Looks That Kill: The Punitive and Medical Gazes in Maryland’s Prison Healthcare System
Jack Newhouse
“This is not your fault[;] they should have brought you back.” Maryland prisoner Roger Ervin heard these words from a doctor at the Johns Hopkins Wilmer Eye Institute after being informed that his left eye would need to be removed. Two years prior, Ervin had a shunt surgically placed in his eye to treat his glaucoma while he was housed at North Branch Correctional Institution in Cumberland, Maryland. However, Ervin only attended a post-surgery follow-up appointment five months later when a doctor employed by Corizon Health, the private corporation with which Maryland contracted to manage its prison healthcare, told Ervin that his eyes were infected and “hard as rocks.” Despite a series of appointments with various prison healthcare providers over the course of several months, Ervin remained in so much pain that he could not lay on his left side, and his eyes were sensitive to direct light. In May 2021, the doctors at Johns Hopkins informed Ervin that they needed to remove his left eye due to an infection from the shunt being left in so long after his surgery. The doctors stated that they would not have placed the shunt—which had now damaged Ervin’s optic nerve—in his eye had they known it would take so long for the prisoner to return.
Ervin, representing himself, filed a claim against Corizon and its doctors under 42 U.S.C. § 1983 for violating his Eighth Amendment rights against cruel and unusual punishment by being deliberately indifferent to Ervin’s medical needs. Ultimately, the U.S. District Court for the District of Maryland dismissed Ervin’s claims against Corizon and its doctors. The court found that Ervin, who was bound to a wheelchair while in prison, rather than the prison healthcare professionals, caused the delays in his healthcare. Thus, the district court held that the treatment Ervin received for his glaucoma passed “constitutional muster.”
Roger Ervin’s case epitomizes the crossroads that Maryland is quickly approaching: The state’s five-year, $680 million contract with Corizon, now being managed by YesCare, is set to end in 2024. Maryland can either continue the decades-long failed experiment of privatized prison healthcare, or the state can resume responsibility for the care of its incarcerated population by re-instituting a state-managed system. The choice that the state makes will be the difference between life and death for many of Maryland’s prisoners.
It is well established that the protections of the Eighth Amendment guarantee prisoners the right to adequate healthcare. In Estelle v. Gamble, the Supreme Court declared that pain and suffering serve no penological purpose and that states are required to provide medical services to its incarcerated populations. However, in its adoption of a subjective knowledge standard with regard to deliberate indifference to serious medical needs, the Court failed to establish a solid constitutional floor relative to prison healthcare. Instead, the Court created a constitutional quicksand: The high bar of a subjective knowledge test for claims arising under 42 U.S.C. § 1983 dissolves the ground on which prisoners stand to assert their right to healthcare. Thus, Estelle’s promise of adequate healthcare operates not as a right but rather as a privilege for which prisoners like Roger Ervin must fight.
Broadly, the historical context within which prisoners’ rights were born, expanded, and ultimately constricted by judicial construction and legislative constraint demonstrates the limited avenues that prisoners have to assert violations of their constitutional rights. Specifically, the history of the Maryland prison healthcare system from a facility-based model to the modern-day privatized managed-care model demonstrates a concerted effort by the state to shed itself of responsibility for and liability from its provision of substandard healthcare. Prison healthcare operates out of the public’s sight and buttresses the prison industrial machine to perpetuate harm against those deemed enemies of society.
The Maryland government, by contracting out the state’s carceral healthcare to private corporations, essentially leases out a significant portion of the state’s hegemonic power to punish those it labels as “criminal.” As of 2019, Maryland had the highest percentage of Black prisoners of any state, with seventy-one percent of the state prison population being Black, and was among twelve states wherein more than half of the prison population was Black. Consequently, Black people are affected disproportionately not just by the facial consequences of mass incarceration but also by its clandestine effects. Specifically, prison healthcare, like prison diet and prison shelter, is an extension of the state’s ability to punish under the guise of rehabilitation. Furthermore, within the confines of the carceral system, prisoners are caught between the punitive gaze of the state, which objectifies the prisoner by stripping him of his liberties, and the medical gaze of the healthcare provider, who objectifies the prisoner by stripping him of his individuality during diagnosis and treatment. While the medical gaze exists in every doctor-patient relationship, the dehumanizing effect of the medical gaze is compounded by the already dehumanizing and violent prison setting. Therefore, the state, by perpetuating inadequate prison healthcare, is not only violating the constitutional rights of the incarcerated, but also conflicting with judicially recognized penological purpose.