Incarceration American-Style

In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating—that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens—disproportionately poor people of color—who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration

Cruelty, Prison Conditions, and the Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions. At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice—and thereby creates incentives for officers not to notice—despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners

State Punishment and Private Prisons

To date, the debate over private prisons has focused largely on the relative efficiency of private prisons as compared to their publicly-run counterparts, and has assumed that, if private contractors can run the prisons for less money than the state without a drop in quality, then states should be willing to privatize. This comparative efficiency approach, however, has two significant problems. First, it is concerned exclusively with efficiency, despite the fact that the privatization of prisons arguably implicates more urgent values. Second, it accepts the current state of public prisons as an unproblematic baseline, thus failing to consider the possibility that neither public prisons as presently constituted nor private prisons in the form currently on offer are adequate to satisfy society\u27s obligations to those it incarcerates. In this Article, Professor Dolovich examines the private prisons issue from a third perspective, that of liberal legitimacy. On this standard, if penal policies and practices are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to avoid imposing punishments of incarceration that are gratuitously long. After sketching the foundation for this legitimacy standard, Professor Dolovich then applies it to the case of private prisons. Approaching the issue of private prisons from this perspective helps to reframe the debate in two ways, both long overdue. First, it allows for a direct focus on the structure and functioning of private prisons, without being derailed by premature demands for comparison with public-sector prisons. It thus becomes possible to assess directly the oft-heard claim that the profit incentive motivating prison contractors will distort the decisions made by private prison administrators and lead to abuses. Second, it makes it possible to see that the state\u27s use of private prisons is the logical extension of policies and practices that are already standard features of the penal system in general, thus throwing into sharper relief several problematic aspects of this system that are currently taken for granted. In this sense, the study of private prisons operates as a miner\u27s canary, warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may need reconsideration

The Impact of Differential Cost Sharing of Non-Steroidal Anti-Inflammatory Agents on the Use and Costs of Analgesic Drugs

OBJECTIVE: To estimate the effect of differential cost sharing (DCS) schemes for non-steroidal anti-inflammatory drugs (NSAIDs) on drug subsidy program and beneficiary expenditures. DATA SOURCES/STUDY SETTING: Monthly aggregate claims data from Pharmacare, the public drug subsidy program for seniors in British Columbia, Canada over the period 1989-11 to 2001-06. STUDY DESIGN: DCS limits insurance reimbursement of a group of therapeutically similar drugs to the cost of the lowest priced drugs, with beneficiaries responsible for costs above the reimbursement limit. Pharmacare introduced two different forms of DCS, generic substitution (GS) and reference pricing (RP), in April 1994 and November 1995, respectively, to the NSAIDs. Under GS, generic and brand versions of the same NSAID are considered interchangeable, whereas under RP different NSAIDs are. We extrapolated average reimbursement per day of NSAID therapy over the months before GS and RP to estimate what expenditures would have been without the policies. These counterfactual predictions were compared to actual values to estimate the impact of the policies; the estimated impacts on reimbursement rates were multiplied by the post-policy volume of NSAIDS dispensed, which appeared unaffected by the policies, to estimate expenditure changes. DATA COLLECTION: The cleaned NSAID claims data, obtained from Pharmacare’s databases, were aggregated by month and by their reimbursement status under the GS and RP policies. PRINCIPAL FINDINGS: After RP, program expenditures declined by $22.7 million, or$4 million annually, cutting expenditure by half. Most savings accrued from the substitution of low cost NSAIDs for more costly alternatives. About 20% of savings represented expenditures by seniors who elected to pay for partially-reimbursed drugs. GS produced one quarter the savings of RP. CONCLUSIONS: RP of NSAIDs achieved its goal of reducing drug expenditures and was more effective than GS. The effects of RP on patient health and associated health care costs remain to be investigated.Reference pricing; generic substitution; prescription drugs; drug cost containment; NSAIDs.

It's all about relationships: A qualitative study of health researchers' perspectives of conducting interdisciplinary health research

<p>Abstract</p> <p>Background</p> <p>Interdisciplinary research has been promoted as an optimal research paradigm in the health sciences, yet little is known about how researchers experience interdisciplinarity in practice. This study sought to determine how interdisciplinary research was conceptualized and operationalized from the researcher's perspective and to better understand how best to facilitate interdisciplinary research success.</p> <p>Methods</p> <p>Key informant interviews were conducted with health researchers with expertise or experience in conducting interdisciplinary research. Interviews were completed either in person or over the telephone using a semi-structured interview guide. Data collection occurred simultaneously with data analysis so that emerging themes could be explored in subsequent interviews. A content analysis approach was used.</p> <p>Results</p> <p>Nineteen researchers took part in this study. Interdisciplinary research was conceptualized disparately between participants, and there was modest attention towards operationalization of interdisciplinary research. There was one overriding theme, "It's all about relationships", that emerged from the data. Within this theme, there were four related subthemes: 1) Involvement in interdisciplinary research; 2) Why do I do interdisciplinary research?; 3) Managing and fostering interdisciplinary relationships; and 4) The prickly side to interdisciplinary research. Together, these themes suggest that the choice to conduct interdisciplinary research, though often driven by the research question, is highly influenced by interpersonal and relationship-related factors. In addition, researchers preferred to engage in interdisciplinary research with those that they had already established relationships and where their role in the research process was clearly articulated. A focus on relationship building was seen as a strong facilitator of interdisciplinary success.</p> <p>Conclusion</p> <p>Many health researchers experienced mixed reactions towards their involvement in interdisciplinary research. A well thought-out rationale for interdisciplinary research, and strategies to utilize the contribution of each researcher involved were seen as facilitators towards maximizing the benefits that could be derived from interdisciplinary research.</p

The Impact of Reference Pricing of Cardiovascular Drugs on Health Care Costs and Health Outcomes: Evidence from British Columbia--Volume III: ACE and CCB Literature Review

(see SEDAP 70 for abstract)reference pricing,prescription drugs,ACE inhibitors,calcium channel blockers,nitrates,pharmaceutical cost control,seniors,user fees