Separate and unequal: Prison versus free-world medical care*

Rusche and Kirchheimer argued that attempts at penal reform are limited by a principle of less eligibility, by which the regimen of punishment is made harsher than the conditions of life among the least well-off members of the working classes. In addition, Black posited that the benefits of law are inversely related to stratification and morphology; that is, inmates would be entitled to fewer benefits in law than would free-world citizens. Today the penal harm movement strives to make prison life harder, asserting that comfortable prison conditions are responsible for high crime rates. Critics frequently blame judicial intervention in prison operations for upsetting the careful calibration necessary to deter crime. In this article we examine these assertions by focusing on medical care litigation. Comparing the legal rales and precedents used to hold prison physicians liable for inadequate medical care under 42 U.S.C., Section 1983 with the standards customarily employed by courts in evaluating medical malpractice in the free world, we conclude that judicial decisions in this vital area conform to what would be expected, given the operation of the principle of less eligibility and Black’s “differentiation of law” thesis. © 1998 Academy of Criminal Justice Sciences