September 25, 2018
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What an investigation of addicted prisoners in Mass. could mean for Maine

Photo courtesy Frontline | BDN
Photo courtesy Frontline | BDN
A still from "The Last Days of Solitary," a documentary filmed between 2014 and 2017 in the Maine State Prison in Warren.
By Erin Rhoda, BDN Staff
Updated:

A U.S. Department of Justice investigation into whether prison officials in Massachusetts are violating federal law by denying prisoners their addiction treatment medication could have consequences for all of Maine’s prisons and jails.

Andrew Lelling, the U.S. attorney for the District of Massachusetts, announced the investigation into whether the Massachusetts Department of Corrections is violating the Americans with Disabilities Act in a letter received by that state’s health and public safety officials on March 27, according to The Boston Globe.

The letter asserts that people with an addiction to opioids, who receive medication-assisted treatment outside of prison, are denied that treatment in Massachusetts prisons, in violation of the federal law that protects people with disabilities from discrimination. People who are in recovery from drug addiction are considered to have a disability under that law.

“It would set a very strong precedent if the Justice Department encourages prisons and jails in Massachusetts to provide opioid replacement therapy in a correctional setting. I think that would have ramifications for the entire country,” said Zachary Heiden, legal director for the American Civil Liberties Union of Maine.

A decision in Massachusetts wouldn’t necessarily be legally binding in Maine unless it reached a higher appeals court, but it could precipitate a similar investigation here or prompt action by corrections officials or lawmakers.

An estimated 70 percent of all inmates in local jails nationwide have committed a drug offense or used drugs regularly, and an estimated 35 percent were under the influence at the time of their offense, according to the Bureau of Justice Statistics.

When other states have continued or started people on addiction medication in jail and helped them continue treatment after their release, they have increased the chance people will stay in treatment, and witnessed reduced drug use and drug-related criminal behavior.

As in Massachusetts, prisons and jails in Maine have largely prevented inmates from continuing to take physician-prescribed addiction medication such as methadone, buprenorphine or naltrexone, though they are considered the medical standard of care.

Just one jail in Maine, Knox County Jail, allows certain inmates to take buprenorphine, commonly known by its brand name Suboxone, while another jail, Penobscot County Jail, started offering naltrexone, known as Vivitrol, on a limited basis last year, according to a BDN review of all jail facilities last July.

That review also found Maine’s state-funded prisons do not offer medication-assisted treatment. The Maine Department of Corrections did not reply to a request for comment Thursday.

“I’ve had many patients arrested on false warrants, kept over the weekend in jail awaiting a court hearing on Monday, having had to endure withdrawal. How would this be different from withholding anticonvulsants, insulin or psychiatric medications?” said Mark Publicker, a leading addiction specialist in Maine.

Publicker said corrections officials in Maine shouldn’t wait for federal intervention, however, to allow inmates to continue their treatment.

Sheriffs, meanwhile, have expressed concern about allowing methadone and Suboxone into their facilities because they are narcotics in their own right, though they don’t produce a high when taken as prescribed. They’ve also raised the issue of the cost of providing the medication. Doing so would likely require adding medical or counseling staff, said Cumberland County Sheriff Kevin Joyce, whose jail has about four mental health counselors for about 400 inmates.

“We do not do medically assisted [treatment] because, No. 1, the cost. No. 2, the average stay for us is about 27 days,” Joyce said. “We don’t even do drug rehabilitation. At one point we did, but we didn’t have people long enough. You’d just start making progress, and they’d be released and go back to their habits. It was really throwing money away.”

Heiden said a lack of funding is not a good enough reason to stop someone’s medication-assisted treatment when they enter a jail or prison.

“Every study shows that drug addiction treatment is much cheaper than drug addiction,” he said.

There hasn’t been a lawsuit yet in Maine to potentially compel jail and prison officials to provide the treatment because the right plaintiff hasn’t come along, Heiden said.

“From a constitutional standpoint it’s been recognized for quite some time that jails and prisons cannot be deliberately indifferent to a serious medical need. Opioid addiction is unquestionably a serious medical need,” he said. “The hard part is finding the right plaintiff who has a claim. Our courts are not equipped to answer general policy questions. They settle disputes between real parties.”

But if the Justice Department finds Massachusetts is violating the law, it would have, “what we call in the legal world, persuasive authority,” Heiden said, meaning a precedent other courts may follow. If the case makes its way to the U.S. Court of Appeals for the First Circuit, which covers Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico, a decision there would be legally binding on Maine.

There is no indication that an investigation similar to the one in Massachusetts is taking place or will happen here.

“I cannot comment on whether an investigation is being, or will be, conducted in Maine,” said Donald Clark, public information officer for the U.S. Attorney’s Office for the District of Maine.

Maine Focus is a journalism and community engagement initiative at the Bangor Daily News.

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