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Litigation behind bars: for prisoners suffering from hepatitis C and other effects of incarceration, the trial lawyer is often their only hope.

Article Excerpt
Prisoners constitute a substantial and growing portion of the American population. The United States, which has the highest per capita incarceration rate in the world, currently keeps more than 2 million people behind bars. For some groups, the statistics are even more chilling: An African-American male born in 1991 has a 29 percent chance of spending time in prison at some point in his life. (1)

Prisoners, who are overwhelmingly poor and uneducated, are among the most vulnerable members of society. Only one-third have a high school diploma. Many were unemployed or homeless immediately before their incarceration. (2) Drug and alcohol dependency is common.

Once incarcerated, prisoners are entirely reliant on the prison to fulfill basic needs--food, clothing, shelter, sanitation, medical care, (3) and personal safety. In other situations in which individuals may not control these needs themselves, the law imposes a higher duty on caretakers. Common carrier liability is imposed on hotels and trains, for example, requiring them to take extra precautions toward guests and passengers, who surrender part of their freedom when they use these services. (4) The Supreme Court has recognized that "when the state takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." (5)

Prisoners are politically powerless, largely despised by the general population, and, in almost every state, deprived even of the right to vote. In addition, prisoners have limited contact with the outside world. Prisoners do not have access to the Internet, their mail is censored, and their phone calls and visits are limited. Prison law libraries have been curtailed and in some cases entirely eliminated following the Supreme Court's decision in Lewis v. Casey, so prisoners cannot easily research their substantive rights and how to enforce them. (6) The only lawyer most prisoners know, their public defender or contract attorney, may be barred from helping them address bad prison conditions. (7)

The Prison Litigation Reform Act (PLRA), enacted in 1996, erects major barriers to the enforcement of prisoners' rights, while limiting the availability of attorney fees, making it difficult even for prisoners with meritorious claims to attract counsel. (8) Organizations like the American Civil Liberties Union (ACLU) are inundated with requests for assistance from prisoners. It can take only a small fraction of the cases it reviews. These limitations essentially silence indigent and illiterate prisoners. (9)

Ideas about prisons' role in society vary, but the Eighth Amendment clearly bars them from inflicting "cruel and unusual punishments." (10) What constitutes cruel and unusual punishment has been the topic of many Supreme Court cases over the years.

Some seem obvious--in Hudson v. McMillian, guards took a prisoner from his cell and placed him

in handcuffs and shackles ... and walked him toward the penitentiary's "administrative lockdown" area. [The prisoner] testified that, on the way there, [an officer] punched [him] in the mouth, eyes, chest, and stomach, while [another officer] held the inmate in place and kicked and punched him from behind. He further testified that the supervisor on duty watched the beating, but merely told the officers "not to have too much fun." (11)

The Court found that although the injuries from the beating were not "serious," this conduct constituted "cruel and unusual punishment."

Similarly, in Hope v. Pelzer, the Court had little trouble concluding that the Eighth Amendment...

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