
be ignored by prison staff.207 Forced withdrawal is also an
unnecessary infliction of pain.208 Further, the recent string
of BOP settlements show that society’s “evolving standards
of decency” view forced withdrawal as cruel and unusual.209
As the stigma of addiction lessons, our compassion for the
afflicted grows.
For all incarcerated individuals, the failure to
provide MAT violates the ADA.210 Categorically denying
MAT is discrimination because of a disability—individuals
with OUD should have access to their medication just as
incarcerated individuals with diabetes are allowed to take
insulin. However, while “drug addiction” is a disability
under the ADA,211 it may be difficult for a plaintiff to
succeed on a claim that they should be provided MAT to
prevent withdrawal from an illicit opioid.212 Discrimination
claims under the ADA will be difficult to win if the
correctional
facility
provides
an
“individualized
assessment” and concludes that MAT is not required; this
is why OUD should be offered to all individuals with OUD
regardless of whether they were previously legally
participating in MAT or using illicit substances.
ii. Arguments Against MAT
See id.
See Estelle v. Gamble, 429 U.S. at 104.
207 See supra Part I b; Farmer v. Brennan, 511 U.S. 825, 837
(1994); Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977); Wellman v.
Faulkner, 715 F.2d 269 (7th Cir. 1983).
208 See Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Todaro v.
Ward, 565 F.2d 48, 52 (2d Cir. 1977); Kosilek v. Spencer, 774 F.3d 63,
85 (1st Cir. 2014).
209 Trop v Dulles, 356 U.S. 86, 100-01 (1958). See also Part II c.
210 See supra part Part II d.
211 28 C.F.R. § 35.108(b)(2).
212 See Jones v. City of Boston, 752 F.3d 38, 58 (1st Cir. 2014)
(holding that “[i]ndividuals who are recovering from an addiction to
drugs may be disabled in the meaning of the ADA” unless they are
“currently using drugs, whether addicted or not.”).
205
206

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Critics argue that correctional facilities should not
provide MAT because of prohibitive cost, perception that
MAT is trading one addiction for another, and fear of
diversion of the drug to inappropriate uses.213 These
concerns are unfounded.
Cost, or “efficient administration of jails and
prisons,” does not obviate the affirmative obligation to
provide adequate medical care. As noted by then-Judge
Blackmun, “[h]umane considerations and constitutional
requirements are not, in this day, to be measured or limited
by dollar considerations.”214 While it is true that a prison
regulation can impinge on constitutional rights if the
regulation is “reasonably related to legitimate penological
interests,”215 lack of funding “cannot justify an
unconstitutional lack of competent medical care or
treatment of inmates.”216 Even if costs are considered, MAT
is inexpensive—correctional facilities can offer MAT for
less than a dollar per day per patient.217 Furthermore,
providing MAT in correctional facilities would reduce costs
by reducing recidivism: “While MAT costs about $4,000 per
person each year, incarceration in United States prisons
has an average annual cost of $22,279.”218
See National Academies of Sciences, Engineering, and
Medicine, Medications for Opioid Use Disorder Save Lives, THE
NATIONAL ACADEMIES PRESS, 1 (2019) https://doi.org/10.17226/25310.
214 Jackson v. Bishop, 404 F. 2d 571, 580 (8th Cir. 1968).
215 See Turner v. Safely, 482 U.S. 78, 89 (1987). To determine
whether a relationship is reasonable, courts should consider several
factors: whether there is valid, rational connection between prison
regulation and a legitimate governmental interest; whether there are
alternative means of exercising rights; whether accommodation of
asserted rights will have significant “ripple effect” on fellow prisoners
or prison staff; and whether there is a ready alternative. Id. at 89-90.
None of these factors are monetary cost.
216 Anderson v. City of Atlanta, 778 F. 2d 678, 688 n. 14 (11th Cir.
1985).
217 See Ruth Potee M.D. Dec., Pesce v. Coppinger, No. 1:18-cv11972-DJC, Dkt. No. 17 (Sept. 9, 2018).
218 Colleen O’Donnell, M.S.W. & Marcia Trick, M.S., Nat’l Ass’n of
State Alcohol and Drug Abuse Directors, Inc., Methadone
Maintenance Treatment and the Criminal Justice System 4 (Apr.
2006) (citing Stephen Magura et al., Buprenorphine and Methadone
Maintenance in Jail and Post-Release: A Randomized Clinical Trial,
99 DRUG AND ALCOHOL DEPENDENCE 1-3 at 222-230 (Jan. 2009)). As
cited in Legal Action Center, Legality of Denying Access to Medication
Assisted Treatment In the Criminal Justice System, 3 (2011)
213

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The perception that MAT is trading one addiction for
another is sentiment based on stigma, not science. For
example, in one case a court observed that “correctional
staff often resist providing MAT because they equate MAT
to giving addicts drugs rather than giving people
treatment.”219 This apathetic attitude towards addiction
led the court the hold that the correctional facility “lacked
a baseline awareness of what opioid use disorder was
despite serving a population that disproportionately dies of
that condition.”220 As previously discussed, addiction is a
disease and MAT is the most effective treatment for opioid
addiction.221
Diversion of medications for alternative uses is not
a barrier to safely implementing a MAT program in
correctional facilities.222 Multiple jails and prisons
implement
MAT safely, including
facilities in
Pennsylvania, Rhode Island, Connecticut, Vermont, and
New York.223 The National Sherriff’s Association has
recognized that there is little risk of diversion of MAT
medications.224 Jails themselves have described a variety
of ways to provide MAT without risk of diversion.225 For
example, the First Circuit noted that a jail’s “own
submissions tout the variety of reasonable alternatives at
their disposal for providing [MAT] . . . in a manner that
alleviates any security concerns.”226 In contrast, studies
have found that MAT makes correctional facilities safer by
reducing in-custody deaths by overdose or suicide.227
https://lac.org/wp-content/uploads/2014/12/MAT_Report_FINAL_12-12011.pdf.
219 Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 160 (D. Me.),
aff'd, 922 F.3d 41 (1st Cir. 2019).
220 Id.
221 See supra part I.
222 See generally, Surgeon General’s Report on Alcohol, Drugs,
and Health (2016), at 4-22 (“Decades of research have shown that the
benefits of MAT greatly outweigh the risks associated with
diversion.”).
223 See Kathy Nickel, Correctional MAT Programs – Facility
Synopsis (on file with author).
224 See National Sheriff’s Association, Jail-Based Medication
Assisted Treatment at 14 (Oct. 2018),
https://www.sheriffs.org/publications/Jail-Based-MAT-PPG.pdf.
225 See Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 159 (D. Me.),
aff'd, 922 F.3d 41 (1st Cir. 2019).
226 Smith v. Aroostook Cty., 922 F.3d 41, 42 (1st Cir. 2019).
227 See Smith v. Aroostook Cty., 376 F. Supp. 3d 146, 150 (D. Me.),
aff’d, 922 F.3d 41 (1st Cir. 2019) (“Participation in MAT during

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b. The Right to Treatment, Revised: Focus Only
on Objective Medical Need
While courts can order correctional facilities to
provide MAT under existing constitutional and statutory
frameworks, they can also create new and more effective
standards. Currently, the right to medical care in prison is
based on Estelle v. Gamble, which requires subjectively
deliberate indifference by prison officials and an objectively
serious medical need.228 Estelle was decided 8-1, with only
Justice Stevens in dissent. Justice Stevens would have
required an incarcerated patient to show only the objective
denial of a serious medical need, because “whether the
constitutional standard has been violated should turn on
the character of the punishment rather than the
motivation of the individual who inflicted it.”229 He wrote:
“If a State elects to impose imprisonment as a
punishment for crime, I believe it has an obligation to
provide the persons in its custody with a health care
system which meets minimal standards of adequacy. As
a part of that basic obligation, the State and its agents
have an affirmative duty to provide reasonable access to
medical care, to provide competent, diligent medical
personnel, and to ensure that prescribed care is in fact
delivered. For denial of medical care is surely not part of
the punishment which civilized nations may impose for
crime.”230

In the future, the Court should adopt Justice Steven’s
simple framework: an incarcerated individual’s right to
medical care is violated if they are not provided with
adequate treatment. Failure to provide adequate medical
care can be proven by an objective showing of a serious
medical need that goes unmet, without any subjective
showing of deliberate indifference.
Courts have the power to intervene and expand the
right to healthcare in prisons and jails. For example, in
incarceration has also been associated with a reduced likelihood of incustody deaths by overdose or suicide and an overall 75 percent
reduction in all-cause in-custody mortality.”).
228 See Estelle v. Gamble, 429 U.S. 97, 104 (1976)
229 Id. at 116. (Justice Stevens, dissenting).
230 Id. at 116 n.13.

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Brown v. Plata the Supreme Court upheld a district court
order that required California to reduce its prison
population to remedy inadequate medical care in violation
of the Eight Amendment.231 The Supreme Court recognized
the importance of correctional healthcare, noting that
“[j]ust as a prisoner may starve if not fed, he or she may
suffer or die if not provided adequate medical care.”232 The
Court went on to hold, “[a] prison that deprives prisoners
of basic sustenance, including adequate medical care, is
incompatible with the concept of human dignity and has no
place
in
civilized
society.”233
This
explicit
acknowledgement of human dignity affirms the role of
MAT in adequate prison healthcare—there is no place for
the preventable suffering of withdrawal. Courts who resist
their obligation to protect individual rights simply because
those rights belong to an incarcerated individual are failing
in their role as judicial bodies. Constitutional violations are
not permissible simply because they occur in prison.234
While awaiting federal court action, state courts
should interpret their own state constitutional protections
to mandate MAT in correctional healthcare. Constitutional
law may be most protective of individual rights when states
engage in their own interpretation of constitutional
provisions, rather than acting in lockstep with their federal
counterparts.235 If state courts acknowledge that MAT is
essential to adequate healthcare in jails and prisons, they
will be leaders in the protection of individual rights and
guardians of human dignity.
The state has a duty to provide care to those whose
liberty it restricts through incarceration, and courts have
acknowledged this duty in unequivocal terms.236 In the
words of Justice Souter, “having stripped [prisoners] of
virtually every means of self-protection and foreclosed
See Brown v. Plata, 563 U.S. 493, 511 (2011).
Id.
233 Id.
234 Id. (“Courts may not allow constitutional violations to continue
simply because a remedy would involve intrusion into the realm of
prison administration.”)
235 See JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND
THE MAKING OF AMERICAN CONSTITUTIONAL LAW, 16-20 (2018).
236 See Battle v. Anderson, 376 F.Supp. 402, 424 (E.D. Oklahoma,
1974) (holding that “Inmates have a basic right to receive needed
medical care while they are confined in prison,” and citing cases from
the Fourth, Tenth, Fifth, Second, and Eighth Circuits).
231
232

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their access to outside aid, the government and its officials
are not free to let the state of nature take its course.”237
Similarly, as phrased by one court in 1974, “prison officials
have an affirmative duty to make available to inmates a
level of medical care which is reasonably designed to meet
the routine and emergency health care needs of
inmates.”238 This language clearly requires meeting
objective medical needs and does not suggest a loophole of
subjective intent.
A prisoner or pretrial detainee does not lose their
constitutional rights when they are incarcerated.239 People
who are incarcerated are people, still deserving of their
human dignity despite incarceration. When the state
restricts an individual’s liberty, it takes on an obligation to
care for basic wellbeing. This is true regardless of the crime
committed; denial of healthcare should not be part of our
punishment apparatus.
IV.

Coda: Solutions Without Suing

The best solutions to this crisis are cooperative, not
antagonistic. Parts II and III discuss litigation, but the
right to MAT while incarcerated is properly an issue for the
legislative branch. Police departments and correctional
facilities are on the front line of this epidemic and a
meaningful solution requires collaboration. Legislative
changes can fulfill the government’s obligation to provide
MAT in correctional facilities without the need for
adversarial litigation.240
237
238

1974).

Farmer v. Brennan, 511 U.S. 825, 833 (1994).
Battle v. Anderson, 376 F.Supp. 402, 424 (E.D. Oklahoma,

See Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974) (holding
that prisoners are not wholly stripped of constitutional protections
and that they entitled to certain minimal due process requirements
consistent with the institutional environment); Procunier v. Martinez,
416 U.S. 396, 422–23 (1974) (“A prisoner does not shed such basic
First Amendment rights at the prison gate. Rather, he retains all the
rights of an ordinary citizen except those expressly, or by necessary
implication, taken from him by law.”) (Justice Marshall, concurring)
(internal citation omitted). But see Bell v. Wolfish, 441 U.S. 520, 545
(1979) (“Simply because prison inmates retain certain constitutional
rights does not mean that these rights are not subject to restrictions
and limitations.”).
240 Americans across the political spectrum desire government aid
to combat the opioid crisis. For example, one poll found that “among
239

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Some lawmakers are thankfully taking action to
provide MAT to individuals with OUD; however, legislative
action has infrequently included prisons and jails. Actions
that designate funding for MAT in correctional facilities
would help fulfill the state’s obligation to provide medical
care to the incarcerated.
a. Federal Solutions
Only one existing federal program directly provides
substance abuse treatment to the incarcerated. The
Residential Substance Abuse Treatment Program (RSAT)
from the U.S. Department of Justice Bureau of Justice
Assistance provides funds to assist governments in “the
development and implementation of substance abuse
treatment programs in state, local, and tribal correctional
and detention facilities,” and in community reintegration
services after release.241 Treatment must be evidencebased but the program does not specifically require MAT
and requires participants to be housed in a separate
facility.242
Congress must go further than existing legislation
in order to satisfy the constitutional right to medical
treatment while incarcerated. Because incarcerated
individuals have a right to medical care and addiction is a
disease, the government must provide MAT to prevent the
debilitating symptoms of involuntary withdrawal while
rural Americans who say their community will need outside help to
solve its major problems, similar proportions of Trump voters (about
6 in 10) and Clinton voters (7 in 10) believe that federal, state or local
government will ‘play the greatest role.’” Danielle Kurtzlben, Poll:
Rural Americans Rattled By Opioid Epidemic; Many Want
Government Help, NPR, Oct. 17, 2018, 5:01 AM,
https://www.npr.org/2018/10/17/656515170/poll-rural-americansrattled-by-opioid-epidemic-many-want-government-help (“[T]he fact
that the opioid drug abuse epidemic literally is either the same or
even, for many people, more serious than economic issues is an
extraordinary finding.”)
241 Bureau of Justice Assistance, Residential Substance Abuse
Treatment for State Prisoners (RSAT) Program,
https://www.bja.gov/ProgramDetails.aspx?Program_ID=79.
242 See id. The 12-steps model, for example, is considered
evidence-based. Many individuals have had success using the 12-step
model, but the statics for those who successfully stopped opioid use
after attempting the 12-step approach are discouragingly low. The
success rate for treatment using MAT is much higher. See Part I,
supra.

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incarcerated. Two recently proposed bills would create
funding to provide this constitutionally mandated care.
First, the Community Re-Entry through Addiction
Treatment to Enhance (CREATE) Opportunities Act would
establish a grant program to be administered by the
Department of Justice to create or expand MAT programs
in jails and prisons.243 The goals of the MAT programs are
to reduce overdose upon release from jails or prisons and to
prevent recidivism.244 Grants, however, are not selfsustaining, and it is unreasonable to expect towns and
counties to continue funding MAT programs in jails and
prisons after the initial federal funding; hence, the next
piece of proposed legislation.
Second, the Humane Correctional Healthcare Act
(HCHA) would create a sustained funding source for MAT
in the criminal legal system.245 The HCHA would repeal
the so-called Medicaid inmate exclusion, which strips
health coverage from Medicaid enrollees who are involved
in the criminal legal system. Eliminating Medicaid during
incarceration increases healthcare costs for states and
counties because care must be provided by the detention
facility without federal aid from Medicaid expansion
programs.246 The Medicaid inmate exclusion was part of
the original 1965 Medicaid Act.247 In support of the HCHA,
the bill says, “[w]ith a repeal of the Medicaid inmate
See Ann M. Kuster, H.R.3496 - Community Re-Entry through
Addiction Treatment to Enhance Opportunities Act of 2019, 116th
Congress (2019-2020), Jun. 26, 2016,
https://www.congress.gov/bill/116th-congress/house-bill/3496/text.
244 See id.
245 See Ann M. Kuster, H.R.4141 - Humane Correctional Health
Care Act, 116th Congress, Aug. 2, 2019,
https://www.congress.gov/bill/116th-congress/house-bill/4141.
246 See Ann M. Kuster, H.R.4141 - Humane Correctional Health
Care Act, 116th Congress, Aug. 2, 2019,
https://www.congress.gov/bill/116th-congress/house-bill/4141; Ann
McLane Kuster, Congresswoman Kuster, Senator Booker Introduce
Legislation to End Outdated Policy that Prevents Incarcerated
Individuals from Accessing Medicaid, (2019),
https://kuster.house.gov/media-center/press-releases/congresswomankuster-senator-booker-introduce-legislation-to-end.
247 See Ann M. Kuster, H.R.4141 - Humane Correctional Health
Care Act, 116th Congress, Aug. 2, 2019,
https://www.congress.gov/bill/116th-congress/house-bill/4141; Social
Security Amendments of 1965, Pub. L. 89-67,
https://www.govinfo.gov/content/pkg/STATUTE-79/pdf/STATUTE-79Pg286.pdf.
243

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exclusion, nearly all inmates would be eligible for the
Medicaid program in States that expanded Medicaid
through the Patient Protection and Affordable Care Act.”248
This proposed solution provides a sustained funding
solution, and has hope to pass because President Trump
has endorsed the goal of making addiction treatment
available to the incarcerated.249 In addition to supporting
MAT, repealing the Medicaid Inmate Exclusion would
provide a sustained mechanism to pay for mental health
treatment and general health care for a large portion of the
incarcerated population. Returning folks to the
communities after treatment for complex illnesses such as
OUD, mental illness, and communicable diseases, is a good
public health policy because treatment leads to healthier
communities and lower rates of recidivism.250
Despite this potential federal legislation, Congress
is gridlocked and the federal effort to combat the opioid
crisis is floundering.251 Instead, state and local
governments are leading the way on treatment for OUD.252
b. State and Local Solutions
Overall, governments should invest in communitybased treatment and remove individuals with substance
use disorder from the criminal legal system entirely;253
however, until then, correctional facilities are a promising
opportunity to initiate treatment.254 If incarcerated
Id.
See id.
250 See Sam Quinones, Addicts Need Help. Jails Could Have the
Answer, N.Y. TIMES, Jan. 20, 2018,
https://www.nytimes.com/2017/06/16/opinion/sunday/opioid-epidemickentucky-jails.html.
251 See Sheryl Gay Stolberg & Nicholas Fandos, As Gridlock
Deepens in Congress, Only Gloom Is Bipartisan, N.Y. TIMES, January
27, 2018, https://www.nytimes.com/2018/01/27/us/politics/congressdysfunction-conspiracies-trump.html.
252 The Editorial Board, States Show the Way on the Opioid
Epidemic, N.Y. TIMES, Aug. 25, 2018,
https://www.nytimes.com/2018/08/24/opinion/opioid-epidemicstates.html.
253 Letters, We Can’t Incarcerate Our Way to Recovery, BOSTON
GLOBE, Oct. 18, 2019,
https://www.bostonglobe.com/opinion/letters/2019/10/18/canincarcerate-our-way-recovery/8efuZKf4vMBdzTILy7UtpK/story.html.
254 See Sam Quinones, Addicts Need Help. Jails Could Have the
Answer, N.Y. TIMES, Jan. 20, 2018,
248
249

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individuals are willing participants, treatment in jails
could take a huge bite out of recidivism and return
healthier folks to their community.255 No one should be
jailed to receive treatment, but state and local correctional
facilities are at the center of the opioid epidemic and could
be a nexus to get patients the medication they need.256 To
that end, state and local governments are creating
successful treatment models in prisons and jails.
Kentucky provides a promising example of jail-based
MAT. Their substance-abuse treatment program can boast
that 12 months after release 70 percent of former-residents
were not incarcerated, 68 percent were employed at least
part-time, 86 percent were housed, 76 percent said they
spent most of their time with family, and half reported a
significant decrease in illicit drug use.257 Vermont is
another auspicious example of providing MAT in county
jails. The state legislature mandated provision of MAT in
2018, and in less than a year almost a third of the state’s
incarcerated population was in treatment.258 Similarly, the
Rhode Island legislature is a leader in treatment while
incarcerated. Legislators approved $2 million to provide
MAT in the state prison, which has led to a drastic decrease
in deaths after release.259 Part of Rhode Island’s success is
https://www.nytimes.com/2017/06/16/opinion/sunday/opioid-epidemickentucky-jails.html.
255 See David Lebowitz, Proper Subjects for Medical Treatment?,
14 DEPAUL J. HEALTH CARE L. 271 (2012).
256 Eric Westervelt, County Jails Struggle With A New Role As
America’s Prime Centers For Opioid Detox, NPR, April 24, 2019,
https://www.npr.org/2019/04/24/716398909/county-jails-struggle-witha-new-role-as-americas-prime-centers-for-opioid-detox; The Editorial
Board, Want to Reduce Opioid Deaths? Get People the Medications
They Need, N.Y. TIMES, March 26, 2019,
https://www.nytimes.com/2019/03/26/opinion/opioid-crisis-sacklerspurdue.html.
257 See Sam Quinones, Addicts Need Help. Jails Could Have the
Answer, N.Y. TIMES, Jan. 20, 2018,
https://www.nytimes.com/2017/06/16/opinion/sunday/opioid-epidemickentucky-jails.html.
258 See 28 V.S.A. § 801b,
https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT176/
ACT176%20As%20Enacted.pdf; Mike Faher, More than 500 Vermont
inmates receiving addiction treatment, VT Digger, Jan. 23 2019,
https://vtdigger.org/2019/01/23/500-vermont-inmates-receivingaddiction-treatment/.
259 See Traci C. Green et al., Postincarceration Fatal Overdoses
After Implementing Medications for Addiction Treatment in a
Statewide Correctional System, 75 JAMA PSYCHIATRY 405–407 (2018);

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that the program lets incarcerated individuals and their
doctor choose which medication they will go on—60 percent
choose methadone and 39 percent choose Suboxone, while
only 1 percent choose Vivitrol (a drug that blocks an opioid
high but does not help with withdrawal symptoms or
cravings).260
More states can adopt similar MAT systems. For
example, a bill is pending in New York state to establish a
MAT program in state and county correctional facilities.261
The program would offer intake treatment, provide MAT
in correctional facilities for the duration of incarceration,
and help individuals transition to community care upon
release.262 Similarly, New Hampshire will mandate the
provision of MAT in jails beginning in July, 2021.263
State and local efforts to provide MAT in jails and
prisons are succeeding at saving lives, reducing suffering,
transitioning to community care, and meeting the
constitutional obligation to provide medical care to the
incarcerated. These efforts should be broadly replicated.
Conclusion
Failure to provide MAT in correctional facilities
causes involuntary withdrawal without adequate medical
care. This lack of treatment violates the due process clause,
the Eight Amendment, and the Americans with
Disabilities Act. Incarcerated individuals who are denied
access to MAT are being deprived of their constitutional
right to adequate medical care. To meet that right, and to
stave off potential lawsuits, governments at the national,
state, and local level should provide access to, and funding
Erick Trickey, How the Smallest State is Defeating America’s Biggest
Addiction Crisis, POLITICO MAG., Aug. 25, 2018,
https://politi.co/2wbuwha.
260 See Erick Trickey, How the Smallest State is Defeating
America’s Biggest Addiction Crisis, POLITICO MAG., Aug. 25, 2018,
https://politi.co/2wbuwha.
261 See Jamaal T. Bailey, NY State Senate Bill S2161B, Jan. 23,
2019 (2019-2020),
https://www.nysenate.gov/legislation/bills/2019/s2161/amendment/b.
262 See id.
263 Staff Report, New Law Mandates Medication Assisted
Treatment in Jails, UNION LEADER, Aug. 5, 2020,
https://www.unionleader.com/news/health/new-law-mandatesmedication-assisted-treatment-in-jails/article_bbb2728a-9a25-530ebdf7-306de5f5b9b1.html.

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for, medication-assisted treatment for opioid withdrawal.
In general, the state should stop criminalizing addiction;
however, until then, people with opioid use disorder who
are incarcerated must be provided MAT. Further, the
Supreme Court should modify the legal standard for
adequate medical care in correctional facilities so that
courts need only consider the objective medical need of
incarcerated individuals.
This article began by noting that the opioid epidemic
is a crisis of pain and mortality. But it is also a moment of
resiliency and hope. Because of MAT, many people with
OUD are living more meaningful, more fulfilling lives—the
nation should give that opportunity for hope to
incarcerated individuals.

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