Jenny had been locked up for several years by the time Ujevich arrived at West Virginia’s all-women Lakin Correctional Center and Jail. There, Ujevich says, Jenny had complained of a persistent pain in one of her breasts, but struggled to get staff to take that problem seriously. In fact, Ujevich says, the staff hardly paid her any mind until Jenny’s condition sharply and visibly worsened. Only after that point did Jenny learn she had breast cancer. 

Ujevich still fumes over how long it took Jenny to obtain that diagnosis, and over what came next: “She couldn’t get her chemo on time,” Ujevich told Bolts.

Jenny was released in late 2016. She spent Christmas with her family, then died in January.

Ujevich is now free and heading a nonprofit project called West Virginia Family of Convicted People, where she advocates for changes to the state’s prison system, including improvements in health care. She’s nervous that a new state law, passed during a special session last month by West Virginia’s GOP-run legislature and signed by its Republican governor, could lead to more cases like Jenny’s.

Senate Bill 1009 bans the use of state funds for any health care for incarcerated people that isn’t deemed “medically necessary.” The policy leaves it to state Corrections and Rehabilitation Commissioner Billy Marshall—a career law enforcement agent who has said incarcerated people are lying when they allege inhumane treatment by the state—to define “medically necessary” and makes clear that this definition can supersede guidance from health professionals. “A provider of health care prescribing, ordering, recommending, or approving a health care service or product does not, by itself, make that health care service or product medically necessary,” the law reads.

West Virginia already routinely fails to provide basic, essential care in its jails and prisons, several formerly incarcerated people told Bolts. Kenneth Matthews, who was locked up for more than eight years and has been free since 2020, says he lived this firsthand, as a diabetic person with high blood pressure. 

In prison, he said “I didn’t get insulin, and they didn’t give me medication for my high blood pressure either. They said maybe if I lost some weight and worked out more, my blood pressure and diabetes would correct itself.”

And Zoey Hott, a trans woman who was incarcerated for about 18 months and released August 1, said people needing gender-affirming care feel this struggle acutely. She told Bolts she was promptly taken off hormone therapy when she arrived at jail and then denied this treatment as she was transferred to several different jails. The interruption, she said, caused physical discomfort and profound mental health issues. 

“It took me five months to even be evaluated,” Hott added. “They don’t really look at it as something of significant importance for anybody. I feel like they view it as an elective procedure.”

Stories like these abound, JoAnna Vance, an organizer with the West Virginia Economic Justice Project, told Bolts. “Health care in jails and prisons is not good. ‘Mental health services’ is just throwing people in solitary. We just had another death in one of our jails this morning. I know people who’ve been having seizures in jail and the correctional officers ignore them or tell the other inmates to deal with it. Lord, there’s so much.” 

West Virginia contracts with a private company, Wexford Health, for medical care in its jails, prisons, and juvenile detention centers. All over the country, from Arizona to Illinois to West Virginia, incarcerated people and their advocates have complained for years of medical dangers resulting from government partnerships with Wexford. Most recently, a lawsuit filed in July accused the company of denying thousands of incarcerated West Virginans medication for opioid use disorder. 

In the treatment of addiction and so much else, health care in U.S. carceral facilities is typically abysmal—even as the people locked in those facilities are, on average, much more medically vulnerable than the population at large. The situation grows even more dangerous where care is outsourced to private companies, like Wexford, a broad Reuters analysis found.

But even against this national backdrop, West Virginia stands out: it led the nation in prison deaths per capita in 2020, and, that same year, the Reuters analysis found that its jails had the highest death rate between 2009 and 2019, among dozens of regions around the country that the news agency surveyed.

And so it is alarming to those critical of this deadly system that the state has passed a new law that could soon curtail what little public funding the state currently allocates for health care in jails and prisons. Advocates worry now about what SB 1009 will mean for incarcerated people seeking gender-affirming care, contraception, disability accommodations, or anything else the state might try to argue is not “necessary.”

“I think this has the potential to be extremely abused. I really do,” Ujevich said. In West Virginia jails and prisons, she added, “They just do not give a shit about your medical care. Not one shit.”

It’s hard to know how, exactly, SB 1009 will change the status quo. The enrolled bill is less than 500 words long and leaves many blanks to be filled. Notably, it does not specify any forms of health care that are being provided today that might be eliminated under this policy and leaves broad authority to the state Division of Corrections and Rehabilitation to set new rules moving forward. 

And while the law does require the division head to consult with a “medical professional” before deciding whether a given instance of medical care is indeed “necessary,” it neither defines “medical professional” nor compels the division to accept professionals’ advice.

Delegate David Kelly, the Republican chair of West Virginia’s House Jails and Prisons Committee, told Bolts the point of the bill is to make carceral health care rules uniform across the state system—that is, he said, whether or not someone receives a certain type of medical care while locked up should not depend on their facility. But he was unable to say whether there is a lack of uniformity in the system today, and could not identify any particular procedures or benefits the state funds today that he believes should not be covered in the future.

With few specifics written into the law and such broad powers granted to prison officials, a dozen different lawyers, lawmakers, advocates, and formerly incarcerated people interviewed for this story told Bolts the best they can hope for is that the policy change won’t much affect West Virginia’s standard of care in jails and prisons. But, “worst-case scenario, it will prevent even more medical care for incarcerated people,” said state Delegate Mike Pushkin, a Democrat who voted against SB 1009.

Pushkin and several others said they believe this law could open West Virginia to lawsuits. Recent successful litigation accused Corrections officials of inadequate medical and mental health care, and a new suit filed this month in federal court alleges 10,000 people in the state’s custody live in inhumane conditions.

“The United States constitution sets the minimum floor as to what the state has to provide to people who are incarcerated, and there’s no statute that the West Virginia legislature could pass that would somehow remove that obligation,” said Lydia Milnes, deputy director at Mountain State Justice, which has sued the state over health care for incarcerated people. If SB 1009 leads West Virginia officials to deny even more basic health care in jails and prisons, Milnes said, “There can and will be more litigation.”

SB 1009 could also be a cost-saving measure for a state jail and prison system dealing with critical staffing issues—Commissioner Marshall said over 1,000 positions are vacant in West Virginia jails and prisons, twice as many as before the COVID-19 pandemic—that advocates say contribute to the state’s deadly carceral conditions. But the special legislative session last month resulted in much more discussion of pay raises for jail and prison staff than of ways to ensure safety and wellbeing for incarcerated people.

“I think they’ve barely chiseled away at the edges,” said Pushkin, one of just 11 Democrats in the 100-member state House. “You need safe places for people who are incarcerated. And we don’t have that here in West Virginia.”

Republican Governor Jim Justice called the special session, which began on the same afternoon he announced it. SB 1009 was one of the 44 bills that Justice included on his call, directing the legislature to take it up.

He requested for the session to begin at 4 p.m. on a Sunday, and some state lawmakers told Bolts they didn’t get a peek at the legislation being proposed until about 3:30 p.m. The process left many people directly concerned with or affected by the slew of legislation no time to assess it, much less to testify on it. 

“The lack of transparency during the special session was completely appalling, and it’s not the way democracy is supposed to work,” Pushkin said.

Kelly, the Republican delegate, pushed back, telling Bolts that SB 1009 had been brainstormed for “several months.” If so, that’s news to many people who work closely on and are directly affected by the issue of health care in jails and prisons in West Virginia.

This policy change concerning “medically necessary” care received only one public hearing before it became law, in a 35-minute discussion of the House Judiciary Committee. The Republicans backing the bill made little effort to identify the need for this change, and Brad Douglas, the executive officer of the Division of Corrections and Rehabilitation, offered little information when he testified under oath. 

In a private meeting the day the special session began, the Republican legislative leadership said this reform was needed “because of nose jobs and knee replacements” for incarcerated people, Democratic state Delegate Evan Hansen told Bolts. “They did not present any backup data or evidence.”

Among the few substantive public remarks any elected West Virginia Republican has made on this policy, state Delegate Brandon Steele voiced support during the committee hearing for state funds being used on voluntary sterilization of incarcerated people.

“If one of these individuals wanted to get a vasectomy or hysterectomy or something like that, I think that it’s good public policy to allow them to do that,” Steele said, in a remark that went unchallenged at the hearing. (Steele isn’t the first to advocate along these lines: GOP state Senator Randy Smith recently suggested West Virginia should shorten jail and prison sentences for anyone who agrees to be sterilized, so that those people “don’t bring any more drug babies into the system.”)

At one point in the hearing, Democratic Delegate Joey Garcia, who sits on the Judiciary Committee, pressed Douglas to identify any procedure or medical benefit that the state is funding today, but may not fund under SB 1009.

“So, you don’t have any examples?” Garcia asked.

“I do not,” responded Douglas.

Only when asked directly about West Virginia’s extreme rate of jail and prison deaths did Douglas even acknowledge them. “It would be accurate to say we’ve had inmates die in jails, yes,” he said. When asked if that is a “problem,” Douglas said only, “It’s never good if any inmate passes away.” 

SB 1009 passed the legislature the following day. It passed the Senate unanimously, including with support from Democratic members. The House passed it on a margin of 86 to 9, with eight Democrats and one Republican opposing. 

“The guy was playing dumb,” Hansen said of Douglas. “But that happens with a lot of bills in the legislature in West Virginia, now that the Republicans have a supermajority. They work things out in their caucus ahead of time, and it’s very rare for someone from the majority party to slow things down by asking questions.”

For the previously incarcerated people who spoke to Bolts, SB 1009 has reaffirmed their feeling of abandonment by the state and renewed their outrage with what they perceive to be indifference by state officials to the lives and livelihoods of those locked up in West Virginia. 

“It’s horrible, to say the least,” Matthews said. “I think they’re putting a lot of men and women’s lives at risk over the sake of potentially saving some money. Somebody’s life shouldn’t have a dollar amount attached to it.”

Soon after he was released, Matthews was hospitalized with diabetic ketoacidosis, a life-threatening condition. “My endocrinologist told me I should have been on medication for a long time,” he said. “I asked, ‘What’s a long time?’ and he said at least the last five or 10 years. I said, ‘That’s interesting, because I was incarcerated for most of that time.’”

Matthews said that his own experience underscored for him that whether a particular procedure or treatment is considered elective or necessary can depend on the whims of whomever gets to make the call.

“It would have been very easy for them to get me on medication to control this early, but I guess they didn’t feel that it was ‘medically necessary,’” he said. “A lot of guys’ life expectancy is shortened because of this. I could’ve died in my sleep because they didn’t take my issues seriously.”

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Maurice Monk, who died inside Alameda County’s notorious Santa Rita Jail last year on November 15, was there because he had threatened a bus driver who told him to put his mask on—and because his family could not afford the $2,500 necessary for his bail. He was 45 years old, the father of two teenage children, and the brother of two sisters, Tiffany and Elvira. He suffered from schizophrenia and bipolar disorder, and nine days before his death—because he was in jail—he had missed a shot of antipsychotic medication he’d been receiving regularly for years. 

Elvira was a fierce advocate for Maurice, managing his medication and doctors appointments. When he was sent to Santa Rita, she tried over and over to get his prescription information to the jail, terrified of him missing a dose. There were a series of bureaucratic hoops to jump through: obtaining permission to send the information directly rather than wait for Kaiser to do it; a series of emails that went nowhere. Elvira kept calling. Finally, the jail gave her a fax number. Elvira felt relieved, but shortly thereafter, she heard a knock at the door. When she opened it, sheriff’s deputies were standing there. 

“They told me that my brother was deceased,” Elvira recalled. The deputies had nothing else for her: no paperwork, no proof of his death, nothing about how or why her brother had died. “They just said, ‘Maurice Monk passed away.’” Maurice had died the day before—he had been dead while his sister was scrambling to get him his prescription. “The day that he died, they could have came and told me that day,” Elvira told Bolts. 

Cases like Maurice’s are not an anomaly at Santa Rita Jail. Gregory Ahern’s 15-year tenure as the sheriff-coroner of Alameda County—a populous East Bay county that is home to Oakland and Berkeley—has seen a string of deaths at the lockup, leaving grieving families struggling to accept the loss of their loved ones behind bars. Fifty-eight people have died in custody there since 2014, making Santa Rita the deadliest jail in Northern California. Repeated allegations of neglect for incarcerated people with mental health needs led to a federal class action lawsuit, Babu v. Ahern, that recently ended in a massive settlement requiring officials to overhaul mental health care and suicide prevention at jail. Under the settlement, the Santa Rita Jail will now be under court oversight for at least the next six years. 

Ahern is now seeking a fifth term, and somehow this is the first cycle he has faced challengers: he initially ran unopposed in 2006 and became sheriff by default. Mental health care and solitary confinement at Santa Rita have emerged as key issues of the race given years of deaths and legal challenges tied to lax treatment at the jail. Both of Ahern’s opponents as well as many organizers in the community blame the sheriff, who has presided over the lockup for years, for the deaths and dangerous conditions that have occurred on his watch. 

Yesenia Sanchez, one of the candidates running against Ahern, became the division commander in charge of Santa Rita Jail just after the pandemic started. She is now in the tricky position of both criticizing the status quo and defending her own record at a time when local activists say conditions have not improved at the lockup. 

The other candidate in the race is San Francisco Police Department veteran JoAnn Walker, who has focused on preventing jail deaths, reducing solitary confinement, and improving mental health care for incarcerated people as core campaign issues.

The three candidates will share one ballot in a nonpartisan June 7 primary, and if no one receives more than 50 percent of the vote, the top two contenders will face off in November. 

Whoever wins will be responsible for implementing the consent decree, which has been heralded as a liberal victory by the San Francisco law firm that litigated it, but bitterly opposed by much of Oakland’s activist community, as well as a number of people currently incarcerated at Santa Rita. Critics of the settlement say it only gives more money and power to the sheriff’s department. The problems with Santa Rita, they say, run too deep to be fixed by more funding, more staff, or a new sheriff—they can only be adequately addressed by removing the jail from the equation entirely. “The county should be focusing its energy into looking at preventative resources and alternatives to incarceration, so that folks don’t end up in jail to begin with,” said Jose Bernal, the organizing director at the Ella Baker Center for Human Rights. 

A recent investigation of Santa Rita by the U.S. Department of Justice concluded that poor treatment of incarcerated people with mental illness there violated the Constitution and the Americans with Disabilities Act. “Clinicians often provide seriously mentally ill prisoners nothing more than handouts that list coping skills or describe deep breathing techniques that may help reduce stress,” the investigation observes. In 2021, a state audit found that there was inadequate information sharing between mental health providers and Santa Rita jail staff regarding the mental health status and needs of incarcerated people, and that jail staff neglected to screen everyone coming into the jail for mental health issues.

Moreover, in-custody deaths at Santa Rita have cost Alameda County millions of dollars in the form of payouts for the families of the deceased, including the largest wrongful death payout in a civil rights case in California history.

Up for re-election and under increased scrutiny, Ahern recently noted at a candidate forum that his department was using the recent audit as a guide to help reduce the number of people in isolation and overall jail deaths. Why had it taken 15 years, a DOJ investigation, multiple lawsuits, and a federal consent decree to make changes at the jail? Ahern told Bolts he has tried to make reforms in the past but lacked necessary funding from the county’s board of supervisors, which controls the purse strings for the sheriff’s department.  

“We were doing the best that we could,” Ahern said.  

In 2020, Ahern asked for and received a $318 million expansion despite the county’s budget crisis. Activists in the community are highly skeptical that lack of funding is the root of problems at the jail. “It’s a ridiculous statement for him to say that he doesn’t have enough funding when the rest of county services are continuing to suffer because of the bloated budget that the sheriff’s department has,” liz suk, the executive director of Oakland Rising Action, told Bolts. 

suk also criticized Sanchez’s more recent tenure as division commander in charge of the jail. “We have continued to see high rates of COVID infection happening at Santa Rita,” she said, observing that jail deaths have also continued to occur under Sanchez. 

Sanchez, for her part, blamed Ahern for why more hasn’t changed at Santa Rita during her tenure, saying that she had brought up ideas for reforms that seemed to go nowhere, including changes to how the jail manages in-custody deaths and a better on-site presence for Root & Rebound, a community organization that provides post-release support for incarcerated people and currently occupies a trailer in the jail’s parking lot. “You would think that being a division commander, I would have ultimate say on anything that goes on at the jail, but it’s just not the structure,” Sanchez said. “It’s definitely a paramilitary kind of organization.” 

JoAnn Walker has the benefit of being the outsider candidate—at least as much as anyone can be under California’s sheriff candidate requirements, which since 1989 have required a law enforcement background. “I have not heard either of the candidates take responsibility for what is going on at Santa Rita Jail,” Walker told Bolts. “They’ve been in power now for many, many years.” 

Walker, who has a background in telephone crisis counseling and has trained others in de-escalation and crisis support, says unequivocally that “the jail is not the place for anyone who is suffering from a mental illness to heal.” She supports the county board of supervisor’s “Care First Jails Last” resolution, which aims to decouple mental health care from incarceration.   

Walker has received endorsements from some local progressive groups, including Our Revolution. But suk and Bernal both told Bolts that their organizations are staying away from the sheriff’s race. “We’re focused on reducing the overall power and size of the sheriff’s office so that no matter who’s in that office, they don’t have the same reach and power as their predecessor,” Bernal told Bolts.

The first hurdle for a person with mental health needs arriving at Santa Rita is the intake process. Ahern claimed that he has improved how the jail conducts mental health screenings, adding more nursing staff and addressing mental health during the intake process. “In many instances, we have a very positive environment for people that have suffered a mental health crisis,” Ahern said. “In many cases,” he added, “we are providing treatment and care for those individuals that they would not be receiving otherwise.” 

Santa Rita has a ‘behavioral health unit’ where people with mental health needs are sent. There, Ahern said, incarcerated people with mental health needs are provided medication that “they may or may not have been utilizing correctly while they’re out on the street.”   

The sheriff’s characterization ignores the barriers Elvira Monk experienced trying to get her brother’s prescription transferred to Santa Rita last year. “There needs to be a better way for the family to be able to get medical records up there,” she said. Maurice Monk was one of three people who died while being held in the jail’s behavioral health unit within a single month in 2021. 

Walker criticized the current intake process, saying that newcomers to Santa Rita determined to have mental health needs shouldn’t be sent to the behavioral health unit—in fact, they shouldn’t be in jail at all. “If it is a yes for any of the mental health questions that are asked [on the intake form], then that person must be transported to a hospital so their medical needs can be assessed,” she said. When asked if she believed that the behavioral health unit could not adequately meet the needs of people with mental health issues, Walker answered with a question: “Well, does it work? And if it is working, why have we had [58] people who have died since 2014?”

Jose Bernal has personally experienced the toll that incarceration can take on a person’s mind and spirit. “Jail exasperates people’s mental health conditions,” he told me. “It is not and will never be a viable, legitimate place for mental health.” Solitary confinement, in particular, can be a uniquely damaging experience for someone with a history of mental illness—but it is paradoxically often used as a tool to manage incarcerated people experiencing mental health crises.

The Department of Justice investigation found that people with “serious mental illness” are regularly placed in isolation inside the jail, which has led to outcomes such as “prisoners swallowing objects, not eating, smearing or eating feces, banging their heads against the wall, and attempting or completing suicide.” When asked if the jail puts people diagnosed with mental health conditions in isolation, Ahern demurred, saying “based on each individual’s jail classification, we monitor where they can be housed.” He also quibbled over the language used to describe isolation conditions—the jail, Ahern says, doesn’t practice solitary confinement but rather “administrative separation.” Although people in “ad-sep” are confined to their cells for 23 hours a day, that shouldn’t be considered solitary, the sheriff argued, because “there are six pods to a housing unit, and they have access to communicate with everyone in their pod.”

Ahern also called it “inflammatory, if not insulting” to say that jail deaths have been high on his watch.  

Both Ahern and Sanchez told Bolts that they are working to reduce the number of people in solitary conditions and that the current count of people in “administrative separation” has decreased significantly; on April 8, Sanchez said the number was at 57. Walker says that number is still an indication that the jail’s current mental health care services are not working. Walker committed to working towards fully ending the practice of “administrative separation” at Santa Rita. “We have got to bring in our community-based organizations and let them take the lead on dealing with mental health issues because that is their specialty,” she said. 

Elvira Monk says that she continues to deal with problems at Santa Rita jail. She says communication from the sheriff’s department about her brother’s death has been sporadic and incomplete; in late April, more than five months after her brother died, officials sent her a death certificate that labeled his death “natural” and blamed heart disease. “They keep giving me the runaround,” Elvira said. Her experience struggling to find answers, too, is not unique: other families have detailed similarly maddening experiences trying to get more information about what happened to their loved one inside Santa Rita Jail. 

Sanchez said the office should better communicate with family members of people who die in jail as well as the public when tragedies occur. The fact that we don’t give the family of those who lose loved ones incarcerated any information at all—it’s definitely not the way to treat family” she said. “It’s not humane in my eyes.”

In-custody deaths at Santa Rita also highlights the issue that, like many counties in California, the sheriff of Alameda doubles as its coroner—which raises questions about the thoroughness and independence of inquiries into deaths in custody.  “While it’s true that the sheriff isn’t personally conducting the autopsy, the person that is is reporting directly to the sheriff,” said Bernal. “There’s a clear conflict of interest.” State law doesn’t require independent autopsies for people who die in law enforcement custody.

Ahern rejects the idea of separating the coroner’s duties from the sheriff’s department. Walker said she would be open to separating the two if it’s “something that people want,” and Sanchez said she needed to look into the issue more but did support independent autopsies in cases of in-custody deaths. 

Elvira still finds herself struggling to accept her brother’s loss. For a while after Maurice passed, she says she was consumed by trying to find answers for his sudden absence. “It was like: I want to know why. I want to know why. I want to know why.” 

In death as in life, Elvira has continued to act as her brother’s champion, reaching out to other families who’ve lost loved ones at Santa Rita, working to organize a candlelight vigil, and continuing to contact the jail, demanding updates. “It was no reason why he shouldn’t have got that next medication,” she said.

Updated with information from Maurice Monk’s death certificate, which officials provided to his sister the day this story was initially published

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Last week, Massachusetts unveiled how it will determine which patients will have access to ventilators and intensive care beds in the event that these resources become scarce—and, by extension, which patients will not. If the epidemic curve does not flatten enough, the virus may overwhelm hospitals, and the number of patients who require intensive care and mechanical ventilation to survive an infection may outstrip available resources.

The state, where I have been caring for COVID-19 patients at a safety-net public hospital since the pandemic began, rolled out an algorithm intended to make rationing decisions “as objective as possible,” to quote the new state guidelines. The Department of Public Health assures us that this algorithm excludes “factors that have no bearing on the likelihood or magnitude of benefit, including but not limited to race…socioeconomic status, [or] perceived social worth.”

This statement sounds comforting. But beneath its cloak of objectivity, the state’s proposed algorithm relies on measurements shaped by the very factors that the Department of Public Health claims that it excludes. 

If it is implemented in the event of a ventilator shortage, it will consign a disproportionate number of Black, Latinx, and poor Americans to death. 

The same is true of the algorithms other states have outlined. It is already clear that the virus is not an equal-opportunity predator, and Black and Latinx Americans are disproportionately affected. How we choose to ration care may worsen that trend.

Decision-makers have long turned to algorithms to resolve thorny dilemmas in healthcare, education, and criminal justice. Besides diluting responsibility for outcomes, these tools foster the perception of impartiality based on the illusion that they are not subject to the same biases as human beings. This stems in part from their “black box” quality—the relationship between the data that goes into them, the factors shaping that data, and the resulting decisions is opaque. However, such algorithms are only as good as their inputs. If they are fed the trappings of an inherently unjust society, they will return unjust decisions, not just reflecting but also amplifying and systematizing the preexisting disparities.

At least Massachusetts has foregone the most biased type of algorithmic tool, one that explicitly bases decisions on the presence of chronic underlying illnesses.

The Charlson Comorbidity Index, a prominent example, is a key component of Colorado’s new rationing plan. It has already been used to triage ventilators in Italy’s hard-hit Piedmont region. It tallies a patient score based on pre-existing illnesses, including kidney disease, diabetes “with chronic complications,” and HIV/AIDS.

But these are uniformly diseases of disparity. They are a direct consequence of poverty and low access to health care, conditions that in the United States are marred by immense racial and ethnic disparities. Moreoever, Americans of color suffer from worse health outcomes regardless of wealth, the consequence of systematic discrimination and of a history of fraught relationships with the healthcare system.  

Black Americans are 60 percent more likely to be diagnosed with diabetes, 2.8 times as likely to have end-stage kidney disease, and 8.4 times as likely to be diagnosed with HIV than their white counterparts. Latinx Americans are also considerably more likely to be diagnosed with diabetes or chronic kidney disease. 

The likelihood of developing diabetes, for instance, reflects a lack of access to healthy foods. For individuals without insurance and primary care, disproportionately people of color, diabetes often goes undiagnosed until later stages, when treatment is more difficult. Even once they are in the healthcare system, Black and Latinx Americans are routinely offered worse care and less monitoring for their diabetes. Insulin, an essential treatment for some diabetics, has to be refrigerated—not a reliable option for many Americans. People with poor nutrition, healthcare and treatment are thus far more likely to develop the “chronic complications” of diabetes that worsen a patient’s score on the Comorbidity Index. They would fare worse if hospitals use that index to withhold ventilators from some patients. 

Massachusetts, unlike Colorado, is not using scores that directly input chronic conditions. But Massachusetts still uses another algorithm, the Sequential Organ Failure Assessment (SOFA) score, which still brings such measurements in, just more surreptitiously. 

On the surface, the SOFA score may appear more equitable.  It takes into account only the state of organ systems within the body at the moment the triage decision is being made. But even these metrics are likely to favor white patients over patients of color and wealthy patients over their poorer neighbors—it is impossible to divorce the state of one’s body in a moment of crisis from the accumulation of chronic illnesses that result from a lifetime of inequality. 

For instance, the SOFA score considers creatinine level, which measures kidney function. Creatinine is affected by the presence of underlying chronic kidney disease—one of the diseases that Black patients are significantly more likely to suffer from.

The decision to use the SOFA score is based on the notion that the only relevant variable in allocating scarce resources should be a patient’s likelihood of surviving their illness. Even if this were a fair way of making such decisions, there is no satisfactory evidence that differences in SOFA scores between patients accurately predict who is likeliest to survive in the setting of an infection (COVID-19) that remains such a considerable unknown.

In fact, some racially determined factors that feed into SOFA say nothing about a patient’s health at all. Multiple studies have found creatinine to be significantly higher in black Americans than white Americans, even when both have fully functioning kidneys.

The Massachusetts plan and other algorithms like it, then, would not adequately predict who is likely to survive. Instead, they would determine who gets to survive, generating a devastating and racially biased self-fulfilling prophecy. 

If we use these algorithms when faced with patients who have a still-substantial chance of surviving if given equal access to ventilators and ICU beds, we would be making a decision to withhold critical care resources from them for reasons that are tied to their race and class.

The virus has become a crushing reminder of the inequality of our existing healthcare system. But the current state of crisis will not last forever. At the other end of this pandemic, we will remember the irrevocable decisions we have made. We should make them with eyes wide open rather than relying unquestioningly on barely veiled proxies of inequality in deciding who should live and who should die.

Pria Anand is a writer and physician. She cares for patients at Boston University School of Medicine, where she is an assistant professor of neurology.

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