Michelle Kosilek, a transgender woman in prison for the 1990 murder of her wife, is fighting for the right to have the state provide sexual-reassignment surgery. Kosilek’s battle touches on what is covered under the Eighth Amendment:
We enter into a kind of compact with the people we incarcerate. Much as we might like to put them out of mind—behind 20-foot-tall, quarter-mile-long, immaculate walls erected in the middle of nowhere—we are, by the act of imprisoning them, bound more closely to them than ever. They are entirely dependent on us for food, clothing, shelter. Is it right that we brandish that dependence over them like a threat? Is it ethical for us to treat some legitimate medical conditions but not others? What does society owe to the worst among us? “Eighth Amendment protections are not forfeited by one’s prior acts,” wrote future Supreme Court Justice Anthony Kennedy in 1979. Yet there is a point at which even progressive legal scholars hesitate to champion those protections. Dolovich teaches her law students about a bank robber in California who received a heart transplant in 2008 while serving a 14-year sentence. The cost of the operation, including follow-up care, was more than a million dollars. The fact that the bank robber got the heart meant that someone else, someone law-abiding, didn’t.