By Fred Cohen
America’s prisons are bursting at the seams with over 2 million prisoners, of whom perhaps 200,000 are over the age of 50. Older prisoners are subject to the same hearing problems associated with age as the free world population. However, under our legal system prisoners are entitled to medical care that does not exist for persons in the free world by virtue of their imprisonment.
Prisoners’ custodians have the legal duty to preserve the life and safety of those in their charge, and that includes food, clothing, shelter, and medical care. Hearing loss of a certain degree will qualify as “serious” and entitle the afflicted prisoner to appropriate care ranging from a hearing aid to the assistance of an interpreter.
The Eighth Amendment to U.S. Constitution prohibits “cruel and unusual punishment,” and this proscription encompasses the right to treatment for “serious” hearing impairments. The right to appropriate treatment does not turn on the cause of the impairment. Rather, it depends on the seriousness of the hearing loss and the resultant functional impairment.
Prisoners also have a statutory right under the Americans With Disabilities Act (ADA) to not be excluded from participation in, or denied the benefits of, the services, programs, or activities of a public entity (i.e., a prison). An ADA-eligible disability is a physical or mental impairment that substantially limits one or more major life activities.
Inmates with a severe, and certainly a profound, hearing loss would likely qualify for appropriate care under the constitutional requirement of a serious medical condition and also be eligible for assistance to aid in the participation of prison programs and activities.
IMPACT
When serious hearing deficits are unattended to in prison, prisoners may be disciplined for failing to obey an order they did not hear; assaulted by staff or fellow inmates for the perceived “insult” of silence; suffer social isolation and depression; serve longer terms by virtue of exclusion from classes and rehabilitation programs; be unable to adequately participate in a prison disciplinary hearing; and so on. The problems are multiple, authentic, and too-often unattended to.
California prisoners are to be issued hearing-impaired identification vests as a form of protection by identification. Hearing aids and batteries also may be provided. There is current California litigation on the alleged failure to issue the protective vests and requisite batteries. Cases in Oregon and Michigan involve prisoners’ claims that staff stole their hearing aids and no replacement was provided.
An earlier Missouri prison decision dealt with a “deaf person’s” need for a sign language interpreter during needed medical care, educational programs, and disciplinary and classification hearings.
In New York, a 1995 case involved an Equal Protection claim by hearing-impaired female inmates who did not have access to a sensorially disabled unit where male inmates did.
Prisoners must rely entirely on their keepers for their basic needs, including medical care. Their total confinement creates rights that do not exist for free citizens, including the care needed to hear at a level that allows participation in prison activities and the manifold hazards associated with not hearing.
Government must afford access to, and pay for, the care that is needed. Some states may charge a modest copay, which will be legally upheld so long as lack of funds does not limit the needed assistance.
If this entry engenders any reader response, I will discuss some particular cases and attempt to answer relevant questions.
Fred Cohen, LLB, LLM, Yale Law School, has been a full professor at a number of leading law schools. He was a founder of the Graduate School of Criminal Justice at the State University of New York at Albany, where he developed the law component of its PhD program. Mr. Cohen now serves as the federal court-appointed Monitor in Fussell v. Wilkinson, which encompasses medical and dental care in Ohio’s prisons. He is author of The Mentally Disordered Inmate and the Law as well as of a number of casebooks, treatises, and articles on law and deviance in general. He is the editor of Correctional Mental Health Report and Correctional Law Reporter.
