The opioid epidemic has gripped communities for more than 20 years. From 1999 to 2022, nearly 722,000 people died from an overdose involving prescription and illicit opioids. Litigation has dramatically changed the substance-use disorder policy landscape and, today, more than $50 billion in opioid settlements from pharmaceutical companies, distributors, pharmacies, consultants, and others are hitting state and local coffers. This creates an unprecedented opportunity to invest in substance-use disorder care that saves lives.

Importantly, a separate wave of litigation is reshaping the way jails and prisons care for incarcerated people with opioid-use disorder. These lawsuits seek to require jails and prisons to provide medications for opioid-use disorder (MOUD) to all people for whom it is medically appropriate.

The data is clear: MOUD saves lives. Treatment of opioid-use disorder with methadone and buprenorphine — two of the three FDA-approved MOUDs — is associated with a 50 percent decrease in mortality.

People in jails and prisons experience opioid-use disorder at far higher rates than the general population, making MOUD during and immediately after incarceration essential. The time period immediately after being released from incarceration is an extremely dangerous time for those addicted to substances, especially for those who have been denied MOUD during incarceration. Recently incarcerated people who did not have access to MOUD in jail or prison are dozens of times more likely than the general population to die of an overdose in the weeks following release. For those recently released from jail or prison, access to MOUD was associated with a 75 percent decrease in mortality and an 85 percent decrease in overdose deaths in the month following release.

Denial of MOUD access for incarcerated people is not just wrong—it is also illegal. With court victories in Massachusetts, Maine, New York, and West Virginia, as well as settlements and other positive resolutions in Arizona, Washington, Kansas, Illinois, and New Mexico, the legal groundwork is shifting toward requiring access to this life-saving care. In 2022, the U.S. Department of Justice (DOJ) released guidance re-affirming that denial of MOUD can amount to a violation of the Americans with Disabilities Act (ADA), and the DOJ has settled several cases requiring jail and prison facilities to provide access to MOUD.

Many of the legal cases on this topic thus far have sought to change policies and practices to require the jail or prison to provide MOUD; generally these lawsuits do not yet seek monetary damages for failure to provide care. That too is changing. Recent lawsuits in West Virginia, Maine, and New York have brought damages claims against jails and prisons that have failed to provide adequate care. If these cases succeed, jails and prisons that fail to provide MOUD risk not only a time-consuming and expensive lawsuit, but also the possibility of owing large amounts for the pain, suffering, and even the wrongful death of people in their custody who were denied adequate medical care.

A strong policy push at the federal, state, and local levels to expand access to MOUD for incarcerated people has made a big difference. The Joe Biden administration launched the Medicaid Reentry Section 1115 Demonstration Opportunity, allowing states to apply to receive federal Medicaid matching funds for certain pre-release services — including MOUD — in the last 90 days of incarceration. The Bureau of Justice Assistance has funded expansion of MOUD services in jails and the federal Bureau of Prisons is in the process of launching MOUD programs in all of its facilities. Sixteen states now require access to MOUD in jails, prisons, or both.

Today, 22.1 percent of jails provide buprenorphine maintenance care to people who were already on buprenorphine in the community, and 16 percent of jails provide methadone maintenance to people already on methadone. While these numbers represent real progress from the handful of jails providing MOUD just a few years ago, there is so much more work to be done. Many people in jail or prison have an opioid-use disorder but were not able to access MOUD in their communities. Jails and prisons must provide those people, too, with clinically-appropriate MOUD care.

While litigation has been an important tool to make policy change and expand MOUD access in jails and prisons, litigating in each and every jurisdiction in the country would take many years. Opioid settlement dollars can expedite this process and help to enact policy change and provide MOUD in jails and prisons now. With more than $50 billion of settlement dollars starting to go to states and other local jurisdictions over the next two decades, localities should use some of their settlement dollars to establish MOUD programs in their state prisons and local jails to save countless lives.

Investment in this critical care is a vital step toward not only improving the lives of the incarcerated, but also to providing medically-necessary support for people with opioid use disorder long after prison. Studies show that MOUD not only saves lives, but also reduces recidivism. To continue this positive trend, recently incarcerated people with opioid-use disorder need places in the community to go to receive treatment. They need probation and parole departments, and housing providers, that don’t illegally discriminate against them for their use of MOUD.

Importantly, people who aren’t ready for treatment still need, and deserve, life-saving harm reduction services. Communities must think expansively and comprehensively about investing the $50 billion in opioid settlement money across the continuum of care and services — including in harm reduction, workforce development, community treatment, and MOUD in jails and prisons — to establish sustainable, widespread, and meaningful access to lifesaving care and treatment.

President-elect Donald Trump has made mass detention of immigrant communities a central part of his political platform. Trump’s cabinet nominees are reportedly laying the groundwork to expand detention capacity in cities around the country. The Trump administration's proposed plans include making detention mandatory, which would trap immigrants in abusive, inhumane conditions for years as they fight deportation.

Immigration detention, or civil detention for those awaiting a determination of their immigration status or deportation, must be limited. Right now President Joe Biden can act to limit mass detention of immigrants by closing Immigration and Customs Enforcement (ICE) detention facilities with egregious records of human rights violations and abuses and halt further detention expansion.

During the last Trump presidency, ICE opened more than 40 new detention facilities, with the vast majority owned or operated by private prison corporations, whose business model depends on locking up more people and are ultimately accountable to their bottom line.

Earlier this summer, President Biden directed ICE to issue Requests for Information (RFIs) and contract solicitations to identify new detention facilities to allow for a possible expansion of immigration detention across the country. These RFIs and contract solicitation indicated that ICE is considering expanding detention in at least 17 states.

Right now ICE detains approximately 37,000 people each day. These numbers exceed its annual budget and congressionally-approved detention levels. Efforts to expand the mass detention machine would lay the groundwork for future administrations to continue to abuse its detention powers, especially with the support of the next Trump administration.

Immigration detention has become another system of mass incarceration for Black and Brown people in the United States. It is also often inhumane. Congress, government oversight agencies, the media, and advocacy groups have documented widespread abuse in immigration detention centers, including use of force, sexual assault, and solitary confinement. In the past four years alone, at least 43 people have died in ICE custody. A recent ACLU study showed that 95 percent of deaths in ICE custody were likely preventable had ICE provided adequate medical and mental health care.

These abusive conditions come at an immense cost to taxpayers, while lining the pockets of private prison corporations. Nearly 90 percent of people in ICE detention are held in facilities owned or operated by private prison companies. In 2022, the GEO Group made $1.05 billion in revenue from ICE contracts alone. President Trump intends to continue funneling money to these private corporations. His proposed immigration policies are by far crueler, more extreme, and more fundamentally damaging to core rights and freedoms than any in living memory, including his own 2017-21 policies. Mass raids and deportations, detention camps, and other extreme measures create terror in our communities and do nothing to make our immigration system function more effectively.

The ACLU is calling on President Biden to close detention facilities and halt ICE’s current detention expansion plans. These steps are vital to protect communities from the planned enforcement agenda of the incoming administration. They are also vital to saving lives and preventing abuses against people in ICE custody, often committed by for-profit prison companies. ICE should also immediately rescind all outstanding requests for information or proposals for detention expansion.

“Immigration detention is cruel, unnecessary, and risky. President Biden must act now to do all that he can now to prevent full-scale attacks against vulnerable immigrant communities.” -- Eunice Cho, senior staff attorney, ACLU National Prison Project

President Biden can stop the expansion of immigration detention facilities and close abusive detention facilities once and for all. Urge him to do so today.