B. Denial of MOUD to inmates may violate the ADA or Rehabilitation Act

Drug Induced Homicide Defense Toolkit

Even if a claim is not available, consider how your choices of person-affirming

language and storytelling can highlight and challenge racist biases and assumptions. As

discussed in Section VIII below, efforts to humanize your client will, of course, make for

a more zealous defense, and they may increase the chances of a more equitable outcome.

B. Denial of MOUD to inmates may violate the ADA or Rehabilitation Act

Considering that DIH defendants are not the “kingpins” allegedly targeted by the

statutes but rather people overwhelmingly likely to suffer OUD themselves, the criminal

justice system's tragic failure to provide medications for OUD such as methadone or

Suboxone is a critical problem for DIH enforcement.220 If a carceral facility fails to

provide MOUD or deprives an inmate suffering from OUD from continuing to receive

previously-prescribed pharmacotherapy, some courts are beginning to hold that the

failure may violate the Americans with Disabilities Act (local and state facilities) or the

Rehabilitation Act (federal facilities).

For example, in Pesce v. Coppinger, the U.S. District Court in Boston issued an

injunction requiring Massachusetts carceral facilities to provide methadone to the

https://www.wicourts.gov/publications/guides/docs/munibenchbook.pdf. The margins contain governing case law for each prong of analysis. See also the resources available from the NACDL, Racial Disparity Resources (April 25, 2019), https://www.nacdl.org/Content/RacialDisparityResources.

220 See discussion in Sections V.C and VI.B.

Version Date July 2021 – Check https://ssrn.com/abstract=3265510 for most current edition

69

Drug Induced Homicide Defense Toolkit

plaintiff, who had been receiving physician-prescribed treatment for his OUD prior to his

detention, but the state refused to consider the medical dynamics of his case. The court’s

ruling that the commonwealth's policy depriving methadone to inmates with OUD

violated the ADA (as well as the U.S. Constitution, see below). Similarly, the U.S.

221

Court of Appeals for the First Circuit affirmed a preliminary injunction ordering a jail in

Maine to provide buprenorphine to treat an individual with OUD.222

For in-depth treatment of the legal and advocacy issues regarding clients suffering

OUD and regarding treatment in jails and prisons, the Legal Action Center provides a

number of resources for attorneys.223

221 See Pesce v. Coppinger, 1:18-cv-11972-DJC (slip op’n), (D. Mass. Nov. 28, 2018); see also Brief in Support of Plaintiff by amici, https://www.aclum.org/sites/default/files/field _ documents/20181102 _pesce _publichealthamicus.pdf.

222 Smith v.Aroostook County, 922 F.3d 41 (1st Cir. 2019).

223 See LegalAction Center, MAT Advocacy Toolkit (June 2021), https://www.lac.org/resource/mat-advocacy-toolkit; for a summary of cases and policy issues, see Sally Friedman and Gabrielle de la Gueronniere, MOUD in Corrections: Recent Legal & Policy Developments and Implications, LegalAction Center (January 28, 2020), https://opioidresponsenetwork.org/documents/MOUDConference2020/Gabrielle%20de%20la%20Gueronni ere-%20MOUD%20presentation%20RI.pdf; see also O’Neill Institute for National and Global Health Law, Applying the Evidence (October 2019), https://oneill.law.georgetown.edu/wp-content/uploads/Applying-the-Evidence-Report-1.pdf.

70

Disclaimer: All content is provided for informational purposes only and does not constitute legal advice