Legal Reactivity: Correctional Health Care Certifications as Responses to Litigation

Abstract

In 1976, the US Supreme Court established that incarcerated people have a constitutional right to health care, ratifying lower court decisions. Corresponding professionalization and standardization initiatives included the advent of third-party certifications of individual correctional health care (CHC) practitioners. Drawing on historical evidence about CHC reforms and contemporary data on certifications, incarcerated people’s lawsuits, and incarcerated people’s mortality rates, this study assesses relationships between certifications and key outcomes of incarceration. We find that corrections actors tend to adopt certifications when directly threatened by elevated rates of litigation in their states. This finding suggests that corrections actors are legally reactive, responding to filed lawsuits’ salient threat, rather than legally proactive, attempting to manage risk through anticipatory certification adoption. While early standardization and professionalization interventions reflected the legally proactive logic, our results indicate that contemporary corrections actors tend to “wait and see” about legal liability. Barriers to settlements or court rulings favoring incarcerated people—particularly the Prison Litigation Reform Act—help explain this tendency. Lawsuits’ observed influence on standardization and professionalization offer some support for litigation’s capacity to impel changes; litigation’s failure to predict mortality, however, gives pause regarding this capacity’s extent.