Admittedly, the high-shine concrete molding that lined the walls and met the floors overly waxed by inmates in the commercial cleaning program lost some of its luster, but workers at Osborn Correctional Institution in Somers, Connecticut were shifting. Only the ones who were deemed essential were going to work in the coming days.

It was March 2020 and an infectious pandemic was on its way inside. Only those men who fed the inmates or whose work could help slow the spread of this novel disease would be working soon: kitchen workers, some cleaners, and the men who ran the laundry and washed the sheets and blankets the men used on their bunks.

Above that dulled concrete, on an aluminum tabletop, rested the shoes of Captain Daniel Perez who was announcing the plan. Osborn’s Deputy Warden Nicole Thibeault stood by him as he explained. Laundry workers would move from E-Block to H-Block, a move no more than 100 yards but still worlds away now that the SARS-CoV-2 virus traveled among men. In E-Block, the laundry workers could shelter and essentially quarantine from each other in their single cells with bolted doors. But in H-Block, the cells were constructed of bars with inches of space between them, open invitations for the new coronavirus to travel.

“Any questions? Thibeault asked after Perez finished his explanation.

Inmate Barry Guess piped up.

“Yes. My name is Barry Guess. I got a question. If I'm already in a single cell setting — no cellie, no possible way to have someone giving me COVID — why move me to a block that's open with a cell that's open, where I can possibly be given COVID or infected?"

Thibeault provided perfunctory answers but warned that if people refused they face disciplinary action and the loss of their single, ostensibly safeguarded cell anyway.

No Personal Protective Equipment (PPE) was provided to the laundry workers; they made masks themselves. As a result, all except one laundry worker contracted COVID — and that one exception wasn’t un-infected. He simply wasn’t tested. The first inmate to die of COVID-19 in Connecticut was a laundry worker at Osborn. Neither Thibault nor Perez let the other workers know that “Doc” — as the other inmates called him — had passed.

Eventually, the Department of Correction transferred the men to Northern Correctional Institution, the state’s death row when the death penalty was still in effect, but the laundry workers weren’t allowed to bathe for thirteen days — because administrators said they feared COVID would be caught in shower mist and spread.

Christoper Nazario, a laundry worker who suffered a heart attack because of his COVID infection and who has since been released, sued Thibeault, arguing that she and the State of Connecticut exposed him and the other laundry workers to an unreasonable risk of serious damage to their health and, in so doing, violated the Eighth Amendment prohibition on cruel and unusual punishment. Seven other laundry workers, including Guess, followed with their own claims. The district court in Connecticut united all eight plaintiffs into one case because their complaint was the same: the Department of Corrections intentionally disregarded their health.

Thibeault responded by moving for summary judgment, arguing that there was no dispute that required a trial. According to Thibeault’s attorneys, the attorneys general for the State of Connecticut, corraling people together so they could contract COVID and die was never cruel nor unusual punishment and even if it were, Thibeault and other state employees can’t be held accountable for it because they work for a government agency.

Last June, United States District Court Judge Vanessa L. Bryant denied Thibeault’s motion for summary judgment, an order that means one thing legally — that the facts and the law are in dispute and need to be resolved through a trial — and another thing factually. Bryant’s decision means that moving prisoners into areas that increased the likelihood that they would contract COVID might be cruel and unusual punishment, that those moves might have been what the courts call deliberate indifference, and that Thibault’s position that prisons and jails can’t be held accountable for these administrative choices isn’t necessarily correct. Bryant’s decision means that the law and standards for care may change with Nazario’s case.

Bryant’s decision wasn’t good news for Thibeault. Unless the state settled the case, a trial would ensue. Witnessed would testify. he state’s COVID response would be on public display. Thirty inmates died of COVID in Connecticut prisons before July 2022 when the state stopped publicly reporting the deaths. It sounds like it isn’t many. With the state’s entire population at its lowest at 8945 in June 2021, 30 deaths create a death rate of three-tenths of a percent. By comparison, a little over one-tenth of a percent of the United States population died of COVID-19. The Connecticut inmate rate of death is twice that.

About a month later, on July 29, 2022, Thibeault filed an interlocutory appeal — an appeal that happens before a case is over — to keep the case from proceeding to trial. Lawyers argued that interlocutory appeal before the Second Circuit Court of Appeals last week in New York and, depending on the outcome in a few months, one side or the other will appeal to the Supreme Court of the United States. And what’s worse is that the nation’s highest court may take it.

Traditionally, the problem of lack of health care, substandard care, or conditions that endanger health was cured by the courts. A 1976 Supreme Court case, Estelle v. Gamble, established the law that the Eighth Amendment requires prisons and jails to provide adequate medical care to people in their custody. Through this decision, Inmates are the only population in the country who have a constitutional right to healthcare.

While litigating claims of health is far from ideal — it’s not fast so there’s really no way to compel correction officials to provide emergency care — it has worked in the past. For example, Santa Clara County, California has faced litigation several times and paid out large settlements. The county has made significant improvements to how it provides medical care to its wards and is now considered an example of quality correctional care.

But litigation’s power to address failures in correctional health care may soon change. Given the current Supreme Court’s willingness to overturn established precedent as evidenced by its complete reversal on Roe v. Wade last year in the Dobbs v. Jackson Women’s Health Center decision — an opinion authored by Justice Samuel Alito — there’s reason to fear that the nation’s highest court may be looking to overturn the precedent established in Estelle v. Gamble once the right case reaches their docket.

The chances that the parties won’t at least knock on the door at the Supreme Court is zero; either the laundry workers or Thibeault will lose at the Second Circuit Court of Appeals and whoever does will try to get the nine justices to side with them before they head back to a New Haven courtroom.

Lynn Hamlet already beat the laundry workers to the Supreme Court on these issues. Hamlet, an elderly man incarcerated at Florida’s Martin Correctional Institution, is diabetic and had a cut on his ankle. He was forced by a correction officer into a shower that had backed up with another inmate’s feces. The guard, Brandon Hoxie, didn’t allow Hamlet any cleaning materials to wash his wound and denied him access to the showers. Hamlet developed an infection that eventually caused him to need emergency surgery on his heart.

Unlike Nazario and Guess’ case, the lower courts in Hamlet’s case held that it was a foregone conclusion that the deputy warden was immune from suit and that it was acceptable to ignore inmate health concerns.

The difference in holdings is a problem. Hamlet’s case is out of the Eleventh Judicial Circuit. Nazario’s case is in the Second Circuit, which means inmate healthcare and qualified immunity for the officials who are deliberately indifferent to an inmate’s needs has become a constitutional issue on which federal circuit courts are split. The Supreme Court likes curing those fissures. It’s cause for them to accept the case, especially if they’re anxious to toy with precedent they don’t like.

The justice who’s shown the most disdain for the right to be free from cruel and unusual punishment is Alito himself, author of the Dobbs opinion. He proved it ten years earlier in his dissent in the case Miller v. Alabama. Alito’s 2012 departure from the majority’s view was that mandatory life-without-parole sentences for youthful offenders shouldn’t be unconstitutional.

Alito didn’t hold back, writing: “[t]he Court long ago abandoned the original meaning of the Eighth Amendment…” Alito quarrels with the idea that what constitutes cruel and unusual punishment should be tied to “evolving standards of decency.” In 2015, in the case of Glossip v. Gross, Alito argued that excruciating pain inflicted from botched injections isn’t inhumane because death itself is inhumane.

Given that the climbing cases are setting up a perfect showdown on Eighth Amendment jurisprudence, it’s entirely possible that the Court will soon gut and overturn Estelle v. Gamble, giving prisoners little to no grounds for relief in the courts when they are denied medical care or abused in ways that compromise their health.

The remedy for any change in precedent may lie in an experimental program that mostly has to do with care when a prisoner is freed.

In January 2023, the Centers for Medicare and Medicaid Services (CMS) approved the first waiver to the Medicaid Inmate Exception Policy (MIEP) in the Social Security Act. The waivers, granted under the Medicaid Reentry Section 1115 Demonstration Opportunity, allow prisons and jails to enroll people who are due to leave custody in the next 90 days in Medicaid and also provide substance abuse treatment while they’re still incarcerated.

Because approximately 80 percent of people leaving prisons and jails have chronic medical, psychiatric, or substance use disorder problems, experts agree that these waivers have the potential to improve the health of people reentering society and prevent them from relapsing or re-offending.
At first glance, it doesn’t appear that such a waiver would have done any good for the laundry workers or Hamlet but that’s a misperception. The irony of inmates being the only population to have constitutionally guaranteed healthcare is that they’re also the only population for whom there isn't a universal, mandatory standard of medical care.

The National Commission on Correctional Health Care (NCCHC) issues standards for care for confined people but compliance with them is voluntary. Malpractice, as it were, doesn’t exist in these facilities, and not because medical care is optimal. Malpractice is a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill; as a practical matter there’s no duty to inmates and the ordinary degree of professional skill can be so low that any care provided meets or beats it. Inmates who are harmed must argue that their civil rights were violated to access the courts; suing for malpractice in tort is next to futile.

Once a waiver is approved for a state and is implemented, the standard of care for jails and prisons becomes Medicaid’s standard of care, according to Dan Mistak, President and Director of Healthcare Initiatives for Justice-Involved Populations at Community Oriented Correctional Health Services, an organization that has long advocated for changes in the MIEP.

In the cases ascending the appellate ladder, the problem becomes less that the deputy warden moved the laundry workers and more that the providers needed to prevent Nazario’s COVID infection from affecting his cardiovascular system and ensure adequate protective gear. Instead of the problem being a guard leaving inmate Hamlet in a dirty and infectious shower, the problem becomes his wound and how it should have not developed in the first case with proper diabetes care. In short, prisoners won’t need to use the Constitution to protect their health because there will be new regulations in place, even if those regulations target those who are rejoining society.

The Medicaid Reentry Section 1115 Demonstration Opportunity waivers have been approved for two states so far: California and Washington; neither state has started their demonstration yet but the way these waivers will import oversight and standards to carceral spaces, they may end up preserving the health of more prisoners than intended.

This article was supported by a fellowship from the Commonwealth Fund through the Journalism and Women Symposium (JAWS).

Chandra Bozelko served more than six years in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent. Her work has earned several professional awards from the Society of Professional Journalists, the Los Angeles Press Club, The National Federation of Press Women and more.Her columns now appear regularly in The National Memo.