Policy experts propose practical moves toward solving health care rights failures in US correctional facilities.

March 2, 2023

Medical care for people incarcerated across the United States has long been precarious and inadequate, and the Supreme Court may soon make it worse, health policy and legal scholars argue in a new article. To address those failures, the authors call for two changes that could safeguard rights to health care for those held in American prisons and jails. 

Their article published March 2 in the New England Journal of Medicine (NEJM) reviews the perilous state of health care in U.S. correctional facilities and the constraints on legal rights to treatment. The authors describe how many incarcerated people live with “woefully inadequate medical care” –and document that Black, Native American, and Hispanic prisoners and inmates are disproportionally worse off in terms of medical care. 

The authors are Harvard Kennedy School Professor of Public Policy Marcella Alsan; Harvard Law School Professor Crystal S. Yang; Professor Josiah D. Rich of Brown University; and Harvard College students James R. Jolin and Lucy Tu. Alsan and Rich are both physicians and public health specialists focusing on the intersection of health and criminal justice. Yang, a former federal prosecutor, studies bias in the criminal justice system and health delivery in jails. 

Their NEJM article recalls the landmark 1976 Supreme Court case, Estelle v. Gamble, which found that failing to provide adequate medical care to the incarcerated violates the Eight Amendment ban on cruel and unusual punishment–but only if the failure was the “result of deliberate indifference.” That means prisoners need to prove that officials were aware of and disregarded a substantial risk to inmate health or safety, and not just merely negligent – which has turned out to be a major legal hurdle for those held in correctional facilities, the scholars argue. 

A statutory obstacle to getting legal help, the Prison Litigation Reform Act, also makes it harder to bring a legal claim for health care, the authors say, not least because of provisions requiring prisoners to pay filing fees in full, with no option for a fee waiver. These constraints have meant that very few legal challenges are successful. 

What's more, the Supreme Court has recently followed “originalist” interpretations of the Constitution, as shown in the recent elimination of the constitutional right to abortion. The authors contend this approach could take the Court down the path of interpreting the Eighth Amendment in a way that rejects the right to adequate health care for incarcerated persons. 

To counter these obstacles, the authors propose two steps forward: first, for Congress to substantially amend or just repeal the Prison Litigation Reform Act; and second, to enact new legislation empowering a federal agency to define uniform standards of care, along with a new oversight body to enforce these standards. They also applaud recent moves by the Centers for Medicare and Medicaid and Biden Administration to make federal funds available for provision of health care in correctional facilities. 

“Only with such reforms will we finally be able to make the systemic changes necessary to guarantee that incarcerated people have an enforceable, secured right to high-quality health care,” the article concludes.


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James F. Smith

Photo of Marcella Alsan by Stephanie Mitchell/Harvard Staff Photographer.