'Death is different': limiting health care for death row inmates.

Author:Masotto, Michelle

CONTENTS CONTENTS INTRODUCTION I. The Development of the Prison Health Care Standard A. Deliberate Indifference Prong B. Serious Medical Need Prong C. Strain of Health Care Costs on the Prison System II. PRISONS' ABILITY TO LIMIT INMATES' MEDICAL DECISIONS A. Limitations on a Prisoner's Right to Refuse Treatment B. No Choice of Facility or Doctor C. Denial of Care Based on Date of Release III. RECOMMENDATION FOR LIMITING CARE TO DEATH ROW INMATE IV. LIMITING CARE AFTER THE APPEALS PROCESS CONCLUDES IS CONSTITUTIONAL A. Eighth Amendment Standard and the Turner Test for Prison Regulations B. Fourteenth Amendment Equal Protections Challenge V. POTENTIAL PROBLEMS WITH LIMITING HEALTH CARE CONCLUSION INTRODUCTION

Robert Foley, like many Americans, needs a new hip. (1) However, unlike most Americans, he is a convicted murderer and currently sits on Kentucky's Death Row. (2) Mr. Foley was convicted of six murders committed over a three-year period in Kentucky and is one the most prolific murderers in the state. (3)

Mr. Foley was under death warrant, meaning he had exhausted his appeals and the Kentucky Supreme Court had affirmed his execution. (4) All that remained was for the Kentucky Governor to set the execution date. (5) Then the Department of Corrections acknowledged Mr. Foley's need for a new hip. (6) Finding a facility willing to take on the heightened security standards that come with treating a death row inmate and locating a doctor to perform the procedure on a condemned man had proved to be an uphill battle. (7) Negative public opinion and possible political ramifications had affected the Kentucky Department of Corrections' actions. The Department of Corrections had to balance the constitutional requirement to provide care to inmates with the preservation of correctional system time, money, and resources on an individual whom the state might eventually kill. (8) In fact, the warden wrote that he would "contact [the medical director] to try to stop all medical procedures related to [Foley's] hip replacement" once an execution date was set. (9) While a non-institutionalized citizen may have to pay a significant amount of money out-of-pocket for such a procedure, (10) taxpayers' money is funneled through the state's Department of Corrections to fund inmate health care.

Mr. Foley's saga is not the only one to spark debate about costly and extraordinary care for death row inmates. David Long was convicted and sentenced to death for killing three women with a hatchet in their Texas home. (11) Mr. Long overdosed on drugs the night before his scheduled execution. (12) When he was found unresponsive in his cell, prison officials rushed him to the hospital where he was placed in the Intensive Care Unit (ICU). (13) The doctor recommended Mr. Long remain in the ICU for two more days but ultimately released him prior to his scheduled execution time on the condition that medical personnel transport him from the hospital to keep his condition stable. (14) The State of Texas took heroic measures to revive him immediately before his execution date, so the state could kill him on its own schedule.

Federal and state prison populations have exploded since 1980. In 1980 the federal Bureau of Prisons (BOP) had approximately 25,000 inmates in its custody. (15) By 2012 the inmate population had increased to almost 219,000 inmates. (16) Between 1980 and 2012 the average annual increase of inmates in the federal prison system was approximately 6,100 inmates per year. The state prison population has also risen dramatically. Approximately 500,000 inmates were housed in state prisons in 1985. (17) By 2011 the total population of state inmates had risen to almost 1.4 million inmates. (18)

Prison inmates are sicker than the non-institutionalized population and require more frequent care as a result. (19) Incarcerated individuals, whether in federal prison, state prison, or jails, are more likely than their non-institutionalized counterparts to have diabetes, hypertension, asthma, prior myocardial infraction (commonly known as a heart attack), and HIV/AIDS. (20) The drastic rise in the prison population coupled with the prison population's collective poor health causes a great strain on correctional department budgets.

Death row, reserved for those sentenced to death for the most heinous crimes, has also seen a population increase. In 2012, there were 3,146 death row prisoners (21) in thirty-five states across the United States, including death row inmates held by the United States government and the United States military. (22) The death row population has exceeded 3,000 inmates per year since 1995, (23) and the average amount of time a death row inmate spends between sentencing and execution has been steadily increasing. (24) Currently, the average time between sentencing and execution is 178 months. (25)

The length of time between sentencing and execution has contributed to the rise in the average age of the death row population. In 2005 137 death row inmates were 60 years of age or older, compared to just 39 inmates in the same age group in 1995.26 As inmates age, they become a bigger financial burden on the prison system, due to higher rates of illness and injury. (27) Prisons spend more money on death row inmate health care than on health care for the general inmate population because of compounding needs for more health care and greater security costs associated with treating death row inmates outside of the correctional facility.

The tension between an inmate's constitutional guarantee to receive health care, the public opinion that inmates should receive less care, and limited funds and resources makes it difficult for corrections officials to determine the proper course of action. On one hand, the prison system must provide a minimum level of health care to inmates, but on the other hand, prison officials must effectively utilize their prisons' health care budgets. (28) In a survey of forty states, the total amount spent on prison health care in those states exceeded $335 million in 2011, and many of the states exceeded their prescribed budget. (29)

Case law and professional standards have established "the minimum standards to be followed--the floor below which service cannot legally fall--but not the upper limits on what the state is obligated to provide." (30) This Note will answer the question: Is the prison system required to provide death row inmates with expensive procedures after the inmates exhaust all appeals? The short answer to the question is no. Part I provides the historical context of the prison's duty to provide medical care to inmates under the Eighth Amendment. Part II argues that prisons are already able to limit inmate care in various ways. Part III recommends that death row inmates' care should be restricted to emergency and life-sustaining care after inmates have exhausted all appeals. Part IV will argue that limiting health care to death row inmates after all appeals have been exhausted would withstand Eighth Amendment and Fourteenth Amendment scrutiny. Part V will address potential criticisms of the proposed regulation.


    The Eighth Amendment ban on cruel and unusual punishment (31) is not a modern concept. The ban was originally implemented in the English Declaration of Rights of 1689 as an attempt to curb the government's use of torture and barbaric physical punishment. (32) This ban was subsequently adopted in the Eighth Amendment of the United States Constitution. Until the twentieth century, the Eighth Amendment was narrowly interpreted as only a prohibition against torture and barbaric punishments. (33) However, the Eighth Amendment standard for defining cruel and unusual punishment is dynamic and changes as society matures and evolves. The Constitution does not expressly require medical care for inmates. The 1976 Supreme Court case Estelle v. Gamble extended protection under the Eighth Amendment to include the state's affirmative duty of the state to provide proper medical care. (34)

    In the Estelle decision, the Court held that the Eighth Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decency" (35) and the "evolving standards of decency ... mark the progress of a maturing society." (36) The Court used these principles to establish the government's obligation to provide medical care to inmates since incarceration removes an inmate's ability to procure medical care on his own. (37) Further, the court held that denial of all medical care could result in pain and suffering that serves no penological purpose. (38) The Court formulated a two-prong test to determine if a state actor has violated the Eighth Amendment rights of a prisoner seeking medical care: the state actor must be deliberately indifferent and the medical need must be serious enough for a violation to exist. (39)

    1. Deliberate Indifference Prong

      The Supreme Court further defined what constitutes "deliberate indifference" in Farmer v. Brennan. (40) The Court ruled that deliberate indifference requires a more culpable mental state than negligence. (41) The Court also held that deliberate indifference could occur even in the absence of intent to cause harm or knowledge that harm would result. (42) The determination of a constitutional violation turns on whether the official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." (43)

    2. Serious Medical Need Prong

      For an inmate to qualify for protection under the Eighth Amendment, the health issue must be serious. The definition of "serious medical need" is much more difficult to pinpoint and has been defined on a caseby-case basis. (44) If a physician determines that the condition is serious enough to warrant treatment...

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