Fifty years ago, the US Supreme Court decided the landmark case Estelle v. Gamble. Within health law and policy, Estelle is commonly known for establishing a duty on the government to provide health services to all incarcerated people, whether before or after conviction. As such, the decision presents a kind of paradox, offering the incarcerated population a constitutional right to health that is otherwise unavailable to the overwhelming majority of people in American society.
In this column, addressed primarily to health sciences professionals, we pursue a pair of goals that, taken together, offer a brief critical reappraisal of Estelle and its implications for the future of US carceral health care. First, we review the exact legal standard that Estelle requires — one widely recognized as immensely difficult to satisfy. We also identify a set of related litigation barriers that, in practice, deter or prevent incarcerated individuals from obtaining relief in court. Second, in light of these constraints, we argue for a carceral health law paradigm that moves beyond the current, dominant focus on litigation. We use Medicaid reentry waivers as a case study to explore the potential and drawbacks of a broader administrative structure for carceral health care.
Defining the “Right” to Carceral Health Care
We begin our reappraisal of Estelle by addressing two key points: (1) the exact legal standard set out by the decision and (2) associated litigation barriers that often prohibit incarcerated people from obtaining relief.
Applicable Constitutional Standards
The Fifth, Eighth, and Fourteenth Amendments of the US Constitution establish the duty to provide carceral health care. The right to care among convicted people is governed by the Eighth Amendment’s prohibition against “cruel and unusual punishments.”1 By contrast, the right among pretrial detainees is governed by the Fifth and Fourteenth Amendments’ due process protections.2 These constitutional obligations are enforced most commonly through 42 U.S.C. § 1983, which provides a civil cause of action for deprivations of federal constitutional rights committed under color of state law.3
Two landmark cases control the Eighth Amendment’s application to the prison health care context: Estelle and Farmer v. Brennan. Estelle established the “deliberate indifference to serious medical needs” standard.4 A plaintiff would presumptively meet this standard if they can show that a prison official intentionally ignored a known medical need — for example, through treatment denial.5 Estelle distinguished standard medical malpractice from Eighth Amendment violations, noting that an “inadvertent failure to provide adequate medical care” fails to rise to the deliberate indifference threshold.6 The crux, as one federal appellate court observed, is that substandard health care “must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”7
Farmer v. Brennan — decided nearly two decades after Estelle — made Estelle’s deliberate indifference standard more stringent by adding a demanding subjective component. On this standard, an official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.”8 In other words, the act of knowing of and disregarding “an excessive risk to inmate health or safety” is the type of act forbidden by the Eighth Amendment.9 The deliberate indifference standard functionally prevents courts from enforcing carceral health rights absent a showing of intention or knowledge — a high burden of proof indeed.Reference Dolovich10
Pretrial detainees’ health care cases, by contrast, are adjudicated under the due process clause in the Fifth Amendment (i.e., applicable to people in federal custody) and the Fourteenth Amendment (i.e., applicable to those in local and state custody). Courts are not unanimous in how to adjudicate these cases. One reason is the Supreme Court’s 2015 decision in Kingsley v. Hendrickson, which changed the practice of applying the Eighth Amendment Estelle standard to due process claims. Kingsley evaluated an excessive force claim against jail officials, holding that pretrial detainees need not prove that officials subjectively knew the force was excessive — only that it be objectively excessive.11 Kingsley tied reasonableness to a case-by-case assessment of the facts, based on the perspective of a “reasonable officer on the scene.”12 This assessment is roughly based on what the officer knew or should have known.13
The Second, Fourth, Sixth, Seventh, and Ninth Circuit Courts of Appeals have relied on Kingsley in reviewing pretrial detainees’ health care claims.14 Yet others have maintained the more demanding, subjective requirement of Estelle’s deliberate indifference standard. The Supreme Court has declined to clarify this ambiguity.15
Taken together, Estelle and its progeny are both complex and demanding. Yet commentators routinely invoke the “right” to carceral health care without probing its content and its application across different detention contexts. At minimum, a distinction must be drawn between negative and positive rights in this context — the former imposing a duty of non-interference on government actors, and the latter providing people with something more akin to a right to self-determination. The right to carceral health care protected by Estelle might be best characterized as a negative right against deliberate state indifference to serious medical needs rather than an affirmative entitlement to decent health care. Discourse conflating the Estelle paradigm with a positive right risks perpetuating the notion that litigation alone can reliably remedy these deficiencies.
Barriers to Litigation
Even when a plaintiff can meet the specific legal standards defined above, barriers to litigation abound. Consider the following sampling of barriers. Many scholars have written about the Prison Litigation Reform Act (PLRA), which applies to federal court litigation.Reference Garrett and Kovarsky16 The statute stipulates that all available administrative remedies must be exhausted before allowing a claim to be brought in court.17 Courts consider complaints about health care treatment to be about carceral detention conditions, falling under the PLRA’s exhaustion requirement.18 Because incarcerated people must first navigate complex institutional grievance processes before filing suit, exhaustion requirements can substantially delay access to legal remedy.Reference Alsan19 But the exhaustion requirement is not the only barrier introduced by the PLRA. The PLRA also imposes limits on attorney fees, deterring an inmate’s opportunity to bring a carceral health claim in the first instance.20
Structurally, the PLRA stipulates that courts should only approve remedies that are “narrowly drawn” and that correct specific federal-rights violations using the “least intrusive means.”21 Rectifying more systemic failures — such as inadequate health care facilities, overcrowding, and understaffing — does not easily comport with this “narrowly drawn” framework.Reference Brinkley-Rubinstein, Berk and Williams22 Beyond the PLRA, incarcerated individuals have limited access to resources, which impede otherwise viable claims. They may not have access to counsel. They may not have the ability to access their health care records. They may face qualified immunity defenses. And they may have to jump through other procedural hoops that are difficult — and at times impossible — to satisfy.Reference Farrell23 Given these resource constraints, incarcerated plaintiffs may want to turn to other areas of law for relief. The majority in Estelle suggested as much — noting medical malpractice claims might provide such an avenue.24 Yet problems abound there too, including the unavailability of counsel and the existence of stringent statutory burdens (e.g., expert testimony requirements at early litigation stages).
Even where incarcerated litigants succeed, the result is often unsatisfactory. Brown v. Plata furnishes perhaps the most high-profile example. In a narrow 5-4 ruling, the Supreme Court upheld an order to decrease California’s prison population, naming overcrowding as the “primary cause” of “grossly inadequate” physical and mental health care.25 In one facility, the Court observed, up to 50 incarcerated people would await medical care in a “12- by 20-foot cage” for up to 5 hours.26 For others with mental health issues, wait times could last up to 12 months. In a facility with a shortage of treatment beds, one patient with noted suicidal ideation waited for nearly 24 hours in a “telephone-booth-sized cage” standing “in a pool of his own urine.”27 These affronts to “the essence of human dignity inherent in all persons” compelled the Court to grant relief.28
But this landmark ruling was more an exception than the rule. It required class actions, “years of litigation,” and a highly developed factual record — culminating in a three-judge court process supported by exceptionally extensive testimony.29 This type of process is poorly suited to rectify everyday carceral health care hazards. What is more, whether Plata even constitutes a success for incarcerated Californians is unclear. In 2023, over a decade after Plata, California prisons operated at 117.6% of design capacity — below the Plata threshold, but over what these facilities were constructed to handle.30 Moreover, Plata could not meaningfully confront the upstream factors driving mass incarceration, including prosecution, sentencing, and other dynamics that determine the flow of people into jail and prison.
The current litigation paradigm is also not nimble enough to contend with emergent public health crises, as the COVID-19 pandemic has demonstrated.Reference Aviram and Goerzen31 Such crises introduce new, time-sensitive health risks like COVID-19 transmission to immunocompromised incarcerated people.Reference Macmadu32 The typical grievance exhaustion and litigation route often cannot keep up, due in no small part to how emergencies disrupt these complicated grievance workflows. Indeed, some incarcerated litigants alleging failures to contain the spread of COVID-19 in their facilities died before their cases were even properly adjudicated.Reference Schlanger and Ginsberg33
Carceral Health Care Beyond Estelle v. Gamble
Improving carceral health care requires operating beyond the constraints of litigation. We see transformation in Medicaid law and policy as offering a potentially fruitful path forward, but one that must be accompanied by broader reforms.
Two of us have joined a chorus critiquing the so-called Medicaid Inmate Exclusion Policy, which bars, except in narrow circumstances, Medicaid dollars from paying for carceral health care.Reference Barsky, Jolin and Rosenthal34 Illustratively, the Medicaid Reentry Act, introduced on April 1, 2025, would have allowed the Centers for Medicare & Medicaid Services (CMS) to fund health services for incarcerated people in the 30 days before release nationwide.35 The bill would also compel the Medicaid and CHIP Payment and Access Commission to report to the US Congress on carceral health care standards and oversight, the early impacts of 30-day prerelease Medicaid coverage, and any recommended policy actions to improve coverage and reentry transitions.36
Such a reform would introduce much-needed oversight into carceral health systems themselves, and it would potentially facilitate community-based coverage and care for the millions of people who leave jail and prison each year.Reference Dumont37 Although state departments of correction have promulgated health care guidance, these standards are inconsistent across jurisdictions and routinely misaligned with the highest quality medical evidence.Reference Maner38
The Medicaid Reentry Act ultimately stalled, but similar congressional action offers some optimism. The Consolidated Appropriations Act of 2023 required that state Medicaid programs provide prerelease screening, diagnostic services, and targeted case management for eligible incarcerated youth.39 The Consolidated Appropriations Act of 2024 also stipulated that Medicaid coverage be suspended rather than terminated during incarceration to facilitate reactivation upon release.40
In the meantime, recent Section 1115 Medicaid reentry waivers open other possibilities. In April 2023, CMS released guidance encouraging states to pursue Medicaid waivers that would extend certain health services to incarcerated people in the prerelease period to support successful reentry.Reference Saloner41 CMS’s guidance for these waivers furnished three core benefits: comprehensive case management, prerelease medication for substance-use disorder (SUD), and a 30-day supply of prescribed medications at release.42 As of May 2026, CMS had formally approved reentry waivers in 19 states, although Michigan has withdrawn its waiver, and Oregon has announced that it would not move forward with implementation; eight states and the District of Columbia have waivers pending, with Louisiana anticipating approval.43
The literature about these waivers is still emerging, but evidence suggests potential benefits. State Medicaid expansions have been associated with improvements in mortality outcomes among formerly imprisoned people, and a scoping review shows that the Affordable Care Act’s coverage expansions more broadly have been associated with increased insurance coverage rates within this population and reduced recidivism.Reference Barsky44 Though via a different mechanism, expansions to health insurance access through waiver demonstrations may deliver similar benefits. At the same time, more than half of included studies in this scoping review drew from a mere two data sources, and few studies contemplated health outcomes and costs of care.45 Likewise, recent research finds no statistically significant impact of Medicaid coverage on criminal charges or on convictions, suggesting Medicaid expansion’s effect on recidivism may have been overstated by prior work.Reference Finkelstein, Miller and Baicker46
These waivers also have important vulnerabilities. First, shifts in federal administrative preferences warrant some caution. For example, Oregon’s Health Authority recently decided not to proceed with its waiver initiative, which would have furnished basic prerelease services — such as visits with outside providers, behavioral health and addiction counseling, and short-term prescription supplies — up to three months before release.47 It cited the administrative burden of complying with new Medicaid eligibility requirements introduced by the One Big Beautiful Bill Act (OBBBA) and the impending expiration of the state’s Medicaid federal authorization.48
An interim final rule implementing the OBBBA’s Medicaid work requirements poses additional complications.49 On its face, the rule exempts many people reentering the community from incarceration (e.g., people deemed “medically frail” and those actively pursuing SUD treatment). But proof and verification of these statuses will likely prove challenging for many states. In addition, the rule exempts recently incarcerated individuals to account for what CMS describes as “the significance of the transition from a public institution to a community setting”: if “at any point during the 3-month period ending on the first day of such month, the individual was an inmate of a public institution,” they are deemed compliant with the work requirement.50 But this grace period might prove insufficient for many, given the barriers to employment facing the reentry population. Evidence suggests it can take more than six months for those reentering society to find employment.Reference Carson51 As a result, work requirements may reverse the continuity of care goal sought by Section 1115 waivers.
Beyond these dynamics, implementation challenges may blunt or circumvent the potential of these waivers. Steiner and colleagues note that, depending on how they are carried out, waivers might empower carceral agencies to “prioritize surveillance and compliance monitoring over trust-based care, use medical data to extend control or punishment, or restrict provider choice to systems already embedded within correctional frameworks.”Reference Steiner52 These risks, among others, underscore the necessity of centering the experiences and needs of impacted communities at every juncture in the policy implementation process, from design through evaluation.
These challenges are, finally, reminders that waivers should be accompanied by other reforms that look beyond Medicaid reform. Accreditation, for instance, may help constrain the discretion jail and prison administrators hold over new service implementation by improving care standards and compliance. In a working paper, Alsan and Yang have reported that jail health care accreditation improved coordination between custody and medical staff and compliance with overall quality standards, particularly in the areas of personnel training and treatment; for incarcerated patients, accreditation decreased overall mortality.Reference Alsan and Yang53 Others have called for further reforms, including more investment in prerelease Medicaid enrollment services regardless of waiver status, as well as improved, independent oversight of carceral health service delivery.Reference Cloud54
Conclusion
Despite its importance, Estelle is backward-looking and cannot address more structural features of American carceral health care. We have outlined a pathway outside the confines of federal constitutional litigation to realize the right to carceral health care. Medicaid reforms have promise, but their potential shortcomings emphasize that the work of constructing a positive legal vision for carceral health care may have only begun.
Acknowledgements
The authors thank Hadar Aviram, Brendan Saloner, and Brie Williams for comments and feedback on previous versions of this manuscript.
Disclosures
The authors have nothing to disclose.
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