The Ethics of End-of-Life Care for Prison Inmates

On release from prison, elderly persons are eligible for Medicare only if they are eligible for Social Security.

See SUPPORT Investigators, “A Controlled Trial to Improve Care for Seriously Ill Hospitalized Patients: The Study to Understand Prognoses and Preferences for Outcomes and Risks of Treatment (SUPPORT),” JAMA, 274 (1995): 1591–98.

It is beyond my scope to address barriers to improving end-of-life care in the general population. Among these barriers are cultural taboos against discussing or acknowledging death, inadequate end-of-life care funding mechanisms, limited medical education, clinical emphasis on therapeutic care, and a technological imperative. For additional information, see, for example, Lynn J. , “Defining the ‘Terminally Ill’: Insights from SUPPORT,” Duquesne Law Review, 35 (1996): 311–35; J. Lynn and The Center to Improve Care of the Dying, The Handbook for Mortals: Guidance for People Facing Serious Illness (New York: Oxford University Press, 1998); and Cohn F. Forlini J. , and Lynn J. , Advocates Guide to Better End-of-Life Care (Washington, D.C.: Americans for Better Care of the Dying, 1997).

See DeShaney v. Winnebago County Social Services Department , 489 U.S. 189, 206–07 (1989).

For further information, see Lynn J. , “Capitated Risk-Bearing Managed Care Systems Could Improve End-of-Life Care,” Journal of the American Geriatric Society, 46 (1998): 322–30. See also Cohn F. , State Initiatives in End-of-Life Care: Policy Guide for State Legislators (Washington, D.C.: National Conference of State Legislators, 1998).

See Shields K.E. and de Moya D. , “Correctional Health Care Nurses' Attitudes Toward Inmates,” Journal of Correctional Health Care, 4, no. 1 (1997): 37–59.

The attitudes and beliefs of inmates themselves may also function as barriers to developing end-of-life care programs in prisons. Inmates do not necessarily believe that prison officials and health care providers work toward inmate-patients' best interests. Further, inmates may believe that no is fate worse than dying in prison. Despite the fact that, for many inmates, dying in prison may be inevitable, they may resist efforts to develop programs that force them to admit this fact. The desires, needs, and attitudes of prisoners require further study.

Dubler N.N. and Heyman B. , “End-of-Life Care in Prisons and Jails,” in Puisis M. , ed., Clinical Practice in Correctional Medicine (St. Louis: Mosby, 1998): 355–64, at 364.

See Bureau of Justice Statistics Bulletin, Prisoners in 1998 (Washington, D.C.: Department of Justice, NCJ 175687, Aug. 1999): at 10. The Bureau of Justice Statistics Bulletin notes that inmate populations, ages forty and older, in federal and state prisons have increased from 19.7 percent in 1991 to 25.6 percent in 1997.

Deaths related to acquired immune deficiency syndrome (AIDS) affect prison populations of all ages. For data on AIDS-related deaths in prisons, see Hammett T.M. Harmon R. , and Maruschak L.M. , 1996–1997 Update: HIV/AIDS, STDs, and TB in Correctional Facilities (Washington, D.C.: National Institute of Justice, NCJ 176344, July 1999): at 11 tbl. 5 Inmates dying of AIDS need of end-of-life care. However, for my purposes, I want to focus specifically on end-of-life care in terms of the growing elderly prison population. Moreover, I do not address the related issue of chronic care, even though it applies here.

See Bureau of Justice Statistics, Correctional Populations in the United States, 1996 (Washington, D.C.: Department of Justice, NCJ 170013, Apr. 1999): at 16 tbl. 1.28. The latest figures available for federal and state facilities are for 1996, during which approximately 3,300 inmates died, excluding those who were executed. See id. at 1.

See “Nursing Homes Behind Bars: The Elderly in Prison,” Coalition for Federal Sentencing Reform Newsletter, 2, no. 1 (1998): 1–2.

See National Center on Institutions and Alternatives, Imprisoning Elderly Offenders: Public Safety or Maximum Security Nursing Homes?: Executive Summary (Alexandria: National Center on Institutions and Alternatives, Dec. 1998) available at <http://www.igc.org/sent/elder.html>. The report notes “great variation in how correctional systems define the elderly,” and that forty-four states and the Federal Bureau of Prisons have no official definition or classification system. Six states report an official classification and three states report an unofficial classification. Among these 9 states, 2 define elderly as age 50 years and over, 4 use 55, 1 uses 60, and 2 use 65. Id. at 1.

See Neeley C.L. Addison L. , and Craig-Moreland D. , “Addressing the Needs of Elderly Offenders,” Corrections Today, 59, no. 5 (1997): 120–23.

See Morton J.B. , An Administrative Overview of the Older Inmate (Washington, D.C.: Department of Justice, 1992): at 4.

See National Center on Institutions and Alternatives, supra note 13, at 2.

The estimated annual cost for adult inmates is $22,000. The figure cited for the elderly inmates is a matter of some controversy. See National Center on Institutions and Alternatives, supra note 13, at 2–3 n.6, citing Donziger S.R. , ed., The Real War on Crime: The Report of the National Correctional Justice Commission (New York: HarperPerennial Library, 1996).

See Faiver K.L. , Health Care Management Issues in Corrections (Lanham: American Correctional Association, 1997): at 131.

See Kant I. , Foundations of the Metaphysics of Morals, trans. Beck White L. (Indianapolis: Bobbs-Merrill, 1959); and Kant I. , The Doctrine of Virtue, part II of “Metaphysics of Morals,” trans. Gregor M. (Philadelphia: University of Pennsylvania Press, 1964).

Beauchamp T.L. and Childress J.F. , Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994): at 6.

Id. at 102.

The U.S. Supreme Court in DeShaney v. Winnebago Social Services Department, 489 U.S. 189 (1989), made its case on different grounds. See infra note 29 and accompanying text.

See Alexander S. , “They Decide Who Lives, Who Dies,” Life, Nov. 9, 1962, at 102–25.

See Pence G.E. , Classic Cases in Medical Ethics (New York: McGraw Hill, 2nd ed., 1995): at 293–313.

Uniform Network for Organ Sharing, Policies & Bylaws (visited Oct. 20, 1999) <http://www.unos.org/frame_Default.asp?Category=About>.

The provision of organs to prisoners remains controversial. From a medical perspective, the controversy has more to do with good medical candidacy and ability to adhere to the intensive medical maintenance regime than a determination of what the inmate deserves. Among members of the public, however, feelings of resentment exist. Some believe that prisoners should not receive organs when law-abiding citizens are in need. This controversy further points to the dilemma experienced by prison health providers and policy-makers.

See Rawls J. , A Theory of Justice (Boston: Harvard University Press, 1971).

Spike J. , “Iatrogenic Liver Failure, Transplantation, and Prisoners,” Journal of Clinical Ethics, 8 (1997): 398–404, at 400.

See DeShaney v. Winnebago County Social Services Department , 489 U.S. 189, 206–07 (1989) (citations and footnotes omitted).

See Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), cert. denied, 421 U.S. 948 (1975).

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).

Although Estelle guarantees prisoners access to health care, persons in the general population do not benefit from a similar guarantee.

Equality of treatment, however, is not to be interpreted as a guarantee of a high quality of treatment, only that all who are eligible have equal access to what is available.

See Dubler N.N. , ed., Standards for Health Services in Correctional Institutions (Washington, D.C.: American Public Health Association, 2nd ed., 1986).

The American Correctional Association's (ACA) “Public Correctional Policy on Correctional Health Care” was ratified by the ACA Delegate Assembly at the 117th Congress of Correction on August 6, 1987, and reviewed and amended at the Congress of Correction on August 23, 1996.

See Aristotle, Book V, Nicomachean Ethics, in Ross W.D. , ed., The Works of Aristotle (Oxford: Clarendon Press, Vol. IX, 1925). I do not address Aristotle's distinction between conventional and natural justice.

See Angola Prison Hospice: Opening the Door (documentary film, 1998).

See Seidlitz A. , “Fixin' To Die: Hospice Program Opens at LSP-Angola,” NPHA News, 5 (Spring 1998): 1, 3–5.

Some state laws do not differentiate between a perpetrator and an accomplice, for both can be charged with felony robbery.

Spike, supra note 28, at 400.

The relationship between criminal behavior and an array of societal factors is the subject of much study. For example, a number of studies link crime with drug use, unemployment, child abuse and neglect, sexual abuse, and class, though often without comment on causation. The Project on Human Development in Chicago Neighborhoods is an ongoing study that is examining myriad factors in the development of criminal behavior. Some factors under study include psychological and health characteristics and the influences of family, school, peers, and community. See NIJ Research Report, Breaking the Cycle (1994) (visited Oct. 7, 1999) <http://www.ncjrs.org/txtfiles/break.txt>.

Dubler N.N. , “The Collision of Confinement and Care: End-of-Life Care in Prisons and Jails,” Journal of Law, Medicine & Ethics, 26 (1998): 149–56, at 154–55.

See Russell M.P. , “Too Little, Too Late, Too Slow: Compassionate Release of Terminally Ill Prisoners—Is the Cure Worse than the Disease?,” Widener Journal of Public Law, 3 (1994): 799–855. See also Beck J.A. , “Compassionate Release from New York State Prisons: Why Are So Few Getting Out?,” Journal of Law, Medicine & Ethics, 27 (1999): 216–33: And Greifinger R.B. Commentary , “Is It Politic to Limit Our Compassion?,” Journal of Law, Medicine & Ethics, 27 (1999): 234–37.

Editorial, “Corrections of Attitudes to Prison Medicine,” Lancet, 351 (1998): 1372, at 1372.

Few data exist on the comparative costs of health care within and without prisons. Further study is necessary to determine where and how care is best provided to inmates.

According to Dr. Alvin Cohn, U.S. prisons and jails are approximately 125 percent overcrowded. This overcrowding has resulted in sentenced offenders being released early and/or diverted with pretrial offenders to alternatives to incarceration. See Personal Conversation with Alvin Cohn, Criminologist and President, Administration of Justice Services, Rockville, Md. (Aug. 10, 1999).

See National Hospice Standards and Accreditation Committee, Standards of a Hospice Program of Care (Arlington: National Hospice Organization, 1992).