By Joseph Longley, ACLU Equal Justice Works fellow

As the Coronavirus pandemic continues to sweep through the country, especially in prisons and jails, the opioid epidemic has also seen a resurgence. The Washington Post reported that suspected overdoses jumped nationally by 18 percent in March, 29 percent in April, and 42 percent in May. This fits a nationwide pattern of excess deaths — deaths above the typical number anticipated by the CDC — unrelated to Coronavirus, such as the increased toll from heart attacks, strokes, and cancer, all as our medical infrastructure is pushed to its limits.

There has never been a more critical time to provide medication for addiction treatment

(MAT) for people with opioid use disorder (OUD). MAT consists of three FDA approved medications — methadone, buprenorphine, and naltrexone — that treat OUD, the disease at the root of opioid addiction. MAT is basic healthcare and a cornerstone of care for tens of thousands of people in our communities who have OUD.

The need for MAT is particularly strong in jails and prisons: Without access to their medication, recently incarcerated people are left with few tools to battle their addiction. If provided with MAT, they are 74 percent less likely than people who are deprived of MAT to die of any cause while they are still incarcerated, and 85 percent less likely than people who are deprived of MAT to die of an overdose in the weeks after their release. Yet in the face of these stark numbers, 98 percent of jails and prisons still deny this lifesaving treatment to incarcerated people.

The small but growing number of prisons and jails that have implemented programs to provide MAT to incarcerated people with OUD have seen success. One study of the Rhode Island prison system, which was among the first to implement a robust MAT program, found that providing MAT reduced post-release deaths by 60 percent, and all opioid related deaths in the entire state by 12 percent. Sheriff Chris Donelan in Franklin County, MA reported a reduction in recidivism, overdose deaths, disciplinary concerns, and contraband after providing access to MAT.

In addition to saving lives, courts have found that providing MAT is a constitutional and civil right for incarcerated people. The Eighth Amendment to the U.S. Constitution bans “cruel and unusual punishment,” which the Supreme Court has interpreted as prohibiting “deliberate indifference to serious medical needs.” Further, the Americans with Disabilities Act (ADA) prohibits discrimination in public services, such as health care in jails, based upon a recognized disability, like OUD.

Last year, the First Circuit affirmed a ruling in the District of Maine under the ADA that a jail could not deny a woman serving a 40-day sentence access to the MAT prescribed to her by a doctor. This followed a decision by the District of Massachusetts that required a jail to provide an incarcerated individual with his prescribed MAT dose throughout his time in custody, holding that the denial of his medically necessary MAT was likely cruel and unusual punishment in violation of the Eighth Amendment as well as unlawful disability discrimination under the ADA.

As of July 22, more than 100,000 incarcerated people have been infected with COVID-19 and more than 760 have died. Even in the best of times, incarcerated people often receive substandard medical care, or no care at all. As COVID-19 cases make a resurgence in parts of the U.S. and continue to dramatically spike in jails, prisons, and detention facilities across the country, it has never been more important to provide evidence-based care for people with opioid use disorder in order to conserve hospital resources and save lives.

Our prisons and jails aren’t designed to be drug rehab centers, and we must stop using them as such. Keeping people out of jail in the first place by making sure that they have reliable access to MAT both inside jails and prisons, and when they are out in the community, will help stop the rampant spread of COVID-19 and reduce the burden on our medical system.

Further, as researchers have pointed out, the symptoms of opioid withdrawal and COVID-19 can overlap. Without access to MAT for OUD, there is an increased danger that prison officials will miss suspected cases of COVID-19, assuming that the symptoms exhibited are a result of opioid withdrawal, when in fact they are symptoms of COVID-19. This creates a danger that a positive COVID-19 case could be missed by a correctional facility, allowing a positive individual to spread the disease to others with whom they share close quarters. The answer to this problem should never be solitary confinement.

Denying incarcerated people access to MAT adds a strain on the American health care system, even in the best of times. Nearly one quarter of America’s prison and jail population of 2.2 million have OUD. During this crisis, it is even more imperative that people with OUD get access to the MAT they need. Instead of letting unlawful and scientifically unsound jail policies fill our hospital beds with people experiencing post-release overdoses, let’s provide MAT to incarcerated people and use our hospitals to fight the COVID-19 crisis at hand.

We’ve already seen the federal government take some positive steps once thought impossible. This includes letting MAT patients take home their buprenorphine for twenty-eight days in order to limit social contact while maintaining MAT treatment. While the federal Bureau of Prisons (BOP) has taken steps to expand access to MAT, the Department of Justice has supported recommendations from the Government Accountability Office aimed at making BOP improve the implementation of its MAT program so that it can serve everyone in need. It is time for Congress and state legislatures around the country to follow the lead of states like Rhode Island, and require MAT in all jails and prisons for everyone it is clinically appropriate for.

By Steven R. Shapiro, Former ACLU Legal Director & Sam Shapiro, Partner, Emery Celli Brinckerhoff & Abady LLP

Donald Trump, who often behaves as though he has never read the Constitution, received an important civics lesson from the Supreme Court yesterday when it ruled in two cases involving his personal financial records, including tax returns that he has long sought to conceal, that there is an important difference between being president and king. As the Supreme Court emphatically – and on this point, unanimously – reminded us all, the president may occupy the highest office in the land, but he is not above the law.
 
Chief Justice Roberts wrote the Court’s opinion in both cases. The first case, Trump v. Vance, arose when a New York State grand jury investigating possible financial crimes issued a subpoena to the President’s long-time accountants, requiring production of the President’s own tax returns as well as tax returns filed on behalf of various of his business entities. Grand jury proceedings are secret, and the Manhattan District Attorney has refused to say whether the President himself is a target of the investigation. He has said, however, that the grand jury is looking into the conduct of “multiple individuals.”
 
The second case, Trump v. Mazars, began when three congressional committees issued subpoenas seeking tax and other financial records from two banks with which Trump has done business in addition to his accounting firm. The congressional subpoenas were issued as part of ongoing inquiries into foreign interference with the 2016 presidential election and the possible need to strengthen federal laws addressing money laundering, terrorism, and conflicts of interest.
 
Donald Trump’s response was to file federal lawsuits in both New York and D.C. insisting that each of the subpoenas was invalid and therefore none of them could be enforced. He lost that argument in the lower courts and he has now lost it in the Supreme Court. The two cases nonetheless presented different claims and the Supreme Court approached them differently. The ACLU filed amicus briefs in both cases.
 
Trump’s position in the grand jury case was that he is absolutely immune from state judicial process (meaning a subpoena) while in office even if, as here, the subpoena solely concerns his conduct as a private individual unrelated to the performance of any presidential duties and even if, as here, the subpoenaed documents are relevant to the grand jury’s investigation of other individuals and organizations.
 
No one on the Supreme Court accepted that position, and with good reason. Since the early days of the Republic, as Chief Justice Roberts put it, presidents have been required to produce evidence in federal criminal proceedings. It was true for Thomas Jefferson when Aaron Burr was on trial for treason. It was true for Richard Nixon when a grand jury sought the Watergate tapes. And it was true for Bill Clinton during the Whitewater investigation. Donald Trump’s tweeted complaint following the Supreme Court’s decisions that other presidents in similar situations have received judicial deference, “BUT NOT ME,” is not only self-pitying, but wrong.
 
Indeed, as the Supreme Court recognized, Trump’s claim to absolute immunity was considerably weaker than in the Watergate case, where President Nixon had claimed executive privilege over conversations that took place in the Oval Office. Trump did not and could not claim executive privilege over his private business affairs. For that reason, the Supreme Court also rejected Trump’s plea to apply the same heightened standard of need that it had applied to the Watergate subpoena. But, like every other recipient of a grand jury subpoena, Trump remains free to argue that the subpoena is unduly burdensome or was issued in bad faith.
 
The congressional subpoena case involved a different set of concerns and a different balancing of interests by the Supreme Court. In contrast to a 200-year history of presidential compliance with criminal subpoenas, Chief Justice Roberts began his opinion in Mazars by pointing out that the Court had never previously addressed a congressional subpoena for information concerning the president. Rather, he noted, such disputes have historically been resolved by negotiation between the political branches.
 
Writing on a clean slate, the Chief Justice articulated two important principles at the outset. First, Congress’s power to obtain information through subpoena is a necessary and important adjunct to its power to legislate and conduct oversight of the executive branch. Second, the power to investigate is subject to limits to prevent a recurrence of the abuses that occurred most notably during the McCarthy era. The most important of those limits is the requirement that a congressional subpoena be pertinent to a valid legislative purpose.
 
Citing Watergate again, Trump argued that something more should be required when the president is involved. Again, the Court disagreed, reiterating the distinction between an inquiry into the president’s conduct in office and his conduct as a private citizen. The standard proposed by the President, the Court noted, “would risk seriously impeding Congress in carrying out its responsibilities.”
 
The ACLU accordingly argued in its amicus brief that the congressional subpoenas were proper and should be upheld. The Supreme Court took a different course, sending the case back to the lower courts for a closer look at whether the information Congress was seeking could be obtained elsewhere and whether the subpoenas could be narrowed.
 
As a practical matter, that means that Congress is unlikely to obtain any documents before the upcoming election unless the parties can settle the dispute, which would undoubtedly be the Court’s preferred resolution but seems even less likely given the current toxic political environment.
 
That outcome has led some to describe the congressional case as a political victory for Trump, even if his legal position did not prevail. But it would be a mistake to underestimate the significance of the fundamental principle that underlies both of yesterday’s decisions, or the fact that a Court that is so frequently fractured was unified in recognizing that Trump’s broad claim to presidential immunity is incompatible with our constitutional democracy and the system of checks and balances that was designed to preserve it.