Fentanyl Overdoses And Deaths In Jails And Prisons

As an expert in jails and prisons for over seventeen (17) years I have seen various trends involving significant issues which have placed jails and prisons in civil and criminal litigation. In the past several years incarcerated men and women have entered facilities while addicted and withdrawing from fentanyl, and in many instances, those incarcerated have attempted and committed suicide. While other drugs, such as heroin, prescription opiates and methamphetamines are also a serious issue, fentanyl addiction seems to be the prevailing trend, and there does not appear to be any end in sight. Additionally, this is also becoming a trend at community corrections centers (half-way houses) in which those previously incarcerated are going through the process of reintegration back into society. Compounded with jail suicides being the leading cause of death in jails and prisons, those being incarcerated who are addicted and withdrawing from opiates increases their risk of attempting and committing suicide without appropriate correctional, medical and psychiatric treatment and intervention.

Often, jails, prisons and half-way houses are alleged to be liable, and their culpability is directly correlated to inadequate policies and procedures, staff not adhering to policies and procedures, inefficient supervision and oversight by jail supervisors and administrators, and staff not being held accountable for their substandard performance. In addition, due to the unavailability of resources many jails provide medical and psychiatric services through contracts with local and national providers, and this has also resulted in a serious trend in the inadequate care of inmates addicted to and withdrawing from opiates, as these contracted private health care companies’ main goal is monetary profit and sometimes have not employed competent and qualified professionals to treat those men and women going through opiate withdrawal. As such some of those incarcerated have died going through withdrawal and/or committed suicide because of the painful withdrawal struggles and psychological trauma. Other prisoners have also died from medical complications while going through opiate withdrawal.

Often, when these private health care companies have faced litigation due to alleged liability, they have decided settlement is their best option, rather than going to trial. However, this is only placing a “band-aid” approach on this growing epidemic facing so many men and women who have died because of insufficient care which is covered under the civil rights 8^th amendment.

Courts have found that there are increased obligations to prisoners and detainees, largely premised on their freedom's having been taken away, and they therefore cannot obtain assistance for themselves, including necessary medical care (of which psychological, psychiatric and mental health care are a part). Nor are their friends and family in a position to do so, given their incarceration. The prisoner or detainee and the place that they are confined is under the "exclusive control" of the criminal justice agency and its staff, who are responsible for the care and custody of the prisoner or detainee. Courts, including federal courts, have found that some duties do exist for correctional facilities to protect prisoners from suicide, just as it must furnish necessary medical care, and some level of protection against assaults by other prisoners or the use of unnecessary force by staff members.

The 14^th Amendment's Due Process Clause similarly protects pretrial detainees, who have not yet been convicted of a crime. This clause protects them from harm while in custody and requires jail officials to ensure their reasonable safety. When a correctional facility fails to uphold its duty to protect an inmate and that inmate dies by suicide, the family may have grounds for a federal civil rights lawsuit under 42 U.S.C. § 1983. This statute allows for the recovery of damages for violations of constitutional rights.

Aside from ethical and humanitarian concerns, the competence of custodial staff in detecting inmates at risk of suicide is important due to the threat of civil lawsuits. Relatives of inmates who commit suicide often bring suit against custodial staff, administrators, doctors, or government officials. Institutions must demonstrate that they have developed and followed adequate policies and procedures for diagnosing suicidal inmates and providing suicide prevention measures. In the landmark case of Estelle v. Gamble (1976), the U.S. Supreme Court held that deliberate indifference by prison personnel to a prisoner's serious illness or injury would constitute cruel and unusual punishment, in violation of the 8th Amendment. Because of this ruling, claims of inadequate medical care became the most frequent allegation filed in civil suits that have involved inmate suicide.

Another trend, which is not new, but has become more prevalent in jails and detention centers, is the lack of oversight provided to county jails. In most local jurisdictions (counties/cities) the Sheriff is responsible for oversight of jails in their county, and many times they do not provide the needed oversight required. Since sheriffs are elected by citizens of the county, they are more prone to being more visible in the communities (not the jail) which is better for them politically, however, the jail they are mandated to supervise is facing a lack of oversight and management. The jails which have success and encounter minimal incidents are the jails in which the sheriff has hired or appointed a seasoned corrections professional to manage the jails, however from my experience this is few.

As litigators and advocates law firms have a great opportunity to deal with this epidemic by seeking maximum punitive damages which can lead to a significant change in jail and prison suicides and other wrongful deaths while our citizens are in custody.

If you are considering a case involving a suicide attempt or suicide and/or a wrongful death claim as your client was suffering opiate withdrawal, I am available to consult with you and provide expert witness services. I also provide expert witness consultation for all other jail and prison wrongful death claims as well.

Joseph E. Gunja is Jails, Prisons and Corrections Expert with more than 30 years of experience in the corrections industry. Mr. Gunja had a distinguished career with the Federal Bureau of Prisons (FBOP) for over 28 years serving as a Correctional Officer, Shift Supervisor, Investigator, Captain, Associate Warden, and Warden at three complex correctional facilities.

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