AS THE COVID-19 pandemic continues to devastate communities across this country, correctional facilities have become one of the most explosive epicenters of this public health crisis. Despite calls to rapidly depopulate jails and prisons, governors and correctional officials across the country are asserting that people behind bars and correctional staff could be kept “safe” inside, during an infectious disease outbreak. This magical thinking has led to disastrous results, with thousands now infected and the death toll mounting. 

Everyone confined to congregate settings against their will is at risk and deserves protection, prevention. and care. But one of the biggest tragedies of COVID-19 behind bars has been in correctional institutions housing people who have not been convicted of a crime. This includes thousands of residents in Massachusetts  and other states – who are being involuntarily held because of their addiction.  

One example of this tragedy is the recent outbreak at the Massachusetts Alcohol and Substance Abuse Center (MASAC) in Plymouth involving 28 patients and 11 employees. The treatment facility at MASAC serves individuals placed into treatment for substance misuse under a law in Massachusetts known as Section 35. This law allows others  most typically family members, physicians, or police officers  to petition a court to forcibly detain an individual deemed to be a danger to themselves or others as a result of their substance use and involuntarily place them in treatment. 

Although this law is often referred to as the last resort for individuals with substance use disorder, it has been implemented widely across the state and has become the first line of treatment in many areas that lack voluntary treatment options. Each year, over 6,000 individuals are forced into treatment for addiction in Massachusetts alone. Nationally, these laws have also surged as a response to the ongoing overdose crisis, reflecting growing political appetite for treatment that resembles correctional approaches. Even presidential candidate Joe Biden espoused his support for “mandatory rehab” in numerous campaign appearances. 

Expanding interventions for substance use disorder is more important now than ever, as studies have demonstrated dramatic increases in the loss of life due to drug overdose in the setting of the ongoing pandemic. Predictions estimate a more than 50 percent increase from an already staggering 72,000 overdose deaths recorded in 2019. However, despite the widespread use of civil commitment in Massachusetts and elsewhere, there is little empirical evidence to support mandated substance use treatment. In fact, by using the coercive power of the government to force people into a deeply troubled treatment system, states may be doing far more harm than good.  

A report from the Massachusetts Department of Public Health found that those who had been subjected to civil commitment were more than twice as likely to die from overdose as those who sought treatment voluntarily. Civil commitment treatment facilities have also been the subject of a string of high-profile scandals, including escape attempts and suicides. While there is a clear need for intervention, it is apparent that the use of civil commitment as a means of addressing the growing burden of overdose deaths, particularly during the COVID-19 pandemic, is both unjust and unsafe. 

Even before COVID-19, civil commitment for substance use under laws like Section 35 was potentially life-threatening. But the COVID-19 pandemic has made a civil commitment for substance use a potential death sentence. Although many civil commitment treatment facilities took measures to reduce the spread of disease by instituting lockdowns and decreasing the number of individuals receiving treatment, such efforts were short lived and many facilities have since returned to their pre-COVID capacities. 

Furthermore, recent descriptions of the civil commitment facilities operated by the Department of Correction, which are otherwise shrouded in mystery, are outright deplorable. A recent lawsuit filed by Prisoners’ Legal Services of Massachusetts arguing for the release of patients civilly committed for substance use said “dozens of consistent accounts of the unit where initial detoxification takes place [describe] the unit as filthy and stinking of the vomit, urine, and excrement of patients in the throes of cold-turkey withdrawal.” Such conditions are intolerable in any context but represent a dangerous health hazard in the setting of a global pandemic. 

What is most scandalous about the current situation is that it could have been avoided. In 2018, Gov. Baker had convened a commission to examine Section 35 (LB served as one of its commissioners). In July of 2019, the Section 35 Commission made a set of recommendations to address many of the issues with these programs. One of the key recommendations was to close down MASAC and other correctional facilities housing people involuntarily held because of their addiction. These are precisely the facilities where COVID-19 is now raging. Had the state followed the recommendation, the current tragedy could have been avoided. 

More than a year after release of this report, it is unclear if any other of the other recommendations have been implemented. Chief among those suggestions was a call to “expand development of low-threshold, treatment on demand models, including harm reduction interventions in community-based settings [and] immediate access to medication-assisted treatment.” Medication-assisted treatments, or MAT, are life-saving medications that treat substance use disorder by reducing cravings and withdrawal symptoms that often drive individuals to use drugs.  

Despite these medications being well-regarded as the standard of care for treatment of substance use disorders, their availability in Massachusetts remains limited. An investigation by the Department of Public health found that over 20 communities in Massachusetts are unable to meet the demands of patients seeking MAT and another 20 communities are near capacity. While changes to DEA guidelines that now allow patients to be started on MAT over the phone during the COVID-19 pandemic have reduced the barrier to distributing these medications, continued efforts need to be implemented to make sure they reach those in need.  

Certainly, the recent increase in overdoses warrants an urgent and thorough response. However, instead of confining individuals to treatment facilities that are ineffective and lead to life-threatening spread of COVID-19, we must focus on interventions that maximize patient benefit without perpetrating undue harm. Massachusetts state legislators must reexamine the Section 35 Commission Report and implement its findings while also taking added precautions in the setting of the current pandemic.  

In addition to ensuring the health and safety of citizens of the state of Massachusetts, these actions have crucial implications in halting the incoming presidential administration’s calls for expanding coerced treatment. 

John Messinger is a student at Harvard Medical School. Leo Beletsky is a professor of law and health sciences at Northeastern University School of Law.