As the Coronavirus pandemic continues to sweep through the country, especially in prisons and jails, the opioid epidemic has also seen a resurgence. The Washington Post reported that suspected overdoses jumped nationally by 18 percent in March, 29 percent in April, and 42 percent in May. This fits a nationwide pattern of excess deaths — deaths above the typical number anticipated by the CDC — unrelated to Coronavirus, such as the increased toll from heart attacks, strokes, and cancer, all as our medical infrastructure is pushed to its limits.

There has never been a more critical time to provide medication for addiction treatment (MAT) for people with opioid use disorder (OUD). MAT consists of three FDA approved medications — methadone, buprenorphine, and naltrexone — that treat OUD, the disease at the root of opioid addiction. MAT is basic healthcare and a cornerstone of care for tens of thousands of people in our communities who have OUD.

The need for MAT is particularly strong in jails and prisons: Without access to their medication, recently incarcerated people are left with few tools to battle their addiction. If provided with MAT, they are 74 percent less likely than people who are deprived of MAT to die of any cause while they are still incarcerated, and 85 percent less likely than people who are deprived of MAT to die of an overdose in the weeks after their release. Yet in the face of these stark numbers, 98 percent of jails and prisons still deny this lifesaving treatment to incarcerated people.

The small but growing number of prisons and jails that have implemented programs to provide MAT to incarcerated people with OUD have seen success. One study of the Rhode Island prison system, which was among the first to implement a robust MAT program, found that providing MAT reduced post-release deaths by 60 percent, and all opioid related deaths in the entire state by 12 percent. Sheriff Chris Donelan in Franklin County, MA reported a reduction in recidivism, overdose deaths, disciplinary concerns, and contraband after providing access to MAT.

In addition to saving lives, courts have found that providing MAT is a constitutional and civil right for incarcerated people. The Eighth Amendment to the U.S. Constitution bans “cruel and unusual punishment,” which the Supreme Court has interpreted as prohibiting “deliberate indifference to serious medical needs.” Further, the Americans with Disabilities Act (ADA) prohibits discrimination in public services, such as health care in jails, based upon a recognized disability, like OUD.

Last year, the First Circuit affirmed a ruling in the District of Maine under the ADA that a jail could not deny a woman serving a 40-day sentence access to the MAT prescribed to her by a doctor. This followed a decision by the District of Massachusetts that required a jail to provide an incarcerated individual with his prescribed MAT dose throughout his time in custody, holding that the denial of his medically necessary MAT was likely cruel and unusual punishment in violation of the Eighth Amendment as well as unlawful disability discrimination under the ADA.

As of July 22, more than 100,000 incarcerated people have been infected with COVID-19 and more than 760 have died. Even in the best of times, incarcerated people often receive substandard medical care, or no care at all. As COVID-19 cases make a resurgence in parts of the U.S. and continue to dramatically spike in jails, prisons, and detention facilities across the country, it has never been more important to provide evidence-based care for people with opioid use disorder in order to conserve hospital resources and save lives.

Our prisons and jails aren’t designed to be drug rehab centers, and we must stop using them as such. Keeping people out of jail in the first place by making sure that they have reliable access to MAT both inside jails and prisons, and when they are out in the community, will help stop the rampant spread of COVID-19 and reduce the burden on our medical system.

Further, as researchers have pointed out, the symptoms of opioid withdrawal and COVID-19 can overlap. Without access to MAT for OUD, there is an increased danger that prison officials will miss suspected cases of COVID-19, assuming that the symptoms exhibited are a result of opioid withdrawal, when in fact they are symptoms of COVID-19. This creates a danger that a positive COVID-19 case could be missed by a correctional facility, allowing a positive individual to spread the disease to others with whom they share close quarters. The answer to this problem should never be solitary confinement.

Denying incarcerated people access to MAT adds a strain on the American health care system, even in the best of times. Nearly one quarter of America’s prison and jail population of 2.2 million have OUD. During this crisis, it is even more imperative that people with OUD get access to the MAT they need. Instead of letting unlawful and scientifically unsound jail policies fill our hospital beds with people experiencing post-release overdoses, let’s provide MAT to incarcerated people and use our hospitals to fight the COVID-19 crisis at hand.

We’ve already seen the federal government take some positive steps once thought impossible. This includes letting MAT patients take home their buprenorphine for twenty-eight days in order to limit social contact while maintaining MAT treatment. While the federal Bureau of Prisons (BOP) has taken steps to expand access to MAT, the Department of Justice has supported recommendations from the Government Accountability Office aimed at making BOP improve the implementation of its MAT program so that it can serve everyone in need. It is time for Congress and state legislatures around the country to follow the lead of states like Rhode Island, and require MAT in all jails and prisons for everyone it is clinically appropriate for.

Joseph Longley, Equal Justice Works Fellow, ACLU's National Prison Project

In recent months, we have witnessed a historic wave of Black Lives Matter protests for racial justice — examining the racism in the criminal legal system and every other aspect of society, from education, to healthcare, to housing. A number of corporate leaders in the United States, Canada, and around the world have recognized the growing public anger at systemic racism and have made historic statements committing to change. We commend these statements — and also recognize how important it is that these words are backed up by action.
 
Take, for instance, Prem Watsa. Watsa is the CEO and chairman of Fairfax Financial and is often referred to as “Canada’s Warren Buffett.” Earlier this month, he joined as a co-chair of the “Canadian Council of Business Leaders Against Anti-Black Systemic Racism” and issued a statement that: “[t]he time for passing the buck is over. As business leaders in Canada, we have a responsibility to not only recognize that anti-Black systemic racism exists in this country but also take meaningful steps to end it.”
 
On Monday, Watsa spoke at the BlackNorth Initiative Summit where he and other Canadian business leaders committed to take substantive actions to end anti-Black systemic racism. Watsa’s leadership on this issue is important and should be celebrated. It also calls into question the business practices of Fairfax Financial, which is by far the largest insurer of the for-profit bail industry in the U.S.
 
The ACLU and Color Of Change have called on Watsa to immediately exit the predatory bail insurance industry in the United States, which disproportionately impacts communities of color, prolonging incarceration for those who cannot afford bail, and trapping others in cycles of debt.
 
Every day, hundreds of thousands of people sit trapped behind bars in the United States — innocent in the eyes of the law, yet incarcerated because they cannot afford bail. There is no path to ending mass incarceration in the United States without ending this current system of wealth-based, pretrial detention.
 
The U.S. is one of just two countries in the world where a for-profit bail system allows private corporations to be the arbiter of freedom, basing decisions on who to set free and who to detain on the ability to pay. This criminalizes poverty and reminds us that our “justice” system is more often designed with profit in mind. A 2017 report unmasked a small group of insurance companies — of which Fairfax Financial is by far the largest — that sit behind the thousands of storefront bail bond agencies, taking a cut of each bond.
 
But the tide is shifting. The recent divestment of three of the four largest companies backing the for-profit bail industry — Endeavour Capital, Tokio Marine, and Randall & Quilter — suggests that companies are starting to realize it is financially and politically untenable to stake their profits on the exploitation of people by the criminal legal system.
 
Fairfax continues to hold out, expanding its bail presence, and fighting reforms, even as the industry shrinks and becomes rightfully marginalized. The Canadian insurance conglomerate has become the largest backer of bail bonds in the U.S. Not only has it refused to divest from the predatory industry, it has expanded, stepping in to take the place of others that have made the responsible decision to exit. The website of Fairfax Financial’s US subsidiary features a “Fight Bail Reform” page, and Fairfax has spent hundreds of thousands of dollars to fight bail reform.
 
It’s companies like Fairfax Financial that are keeping the bail bonds industry alive in the United States, despite the fact that for-profit bail is not even legal in Canada and behavior that mimics it is met with harsh punishment. In Canada “selling bail bonds can earn you two years in prison on a charge equivalent to bribing a juror” and is considered an obstruction of justice. We’re calling on Fairfax Financial and its founder Prem Watsa to stop participating in this shrinking pariah of an industry.
 
The mass exodus from bail by most major financial actors comes after the industry has been repeatedly exposed for the ways it exploits Black and Brown communities, props up injustice, and often relies upon extortion, conspiracy, and other illegal practices in order to conduct its business. It comes after bail bond advertising was banned from Google and Facebook due to the industry’s role exploiting desperate families. And it comes as states and counties across the United States —  with the help of legislators, courts, and progressive prosecutors — are dramatically reducing or ending the use of money bail altogether. 
 
As important as Fairfax is to the U.S. bail industry, bail insurance represents a tiny part — 0.16 percent — of its overall insurance business. It could divest easily and quickly. Doing so would put Prem Watsa’s money where his mouth is.
 
We applaud Watsa’s commitment to taking meaningful action to end anti-Black systemic racism. He should begin by ensuring that his company halts its efforts to fight bail reform and exits the predatory bail insurance industry.

Udi Ofer, Director, Justice Division, ACLU National Political and Advocacy Department
& Scott Roberts, Senior Director of Criminal Justice Campaigns, Color of Change

For Black and Brown people, individuals with disabilities, and the LGBTQ community, any contact with the criminal legal system can be a life sentence of punishment. It is not just the precious time taken away from families and communities and turned over to a maze of arrests, convictions, or incarceration. That lifetime of punishment also includes the 48,000 systemic consequences triggered by those mechanisms, each of which creates nearly insurmountable barriers to housing, education, healthcare, family support, or other basic human needs.  Each year, approximately 5 million people are arrested in the United States, and between 70-100 million people have a criminal record. All of these people are routinely blocked from accessing stable housing, medical benefits, employment, financial support, food assistance, and even getting a driver’s license. And that was true before this country was overwhelmed by a global pandemic and the ensuing economic catastrophe.
 
The COVID-19 crisis has made people with criminal system contact more vulnerable by exacerbating these problems. The restrictions that already make reintegration to the community following incarceration difficult under regular circumstances create an impenetrable barrier to successful reintegration during a pandemic — a crisis that has created mass unemployment, a looming housing crisis, and stretched health care systems thin.
 
Despite what many have said, this pandemic and the generational harm it has exposed are not equal opportunity disasters. Because people of color, people with disabilities, and LGBTQ individuals are disproportionately targeted by the criminal legal system, they are also disproportionately and devastatingly impacted by underlying community frailty and systemic consequences. The longstanding exclusion of Black and Brown communities from quality and affordable health care, education, employment, and housing has been laid bare and worsened by the devastation that COVID-19 has unleashed on these communities. It is imperative to take immediate action to support people who have had criminal legal system contact, particularly those who are exiting detention facilities amidst the COVID-19 crisis with limited access to supportive services.
 
Consider the experience of a person leaving a jail or prison facility, or even a police station after their mug shot is shown to the public by the local media. Perhaps their health has worsened since they went to jail. They may have had a physically or mentally traumatic experience while in detention. This person, away from their family, the larger community, society, and certainly the job market, has had to learn to survive in a cage. Upon release, they may be given a few dollars and are forced to navigate a world that may look very different from what they remember.
 
In the midst of the COVID-19 pandemic and with the potential of a second surge of the virus in the fall, people leaving detention facilities are more vulnerable than ever. Given that most people exiting the criminal legal system have not had income for months or even years and are without a job, they must be able to access affordable and safe housing, food, mental, emotional and physical health care, and employment. Importantly, they will need a mentor or peer-to-peer support person who can help them successfully transition back into the community.
 
People leaving the criminal legal system also have to learn how to survive despite the thousands of restrictive laws, regulations, and other limitations applied to them. As a start, to address the harmful effects of this longstanding exclusion, state and local governments should offer people immediate access to transitional housing, health care, financial and food benefits, and other resources. This should include lifting restrictions on access to services based on an arrest, an open criminal case, or a criminal record. Additionally, every detention facility should collaborate with transitional services organizations, housing providers, and reentry organizations well in advance of a person’s expected release date. Funding should be directed to those community-based organizations specializing in reentry so that they can expand their efforts.
 
None of this is impossible. The lack of structural support that currently exists is the consequence of decades of deliberate decisions by policymakers and system actors, and society’s unwillingness to hold them accountable. It can be undone, and it must be. The criminal legal system exploits and exacerbates the gaps created in communities by generational divestment in local services and supports. In the long term, building or renewing our focus on filling those gaps is an absolute necessity if we are going to undo the harm the system has caused. In the immediate term, taking direct action to support people returning to the community through peer-to peer services, stable transitional housing, access to medical care, financial benefits, and food assistance is imperative. There are no perfect or quick solutions to these systemic challenges, but collective progress cannot wait.

Amreeta Mathai, Staff Attorney, ACLU's Racial Justice Program,
Dylan Hayre, Justice Division Campaign Strategist, ACLU,
Twyla Carter, Senior Staff Attorney, ACLU Criminal Law Reform Project