Monday, September 18, 2006
The Hidden Costs of a Cruel and Unusual Prison Health Care System
BY BRIETTA CLARK

Last year, the Commission on Safety and Abuse in America’s Prisons (the “Commission”) was formed to investigate and report on prisoners’ conditions of confinement and the abuse and violence suffered by inmates in U.S. jails and prisons. In June of this year, the Commission produced a report, Confronting Confinement, describing its findings and making recommendations for reform of correctional facilities in several areas. Tragically, one of the critical problem areas causing the preventable death and injury of prisoners is the health care delivery system that is supposed to care for them.

Nationwide, inmates are routinely denied access to physicians and nurses, even when the need becomes undeniable and critical. When prisoners do get to see a doctor or nurse, it’s often tantamount to receiving no care because the person provides grossly negligent care, or in some cases, is deliberately cruel to the prisoner. California’s prison system provides some of the worst examples of this kind of treatment. In one case, a prisoner suffered a neck injury in a fight and could not move his legs. Although the standard of care required immobilization of the neck, the treating physician insisted that the prisoner was faking and deliberately moved his head from side to side. The prisoner became paralyzed.

Such occurrences are not isolated or even unusual. According to recent statistics, deficiencies in the California prison health care system are so severe that one inmate dies needlessly every six or seven days as a result. California’s system is so dysfunctional that last year, in Plata v. Schwarzenegger, a federal court stripped the state of control of the prison health care system, temporarily establishing a Receivership to take control of medical service delivery for all California state prisoners. The plaintiffsalleged, and the court agreed, that the deficiencies in the prison health care system were so severe they violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Specifically, the court described the system as “broken beyond repair” and causing an “unconscionable degree of suffering and death.”

The problems of poor quality care and barriers to health care access in prison are not new, nor are they simply the result of random acts of cruelty or negligence by incompetent health care workers. Rather, the prison health care crisis is the product of numerous longstanding and widespread systemic defects in the prison health care system, including inadequate numbers of health care workers to screen prisoners for infectious disease and provide treatment; cost sharing that discourages prisoners from seeking preventive care; lack of fair and adequate compensation necessary to attract qualified personnel; a hierarchical structure that subordinates health care workers’ medical judgment to that of non-health correctional workers; institutional barriers to removing incompetent providers; inefficiency and waste in equipment management and service delivery; lack of adequate oversight and involvement by local public health agencies; and overcrowding.

Legislators have either been indifferent to the problem or unwilling to advocate for resources to improve the prison health care system. In California, for example, the Plata court and Receiver attributed California’s crisis to decades of medical neglect as well as legal and institutional barriers to reform created by the executive and legislative branches of government. The Commission also found that some states have actively encouraged poor quality care by allowing doctors whose licenses have been restricted by the state medical board for reasons of competence to continue practicing under a special license that restricts their work to prisons and jails. In fact, much correctional health care is provided by health care workers who could not find other employment because of problems with their licenses.

Society has enabled this systemic neglect through a culture of dehumanizing prisoners, which allows us to ignore or even tout the constant threats of violence and abuse that prisoners face. How often do we hear people joke about the prospect of a newly convicted criminal becoming someone’s “boyfriend” or “girlfriend” in prison or take pleasure in the fact that certain criminals, like child molesters and rapists, may be special targets for prison violence and rape? If this dehumanization of prisoners makes such extreme sexual violence and abuse of prisoners morally acceptable to us, then it makes it exceedingly difficult, if not impossible, to feel empathy for prisoners who are deprived of quality health care.

Despite this bleak picture, we appear to be on the verge of creating a more honest and thoughtful discussion about prisoner health and safety. The problem has become much more visible, in part because of the Commission’s information gathering, exposing the inhumane conditions under which health care is delivered and its tragic consequences. Courts seem increasingly willing to hold government officials accountable for such deficiencies, as evidenced by Plata and other successful class action prisoner suits. Even politicians have begun addressing these issues publicly. In California, it’s become a campaign issue in the governor’s race. At the federal level, President Bush signed into law the Prisoner Rape Elimination Act of 2003, the first federal law to address the issue of sexual assault in prison and to acknowledge its devastating mental and physical health consequences.

While these developments represent some progress, they are meaningless without the public and political will to expend the resources necessary to ensure adequate health care in prisons. Indeed, some problems can be fixed through simple organizational changes and by eliminating waste in the current prison administration. Nonetheless, many of the problems listed above cannot be remedied without additional state and federal funding. Increasing the number of health care personnel requires a significant commitment of financial resources. Qualified personnel can be recruited only if competitive compensation is offered. Proposals to reduce prisoners’ cost-sharing to encourage early preventive care suggest extending Medicaid coverage to prisoners. Even the Receiver in his latest report about the California prison health care system admits that his power to fix the system is limited without the political will and requisite commitment of state resources.

So why have we failed to commit the financial resources necessary to ensure prisoners’ health and safety in light of the profound moral and legal obligation to prevent such cruelty to prisoners? The most likely reason: fear of the perceived sacrifice that allocating resources to prison health care would require of the rest of society. With growing numbers of uninsured and underinsured among different economic classes, cutbacks in federal and state funding for the poor, and hospital closures and decreasing access to other health care providers, health care access is a problem for the rest of society too. Any proposal to pour more resources into prison health care while the rest of society faces problems in health care quality and access degenerates into an “us versus them” debate about who is more deserving of scarce health care resources. Such debates inevitably end in policy-makers deciding to sacrifice the needs of those without a voice (prisoners) in favor of more vocal and powerful or sympathetic constituencies. Under a paradigm where prisoners’ interests are viewed in competition with, and as requiring sacrifice by, the rest of society, prisoners’ health care needs will always be sacrificed for the “greater good” of increasing health care access for “law-abiding” and “deserving” members of society.

One of the biggest problems with this paradigm, however, is that it fails to account for the significant societal cost of not adequately funding prisoner health care. One of the most important findings coming out of the Commission’s work is that “[h]igh rates of disease and illness among prisoners, coupled with inadequate funding for correctional health care, endanger [the] public.” Indeed, one of the most serious failures identified in prison systems nationwide is the lack of proper screening, prevention, and treatment of infectious diseases. This means that prisoners are constantly being released with infectious diseases that they take back to their communities. According to Confronting Confinement, more than 1.5 million people are released every year from jail and prison carrying a life-threatening infectious disease, such as HIV/AIDS. As most prisoners eventually return to their communities, this creates a public health risk, especially for underserved communities to where prisoners disproportionately return.

The failure to adequately treat prisoners also means that when they do return to their communities, they will be sicker, less able to work and get insurance, and thus further strain the already scarce resources in areas with high health care demand. For example, the Commission noted that approximately 350,000 prisoners are released with serious mental illness that have gone untreated, and that “prisoners on average require significantly more health care than most Americans because of poverty, substance abuse, and because they most often come from underserved communities.” As long as this link between prisoners’ health and the public’s is ignored, our concerns about dwindling health care resources, health disparities, and the spread of diseases like HIV, especially in minority and economically disadvantaged communities, are not being honestly addressed.

Although decisions about how to allocate scarce health care resources are difficult ones and hard choices must be made, it is critical that we really understand what’s at stake before we make them. Imagine the following scenario: States are forced either to find the resources necessary to ensure prisoners’ access to quality health care or to release all of the prisoners. How would the public and legislators respond? Is there any doubt that the public’s fear for its physical safety and the threat of increased property crimes would make fixing the prison health care system everyone’s priority? Then why would we ignore the imminent and serious threat to public health and dwindling health care resources that exists now because of inadequate health care access in prison?

As the Commission notes at the beginning of Confronting Confinement: “What happens inside jails and prisons does not stay inside jails and prisons…. We must create safe and productive conditions of confinement not only because it is the right thing to do, but because it influences the safety, health, and prosperity of us all.” Fixing the prison health care system is a critical first step toward this goal.

This commentary appears by arrangement with the American Society for Law, Medicine, and Ethics.

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