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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
JOHN V. JACOBI∗
Abstract
Prison and jail populations are at record highs after twenty years of
increasingly tougher sentencing laws. Simultaneously, government revenues are strained
as a result of anti-tax sentiments. The result is too often inadequate and dangerous
prison health care. The problem is very large, but not very new. American prisoners in
all eras have suffered unhealthy conditions. Prison reformers from the founding of the
Republic have argued for conditions reform on humanitarian grounds, and on the
grounds that rehabilitation suffers when conditions are inhumane. Those arguments
have not achieved significant improvements. More recently, the civil rights revolution of
the 1960s and 1970s fostered a flowering of prison litigation based on the prisoners’ own
rights. After a brief period of expansion, the Court’s and legislatures’ anti-prisoner
reactions have rendered prison litigation difficult to pursue and prisoners’ rights difficult
to vindicate.
This paper argues for a new vision of prison health reform. It argues that
reform arguments should couple humanitarian impulses with pragmatic concerns.
Almost all prisoners are eventually released. Poor prison health care is increasingly
creating public health risks to the general population, and in particular to the
communities to which prisoners return. Failure to treat chronic conditions and mental
illness creates strains on community health providers and families, and causes
recidivism. Failure to properly treat communicable diseases such as tuberculosis, HIV
disease, hepatitis C, and syphilis harms the public more directly by exposing them to
infection. The danger of the infection can be enhanced by poor prison care, as
inconsistent treatment can produce treatment resistant microbes, allowing extremely
deadly tuberculosis and HIV microbes to spread on prisoners’ release. Prison health
reform is therefore a selfless and a selfish act, as it protects the health of both prisoners
and society more broadly. The paper finally sketches out some legal theories that may be
brought to bear in forcing reform of prison health services.

∗

Professor of Law and Associate Director of the Health Law & Policy Program, Seton Hall Law School,
jacobijo@shu.edu. Thanks to Tara Swenson for excellent research assistance. Contact at:
jacobijo@shu.edu.

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES

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. We imprison a higher percentage of our population than any
other country. Those we imprison are disproportionately poor, of color,
uneducated, and sick. They have chronic conditions, mental illnesses, sexually
transmitted diseases and other infectious diseases. They usually receive
inadequate health care – and sometimes shockingly poor care. 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. 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 equal parts 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. If, due to poor prison health care, they return with uncontrolled syphilis,
tuberculosis, HIV disease, and other infectious conditions, they will infect
those around them. In these circumstances, prisons and jails serve as
“epidemiological pumps,”2 amplifying infectious conditions, perhaps even
1

Norvall Morris and David Rothman, Introduction, in THE OXFORD HISTORY OF THE PRISON: THE
PRACTICE OF PUNISHMENT IN WESTERN SOCIETY XIII (Norvall Morris and David J. Rothman, eds. 1998), at
xiii.
2
See infra text at notes 223-225.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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
works 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 I 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. Part II 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 III 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.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
I. 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. 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 2003.3 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.4 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 65.5 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.6
The majority of those in prisons and jails are black or Hispanic. In
federal and state prisons, the racial composition in 2003 was 35 percent white,
44.1 percent black, 19 percent Hispanic, and 1.9 percent other.7 In local jails,
the composition was similar: 36 percent white, 40.1 percent black, 18.5 percent
Hispanic, and 5.4 percent other.8 The impact of the growth of imprisonment
has been most severe on black men.9 Almost three in ten black males (28.5
percent) will be incarcerated at some point in their lives.
The figure for
Hispanic men is three in twenty (16 percent), while that for white men is fewer
than one in twenty-five (4.4 percent).10 The rate of incarceration for young
black men is staggering. For example, in New York State in 1994, fully one in

3

U.S. Dep’t. of Justice, Bureau of Justice Statistics, Key Facts at a Glance: Correctional populations:
Number of persons under correctional supervision, (2004) available at
http://www.ojp.usdoj.gov/bjs/glance/tables/corr2tab.htm.
4
See The Sentencing Project, New Incarceration Figures: Growth in Population Continues at 5 (May
2005) available at http://www.sentencingproject.org/pdfs/1044.pdf.
5
See International Centre for Prison Studies, Entire World-Prison Population Rates per 100,000 of the
national population (March 23, 2005) available at http://www.prisonstudies.org/. The International Centre
for Prison Studies is in the School of Law, King’s College, University of London, and it has maintained a
regularly updated compilation of incarceration rates since 2000. Id.
6
See MARC MAUER, RACE TO INCARCERATE 17 (1999).
7
Paige M. Harrison and Allen J. Beck, Prisoners in 2003, at 9 (U.S. Dep’t. of Justice, Bureau of Justice
Statistics, November 2004) available at http://www.ojp.usdoj.gov/bjs/abstract/p03.htm.
8
Doris J. James, Profile of Jail Inmates, 2002, at 2 (U.S. Dep’t. of Justice, Bureau of Justice Statistics,
July 2004, Revised October 12, 2004) available at http://www.ojp.usdoj.gov/bjs/abstract/pji02.htm.
9
See MAUER, supra note 6 at 124-25.
10
See Thomas P. Bonczar and Allen J. Beck, Lifetime Likelihood of Going to State or Federal Prison at 1
(March 1997) available at http://www.ojp.usdoj.gov/bjs/pub/pdf/llgsfp.pdf.

3

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
four black men between the ages of 20 and 29 were in prison or jail, or on
probation or parole.11
Prisoners are remarkably less educated than the general population.
Almost 75 percent of state prison inmates and almost 69 percent of those in
local jails did not complete high school, compared with 18.4 percent of the
general population.12 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.13 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.14 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.
Two million prisoners do not reflect a cross-section of America; they
are poorer, less well-educated, and much more likely to be of color. 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.15

11

SCOTT CHRISTIANSON, WITH LIBERTY FOR SOME 281 (1998).
Carol Wolf Harlow, Education and Correctional Populations, at 2-3 (U.S. Dep’t. of Justice, Bureau of
Justice Statistics, January 2003, Revised April 14, 2003) available at
http://www.ojp.usdoj.gov/bjs/abstract/ecp.htm. The state prison and general population figures are from
1997, and the jail figures are from 1996.
13
Bruce Western, Vincent Shiraldi, and Jason Ziedenberg, Education & Incarceration at 7 (Justice Policy
Institute, August 28, 2003), available at
http://www.soros.org/initiatives/justice/articles_publications/publications/education_incarceration_200308
28/EducationIncarceration1.pdf.
14
See Harlow, supra note 12 at 10. See also MAUER, supra note 6 at 162-63.
15
RE-ENTRY POLICY COUNCIL, REPORT OF THE RE-ENTRY POLICY COUNCIL: CHARTING THE SAFE AND
SUCCESSFUL RETURN OF PRISONERS TO THE COMMUNITY 157 (2005) (footnotes omitted) (hereafter,
“REPORT OF THE RE-ENTRY POLICY COUNCIL”). (The Re-Entry Council was formed by the Council of
State Governments and was funded by the United States Departments of Justice, Labor, and Health and
Human Services. Project partners included the American Probation and Parole Association, the
Association of State Correctional Administrators, and the National Center for State Courts. ). See
Theodore M. Hammett, Cheryl Roberts, and Sofia Kennedy, Health-Related Issues in Prisoner Reentry,
47:3 CRIME & DELINQUENCY 390, 390 (2001) (“Prison and jail inmates represent an extremely large
population that is disproportionately burdened with problems of physical and mental illness and substance
abuse.”).
12

4

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
They are sicker going in, and they are also sicker when they are released.16
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.17
1. Communicable diseases.
Communicable diseases are spread from person to person, easily (as with
TB, transmissible by air) or with more difficulty (as with hepatitis,
transmissible with direct contact between persons’ bodily fluids).18 The rate
of infection with communicable diseases among prisoners is startlingly high.
They are disproportionately infected when they arrive in prison. 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.”19
Prisoners are disproportionately infected when they are released from
incarceration. Large though the prisoner population is in the United States, it
is still a small percentage of the overall population. Released prisoners,
however, are greatly over-represented in the population infected with
communicable diseases. Released prisoners in 1996 accounted for 35 percent
of all people in the United States with tuberculosis, 29 percent of those with
hepatitis C, 12 percent of those with hepatitis B, and 13 percent of those with
HIV infection.20
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 percent of
prisoners are infected with syphilis, 2.4 percent with chlamydia, and 1 percent
with gonorrhea.21 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.”22 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
16

See NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, THE HEALTH STATUS OF SOON-TO-BERELEASED INMATES: A REPORT TO CONGRESS, VOLUME 1, 17-19 (March 2002) (hereafter, “NCCHC
REPORT TO CONGRESS”).
17
The National Commission on Correctional Health Care uses these categories to discuss prisoners’ health
status. See NCCHC REPORT TO CONGRESS, supra note 16 at 15.
18
See TABER’S CYCLOPEDIC MEDICAL DICTIONARY 362-65 (15th Ed. 1985).
19
Nicholas Freudenberg, Jails, Prisons, and the Health of Urban Populations: A Review of the Impact of
the Correctional System on Community Health, 78:2 J. URBAN HEALTH 214, 217 (2001) (footnotes
omitted).
20
NCCHC REPORT TO CONGRESS, supra note 16 at 19. See Freudenberg, supra note 19 at 218 (30 to 40
percent of prisoners are infected with hepatitis C; rates of infection with other communicable diseases also
high).
21
NCCHC REPORT TO CONGRESS, supra note 19 at 18.
22
Freudenberg, supra note 19 at 218 (footnotes omitted).

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
women in the general New York City population “by more than a thousandfold.”23 A 1999 study of early syphilis in Chicago found that “almost one
third of all incident cases. . . were diagnosed at Cook County Jail.”24
3. Chronic illness.
A large number of prisoners have serious chronic illnesses. The rate in
United States prisons and jails in 1995 of asthma was 8.5 percent; diabetes, 4.8
percent; and hypertension, 18.3 percent.25 The rate for asthma was higher than
that of the general population.26 The rates for diabetes and hypertension were
lower than the general population.27 The relative youth of the prison
population, however, coupled with the fact that both diabetes and hypertension
are more likely to arise in older persons, suggests that prison populations are
disproportionately affected by these conditions as well.28
4. Mental illness.
America’s prisons and jails have, with the sharp reduction in the census
in mental hospitals, become the “new asylums.” The simultaneous surge in
imprisonment of people with mental illness and decrease in institutionalization
in mental hospitals has been referred to as “transinstitutionalization.”
Transinstitutionalization has been attributed to the failure of the community
mental health system to provide services to those cleared from psychiatric
hospitals in the process of deistitutionalization, and to 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.29 “The nation’s largest mental health facilities are now found in urban
jails in Los Angeles, New York, Chicago, and other big cities.” 30
About 16 percent of people in state prisons and jails have a mental
illness. 31 About seven hundred thousand people with mental illness are placed
in American jails each year,32 about three-quarters of whom also have
substance abuse disorders.33 The incidence of mental illness, particularly
23

Id. (footnote omitted).
Hammett, Roberts, & Kennedy, supra note 15 at 391 (reference omitted).
25
NCCHC REPORT TO CONGRESS, supra note 16 at 21.
26
Id. See Hammett, Roberts & Kennedy, supra note 15 at 390.
27
NCCHC REPORT TO CONGRESS, supra note 16 at 21. But see Freudenberg, supra note 19 at 221 (citing
“anecdotal reports, commentaries, and facility case histories” for the proposition that rates of diabetes and
hypertension, as well as seizure disorder were above the rates in the general population).
28
See NCCHC REPORT TO CONGRESS, supra note 16 at 21; Hammett, Roberts & Kennedy, supra note 15
at 390-91.
29
See TERRY KUPERS, PRISON MADNESS: THE MENTAL HEALTH CRISIS BEHIND BARS AND WHAT WE
MUST DO ABOUT IT xv-xvi (1999); T. Howard Stone, Therapeutic Implications of Incarceration For
Persons With Severe Mental Disorders: Searching for Rational Health Policy, 24 AM. J. CRIM. L. 283, 291
(1997).
30
Freuedenberg, supra note 19 at 220.
31
Freuedenberg, supra note 19 at 220, citing Paula M. Ditton, Mental Health and Treatment of Inmates
and Probationers, at 1 (U.S. Dep’t. of Justice, Bureau of Justice Statistics July 1999) available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf.
32
Freuedenberg, supra note 19 at 220.
33
See COUNCIL ON STATE GOVERNMENTS, CRIMINAL JUSTICE/MENTAL HEALTH CONSENSUS PROJECT 4
(2002) available at www.consensusproject.org (hereafter, “CRIMINAL JUSTICE/MENTAL HEALTH
CONSENSUS PROJECT”). The Consensus Project was coordinated by the Council on State Governments with
24

6

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
major mental illness, is substantially higher is prisons and jails than in the free
world.34 The incidence of schizophrenia in state prisons is three to five time
higher than in the general population,35 and two to three time higher in jails
than in the general population.36 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.37 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.”38
C. The status of prison health services.
Prison conditions in America have been dismal since the founding of
the Republic. Oppressive, brutal conditions predominated with reformist zeal
for improving the conditions leading to brief periods of improvement.39
Overcrowded, brutal prisons are of course unhealthy, and prison reformers of
course attempted to ameliorate those conditions.40 With the rise in the 20th
Century of curative medicine, 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 delay, denied, or provided by untrained fellow prisoners.41 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 federal and state sources 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.” 42 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.43 Shortly after the Re-Entry Council issued its
report, a federal judge blasted California’s prison health care, issuing an Order
the assistance of, among others, The Bazelon Center for Mental Health Law, The Association of State
Correctional Administrators, and the Association of State Mental Health Program Directors. Id. at iii.
34
See NCCHC REPORT TO CONGRESS, supra note 16 at 24.
35
Id.
36
Id.
37
See Stone, supra note 29 at 287; NCCHC REPORT TO CONGRESS, supra note 16 at 22-26.
38
See Stone, supra note 29 at 287.
39
See infra Part IIA and B.
40
See infra text at notes 92-97.
41
See infra text at notes 102-105.
42
See REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at 157.
43
Id. (“California alone spent nearly one billion dollars (about one-sixth of its total corrections budget) on
health services for its 160,000 inmates in the 2002-03 fiscal year, nearly doubling its correctional health
care costs from 1999.”) (footnote omitted).

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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.44 The text of the order relates a hairraising account of a “totally broken system”45 The court found that,
[e]ven the most simple and basic elements of a minimally adequate
medical system were lacking.”46 In one of the California prisons toured
by the Judge, “the 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.47
Expert reports on this prison noted referral slips for health care unattended for
over one month,48 and dirty, dangerous, and antiquated facilities, unchanged by
prior court orders due to the indifference of corrections officials.49
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.”50
Plata does not stand alone. A1999 decision51 decried the fact that, after
27 years of litigation, the Texas Department of corrections continued to
provide care through inadequately trained personnel,52 failed to treat or even
properly isolate, prisoners with infectious tuberculosis,53 and denied
psychiatric care to prisoners clearly in crisis.54 Similarly, a 1998 decision
reviewed a two-decade history of noncompliance with an order on medical
care within the Puerto Rican prison system55 found deteriorating conditions in
which prisoners were denied emergency treatment, medications, prescribed
medically necessary care, and essential psychiatric services, leading to prisoner

44

Plata v. Schwarzenegger, Civ. No. C01-1351 THE, Order to Show Cause Re: Civil Contempt and
Appointment of Interim Receiver (May 10, 2005) at 2, available at
http://www.cand.uscourts.gov/cand/judges.nsf/0/43baa340b75c167288256ffd007bb1d5/$FILE/Plata%20O
SC.pdf.
45
Id. at 4 (quoting with approval report of a court-appointed expert).
46
Id. at 4.
47
Id.
48
The comment of the nursed assigned to this area of the prison was, “Some of these guys are either dead
or better, one of the two.” Id. at 6.
49
Id. at 5-6.
50
Id. at 8.
51
Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999). The court also found that
52
Id. at 897-98.
53
Id. at 897.
54
Id. at 904.
55
Felilciano v. Gonzalez, 13 F. Supp. 2d 151, 158-59 (D.P.R. 1998).

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
deaths and “actual pain and suffering with no conceivable penological purpose.
. ..”56
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 health57 -- 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. 58 “Very few correctional systems routinely
screen inmates for syphilis,”59 and therefore are able to provide treatment for
only 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.60 HIV care in many facilities is inadequate; prevention
programs are often nonexistent, and testing is not widely provided.61 In some
facilities, antiretroviral drugs for the treatment of HIV are provided
inconsistently, leading to the development of treatment resistant strains of the
virus.62 A recent survey of mental health care provided in prisons and jails
resulted in a damning report, documenting poor intake screening of prisoners
for mental health needs;63 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”;64 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;65
and a dearth of appropriate facilities for crisis care.66
56

Id. at 179-82.
See supra, Part I(B).
58
See NCCHC REPORT TO CONGRESS, supra note 16 at 30. See also Ruiz v. Johnson, 37 F. Supp. 2d 855,
899 (S.D. Tex. 1999) (documenting poor diabetes care); Madrid v. Gomez, 889 F. Supp. 1146, 1210-11
(N.D. Cal. 1995) (no established protocols for diabetes or hypertension).
59
See NCCHC REPORT TO CONGRESS, supra note 16 at 29. See also Madrid v. Gomez, 889 F. Supp. 1146,
1205 (N.D. Cal. 1995) (no testing for syphilis).
60
See NCCHC REPORT TO CONGRESS, supra note 16 at 31. See also Ruiz v. Johnson, 17 F. Supp. 2d 855,
897 (S.D. Tex. 1999) (finding that HIV-infected prisoners were exposed to infections TB patients, and
documenting “significant, even deadly, inadequacies in the level of care provided to ill inmates.”);
Feliciano v. Gonzalez, 13 F. Supp. 2d 151, 174 (D.P.R. 1998) (lack of proper isolation facilities for TB);
Madrid v. Gomez, 889 F. Supp. 1146, 1205 (N.D. Cal. 1995) (finding “slipshod” TB testing and follow-up
care; of those testing positive for TB, over one-half were never treated).
61
See NCCHC REPORT TO CONGRESS, supra note 16 at 29. See also Madrid v. Gomez, 889 F. Supp. 1146,
1205 (N.D. Cal. 1995) (no education or outreach for HIV; no encouragement of voluntary testing).
62
See Feliciano v. Gonzalez, 13 F. Supp. 2d 151, 181 (D.P.R. 1998). See also infra Part IIIC(2)
(describing effect of inconsistent administration of HIV drugs).
63
HUMAN RIGHTS WATCH, ILL EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS 101
(2003).
64
Id. at 103-09.
65
Id. at 109-27.
66
Id. at 128-30; KUPERS, supra note 29 at 75-76.
57

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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 their
beginnings in the 18th Century, through waves of brutal 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.
II. 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”?67 Are they
“disgusting objects of popular contempt”?68 Are they erring members of a
rational, contractarian society who must be subjected to clear, moderate laws
just sufficiently punitive to deter?69 Are they ignorant or faulty citizens who
must be corrected and rehabilitated so as to become useful members of
society?70 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?”71 It has been said that prisoners include “the best and the
worst among us.”72 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
67

See JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGE OF PRISONER REENTRY XXVI
(2005) (describing the importance of the language used in the prison context, and noting the tendency of
the terms used to characterize prisoners as “other” or different from “us”). I agree with Travis’s choice of
language, and for many of the reasons he cites, see id. at xxv-xxvi, I tend toward the terms “prisoner” and
“imprison” rather than “inmate” or “incarcerate.” Personal experience has taught me that many prisoners,
subjected to harsh, violent, anti-therapeutic treatment, are offended by the falsely therapeutic ring (in
today’s prisons) of the designation “inmate.”
68
Note, Matthew W. Meskell, The History of Prisons in the United States from 1777-1877, 51 STANFORD
L. REV. 839, 839 (1999) quoting HARRY ELMER BARNES, THE EVOLUTION OF PENOLOGY IN PENNSYLVANIA
64 (1968), in turn quoting Robert Vaux, describing Pennsylvania jails in 1776.
69
See DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM 59-61 (Revised edition 1990) (hereafter,
“DISCOVERY OF THE ASYLUM”) (describing an Enlightenment sensibility, drawn largely from the writings
of Cesare Beccaria. This contractarian view comprised in part a Revolutionary reaction to the harsh, brutal,
and sometimes arbitrary British punishment systems.).
70
Id. at 97-103 (describing early 19th Century prison philosophy).
71
Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974).
72
THE OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY XIII
(Norvall Morris and David J. Rothman, eds. 1998) (hereafter, “OXFORD HISTORY OF THE PRISON”).

10

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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.73
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”74 – prisoners
return to society, and we harm society when the conditions of their
imprisonment predictably render released prisoners a health hazard to their
communities.75
Many people – perhaps a majority – more or less agree with this
fellow-feeling argument to some degree; most, of course, also believe that
prisoners, by dint of their crimes, have forfeit to a greater or lesser degree
claims to comfort or compassion.
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,76 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 mid 20th
Century saw a form of other-regarding argument. During that period,
advocates rooted their arguments in humanitarian or religious terms, and
expressed concern for prisoners as fellow human beings, deserving humane
care.77 The next period, beginning in the mid 20th Century and arguably
extending to the present, saw emphasis on the individual rights of prisoners.
During that period, advocates argued that prisoners could vindicate their
constitutional and statutory rights through litigation notwithstanding their
imprisonment.78 Both of these approaches achieved some progress, but
ultimately failed to reach their goals, as the arguments could not overcome
73

Id. The quote is from the introduction to THE OXFORD HISTORY OF THE PRISON, which is the work of its
editors, Norval Morris and David J. Rothman.
74
See generally TRAVIS, supra note 67.
75
See infra Part IIC.
76
See Scott Christianson, With Lilberty For Some: 500 Years of Imprisonment in America xv (1998)
(“Prisons are repositories of failure that remind us of problems which would prove unsettling if put in open
view. So we hide them in remote places and keep them guarded and inaccessible to outsiders. Few of us
want to face what seems so messy, so troubling, so well concealed.”).
77
See infra Part II(A).
78
See infra Part II(B).

11

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
social concerns over cost and disinterest in the well-being of prisoners.
Finally, in a shift introduced in this Part and more fully described in the
following, advocates have advanced arguments based on the interests of
communities to which prisoners return after release. 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. Even if people care nothing for
prisoners themselves, the argument goes, they should care about themselves,
and therefore support good prison health care.79
A. Other-regarding approach: empathy and rehabilitation.
“Imbalance and inflexibility” characterized responses to crime in the
American colonial period.80 Adhering to British models, some crimes resulted
in a fine, or “banishment” – the requirement that an offender merely move on
to the next town.81 Other crimes, or crimes committed by recidivists, were
dealt with brutally, by whippings and execution.82 Prisons and jails were not
used for punishment, but only as holding facilities for those awaiting trial.83
Post-revolutionary states turned away from the British model, embracing
instead Enlightenment principles of rationality and self-direction.84 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.85 Alternative forms
of punishment were necessary; imprisonment filled the void.86
Imprisonment as punishment, then, was a humanitarian reform in postrevolutionary America, as “[i]ncarceration seemed more humane than hanging
and less brutal than whipping.”87 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. The end of jury
nullification would lead to more certain consequences for criminal acts, and all
Americans, embodying the Enlightenment ideal of the clear-eyed rationalist,
would choose to obey the law.88 The faith that sentencing reform and a shift
from brutal to more benign incarcerative punishments would lead to reductions
in crime rates made it natural that the actual management of the prisons was
ignored. If the very fact of imprisonment as a certain punishment would deter
79

See infra Part II(C).
DISCOVERY OF THE ASYLUM, supra note 69 at 51.
81
Id. at 48-50.
82
See id. at 48-51; David J. Rothman, Perfecting the Prison: United States, 1789-1865 in OXFORD
HISTORY OF THE PRISON, supra note 72 at 101; Meskill, supra note 68 at 841.
83
DISCOVERY OF THE ASYLUM, supra note 69 at 48.
84
Rothman, supra, note 82 at 102-03; Meskill, supra note 68 at 843.
85
DISCOVERY OF THE ASYLUM, supra note 69 at 59-60.
86
Id. at 61.
87
Id. at 62.
88
Id. at 61-62; Meskill, supra note 68 at 844-49; MICHAEL SHERMAN AND GORDON HAWKINS,
IMPRISONMENT IN AMERICA 82-83 (1981).
80

12

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
crime, prison populations would surely be low and prison management
unimportant.89 The first crisis in the American experiment with imprisonment
as 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.90 Attention, therefore, shifted from sentencing reform to
prison management,91 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, resulting in 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. The first reforms in the
1820s reacted to both the brutality of conditions and prisons’ failure to reduce
crime, and reinvented prisons as “penitentiaries.”92 Prisons were chaotic and
violent; penitentiaries, originating in Pennsylvania and New York, sought
through silence and contemplation to correct the prisoner by separating him
from his corrupt environment and “[t]eaching him the habits of order and
regularity.”93 Reformers focused on prisoners’ spirit and soul, making up for
familial and social failings through the imposition of a stern but wholesome
setting.94
They failed. The penitentiaries, like the jails and prisons they were
meant to replace, were by the 1850s “characterized by overcrowding, brutality,
and disorder.”95 By the post-Civil War period, the goal of rehabilitation was
abandoned, and penitentiaries were merely warehouses for too many prisoners
in extremely harsh conditions.96 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.97
Another wave of reforms followed the 1867 report of Cobb Wines and
Theodore Dwight on prison conditions.98 Wines and Dwight reported
widespread overcrowding and brutal treatment.99 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
89

See Rothman, supra note 82 at 103; DISCOVERY OF THE ASYLUM, supra note 69 at 62.
See Rothman, supra note 82 at 103-04; DISCOVERY OF THE ASYLUM, supra note 69 at 62.
91
DISCOVERY OF THE ASYLUM, supra note 69 at 62.
92
Id. at 79.
93
Id. at 83. See DWIGHT JARVIS, INSTITUTIONAL TREATMENT OF OFFENDERS 25-29 (1978) (describing
Pennsylvania and New York (Auburn) plans).
94
DISCOVERY OF THE ASYLUM, supra note 69 at 72-75.
95
Rothman, supra note 82 at 112. See SHERMAN & HAWKINS, supra note 88 at 89 (Jacksonian reforms
failed, brutality dominated prisons).
96
Id. at 112-13; DISCOVERY OF THE ASYLUM, supra note 69 at 240-42.
97
Edgardo Rotman, The Failure of Reform: United States, 1865-1965 in OXFORD HISTORY OF THE PRISON,
supra note 72 , 151, 152-53; Meskill, supra note 68 at 860-61; DISCOVERY OF THE ASYLUM, supra note 69
at 253-54.
98
Rotman, supra note 97 at 154.
99
Id.
90

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
a means to encourage prisoners to participate in their own reformation.100
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.”101
In the early 20th Century, Progressive reformers decried unsanitary,
overcrowded, and vermin-ridden prison conditions.102 The Progressives
sought to “cure” criminals rather than punish them, using the new disciplines
of psychiatry and social work.103 They hoped that according prisoners dignity
and providing a level of self-direction within prisons would ease prisoners’
reintegration into society upon release.104 Although Progressive reforms
improved some aspects of prison treatment, the indifference of prison
management and society at large toward prisoners’ welfare and the lack of
financial support for humane conditions doomed the effort.105 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.
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, leaving
prisons in the mid-20th Century where they had been at the opening of the 19th:
unhealthy and overcrowded. 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 invested
with individual rights rooted in the Constitution that empowered them to seek
remedies for oppressive prison conditions in their own name and by their own
right. The strength of this strategy was that it did not rely on the kindness or
sympathy of strangers, but rather placed in the hands of prisoners themselves
the tools to achieve – or at least seek – decent conditions.
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 Project106 and John Boston of the Prisoners’ Rights Project of the Legal

100

Id. at 155-56; TRAVIS, supra note67 at 10-11; SHERMAN & HAWKINS, supra note 88 at 91.
Rotman, supra note 97 at 156.
102
Id. at 157-58.
103
Id. at 158-59.
104
Id. at 160.
105
Id. at 168-69.
106
See Malcolm M. Feeley and Van Swearingen, The Prison Conditions Cases and the Bureaucratization
of American Corrections: Influences, Impacts and Implications, 24 PACE L. REV. 433, 453 (2003)
(recognizing Alvin Bronstein as a leader in prison litigation).
101

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
Aid Society of the City of New York. 107 Second, prison reform litigation does
not occur in isolation, and the positive effects associated with it 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.108 The focus shifted, however, from outsiders’ otherregarding efforts to prisoners’ individual rights claims when prison reform
embraced the civil rights movement. 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.109 The decades of the 1960s and 1970s saw dramatic recognition of
prisoners’ constitutional rights and of the power to vindicate those rights in
federal courts. In 1964, the Court allowed a § 1983 cause of action110 by a
group of Muslim prisoners against prison officials for violations of their right
to religious exercise.111 First amendment protections were soon extended to
prisoners observing less conventional religions,112 and to prisoners seeking
uncensored access to mail,113 and due process protections were recognized in
disciplinary hearings.114
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.”115 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.116 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.”117 Medical
personnel (even unlicensed staff) was in such short supply that even

107

See Testimony of John Boston to the Commission on Safety and Abuse in America’s Prisons, April 20,
2005, available at http://www.prisoncommission.org/statements/boston_john.pdf (describing long course of
litigation on behalf of prisoners’ rights to safe conditions).
108
See Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PENN. L. REV. 639, 656,
57 (1993) (noting the interplay between courts and broader social forces in advancing prison reform goals).
109
See JOHN A. FLITTER, PRISONERS’ RIGHTS: THE SUPREME COURT AND EVOLVING STANDARDS OF
DECENCY 64 (2001).
110
42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167, 179-80 (1961) (recognizing – revitalizing – the §
1983 cause of action for persons deprived of federal rights by those acting under color of state law).
111
Cooper v. Pate, 378 U.S. 546 (1964).
112
Cruz v. Beto, 405 U.S. 319 (1972).
113
Procunier v. Martinez, 416 U.S. 396 (1974).
114
Wolff v. McDonnell, 418 U.S. 39 (1974).
115
Battle v. Anderson, 376 F. Supp. 402, 415 (E.D. Okla. 1974).
116
Id. at 415-16.
117
Newman v. Alabama, 379 F. Supp. 278, 281 (D. Ala. 1972) (internal quotations and citations omitted).

15

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
emergency conditions often went untreated.118 The lack of treatment or
treatment by untrained persons (including prisoners) lead to gruesome injuries
and many deaths.119
The Supreme Court addressed the rights of prisoners to adequate health
care in 1976 in Estelle v. Gamble.120 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.”121 It held that prison officials’
“deliberate indifference to serious medical needs of prisoners” violates the
constitutional standard.122 The recognition of prisoners’ constitutional rights in
cases such as Cooper, Procunier, and Wolff suggested a venue for reform
arguments and a robust doctrinal foundation for the advocacy of decent
treatment. Estelle in particular suggested that federal courts would address in a
sustained way the issues humanitarian reform efforts had succeeded in
bringing to the public debate only sporadically: the state’s responsibility to
provide safe and healthy conditions for prisoners. Indeed, subsequent
decisions demonstrate the partial fulfillment of that promise, as courts have
occasionally reviewed closely prison conditions and ordered relief where
medical123 and mental health124 care has been shown to violate the Estelle
standard.
But the individual rights model of prison reform has been significantly
restrained by the Court and Congress in the last 20 years. Perhaps most
tellingly, Turner v. Safley signaled a shift in prison jurisprudence when it
refused to apply the usual strict scrutiny standard to a prisoner’s First
Amendment right to marry.125 Instead, the Court permitted prisons to restrict
prisoner’s right to marry so long as the restriction is “reasonably related to
legitimate penological concerns.”126 The Court also cut back on Eighth
Amendment review by imposing increasingly difficult scienter
requirements.127 In addition, it found that prisoners’ procedural due process
rights attached only if the deprivation at issue subjected the prisoner to
118

Id. at 282.
Id. at 283-85.
120
Estelle v. Gamble, 429 U.S. 97 (1976).
121
Id. at 102 (internal quotations and citations omitted).
122
Id. at 104.
123
See Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999); Plata v. Scharzenegger, Civ. No. C01-1351
THE, Order to Show Cause Re: Civil Contempt and Appointment of Interim Receiver (May 10, 2005)
available at
http://www.cand.uscourts.gov/cand/judges.nsf/0/43baa340b75c167288256ffd007bb1d5/$FILE/Plata%20O
SC.pdf.
124
See Coleman v. California, 912 F. Supp. 1282 (E.D. Cal. 1995).
125
Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner standard of review applies to a broad range of
constitutional claims that arise in prisons, see Johnson v. California, 125 S.Ct. 1141, 1148 (2005). It does
not apply to 8th Amendment claims, where the Court continues to apply the Estelle deliberate indifference
standard, see Hope v. Peltzer, 536 U.S. 730, 738 (2002). The Court recently held that strict scrutiny
continues to apply to at least one species of claim in prisons: race discrimination. Johnson v. California,
125 S.Ct. 1141, 1148-50 (2005).
126
Id.
127
See Wilson v. Seiter, 501 U.S. 294, 296 (1991); Helling v. McKinney, 509 U.S. 25, 27 (1994).
119

16

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
“atypical and significant hardship.”128 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,129 and broadly construed prisons’ ability to break
promises made in connection with consent decrees.130
Congressional action has also significantly reduced the efficacy of
prison litigation as a means of advancing prison reform. The Prison Litigation
Reform Act (“PLRA”)131 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.”132 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
requires instead increased documentation of financial status and installmentplan payment of the full fees from whatever wages the prisoner earns.133 In
addition, the PLRA requires that prisoners exhaust all “available” remedies
prior to filing a civil complaint.134 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 the
effectiveness of the remedy, thereby requiring exhaustion of even absolutely
futile administrative steps.135 The PLRA also limits the effectiveness of
remedies available to prisoners by sharply limiting their breadth,136 and
permitting consent decrees to be modified or terminated under certain
conditions two years after their entry.137 Money damages remedies and
attorneys fees are also limited.138
The development of a prisoners’ rights jurisprudence in the 1960s and
1970s was directed at the same goal embraced by 19th and early 20th Century
reformers: safe and healthy conditions for prisoners. That avenue remains
formally open, and prisoner litigation continues to be an important reform
128

See Sandin v. Conner, 515 U.S. 472, 484 (1995). See also FLITER, supra note 109 at 177.
See Lewis v. Casey, 518 U.S. 343, 359 (1996).
130
See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84 (1992).
131
Prison Litigation Reform Act, Pub. L. No. 104-134 (codified in scattered sections of 11 U.S.C., 18
U.S.C., 28 U.S.C., and 42 U.S.C.).
132
Doe v. Washington, 150 F.3d 920, 924 (8th Cir. 1998). See Margo Schlanger, Inmate Litigation, 116
HARV. L. REV. 1555, 1633-34 (2003) (legislative history suggests that Congress wanted to limit only
frivolous actions; despite the rhetoric accompanying the PLRS, it has limited both).
133
28 U.S.C. § 1915(a), 1915(b)(2).
134
42 U.S.C. § 1997e(a).
135
See Booth v. Churner, 532 U.S. 731, 741 (2001). In addition, the Court has read broadly the application
of the exhaustion requirement, which applies to actions “brought with respect to prison conditions”. 42
U.S.C. § 1997e(a). The Court interpreted this language to apply to any prisoner civil complaint, and not
merely to those complaining of the condition of the prison. See Porter v. Nussle, 534 U.S. 516, 532 (2002).
136
18 U.S.C. § 3626(a) and (c).
137
18 U.S.C. § 3626(b).
138
See 28 U.S.C. § 1346(b)(2) (forbidding the award of damages for “mental or emotional injury” without
coincident physical injury); 42 U.S.C. § 1997e(d)(2) and (3) (limiting attorneys fees recovery to percentage
of monetary recovery in underlying action, and limiting hourly fee amounts).
129

17

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
tool.139 The Court in recent years has, however, narrowed the scope of
victories won earlier, and the PLRA further restricts the ability of prisoners to
pursue reform cases. The PLRA has sharply reduced the number of prisoner
filings even while prison populations are exploding.140 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 rate remains dismal.141 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.”142
Without abandoning the still-useful tool of individual litigation, it appears to
be time to move to a new vision of prison reform.143 The following section
takes up 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, replaced by a focus on retribution and incapacitation,144 there was little
pragmatic reason for decent prison treatment, and reasons rooted in fellow
feeling came to seem quaint.145 Individual rights arguments can seem a bit
sterile from this historical perspective; at least the Jacksonians sought to
remake prisoners as useful citizens146 and 20th Century progressives sought to
cure them, to restore them as useful citizens.147 Individual rights arguments for
decent health care are based “only” on principle – there is nothing in it for lawabiding 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 broad-based support for quite expensive reforms of an
139

See Sturm, supra note 108 at 705-06.
See Schlager, supra note 132 at 1634.
141
Id. at 1663-64.
142
TRAVIS, supra note 67 at 186.
143
The frustration produced by the accumulation of restrictions on prisoners’ health care claims was
evident in Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999). After detailing the deficiencies in the
prison system’s medical and psychiatric services, the court found that, “Simply stated, large numbers of
inmates throughout the [Texas prison system] are not receiving adequate health care.” Id. at 906. The
court deplored that, under the Supreme Court’s current reading of the Eighth Amendment, no violation
could be found, id. at 907, and expressed hope the Court would modify the standard to require the
provision of humane to prisoners. Id. As the following section suggests, it may be prudent to look
elsewhere for progress on that front.
144
See SHERMAN & HAWKINS, supra note 88 at 93-96.
145
Id. at 92-93.
146
See supra text at notes 92-97.
147
See supra text at notes 102-105.
140

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
enormous prison system. The humanitarian basis for prison reform is noble
and correct, but insufficiently persuasive to move the debate sufficiently 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 selfinterest. 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 sick prisoners
released to the community at the end of their sentences.
The pragmatic argument for a new prison health reform movement is
made in the following Part. I first sketch out the meaning of public health, as
distinct from personal health.148 I then describe the reentry movement, a
growing social movement that is a force for reform and a vehicle for
connecting population health with prison health care. The reentry movement
begins with the observation that “virtually every person incarcerated in a jail in
this country – and approximately 97 percent of those incarcerated in prisons –
will eventually be released.”149 It then chronicles the lack of preparation
prison and jails provide released prisoners, and the effects such lack of
preparation has, inter alia, on the communities to which they return.150
Finally, I argue that it follows from public health principles and arguments of
the reentry movement that a continuation of our current inadequate prison
health programs will inevitably lead to the infection of the broader population
with communicable diseases and sexually transmitted diseases, and saddle
society with the costs of untreated mental illness and other chronic diseases.151
III. A third wave of reform: obligations to others and opportunities for
ourselves.
We have an enormous prison population comprising sick and vulnerable
men and women, consigned to prison health services that often fail to provide
even basic life-sustaining care, and that 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.
148

See generally Geoffrey Rose, Sick Individuals and Sick Populations, in DAN BEAUCHAMP AND BONNIE
STEINBOCK, NEW ETHICS FOR THE PUBLIC’S HEALTH (1999) at 28 (contrasting personal and population
perspectives on health).
149
REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at xviii. See TRAVIS, supra note 67 at xvii
(“Except for those few individuals who die in custody, every person we send to prison returns to live with
us.”).
150
See infra Part IIIB.
151
See infra Part IIIC.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
Individual rights arguments after a period of success have faced growing
resistance from Congress and the courts, and disinterest from broader society,
as interests in punishment and incapacitation seem more salient that prisoners’
arguments for decent health care.
Individual rights and humanitarian arguments, then, have failed to
achieve remedies for substandard health care at least in part for 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
describes 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. There is common ground 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.”152 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.”153 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.154
152

Dan E. Beauchamp and Bonnie Steinbock, Population Perspective in DAN E. BEAUCHAMP AND BONNIE
STEINBOCK, NEW ETHICS FOR THE PUBLIC’S HEALTH 25, 25 (1999).
153
Id.
154
Lawrence O. Gostin, Public Health Law: A Renaissance, 30 J. LAW, MEDICINE & ETHICS 136, 136
(2002).

20

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES

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. A well-accepted broad definition of public
health was articulated by the Institute of Medicine in 1988 as “what we, as a
society, do collectively to assure the conditions for people to be healthy.”155
Under this broad view, often called a “population perspective,”156 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.157
The broad understanding of public health as population health has achieved
wide currency.158 A narrower view of public health is championed by Mark
Rothstein, who, after surveying the trend toward broader visions of public
health,159 advocates for a narrow vision, limited to the actions taken by
government public health agencies “pursuant to specific legal authority” to
protect the public from health threats.160 Rothstein argues that public health
principles and powers should apply only when the health of the public is
threatened, government has “unique powers and expertise” to respond to the
155

INSTITUTE OF MEDICNE, THE FUTURE OF PUBLIC HEALTH 19 (1988).
See Beachamp & Steinbock, supra note 152 at 25.
157
Id. at 27.
158
See e.g., Richard J. Bonnie and Bernard Guyer, Injury as a Field of Public Health: Achievements and
Controversies, 30 J. LAW, MEDICINE & ETHICS 267, 267 (2002) (arguing that the “mission of public health
has come to encompass the prevention and treatment of injury”); Richard A. Daynard, Regulating Tobacco:
The Need for a Public Health Judicial Decision-Making Canon, 30 J. LAW, MEDICINE & ETHICS 281, 282
(2002) (arguing that public health principles should guide judges in tobacco litigation); Bebe J. Anderson
and Lynne S. Wilcox, Reproductive Health, in LAW IN PUBLIC HEALTH PRACTICE (Richard Goodman et al.
Eds. 2003) at 348 (applying public health principles to a wide variety of reproductive health concerns,
including insurance coverage and government funding of services).
159
Mark A. Rothstein, Rethinking the Meaning of Public Health, 30 J. LAW, MEDICINE & ETHICS 144,14446 (2002) (describing broad notions of public health that focus on human rights and population health)..
160
Id. at 146.
156

21

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
threat, and government intervention is more efficient than the alternative
responses.161
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.162 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.163 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.164
These definitions matter to some but not all of the aspects of my
argument for a third wave of prison health reform. I focus below on the
treatment in prisons and jails of four types of conditions: 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.165 The first two categories – infectious diseases and sexually
transmitted diseases – fit comfortably into even the narrowest of definitions of
public health. As is described below, the failure of prisons to treat properly
prisoners with infectious diseases or sexually transmitted diseases endangers
not only the prisoner himself, but also fellow prisoners and staff and, for this is
the heart of my argument, the broader community to which the prisoner returns
when he is released from imprisonment. 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.166 Poorly performing
prisons can even make things dramatically worse, as when, through
misdiagnosis, poor administration of medications, and interruptions in
treatment they foster the creation of drug resistant strains of tuberculosis and
HIV, in essence becoming factories for treatment resistant strains of deadly
diseases that are then reintroduced to communities – typically communities
underserved by medical providers.167

161

Id.
See Daniel M. Fox, Commentary, Populations and the Law: The Changing Scope of Health Policy, 31
J. LAW, MEDICINE & ETHICS 607, 608 (2003).
163
Id. at 609.
164
See Richard A. Epstein, In Defense of the “Old” Public Health: The Legal Framework for the
Regulation of Public Heatlh, 69 BROOKLYN L. REV. 1421, 1423-26 (2004).
165
See infra Part IIIC.
166
See infra Part IIIC(1).
167
See infra Part IIIC(2).
162

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
The remaining categories – chronic illness and mental illness – fit less
well into the narrowest conceptualization of public health. When returning
prisoners bring back to their communities poorly treated asthma or
schizophrenia, they are not (at least not literally) bringing “epidemics,
contagion, [or] nuisances.”168 Rather, they are bringing with them conditions
that will limit their ability to become productive participants in those
communities’ lives, and their poorly treated conditions will place stress on
people and health care systems, thereby threatening the community’s
wellbeing.169 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, fostering recidivism, unemployment, homelessness for the
former prisoner, and economic and emotional strain on his family and
community.170 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 label changes little; these
failures in prison health care comprise foolish and inefficient actions missing
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.”171 As these
prisoners are released, and as they return to their communities, the attention of
governments and private agencies has turned to their reintegration in to
society.172 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 Report of the
Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners
to the Community published in 2005.173 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
168

Epstein, supra note 164 at 1423.
See NCCHC REPORT TO CONGRESS, supra note 16 at 32-33.
170
Id..
171
REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at xviii.
172
See generally, REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15;
TRAVIS, supra note 67; Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry,
45 B.C. L. REV. 255 (2004); JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER
REENTRY (2003); James P. Lynch and William J. Sabol, Prisoner Reentry in Perspective (Urban Institute,
Justice Policy Center: Crime Policy Report, Vol. 3, September 2001) available at
http://www.urban.org/pdfs/410213_reentry.pdf; United States General Accounting Office, Prisoner
Releases: Trends and Information on Reintegration Programs, GAO-01-483 (June 2001).
173
REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15.
169

23

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
Association of State Correctional Administrators, the National Center for State
courts, and the Police Executive Research Forum.174 Advisory groups were
peopled by police chiefs, corrections personnel, state legislators, and state
social service personnel, as well as representatives of non-profit organizations
and public policy centers.175 The process was clearly not merely an exercise in
liberal law reform. Rather, it was evidence that the reentry movement
comprises a bipartisan effort to grapple with the social problems raised by 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.”176
With funding from the administrations of both Bill Clinton177 and
George W. Bush,178 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.179 The problems of recidivism, however, are caused
“in part [by] an unavailability of economic and social supports.”180
Employment problems are central to those seeking to ease reentry, as exprisoners return to depressed communities, without skills, and facing stigma
and legal limitations on employment related to their history of convictions.181
The reentry process is also complicated by family issues. Parent-child and
spousal relationships are strained by imprisonment, and the family left in the
community is often impoverished by one parent’s imprisonment.182 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

174

Id. at xiv-xvii.
Id. at ix-xiii.
176
Id. at xx.
177
See Thompson, supra note 172 at 260 (describing Clinton administration funding efforts).
178
See U.S. Department of Justice, Office of Justice Programs, Learn About Reentry: Attorney General
Ashcroft Announces Nationwide Effort To Reintegrate Offenders Back Into Communities, available at
http://www.ojp.usdoj.gov/reentry/ashcroftpr.html (undated); U.S. Department of Labor, Employment and
Training Administration, Announcement: Workforce Investment Act – Demonstration Grants; Solicitations
for Grant Applications – Prisoner Re-Entry Initiative, 70 F.R. 16853 (April 1, 2005).
179
See General Accounting Office, supra note 172 at 1 (“Although many [ex-prisoners] are successfully
reintegrated into society, other ex-offenders are arrested for new crimes or violations of parole and are
returned to prison.”); Lynch & Sabol, supra note 172 at 14 (returning prisoners pose “problems for public
safety”); TRAVIS, supra note 67 at 94-98 (discussing re-arrest and recidivism concerns).
180
Thompson, supra note 172 at 259.
181
TRAVIS, supra note 67 at 162-67 (describing employment difficulties of ex-prisoners); REPORT OF THE
RE-ENTRY POLICY COUNCIL, supra note 15 at 294-95 (describing employers’ disinclination to hire exprisoners, and the difficulties caused by the ex-prisoners’ return to the poorest neighborhoods with the least
access to jobs).
182
TRAVIS, supra note 67 at 123-27 (describing family problems caused by imprisonment); REPORT OF THE
RE-ENTRY POLICY COUNCIL, supra note 15 at 323-29 (describing range of family problems arising in
context of prisoner reentry).
175

24

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
to apply for some jobs.183 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.”184
The reentry movement urges decision makers to step back, reconsider
the barriers prisoners face to reintegration, and begin to 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. 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,185 and once imprisoned receive some
health services, however flawed.186 The reentry movement seeks to ensure
health care continuity as prisoners return to their communities, a process of
providing “discharge planning.”187
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.188 This
process should include providing the prisoner with referrals, and making
appointments with appropriate providers.189 In practice, the former occurs
more frequently than the latter.190 Other services should include providing an
interim supply of medications,191 providing the released prisoner with a full
copy of his medical records,192 and facilitating poor prisoners’ obtaining or
regaining eligibility for public benefits, including Medicaid.193 Although much
of the health focus of the reentry process is 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,194 an issue taken up below.195
183

See Christopher Mele and Teresa A. Miller, Collateral Civil Penalties as Techniques of Social Policy in
CIVIL PENALTIES, SOCIAL CONSEQUENCES (Christopher Mele and Teresa A. Miller, eds., (2005) at 9-26;
TRAVIS, supra note 67 at 253-59 (discussing collateral consequences).
184
Norma Demleitner, A Vicious Cycle: Resanctioning Offenders, in MELE & MILLER, supra note 183 at
185-201 (discussing effects of collateral sanctions on child custody, driving, employment, voting, and
housing opportunities).
185
See supra Part IB.
186
See supra Part IC.
187
TRAVIS, supra note 67 at 327; REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at 283.
188
TRAVIS, supra note 67 at 327; REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at 286-87.
189
TRAVIS, supra note 67 at 327.
190
See Theodore M. Hammett, Cheryl Roberts, and Sofia Kennedy, Health Related Issues in Prisoner
Reentry, 47 CRIME & DELINQUENCY 390, 393 (2001).
191
REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note15 at 290.
192
See TRAVIS supra note 67 at 327.
193
Id.; Hammett et al., supra note 15 at 402.
194
See TRAVIS, supra note 67 at 205 (describing the need for prisons to “embrace responsibility for health
care of prisoners” if reentry goals are to be met); REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note
15 at 158 (imprisonment should be seen as a “window of opportunity” for the provision of necessary health

25

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
This discharge planning process is primarily concerned with the health
of the released prisoner, to facilitate 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.196
The management of these “special needs”
prisoners is a particularly problematic aspect of prison health; while many
prisons and jails provide referrals for services for released special needs
prisoners, far fewer make appointments to connect them with services, and
many seriously ill prisoners are lost to treatment,197 although some model
programs exist.198
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. The health focus of the reentry
movement is in the first instance on the community linkages necessary to
permit released prisoners to succeed. Failures of treatment at reentry have
effects on 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 for health
services to reentering prisoners renders their success more doubtful. More
concretely, failure to provide health services to reentering prisoners with
infectious and sexually transmitted diseases present 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 thinking about it 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
ourselves.
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
care to facilitate reintegration) and 173 (providing appropriate mental health services in prisons is
necessary to maximize successful reentry.
195
See infra Part IIIC.
196
See TRAVIS, supra note 67 at 327; Hammett et al., supra note 15 at 398-400; REPORT OF THE RE-ENTRY
POLICY COUNCIL, supra note 15 at 283-84.
197
See Hammett et al., supra note 15 at 392.
198
See Josiah Rich et al., Successful Linkage of Medical Care and Community Services for HIV-Positive
Offenders Being Released From Prison, 78 J. URBAN HEALTH 279, 280-81 (2001) (describing Rhode Island
program).

26

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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,199 and by lessening the rates of medical
complications ex-prisoners experience,200 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.201
Frankly 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 health202 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 health203 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 and mental health care treatment of prisoners affect the
health of the community to which prisoners return. Many prisoners suffer
from chronic illnesses such as asthma, diabetes, and hypertension,204 and
prisons are generally very bad at providing appropriate chronic care
services.205 The failure to treat chronically ill prisoners properly can render
them heightened risks for recidivism, as they will be less able to find work and
otherwise fully reintegrate into their community.206 The failure to treat chronic
conditions in prisons can burden the underfunded health care facilities in the
poor communities to which most released prisoners return.207 In addition,
however, the failure to take the opportunity to treat chronic conditions in
prison increases the overall social costs of care for those conditions:
199

See Lynch & Sabol, supra note 172 at 15-16 (describing geographic concentration of returning
prisoners; TRAVIS, supra note 67 at 28-83 (describing concentration of returning prisoners and the
impoverishment of the most likely communities of return).
200
See NCCHC REPORT TO CONGRESS, supra note 16 at 58
201
See Hammett et al., supra note 15 at 398-400 (describing public health effects of inadequate prison
treatment of tuberculosis and HIV disease).
202
See supra Part IIIC(1).
203
See supra Part IIIC(2).
204
See Freudenberg, supra note 19 at 221; NCCHC REPORT TO CONGRESS, supra note 16 at 21.
205
See NCCHC REPORT TO CONGRESS, supra note 16 at 30. See also Ruiz v. Johnson, 37 F. Supp. 2d
855, 899 (S.D. Tex. 1995) (documenting poor diabetes care).
206
See TRAVIS, supra note 67 at 185-86.
207
See Lynch & Sabol, supra note 172 at 15-16.

27

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
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.208
Many prisoners have not had appropriate treatment of these chronic conditions
in the distressed communities from which they come.209 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.210 In addition, prisons may act as an amplifier, or
“incubator.”211 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.212 As is true chronic illnesses generally, prisoners are likely to have
experienced poor access to community mental health services prior to
imprisonment.213 Indeed, it is the lack of community services that causes
many people with mental illness to find themselves in prisons and jails.214 The
mental health care provided in prisons and jails is inadequate to address the
needs of this large population.215
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.216 Such limited treatment may render
a prisoner more docile by temporarily alleviating his symptoms, but it does not
advance him toward wellness and recovery.217 As a result, prisons have
208

NCCHC REPORT TO CONGRESS, supra note 16 at 20-21.
See TRAVIS, supra note 67 at 282-83 (prisoners come from communities of “concentrated
disadvantage”); REPORT OF THE RE-ENTRY POLICY COUNCIL, supra note 15 at 160-61 (prisoners often have
limited access to care in their home communities).
210
See Freudenberg, supra note 19 at 220; NCCHC REPORT TO CONGRESS, supra note 16 at 24.
211
See HUMAN RIGHTS WATCH, supra note 63 at 3.
212
See KUPERS, supra note 29 at 44-58.
213
See KUPERS, supra note 29 at 13; HUMAN RIGHTS WATCH, supra note 63 at 20-23.
214
See Ralph Slovenko, The Transinstitutionalization of the Mentally Ill, 29 OHIO NORTHERN U. L. REV.
641, 655-56 (2003); Stone, supra, note 29 at 291.
215
See NCCHC REPORT TO CONGRESS, supra note 16 at 31-32 (“Most prisons and jails do not conform to
the nationally accepted health care guidelines for mental health screening and treatment.”); KUPERS, supra
note 29 at 68-83 (describing inadequate mental health care in prisons and jails).
216
See KUPERS, supra note 29 at 78-80; HUMAN RIGHTS WATCH, supra note 63 at 109-14.
217
See HUMAN RIGHTS WATCH, supra note 63 at 109-11.
209

28

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
missed “an important opportunity to provide them with the cognitive and life
skills enhancement that will increase the likelihood of successful reentry into
society following release from prison.”218 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.219 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.220 As might be expected, such isolation can be devastating for prisoners
with mental illness, causing unspeakably severe suffering.221
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. Proper mental health treatment, particularly lacking in
prisons and jails, is particularly necessary to 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.222
Prisoners failing to provide appropriate chronic and mental health care, then,
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’ failures in chronic and mental health care 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
218
219
220
221
222

Id. at 110.
See KUPERS, supra note 29 at 80-82; HUMAN RIGHTS WATCH, supra note 63 at 59-69.
See HUMAN RIGHTS WATCH, supra note 63 at 145-46.
Id. at 149-53.
HUMAN RIGHTS WATCH, supra note 63 at 3.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
properly treat transmissible diseases, prisons and jails act as “epidemiological
pumps,” permitting the agents for tuberculosis, HIV disease, and other
conditions to spread within prisons, perhaps mutate into treatment resistant
forms, and then travel with released prisoners to infect the broader
community.223 In connection, then, with transmissible diseases such as
tuberculosis, HIV disease, syphilis, and chlamydia, we see the strong public
health argument. 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;”224 even if we believe that the public
health function is properly served only by government agencies responding to
specific threats to public threats;225 even with these contingencies in mind,
public health principles demand reform of prison health services to address
their failure to control communicable disease threats.
Prisoners enter prisons and jails disproportionately infected with
communicable diseases.226 Prisoners are four to ten times more likely than the
average member of society to be infected with tuberculosis, HIV, and hepatitis
C, and released prisoners account for about one-third of all cases of
tuberculosis and hepatitis C.227 Prisons and jails often do a very poor job of
identifying and treating communicable diseases.228 Few prisons and jails
screen for syphilis;229 many do not conform to rudimentary infection control
provisions for tuberculosis;230 and some fail to follow the therapeutically
essential administration requirements for HIV medications.231 These treatment
failures, of course, cause harm the prisoners themselves; but their effect on
public health is also very powerful.
Some public health steps omitted by prisons are inexpensive and would
pay large population health dividends. For example, while HIV disease cannot
be cured, the risk of transmission from a released prisoner to others can be
reduced by providing harm-reduction training to prisoners.232 Educational
programs, often provided by community groups and peer counselors, can be

223

The term “epidemiological pump” was coined by Paul Farmer, a public health physician, member of the
faculty of Harvard Medical School, and founder of the international aid organization Partners in Health, in
describing Russian prisons in the late 1990s. During that time, about half of Russia’s substantial
population of people infected with tuberculosis were prisoners, as were most of the people infected with
strains of tuberculosis resistant to the main drug therapies for tuberculosis. See TRACY KIDDER,
MOUNTAINS BEYOND MOUNTAINS: THE QUEST OF DR. PAUL FARMER, A MAN WHO WOULD CURE THE
WORLD 231-32 (2003).
224
See Epstein, supra note 164 at 1423.
225
See Rothstein, supra note 159 at 146.
226
See supra Part IB.
227
Freudenberg, supra note 19 at 217-18; NCCHC REPORT TO CONGRESS, supra note 16 at 19.
228
See supra Part IC.
229
See NCCHC REPORT TO CONGRESS supra note16 at 29. See also Madrid v. Gomez, 889 F. Supp. 1146,
1205 (N.D. Cal. 1995).
230
See NCCHC REPORT TO CONGRESS supra note 16 at 31.
231
See Feliciano v. Gonzalez, 13 F. Supp. 2d 151, 181 (D.P.R. 1998).
232
See NCCHC REPORT TO CONGRESS supra note 16 at 41.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
quite effective in obtaining compliance with harm-reduction measures.233
These educational programs are not cost-free,234 a barrier to implementation
that might seem insurmountable in light of society’s historic indifference to the
health of prisoners. However, these programs are cost-effective if we take into
account the benefit gained by avoiding transmission of HIV to community
members after prisoners’ release.235
Perhaps the most serious public health threat raised by prison health
failures is the failure to take the opportunity of imprisonment to treat and cure
prisoners infected with communicable diseases. A very high percentage of
people infected with syphilis and chlamydia, for example, cycle through
prisons and jails.236 The opportunity to address these health threats when those
infected are literally a captive population, available for treatment if treatment is
offered, should be seized to address the periodic emergence of epidemics in
sexually transmitted diseases. The argument for providing adequate health
care treatment of sexually transmitted diseases is now being made in the
context of reentry planning;237 broadening this argument to drive home the
population health connection will serve the community – and the prisoners.
Tuberculosis care in prisons raises different, but equally pressing public
health concerns. The high rate of tuberculosis infection among prisoners, most
of whom will be reentering their communities, presents concerns and
opportunities. “To reduce TB rates among inmates and prevent transmission to
the general population, effective TB prevention and control measures in jail
systems are vital.”238 Studies have established that crowding and the high
concentration of infected prisoners make jails “an important amplification
point” in tuberculosis epidemics.239 Again, the transmission of tuberculosis to
prisoners may be seen as a personal health problem for an unsympathetic
cohort of patients, but the population health implications raise issues of greater
salience to most Americans, as jails and prisons are increasingly identified as a
principal source of tuberculosis infection in broader society.240 Decent health
233

See Freudenberg, suupra note19 at 225; REPORT OF THE REENTRY POLICY COUNCIL, supra note 15 at
161-62; Breena Varghese and Thomas A. Peterman, Cost-Effectiveness of HIV Counseling and Testing in
US Prisons, 78 J. URBAN HEALTH 304, 309 (2001).
234
See Varghese & Peterman, supra note 233 at 307-308 (estimating harm-reduction programs’ costs).
235
See id. at 309. See also TRAVIS, supra note 67 at 206 (describing preliminary positive results from
harm-reduction counseling); REPORT OF THE REENTRY POLICY COUNCIL, supra note 15 at 160-62
(describing benefits from prisoner educational programs).
236
See Freudenberg, supra note 19 at 218 (about one-third of women in jails are infected with syphilis or
Chlamydia; women with multiple imprisonments in New York city jails had an incidence of syphilis that
exceed that of women in the general population “by more than a thousand-fold”); Hammett, Roberts, &
Kennedy, supra note 15 at 390 (almost one-third of syphilis cases in Chicago were diagnosed at the Cook
County Jail).
237
See Hammett, Roberts, & Kennedy, supra note 15 at 391.
238
Mark N. Lobato et al., Public Health and Correctional Collaboration in Tuberculosis Control, 27 AM.
J. PREV. MED. 112, 112 (2004).
239
See Freudenberg, supra note 19 at 218-19; Lobato et al., supra note 238 at 112; Kimberly G. Dobbs, et
al., Value of Mycobacterium tuberculosis Fingerprinting as a Tool in a Rural State Surveillance Program,
120 CHEST 1877, 1879 (2001).
240
See Dobbs et al., supra note 239 at 1879; Jessica R. MacNeil et al., Jails, a Neglected Opportunity for
Tuberculosis Prevention, 28 AM. J. PREV. MED. 225, 227 (2005).

31

PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
care treatment in all prisons including the improved tuberculosis programs
pioneered in, for example, New York State’s prison system, would prevent
infections and improve prisoners’ health.241 If health care to prisoners were
embraced as a public health opportunity rather than as a grudging obligation,
similar programs, suitably tailored to the much shorter lengths of
imprisonment, could be provided jail prisoners as well.242 In all correctional
settings, and particularly in jails, the connection between improved health in
prisons and jails and linkage to treatment in the community is a vital aspect of
reentry planning.243
One of the most frightening consequences of inconsistent,
discontinuous treatment of prisoners with communicable diseases is that
mistreatment can lead to mutation of the infectious agent, rendering it resistant
to some, or in the worst case all available treatments. Antimicrobial resistance
has become a public health concern on a number of fronts.244 In the prison and
jail context, the concern is that inappropriate treatment of tuberculosis and HIV
leads to the production of treatment-resistant disease that can be broadly spread
on prisoners’ release. In the treatment of prisoners with both HIV disease and
tuberculosis, failures to maintain adherence to fairly rigid treatment protocol
can lead to disease resistance.245 Slipshod recordkeeping, inconsistent
administration procedures, and frequent transfers of prisoners can cause the
breakdown of treatment adherence. The short stays of jail prisoners lead to
adherence problems almost as a matter of course. Without improvements in
prisons’ and jails’ treatment of infected prisoners, and appropriate linkages
with community providers able and willing to provide care to ex-prisoners,
prisons and jails run the risk of becoming factories for the production of
treatment-resistant strains of tuberculosis and HIV disease for export to the
greater community.246
Poor prison health care and the lack of suitable reentry planning raise
classic public health threats of transmission of deadly communicable diseases.
The ramifications of these failures go beyond harm to prisoners, implicating
the health of the community.
Seen this way, the failure of our nation’s prison systems (and the
legislatures that fund them) to come to grips with the reality and
consequences of communicable diseases among prisoners is a gross
display of social negligence. Disregarding the immediate and long-term
impact of releasing prisoners into the community without appropriate
screening and treatment procedures in place jeopardizes community
241

See TRAVIS, supra note 67 at 200 (describing New York’s system).
See MacNeil et al., supra note 240 at 227; Lobato et al., supra note238 at 112.
243
See TRAVIS, supra note 67 at 209-212 (describing post-release community programs providing care
continuation for released prisoners with communicable diseases including tuberculosis).
244
See generally Joan Stephenson, Researchers Describe Latest Strategies to Combat Antibiotic-Resistant
Microbes, 285 JAMA 2317 (2001); Robyn L. Goforth and Carol R. Goforth, Appropriate Regulation of
Antibiotics in Livestock Feed, 28 B.C. ENVIRON. AFF. L. REV. 39 (2000).
245
See Hammett et al., supra note 15 at 398.
246
See TRAVIS, supra note 67 at 207-09.
242

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
health and well-being. A more enlightened policy would implement a
systematic, professional program of detection and treatment for
communicable diseases in American prisons. Moreover, because the
benefits of this policy would be shared by society at large, the taxpaying
public would likely be willing to pay its price.247
The reform of prison health services, then, regardless of the dearth of
humanitarian feelings for prisoners, is a public health imperative.
3. Implementation issues: from theory to action
The motivation for writing this article should be clear: it is immoral, an
injustice, to imprison two million Americans and fail to provide them with
minimally adequate health care services. And yet that is the state of the affairs
for very many prisoners, and for very many prisons and jails. Poor treatment,
including poor health treatment has been the norm rather than the exception
during the history of American prisons.248
People objecting to the
mistreatment of prisoners have tried two categories of arguments to achieve
reforms. First, they tried humanitarian arguments, combining appeals too
fellow-feeling for prisoners with pragmatic arguments that the cost of reform
was justified by the return that would be achieved by restoring the offender to
full and productive citizenship. These were political arguments, addressed to
legislatures and executive agencies. These arguments largely failed to achieve
any lasting improvements in prison conditions.249 Second, they tried
arguments based on the individual constitutional rights of prisoners, appealing
to judgments that the Bill of Rights guarantees prisoners a certain, basic
modicum of dignity and health treatment. These were legal arguments,
addressed to courts. These arguments continue to be made, and continue on
occasion to succeed, particularly in extremely egregious cases.250 This avenue
of prison reform is, however, hampered by restrictions imposed by courts and
legislatures.251 This article is motivated by a desire to fashion a third vision of
prison reform, one that might succeed where the first two failed.
Is prison reform as public health a legal theory, one that can be
addressed to courts with the realistic hope of achieving remedies? The answer
to that question is largely for another day, and another article. Some
preliminary lines of thought are possible, however. States protect the public
health as a matter of their police power, a core power inherent in sovereignty,
as to which they enjoy very broad discretion.252 Are states liable in state tort
law for negligently failing to protect public health? The immunity that states

247

Id. at 202.
See Part IIB and C, supra.
249
See supra Part IIA.
250
See e.g., Plata v. Schwarzenegger, Civ. No. C01-1351 THE, Order to Show Cause Re: Civil Contempt
and Appointment of Interim Receiver (May 10, 2005) at 2, available at
http://www.cand.uscourts.gov/cand/judges.nsf/0/43baa340b75c167288256ffd007bb1d5/$FILE/Plata%20O
SC.pdf.; Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Tex. 1999).
251
See supra Part IIB.
252
See Jacobson v. Massachusetts, 197 U.S. 11 (1905).
248

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
retain for discretionary judgments after limited waivers of sovereign immunity
would suggest not.253
State actions that disparately affect poor communities and communities
of color may be suspect under a variety of other theories premised on
prohibitions against unequal treatment in environmental matters.254
Application of these environmental justice/environmental racism theories has
the benefit of highlighting the injustice of saddling poor communities of color
with the results of states’ prison mismanagement,255 permitting the argument
that states are obliged to remedy that disproportionate harm. It has the
detriment of suggesting that prisoners, the most direct victims have become
something akin to toxic waste by virtue of states’ prison mismanagement.
Suffice it to say, this argument must be pursued with care; it would be cruelly
unjust for arguments against negligent prison health care to result in the further
demonization of ex-prisoners.
Finally, the positive rights granted under state constitutions have some
power. Large populations made up of the poor and people of color are
disparately affected by a state’s failure to protect. Positive state constitutional
rights obviously reach situations where federal constitutional protections do
not.256 These positive rights may be argued to extend to the community’s right
of protection from the state’s mismanagement of prison health causing
avoidable public health injuries to poor communities and communities of
color.
But the argument at this point does not address these possible legal
applications. Instead, it is “merely” a political argument, much like that made
by reformers such as Cobb Wines and Theodore Dwight in 1867, when they
argued that brutal conditions in prisons were both inhumane and contrary to
social interests in reforming prisoners, permitting them to return with dignity
to a useful role in society.257 Similarly, the political argument here is that poor
prison health care is both inhumane and contrary to social interests in
achieving prisoner reentry maximizing ex-prisoner integration and minimizing
the public health threats to their communities. A broad recognition that
prisoner reform is supported by this combination of humanitarian impulse and
social self-interest may provide the balance of selfish and selfless interests
necessary to advance the goal of decent health care for prisoners.

253

See Watson by Hanson v. Metropolitan Transit Commission, 553 N.W.2d 406, 412 (Minn. 1996)
(describing protection from tort liability enjoyed by states in discretionary actions).
254

See generally Alice Kaswan, Distributive Justice and the Environment, 81 N. CAR. L. REV. 1031
(2003); Sheila Foster, Justice from the Ground Up: Distributive Inequities, Grassroots Resistance, and the
Transformative Politics of the Environmental Justice Movement, 86 CAL. L. REV. 775 (1998); Note, Rachel
D. Godsil, Remedying Environmental Racism, 90 MICH. L. REV. 394 (1991).
255
See TRAVIS, supra note 67 at 279-99.
256
See William J. Brennen, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L.
REV. 489 (1977); Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal
Rationality Review, 112 HARV. L. REV. 1131 (1999).
257
See Rotman, supra note 97 at 153-55.

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PRISON HEALTH, PUBLIC HEALTH: OBLIGATIONS AND OPPORTUNITIES
Conclusion
Government acquires obligations when it locks up prisoners, even
when it does so for good reason. And government acquires significant
obligations when it decides to imprison over two million Americans. One of
those obligations is that of providing decent treatment, including necessary
medical care. That obligation has been based since the beginning of the
Republic on humanitarian impulses and pragmatic goals of social
enhancement. It has been based in the last fifty years on the constitutional
rights of prisoners to imprisonment free from cruel and unusual treatment. It is
an obligation that government has largely ignored, notwithstanding constant
arguments by prison reformers.
Decent prison health treatment should be advanced pursuant to a third
vision of prison reform, one based on a confluence of selfless and selfish
interests. The selfless interest continues to be the normative commitment to
humane treatment for prisoners. The selfish motive is based on the potentially
devastating population health effects flowing from poor prison care. Almost
all of the two million American incarcerated today will be released to their
communities. Prisons’ and jails’ failure to provide adequate treatment to a
wide variety of chronic conditions, mental illnesses, sexually transmitted
diseases, and communicable diseases threaten those communities with physical
and financial harm, with infection and illness. Public health arguments, drawn
in part from the emerging reentry movement, have the potential to move
society to pay the costs for decent prison health care out of clear self-interest,
where it has been unwilling to do so as a matter of justice and morality.

35