The Shortcomings of Deliberate Indifference

It is oft-cited that America has 25% of the world’s prisoners despite having just 5% of its population. Accompanied by a cultural reckoning centered on tough-on-crime policies, America’s incarceration boom has led to significant overcrowding in correctional facilities, an overburdened justice system, and a plethora of issues related to the treatment of incarcerated individuals.

These issues are particularly salient given that incarcerated individuals are perhaps one of the most vulnerable populations in our nation with scarcely any powerful advocates. Incarcerated individuals are disproportionately indigent, unhoused, uninsured, and undereducated while being overrepresented by communities of color. They also suffer from higher burdens of disease and illnesses — factors that are cyclically compounded by the previously listed socioeconomic statuses.

Herein lies a challenging test to America’s core principles. The issues posed by the mistreatment of incarcerated individuals are of paramount legal significance, but can America’s judiciary do its part to extend adequate legal protection to this vulnerable population?

For a nation that touts itself as a bastion of human rights, America must safeguard the rights of all its people and not carve out exceptions for the sake of political expediency. Unfortunately, our courts have failed this duty. Despite recognizing that incarcerated individuals have a constitutional right to adequate medical care, the Supreme Court, through its landmark decisions in Estelle v. Gamble, 97 S. Ct. 285 (1976) and Farmer v. Brennan, 114 S. Ct. 1970 (1994), has effectively rendered this guarantee empty, devoid of any practical means of enforcement and applicability.

Estelle involved an incarcerated individual, the respondent, in a Texas state prison who sustained a back injury while performing prison work. Alleging that prison officials violated the Eighth Amendment’s prohibition on cruel and unusual punishments by failing to provide adequate medical treatment, respondent filed a civil rights action.

Respondent, on numerous occasions, complained of his pain. Rather than providing adequate medical care, however, prison officials repeatedly engaged in actions that any reasonable person would surmise as negligence. For example, prison officials directly refused to comply with a doctor’s directive to move respondent from his upper bunk to a lower one. Despite respondent’s consistent complaints about intense back pain, not only did the prison doctor certify respondent for continued work, but prison officials also moved him to administrative segregation — a form of solitary confinement — because of his refusal to work. Where care was needed, punishment was given.

Fortunately, using precedential principles of Eighth Amendment protections, the Court established incarcerated individuals’ right to adequate medical care.

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.

492 U.S. 97, 103 (1976).

The Court recognized that the denial of medical care could result in pain and suffering which would serve no penological purpose, thereby being in conflict with its past articulations of an evolving standards of decency test for Eighth Amendment cases. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).

However, where the Court faltered was basing this right on an incredibly vague standard.

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” […] proscribed by the Eighth Amendment.

492 U.S. 97, 104 (1976). (emphasis added) (citation omitted)

In other words, for there to be an Eighth Amendment violation within conditions of confinement, prison officials’ behavior must be deliberately indifferent to incarcerated individuals’ serious medical needs. However, what is “deliberate indifference?” What counts as deliberate, and what constitutes indifference? Should it be defined by an objective or subjective analysis (a question the Court has historically dealt with in its deliberations on applying the evolving standards of decency test)?

The difference between a subjective and objective analysis is a crucial one. For example, the Fifth Circuit found in Mendoza v. Lynaugh, 989 F.2d 191 (1993) that prison officials forcing an incarcerated individual to work in a garment factory with a fractured spine did not constitute deliberate indifference. Using a subjective standard for deliberate indifference, the Circuit Court stated that incarcerated individuals had to show that prison officials had a “sufficiently culpable state of mind,” a ridiculous and unrealistic bar for incarcerated individuals to meet.

Unfortunately, the Supreme Court cemented the subjective standard as the required assessment for all deliberate indifference cases in Farmer.

In Wilson v. Seiter, we rejected a reading of the Eighth Amendment that would allow liability to be imposed on prison officials solely because of the presence of objectively inhumane prison conditions … “[O]ur cases mandate inquiry into a prison official’s state of mind when it is claimed that the official has inflicted cruel and unusual punishment.”

[I]t was no accident that we said … that Eighth Amendment suits against prison officials must satisfy a “subjective” requirement.

511 U.S. 825, 838 (1994). (emphasis added) (citations omitted)

By basing all assessments of deliberate indifference on a subjective analysis, the Court effectively constructed insurmountable hurdles for incarcerated individuals to actually secure their right to adequate medical care.

This is evidenced by subsequent district and circuit court interpretations of the deliberate indifference standard, which have failed to extend means of redress to incarcerated individuals. For example, in Swain v. Junior, 961 F.3d 1276 (2020), the Eleventh Circuit held that the district court erred in granting medically vulnerable inmates a preliminary injunction enjoining prison officials to take precautionary measures to halt the spread of COVID-19 because they failed to demonstrate the likelihood of success on the merits of their deliberate indifference claim. The vulnerable individuals alleged that they were not allowed to practice social distancing, nor were they offered any personal hygiene and sanitation supplies. This clearly would meet an objective analysis of deliberate indifference.

This is not even considering several other hurdles facing incarcerated individuals’ ability to seek means of redress. In the Suffolk Journal of Trial and Appellate Advocacy, Mary Levine outlines significant prerequisite hurdles for filing Eighth Amendment claims, such as the obstacles related to raising a § 1983 or Bivens claim, or abiding by the requirements of the 1995 Prison Litigation Reform Act. The 1995 legislation requires incarcerated individuals to exhaust all available administrative remedies before any civil rights claim is brought to court, making it difficult for incarcerated individuals to file lawsuits.

The hurdles don’t stop there. The Supreme Court extends deference to prison officials in creating and carrying out prison policies which they deem fit (See Bell v. Wolfish, 441 U.S. 520, 547 (1979)) (“Prison administrators … should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline …”), and deliberate indifference inquiries must be determined with consideration to the “realities of prison administration,” effectively deferring prison officials considerable discretion. See Helling v. McKinney, 509 U.S. 25 (1993).

It suffices to say that the Supreme Court’s subjective “deliberate indifference” standard falls markedly short of the goal to protect incarcerated individuals and their right to adequate medical care. With a dominant cultural belief that current and formerly incarcerated individuals are undeserving of equal rights, and the fact that health heavily influences reentry outcomes, it is incumbent on our courts to unambiguously preserve incarcerated individuals’ Eighth Amendment rights — for failure to do so would be deliberate negligence.

Kevin Kim (‘24) is a senior at Brown University, concentrating in International and Public Affairs with a certificate in Engaged Scholarship. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at kevin_s_kim@brown.edu.

Maia Eng (‘26) is a sophomore at Brown University concentrating in International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu.