Author: Angelica Warsaw

Recent Bipartisan Report Raises Concerns About Incarceration of Juveniles with Mental Health Needs

The offices of Democratic Senator Jon Ossoff of Georgia and Republican Representative Jen Kiggans of Virginia have released a seminal report after conducting a more than year-long investigation into the prolonged incarceration of children with mental health conditions. They found that more than half of the surveyed juvenile detention centers reported incarcerating children who could be eligible for release to mental health care, due to a lack of available resources. Twenty facilities even reported incarcerating children without charges or with charges that would not ordinarily lead to placement in a juvenile detention center. The report indicates that these scenarios of incarceration are especially prevalent among youth with neurodevelopmental disorders, such as autism spectrum disorder. Similarly, some facilities noted that there were children being incarcerated whose charges had been dropped or who had already served their full sentence. Many of the centers reported being forced to wait weeks to months until children can access more appropriate care through in-home services or long-term psychiatric residential treatment. 

Incarceration can be incredibly damaging to a child’s physical, mental, and developmental health. Incarcerated children face limited access to evidence-based medical care, inadequate educational opportunities, and face lifelong medical and mental health outcomes, including increased risk of depression and suicide. Mental Health America (MHA) reports that placing children with behavioral health conditions in the juvenile system can be especially challenging due to their vulnerability to difficult conditions. Additionally, the Sentencing Project notes that incarcerating youth impedes both success in education and employment later in life. MHA’s call to action specifically notes that the juvenile justice system should never be used as an alternative to treatment, services, and support for children with mental health concerns.

From a legal perspective, this report raises many concerns. First, under the Violent Crime Control and Law Enforcement Act of 1994 (34 U.S.C. § 12601(a)) it is unlawful for any government agent or law enforcement officer who is responsible for juvenile justice to deprive a juvenile of their rights, privileges, or immunities secured by the Constitution. Next, the Americans with Disabilities Act (42 U.S.C. § 12132) specifically prohibits denial of services, programs, or activities of a public entity by reason of qualified disability. In addition to these, the Department of Justice utilizes the Civil Rights of Institutionalized Persons Act (42 U.S.C. § 1997(a)), the Individuals with Disabilities Education Act (20 U.S.C. § 1400), and28 U.S.C. § 517 to review and investigate systemic violations of federal law as relates to juvenile justice. 

Placing youth in juvenile detention centers as opposed to providing mental health treatment is a clear violation of juvenile due process rights (see In re Gault). There is also a clear Eighth Amendment, cruel and unusual punishment argument against the act of incarcerating youth with mental health disorders (see Graham v. Florida), as well as a Fourteenth Amendment Equal Protection argument. The Report is deeply concerning for the youth being affected by this practice, and in the words of Senator Ossoff: “no child in America should be locked up instead of getting the mental health care they need and deserve.”

What C.K. v. McDonald Mean for Children’s Mental-Health Access Through Medicaid

In August, it was announced that a landmark settlement agreement, was reached in a New York class action lawsuit against the New York State Department of Health (NYSDOH) and the New York State Office of Mental Health (NYOMH). This settlement follows settlements of similar cases in Michigan and Iowa, showing a movement towards systemic change for youth mental health and children’s advocacy. In C.K. v. McDonald, filed in 2022 by children and disability rights groups on behalf of four children in the U.S. District Court for the Eastern District of New York, the plaintiffs alleged that federal law requires mental health services be made available and provided through a state’s Medicaid program, yet, New York State’s services were “inadequate, inaccessible, and dysfunctional.” The plaintiffs primarily alleged that New York systematically denied Medicaid-enrolled youth access to community-based mental health care, which violated their federal rights and left them at risk of institutionalization and long-term harms. The complaint highlighted that the failure of NYSDOH and NYOMH disproportionately effect youth from low-income households and children of color.

Specifically, the plaintiffs cited a number of federal requirements that New York state was not adhering to, including the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) provision, which requires that Medicaid beneficiaries under 21 receive a number of medical services, including mental health care. The plaintiffs also brought claims under Title II of the Americans with Disabilities Act (ADA), which, under 28 C.F.R. § 35.130, prohibits discrimination or exclusion of qualified individuals from participation in services of a public entity by reason of disability.  The plaintiffs noted that 29 U.S.C. § 794 maintains identical requirements for any program or activity that receives Federal funding. Finally, the plaintiffs cited to Olmstead v. L.C., where the Supreme Court held that the ADA requires states to “provide community-based treatment for persons with mental disabilities.”

 The settlement agreement outlines an 18-month plan of action that the State must implement to improve mental health services for children. The plan establishes that agencies must provide intensive care coordination, in-home behavioral health services, and crisis response planning that does not rely on police. Additionally, the settlement establishes that the State must increase Medicaid reimbursements and institute annual quality audits of these services. The State will also initiate screening and assessment for children who are eligible for services and ensure that an expert is hired in tracking New York’s progress in meeting the agreements of the settlement.

While the settlement is awaiting the court’s final approval, the case outcome demonstrates progression towards improvements in mental health care for the 2.5 million children under 18 who are enrolled in New York’s Medicaid. This step addresses a major gap in care for some of the State’s most vulnerable residents, who so often have to rely on hospitals and residential facilities for care rather than in-home and communal services, which can be extremely distressing and traumatizing. Beyond New York, this case represents  systemic challenges that have been prevalent throughout the country for decades. The New York case, as well as the Michigan and Iowa cases, reinforce a legal precedent that States must be held accountable for providing meaningful, community-based mental health services that are non-discriminatory for Medicaid-eligible and enrolled children. Given the threats to Medicaid funding and massive financial cuts at the Federal level, it is more important than ever that Medicaid funds be spent on proven and effective services.

The Regression of Drug Policy in Trump’s Punitive Approach to Substance Use 

In an effort to handle what he has stated as a “rampant drug smuggling and overdose death” problem in the United States, Trump has confirmed that new 25 percent tariffs will go into effect on March 4th against Mexico and Canada, with an additional 10 percent tariff against China. Despite a nearly 24 percent drop in fatal overdose deaths, there were still an estimated 61,393 opioid-related deaths in the 12 months ending September 2024. Throughout his campaign, Trump called for an end to the “drug epidemic” through harsher sentencing, and even advocated for the use of the death penalty, for drug dealers. History has shown that harsher sentencing and “crackdowns” on drugs and drug use are ineffective, furthering stigmatization and thus limiting access to treatment and promoting the issue rather than curbing it.

Following Nixon’s implementation of the “war on drugs” in 1971, New York introduced harsh sentencing in 1973, mandating a minimum of 15 years to life for dealers and users. These statutes, known as the “Rockefeller Drug Laws,” were the harshest drug-sentencing measures in the country. This new era of harsh sentencing led to a 1,216 percent increase in state prison populations for drug offenses between 1980 and 2008, which, since its inception, has adversely affected black individuals, who are 3.6 times more likely to be arrested for selling drugs and 2.5 times more likely to be arrest for possessing drugs than white individuals.

In recent years, data has shown that there is no statistically significant relationship between state drug imprisonment rates and drug use, drug overdose deaths, and drug arrests. With the recent decrease in overdose-related deaths, increased access to medication-assisted treatment for substance use disorder, and successes of harm reduction programs (such as naloxone, syringe service programs, safe consumption sites, etc.) the use of harsher sentencing as a tactic to fight drugs and drug use in the United States would be a major setback for the country.

Substance use, while including criminal aspects, should be viewed from a treatment lens, not a punitive perspective. History has shown that mandatory minimums, harsher sentences, and increased arrests do not curb the rate of overdose deaths, but have increased it. One study found that within one week of a “drug bust” local overdose deaths doubled due to users seeking supplies from unfamiliar sources. The United States simultaneously has the highest rate of incarceration, the highest rate of drug use, and the highest rate of drug-related deaths. Punitive approaches do not work and policy experts fear that Trump’s efforts could set the nation back in its attempt to address these issues. Should the United States revert to historically ineffective ways of addressing drug use, the exponential work that has been done could be nullified and the nation’s success in dropping overdose regress. With all of Trump’s latest actions, it is important that we not forget about the 48.5 million Americans who face addiction every day and could be greatly impacted by Trump’s punitive approaches. 

Negligent Mismanagement of Detox in Jails & Prisons: A Need for Change

Among the thousands of federal, state, local, and tribal criminal legal systems in the United States, there are over 1.9 million people in prisons, jails, detention centers, etc. Within that population, an estimated 65 percent of individuals meet the criteria for an active substance use disorder (SUD). The Prison Policy Initiative estimates that in jails, less than two-thirds of people are screened for opioid use disorder, and only 54% of those who qualify are provided medication for people experiencing withdrawal. When not treated adequately, opioid withdrawal can be a life-threatening condition that includes symptoms of sweating, nausea, vomiting, agitation, anxiety, etc. People entering the criminal justice system must be medically monitored and provided the treatment necessary to mitigate the harm and potential loss of life that can result from opioid withdrawal.

For a time, Corizon Health Inc., a private, for-profit medical contractor, was the nation’s largest for-profit provider of correctional healthcare. However, following over 1,000 lawsuits alleging substandard care, Corizon went through corporate restructuring, moving its debts to a new company called Tehum Care Services and then filing for bankruptcy, a move often known as a “Texas Two-Step.”  Now, Corizon operates under a new name, YesCare, and has signed a billion-dollar contract with the State of Alabama and has extended its contract with the State of Maryland to provide healthcare services in jails and prisons. It is incredibly concerning that a company, that has over a thousand suits relating to negligent medical care, many of which include wrongful death suits relating to negligent mismanagement of detox, is still responsible for the care of such an emotionally and medically vulnerable population.

Medical malpractice related to SUDs runs rampant throughout the correctional system in the United States, and the increased litigations shed light on the need to implement change that advocates for a population that is increasingly in need of advocacy. A common practice for managing withdrawal symptoms and promoting recovery includes the use of opioid agonists, such as methadone, buprenorphine, and naltrexone (these treatments are referred to as medication for opioid use disorder or MOUD), yet only 24% of jails use MOUD, and only 1% of people with a SUD in prisons report receiving MOUD. Not only are these treatments effective for addressing withdrawal symptoms, but they are also found to be effective in lowering overdose deaths following release from the criminal justice system. Not only are these medications lifesaving, according to a study done by the Bloomberg School of Public Health found them to be “a highly cost-effective intervention” among incarcerated populations. 

With the large sums of money, both from the opioid settlement funding ($55.2 billion) and the Tehum Care Services (Formerly Corizon Health Inc.) litigations resulting in a $75 million settlement, there is a massive amount of money on the table. If funneled appropriately, it can be used to implement MOUD in jails and prisons to reduce the harms of opioid withdrawal, SUD, and post-release overdose. Though the Tehum settlement will go to Tehum’s creditors, it will also go toward plaintiffs who suffered great losses through Corizon’s negligence. Following this impactful litigation, there must be justice for those lives lost and injuries that transpired because of the mismanagement and lack of treatment relating to SUD detoxification. MOUD is a feasible and effective solution to opioid withdrawal and given the funding available via the opioid settlements and Corizon litigations, now is the time to implement change.