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Death Panels for LWOP?

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As highlighted by Doug Berman at Sentencing Law and Policy healthcare costs for aging prisoners is a significant expense for penal institutions.   Estimates suggest that healthcare costs alone for inmates above the age of 55 range from $11,000 to $40,000 per annum. These costs will surely rise in the coming years as the population of inmates ages and additional healthcare treatments become available. 

Many death penalty abolitionists suggest that the right comprise over punishment for those convicted of the most serious of crimes is life without the possibility of parole.  An article by Professor Russell Covey again highlighted by the always prodigious Professor Berman makes this proposal yet again by floating the idea of changing LWOP terminology to a "Death in Prison" sentence. 

But what healthcare should be provided to inmates who are sentenced to die in prison? In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that the Eighth Amendment prohibits the deliberate indifference of prison officials to an inmate's medical needs.  As the Court noted:

These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," In re Kemmler, supra, the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.  Id. at 103.
But what are those "elementary principles" that establish the government's obligation?  The Court cites the evolving standards of decency doctrine provided by Trop v. Dulles, 356 U.S. 86 (1958) and the wanton inflection of pain set forth in Gregg v. Georgia. 428 U.S. 153 (1976), weighing more heavily the latter in establishing the deliberate indifference standard (see, Gamble at 114).

If that's so, then what care beyond palliative care is constitutionally required for prison inmates?  No doubt there is a rich case law on the topic and it is likely that evolving standards of decency mandate care beyond mere administration of analgesics. But for those inmates sentenced to "death in prison" might expensive medical care for cancer, diabetes, or other serious medical conditions be limited without running afoul of Gamble?  Wanton inflection of pain surely can be avoided through proper palliative care.  What are society's evolving standards of decency on the topic is much less clear, but if being sentenced to death means that one's life is forfeit, then perhaps what citizens may demand of the healthcare system can be quite different than that of a condemned inmate.

1 Comment

Covey's suggestion that this is a "compromise" is Orwellian doublespeak. His suggestion is that our side should surrender.

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