Emory Law Journal


About eighty percent of all inmates in the United States need but will not receive treatment for their Opioid Use Disorder (OUD). Instead, they will leave prison with a 140 times greater chance of a fatal overdose than before their prison sentence. Although incarceration is conceivably an opportune time for the state to connect individuals with treatment, only about one percent of prisons and jails allow the use of Medication-Assisted Treatment (MAT). This failure has a myriad of causes. Notably, beliefs that OUD is a moral failure and that MAT either does not work or is dangerous are both among the most salient and most dubious justifications for withholding treatment. Inmates instead undergo forced withdrawal, a form of cruel and unusual punishment under the Eighth Amendment.

Worse yet, regardless of whether an individual receives MAT in prison, facilities overwhelmingly lack reentry procedures that connect former inmates with MAT programs in the community. Because even one day without MAT can propel an individual with OUD into relapse and a fatal overdose, post-release treatment is crucial. Prison policies directly impact inmates’ tolerance and likelihood of overdose upon release. Accordingly, this Comment argues that MAT, both in jail and post-release, is within the purview of the Eighth Amendment.

This Comment focuses on Pesce v. Coppinger to illustrate the shortcomings of the Eighth Amendment jurisprudence, which have left a large subset of the population without treatment for OUD and do nothing to address post-release overdose rates directly linked to the state. Although some plaintiffs have successfully obtained MAT on Eighth Amendment grounds, the current jurisprudence is insufficient to effectuate inmates’ right to treatment, both during and after incarceration.

To fully effectuate the Eighth Amendment right to be free from cruel and unusual punishment, this Comment argues that changes are needed in the current jurisprudence to recognize the State’s carceral bargain and a corresponding expanded definition of “punishment.” Coupled with a harm reduction argument, these two changes fully recognize inmates’ right to MAT and society’s evolving standard of decency.

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