Part II Constitutional Law of Corrections Chapter

Part II Constitutional Law of Corrections

Chapter 16 – Eighth Amendment: Health Care n Introduction: This chapter examines the government’s obligation to provide inmates with health care

Chapter Outline n n n n n Estelle v. Gamble West v. Atkins Washington v. Harper; Sell v. United States Other Involuntary Medication Cases Inmate Suicides Logue v. United States HIV and AIDS Tuberculosis in Prisons An Aging Prison Population

Opening Comments n Correctional facilities must provide inmates with health care n n Confinement cuts inmates off from ordinary sources of health care Most prisons do not allow inmates to obtain own health care from a provider of their choice

Opening Comments: cont’d n Health care is provided, at a minimum n n n For treatment of injuries For the diagnosis and treatment of those medical conditions that require ongoing care For a serious medical problem that must be looked after before the inmate’s release

Opening Comments: cont’d n Recent development – charging inmates for routine health care n n Accommodations made for inmates who lack funds Reason for charges n n n Soaring medical costs for health care, would result in small reduction of these costs Greater impact – reduce unnecessary visits Charging would bring closer to real-life situation

Opening Comments: cont’d n Lower court cases have upheld charging an inmate a fee – no constitutional right to free medical care. Charging a fee n n Assures inmates don’t abuse their access to limited medical sources Teaches inmates financial responsibility Deters the abuse of sick call Above reasons within the scope of legitimate government purpose and penological objectives

Opening Comments: cont’d n Chapter looks at the constitutional requirements n n n Is an inmate entitled to medical care and treatment for any health problem How much health care does the state have to provide In what circumstances will a prison official be liable for failing to provide health care

Estelle v. Gamble (1976) n n Governing constitutional case on prison health care Gamble, a Texas inmate, injured at work (bale of cotton fell on him) n Sent to the hospital, then his cell to rest n Pain did not subside; over two day period, given pain pills, pain reliever and a muscle relaxant n Placed, on medical orders, on “cell pass” – remained in cell except for showers n After a week, doctor prescribed another pain reliever, told could return to light work n Gamble refused, citing pain

Estelle v. Gamble: cont’d n n n He was taken before disciplinary committee, which directed he be seen by another doctor Saw second doctor, & given additional medication Ordered back to work several times, again refused, citing the pain Eventually placed in solitary confinement as a disciplinary sanction for refusing to work He then claimed chest pains and “blank outs”, and was seen one time in the hospital for these He reported continuing pain to the officers in administrative segregation, and was twice refused permission to see a doctor

Estelle v. Gamble: cont’d n n Inmate sued under § 1983, claiming cruel and unusual punishment in his medical care Supreme Court opinion based on a concern over denial of medical care to inmates n n Can lead to unnecessary pain and suffering This is inconsistent with “contemporary standards of decency”

Estelle v. Gamble: cont’d n Court held that deliberate indifference to serious medical needs of inmates constitutes the “unnecessary and wanton infliction of pain” barred by the Eighth Amendment n Need more than an “inadvertent failure to provide adequate medical care”

Estelle v. Gamble: cont’d n In this case, Court held there was no deliberate indifference n n Seen by medical personnel on 17 occasions during a three-month period Treated for three conditions after examination and testing Failure to order certain tests, or medications, does not constitute cruel and unusual punishment At most, would be negligence or medical malpractice, but not a constitutional violation

West v. Atkins (1988) n Question in West was whether a physician under contract with the State to provide medical services to inmates at a state prison hospital on a parttime basis acts “under color of state law” within the meaning of 42 USC § 1983, when he treats an inmate

West v. Atkins: cont’d n n n West tore his Achilles tendon playing volleyball Taken to Central Prison Hospital Saw Dr. Atkins, a private physician under contract with the state to provide inmate medical services Dr. provided orthopedic services; inmate’s leg was placed in a series of casts West claims Dr. told him that surgery was needed, but refused to schedule it West sued under § 1983, claiming Dr. was deliberately indifferent when he failed to schedule the surgery

West v. Atkins: cont’d n Court said it was Dr. ’s function for prison system, not nature of employment, that decides whether actions are attributable to the state n Court held Dr. Atkins, in the state’s employ, worked as a physician at the prison hospital n Dr. fully vested with state authority to fulfill essential job aspects, placed on State by Eighth Amendment and state laws, to give essential medical care to those persons state incarcerated n Court held Dr. must be considered a state actor n Court remanded to pursue the § 1983 action in the trial court

Washington v. Harper (1990); Sell v. U. S. (2003) n Cases deal with involuntary treatment of the patient; especially important in the care of mentally ill patients n n Staff need to know when they are allowed to intervene without the patient’s consent to provide treatment Related question is when do inmates have the right to refuse treatment

Washington v. Harper; Sell v. U. S. : cont’d n Harper provides a partial answer n n Harper was a Washington state inmate who was given antipsychotic medication despite his refusal to take it Decided as a due process case under the Fourteenth Amendment – Court held inmate had a constitutional right to refuse medication, but

Washington v. Harper; Sell v. U. S. : cont’d n n That the right could be overcome by the state based on the inmate’s confinement status Held treatment could not be given just to control or improve the inmate’s disruptive or difficult behavior, but Where the inmate’s mental disability is the root cause of the threat to others State’s interest in decreasing the danger to others encompasses an interest in providing the inmate medical treatment for his illness

Washington v. Harper; Sell v. U. S. : cont’d n Sell dealt with whether the government could administer antipsychotic medication against the inmate’s will, solely to render him competent to stand trial for serious, but non-violent offenses n Sell, a dentist, was charged with making false representations in connection with health care payments n An initial mental health assessment found him competent to stand trial, but with the potential for a psychotic episode

Washington v. Harper; Sell v. U. S. : cont’d n n While on bail, he was accused of attempting to intimidate a witness and was brought before a magistrate judge His behavior at the hearing was “totally out of control, ” and included his spitting in the judge’s face His bail was subsequently revoked A second indictment was later brought, charging Sell with an attempt to kill a witness and an FBI agent

Washington v. Harper; Sell v. U. S. : cont’d n n n Sell sent to Federal Medical Center where two clinicians determined Sell needed antipsychotic medication to restore him to competency so he could stand trial Sell did not want to take Supreme Court followed its Harper guidelines, recognizing inmate has a liberty interest in avoiding the unwanted administration of antipsychotic drugs

Washington v. Harper; Sell v. U. S. : cont’d n Court held Constitution permits the government to involuntarily administer such drugs to a mentally ill defendant facing serious criminal charges in order to make the defendant competent to stand trial, but only if n n n The treatment is medically appropriate Is substantially unlikely to have side effects that may undermine the fairness of the trial, and Taking account of less intrusive alternatives, is necessarily significant to further important governmental trial-related interests

Washington v. Harper ; Sell v. U. S. : cont’d n Court gave detailed directions, stating what a court must find: n n Important governmental interests are at stake Administration of the drugs is substantially likely to make the defendant competent to stand trial

Washington v. Harper ; Sell v. U. S. : cont’d n n Involuntary medication is necessary to further those interests No alternative, less-intrusive treatments exist Administration of the drugs is in the patient’s best interests With these detailed instructions, case was remanded for a determination on whether the guidelines were met

Other Involuntary Medication Cases: n In Thor v. Superior Court (1996), an inmate serving a life sentence became a paraplegic while in prison n n Inmate refused to be fed, and refused treatment Psychiatrists said inmate was depressed, but mentally competent to understand the consequences of his decision (deterioration and ultimate death)

Other Involuntary Medication Cases: cont’d n n Health staff went to court to get permission to forcibly medicate and feed the inmate The California Supreme Court held for the inmate, saying the competent inmate had a right to refuse unwanted medical treatment, even if it could result in his death

Other Involuntary Medication Cases: cont’d n n The court noted the absence of evidence demonstrating a threat to institutional security or public safety In the absence of such evidence, prison officials were held to have no affirmative duty to administer such treatment and may not deny the incarcerated person this freedom of choice

Other Involuntary Medication Cases: cont’d n In Singletary v. Costello (1996), a Florida inmate fasted to protect his punitive transfer to another facility, and what he said was a false disciplinary report n n Medical staff determined failure to intervene would result in his death Florida court saw the inmate, as long as he was competent, as having a fundamental right to refuse nonconsensual medical treatment

Other Involuntary Medication Cases: cont’d n n The task was balancing this against the state’s interests in the preservation of life The court upheld the inmate’s right to refuse life-sustaining medical treatment n n Refusal would not endanger public health There was no interest in the protection of any third parties (such as minor children depending on the inmate)

Other Involuntary Medication Cases: cont’d n The Eight Circuit Appeals Court looked at the issue of drug administration for the purpose of rehabilitation of the inmate (Knecht v. Gillman (1973)) n n Inmates complained given the drug apomorphine without their consent Inmates were at a medical facility; were sent there for treatment of mental incompetency and mental illnesses

Other Involuntary Medication Cases: cont’d n n Staff testified drug used for its negative, adverse effects; for inmates who had disruptive behavioral problems (in effect, for behavior modification) n Given to inmates who did not get out of bed, or swore or lied to staff; induces vomiting for 15 minutes to an hour Appeals court disapproved; to force a person to vomit for 15 minutes for a minor rules breach can only be regarded as cruel and unusual, unless the inmate knowingly and intelligently consented to it

Other Involuntary Medication Cases: cont’d n In Rutherford v. Hutto (1974), a lower court in Arkansas looked at whether an inmate could be forced to attend school against his will n Case involved no medical treatment, but rather involuntary treatment for the good of the inmate

Other Involuntary Medication Cases: cont’d n n n Inmate was 43, illiterate, with little formal education Claimed a constitutional right to remain ignorant and illiterate Prison required inmates to attend classes until they reached the fourth-grade level, with subsequent participation voluntary

Other Involuntary Medication Cases: cont’d n Federal district court supported program; held the inmate had no “constitutional right” to be ignorant or to remain uneducated n n “State has a sufficient interest in eliminating illiteracy among its convicts to justify” requiring attendance in classes designed to bring inmates up to at least the fourth grade level If the inmate refused, he could be disciplined

Inmate Suicides n n One appeals court has stated that a psychological or psychiatric condition can be as serious as any physical pathology or injury, especially when it results in suicidal tendencies and Failure of staff to take any steps to save a suicidal detainee from self-injury may constitute a due process violation under Bell v. Wolfish

Inmate Suicides: cont’d n n Government liability requires a finding of deliberate indifference to the suicidal tendencies of the inmate in the circumstances of each case In Freedman v. City of Allentown (1988) the Third Circuit Court of Appeals recognized that jail officials can’t guarantee the safety of the persons confined n That inmates truly intent on killing themselves will probably be able to do so at some point

Inmate Suicides: cont’d n In Matje v. Leis (1983), the district court found that liability will occur when action isn’t taken in the face of a strong likelihood, as opposed to a mere possibility, that failure to provide care would result in harm to the inmate

Inmate Suicides: cont’d n In Heflin v. Stewart County (1992), the court upheld a jury award to the family of an inmate who had hung himself n n Deputy Sheriff had ordered that the body be left hanging until a doctor or emergency medical staff arrived When medical staff had not arrived (after some 20 minutes), inmate was cut down, but died soon after that

Inmate Suicides: cont’d n The trial and appeals courts found that the Deputy Sheriff should have immediately cut the inmate down and begun CPR (was trained to do this) n The lower courts found negligence on the part of the deputy, plus an apparent deliberate indifference toward the condition of the inmate

Inmate Suicides: cont’d n Similar facts, different result in Reed v. Woodruff County (1993) n Trustee inmate found hanging in shower stall, where it was determined that he had died of “auto-erotic asphyxiation” n n Death was apparently unintentional Staff did not find inmate until after death had occurred

Inmate Suicides: cont’d n Inmate’s family claimed prison officials were negligent, that there was a constitutional violation n n Claimed the jailer (trained as an emergency medical technician) should have tried to resuscitate Failure to do so was deliberate indifference

Inmate Suicides: cont’d n Federal appeals court held there was no obligation to try to revive the inmate when the trained jailer determined death had already occurred n There was no evidence that an attempt to resuscitate could have succeeded

Inmate Suicides: cont’d n In Myers v. Lake County (1994), a 16 year old was unsuccessful in his try to hang himself in a county facility, but he did suffer permanent brain damage n He was awarded $600, 000 in a suit alleging negligence against county officials

Inmate Suicides: cont’d n n Applying state law, a jury found detention facility negligent in not taking adequate precautions against suicide attempts Federal appeals court upheld judgment n n The court recognized not all suicides could be prevented But that reasonable measures to prevent them were required

Inmate Suicides: cont’d n The court rejected the county’s defense of being severely “starved” for funds and being shorthanded n n While this might mean no staff were negligent The lack of funds could not defend against a claim that the facility had failed to perform its legally required functions

Inmate Suicides: cont’d n Lower courts have held for the government when finding circumstances were insufficient to show deliberate indifference because there was insufficient evidence to make officials aware of the suicidal risks n For instance, Freedman v. City of Allentown (1988), where officers did not realize the scars on the inmate’s wrists and neck were from prior suicide attempts

Logue v. United States (1973) n U. S. Marshals arrested inmate Logue and placed him in the county jail to await trial n n n Jail had contract with federal government to hold inmates Inmate committed suicide in the jail by hanging himself His parents sued the United States for wrongful death under the Federal Torts Claims Act

Logue v. United States: cont’d n Supreme Court held that even though Logue was placed in the jail as a federal prisoner by a Deputy U. S. Marshal, he was under the control of the local sheriff and his staff

Logue v. United States: cont’d n For liability under Tort Claims Act , negligent act had to be done by a “federal agency” n n n Jail was contractor with federal government Act specifically excluded a contractor with the U. S. from the definition of a federal agency U. S. not liable for the negligent acts or omissions of the jail’s employees

Logue v. United States: cont’d n Case did have a question as to whether the deputy U. S. Marshal, knowing that Logue had some suicidal tendencies n n n Should have alerted the jail officials to that problem and Should have made sure there were arrangements for Logue to be under constant surveillance Case sent back to lower courts to determine whether federal employee was negligent in this aspect of the inmate’s death

HIV and AIDS n Serious health threat in prisons and jails: n n n At the end of 2001: 24, 147 inmates in U. S. HIVpositive At the end of 2001: 2. 0% of all males and 3. 2% of all female state prison inmates HIV-positive 5, 754 inmates in 2001 with confirmed AIDS – this accounted for about 0. 49% of the total prison population; this rate is over three times the rate of occurrence in the U. S. general population (0. 14%)

HIV and AIDS: cont’d n Questions to be faced by administrators: n n Should the agency adopt a testing policy to detect HIV-positive inmates If yes, who should be tested and when Should HIV-positive tested inmates be segregated If left in the general population, should they be placed in the same work assignments and other programs as other inmates

HIV and AIDS: cont’d n n Who should be notified of HIV test results Should all corrections staff have a right to know which inmates are HIV-positive Once AIDS symptoms develop, where should the inmates be placed How should disciplinary cases be handled

HIV and AIDS: cont’d n n n Are there special concerns for assaultive and drug-using offenders Should AIDS patients be returned to the community early; should special efforts be made to arrange for their care; should persons in the community with whom they have contact be notified of the inmate’s HIV status The courts have ruled on few of these issues, with those at the local level

HIV and AIDS: cont’d n Two Supreme Court cases have had some impact n In Pennsylvania Department of Corrections v. Yeskey (1998), Yeskey was denied placement in a motivational boot camp because of his hypertension; he sued n Supreme Court ruled that the Americans with Disabilities Act (ADA) applied to inmates in state institutions

HIV and AIDS: cont’d n Bragdon v. Abbott (1998) deals with a private citizen, but its holding, which interprets the ADA, gives guidance to prison and jail officials n In this case, a dentist in the community told an HIV-infected patient that her cavity would need to be filled at a hospital, at no added fee for his services; but there would be a hospital charge

HIV and AIDS: cont’d n n The Dr. ’s policy was not to fill cavities of HIVinfected persons in the office Patient Abbott sued, in part, under Section 302 of the ADA - section says no person “shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services. . . or accommodations of any place of public accommodation by any person. . . who operates a place of public accommodation”

HIV and AIDS: cont’d n n n Disability is defined in the statute as a “physical or mental impairment that substantially limits one or more of the major life activities of such individual” Supreme Court agreed with lower courts that Abbott’s HIV infection satisfied the definition of disability Means the protections of the ADA apply to persons with HIV infections

HIV and AIDS: cont’d n Harris v. Thigpen (1991) involved a challenge to Alabama’s program for mandatory testing of all inmates and for segregating those found to be HIV-positive n The district court upheld the mandatory testing policy, conducted for all inmates at admission, stating it was a reasonable means of trying to address the threat of AIDS to the prison population

HIV and AIDS: cont’d n n Challenge was on basis of unreasonable search and seizure, cruel and unusual punishment, and due process violations Both the district and appeals courts held that the segregated placement of HIVpositive inmates was not cruel and unusual punishment, and did not require due process hearings prior to inmate placement

HIV and AIDS: cont’d n Lower courts also denied a deliberate indifference claim as to the provided medical care n n In part, inmates claimed the AZT drug was not used for treating HIV-positive inmates to the extent recommended in the outside community The courts found no constitutional violations and that failure to provide the AZT treatment was permissible (justifying its conclusion in part on the high cost of the drug treatments)

HIV and AIDS: cont’d n HIV-positive inmates objected to being ineligible for prison programs that would help them upon release n n The courts held the inmates were not entitled to such programs as a matter of law Program involvement decisions were for prison officials to make based on their informed correctional judgment

HIV and AIDS: cont’d n Appeals court did send the case back for further fact-finding by the district court on whether segregated HIV-positive inmates were excluded from programs available to other inmates and whether this was a violation of the Rehabilitation Act of 1973 n Of particular concern was a claimed denial of access to the law library materials, and thus equal access rights to the courts

HIV and AIDS: cont’d n In 1999, the Eleventh Circuit Court of Appeals issued its opinion, in Onishea v. Hopper on whether Alabama’s policies were in violation of Section 504 of the Rehabilitation Act n HIV-positive inmates had sued under the Act to force the mixing of HIV-positive and HIVnegative inmates in prison recreational, religious, and educational programs

HIV and AIDS: cont’d n The lower courts denied relief, finding that sexual conduct, intravenous drug use, and bloodshed were always a possibility in prison when staff are not watching n n n Held that prison life is unpredictable That since HIV is transmitted by the above actions HIV transmission in prison is more than a “theoretical possibility”

HIV and AIDS: cont’d n n Fact that prisons have violence, intravenous drug use, and sexual conduct and that these acts may cause blood-toblood contact, providing opportunity for transmission of the virus, was sufficient to find significant risk This risk removed inmates from the protective benefits of the Rehabilitative Act

HIV and AIDS: cont’d n In Gates v. Rowland (1994), an appeals court held that California prison officials did not have to place HIV-infected inmates into work assignments in food services n n Recognizing there was little risk of transmission through the work, the appeals court upheld the government’s position that other inmates would perceive it as a threat And that it was particularly important in a prison setting that inmates have positive attitudes about the safety and sanitation of their food

HIV and AIDS: cont’d n Privacy concerns are being litigated in the lower courts n n For example, does the inmate have a privacy interest over who should have access to his health status Are there instances where the prison has a legitimate interest in disclosing the information

HIV and AIDS: cont’d n Two potential areas of staff interest in knowing who is HIV-infected in the general prison population 1. So staff can take appropriate safety precautions

HIV and AIDS: cont’d 2. And where staff is assaulted by an inmate in which there may be exposure to blood n n Should the staff member be notified the inmate is HIV positive; what about inmate privacy concerns One approach is to offer the employee periodic testing, with pretest and posttest counseling, with costs absorbed by the agency

HIV and AIDS: cont’d n n Important to know state and local requirements on reporting HIV/AIDS cases to the local authorities As to providing medical care for an HIVinfected inmate and the AIDS patient, staff should apply the same standards in adopting policy and procedures that they would use for other health care:

HIV and AIDS: cont’d n n n Must not be deliberately indifferent Must stay informed about the current level of accepted care and precautionary treatments that are followed in the community, and Must try to follow those guidelines to the extent possible

Tuberculosis in Prison: n Tuberculosis (TB) in prisons a special concern n n Close living environment can facilitate the spreading of TB Second concern is the interaction between TB and HIV infection – the presence of immunosuppressions in a person (for example, presence of HIV) may cause the person not to be reactive to a TB skin test

Tuberculosis in Prison: cont’d n Besides testing and interviewing of inmates at admission, periodic retesting of inmates is recommended n n Isolation of those testing positive is recommended When inmates with TB are scheduled for release, referral to local health departments should be made

Tuberculosis in Prison: cont’d n Lawsuits have focused on the alleged failures to take adequate steps to prevent the spread of the disease, thus placing other inmates (and staff) at increased risk n One appeals court held that an agency’s failure to take adequate steps to detect and fight the disease could show deliberate indifference to the serious medical needs of inmates (De. Gidio v. Pung (1990) )

Tuberculosis in Prison: cont’d n A Wyoming district court held that allegations on the failure to isolate infectious TB cases showed only differences of opinions on how TB cases should be treated, and not indifference to inmate’s medical needs (Blumhagen v. Sabes (1993))

Tuberculosis in Prison: cont’d n These two cases point out the standards that would be recommended for prison officials n Prison officials should consult with health officials about adoption of detection and treatment programs according to current guidelines (from Centers for Disease Control and Prevention [CDC] and others)

Tuberculosis in Prison: cont’d n n Failure to do so could expose officials to claims of deliberate indifference and thus to personal liability under § 1983 actions Even if programs are implemented, staff should update them as needed and make sure staff follow through with all recommended testing and treatments to avoid tort claims of medical malpractice

Tuberculosis in Prison: cont’d n A second legal issue involves inmates’ objections to being tested when there is a mandatory, universal testing program

Tuberculosis in Prison: cont’d n The Massachusetts appeals court, in Langton v. Commissioner of Corrections (1993), upheld the state’s policy that inmates had to be tested for TB n n Because of the legitimate concerns for inmate security and safety, the court said the policy for mandatory testing was lawful and justified And that the inmate could be disciplined for refusing to take the TB test

Tuberculosis in Prison: cont’d n From a different perspective, in a New York case, Jolly v. Coughlin (1995), a Rastafarian inmate refused to take the TB screening test based on his religious beliefs n n Pursuant to the corrections department’s TB control program, the inmate was placed in “medical keeplock, ” meaning cell restriction, except to shower Inmate was in this status for over 3. 5 years

Tuberculosis in Prison: cont’d n n n Applying RFRA standards, the court found a substantial burdening of the inmate’s exercise of his religious beliefs, without a compelling government justification Prison officials failed to convince the court that keeping the inmate in lockdown status was the least restrictive approach to further their interest in fighting the spread of TB The court ordered the inmate released from keeplock status and enjoined prison officials from placing him there

An Aging Prison Population n Number of older inmates in prison expected to increase n n n Based on number of elderly in general population And longer sentences Management problems are presented n Health care

An Aging Prison Population: cont’d n n Depression appears to be more common in this age group Other mental health problems also develop Nutrition needs are different, may require consideration of different dietary requirements Physical ailments and general deteriorations of energy levels and muscles produce problems in the classification of elderly inmates, regarding housing, job assignments, and other programs

An Aging Prison Population: cont’d n n Another management problem: elderly can become easier targets for other inmates to prey on Some activities – religious, watching television, participating in organizations, for example - may be more attractive to elderly inmates

An Aging Prison Population: cont’d n No set approach for handling this population n Does require a coordinated response n n n Some agencies place the elderly in certain institutions where staff members are trained to look after their needs Some house the elderly together Some have jobs set aside for the elderly

An Aging Prison Population: cont’d n Many of the elderly prefer separate, quieter quarters n Find living with their own age group less stressful

An Aging Prison Population: cont’d n Legal problems for dealing with elderly essentially the same as for dealing with general prison population – prison officials must not show deliberate indifference to the serious medical needs of the inmates, and in this case, the increased medical needs of the elderly inmate

An Aging Prison Population: cont’d n As part of the broad concerns for wellbeing of elderly inmates, prison officials should show sensitivity on making decisions such as n n n Food service Special accommodations for visiting and other contacts with family and friends, and Assignments to special housing or special programs

An Aging Prison Population: cont’d n Failure to do so could expose staff to individual constitutional liability under Section 1983