Hostname: page-component-8448b6f56d-c47g7 Total loading time: 0 Render date: 2024-04-23T23:51:01.860Z Has data issue: false hasContentIssue false

The Collision of Confinement and Care: End-of-Life Care in Prisons and Jails

Published online by Cambridge University Press:  01 January 2021

Extract

In 1997, the United States incarcerated over 1.7 million persons in local jails and in state and federal prisons. These inmates are disproportionately poor and persons of color. Many lack adequate access to health care before incarceration and present to correctional services with major unaddressed medical problems.

Convictions for drug possession and use have increased the number of injection drug users with HIV and AIDS in prisons. Determinate sentencing and “three strikes and you’re out” laws have increased the number of inmates who are aging and dying during their sentences. Their feelings reflect those of Larry Rideau, sentenced to life without parole and founder of The Angolite—an award-winning prison newspaper at Louisiana's Angola Prison—“The dream of getting out, you equate with heaven. Dying in prison you equate with hell.”

Type
Article
Copyright
Copyright © American Society of Law, Medicine and Ethics 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

See Butterfield, F., “Prison Population Growing Although Crime Rate Drops: Sentencing Is One Factor, Justice Dept. Says,” New York Times, Aug. 9, 1998, at 18 (“In a new report, the Justice Department said the number of Americans in local jails and in state and Federal prisons rose to 1,725,842 in 1997, up from 1.1 million in 1990.”).Google Scholar
Anderson, D.C., “Aging Behind Bars,” New York Times, July 13, 1997, at 28.Google Scholar
See, for example, American Board of Internal Medicine, Caring for the Dying: Identification and Promotion of Physician Competency (Philadelphia: American Board of Internal Medicine, 1996): At 11–18; Dubowitz, V., “Withdrawing Intensive Life-Sustaining Treatment—Recommendations for Compassionate Clinical Management,” N. Engl. J. Med., 336 (1997): 652-57; Cassel, C.K. Vladeck, B.C., “ICD-9 Code for Palliative or Terminal Care,” N. Engl. J. Med., 335 (1996): 1232-34; Wanzer, S., “The Physician's Responsibility Toward Hopelessly Ill Patients,” N. Engl. J. Med., 320 (1989): 844–49; Zerwekh, J., “Do Dying Patients Really Need IV Fluids?,” American Journal of Nursing, 97 (1997): 26-30; and Council on Ethical and Judicial Affairs, American Medical Association, “Council Report: Decisions Near the End of Life,” JAMA, 267 (1992): 2229–33.Google Scholar
A two-year prospective observational study with 4,301 seriously ill patients hospitalized at five teaching hospitals in the United States indicated that “for 50% of conscious patients who died in the hospital, family members reported moderate to severe pain at least half the time.” SUPPORT Principal Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients,” JAMA, 274 (1995): At 1591.CrossRefGoogle Scholar
See Gamble, E.R. McDonald, P.J. Lichstein, P.R., “Knowledge, Attitudes, and Behavior of Elderly Persons Regarding Living Wills,” Archives of Internal Medicine, 151 (1991): 277–80.CrossRefGoogle Scholar
This notion about drug-using patients with HIV comes from Diane La Gamma. See Personal Communication with Diane La Gamma, J.D.A., Staff Attorney, Legal Aid Society, Volunteer Division, Montefiore Medical Center, Bronx, New York (Oct. 8, 1997).Google Scholar
See Ornduff, J.S., “Releasing the Elderly Inmate: A Solution to Prison Overcrowding,” Elder Law Journal, 4 (1996): At 177. For a discussion of a series of cases upholding the minimum standard of care in prisons, see Russell, M.R., “Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse Than the Disease?,” Widener Journal of Public Law, 3 (1994): At 811 n.43.Google Scholar
See Pagliaro, L.A. Pagliaro, A.M., “Sentenced to Death? HIV Infection and AIDS in Prisons—Current and Future Concerns,” Canadian Journal of Criminology, 34 (1992): 201–14, cited in Braithwaite, R.L. Hammett, T.M. Mayberry, R.M., Prisons and AIDS: A Public Health Challenge (San Francisco: Jossey-Bass, 1996): At 17. As one inmate stated, “Somehow they should not have to get the death sentence just because they have the habit.” Braithwaite, Hammett, Mayberry, , id. at 116.Google Scholar
See Brien, P.M. Beck, A.J., HIV in Prisons 1994 (Washington, D.C.: Bureau of Justice Statistics, NCJ 158020, 1996).Google Scholar
See “1993 Revised Clarification Systems for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults,” Morbidity & Mortality Weekly Report, Dec. 18, 1992.Google Scholar
“Opportunistic” refers to the nature of disease that is caused by an organism in a host with lowered resistance. See Stedman's Medical Dictionary (Baltimore: Williams & Wilkins, 26th ed., 1995): At 1255. Because of their compromised immune systems, people with AIDS are particularly susceptible to infections caused by organisms that ordinarily would not jeopardize people without AIDS.Google Scholar
See Purdy, M., “As AIDS Increases Behind Bars, Costs Dim Promise of New Drugs,” New York Times, May 26, 1997, at A1.Google Scholar
See Brown, J.M., Correctional Populations in the United States, 1994 (Washington, D.C.: U.S. Department of Justice, July 1996): At 85.Google Scholar
See Morton, J.B., An Administrative Overview of the Older Inmate (Washington, D.C.: U.S. Department of Justice, 1992): At 4.Google Scholar
See Youth and Special Needs Program Office, Florida Department of Corrections, Status Report on Elderly Inmates, 1993 (Tallahassee: Florida Department of Corrections, 1993): At 5, cited in Adams, W.E. Jr., “The Incarceration of Older Criminals: Balancing Safety, Cost, and Humanitarian Concerns,” Nova Law Review, 19 (1995): At 469 n.22.Google Scholar
See Chaneles, S., “Growing Old Behind Bars,” Psychology Today, 21, no. 10 (1987): At 47, 49, cited in Adams, , id. at 470.Google Scholar
See Ornduff, , supra note 7, at 174–75, esp. n.16.Google Scholar
See Wright, J.H. Jr., “Life Without Parole: An Alternative to Death or Not Much of a Life at All?,” Vanderbilt Law Review, 43 (1990): At 563, cited in Ornduff, , supra note 7, at 174 n.12.Google Scholar
Commissioner of Corrections v. Myers, 379 Mass. 255, 399 N.W.2d 452 (1979).Google Scholar
Id. at 457.Google Scholar
See Dubler, N.N., ed., Standards for Health Services in Correctional Institutions (Washington, D.C.: American Public Health Association, 2nd ed., 1986).Google Scholar
See Dubler, N. Anno, B.J., Ethical Considerations and the Interface with Custody. Prison Health Care: Guidelines for the Management of an Adequate Delivery System (Washington, D.C.: U.S. Department of Justice, National Institute of Corrections, Grant No. 88P02GHB0, 1991): At 53.Google Scholar
Many of the ideas expressed in this section are derived from discussions. See Personal Communication with Robert, L. Cohen, M.D., Assistant Professor of Social Medicine and Clinical Epidemiology, Albert Einstein College of Medicine, Bronx, New York (Apr. 1997); and Personal Communication with Staff Members, Prisoners' Rights Project, New York Legal Aid Society, New York, New York (Apr. 1997).Google Scholar
See Sabatino, C.P., Health Care Surrogate Decision-Making Legislation (Washington, D.C.: American Bar Association, Commission on Legal Problems of the Elderly, Jan. 1998): At 1–5 (unpublished); and Margolis, H.S. Gilfix, M.G. Sabatino, C.P., “Health Care Decision Making in an Elder Law Practice,” in Margolis, H., ed., The Elder Law Portfolio Series (New York: Aspen Law & Business, Portfolio 16, Release 8, June 1997): At App. 1695 to −108.Google Scholar
See Americans with Disabilities Act, 42 U.S.C. § 12117 (Supp. II 1990).Google Scholar
A U.S. Supreme Court case, Pennsylvania Department of Corrections v. Yeskey, 118 S. Ct. 1952, 66 U.S.L.W. 4481 (1998), decided in June 1998, held that the Americans with Disabilities Act's “language unmistakably includes state prisons and prisoners within its coverage.”Google Scholar
Robbins, I.P., “George Bush's America Meets Dante's Inferno: The Americans with Disabilities Act in Prison,” Yale Law and Policy Review, 15 (1996): At 62.Google Scholar
See id. at 54.Google Scholar
Press Association Newsfile, Jan. 31, 1997, at 412–14.Google Scholar
See 18 U.S.C. §§ 3582(C)(1)(A), 4205(G) (1994).Google Scholar
Russell, , supra note 7, at 836.Google Scholar
See id. at 804.Google Scholar
See Dubler, N.N. Heyman, B., “End-of-Life Care in Prisons and Jails,” in Puisis, M., ed., Clinical Practice in Correctional Medicine (St. Louis: Mosby, 1998): At 359–64.Google Scholar
Estelle v. Gamble, 429 U.S. 97 (1976).Google Scholar
See Ornduff, , supra note 7, at 177; and Russell, , supra note 7, at 811 n.43.Google Scholar
Washington v. Glucksberg, 117 S. Ct. 2258 (1996) (State of Washington's prohibition against “causing” or “aiding” a suicide does not violate the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution).Google Scholar
Vacco v. Quill, 117 S. Ct. 2293 (1996) (State of New York's prohibition on “assisting” suicide does not violate the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution).Google Scholar
See Burt, R.A., Sounding Board, “The Supreme Court Speaks: Not Assisted Suicide but a Constitutional Right to Palliative Care,” N. Engl. J. Med., 337 (1997): 1234–36.Google Scholar
117 S. Ct. at 2273.Google Scholar