Question: I listened to the March RSAT webinar where the two Justice Department attorneys seemed to suggest my jail is violating the rights of inmates by not providing medication-assisted treatment, that includes methadone and buprenorphine, for inmates withdrawing from opioids. Has our jail administrator put us in legal jeopardy if inmates should die while withdrawing from opioids as they did in Cumberland County, New Jersey?
Answer: It depends on what you mean by “legal jeopardy” and what contact and role each person at the jail has in regard to an inmate who dies like those in New Jersey. What the webinar attorneys were describing was an action by the US Justice Department and US Attorney’s Office pursuant to a specific federal law, Civil Rights of Institutional Persons Act (42 USC §§ 1997a et seq.) that gives the US Attorney General the authority to launch investigations based on evidence of systemic violations of individuals’ rights in jails and prisons. The investigations can lead to the Department asking the jail or prison to change policies, practices and/or procedures. It does not involve developing civil or criminal culpability against any of the individuals who work in the jails or prisons investigated.
The attorneys did mention, however, that some of the families of the inmates who died sued for wrongful death. These suits are generally filed against the jail or prison, its medical provider, and specific employees alleged to have contributed to or failed to prevent the death. These too are civil suits, not criminal. Reviewing a number of these suits (see Klein, A. & Klein, J. Death Before Sentencing, 2022), it appears that often non-medical jail actors end up being dropped as defendants because they either had little direct involvement or they are covered by “qualified immunity.”
Cornell Law School Legal Information Institute defines “qualified immunity” revealing it “protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a ‘clearly established’ statutory or constitutional right. When determining whether a right was ‘clearly established,’ courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.”
Jail medical staff, however, may be in a different position than non-medical staff as expectations for their conduct when responding to an individual withdrawing from drugs or alcohol or in need of treatment is higher than that for a lay person. It appears from a review of these cases conducted by AHP, prison and jail drug withdrawal related wrongful death suits are most often settled, than tried by counties and their medical providers as both usually have insurance that covers most of the settlements.
So far, wrongful death suits charging the jail or prison for failure to keep contraband drugs away from persons known to suffer from OUD who overdose and die have not been successful. The courts have found culpability for the death to rest with the inmate who accessed the contraband drugs. These deaths are typically ruled to be “accidental.” However, if it can be shown that the inmate used the contraband drug intentionally to commit suicide, wrongful death suits may then focus on the jail or prison’s alleged failure to identify a suicidal person and take appropriate counter measures. These wrong death by suicide suits have proven more successful for plaintiffs.
In terms of criminal liability, that is generally limited to exceptional cases where a jail staff’s direct involvement was egregious, exhibiting deliberate indifference to the inmate’s well being if not worse as well as violating the jail or prison’s own policies. For example, last March, a jail supervisor who walked away from an inmate after he had hanged himself was convicted of criminally negligent homicide. The evidence included a jail video that showed the captain looking inside the person’s cell while he was hanging on a bedsheet before she walked away and left him alone for 15 minutes. She testified that she thought the inmate was faking his hanging. The jail’s official policy was that officers were to immediately cut down persons attempting to hang themselves. However, in another case, a judge found a jail nurse not guilty of the profound dehydration death of an inmate withdrawing from heroin. While the judge found that the nurse knew or should have known of the substantial risk of death the inmate’s condition presented, the nurse did not deviate from the typical standard of care. The nurse, the judge ruled, did not know the true extent of the inmate’s intoxication, and did try to assist by giving the inmate Gatorade. The judge concluded: “(The) nurse…and all the jail staff should have done things differently. But none of them perceived the risk of death here, even though everyone had similar medical training.” Charges, however, were not dismissed against the physician assistant.
The bigger worry employees should have in jails and prisons that do not provide medication-assisted treatment is the lethal risk it poses to persons incarcerated within them.