JDI IN THE NEWS - 2002

Jim Oliphant, Law When Prison Cells Breed Disease, Legal Times, December 9, 2002.

When it comes to taking care of its sick inmates, the Limestone Correctional Facility in Capshaw, Ala., goes to extremes.

The 2,400-bed prison houses its inmates infected with the Human Immunodeficiency Virus (HIV) in a separate unit. They live out their incarceration wholly segregated from the rest of the population. They eat and sleep separately. They cannot participate in any prison classes or programs. And, say lawyers who filed a class action against the state of Alabama last month, they are given shoddy and incomplete health care.

"There's a complete absence of appropriate medical care," says Stephen Hanlon, a partner in the D.C. office of Holland & Knight who represents the inmate class. "People are being robbed of their chance to control the disease and make a meaningful contribution to society."

There are about 240 HIV-infected prisoners at Limestone, a slice of an estimated 46,000 or so HIV-positive inmates in jails and prisons nationwide. Prisoners have HIV at a rate 10 times that of the outside population. But those who are still inside are just part of the story.

Jails and prisons often serve as incubators for communicable diseases such as hepatitis C, HIV, and tuberculosis, as well as less lethal afflictions such as syphilis and gonorrhea. And like HIV, these diseases run rampant among prisoners. Poor health care inside jails and prisons can turn short prison stretches into death sentences. It can also magnify the risk of harm to the outside population once prisoners are set free.

The National Commission on Correctional Health Care, a nonprofit group that works for improved health care in prisons, recently issued the most comprehensive study ever undertaken of the rates of disease among America's prison population. The report, which was funded by both the U.S. Department of Justice and the Centers for Disease Control and Prevention, confined itself to a three-year period in the mid-1990s.

The study, which was presented to Congress in May, showed that incidences of serious, contagious diseases among inmates are sky-high and revealed some startling numbers:

• An estimated 34,800 to 46,000 inmates as of 1997 were infected with HIV, with an estimated 9,000 with full-blown AIDS;

• An estimated 98,500 to 145,500 HIV-positive inmates were released from prisons and jails during that time;

• As much as one-fifth of the nationwide jail and prison population of 2 million could be infected with hepatitis C; and

• There were an estimated 1,400 cases of tuberculosis in jails and prisons across the country as of 1997, and as many as 12,000 inmates carrying the disease were released that same year.

REVOLVING DOOR

"There's a misconception on the part of the general public that people behind bars are a separate population," says New York City physician Jonathan Shuter. "Inmates cycle in and out of these places. They're not staying there."

Shuter served as the director of inmate health at New York's jail complex at Rikers Island during the mid-1990s. He said 100,000 people entered and exited the jail each year. "That's a pretty decent chunk of New York City," Shuter says. A state prison system such as Maryland's keeps inmates an average of 39 months.

For those charged with taking care of the medical needs of inmates, the rapid turnover of the jail and prison population translates into an undeniable link between providing prison health care and safeguarding the health of the general public.

The tuberculosis outbreak in the late 1980s and early 1990s in New York City, which saw the incidences of TB triple, is one example of how public health crises can incubate behind bars. "It's the kind of thing that can happen as a result of bad policy," Shuter says.

At Rikers Island, Shuter witnessed an inmate population riddled with HIV. One-fourth of the women admitted to the jail had the virus. "It was astonishing," Shuter says. "That approaches the worst African countries." Half of them didn't know they had it. Few knew how to take precautions against transmitting the disease. "There were a lot of lost opportunities with HIV," he says.

The prevalence of HIV and hepatitis has come at a time when jail and prison populations have surged to an all-time high (one out of every 140 Americans is incarcerated) and the cost of health care has soared. The lack of affordable health care on the outside often makes a jail the largest medical care facility in a given county. Anthony Swetz Jr., director of inmate health for the Maryland Department of Public Safety and Correctional Services, which operates the Baltimore City Jail, calls that facility "the largest urgent care facility in the city of Baltimore."

"When we assume someone at the point of arrest, we are responsible for all health care bills," Swetz says. "We are the insurer and the health care provider for the criminal justice system."

MARYLAND'S STORY

Maryland's situation illustrates the pressure that is placed on prison systems to provide adequate health care, a constitutional requirement placed on them by federal courts.

The state has elaborate procedures for preventing the spread of TB and HIV among its prison population. Every inmate coming into the prison system is tested, and all inmates and prison staff are tested annually. Those who test positive are housed in state-of-the-art isolation cells that prevent the airborne virus from leaving the room.

HIV is more complicated. As a result of extensive litigation in the early 1990s, inmates cannot be tested against their will. They must volunteer, and Swetz says about half of them do so. Maryland's most recent estimates suggest that 14 percent of its women inmates and 7 percent of the men have HIV, one of the highest infection rates nationally. (The state's inmate population is about 27,000.)

Once a prisoner's HIV status is discovered, he is treated using what Swetz calls the "community standard" of care, which involves a complex mix of prescription cocktails with hefty price tags. In fact, half of the system's entire budget for pharmaceuticals goes toward HIV treatment. Upon release, HIV-positive inmates are placed in outside treatment facilities such as the Whitman-Walker Clinic in the District to ensure continuity of care.

Maryland has now turned its attention to the growing problem of hepatitis C infection. The prison system doesn't test for the disease and has no idea how prevalent it is in its facilities. The results of a blind study of 3,000 inmates tested for HIV and hepatitis C should be released shortly.

Treating the disease -- which attacks the liver, can lie dormant for years, and is fatal in about one out of every 20 cases -- could be more costly than treating HIV because of the medications involved. Swetz estimates that it would cost $2.25 million a year to treat just 150 individuals.

Maryland's prison health care budget stands at $61 million. And at a time of declining state revenues, finding more money to treat prisoners isn't a particularly popular notion. "The economy isn't good and taxpayers have never been fond of paying for anything having to do with inmates other than paying for the walls that house them," says Edward Harrison, president of the National Commission on Correctional Health Care.

But that doesn't stop some from seeking to place even greater demands on the system.

CLASS LESSONS

The class action involving the Limestone Correctional Facility in Alabama alleges that prison officials are indifferent to the HIV-positive inmates' medical needs, have provided inadequate staffing of trained medical personnel, and have the inmates housed in squalid living conditions. Alabama is one of two states that segregate HIV-positive inmates; Mississippi is the other.

Holland & Knight's Hanlon says the failure to treat the inmates effectively while they're in prison will just mean greater medical costs once the prisoners are released. "It's a public health risk both in the prison and outside the prison," he says.

While Alabama's procedures may be unusual, such lawsuits are not. Earlier this year, the state of California settled a class action alleging inadequate health care brought on behalf of the 160,000 inmates incarcerated in the state's prison system. One of the named plaintiffs was a prisoner with AIDS who had his pain medication cut off eight times. Under the terms of the settlement, the state agreed to overhaul its prison medical policies and procedures. Even before the settlement, the state had seen its budget for prison health care more than double to $663 million from 1998 to 2002.

The treatment of hepatitis C, or the lack of it, has become the new battleground. Class actions have been filed in Oregon and New Jersey, among other states, alleging that prison officials have devoted insufficient resources to treatment. 

The New Jersey case arose from the plight of a former inmate, William Bennett, who served 10 years in state prisons for armed robbery. With a history of intravenous drug use, Bennett was considered high-risk for hepatitis C. New Jersey, however, like Maryland, doesn't test inmates for the disease.

Bennett says the prison learned of his condition from the results of a blood test taken two years ago that showed elevated liver enzymes. Prison health care officials, he charges, didn't inform him about his diagnosis until shortly before his release in June and didn't tell him the risks of spreading the disease. Bennett soon married and had unprotected sex with his wife. So far, she has not tested positive, says Bennett's lawyer, Laura Feldman of Trenton, N.J.

The class action seeks to force the state to set up an education, monitoring, and treatment program for the disease. "In New Jersey, it's impossible to tell how many people are infected," Feldman says. "We really just don't know." 

The suit charges that the state and the prison's private health care provider refuse to treat hepatitis C because of the costs involved. "The treatment is very, very expensive," Feldman says.

In October, the state of Washington paid $1 million to settle a suit stemming from the death of Phillip Montgomery, a 32-year-old inmate imprisoned on burglary charges who was turned away from a prison health clinic hours before his death. Montgomery suffered from hepatitis C.

His family's lawyer, Jack Connelly of Tacoma, Wash., equates Montgomery's treatment with cruel and unusual punishment. "Such excessive suffering goes well beyond the intended level of punishment that is sanctioned and prescribed by our society," he says.

STEMMING THE TIDE

Prisoner advocates say that improving medical services isn't the only thing prisons can do to minimize the spread of deadly diseases among inmates.

In testimony before the Senate Judiciary Committee this summer, the risk of spreading blood-borne diseases like HIV and hepatitis was cited as a reason to support proposed federal legislation that would require a comprehensive study of prison rape in the United States.

"Forced intercourse is high-risk behavior," says Lara Stemple, executive director of Stop Prisoner Rape, a nonprofit prisoner advocacy group. "We are in touch with people who have contracted HIV in prison."

But prison health care experts like Maryland's Swetz and Harrison of the National Commission on Correctional Health Care say there is little transmission of blood-borne diseases among prisoners. "The clinical data just doesn't support that," Swetz says.

But Harrison does agree that most prisons can do more to provide health services.

"Correctional facilities are not designed to be public health facilities. They're not funded for that, not staffed for that," Harrison says. "It's going to boil down to the political will of state legislatures and county commissioners."