American Journal of Law & Medicine

Prison health, public health: obligations and opportunities.


We don't care enough about prisoners' welfare. We should care deeply because, as two prominent commentators on the history of prisons have said, "Prisoners are ourselves writ large or small. And, as such, they should not be subjected to suffering exceeding fair expiation for the crimes for which they have been convicted." (1) Well over two million persons are imprisoned in America today. (2) We imprison a higher percentage of our population than any other country. (3) Those we imprison are disproportionately poor, of color, uneducated, and sick. (4) They have chronic conditions, mental illnesses, sexually transmitted diseases and other infectious diseases. (5) They usually receive inadequate health care--and sometimes shockingly poor care. (6) It has always been so. Prison reformers have argued for decent prison care based on humanitarian principles since the founding of the Republic, and, notwithstanding some notable achievements, have failed to achieve decent conditions. In the last fifty years, reformers shifted to individual rights arguments based on prisoners' constitutional rights. (7) Substantial progress in the early years of that era has given way to reaction from courts and legislatures, throwing this strategy of prison reform into doubt.

This article seeks to identify a third vision of prison reform to supplement the historic humanitarian and more recent individual rights efforts. This third vision of prison reform argues for decent prison health care on the basis of equally selfless and selfish motivations. Reform failures of the past notwithstanding, Americans retain some fellow-feeling for prisoners. The power of this fellow-feeling should not be overstated, as such feelings have proven too diffuse in the past to permit reform traction. The selfish motive for prison health reform therefore takes on great importance. The selfish motive springs from public health effects--the harm to communities that flows from mismanagement of prison health care. The harm that flows from mismanagement of chronic conditions and mental illness comprises severe strain on community health facilities, harm to the communities flowing from the inability of sick ex-prisoners to reintegrate into society, and the costs of recidivism when failure to reintegrate contributes to ex-prisoners' return to crime.

The harm that flows from mismanagement of sexually transmitted diseases and other infectious diseases is more direct. Almost all of the two million prisoners now in prisons and jails will return to their communities one day. (8) If, due to poor prison health care, they return with uncontrolled syphilis, tuberculosis, HIV, and other infectious conditions, they will likely infect many around them. In these circumstances, prisons and jails serve as "epidemiological pumps," (9) amplifying infectious conditions, perhaps even transforming them into treatment-resistant strains, and then sending them out into society for distribution. It is in the interest of all in society to prevent the population health effects that demonstrably flow from mistreatment of the health conditions of prisoners.

The following pages describe the sorry state of health care services for an enormous prison and jail population, the serious harm poor health care inflicts on the prisoners and the communities to which they return upon release, and the steps that should be taken to protect them and the communities they will reenter. Part II discusses the demographics and health status of the American prison population and the health services provided them while imprisoned, with particular attention to communicable diseases, chronic illness, and mental illness. It grounds this discussion in modern-day realities in which one of every one hundred Americans is behind bars on any particular day. (10) Part III describes the ebb and flow of prison conditions and health care reforms, focusing on the humanitarian movements of the 19th Century and the prisoners' rights movement of the mid-20th Century. Part IV describes what may be a catalyst of a third wave of reform: the reentry movement, which seeks changes in the treatment of prisoners in order to facilitate their successful return as healthy, productive members of their community. This Part relates the third wave of prison health reform to the two that came before it, and describes the steps that should be taken to protect the community from harm. Public health measures have gained increasing public and political support in recent years, and public health is an increasingly common lens through which public policy concerns are viewed. Public health principles permit the focus of prison reform efforts to shift from the politically unpopular issue of prisoners' health to the more politically compelling issue of community health. This argument posits a marriage of convenience between the humanitarian or individual rights obligation to provide decent health care for prisoners' sake, and the public health opportunity to improve prison health care for the sake of the society to which most prisoners will return one day.


America has been on a twenty-year spree of prison building, and has filled its old and new prisons and jails with unprecedented numbers of prisoners. Prisoners are disproportionately people of color, poorly educated, and sick. (11) This Part sets out the current state of American imprisonment, with particular focus on the health status and health treatment of those behind bars.


Prison and jail populations increased more than four-fold from 1980 to 2003, from about 500,000 in 1980 to over 2,000,000 in 2003. (12) The rate of incarceration in the United States grew to 726 persons per 100,000 by 2004, far outstripping the imprisonment rates in every other country in the world for which such statistics are maintained. (13) In comparison, the rate of the second most prolific jailer, The Russian Federation, is 550 per 100,000, while Israel's is 209, Iran's is 191, Australia's is 117, Canada's is 116, Germany's is 96, Ireland's is 85, and Norway's is 65. (14) The American increase in the rate of imprisonment far exceeds the rate of increase in the general population, and follows a fifty-year period of relatively stable rates of incarceration. (15)

The majority of those in prisons and jails are black or Hispanic. In federal and state prisons, the racial composition in 2003 was 44.1% black, 35% white, 19% Hispanic, and 1.9% other. (16) In local jails, the composition was similar: 40.1% black, 36% white, 18.5% Hispanic, and 5.4% other. (17) The impact of the growth of imprisonment has been most severe on black men. (18) Almost three in ten black males (28.%) will be incarcerated at some point in their lives. (19) The figure for Hispanic men is three in twenty (16%), while that for white men is less than one in twenty-five (4.4%). (20) The rate of incarceration for young black men is staggering. For example, in New York State in 1994, one in four black men between the ages of 20 and 29 were in prison or jail or on probation or parole. (21)

Prisoners are remarkably less educated than the general population. Almost 75% of state prison inmates and almost 69% of those in local jails did not complete high school, compared with 18.4% of the general population. (22) Fifty two percent of black men born between 1965 and 1969 who did not graduate from high school had prison records by 1999--that is, by the time they were thirty four years old. (23) Not surprisingly--given the correlations among education, race, and poverty--prisoners are also predominantly poor. Of the large number of prisoners without a high school diploma, almost two-thirds had earned less than $1,000 in the month before their arrest. (24) America's prison population, then, is enormous and growing, and is disproportionately composed of poor, ill-educated men of color.


The two million adult prisoners in the U.S. do not reflect a cross-section of America; they are poorer, less well-educated, and much more likely to be members of racial minorities. (25) In addition, however, they are sicker:

   The prevalence of chronic illness, communicable diseases, and severe 
   mental disorders among people in jail and prison is far greater than 
   among other people of comparable ages. Significant illnesses 
   afflicting corrections populations include coronary artery disease, 
   hypertension, diabetes, asthma, chronic lung disease, HIV infection, 
   hepatitis B and C, other sexually transmitted diseases, 
   tuberculosis, chronic renal failure, physical disabilities, 
   and many types of cancer. (26) 

They are sicker going in, and they are also sicker when they are released. (27)

Four categories of prisoners' conditions are worthy of particular attention: communicable diseases such as HIV disease and tuberculosis ("TB"); sexually transmitted diseases ("STDs") such as syphilis and Chlamydia; chronic conditions such as asthma and diabetes; and serious mental illness such as schizophrenia and bipolar disorder. (28)

1. Communicable Diseases.

Communicable diseases are spread from person to person, easily (as with TB, which is transmissible by air) or with more difficulty (as with hepatitis, which is transmissible with direct contact between persons' bodily fluids). (29) The rate of infection with communicable diseases among prisoners is startlingly high. They are disproportionately infected when they arrive in prison. (30) Compared to the general population, it has been estimated that "rates of human immunodeficiency virus (HIV) infection ... are 8 to 10 times higher, rates of hepatitis C are 9 [to]10 times higher, and rates of tuberculosis are 4 [to] 7 times higher." (31)

Prisoners are also disproportionately infected when they are released from incarceration. In 1996, released prisoners accounted for 35% of all people in the United States with tuberculosis, 29% of those with hepatitis C, 12% of those with hepatitis B, and 13% of those with HIV infection. (32)

2. Sexually Transmitted Diseases.

Sexually transmitted diseases (STDs) are a subset of communicable diseases (that is, they are transmissible from person to person) that are also over-represented in prisons and jails. Approximately 2.6 to 4.3% of prisoners are infected with syphilis, 2.4% with Chlamydia, and 1% with gonorrhea. (33) The incidence of STDs in jails, in particular, is very high. Studies of women in jails in the United States have found that "35% of the women had syphilis, 27% had Chlamydia, and 8% had gonorrhea." (34) A study of syphilis in New York City jails found that women with multiple incarcerations had an incidence of syphilis infection that exceeded the rate of women in the general New York City population "by more than a thousand-fold." (35) A 1999 study of early syphilis in Chicago found that "almost one third of all incident cases ... were diagnosed at Cook County Jail." (36)

3. Chronic Illness.

A large number of prisoners have serious chronic illnesses. The asthma rate in United States prisons and jails in 1995 was 8.%; diabetes, 4.8%; and hypertension, 18.3%. (37) The asthma rate was higher than that of the general population. (38) The rates for diabetes and hypertension were lower than the general population. (39) However, the relative youth of the prison population and the fact that both diabetes and hypertension are more likely to arise in older persons, suggests prison populations are disproportionately affected by these conditions as well. (40)

4. Mental Illness.

America's prisons and jails have--with the sharp reduction in the census in mental hospital--become the "new asylums." (41) The simultaneous surge in imprisonment of people with mental illness and decrease in institutionalization in mental hospitals has been referred to as "transinstitutionalization." (42) This phenomenon is caused by the failure of the community mental health system to provide services to those cleared from psychiatric hospitals in the process of deinstitutionalization, and changes in criminal sentencing processes that increased penalties for "quality of life" and drug offenses while reducing the exculpatory or sentence-reducing effects of mental illness. (43) "The nation's largest mental health facilities are now found in urban jails in Los Angeles, New York, Chicago, and other big cities." (44)

About 16% of people in state prisons and jails have a mental illness. (45) About 700,000 people with mental illness are placed in American jails each year, (46) about three-quarters of which also have substance abuse disorders. (47) The incidence of mental illness, particularly major mental illness, is substantially higher is prisons and jails than in the free world. (48) The incidence of schizophrenia in state prisons is three to five times higher than in the general population, (49) and two to three times higher in jails than in the general population. (50) These data on the prevalence of mental illness among prisoners are contested in their specifics; the lack of information available to researchers hampers precise assessments. (51) It is, however, clear that "severe mental disorders among prison and jail inmates are a significant, complex, and intractable health problem that has defied both explanation and resolution." (52)


Prison conditions in America have been dismal since the founding of the Republic. Oppressive and brutal conditions predominated with brief periods of improvement resulting from reformist zeal. (53) Overcrowded prisons are of course unhealthy, and prison reformers attempted to ameliorate those conditions. (54) With the rise of curative medicine in the 20th Century, access to or denial of decent health services became a significant issue in prison reform. It is clear that prison health care was shockingly bad during much of the 20th Century, as vital, life-saving care was delayed, denied, or provided by untrained fellow prisoners. (55) The quality of health care services in modern prisons varies from prison to prison, and state to state. Reform efforts, including prisoners' rights litigation, have increased funding and oversight in some prison systems. For example, the Re-Entry Council's recent report, drawing on a variety of state and federal corrections sources, recently asserted that the "quality and availability of medical services for the prisoner population has been enhanced by multiple federal judicial decisions and by initiatives of a host of professional organizations." (56) It is possible, however, to exaggerate the improvements.

Too often prison care is abysmal and dehumanizing. This is true even in the state highlighted as an example of improvement in the Re-Entry Council's Report: California. (57) Shortly after the Re-Entry Council issued its report, a federal judge blasted California's prison health care, issuing an Order to Show Cause why management of health services in the California Department of Corrections should not be taken away from the State and assigned to a court-appointed receiver. (58) The text of the order relates a hair-raising account of a "totally broken system" (59) The court found that "[e]ven the most simple and basic elements of a minimally adequate medical system were obviously lacking." (60) In one of the California prisons toured by the Judge:

   [T]he main medical examining room lacked any means of sanitation 
   there was no sink and no alcohol gel--where roughly one hundred 
   per day undergo medical screening, and the Court observed 
   that the dentist neither washed his hands nor changed his 
   gloves after treating patients into whose mouths he had 
   placed his hands. (61) 

Expert reports on this prison noted referral slips for health care unattended for over one month, (62) and dirty, dangerous, and antiquated facilities, unchanged by prior court orders due to the indifference of corrections officials. (63) Remarkably, the Department of Corrections apparently did not either disagree with the facts or object to the proposal to divest it of its authority to manage prison health, and officials acknowledged that they were "unable to correct the problems on their own, and that unconstitutional conditions will remain until an outside agency is hired to take over." (64)

That California case does not stand alone. A 1999 decision (65) decried the fact that, after 27 years of litigation, the Texas Department of corrections continued to provide care through inadequately trained personnel, (66) failed to treat or even properly isolate prisoners with infectious tuberculosis, (67) and denied psychiatric care to prisoners clearly in crisis. (68) Similarly, a 1998 decision reviewed a two-decade history of noncompliance with an order on medical care within the Puerto Rican prison system (69) and found deteriorating conditions in which prisoners were denied emergency treatment, medications, prescribed medically necessary care, and essential psychiatric services, leading to prisoner deaths and "actual pain and suffering with no conceivable penological purpose...." (70)

The record in these cases documents the broad failure of major prison systems to provide decent care. In the treatment areas most responsive to the actual condition of prisoners--chronic disease, sexually transmitted disease, communicable disease, and behavioral health (71)--there is particular evidence that prisons are simply not providing adequate care. …

Log in to your account to read this article – and millions more.