CorrectCare

Supreme Court OKs Overcrowding Reduction
to Protect Inmate Health Rights

by William J. Rold, JD, CCHP-A

The U.S. Supreme Court moved to strengthen inmate health care rights in California on May 23 when it approved a population reduction plan that may lead to the release of thousands of prisoners to reduce overcrowding that was thwarting compliance with federal court orders. Seven of the nine justices agreed that federal courts have such power to enforce prisoners’ right to health care under the Prison Litigation Reform Act. Five of the justices ruled that the trial evidence and the law justified the lower court to exercise this power and to limit California’s prison population.

Sadly, the conditions that led to the order are the same ones that “shocked the conscience” 40 years ago and many observers believed would never be seen in this scope again: a preventable death every week, prolonged illness and unnecessary pain, suicidal inmates held in cages without toilets. Things got to this point because of California’s persistent noncompliance with orders in two class actions.

The California Health Care Class Actions
Coleman v. Wilson (1990) concerned inmates with mental illnesses. Plata v. Davis (2001) dealt with medical care. The incumbent governor, Jerry Brown, is now lead defendant, replacing his predecessors Arnold Schwarzenegger, Gray Davis and Pete Wilson.

In 1995, after a 39-day trial, the Coleman court found “overwhelming evidence of the systemic failure to deliver necessary care to mentally ill inmates.” It appointed a special master to develop a remedy.

In Plata, the state conceded that its correctional medical care was unconstitutional and it agreed to a detailed consent decree. Four years later, the court found massive noncompliance and an “unconscionable degree of suffering and death.” It displaced the defendants with a receiver, who was given control over all personnel, financial and operational functions of the medical delivery system. Even this sweeping authority was not enough.

By 2009, the prison system had been operating at 200% of capacity for 11 years. The special master, despite issuing more than 70 orders about mental health, reported that services had deteriorated over the previous 12 years due to overcrowding and warned that progress could not be made without a reduction in the prison census. Mortality reports from the receiver detailed needless suffering and preventable death.

The receiver’s plan called for spending more than $7 billion dollars, bonded over 25 years, with $250 million initially. When the moneys were denied, he sought contempt against the governor and the state controller.

Health Cases Become Overcrowding Litigation
Meanwhile, the prisoners sought relief from overcrowding by invoking the Prison Litigation Reform Act, arguing that population reduction was the only effective remedy to protect their health care rights. Other parties joined the litigation.

The 35,000-member correction officers union intervened on behalf of the inmates. Some 144 individual parties joined as defendants to support the state, including legislators, district attorneys, police chiefs, sheriffs, probation officers and county governments.

The court’s opinion on the health system’s deficiencies and the justification for release is 184 pages long. The order reducing overcrowding, entered six months later, was based on a plan submitted by California at the court’s direction, and it was stayed pending Supreme Court review.

In the Supreme Court, 18 state attorneys general filed a joint “friend of the court” brief in favor of California. Many of the supporting organizations of NCCHC filed briefs siding with the inmates, as did a consortium of criminal justice professionals.

Ruling for the inmates, the Supreme Court did not consider individual cases of failed care in isolation. It also focused on “systemwide deficiencies” that fell “below the evolving standards of decency that mark the progress of a maturing society.”

A prison’s failure to provide sustenance for inmates may actually produce physical “torture or a lingering death.” Estelle v. Gamble. ... [A] prisoner may ... suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. — Brown v. Plata, Slip Opinion at 12

Violation of Estelle’s Three Basic Rights
The litigation applied the three basic rights guaranteed by Estelle v. Gamble: the right to access to care, the right to care that is ordered and the right to a professional judgment. All were persistently violated.

Significant delays in access to care existed at every point in the system; some prisons had up to 700 inmates waiting to see a doctor. A prisoner with extreme chest pain died after waiting for eight hours to see a physician. Another had been dead for several hours in a gymnasium before he was noticed. Staff vacancy rates ran as high as 25% for physicians, 39% for nurse practitioners and 54% for psychiatrists.

There were massive failures to deliver ordered care. The wait for a mental health professional often reached as long as 12 months, and six months for patients already segregated. The state used telephone-booth-sized cages to hold inmates awaiting psych referral because “there was no place to put them”; some were left unattended to decompensate in their own waste. Unusually, the Supreme Court included a photograph in its decision. There were four- to five-year waits for mental health beds, with increasing numbers of truly psychotic inmates “trapped in lower levels of treatment” that could not meet their needs. Inmates committed suicide by hanging after placement in cells that needed only a simple fix to remove attachments that could support a noose.

It was common for “urgent” specialist referrals to remain “pending” for six months to a year. Among the inmate deaths were delays of five weeks for abdominal pain, 17 months for testicular pain, 16 months for abnormal liver mass, eight months for chemotherapy. At San Quentin, referrals to an ophthalmologist (“immediate”) and a nephrologist (“urgent”) for a prisoner with hypertension, diabetes and renal failure had not occurred when the patient died three months later.

Medications and basic medical equipment were not available, and facilities were in an “abysmal state of disrepair.” Frequent lockdowns (449 in year 2006) impeded continuity of care, and staff could not perform medical programming or deliver services requiring escort. The medical record system lacked “the capacity to deliver records regarding this many prisoners.”

The exercise of professional judgment was affected by such restrictions and by the limited available financial resources. As the Supreme Court has written about the “inherently coercive” nature of corrections: “These factors can, and most often do, have a significant impact on the provision of medical services in prisons” (West v. Atkins). Overcrowding had increased violent injury and the incidence of infectious disease and had overtaken the resources of prison staff, interfering with professional judgment, imposing demands beyond capacity and creating unsanitary and unsafe conditions that made progress in the provision of care difficult if not impossible to achieve.

Staff had only one-half of the clinical space needed to treat patients. Health providers were expected to provide professional services (and judgment) from gymnasiums, dayrooms, storage closets, bathrooms and other makeshift facilities that placed their safety in jeopardy and compounded the difficulty.

Quality control and even competence review were absent, with no “feedback loop to providers as to the key problems.” Morale plummeted.

The Defendants’ Failure to Fund Health Care
The receiver’s reports were “not intended to be a criticism of the hard work done on a daily basis by thousands of health care professionals ... struggling to provide care in a chaotic environment” without support of “adequate clinical, administrative and housing facilities.” The receiver told the court that only “substantial investments today ... will make up for 30 years of systematic under-investment in prison health care.”

The Supreme Court found that the defendants were subjecting inmates to a “substantial risk of serious harm,” quoting Farmer v. Brennan, which is often cited to support the defense of lack of the requisite intent to violate inmates’ civil rights. That was unavailing here, where defendants knowingly allowed conditions to persist despite available remedies. All prisoners were at risk so long as the state continued to provide inadequate care.

The State’s desire to avoid a population limit ... creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. — Brown v. Plata, Slip Opinion at 36

Squarely facing the core funding dilemma, the Supreme Court wrote that it “cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding.” [Editor’s note: A bill has since been signed that provides funding to counties for the transferred prisoners.]

The Dissents
Four justices dissented. Justice Alito and Chief Justice Roberts implicitly conceded the import of Estelle’s reach, but they found that overcrowding reduction was not yet ripe. California should be given more time, things were improving (unnecessary deaths were down in 2009, per the mortality report) and the public safety was inadequately considered. They maintained that risks to inmates were not “objectively intolerable” or certain to continue. The majority found the record adequate and consistent over decades, and it chose not to remand for updated findings after a 21-month appeal had elapsed with the lower court order stayed.

Justice Scalia, joined by Justice Thomas, rejected Estelle v. Gamble and its entire 35-year class action progeny, maintaining that an Eighth Amendment claim cannot be based on “systemic deficiencies.” This view has never garnered more than two votes on the court. They wrote that the remedy in this case exceeded the powers of federal courts under the Constitution or laws and that the release order was “perhaps the most radical injunction issued by a court in our Nation’s history”—a distinction usually reserved for Chief Justice Taney’s 1856 decision in Dred Scott v. Sanford.

A ‘Shot Across the Bow’
After two years, upon compliance with the court order, the California penal system will operate at 137.5% of capacity. The policy considerations underlying California’s prison overcrowding are beyond the scope of this article, but this writer remembers the court orders reducing the Rikers Island population in the 1980s crisis: Those released first had the lowest unmet bail. Here, California can comply with the orders enforcing Estelle without releasing anyone, as the Supreme Court emphasized. Use of good time credits, parole or transfer to county jails are options; so are construction to increase capacity and appropriation of funds to provide adequate health care services for those higher risk inmates who will remain.

The remedy is a “last resort”—or, as Justice Scalia wrote in the context of a future motion to modify the order, a “shot across the bow.” Release is the default against which future performance will be measured. As a former special master, Vincent Nathan, wrote after the Texas health care litigation, “No serious student of American correctional history can deny that litigation has provided the impetus for reform of medical practice in prisons and jails.” Brown v. Plata is an extreme example of the collapse of an underfunded system and a sobering harbinger of déjà vu to other states. It is a warning to the correctional community and to the public. Lifting the stay, the Supreme Court ended its decision with an impetus: “The State shall implement the order without further delay.”

— About the author: William J. Rold, JD, CCHP-A, is an attorney and former judge. He represented the American Bar Association on the NCCHC board of directors from 2001 to 2007 and is a recipient of NCCHC’s Bernard P. Harrison Award of Merit. He consults on correctional health care and the law. He may be reached at williamjroldesq@verizon.net.

[This article first appeared in the Summer 2011 issue of CorrectCare.]