End Medical Experimentation on Prisoners Now

Prisoners have no rights regarding the quality of their medical care or their participation in experiments.

Silja J.A. Talvi

One of the most pow­er­ful movies ever to be made about the Holo­caust was the 2003 made-for-TV movie, Out of the Ash­es, which high­light­ed the sick­en­ing cru­cible faced by med­ical pro­fes­sion­als held cap­tive in the Third Reich’s tor­ture-and-killing camps. 

Medical experimentation on prisoners in the United States never went away; researchers just got savvier about keeping their prison studies out of the public eye.

Med­ical exper­i­men­ta­tion on Jew­ish and Roma (Gyp­sy) women was one of Dr. Josef Mengele’s favorite forms of enter­tain­ment. In the movie, Dr. Gisel­la Perl (Chris­tine Lahti) faces an eth­i­cal cri­sis when she is forced to com­fort a young preg­nant Roma woman and then stand by and watch as Men­gele, the Angel of Death, marks up and slices open her stom­ach with­out the ben­e­fit of anes­the­sia. Mengele’s sadis­tic detach­ment as he walks away from the remains of the dead woman and her fetus is ago­niz­ing­ly con­trast­ed with Perl’s help­less­ness and trauma.

Perl’s sto­ry is real. Mil­lions died, and thou­sands were exper­i­ment­ed on (and then usu­al­ly mur­dered) in the name of the Nazi sci­ence” of eugen­ics. And it is because of such treat­ment that in 1947, the Nurem­berg Code spelled out an unequiv­o­cal posi­tion on the exper­i­men­ta­tion of peo­ple in cap­tiv­i­ty: The human sub­ject of med­ical exper­i­men­ta­tion should have legal capac­i­ty to give con­sent … [and] should be so sit­u­at­ed as to be able to exer­cise free pow­er of choice, with­out the inter­ven­tion of any ele­ment of force, fraud, deceit, duress, over-reach­ing or oth­er ulte­ri­or form of con­straint or coercion.”

Strange thing about this coun­try of ours – we always seem to be able to jus­ti­fy the legit­i­mate” excep­tions to inter­na­tion­al law and agreements. 

From the 40s through the ear­ly 70s, the Unit­ed States offi­cial­ly sanc­tioned the use of pris­on­ers in med­ical exper­i­ments, includ­ing the injec­tion of typhoid fever, her­pes, malar­ia, TB and a host of sex­u­al­ly trans­mit­ted dis­eases. In the name of sci­ence, doc­tors have dosed pris­on­ers with LSD, placed them in extreme iso­la­tion to devel­op mind con­trol” tech­niques, and, in Wash­ing­ton State between 1963 and 1973, radi­at­ed their tes­ti­cles and then sliced them open. (This last case brought about one of the few suc­cess­ful law­suits by pris­on­ers against med­ical experimentation.)

In 1976, things seemed to change for the bet­ter. The Nation­al Com­mis­sion for the Pro­tec­tion of Human Sub­jects of Bio­med­ical and Behav­ioral Research released a scathing report that led to new pro­tec­tions of human research sub­jects. The spe­cif­ic pro­tec­tions for pris­on­ers, in a sec­tion known as Sub­part C, accom­pa­nied sim­i­lar pro­tec­tions for the dis­abled, chil­dren and oth­er vul­ner­a­ble populations.

Now, things may be chang­ing again to allow for more med­ical exper­i­men­ta­tion on pris­on­ers. In August, the influ­en­tial Insti­tute of Med­i­cine (IOM), pre­sent­ed a report, Eth­i­cal Con­sid­er­a­tions for Research Involv­ing Pris­on­ers,” to fed­er­al offi­cials that rec­om­mend­ed increas­ing research on prison pop­u­la­tions. Such research, the report said, pro­vid­ed a way of improv­ing the health of pris­on­ers and the con­di­tions in which they live.” In an August 21 edi­to­r­i­al, USA Today hearti­ly agreed.

The report also raised valid con­cerns about con­sent, safe­guards, pris­on­er pri­va­cy and access to ade­quate health care while in prison. It also called for the expan­sion of the def­i­n­i­tion of pris­on­ers” to include all of the near­ly 7 mil­lion per­sons under some form of adult cor­rec­tion­al supervision. 

The IOM said that respect for per­sons and jus­tice should still be the basis for the con­duct and reg­u­la­tion of pris­on­ers today.” In reac­tion, a New York Times edi­to­r­i­al two days lat­er observed that: The coun­try should move slow­ly on this issue. The sav­age and dis­hon­or­able lega­cy of drug test­ing in prison makes it imper­a­tive that any change be car­ried out care­ful­ly, with max­i­mum trans­paren­cy and con­cern for inmate safety.”

But the Unit­ed States has already been mov­ing far too slow­ly on this issue. A 1978 fed­er­al reg­u­la­tion stat­ed that pris­on­ers can par­tic­i­pate in fed­er­al­ly-fund­ed research only if the exper­i­ment pos­es no more than min­i­mal’ risk,” which it defined as a risk of phys­i­cal or psy­cho­log­i­cal harm that is no greater in prob­a­bil­i­ty and sever­i­ty than that ordi­nar­i­ly encoun­tered in the dai­ly lives, or in the rou­tine med­ical, den­tal or psy­cho­log­i­cal exam­i­na­tions of healthy per­sons.” While that would seem to make a cer­tain amount of sense, fed­er­al over­sight and mon­i­tor­ing of med­ical exper­i­men­ta­tion has been incred­i­bly slop­py and dis­or­ga­nized, even accord­ing to those who have been respon­si­ble for that over­sight. What we’ve got from the reg­u­la­to­ry stand­point is a mess,” said Dr. Thomas Puglisi, the for­mer direc­tor of com­pli­ance for the Office of Pro­tec­tion from Research Risks – now the Office of Human Research Pro­tec­tions (OHRP) – at a med­ical research sum­mit in March 2001. I couldn’t say that when I worked for the fed­er­al gov­ern­ment, but I can say that now.”

And it’s worth not­ing that the only nation­al over­sight is of clin­i­cal tri­als in pris­ons that receive fed­er­al funds. Phar­ma­ceu­ti­cal com­pa­nies that want to fund their own stud­ies have no over­sight body out­side of what a prison or state might deem min­i­mal­ly nec­es­sary. A nation­al data­base of med­ical exper­i­men­ta­tion on pris­on­ers does not exist. Research stud­ies don’t even always end up being pub­lished – par­tic­u­lar­ly when they fail, some­times caus­ing seri­ous injury or death to their human subjects. 

These are among the most severe obsta­cles fac­ing jour­nal­ists who try to find out more about what’s going on, as I dis­cov­ered while pur­su­ing a Jan­u­ary 2002 cov­er sto­ry for In These Times, The Prison as Lab­o­ra­to­ry.”

In inves­ti­gat­ing that sto­ry, I found that the num­ber of exper­i­men­tal stud­ies on youth and adults in cor­rec­tion­al facil­i­ties was increas­ing. Many of the stud­ies clear­ly and egre­gious­ly vio­lat­ed the exist­ing reg­u­la­tions on min­i­mal” risk to their sub­jects, accord­ing to FOIA doc­u­ments I received from the OHRP. 

Sim­ply put, med­ical exper­i­men­ta­tion on pris­on­ers in the Unit­ed States nev­er went away. Researchers just got savvi­er about keep­ing their prison stud­ies out of the pub­lic eye, often turn­ing to phar­ma­ceu­ti­cal fund­ing, which allows them to exper­i­ment with as lit­tle notice, over­sight or inter­ven­tion as possible.

Last year, the OHRP Secretary’s Advi­so­ry Com­mit­tee on Human Research Pro­tec­tions (SACHRP) asked its Sub­part C sub­com­mit­tee (address­ing pris­on­er safe­guards) to deter­mine whether exist­ing reg­u­la­tions were still ade­quate,” as well as to inves­ti­gate the preva­lence of med­ical test­ing on prisoners. 

In the inter­nal doc­u­ment sub­mit­ted by that sub­com­mit­tee to SACHRP, more than 1,000 stud­ies relat­ed to pris­on­ers or incar­cer­a­tion came up as hits” on a PUBMED data­base search. Of the 79 stud­ies that appeared to be con­duct­ed entire­ly in prison set­tings, 63 per­cent had to do with socio-behav­ioral research revolv­ing around sub­stance abuse, men­tal ill­ness and dis­ease risk behaviors. 

The report not­ed the lack of real, cen­tral­ized infor­ma­tion on med­ical test­ing on pris­on­ers, and added much of the research in cor­rec­tion­al set­tings is grad­u­ate stu­dent research of uncer­tain quality.”

Med­ical test­ing in pris­ons should be brought to a halt – at the very least until qual­i­ty prison health care for every sin­gle inmate is a real­i­ty. Gen­uine pre­ven­ta­tive and inter­ven­tion­ist care for peo­ple out­side of prison who can­not afford med­ical insur­ance should also be a priority. 

Before pris­on­ers can freely make deci­sions about their med­ical care and treat­ment they first must have access to med­ical care and treat­ment that meets with com­mu­ni­ty stan­dards,” says Paul Wright, edi­tor of Prison Legal News. Every day pris­on­ers around the coun­try are dying of med­ical neglect because they are not pro­vid­ed with sim­ple, known and avail­able med­ical care. It is laugh­able to think that some­how cut­ting-edge med­ical treat­ment is sud­den­ly going to be made avail­able to pris­on­ers. The peo­ple car­ry­ing out the drug test­ing have a fidu­cia­ry duty to enrich their share­hold­ers and employ­ers, not pro­vide the best med­ical care for prisoners.”

In the cur­rent sys­tem, pris­on­ers’ lives are already endan­gered. In light of this country’s lega­cy of med­ical­ly abus­ing cap­tive pop­u­la­tions – and to hon­or the mem­o­ry, intent and pur­pose of the cre­ation of the Nurem­berg Code – prison exper­i­men­ta­tion sim­ply needs to come to an end. 

Sil­ja J.A. Talvi, a senior edi­tor at In These Times, is an inves­tiga­tive jour­nal­ist and essay­ist with cred­its in many dozens of news­pa­pers and mag­a­zines nation­wide, includ­ing The Nation, Salon, San­ta Fe Reporter, Utne, and the Chris­t­ian Sci­ence Monitor.
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