Care and Carceralism

The ever-shifting landscape of abortion rights has brought the relationship between health care and policing into the public’s attention yet again. After the Supreme Court’s decision in Dobbs v. Jackson’s Women’s Health Organization, abortion is now severely limited and criminalized in dozens of states. Some states have enacted bounty hunter laws, empowering citizens to police community members they believe have “aided and abetted” in abortions. The federal government is challenging a Texas court’s suspension of the FDA’s approval of a key medication abortion. More is yet to come, as legislation limiting and criminalizing abortion continues to wind through state legislatures, including bills that propose jailing medical providers who participate in abortions.

This overlap of policing and health care is not new—and health care professionals are not necessarily always fighting on the side of their patients. In fact, they often work with police in the enforcement of such laws. For example, medical providers have cooperated in the prosecution of pregnant women for drug use during pregnancies. Moreover, health professionals are among the many mandatory reporters who must inform police when they suspect that crimes have occurred. Even if they would rather not, they are left feeling as though they must choose between protecting their patients’ privacy, their ethical obligations, and potential criminal and professional consequences.

But the entanglement of our criminal and health care systems extends further. Health care settings, especially hospitals, are integral to our system of mass incarceration. Like police interrogation rooms, jails, and prisons, hospitals often incorporate carceral practices: Security is treated as paramount, and patients are guarded, blocked from seeing their family or friends (most memorably during the worst of the COVID-19 pandemic). Hospital emergency rooms take in those under police custody for psychiatric holds. They care for injured and ill people on their way to and from jails and prisons. Such patients are often shackled to their hospital beds, no matter how ill they are or how little danger they pose. Some hospitals even share space with jail wards.

The expansion of police and incarceration into hospitals mimics a similar expansion seen elsewhere in our society, particularly around the administration of public goods. Examples include school police officers, transit police, officers assigned to patrol public housing, and police tasked with catching welfare fraud. Just as police are in these other places, police routinely show up in hospitals and emergency rooms, increasing the possibility of arrests and criminalization of patients getting medical care.

But hospitals are also unique and distinct from these other settings. Medical providers bring a specific kind of skill and expertise—medical diagnosis and treatment—that makes their participation critical to policing and the continuing operations of jails and prisons. Medical providers have been called upon to help police conduct intrusive cavity searches, as in the case of a Syracuse man who was then, to add insult to injury, billed by the hospital for the procedure. Medical staff also perform blood draws, sometimes against the patient’s consent, in cases where police suspect drug or alcohol use played a role in, for example, a traffic accident. Medical providers regularly stand by as vulnerable patients are questioned by police, and they often provide key medical diagnoses—such as shaken baby syndrome—that initiate police investigation. Health care settings themselves can be fruitful places for police to gather potential evidence, including cash, clothing, and cell phones seized from patients without their permission or even awareness.

It is not just at the front-end investigative stage where hospitals and medical providers play a critical function. Hospitals medically “clear” arrestees as healthy enough to be booked into jail or prison. And though the failures of correctional health care are well known—often barely amounting to “care” at all—incarcerated people have very real health care needs, exacerbated by the harsh effects of imprisonment, necessitating at least the appearance hospitals act as a safety net for the well-being of those inside carceral institutions. In short, police, jails, and prisons need hospitals to operate.

The entanglement of hospitals with our system of mass incarceration raises obvious ethical questions. Hospitals and medical providers are supposed to heal and save lives; police and correctional guards are authorized to use lethal force. The former is meant to embody our society at its most life-affirming; prisons, meanwhile, are our most dehumanizing institutions. There is, nonetheless, a seeming inevitability to the integration of hospitals into policing and prisons: Where else would sick prisoners go? And where else would police go after an accident, shooting, or stabbing than the ER to gather evidence?

That sense of inevitability is certainly reflected in court rulings, statutes, and even in regulatory guidance by the Department of Health and Human Services. Federal regulations authorize transporting inmates to outside facilities for medical care and contracting with outside hospitals for services. The Centers for Medicare and Medicaid Services has issued a memo providing guidance to outside providers on how to serve “justice involved individuals.” And this inevitability extends to police access to hospitals and medical providers for criminal investigation purposes. Courts routinely hear cases where police use medical personnel to gather evidence. The participation of medical personnel is seen as necessary in ferreting out crime; this participation of medical providers in criminal investigations is valued as an example of good citizenship. In a 1951 Supreme Court case in which stomach pumping had been used to make a person vomit up drugs, the justices found the practice shocked the conscience, but made sure to point out that their decision did not extend to those cases where the “use of modern methods and devices” helped discover criminal wrongdoers. A few years later, in a case involving a forced blood draw, the Supreme Court again affirmed the principle that “modern community living requires modern scientific methods of crime detection lest the public go unprotected.” As mandatory reports, medical providers are told to report certain suspected crime to law enforcement. And exceptions to HIPAA and state privacy laws allowing these disclosures further encourage cooperation between hospitals and carceral agents.

Importantly, the medical profession is not necessarily a reluctant participant in these collaborations with law enforcement and correctional institutions. Philosopher Michel Foucault theorized that medicine can be rightly conceived of as part of the carceral network. And the medical profession bears its share of responsibility in perpetuating racial discrimination and bias. In the same way that people of color are targeted by the carceral system, these same people receive consistently worse care from the medical system. Black people are undertreated for pain based on harmful stereotypes and racist beliefs. Medical providers’ racism affects Black women’s maternal health. Even medical devices, such as pulse oximeters, are not designed to work properly for people of color.

One possible response to this entanglement is to accept it: One could argue that the use of hospitals is a necessary solution to the health crises that attend policing and which are exacerbated by the sorry state of correctional health care. What if erecting a wall between hospitals and the carceral state simply makes things worse for imprisoned people? Certainly, subjecting them to inadequate correctional health care—or permitting jail officials and police to conduct medical procedures on them—would not be any decarceral activist’s idea of a solution. But those are not our only options. We can and should strive for better. Yes, hospitals may always be necessary to the carceral system. But that should not mean that health care must be compromised. Disentangling health care from the carceral is imperative for at least two reasons.

First, when care-based solutions are proposed to the problems of policing, the result is often that our care system replicates carceral practices, summoning the logics of policing to address everything from mental health to addiction. In addition, we also risk muddling the regulatory spaces of hospitals, which are highly regulated, and the carceral state, which is diffusely monitored at best.

Second, the effect on the medical profession cannot be underestimated. For patients in custody, they have every reason to doubt the quality of their care, since their medical team is in effect part of the carceral arm of the state. At a minimum, patient distrust may lead to medical teams receiving inaccurate or incomplete information. But these effects also spill over to non-incarcerated patients. Hospitals serve the most vulnerable in our society, many of whom may opt to forego treatment rather than risk intersecting with sites of policing and surveillance. It also has a corrosive effect on physicians, nurses, residents, interns, and nursing students, who are being acclimated to the punitive and differentiated care given to people under police or correctional custody.

People are paying attention to this encroachment of mass incarceration into health care spaces. The efforts of the medical profession are especially noteworthy, since changes in how carceral actors are perceived in the day-to-day of medical practice must come from within. Medical providers have been organizing and advocating with their administrations to change the status quo. One targeted area has been hospital policies. Current hospital policies either do not adequately address the issues of patients in custody, or too closely mirror those of law enforcement and correctional practices. Hospital policies should adopt patient-centered practices instead of conforming to policing and correctional practices. Hospitals could strengthen their own programs, such as behavioral response teams and hospital-based violence interruption programs, to focus on public health–based solutions to the problems of mental illness and violence.

Broader structural change is also necessary. For example, instead of just acknowledging that certain carceral practices, like shackling and forced procedures, conflict with hospital regulations, the Centers for Medicare and Medicaid Services should issue better guidance on how hospitals can balance patient care and security. The Office of Civil Rights should pay attention to the potential HIPAA violations resulting from pervasive and routine police and correctional presence. State regulatory bodies should do the same. We need greater statutory protections for health care spaces, and better regulations on the relationship between medical providers and law enforcement. Without these broader regulatory changes, the continued uncertainty and insufficient guidance to hospitals and medical providers will guarantee that we are left with inadequate hospital-based changes.

Lawyers also have a role here. Privacy, disability, and other legal advocates should take a close look at the diffusion of policing and carceral power in hospitals. Prison and jail litigation has brought the inhumanity of those carceral settings to light. That same kind of attention should be paid to the carceral spillover into hospitals.

Decades into our country’s investment in a mass incarceration state, its failings are stark. The disease of mass incarceration must be fully diagnosed and addressed. As we step into this new era of criminalized reproductive choices—in which health care and policing are again inextricably bound—these deeper roots of collaboration and cooperation between the two spheres must be disentangled. Perhaps through this disentanglement, a deeper conception of common human dignity can be found.

The author has a related article, “Patient or Prisoner in the ‘Free World’ Hospital,” forthcoming in the George Washington University Law Review.

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Contributors

Ji Seon Song Ji Seon Song is a professor at the University of California, Irvine School of Law where she teaches and writes in the areas of criminal law, criminal procedure, juvenile law, and policing.

Topics

• Institutions & Practices

Tags

• carceral systems
• criminal legal system
• health care
• mandatory reporting
• policing
• public health