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The purpose of this book is to tackle these questions. The intent is to help develop a persuasive rationale to direct public policy toward seizing the public health opportunities that present themselves in a captive population beset by an extraordinary burden of illness. Much of this burden derives from poverty and drug abuse. This book is:

The chapters of this book are authored by some of the foremost experts in correctional health care, public health, criminal justice, and civil rights law. The objective is to outline the elements of an infrastructure for improving the health of the community through attention to prisoners’ medical care. If we want to protect the public health, the time is ripe to develop public policy that takes advantage of the period of incarceration.

The purpose of the paper is to provide data and theory to support three propositions:

The implications of this argument are that incarceration policy in the United States is an obstruction to the well-being of poor, especially minority, communities. With crime rates that have fallen nationally for about a decade, the source of growth in imprisonment is not new felons having committed dangerous crimes, but a largely inexhaustible supply of potential drug felons combined with a system that provokes high rates of failure among those who get caught up in it. This situation suggests that any chance for real reform requires changes in drug law enforcement policy.

Litigation to improve correctional health care has been—and, indeed, continues to be—a critical catalyst to better medical care for prisoners, and therefore to better public health. We no longer openly accept, as we once did, that prisoners are entitled to bare scraps of medical care, the leavings of a facility’s lean resources. We now recognize and enforce the right of incarcerated persons to receive adequate professional care for their serious medical and mental health needs. It was the coercive power of litigation, rather than an enlightened public policy, that made this right meaningful.

However, much of the early promise of litigation has been quashed by the courts and Congress. As with so much else in the formation of criminal justice policy, political opportunism and retribution have led to policies (in practice, statute, and decisional law) that endanger the public health and safety. Just as our sentencing policies overly rely on thoughtless, punitive, and long-lasting confinement at the expense of rehabilitative and reintegrative opportunities, so policymakers and judges seek to curtail opportunities for prisoners to improve the conditions of confinement. Among the most important of those conditions is accessible and adequate physical and mental health care.

In this chapter, I first examine the peculiar nature of and context for l awsuits that seek to improve prison medical care. I next discuss the present state of the legal right to that care and the obstacles to realizing that right. I then suggest some promising ways in which litigation can successfully be used—despite those obstacles—to drive medical care forward. I hope to show that restricting prison medical care litigation is bad correctional policy and bad public health policy. Because the political process disfavors prisoners and the litigation that protects their rights (even when the public health is at stake), it is critical to have access to the courts to achieve what the majoritarian branches neglect. The protection, even support, of litigation to help ensure good quality care is necessary to improve the prognosis for prisoners and for the public as well.

In 1990, Congress passed the Americans with Disabilities Act (ADA), an optimistic and comprehensive civil rights law intended to provide equal opportunity in employment and public life to individuals living with physical and mental disabilities. Title I addresses discrimination in employment; Title II guarantees disabled persons equal access to state services and programs, an assurance that the rights these programs fulfill will be protected; and Title III mandates “reasonable accommodation” to the needs of the disabled in public facilities. The federal statute includes both a prohibition against discrimination against disabled persons and a provision for redress. Legislators recognized that without the prospect of “effective enforcement provisions,” the states would be unlikely to move into compliance with the new legislation.

The ADA began with the principle that its purpose is enforcement of the Fourteenth Amendment’s command that “all persons similarly situated should be treated alike.” The Supreme Court observed that classifications based on disability violate that constitutional command if they lack a rational relationship to a legitimate governmental purpose. If an entity’s policies and practices discriminate against a plaintiff because he or she was mentally or physically disabled and in need of services and programs which are available, then the policies of the entity treat the plaintiff differently.

In the community, geriatrics is the discipline of medicine specializing in care of the aged, defined as 65 years and older. In prison, the age at which an inmate is deemed “geriatric” varies from state to state (Lemieux, Dyeson, & Castiglione, 2002). In some states, inmates as young as 50 are defined as geriatric; in other states, inmates are not considered geriatric until they reach age 55 or 60 (Anno et al., 2004; Lemieux et al., 2002). Despite these differing definitions, there is consensus that inmates undergo a process of compared to their age-matched counterparts outside of prison (Aday, 2003). Outside of prison, people often encounter new physical, psychological, and social challenges as they age. In prison, an environment designed for younger inhabitants, aging introduces additional challenges in safety, functional ability, and health. As older ex-prisoners reenter their communities, they may face additional challenges such as being frail in an unsafe neighborhood, having multiple medical conditions with limited access to medical care, and leaving the familiarity of the place they have lived in for decades.

In this chapter, we describe some of the special challenges related to the aging of the population both inside prison and on reentry into the community. Despite the public health and economic implications of the surging geriatric prison population, little research has been conducted in these areas, particularly regarding reentry.

The development of the prison as the unchallenged institution of punishment is relatively recent compared to other social institutions, such as the asylum, the workhouse, and the hospital—being less than 250 years old (Morris & Rothman, 1995; Human Rights Watch). In contrast to these other social institutions, prisons have continued to grow. The International Centre for Prison Studies (Kings College, London) estimates that three in four jurisdictions throughout the world are currently expanding their prison systems (International Centre for Prison Studies).

In this situation, and with the downgrading of other institutions, the modern prison is taking on functions previously carried by others, such as the mental asylum (mental illness) (Rosen, 2006) and the poorhouse (welfare and accommodation).

Incarceration is an institution of “unequal power,” between the dominant social structure and the individual who is contained within. Apart from the ethical and philosophical issues implicit in this “relationship,” the health consequences are extreme on the individual, but also on the community from which the prisoner comes and will return. The modern prison, while posing health risks to the community (Freudenberg, 2001), also promises to deliver health gains to individuals engaged in it, albeit nonconsensually.

This paper aims to provide a “nuts and bolts” explanation and depiction of the medical and scientific mechanics of lethal injection. Most of the source information derives from material produced during litigation in which the author served, or is serving, as an expert witness for plaintiffs who are litigating in civil court to remedy perceived deficiencies in the lethal injection procedures employed by various state departments of corrections. Of note, the author has in the past and will in the future receive compensation for many, but not all, of these legal cases. Further, it is important to recognize that some of the data and documentation that has been reviewed by the author and that contributes to the author’s opinions has been placed under seal by court orders. Lastly, the author believes in the importance of disclosing that, as a result of his involvement in the legal challenges to lethal injection, he has developed a strong opposition to the imposition of the death penalty as it is presently administered in the United States.

Inmates are disproportionately impacted by communicable diseases such as HIV and viral hepatitis (Hammett et al., 2002, BOJ Statistics, 2002). Once incarcerated, the conditions that exist in most of the world’s jails and prisons create an ideal environment for the transmission of contagious diseases. Overcrowded communal living environments, delays in medical treatment, insufficient access to clean laundry, soap, and water, and prohibitions against the use of harm reduction measures such as condoms and needle exchange increase the probability that infectious diseases will be transmitted from one inmate to another. The transient status of inmates who are frequently and often abruptly moved from one location to another complicates the diagnosis of infection, recognition of an outbreak, interruption of transmission, performance of a contact investigation, and eradication of disease. In this chapter, I will explore the disproportionate impact of infectious diseases in jails and prisons on the health of the society at large, discuss some of the unique challenges and opportunities that exist in correctional public health, review the importance of enhanced interjurisdictional cooperation, and advocate for the creation of a more seamless system of health care for individuals as they move throughout the criminal justice system and return to the free world. Furthermore, I will address the importance of linking correctional health care with public health and community health providers, and argue for the importance of correctional settings as frontlines in our national strategies to reduce the prevalence of preventable diseases. These issues will be explored by discussing two illustrative diseases that significantly impact on the incarcerated: HIV and viral hepatitis.

On incarceration, all adults lose access to their usual public and private health-care and disease-prevention services. Their health care becomes the sole responsibility of either the correctional system (federal, tribal, state, or local) or, less frequently, the public health system (National Commission on Correctional Health Care, 1993). For the majority of persons, entry into the correctional system provides an opportunity to access health care that they could not access before. However, the rapid turnover of the incarcerated population, especially in jails, and the suboptimal funding of correctional health and prevention services, often limits the correctional system in providing both curative and preventive care. The significance of including incarcerated populations in community-based disease prevention and control strategies is now recognized by public health and correctional professionals (Glaser & Greifinger, 1993; Association of State and Territorial Health Officials, 2002). Improved access to medical care and prevention services for incarcerated populations can benefit communities by reducing disease transmission and associated medical costs (Conklin, Lincoln, & Flanigan, 1998; Mast, Williams, Alter, & Margolis, 1998; Silberstein, Coles, Greenberg, Singer, & Voigt, 2000; Kahn, Scholl, Shane, Lemoine, & Farley, 2002; Goldstein et al., 2002). Inmates who participate in health-related programs while incarcerated have lower recidivism rates and are more likely to maintain health-conscious behaviors (Conklin et al., 1998). Finally, because incarcerated persons have a high frequency of infection with hepatitis viruses, community efforts to prevent and control these infections require inclusion of the correctional population (CDC, 1998a, 2005; Fiore, Wasley, & Bell, 2006).

To date, preventive care and prevention services have not been included in our conceptualization or operationalization of prisoners’ “right to health care.” Given the potential public health impact of focusing on prevention for prisoners, however, the time has come to examine this issue. Although not specifically a right under the Constitution, correctional systems should be obligated to offer comprehensive HIV prevention services to those in custody. The justification for this obligation, at a minimum, has to do with some of the basic tenants of public health disease control: target your prevention dollars on illnesses with high morbidity and mortality rates among populations with the highest rates and whom you can access. With the prevalence of HIV at least five times higher among the incarcerated compared to those who are not incarcerated, providing effective prevention programs would have a powerful impact on incidence rates in this population. Furthermore, in one well-referenced study, in 1997, 25% of all HIV-positive people in the United States reportedly serve some time in a correctional facility (Hammett et al., 2002) and 90% of prisoners, representing an estimated 7.5 million prisoners annually, return to the free community at some point (Bureau of Justice Statistics Correctional Surveys, 1996). As approximately 51.8% of those individuals are reincarcerated within 3 years (Bureau of Justice Statistics Correctional Surveys, 1996), it is clear that providing effective disease prevention programs to those who are incarcerated would not only help protect them, but would also likely have a synergistic impact on HIV rates in our communities. If departments of corrections were to adopt evidence-based prevention measures, prisoners would simultaneously be returning from incarceration less likely to be infected with HIV and armed with the knowledge and skills to play an important role in reversing the current epidemic trends. This role includes protecting themselves and their loved ones by reducing their own risk behaviors and protecting their communities by educating others and changing norms.