Hepatitis C Litigation: Healing Inmates as a Public Health Strategy

The article explores the relationship between the Eighth Amendment (no cruel and unusual punishment) and the pursuit of public health goals. It asks whether Eighth Amendment legal analysis takes public health goals into account in determining whether inmates with infectious diseases are entitled to treatment, even where such treatment is very expensive. To this end, it considers the health impact of treating infected inmates on three distinct but overlapping populations: infected inmates; the total inmate population (mostly uninfected inmates); and the general population. In state after state, inmates infected with the hepatitis C virus (HCV) have challenged restrictive HCV treatment policies of state prison systems as violating the Eighth Amendment. The article focuses on two seminal decisions -- Stafford v. Carter (S.D. Ind.) and Hoffer v. Jones (N.D. Fla.) -- which invalidated the HCV-treatment policies of the Indiana and Florida prison systems, respectively. [Disclosure: the author is co-counsel for plaintiff-inmates in Stafford.] Indiana settled the case by committing to procuring up to $100 million on treatment. After the Florida prison system refused to settle, the Hoffer court enjoined the state to provide treatment. Curing people of infectious diseases has the side-benefit of protecting uninfected persons from infection. This occurs when inmates are treated for HCV, the most lethal infectious disease in the United States. HCV is more prevalent in prisons than the general population, and most HCV-infected inmates are ultimately released. According to public health experts, one of the most effective ways to combat the HCV epidemic is to cure HCV-infected inmates so that they cannot transmit the disease to others upon release. Society also benefits because it is less expensive overall to treat HCV before it progresses. Yet there is a potential hitch: to pay for expensive HCV treatments, prison systems may be tempted to divert resources from general inmate care. Expanding treatment may thus have the unintended consequence of reducing the total inmate population’s overall health. At the same time, states cannot avoid their constitutional duty to HCV-infected inmates by pleading inadequate resources. The solution is for courts to effectively compel state legislatures to appropriate additional sums for HCV treatment. The article sheds light on the relationship between the Eighth Amendment and public health goals. It demonstrates that in reaching their decisions, the Stafford and Hoffer courts did not expressly consider the health impacts of expanded treatment on either the total inmate population or the general population. The article also demonstrates how public health concerns factored into the Hoffer court’s decision to enjoin the state to treat infected inmates -- even pending a final adjudication that inmates are constitutionally entitled to such treatment. Hoffer shows that a court may consider how an injunction may affect the general population's health when deciding whether an injunction would serve the “public interest." The article advances responds to the question posed by Northeastern Law professor Wendy Parmet in her 2009 book Populations, Public Health, and the Law. There she wonders “what legal reasoning could or should look like if it accepted that public health protection was a critical goal of law.” The article extends Parmet’s project to the Eighth Amendment. This inquiry is positive in the same way that Chicago-school law and economics is positive: each tests the hypothesis that a certain field of law (Eighth Amendment health care; torts law) is employed—consciously or not—to yield outcomes that advance a larger good, be it public health or economic efficiency. The inquiry here is implicitly normative because it presumes that public health is a good that society should actively seek. It is also the first step towards explicitly normative work that considers whether and how Eighth Amendment analysis should internalize public health goals. In addition to contributing to scholarship, the article places valuable knowledge in the hands of people who can put it to good use. This category includes civil rights litigators and members of the correctional health officials, some of whom may be persuaded to treat infected inmates without awaiting the outcome of litigation.