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Excerpted From: Rachael Wiggins, A Pound of Flesh: How Medical Copayments in Prison Cost Inmates Their Health and Set Them up for Reoffense, 92 University of Colorado Law Review 255 (Winter, 2021) (Comment) (157 Footnotes) (Full Document)

PrisonerHealthBrad seldom talks about the time he spent in prison. Even while he was incarcerated, he generally steered our email and telephone conversations to topics in my life and the outside world--how my high school volleyball season was going, where I wanted to go to college, or how the Packers' season was shaping up. Since being out of prison, my brother has recounted some of the alarming details regarding the harsh conditions of his punishment. Of the many grim stories he relayed, I was most struck by the manner in which his prison facility commodified the health of inmates.

Although Brad's facility housed, on average, over 1,300 inmates, he informed me that there was no full-time nursing staff available to provide medical care at any given time. Inmates could fill out a request to be seen by medical providers, but they could only be seen at specific hours on certain days when medical staff--employed by a private healthcare contracting company, not the government--were on site. Whenever an inmate did get examined by medical staff, the prison facility deducted a copayment of five dollars out of the inmate's commissary account--the prisoner's fund to pay for toiletries, extra clothing, food, stationary, stamps, over-the-counter medication, and any other essentials or incidentals an inmate might need. Funds in commissary accounts come from any money contributed by an inmate's family and “wages” earned by the inmate at their job.

At Brad's facility, inmates were required to have jobs. During his time there, he worked both in the kitchen and in the recreational yard, cleaning up the grounds and wiping down the exercise equipment. At each job, he worked about twenty-five hours per week for a maximum wage of just forty dollars per month. Even though he made double the starting rate for prison employees, Brad made only forty cents per hour. Brad would have had to work twelve and a half hours at the highest pay rate he received to afford the five-dollar copayment. And if an inmate did not take part in the correctional facility's exploitative labor system, they risked getting sent to the “Hole”--solitary confinement.

In Brad's experience, access to medical care while in the Hole was even more limited. Prison medical staff visited the solitary cells only once or twice per week, sliding medical request forms under the cell doors. Brad also described how prescription medications were passed out only sporadically while in the Hole, if at all. On multiple occasions, he failed to receive his medication for up to a week at a time while in the Hole, even though the same staff passed out his prescription medication daily while he was in the general population. On one occasion, this neglect forced Brad into withdrawals, leaving him isolated, hallucinating, and terrified in solitary confinement.

The horrors underlying the American prison system are convenient to ignore for people who have never been affected by them. The facts concerning prison conditions and practices can be unpleasant and disconcerting, but with current policies and jurisprudence so entrenched in deference to correctional facilities and maintenance of the status quo, it is also frustrating for many who hope to institute change. This general acceptance of the brutal conditions in American prisons also reflects the lack of quality, comprehensive statistical studies on prisoner wages and expenses, prison healthcare facilities, the use of solitary confinement, the benefits of charging fees to inmates as a revenue raising strategy, and countless other aspects of the American criminal justice system. It seems that America as a whole, from the general public to the legislatures and courts, prefers to forget about its incarcerated population rather than solve the issues underlying crime in America.

The attitude of acquiescence in legislatures and courts has permitted the American prison system to develop a practice of exploiting the health of its incarcerated population as an additional and excessive form of punishment. This article focuses on a practice widely used in prisons--the imposition of medical copayments--which contributes to the current culture of endangering the physical and mental health of incarcerated persons, all in the name of cost cutting and prisoner control. The problem of medical copayments could be solved by both the courts, which could recognize that the practice serves no legitimate penological interest, and the states themselves, which could pursue other avenues for funding medical costs for prisoners or look to affordable treatment options external to incarceration facilities.

Part I offers some historical context behind the development of massincarceration as accepted government policy and the resulting budgetary problems that gave rise to the imposition of copayments on the inmates themselves, then continues with explanations and refutations of three major justifications posited by prison policymakers for charging medical copayments.

Part II introduces the current judicial state of the provision of prison health care and the concept of judicial deference to the decisions of prison officials, then proceeds with a discussion of legislative silence on the shifting of incarceration costs from governments to their incarcerated populations and the associated problems with such a policy.

Part III offers potential solutions to help minimize fees charged to those behind bars, while also suggesting large scale changes that would help to contain the costs of incarceration that currently burden the American government at all levels. This article concludes that it is both possible and realistic for the American system to strike a balance between the needs for administrative efficiency in prisons and prisoner health, safety, and rehabilitation.

[. . .]

As a matter of policy, fees assessed to inmates for medical services which purport to raise revenue, reduce demand for services, or teach prisoners how to manage money are not justifiable on any of those claimed grounds. In reality, they serve only to perpetuate the cycle of incarceration and further punish prisoners beyond their imposed sentences by threatening their health, financial stability, and future freedom beyond the completion of their sentence. Is a thirty-day sentence truly only a thirty-day sentence when it comes with years of debt and interest to be paid off afterwards, and potentially two months more of incarceration if the offender fails to pay on time? How much “truth” can there be in a system that locks people back up for failing to pay an eleven-dollar debt and releases them a week later, but now with a $261 balance to pay back? If prison sentences are to be completely truthful, perhaps the judge who sentenced Brad should have expressly informed him that his sentence would come along with forced labor for a few meager dollars per day, no meaningful avenue by which to seek addiction or mental health support, the punitive descent into withdrawals during solitary confinement, and a PTSD diagnosis. In the pursuit of “truth” in sentencing, perhaps all who our society chooses to incarcerate should be warned that, whatever temporary period they are assigned to be locked up, their sentence likely does not end there. The physical and mental toll can last a lifetime, as can the financial burden carrying the risk of reincarceration in the event of nonpayment of prison debt.

Despite the abysmally flawed prison system in America, Brad is doing well a few years post incarceration. He is employed, sober, and has worked his way through treatment and accountability programs. He enjoys being outdoors and riding a motorcycle again, and he is looking forward to purchasing a house and focusing on his family. But Brad is building a good life today in spite of the system that so gravely mistreated him--a system that currently favors administrative convenience over prisoner health; quick, unsustainable sources of revenue over the development of maintainable solutions; and compelled indebtedness in the name of teaching a “lesson” over real preparation for financial independence outside prison walls.

Although Brad has shown that it is possible to beat the odds, it is unrealistic to expect all of the millions of people who go through the prison system in the United States to be able to rebuild a successful life from scratch immediately after release. By holding prisons answerable for their inefficient, cost-prohibitive policies, the American judicial system could incentivize prison officials and policymakers to formulate meaningful rationales behind their policies rather than justifying abusive practices with any excuse they know will inevitably receive judicial deference. Through medical and geriatric parole programs, jurisdictions could take advantage of cost-saving opportunities to send prisoners to outside facilities to receive care, while legislatures at both the state and federal levels could expand those programs and simplify their implementation.

Quite simply, the competing interests in this dynamic do not need to be mutually exclusive. We do not need to choose between either security and administrative efficiency within our prisons or prisoner health, safety, and rehabilitation. It is not too late to merge the goals of each end, to continue elevating the concerns of the average citizen and taxpayer, and to simultaneously give voice to the quiet struggles of the imprisoned.

J.D. Candidate, 2021, University of Colorado Law School.

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