The Constitutive Contradictions of Prison Health Care in the United States

From forced labor on plantations, roads, and industrial plants to extracting blood, fines, and fees, incarcerated peoples’ bodies have been a known site of capitalist exploitation. Yet, they are also the only group entitled to a quasi-constitutional right to health derived from the Eighth Amendment’s caselaw limiting cruel and unusual punishment.

Prison health care emerges out of this contradiction: Prisons punish, but under this legal doctrine, they must also offer health care while they punish. And just as other aspects of prison life can serve as sources of money and labor for capital exploitation, so too can prison health care be a site of capitalism. It comes as no surprise that prison health care has also become corporate health care.

It is hard to determine the exact extent of prison health care privatization nationwide, but the numbers available are significant: A Pew Charitable Trusts study found that by 2015, 20 states had fully outsourced their state correctional health care systems to for-profit providers, and eight states privatized at least part of their correctional health care. In 2020, Reuters journalists reviewed health care data of 523 U.S. jails from 2008 to 2019, finding that 62 percent of them had outsourced health care to private providers.

Differently from health care for people “in the free world,” the consumer of correctional health care services is the patient, whereas the correctional department will contract and pay for the health care. In this sense, a “gap between preferences and needs” arises among who pays and who uses health care services. Incarcerated people’s needs can only indirectly determine who the medical provider shall be, as they are not free consumers in this market but compulsory clients of the service provider chosen by the correctional department.  

Nevertheless, prison conditions are likely to ensure health care is needed. Incarcerated people are often served insufficient or low-quality food, exposed to extreme temperatures, overcrowding, mental distress, institutional violence, and trauma, and they disproportionally suffer from chronic health conditions and communicable and non-communicable diseases, as they experience age-related health conditions earlier and more often than the general population.

High health needs often mean increased costs with correctional health care. Privatization offers the promise of more cost-efficient delivery of health services. The same Pew Charitable Trusts report found that most states that had privatized their correctional health care services adopted capitation-based contracts in which a fixed rate is paid by the state per person incarcerated. Under this model, spending less on health care than the fixed rate allows contractors to profit. A 2025 Prison Policy Initiative Report found, however, that to keep costs down, many contractors restrain access to health care by denying, limiting, or delaying treatment and rejecting patients’ preferences.

Outsourcing can also shield the state from legal liability when things go wrong. Despite the many formal constraints that have historically halted prison rights litigation, such as the Prison Reform Litigation Act, when incarcerated people and their families do succeed in bringing lawsuits concerning the inadequate delivery of correctional health care, these cases have often disrupted correctional policies and strained budgets. Indemnity clauses protect states from this financial burden by shifting responsibility to private providers. These provisions require contractors to compensate state agencies for lawsuit-related damages and losses.

For example, a contract between a private health care provider and the Georgia Department of Corrections I obtained through an Open Record request includes an indemnification clause requiring the company to cover any contract breaches, negligent acts, or claims. The contractor also agreed to reimburse the State Tort Claims Fund and maintain insurance coverage for both parties (state and company) in case of financial losses. Some of these companies have filed for bankruptcy seeking Chapter 11’s protections. As Pamela Foohey and Christopher Odinet argue, this approach has enabled companies to quickly settle lawsuits and suppress ongoing litigation.

To the extent health care services are provided in prison settings, they will always be suboptimal and work with standards that are too minimal — cruel and unusual punishment should not be the threshold for determining adequate health care, but it is, in effect, the constitutional aspiration for prisons.

The problem, however, does not entirely lie in the apparent public-private divide. There is no guarantee that prison health care provided by public authorities will be better or more comprehensive than if it were privately provided. In a country where state and corporate are so entangled conceptually, economically, and politically, advocating for public or private health care might lead to similar results.

Instead, the solution to the constitutive contradiction of prison health care lies in ending the carceral state. To the extent health care services are provided in prison settings, they will always be suboptimal and work with standards that are too minimal — cruel and unusual punishment should not be the threshold for determining adequate health care, but it is, in effect, the constitutional aspiration for prisons. Furthermore, prisons are spaces of morbidity and mortality: To the extent prisons provide health care, they are often attempting to mend the harms that they have directly or indirectly caused.

This is not to say that any effort to improve current conditions is fruitless. For instance, as the 2025 Prison Policy Report advocates, together with scholars, and many state legislatures, eliminating or mitigating Medicaid’s “Inmate Exclusion Policy,” a clause that prohibits Medicaid from covering most health care services for incarcerated individuals, could guarantee additional funding to correctional health care policies and potentially prevent departments from resorting to private contractors.

Another avenue for improvement would be to better qualify health care management and delivery through clear guidelines and oversight. A January 2025 study by Harvard scholars found that jails that went through accreditation by the National Commission on Correctional Health Care were able to improve the quality of health care delivery and reduce mortality. These are some of the practical measures on the table when improving correctional health care is discussed.

However, like much of the academic debate on reforming the criminal legal system in the United States, by discussing what is practically possible, we stop short of imagining a different reality, assuming that decarceration is a utopian measure that is too difficult to implement. While the strategy for pushing the boundaries of reform step-by-step is effective, it often does little to change the ethos behind certain social practices. Improving prison conditions should not be the ultimate goal of our efforts for reform — especially when an agenda for “improvement” can easily be captured and sold as a business.

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About the author

Natalia Pires de Vasconcelos is a Global Health and Rights Project Affiliated Researcher at the Petrie-Flom Center. She holds a PhD in Law from the University of São Paulo, along with an LLM from Yale Law School. She is currently pursuing a doctoral degree in sociology at the University of Georgia.