Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration
63 Pages Posted: 12 Jul 2015
Date Written: July 1, 2015
The United States is in the midst of a public health crisis: Every year, well over 24,000 Americans die from opioid overdose. This staggering death toll is equivalent to a weekly jumbo jet crash. After a decade of rapid growth, overdose caused by prescription opioids and heroin now tops the accidental death rankings, beating out automobile accidents, AIDS, and other high-profile killers. Overdose does not discriminate, cutting across all geographic, economic, and racial divides. But some groups are especially vulnerable. This article is dedicated to one such group: individuals re-entering the community from correctional settings. In the immediate two weeks after release, people in this group are almost 130 times more likely to die of an overdose than the general population.
It is easy to cast post-incarceration substance use — and consequent overdose — as the re-entering individual’s character weakness or a propensity towards reckless behavior. Nevertheless, modern addiction science reframes such relapse as a foreseeable consequence of the chronic nature of substance use disorders. This scientific evidence also provides clear guidance on how most of the resulting fatalities can be prevented. This article considers the creation of fatal overdose risk among formerly incarcerated individuals as an unacceptable collateral harm emanating from criminal justice involvement.
In order to address this largely overlooked public health problem, we explore a range of legal channels that can help persuade the state (broadly construed) to address a risk to which it substantially contributes. We consider a number of doctrinal approaches, guided by the belief that spending time behind bars must not translate to a death sentence for so many Americans. Whether as a part of possible legal actions or an action agenda on its own right, we present a number of programmatic interventions and policy reforms that may alleviate this crisis. Our analysis also highlights the potential role of the Affordable Care Act (ACA) in facilitating overdose prevention before, during and post-incarceration. This agenda is especially timely given the current move by federal and state governments towards releasing large numbers of individuals incarcerated on drug-related charges to ease prison over-crowding or as a result of legal reforms, pardons, or exonerations.
In Section I, we provide an overview of the opioid overdose epidemic and the special vulnerability among criminal justice-involved individuals. In Section II, we examine the scientific evidence on prevention measures that should be, but are currently rarely deployed to address this vulnerability. In Section III, we explore various legal theories that could be invoked in efforts to motivate government actors to take a greater responsibility for preventing post-incarceration overdose deaths. In Section IV, we cover additional mechanisms to motivate institutional change. We conclude by outlining a policy and programmatic agenda for reducing the vulnerability of criminal justice-involved individuals to opioid overdose.
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