Health Care in U.S. Correctional Facilities — A Limited and Threatened Constitutional Right

Marcella Alsan, M.D., Ph.D., M.P.H.,  Crystal S. Yang, J.D., Ph.D.,  James R. Jolin,  Lucy Tu,  and Josiah D. Rich, M.D., M.P.H.

The U.S. Constitution does not guarantee a right to health care. Yet since 1976, the Supreme Court has held that deliberate indifference to the serious medical needs of incarcerated people — a population that is disproportionately sick, poor, and from marginalized racial and ethnic groups — violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

What this right means in practice, however, is far from settled, given that the standards for “deliberate indifference” and “serious medical need” are subject to judicial interpretation. Lacking quality standards, robust monitoring, and funding from public medical insurance programs, correctional administrators must provide health care for incarcerated people with limited guidance and often scarce resources. Incarcerated people have little recourse for woefully inadequate medical care except litigation, but they face multiple barriers to accessing the legal system and counsel, and rare wins yield only incremental relief. In the wake of Dobbs v. Jackson Women’s Health Organization, it is particularly important to elucidate the relevant legal landscape and explore mechanisms for safeguarding the constitutional right to health care in correctional facilities.

Incarceration and Illness

The United States has the world’s highest incarceration rate.¹ At the end of 2020, despite historic declines in the incarcerated population due to Covid-19, 1.7 million people in the United States were incarcerated in a state or federal prison or local jail.² The risk of incarceration is not evenly distributed across racial and ethnic groups: Black, American Indian or Alaska Native, and Hispanic U.S. residents are approximately 5.1, 4.1, and 2.5 times as likely, respectively, as White residents to be imprisoned.³ The incarcerated population generally comes from lower-income households, with substantially greater physical and mental health needs than the general population; they have higher rates of tuberculosis, HIV, hepatitis, diabetes, and psychiatric illness.⁴ More than half of them have a mental health problem, a substance use disorder, or both, and they experience higher rates of geriatric conditions than the age-matched general population.^4,5 Access to adequate care critically affects this population’s health outcomes, as well as U.S. health inequities more broadly.

Landmark Cases and Laws

The constitutional right to correctional health care traces back to the landmark 1976 Supreme Court decision in Estelle v. Gamble, which held that failure to provide adequate medical care to incarcerated people as a result of deliberate indifference violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Writing for the Court, Justice Thurgood Marshall acknowledged that the primary concern of the amendment’s drafters was to bar only “tortur[ous]” and “barbar[ous]” methods of physical punishment. Case law, however, had long construed the Eighth Amendment as embodying “broad and idealistic concepts of dignity, civilized standards, humanity, and decency,” leading the Court to examine whether carceral conditions comported with standards of decency. Marshall concluded that “deliberate indifference to the serious medical needs of prisoners constitute[d] the ‘unnecessary and wanton infliction of pain’” prohibited by the amendment.⁶

In practice, the Estelle standard for establishing an Eighth Amendment violation is a very high bar to meet. Federal courts have stated that to constitute deliberate indifference, “treatment must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness”⁷ (emphasis added) — for example, prison officials deliberately ignoring the express orders of an incarcerated person’s physician.⁸ Negligent medical treatment and even medical malpractice would not meet the “deliberate indifference” requirement. Furthermore, courts have interpreted a “serious medical need” to include the threat of death, degeneration, or extreme pain⁹; certain mental health issues, especially suicidal tendencies¹⁰; and certain withdrawal symptoms.¹¹ But courts have also concluded that symptoms without an accompanying diagnosis do not constitute a “serious medical need,”¹² potentially excluding many people with legitimate and serious but undiagnosed conditions from protection.

In Helling v. McKinney (1993), the Court expanded on the Estelle decision, finding that the Eighth Amendment also “protect[ed] against future harm to inmates” — specifically, the risk associated with long-term exposure to environmental tobacco smoke.¹³ Nevertheless, the Court did not grant plaintiff McKinney relief, instead remanding the case for additional “objective” and “subjective” fact-finding. The objective component required the plaintiff to furnish evidence that the seriousness of the potential harm and the likelihood of such injury were so grave that exposing anyone to such a risk would violate contemporary standards of decency.¹³ The subjective component entailed assessing the prison authorities’ intent: Were they aware of allegedly dangerous jail conditions that they deliberately ignored? These two criteria remain the legal standard for correctional health care litigation.

The Americans with Disabilities Act (ADA) of 1990 also features prominently in correctional health care litigation. The ADA represents the first comprehensive civil rights law for persons with qualified disabilities, defined as persons with a physical or mental impairment that substantially limits one or more major life activities, persons with a history or record of such an impairment, or persons perceived by others as having such an impairment. Under Title II of the ADA, “no qualified individual with a disability shall […] be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.”¹⁴ In Pennsylvania Department of Corrections v. Yeskey (1998), the Supreme Court held that Title II covered persons in state correctional facilities, reasoning that incarcerated people with disabilities are included in the definition of “qualified individuals” and correctional medical services are “services” of a “public entity.”¹⁵

Since Estelle, Helling, and the ADA’s passage, numerous incarcerated litigants have filed claims alleging inadequate health care at all levels of the state and federal courts. A 2019 New Yorker article reported that 1500 lawsuits had been filed between 2013 and 2018 against two of the largest U.S. providers of jail health care (Corizon Health and Wellpath) for neglect, malpractice, or wrongful injury or death.¹⁶ Our own research yielded approximately 13,000 cases between 1985 and 2022 that cite Estelle and contain the search terms <“prisoner” or “inmate”> and <“healthcare” or “health care”>. These numbers reflect only incarcerated people who successfully filed a lawsuit, which is most likely a small proportion of potential litigants.

Accessing the Legal System and Counsel

Several factors make it difficult for incarcerated people to obtain legal relief, including statutory barriers to litigation, difficulties with accessing counsel, and challenges of self-representation.

Table 1.

Selected Provisions of the Prison Litigation Reform Act That Limit Access to the Legal System and Counsel for Incarcerated Persons in the United States.

The primary statutory barrier is the Prison Litigation Reform Act (PLRA), which restricts a person’s ability to seek legal recourse while incarcerated. Among others, three provisions of this law substantially limit access to the justice system (Table 1). The “proof of physical injury” criterion restricts potential claims for inadequate mental health care, despite the high prevalence of mental health problems among incarcerated people and evidence that incarceration can harm mental health. The requirement that “administrative remedies” be “exhausted” before civil action may be pursued effectively requires that incarcerated people — many of whom have mental illnesses and cognitive disabilities, and who are on average less educated than the general population — comprehend and comply with exacting and varying grievance policies, such as filing handwritten complaints within a limited time after an alleged incident.¹⁷

The PLRA also imposes nontrivial monetary burdens, requiring incarcerated litigants to pay filing fees in full, with no option for a fee waiver.¹⁸ By capping recoverable attorneys’ fees,¹⁷ the law effectively limits incarcerated people to pro bono legal representation, which is in short supply. Many incarcerated people resort to self-representation, but such pro se civil rights cases by incarcerated plaintiffs have the lowest success rate (6%) of any pro se cases.¹⁹

The PLRA has effectively weakened legal oversight of correctional health care, and many states and counties have prioritized lowering costs, contracting with private health care vendors to serve incarcerated patients. The resulting injustice — high incarceration rates, unchecked neglect of incarcerated people’s health, and restrictions on legal redress — has prompted organizations and legislation, including the American Bar Association and provisions of House Resolution 702 (The People’s Justice Guarantee), to call for the PLRA’s amendment or repeal.^20,21

Limited Effectiveness of Successful Litigation

Even when courts side with incarcerated litigants, the relief granted is often piecemeal, limited in scope and duration, and thus unlikely to yield systemic change. Under the PLRA, courts can grant or approve only remedies that are “narrowly drawn” and that correct specific federal-rights violations using the “least intrusive means.”²² The scope of potential redress is thus limited to that directly concerning federal-rights violations, whereas in cases unrelated to correctional facilities, parties may settle for any terms that are not illegal or outside the litigation’s scope. The PLRA also allows correctional-facility defendants to request termination of court orders regarding their facility conditions after 2 years, even if not all terms have been met. If a court order is terminated, incarcerated persons would need to file another lawsuit to address recurring violations.

Recent examples of successful litigation illustrate the limited scope of these wins. In 2015, people incarcerated in Massachusetts state prisons filed a class-action lawsuit alleging that the Massachusetts Department of Correction (DOC) had violated their Eighth Amendment rights by denying treatment for hepatitis C with newer and more effective medications.²³ DOC records showed 3 incarcerated people undergoing treatment out of 1500 diagnosed with hepatitis C.²⁴ In a settlement, the DOC agreed to treat prisoners with direct-acting antiviral drugs, routinely test those with hepatitis C, and offer diagnostic testing to newly incarcerated people.²³ Though the settlement covered everyone with hepatitis C in Massachusetts state prisons, it had minimal impact outside the state. Furthermore, the court agreement and third-party monitoring of compliance expired after 30 months.²³

In another example, the American Civil Liberties Union of Massachusetts and Goodwin Procter filed three lawsuits in 2018 and 2019 on behalf of five incarcerated persons, alleging that correctional authorities’ policies of denying medication for opioid use disorder (MOUD) violated the Eighth Amendment and Title II of the ADA.^25-27 One lawsuit (Pesce v. Coppinger) ended in a preliminary federal injunction requiring Essex County to provide the plaintiff with continued access to methadone during his incarceration.²⁵ In settlements of the other two lawsuits (DiPierro v. Hurwitz and Sclafani v. Mici), the Federal Bureau of Prisons and the Massachusetts DOC agreed to provide plaintiffs with MOUD throughout their incarceration.^26,27 These resolutions, however, apply only to the five plaintiffs.

Perhaps motivated by this trend, in April 2022, the U.S. Attorney’s Office in Massachusetts reviewed access to MOUD in Massachusetts state and county correctional facilities; it then affirmed that opioid use disorder is considered a disability under the ADA and stated that all Massachusetts correctional facilities must provide inmates access to all MOUD.²⁸ Although access to MOUD in Massachusetts has increased, the benefits are again limited to that state and apply only to persons who were already receiving MOUD before entering custody. These limitations exacerbate underlying inequality in access to substance use disorder treatment outside correctional facilities.²⁹ It is unclear whether someone with opioid use disorder who lacks a formal diagnosis or existing prescription would be eligible for treatment under the new policy.

An Uncertain Future

The recent Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization underscores the hazard of failing to codify health care rights through legislation.³⁰ In Dobbs, Justice Samuel Alito, writing for the majority, overturned the constitutional right to abortion established in Roe v. Wade by returning to a particular originalist interpretation of the Fourteenth Amendment’s guarantee of liberty. Rejecting the precedent of interpreting the amendment in an evolving way, Alito defined liberty without reference to any rights recognized in the 20th and 21st centuries, concluding that the right to abortion is not “deeply rooted in this Nation’s history and tradition.”³⁰

A similar originalist turn could jeopardize the right to adequate health care for incarcerated persons. Indeed, in Miller v. Alabama (2012), an Eighth Amendment case on the mandatory sentence of life in prison without the possibility of parole for juvenile homicide offenders, Alito issued a dissent that hints at the contours of a possible overturning of Estelle^,31 arguing that the Court had abandoned the Eighth Amendment’s original meaning by holding that its proscription of “cruel and unusual punishment” reflects the “evolving standards of [moral] decency” — a central component of the Estelle decision.^6,31 Alito concluded that “the provenance and philosophical basis for this standard were problematic from the start.”³¹ Thus, a new interpretation of the Eighth Amendment that rejects consideration of evolving standards of decency seems a distinct possibility, given the confluence of a Supreme Court inclined to reevaluate long-standing precedent and multiple high-profile correctional health care cases related to Covid-19 currently working their way through the system.³²

Paths Forward — Proactive vs. Reactive Reform

Litigation is fundamentally reactive, being brought only after neglect or injury has occurred. PLRA restrictions preclude even favorable legal decisions from catalyzing structural change within correctional health care. To ensure that the constitutional right to such health care is enforced, the PLRA needs to be substantially amended or repealed.

However, judicial interpretation of vague constitutional standards cannot substitute for uniform, unequivocal standards of care coupled with auditing and enforcement by a regulatory body. Internationally, two protocols promulgate this combined approach of standards and monitoring. The Mandela Rules establish minimal standards for the treatment of incarcerated people, including their health care.³³ Rule 24, for instance, states that “Prisoners should enjoy the same standards of health care that are available in the community.” The Optional Protocol to the Convention against Torture (OPCAT), adopted by the United Nations General Assembly in 2002, “establish[es] a system of regular visits” to places of detention carried out by independent international and national bodies.³⁴ The United States is not a signatory to OPCAT and lacks an independent national regulatory body charged with developing explicit health standards for correctional facilities and providing robust oversight.

Accreditation agencies such as the National Commission on Correctional Health Care (NCCHC) and the American Correctional Association (ACA) have attempted to fill this void, using a process similar to that of the Joint Commission, which accredits most hospitals serving the general population. However, hospitals that seek accreditation by the Joint Commission or another “deeming authority” receive an incentive, with reimbursement from the Centers for Medicare and Medicaid Services. In contrast, the Medicaid Inmate Exclusion Policy, established in the 1965 Social Security Amendments that created Medicaid, almost completely prohibits the use of federal Medicaid funding to care for incarcerated patients, meaning that there is no analogous incentive for correctional facilities that seek accreditation, and voluntary accreditation rates remain low.³⁵ Facilities cite staff shortages and monetary and time costs as barriers to accreditation.³⁶ Some state corrections departments refer to NCCHC or ACA standards in their policy manuals; however, without meaningful oversight or consequences, this approach is unlikely to effect change.

A two-pronged approach is needed to ensure robust standards of care for incarcerated persons. Repeal or amendment of the PLRA could provide affected persons with legal recourse so that injuries could be remedied. And proactive legislation could empower an agency to define uniform standards of care, provide incentives for compliance and penalties for noncompliance, and establish an independent, well-resourced federal oversight body that can conduct vigorous, unannounced audits.

There is precedent for this approach. The 2003 Prison Rape Elimination Act (PREA), which was unanimously passed by Congress and signed by President George W. Bush, contains the key elements described above: national standards applicable to every correctional facility, monitoring by Department of Justice–approved auditors, and penalties for noncompliance.³⁷ The PREA has notable flaws, however, including failure to protect members of sexual and gender minority groups, insufficiently frequent and standardized audits, and relatively weak penalties.³⁸ Incentives for compliance with health standards would be greatly enhanced by allowing federal funds for medical services to flow to incarcerated persons and using standards as a prerequisite for their continued receipt. Indeed, CMS recently approved a first-of-its-kind Section 1115 demonstration amendment that allows Medicaid to fund limited services, including treatment for substance use disorders, for people who are incarcerated in California state prisons, jails, and juvenile detention centers up to 90 days before their release.³⁹ If such a program is expanded and coupled with robust oversight, it could serve as a template for the systemic reforms necessary to guarantee that incarcerated people have an enforceable, secured right to high-quality health care.

Disclosure forms provided by the authors are available at NEJM.org.

Drs. Alsan and Yang contributed equally to this article.

We thank Jessica Cianci, Anne Deng, Anne Fogarty, Xingyou Ye, and Abigail Zhong for research assistance.

Author Affiliations

From the Harvard Kennedy School (M.A.), Harvard Law School (C.S.Y.), and the Department of Government (J.R.J.) and the Departments of Sociology and the History of Science (L.T.), Harvard University — all in Cambridge, MA; and the Departments of Medicine and Epidemiology, Brown University, the Miriam Hospital, and Rhode Island Hospital — all in Providence (J.D.R.).

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