USING THE CONSTITUTION TO IMPROVE PRISONER HEALTH

Abstract

Wilper et al.1 analyzed survey data and concluded that many prisoners and detainees with serious, chronic physical and mental illnesses fail to receive health care while incarcerated. The Supreme Court has held that the Eighth Amendment's prohibition against cruel and unusual punishment requires the government to provide health care to prisoners,2 but has clarified that officials may be held liable for failing to provide adequate health care only if they are aware of, yet disregard, a “substantial risk of serious harm … by failing to take reasonable measures to abate it.”3 Attorneys and judges have devoted countless pages of legal briefing to interpreting this murky legal standard, hiring expert witnesses—usually clinicians—to testify as to the quality of care provided. But epidemiologists—the consummate students of risk—are rarely called upon to offer their thoughts in this arena, despite the crucial role they have played in other litigation, such as that over chemical and tobacco exposure. Indeed, in Helling v. McKinney, a case holding that exposing prisoners to secondhand smoke may constitute cruel and unusual punishment, the Supreme Court expressly recognized a role for “scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS.”4 In so holding, the justices issued an invitation for public health experts and epidemiologists to take a front seat in the courtroom. Accepting this invitation has the potential to improve health care for the approximately 2.3 million Americans behind bars.5 Public health experts and epidemiologists have broadened our understanding of the burdens of morbidity and mortality in correctional facilities as well as the public health and policy considerations implicated in the provision of prison health care.6–8 But in a society with an insatiable appetite for incarceration yet a strong aversion to providing services, once the prison door slams shut, litigation must serve as a tool to ensure that prisoners and detainees are kept healthy and safe. Just as epidemiology and public health played critical roles in litigation that resulted in safer products, a cleaner and healthier environment, and the control of infectious disease, they should play an equally important role in prison health litigation.