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Prison Health, Public Health: Obligations and Opportunities

Posted on: Sunday, 15 January 2006, 03:03 CST

By Jacobi, John V

I. INTRODUCTION

We don't care enough about prisoners' welfare. We should care deeply because, as two prominent commentators on the history of prisons have said, "Prisoners are ourselves writ large or small. And, as such, they should not be subjected to suffering exceeding fair expiation for the crimes for which they have been convicted."1 Well over two million persons are imprisoned in America today.2 We imprison a higher percentage of our population than any other country.3 Those we imprison are disproportionately poor, of color, uneducated, and sick.4 They have chronic conditions, mental illnesses, sexually transmitted diseases and other infectious diseases.5 They usually receive inadequate health care-and sometimes shockingly poor care.6 It has always been so. Prison reformers have argued for decent prison care based on humanitarian principles since the founding of the Republic, and, notwithstanding some notable achievements, have failed to achieve decent conditions. In the last fifty years, reformers shifted to individual rights arguments based on prisoners' constitutional rights.7 Substantial progress in the early years of that era has given way to reaction from courts and legislatures, throwing this strategy of prison reform into doubt.

This article seeks to identify a third vision of prison reform to supplement the historic humanitarian and more recent individual rights efforts. This third vision of prison reform argues for decent prison health care on the basis of equally selfless and selfish motivations. Reform failures of the past notwithstanding, Americans retain some fellow-feeling for prisoners. The power of this fellow- feeling should not be overstated, as such feelings have proven too diffuse in the past to permit reform traction. The selfish motive for prison health reform therefore takes on great importance. The selfish motive springs from public health effects-the harm to communities that flows from mismanagement of prison health care. The harm that flows from mismanagement of chronic conditions and mental illness comprises severe strain on community health facilities, harm to the communities flowing from the inability of sick ex-prisoners to reintegrate into society, and the costs of recidivism when failure to reintegrate contributes to ex-prisoners' return to crime.

The harm that flows from mismanagement of sexually transmitted diseases and other infectious diseases is more direct. Almost all of the two million prisoners now in prisons and jails will return to their communities one day.8 If, due to poor prison health care, they return with uncontrolled syphilis, tuberculosis, HIV, and other infectious conditions, they will likely infect many around them. In these circumstances, prisons and jails serve as "epidemiological pumps,"9 amplifying infectious conditions, perhaps even transforming them into treatment-resistant strains, and then sending them out into society for distribution. It is in the interest of all in society to prevent the population health effects that demonstrably flow from mistreatment of the health conditions of prisoners.

The following pages describe the sorry state of health care services for an enormous prison and jail population, the serious harm poor health care inflicts on the prisoners and the communities to which they return upon release, and the steps that should be taken to protect them and the communities they will reenter. Part II discusses the demographics and health status of the American prison population and the health services provided them while imprisoned, with particular attention to communicable diseases, chronic illness, and mental illness. It grounds this discussion in modern-day realities in which one of every one hundred Americans is behind bars on any particular day.10 Part III describes the ebb and flow of prison conditions and health care reforms, focusing on the humanitarian movements of the 19th Century and the prisoners' rights movement of the mid-20th Century. Part IV describes what may be a catalyst of a third wave of reform: the reentry movement, which seeks changes in the treatment of prisoners in order to facilitate their successful return as healthy, productive members of their community. This Part relates the third wave of prison health reform to the two that came before it, and describes the steps that should be taken to protect the community from harm. Public health measures have gained increasing public and political support in recent years, and public health is an increasingly common lens through which public policy concerns are viewed. Public health principles permit the focus of prison reform efforts to shift from the politically unpopular issue of prisoners' health to the more politically compelling issue of community health. This argument posits a marriage of convenience between the humanitarian or individual rights obligation to provide decent health care for prisoners' sake, and the public health opportunity to improve prison health care for the sake of the society to which most prisoners will return one day.

II. PRISONS TODAY: MANY SICK, POORLY TREATED PRISONERS.

America has been on a twenty-year spree of prison building, and has filled its old and new prisons and jails with unprecedented numbers of prisoners. Prisoners are disproportionately people of color, poorly educated, and sick.11 This Part sets out the current state of American imprisonment, with particular focus on the health status and health treatment of those behind bars.

A. WHO IS IMPRISONED?

Prison and jail populations increased more than four-fold from 1980 to 2003, from about 500,000 in 1980 to over 2,000,000 in 2003.12 The rate of incarceration in the United States grew to 726 persons per 100,000 by 2004, far outstripping the imprisonment rates in every other country in the world for which such statistics are maintained.13 In comparison, the rate of the second most prolific jailer, The Russian Federation, is 550 per 100,000, while Israel's is 209, Iran's is 191, Australia's is 117, Canada's is 116, Germany's is 96, Ireland's is 85, and Norway's is 65.' The American increase in the rate of imprisonment far exceeds the rate of increase in the general population, and follows a fifty-year period of relatively stable rates of incarceration.15

The majority of those in prisons and jails are black or Hispanic. In federal and state prisons, the racial composition in 2003 was 44.1% black, 35% white, 19% Hispanic, and 1.9% other.16 In local jails, the composition was similar: 40.1% black, 36% white, 18.5% Hispanic, and 5.4% other.17 The impact of the growth of imprisonment has been most severe on black men.18 Almost three in ten black males (28.%) will be incarcerated at some point in their lives.19 The figure for Hispanic men is three in twenty (16%), while that for white men is less than one in twenty-five (4.4%).20 The rate of incarceration for young black men is staggering. For example, in New York State in 1994, one in four black men between the ages of 20 and 29 were in prison or jail, or on probation or parole.21

Prisoners are remarkably less educated than the general population. Almost 75% of state prison inmates and almost 69% of those in local jails did not complete high school, compared with 18.4% of the general population.22 Fifty two percent of black men born between 1965 and 1969 who did not graduate from high school had prison records by 1999-that is, by the time they were thirty four years old.23 Not surprisingly-given the correlations among education, race, and poverty-prisoners are also predominantly poor. Of the large number of prisoners without a high school diploma, almost two-thirds had earned less than $1,000 in the month before their arrest.24 America's prison population, then, is enormous and growing, and is disproportionately composed of poor, ill-educated men of color.

B. HEALTH STATUS OF PRISONERS.

The two million adult prisoners in the U.S. do not reflect a cross-section of America; they are poorer, less well-educated, and much more likely to be members of racial minorities.25 In addition, however, they are sicker:

The prevalence of chronic illness, communicable diseases, and severe mental disorders among people in jail and prison is far greater than among other people of comparable ages. Significant illnesses afflicting corrections populations include coronary artery disease, hypertension, diabetes, asthma, chronic lung disease, HIV infection, hepatitis B and C, other sexually transmitted diseases, tuberculosis, chronic renal failure, physical disabilities, and many types of cancer.26

They are sicker going in, and they are also sicker when they are released.27

Four categories of prisoners' conditions are worthy of particular attention: communicable diseases such as HIV disease and tuberculosis ("TB"); sexually transmitted diseases ("STDs") such as syphilis and Chlamydia; chronic conditions such as asthma and diabetes; and serious mental illness such as schizophrenia and bipolar disorder.28

1. Communicable Diseases.

Communicable diseases are spread from person to person, easily (as with TB, which is transmissible by air) or w\ith more difficulty (as with hepatitis, which is transmissible with direct contact between persons' bodily fluids).29 The rate of infection with communicable diseases among prisoners is startlingly high. They are disproportionately infected when they arrive in prison.30 Compared to the general population, it has been estimated that "rates of human immunodeficiency virus (HIV) infection . . . are 8 to 10 times higher, rates of hepatitis C are 9 [to] 10 times higher, and rates of tuberculosis are 4 [to] 7 times higher."31

Prisoners are also disproportionately infected when they are released from incarceration. In 1996, released prisoners accounted for 35% of all people in the United States with tuberculosis, 29% of those with hepatitis C, 12% of those with hepatitis B, and 13% of those with HIV infection.32

2. Sexually Transmitted Diseases.

Sexually transmitted diseases (STDs) are a subset of communicable diseases (that is, they are transmissible from person to person) that are also over-represented in prisons and jails. Approximately 2.6 to 4.3% of prisoners are infected with syphilis, 2.4% with Chlamydia, and 1% with gonorrhea.33 The incidence of STDs in jails, in particular, is very high. Studies of women in jails in the United States have found that "35% of the women had syphilis, 27% had Chlamydia, and 8% had gonorrhea."34 A study of syphilis in New York City jails found that women with multiple incarcerations had an incidence of syphilis infection that exceeded the rate of women in the general New York City population "by more than a thousandfold."35 A 1999 study of early syphilis in Chicago found that "almost one third of all incident cases . . . were diagnosed at Cook County Jail."36

3. Chronic Illness.

A large number of prisoners have serious chronic illnesses. The asthma rate in United States prisons and jails in 1995 was 8.%; diabetes, 4.8%; and hypertension, 18.3%.37 The asthma rate was higher than that of the general population.38 The rates for diabetes and hypertension were lower than the general population.39 However, the relative youth of the prison population and the fact that both diabetes and hypertension are more likely to arise in older persons, suggests prison populations are disproportionately affected by these conditions as well.40

4. Mental Illness.

America's prisons and jails have-with the sharp reduction in the census in mental hospital-become the "new asylums."41 The simultaneous surge in imprisonment of people with mental illness and decrease in institutionalization in mental hospitals has been referred to as "transinstitutionalization."42 This phenomenon is caused by the failure of the community mental health system to provide services to those cleared from psychiatric hospitals in the process of deinstitutionalization, and changes in criminal sentencing processes that increased penalties for "quality of life" and drug offenses while reducing the exculpatory or sentence- reducing effects of mental illness.43 "The nation's largest mental health facilities are now found in urban jails in Los Angeles, New York, Chicago, and other big cities."44

About 16% of people in state prisons and jails have a mental illness.45 About 700,000 people with mental illness are placed in American jails each year,46 about three-quarters of which also have substance abuse disorders.47 The incidence of mental illness, particularly major mental illness, is substantially higher is prisons and jails than in the free world.48 The incidence of schizophrenia in state prisons is three to five times higher than in the general population,49 and two to three times higher in jails than in the general population.50 These data on the prevalence of mental illness among prisoners are contested in their specifics; the lack of information available to researchers hampers precise assessments.51 It is, however, clear that "severe mental disorders among prison and jail inmates are a significant, complex, and intractable health problem that has defied both explanation and resolution."52

C. THE STATUS OF PRISON HEALTH SERVICES.

Prison conditions in America have been dismal since the founding of the Republic. Oppressive and brutal conditions predominated with brief periods of improvement resulting from reformist zeal.53 Overcrowded prisons are of course unhealthy, and prison reformers attempted to ameliorate those conditions.54 With the rise of curative medicine in the 20th Century, access to or denial of decent health services became a significant issue in prison reform. It is clear that prison health care was shockingly bad during much of the 20th Century, as vital, life-saving care was delayed, denied, or provided by untrained fellow prisoners.55 The quality of health care services in modern prisons varies from prison to prison, and state to state. Reform efforts, including prisoners' rights litigation, have increased funding and oversight in some prison systems. For example, the Re-Entry Council's recent report, drawing on a variety of state and federal corrections sources, recently asserted that the "quality and availability of medical services for the prisoner population has been enhanced by multiple federal judicial decisions and by initiatives of a host of professional organizations."56 It is possible, however, to exaggerate the improvements.

Too often prison care is abysmal and dehumanizing. This is true even in the state highlighted as an example of improvement in the Re- Entry Council's Report: California.57 Shortly after the Re-Entry Council issued its report, a federal judge blasted California's prison health care, issuing an Order to Show Cause why management of health services in the California Department of Corrections should not be taken away from the State and assigned to a court-appointed receiver.58 The text of the order relates a hair-raising account of a "totally broken system"59 The court found that "[e]ven the most simple and basic elements of a minimally adequate medical system were obviously lacking."60 In one of the California prisons toured by the Judge:

[T]he main medical examining room lacked any means of sanitation - there was no sink and no alcohol gel - where roughly one hundred per day undergo medical screening, and the Court observed that the dentist neither washed his hands nor changed his gloves after treating patients into whose mouths he had placed his hands.61

Expert reports on this prison noted referral slips for health care unattended for over one month,62 and dirty, dangerous, and antiquated facilities, unchanged by prior court orders due to the indifference of corrections officials.63 Remarkably, the Department of Corrections apparently did not either disagree with the facts or object to the proposal to divest it of its authority to manage prison health, and officials acknowledged that they were "unable to correct the problems on their own, and that unconstitutional conditions will remain until an outside agency is hired to take over."64

That California case does not stand alone. A 1999 decision65 decried the fact that, after 27 years of litigation, the Texas Department of corrections continued to provide care through inadequately trained personnel,66 failed to treat or even properly isolate prisoners with infectious tuberculosis,67 and denied psychiatric care to prisoners clearly in crisis.68 Similarly, a 1998 decision reviewed a two-decade history of noncompliance with an order on medical care within the Puerto Rican prison system69 and found deteriorating conditions in which prisoners were denied emergency treatment, medications, prescribed medically necessary care, and essential psychiatric services, leading to prisoner deaths and "actual pain and suffering with no conceivable penological purpose . . . ."70

The record in these cases documents the broad failure of major prison systems to provide decent care. In the treatment areas most responsive to the actual condition of prisoners-chronic disease, sexually transmitted disease, communicable disease, and behavioral health71-there is particular evidence that prisons are simply not providing adequate care. Many prison systems have no protocols for the treatment of such common chronic conditions as asthma, hypertension, and diabetes, and those that do often have protocols that are incomplete or out of date.72 "Very few correctional systems routinely screen inmates for syphilis,"73 and are therefore only able to provide treatment for those prisoners with obvious symptoms. A significant number of prisons and jails "do not adhere to CDC standards with regard to screening for and treating TB," leading some to fail to implement mandatory TB screening, and some to fail to follow proper infection control procedures to protect other prisoners and staff.74 HIV care in many facilities is inadequate; prevention programs are often nonexistent, and testing is not widely provided.75 In some facilities, antiretroviral drugs for the treatment of HIV are provided inconsistently, leading to the development of treatment resistant strains of the virus.76 A recent survey of mental health care provided in prisons and jails resulted in a damning report, documenting the following: poor intake screening of prisoners for mental health needs;77 lack of timely access to qualified mental health staff, in part due to the hostility of custody staff and the over-attribution of symptomatic behavior to "malingering";78 the inappropriate treatment of prisoners with serious psychiatric illnesses solely with drugs, which can render a prisoner docile, but do not advance the prisoner to wellness and recovery;79 and a dearth of appropriate facilities for crisis care.80

American prisons and jails are overcrowded with prisoners in poor health frequently receiving inadequate health care. The following section will trace the course of the development of prison reform in America from its beginning in the 18th Century, through waves of brutal\ly unhealthy conditions overcoming periods of reform in the 19th and 20th Centuries, to the present, with over 2 million men and women, many in poor health, imprisoned in overcrowded facilities with woefully inadequate health care services.

III. DECENT TREATMENT: RECONCILING CORRECTIONS' AND PRISONERS' INTERESTS.

The preceding section described stark facts about American prisoners, focusing on the phenomenon of mass incarceration, the poor health of many prisoners, and the poor health care they receive. But who are prisoners? Are they the "other," people apart from the law-abiding "us?"81 Are they "disgusting objects of popular contempt?"82 Are they erring members of a rational, contractarian society who must be subjected to clear, moderate laws just sufficiently punitive to deter?83 Are they ignorant or faulty citizens who must be corrected and rehabilitated so as to become useful members of society?84 Or are they citizens who have not been "stripped of constitutional protections" with the right to enforce their rights to equal and humane treatment subject only to the necessary limitations imposed by their imprisonment?"85 It has been said that prisoners include "the best and the worst among us."86 A normative principle that has animated much of the prison reform effort over the centuries is that prisoners, no matter their crime, remain fellow human beings, fellow citizens, and, for those religiously inclined, fellow children of God.

Prisoners are ourselves writ large or small. As such, they should not be subjected to suffering exceeding fair expiation for the crimes for which they have been convicted. Below that admittedly vague ceiling of suffering, they are entitled to a reasonably safe, clean environment. They must be spared cruelty, cruelty being defined as violations of their bodily and psychological integrities beyond the legitimate necessities of their punishment.87

This fundamental human principle sometimes gets lost in the pragmatic questions about how to achieve the deterrence, retribution, and exclusion goals of criminal punishment. Indeed, the central argument of this Article is pragmatic, in that it argues that "they all come home again"88-prisoners return to society, and we harm society when the conditions of their imprisonment predictably render released prisoners a health hazard to their communities.89

Many people-perhaps a majority-more or less agree with this fellow-feeling argument.90 To a greater or lesser extent most also believe that prisoners, by dint of their crimes, forfeit claims to comfort or compassion.91 Society's view of prisoners is heterogeneous, and has changed over time. Social disputes and ambivalence over prisoners, and the changes in the debate over time, can be illustrated by the contentions over the physical treatment of prisoners, including the provision of health treatment. Decent prison treatment, including health care, is costly. As prisoners are out of view and frequently outside the public consciousness,92 the default position of governments funding prisons is likely to tend toward less, and less humane, treatment.

History bears this out. The course of the development of the American prison has been marked by disputes over the treatment to which prisoners are exposed. Advocates resisting what they regard to be inadequate treatment have urged improvement on various grounds. The early 19th to the and 20th Century saw a form of other- regarding argument,93 which was rooted in humanitarian or religious terms and expressed concern for prisoners as fellow human beings deserving humane care.94 The next period, beginning in the mid 20th Century and arguably extending to the present, saw emphasis on the individual rights of prisoners.95 During that period, advocates argued that prisoners could vindicate their constitutional and statutory rights through litigation notwithstanding their imprisonment.96 Both of these approaches achieved some progress, but ultimately failed to reach their goals as the arguments could not overcome social concerns over cost and disinterest in the well- being of prisoners.97 Finally, advocates have recently advanced arguments based on the interests of communities to which prisoners return after release.98 Advocates advancing this perspective argue that people in the free world should embrace adequate health care for prisoners because inadequate prison health care subjects the community to serious public health threats.99 Even if people care nothing for prisoners themselves, the argument goes, they should care about themselves, and therefore support good prison health care.100

A. OTHER-REGARDING APPROACH: EMPATHY AND REHABILITATION.

"Imbalance and inflexibility" characterized responses to crime in the American colonial period.101 Adhering to British models, some crimes resulted in a fine, or "banishment"-the requirement that an offender merely move on to the next town.102 Other crimes, or crimes committed by recidivists, were dealt with brutally, by whippings and execution.103 Prisons and jails were not used for punishment, but only as holding facilities for those awaiting trial.104 Post- revolutionary states turned away from the British model, embracing instead Enlightenment principles of rationality and self- direction.105 Part of this reaction was expressed as repugnance for the broad use of corporal and capital punishment, and the consequent refusal of colonial juries to convict when brutal punishments seemed disproportionate to the crimes.106 Alternative forms of punishment were necessary; imprisonment filled the void.107

Imprisonment as punishment, then, was a humanitarian reform in post-revolutionary America, as "[i]ncarceration seemed more humane than hanging and less brutal than whipping."108 Early in the nation's history, it was anticipated that the substitution of imprisonment as a relatively humane punishment for more brutal forms would reduce crime rates.109 The end of jury nullification would lead to more certain consequences for criminal acts and all Americans would choose to obey the law-embodying the Enlightenment ideal of the clear-eyed rationalist.110 The faith that sentencing reform and a shift from brutal to more benign incarcerative punishments would lead to reductions in crime rates caused the actual management of the prisons to be ignored. If the very fact of imprisonment as a certain punishment would deter crime, prison populations would surely be low and prison management unimportant.111 The first crisis in the American experiment with punishment arose when the rational deterrence effect did not materialize: crime rates did not decline, and prisons were poorly run, overcrowded, and subject to riots.112 Attention, therefore, shifted from sentencing reform to prison management,113 and the two hundred year process of American prison reform began.

The rhythm of prison reform between 1820 and the mid-twentieth century comprised repeated patterns of rising concern for the brutality of prison conditions, reforms springing from humanitarian and reformative impulses, and a failure of those reforms due to lack of funding and public indifference toward the welfare of prisoners.114 The first reforms in the 1820s reacted to both the brutality of conditions and prisons' failure to reduce crime by reinventing prisons as "penitentiaries."115 Prisons were chaotic and violent. Penitentiaries on the other hand, utilized silence and contemplation to correct the prisoner.116 Prisoners were separated from their corrupt environment and taught the "habits of order and regularity."117 Reformers focused on prisoners' spirit and soul, making up for familial and social failings through the imposition of a stern but wholesome setting.118

The penitentiaries failed. Like the jails and prisons they were meant to replace, by the 1850s the penitentiaries were "characterized by overcrowding, brutality, and disorder."119 The goal of rehabilitation was abandoned by the post-Civil War period and penitentiaries became overcrowded prisoner warehouses with extremely harsh conditions.120 The failure of this wave of reform can be traced to social indifference to the conditions of prisoners- many of whom were new immigrants-and the consequent refusal to pay the costs of decent prison care.121

Another wave of reforms followed the 1867 report of Cobb Wines and Theodore Dwight on prison conditions.122 Wines and Dwight reported widespread overcrowding and brutal treatment.123 Their report spawned the "reformatory" movement, which again urged humane treatment, emphasized the education of prisoners, and relied on a shift to indeterminate sentencing as a means to encourage prisoners to participate in their own reformation.124 These reforms also failed in the face of brutal and corrupt prison management in which low budgets and public indifference lead to "chaotic prison atmospheres" rife with "arbitrary punishment and persistent overcrowding."125

In the early 20th Century, Progressive reformers decried unsanitary, overcrowded, and vermin-ridden prison conditions.126 The Progressives sought to "cure" criminals rather than punish them, using the new disciplines of psychiatry and social work.127 They hoped that according prisoners dignity and providing a level of self- direction within prisons would ease prisoners' reintegration into society upon release.128 Although Progressive reforms improved some aspects of prison treatment, the indifference of prison management and society at large to prisoners' welfare and the lack of financial support for humane conditions doomed the effort.129 Riots over inadequate medical care, unsanitary conditions, and overcrowding in the 1950s suggested that prison reform efforts had come full circle, leaving prisoners in conditions similar to those they experienced in the early 19th Century. The calls for humane treatment by small numbers of dedicated reformers repeatedly failed to arouse empathetic reactions,and prisons remained unhealthy, overcrowded, and brutal environments.130

B. INDIVIDUAL RIGHTS: RESPECTING PRISONERS' CIVIL RIGHTS CLAIMS.

The first 150 years of prison reform, premised on reformers' empathy and calls for humanitarian treatment, failed to achieve decent conditions and left prisons in the mid-20th Century where they had been at the opening of the 19th: unhealthy and overcrowded.131 The mid-20th Century, however, saw a shift in orientation, or at least tactics. Rather than rely on appeals to fellow-feeling, prison reform advocates argued that the prisoners themselves were vested with individual Constitutional rights that empowered them to seek remedies for oppressive prison conditions in their own name and by their own right.132 The strength of this strategy was that it placed the tools to achieve-or at least seek- decent conditions in the hands of prisoners themselves and did not rely on the kindness or sympathy of strangers.

The contrast should not be overstated, however. First, while prisoners often proceed pro se, they benefit from the assistance and representation of dedicated and talented lawyers, epitomized by Al Bronstein of the ACLU Prison Project133 and John Boston of the Prisoners' Rights Project of the Legal Aid Society of the City of New York.134 Second, prison reform litigation does not occur in isolation; its positive effects are attributable in part to the humanitarian responses of some executive and legislative government officials and members of the public acting in response to issues raised in litigation.135 The focus shifted, however, from outsiders' other-regarding efforts to prisoners' individual rights claims when prison reform embraced the civil rights movement.136 Evaluation of the efficacy of the individual rights vision of prison reform is more problematic than that of the humanitarian vision in part because it is closer in time-indeed, it is still a powerful theme in civil rights law.

Until the 1960s, federal courts adhered to a "hands off policy toward prisons.137 The decades of the 1960s and 1970s saw dramatic recognition of prisoners' constitutional rights and their power to vindicate those rights in federal courts. In 1964, the Court allowed a 1983 cause of action138 by a group of Muslim prisoners against prison officials for violations of their right to religious exercise.139 First amendment protections were soon extended to prisoners observing less conventional religions,140 and those seeking uncensored access to mail.141 In addition, due process protections were recognized in disciplinary hearings.142

Prisoners challenged prison health care under the Eighth and Fourteenth Amendments during this period. In a case filed in 1972 by Oklahoma prisoners challenging, Inter alia, the adequacy of medical care, the court found that the prison "was and is incapable of providing, has failed to provide, and continues to fail to provide adequate medical care for the inmates."143 The prison provided medical care through unlicensed physicians and through untrained prisoners acting as health professionals, and had no qualified mental health professionals on staff to treat mentally ill prisoners, who were treated only with sedatives.144 In a 1972 decision on the medical care available in the Alabama prison system, the court found that the care "could justly be called barbarous and shocking to the conscience."145 Medical personnel (even unlicensed staff) were in such short supply that even emergency conditions often went untreated.146 The lack of treatment or treatment by untrained persons (including prisoners) led to gruesome injuries and many deaths.147

The Supreme Court addressed the rights of prisoners to adequate health care in 1976 in Estelle v. Gamble.148 The Court recognized a broad interpretation of the Eighth Amendment, finding that it prohibited "punishments which are incompatible with the evolving standards of decency that mark the progress of a maturing society."149 It held that prison officials' "deliberate indifference to serious medical needs of prisoners" violated the constitutional standard.150 The recognition of prisoners' constitutional rights in cases such as those described above suggested a venue for reform arguments and a robust doctrinal foundation for the advocacy of decent treatment.151 Estelle in particular suggested that federal courts would address in a sustained way the issues that humanitarian reform efforts brought to the public debate only sporadically: the state's responsibility to provide safe and healthy conditions for prisoners.152 Indeed, subsequent decisions demonstrate the partial fulfillment of that promise, as courts have occasionally closely reviewed prison conditions and ordered relief where medical153 and mental health154 care has been shown to violate the Estelle standard.

In the last 20 years, however, the Court and Congress have significantly restrained the individual rights model of prison reform. The best illustration of this is Turner v. Safley which signaled a shift in prison jurisprudence when the Court refused to apply the usual strict scrutiny standard to a prisoner's First Amendment right to marry.155 Instead, the Court permitted prisons to restrict prisoners' right to marry so long as the restriction is "reasonably related to legitimate penological"156 concerns. The Court also cut back on Eighth Amendment review by imposing increasingly difficult scienter requirements.157 In addition, it found that prisoners' procedural due process rights attached only if the deprivation at issue subjected the prisoner to "atypical and significant hardship."158 Foreshadowing congressional action aimed at limiting prisoners' access to courts and ability to sustain remedies, the Court narrowly construed prisoners' rights to legal materials and other litigation assistance,159 and broadly construed prisons' ability to break promises made in connection with consent decrees.160

Congressional action has also significantly reduced the efficacy of prison litigation as a means of advancing prison reform. The Prison Litigation Reform Act ("PLRA")161 created a series of procedural barriers "designed to discourage the initiation of litigation by a certain class of individuals-prisoners-that is otherwise motivated to bring frivolous complaints as a means of gaining a short sabbatical in the nearest Federal courthouse."162 The barriers erected by the PLRA, of course, also make it more difficult for prisoners with meritorious claims to gain access to courts and obtain relief. For example, the PLRA eliminates fee waivers for indigent prisoners, and instead requires increased documentation of financial status and installment-plan payment of the full fees from whatever wages the prisoner earns.163 In addition, the PLRA requires that prisoners exhaust all "available" remedies prior to filing a civil complaint.164 The Court has giving this provision extremely broad meaning, reading "available" not as "effective", but rather as any administrative proceeding provided by the prison, regardless of its effectiveness, thereby requiring exhaustion of even the most futile administrative steps.165 The PLRA also restricts the effectiveness of remedies available to prisoners by sharply limiting their breadth,166 and permitting the modification or termination of consent decrees under certain conditions two years after their entry.167 Money damages and attorneys fees are also limited.168

The development of a prisoners' rights jurisprudence in the 1960s and 1970s grew out of the same goal embraced by 19th and early 20th Century reformers: safe and healthy conditions for prisoners.169 That avenue remains formally open, and prisoner litigation continues to be an important reform tool.170 The Court, however, has recently narrowed the scope of earlier victories and the PLRA further restricts the ability of prisoners to pursue reform cases.171 The PLRA has sharply reduced the number of prisoner filings even while prison populations are exploding.172 At the same time, prisoners are no more successful in the remaining cases than they were prior to the PLRA; to the contrary, their success rates remain dismal.173 That being said, prisoners' rights litigation continues to be valuable and necessary. Indeed, to the extent prison health conditions have improved in recent decades, most improvement has "resulted from litigation, judicial oversight, and consent decrees, not from a public desire to treat prisoners more humanely."174 Without abandoning the still-useful tool of individual litigation, it appears to be time to move to a new vision of prison reform.175 The following section addresses that challenge.

C. POPULATION HEALTH: PROTECTING SOCIETY FROM THE EFFECTS OF BAD PRISON POLICY.

Impulses toward prison reform spring from the fellow-feeling toward prisoners and the pragmatic desire to have our penological methods serve the purposes of punishment. As society's belief in rehabilitation or redemption faded and was replaced by a focus on retribution and incapacitation,176 there was little pragmatic reason for decent prison treatment, and reasons rooted in fellow-feeling seemed quaint.177 Individual rights arguments can seem a bit sterile from this historical perspective; at least the Jacksonians sought to remake prisoners as useful citizens178 and 20th Century progressives sought to restore them as useful citizens.179 Individual rights arguments for decent health care are based "only" on principle- there is nothing in it for law-abiding citizens.

The argument for prison reform is strongest, of course, when it is supported both by principle and pragmatism. Put another way, our fellow-feeling for prisoners is somewhat grudging, and it forms a somewhat thin basis for what must be broadbased support for quite expensive reforms of an enormous prison system. The humanitarian basis for prison reform is noble and correct, but insufficiently persuasive \to cause society to open its purse strings for the benefit of prisoners. It must be coupled with a pragmatic argument directed to the free population's self-interest. That pragmatic argument is supplied by describing the public health consequences of inadequate programs of prison care and the salutary effects on public health of decent prison care: treat prisoners well and we all benefit by avoiding the personal health and financial consequences of releasing sick prisoners into the community.

IV. A THIRD WAVE OF REFORM: OBLIGATIONS TO OTHERS AND OPPORTUNITIES FOR OURSELVES.

The enormous prison population consists of sick and vulnerable men and women consigned to prison health services that often fail to provide even basic life-sustaining care and comprehensively fail to address such critical health areas as communicable diseases, sexually transmitted diseases, mental illness, and chronic diseases. Prison reform movements have sought to ameliorate inhumanely harsh prison conditions, including inadequate medical care, almost since the time of American independence. These movements first focused on humanitarian principles, and more recently on individual rights principles. Humanitarian arguments largely failed to improve prison conditions because society, outside the small committed groups of reformers, was uninterested or unwilling to commit the resources needed to enact reforms. After a period of success, individual rights arguments faced growing resistance from Congress and the courts. Society also became apathetic as interests in punishment and incapacitation seem more salient than prisoners' arguments for decent health care.

Individual rights and humanitarian arguments have failed to achieve remedies for substandard health care in part because of a failure to engage the self-interest of broader society. This Part will set out a vision of prison reform that seeks to unite the interests of prisoners with those of broader society. It links the personal health needs of prisoners with the broader social goals of population health. It first describes the discipline of public health, which is devoted to the goal of improving overall population health. It then identifies a growing movement seeking the successful reentry of released prisoners into their communities. It then relates the goals and methods of the reentry movement to the goals of public health, and argues that the logic of sound reentry programs demands improvement in the personal health services provided to prisoners. A common ground exists between prisoners and the broader population. A marriage of convenience is necessary and possible between the humanitarian or individual rights obligation to provide decent health care for prisoners' sake, and the public health opportunity to improve prison health care for the sake of the society to which most prisoners one day return.

A. THE CONNECTION: POPULATION HEALTH.

The humanitarian and individual rights based efforts to reform prison health were directed toward the treatments provided to prisoners-their personal medical care. The focus in medical care is the patient, "the individual person."180 Public health's goal, on the other hand, is not advancing the goals of personal medical care, but of public health or population health, in which "the 'patient' is the whole community or population."181 The orientations of personal medical care and public health have been distinguished in the following terms:

Public health can be distinguished from health care in several critical respects. Public health focuses on: (1) the health and safety of populations rather than the health of individual patients; (2) prevention of injury and disease rather than treatment or care; (3) relationships between the government and the community rather than the physician and patient; and (4) population-based services grounded on scientific methodologies of public health (e.g., biostatistics and epidemiology) rather than personal medical services.182

Public health, then, focuses on interventions and conditions affecting broad populations and not treatments provided to individuals. That focus can be conceived narrowly or broadly. In 1988, the Institute of Medicine articulated a well-accepted broad definition of public health as "what we, as a society, do collectively to assure the conditions for people to be healthy."183 Under this broad view, often called a "population perspective,"184 public health practice uses a broad array of public policy tools- legislation, regulation, litigation, and public education, for example-to improve society's health status. In this broad view, public health policy should serve a communal cost-benefit analysis, applying social resources cost-effectively to achieve optimal social health outcomes. This broad view of public health is captured by the following description from two of its proponents:

Commonly we ask: Why did this person get sick at this time? Why did this person die of heart disease? But from a population perspective, we have a different purpose. We want to know why this population (or community) has a higher rate of disease than other societies, or why disease rates in a society are on the rise. Which conditions we identify as "the cause" depends in large measure on our purposes. For example, alcoholism has often been viewed as the result of an individual failure to control one's drinking. Those who take a population perspective, however, are more likely to focus on the conditions in society that make excessive drinking likely, from the availability of alcohol to the social practices that encourage heavy or frequent use of alcohol.185

The broad understanding of public health as population health has achieved wide currency.186 Mark Rothstein, however, champions a narrower view of public health.187 After surveying the trend toward broader visions of public health,188 Rothstein advocates for a narrow vision that is limited to the actions taken by government public health agencies "pursuant to specific legal authority" to protect the public from health threats.189 Rothstein argues that public health principles and powers should apply only when the health of the public is threatened. The government has "unique powers and expertise" to respond to the threat, and government intervention is more efficient than the alternative responses.190

Attempts to set the proper scope of public health practice or policy can be described in political terms. The broad conception of public health policy that seeks to engage public and private resources in an egalitarian effort to improve the health of all members of society has historically been associated with European social democratic or American liberal thinkers.191 More recently, advances in social science have tended to squeeze the politics out of population health analysis, increasingly supporting apolitical judgments on the population health effects of public and private actions.192 This perspective is disputed, of course. Some regard the broader definitions of public health as straying too far from the older, narrower view of public health's function of "containing epidemics, contagion, and nuisances," and as injecting "meddlesome" public action into areas best left to private choice and market conduct.193

These definitions affect some, but not all, of the aspects of the argument for a third wave of prison health reform presented here. The treatment in prisons and jails of four types of conditions are described below: infectious diseases such as tuberculosis, hepatitis C, and HIV; sexually transmitted diseases such as syphilis and Chlamydia; chronic diseases such as diabetes, asthma, and hypertension; and serious mental illness such as schizophrenia and bipolar disorder.194 The first two categories-infectious diseases and sexually transmitted diseases-fit comfortably into even the narrowest of definitions of public health. The failure of prisons to properly treat prisoners with infectious diseases or sexually transmitted diseases endangers not only the prisoner, his fellow prisoners, and the staff, but also the broader community to which the prisoner returns when he is released. Poorly performing prison health services are failing in their obligations to treat these prisoners, but they are also missing the opportunity to address a public health threat to society, which bears the brunt when infected prisoners return home.195 Poorly performing prisons can even make things dramatically worse. For example, through misdiagnosis, poor administration of medications, and interruptions in treatment, prison health systems foster the creation of drug resistant strains of tuberculosis and HIV. In essence, prisons become factories for treatment resistant strains of deadly diseases that are then reintroduced into communities-typically communities underserved by medical providers.196

The remaining categories-chronic illness and mental illness-fit less well into the narrowest conceptualization of public health. When returning prisoners suffer from poorly treated asthma or schizophrenia, they do not introduce "epidemics, contagion, [or] nuisances"197 into their communities. Rather, they bring with them conditions that limit their ability to become productive participants in those communities. This places stress on health care systems and threatens the community's wellbeing.198 The poor care provided in prisons for chronic conditions and mental illness does not literally lead to a spread of those conditions to others in the community. It does, however, frustrate the process of reintegration for released prisoners and fosters recidivism, unemployment, homelessness for the former prisoner, and economic and emotional strain on his family and community.199 The opportunity lost when prisons fail to provide proper chronic care and mental health treatment is a failure of public health in the broader sense. The rejection of the public health labe\l changes little; these failures in prison health care comprise foolish and inefficient actions that miss clear opportunities to forestall disaster for prisoners, their families, and their communities.

B. THE CATALYST: THE REENTRY MOVEMENT.

America's prison population explosion has a back-end consequence. "[N]early 650,000 people were released from prison in 2004, while over 7 million different people were released from jails across the U.S."200 As these prisoners are released and return to their communities, the attention of governments and private agencies focuses on their reintegration into society.201 The concern for prisoner reentry is increasingly wide-spread; it is not an ideological movement, but rather a practical one engaging organizations broadly representative of public and private interests. Perhaps the most comprehensive study of the problems of prisoner reentry is the 2005 Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community.202 The reentry project that resulted in the Report was coordinated by the Council of State Governments, and included as project partners the American Probation and Parole Association, the Association of State Correctional Administrators, the National Center for State courts, and the Police Executive Research Forum.203 Advisory groups were peopled by police chiefs, corrections personnel, state legislators, and state social service personnel, as well as representatives from non-profit organizations and public policy centers.204 The process was not merely an exercise in liberal law reform. Rather, it was evidence that the reentry movement is a bipartisan effort to grapple with the social problems raised by the high rates of imprisonment and the consequent high rates of prisoner reentry. The goal of the reentry movement is to encourage public and private action that will "improv[e] the likelihood that a person will safely and successfully transition back to the community."205

With funding from the administrations of both Bill Clinton206 and George W. Bush,207 and participation by a wide range of public and private actors, the reentry movement is a substantial force in public policy development. The concerns addressed by the reentry process tend to be interlocking. One concern, for example, is public safety, and the problem of ex-prisoner recidivism.208 The problems of recidivism, however, are caused "in part [by] an unavailability of economic and social supports."209 Employment problems are central to those seeking to ease reentry, as ex-prisoners return to depressed communities, without skills, and face stigma and legal limitations on employment related to their history of convictions.210 Family issues also complicate the reentry process. Imprisonment strains parentchild and spousal relationships, and the family left in the community is often impoverished by one parent's imprisonment.211 An overarching issue is that of the "collateral consequences" of conviction-the often overlooked effects of conviction including ineligibility to vote, to live in public housing, to obtain a driver's license, to qualify for public benefits, and to apply for some jobs.212 These barriers frustrate reentry, as it is often "impossible for offenders to take certain steps generally considered crucial toward reintegration because of so-called collateral consequences, or collateral sanctions."213

The reentry movement urges decision makers to step back, reconsider the reintegration barriers prisoners face, and consider modifications to the policies and realities of conviction and imprisonment that would facilitate prisoner reentry without frustrating the punitive and incapacitating goals of imprisonment.214 Looming large in the reentry movement are health issues, primarily the health care to which prisoners transition upon release from imprisonment. As is described above, prisoners come to prisons and jails sicker than the background population,215 and once imprisoned receive some health services, however inadequate.216 The reentry movement seeks to ensure health care continuity as prisoners return to their communities, a process of providing "discharge planning."217

Discharge planning focuses on connecting a released prisoner to community health care providers in order to minimize the possibility that untreated health concerns will frustrate community reintegration.218 This process should include providing the prisoner with referrals, and making appointments with appropriate providers.219 In practice, the former occurs more frequently than the latter.220 Other services should include providing an interim supply of medications,221 giving the released prisoner a full copy of his medical records,222 and facilitating poor prisoners' eligibility for public benefits, including Medicaid.223 Although much of the reentry process focuses on the period just before and following prisoners' release, it is inevitable that analysis of the discharge planning process leads back to the medical care provided during imprisonment; facilitating the continuity of appropriate care, after all, presupposes the provision of appropriate care in the prison or jail from which the prisoner is released.224 This issue is taken up below.225

This discharge planning process is primarily concerned with the health of the released prisoner and his successful reintegration to the community. Discharge planning for "special needs" prisoners also raises public health concerns. Prisoners with TB and HIV, for example, may be on courses of medication requiring adherence to particularly rigorous administration schedules.226 The management of these "special needs" prisoners is a particularly problematic aspect of prison health; while many prisons and jails provide service referrals for released special needs prisoners, far fewer make appointments to connect them with services. Although some model programs exist,227 many seriously ill prisoners are lost to treatment.228

The reentry movement, then, is a broad-based, pragmatic, and bipartisan attempt to maximize the chances that released prisoners will successfully reintegrate into their communities. In the first instance, the health focus of the reentry movement is on the community linkages necessary to allow released prisoners to succeed. Failures to treat at reentry affect the community as well as the released prisoner. Unsuccessful reentry can burden families and communities when an ex-prisoner is unable to succeed as a parent, spouse, worker, or citizen. Failure to provide health services to reentering prisoners renders their success more doubtful.229 More concretely, failure to provide health services to reentering prisoners with infectious and sexually transmitted diseases presents the danger of transmission of illness to family members, neighbors, and others. It is clear, however, that thinking of health treatment for the first time at reentry is too late. The movement, however, has application to the public health arguments for reform of prison health services. Preparing for proper community transition of health care services must begin with appropriate health services in prison, to prepare the prisoner for reentry, and to protect the community to which he returns from the consequences of medical neglect.

C. OBLIGATIONS AND OPPORTUNITIES: REGARD FOR OTHERS AND PROTECTION OF OURSEEVES.

The reentry movement focuses on the health status of released prisoners and appropriate links to community health care in order to decrease the likelihood of recidivism and increase the likelihood of successful community reentry. Good reentry health planning necessitates attention to health care during imprisonment; reentry planning is frustrated by the failure of prisons to provide good health care services to prisoners. The reentry movement has drawn attention to the relationship between good prison health care and population health in two ways. First, poor prison health care can exacerbate chronic conditions such as asthma, hypertension, diabetes, schizophrenia, and bipolar disorder. Such failures threaten population health by straining the limited health services of the low-income communities to which prisoners frequently return,230 and by increasing the rates of medical complications ex- prisoners experience. Second, poor prison health care can fail to cure or control communicable diseases, including tuberculosis, HIV, syphilis, and Chlamydia, permitting threats of infection to move with prisoners to their communities.231

Acknowledging that humanitarian impulses and individual rights jurisprudence have proven inadequate bases for the reform of prison health services, this section employs public health principles to suggest a third vision of prison reform. It first considers the population health effects of poor prison health care for prisoners' chronic conditions and mental illnesses, and argues that the broad vision of public health supports arguments for prison health reform. Second, it considers the consequences of poor prison health care for prisoners' communicable and sexually transmitted diseases, and argues that even the narrow vision of public health supports arguments for prison health reform. Finally, it considers implementation issues: if there is to be a third vision of prison health reform, how will it effect change?

1. Population Health and Care for Prisoners' Chronic and Mental Illnesses.

Poor chronic disease and mental health treatment of prisoners affects the health of the communities to which prisoners return. Many prisoners suffer from chronic illnesses such as asthma, diabetes, and hypertension,232 and prisons generally fail to provide appropriate chronic care services.233 The failure to properly treat prisoners can heighten the risk of recidivism, as they will be less able to find work and fully reintegrate into their communities.234 The failure to treat chronic conditions in prisons can bur\den the underfunded health care facilities in the poor communities to which most released prisoners return.235 In addition, the failure to treat chronic conditions in prisons increases the overall social costs of care for those conditions:

The inmate whose diabetes is poorly managed while incarcerated is more likely to use costly health care services, such as dialysis for kidney failure, limb amputation, or emergency room visits for glucose (sugar) control when released into the community. Untreated hypertension, the most common chronic illness among adults (and inmates), can eventually require expensive health care services because it is a major risk factor for coronary heart disease, kidney failure, stroke, and blood vessel disease.236

Many prisoners did not have appropriate treatment of these chronic conditions in the distressed communities from which they came.237 The imprisonment of chronically ill persons thus presents a public health opportunity to provide cost effective services that will both facilitate successful reentry and reduce community and overall health care costs.

Mental illness provides another example of a public health opportunity in prison health. People with mental illness are dramatically overrepresented in prisons and jails.238 In addition, prisons may act as an amplifier, or "incubator."239 Many people who have not exhibited symptoms of mental illness in the free world develop mental illness in prisons due to the stress, crowding, harsh conditions (including solitary confinement), and lack of privacy.240 As is true of chronic illnesses generally, prisoners are likely to have experienced poor access to community mental health services prior to imprisonment.241 Indeed, it is the lack of community services that causes many people with mental illness to find themselves in prisons and jails.242 The mental health care provided in prisons and jails is inadequate to address the needs of this large population.243

Two of the shortcomings of prison mental health are worthy of particular note in the public health context. First, many prisoners who do receive mental health treatment are treated predominantly or exclusively with medications, and receive little or no additional therapy such as behavioral therapy and psychosocial rehabilitation.244 Such limited treatment may render a prisoner more docile by temporarily alleviating his symptoms, but it does not advance him toward wellness and recovery.245 As a result, prisons have missed "an important opportunity to provide [prisoners] with the cognitive and life skills enhancement that will increase the likelihood of successful reentry into society following release from prison."246 second, many symptoms of severe mental illness are treated by prisons as signs of disrespect or willful misbehavior, and the symptomatic prisoners are therefore confined in punitive solitary confinement rather than referred for treatment.247 Segregation in prisons is an extremely harsh punishment, and can mean lock-down in a solitary confinement cell for 23 or more hours per day for weeks or months at a time.248 As might be expected, such isolation can be devastating for prisoners with mental illness, causing unspeakably severe suffering.249

Prisons' treatment of chronic illness, then, fails to provide for the health care needs of a large number of prisoners. This failure obviously harms the prisoners during their imprisonment, and in addition reduces the probability of successful reentry. Prisons and jails lack proper mental health treatment that is particularly necessary for successful reentry and the promotion of public health:

Mental health treatment can help some people recover from their illness, and for many others it can alleviate its painful symptoms. It can enhance independent functioning and encourage the development of more effective internal controls. In the context of prisons, mental health services play an even broader role. By helping prisoners regain and improve coping skills, they promote safety and order within the prison community as well as offer the prospect of enhancing community safety when the offenders are ultimately released.250

Prisons that fail to provide appropriate chronic and mental health care not only hurt reentry efforts, but in addition harm public health by releasing prisoners who have become more ill during imprisonment to communities already underserved by community health providers. This stark failure to seize the opportunity to address health care needs is tragically inefficient in terms of long-term social costs of care, and demonstrably harmful to the population health of the communities to which prisoners are released.

2. Public Health and Care for Prisoners' Communicable Diseases.

Prisons' shortcomings in chronic and mental health care treatments constitute a failure of public policy, an impairment of reentry efforts, and a failure of the broader goals of public health policy. Prisons' failures in treating communicable and sexually transmitted diseases stand on an entirely different footing. With respect to these transmissible diseases, prisons' neglect and mismanagement of health care services is a public health disaster, no matter how narrowly one construes public health functions. To the extent they fail to screen for and properly treat transmissible diseases, prisons and jails act as "epidemiological pumps," permitting the agents for tuberculosis, HIV, and other conditions to spread within prisons, perhaps mutate into treatment resistant forms, and then travel with released prisoners to infect the broader community.251 In connection with transmissible diseases such as tuberculosis, HIV, syphilis, and Chlamydia, the strongest public health argument becomes clear. Even if we care nothing for the prisoners themselves; even if we think that public health should concern itself with nothing but "containing ; epidemics, contagion, and nuisances;"252 even if we believe that the public health function is properly served only by government agencies responding to specific threats to public threats,253 public health principles demand reform of prison health services to address their failure to contro

Source: American Journal of Law and Medicine

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