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How High-Priced Drugs Cripple Prison Health Care – and Reform

by Priti Krishtel, The Crime Report

In a deeply divided political electorate, prison reform is one of the few issues that attracts bipartisan support. Yet there’s something missing from the current conversation about criminal justice reform: the high cost of prescription drugs.

In 1976, a landmark Supreme Court case, Estelle v. Gamble, established an individual’s fundamental right to access medical treatment while behind bars. Specifically, the court found that “deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”

Prisons and jails, in other words, are constitutionally required to provide health care to people in their care.

When the drugs needed to treat prisoners are expensive, it puts enormous strain on state and county corrections budgets. That, in turn, leads to delays in treatment and substandard care that can have lasting, even deadly, consequences for people who are incarcerated.

It also impacts the state’s ability to improve prison conditions or implement rehabilitative programming that helps keep people from re-offending, things that the current First Step bill currently before the Senate seeks to do. [Ed Note: The First Step Act was signed into law by President Trump on December 21, 2018, three days after this article was first published].

Unless high drug prices are addressed, prisons and, to a lesser extent, jails will face a difficult trade-off between providing healthcare and enacting the reforms needed to keep people out of the system for good.

Nothing illustrates this problem as powerfully as the ongoing Hepatitis C crisis in state prisons. According to the Centers for Disease Control and Prevention, 17 percent of prisoners in prisons and jails – around 400,000 people – are infected with the virus, which is transmitted through blood contact and can lead to liver failure if left untreated.

People who are incarcerated represent less than one percent of the population, but they account for about a quarter of all diagnosed Hep C cases in the U.S.

The most common way for a prisoner to get the disease is by sharing needles used for injecting drugs, tattooing, or piercing with people who are already infected. And since prisons and jails hold a large number of people with histories of substance abuse – a situation that has gotten worse with the opioid and heroin epidemics – the disease is widespread.

There are highly effective cures for Hep C. Prisons pay anywhere from $25,000 to list prices of $90,000 for a two- or three-month course of one-pill-a-day Sovaldi-based treatment combination, manufactured by the pharmaceutical company Gilead.

Using the low end of that range, it would cost $1 billion to treat 40,000 people – just 10 percent of the number of incarcerated people infected.

Sovaldi is so expensive in part because the drug is protected in the U.S. by a fortress of 29 granted patent and patent applications, amounting to more than 30 years of monopoly power that prevents generic competition. Other countries, including Egypt, Ukraine, Argentina, Brazil, Russia and 38 countries in Europe, have rejected or restricted Gilead’s patents on Sovaldi for failing to meet the requirements warranting a patent.

Last year, my organization, the Initiative for Medicines, Access & Knowledge, successfully challenged Gilead’s patents on Sovaldi in China, opening the door for generic competition and billions of dollars in savings in that country. The U.S. Patent Office, in contrast, would not allow our challenges to Gilead’s patents on Sovaldi to go to trial.

Gilead’s monopoly pricing in the U.S., unsurprisingly, puts the drug out of reach of millions of Americans, not least those in our prisons and jails. According to a recent survey, 97 percent of people in state prisons with Hep C aren’t being treated.

That has led to a string of lawsuits. Prisoners in Massachusetts, Colorado, Indiana, Pennsylvania, Michigan, Minnesota and Florida have sued and either won or reached a settlement securing their right to effective and timely treatment for Hep C. Similar lawsuits are pending in California and Tennessee.

Across the board, state administrators have cited the prohibitive price of Hep C treatment, and in virtually every case the courts concluded that cost couldn’t be used as justification for failing to screen for Hep C, not treating, or treating with older, less effective drugs.

And that’s just one drug for one disease.

People in prison or jail with diabetes, asthma, opioid addiction and other conditions also need treatment and many of these are also expensive. Drugmaker monopolies lie at the heart of the problem, and we need our policymakers to take bold action to correct this abuse.

Where else could those billions of state and corrections dollars be spent if America didn’t pay more per capita for prescription drugs than any other nation in the world? Some of that money could go to reforms like treating mental illness and substance abuse, reuniting families, implementing job and educational programs, and expanding transitional housing facilities.

These and other reforms will be far harder to achieve if nothing is done about abusive drug-maker monopolies that are causing over-the-top prescription drug prices. 

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Priti Krishtel is the Co-Executive Director of I-MAK.org, a global non-profit organization comprised of senior attorneys, scientists and health experts who have worked to lower drug prices through the patent system for 15 years. She can be reached at @pritikrishtel. Readers’ comments are welcome.

This article was originally published by The Crime Report (www.thecrimereport.org) on December 18, 2018; it is reprinted with permission, with minor edits. Copyright, The Crime Report 2018.