Legal Obligations
Access to Drug Dependence Treatment in Prison
A significant number of New York state prisoners used illicit drugs prior to incarceration. Many of these people have developed drug dependence, a serious, chronic, and often relapsing disease as a result of their drug use.[30] Many prisoners continue to use drugs while incarcerated; some stop using, while others initiate drug use.[31]
As is the case with people affected by other diseases, persons dependent on drugs – including prisoners – have a right of access to medical care for their condition, both under international human rights law and US law. International law is clear that prisoners are entitled to health care services that are at least equivalent to those available in the general community, which should be available, accessible, acceptable and of good quality. New York state law requires that New York prisons provide "adequate health care and health services to all inmates in order to protect their physical and mental well-being."[32]
The International Covenant on Economic, Social and Cultural Rights (ICESCR), a treaty signed but not ratified by the United States, recognizes the "right of everyone to the highest attainable standard of health."[33] Under the ICESCR, states must take steps to ensure that health care services are available, accessible, acceptable and of good quality. [34] For drug users, the availability of drug dependence treatment is a key element of this right, as is the availability of harm reduction services.
Harm reduction programs attempt to minimize the harmful effects of drug use through pragmatic, evidence-based practices such as sterile syringe exchange and Medication-Assisted Therapy that are proven to reduce use of shared needles that can transmit blood-borne diseases such as HIV and hepatitis C. Thus, drug dependence treatment, both as medical care for illness and, in the case of Medication-Assisted Therapy for opioid dependence, as a harm reduction strategy, constitutes a fundamental element of the right to health for people who use drugs.[35]
The United States is a party to the International Covenant on Civil and Political Rights (ICCPR)[36], which guarantees to all persons the right to life, and to be free from cruel, inhuman or degrading treatment; and if deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person. Under the ICCPR, governments must provide "adequate medical care during detention." [37]
The United States is also a party to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[38], which protects all persons from torture and ill-treatment. Failure to provide medical care to prisoners may violate the Convention Against Torture. Article 16 of the CAT prohibits acts of cruel, inhuman or degrading treatment, and the Committee Against Torture has found that a failure to provide adequate prison medical care can violate article 16.[39]
The United States is party to UN drug control conventions obliging it to establish rehabilitation and social reintegration services for drug users according to international standards, and to make provisions for treatment systems.[40] The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment recently addressed the importance of ensuring that international drug control policy meaningfully protects the human rights of drug users. Noting that "drug users are particularly vulnerable when deprived of their liberty," the Special Rapporteur urged member states to ensure that detained drug users have access to medical treatment, including opioid substitution therapy such as methadone and buprenorphine. [41] The Special Rapporteur concluded:
…drug dependence should be treated like any other health-care condition. Consequently…denial of medical treatment and/or absence of access to medical care in custodial situations may constitute cruel, inhuman or degrading treatment or punishment and is therefore prohibited under international human rights law. [42]
United States law also protects prisoners' health, and legal standards related to drug dependence are evolving. (See highlight box) In the United States, prisons that exhibit "deliberate indifference to serious medical needs" may be liable for violations of the 8th Amendment prohibition of cruel and unusual punishment.[43] A lack of medical care is unconstitutional when it involves the "unnecessary and wanton infliction of pain."[44]
A Right to Medication-Assisted Therapy Under US Law
In the United States, withdrawal from drugs and alcohol in prison has been found to be a "serious medical need" that gives rise to an obligation to provide adequate medical care. [45] Courts in the US generally have not upheld the right of prisoners to methadone maintenance treatment, though relief has been granted in individual cases. [46] However, decades have passed since the majority of those cases were decided, and during these years significant advancements have been made in the scientific, medical and behavioral approaches to addiction as a disease. The American Psychiatric Association defines "substance dependence" as a "maladaptive pattern of substance use." [47] If physical or mental impairment results, a diagnosis under this definition can be the basis for a finding of disability, and entitlement to benefits, under the Social Security Act. [48] Similarly, drug addiction is a 'protected impairment' under the Americans with Disabilities Act. [49] Today, it is increasingly difficult to argue that clinically diagnosed addiction is not a "serious medical need" triggering a level of obligation under the 8th Amendment.
Methadone maintenance is now a therapeutic modality with a thirty-year track record and successful implementation in many prison systems. It is time to re-examine US legal approaches to the rights of drug dependent prisoners to evidence-based treatment for their condition.
As stated in one recent analysis:
"Courts facing inmate claims of cruel and unusual punishment for being denied methadone in prison must reexamine the case law in the light of modern conclusions about Methadone Maintenance Therapy. Courts are correct to be cautious with competing science, but they should not shy away from making decisions when presented with a consensus of medical specialists and scientists. Courts should not be afraid to step out of narrow methadone precedent and examine opioid dependence disorder in a new light, as a medical illness requiring MMT rather than a moralist debate." [50]
[30] While Human Rights Watch is aware that there is some debate among experts about how to characterize drug dependence, we follow the American Medical Association (AMA) and the US National Institute on Drug Abuse in using the term "disease." See American Medical Association, "Science of Addiction," Fact sheet, http://www.ama-assn.org/ama/pub/category/3337.html (accessed Januray 15, 2009).
[31] Drug use in prison is a reality worldwide. For an overview of rates of injection drug use in prisons around the world, see World Health Organization, Evidence for Action: Effectiveness of Interventions to Address HIV in Prisons , 2007; New South Wales Department of Corrective Services, "Addressing the Use of Drugs in Prison: Prevalence, Nature and Context," June 2003, details rates of cannabis, amphetamine and opiate use in Australian prisons; T. Feucht and A. Keyser, "Reducing Drug Use in Prisons: Pennsylvania's Approach," National Institute of Justice Journal, October 1999, details rates of cannabis, amphetamine and opiate use in Pennsylvania state prisons.
[32] 9 NY Code of Rules and Regulations (NYCRR), 7651.1.
[33] International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR (no. 16) at 49, UN Doc. A/ 6316 (1966), 99 UNTS 3, art. 11, entered into force January 3, 1976, signed by the US on October 5, 1977. As the US has not ratified the ICESCR it is not legally binding in total on the US, however as a signatory the US does undertake a number of legal obligations including, at a minimum, to take no action that would undermine the intent and purpose of the treaty. Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force January 27, 1980, article 18.
[34] UN Committee on Economic, Social and Cultural Rights, "Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights," General Comment No. 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/40d009901358b0e2c1256915005090be?Opendocument (accessed May 11, 2006). The Committee on Economic, Social and Cultural Rights is the UN body responsible for monitoring compliance with the ICESCR.
[35] For a detailed discussion of drug dependence treatment as a key component of the right to health, see Canadian HIV/AIDS Legal Network, "Dependent on Rights: Assessing Treatment of Drug Dependence from a Human Rights Perspective," July 2007. For a comprehensive analysis of the interpretation of the elements of availability, accessibility, acceptability and good quality in relation to drug dependence treatment and the right to health, see Human Rights Watch, Rehabilitation Required: Russia's Human Rights Obligation to Provide Evidence-Based Drug Dependence Treatment, vol. 19, no. 7(D), November 2007, www.hrw.org/en/node/10608/section/2.
[36] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UN T.S. 171, entered into force March 23, 1976, ratified by the US on June 8, 1992, arts. 6, 7, 10(1).
[37]Pinto v. Trinidad and Tobago (Communication No. 232/1987) Report of the Human Rights Committee, vol. 2, UN Doc A/45/40, p. 69.
[38] Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), adopted December 10, 1984, G.A. Res. 39/46, annex, 39 UN GAOR Supp. (no. 51) at 197,UN Doc. A/39/51 (1984) entered into force June 26, 1987, ratified by the US on October 14, 1994, article 16(1).
[39] United Nations Committee against Torture (CAT), "Concluding Observations: New Zealand," (1998) UN Doc. A/53/44, para. 175.
[40] United Nations Economic and Social Council (ECOSOC), "Single Convention on Narcotic Drugs of 1961, as amended by the 1972 Protocol amending the Single Convention on Narcotic Drugs, 1961," art. 38, http://www.incb.org/incb/convention_1961.html (accessed February 2, 2009); ECOSOC, "Convention on Psychotropic Substances of 1971," art. 20, http://www.incb.org/incb/convention_1971.html (accessed February 2, 2009); ECOSOC, "Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988," art. 3, http://www.incb.org/incb/convention_1988.html (accessed February 2, 2009).
[41] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, "Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development," A/HRC/10/44, January 14, 2009, p. 18.
[42] Ibid, p. 23.
[43]Estelle v Gamble, 429 US 97 (1976).
[44]Gregg v. Georgia, 428 US 153, 173 (1976).
[45]Kelley v. County of Wayne, 325 F.Supp.2d 788 (E.D. Mich. 2004).
[46] Cases denying a right to methadone treatment include: Fredericks v. Huggins, 711 F.2d 31 (4th Cir. 1983) and Inmates of Allegheny Jail v. Pierce, 612 F. 2d 754 (3d Cir, 1979). A claim for the right to continue methadone treatment was upheld in Cudnik v. Krieger, 392 F.Supp. 305 (N.D. Oh. 1974).
[47] American Psychiatric Association, Diagnostic and Statistical Manual-IV, 4th ed., text Revision 2000.
[48] 20 Code of Federal Regulations (CFR) 404, Subpart P, App. 1, 12.09.
[49] SeeReg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46-47 (2d Cir. 2002); Altman v. New York City Health and Hosp. Co., 903 F. Supp. 503, 508 (S.D.N.Y. 1995).
[50] R. Boucher, "The Case for Methadone Maintenance Treatment in Prisons," Vermont Law Review, vol. 27, 2003, p. 453, 482 .