PRISON MEDICAL DEATHS AND QUALIFIED IMMUNITY.

• Author: Armstrong, Andrea Craig

INTRODUCTION. 0.8 I. MEDICALLY-RELATED DEATHS IN CARCERAL SPACES. 82 A. Incarcerated Healthcare. 0.83 B. Standards for Incarcerated Healthcare Claims. 0.89 II. APPLYING QUALIFIED IMMUNITY TO WRONGFUL MEDICAL DEATHS AND SERIOUS MEDICAL NEEDS. 0.93 A. Qualified Immunity Applied to Wrongful Death for Illness. 0.96 III. QUALIFIED IMMUNITY IN DISTRESS. 102 CONCLUSION. 104 INTRODUCTION

Glenn Ford was released from death row in March 2014 after 29 years of wrongful conviction.' He only had fifteen months of freedom before his death in June 2015. (2) One month after his release, doctors diagnosed Mr. Ford with terminal cancer, a disease which he believed he developed while in prison and which went undiagnosed until he was able to obtain healthcare as a free man. (3) Mr. Ford spent much of his freedom after release undergoing radiation and chemotherapy, but his cancer was simply too advanced for successful treatment. Before his death, Mr. Ford filed a lawsuit against the warden and medical providers at Louisiana State Penitentiary, claiming inadequate medical healthcare. (4) Defendants answered his complaint by arguing, among other things, that their actions were "protected by qualified immunity." (5) Glenn Ford died at home surrounded by friends--his body decimated by cancer and a shell of his former robust physical self.

Criticism of the qualified immunity doctrine often focuses on how it shields government actors, especially those acting in bad faith, from legal liability for harms that occur during performance of their official duties. (6) This Article argues that for incarcerated people, the qualified immunity doctrine compounds other barriers to asserting legal accountability of prison and jail administrators. These barriers are particularly high in cases alleging inadequate medical care, including deaths due to inadequate medical care while incarcerated. In these cases, not only do incarcerated people and their families face higher and more stringent standards for proving inadequate medical care, but they must also survive qualified immunity standards to win their lawsuits against prison officials.

This Article examines qualified immunity within the context of serious medical illness and deaths in prisons and jails, as medical illnesses are the leading cause of deaths behind bars. (7) Part I discusses deaths in prison due to medical illness, including the applicable standards for allegations of constitutionally inadequate medical care. In short, plaintiffs must prove that prison officials acted with "deliberate indifference" to an incarcerated person's serious medical needs to prove constitutionally inadequate medical care. Plaintiffs must also prove that the medical care violated law "clearly established" at the time of the violation to overcome a qualified immunity defense. Part II analyzes the application of qualified immunity to claims of death and inadequate healthcare and the difficulties in establishing when medical decisions violate clearly established law. Part III focuses on cases limiting the scope of qualified immunity and their implications for medicallyrelated deaths behind bars.

1. MEDICALLY-RELATED DEATHS IN CARCERAL SPACES

   The leading cause of death in carceral spaces (including jails and prisons) is medical illness. (8) According to the Bureau of Justice Statistics, from 2001 to 2018, 86,173 people died nationwide in jails and federal and state prisons. (9) The vast majority of these deaths are due to "natural causes," such as deaths due to illnesses including "heart disease, cancer, liver disease, and AIDS-related deaths." (10) In state prisons, 87% of deaths were due to illness; in federal prisons, 90%." In local jails, approximately half of all deaths of incarcerated people were due to illness. (12) In Louisiana, where Glenn Ford was wrongfully sentenced to death row, there were at least 786 deaths in prisons, jails, and detention centers 2015-2019, of which 86% were due to illness. (13) Of those deaths related to medical illness, 42% were due to heart disease and 20% were due to cancer, which appears generally consistent with national studies indicating heart disease as a leading medical cause of death in jails, state and federal prisons. (14) Cancer is the leading cause of death for medical deaths nationwide in state and federal prisons. (15)

   However, describing these deaths as due to "natural causes" obscures the carceral health providers' role in detecting, diagnosing and treating these diseases. In Louisiana, less than half of medically-related deaths (47%) were due to an illness or condition diagnosed prior to incarceration. (16) For the remaining 53%, prison and jail administrators indicated that the illness leading to death was not due to a pre-existing condition. (17) Indeed, 59% of all cancer deaths of incarcerated people and 52% of all heart deaths in Louisiana carceral settings were initially diagnosed by prison and jail healthcare systems. (18) Illnesses leading to death, other than cancer and heart disease, were similarly less likely to be due to a pre-existing condition, including illnesses involving the brain, respiratory systems, and deaths due to sepsis. (19) Miscellaneous deaths, described as "all other," were also less likely to be due to a pre-existing condition, and this category includes deaths due to surgical complications (hernias in particular), gastric ulcers, Alzheimer's, and ketoacidosis, among others. (20) Thus, for more than half of illnesses leading to deaths in prisons and jails in Louisiana, carceral healthcare providers were the sole source for diagnosis. For all deaths of incarcerated people, carceral healthcare providers were the sole source of treatment.

   1. INCARCERATED HEALTHCARE

      Local and state jurisdictions differ in how they provide healthcare for incarcerated people. Some jails and prisons contract for healthcare with private corporations (21) such as Correct Health, (22) Corizon Correctional Healthcare, (23) and Wellpath, (24) among others. Corizon, for example, provides healthcare in the carceral settings at over 140 locations in fifteen states, covering approximately 116,000 people. (25) As of 2018, private healthcare companies are responsible for healthcare in 62% of the nation's 523 largest jails. (26) Other carceral settings create their own internal correctional healthcare system by directly hiring healthcare professionals. Louisiana's Department of Public Safety and Corrections' (DPSC) Chief Medical and Mental Health Director oversees healthcare services provided at the eight state-managed prisons. (27) Healthcare staff are employees of DPSC, but the agency also contracts with outside providers for specialty or part-time services. (28) Some jurisdictions use their existing state and local healthcare systems to provide healthcare for incarcerated people. For example, Cook County Jail in Chicago, Illinois provides healthcare through an affiliate of the Cook County Bureau of Health Services and all clinical and support staff are public employees. (29)

      The type of provider may impact the quality of care. A Reuters Investigation of medically-related deaths in the largest jails nationwide found higher death rates in facilities with privately managed care than publicly managed healthcare. (30) Regardless of the entity providing care, incarcerated people are not free to choose their healthcare provider, arrange for second opinions, or seek care outside of whichever system their facility has employed.

      Incarcerated people may also encounter other obstacles to receiving healthcare, including requirements for medical co-pays. The majority of states charge incarcerated people a fee to see a healthcare professional, often referred to as a "co-pay" or "co-payment." (31) Prisons and jails nationwide justify imposing co-pays on incarcerated people for medical services to "raise revenue," "deter frivolous medical claims," and "teach[] them lessons in money management." (32) While there is little evidence to support these justifications, (33) correctional healthcare experts (including formerly incarcerated people) worry that co-pays can be an obstacle to obtaining healthcare behind bars. (34) In a May 2021 report, based on a review of Louisiana state policies, internal and external audits, and interviews with external health providers, the authors (including myself) calculated that the required medical co-pay of $3 was the real world equivalent of $1,087 for a sick visit. (35) For emergency medical visits, the real world equivalent of a $6 co-pay was $2,175, while $2 prescription co-pays were $725. (36) Though state policy provides that no incarcerated person will be denied healthcare due to lack of funds, those charges become legal debts that can be deducted from future prison earnings or collected after release." In light of these costs, incarcerated people may forgo healthcare until their illness more deeply impacts their daily life. (38)

      Second, prison and jail healthcare systems are oriented toward sickness and symptoms, not wellness and health. Incarcerated people usually do not have annual checkups or other preventative visits with healthcare professionals that are available to free people. (39) Instead, carceral healthcare is set up to respond to "sick call" requests by incarcerated people to address urgent or immediate symptoms. (40) In Louisiana, for example, state prison policies only provide for annual checkups for adults 50 years and older and even then, state audits indicate these check-ups are not consistently completed. (41) The single largest group of incarcerated decedents in Louisiana were Black males, ages fifty-five to sixty, serving a sentence for conviction, comprising 11% of all known deaths 2015-2019. (42) Black people in particular, due to disparities in healthcare access, wealth, and healthy living spaces, (43) may enter incarceration with greater health needs. Thus, these annual visits are even more important for a...