Background
Incarceration, Drug Use, and HIV in New York State
With nearly 63,000 prisoners in 69 facilities, New York State operates the nation's fourth-largest prison system. An estimated 11,936 New York State prisoners are incarcerated for drug-related offenses.[2] The majority of individuals sent to prison for committing drug crimes have never been convicted of a violent offense and 40 percent are in prison for possession, rather than sale, of illicit drugs. [3] Many more are in prison for committing property crimes often related to supporting a habit of drug use.[4]
According to New York State's Department of Correctional Services (DOCS), more than 80 percent of prisoners are in need of substance abuse treatment, including a significant number of people who use heroin.[5] A 2007 DOCS study found, for example, that 83 percent of prisoners were "identified substance abusers" in need of treatment services (49,326 men and 2,422 women). Of 36,000 prisoners who identified a "primary" drug used, 10 percent were heroin users.[6]
The HIV prevalence in state and federal prisons is two and a half times higher than in the general population. [7] New York has higher numbers of HIV-positive prisoners than most states, far exceeding the national average for prisoners living with HIV. In 2005, the last year statistics were released, 3.9 percent of New York State prisoners – 4,400 individuals – were living with HIV or AIDS, compared to 1.9 percent among prisoners nationwide. Approximately 20 percent of all prisoners living with HIV in the United States are in New York State prisons.[8]
Hepatitis C rates among New York State prisoners are even higher. 10 percent of male and 20 percent of female prisoners in New York have hepatitis C, many times the national average of 1-2 percent of the population.[9] Many prisoners are co-infected with HIV and hepatitis C. [10]
The prevalence of HIV, hepatitis C, and drug dependence among New York State prisoners is linked to New York's harsh anti-drug laws. Known as the Rockefeller Drug Laws, New York's mandatory minimum sentencing laws are among the most punitive in the United States, consigning thousands of drug users to prison. Prison sentences are required for even minor offenses; judges lack the authority to impose alternatives to incarceration such as community-based sanctions or substance abuse treatment.[11] Amendments in 2004 and 2005 modified the sentence structure and provided some relief for non-violent offenders, but mandatory minimum sentences remain the norm and significant barriers remain to placing drug users in treatment rather than prison.[12]
Incarceration of injection drug users contributes to higher rates of HIV, hepatitis B and hepatitis C among prisoners than in the general population.[13] Sharing of needles among injection drug users is a major source of HIV and hepatitis C transmission. In the United States, 22 percent of people living with HIV contracted the disease through injection drug use.[14] The majority of people living with hepatitis C (54 percent) contracted the disease through injection drug use.[15] In New York State, a 2005 screening of entering prisoners for HIV and hepatitis C showed that 11 percent of entering prisoners found to have HIV and 45 percent of those found to have hepatitis C had a history of injection drug use.[16]
While most prisoners living with HIV contract their infection prior to incarceration, the risk of being infected in prison, particularly through sharing injection equipment or through unprotected sex, is significant. Studies show that many prisoners continue injection while incarcerated, often sharing syringes, thus risking HIV and other diseases. [17] As the World Health Organization reports:
Studies from around the world show that many prisoners have a history of problematic drug use and that drug use, including injecting drug use, occurs in prison. Outbreaks of HIV infection have occurred in a number of prison systems, demonstrating how rapidly HIV can spread in prison unless effective action is taken to prevent transmission.[18]
Medication-Assisted Treatment for Opioid Dependence in Prisons and Pre-Trial Detention
"The only time I've had my life together was when I was on methadone. I lived for a year in Florida with my daughter, and worked as a cocktail waitress. It's the only time I ever did my life right. It was my only happy time. For me, it's either methadone or a needle."
–Susan R., Rikers Island Correctional Facility.[19]
Medication-Assisted Therapy (MAT) for opioid dependence, for example with methadone or buprenorphine, prevents opioid withdrawal, decreases opiate craving, and diminishes the effects of illicit opioids. Often called "opioid substitution therapy," MAT is one of the most effective and best-researched treatments for opioid dependence. Once a patient is stabilized on an adequate dose, he or she can function normally.[20]
The World Health Organization (WHO), the United Nations Office on Drugs and Crime (UNODC) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have each supported the expansion of MAT because it is an evidence-based therapy that has proven effective for HIV and hepatitis C prevention, as well as reducing illicit opioid use and deaths due to overdose, improving uptake and adherence to antiretroviral treatment for HIV-positive drug users, and is cost-effective to society.[21]
In 2005, the WHO added buprenorphine and methadone to the list of essential medicines and in 2006, together with UNODC and UNAIDS, recommended that governments ensure access to MAT free of charge to opioid-dependent prisoners where it is available outside of prison, and that where no MAT is available in the outside community, "prison authorities add their voice to lobby for changes in policy to make such treatment nationally available, including within prisons."[22]
Upon incarceration, many opioid-dependent people are forced to undergo abrupt opioid withdrawal (both from legally prescribed therapy, such as with methadone, as well as from illicit opioids). Forced or abrupt opioid withdrawal can cause profound mental and physical symptoms (including severe abdominal cramping, nausea, diarrhea, anxiety, and convulsions), and can have serious medical consequences for pregnant women and their fetuses, immunocompromised people, and people suffering from both mental health and medical disorders. [23] Indeed, the US Department of Health and Human Services has recognized that the trauma of imprisonment, coupled with sudden, severe opioid withdrawal, can endanger mental and physical health, including by increasing the risk of suicide in opioid-dependent individuals with co-occurring disorders.[24]
There is evidence that MAT programs are feasible in a wide range of prison settings, and that prison-based MAT programs are effective in reducing frequency of drug use, mortality from overdose, and recidivism and reincarceration. [25] MAT also facilitates entry into and retention in post-release treatment; reduces drug-seeking behavior; and has a positive effect on institutional behavior and therefore prison safety.[26] MAT is cost-effective. For example, an Australian study showed that the program paid for itself when prisoners leaving the system avoided just 20 days of incarceration. [27]
The number of prison systems providing MAT has increased steadily since the early 1990s, and there are now many models for providing MAT in the New York State prisons. At this writing, prisons in at least thirty-three countries, including Spain, Brazil, Canada, New Zealand, the Czech Republic, Albania, and the United States (Puerto Rico)have successfully implemented methadone maintenance programs. Large urban jails in the United States, including in Albequerque, New Mexico (see highlight box); Orange County, Florida; Rikers Island Jail in New York City and jails in three counties in Pennsylvania, are successfully implementing methadone maintenance for prisoners who were on methadone before their arrest.[28] Buprenorphine, a partial opiate agonist that can be prescribed by primary care physicians without the more complex licensing requirements of methadone, is currently provided prior to or post-release in correctional facilities in Connecticut, Maryland, Rhode Island, New York City and in Tompkins County, New York. [29]
[2] Testimony of Brian Fischer, Commissioner of the Department of Correctional Services, before Joint Legislative Fiscal Committees, January 27, 2009, http://www.docs.state.ny.us/commissioner/testimony/09budget/html (accessed February 19, 2009). In January 2008, 24 percent of male and 33 percent of female prisoners were incarcerated for drug-related offenses. Department of Correctional Services (DOCS), "Hub System: Profile of Inmate Population Under Custody on January 1, 2008," http://www.docs.ny.st.us/research/reports/2008/Hub_report_2008.pdf (accessed February 19, 2009). These and other statistical reports relating to the New York State Department of Correctional Services may be found at http://www.docs.state.ny.us/research/research.html (accessed February 19, 2009). In the US, the national average of prisoners incarcerated for drug-related crimes is 20 percent. See US Department of Justice, Bureau of Justice Statistics Prison Statistics, http://www.ojp.usdoj.gov/bjs/prisons.htm (accessed September 29, 2008).
[3]DOCSHub System Profile; "New York State Assembly Committee on Codes, Joint Public Hearing re: the Rockefeller Drug Laws," April 2008, p. 1.
[4] See, e.g. US Department of Justice, Bureau of Justice Statistics, Drug Use and Dependence, State and Federal Prisoners, 2004, p.1.
[5]Department of Correctional Services, "Identified Substance Abusers," 2007, indicates that 83 percent of prisoners need substance abuse services; Department of Correctional Services, "Targeted Programs: An Analysis of the Impact of Prison Program Participation on Community Success," 2007, indicates that 85 percent of prisoners need substance abuse programming. DOCS determines that scores above 5 on the Michigan Alcohol Screening Test (MAST) and above 4 on the Simple Screening Instrument (SSI) are indicative of alcohol and drug "abuse" that necessitates treatment services.
[6] DOCS, "Identified Substance Abusers," p.2- 5.
[7] US Bureau of Justice Statistics, "HIV/AIDS Cases Among State and Federal Inmates," September 2007; according to National Minority AIDS Council, "African-Americans, Health Disparities and HIV/AIDS: 2006 Report," p. 8, 51 of every 10,000 inmates is HIV positive, compared to 15 of every 100,000 non-incarcerated persons.
[8] Wang, et al., "HIV Prevalence Trends by HIV Testing History, Injection Drug Use and Sexual Risk Behaviors among Inmates Entering New York State Correctional Facilities from 1988 to 2005," 2008 (abstract presented at the 15th Conference on Retroviruses and Opportunistic Infections ); Smith, L.., "HIV and AIDS Epidemiology in New York State: Trends in Incarcerated Persons," New York State Department of Health, 2007 (powerpoint on file with Human Rights Watch.)
[9] Wang, et al., "HIV Prevalence Trends."
[10] A 2005 study showed that 40 percent of inmates testing positive for HIV were co-infected with hepatitis C.. Wang, et. al., "HIV Prevalence Trends."
[11] New York Penal Law, Controlled Substance Offenses, Art. 220; New York Penal Law Sec. 70.00, Sentence of Imprisonment for Felony. Human Rights Watch has documented the severe impact of the Rockefeller Drug Laws on drug users, their families and their communities. See Human Rights Watch, US – Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2(B), March 1997, http://www.hrw.org/legacy/reports/1997/usny/; Human Rights Watch, Collateral Casualties: Children of Incarcerated Drug Offenders in New York, vol. 13, no. 3(G), June 2002, http://www.hrw.org/legacy/reports/2002/usany/. For a recent examination of the disproportionate incarceration of minority communities under the Rockefeller and similar US drug laws, see Human Rights Watch, Targeting Blacks: Drug Law Enforcement and Race in the United States, May 2008, http://hrw.org/reports/2008/us0508/index.htm.
[12] The Drug Law Reform Acts of 2004 and 2005 modified the sentence structure by giving some individuals in prison for Class A-I and A-II felonies the opportunity to seek reduction in their sentences. Mandatory minimum sentences and limited judicial discretion however, continue to limit implementation of alternatives to incarceration for drug users. See Testimony of the New York City Bar Association on the Rockefeller Drug Laws before the New York State Assembly Committees on Codes, Judiciary, Correction, et.al., May 8, 2008; Testimony of the Legal Aid Society of New York on the Rockefeller Drug Laws before the New York State Assembly Committees on Codes, Judiciary, and Correction, et.al., May 8, 2008. The New York State Commission on Sentencing Reform recently endorsed additional modifications of the drug laws. See New York State Commission on Sentencing Reform, "The Future of Sentencing in New York State: Recommendations for Reform," January 30, 2009.
[13] C. Weinbaum et al., "Hepatitis B, hepatitis C, and HIV in Correctional Populations: a Review of Epidemiology and Prevention," AIDS, vol. 19(3), October 2005, p. 41; US Centers for Disease Control, MMWR, "Prevention and Control of Infections with hepatitis Viruses in Correctional Settings," January 2003; UNODC, HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for Effective National Response,2006.
[14] Centers for Disease Control, "HIV/AIDS in the United States," http://www.cdc.gov/hiv/topics/surveillance/united_states.htm (accessed December 8, 2008).
[15] Centers for Disease Control and Prevention, "Surveillance for Acute Viral Hepatitis, United States, 2006," Surveillance Summaries, MMWR, vol. 57, 2008.
[16] Wang, et al., "HIV Prevalence Trends."
[17] See for example, R. Jurgens and G. Betteridge, "Prisoners who inject drugs," Health and Human Rights: vol. 8 (2005); R. Douglas Bruce and Rebecca A. Schleifer, "Ethical and human rights imperatives to ensure medication-assisted treatment for opioid dependence in prisons and pre-trial detention," The International Journal of Drug Policy (2008), vol. 19, no. 1, p. 19 (citing studies).
[18] WHO/UNODC/UNAIDS, Evidence for Action Technical Papers, "Interventions to Address HIV in Prisons: Needle and Syringe Programmes and Decontamination Strategies," 2007, p. 5.
[19] Human Rights Watch interview with Susan R. at Rikers Island Correctional Facility, Rikers Island, New York, July 11, 2008.
[20] WHO, "Substitution maintenance therapy in the management of opioid dependence and HIV/AIDS prevention," (Position Paper Geneva 2004), p.13. See also, e.g., NIDA, "Principles of Drug Abuse Treatment," principle 12; National Association of State Alcohol and Drug Abuse Directors (NASADAD) Issue Brief, "Methadone Maintenance and the Criminal Justice System," April 2006; New York State Office of Alcohol and Substance Abuse Treatment Services, "Managing Addiction as a Chronic Disease," Addiction Medicine Educational Series, 2008, http://www.oasas.state.ny.us/AdMed/edseries.cfm (accessed January 12, 2009).
[21] WHO/UNAIDS/UNODC, "Substitution maintenance therapy," p. 13.
[22]United Nations Office on Drugs and Crime (UNODC)., HIV/AIDS prevention, care, treatment and support in prison settings. A framework for an effective national response, (Vienna 2006), p. 26.
[23] K. Fiscella, et al., "Management of opiate detoxification in jails,"Journal of Addictive Diseases, 24, 61–71 (2005).
[24] USHHSA, SAMSHA, "Detoxification and Substance Abuse Treatment," Treatment Improvement Protocol (TIP) 45 (2006). See also, K. Fiscella, et al., "Alcohol and Opiate Withdrawal in US jails," American Journal of Public Health 94:9, 1522-24 (2004).
[25] R. Jurgens, et.al., "Interventions to reduce HIV transmission related to injecting drug use in prison", Lancet Infectious Diseases, 9: 57-66 (2009).
[26] R. Chandler, et al., "Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety," JAMA, 2009: 301(2): 183-190.
[27] E. Warren and R. Viney, "An Economic Evaluation of the Prison Methadone Program in New South Wales," Centre for Health Economics Research and Evaluation, January 2004.
[28] For a description of countries with prison methadone programs, see International Harm Reduction Association, "Global State of Harm Reduction 2008: Mapping the Response to Drug-Related HIV and Hepatitis C Epidemics," August 2008; and R. Jurgens, "HIV/AIDS in prisons: a select annotated bibliography," Health Canada website, November 2005, http://www.hc-sc.gc.ca/ahc-asc/pubs/int-aids-sida/hiv-vih-aids-sida-prison-carceral-eng.php (accessed January 22, 2009). For an overview and updated information about medication-assisted therapy programs in correctional settings in the US, see "Medication-Assisted Therapy Law Enforcement Bulletin, a project of the US Substance Abuse and Mental Health Services Administration (SAMHSA)," http://csat.samhsa.gov/publications/law.aspx#info (accessed January 15, 2009).
[29] Human Rights Watch interview with John Bezirganian, M.D., Medical Director of the Tompkins County Mental Health Center and Medical Officer for the Tompkins County Jail, Ithaca, New York, May 28, 2008. For a description of the methadone and buprenorphine programs in the Rhode Island correctional system, see "Heroin in the Corrections System," a special issue of Medicine and Health Rhode Island, vol.90(5),May 2007. For information relating to the Connecticut buprenorphine in prison program, see "Enhancing Linkages to HIV Primary Care and Services in Jail Settings Initiative," Yale University AIDS Program, 2007, http://hab.hrsa.gov/special/bup_index.htm (accessed January 16, 2009).