by Benjamin Fleury-Steiner with Carla Crowder. Ann Arbor: the University of Michigan Press, 2008. 248pp. Cloth. $27.95. ISBN: 9780472114290.
Reviewed by Sawyer Sylvester, Department of Sociology, Bates College. Email: ssylvest [at] bates.edu.
The latest data from the Bureau of Justice Statistics indicate that there were 1,598,316 people in state and Federal prisons on December 31, 2007, mostly men. The imprisonment rate, the number of prisoners per 100,000 residents, was 506. One person out of 198 in the United States was in a state or Federal prison. The current imprisonment rate for white males is 481. For African-American males, the rate is 3,138. If the inmates of all other penal custodial facilities are added, the total population incarcerated is over 2.4 million (West and Sobol 2009).
Some have claimed that the United States has attained the distinction of having a larger proportion of its population in custody than any other country. It has also been suggested that the striking growth in our prison population stems from the use of incarceration as the weapon of choice in first the “war on crime” and then the “war on drugs.” Whatever the cause, the large and growing inmate population brings with it large and growing costs to those involved in housing, feeding, and providing health care for those inmates. One strategy an increasing number of jurisdictions have adopted is simply to transfer one or more of those tasks to private contractors, or to transfer the entire responsibility to a private prison. The percent of prisoners held in private prisons has increased steadily. In fact, the largest increase in use of private prisons in the last year was in the Federal system. Even if the government retains custody of the inmate, important elements of care may still be farmed out to private contractors, among the most important of which would be health care. And this could be particularly critical if it occurred in regard to an especially vulnerable group of inmates. This is precisely what happened to prisoners in the AIDS ward at Limestone Prison in Alabama and is the subject of DYING INSIDE.
At the beginning, Benjamin Fleury-Steiner and Carla Crowder make it clear that their work is not designed to be an exposé of a single institution, despite the horrific conditions they describe there. It is better seen as an “ideal type,” as a representation of the consequences of burgeoning inmate populations and the lack of will or capacity of governments to shoulder the burden of the consequences. Furthermore, Fleury-Steiner and Crowder see the cost-cutting, bottom-line approach to medicine at Limestone as a reflection of the trend toward corporate, for-profit medicine in the larger community. Two factors make this trend particularly acute in prisons. The first is that the particular resistance to oversight in prisons themselves is only exacerbated when a function is placed in the hands of a private contractor with even less responsibility [*189] for keeping records and releasing information about procedures for which they could be held accountable. The second is that the intrinsic nature of prison management is at odds with good medicine and its necessary concern with the individual prisoner and his or her clinical crisis. When the reigning philosophy of the prison is security, this is focused on what Erving Goffman calls the “batch living” characteristics of the inmates. Once targeted clinical care for the individual falls victim to security, it can result in minimal care for the “batch.” The individual patient leaves the scene, and cost cutting for the prisoner group becomes easier. This is part of what the authors call “a more overriding emphasis on waste management over rehabilitation.” Fleury-Steiner and Crowder link this “waste management” model, in great part, to the general trend in corrections which involves a rather simplistic version of rational choice theory, leading to a just desserts model of corrections.
They also note that some have suggested the racial disproportion in mass incarceration is the result of conscious efforts to marginalize segments of the African-American population for both ideological as well as economic reasons. Others suggest that race proxies for so many of the non-racial factors commonly associated with crime (and victimization) – income, urban location, education, level of police scrutiny, access to legal talent – that these alone might explain the racial disproportion in incarceration. Whatever the reason, DYING INSIDE reveals that the criminal justice system selects for incarceration, in great measure, the poor, the underinsured, and the chronically ill and then provides these, the most needy, with the worst of medical care.
One might assume that even a prisoner would have some legal remedy against his keepers for intentional mistreatment or outrageous neglect, including medical malfeasance, and that the courts would act as the protector of last resort. But recourse to the courts has faced varying degrees of difficulty throughout the history of corrections. Some have characterized much of that history before the 1960s as being governed by a “hands off” policy, reflecting a general unwillingness of courts to intrude into the management of prisons. That policy began to unbend to a degree in the 1960s and 1970s with the US Supreme Court’s willingness to see “deliberate indifference” on the part of an institution to prisoners’ harm as triggering an Eighth Amendment claim. Around the same time, an active prisoners’ rights movement grew up. Had this growth continued unchecked, it might have been an effective means for correcting some of the major deficiencies in prisoner health care. However, as the authors point out, there was a strong reaction against prisoner litigation, seen as mostly frivolous and brought by unworthy plaintiffs. One of the results of this kind of sentiment was the passage by Congress of the Prisoner Litigation Reform Act (PLRA).
The PLRA not only caps attorneys’ fees in prison litigation but also perpetuates a mandate that litigants must exhaust all administrative remedies before resorting to the courts. I suspect the latter requirement may not be unique to prisoner litigation, but the combination of the two can be a severe hindrance. The effect of the cap on fees is obvious [*190] for a largely impoverished client base. But when combined with the need to maneuver through every inch of the administrative process, it becomes a major hindrance to relief.
In the face of these limitations on direct litigation, Fleury-Steiner and Crowder devote a chapter to an exploration of the techniques of public advocacy short of litigation. This is a technique which prisoner rights groups have used to pressure and persuade institutions to make necessary improvements in care for inmates – techniques necessary in light of the obstacles to litigation. However, in the case of Limestone, the Alabama Department of Corrections had been particularly resistant in making necessary changes. The Southern Center for Human Rights found it necessary to file suit in Federal court. A settlement was eventually reached with the approval of the court. But the history of its implementation was another example of administrative foot dragging by the Department of Corrections and evasive tactics by the private health care provider. This created the need for yet another lawsuit, partly successful, partly not. The reasons for this only partly successful outcome occupy the latter part of the book.
The approach toward AIDS patients at Limestone is described by the authors as “lethal discipline” because of three qualities. First, in such a poorly funded and staffed facility, the practice of keeping full patient records is soon abandoned as care becomes minimal. Second, the not uncommon tendency of AIDS patients to refuse medication is met with unquestioning acceptance rather than any real effort to educate patients on the need and usefulness of medication, even in terminal cases. Third, the similarly ready acceptance of DNR status for patients is done without the counseling and advice to the patient more common in the outside community. All of these are the consequences of a medical system which the authors describe as staffed by too few and working with too little.
Among the obvious answers to such deficiencies would be to get the state to fund medical services in prisons far beyond their current level. However obvious, it is not likely to happen. States are currently having difficulty funding the engorged prison systems they have and providing basic security – the one thing for which the public holds them accountable. One could continue case-by-case litigation and advocacy. But the Limestone experience is an example of how success in these efforts can be partial and temporary. A third solution would be simply to release a significant number of inmates into the community. In some places this is already being done. But the problems with this approach abound. With the devaluation of treatment programs in general, a released prisoner will find little post-incarceration support in the community. And to release any prison inmate to the community in an era of high and growing unemployment deprives that inmate of what is likely to be the most important contribution to his success in the community – meaningful work.
At the end of DYING INSIDE, Fleury-Steiner and Crowder suggest a more global, although still politically difficult, strategy. Simply imprison fewer people. If our penal philosophy had a purpose beyond risk management through incapacitation, and our prisons were seen [*191] again as centers for rehabilitation wherever possible, then they might be considered as scarce resources to be used only when necessary or for those who deserve it most. In addition, a larger portion of offenders might be adequately dealt with in the community – providing we were willing to spend the resources there. The recent trend toward community policing and community courts might prompt a renewed interest in community corrections. Spending resources in the community to correct conditions, including health conditions, which seem to be linked to criminal offending is not exactly a new idea for crime prevention. It simply has been greatly overshadowed during our period of mass incarceration. All of this is expressed or implied in DYING INSIDE.
On the book in general, there are some aspects with which some might take issue. The book moves rather rapidly over many subjects and sources – case studies, quotations, data, arguments – sometimes, without much transition. But, as a whole, the book is compelling. At moments, the language leaves the analytical and verges on the polemical. The authors clearly have an axe to grind. But it is a worthy axe, and they grind it well. In fact, the combination of empirical analysis, reportage, and advocacy is in the best tradition of American sociology. This is a thoughtful and useful book.
West, Heather C., and William J. Sobol. 2009. PRISONERS IN 2007. Washington, DC: Bureau of Justice Statistics.
© Copyright 2009 by the author, Sawyer Sylvester.