A lengthy article recently published in The New Yorker is shining a light on the extraordinary extent to which private companies have taken over health care in prisons. It is a trend that has grown quietly – and largely out of sight – over the last several decades, combining many of the worst elements of both our dysfunctional national health care system and the morally and legally ambiguous trend toward privately-run, for-profit, prisons.
The article details numerous cases in which private companies are alleged to have provided inadequate care whether through neglect or inadequate staffing and concludes: “Taken as a whole, evidence from cases across the country suggests that four decades of policy failures in both health care and criminal justice reform have left a largely neglected population vulnerable and, at times, at risk, and that for-profit companies, which were promoted as a solution, have instead become an integral part of a troubled system.”
Because prisoners represent a population with which many people have little sympathy, it is important to note here that cities, states and the federal government have a legal obligation to care for the people they lock up. “The standard of care that incarcerated people have a right to receive was established in the landmark case of Estelle v Gamble in 1976,” the magazine notes. In that case the Supreme Court ruled 8-1 that “deliberate indifference to serious medical needs of prisoners” violates the constitution’s prohibition against “cruel and unusual punishment.” As the article goes on to note, “Estelle also spawned a wave of civil-rights litigation seeking to enforce the Eighth Amendment protection,” a process which, over time, caused the standard of required care to become more precisely defined.
Indeed, as an attorney I want to emphasize that the civil rights aspect of this issue should not be overlooked. In addition to the Eighth Amendment protection against cruel and unusual punishment, there are also basic 14th Amendment civil rights issues that need to be considered. No level of government can deprive any American citizen of his or her rights. The fact that prisoners are not a popular or vote-winning demographic does not change the fact that they have rights, including to proper medical treatment, which the government is bound to honor.
That litigation, in turn, can be directed at the private contractors as well as the government. When private companies take on a contract to provide a government function they become subject to the same kind of civil rights claims that could otherwise be filed against the government (in whose place they are acting). Collectively, these are known as “1983” actions, a reference to 43 USC 1983, the law governing civil cases focused on the deprivation of rights.
This is not a small or isolated problem. The article cites a recent study by the Pew Charitable Trust which found that “more than half the states hire private companies to provide at least some of their prison health care.” Two Tennessee-based companies, Corizon Health and Wellpath, dominate the industry. According to The New Yorker the companies, by their own account, are responsible for the health-care needs of some 430,000 prisoners nationwide on any given day. They “have been sued about fifteen hundred times during the past five years… over matters including alleged neglect, malpractice and, in dozens of cases, wrongful injury or death.” Some of those suits have raised 1983 issues. For example Fields v Corizon Health (490 Fed Appx 174) which was decided in the 11thCircuit in 2012. A consultant quoted in the article refers to the suits as, from the company’s perspective, simply part of the cost of doing business.
The fundamental problem with the outsourcing of prison-based medical care is one of both fairness and justice. As The New Yorker notes, the decades since the Estelle ruling have seen many civil-rights cases filed over the issue of prison care. When governments outsource this duty to the private sector they may or may not actually save money, but they expose themselves to double legal liability both because the imprisoning authority always has the ultimate responsibility for the well-being of its prisoners and because in choosing private companies that have made a mess of the job the government opens itself to a second set of questions about how the private contractors were chosen and why this policy decision was made in the first place.
As a Portland attorney practicing in both Oregon and Washington I look at articles like this and wonder when we will learn the larger lesson that not everything can be done better by the private sector – and that even when the private sector can do something more cheaply that is not necessarily a good thing.
The good news is that over the last few years journalism like this has put the private prison industry under a microscope. Many people have begun to question whether it is either morally right or actually as cost-effective as its advocates claim. The New Yorker has done us all a service by bringing the related question of prison health care into the spotlight as well.
The New Yorker: The jail health-care crisis