Background Briefing

Applicable Law and Guidelines

International Legal Standards

The treatment of prisoners in the United States is governed by international human rights law. The United States is a party to the International Covenant on Civil and Political Rights (ICCPR), which guarantees to all persons the right to life, and to be free from cruel, inhuman or degrading treatment; and if deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person.22  The United States is also a party to the Convention Against Torture (CAT), which protects all persons from torture and ill-treatment; and a signatory of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees the right to the highest attainable standard of health.23 The obligations to protect the rights to life and health and to protect against torture and other ill treatment create positive duties on the government to ensure access to adequate medical services and to take appropriate measures necessary to prevent and control disease.

International human rights law clearly affirms that prisoners retain fundamental rights and freedoms guaranteed under human rights law, “subject to the restrictions that are unavoidable in a closed environment.”24  The conditions of confinement should not aggravate the suffering inherent in imprisonment, as loss of liberty alone is the punishment.25  States have positive obligations to take measures to ensure that conditions of confinement comply with international human rights norms and standards. The Human Rights Committee, an expert UN body that monitors state compliance with the ICCPR and provides authoritative interpretations of its provisions, has explained that states have a “positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty,” stating further that:

Not only may persons deprived of their liberty not be subjected to [torture, or other cruel, inhuman or other degrading treatment or punishment], including medical or scientific experimentation, but neither may they be subjected to any hardship or restraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the ICCPR, subject to the restrictions that are unavoidable in a closed environment.26

The ICESCR recognizes in Article 12 “the right of everyone to the highest attainable standard of health.” The ICESCR requires that states take all the steps necessary for “the prevention, treatment and control of epidemic…diseases” which include the establishment of prevention and education programmes for behaviour-related health concerns such as sexually transmitted diseases, in particular HIV/AIDS.27  Realization of the highest attainable standard of health requires not only access to a system of health care; it also, according to the UN Committee on Economic, Social and Cultural Rights, requires states to take affirmative steps to promote health and to refrain from conduct that limits people’s abilities to safeguard their health. Laws and policies that are “likely to result in…unnecessary morbidity and preventable mortality” constitute specific breaches of the obligation to respect the right to health.28

Key international instruments establish the general consensus that prisoners are entitled to a standard of health care equivalent to that available in the general community, without discrimination based on their legal status.29  In some cases, state obligations to protect prisoners’ fundamental rights, in particular the rights to be free from ill-treatment or torture, the right to health, and ultimately the right to life, may require states to ensure a higher standard of care than is available to people outside of prison who are not wholly dependent upon the state for protection of these rights.30  In prison, where most material conditions of incarceration are directly attributable to the state, and inmates have been deprived of their liberty and means of self-protection, the requirement to protect individuals from risk of torture or other ill-treatment can give rise to a positive duty of care, which has been interpreted to include effective methods of screening, prevention, and treatment of life-threatening diseases.31

The WHO Guidelines on HIV Infection and AIDS in Prison; UNAIDS International Guidelines on HIV/AIDS and Human Rights; and the UNODC HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings elaborate specific guidance to states on protecting prisoners’ fundamental rights to HIV/AIDS prevention, care and treatment.32  The principle of equivalence is specifically set forth in the Basic Principles for the Treatment of Prisoners, adopted by the United Nations General Assembly in 1990:

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants…Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.33

The WHO Guidelines on HIV Infection and AIDS in Prisons states that prisoners are entitled to prevention programs equivalent to that available in their community, and specifically addresses the issue of condom distribution in a prison environment: 

Preventative measures for HIV/AIDS in prison should be complementary to and compatible with those in the community. Preventative measures should also be based on risk behaviours actually occurring in prisons, notably needle sharing among injection drug users and unprotected sexual intercourse… Since penetrative sexual intercourse occurs in prison, even when prohibited, condoms should be made available to prisoners throughout their period of detention.34

US Legal Standards

The Eighth Amendment to the US constitution protects prisoners from “cruel and unusual punishment” and requires corrections officials to provide a “safe and humane environment.” Estelle v. Gamble, 429 U.S. 97 (1976). In the United States prisoners have a right to health care that is not shared by the general population. As Justice Marshall explained in the Estelle decision:

These elementary principles establish the government’s obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical “torture or lingering death,” the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering, which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation, codifying the common law view that “it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”35

In 1991 the Supreme Court narrowed its interpretation of the Eighth Amendment,   requiring inmates to demonstrate that officials were “deliberately indifferent to serious medical needs.”  Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321 (1991).  This standard involves both an objective (serious medical need) and subjective (deliberately indifferent) component. The subjective component has been interpreted as met when a prison official “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994). There are no reported cases addressing the constitutionality of a prison system’s failure to provide condoms to inmates.  Arguably, the refusal to implement condom distribution programs in US prisons and jails meets this standard, particularly when the rates of infection among inmates, their high-risk behavior, and the incidence of transmission of disease is well documented.

22 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force March 23, 1976, ratified by the U.S. on June 8, 1992, arts. 6, 7, 10(1).

23 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. Res. 39/46, annex, 39 UN GAOR Supp. (no. 51) at 197, UN Doc. A/39/51(1984), entered into force June 26, 1987, ratified by the U.S. on October 14, 1994; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 UN GAOR (no. 16) at 49, UN Doc. A/ 6316 (1966), 99 UNTS 3, entered into force January 3, 1976, signed by the U.S. on October 5, 1977, art. 12.

24 UN Committee on Human Rights, General Comment No. 21, Article 10, Humane Treatment of Prisoners Deprived of their Liberty, UN Doc. HRI/Gen/1/Rev.1 at 33 (1994), para. 3.

25 Ibid.

26 Ibid.

27 Although the US has not ratified the ICESCR, as a signatory it has the obligation to refrain from actions that would defeat the treaty’s object and purpose. See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, entered into force Jan. 27, 1980, art. 18.

28 UN Committee on Economic, Social and Cultural Rights, General Comment No 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000), para. 6.

29 Basic Principles for the Treatment of Prisoners, UN General Assembly Resolution 45/111 (1990); WHO Guidelines on HIV Infection and AIDS in Prisons (1999), Articles A (4) and  C (ii); the Body of Principles for the Protection of All Persons Under any form of Detention or Imprisonment, UN General Assembly Resolution 43/173 (1988). Although these instruments are not legally binding in and of themselves, they provide authoritative guidance to states on the interpretation of relevant treaty obligations.

30 See, Rick Lines, “From equivalence of standards to equivalence of objectives: the entitlement of prisoners to standards of health higher than those outside prisons,”International Journal of Prisoner Health, vol. 2 (2006), p. 269.

31 See, e. g. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT Standards, CPT/IN/E 2002,para. 31.

32 WHO Guidelines, supra; UNAIDS International Guidelines on HIV/AIDS and Human Rights, (2006), Article 21(e); UNODC, HIV/AIDS Prevention, Care, Treatment and Support in Prison Settings: A Framework for Effective National Response (2006).

33 Basic Principles, supra, at para 5.

34 WHO Guidelines, supra, Article A (1).

35 Estelle v. Gamble, 429 U.S. 97, 100 (1976), citations omitted.