Trends in Inmate Health Law, COVID-19, Hepatitis C, & Transgender Issues - 2021 recap

Jail and prison staff need a clear understanding of evolving law—including inmate health law and emerging COVID-19 policies. In a webinar hosted by the American Jail Association and sponsored by LexisNexis®, Professor Margo Schlanger, JD, shared important legal updates and insights for corrections officers and administrators. 

Click here to download the complete complementary resource from LexisNexis. 

COVID-19 and the Criminal Justice System   

Schlanger recommends relying on the Centers for Disease Control and Prevention (CDC) and on AMEND, which provides training policy materials for people who run jails and prisons.  

As of Summer 2021, Schlanger said both organizations agree that jails and prisons still need masks, social distancing, some limits on cross-unit movement transfers and encouragement of vaccination by staff and inmates.  

“Nationally, jails and prisons are reporting 30% to 40% vaccination rates,” Schlanger said. “As long as the vaccination rate stays low, some of the precautionary measures that are tamping down transmission will have to stay in place in jails and prisons,” Schlanger says. 

Emerging best practices in jail and prison COVID-19 vaccine administration:  

• Ready availability 
• Communication by trusted intermediaries 
• Mandatory encounters to talk about the vaccine with the vaccine hesitant (without requiring vaccination) 
• Incentives 

Courts have been reluctant to impose liability for facilities that (a) were confused in the beginning of the pandemic, (b) have followed the CDC guidance, or (c) have been doing the best they can.  A fair number of cases have imposed injunctive relief: more social distancing, hygiene practices and the like. A few cases have gone so far as to insist on consideration for bond/parole. 

Hepatitis C in jails and prisons 

“Hepatitis C is extremely prevalent among the incarcerated population, affecting an estimated 16% of inmates, much higher than in the non-jail, non-prison population,” said Schlanger. “And it’s extremely treatable, but only by spending a lot of money. And so it’s been the subject of a good deal of litigation.”  

“Over a dozen states have had class actions certified against them alleging systemic failures relating to Hepatitis C treatment,” said Schlanger. “After the first litigation hurdle,” she noted, “nearly all those cases have settled with court-ordered treatment.”  

“Treatment is now more reasonable in price,” Schlanger noted, adding, “$25,000 sounds like a lot, but it used to be $100,000—and the treatments have gotten a little shorter. Experts say the public health benefit of treating hepatitis C among people who are behind bars for a considerable time and are amenable to treatment is pretty clear. As more and more jails start treating it, the choice not to test, not to evaluate and/or not to treat may pose more of a litigation risk.” 

Transgender Inmate Issues & the Prison Rape Elimination Act (PREA) 

Schlanger shared the following points based on evolving transgender inmate case law and the regulations under PREA:  

• The law requires individuation as to whether a transgender inmate is housed in the type of unit that matches their sex assigned at birth or their gender presentation. 
• Housing decisions need to be made without categorical rules that say, for example, we’re going to house according to your genetics or your genitalia. 
• Evaluation every six months needs to consider what’s best for the inmate’s health and safety. 
• Inmates need to have an opportunity to shower separately, regardless of whether they’re in male or female housing. 
• No housing unit should be structured solely based on LGBT status. 
• Beyond housing, there’s a constitutional obligation to protect transgender inmates from known risks that include sexual and other abuse. 
• Protective custody generally is not favored in the case law. 
• A doctor or team with expertise in gender dysphoria should evaluate the prisoner to help determine what treatment the individual needs.

The Americans with Disabilities Act (ADA)

“Prevalence of various kinds of disabilities in jails and prisons is extremely high,” said Schlanger. She outlined three jail and prison obligations pertaining to the ADA and the Rehabilitation Act:  

• Nondiscrimination 
• Effective communication 
• Auxiliary aids and services 

“Under nondiscrimination provisions, facilities are not allowed to create rules that intentionally and categorically exclude people with disabilities from opportunities to participate in program services and activities,” she explained. If a person who could, with reasonable modification to various rules, participate in a program or service, the statute does not allow the facility to decline to implement the reasonable modification and bar the person from the activity. That could involve people with visual or hearing impairments, mobility challenges or other covered disabilities. 

Click here to download the complete complementary resource from LexisNexis. 

About Margo Schlanger, JD  

Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan, and is a leading authority on civil rights issues and civil and criminal detention. She teaches constitutional law, torts and classes related to civil rights, jails and prisons. She also founded and runs the Civil Rights Litigation Clearinghouse. Schlanger earned her JD from Yale University. She is the author of dozens of law review and other scholarly articles, and is the lead author of the casebook Incarceration and the Law.