INTRODUCTION

I’m going to give you a piece of advice when you come back here for sentencing. You’re not going to be on methadone. That’s a forbidden drug in this Court. So you better do everything you’ve got to do to get off it. When you come back here for sentencing, if you test positive for it, you’re going to be going to prison, is that clear?

“You are not allowed to do Suboxone and be on my supervision."

America is experiencing an unprecedented drug overdose crisis. Instead of mitigating the crisis, America’s criminal justice system is exacerbating it by routinely denying access to basic, lifesaving healthcare: medications for opioid use disorder (MOUD). Several courts, in granting injunctions, have found that incarcerated people have a right to MOUD in jails and prisons under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (ADA). The logic of these cases extends beyond just jails and prisons. Under the ADA, the criminal justice system is prohibited from blocking access to this life-saving healthcare from arrest through the end of supervision, including probation, parole, and drug courts. It is crucial that public defenders, the private defense bar, and civil rights litigators come together to advocate for access to this life-saving care. It is also incumbent upon judges, prosecutors, state legislatures, local elected officials, and law enforcement to recognize the medical necessity of this healthcare.

This Article explores how the criminal justice system’s failure to treat substance use disorder as a disease that requires medical treatment has resulted in untold and wholly unnecessary death and misery. By explicitly banning necessary life-saving medications, the criminal justice system sets up individuals with substance use disorder for failure. Allowing unfettered access to evidence-based medical care— where decisions are based on medical necessity, not stigma-based punishment—is an opportunity for the criminal justice system to allow rehabilitation to take root.

First, I will discuss the current state of the overdose crisis and the crucial role that MOUD plays in saving and improving the lives of people with opioid use disorder. The Article then explores how, despite the overwhelming evidence, MOUD is often limited or outright banned in criminal justice settings, but that this is starting to change, thanks in part to coordinated litigation and legislative advocacy. Part II of this Article discusses the various litigation tools that may expand access to MOUD throughout the criminal legal system.

I. THE CURRENT STATE OF THE OVERDOSE CRISIS

A. The Heavy Toll of Fatal Overdoses

America is in an overdose crisis. Between November 2023 and November 2024, over 80,000 Americans died of an overdose.

This annual toll is both stunning and unacceptable. It is a relatively recent phenomenon that the number of overdose deaths is so high. The rate of drug overdoses has nearly quadrupled since 2002, spiking from 8.2 deaths per 100,000 people to 32.6 deaths per 100,000 people in 2022. This spike is largely attributable to the rise of synthetic opiates like fentanyl in an increasingly unstable and unpredictable drug supply. Drug overdoses in America kill more people than car accidents and gun violence combined. These deaths disproportionately impact Native and Indigenous people and Black people, who die of overdose at a rate of 65.2 and 47.5 per 100,000, respectively, compared to 32.6 per 100,000 for the general population. Many lives depend on implementing evidence-based policies that will reduce these unnecessary deaths.

B. MOUD is the Standard of Care for Opioid Use Disorder, Saves Lives, and is Underutilized

Medications for opioid use disorder (MOUD), in combination with clinically appropriate psychosocial services, is the standard of care for opioid use disorder (OUD). In other words, MOUD is basic healthcare. MOUD currently consists of three FDA-approved medications: methadone, buprenorphine, and naltrexone.10 The three medications are not interchangeable. Methadone is a full agonist medication, meaning that it stimulates the opioid receptors in the brain. Buprenorphine is a partial agonist, partially stimulating the opioid receptor, while also acting as an antagonist that blocks the stimulation of another receptor in the brain. Naltrexone is an antagonist, which does not stimulate the opioid receptors, but blocks the receptors in the brain from being stimulated.

The data shows that agonist MOUD saves lives. Of the three FDA-approved medications, there is much more evidence supporting the effectiveness of the agonist medications methadone and buprenorphine, compared to naltrexone.14 Treatment with agonist MOUD is associated with a 50% decrease in mortality among people with opioid use disorder.15 For people recently released from jails and prisons, providing MOUD was associated with a 75% decrease in allcause mortality and an 85% decrease in overdose deaths in the first month after release.16 In addition to saving lives, a review of the scientific literature found that agonist MOUD had the following benefits: “lower rates of other opioid use, improved social functioning, decreased injection drug use, reduced HIV transmission risk behaviors, reduced risk of HIV diagnosis, reduced risk of hepatitis C virus (HCV) infection, better quality of life compared to individuals with OUD not in treatment,” and reduced rates of crime.17 Behavioral interventions such as contingency management (which rewards adherence with a treatment plan), cognitive behavioral therapy, and structured family therapy have been shown to help support medication-based treatment for OUD.

For too many people, MOUD are out of reach due to factors ranging from stigma, low insurance reimbursement, and cumbersome regulations. Rates of treatment for substance use disorder are inadequate. In 2022, only 25% of people with opioid use disorder received MOUD, and only 55% of people with OUD received any treatment at all for their disorder. MOUD is basic healthcare for people with OUD, and needs to be more widely available.

C. The Lethal Results of Denying Care to People with OUD in the Criminal Justice System

The criminal legal system has a disproportionately high concentration of people with opioid use disorder compared to the general public. Roughly fifteen percent of incarcerated people have OUD, and approximately seventeen percent of people on probation and parole reported “opioid misuse” in the past year, which is about four times higher than the general population. People who take MOUD under supervision are routinely denied access to their medications by criminal justice entities such as jails and prisons, supervision authorities like probation and parole and drug courts. hese institutions frequently enact policies and practices that amount to bans on MOUD for people in their custody.27 In jails and prisons, incarcerated people are at the mercy of the carceral healthcare system to receive these medications.28 If a prison or jail does not allow access to MOUD, that is generally the end of the story. This forces those previously treated with medication to endure painful withdrawal symptoms, and puts them at a hugely increased risk of relapse, overdose, and death. For people under court supervision, a urinalysis which shows the use of MOUD may lead to revocation of parole or probation, and land someone inside a carceral facility.

Additionally, people who have an untreated opioid use disorder are routinely denied initiation of treatment including MOUD while incarcerated, leaving them without basic medical care for opioid use disorder throughout their incarceration.

It is extremely dangerous to prevent someone from accessing MOUD, particularly someone who is on probation, parole, or in a drug court program. People recently released from incarceration are dozens of times more likely to die of an overdose compared to the general population. MOUD reduces a person with OUD’s risk of dying by fifty percent. Depriving people on probation, parole, or in drug courts who are in need of this medication therefore costs lives. Given these risks, MOUD access is especially important for people in the criminal justice system.

Probation and parole can serve as a juncture at which to refer people to treatment. Yet all too often, this opportunity is squandered. One study demonstrated that screening and referral to treatment during probation increased interest in medication treatment for OUD by an average of one point on a ten-point scale. Here, it is important that probation and parole offices refer individuals to voluntary treatment, rather than require treatment. Forced or required treatment raises a host of issues, including civil liberties concerns such as ensuring that individuals have autonomy over what medications go in their body and allowing people who use drugs the agency to determine their own future. Further, a systematic review of studies regarding forced treatment found little evidence that such treatment is effective.

D. Barriers to Treatment in Non-carceral Criminal Justice Settings

While difficult to quantify, there are many probation centers, parole offices, and drug courts throughout the country that have blanket prohibitions against the use of MOUD, or otherwise discriminate against individuals who use MOUD. These prohibitions have various sources. Some prohibitions, such as the one exemplified by the quotation at the beginning of this article, stem from the orders of a judge. Some drug courts, as well as probation and parole offices, have restrictions on MOUD use written into their conditions of probation. For others, it is an unwritten policy selectively enforced by individual probation and parole officers.

Qualitative research has found that a probation officer’s stigmatic beliefs— including the mistaken belief that methadone is substituting one addiction for another—is a barrier to MOUD access. A study based on interviews with social service clinicians (SSCs) found that nearly half of surveyed SSCs cited probation and parole officers’ negative attitudes towards MOUD as a barrier to MOUD for individuals on probation and parole. In this study, SSCs reported that some officers would explicitly instruct people under their supervision not to use medication to treat their OUD while on probation. Even when it wasn’t flatly prohibited, the study found that some probation officers and SSCs themselves would discourage using MOUD, despite acknowledging that it was legally available to people on probation. Another study showed that many probation staff receive little to no training about MOUD.

Other reasons for lack of access to MOUD for individuals on probation include its often prohibitive cost and a lack of coordination between government agencies. While it is necessary to root out illegal discrimination by probation and parole agencies, a comprehensive policy solution—including ensuring coverage of MOUD and related services—is needed and cannot be achieved solely through litigation.

E. Momentum for Policy Change

Prohibitions on MOUD access have been addressed in some jurisdictions. For example, some state legislatures passed laws in the last decade to require MOUD availability in drug court and other “problem solving” courts. Seven states have laws that prohibit these courts from discriminating against people who use MOUD. However, other states have problematically allowed these courts to require participant’s MOUD use, even where it is not medically necessary or where the individual wants to make an informed choice not to use MOUD.51 Federal funding for drug court programs now requires these courts to permit participants to use all three forms of MOUD.

II. LITIGATION AGAINST JAILS AND PRISONS FOR DENIAL OF MOUD

There is hope that litigation can help further turn the tides. Litigation against jails and prisons, in combination with federal, state, and local policy change, has sparked a sea change in the provision of MOUD in jails and prisons. As recently as 2018, experts estimated that only a handful of jails and prisons provided access to any form of MOUD. Today, roughly twenty-two percent of local jails provide buprenorphine maintenance and sixteen percent provide methadone maintenance. While these numbers are nowhere near as high as they need to be, these data represent hundreds of local jails starting these programs in just the last few years.

However, even with access to MOUD, recently incarcerated individuals face a host of health-related challenges due to their incarceration. There is a danger that bolstering MOUD access in the criminal justice system, while not ensuring easy access to care in the community, could create a misapprehension that incarcerating people with OUD is in their best interest. That is why it is critical that policy advocates and litigators aim to reduce barriers to treatment in the community, in addition to criminal justice settings. While much of the recent private litigation in this space has focused on expanding access to MOUD in jails and prisons, the ADA also provides protections for some people using MOUD in the community.

Several court decisions, and many more settlements, have required jails and prisons to provide MOUD to incarcerated individuals. More damages cases are now being filed, suing jails and prisons for wrongful death and other injuries from the denial of MOUD to incarcerated individuals.

The court cases have relied on two primary theories: (1) that denial of MOUD constitutes cruel and unusual punishment prohibited by the Eighth Amendment61 or the Fourteenth Amendment for pretrial detainees; and (2) that denial of MOUD amounts to disability discrimination in violation of the Americans with Disabilities Act63 and the Rehabilitation Act.

A. Eighth Amendment Law

The Eighth Amendment requires prison officials to ensure that incarcerated people receive adequate medical care. Deliberate indifference to a serious medical need amounts to an Eighth Amendment violation. The Due Process Clause of the Fourteenth Amendment applies to pretrial detainees and is at least as protective as the Eighth Amendment. The Eighth Amendment has “(1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.”

Courts have found that OUD and opioid withdrawal—with their painful side effects and potentially deadly consequences—can both amount to serious medical needs. Likewise, some courts are finding that blanket policies denying MOUD to incarcerated people, without any individualized assessment of medical need, can amount to deliberate indifference. For example, in the first case to hold that an incarcerated person likely has a right to access MOUD under the Eighth Amendment, the court held that the jail’s “course of treatment ignores and contradicts his physician’s recommendations” as a matter of “blanket policy.” While the Eighth Amendment’s guarantee of constitutionally adequate healthcare only applies to health services for incarcerated individuals, the same conduct violates the ADA and these cases are still relevant for people who are not incarcerated, but are facing barriers to their care because of government discrimination.

B. The Americans with Disabilities Act

Courts have also held that denial of MOUD in jails or prisons can amount to a violation of the ADA. Title II of the ADA, which applies to state and local government entities, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” A plaintiff must prove three elements to prevail in a Title II action: “(1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program, or activity; and (3) they were denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of their disability.” Discrimination on the basis of disability can be shown by several methods, which include: intentional discrimination, disparate impact, failure to make reasonable modifications, failure to provide equally effective communication, and using methods of administration that have the effect of excluding people with disabilities from government programs.

People with substance use disorders are people with disabilities. However, “the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." But the ADA explicitly protects people who are “participating in a supervised rehabilitation program and [are] no longer engaging in such use.” 78 An individual who currently uses illegal drugs cannot “be denied health services, or services provided in connection with drug rehabilitation.” The ADA “expressly provides that health services and drug rehabilitation services, which would include . . . MOUD . . . cannot be denied based on current illegal drug use.” Therefore, people retain their protections under the ADA to access MOUD whether they are on probation, parole, or in drug courts.

Because of this, courts have found that denial of MOUD to incarcerated people can amount to an ADA violation. For example, in Smith v. Aroostook County, Brenda Smith, who had been in recovery for ten years, was at risk of losing access to her buprenorphine under a jail policy that prohibited MOUD except for pregnant people.81 Despite requesting that the jail make a reasonable accommodation for her, Ms. Smith was told that she would have to come off of the medication when she arrived at the Aroostook County jail. A district court judge found that the “out-of-hand, unjustified denial of the Plaintiff’s request for her prescribed, necessary medication—and the general practice that precipitated that denial—is so unreasonable as to raise an inference that the Defendants denied the Plaintiff’s request because of her disability.” In the alternative, the court held that the defendants likely failed to make a reasonable accommodation by denying her access to her MOUD despite her requests to retain access to it.

In addition to continuing to litigate against jails and prisons that fail to provide MOUD, litigators should also turn their attention to the rest of the criminal legal system—and indeed, the rest of society—to ensure that continuous MOUD access is available to everyone who needs it.

Today, MOUD is flatly prohibited for many individuals on probation and parole, as well as in some drug court programs. While the Eighth Amendment right to health care does not extend to individuals who are not incarcerated, the ADA and the Rehabilitation Act provide legal recourse for those who are being denied access to their healthcare by the state or by public entities. Probation, parole, and drug courts are all programs, services, or activities of a government entity, which include “all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government.”

The United States Department of Justice (DOJ) issues guidance on combatting discrimination against people “in treatment or recovery.” The guidance reinforces that the ADA generally protects people with substance use disorder, unless they are currently illegally using drugs. It provides examples of potential ADA violations—including denial of MOUD in a correctional setting, a skilled nursing facility’s refusal to admit someone taking MOUD, a doctor or hospital’s refusal to treat someone with OUD, and adverse employment actions against individuals taking MOUD. The ADA thus provides a powerful legal tool for advocates representing people who use MOUD.

C. DOJ Enforcement Actions Against Probation, Parole, and Drug Court Entities that Discriminate Against People Who Use MOUD

The Department of Justice Civil Rights Division and U.S. Attorney’s offices throughout the country have used their affirmative litigation authority to vindicate the rights of people with substance use disorder, including those in court supervision programs. DOJ’s enforcement actions extend to a broader range of discriminatory conduct than the examples listed in their guidance, including discrimination against people in drug courts and people under supervision on probation. The DOJ, in a letter of findings and conclusions in its case against the Unified Judicial System of Pennsylvania, found that the defendant violated the ADA “by denying [individuals] an equal opportunity to benefit from court services, programs, or activities—including probationary and treatment court supervision—because of their disability,” namely substance use disorder. The treatment courts were broader than just the drug court: according to the letter, veterans’ courts and mental health courts both improperly denied individuals in their custody access to MOUD.

Introduction

Court statements sometimes forbid the use of medications for opioid use disorder (MOUD), threatening punitive action for non-compliance. These statements exemplify a broader issue within the criminal justice system. The United States is experiencing a significant drug overdose crisis, which is worsened by the criminal justice system's frequent denial of access to essential, life-saving healthcare, specifically MOUD. Courts have, in some instances, granted injunctions affirming the right of incarcerated individuals to receive MOUD in jails and prisons under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (ADA). The principles established in these cases extend beyond carceral settings, indicating that the ADA prohibits the criminal justice system from restricting access to this critical healthcare from the point of arrest through all stages of supervision, including probation, parole, and drug courts.

Advocates, including public defenders, private defense attorneys, and civil rights litigators, must collaborate to champion access to this life-saving treatment. Judges, prosecutors, state legislatures, local elected officials, and law enforcement agencies also have a responsibility to acknowledge the medical necessity of MOUD. This article examines how the criminal justice system's failure to recognize substance use disorder as a medical condition requiring treatment has led to preventable deaths and suffering. Explicit bans on necessary, life-saving medications often hinder recovery for individuals with substance use disorder. Providing unrestricted access to evidence-based medical care, where decisions are guided by medical necessity rather than punitive stigma, offers the criminal justice system a path toward effective rehabilitation.

The discussion begins by outlining the current state of the overdose crisis and highlighting MOUD's vital role in improving and saving the lives of individuals with opioid use disorder. It then explores how MOUD is frequently restricted or outright banned in criminal justice environments, despite strong evidence supporting its effectiveness. The article also notes recent shifts toward greater access, partly due to coordinated legal challenges and legislative efforts. Further sections detail various litigation strategies available to expand MOUD access throughout the criminal legal system.

The Opioid Overdose Crisis and Medications for Treatment

The United States is currently experiencing an severe overdose crisis, with over 80,000 overdose deaths occurring between November 2023 and November 2024. This represents a significant increase since 2002, largely driven by the rise of synthetic opioids like fentanyl. Overdose fatalities now surpass those from car accidents and gun violence combined, disproportionately affecting Native and Indigenous populations and Black individuals. Implementing evidence-based policies is crucial to reducing these preventable deaths.

Medications for opioid use disorder (MOUD), combined with appropriate psychosocial services, constitute the recognized standard of care for opioid use disorder (OUD). MOUD includes three FDA-approved medications: methadone, buprenorphine, and naltrexone, each functioning differently to manage OUD. Agonist MOUD medications, specifically methadone and buprenorphine, have significant evidence supporting their effectiveness, including a 50% decrease in mortality among individuals with OUD. For those recently released from jails and prisons, MOUD provision was linked to a 75% reduction in all-cause mortality and an 85% decrease in overdose deaths within the first month post-release. Beyond saving lives, agonist MOUD is associated with reduced opioid use, improved social functioning, decreased injection drug use, reduced HIV and HCV transmission risks, better quality of life, and lower crime rates. Despite these benefits, MOUD remains underutilized due to factors like stigma, low insurance reimbursement, and complex regulations, with only a quarter of individuals with OUD receiving MOUD in 2022.

The criminal justice system houses a disproportionately high number of individuals with OUD; approximately 15% of incarcerated people and 17% of those on probation or parole report opioid misuse. Despite this prevalence, criminal justice entities, including jails, prisons, probation, parole, and drug courts, often deny access to MOUD. Such policies frequently impose outright bans, forcing individuals previously on medication to endure painful withdrawal and face a significantly increased risk of relapse, overdose, death, and untreated OUD during incarceration. This creates an extremely dangerous situation, as individuals recently released from incarceration are at a much higher risk of overdose compared to the general population. Probation and parole could serve as opportunities for voluntary treatment referral, though forced treatment raises civil liberties concerns and has limited evidence of effectiveness.

Barriers to MOUD access extend beyond carceral settings. Many probation centers, parole offices, and drug courts implement explicit or unwritten prohibitions against MOUD use. These restrictions may originate from judicial orders, formalized probation conditions, or discretionary enforcement by individual officers. Research indicates that probation officers' stigmatizing beliefs, such as the mistaken idea that methadone merely substitutes one addiction for another, significantly impede MOUD access. A lack of training for many probation staff on MOUD further exacerbates this issue. Other challenges include the high cost of MOUD and insufficient coordination among government agencies.

Despite these persistent barriers, there is growing momentum for policy change. Some state legislatures have enacted laws requiring MOUD availability in drug courts and other problem-solving courts, with seven states specifically prohibiting discrimination against MOUD users. Furthermore, federal funding for drug court programs now mandates permission for participants to use all three forms of MOUD.

Legal Efforts to Ensure Access to Medications for Opioid Use Disorder

Litigation, alongside federal, state, and local policy shifts, has significantly increased MOUD provision in jails and prisons. While only a few facilities offered MOUD in 2018, current estimates indicate that around 22% of local jails provide buprenorphine and 16% offer methadone maintenance, representing a substantial increase in recent years. Despite this progress, continued access to care in the community remains vital, as bolstering MOUD in correctional settings without ensuring post-release support could falsely suggest incarceration is beneficial for individuals with OUD. Court decisions and settlements have mandated MOUD provision, with an increasing number of wrongful death and injury lawsuits being filed for MOUD denial. These legal actions primarily rely on two theories: denial of MOUD as cruel and unusual punishment under the Eighth Amendment (or Fourteenth Amendment for pretrial detainees), and as disability discrimination under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Under the Eighth Amendment, prison officials must provide adequate medical care, and "deliberate indifference" to a serious medical need constitutes a violation. The Fourteenth Amendment offers similar protections for pretrial detainees. Courts recognize OUD and its withdrawal symptoms as serious medical needs. Blanket policies that deny MOUD without individual medical assessment can be deemed deliberate indifference, as seen in cases where jail practices contradicted physician recommendations. Although the Eighth Amendment primarily applies to incarcerated individuals, the ADA's protections extend more broadly, providing grounds for legal action even for non-incarcerated individuals facing discrimination.

The ADA Title II prohibits state and local government entities from discriminating against qualified individuals with disabilities. To prove a Title II violation, a plaintiff must demonstrate they have a disability, are qualified for a public service, and were denied benefits or discriminated against because of their disability. People with substance use disorders are considered individuals with disabilities under the ADA. While the ADA generally excludes individuals currently engaging in illegal drug use, it explicitly protects those participating in supervised rehabilitation and those no longer using illegal drugs. Crucially, the ADA ensures that health services, including MOUD, cannot be denied based on current illegal drug use. This means individuals on probation, parole, or in drug courts retain their ADA protections for MOUD access.

For example, a court found that a jail's general practice of denying buprenorphine, except to pregnant individuals, likely constituted disability discrimination and a failure to make reasonable accommodation for an individual in recovery. This denial, without individualized assessment, suggested discrimination based on disability. These cases underscore that the ADA provides a powerful legal tool for advocates representing individuals who use MOUD, extending beyond jails and prisons to other parts of the criminal legal system and broader society.

The U.S. Department of Justice (DOJ) Civil Rights Division actively enforces these protections, issuing guidance and pursuing litigation against entities that discriminate against individuals in treatment or recovery, including those under court supervision. The DOJ has found that court systems can violate the ADA by denying individuals an equal opportunity to benefit from court services, programs, or activities—such as probationary and treatment court supervision—due to their substance use disorder. This includes adverse actions in veterans' courts and mental health courts that improperly denied MOUD access.

Introduction

America is currently experiencing a severe drug overdose crisis. Instead of alleviating this crisis, the criminal justice system often makes it worse by regularly denying access to essential, life-saving healthcare: medications for opioid use disorder (MOUD). Several courts have issued injunctions, ruling that incarcerated individuals have a right to MOUD in jails and prisons under the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (ADA). The reasoning in these cases applies beyond just jails and prisons. The ADA prohibits the criminal justice system from blocking access to this vital healthcare from the point of arrest through the end of supervision, including probation, parole, and drug courts. It is critical for public defenders, private defense attorneys, and civil rights litigators to collaborate in advocating for access to this life-saving treatment. Judges, prosecutors, state legislatures, local elected officials, and law enforcement must also recognize the medical necessity of this healthcare.

This article examines how the criminal justice system's failure to treat substance use disorder as a medical condition has led to significant and unnecessary suffering and loss of life. By explicitly banning necessary life-saving medications, the criminal justice system often sets individuals with substance use disorder up for failure. Allowing unrestricted access to evidence-based medical care—where decisions are based on medical necessity rather than stigmatizing punishment—offers an opportunity for the criminal justice system to support genuine rehabilitation.

First, this article will discuss the current state of the overdose crisis and the critical role MOUD plays in saving and improving the lives of individuals with opioid use disorder. It then explores how, despite strong evidence, MOUD is often limited or completely banned in criminal justice settings. However, this situation is beginning to change, partly due to joint legal and legislative efforts. The second part of this article will discuss different legal strategies that may expand access to MOUD throughout the criminal legal system.

The Current State of the Overdose Crisis

The Heavy Toll of Fatal Overdoses

America is in the midst of an overdose crisis. Between November 2023 and November 2024, more than 80,000 Americans died from an overdose.

The number of annual overdose deaths is alarming and unacceptable. The current high rate of overdose deaths is a relatively new situation. The rate of drug overdoses has increased nearly fourfold since 2002, rising from 8.2 deaths per 100,000 people to 32.6 deaths per 100,000 people in 2022. This sharp increase is largely due to the rise of synthetic opioids like fentanyl in a drug supply that is increasingly unstable and unpredictable. Drug overdoses in America now claim more lives than car accidents and gun violence combined. These deaths affect Native and Indigenous people and Black people more severely, with overdose rates of 65.2 and 47.5 per 100,000, respectively, compared to 32.6 per 100,000 for the general population. Many lives depend on adopting policies supported by evidence to reduce these preventable deaths.

MOUD is the Standard of Care for Opioid Use Disorder, Saves Lives, and is Underutilized

Medications for opioid use disorder (MOUD), when combined with relevant psychological and social support services, represent the standard of care for opioid use disorder (OUD). In essence, MOUD is fundamental healthcare. MOUD currently includes three FDA-approved medications: methadone, buprenorphine, and naltrexone. These three medications are not interchangeable. Methadone is a full agonist medication, meaning it fully stimulates the opioid receptors in the brain. Buprenorphine is a partial agonist, partially stimulating the opioid receptor while also acting as an antagonist that blocks the stimulation of another receptor in the brain. Naltrexone is an antagonist, which does not stimulate the opioid receptors but blocks them from being stimulated.

Data indicates that agonist MOUD saves lives. Of the three FDA-approved medications, there is significantly more evidence supporting the effectiveness of the agonist medications—methadone and buprenorphine—compared to naltrexone. Treatment with agonist MOUD is linked to a 50% reduction in deaths among individuals with opioid use disorder. For those recently released from jails and prisons, receiving MOUD was associated with a 75% decrease in deaths from all causes and an 85% decrease in overdose deaths during the first month after release. Beyond saving lives, a review of scientific literature found that agonist MOUD provides numerous benefits: "lower rates of other opioid use, improved social functioning, reduced injection drug use, reduced risk of HIV transmission behaviors, reduced risk of HIV diagnosis, reduced risk of hepatitis C virus (HCV) infection, better quality of life compared to individuals with OUD not in treatment," and reduced crime rates. Behavioral interventions, such as contingency management (a reward-based approach that encourages adherence to a treatment plan), cognitive behavioral therapy, and structured family therapy, have also been shown to support medication-based treatment for OUD.

For many individuals, MOUD remains inaccessible due to factors ranging from stigma, low insurance reimbursement, and complex regulations. Treatment rates for substance use disorder are insufficient. In 2022, only 25% of individuals with opioid use disorder received MOUD, and only 55% received any treatment at all for their disorder. MOUD is essential healthcare for individuals with OUD and needs to be more widely available.

The Lethal Results of Denying Care to People with OUD in the Criminal Justice System

Individuals in the criminal justice system have a significantly higher proportion of opioid use disorder compared to the general population. Roughly 15% of incarcerated individuals have OUD, and approximately 17% of those on probation and parole reported "opioid misuse" in the past year, which is about four times higher than the general population. People who use MOUD under supervision are often denied access to their medications by criminal justice entities such as jails, prisons, and supervision agencies like probation, parole, and drug courts. These institutions frequently implement policies and practices that effectively ban MOUD for those in their custody.

In jails and prisons, incarcerated individuals depend on the healthcare system within correctional facilities to receive these medications. If a prison or jail does not allow MOUD access, it often marks the end of treatment. This forces those previously treated with medication to experience painful withdrawal, substantially increasing their risk of relapse, overdose, and death. For individuals under court supervision, a drug test showing MOUD use might lead to the revocation of parole or probation, resulting in incarceration. Additionally, people with untreated opioid use disorder are often not allowed to begin MOUD treatment while incarcerated, leaving them without basic medical care for their condition throughout their incarceration.

Denying MOUD is especially dangerous for individuals under probation or parole, or in drug court programs. People recently released from incarceration face a significantly higher risk of overdose compared to the general population. MOUD has been shown to reduce this risk by half. Given these risks, MOUD access is particularly important for individuals within the criminal justice system.

Probation and parole could serve as an opportunity to refer individuals to treatment. Yet, this chance is often wasted. One study demonstrated that screening and referral to treatment during probation increased interest in medication treatment for OUD. However, it is important for probation and parole offices to refer individuals to voluntary treatment rather than require it. Forced or required treatment raises concerns about civil liberties, such as ensuring individuals' autonomy over their medical decisions and allowing people who use drugs the ability to decide their own future. Furthermore, a comprehensive review of studies on forced treatment showed limited evidence of its effectiveness.

Barriers to Treatment in Non-carceral Criminal Justice Settings

Although precise data can be challenging to obtain, many probation centers, parole offices, and drug courts across the country have widespread prohibitions against MOUD use or otherwise discriminate against individuals who use MOUD. These prohibitions have various sources. Some originate from judicial orders, such as the statement at the beginning of this article. Some drug courts, as well as probation and parole offices, include restrictions on MOUD use in their terms of probation. For others, it is an unofficial policy that is enforced inconsistently by individual probation and parole officers.

Qualitative research has found that a probation officer's stigmatizing beliefs—including the mistaken belief that methadone is replacing one addiction with another—pose obstacles to MOUD access. A study based on interviews with social service clinicians (SSCs) found that nearly half of surveyed SSCs cited probation and parole officers' negative attitudes towards MOUD as a barrier. In this study, SSCs reported that some officers would clearly advise those under their supervision not to use medication to treat their OUD while on probation. Even when not explicitly forbidden, the study found that some probation officers and SSCs themselves would discourage MOUD use, despite acknowledging its legal availability to individuals on probation. Another study indicated that many probation staff receive little to no training about MOUD.

Other reasons for lack of MOUD access for individuals on probation include its often prohibitive cost and a lack of coordination between government agencies. While it is necessary to address illegal discrimination by probation and parole agencies, a broad policy solution—including ensuring coverage for MOUD and related services—is needed and cannot be accomplished through legal action alone.

Momentum for Policy Change

Prohibitions on MOUD access have been addressed in some jurisdictions. For example, some state legislatures passed laws in the last decade requiring MOUD availability in drug courts and other "specialty" courts. Seven states have laws that prohibit these courts from discriminating against individuals who use MOUD. However, other states have unacceptably permitted these courts to mandate MOUD use by participants, even when it is not medically necessary or when an individual wishes to make an informed choice against using MOUD. Federal funding for drug court programs now requires these courts to permit participants to use all three forms of MOUD.

Litigation Against Jails and Prisons for Denial of MOUD

There is hope that litigation can further shift the landscape. Lawsuits against jails and prisons, combined with federal, state, and local policy changes, have initiated a significant transformation in the provision of MOUD in these facilities. As recently as 2018, experts estimated that only a few jails and prisons provided access to any form of MOUD. Today, approximately 22% of local jails provide buprenorphine maintenance, and 16% provide methadone maintenance. While these numbers are still far from ideal, these data represent hundreds of local jails starting these programs in just the last few years.

However, even with MOUD access, recently incarcerated individuals face numerous health-related challenges due to their incarceration. There is a risk that improving MOUD access within the criminal justice system, without also ensuring easy community access, might mistakenly suggest that incarceration is beneficial for individuals with OUD. Therefore, it is critical that policy advocates and litigators aim to reduce barriers to treatment in the community, in addition to criminal justice settings. While much of the recent private litigation in this area has focused on expanding MOUD access in jails and prisons, the ADA also provides protections for some individuals using MOUD in the community.

Several court decisions, and many more settlements, have compelled jails and prisons to provide MOUD to incarcerated individuals. More lawsuits seeking compensation are now being initiated, suing jails and prisons for wrongful death and other harms resulting from the denial of MOUD to incarcerated individuals. These court cases have relied on two main legal arguments: (1) that denial of MOUD constitutes cruel and unusual punishment, which the Eighth Amendment forbids (or the Fourteenth Amendment for pretrial detainees); and (2) that denial of MOUD amounts to disability discrimination in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Eighth Amendment Law

The Eighth Amendment mandates that prison officials ensure incarcerated individuals receive adequate medical care. Deliberate indifference to a serious medical need constitutes an Eighth Amendment violation. The Due Process Clause of the Fourteenth Amendment applies to pretrial detainees and offers protections at least equivalent to those of the Eighth Amendment. The Eighth Amendment requires (1) an objective component, proving a serious medical need, and (2) a subjective component, demonstrating prison administrators' deliberate indifference to that need.

Courts have found that OUD and opioid withdrawal—with their painful effects and potential for fatality—can both amount to serious medical needs. Likewise, some courts are finding that general policies denying MOUD to incarcerated individuals, without an individual medical evaluation, can constitute deliberate indifference. For example, in the first case to rule that an incarcerated individual likely has a right to access MOUD under the Eighth Amendment, the court determined that the jail's "course of treatment disregards and conflicts with his physician’s recommendations" as a matter of "blanket policy." While the Eighth Amendment’s guarantee of constitutionally mandated adequate healthcare only applies to individuals who are incarcerated, the same conduct can violate the ADA, and these cases remain relevant for individuals who are not incarcerated but face barriers to their care due to government discrimination.

The Americans with Disabilities Act

Courts have also determined that denying MOUD in correctional facilities can violate the Americans with Disabilities Act (ADA). Title II of the ADA, which applies to state and local government entities, provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." To establish an ADA Title II violation, it must be shown that an individual has a disability, is otherwise qualified for a public service, program, or activity, and was denied benefits or discriminated against because of their disability. Discrimination based on disability can be demonstrated through several methods, including intentional discrimination, disparate impact, failure to make reasonable modifications, failure to provide equally effective communication, and using administrative methods that exclude people with disabilities from government programs.

People with substance use disorders are recognized as having disabilities under the ADA. However, "the term 'individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." But the ADA explicitly protects individuals who are "participating in a supervised rehabilitation program and [are] no longer engaging in such use." The ADA also ensures that health services, or services provided for drug rehabilitation, which would include MOUD, cannot be denied based on current illegal drug use. Therefore, individuals keep their protections under the ADA to access MOUD whether they are on probation, parole, or in drug courts.

Because of this, courts have found that denying MOUD to incarcerated individuals can constitute an ADA violation. For example, in Smith v. Aroostook County, Brenda Smith, who had been in recovery for a decade, was in danger of losing access to her buprenorphine under a jail policy that prohibited MOUD except for pregnant individuals. Despite her request for the jail to provide a reasonable accommodation, Ms. Smith was told she would have to stop the medication upon her arrival at the Aroostook County jail. A district court judge found that the "unjustified and immediate denial of the Plaintiff’s request for her prescribed, necessary medication—and the general practice that led to that denial—is so unreasonable as to suggest that the Defendants denied the Plaintiff’s request because of her disability." Alternatively, the court held that the defendants likely failed to make a reasonable accommodation by denying her access to her MOUD despite her requests.

Advocates are encouraged to expand litigation efforts beyond jails and prisons to ensure continuous MOUD access across the entire criminal legal system and in the community. Today, MOUD is explicitly forbidden for many individuals on probation and parole, as well as in some drug court programs. While the Eighth Amendment right to healthcare does not extend to individuals who are not incarcerated, the ADA and the Rehabilitation Act provide legal recourse for those whose healthcare access is denied by the state or by public entities. Probation, parole, and drug courts are all programs, services, or activities of a government entity, which include "all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government." The United States Department of Justice (DOJ) issues guidance on combating discrimination against people "in treatment or recovery." This guidance reinforces that the ADA generally protects individuals with substance use disorder, unless they are currently illegally using drugs and the entity is acting solely on that basis. It provides examples of potential ADA violations—including denial of MOUD in a correctional setting, a skilled nursing facility’s refusal to admit someone taking MOUD, a doctor or hospital’s refusal to treat someone with OUD, and adverse employment actions against individuals taking MOUD. The ADA thus provides a powerful legal tool for advocates representing people who use MOUD.

DOJ Enforcement Actions Against Probation, Parole, and Drug Court Entities that Discriminate Against People Who Use MOUD

The Department of Justice Civil Rights Division and U.S. Attorney’s offices across the country have used their authority to initiate lawsuits to protect the rights of individuals with substance use disorder, including those in court supervision programs. DOJ’s enforcement actions extend to a wider scope of discriminatory behavior than the examples listed in their guidance, including discrimination against individuals in drug courts and those under probation supervision. The DOJ, in a letter of findings and conclusions in its case against Pennsylvania's Unified Judicial System, found that the defendant violated the ADA "by denying [individuals] an equal opportunity to benefit from court services, programs, or activities—including probationary and treatment court supervision—because of their disability," specifically substance use disorder. The treatment courts encompassed more than just drug court programs; according to the letter, veterans’ courts and mental health courts both wrongly denied individuals under their supervision access to MOUD.

Introduction

Some judges and supervision officers have openly forbidden individuals under their authority from using certain medications for opioid use disorder (MOUD). They have issued strict warnings, threatening prison time or other severe penalties if these medications are detected.

America is facing a severe drug overdose crisis. However, the criminal justice system often worsens this crisis by denying access to critical, life-saving healthcare: medications for opioid use disorder (MOUD). Courts have often ruled that incarcerated people have a right to MOUD in jails and prisons, based on the Eighth and Fourteenth Amendments and the Americans with Disabilities Act (ADA). This legal reasoning extends beyond just jails and prisons. The ADA prevents the criminal justice system from blocking access to this vital healthcare from the moment of arrest through all forms of supervision, including probation, parole, and drug courts. It is important for defense lawyers and civil rights advocates to work together to ensure access to this care. Judges, prosecutors, lawmakers, local officials, and law enforcement must also acknowledge that this healthcare is medically necessary.

This article examines how the criminal justice system's failure to treat substance use disorder as a medical condition has led to immense and avoidable suffering and death. By explicitly banning essential, life-saving medications, the criminal justice system often sets up individuals with substance use disorder for failure. Providing open access to evidence-based medical care—where decisions are based on medical necessity rather than punishment—offers the criminal justice system an opportunity to support true rehabilitation.

The Current State of the Overdose Crisis

This section will discuss the current overdose crisis and the vital role MOUD plays in saving and improving the lives of individuals with opioid use disorder. It will also explore how, despite strong evidence, MOUD is often restricted or banned in criminal justice settings, though this is gradually changing due to coordinated legal and legislative efforts. The next part will cover various legal strategies that can expand MOUD access throughout the criminal legal system.

The Heavy Toll of Fatal Overdoses

The United States is experiencing a severe overdose crisis. In a recent twelve-month period, more than 80,000 Americans died from overdoses. This annual death toll is shocking and unacceptable. The number of overdose deaths has sharply increased in recent years, nearly quadrupling since 2002. In 2022, the rate rose to 32.6 deaths per 100,000 people, largely due to the rise of synthetic opioids like fentanyl in an increasingly dangerous drug supply.

Drug overdoses in America now cause more deaths than car accidents and gun violence combined. These deaths disproportionately affect Native, Indigenous, and Black communities. For Native and Indigenous people, the overdose death rate is 65.2 per 100,000, and for Black people, it is 47.5 per 100,000, significantly higher than the general population's rate of 32.6 per 100,000. Many lives depend on implementing proven policies to reduce these preventable deaths.

MOUD is the Standard of Care for Opioid Use Disorder, Saves Lives, and is Underutilized

Medications for opioid use disorder (MOUD), when combined with appropriate counseling and support services, are considered the standard medical care for opioid use disorder (OUD). This means MOUD is a basic form of healthcare. Currently, three FDA-approved medications are available: methadone, buprenorphine, and naltrexone. These medications work differently. Methadone fully stimulates opioid receptors in the brain. Buprenorphine partially stimulates these receptors while also blocking others. Naltrexone does not stimulate opioid receptors; instead, it blocks them from being stimulated.

Data shows that agonist MOUD (methadone and buprenorphine) saves lives. There is strong evidence supporting the effectiveness of these agonist medications compared to naltrexone. Treatment with agonist MOUD is linked to a 50% decrease in deaths among people with opioid use disorder. For individuals recently released from jails and prisons, providing MOUD was associated with a 75% decrease in overall deaths and an 85% decrease in overdose deaths within the first month after release. Beyond saving lives, scientific research has found that agonist MOUD offers several benefits, including reduced opioid use, improved social functioning, decreased injection drug use, lower risk of HIV and Hepatitis C, better quality of life, and reduced crime rates. Behavioral therapies like contingency management (rewarding treatment adherence), cognitive behavioral therapy, and structured family therapy can also support medication-based OUD treatment.

However, for many individuals, MOUD remains out of reach due to various factors, including social stigma, low insurance coverage, and complex regulations. The rates of treatment for substance use disorder are insufficient. In 2022, only 25% of people with opioid use disorder received MOUD, and only 55% received any treatment at all for their condition. MOUD is essential healthcare for individuals with OUD and needs to be much more widely accessible.

The Lethal Results of Denying Care to People with OUD in the Criminal Justice System

The criminal legal system holds a significantly higher percentage of individuals with opioid use disorder compared to the general public. Approximately 15% of incarcerated people have OUD, and about 17% of those on probation and parole reported "opioid misuse" in the past year, which is roughly four times the rate in the general population. Individuals taking MOUD under supervision are often denied access to their medications by criminal justice agencies, including jails, prisons, probation, parole, and drug courts. These institutions frequently implement policies that effectively ban MOUD for people in their custody.

In jails and prisons, incarcerated individuals rely entirely on the correctional healthcare system to receive these medications. If a prison or jail does not allow MOUD, there is usually no other option. This forces those previously on medication to suffer painful withdrawal symptoms and greatly increases their risk of relapse, overdose, and death. For individuals under court supervision, a drug test showing MOUD use can lead to probation or parole being revoked, sending them back to a correctional facility. Additionally, people with untreated opioid use disorder are often denied the chance to start MOUD treatment while incarcerated, leaving them without basic medical care for their condition throughout their time in custody.

Preventing someone from accessing MOUD, especially an individual on probation, parole, or in a drug court program, is extremely dangerous. People recently released from incarceration are dozens of times more likely to die from an overdose than the general population. MOUD reduces an individual's risk of death by 50%. Therefore, denying this medication to individuals on probation, parole, or in drug courts who need it costs lives. Given these risks, access to MOUD is particularly important for individuals within the criminal justice system. Probation and parole could serve as opportunities to refer people to treatment, but this chance is often missed. One study showed that screening and referring individuals to treatment during probation increased their interest in MOUD by an average of one point on a ten-point scale. It is important that probation and parole offices refer individuals to voluntary treatment, rather than requiring it. Mandatory treatment raises concerns about civil liberties, such as ensuring individuals have control over the medications they take and allowing people who use drugs to determine their own future. Furthermore, a review of studies on forced treatment found little evidence that it is effective.

Barriers to Treatment in Non-carceral Criminal Justice Settings

While hard to precisely measure, many probation centers, parole offices, and drug courts across the country have outright bans on MOUD or discriminate against individuals who use it. These prohibitions come from various sources. Some are direct orders from a judge, as exemplified by the quote at the beginning of this article. Certain drug courts, as well as probation and parole offices, include MOUD restrictions in their official probation conditions. For others, it is an unwritten policy that individual probation and parole officers selectively enforce.

Research based on interviews with social service clinicians (SSCs) found that nearly half of them identified probation and parole officers' negative attitudes toward MOUD as a barrier to access. These attitudes often included the mistaken belief that methadone is simply replacing one addiction with another. SSCs reported that some officers explicitly told individuals under their supervision not to use medication to treat their OUD while on probation. Even when not strictly prohibited, the study found that some probation officers and even SSCs themselves discouraged MOUD use, despite knowing it was legally available to people on probation. Another study showed that many probation staff receive little to no training about MOUD.

Other reasons for lack of MOUD access for individuals on probation include the often high cost and poor coordination between government agencies. While it is necessary to stop illegal discrimination by probation and parole agencies, a complete policy solution—including ensuring coverage for MOUD and related services—is needed and cannot be achieved solely through legal action.

Momentum for Policy Change

Prohibitions on MOUD access have been addressed in some areas. For instance, some state legislatures have passed laws in recent years requiring MOUD availability in drug courts and other "problem-solving" courts. Seven states now have laws preventing these courts from discriminating against people who use MOUD. However, some states have problematically allowed these courts to require participants to use MOUD, even when it is not medically necessary or when the individual prefers not to use it. Federal funding for drug court programs now mandates that these courts permit participants to use all three forms of MOUD.

Litigation Against Jails and Prisons for Denial of MOUD

There is hope that legal action can further shift attitudes. Lawsuits against jails and prisons, combined with federal, state, and local policy changes, have significantly transformed how MOUD is provided in these facilities. As recently as 2018, experts estimated that only a few jails and prisons offered any form of MOUD. Today, roughly 22% of local jails provide buprenorphine treatment, and 16% provide methadone treatment. While these numbers are still far from ideal, they represent hundreds of local jails starting these programs in just the last few years.

Even with MOUD access, recently incarcerated individuals face many health challenges due to their time in custody. There is a risk that increasing MOUD access within the criminal justice system, without also ensuring easy access to care in the community, could create the false impression that incarcerating people with OUD is beneficial for them. Therefore, it is essential for policy advocates and legal professionals to focus on reducing barriers to treatment in the community, in addition to improving access in criminal justice settings. While much recent private litigation has focused on expanding MOUD access in jails and prisons, the ADA also provides protections for some individuals using MOUD in the community.

Several court rulings, along with many settlements, have compelled jails and prisons to provide MOUD to incarcerated individuals. More lawsuits are now being filed, seeking damages from jails and prisons for wrongful death and other harms resulting from the denial of MOUD to incarcerated individuals. These court cases have relied on two main legal arguments: first, that denying MOUD constitutes cruel and unusual punishment, which is prohibited by the Eighth Amendment (or the Fourteenth Amendment for pretrial detainees); and second, that denying MOUD is discrimination based on disability, violating the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Eighth Amendment Law

The Eighth Amendment requires prison officials to ensure that incarcerated individuals receive adequate medical care. Deliberate indifference to a serious medical need is considered an Eighth Amendment violation. The Due Process Clause of the Fourteenth Amendment applies to pretrial detainees and offers at least the same level of protection as the Eighth Amendment. The Eighth Amendment requires showing both (1) a serious medical need and (2) that prison administrators were deliberately indifferent to that need.

Courts have determined that both OUD and opioid withdrawal, with their painful side effects and potentially fatal consequences, can be considered serious medical needs. Likewise, some courts are finding that general policies denying MOUD to incarcerated individuals, without any individual assessment of their medical needs, can be considered deliberate indifference. For example, in the first case to rule that an incarcerated person likely has a right to MOUD under the Eighth Amendment, the court stated that the jail's "course of treatment ignores and contradicts his physician's recommendations" due to a "blanket policy." While the Eighth Amendment's guarantee of adequate healthcare applies only to incarcerated individuals, the same conduct can violate the ADA, and these cases are still relevant for individuals who are not incarcerated but face barriers to their care due to government discrimination.

The Americans with Disabilities Act

Courts have also determined that denying MOUD in jails or prisons can violate the ADA. Title II of the ADA, which applies to state and local government entities, states that no qualified person with a disability should be excluded from, denied the benefits of, or subjected to discrimination by a public entity's services, programs, or activities because of their disability. To win a Title II case, a plaintiff must prove three things: (1) they have a disability; (2) they are otherwise qualified to receive the benefits of a public service, program, or activity; and (3) they were denied these benefits or discriminated against because of their disability. Discrimination based on disability can be shown through various methods, including intentional discrimination, disparate impact, failure to make reasonable adjustments, failure to provide effective communication, and using administrative methods that exclude people with disabilities from government programs.

Individuals with substance use disorders are considered people with disabilities. However, the term "individual with a disability" does not include someone who is currently illegally using drugs, when the covered entity acts based on that illegal use. But the ADA specifically protects individuals who are "participating in a supervised rehabilitation program and [are] no longer engaging in such use." The ADA also states that an individual currently using illegal drugs cannot "be denied health services, or services provided in connection with drug rehabilitation." This means the ADA "expressly provides that health services and drug rehabilitation services, which would include . . . MOUD . . . cannot be denied based on current illegal drug use." Therefore, individuals retain their ADA protections to access MOUD whether they are on probation, parole, or in drug courts.

Because of this, courts have found that denying MOUD to incarcerated individuals can be an ADA violation. For example, in the case of Smith v. Aroostook County, Brenda Smith, who had been in recovery for ten years, was at risk of losing access to her buprenorphine due to a jail policy that prohibited MOUD except for pregnant individuals. Despite her request for a reasonable adjustment, Ms. Smith was told she would have to stop her medication upon arriving at the Aroostook County jail. A district court judge found that the "out-of-hand, unjustified denial of the Plaintiff’s request for her prescribed, necessary medication—and the general practice that precipitated that denial—is so unreasonable as to raise an inference that the Defendants denied the Plaintiff’s request because of her disability." Alternatively, the court held that the defendants likely failed to provide a reasonable adjustment by denying her access to her MOUD despite her requests.

Beyond continuing to litigate against jails and prisons that do not provide MOUD, legal advocates should also focus on the rest of the criminal legal system—and society at large—to ensure continuous MOUD access for everyone who needs it. Today, MOUD is often completely forbidden for many individuals on probation and parole, as well as in some drug court programs. While the Eighth Amendment right to healthcare does not apply to individuals who are not incarcerated, the ADA and the Rehabilitation Act offer legal options for those whose healthcare is denied by the state or public entities. Probation, parole, and drug courts are all considered programs, services, or activities of a government entity.

The United States Department of Justice (DOJ) issues guidelines on fighting discrimination against people "in treatment or recovery." These guidelines confirm that the ADA generally protects individuals with substance use disorder, unless they are currently illegally using drugs. The DOJ provides examples of potential ADA violations, including denying MOUD in a correctional setting, a nursing facility refusing to admit someone taking MOUD, a doctor or hospital refusing to treat someone with OUD, and negative employment actions against individuals taking MOUD. Thus, the ADA is a powerful legal tool for advocates representing people who use MOUD.

DOJ Enforcement Actions Against Probation, Parole, and Drug Court Entities that Discriminate Against People Who Use MOUD

The Department of Justice's Civil Rights Division and U.S. Attorney’s offices across the country have used their legal authority to protect the rights of people with substance use disorder, including those in court supervision programs. The DOJ's enforcement actions cover a broader range of discriminatory behavior than the examples listed in their guidance, including discrimination against people in drug courts and those under probation supervision.

In a letter outlining its findings and conclusions in a case against the Unified Judicial System of Pennsylvania, the DOJ found that the defendant violated the ADA by "denying [individuals] an equal opportunity to benefit from court services, programs, or activities—including probationary and treatment court supervision—because of their disability," specifically substance use disorder. The treatment courts included more than just drug courts; according to the letter, veterans' courts and mental health courts also improperly denied individuals under their supervision access to MOUD.

Introduction

The country is facing a big problem with drug overdoses. Sadly, the justice system often makes this problem worse. It often stops people from getting important healthcare: medicines for opioid use disorder, called MOUD.

Doctors say MOUD helps save lives. Courts have even said that people in jail or prison have a right to get MOUD. This right should also cover people outside of jail, like those on probation or in drug court, because of a law called the Americans with Disabilities Act (ADA). Lawyers, judges, and other leaders must work together to make sure people can get this life-saving care.

This paper explains how stopping people from getting MOUD causes much sadness and death. When the justice system bans these medicines, it makes it harder for people to get better. Giving people full access to MOUD, based on what doctors say is needed, can help them heal.

It will talk about the drug overdose crisis and why MOUD is so important. It will also show how MOUD is often not allowed in the justice system, but how lawsuits and new laws are starting to change this. The paper will then look at the legal ways to help more people get MOUD.

The Current State of the Overdose Crisis

Many people in the United States are dying from drug overdoses. Over 80,000 Americans died from overdoses in one recent year. This number is very high and keeps growing, mostly because of strong, man-made drugs like fentanyl. Drug overdoses kill more people than car crashes and gun violence combined. They affect Native and Indigenous people and Black people more than others. Stopping these deaths means using healthcare ideas that science shows work.

Medicines for opioid use disorder (MOUD) are the main way doctors treat opioid use disorder (OUD). This means MOUD is basic healthcare. There are three approved medicines: methadone, buprenorphine, and naltrexone. These medicines are not all the same. Methadone and buprenorphine are shown to save lives. Using these medicines can lower the risk of death for people with OUD by half. For people just out of jail, getting MOUD can lower their risk of death by 75% in the first month. MOUD also helps people use fewer opioids, live better, and lowers the risk of getting diseases like HIV. Even with all this proof, many people who need MOUD cannot get it because of unfair rules or bad feelings about the medicine.

Many people in the justice system have opioid use disorder. About 15 out of 100 people in jail have OUD. But jails, prisons, and probation offices often do not let people get MOUD. This means people must stop their medicine, which leads to painful withdrawal. It also makes them much more likely to use drugs again, overdose, and die. If a urine test shows someone is taking MOUD, they might even be sent back to jail. It is very dangerous to stop someone from getting MOUD, especially after they leave jail.

It is common for probation offices, parole offices, and drug courts to have rules against using MOUD. These rules might come from a judge, be written down, or just be an unsaid practice by officers. Some officers wrongly believe that MOUD is just swapping one drug problem for another. They often do not get enough training about MOUD. Other problems include the high cost of MOUD and different government groups not working together. While fighting unfair rules is key, a full plan to cover MOUD costs and services is also needed.

Good news is that things are starting to change. Some states have passed laws that say drug courts must allow MOUD. The government also gives money to drug court programs only if they let people use all three types of MOUD.

Fighting for MOUD in Jails and Prisons

There is hope that court cases can help change things. Lawsuits against jails and prisons, along with new laws, have led to a big shift in how MOUD is given out. A few years ago, very few jails offered MOUD. Now, many more local jails have programs for buprenorphine and methadone. This is a good start, but more needs to be done. It is important to also make sure MOUD is easy to get outside of jail. Court cases have made many jails and prisons provide MOUD. Now, more lawsuits are asking for money for harm or wrongful death when jails stop people from getting MOUD.

These court cases often use two main ideas. First, they say that stopping MOUD is "cruel and unusual punishment." This is against the Eighth Amendment of the Constitution for people found guilty, or the Fourteenth Amendment for people waiting for trial. These laws say that people in jail must get proper medical care. Ignoring a serious medical need on purpose breaks this rule. Doctors agree that opioid use disorder and withdrawal are serious health problems. Courts are finding that jails that have rules against MOUD for everyone, without looking at each person's needs, are breaking this law.

Second, courts have said that not giving MOUD in jails or prisons can break the Americans with Disabilities Act (ADA). This law stops state and local governments from treating people with disabilities unfairly. People with substance use disorder are considered to have a disability under the ADA. The law says that people cannot be stopped from getting health services, including MOUD, because of their drug use, as long as they are in a supervised program to get better and are not currently using illegal drugs. So, people on probation, parole, or in drug courts are still protected by the ADA to get MOUD.

Because of this, courts have said that denying MOUD in jail can break the ADA. For example, in one case, a woman who had been clean for ten years was almost not allowed to get her MOUD in jail. A judge said that the jail's quick "no" to her medicine, and its general rule, likely meant they were treating her unfairly because of her health problem. Lawyers should keep fighting for MOUD in jails and prisons. They should also look at the rest of the justice system and society to make sure everyone who needs MOUD can get it.

The Department of Justice (DOJ) also helps fight against unfair treatment. They have taken legal action against probation, parole, and drug court groups that do not allow MOUD. The DOJ has said that courts in Pennsylvania broke the ADA by not letting people in their programs, like drug courts, get MOUD. This shows the ADA is a strong tool to help people get the MOUD they need.