Attending to Inmates’ Basic Public Health Needs
Inmates are in the state’s special custody while they are incarcerated; they do not have the ability to seek care on their own.41 A landmark 1976 case,Estelle v. Gamble, established that inmates have the right to adequate medical care while incarcer- ated, and failure to provide medical care may be the basis for federal constitutional violations, such as the Eighth Amendment’s prohibition of cruel and unusual punishment.42
Medical malpractice claims brought by Illinois inmates against the vendor that provides their care for not promptly diagnosing or treating them have resulted in settlements and jury awards of millions of dollars in compensatory and punitive damages. In 2019, a unanimous jury found that not referring an inmate for a CT scan for nearly four months after blood appeared in his urine allowed his “kidney cancer to metastasize to his liver” and constituted deliberate indifference, violating the man’s Eighth Amendment rights, in addition to constituting medical malpractice.43 In that case, defendants have asked for a new trial or that the jury award be reduced, so the outcome is not yet clear.44 However, settled cases also reveal inmates who have had conditions that would have been treatable, if properly diagnosed.45
Court cases can take years to litigate to completion, as shown by both the Eighth Amendment case discussed above and the Consent Decree we discuss next. Moreover, the standard for prevailing is a diffi- cult one, requiring that a need be serious and that prison officials had personal knowledge of a risk and yet consciously disregarded it.46
Importantly, nearly a decade of private litigation about poor health care in Illinois correctional facilities yielded a Consent Decree in January 2019. It can serve a valuable role with COVID-19. As we noted above, inmates and staff today are at risk of inadequate testing, prevention, and treatment of COVID-19 infection.47 In the Consent Decree, IDOC agreed to the naming of a court-appointed monitor to oversee IDOC’s system for meeting the health care needs of its inmate population.48 Court-appointed experts in that litigation had concluded that deaths of inmates in state custody were sometimes preventable.49
The Consent Decree requires IDOC to “implement sufficient measures, consistent with the needs of Class Members, to provide adequate medical and dental care to those incarcerated in [IDOC] with serious medical or dental needs. Defendants shall ensure the availability of necessary services, sup- ports and other resources to meet those needs.”50
Here, a survey conducted by the prison watchdog John Howard Association in early May found that more than 13 percent of inmates surveyed indicated they had tried to get medical care because of COVID-19 in the prior week but received “no response.”51 Only 2.7 percent indicated they asked and staff responded.52
One of the issues with IDOC’s healthcare provi- sion leading up to the Consent Decree was that a non-clinical correctional administrator served as a health authority for the IDOC healthcare program.53 The Consent Decree mandates that IDOC recognize the Office of Health Services’ Chief of Health Service, a board-certified physician, as the health authority with ultimate “control and over- sight over health care delivery.”54 The Consent Decree also contemplates a set of health screening and immunization protocols; for obvious reasons, coronavirus is not mentioned but precautions against the virus are surely within the Consent Decree’s spirit.55 The steps contemplated by these reforms are critical given that the proportion of IDOC inmates over age 50 “has increased as the population has quadrupled during the last three decades.”56 The aging inmate population is at risk for poor COVID-19 outcomes.57
The Consent Decree also directs IDOC to perform mortality reviews to “identify any deficiencies in the delivery of care and initiate corrective actions for those aspects that require improvement.”58 The monitor’s first report after the Consent Decree noted the importance of mortality reviews:
“Performing detailed mortality reviews is a resource intensive but vital component of a Quality Improvement Program.”59 It is crucial to “critique the timeliness and quality of the care provided by the IDOC; … to identify any elements of the health care that could be improved and … note any action plans.”60
Reviewing “selected categories of deaths for the purpose of identifying opportunities to improve the access and quality of care provided to the deceased patient-inmates” is the gravamen of mortality reviews.61 This crucial step is urgently needed to understand how best to contain this pandemic behind bars. In November 2019, however, the monitor identified a “backlog” of mortality reviews.62
Social distancing and frequent handwashing are difficult to implement in the sometimes over- crowded and unsanitary conditions of correctional facilities,63 yet these are critical interventions to reduce transmission. Availability of soap and hand sanitizer is an important mitigation strategy.
In mid-March, the week before IDOC’s first confirmed case, news outlets reported that inmates at the Stateville Correctional Center had not received hand sanitizer and “that prison authorities are not passing out cleaning supplies.”64
The John Howard Association suggests these basic needs for mitigating the risk of COVID-19 remained largely unmet months into the pandemic. Its survey of inmates at all but two IDOC facilities during the weeks of April 24 and May 3 found that more than a third (35 percent) said they did not have “enough soap to regularly wash [their] hands in the last week,” and nearly half (46 percent) reported getting no “cleaning chemicals from IDOC to clean [their] cell/sleeping area.”65
Foundational public health measures to mitigate risk, such as supplies for adequate handwashing, should be a given for all persons. The Consent Decree has charged IDOC with “implement[ing] sufficient measures, consistent with the needs of Class Members, to provide adequate medical care,” which should encompass basic measures of cleanliness when needed to avoid contagion.66
Many non-profit organizations are partnering with IDOC to deliver hand sanitizer and soap to Illinois correctional facilities.67 For instance, the Illinois Coalition of Higher Education in Prisons worked with a Peoria-based distillery to “solicit donations that will fund an effort to bring hand sanitizer into the state’s prisons and into the hands of a population uniquely at-risk of contracting COVID-19 because of an inability to socially distance.” Ensuring adequate access to soap and hand sanitizer is an achievable action that can reduce COVID-19 trans- mission within correctional facilities. A public-private collaborative resiliency network could help coordinate mitigation efforts.68
Some urge Illinois to test all inmates for antibodies to the virus that causes COVID-19, as Ohio does, arguing that it would give inmates and their families peace of mind to know if they have weathered a past infection.69 As noted earlier, antibody tests don’t confirm whether an individ- ual could continue to spread the virus, and the presence of antibodies may not be insurance against contracting the virus again. These factors may give a false sense of security, leading to less self-protection in practice.
About the authors
- Sage Kim, PhD, is an associate professor of health policy and administration at the University of Illinois at Chicago (UIC) School of Public Health.
- Timothy Jostrand is a 2019 graduate of the MPH in Health Policy and Administration program at the UIC School of Public Health.
- Ali Mirza is the Wolff Intern with the University of Illinois system’s Institute of Government and Public Affairs.
- Robin Fretwell Wilson, JD, is the director of the Institute of Government and Public Affairs.