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Is denying inmates their methadone illegal? A truly compelling lawsuit
By ROGER PARLOFF|September 24, 2018
Carol Rose, executive director of the ACLU of Massachusetts
ACLU of Massachusetts
Quick Takeaway
  • For two years Geoffrey Pesce has been in recovery from heroin addiction thanks to methadone.
  • Soon he will start serving 60 days in jail for driving with a suspended license.
  • The jail won't let him continue his methadone.
  • Does denying him his medication violate the Americans with Disability Act and/or the Eighth Amendment?

[Update at bottom.]

For two years Geoffrey Pesce has been in steady, courageous recovery from a nearly lethal heroin addiction. But state officials are poised to put an end to that, sending his life into a guaranteed nosedive. They might start as soon as this afternoon.

Pesce’s fate now hinges on the action or inaction of a federal judge in Boston. She is hearing a momentous lawsuit, brought by the ACLU of Massachusetts (led by Carol Rose, above), that seeks to force county officials to let Pesce continue his vital methadone treatments in jail, where he is slated to serve time for driving with a suspended license.

Here are the extremely disturbing facts.

About a decade ago, Pesce was having a drink with some friends when one of them suggested he try some oxycodone with them. Pesce, who is now 32, was then working as a machinist in Ipswich, an hour north of Boston.

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The drug quickly took over Pesce’s life, according to an affidavit he filed Wednesday in federal court.

“I sold everything I had,” he writes, “including my cars, my snowmobile, dirt bikes, jet skis and boat to pay for my habit. … When oxy got too expensive, I started using heroin because it was cheaper.”

He overdosed at least half a dozen times, the filing says. On several occasions paramedics sprayed Narcan (naloxone) into his nostrils to save his life.

After Pesce and his girlfriend had a son in 2013, he began seeking treatment.

“I tried to detox at least four times,” he recounts. “I would stay in a treatment center for a week and then go straight to my drug dealers as soon as I was released because my cravings had not gone away.”

He also tried two FDA-approved addiction-treatment medications: Suboxone (the most popular brand of buprenorphine) and naltrexone. Each left him feeling sick, though, and didn’t work for him.

In late 2016 Pesce overdosed three times in 48 hours. Fearing for his life, he sought help from a methadone clinic.

In late 2016 Pesce overdosed three times in 48 hours. That December, fearing for his life, Pesce sought help from the methadone clinic at the Lahey Behavioral Health Services facility in Danvers, Mass. (Methadone, in use as a heroin treatment drug since the 1940s, is the last of the three FDA-approved addiction medications.)

“Everything changed,” Pesce recounts.

“I generally hesitate to use phrases like ‘model patient,’” writes Pesce’s treating physician, Shorta Yuasa, in his own affidavit, “but in Geoffrey’s case it is entirely appropriate. With the assistance of methadone, Geoffrey has been able to control his symptoms for nearly two years.”

In recovery, Geoffrey was eventually able to move back in with his parents, who were amazed at his transformation.

“It has been incredible to see Geoffrey reconnect with his son. I had been afraid that would never happen.”

“I feel like we finally got our son back,” writes his father, Richard, in another affidavit. “[He] is back doing what he loves, working as a machinist, contributing to the finances of our household, and spending time with his son. It has been incredible to see Geoffrey reconnect with his son. I had been afraid that would never happen.”

What could mar this fairy-tale ending? A silver-tongued drug-dealer from the shadows? A villainous drinking buddy from the past?

No. The menace is a benighted policy still followed by most jails and prisons across the United States. And if U.S. District Judge Denise Casper of Boston doesn’t issue an order blocking state corrections officials from carrying it out, everything Pesce has achieved will soon unravel.

The reason why, according to Pesce’s filings, is almost unbearable to relate. But here it is.

For 19 months Pesce never missed his prescribed, daily dose of methadone. His parents would drive him to the clinic, because his license had been suspended. (Before he began taking methadone, Pesce had twice been convicted of driving while under the influence of drugs.)

But on July 19, a neighbor died suddenly, and Geoffrey’s mother was unavailable to drive him, according to Geoffrey and Richard’s affidavits. Fearful of missing even one day’s dose, Geoffrey drove himself to the clinic.

He drove 6 mph over the limit.

He was stopped. Booked on two charges: driving with a suspended license and violating probation with respect to one of the earlier DWUI cases. The first charge carries a mandatory minimum sentence of 60 days, while the second could lead to imposition of an originally suspended 60-day term. The terms would probably be served at the Essex County House of Detention in Middleton.

His sentencing on the first charge is scheduled for today, September 24, in Ipswich. His sentencing on the second is set for Wednesday, September 26, in Lynn.

Like all but two facilities in Massachusetts, HOD Middleton bars giving inmates any of the three FDA-approved drugs used for what is called medication-assisted treatment, or MAT.

This is so even though MAT is now overwhelmingly endorsed among addiction authorities as the safest and most effective way to treat opioid addiction. A raft of studies have shown that it improves retention in treatment, reduces criminal activity and infectious disease transmission, and cuts the risk of death by half or more.

But like most correctional institutions across the United States, most Massachusetts jails and prisons ban these drugs (except for pregnant inmates) as a security risk.

In part, they do so because two of the treatments—Suboxone and methadone—are themselves opioids. (When administered properly, though, they do not cause euphoria).

Suboxone, in particular, is a highly sought-after contraband drug in prisons—perhaps because so many inmates seek to self-medicate to quash their cravings. Since July, when a new Vermont law took effect permitting some inmates there to qualify for Suboxone treatment, 32 percent of that state’s prison population applied. In Maine, prison officials have said that a single dose of Suboxone—a strip of film that dissolves under the tongue—can sell for $400 to $500 on the prison black market.

Corrections officials assert that some inmates get high with Suboxone. (Though difficult, it’s possible.) In any case, they argue that the inmates’ desperate desire for the drug can lead to violence, extortion, and smuggling—which is doubtless true.

Last week, Pesce filed suit in federal court to try to force HOD Middleton to let him continue his methadone treatments at the Lahey clinic, which is four minutes away from the jail by car. Represented by a team of attorneys, including legal director Matt Siegel of the ACLU of Massachusetts and Ira Levy of the Goodwin Procter law firm, he argues that denying him medication-assisted treatment violates both the Americans with Disabilities Act and the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.

“Public officials should support people in their efforts to overcome opioid addiction, not obstruct them.”—Carol Rose

“Denying medication-assisted treatment to incarcerated people with opioid use disorder is both unsafe and unlawful,” said Carol Rose, executive director of the ACLU of Massachusetts, in a statement last week. “To someone with a life-threatening medical condition, treatment isn’t optional – it’s critical. Public officials should support people in their efforts to overcome opioid addiction, not obstruct them.”

In an emailed statement, defendant Essex County Sheriff Kevin Coppinger said his office does not comment on pending litigation. As of publication, he had not yet filed substantive responses to the ACLU suit.

Pesce’s case is actually the third of a trio of cases filed by local ACLU branches seeking to establish that jails and prisons may not lawfully deny inmates the medication-assisted treatment they were receiving at the time of incarceration. The other suits—one filed in Seattle, Wash., in June, and another, in Bangor, Maine, in July—involve individuals seeking to continue their buprenorphine treatment in custody.

From a judge’s perspective, the ADA claim might be the more appealing of the two, in that rulings based on statute are preferred over constitutional ones. That law bars discrimination on the basis of disability. Federal regulations define “drug abuse” as a disability, so the plaintiffs argue that by supplying inmates with medications for other diseases but not for opioid use disorder, corrections officials are violating that law.

Last March, the U.S. Attorney for Massachusetts, Andrew Lelling (a President Trump appointee), announced that he was investigating whether the state’s correctional facilities’ were violating the ADA by failing to provide MAT.  (Just last month Massachusetts passed a law that sets up a pilot program to offer inmates MAT at five county jails by September 2019. But Essex County, where Pesce will likely serve, is not among them.)

Lelling’s office also recently pursued an ADA claim against a nursing home in Norwood after it denied admission, in late 2017, to a patient who required buprenorphine treatment for opioid addiction. That action was settled in May, with the home paying a fine and adopting a nondiscrimination policy.

Pesce’s other legal claim, that suddenly yanking him off his 50mg-per-day methadone dose (at one point, 120mg per day) amounts to cruel and unusual punishment, is also weighty. It is based not just on the excruciating symptoms of withdrawal but on the longer term lethal risk to him from disrupting his recovery.

According to the affidavit of Pesce’s treating physician, Yuasa, who has served as medical director of Lahey treatment centers in Boston, Tewksbury, and Danvers, abrupt methadone detox can lead to “severe abdominal cramps, diarrhea, vomiting, tremors, body aches, chills, not flashes and insomnia,” while also triggering “anxiety, depression and, in some cases, suicidal thoughts.”

Like many detention facilities, HOC Middleton does administer a “withdrawal protocol” to patients undergoing withdrawal, which means that medical personnel provide “comfort medications” that are said to ease the process. In his affidavit, Yuasa contends that these “do little to stop opioid cravings,” leave patients vulnerable to relapse, and “are the equivalent of forcing patients to ‘white-knuckle’ their withdrawal.”

Still more frightening is what will happen to Pesce upon release. When addicted people are forcibly detoxed in custody, they lose their tolerance, but not their cravings. When they resume opioid use upon release, they face enormously increased risk for fatal overdose—and this was so even before drug dealers began lacing highly potent illicit fentanyl from China into the heroin sold on American streets.

“The opioid overdose death rate is 120 times higher for those recently released from incarceration compared to the rest of the adult population.”

A recent study by the Massachusetts Department of Health, cited by Pesce’s lawyers, found that the “opioid overdose death rate is 120 times higher for those recently released from incarceration compared to the rest of the adult population.”

Similarly, a study described in a JAMA-Psychiatry letter published in February found that a newly instituted MAT program in the Rhode Island prison system was able to slash overdose death among newly released inmates by 61 percent—a drop so dramatic that it was the key factor in reducing all overdose deaths statewide by 12.3 percent.

Even if Pesce does survive release, and does manage to return to treatment, “he will lose all the progress he has made over the last two years, and will be back to square one,” Yuasa writes.

On Wednesday, Pesce’s attorneys asked federal judge Casper in Boston to issue an temporary restraining order to prevent his incarceration from going forward before his claims could be heard.

As of this writing, early Monday morning, Judge Casper had declined to schedule such a hearing in hopes that the lawyers in the case could persuade state judges to postpone the sentencings.

It is unclear if the state district judge in Ipswich will go forward with the sentencing today. On Friday evening, a state district judge in Lynn rejected Pesce’s motion to postpone the sentencing set for Wednesday.

[On Monday, state judges in Ipswich and Lynn each agreed to postpone his sentencings—until January 14, 2019, and December 3, 2018, respectively. On Wednesday the lawyers for Pesce and the Essex County Sheriff will propose a schedule for briefing Pesce’s federal civil rights case.]