Abstract
No one deserves to die just because they use drugs. Yet, policies and practices in jails and prisons around the country continue to facilitate the death, pain, and suffering of people who use drugs by refusing to properly screen and medically manage withdrawal for persons in custody. In Estelle v. Gamble, the U.S. Supreme Court established a constitutional right for incarcerated persons to receive adequate medical care. Further, it prohibited the denial of medical care that causes “the unnecessary and wanton infliction of pain” and required the provision of adequate medical care to comport with evolving standards of decency. This Article argues that the failure to medically manage withdrawals for those in jail and prison custody amounts to deliberate indifference to a serious medical need and, as such, constitutes a violation of Fourteenth and Eighth Amendment rights. To do so, this Article presents a detailed explanation of the medical literature on evidence- based medical treatment for withdrawal syndrome and demonstrates the different ways in which jails and prisons have ignored or failed to provide the bare minimum, evidence-based medical care. This Article excerpts firsthand accounts of persons in withdrawal to demonstrate the level of “unnecessary and wanton infliction of pain” caused by such deliberate indifference and argues that evolving standards of decency require the reformation of current inhumane practices.
About the Author
Taleed El-Sabawi is an Assistant Professor of Law at Florida International University College of Law and a Research Scholar for the Addiction & Public Policy Initiative at the O’Neill Institute for National and Global Health Law at Georgetown Law Center. I want to thank the Legal Action Center for its advocacy and litigation to ensure that persons who use drugs receive access to evidence- based treatment. Specifically, thank you to Sr. V.P. Sally Friedman for commenting on this Article and Sr. V.P. of Policy Advocacy Tracie M. Gardner for elevating my work. Special thank you to addiction medicine doctors Drs. Fred Rottnek and Ayana Jordan for answering questions about clinical care for persons in withdrawal and commenting on this Article—but more importantly, for providing compassionate and dignity-affirming care for people with substance use disorders. Thank you to Prof. Patricia Perkins (former prison litigator), who patiently explained the complex interworking of prisoner litigation; Prof. Howard Wasserman for his critical and instructive feedback on various drafts; Prof. Shelly Weizmann for introducing me to this work and her efforts in drafting model laws, writing white papers, and advocating in this space; Prof. Jenny Carroll for the critical brainstorming session; Dr. Jennifer J. Carroll for critically analyzing my word usage— my articles are always so much more thoughtful and inclusive after your critical gaze. Thank you to Prof. Katelyn Golsby and Cameron Moody for assistance with research for this Article.
Thank you to FIU’s Faculty Development workshop attendees for their feedback on this Article, including Profs. Ediberto Roman, Jan Osei-Tutu, Hannibal Travis, Manuel Gomez, Amber Polk, Alex Erwin, and Kerri Stone. Thank you to Prof. Maybell Romero for inviting me to present this Article at Tulane Law’s Gordan Gamm Comparative Law & Justice Symposium, The Politics of Local Criminal Justice, and symposium participants for their feedback (Profs. Paul Gowder, Bennett Capers, Valena Beety, Steven Chien, Cynthia Godsoe, Pamela Metzger, Ronald Wright, and Carrissa Hessick). Thank you to Profs. Sidney Watson for comments on later drafts.
Dr. El-Sabawi is supported by the National Institutes of Health, National Institute of Drug Abuse, Award No. 1K01DA057414-01A1.
