Exploring a Prisoner's Eighth Amendment Right to Health Care by ProQuest

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									Journal of Nursing Law, Volume 13, Number 3, 2009

           Exploring a Prisoner’s Eighth Amendment
                     Right to Health Care
                                 Victoria A. Kellogg, PhD, CRNP, MBA

         Correctional nurses supply a substantial portion of a prisoner’s health care. In order to effectively
         provide this care, these health care providers need to understand a prisoner’s Eighth Amendment
         right to avoid cruel and unusual punishment. The author, in this article, provides nurses with an
         understanding of the Eighth Amendment by discussing the history of the Eighth Amendment,
         explaining the two-prong Estelle test for determining whether a prisoner’s Eighth Amendment right
         has been violated and exploring, through case law, common types of deliberate indifference identi-
         fied by LaFarge (2007) in A Jailhouse Lawyer’s Manual. Finally, the author offers a perspective on
         whether the Eighth Amendment will one day entitle prisoners with the right to complementary
         and alternative medicine.
         Keywords: Eighth Amendment; deliberate indifference; serious medical need; Estelle test; cruel
         and unusual punishment

         s the number of prisoners with health care           to fill this knowledge gap by (a) examining the his-
         needs increases, it is critical that correctional    tory of the Eighth Amendment, (b) discussing the two-
         nurses understand how the Eighth Amend-              prong Eighth Amendment test promulgated in Estelle v.
ment affects their practices. In 2007, approximately 2.3      Gamble (1976), and (c) providing case law examples of
million individuals were in federal and state prisons as      Eighth Amendment claims. The final section provides
well as local jails, an increase of about 2% from the pre-    a perspective on whether the Eighth Amendment pro-
vious year (West & Sabol, 2008). This statistic translated    vides prisoners with the right to complementary and
into 1 in every 198 U.S. residents serving a prison sen-      alternative medicine.
tence in either a federal or state prison in 2007 (West &
Sabol, 2008). Many of these individuals come to prison
                                                              HISTORY OF THE EIGHTH AMENDMENT
with health problems. For instance, a 2004 study found
38.5% of federal prisoners and 43.8% of state prisoners       The Eighth Amendment to the U.S. Constitution states:
reported having at least one medical problem (Mar-            “Excessive bail shall not be required, nor excessive
uschak, 2008). Furthermore, delineated by sex, women          fines imposed, nor cruel and unusual punishment
in this study reported more medical conditions than           inflicted.” A prisoner’s right to health care is gleaned
men (52.2% of women vs. 37.5% of men in federal pris-         from the phrase “nor cruel and unusual punishment
ons; 56.7% of women vs. 42.9% of men in state prisons)        inflicted.” This prohibition against the infliction of cruel
(Maruschak, 2008).                                            and unusual punishment can be traced back to the
   Correctional nurses are essential for meeting the          Bible. The Western expression “let the punishment fit
many health care needs of prisoners. In addition,             the crime” comes from the biblical saying “eye for eye,
unlike nurses practicing outside correctional facilities,     tooth for tooth, hand for hand, foot for foot, burning for
correctional nurses have a constitutional responsibil-        burning, wound for wound, stripe for stripe” (Exodus
ity to provide all prisoners with health care under the       21:24–25, King James Version) (Granucci, 1969). Later
Eighth Amendment. Yet many correctional nurses are            in history, the English Declaration of Rights of 1689 was
unaware of this constitutional responsibility and/or          the first document that actually included the phrase
what it means for their practices. In this article, I begin   “cruel and unusual punishment” (Granucci, 1969). The

78   •   Copyright © 2009 Springer Publishing Company
         DOI: 10.1891/1073-7472.13.3.78
                                                                                Kellogg    •   Eighth Amendment       •   79

United States later adopted the Declaration’s phrase           robbery and two counts of murder and was sentenced
into its Bill of Rights.                                       to death under Georgia law. Gregg appealed, arguing
   Although the Eighth Amendment was adopted in 1791,          that the death sentence amounted to cruel and unusu-
courts did not originally interpret the amendment as           al punishment. In affirming the sentence, the Court,
providing prisoners with a right to health care. Rather,       dovetailing with Trop’s dignity-of-man concept, stated
prisoners acquired the right to health care from the           that the inquiry into excessive punishment has two
convergence of three concepts: a broader interpretation        aspects: “First, the punishment must not involve the
of the Eighth Amendment, the inquiry into excessive            unnecessary and wanton infliction of pain. Second, the
punishment, and the common law right to health care            punishment must not be grossly out of proportion to
(Shields, 1995). Each of these concepts is discussed here.     the severity of the crime” (p. 173). Hence, the Eighth
   The development of the first concep
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