Interior of a prisonOver 20 million people reported having a substance use disorder in 2018, including alcohol use disorders and opioid use disorders. As the science continues to shift on best practices for substance use disorder treatment, there has been a huge push to increase access to treatment and recovery resources. These treatments include medication-based treatment, the use of FDA approved medication for opioid, tobacco and alcohol use disorders, often along with counseling and behavioral therapies. Given the effectiveness of medication-based treatment for opioid use disorder and the current rates of overdose deaths in the United States, the three medications for opioid use disorder (MOUD) are typically at the center of discussions, policy, and legislation regarding medication-based treatment.

Research has demonstrated that medication-based treatment, utilizing all three of the FDA approved drugs for opioid use disorder, is the gold standard of care for opioid use disorder and can lead to lower overdose and death rates. However, while policy changes, legislation, and funding have begun to support access to medication-based treatment in an increasing number of states and communities, access to MOUD in jails and prisons has not been a large part of the conversation and MOUD is offered in very few correctional facilities. Roughly 65% of the incarcerated population suffers from a substance use disorder, making them particularly vulnerable to complications or death from withdrawal while they are incarcerated, and particularly in need of evidence-based treatment. Incarcerated individuals with substance use disorder who do not receive treatment while in a correctional facility are one of the most at risk groups for opioid overdose, especially in the weeks following release.

In the past ten years, there has been a slow shift to embracing MOUD for incarcerated individuals. This shift has accelerated in the last several years after Rhode Island implemented MOUD (utilizing all three medications) for all individuals with an opioid use disorder in their correctional facility in 2016. The positive outcomes from the Rhode Island Department of Corrections have encouraged other facilities to begin embracing MOUD. While there has been movement in some states, there is a long road ahead to incorporating medications into the treatment toolkit in all correctional facilities, and there are many roadblocks to implementation, including stigma, funding, and lack of institutional support. State legislation requiring MOUD in prisons and jails helps break down barriers and gives support to correctional facilities, facilities that most likely would not have implemented MOUD without a mandate or litigation.

The 2020 legislative landscape included several bills in seventeen states relating to MOUD in correctional facilities. However, only four states, Colorado, New Hampshire, Oklahoma, and Wisconsin, passed and enacted legislation during the most reason legislative sessions. New Hampshire mandates MOUD in all county facilities and Colorado mandates MOUD in all prisons and jails, while Oklahoma and Wisconsin will begin pilot programs in a few facilities. Further, only New Hampshire requires all three opioid use disorder medications to be made available, while Colorado only requires one medication be offered. Although any increased access to MOUD can be categorized as a win for incarcerated individuals suffering from opioid use disorder, there is still work to be done to achieve the goal of providing all three opioid use disorder medications, that gold standard of care, in all correctional facilities.

There are still roughly fifteen bills pending in eleven states that could expand access to MOUD in jails and prisons. While this is a hopeful sign, that hope is tempered with the knowledge that, as with the enacted legislation, many of these bills are limited in scope and medications offered. Michigan’s legislation would only provide one medication, naltrexone. Naltrexone is sometimes chosen by policymakers because it is promoted as a long-acting “nonaddictive” medication by manufacturers in their marketing strategies. This use of language, “nonaddictive,” raises concerns that there are still states and facilities where stigma and outdated beliefs guide treatment decisions, instead of research and evidence. Offering all three medications is best as it allows the medical provider to utilize the medication they believe is most ideal for the individual patient.

Even more discouraging is the legislation that failed to pass in Florida, Mississippi, and Wisconsin during the most recent state sessions. The Wisconsin failure is balanced partially by the pilot program Wisconsin instituted, but the bill that died would have implemented MOUD into all jails and prisons, a much broader program than what is ultimately being implemented. Given all of the research that has shown how effective MOUD can be, and the examples of positive outcomes in various jails and prisons around the country, it is disheartening to see states that are failing to act, even in measured ways beginning with pilot programs or the use of one medication.

Even with failed legislation and limited wins, there are reasons to be cautiously optimistic that more and more states will see positive outcomes from other states and localities and embrace MOUD within their facilities, both because it is the right thing to do for incarcerated individuals and the communities they live in, and because these positive outcomes lead to reduced recidivism and crime. Discussions of opioid use disorder in jails and prisons should continue to be centered around MOUD, and work towards educating policymakers, reducing stigma around addiction, and shifting the culture regarding treatment.

Kristin D. Ewing is an Intern at the O’Neill Institute and a JD Candidate at Georgetown University Law Center.