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Social Issues Tue Nov 17 2009

Are Illinois Inmates Receiving Proper Health Care?

IMG_1329.JPGAre inmates' health care needs being met behind bars in Illinois? This question was posed Monday afternoon to a panel of three experts -- Dr. Michael Puisis, chief operating officer for Cermak Health Services, Benjamin S. Wolf, associate legal director for the American Civil Liberties Union of Illinois and Frank H. Easterbrook, chief judge of the U.S. Court of Appeals for the Seventh Circuit. The John Marshall Law School student chapter of the American Constitution Society, the Chicago Lawyer Chapter of the American Constitution Society and the ACLU of Illinois co-sponsored the lunchtime event.

Mechanics listened in to hear what the experts had to say about the health care (or lack thereof) that inmates receive in prison. The short answer: it doesn't look pretty and the problem stems from the same hurdles free citizens face in receiving proper health care. Here are some highlights as to why health conditions in prisons are so poor:

Puisis: In 48 states, convicted persons can't vote. In 33 states, if you're on parole you can't vote. And in 28 states, if you're on probation you can't vote. That totals about 13 percent of African Americans and about 5.3 million people are disenfranchised. So indeed, this a closed society that has not many alternatives to pressure politicians to make choices. Because prisons are closed, it's tough for them to make movement. In addition, there's very little sympathy for inmates. So the first question is whether a shrinking budget actually affects medical care for inmates? The answer is 'Yes, it does.' And there's not a lot that can be done about it. The prison population wasn't always as high as it is today. America incarcerates at a higher rate than any country in the world. I just want to put in some historical context to keep it local:

In 1975, the Cook County Department of Corrections was formed by the merger of the House of Corrections and the Cook County Jail. The combined population of that jail in 1980 was 3,800 people. So for half a century, the population of the jail increased by 200. Well, over the next 20 years - and I was at the jail during some of that time - the population of the jail increased from 3,800 people to over 11,000. That's a 189 percent increase. At the same time, over the past 30 years, the population of jails in America has increased over 500 percent. Now, we have 2.3 million people incarcerated and many millions more either on parole or probation. So that's a significant number of people who are disenfranchised. That explosion in jail population has meant that the existing population has to be cared for in the older facilities that existed. What's that meant practically is that many of the clinics and medical facilities in jails are really in...rooms that were not meant for their intended purposes. These are not meant to be healthcare facilities. So sometimes, you'll walk into a clinic, and it's an old property room. In the Cook County Jail, the inmates' center was a property room and it wasn't meant to accommodate those kinds of activities and it doesn't have the necessary plumbing, etc.

I want to state unequivocally that federal intervention really is, in my opinion, responsible for improvement in health care for the last 30 years. And it's only through that intervention that medical care in this population has improved. So what is the solution? Should we have mass incarceration forever? I would prefer not to incarcerate at all...there's no question that federal intervention is going to be the primary mover to improved inmate health care. [In addition] we are faced with an increasing inmate population based on drug laws and mandatory drug sentencing that has resulted in huge population swelling. But we can change it and it doesn't have to go through the federal courts [if we] can go through laws that change the way we incarcerate people.

Wolf: The federal courts' Constitutional role in this context is limited. There's no general Constitutional right of free citizens to receive medical care, psychiatric care or other social services. There's unlimited statutory rights on Medicaid and other laws but no constitutional right typically in that context. So the right of prisoners and people locked up in jails and other custodial arrangements run by the government to receive healthcare is derivative of the fact that they've been deprived of the ability to get healthcare themselves.

If you're locked in prison, your only source of healthcare is what the government provides, what the people running the prison provide...There's an obligation by the state to provide health care to address serious medical needs, but the obligation is a limited one. And case law is clear that the courts should only intervene unless they have to...They should only intervene, at least in the context of the 8th Amendment, when there's been 'deliberate indifference' to serious health needs. One would think that given [these restrictions] that intervention would be rare. It isn't. In my view, that's because prison health care and jail health care is so awful around the country.

The other reasons why the problem is growing are a little more complicated. Prison and jail inmates have higher and higher levels of medical need than they used to. And some of that is because our knowledge of medical need and medical science has advanced, but a lot of it is because the population is different. Prisoners are older than they used to be - they stay longer than they used to stay, so we now have prisons around the country that are almost becoming almost like nursing homes. We're caring for 50, 60,70 year-old people who have a range of health problems that are somewhat worse than free citizens ...There's also been a lot of data about the psychiatric-related needs of prisoners...There are very high rates of significant mental health cases. Prisons aren't obligated to treat everyone's need for counseling...I think we need to remedy the Constitutional problem.

Easterbrook: There's no constitutional right to good -- let alone free -- health care outside of prison, which makes it very difficult to see why getting convicted of a crime should create one. Remember the DeShaney case? The court held there that there's no right to public protection from private violence. So when social workers failed to protect Joshua DeShaney from his abusive father, they did not violate the constitution. The case stands for the proposition that the constitution is a charter of negative liberties -- the right to be free of certain kinds of governmental interference but not a right to governmental assistance. Earlier cases have held the same thing about other governmental services. The government can't discriminate when providing services, but it has no duty to provide them in the first place. So why is there a right to any health care in prison? The Supreme Court held in Estelle against Gamble and Farmer against Brennan that there is. Rationale is that the state -- having cut off the opportunity from private activity - prisoners can't exactly go toddle off and see his own physician. The government then has to provide a substitute, but what kind of substitute? One answer could have been the same medical care he received before he went to jail [but] committing a felony isn't supposed to improve one's position in far as I know, that sort of person-specific standard was not argued for in Estelle vs. Gamble or Farmer vs. Brennan. The answer the court did give is everybody gets a right to wretched care, where wretched means care that is not intentionally designed to inflict gratuitous harm. There's no right to good care, or to average care...or to any care at all for non-serious needs, or to below average care...or even to non-negligent care. No, the right is only to care that is not designed to injure. That comes from the 8th Amendment.

Does this make sense? Certainly not in a system where the Constitution requires the humane treatment of criminals. But our Constitution does not require the humane treatment of criminals. Prison itself is ghastly. A humane society would not treat drug abuse as a crime. As Milton Friedman recommended, it's much better to treat cocaine like alcohol. A humane society also would prefer non-custodial alternatives to imprisonment...As long as we have prison, we have to understand, they are not pleasant, and they're not supposed to be.

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