This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.

Student Author: Amanda Perez


Hoarding, shortages, and price-gouging make CDC recommended, alcohol-based hand sanitizer difficult to find. For inmates in the New York Correctional System, hand sanitizer poses a different concern other than a mere lack of access. Earlier last month, New York Governor Andrew Cuomo announced a plan to manufacture up to 100,000 gallons of hand sanitizer using prison labor, as part of a strategy to mitigate the spread of COVID-19. Paid an average wage of $0.62 an hour to produce the hand sanitizer, inmates are prohibited from possessing or using the product because its high alcohol content makes it contraband.

State and Federal governments are struggling with how to address the need for healthcare amid the growing number of coronavirus outbreaks behind bars. The incarcerated population is aging; more than one hundred and seventy thousand people in custody are over the age of fifty-five. Many incarcerated individuals have underlying conditions, making them especially susceptible to serious complications of COVID-19. In response to concerns about mass mortalities behind bars, cities and states have begun releasing those in custody who are particularly at risk for complications caused by the virus, or those that pose no significant threat to the public.

For inmates who do not qualify for release and must remain behind bars, limited access to healthcare and hygiene products means facing the deadly virus head on.

In the 1976 case, Estelle v. Gamble, the United States Supreme Court held that prisons and jails have a constitutional obligation to provide adequate healthcare to those in custody. The Court did not provide a standard of care that must be met, but stated that “deliberate indifference” to a prisoner’s serious medical needs would constitute a violation of the 8th amendment prohibition against cruel and unusual punishment.

Even with a constitutionally protected right to healthcare—the only right of its kind in the United States—incarcerated people face barriers to accessing essential care. Prisons and jails are crowded; women and men are forced to share toilets, sinks, mess halls, and bedrooms. Social distancing is nearly impossible. Limited access to soap and water makes constant hand washing difficult. Unable to go to even the bathroom alone, prisoners cannot take the same precautionary steps to protect themselves as people in the outside world can. Inmates may be reluctant to seek care for fear that a diagnosis would result in isolation or expensive medical copays.

Incarcerated people have reduced access to items that might mitigate the spread of COVID-19. Basic necessities such as soap and cleaning supplies are only available for purchase in prison commissaries. Those who cannot afford to buy these items must go without and suffer through unsanitary and crowded conditions. Some items, such as hand sanitizer, are outright banned.

Prison and jail infirmaries operate like outpatient facilities and rely on local hospitals for emergency care. On-site healthcare facilities were understaffed and under supplied even before the global pandemic. As prisons or jail healthcare employees get sick and have to remain at home, already limited staffs turn skeletal. Designed to provide primary care and basic out-patient services, facilities have minimal access to emergency medical equipment like oxygen tanks and face masks. Many have no access to respirators, meaning that anyone who becomes sick enough to require a respirator will have to be transferred to a local hospital. In a pandemic, this places incarcerated people in particular danger because as one prison healthcare worker stated, “I can’t imagine a local hospital giving inmates preference if they get to the point they have to make hard decisions on saving lives.”

All over the country, financial strain bars incarcerated people from seeking medical care. Forty-one states require co-pays from inmates seeking medical care. Intended to prevent the frivolous use of healthcare facilities, co-pays range from $3 to $5. However, because inmates have limited access to funds and only make anywhere from fourteen cents to sixty-three cents an hour, co-pays put significant financial strain on the incarcerated.

Most people do not have paying jobs while in prison or jail. Faced with the choice between purchasing soap or food and paying a medical visit co-pay, inmates may be reluctant to seek out medical care. In some cases, any income comes from family on the outside, who may be struggling themselves. Not wanting to put any additional burden on loved ones, many incarcerated people go without money entirely, putting healthcare out of reach. Almost all states have responded to the COVID-19 pandemic by modifying co-pay requirements, or abolishing them all together. Nevada, Hawaii, and Delaware have made no changes and continue to require co-pays.

Prisons and jails are required to provide healthcare to incarcerated people. Without significant changes to improve access to healthcare and hygiene products, governments run the risk of overwhelming both on-site healthcare facilities and local hospitals. Governments need to consider alleviating barriers that preclude incarcerated people from seeking out care before mass casualties ensue. The Eighth Amendment requires it.