Justice Department Finds that Pennsylvania Courts Discriminated Against People with “Opioid Use Disorder”

The Disability Rights Section of the U.S. Department of Justice Civil Rights Division sent a letter to the Pennsylvania State Court System, advising them that following an investigation, several of their county court systems were found to have violated federal disability discrimination laws. I just happened to come across this and hadn’t seen it in the news anywhere. But this seems important. This has been happening in West Virginia for years, and no doubt is happening across the country.

The Justice Department found that the Unified Judicial System of Pennsylvania, through the actions of its component courts, violated the Americans with Disabilities Act (ADA) by prohibiting or limiting the use of disability-related medication to treat Opioid Use Disorder (OUD) by individuals under court supervision.

The Justice Department identified three specific individuals with OUD who had been discriminated against by the Northumberland and Jefferson County Courts of Common Pleas.  Two individuals alleged that the Jefferson County Court ordered all probationers to stop using their prescribed medication for OUD. A third individual alleged that the Northumberland County Court required her to stop using her prescribed OUD medication to graduate from drug court. The department’s investigation corroborated these allegations and additionally found evidence that multiple other county courts in Pennsylvania have treatment court policies that discriminate against individuals with OUD.

According to the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA): “OUD medication gives people the time and ability to make necessary life changes associated with long-term remission and recovery,” “minimizes cravings and withdrawal symptoms,” and “lets people better manage other aspects of their life, such as parenting, attending school, or working.” 

Methadone, naltrexone, and buprenorphine (including brand names Subutex and Suboxone) are medications approved by the Food and Drug Administration to treat OUD. According to the U.S. National Institute on Drug Abuse (NIDA), methadone and buprenorphine help diminish the effects of physical dependency on opioids, such as withdrawal symptoms and cravings, by activating the same opioid receptors in the brain targeted by prescription or illicit opioids without producing euphoria.

Here’s the full letter:

I have to wonder what other applications or consequences this may have going forward?

“To whom it may concern” letter detailing the fact that it is illegal under federal law to mandate COVID vaccines

Here is a “to whom it may concern” letter for those in West Virginia who are being threatened with, or subjected to, COVID vaccine mandates:

Thanks to Chris Wiest in Kentucky for the assistance in generating the substance of the letter.

New issues are presented on whether jail and prison inmates in (or from) West Virginia can/should be released due to COVID-19

We’ve been working hard in multiple cases to try to obtain the release of some non-violent jail and prison inmates who are currently stuck in their cells, having completed the bulk of their sentences for nonviolent offenses. Many of the facilities have stopped all academics and facility programming and just leaving people quarantined in their cells. (Update 4/30/20: Success! First one is out!)

Many of these same individuals have the ability to be self-sufficient in the outside world – even during this crises – rather than requiring prison staff to interact with them, feed them, and so on. Not to mention the requirement of we the taxpayers to fund the whole thing. Yet even with this global pandemic, West Virginia’s correctional facilities are still overcrowded, with more inmates incarcerated than there are “beds available.”

As of April 1, 2020, there were still 270 more prisoners incarcerated than available beds. Many of these prisoners, such as the ones we’ve been trying to help, are nonviolent offenders who’ve already served most of their sentence, who pose no real risk to public safety, and who could be assisting their own families at this time. Some of these individuals have underlying health issues which makes them especially vulnerable.

The West Virginia Division of Corrections has come up with a comprehensive plan to mitigate the likelihood of an outbreak in these facilities, but we’ve all heard about the issues at nursing homes in West Virginia, where our outbreak first started. Vulnerable individuals in institutions such as these are at “grave risk of severe illness or death from COVID-19,” and this includes vulnerable prisoners. See Joe Severino, Charleston Gazette-Mail, A WV Nursing Home Had 29 COVID-19 Cases. Here’s How they Contained the Spread (Mar. 31, 2020).

West Virginia recently passed legislation which was intended to address overcrowding, but which also would be perfectly suited to the COVID-19 threat. However, it doesn’t go in effect until June 5, 2020. In that legislation, the DOC is authorized to develop and approve home plans for certain qualifying inmates. This would help, but June is still some time away. In the meantime, inmates are most likely required to go back to their sentencing judge in the court/county in which they were sentenced. That’s what we’ve been doing.

In federal court, there’s a provision for an inmate to petition for what’s called a “compassionate release,” which would apply well to prisoners with an underlying health vulnerability. However, there’s a problem there as well. By law, they’re required to make an administrative request to the federal Bureau of Prisons first, prior to going to the sentencing judge.

Unfortunately, West Virginia doesn’t have an option for “compassionate release” just yet. But something needs to be done. So far, we’ve filed motions for reconsideration of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. There’s a time limit of 120 days generally to file this, so most inmates are going to be beyond this number. However, there is an exception which allows a sentencing judge to waive the time limitation so long as it doesn’t “usurp the role of the parole board,” whatever that means. See, e.g., State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 

We finally have our first hearing coming up this week on a Rule 35 COVID motion. We do know that certain sentencing judges around the state have allowed some of their inmates an early release on bond or home confinement due to COVID-19, but at this point it’s entirely up to the discretion of the court, which means that everything is on a case-by-case basis.

In the federal system, there is a mechanism for release, and there’s a number of set factors for the court to address – also a case by case analysis. But again, there’s that requirement to exhaust administrative remedies from within the BOP first before filing.

So far the ACLU and Mountain State Justice have tried to take action on a multi-client basis and have been denied. Again, these are case-by-case fact-heavy situations which require going to the sentencing judge. In New Jersey, there’s already been a case up to the U.S. Court of Appeals for the Third Circuit on a “compassionate release” petition. (USA v. Raia) However, because they didn’t make the petition to the sentencing judge, and also because the inmate didn’t ask the BOP administratively first, it got sent back with no real decision.

On its own, the West Virginia DOC has already released about 70 parolees who were serving short terms for parole-related violations, and about 70 other work-release inmates on “extended furlough.” Who knows where we go from here, but as they say, “no asky, no gety….”

If you need help with an inmate who you believe is vulnerable medically, or who is a nonviolent offender who has served a substantial portion of their sentence, we would be happy to help. Give us a call. (304) 772-4999. We’re still working, though we’re having all consults via telephone or teleconference.