The American Civil Liberties Union reached out to Whatcom County officials about a year ago to encourage a change in jail policies to allow inmates with opioid use disorder access to medication assisted treatment.
After seeing no change, the ACLU's Washington chapter filed a federal civil rights lawsuit Wednesday against the Whatcom County Jail and the Whatcom County Sheriff’s Office, alleging they deny inmates access to medication to treat opioid addictions, essentially forcing them into detox once they’re booked, unless they're pregnant women.
The drugs at issue in the case are buprenorphine, also known as Suboxone or Subutex, and methadone. They work by inhibiting the opioid receptors in the brain, counteracting the euphoric effects and physiological cravings. Some in the criminal justice system suggest the drugs replace one addiction with another, according to the ACLU, or are worried about misuse within facilities.
Whatcom County Sheriff Bill Elfo said late Friday the sheriff's office has been developing a plan since March to provide medically-supervised Suboxone for roughly three to five days of detoxing for all inmates who report opioid use and are evaluated.
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Elfo said because there's a high possibility of misuse in the facility, those inmates using Suboxone to detox will be kept separate from other inmates during the process. He said the target date for the jail to begin administering the drug is July.
"The jail does not have sufficient space to separate and treat people experiencing withdrawal in the long term. Space limitations are anticipated to become more acute as major renovations occur," Elfo said. "We will continue to review advances in the availability of treatment options that reduce institutional concerns relating to the potential for drug sharing or assaults associated with inmates stealing drugs from each other. We will also be looking for community-based treatment options to refer people to after they are released from jail. The goal is to ensure adherence to best practices."
Elfo said all people booked into the jail are medically screened, and follow-ups are done by medical professionals for those who report medical conditions, including issues related to withdrawal. The medical staff then determine whether the inmates will be treated in the jail or hospital.
But the ACLU said the jail's policy of not providing access to treatment violates the Americans with Disabilities Act, because opioid use disorder is classified as a disability. It is also a recognized substance use disorder.
“Defendants’ policy and practice of denying medications to treat opioid use disorder to non-pregnant individuals is both dangerous and discriminatory,” according to the complaint filed in the case. "It singles out a particularly vulnerable group of disabled people, forces them to suffer unnecessarily from painful opioid withdrawal, and subjects them to an increased risk of relapse and overdose death."
The lawsuit and jail policies
In August of 2017, the ACLU reached out to the county and asked them to reconsider its jail policies regarding treatment for inmates who have an opioid addiction.
The ACLU’s letter noted in 2016, 253 people in the Whatcom County Jail self-reported abusing heroin or other opiates. They also provided information on a push forward in national policies that suggest people within criminal justice settings should have access to treatment medication.
After several email exchanges, the county stopped responding in late November, and has yet to change its policies, according to court records.
In 2017, at least 26 people in Whatcom County died from overdoses, mainly of a combination of methamphetamine and heroin, according to the medical examiner’s annual report. A year prior, there were 42,249 opioid overdose deaths in the United States, 709 of which were in Washington state, according to the Centers for Disease Control and Prevention.
The Whatcom County Jail’s medication policies are to provide services that “are clinically appropriate and provided in a timely, safe, and sufficient manner,” according to court records. Jail staff distribute medications to people with prescriptions, but inmates are also allowed to buy over-the-counter drugs from commissary.
Women who use opioids are given a pregnancy test and urine screening when booked. If the woman is pregnant and will soon go through withdrawal, the jail medical staff gives her Subutex, which can be administered in crushed form to prevent misuse.
The jail does not have a policy to provide treatment for those who are not pregnant but have an opioid dependency, according to the lawsuit. The jail’s opioid withdrawal policy states that inmates may be given "comfort medications" — an anti-diarrheal, an antihistamine and Tylenol, to ease the physical symptoms, as well as a jug of juice or water, records state.
The ACLU alleges the policy does more harm than good and puts those people already on a treatment plan on a trajectory for relapse. Because withdrawal leads to a decreased tolerance and cravings, and the disorder is often accompanied by changes in brain chemistry, people receiving treatment prior to incarceration who are forced to stop face an increased likelihood they will overdose and potentially die once released, the lawsuit states.
“Withdrawal alone is not a recognized form of treatment for (opioid use disorder). The standard of care is to continue (treatment) services," the lawsuit states. “There is substantial evidence and overwhelming consensus in the medical community that (medication assisted treatment) is an effective treatment option for (opioid use disorder and) is particularly effective at reducing the risk of overdose death, including for people leaving prison or jail.”
The lawsuit was brought on behalf of two inmates who were receiving medication assisted treatment before they went to jail and were forced to stop once booked, but the ACLU is seeking class-action status for all non-pregnant people incarcerated who have opioid use disorder. The lawsuit was filed in the U.S. District Court for the Western District of Washington, in Seattle.
Sheriff Elfo said Friday the county had not been served with the lawsuit yet, but the ACLU has 20 days to do so.
Elfo said for two decades, law enforcement has supported a wider array of community-based substance abuse treatment in the community. He said the 2019 opening of a new 32-bed crisis triage center for people suffering from mental health and substance use disorders will provide an alternative to taking people who use opioids to jail, and instead give them access to treatment.
"This is something that's been asked for for 20 years. I'm glad it's something that's finally on the horizon," Elfo said.
Treatment to withdrawal
Two of the people who went to jail and had their treatment discontinued were Sy Eubanks and Gabriel Timothy Kortlever. The ACLU filed the June 7 lawsuit on their behalf.
Eubanks, 46, of Bellingham, has detoxed in the jail many times, according to the lawsuit. At age 18, he was prescribed opioid painkillers after undergoing knee surgery to correct a high school wrestling injury. By his mid-20s, he was using heroin.
About a year and a half ago, Eubanks was prescribed Suboxone at Sea Mar Community Health Center as part of a medication assisted treatment program, according to court records. When Eubanks was booked into jail Sept. 14, 2017, he “knew that even if he informed staff of his prescription, he would not be given Suboxone,” the lawsuit states.
He said his more severe withdrawal symptoms of vomiting, diarrhea, lack of appetite, chills and body aches lasted about a month. He’s still irritable, anxious, depressed and “now has intense cravings for opioids, which feel like his blood is on fire - cravings he did not have while on Suboxone,” the records state. “The knowledge of how easy it is to relapse to opioids upon release has plagued Mr. Eubanks since he was forced to stop (treatment).”
In late May, he filed a grievance with the jail. The staff told him they may provide treatment medication in the future, but only for detox purposes. Eubanks filed for appeal May 30 relating to his grievance, the records state.
Eubanks has criminal convictions dating back to 1994 for negligent driving, refusal to cooperate with officers, harassment, second-degree theft, second-degree malicious mischief (property damage), first-degree robbery and drug possession. He was transferred Friday from the Whatcom County Jail to undergo 30 days of inpatient treatment at Pioneer Center North, according to court records.
Like Eubanks, Kortlever, 24, of Lynden, has been addicted to opioids since he was a teenager. At 16, he first used heroin to escape reality. Eventually he dropped out of high school, got fired from his job at a plant nursery and was brought up on criminal charges related to his addiction, the records state.
He was released in late August of last year, but was using heroin again by mid-October, records show. In March of this year, he decided to get clean and met with a doctor at Cascade Medical Advantage who prescribed Suboxone.
“He was surprised at how effectively the Suboxone eliminated his opioid cravings. With the help of Suboxone, he stopped using heroin and has not used it since. Mr. Kortlever is confident that he would stay off heroin if on Suboxone,” according to the lawsuit.
When he was booked April 20, Kortlever informed jail staff he was on Suboxone and had a prescription, but they told him it wasn’t allowed per jail policy. A few days later, he was offered “comfort medication.” While the most extreme symptoms lasted two weeks, lingering effects of sleeping troubles, fatigue, anxiety and depression remain. For him, withdrawing from Suboxone was worse than withdrawing from heroin, the lawsuit states.
Kortlever has criminal convictions dating back to 2014 for multiple drug possession charges, bail jumping, second-degree possession of stolen property, third-degree retail theft and residential burglary. He has three current pending cases in Whatcom County Superior Court and is facing a combination of drug possession, possession of stolen property, trafficking in stolen property and identity theft charges. He remains in the Whatcom County Jail.
Both Kortlever and Eubanks feel the Whatcom County Jail has derailed their recovery efforts and will make it harder to resume treatment once they’re released, the lawsuit alleges.