HEPATITIS C IN PRISONS: EVOLVING TOWARD DECENCY
THROUGH ADEQUATE MEDICAL CARE AND PUBLIC
HEALTH REFORM
*

Andrew Brunsden

Hepatitis C (HCV) in prisons is a public health crisis tied to current drug
policy’s emphasis on the mass incarceration of drug users. Prison policy acts as a
barrier to HCV care by limiting medical care for the infected, especially drug users,
and by inhibiting public health measures addressing the epidemic. This Comment
argues that courts mistakenly limit prisoners’ Eighth Amendment right to basic
medical care when they defer to prisons that apply HCV policies as categorical
rules of treatment. Where current standards of care mandate individualized
patient evaluation for treatment, prison policies that eschew this principle exhibit
deliberate indifference to prisoners’ medical needs. Additionally, this Comment looks
beyond deliberate indifference to contemporary standards of adequate medical care
and prisoner reentry, proposing that evolving standards of decency require greater
care than existing Eighth Amendment standards articulated by the U.S. Supreme
Court, and that prisoner reentry policy holds the potential for a shift toward public
health reform of prisons. Ultimately, this Comment argues that HCV in prisons
implicates a set of critical challenges calling for a fundamental rethinking of the
prison as a medical provider, a public health institution, and a part of the community.

INTRODUCTION....................................................................................................................466
I. HEPATITIS C IN PRISON AS A MEDICAL NEED AND A PUBLIC
HEALTH CHALLENGE ...................................................................................................471
A. Understanding Hepatitis C and Drug Addiction ...............................................473
1. The Hepatitis C Virus and Its Treatment...................................................473
2. Drug Addiction and Its Treatment .............................................................476
B. Public Health Strategy for Hepatitis C in Prison ...............................................478
1. Care Should Not be Withheld From Current and Former
Drug Users....................................................................................................478
2. Focusing Care on Prison Populations..........................................................479
C. Current Prison Policy as a Barrier to Hepatitis C Care......................................482
II. EIGHTH AMENDMENT LITIGATION TO EXPAND HEPATITIS C CARE .........................483
A. The U.S. Supreme Court’s Articulation of Prisoners’ Right
to Adequate Medical Care ..................................................................................486
1. The Deliberate Indifference Standard ........................................................486
*
Managing Editor, UCLA Law Review, Volume 54. J.D. Candidate, UCLA School of
Law, 2007; B.A., University of Michigan, 2000. Thanks to Professor Sharon Dolovich, Professor
Cheryl Harris, and Youngmee Kwon for reviewing earlier drafts and providing many helpful
comments. I am grateful to Dr. Brian R. Edlin for research guidance, and to Rebecca Bernhardt,
Alyse Bertenthal, and Graham Boyd for their roles in my early development of this Comment. I would
also like to thank Karen Ma for her encouragement in my selection of this topic.

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2. Deference to Prison Policy and the Eighth Amendment...........................488
The Limits of Hepatitis C Litigation ..................................................................490
1. Failure to Diagnose Hepatitis C-Infected Inmates .....................................490
2. Failure to Monitor or Treat Hepatitis C-Infected Inmates ........................492
C. The Deliberate Indifference of Hepatitis C Protocols Applied
as Categorical Rules.............................................................................................494
III. BEYOND DELIBERATE INDIFFERENCE: RETHINKING LEGAL ADVOCACY
FOR ADEQUATE MEDICAL CARE AND PUBLIC HEALTH REFORM IN PRISONS ............496
A. Contemporary Standards of Adequate Medical Care ........................................499
1. Medical Ethics..............................................................................................499
2. Disability Law and Policy ............................................................................501
3. International Human Rights Law and Adequate Medical Care................503
B. Prisoner Reentry and Public Health Reform of Prisons .....................................504
CONCLUSION .......................................................................................................................507
B.

INTRODUCTION
Current drug policy drives the simultaneous rise of prison populations
and communicable-disease infection in prisons—mass incarceration of drug
users means America chooses to imprison large numbers of infected persons.1
Hepatitis C (HCV), the United States’ most common bloodborne viral infection and leading cause of death from liver disease,2 is concentrated in prisons
due in part to a drug policy that focuses on imprisonment. Since HCV is
primarily transmitted by injection drug use, the mass incarceration of drug users
concentrates HCV-infected persons in prisons.3 At present, 16 to 41 percent of
1.
As the U.S. prison population has exploded to upward of two million people, fueled in
part by the “War on Drugs,” so has the communicable-disease concentration in prisons. As of June
30, 2005, U.S. prisons contained 2.186 million inmates with average annual increases of 3.4 percent
in the total inmate population from 1995 to 2005. PAIGE M. HARRISON & ALLEN J. BECK, BUREAU
OF JUSTICE STATISTICS, BULLETIN: PRISON AND JAIL INMATES AT MIDYEAR 2005, at 2 (May 2006),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim05.pdf. Racial minorities are disproportionately
represented in the U.S. prison population (which is 38.9 percent black and 15 percent Hispanic). Id. at
8. Disproportionate minority incarceration and limited access to health services in poor communities of
color coalesce to create a higher incidence of communicable diseases in prison than in the general
population. See 2 NAT’L COMM’N ON CORR. HEALTH CARE, THE HEALTH OF SOON-TO-BE RELEASED
INMATES 21 (2002), available at http://www.ncchc.org/stbr/Volume2/Health%20Status%20(vol%202).pdf;
Cynthia Golembeski & Robert Fullilove, Criminal (In)Justice in the City and Its Associated Health
Consequences, 95 AM. J. PUB. HEALTH 1701, 1702–03 (2005); Theodore M. Hammett et al., HealthRelated Issues in Prisoner Reentry, 47 CRIME & DELINQ. 390, 391 (2001).
2.
See Doris B. Strader et al., Diagnosis, Management, and Treatment of Hepatitis C, 39
HEPATOLOGY 1147, 1147 (2004) [hereinafter AASLD GUIDELINES].
3.
See Amy E. Boutwell et al., Opportunities to Address the Hepatitis C Epidemic in the
Correctional Setting, 40 CLINICAL INFECTIOUS DISEASES S367, S367 (Apr. 15, 2005). Some estimates
indicate that as many as 83 percent of the United States’ approximately two million intravenous drug

Hepatitis C in Prisons

467

incarcerated persons have HCV, as compared with roughly 2 percent in the
general population.4 Known as the “silent epidemic,” HCV can lie dormant
5
as long as twenty to thirty years before the manifestation of symptoms. A
lack of public discourse mirrors the silent course of the disease despite
estimates that HCV incidence will increase fourfold by 2015.6 While public
health experts have pointed out the need for a coordinated approach to HCV
in prisons, legal scholarship has yet to address the problem. HCV in prisons
illustrates the consequences of a punitive drug policy and implicates a set of
critical challenges at the intersection of drug law, prison reform, prisoners’
rights to basic medical care, public health, and prisoner reentry.
Mass incarceration of HCV-infected persons raises serious questions
about the ability of prisons to provide necessary medical care and to implement
public health measures that control HCV transmission risks. The U.S. Supreme
Court has recognized basic healthcare for prisoners as a constitutional right,
but the Eighth Amendment as currently interpreted guarantees prisoners only
limited access to medical care. When challenging medical care as inadequate, prisoners must show “deliberate indifference” by prison officials, a legal
standard that entitles prisoners to relief only when prison officials show conscious disregard of a prisoner’s medical needs.7 Courts are hesitant to order
expanded access to medical care, deferring to prison administration in the
formulation of healthcare policy.8 In a world of minimal constitutional obligations and deference to prison policy, prisons are accorded wide latitude to
structure HCV protocols, which proffer guidelines for screening, testing,
monitoring, and treatment of the disease. As a result, courts generally uphold
failures to provide HCV care when prisons have followed HCV protocols.
This Comment argues that courts, accepting adherence to prison HCV
protocols as a ground for withholding care, employ a mistaken interpretation of
deliberate indifference. National guidelines for HCV care have been published,
users are imprisoned at some period in their lives. See Richard K. Sterling et al., The Spectrum of
Chronic Hepatitis C Virus Infection in the Virginia Correctional System: Development of a Strategy for the
Evaluation and Treatment of Inmates with HCV, 100 AM. J. GASTROENTEROLOGY 313, 313 (2005).
4.
See Scott A. Allen et al., Hepatitis C Among Offenders—Correctional Challenge and Public
Health Opportunity, 67 FED. PROBATION 22, 22 (Sept. 2003).
5.
Silja J.A. Talvi, Hepatitis C: A ‘Silent Epidemic’ Strikes U.S. Prisons, in PRISON NATION:
THE WAREHOUSING OF AMERICA’S POOR 181, 181 (Tara Herivel & Paul Wright eds., 2003).
6.
Nat’l Insts. of Health, Management of Hepatitis C, NIH CONSENSUS STATEMENT, June
10–12, 2002, at 9 [hereinafter NIH GUIDELINES 2002], available at http://consensus.nih.gov/2002/
2002HepatitisC2002116pdf.pdf.
7.
In Estelle v. Gamble, 429 U.S. 97 (1976), the U.S. Supreme Court established a right to
adequate medical care and created the deliberate indifference standard for prisoners’ legal claims. See
infra Part II.A.1.
8.
See infra Part II.A.2.

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54 UCLA LAW REVIEW 465 (2006)

and state prison systems have been advised to develop HCV treatment
protocols consistent therewith for inmate care.9 Many state prison systems,
however, have implemented restrictive HCV treatment protocols that
diverge from national guidelines in some important respects, withholding
care from individuals otherwise qualified based on existing standards of care.10
Whereas national guidelines call for medical decisions based on individualized,
case-by-case patient evaluation, some prison systems apply HCV protocols as
categorical rules of treatment.11 This is problematic because HCV care is
complicated by a number of factors such that medical decisionmaking for
HCV-infected patients is necessarily a discretionary enterprise requiring attention to the individual patient’s circumstances. Although every HCV-infected
patient may not need antiviral therapy, many do require such treatment.
Ideally, HCV protocols are consistent with national guidelines in guiding
discretionary decisions given uncertainties in particular cases about what
treatment, if any, is appropriate.12
Prisons counter that low expectations of adherence to treatment and
13
reinfection concerns support restrictive HCV protocols. Further, prisons
maintain that any inappropriate failures to provide care amount only to negligence, not deliberate indifference, and therefore do not constitute cognizable
Eighth Amendment violations.14 Cost concerns are also suggested as prisons’
motivation for use of restrictive HCV protocols as barriers to care. Given the
prevalence rates in prisons, state prisons are concerned that liberalized HCV
protocols could result in expanded care and higher costs.15 Thus, HCV highlights a larger problem that results from the incarceration explosion: how to
pay for—or avoid paying for—the burgeoning medical costs of a growing
prison population?16
9.
National Hepatitis C (HCV) care guidelines explain existing standards of care. Guidelines
have been issued by the National Institutes of Health (NIH) and, most recently, the American
Association for the Study of Liver Diseases (AASLD). See AASLD GUIDELINES, supra note 2; NIH
GUIDELINES 2002, supra note 6, at S3.
10.
For review of common provisions contained in HCV protocols, see infra Part I.C.
11.
AASLD GUIDELINES, supra note 2, at 1155. Drug users, in particular, historically have been
denied medical care based on prejudicial attitudes, but often require HCV care due to the high prevalence
rates in this at-risk group. See Brian R. Edlin et al., Overcoming Barriers to Prevention, Care, and Treatment of
Hepatitis C in Illicit Drug Users, 40 CLINICAL INFECTIOUS DISEASES S276, S276–80 (Apr. 15, 2005).
12.
See infra Part I.
13.
See Johnson v. Wright, 412 F.3d 398, 401 (2d Cir. 2005) (discussing these arguments by
the New York state prison system). But see Edlin et al., supra note 11, at S279–80.
14.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (stating that negligent medical care does
not state an Eighth Amendment violation).
15.
HCV antiviral therapy ranges from $7000 to $20,000. See Allen et al., supra note 4, at 23.
16.
In fiscal year 2001, it cost $29.5 billion to operate state prisons, an increase of $5.5 billion
from 1996. Twelve percent, or $3.3 billion, of state operating expenditures were for prison medical

Hepatitis C in Prisons

469

This Comment argues that prisons following HCV protocols as categorical rules of treatment, rather than as guidelines for care, act with deliberate
indifference. Where national HCV guidelines, along with basic principles of
medical professional judgment, call for individualized patient evaluation,
prisons following HCV protocols as categorical rules deviate from recognized
standards of care and may be liable for deliberate indifference to prisoners’
medical needs. Still, existing Eighth Amendment standards provide only
limited grounds for courts to order expanded care. Legal advocacy should look
beyond the deliberate indifference standard to the advancement of legal and
public health policy arguments based on “evolving standards of decency.”17 As
the Court has indicated, the Eighth Amendment requires law to change with
shifts in contemporary values. These arguments suggest that contemporary
standards of adequate care call for more expansive care than required by the
deliberate indifference standard.18 Medical ethics, disability rights protections,
and international law are instructive authorities for understanding society’s
definition of adequate HCV care.
Further, this Comment addresses the large HCV concentration in prison
as a significant public health opportunity amidst growing concerns about
prisoner reentry.19 Where the majority of inmates are released, mass incarceration means rising numbers of ex-offenders reentering the community.20 In 2004,
nearly 650,000 people were released from prisons, and over seven million
people were released from jails.21 Prison inmates exhibit higher burdens of disease
than the general population, an unsurprising fact since prisons disproportionately
care. That averages out to $2625 per inmate in a year as compared with $4370 average individual
health care expenditures by U.S. residents. In 2001, five states spent above $4000 per inmate
(Alaska, California, Maine, Massachusetts, and New Mexico) whereas three states spent below $1000
per inmate (Kentucky, Louisiana, and Montana). See JAMES J. STEPHAN, BUREAU OF JUSTICE
STATISTICS, SPECIAL REPORT: STATE PRISON EXPENDITURES, 2001, at 1–6 (June 2004), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf. Cost concerns have driven the privatization of prison
medical care. Criticized as a race to the bottom that privileges reducing costs over quality of care, in
2003 private medical companies ran prison health care in ten states and ran particular facilities in
another seventeen states. See generally Wil S. Hylton, Sick on the Inside: Correctional HMOs and the
Coming Prison Plague, HARPER’S MAG., Aug. 2003, at 43, 45–49.
17.
The Eighth Amendment “draw[s] its meaning from the evolving standards of decency.”
Trop v. Dulles, 356 U.S. 86, 101 (1958).
18.
See infra Part III (discussing the evolving standards framework for determination of prisoners’
Eighth Amendment rights and the Court’s recent decision in Roper v. Simmons, 543 U.S. 551 (2005)).
19.
See Allen et al., supra note 4, at 22.
20.
Ninety-five percent of state prison inmates will ultimately be released. Timothy Hughes &
Doris James Wilson, Bureau of Justice Statistics, Reentry Trends in the United States (Aug. 20, 2003),
http://www.ojp.usdoj.gov/bjs/reentry/reentry.htm.
21.
See RE-ENTRY POLICY COUNCIL, REPORT OF THE RE-ENTRY POLICY COUNCIL CHARTING
THE SAFE AND SUCCESSFUL RETURN OF PRISONERS TO THE COMMUNITY 1 (2004), available at
http://www.reentrypolicy.com/reentry/Document_Viewer.aspx?DocumentID=245.

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54 UCLA LAW REVIEW 465 (2006)

contain poor, minority populations that have traditionally lacked access to
adequate health services.22 Because prisoners are a captive audience, medical care
23
and preventive measures can focus on this underserved, at-risk population. If
left unidentified, untreated, and uneducated about the disease, HCV-infected
inmates reentering society present a transmission risk to the community and
are less likely to achieve successful reintegration.24 As a result, policymakers
from a range of political perspectives have embraced successful prisoner reentry
as a rational policy goal. Since medical care and public health interventions for
prisoners are considered tantamount to better health outcomes for the general
population, prisoner-reentry advocates recommend a systematic approach to
HCV in prisons—including screening, testing, monitoring, and treatment of
the disease—to address the HCV public health crisis.25
In this Comment, I examine the legal and policy issues raised by HCV
in prisons. Part I describes the comorbid medical conditions of HCV infection
and drug addiction, the current standards of HCV care, and HCV protocols
as barriers to HCV care in prisons. Part II considers the limited ability of HCV
litigation to expand care due to the stringent deliberate indifference standard,
court deference to prison policy, and courts’ unwillingness to find deliberate
indifference when prisons follow HCV protocols. After a review of HCV cases, I
then analyze a recent Second Circuit Court of Appeals case, Johnson v. Wright,26
as a basis for challenging HCV policies that eschew individualized patient care
when applied as categorical rules. Part III situates adequate medical care and
public health reform in the context of two policy paradigms: evolving standards
of decency and prisoner reentry. This discussion suggests a rethinking of the law’s
approach to HCV in prisons by reference to contemporary standards of adequate care. Finally, this Comment concludes with remarks on how framing
access to HCV care in terms of the emerging consensus on prisoner-reentry
policy coheres with a broader public health orientation toward prison reform and
a harm-reduction approach to drug problems. This approach conceives of law as
a social institution that propels reform only when a larger movement for social
change influences its direction.

22.
See supra note 1.
23.
See Boutwell et al., supra note 3, at S368; Hammett et al., supra note 1, at 399.
24.
See 2 NAT’L COMM’N ON CORR. HEALTH CARE, supra note 1, at 13; Boutwell et al., supra
note 3, at S368; Hammett et al., supra note 1, at 391–92.
25.
See, e.g., Boutwell et al., supra note 3, at S368–69; Hammett et al., supra note 1, at 392–95.
26.
412 F.3d 398, 401 (2d Cir. 2005).

Hepatitis C in Prisons
I.

471

HEPATITIS C IN PRISON AS A MEDICAL NEED AND A PUBLIC
HEALTH CHALLENGE

HCV is the most common bloodborne viral infection and the leading
27
cause of death from liver disease in the United States. While four million
people—1.8 percent of the general population—are identified as HCVinfected, these statistics have underestimated HCV incidence by exclusion of
prison inmates, the homeless, and institutionalized persons in calculation of
the figure.28 As large numbers of undiagnosed individuals are identified in the
coming years, HCV incidence is expected to rise dramatically.29
HCV is transmitted through exposure to infected blood, with injection
drug use as the primary mode of transmission.30 Under the auspices of the
“War on Drugs,” the number of persons in prison for drug crimes has risen
31
significantly in the past two decades. Because many persons arrested for
drug-related crimes are drug users, it is no surprise that prisons exhibit HCV
prevalence rates eight to twenty times the HCV incidence in the general
population.32 The high concentration of HCV in prisons is a critical problem
33
from both medical and public health perspectives : First, prisons contain individuals with significant medical needs, and second, reentry of prisoners to
society poses dangerous transmission risks to the general population.34

27.
Each year, between 10,000 and 12,000 persons die as a result of HCV-related cirrhosis
of the liver. See AASLD GUIDELINES, supra note 2, at 1147.
28.
See NIH GUIDELINES 2002, supra note 6, at 5.
29.
An increase of four times the current estimates of adults diagnosed with chronic HCV
infection is projected from 1990 to 2015. See id.
30.
The prevalence of HCV among older injection drug users is estimated to be between 80
and 90 percent. See Edlin et al., supra note 11, at S276. HCV and drug addiction are often described
as comorbid conditions because it is not unusual for HCV-infected individuals to also suffer from
drug addiction. Other common conditions comorbid with HCV include human immunodeficiency
virus (HIV) and mental illness. See AASLD GUIDELINES, supra note 2, at 1155.
31.
See supra note 1.
32.
See Allen et al., supra note 4. Data suggest that roughly one out of every four state prison
inmates has a history of injection drug use. See NAT’L CTR. ON ADDICTION AND SUBSTANCE
ABUSE AT COLUM. UNIV., BEHIND BARS: SUBSTANCE ABUSE AND AMERICA’S PRISON
POPULATION 182 (1998).
33.
As a medical problem, HCV care addresses the health of the individual patient. As a
public health problem, HCV care is considered necessary as a public health strategy. The public
health perspective, however, more broadly focuses on diagnosis and education in addition to medical
treatment. See Allen et al., supra note 4, at 24. For a discussion on the difference between medical
and public health approaches, see generally Jonathan M. Mann, Medicine and Public Health, Ethics
and Human Rights, in HEALTH AND HUMAN RIGHTS 441–47 (Jonathan M. Mann et al. eds., 1999).
34.
According to the Centers for Disease Control and Prevention (CDC), in 1996, 1.3 million
HCV-infected inmates were released from prisons and jails. See Allen et al., supra note 4, at 24.

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54 UCLA LAW REVIEW 465 (2006)

While prisons have faced similar problems with the human immunodeficiency virus (HIV) epidemic, the sheer magnitude of HCV prevalence is
alarming.35 Standards for HIV care are more settled than are standards for
HCV care,36 and whereas HIV in prisons has been the subject of legal scholar37
ship and advocacy, the problem of HCV in prisons has yet to receive similar
attention.38 Medical uncertainty regarding appropriate HCV care complicates
the development and evaluation of prison policies. Since HCV was only
discovered in 1989, HCV care is still a relatively new area of medical research.
Although several national organizations have published HCV care guidelines,
39
these guidelines are often revised in light of changing standards of care. The
current medical consensus accepts a degree of ambiguity as to what constitutes
appropriate care for individual HCV-infected patients. Treatment is not recommended for every HCV-infected person, but rather is recommended only on a
case-by-case basis.40 Thus, the existing challenge is to expand the provision of
HCV care for those determined to need it while recognizing that HCV
treatment is unnecessary for many HCV-infected persons.41
Current standards of care recognize individualized patient care as the
principle to mediate medical uncertainty, advising that each patient be evaluated

35.
HIV prevalence rates in state prisons are about 2 percent. See LAURA M. MARUSCHAK,
BUREAU OF JUSTICE STATISTICS, BULLETIN: HIV IN PRISONS, 2003, at 1 (Sept. 2005), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/hivp03.pdf. HCV prevalence rates range between 16 and 41 percent.
See Allen et al., supra note 4, at 22.
36.
See Correctional Systems Weigh New Consensus Statement: Debate HCV Treatment
Approaches and Options, POSITIVE POPULATIONS vol. 4, no. 3, at 1, 3 (2002) [hereinafter Correctional Systems], available at http://www.positivepopulations.org/newsletters/V4N3.pdf. HIV and HCV
also exhibit some notable differences in transmission routes. Whereas HIV transmission is quite
efficient through unprotected sexual activity, HCV infection is less likely to result from sex. However,
HCV is ten times more efficient at transmitting through injection drug use than is HIV. See Edlin et
al., supra note 11, at S277.
37.
See generally Donald H.J. Hermann, The Development of AIDS Federal Civil Rights Law:
Anti-Discrimination Law Protection of Persons Infected With Human Immunodeficiency Virus, 33 IND. L.
REV. 783 (2000); Kathleen Knepper, Responsibility of Correctional Officials in Responding to the Incidence of
the HIV Virus in Jails and Prisons, 21 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 45 (1995); D.
Stuart Sowder, AIDS in Prison: Judicial Indifference to the AIDS Epidemic in Correctional Facilities
Threatens the Constitutionality of Incarceration, 37 N.Y.L. SCH. L. REV. 663 (1992); Sarah E. Frink,
Note, AIDS Behind Bars: Judicial Barriers to Prisoners’ Constitutional Claims, 45 DRAKE L. REV. 527 (1997).
38.
But see Talvi, supra note 5; Fox Butterfield, Infections in Newly Freed Inmates Are a
Rising Concern, N.Y. TIMES, Jan. 28, 2003, at A14; David Rohde, A Health Danger From a Needle
Becomes a Scourge Behind Bars, N.Y. TIMES, Aug. 6, 2001, at A1.
39.
The most recent set of evidence-based medical guidelines for HCV care were published by
the AASLD. AASLD GUIDELINES, supra note 2, at 1166 (“The issue of treatment of chronic hepatitis
C is in constant flux. There is highly active clinical research in this area, and new information appears
with increasing frequency.”).
40.
See id. at 1155.
41.
See Edlin et al., supra note 11, at S280.

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473

for care based on a personalized assessment of risks and benefits.42 Individualized care ensures that every HCV-infected individual is a candidate for
HCV antiviral therapy, even though every candidate will not in fact be treated.
However, contrary to the prevailing understanding contained in evidencebased national guidelines, many prisons have implemented restrictive HCV
treatment protocols that operate as barriers to individualized HCV care.43
Although national guidelines do not recommend treatment for every HCVinfected patient, neither do they support HCV protocols designed or applied
as indefensible barriers to care based on prejudicial attitudes toward drug users,
persons with HIV, or the mentally ill, a desire for cost-savings, or any other unacceptable “non-medical reason.”44
To explore HCV in prison as a medical and public health problem, it is first
necessary to understand current standards of HCV care and the nature of drug
addiction. Public health literature articulates two normative strategies for HCV
management: (1) Care should not be withheld from current and former drug users;
and (2) care should focus on prison populations. The following discussion situates
HCV in the appropriate context and then addresses these normative strategies.
A.

Understanding Hepatitis C and Drug Addiction

1.

The Hepatitis C Virus and Its Treatment

The natural history of HCV follows one of two general paths: acute
infection or chronic infection. Acute HCV infection occurs immediately following exposure. While infection can spontaneously clear during this stage, 55 to
85 percent of HCV-infected persons proceed to the chronic HCV stage.
Chronic HCV is defined as persistent HCV infection for longer than six
months.45 During this stage, HCV-infected persons experience varying degrees of
46
liver fibrosis (scarring) and inflammation. Five to 20 percent of HCV-infected
42.
See, e.g., AASLD GUIDELINES, supra note 2, at 1155; Brian R. Edlin, Prevention and
Treatment of Hepatitis C in Injection Drug Users, 36 HEPATOLOGY S210, S210 (2002) (“Decisions
about the treatment of hepatitis C . . . should be made by the patients together with their physicians
based on individualized risk-benefit assessments.”).
43.
Evidence-based guidelines, such as the AASLD Guidelines, articulate the consensus of
medical and public health professionals for HCV care, and are based upon an analysis of current
science and medical practice. See AASLD GUIDELINES, supra note 2, at 1147.
44.
Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)
(citing Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)). The denial of
medical care on the basis of “non-medical reasons,” such as financial considerations, has been found
by courts to be deliberate indifference. See, e.g., id. at 336–37.
45.
See NIH GUIDELINES 2002, supra note 6, at 10.
46.
See AASLD GUIDELINES, supra note 2, at 1151.

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persons develop cirrhosis of the liver, which represents a significant risk for
developing end-stage liver disease.47 For those who reach end-stage liver
disease, the only available treatment option is liver transplantation, a costly
and often unavailable procedure.48 As the natural history of HCV makes clear,
HCV impacts infected individuals differently. HCV care for the individual
patient will vary depending on a number of circumstances, making effective
screening and monitoring necessary to determine appropriate treatment decisions.
According to the American Association for the Study of Liver Disease
(AASLD) Guidelines, HCV screening should focus on at-risk populations,
and tests should be conducted on individuals that report “an identifiable risk
factor.”49 Since injection drug use is the primary mode of transmission, anyone
50
with a history of such drug use qualifies for testing. HCV testing is also
recommended for anyone exhibiting high aminotransferase (ALT) levels.51
Patient monitoring determines the timing and substance of treatment interventions. Physicians are asked to consider several factors in determining a
patient’s qualification for HCV treatment and evaluating the probability of
treatment response. First, a patient’s HCV genotype should be identified, as it
both predicts expected success in treatment and guides the appropriate length
of treatment.52 Second, evaluation of the stage of the disease helps determine
the “relative urgency of therapy.”53 The stage of the disease is often assessed
54
through a procedure known as a liver biopsy. Thus, current standards of care
consider screening and testing for the disease in at-risk individuals as well as
liver biopsies necessary for identification, monitoring, treatment, and prevention
of the disease.

47.
See id.
48.
A liver transplant’s estimated cost is $250,000. See Correctional Systems, supra note 36, at 5.
49.
AASLD GUIDELINES, supra note 2, at 1147.
50.
For a discussion of other possible modes of transmission, see generally id. at 1147–48.
51.
Id. at 1148. The aminotransferase (ALT) level is the measure of a liver enzyme that spills
into the blood when there is liver damage and that, if elevated, may indicate HCV infection. When
ALT levels of HCV-infected patients have remained persistently high over a period of time, these
patients historically have been deemed qualified for treatment. Id. at 1148, 1155.
52.
Id. at 1150. There are six identified HCV genotypes. HCV-infected persons with
genotype 1 have demonstrated successful treatment response rates of 42 to 46 percent, while response
rates for genotypes 2 and 3 have ranged from 76 to 82 percent. There is a lack of data on treatment
response for genotypes 4, 5, and 6. Id. at 1154.
53.
Id. at 1150.
54.
Id. A liver biopsy is a procedure where a needle is inserted through the skin over the right
upper abdomen to obtain a thin strand of liver tissue to be examined under a microscope and
evaluated. While the need for a liver biopsy before initiation of treatment is a matter of debate, the
AASLD resolves doubts in favor of performing a biopsy to formulate the optimal treatment decision.
However, because individuals with genotype 2 and 3 respond well to antiviral therapy, a biopsy may
be unnecessary before this group of patients receives treatment. Id. at 1150–51.

Hepatitis C in Prisons

475

The AASLD Guidelines explain that HCV treatment decisions are
properly determined according to a broad medical ethic of individualized
patient care: “As with all clinical decisions, selection of patients for HCV
treatment requires accurate assessment of both therapeutic risk and benefit.”55
HCV treatment decisions are individualized according to a patient’s HCV
genotype, severity of liver disease, the presence of side effects,56 and the existence of comorbid conditions such as HIV co-infection, drug addiction, alco57
holism, or mental illness. Like most factor tests, HCV treatment decisions
balance various concerns. Thus, no single factor, whether HIV co-infection,
drug use, or mental illness, leads to an absolute exclusion from treatment.58
The purpose of HCV treatment is “to prevent complications of HCV
infection[;] this is principally achieved by eradication of infection.”59 HCVinfected persons left untreated are at risk for liver cirrhosis, end-stage liver
disease, and death.60 While HCV is currently not curable, treatment can eradicate infection by reducing HCV to undetectable levels, avoiding death and
other HCV complications.61 More broadly, HCV care aims at preventing
transmission of the disease. Health education, substance abuse treatment, and
syringe exchange programs are recommended public health interventions.62
Several treatments for HCV exist. The optimal course of treatment is a
combination antiviral therapy regimen of weekly injections of pegylated interferon and oral ribarivin.63 The cost for a round of treatment ranges from $7000
to $20,000.64 HCV treatment is effective in producing HCV clearance, leading
to undetectable HCV levels in many cases or reduced levels with improvement
in fibrosis.65 Nevertheless, the AASLD Guidelines make clear that treatment

55.
Id. at 1155.
56.
A range of side effects can occur in conjunction with HCV treatment, including irritability,
memory disturbances, depression, fatigue, headaches, nausea, vomiting, skin irritation, weight loss,
fever, and insomnia. Id. at 1154.
57.
Id. at 1155.
58.
Id. The AASLD Guidelines classify patients into three categories for the purposes of
treatment qualification: persons for whom therapy is widely accepted, persons for whom therapy
should be individualized, and persons for whom therapy is contraindicated. Id.
59.
Id. at 1152.
60.
Id. at 1151.
61.
When treatment eradicates infection to undetectable levels, a patient is defined as
having a “sustained virologic response.” Id. at 1152.
62.
See, e.g., Boutwell et al., supra note 3, at S369; Edlin et al., supra note 11, at S278–79;
Edlin, supra note 42, at S215.
63.
Since HCV-infected persons with genotype 1 have a more resistant strain of the virus, the
recommended therapy is forty-eight weeks of pegylated interferon, whereas the recommended course of
treatment for those with genotypes 2 and 3 is twenty-four weeks of pegylated interferon. Id. at 1152–54.
64.
See Allen et al., supra note 4, at 23.
65.
AASLD GUIDELINES, supra note 2, at 1152.

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54 UCLA LAW REVIEW 465 (2006)

of all HCV-infected persons is not necessarily advisable. The AASLD
Guidelines offer only “recommendations” reflecting the current medical
consensus for HCV treatment, not categorical rules of treatment. Since
HCV guidelines are not to be followed as categorical rules, appropriate HCV care
is a decision arrived at through case-by-case analysis of the individual patient.66
2.

Drug Addiction and Its Treatment

HCV care is intimately linked to caring for current and former injection
drug users.67 HCV care for this group is complicated by the misperception
that drug use renders a patient ineligible for treatment.68 Yet drug users are
eligible and can benefit from HCV care, in addition to public health interventions directed at preventing transmission.69 To improve drug users’ access
to medical care and public health programs, dispelling the myths about drug
addiction is a necessary enterprise.
Despite popular conceptions of drug addiction as a moral problem,
scientists and policymakers view drug addiction as a disease.70 Drug addiction
leads to changes in brain chemistry produced by excessive drug use and characterized by an uncontrollable compulsion to use drugs despite adverse consequences.71 As with other chronic illnesses,72 the medical community recognizes
that “[d]rug use is a complex behavior with multidimensional determinants,
including social, psychological, cultural, economic, and biological factors.”73
Drug addiction is similar to other chronic illnesses such as diabetes, heart
disease, and lung cancer in that voluntary yet socially conditioned behaviors,
such as diet or smoking, can lead to the onset and development of the disease.74
Thus, when Congress enacted the Americans with Disabilities Act of
1990,75 it included drug addiction among other “diseases or conditions” that
are “physical or mental impairment[s]” entitled to antidiscrimination protection
66.
Id. at 1155.
67.
See Edlin et al., supra note 11, at S276; supra note 4 and accompanying text.
68.
See, e.g., Edlin et al., supra note 11, at S276.
69.
See id.
70.
See, e.g., Alan I. Leshner, Science-Based Views of Drug Addiction and Its Treatment, 282 J. AM.
MED. ASS’N 1314 (1999).
71.
See id.
72.
Chronic illness is distinguished from a curable acute condition. Individuals with drug
addiction usually require multiple rounds of treatment, and the possibility of relapse always remains.
See Ellen M. Weber, Bridging the Barriers: Public Health Strategies For Expanding Drug Treatment in
Communities, 57 RUTGERS L. REV. 631, 641–42 (2005).
73.
Edlin et al., supra note 11, at S276.
74.
See Weber, supra note 72, at 641–42.
75.
42 U.S.C. §§ 12101–12213 (2000).

Hepatitis C in Prisons

477

under the law.76 This congressional recognition of drug addiction as a disability
demonstrates that drug addiction is to be treated as a medical problem, even if
public policy remains somewhat schizophrenically committed to punitive
prohibition.77 Understanding drug addiction as a disease helps to advance
policy arguments for increased drug treatment resources, as well as political
demands for abandoning a punitive drug policy.78 But independent of whether
one views punishment for drug crimes as proper from a criminal justice
perspective, it is well-established that addressing drug addiction as a disease is
the medically appropriate course of action.79
Drug treatment is “as successful as treatment of other chronic illnesses,”
reducing drug use by 40 to 60 percent.80 As with other medical treatments,
drug-treatment plans require individualized consideration of a patient’s

76.
See H.R. REP. NO. 101-485(II), at 51 (1990); 28 C.F.R. § 35.104(1)(ii) (2006) (“The
phrase physical or mental impairment includes, but is not limited to, such contagious and
noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.”) (emphasis added).
77.
The Controlled Substances Act, 21 U.S.C. § 802(1) (2000), both in 1990 and today,
defines an “addict” as “any individual who habitually uses any narcotic drug . . . or who is so far
addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his
addiction.” This definition is consistent with the view that drug addiction is a disease that has roots
in social and biological factors beyond the individual will. See, e.g., Laura L. Hirschfeld, Legal Drugs?
Not Without Legal Reform: The Impact of Drug Legalization on Employers Under Current Theories of
Enterprise Liability, 7 CORNELL J.L. & PUB. POL’Y 757, 776 (1998).
78.
Cf. Craig Reinarman, Addiction as Accomplishment: The Discursive Construction of
Disease, 13 ADDICTION RES. & THEORY 307 (2005). Critics reject the idea that drug addiction is a
disease on philosophical grounds, pointing to the initiation of drug abuse as a voluntary act
exhibiting a weakness of will. See, e.g., Sally Satel, Is Drug Addiction a Brain Disease?, in ONE
HUNDRED YEARS OF HEROIN 55, 55–57 (David F. Musto ed., 2002). The addiction-as-disease
proponents have addressed these criticisms through a kind of soft determinism that reconciles the
voluntary choice to use drugs with the social and biological basis that conditions this choice. See Leshner,
supra note 70, at 1314–15.
79. The American Medical Association (AMA) has authoritatively adopted a resolution
expressing this view:
The AMA
1. endorses the proposition that drug dependencies, including alcoholism, are
diseases and that their treatment is a legitimate part of medical practice, and
2. encourages physicians, other health professionals, medical and other health
related organizations, and government and other policymakers to become more
well informed about drug dependencies, and to base their policies and activities
on the recognition that drug dependencies are, in fact, diseases.
Am. Med. Ass’n, Definitions, H-95.983 Drug Dependencies as Diseases (Nov. 24, 2003), available at
http://www.ama-assn.org/ama1/pub/upload/mm/388/alcoholism_treatable.pdf.
80.
Leshner, supra note 70, at 1316. This means that drug users respond to medical
treatments and relapse at similar rates to other chronic illnesses.

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54 UCLA LAW REVIEW 465 (2006)

needs.81 A range of substance abuse treatment options are available, including
twelve-step counseling programs, outpatient methadone programs, and residential or inpatient programs.82 Furthermore, a comprehensive drug-treatment
regime links programs directly targeting drug abuse with associated mental
health services, medical care for communicable diseases, educational programs,
and legal and other services.83
Despite substantial support for treating drug addiction as a disease, drug
treatment and other proven methods for reducing the harms of drug use are
not sufficiently available to individuals in need. Punitive drug policy reinforces
discriminatory attitudes toward drug users and inhibits their access to necessary
health services.84 To provide effective HCV care for drug users, it must be
oriented to addressing the root causes of infection and transmission. In
addition to drug treatment, public health education aims to increase knowledge
of transmission risks and encourage safe injection practices. At the same time,
eligibility for HCV care is not conditional on drug users’ participation in drug
treatment or other programs.85 Consistent with the approach that understands
drug addiction as a disease and a condition comorbid with HCV, practitioners
advocate HCV care tailored to drug users’ needs.86
B.

Public Health Strategy for Hepatitis C in Prison

As a result of the high concentration of HCV and drug users in prisons,
public health specialists have articulated two related normative strategies for
HCV management: (1) Care should not be withheld from current and former
drug users;87 and (2) care should focus on prison populations.88
1.

Care Should Not be Withheld From Current and Former Drug Users

As one public health expert has noted, “Substantial barriers to providing
effective care and treatment for [injection drug users] with hepatitis C stem
from characteristics of the disease, patients, providers, and the health care

81.
See NAT’L INST. ON DRUG ABUSE, PRINCIPLES OF DRUG ADDICTION TREATMENT: A
RESEARCH-BASED GUIDE 3 (1999), available at http://www.drugabuse.gov/PDF/PODAT/PODAT.pdf.
82.
Leshner, supra note 70, at 1315–16.
83.
Id. Of course, financial resources constrain the ability of most substance abuse treatment
programs to provide comprehensive services.
84.
See Weber, supra note 72, at 649–56.
85.
See, e.g., Edlin et al., supra note 11.
86.
See id.
87.
See id. at S277–80.
88.
See, e.g., Boutwell et al., supra note 3, at S367.

Hepatitis C in Prisons

479

system.”89 In addition to medical uncertainty surrounding appropriate HCV care,
the efficacy of HCV treatment for drug users has been questioned on grounds of
poor adherence, inability to cope with side effects, and the risk of reinfection
when drug use continues during HCV therapy.90 Until recently, national
guidelines, such as those of the National Institutes of Health (NIH), viewed
current drug use as a reason to withhold therapy unless a person achieved six
91
months of abstinence. However, the general consensus, since adopted by the
NIH, is that injection drug users may be qualified candidates for HCV
treatment on a case-by-case basis.92
The movement toward individualized care for drug users has been the
product of public health advocacy. Informed by science and medical ethics,
public health specialists have argued that drug users are prime candidates for
HCV care due to their status as the highest risk group and should not be denied
treatment on the basis of their stigmatized drug-user status.93 Furthermore,
research supports the argument that restrictive guidelines should not exclude
drug users from HCV care since studies have shown that drug users can positively
adhere to HCV treatment, handle treatment side effects, and avoid reinfection.94
2.

Focusing Care on Prison Populations

The mass incarceration of drug users and prisoner reentry converge to
create both utilitarian and humanitarian grounds for addressing the HCV
epidemic: “Viewed from a public health perspective, this incredible movement
of people through the nation’s prisons and jails provides an opportunity and
obligation to reach millions of persons at high risk of HCV infection who are
traditionally outside the reach of the mainstream public health and medical
89.
Edlin et al., supra note 11, at S276.
90.
Edlin, supra note 42, at S211–13.
91.
Compare NIH GUIDELINES 2002, supra note 6, at S10 (“[A]ctive injection drug use in and
of itself [should] not be used to exclude such patients from antiviral therapy.”), with Nat’l Insts. of
Health, Management of Hepatitis C, NIH CONSENSUS STATEMENT, Mar. 24–26, 1997, at 18
[hereinafter NIH GUIDELINES 1997], available at http://consensus.nih.gov/1997/1997HepatitisC105pdf.pdf
(“[T]reatment of patients . . . who are actively using illicit drugs should be delayed until these
habits are discontinued for at least six months.”).
92.
NIH GUIDELINES 2002, supra note 6, at S10.
93.
See Brian R. Edlin et al., Is it Justifiable to Withhold Treatment for Hepatitis C From IllicitDrug Users?, 345 NEW ENG. J. MED. 211 (2001).
94.
See Scott A. Allen et al., Treatment of Chronic Hepatitis C in a State Correctional Facility,
138 ANNALS INTERNAL MED. 187 (2003); John Farley et al., Feasibility and Outcome of HCV
Treatment in a Canadian Federal Prison Population, 95 AM. J. PUB. HEALTH 1737 (2005); see also
Markus Backmund et al., Infrequent Reinfection After Successful Treatment for Hepatitis C Virus
Infection in Injection Drug Users, 39 CLINICAL INFECTIOUS DISEASES 1540 (Nov. 15, 2004) (arguing
that few injection drug users in the study became reinfected after successful treatment).

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54 UCLA LAW REVIEW 465 (2006)

systems.”95 Focusing HCV care on prison populations is a public health
strategy that draws not only from humanitarian arguments regarding prisoners’
individual rights to medical treatment, but that also appeals to instrumental
utilitarian reasoning that help for prison inmates means improvement to
community health generally. Where the effects of mass incarceration and
prisoner reentry on the general population increasingly impinge on the public
consciousness as a matter of serious concern, focusing care on prison populations becomes a rational and politically viable possibility.96
The utilitarian argument offers strong reasons why providing care to prison
populations leads to better health outcomes for the general population. Prison
inmates’ collective status as a captive audience in a controlled environment
means they can be reached effectively by public health intervention. For
instance, prison populations allow for mass screening and tests, inmate
behavior can be closely monitored for treatment compliance, and inmates
identified as HCV-infected can be educated about transmission risks.97
Furthermore, a comprehensive approach to HCV in prisons can be costeffective while expanding care. A health intervention is cost-effective when
“the benefits it will achieve are worth the price.”98 HCV monitoring and treatment in prisons is cost-effective because it can prevent infected persons’
progression to cirrhosis, end-stage liver disease, and death.99 This not only
saves lives, but it may avoid the significant medical costs of liver transplantation and end-of-life care in excess of lower cost HCV treatment.100 Given the
high number of unidentified infections and the expectation of sharp increases
in HCV incidence in the general population,101 HCV screening and testing in
prisons is also cost-effective. When HCV-infected persons are identified, their
transmission risks can be addressed through public health measures such as

95.
Boutwell et al., supra note 3, at S368.
96.
See, e.g., John V. Jacobi, Prison Health, Public Health: Obligations and Opportunities, 31 AM.
J.L. & MED. 447, 468–70 (2005).
97.
See, e.g., Allen et al., supra note 4, at 24; Hammett et al., supra note 1, at 399.
98.
1 NAT’L COMM’N ON CORR. HEALTH CARE, THE HEALTH OF SOON-TO-BE RELEASED
INMATES, at xiii (2002), available at www.ncchc.org/stbr/Volume1/Health%20Status%20(vol%201).pdf.
Thus, cost-effectiveness is not synonymous with cost savings. See id.
99.
See supra Part I.A.1.
100.
A liver transplant is estimated to cost $250,000, whereas a round of HCV treatment
ranges from $7000 to $20,000. See Correctional Systems, supra note 36, at 5; Allen et al., supra note 4,
at 23; see also Hammett et al., supra note 1, at 391–92.
101.
See Boutwell et al., supra note 3, at S368 (noting that “at least 50% of people infected with
HCV in the United States have not been identified”) (citation omitted).

Hepatitis C in Prisons

481

education.102 This staves off the spread of the disease both among prison inmates
and within the community, and as a result, contains future costs of health care.103
In response, critics argue that the public health opportunity argument is
an ideal that does not make sense as a possible reality, since prison inmates
are difficult patients and prisons are bad places to pursue public health objectives.
Because HCV-infected inmates suffer from a range of comorbid conditions,
critics argue, inmates are less likely to adhere to antiviral therapy than
patients in the general population. Drug users, for example, may respond negatively to the use of needles during treatment and may continue using drugs in
prison, putting them at risk of reinfection.104 Also, prisons lack institutional
competence to advance public health solutions.105 The impracticability of
focusing care on prison populations thus undermines the prudence of public
health solutions.
Even if public health intervention has been underdeveloped, this does
not discredit the utilitarian argument underlying the public health strategy of
focusing care on prison populations. National HCV guidelines, in harmony
with broader principles of medical care, reject a priori generalizations that
classes of individuals make bad patients. While factors such as a patient’s
comorbid conditions are relevant considerations for evaluation, individualized
care is important precisely because of the differences between patients in prison
populations. Drug use, mental illness, and HIV co-infection are afflictions that
vary in degree, requiring patient evaluations calibrated to the individual
patient’s particular history and qualifications for care.106 Moreover, evidence of
success in focusing care on prison populations lends credence to integration of
public health programs in prisons.107 While questions of implementation and
resources remain, whether prisons accept responsibility for integrating public
health strategies into their central mission appears as much a question of
priorities and political will as it is a practical dilemma.
102.
See supra Part I.A.1.
103.
See Allen et al., supra note 94, at 189–90; Boutwell et al., supra note 3, at S368; Hammett
et al., supra note 1, at 391–92; see also Joshua A. Salomon et al., Cost-effectiveness of Treatment for
Chronic Hepatitis C Infection in an Evolving Patient Population, 290 J. AM. MED. ASS’N 228 (2003).
104.
See Johnson v. Wright, 412 F.3d 398, 405 (2d Cir. 2005) (discussing New York state
prison system’s arguments that adherence and reinfection concerns justify restrictive HCV protocol);
Edlin et al., supra note 11 (summarizing these arguments).
105.
See Douglas C. McDonald, Medical Care in Prisons, 26 CRIME & JUST. 427, 438–45
(1999). Douglas McDonald points to a number of institutional problems that limit prison systems
from expanding medical care and public health intervention. Rather than a lack of commitment or
professional standards, McDonald views the problem of poor medical care in prisons as a practical issue
of needing to recruit qualified physicians and improve inadequate facilities. Id.
106.
See AASLD GUIDELINES, supra note 2, at 1154–55; Edlin et al., supra note 11, at S276–80.
107.
See Boutwell et al., supra note 3, at 5368–69.

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C.

54 UCLA LAW REVIEW 465 (2006)
Current Prison Policy as a Barrier to Hepatitis C Care

Prison policy provides an objective indicator of a state prison system’s
commitment to existing standards of care for comparison with medical and
public health authorities. In the past, the problem was the absence of HCV
protocols. HCV was discovered in 1989, and national HCV guidelines were
published first in 1997. However, many prison systems have since established
HCV protocols. Because the 1997 national guidelines—which were more
restrictive than current standards of care—sanctioned withholding HCV care
from drug users and other at-risk patients, prison systems reasonably formed
protocols adopting provisions withholding care.108 The present problem is
prisons’ failure to update HCV protocols in light of evolving standards of care.
The 2002 Guidelines liberalized eligibility criteria for access to HCV
care. For example, whereas the 1997 Guidelines categorically excluded drug
users from consideration for treatment, the 2002 Guidelines allowed HCV
care for drug users according to case-by-case decisionmaking.109 Also, the
1997 NIH guidelines had accepted that high ALT levels indicated when an
infected person needed treatment. Conversely, revised guidelines find a liver
biopsy to be the best indicator for treatment decisions, even though the proce110
dure is not recommended for all HCV-infected persons. What’s more, even
persons with normal ALT levels should receive individualized treatment
decisions.111 Although the 2002 national guidelines liberalized eligibility criteria
for HCV care, several prison systems have maintained the restrictive provisions
from 1997.
The failure of some prison systems to update HCV protocols in light of
current standards of care is unreasonable. For example, a common HCV
prison policy requires that inmates be drug free for at least six months before
receiving HCV treatment, and it mandates substance abuse treatment for anyone
with a drug-use history.112 Another common prison policy requires that HCVinfected inmates exhibit elevated ALT levels at several intervals before being
108.
See NIH GUIDELINES 1997, supra note 91.
109.
Compare id., with NIH GUIDELINES 2002, supra note 6.
110.
See AASLD GUIDELINES, supra note 2, at 1150–51; see also Sterling et al., supra note 3,
at 320 (“In the absence of a liver biopsy, treating those inmates with elevated ALT is an acceptable,
but less-effective alternative.”).
111.
AASLD GUIDELINES, supra note 2, at 1155.
112.
See, e.g., N.Y. DEP’T OF CORR., HEPATITIS C PRIMARY CARE PRACTICE GUIDELINE (2004);
COLORADO DEP’T OF CORR., HEPATITIS C: GASTROENTEROLOGY (2000); MONT. DEP’T OF CORR.,
HEALTH SERVICES STANDARD OPERATING PROCEDURES: HEPATITIS C (2002); VA. DEP’T OF
CORR., STANDARD TREATMENT GUIDELINES HEPATITIS C (2002). Several state prison system
guidelines are collected on the website of the National HCV Prison Coalition, http://hcvinprison.org/
new/state_guidelines.html (last visited Oct. 17, 2006).

Hepatitis C in Prisons

483

qualified for treatment.113 It is also not unusual for prisons to set minimum
incarceration periods for an inmate to be eligible for treatment.114 Finally,
many prison systems reportedly offer limited HCV screening of inmates to
investigate their risk factors, fail to test at-risk inmates, and restrict the use of
liver biopsies as a method of determining timely treatment interventions.115
Current standards of care do not endorse blanket policies that limit drug
users’, or individuals with other comorbid conditions, access to HCV care.
While ALT levels are an indicator of the severity of the disease, current standards of care do not specify specific ALT levels over a period of time as a trigger
for particular treatment interventions; rather, elevated ALT levels over time
are merely one factor for evaluation. The appropriateness of the minimumsentence policy is less clear, but at the very least, individualized care suggests
evaluation for care even when an individual’s incarceration period is brief.
The limitations on care resulting from application of restrictive HCV
protocols have prompted prisoners to challenge these barriers. While seeking
to enforce rights to basic healthcare, these challenges invite the legal and
correctional systems to weigh the medical and public health implications of
HCV in prisons.

II.

EIGHTH AMENDMENT LITIGATION TO EXPAND
HEPATITIS C CARE

HCV-infected inmates have challenged barriers to HCV care on Eighth
Amendment grounds, arguing that prison policies and practices do not meet
constitutional guarantees of basic medical care. Although the Eighth
Amendment was not interpreted originally to stand for a right to medical
113.
See, e.g., VA. DEP’T OF CORR., supra note 112.
114.
See McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004); Correctional Systems, supra note 36,
at 2–4 (describing the minimum-incarceration-period policy for receiving medical treatment).
115.
In 2003, the CDC issued guidelines for addressing HCV in prisons. Among other things,
the CDC recommended testing of any inmates reporting a history of injection drug use. Ctrs. for
Disease Control & Prevention, Prevention and Control of Infections with Hepatitis Viruses in Correctional
Settings, MORBIDITY & MORTALITY WKLY. REP., Jan. 24, 2003, at 24, available at http://www.cdc.gov/
mmwr/PDF/rr/rr5201.pdf. The data on HCV testing and treatment in prisons contains unclear
results. See ALLEN J. BECK & LAURA MARUSCHAK, BUREAU OF JUSTICE STATISTICS, SPECIAL
REPORT: HEPATITIS TESTING AND TREATMENT IN STATE PRISONS 1 (Apr. 2004), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/httsp.pdf. In a recent Bureau of Justice Statistics survey, 79
percent of state prisons claimed to have an HCV testing policy. The majority of HCV tests, however,
were conducted in twenty-three states, leaving it unclear whether other state prison systems are
conducting HCV tests. While 70 percent of state prisons reported having a treatment policy,
roughly two-thirds of inmates receiving HCV treatment were from only nine state prison systems.
See id. at 1–3. The statistics also do not seem to match anecdotal reports that prison systems are not
sufficiently screening and testing for the disease. See supra note 37.

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care,116 the Court stated in a 1958 case, Trop v. Dulles,117 that the Eighth
Amendment “must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society.”118 On this basis, the Court later
found, in Estelle v. Gamble,119 that prisons have an affirmative duty to provide
120
inmates with adequate medical care. The Court, however, circumscribed
the right by articulation of the “deliberate indifference” standard,121 requiring
that prison officials consciously disregard a prisoner’s serious medical needs to
122
establish an Eighth Amendment violation. In other words, “adequate” medical care is defined by the seriousness of the prisoner’s medical needs and the
subjective state of mind of prison officials providing care.
Prisoners’ rights litigation for adequate medical care is confronted by
several obstacles. The deliberate indifference standard itself is a stringent test
for prisoners seeking expanded medical care. Courts are also hesitant to order
expanded medical care due to deference to prison policy, a principle that considers prison officials most competent to manage prison affairs. And even if
prisoners establish an Eighth Amendment violation, the qualified immunity
defense may bar prisoners from obtaining relief.123 Moreover, adequate-medicalcare claims proceed in a political climate that questions the legitimacy of much
prisoner rights litigation. The Prison Litigation Reform Act of 1995,124 for
example, enacted significant constraints on prisoners’ ability to bring Eighth
Amendment claims and on courts’ power to consider such claims.125
116.
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
117.
356 U.S. 86 (1958).
118.
Id. at 101.
119.
429 U.S. 97 (1976).
120.
Id. at 104. Although only Justice Stevens’s dissent made reference to the “State’s duty
to provide adequate medical care,” id. at 109 (Stevens, J., dissenting) (emphasis added), the Court
has accepted that prisons have “a constitutional obligation . . . to provide adequate medical care
to those whom it has incarcerated.” West v. Atkins, 487 U.S. 42, 54 (1988).
121.
Estelle, 429 U.S. at 104. Deliberate indifference is also the standard in failure to protect
and conditions of confinement cases. See, e.g., Wilson v. Seiter, 501 U.S. 294, 303 (1991).
122.
See Farmer v. Brennan, 511 U.S. 825 (1994); Wilson, 501 U.S. 294.
123.
The qualified immunity doctrine is available as a defense for government officials
performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (explaining
prison officials are entitled to qualified immunity when their acts do “not violate clearly established
statutory or constitutional rights of which [a] reasonable person would not have known”).
124.
Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, tit. VIII, 110 Stat.
1321-66 (2006).
125.
Prisoners’ Eighth Amendment claims of inadequate medical care are brought under 42 U.S.C.
§ 1983, which allows prisoners to sue any person who, under color of state law, deprives them of their
constitutional or statutory rights. 42 U.S.C. § 1983 (2000). Congress sought to reduce prisoners’
rights litigation by enacting the PLRA. See Brian J. Ostrom et al., Congress, Courts and Corrections: An
Empirical Perspective on the Prison Litigation Reform Act, 78 NOTRE DAME L. REV. 1525, 1526 (2003)
(attributing a 40 percent decrease in prisoner lawsuits, as of 2000, to the PLRA). The PLRA succeeded

Hepatitis C in Prisons

485

The deliberate indifference standard and deference to prison policy, along
with other obstacles to prisoner litigation,126 limit prisoners’ ability to
challenge inadequate HCV care by bringing Eighth Amendment litigation.
When prisons follow HCV policies, courts have been hesitant to infer the
reckless disregard to medical needs required to show deliberate indifference.
Courts have likely felt an impulse to defer to prison officials’ healthcare policies amidst medical uncertainty about appropriate HCV care in particular
circumstances.127 As a result, courts generally have chosen not to intervene
rather than to address prison policy as a barrier to HCV care.
However, current standards of care advance individualized patient care
as a principle to mediate the medical uncertainty surrounding HCV care.
This suggests that courts may become more willing to find deliberate indifference when prison officials follow HCV protocols in a manner inconsistent
with current standards of care. To grasp the dynamics of Eighth Amendment
litigation in HCV cases, the deliberate indifference standard and deference to
prison policy must first be outlined. A review of HCV cases demonstrates
courts’ reluctance to find deliberate indifference when prisons follow policy
amidst HCV medical uncertainty. However, the recent Second Circuit case,
Johnson v. Wright, offers an alternative perspective on deliberate indifference
that invites courts to expand HCV care when prisons follow HCV policy in
violation of professional standards of individualized care.128

by, among other things, mandating exhaustion of administrative remedies before inmates may
proceed with § 1983 claims, restrictions on attorneys’ fees, and a “three-strikes” provision barring
lawsuits after a prisoner had three previous claims dismissed. The PLRA is also conceptualized as a
device that takes away courts’ ability to reform prisons. See generally John Boston, The Prison
Litigation Reform Act: The New Face of Court Stripping, 67 BROOK. L. REV. 429 (2001). However, a
court may hear a prisoner’s inadequate-medical-care claim, despite a prisoner having three strikes for
previous dismissed claims, when the prisoner “is under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g) (2000). Courts have found that a prisoner’s allegations of a failure to provide
adequate care for HCV satisfies the “imminent danger” exception and allows a court to hear the
claim. Ibrahim v. District of Columbia, No. 05-5370, 2006 U.S. App. LEXIS 22841, *8–*9 (D.C.
Cir. Sept. 8, 2006); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).
126.
In addition to the PLRA, prisoners often lack legal representation and struggle to bring
claims on a pro se basis. Further, even if a court hears a prisoner’s claim, legal standards in prisoners’
rights cases place high thresholds on inmates, and prisoners’ success rates are accordingly low. See
generally Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555 (2003).
127.
See, e.g., Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988) (“It is the rare case in
which a court should venture forth to establish medical procedures and guidelines in an area where
the medical profession has not yet been able to ascertain what they should be.”).
128.
Johnson v. Wright, 412 F.3d 398, 401 (2d Cir. 2005).

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A.

The U.S. Supreme Court’s Articulation of Prisoners’ Right to Adequate
Medical Care

1.

The Deliberate Indifference Standard

In Estelle v. Gamble, the Court established that a prisoner’s right to adequate medical care has been violated when prison officials exhibit “deliberate
indifference to serious medical needs.”129 The Court predicated the constitutional right to basic medical care on the fact that inmates stripped of liberty
130
are dependent on prisons to provide care. However, the Court emphasized
that “[t]his conclusion does not mean . . . that every claim by a prisoner that
he has not received adequate medical treatment states a violation of the
Eighth Amendment.”131 While stating that a prison official’s negligent failure
to provide adequate medical care does not constitute an Eighth Amendment
violation, the Court did not further define deliberate indifference.132
Subsequent case law elaborated on the meaning of the deliberate indifference standard. In Wilson v. Seiter,133 the Court determined that the deliberate
134
indifference standard applies in all prison conditions of confinement cases.
In discussing the deliberate indifference test, the Court stated that an inmate
must establish a “sufficiently serious” condition as a matter of objective
evaluation.135 Also, an inmate must show that prison officials acted with deliberate indifference, exhibiting a “sufficiently culpable [subjective] state of mind.”136
137
Ultimately, in Farmer v. Brennan, the Court specified that the requisite state
129.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
130.
Id. at 103–04 (“An inmate must rely on prison authorities to treat his medical needs; if
the authorities fail to do so, those needs will not be met . . . ‘[i]t is but just that the public be
required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for
himself.’”); see also DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 200
(1989) (“[W]hen the State by the affirmative exercise of its power so restrains an individual’s
liberty that it renders him unable to care for himself, and at the same time fails to provide for his
basic needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses . . . the
Eighth Amendment . . . .”) (emphasis added).
131.
Estelle, 429 U.S. at 105.
132.
The Court did indirectly explain deliberate indifference by providing a list of illustrative
cases. Id. at 104 n.10.
133.
501 U.S. 294 (1991).
134.
Id. at 303.
135.
See id. at 298. In medical-care cases, lower courts have found that a medical need is
serious when it is (1) diagnosed by a physician as requiring treatment; (2) “one that is so obvious that
even a layperson would easily recognize the necessity for doctor’s attention”; and, more broadly, (3) if
the condition may result in a life-long handicap or permanent injury. See generally 1 MICHAEL B.
MUSHLIN, RIGHTS OF PRISONERS 376–77 (3d ed., 2002).
136.
Wilson, 501 U.S. at 298.
137.
511 U.S. 825 (1994).

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of mind for proof of deliberate indifference is the criminal recklessness
standard of conscious disregard for a substantial risk of harm.138 To establish
an Eighth Amendment violation for inadequate medical care, an inmate
must show that “the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”139
The Court’s articulation of deliberate indifference understands adequate
medical care as a function of the subjective state of mind from which prison
officials provide care. In formulating an intent requirement as the test of
deliberate indifference, the Court sought to tie the right to medical care to the
Eighth Amendment’s prohibition on “inflictions of [cruel and unusual]
punishments.”140 At once progressive and conservative, the Court interpreted
the Eighth Amendment right to adequate medical care as proscribing medical
neglect while denying a cognizable claim for objectively inadequate care.141
The line between negligence and deliberate indifference, a constitutionally
excusable omission and an unconstitutional omission, has been drawn by reference to whether professional judgment was exercised with respect to an inmate’s
care. While negligence may suggest poor judgment, deliberate indifference is a
form of punishment that rises to the level of an Eighth Amendment violation
because it suggests medical neglect. Federal courts generally will not find deliberate indifference when a doctor is found to have exercised professional

138.
Id. at 836–37.
139.
Id. at 837.
140.
Id. at 841; see also Thomas K. Landry, “Punishment” and the Eighth Amendment, 57 OHIO
ST. L.J. 1607, 1619 (1996) (discussing the Court’s interest in linking the deliberate indifference
standard to the Eighth Amendment’s textual limitation to “punishment”).
141.
For arguments critiquing deliberate indifference as a subjective standard, see Farmer, 511
U.S. at 854–55 (Blackmun, J., concurring) (‘“Punishment’ does not necessarily imply a culpable state of
mind on the part of an identifiable punisher. A prisoner may experience punishment when he suffers
‘severe, rough, or disastrous treatment’ . . . regardless of whether a state actor intended the cruel
treatment to chastise or deter.”); Rhodes v. Chapman, 452 U.S. 337, 364 (1981) (Brennan, J.,
concurring) (“In determining when prison conditions [including medical care] pass beyond legitimate
punishment and become cruel and unusual, the ‘touchstone is the effect on the imprisoned.’” (quoting
Laaman v. Helgemoe, 437 F. Supp. 269, 323 (N.H. 1977))); Estelle v. Gamble, 429 U.S. 97, 116 (1976)
(Stevens, J., dissenting) (“[W]hether the constitutional standard [of the Eighth Amendment] has been
violated should turn on the character of the punishment rather than the motivation of the individual
who inflicted it.”); see also United States v. DeCologero, 821 F.2d 39, 43 (1st Cir. 1987) (defining
‘adequate’ medical care to mean “services at a level reasonably commensurate with modern medical
science and of a quality acceptable within prudent professional standards”); Michael Cameron
Friedman, Cruel and Unusual Punishment in the Provision of Prison Medical Care: Challenging the Deliberate
Indifference Standard, 45 VAND. L. REV. 921, 946–48 (1992).

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judgment regarding an inmate’s care, but they will find deliberate indifference
when prison officials choose not to provide care in conformity with that
judgment.142 If decisions about medical care are based on considerations
unrelated to professional standards, this can support a finding of deliberate
indifference.143 For example, courts may find deliberate indifference when the
medical care provided was the “easier and less efficacious treatment.”144 Some
circuits find that a claim of deliberate indifference is stated when necessary
145
medical care has been delayed for nonmedical reasons. Cost considerations,
for example, have generally been denied as a defense for withholding basic
medical care.146 Although objectively inadequate care is not itself enough to
establish an Eighth Amendment violation, objectively inadequate care that
flows from improper subjective motivation is covered by the deliberate
indifference standard. A failure to exercise professional judgment, based on
recognized current standards of care, should be a ground for finding deliberate
indifference.147
2.

Deference to Prison Policy and the Eighth Amendment

The Court has repeatedly affirmed principles of deference to prison
policymaking decisions, advising judicial restraint where prison administrators
142.
See Marc J. Posner, The Estelle Medical Professional Judgment Standard: The Right of Those
in State Custody to Receive High-Cost Medical Treatments, 18 AM. J.L. & MED. 347, 351–53 (1992)
(suggesting that a medical judgment cuts against a finding of deliberate indifference because
professional decisionmaking is driven by the patient’s best interest).
143.
See, e.g., Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (stating that “certain
instances of medical malpractice may rise to the level of deliberate indifference; namely, when the
malpractice involves culpable recklessness”).
144.
Estelle v. Gamble, 429 U.S. 97, 104 n.10 (1976) (quoting Williams v. Vincent, 508 F.2d 541
(2d Cir. 1974)).
145.
See, e.g., Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d
Cir. 1987) (“Short of absolute denial, ‘if necessary medical treatment [is] delayed for non-medical
reasons, a case of deliberate indifference has been made out.’” (quoting Ancata v. Prison Health Servs.,
Inc., 769 F.2d 700, 704 (11th Cir. 1985))).
146.
See, e.g., Farmer, 511 U.S. at 855 (Blackmun, J., concurring) (“Where a legislature
refuses to fund a prison adequately, the resulting barbaric conditions should not be immune from
constitutional scrutiny simply because no prison official acted culpably.”); Ancata, 769 F.2d at 705
(“Lack of funds for facilities cannot justify an unconstitutional lack of competent medical care and
treatment for inmates.”). But see Wilson v. Seiter, 501 U.S. 294, 302 (1991) (choosing not to rule
on the availability to prisons of a cost defense); see also Barbara Kritchevsky, Is There a Cost Defense?
Budgetary Constraints as a Defense in Civil Rights Litigation, 35 RUTGERS L.J. 483, 551–53 (2004)
(arguing that the Wilson decision encourages a cost defense).
147.
See Eric Neisser, Is There a Doctor in the Joint? The Search for Constitutional Standards for
Prison Health Care, 63 VA. L. REV. 921, 956–57 (1977) (“The state, at a minimum, must ensure that
decisions concerning the nature and timing of medical care are made by medical personnel . . . for
reasons that are purely medical.”).

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are the experts in security and punishment.148 In Turner v. Safley,149 the Court
extended informal principles of deference while explaining that protection of
prisoners’ rights is subject to a “lesser standard of scrutiny.”150 Under Turner,
“when a prison regulation impinges on an inmate’s constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.”151 Thus, the Turner standard seems to constrain courts’ power to enforce
152
prisoner rights.
When Eighth Amendment rights are at issue, however, the Court has
recently qualified its support for deference to prison policy. First, in Overton
v. Bazzetta,153 the Court upheld a prison policy restricting visitation privileges
for substance abuse violations. The Court applied the Turner standard only
in connection with the prisoner’s First Amendment claim. The Court did
not, however, apply the Turner standard when evaluating the inmate’s Eighth
Amendment claim, suggesting that Eighth Amendment standards are not
subject to Turner.154 Then, this past term in Johnson v. California,155 the Court
more clearly limited the applicability of deference to prison policy depending
on the right at issue. Finding the Turner standard inapplicable to the evaluation of prisoners’ Fourteenth Amendment right to be free from race discrimination, the Court in Johnson explained that deference is not required when the
right “is not [one] that need necessarily be compromised for the sake of proper
prison administration . . . [and] also bolsters the legitimacy of the entire
criminal justice system.”156 The Court then noted that “[f]or similar reasons, we
have not used Turner to evaluate Eighth Amendment claims of cruel and
unusual punishment in prison [because we] judge violations of that Amendment
under the ‘deliberate indifference’ standard, rather than Turner’s ‘reasonably
157
related’ standard.”
Therefore, when the Eighth Amendment is at issue, no countervailing
standard of deference controls the enforcement of those rights because the
148.
See, e.g., Bell v. Wolfish, 441 U.S. 520, 521 (“Prison administrators should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.”).
149.
482 U.S. 78 (1987).
150.
Id. at 81.
151.
Id. at 89.
152.
Id. (“[S]uch a standard is necessary if ‘prison administrators . . . , and not the courts, [are]
to make the difficult judgments concerning institutional operations.’” (quoting Jones v. North
Carolina Prisoners’ Union, 433 U.S. 119, 128 (1977))).
153.
539 U.S. 126 (2003).
154.
Id.
155.
543 U.S. 499 (2005).
156.
Id. at 510–11.
157.
Id. at 511.

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very purpose of the Eighth Amendment is to ensure the constitutionality of
punishments.158 Whereas institutional security and safety may call for greater
deference in certain cases, the Court has recognized that provision of adequate
medical care will rarely compromise other administrative objectives.159 The
Court effectively has found that legal challenges to the adequacy of medical
care should be judged against existing Eighth Amendment standards without
160
special deference to prison policy.
B.

The Limits of Hepatitis C Litigation

HCV-infected inmates have challenged prison policies and practices by
arguing that prison failures to screen, test, monitor, or treat HCV constitute deliberate indifference. Courts have been reluctant to question prisons’ HCV care in
these cases. Just as courts express unwillingness to become engaged in prison
management, courts are likely hesitant to intervene in disputes about prison healthcare policies because they are not experts in medicine or public health.161 This
concern about legitimate intervention is compounded where existing standards
of care are evolving and uncertain. As long as prisons have followed HCV
policies showing some medical judgment, courts generally have granted prisons
the benefit of the doubt and denied prisoners’ claims.162
1.

Failure to Diagnose Hepatitis C-Infected Inmates

Communicable disease control and individual treatment decisions
depend on identification of infected individuals. A majority of state prison
systems have been documented as conducting some form of HCV screening
and testing.163 Nevertheless, public health experts report that the scope of HCV

158.
Id. The special status of the Eighth Amendment belies “[m]echanical deference to the
findings of state prison officials . . . [as this] would reduce that provision to a nullity in precisely the context
where it is most necessary.” Id.
159.
See Wilson v. Seiter, 501 U.S. 294, 302 (“[T]he State’s responsibility to attend to the
medical needs of prisoners does not ordinarily clash with other equally important governmental
responsibilities.” (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986))).
160.
See Johnson, 543 U.S. at 510–11.
161.
See Scott Burris, Prisons, Law and Public Health: The Case for a Coordinated Response to
Epidemic Disease Behind Bars, 47 U. MIAMI L. REV. 291, 327 (1992).
162.
Because much prison litigation is either unpublished or subject to “no-citation rules,” some
citations in this Comment are to LEXIS or to the Federal Appendix. It is important to note that nocitation rules raise issues of judicial accountability, the value of precedent, due process, and free speech.
See generally JESSIE ALLEN, THE RIGHT TO CITE: WHY FAIR AND ACCOUNTABLE COURTS SHOULD
ABANDON NO-CITATION RULES (2005), available at http://www.brennancenter.org/resources/ji/ji6.pdf.
163.
See BECK & MARUSCHAK, supra note 115, at 1.

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491

testing has been limited relative to the high prevalence of the disease.164
Although courts have found a failure to screen and test inmates for diagnosis
of communicable diseases to demonstrate deliberate indifference,165 courts tend
to give prisons wide latitude to implement screening and testing procedures.166
Screening and testing cases have focused on delays in treatment that
resulted from prison failures to screen or test HCV-infected inmates. For the
most part, courts have avoided the question of deliberate indifference by asking
whether a delay in HCV diagnosis caused actual harm to the inmate. For
instance, in Graham v. Wright,167 the inmate exhibited elevated ALT levels—an
168
indication of possible HCV infection—but was not tested for HCV. After
testing HCV-positive in 2001, and suffering a delay in treatment until 2003,
Graham did not respond to therapy. The Second Circuit evaluated the
inmate’s deliberate indifference claim by inquiring into the impact of the
delay on the inmate’s well-being.169 In denying the claim, the court reasoned
that the inmate could not prove he would have responded to earlier treatment.170
In applying this reasoning, the court found that the effect of the delay was
dispositive for determining the seriousness of the medical need. Lost in the
discussion was the fact that the inmate should have been tested and treated for
HCV several years earlier. In focusing on the inmate’s low probability of response
to earlier therapy, the court did not address the source of the delay in the prison’s
failure to properly screen and test the inmate. Several other courts have followed
this approach when prisons have failed to identify an inmate’s HCV infection.171
Thus, medical uncertainty as to a patient’s probability of treatment response has
become a defense to treatment delays that result from failures to identify the disease.
164.
See supra Part I.B.
165.
See, e.g., Laaman v. Helgemoe, 437 F. Supp. 269, 312 (D.N.H. 1977).
166.
Compare Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) (upholding state prison
system’s mandatory HIV testing policy), with Jarrett v. Faulkner, 662 F. Supp. 928 (S.D. Ind. 1987)
(refusing to order mass HIV testing for all Indiana prison inmates).
167.
Graham v. Wright, No. 01 Civ. 9613 (NRB), 2004 U.S. Dist. LEXIS 15738 (S.D.N.Y.
Aug. 9, 2004).
168.
Graham had ALT levels that were one and a half and three times normal in 1991 and 1992,
respectively. In an additional test in 1998, Graham was two times above normal levels. Id. at *5–*7.
169.
Id. at *12 (“[I]t is appropriate to focus on the challenged delay or interruption in treatment
rather than the prisoner’s underlying medical condition alone. . . .”).
170.
Id. at *15–*16. Because Graham failed to respond in 2003 to updated forms of therapy
with 30 percent success rates, the court reasoned that Graham was unlikely to have responded if he
was diagnosed earlier when therapy had only a 5 percent success rate. Id.
171.
See Hamlin v. Prison Health Servs., No. Civ.03-169-B-W, 2004 U.S. Dist. LEXIS 25865
(D. Me. Dec. 22, 2004) (finding that a prison official may have been negligent in not ordering timely
HCV tests, but not finding deliberate indifference since no harm to the inmate resulted from
diagnostic delay); Love v. Taft, 30 F. App’x 336, 337–38 (6th Cir. 2002) (holding no deliberate
indifference because inmate failed to show “actual detrimental effect” even though inmate had elevated
liver enzymes in 1994 and was not diagnosed with HCV until 2000).

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54 UCLA LAW REVIEW 465 (2006)
Failure to Monitor or Treat Hepatitis C-Infected Inmates

Medical treatment decisions require regular supervision of disease
progression and individualized evaluation of factors that qualify patients for
treatment. In cases that concern monitoring disease progression, prisoners
have sought redress of prison failures to perform liver biopsies as a way to
evaluate inmates’ qualification for treatment. Courts have usually restricted
their inquiry to whether prisons acted in compliance with their own protocols, finding compliance tantamount to professional medical judgment. For
example, in an Iowa state prison case, Charette v. Duffy,172 the court relied on
the prison’s adherence to its protocol in finding no deliberate indifference
when an inmate was denied a liver biopsy. The Iowa protocol—like that of
many other state prison systems—required that an inmate have ALT levels
several times above the normal limit to qualify for a liver biopsy.173 Although
the inmate had significantly elevated ALT levels, he did not meet the levels
set by the protocol.174 After reviewing evidence showing medical disagree175
ment about whether a biopsy was appropriate, the court determined that
176
such “differences of opinion” did not constitute deliberate indifference.
The court situated its judgment within the medical uncertainty about HCV
care, noting that standards of care are “continuing to evolve” and that biopsies
are not necessary for treatment in every case.177 The court then endorsed the
prison’s following of its HCV protocol: “Given the state of knowledge regarding
Hepatitis C and its treatment during the period in question, the court finds it
was reasonable and appropriate for the [prison] to utilize the protocol it had
172.
Charette v. Duffy, No. C03-0023-MWB, 2004 U.S. Dist. LEXIS 15094 (N.D. Iowa
Aug. 4, 2004).
173.
Id. at *10–*15.
174.
Id. at *10–*11.
175.
Id. at *20–*41. The court considered the expert testimony of two doctors. The
prison’s expert discussed the slow course of the disease and the low percentage of patients needing
treatment. He also argued that Charette could not use his elevated ALT levels as evidence of a
serious medical need because “ALT values can not be used as a reliable, surrogate indicator for
progressive liver disease from HCV.” Id. at *37. Interestingly, Charette was requesting a liver biopsy
precisely so that he could determine the seriousness of his medical need. On the other hand, Charette’s
expert criticized the policy that an inmate must exhibit elevated ALT levels on several occasions to
receive a liver biopsy. Id. at *24 (quoting Charette’s expert as saying, “People with ongoing . . . hepatitis
C infection may have enzyme levels that fluctuate between normal and high. The medical question is
not, ‘Are they high today?’, the medical question is ‘Have they been high?’”).
176.
Id. at *50.
177.
Id. Other courts, too, have downplayed the severity of delays in providing biopsies and
cited challenges of prison management to explain the delays. See, e.g., Zimmerman v. Prison Health
Servs., 36 F. App’x 202, 203 (2002) (“[T]he evidence presented to the district court here suggested
that the delayed biopsy stemmed not from deliberate indifference but rather bureaucratic obstacles
and perhaps negligence—scheduling difficulties, prison staff errors . . . and Zimmerman’s transfer . . . .”).

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493

developed . . . .”178 Although courts acknowledge that denials or delays of a
liver biopsy are “conservative” courses of treatment,179 courts rarely have
180
mandated more aggressive HCV care.
Treatment cases reveal that prisoners may be disqualified from treatment
by the operation of several provisions within HCV protocols. In McKenna v.
Wright,181 the New York Department of Corrections (DOCS) refused the
inmate’s request for HCV treatment under two different policies. First, prison
policy denied treatment to any inmate that would not be in prison for longer
than twelve months. As McKenna was scheduled to have a parole hearing in
less than a year, HCV treatment was denied. Second, after denial of parole,
McKenna was denied treatment based on a policy stating that any former
drug-using inmate had to enroll in and ultimately complete substance abuse
treatment before being eligible for HCV treatment. The following year, a
prison doctor informed McKenna that he no longer qualified for treatment
because he had untreatable, decompensated cirrhosis. Another doctor later determined he had treatable liver cirrhosis. When McKenna then sought treatment,
his request was again denied on the basis of the substance abuse policy. Although
McKenna finally enrolled in substance abuse treatment, the HCV progression
rendered him too weak to handle the side effects of treatment.182 The court
determined that the denial of treatment based on the twelve-month incarceration policy sufficiently stated a claim of deliberate indifference.183
Despite the McKenna court’s holding, other courts have tended to apply
minimal scrutiny to prisons that follow HCV treatment protocols.184 Other
178.
Charette, 2004 U.S. Dist. LEXIS 15094, at *53.
179.
See id. at *59–*60 (“While the course of treatment was conservative, allegations do not
rise to the level of deliberate indifference.” (quoting Sherrer v. Stephens, 50 F.3d 496, 497 (8th
Cir. 1994))); Joiner v. Johnson, No. 99-CV-00341, 2001 U.S. Dist. LEXIS 21645, at *25 (N.D. Tex.
July 23, 2001) (“[A]lthough plaintiff disagrees with . . . conservative treatment prison physicians
have provided for his Hepatitis C . . . this disagreement does not rise to the level of deliberate
indifference.”).
180.
See Jordan v. Delaware, No. 04-1334-KAJ, 2006 U.S. Dist. LEXIS 37983, at *16–*18
(D. Del. June 9, 2006); Thomas v. Bruce, 428 F. Supp. 2d 1161, 1170 (D. Kan. 2006). But see
Tatum v. Winslow, 122 F. App’x 309, 311–12 (9th Cir. 2005).
181.
386 F.3d 432 (2d Cir. 2004).
182.
Id. at 434–35.
183.
Id. at 437.
184.
For instance, in Bender v. Regier, 385 F.3d 1133 (8th Cir. 2004), a South Dakota prison
doctor believed that he was not authorized to order treatment in the absence of an HCV protocol.
After a protocol was adopted, the inmate became ineligible for treatment on the basis of three
policies: an inmate’s liver biopsy had to show Grade 2 and Stage 2 inflammation and fibrosis to
commence treatment; an inmate had to have eighteen months remaining on his sentence; and the inmate
had to exhibit drug and alcohol abstinence. In determining that prison officials committed no violation,
the court indicated that medical uncertainty resulting in prison failures to treat did not constitute
deliberate indifference: “The summary judgment record does reflect confusion or miscommunication

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circuits should find McKenna instructive, as the Second Circuit properly
found that following HCV policy alone does not insulate the prison from a
deliberate indifference claim.185 The McKenna case highlights that the deliberate indifference standard can allow for more searching scrutiny than many courts
have been willing to apply to HCV protocols, and that medical uncertainty
and deference to prison policy will not insulate prisons from liability.
C.

The Deliberate Indifference of Hepatitis C Protocols Applied
as Categorical Rules

Despite limited intervention by courts to date, a proper application of the
deliberate indifference standard demands that courts investigate the
appropriateness of HCV protocols according to current standards of HCV care.
Communicable-disease protocols are welcome developments insofar as they are
consistent with current standards of care and public health strategies. Protocols
become problematic when prison administrators adopt provisions that do not
conform to existing standards and then follow those provisions as categorical
rules of treatment. When this happens, protocols become barriers that filter
out candidates qualified for care. To the extent that prison officials ignore
standards of care in formulation and application of HCV protocols, this can
show deliberate indifference to prisoners’ medical needs. The Second Circuit’s
recent decision in Johnson v. Wright shows proper application of the deliberate
indifference standard and suggests an approach to challenge application of
HCV protocols as categorical rules.186
In Johnson, the court held that a denial of medical care dictated by
prison policy could constitute deliberate indifference where providing treatment
was determined to be the appropriate course of action.187 New York DOCS
denied an inmate, Johnson, HCV treatment based on a policy requiring that
inmates show no “evidence of active substance abuse.”188 Johnson was initially
approved for HCV therapy but was later denied after testing positive for
marijuana use. While physicians reiterated their recommendation that “Johnson
should be [treated] in spite of drug policy,” New York DOCS denied Johnson
treatment, citing the policy and concerns that an active drug user may fail to

among the medical professionals while the Department of Health protocol was being developed . . . . This
confusion does not establish an Eighth Amendment violation.” Id. at 1135–38.
185.
Compare McKenna, 386 F.3d at 437, with Neely v. McGarry, No. 03-CV-00616-EWN-PAC,
2006 U.S. Dist. LEXIS 42005, at *36–*37 (D. Colo. June 22, 2006).
186.
Johnson v. Wright, 412 F.3d 398, 401 (2d Cir. 2005).
187.
Id. at 406.
188.
Id. at 400–01.

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comply with the treatment.189 Johnson argued that New York DOCS’
mechanical application of the policy constituted deliberate indifference. The
court limited the scope of its inquiry, asking not whether the HCV protocol’s
substance abuse provision was unconstitutional per se, but rather whether
“application of the policy in plaintiff’s case” constituted deliberate indifference.190
Since the case concerned a summary judgment motion, the court was
able to moderate its opinion by framing the issue around the jury’s reasonable
factual inferences. Furthermore, the facts allowed the court to situate its
holding within existing Eighth Amendment law: A jury could conclude that
following prison policy showed a conscious disregard for Johnson’s medical
needs because doctors’ judgments that Johnson should be treated, in spite of
policy, gave prison officials notice that treatment was the appropriate care.191
The Johnson court’s rationale, however, permits a broader reading of Eighth
Amendment requirements, implying that adequate medical care demands individualized doctor-patient evaluations.
The Johnson court focused on the fact that prison officials “reflexively
rel[ied] on the medical soundness of the Guideline’s substance abuse policy” in
spite of notice from doctors that treatment was the right course of action.192
When discussing prison officials’ stated concerns about alcohol and drug-abusing
inmates’ ability to comply with treatment, the court produced its own
individualized evaluation of Johnson’s qualification for therapy.193 Most
importantly, the court noted that doctors did not believe that the generalcompliance concerns about drug users, nor Johnson’s positive test for marijuana
drug use, were sufficient reasons to withhold necessary treatment. The court
emphasized that “there is no evidence suggesting that the defendants took any
steps whatsoever to assure themselves that applying the Guideline in plaintiff’s
case was, in fact, a medically justifiable course of action.”194 Rather, prison
officials “simply assumed the medical soundness of following the Guideline in
plaintiff’s case.”195
189.
Id. at 402.
190.
Id. at 404.
191.
Id. at 406. Deliberate indifference can be found when prison officials ignore doctors’
treatment recommendations. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976); Gill v. Mooney,
824 F.2d 192, 196 (2d Cir. 1987).
192.
Johnson, 412 F.3d at 406.
193.
Id. at 404 (analyzing Johnson’s qualifications for HCV therapy based on a history of
missed appointments versus his past success on HCV therapy).
194.
Id. at 406.
195.
Id. In addition to mechanical application of a protocol, courts may find deliberate
indifference if prisons provide no guidelines for care. See Chimenti v. Kimber, 133 F. App’x 833, 835
(3d Cir. 2005) (finding prisoner stated a claim of deliberate indifference where the prison failed to
provide an approved HCV treatment because the prison lacked an HCV protocol).

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The Second Circuit was simply applying the existing deliberate indifference standard, finding deliberate indifference where prison officials ignored a
medical professional judgment. While confining its analysis to the individual
prisoner’s case, the court’s discussion of notice has potentially broader implications for HCV protocols that are inconsistent with current standards of care.
National HCV guidelines, acknowledged as authoritative, place prisons on
notice regarding the appropriate framework guiding professional judgments
for provision of HCV care. When prison officials or prison doctors are aware of
current standards of care—as well as of the dangers of deviating from those
standards—yet they deviate nonetheless by applying improper protocols, the
Johnson court’s holding supports the broad proposition that following a policy
rather than current standards of care can result in a finding of deliberate
indifference. Following protocol in such a situation represents a failure to
exercise professional judgment because individualized care is a fundamental
principle of medical judgment.196 If other circuits adopt the Second Circuit’s
approach to prison HCV policy, then prisons more likely will use treatment
protocols as guidelines, rather than as categorical rules that dictate improper
treatment decisions and eschew individualized care.197

III.

BEYOND DELIBERATE INDIFFERENCE:
RETHINKING LEGAL ADVOCACY FOR ADEQUATE MEDICAL CARE
AND PUBLIC HEALTH REFORM IN PRISONS
Even though the previous part understands the deliberate indifference
standard to proscribe HCV protocols applied as categorical rules and to
require individualized care, existing law limits courts to finding care unconstitutional only when inadequate care issues from subjective deliberate
indifference. Moreover, the judicial belief that courts are not capable institutionally of managing prisons does not disappear just because formal principles of
deference to prison policy are deemed inapplicable in Eighth Amendment rights
cases. As a result, courts are hesitant to order changes to prison healthcare
policies, especially where lingering doubts about appropriate care persist due
to medical uncertainty. When the stringent deliberate indifference standard,
the looming influence of deference to prison policy, and judges’ reservations
196.
See Neisser, supra note 147, at 959 (“Implicit in the concept that decisions affecting health
be made by qualified medical personnel is the requirement that these decisions be purely medical, that
is, made on an individual and professional basis.”) (emphasis added).
197.
Prisons have incentive to reform when subjected to close judicial scrutiny. See generally
Susan Sturm, Resolving the Remedial Dilemma: Strategies of Judicial Intervention in Prisons, 138 U. PA. L.
REV. 805 (1990).

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497

to intervene are considered in conjunction with a lack of political will
supporting prisoners’ rights, the hope for judicial oversight of prisons’ medical
and public health practices does not appear promising. Legal advocacy
organized solely around existing Eighth Amendment interpretations, rather
than around larger public health reform, will be limited in approach and
potential to advance prison reform.198 These observations suggest moving
legal advocacy beyond existing Eighth Amendment standards in two ways:
(1) by advancing arguments that “evolving standards of decency” call for
revising Eighth Amendment standards of adequate medical care to provide
more expansive treatment than is currently available under the deliberate
indifference standard; and (2) by developing broader policy arguments that
channel prisoner reentry proposals toward public health reform of prisons.
As a matter of constitutional interpretation, the Eighth Amendment has
been viewed by the Court in nonoriginalist terms: “[T]he words of the [Eighth]
Amendment are not precise, and . . . their scope is not static. The Amendment
must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society.”199 According to larger shifts in societal
thinking on humane treatment, the Court may expand the requirements and
prohibitions of the Eighth Amendment in line with contemporary values.200
At times, the Court’s references to evolving standards have featured in
opinions more as rhetorical flourish than substantive legal standard. But when
the Court eliminated the juvenile death penalty this past term in Roper v.
Simmons,201 the Court approvingly invoked the evolving standards framework
as a basis to redefine Eighth Amendment requirements.202
In Roper, the Court rejected a precedent established sixteen years earlier
that had found that the Eighth Amendment did not prohibit the juvenile
death penalty for offenders over sixteen years of age.203 What had changed?
The Court explained a two-step inquiry for determination of Eighth Amendment
rights according to contemporary standards of decency: First, the Court must
evaluate society’s opinion of a practice by reviewing “objective indicia of
[societal] consensus”; second, based upon the objective evidence, the Court must

198.
See Burris, supra note 161, at 332–33.
199.
Trop v. Dulles, 356 U.S. 86, 100–01 (1957).
200.
See Hudson v. McMillan, 503 U.S. 1, 8 (1992) (“[T]he [Eighth Amendment] claim is
therefore contextual and responsive to ‘contemporary standards of decency.’” (quoting Estelle v. Gamble,
429 U.S. 97, 103 (1976))).
201.
543 U.S. 551 (2005), overruling Stanford v. Kentucky, 492 U.S. 361 (1989).
202.
Id. at 574.
203.
Id.

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“exercise . . . independent judgment” to determine whether society has reached
consensus on acceptability of the practice.204
After reviewing state law and finding a national consensus against the
juvenile death penalty,205 the Court addressed “the overwhelming weight of inter206
national opinion against the juvenile death penalty.” Noting that “the United
States now stands alone in a world that has turned its face against the juvenile
death penalty,” the Court ruled the juvenile death penalty unconstitutional.207
Roper indicates that a change in societal consensus may alter Eighth
Amendment interpretation. While the Court has stated that “society does
not expect that prisoners will have unqualified access to health care,”208 the
evolving standards framework enables inquiry into whether society today
defines adequate care to provide more expansive care than the minimal
threshold currently required by the deliberate indifference standard. Whereas
in Roper the Court focused on legislative enactments as objective evidence of
consensus, adequate care for communicable diseases is a function not only of law,
but also of medicine, ethics, and public health.209 Even in the face of medical
uncertainty about appropriate standards of care, fundamental considerations
that transcend the aspects of any particular disease inform our current
understandings of adequate care. Medical ethics, disability rights protections,
and international law are instructive authorities for defining a societal consensus
on adequate care.
Legal advocacy has a role not only in articulating legal arguments that
employ the evolving standards framework, but also in advancing the evolution
of contemporary values itself. In addition to medical ethics, disability rights
protections, and international law, increasing interest in prisoner reentry
indicates a progressive shift in contemporary values that recognizes prisoners as
members of the community and sees failure to provide care to prisoners as
inimical to the community’s health interests.210 Even if prisoner-reentry
204.
Id. at 564 (“The beginning point is a review of objective indicia of consensus, as expressed
in particular by the enactments of legislatures that have addressed the question. This data gives us
essential instruction. We then must determine, in the exercise of our own independent judgment,
whether the death penalty is a disproportionate punishment for juveniles.”).
205.
Id. at 564–75.
206.
Id. at 578.
207.
Id. at 577.
208.
Hudson v. McMillan, 503 U.S. 1, 9 (1992).
209.
For a discussion on the relationships between law, medicine, and public health in defining
adequate care, see Lawrence O. Gostin, et al., The Law and the Public’s Health: A Study of Infectious
Disease Law in the United States, 99 COLUM. L. REV. 59, 79–80 (1999); Charity Scott, Why Law
Pervades Medicine: An Essay on Ethics in Health Care, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y
245, 263–79 (2000).
210.
See Jacobi, supra note 96, at 468–70.

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499

arguments are slow to change Eighth Amendment standards, legal advocacy
that spearheads the prisoner-reentry movement has the potential to advance
society further in the direction of a public health orientation toward prison
management and a harm-reduction approach toward individuals with drug
problems.211 The following discussion offers only a broad outline of such
arguments. Ultimately, the larger constitutional and policy implications of
HCV in prisons raises questions beyond deliberate indifference, encouraging
examination of the sustainability of existing drug and prison policy as well as
the construction of public health alternatives.
A.

Contemporary Standards of Adequate Medical Care

1.

Medical Ethics

Contemporary standards of adequate medical care depend not only on the
current knowledge and standards of care for a particular disease, but also on fundamental principles of human treatment. Whereas the law sets “ethical minimums,”
medical ethics aspires to “ethical maximums” for patient care.212 Although not
213
co-extensive, questions of medical ethics are often addressed by the law. The
law codifies basic principles of medical ethics, it is argued, when it “reflects an
emerging societal consensus over how the ethical balance ought to be weighed
between doctor and patient.”214 While medical ethics is a discipline fraught with
unsettled questions, there is consensus on certain basic principles for the provision
of adequate medical care.215 These basic principles of care guide medical
decisionmaking within the doctor-patient relationship. Medical ethics supports
application of these basic principles of medical care to the prison context.216
211.
Cf. Burris, supra note 161, at 329–30.
212.
See Scott, supra note 209, at 259–60. Medical ethics is “concerned with explaining,
evaluating, and analyzing relevant moral norms, concepts, principles, and theories in order to guide
decision making and policy formation in health care.” BRYAN HILLIARD, THE U.S. SUPREME
COURT AND MEDICAL ETHICS 7 (2004).
213.
See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997) (finding that a ban on assisted
suicide was constitutionally permissible); Washington v. Harper, 494 U.S. 210 (1990) (giving drugs
to an inmate against his will did not violate the inmate’s right to refuse medical treatment).
214.
Scott, supra note 209, at 263.
215.
The law has enshrined some of these basic principles, including the right of informed
consent and the right to refuse medical treatment. It has been noted that “[America] ha[s] never
agreed . . . that, ethically, every person who needs medical treatment ought to be able to get it.” Id. at 275.
That said, America has agreed that prisoners are entitled to basic medical care, and the critical question
raised in this Comment addresses the contours of that right.
216.
The American Correctional Health Services Association (ACHSA) has developed a
code of ethics for prison medical care. As its first principle, ACHSA’s Code of Ethics states, “The
correctional health professional should: Evaluate the inmate as a patient or client in each and every

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Standard medical practice typically defines a medical professional’s legal
duties to patients.217 Some argue that courts should “use [the professional]
standards [of associations] as evidence of a duty of care, since a physician’s
legal duty is primarily defined by medical custom.”218 National guidelines,
then, should be entitled to considerable weight in defining contemporary
standards of adequate medical care for a particular disease. Moreover, basic
principles of care have been found constitutive of the doctor-patient relationship. The American Medical Association (AMA) Code of Medical Ethics
states that “[w]ithin the physician-patient relationship, a physician is ethically required to use sound medical judgment, holding the best interests of the
patient as paramount.”219 This provision arguably implies a principle of individualized care, as a patient’s interests are served best by scientifically informed
judgment based upon a personalized assessment of risks and benefits.220
Medical ethics suggests that prison medical care must conform to current standards of care for particular diseases. Further, individualized care does
not mandate that medical professionals provide prisoners with particular
treatments, but rather that they structure the doctor-patient relationship in a
way that provides for a fair assessment of the risks and benefits of particular
interventions.221 Where prisons follow communicable-disease protocols as
categorical rules of treatment, they violate the medical consensus that individualized care is a constitutive principle of the doctor-patient relationship.

health care encounter.” American Correctional Health Services Association, Code of Ethics,
http://www.achsa.org/displaycommon.cfm?an=9 (last visited Oct. 17, 2006).
217.
A medical professional is expected to act “as other qualified professionals would act in the
same or similar circumstances.” GEORGE ANNAS, STANDARDS OF CARE 122 (1993).
218.
Id. at 126.
219.
The American Medical Association (AMA) Code of Medical Ethics describes its
principles as “standards of conduct which define the essentials of honorable behavior for the physician.”
AMA Code of Medical Ethics (June 17, 2001), http://www.ama-assn.org/ama/pub/category/2512.html.
In 2001, the AMA Code of Medical Ethics was revised, and the changes added to the Preamble—which
represents the most basic principles of medical care—are particularly notable:
VII. A physician shall recognize a responsibility to participate in activities contributing
to the improvement of the community and the betterment of public health.
VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
IX. A physician shall support access to medical care for all people.
Id. (emphasis added).
220.
See supra Part I.
221.
This argument suggests consensus on the appropriate manner to approach medical decisions,
as distinguished from consensus on separate questions of access. Cf. Scott, supra note 209, at 263.

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2.

501

Disability Law and Policy

As already discussed, the Eighth Amendment’s conception of adequate
medical care is unduly narrowed by the deliberate indifference standard’s
focus on the subjective motivation of prison officials. Antidiscrimination law,
however, offers to expand the Eighth Amendment’s conception of adequate
medical care by incorporating its principles of nondiscrimination in the provision of health services to disabled persons. Where the Americans with
Disabilities Act (ADA), like medical ethics, promotes individualized treatment,
adequate medical care for prisoners is recast to guarantee fair treatment for
disabled inmates.
When enacted, the ADA responded to a history of unconstitutional
treatment against the disabled with a “comprehensive national mandate” to
end discrimination.222 Title II of the ADA prohibits discriminatory denials of
223
public services to disabled persons by any “public entity.” State prison systems
plainly fall within the statute’s definition of “public entity.”224 Moreover, the
ADA explicitly requires nondiscrimination in access to health services for
225
Disability law reflects a consensus against
current and former drug users.
withholding medical care or other services on the basis of an individual’s
disability, including communicable-disease infection, mental illness, or druguse status.226
The courts have applied a rule of deference to public health authority in
enforcement of ADA protections.227 After an individual establishes disabilitybased exclusion, the ADA provides a direct-threat defense that releases a public
entity from making reasonable accommodations if this would result in significant
222.
42 U.S.C. § 12101(b)(1) (2000). The Americans with Disabilities Act (ADA) prohibits
discrimination against anyone with “(A) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (B) a record of such impairment; or (C) being
regarded as having such an impairment.” Id. § 12102(2).
223.
Id. § 12132.
224.
Id. § 12131(1)(3); see also Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) (holding
that ADA Title II protects state prison inmates).
225.
Id. § 12132; see also id. § 12210(c) (“Notwithstanding [ADA sections excluding current
illegal drug use from protection], an individual shall not be denied health services, or services provided in
connection with drug rehabilitation, on the basis of the current illegal use of drugs if the individual is
otherwise entitled to such services.”) (emphasis added).
226.
See 28 C.F.R. § 35.130(b)(8) (2005) (“A public entity shall not impose or apply eligibility
criteria that screen out or tend to screen out an individual with a disability or any class of individuals
with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can
be shown to be necessary for the provision of the service, program, or activity being offered.”); see also
Alexander v. Choate, 469 U.S. 287, 300 (1985).
227.
See Samuel R. Bagenstos, The Americans with Disabilities Act as Risk Regulation, 101 COLUM.
L. REV. 1479, 1490–1503 (2001).

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risk to the health and safety of others228 or the disabled individual.229 In
analyzing the direct-threat defense, the Court has established that “courts
normally should defer to the reasonable medical judgments of public health
officials.”230 Deference to public health authority mediates courts’ dual concerns
for protecting public safety while prohibiting stereotypical judgments that
disadvantage the disabled.231 Just as professional medical standards can indicate
a consensus on appropriate care practices, disability law points to public
health authority as an accepted societal standard for judging risk-based
justifications of institutional policies or practices that exclude the disabled.232
Significantly, the ADA complements the Eighth Amendment as a basis
for prisoners to challenge inadequate medical care by focusing on discriminatory
denials of care.233 HCV-infected prisoners, in particular, may be able to
establish a “qualified disability” and prove discrimination on the basis of
HCV status, substance abuse history, or mental illness.234 The prison policy at
issue in Johnson is a prime example of a policy ripe for ADA challenge since
the ADA prohibits the denial of medical services to former or current drug
users. Put simply, the New York state prison policy seems to contravene
explicit language of the ADA by unreasonably conditioning the provision of
HCV therapy on enrollment in, or completion of, a substance abuse treatment
program—effectively granting critical health care to individuals who have
never used drugs, while severely limiting health care availability or denying it
altogether to current or former drug users. Ultimately, the Eighth Amendment
can—and should—be read to require of prisons essentially the same thing as
the ADA: adequate care defined in part as nondiscrimination in provision of
health services to disabled inmates.235
228.
See 42 U.S.C. § 12182(b)(3); Bragdon v. Abbott, 524 U.S. 624, 648 (1998); Sch. Bd. of
Nassau County v. Arline, 480 U.S. 273, 287 (1987).
229.
See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).
230.
Arline, 480 U.S. at 288.
231.
See Bagenstos, supra note 227, at 1490–1503.
232.
See Bragdon, 524 U.S. at 650 (noting the “special weight and authority” of public
health agencies, including the CDC and the NIH, for evaluating disability exclusions).
233.
For a discussion on the complementarity of the ADA and the Eighth Amendment, see
generally James C. Harrington, The ADA and Section 1983: Walking Hand in Hand, 19 REV. LITIG.
435 (2000).
234.
Under ADA Title II, a person is a “qualified individual with a disability” when he is: (1)
an individual with a disability; and (2) eligible for the service provided by a public entity. 28 C.F.R.
§ 35.104 (2006). A prisoner’s HCV or other comorbid conditions may establish disability. See H.
REP. NO. 101-485(II), at 51 (1990); 28 C.F.R. § 35.104(1)(ii); Chevron, 536 U.S. at 77 n.2 (finding
that defendant did not dispute that HCV and related liver condition established plaintiff’s disability).
235.
In United States v. Georgia, 126 S. Ct. 877 (2006), the Court asked whether ADA Title II
validly abrogated the states’ Eleventh Amendment sovereign immunity as the statute applies to state prison
systems. While holding that Title II was a valid abrogation, the Court stated that Congress’s abrogation

Hepatitis C in Prisons
3.

503

International Human Rights Law and Adequate Medical Care

The majority in Roper affirmed that world opinion, while not controlling, is persuasive authority for U.S. constitutional interpretation: “It does not
lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other
nations and peoples simply underscores the centrality of those same rights
236
within our own heritage of freedom.” The Court in Roper pointed to the
national laws of other countries and international covenants that prohibit
the juvenile death penalty.237 Since adequate medical care has been a judicially defined right in the United States, international authorities with particular prohibitions or requirements for the administration of medical care are
instructive for defining evolving standards of adequacy.
Several international legal authorities support broader conceptions of
adequate medical care than that currently provided under U.S. constitutional
interpretation. International law expressly mandates that prisoners receive
medical care “of the same quality and standard as is afforded to those who are
not imprisoned or detained”238—a greater level of protection than required
under the deliberate indifference standard. In fact, international authority
supports a higher standard of care than the deliberate indifference standard in
several particular ways: obligations to screen inmates for diseases immediately
upon admission, access to specialists when needed, daily evaluations of sick

power applies solely to “conduct that actually violates the Fourteenth Amendment.” Id. at 882. In a
concurring opinion, Justice Stevens explained that the Fourteenth Amendment protects “basic
constitutional guarantees,” including those provided by the Eighth Amendment. Id. at 883 (Stevens, J.,
concurring) (quoting Tennessee v. Lane, 541 U.S. 509, 522–23 (2004)).
236.
Roper v. Simmons, 543 U.S. 551, 578 (2005). Since Roper and Lawrence v. Texas, 539
U.S. 558 (2003), the appropriate weight of international legal authority has become a central
question for an evolving-standards conception of constitutional law. See Roger P. Alford, Roper v.
Simmons and Our Constitution in International Equipoise, 53 UCLA L. REV. 1, 21–23 (2005); Anjuli
Willis McReynolds, What International Experience Can Tell U.S. Courts About Same-sex Marriage, 53
UCLA L. REV. 1073 (2006). Although the debate is beyond this Comment’s scope, that international
legal authority shall have some relevant place in defining evolving standards of adequate care is assumed.
237.
Roper, 543 U.S. at 575–78.
238.
Principles of Medical Ethics, G.A. Res. 37/194, at 211, Annex, U.N. GAOR, 37th Sess.,
Supp. No. 51, U.N. Doc. A/37/51 (Dec. 18, 1982) (“Principle 1: Health personnel . . . have a duty to
provide [prisoners] with . . . treatment of disease of the same quality and standard as is afforded to those
who are not imprisoned or detained.”); see also Basic Principles for the Treatment of Prisoners, G.A.
Res. 45/111, at 200, Annex, U.N. GAOR, 45th Sess., Supp. No. 49A, U.N. Doc. A/45/49 (Dec. 14,
1990) (“Prisoners shall have access to the health services available in the country without discrimination
on the grounds of their legal situation.”).

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prisoners, and special accommodations for female prisoners.239 International
authority also mandates necessary medical care irrespective of cost.240
The Court has viewed the Eighth Amendment right to freedom from
cruel and unusual punishment as conditional on society’s viewpoint with
respect to the proper treatment of prisoners, a highly stigmatized group. This
part has advanced the argument that proper treatment of prisoners cannot be
disconnected from contemporary standards of adequate medical care, as
defined by medical ethics, disability law, and international authority. Not only
does this argument suggest that contemporary standards require medical care to
meet current standards of care, but also that society is concerned with the
public health implications of adequate medical care for prisoners, including the
consequences of a failure to provide it.
B.

Prisoner Reentry and Public Health Reform of Prisons

When prisoners are viewed in relation to the community, the perspective on prisoners’ rights broadens to incorporate a larger spectrum of societal
values. Inadequate medical care is both a failure to respect prisoners’ individual rights and a failure to address the consequences for the community. This
approach conceptualizes the prison not only as a purveyor of punishment, but
also as a medical provider, a public health institution, and a part of the community itself. Legal advocacy is charged with articulating this conception of
the prison to advance public health reform of prisons.241
HCV care has been improved in some prison systems where legal advocacy has focused attention on prison management of the disease. After
Johnson, New York appropriately abandoned the requirement that former drug
users undergo substance abuse treatment.242 A class action lawsuit in Oregon

239.
Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc. A/CONF/611, at 11,
Annex I, E.S.C. res. 663C, U.N. ESCOR, 24th Sess., Supp. No. 1, U.N. Doc. E/3048 (July 31, 1957), amended
E.S.C. res. 2076, at 35, U.N. ESCOR, 62nd Sess., Supp. No. 1, U.N. Doc. E/5988 (May 13, 1977).
240.
Body of Principles for the Protection of All Persons Under Any Form of Detention or
Imprisonment, G.A. Res. 43/173, at 298, Annex, U.N. GAOR, 43rd Sess., Supp. No. 49, U.N. Doc.
A/43/49 (Dec. 9, 1988) (calling for necessary medical treatments irrespective of financial cost).
241.
For a discussion on the role of legal advocacy for advancing public health, see Burris,
supra note 161, at 332; Jacobi, supra note 96, at 469–70; Peter D. Jacobson & Soheil Soliman,
Litigation as Public Health Policy: Theory or Reality?, 30 J.L. MED. & ETHICS 224, 233–35 (2002).
242.
In spite of national guidelines, New York still requires a period of abstinence for current
drug users. See Memorandum from Lester N. Wright, M.D., MPH, Deputy Comm’r, to Facility
Health Servs. Dirs., Re: Hepatitis C Primary Care Practice Guideline (July 20, 2004), available at
http://hcvinprison.org/new/state_info/newyork_072004.pdf. For a discussion on other prison systems
changing HCV prison policy, see Mark Wilson, Oregon HCV Class Action Settled; Limitations
Period for Individual Damage Actions Tolled, PRISON LEGAL NEWS, Feb. 2005, at 14, available at

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505

resulted in a settlement establishing an independent panel of medical
professionals to review and revise the state prison system’s HCV protocols.243
And after a federal judge ordered a receivership to oversee reform of
California’s prison healthcare,244 California responded to the HCV crisis, likely
due to the increased judicial and public scrutiny, by committing resources for
screening, testing, and education.245 The bottom line is that litigation,
accompanied by courts’ willingness to scrutinize prison policy against Eighth
Amendment standards, has the potential not only to enforce constitutional
rights, but to mobilize prisons to voluntarily comply with national standards
246
and adopt policies that benefit the public health.
While these are promising developments, legal advocacy enhances the
potential to effect public health reform by facilitating the connection
between prisoners’ health and community health. Prisoner reentry provides a
frame that empowers this approach. Prisoner reentry aims to maintain public
safety while successfully reintegrating ex-offenders. Viewing the failure to
provide care to inmates as a public health problem encourages policy change
and mobilizes support for increased resources toward an otherwise invisible
constituency.247 In addition to supporting expanded health services, prisoner
reentry focuses attention on the need for discharge planning, providing prisoners with continuity of health services during the critical period of their
transition back into the community.248 Although recognized as necessary, discharge planning remains an underdeveloped public health measure.249 While
HCV legal advocacy has necessarily focused on challenging communicabledisease protocols as barriers to medical care, legal advocacy can advance
prison policies, such as discharge planning, by demanding both that prisons
provide adequate medical care and that they develop positive steps to address the
public health implications of communicable disease in prisons. Advocates

http://www.prisonlegalnews.org; Bob Williams, $50,000 HCV Settlement and New Treatment Protocol
Approved in Colorado, PRISON LEGAL NEWS, May 2004, at 7, available at http://www.prisonlegalnews.org.
243.
See State v. Anstett, 884 P.2d 1231 (Or. Ct. App. 2004).
244.
See Plata v. Schwarzenegger, No. C01-1351TEH, 2005 U.S. Dist. LEXIS 8878 (N.D. Cal.
May 10, 2005).
245.
See Assem. B. 296, 2005 Leg., 2005–2006 Sess. (Cal. 2005).
246.
See B. JAYE ANNO, CORRECTIONAL HEALTH CARE: GUIDELINES FOR THE MANAGEMENT
OF AN ADEQUATE DELIVERY SYSTEM 52 (2001), available at http://www.nicic.org/pubs/2001/017521.pdf.
247.
See Golembeski & Fullilove, supra note 1, at 1701; Jacobi, supra note 96, at 468.
248.
See Hammett et al., supra note 1, at 392–98; 1 NAT’L COMM’N ON CORR. HEALTH
CARE, supra note 98, at 63; Josiah D. Rich et al., Successful Linkage of Medical Care and Community
Services for HIV-Positive Offenders Being Released From Prison, 78 J. URB. HEALTH 279, 280 (2001).
249.
See Jacobi, supra note 96, at 469–70. Partnerships between prisons and public health
agencies have been recommended as a way to coordinate ex-offenders’ linkages to healthcare upon
release to the community. See 1 NAT’L COMM’N ON CORR. HEALTH CARE, supra note 98, at 64.

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should advance these arguments during settlement negotiations in the course
of litigation and by actively participating in broader policy discussions that
orient prisons toward the reentering prisoners’ needs.
Legal advocacy centered on prisoner reentry’s commitment to public
health reform also suggests the growing viability of a harm-reduction
approach to drug policy, aimed at mitigating the health consequences of drug
use. Harm reduction represents the public health perspective that a rational
drug policy must implement measures aimed at reducing the risk of harm to
drug users.250 In accepting that people use drugs and that the associated dangers
of drug use should be minimized, harm reduction diverges from current drug
policy’s orientation toward “zero tolerance.”251 Instead, harm reduction pursues
public health strategies of education, prevention, and treatment to inform drug
users about disease transmission risks, encourage use of safe injection practices,
and expand access to medical care.252 For instance, expanding drug-treatment
availability is part of harm-reduction philosophy since treatment both reduces
the number of injection drug users and, at the very least, educates drug users
about safer injection practices.253 Prisoner reentry discourse’s commitment to
public health, a commitment that challenges the sustainability of current
drug and prison policy, indicates a developing shift of societal values in support
of public health reform. Communities, elected officials, and correctional departments can no longer address the connected problems of communicable disease
and drug use just by locking it away.

250.
See Don C. Des Jarlais, Editorial: Harm Reduction—A Framework for Incorporating
Science into Drug Policy, 85 AM. J. PUB. HEALTH 10, 10–12 (1995).
251.
See EVA BERTRAM ET AL., DRUG WAR POLITICS 168 (1996). A zero-tolerance drug
policy is punitive in nature and imposes often severe penalties for noncompliance. Contrary to
harm-reduction policy, zero-tolerance drug policy is predicated on the judgment that drug use is a
moral failing that deserves stiff punishment. By identifying drug use as a moral failing and prioritizing
punishment over care, zero tolerance fails to address the root causes of use.
252.
See Des Jarlais, supra note 250, at 10–12 (describing a drug policy based on harm
reduction as “pragmatic” rather than judgmental).
253.
See Weber, supra note 72, at 641–44. Prisoners’ access to drug treatment is widely
unavailable even though need remains great; drug treatment works and is cost-effective. See id.
800,000 people in prisons need drug treatment, yet only 150,000 receive it. See NAT’L CTR. ON
ADDICTION AND SUBSTANCE ABUSE AT COLUM. UNIV., TRENDS IN SUBSTANCE ABUSE AND
TREATMENT NEEDS AMONG INMATES, at VI-3 to VI-8 (Aug. 2002), available at http://www.ncjrs.org/
pdffiles1/nij/grants/197073.pdf. Also, wider availability of needle exchange programs, proven to
reduce the spread of infectious diseases, promotes safer reintegration of prisoners that use drugs after
release. The AMA and American Bar Association both have adopted policies calling for the eradication of
legal barriers to needle exchange. See Letter from Robert E. Stein, Chair, AIDS Coordinating Comm.,
Am. Bar Ass’n (Jan. 28, 2000), available at http://www.ama-assn.org/ama1/pub/upload/mm/36/aba_letter.pdf.

Hepatitis C in Prisons

507
CONCLUSION

In 1991, the U.S. National Commission on AIDS stated that “by
choosing mass imprisonment as the federal and state governments’ response
to use of drugs, we have created a de facto policy of incarcerating more and
more individuals with HIV infection.”254 Fifteen years later, the same can be
said of HCV. HCV in prisons results from a conscious policy choice to incarcerate drug users. As long as drug use is penalized by incarceration, prisons
will be incubators of communicable diseases for which drug users have high
prevalence rates. Drug users need access to adequate health services.
Stereotypical attitudes toward drug users are likely to continue impeding necessary medical care and public health interventions. Furthermore, the rapid
growth of prison populations, aging inmates, and rising health care costs will
exert increasing pressure on prison health programs with limited resources to
meet medical needs.255
As HCV prevalence rates rise in the coming decade, courts will persistently be asked to resolve disputes involving the constitutionality of prison
medical care and to weigh in on communicable-disease policies with significant
public health implications. The deliberate indifference standard, courts’
deferential approach to prison management, and medical uncertainties may
limit the ability of prisoners’ litigation to initiate public health reform. Still,
the deliberate indifference standard empowers courts to require that prisons
institute evidence-based HCV protocols and apply protocols as guidelines for
individualized patient evaluations, rather than as categorical rules of treatment.
It remains an open question whether courts will realize that remedial power.
Finally, by framing the expansion of adequate medical care and public
health as a question of evolving contemporary values and wise prisoner reentry
policy, legal advocacy can improve access to necessary care while advancing
prison reform and public education on the HCV crisis. Current drug laws
and mass incarceration of drug users are unsustainable criminal justice practices
because both policies promote the widespread violation of prisoners’ constitutional right to adequate care and undermine public health approaches to drug
use and disease. A paradigm shift in drug and prison policy is needed in response.

254.
Ralf Jurgens, HIV/AIDS and Drug Use in Prisons: Moral and Legal Responsibilities of Prisons,
in DRUG USE AND PRISONS: AN INTERNATIONAL PERSPECTIVE 2 (David Shewan & John B. Davies
eds., 2000).
255.
For a discussion on the link between prison population growth, aging populations, and
ethical and financial implications for prison health services, see generally Felicia Cohn, The Ethics of
End-of-Life Care for Prison Inmates, 27 J.L. MED. & ETHICS 252 (1999).