California Prison Health Care Receivership
Referee Plan - Receivership - 2008
Receiver Plan - Pdf
Constitutional Level of Medical Care in California’s Prisons - Pdf
My View: Labels like 'faker' dangerous for prisons
Published: Saturday, Feb. 14, 2009
When it comes to suicide, attitudes can kill. There is no better illustration than the set of attitudes published on Feb. 8 in The Bee under the headline "Inmates' behavior fuels prison health crisis."
As a psychiatrist, I have treated suicidal patients for more than 26 years in both community and correctional settings. Anyone who works with suicidal patients should remove words such as "manipulating" and "faking" from their vocabularies. The most experienced mental health professionals cannot accurately agree on who is faking and who is truly suicidal.
Anyway, so-called fakers often kill themselves.
Suicide rates in California prisons are tragically high, approaching twice the national average. This sorry state of affairs exists even after years of federal court intervention. I recently evaluated California's prison mental health system as part of a federal trial on prison overcrowding. I toured the prisons, talked to clinicians and prisoners with mental illness, and read many medical files. The state also hired a mental health expert, and one thing we agreed on was that the "culture" of corrections harms prison health care.
Part of that culture is the assumption that prisoners are just faking or trying to get something extra. Those dangerous assumptions came across loud and clear in the Feb. 8 commentary in The Bee.
The author of "Inmates' behavior fuels prison health crisis" claims that prisoners are faking mental illness to get into crisis beds. I saw where the prison system puts people who claim to be suicidal. If you are lucky, you get to sleep on the floor in a concrete box, as I witnessed at the California Correctional Institution in Tehachapi. If you are not so lucky, you get to spend the day in a cage like the one at Salinas Valley State Prison.
The idea that people would fake their way into these cages is simultaneously ludicrous and revealing. It highlights the appalling conditions in our California prisons. Namely that a desperate inmate would go to the extreme step of claiming to be suicidal in order to sit upright in a cage rather than stay in the assigned housing unit.
The actual shortage of crisis beds is so bad that if you say you are suicidal, you do not get priority status on the waiting list. You have to first attempt suicide to get priority status. In my work on the federal overcrowding trial, I saw too many files of prisoners who killed themselves while waiting for a crisis bed.
The author of "Inmates' behavior fuels prison crisis" claims that doctors are afraid to keep suspected fakers out of crisis beds because the patients might kill themselves. When a young, physically healthy person acts to kill himself, he is not faking; he is mentally ill.
A person with mental illness whose symptoms might include manipulative behavior needs lifesaving treatment as much as a person whose symptoms are depression and psychosis. Health professionals do not get to reserve lifesaving care for their "cooperative" patients. If the doctor is afraid that the "manipulative" patient is going to kill himself, then the manipulative patient needs care as much as the cooperative patient does.
Our California prisons currently house more than 30,000 seriously mentally ill inmates. Providing care for this large group of challenging patients is fraught with many problems for which I do not have all the answers. A first step, however, would be to identify and correct the attitudes that lead to needless deaths.
Getting rid of the assumption that all or most prisoners are faking
would be an excellent place to begin.
Pablo Stewart, M.D., has practiced correctional psychiatry
in the San Francisco County Jail and the Jail Psychiatric Ward at San Francisco
General Hospital. In November and December 2008, he testified as an expert
witness in the three-judge panel trial on California prison overcrowding.
He has evaluated correctional mental health systems for the state of New
Mexico, the American Civil Liberties Union's National Prison Project and
the U.S. Department of Justice.
State's ploy is a joke Judge should reject it
Was anyone else nonplused when California asked a federal judge last week to end the receivership that was created to force the state to fix its dysfunctional prison health-care system?
It's sort of like inmates asking to be let out early because they think they've learned their lesson.
Actually, state Attorney General Jerry Brown doesn't even claim that lessons have been learned or that the problems have been fixed.
Instead, the motion to remove Receiver J. Clark Kelso is based on the state's criticism that Mr. Kelso has overstepped his bounds.
Imagine that: The receiver had the audacity to insist that the prison system comply with the law.
It's not as if other strategies have worked. A number of lawsuits through the years have all failed to coerce the state into fixing the problems. Directives were met with half-hearted attempts or ignored completely.
By all accounts, Judge Thelton Henderson's decision to appoint a receiver in 2005 was an act of desperation to see that the health system -- which was averaging one preventable death a week through abuse or neglect -- be fixed once and for all.
The attorney general acknowledges that many of the receiver's efforts
have proven beneficial. "In the last three years, significant improvements
in prison health care have been achieved," the motion acknowledges. "But
in implementing these improvements, the Receiver failed to focus on the
proper goal (ensuring that Defendants are no longer deliberately
"Instead, the Receiver ignored these limits, and spent and continues to spend massive sums in an unaccountable manner to create one of the most expensive prison health care systems in the nation. The Receiver's utopian system must now end," the motion reads.
At the crux of the issue is the receiver's demand that the state cough up $8 billion to construct seven facilities by mid-2013, adding 10,000 beds for chronically sick or mentally ill inmates. The state, worried about a $42 billion budget deficit by 2010, is clearly grasping at straws.
Mr. Kelso flat-out rejected the notion that his office should pack up and go home, noting he might reasonably be done in three to four years.
It is unlikely that Judge Henderson will reverse his decision. Experts say the motion is probably intended for eventual consideration by an appeals court. Already the 9th U.S. Circuit Court of Appeals is considering whether Henderson overstepped his authority by threatening to hold the governor and Controller John Chiang in contempt for refusing to make a $250 million down payment on the $8 billion project.
Ironically, Mr. Kelso has pointed out that the $8 billion figure is merely a cap, and that he's willing to sit down and discuss it. However, neither the governor, the attorney general nor California Department of Corrections and Rehabilitation Secretary Matthew Cate are willing to come to the table.
That's what makes the latest court action even more laughable -- and downright insulting. If the state put as much energy into fixing its problems as it does into fighting its critics, the issue would have been resolved years ago.
Calif. prison receiver: Transfer sick inmates
SACRAMENTO -- Up to 7,000 sick California inmates must be transferred to prisons with access to better medical care, a court-appointed receiver said in a court filing Tuesday.
Receiver Clark Kelso is in charge of improving inmate medical care but has become frustrated with the pace of reform. Gov. Arnold Schwarzenegger and lawmakers have so far refused to provide the $8 billion he seeks to build new medical facilities.
In the court documents, he said physically and mentally ill inmates cannot get proper care at four isolated prisons in the Central Valley. Those prisons are Avenal State Prison, California State Prison in Corcoran, the California Substance Abuse Treatment Facility and State Prison in Corcoran, and Pleasant Valley State Prison in Coalinga.
The receiver's office wants the inmates to be shifted to prisons closer to urban areas, including those in Vacaville and Soledad. Tens of thousands of healthy inmates at those prisons would be displaced to make room.
"There seems to be a feeling by the governor and attorney general that there are no consequences to not building (medical) facilities," John Hagar, the receiver's chief of staff, said in an interview. "We're going to begin moving the receivership in a somewhat different direction, given the impasse."
As it awaits a court decision on its transfer proposal, the receiver's office is adopting an emergency plan to deal with a backlog of inmates seeking care at the four prisons. That includes adding medical staff and erecting military-style hospital tents to handle the overflow.
The receiver's office proposed the mass transfers in a Dec. 8 letter to state Department of Corrections and Rehabilitation Secretary Matthew Cate.
Scott Kernan, undersecretary for the corrections department, said the receiver's latest proposal makes no sense.
For example, he said Kelso is spending $40 million to improve medical facilities at Avenal State Prison, only now to propose sending its sick inmates elsewhere. He also is proposing transferring disabled inmates to prisons that do not meet standards under the Americans with Disabilities Act, Kernan said.
"This plan is unnecessary and only serves to further waste taxpayer dollars," Kernan said.
He agreed that money for additional construction has been blocked but said the receiver's office should work with lawmakers and the corrections department to improve inmate care "in a cost-efficient way."
Attorney General Jerry Brown also criticized the latest proposal.
"The receiver has made a lot of progress. But it seems the more he makes, the less happy he is," Brown said in a telephone interview. "No matter what the state does, it's never enough."
The transfer demand is the latest development in the long-running legal battle over inmate health care in California's 33 adult prisons. A federal court has ruled the quality of care unconstitutional and placed a receiver in charge of finding solutions.
Kelso's solution is for the state to sell $8 billion in bonds to build seven medical facilities to treat some 10,000 inmates. The repayment would be spread over 25 years and cost California taxpayers $14 billion by the time the bonds are repaid.
Gov. Arnold Schwarzenegger and state lawmakers, particularly Republicans, have recoiled at the cost, especially as the state faces a $42 billion deficit through June 2010.
The 9th U.S. Circuit Court of Appeals has set a Feb. 12 hearing to consider letting a federal court judge hold Schwarzenegger in contempt for refusing to turn over the money. The receiver has sought an immediate $250 million for a down payment.
Despite unconstitutional conditions in California’s correctional system, the state balks at funding improvements
By Janelle Weiner
SN&R correspondent Janelle Weiner covers the Folsom area. If you
have a news tip for Folsom, please contact (916) 498-1234, ext. 1364, or
Plans for a 1,500-bed facility in Folsom for California’s sick and mentally ill prison inmates are proceeding, even as funds for the project remain in lockdown amid a court battle and state budget cuts.
Lawyers for the attorney general’s office will head to appeals court next month to ask a judge to block the federal receiver in charge of California prison health care, J. Clark Kelso, from collecting $250 million of approximately $8 billion needed for upgrades and expansion of existing prison health-care facilities.
In 2006, a three-judge panel in a separate overcrowding case ordered the receiver’s office to bring the California Department of Corrections and Rehabilitation’s inmate health-care services to constitutional levels after it found the existing system “broken beyond repair.” According to court documents, an inmate died unnecessarily every six to seven days “due to constitutional deficiencies in the CDCR’s medical delivery system.”
Kelso says in order to meet the standard set by the court, he needs money from the state to construct seven new facilities that would provide a total of 10,000 medical and mental-health beds.
“We need to consolidate the prisoners who have the most serious mental-health needs into these facilities over the next 10 years,” Kelso told SN&R. “With consolidation, you can provide much more cost-effective treatment.”
Roughly half of the beds at the Folsom facility would serve inmates with mental-health issues. The other half would provide medical care for chronically ill, incapacitated and elderly inmates.
Currently, most sick inmates are treated at on-site infirmaries in prisons designed to hold about half their current population of nearly 170,000. California Medical Facility can accommodate a few hundred long-term-care patients. The receiver’s office estimates the need is in the thousands.
For now, there are no plans to scrap the Folsom project or any of the other six projects in the works around the state. Groundbreaking on a similar facility in Stockton, slated to begin in February, however, has been pushed back.
A spokesman for the receiver’s office, Richard Stapler, told SN&R the same could hold true in Folsom, where groundbreaking was to begin this summer.
“The reality is it will slow down the actual construction of the facilities a little bit,” said Stapler. “We still have adequate funding to continue through the [California Environmental Quality Act] process. There is plenty of other work to be done at this point. We’re just going to see how the case progresses through the courts.”
Christine Gasparac, spokeswoman for the attorney general’s office, said the state of California is in no position to finance the receiver’s plans, nor does the federal government have the right to force it to do so.
“The scope of the receiver’s plans, coupled with the state’s financial crisis, makes clear that the receiver’s construction projects are wildly inappropriate, and the court lacks the authority to order their construction,” said Gasparac.
Kelso said he has been forthcoming with the public and all government agencies concerning details of the proposed facilities, and welcomes criticism and suggestions.
“This is not something I’ve kept secret,” he said. “I invite the A.G. to conduct more detailed analysis. I’d be delighted to hear [Attorney General Jerry Brown’s] views on some of the specifics.”
However, according to Dr. Corey Weinstein, a board member of the prison-reform group California Prison Focus and an observer of prison conditions since 1970, new prison facilities are not the answer to the health-care crisis in California’s prisons.
Weinstein acknowledged improvements made in pharmacies, filing systems and numbers of qualified staff since the receiver has taken over, but said the prisons continue to operate like “clean slums,” meaning that despite the improvements, overcrowded conditions still lead to the spread of disease.
Stapler agreed that overcrowding leads to health problems both inside the prisons and when prisoners return to the general population.
“You get a situation where you have enough people crowded into a facility and you have communicable diseases like tuberculosis—inmates are not properly treated, and then they are released into the community,” he said. “You have a public-health crisis not just in the institution, but for California’s population at large.”
Stapler noted additional problems that persist around the state, including inmates in California State Prison, Corcoran, who currently wait seven weeks to see a doctor, and a lack of appropriate accommodations for prisoners with disabilities. Finding bottom bunks for wheelchair-bound prisoners and appropriate housing for those who are visually impaired is a challenge in the state’s overburdened facilities, he said.
Stapler described one elderly female prison inmate whose physician had prescribed barriers for her bed to prevent her from rolling out.
“She’s been waiting nine months,” said Stapler. “The human reality of it is the longer it takes for us to construct these facilities, the longer it takes to relieve the suffering of the inmates.”
According to Weinstein, no amount of upgrades will substitute for putting the brakes on prison expansion. Eventually new facilities will become just as crowded, he argues, and the public-health issues the receiver is attempting to resolve with updated facilities will return.
“It’s not about whether you have good technical medical care,” said Weinstein. “It’s about decent housing, decent plumbing.”
The receiver’s office projects the prison population would outgrow the new facilities in 15 to 20 years.
In the opening brief filed in the appeals-court case, the attorney general’s office argues the receiver has overstepped his bounds in ordering money for new prison-facilities construction, stating, “The Prison Litigation Reform Act absolutely bars district courts from ordering a state to fund the construction of prisons against its will.”
A response filed by the receiver says the state was onboard with the project until last summer.
“The A.G.’s office has not changed its position,” she said. “As required by court order, the governor and CDCR initially cooperated with the receiver as he began to develop his construction plans.”
Part of the dispute, she says, is over the method of financing the plans.
“When the receiver attempted to seize $8 billion from the state’s general fund, the state opposed the receiver’s construction plans. In short, there is a big difference between the state agreeing to fund the construction program through legislatively authorized means and the court unilaterally ordering it to fund such construction.”
Assembly Bill 900, passed in May 2007, approved $1.14 billion in bond funds for construction of new medical, mental and dental facilities, but a problem with the bill’s language has made this money inaccessible.
The receiver is now seeking $250 million allocated for prison infrastructure improvements in a separate section of the bill. The state argues the receiver should use the original $1.14 billion allocation first.
Gasparac also alleges the receiver’s office has decided not to seek this type of financing because, by law, it would have to comply with state contracting rules.
Kelso told SN&R the receiver’s office is indeed seeking some leeway to fast-track the project. They do not seek to waive any part of the CEQA process, Kelso said.
Closing arguments in the federal district court overcrowding case are scheduled for February 4, and a ruling is expected this spring. If the three-judge panel decides to release 52,000 inmates, that case will likely move to a higher court.
The funds the receiver seeks will remain in limbo for the duration of the appeals case, set to begin mid-February in the 9th U.S. Circuit Court of Appeals.
What does this mean for the health of California’s 170,000 inmates?
“It stays as bad as it is,” said Weinstein, “which is so bad that it violates the constitution. That’s really bad. It’s not malpractice. It’s deliberate indifference. And that’s going to remain the same.”
Federal judges to rule on Calif. prison crowding
SACRAMENTO—Over the past three decades, California lawmakers and voters
have sought to combat crime with an ever-expanding list of sentencing laws,
adding years to inmates' terms and returning parolees to prison more often.
The federal courts have found that the prison system's delivery of health and mental health care, for example, is so negligent that it's a direct cause of inmate deaths.
The state's day of reckoning for its years of prison overcrowding is expected to come this week in a federal courtroom in San Francisco.
A special three-judge panel reconvenes Tuesday and is prepared to decide whether crowding has become so bad that inmates cannot receive proper care. If they do, a case rooted in several court challenges dating back more than two decades will move to a second phase.
In that phase, the judicial panel will decide if lowering the inmate population is the only way to fix the problems.
That could result in an order to release tens of thousands of California inmates before their terms are finished, a move Gov. Arnold Schwarzenegger and Republican lawmakers say would endanger public safety.
"The time has come: The extreme, pervasive and long-lasting overcrowding in California prisons must be addressed," attorney Michael Bien, representing inmates, told the judges during the opening of the trial.
Bien and other civil rights attorneys want the panel to order the prison population cut from 156,300 inmates to about 110,000. That still would be above the capacity of California's 33 state prisons, which were designed to hold fewer than 100,000 inmates.
To relieve some of the crowding, state corrections officials have transferred nearly 6,000 inmates to privately run prisons out of state and have another 11,000 living in conservation camps or private prisons within California.
The overcrowding is apparent in many prisons. Nearly 14,000 inmates sleep in three-level bunk beds in converted gymnasiums and classrooms. The arrangement gives each inmate about six square feet of living space while increasing the risk of violence and the spread of disease, according to testimony from prison guards.
Some inmates are forced to use water stored in garbage cans to bathe because there are too few showers.
Sick inmates can wait in line for hours to receive medical care, while the mentally ill can wait more than a year for a bed in a treatment unit. The state's inmate suicide rate is double the national average, yet suicidal inmates are held for hours in cages the size of telephone booths because there aren't enough crisis cells.
Two of the three judges hearing the case previously ruled that the state is violating inmates' constitutional rights by providing such poor medical and mental health care.
Jeffrey Beard, secretary of the Pennsylvania Department of Corrections, blamed California's adoption of tough drug laws and three-strikes sentencing laws since the 1970s. The state has added more than 1,000 felony sentencing laws during the past 30 years, and its criminal code gives judges little leeway in deciding punishments.
"They went from being one of the most progressive systems in the country to one of the most overcrowded," Beard testified. "California has this problem that has just been going on for years and years and years, and nobody seems to be willing to step up to the plate and fix the problem."
Most inmates live in prisons with populations the size of small towns. Nearly half the prisons hold 5,000 prisoners or more, while nine exceed 4,000 inmates. Beard said the limit should be 3,300.
The administration argues that conditions are improving, in part because of the out-of-state transfers and because the state is spending more on medical and mental health care.
It will spend $2.2 billion this year to treat, house and guard physically and mentally ill inmates, a 550 percent increase since 1995. The prison's population grew about 30 percent during the same period.
Annual health care spending has increased from $2,714 per inmate in 1995 to $13,778 this year, according to the state Department of Finance.
Administration lawyers credited a court-appointed receiver's oversight of inmate health care for many of the recent, if costly, improvements. But the administration is fighting the receiver's demand for an additional $8 billion to build seven inmate medical and mental health centers at a time when the state faces an $11.2 billion budget deficit.
Schwarzenegger and Republican state lawmakers promise an appeal directly to the U.S. Supreme Court if they lose the case.
The state is trying to focus the judges' attention on the consequences of ordering prisoners freed before they complete their full sentences.
"Releasing 50,000 inmates to the streets is obviously a public safety risk and it doesn't fix the problem," Corrections Secretary Matthew Cate said in an interview. "There are still underlying problems and we want to fix them. Early release, though, isn't the way to do that."
The judges are acting for the first time under the federal Prison Litigation Reform Act of 1995. The act requires the judges to initially find that crowding is the main cause of substandard conditions, a ruling they are likely to make this week.
They then can order inmates released only if they find there are no other options for improving care. The judges hope to complete the second phase of the trial by Christmas.
"No one's on the same track as California at this point," said Amy Fettig, a prison lawyer with the American Civil Liberties Union. "It tells you they're in deep, deep trouble."
Prison reckoning: Time to take responsibility
After 21 years, hundreds of deaths, numerous lawsuits and millions of taxpayer dollars, the California prison system finally is being held to answer for its actions, or lack thereof.
Testimony has begun in San Francisco in a federal trial over whether crowded prisons have led to unconstitutionally poor medical and mental health care for California inmates.
It could take months before any resolution is reached. In fact, the three-judge panel presiding over the nonjury trial doesn't expect to conclude Phase I until Dec. 19.
It all started 21 years ago, when Jay Lee Gates, an inmate at Vacaville's California Medical Facility, filed a lawsuit in a Sacramento federal court about the quality of his health care.
That suit was taken over by prisoners' rights lawyers and became a class action lawsuit on behalf of all CMF inmates. Then another suit was melded in, and eventually the state's entire prison medical and mental health care systems became the focus.
There really is no question that conditions in the state's 33-prison system are deplorable. Or that hundreds of inmates have died from neglect and abuse.
And there is no argument that the prisons are overcrowded. At the height of the problem, more than 172,000 inmates were crammed inside institutions meant to hold 100,000. Thanks to some adjustments made by the current administration, that number has dropped closer to 155,000, which is still dangerously high.
And with two state prisons in Vacaville, it is imperative that the overcrowding be addressed before it turns deadly for inmates and employees alike.
In the end, a trio of judges will determine whether the two situations are inextricably linked. Or, perhaps more to the point, whether the prison system would have a chance at reforming health and mental health care if it had fewer inmates.
To be honest, California's efforts at reform have been shameful, to the point of nonexistent. Court orders have been blatantly ignored.
Only in recent years have legislators managed to approve funds to build facilities. Efforts to reform the rehabilitation and parole systems have been futile.
That's why, out of desperation, two federal judges in two different cases appointed receivers to take control. And now those two judges -- joined by a third -- will determine the prison's system's fate.
Perhaps if the state had been cooperative somewhere along the way, it would not have come to this. And the governor's recent overtures about turning the system over to a private company to run seems like a ploy to circumvent the court, rather than fix the problems.
Of course, the pending ruling couldn't come at a worse time, what with California reeling from a budget deficit and floundering with a dysfunctional economy.
Still, it is imperative that judges not only hold the state accountable, but also help craft a practical reform plan.
Trial begins over California prison crowding
SAN FRANCISCO—Attorneys for the state and inmates' rights groups clashed
Tuesday at the opening of a high-stakes trial over whether California's
jam-packed prisons have led to unconstitutionally poor medical and mental
Attorneys for the inmates want the prison population reduced from about 156,300 inmates to 110,000.
Further delay in solving California's prison crowding will mean only "additional pain, suffering and death for our clients," Michael Bien, one of the attorneys representing inmates, said during Tuesday's hearing.
"The California prison system is dangerous and broken," he said.
At issue is whether overcrowding is the leading cause of medical and mental health care that the federal courts already have found to be substandard—and in some cases so negligent that it has directly contributed to inmates' deaths.
The Schwarzenegger administration says steps already are being taken to reduce the population. The governor and Republican lawmakers say an early release plan would endanger the public.
Cost is another matter. The administration is embroiled in a separate
legal fight with the court-appointed receiver overseeing prison medical
operations, who is seeking an $8 billion construction program at a time
when California is forecasting double-digit budget deficits for years to
Paul Mello, an attorney for the state, said California's spending on inmate medical care has increased from $345 million in 1995 to nearly $2.2 billion today. The amount spent per inmate on medical care has grown from $2,700 to nearly $14,000 a year, Mello said.
"The state has put its money where its mouth is," he said. "There have been significant improvements."
Attorneys representing inmates cited national experts who have found that overcrowding is aggravating efforts to improve medical care in the state's prisons.
Even an expert panel convened by the California Department of Corrections and Rehabilitation concluded that crowding must be reduced if other reforms are to succeed.
Some inmates at the California Institute for Men in Chino, for example, sleep on benches installed in narrow cages because the prison lacks sufficient beds and cells, according to a court filing by Doyle Wayne Scott, an expert witness for the plaintiffs.
Scott, the former head of the state prison system in Texas, also found that inmates at the Deuel Vocational Institution in Tracy washed themselves with water from a 30-gallon garbage can because there weren't enough showers.
A lack of laundry facilities has forced some inmates to wash their clothes in sinks used for food preparation or in toilets, Gregg Adam, an attorney representing state prison guards, said during Tuesday's opening statements.
Conditions are so abysmal that prison mental health workers could be jeopardizing their licenses by continuing to provide treatment, testified Dr. Pablo Stewart, a professor of psychiatry at the University of California, San Francisco.
Those considered suicide risks are put into barren cells wearing only a smock, without shoes or underwear, and often are not given a mattress or blanket, he said.
"The system is so overwhelmed that it is creating more mentally ill," Steward testified.
He said some mentally ill inmates were treated while confined to cages, a description that led to a pointed exchange with Lisa Tillman, an attorney for the state. She objected that what Stewart called cages are in fact "therapeutic modules."
"These 'therapeutic modules' are very cage-like," Stewart responded.
The judges hearing the case in a large ceremonial courtroom have been sympathetic to the inmates' cause.
Two of the three—Thelton Henderson of San Francisco and Lawrence Karlton of Sacramento—already have ruled that the state is violating inmates' rights by providing poor medical and mental health care. They jointly ordered creation of the three-judge panel, and then were appointed to it by the 9th U.S. Circuit Court of Appeals.
The third member is Appellate Judge Stephen Reinhardt of Los Angeles, an appointee of former President Jimmy Carter. He so far has joined the others in rejecting the administration's efforts to end or limit the overcrowding lawsuit.
It is the first time judges have acted under the 1995 federal Prison Litigation Reform Act, which was designed to limit judges' powers in inmate rights cases.
The law establishes a complex legal process that lets courts order the early release of inmates only if a special judicial panel decides all other options have been exhausted.
The hearing in San Francisco is expected to last through mid-December, but it's not clear when the panel will rule.
Republican lawmakers and law enforcement officials already are planning their appeal to the more conservative U.S. Supreme Court if the panel orders inmates to be released early.
The administration's defense has been undermined by the inaction of state lawmakers.
They rejected the request by the court receiver for $8 billion to build medical and mental health centers for 10,000 inmates. The Legislature approved a separate $7.4 billion bond to build about 38,000 more prison and county jail cells but has delayed allocating the money, further hurting the state's case.
The state has argued it is freeing up space by sending about 8,000 inmates to private prisons in other states. It also is changing its parole policies and adding rehabilitation programs to keep more ex-convicts from quickly returning to prison.
"The state recognizes it's got a challenge with overcrowding. It makes everything we do with the prisons more difficult," Corrections Secretary Matthew Cate said Tuesday outside the courtroom.
He said the state is overcoming those challenges.
Criminal neglect of criminals
Gov. Arnold Schwarzenegger and state Controller John Chiang continued their game of brinksmanship Monday with a federal judge in a dispute over improving health care for California prison inmates.
U.S. District Judge Thelton Henderson said Monday that he will proceed with a contempt-of-court hearing in coming weeks against the administration for not providing money sought by the court's appointed receiver to finance the improvements. The state, meanwhile, argued that the court cannot unilaterally seize the money, but must negotiate the sum with lawmakers and specify how the money will be spent. The conflict points to a constitutional clash over the boundaries of federalism and state sovereignty.
The tragedy is that California officials have allowed the situation to so seriously deteriorate, even as an average of one inmate per week dies because of lack of adequate health care, while the government has continued irresponsibly spending money for arbitrary and wasteful purposes.
We generally side with states against the federal government in such jurisdictional disputes. But the administration's stance looks disingenuous with this 11th-hour change in courtroom strategy.
Judge Henderson ruled nearly three years ago that one inmate per week was dying because of prisons' medical neglect, and put the prison system in federal receivership. The court-appointed receiver asked the judge to order California to pay $8 billion over the next two years to finance construction of new hospital beds, including $250 million immediately.
"It's unprecedented in our nation's history where a court ... would try to take $250 million from the state treasury," said Assistant Attorney General Daniel Powell, representing the administration.
But the prison receiver's legal counsel argued that the state lost its right to raise the sovereignty issue after repeatedly agreeing to help fix the problems. Moreover, legislators appropriated $250 million last year as part of a $7.4 billion prison and jail construction program.
State officials should cooperate fully, as the governor insists he wants to do. They should provide the money needed to fix years of their own neglect that in our view has bordered on the criminal. If they don't, Judge Henderson should find them in contempt.
Lawsuits over Calif. prison crowding head to trial
SAN FRANCISCO—A proposed settlement seeking to reduce California's prison
population collapsed Friday, setting the stage for a trial that could result
in the court-ordered release of thousands of inmates.
The referee had proposed reducing the population by 26,500 inmates by diverting many parole violators and inmates with relatively short sentences to county-run programs.
The plan has been criticized by Republican lawmakers and district attorneys throughout the state. They objected to a provision that would allow for the early release of inmates if the state did not meet deadlines for reducing the population.
Local officials complained the proposed settlement put too great a burden on county jails and rehabilitation programs, which they say already are underfunded.
Elwood Lui, one of the referees in the complex case, told a special three-judge panel in San Francisco on Friday that such concerns contributed to the failure of the settlement he proposed in May.
The parties now will move toward a trial, scheduled to begin Nov. 17.
At issue is whether overcrowding in California's prisons is so severe
that it has violated inmates' rights, leading to unconstitutional health
care, mental health treatment and other problems.
Lui, a former state appeals court judge, said the various parties simply could not bridge their differences.
"We continue to be optimistic that a settlement could be reached sometime prior to trial, but at this point we do not see how it could be reached," he told the three judges during Friday's hearing.
The state's 33 prisons hold about 159,000 inmates in space designed for fewer than 100,000. Lui proposed last month that the population be reduced to about 132,500 by September 2012.
The proposal would not affect an additional 11,000 adult inmates in conservation camps or privately run prisons in California and other states.
Agreeing to the size of the inmate population proved to be the biggest obstacle to striking an agreement, said Andrea Hoch, Gov. Arnold Schwarzenegger's legal affairs secretary.
That number is crucial, she said, because it determines all other issues to be resolved through the lawsuits.
In a statement, she said the state is committed to reducing the inmate population "in a safe and responsible way that protects public safety." She also said the earlier talks could serve as the foundation for a future settlement.
Republican state legislators and county district attorneys rejected the idea that California imprisons too many criminals, given the state's large population.
Riverside County Assistant District Attorney William Mitchell equated the problem to easing school crowding.
"We would build more schools, hire more teachers," Mitchell said in a court filing. "To merely turn away or release prisoners early will unnecessarily endanger the residents of California."
Republican lawmakers say a big part of the solution already is under way and asked the judges for time to make it work.
Last year, the Legislature and governor approved a prison and jail construction program. This year, lawmakers are considering a request by a court-appointed receiver to spend an additional $7 billion on medical beds.
Altogether, the programs would add 38,000 prison and county jail cells and 10,000 long-term care medical beds, costing the state $14 billion.
U.S. District Court Judge Lawrence Karlton said the state can't build cells quickly enough to ease current problems.
"Maybe, someday, all this money that legislators are going to put on the table, which hasn't happened yet ... may come up with a solution," Karlton said.
But that solution would be "way down the road, years from now."
All three judges urged the parties to get back to the negotiating table and settle.
June 17, 2008
Federal Judge OKs Plan for Seven Prison Medical Facilities in California
On Monday, a federal judge approved a plan for the state's prison health care receiver to begin constructing up to seven new health care facilities statewide as part of an effort to bring the quality of care for prisoners to a constitutional level, the San Diego Union-Tribune reports.
It remains unclear how construction of the new medical facilities will be funded because the Senate has twice rejected receiver J. Clark Kelso's proposal to have the state issue $7 billion in bonds for the effort (Clock, San Diego Union-Tribune, 6/17).
However, Kelso, who is appointed by a federal judge, has the power to bypass the legislative process and order the money to be appropriated from the state's general fund.
Plans for Construction
Sites under consideration for the new prison hospitals include Stockton, Tracy, Folsom, Solano and as many as four others in Southern California (Smith, Stockton Record, 6/17).
Kelso's office has submitted notices to state, federal and local agencies
on Monday to begin an environmental review for building a 1,500-bed medical
facility in Otay Mesa in San Diego County (San Diego Union-Tribune, 6/17).
Readers are invited to send feedback to: email@example.com
Court receiver asks Schwarzenegger to improve Calif. prisons
Tuesday, June 10, 2008
(06-10) 00:04 PDT Sacramento, CA (AP) --
The court-appointed receiver who oversees medical services in California's prisons wants Gov. Arnold Schwarzenegger to invoke his emergency powers to provide $7 billion to improve inmate care.
J. Clark Kelso asked the governor Monday to bypass the state Legislature to build seven care centers around the state serving inmates needing medical attention and mental health treatment. The centers would house 10,000 inmates.
The receiver's request comes after the state Senate blocked his plan to borrow money twice last month. Kelso has been given broad authority by federal courts to fix the prison system's medical and mental health care, treatment so poor it has been ruled unconstitutional.
The state is obligated to pay for those improvements, Kelso's lawyer, Jared Goldman, wrote in a letter sent Monday and obtained by The Associated Press.
"This obligation applies without regard to legislative inaction..." said the letter to Louis Mauro, Schwarzenegger's chief deputy legal affairs secretary.
The prison receiver based his request on an appellate court decision last week that upheld the governor's power to bypass the Legislature when public safety is at risk.
In that decision, the Third District Appellate Court in Sacramento upheld Schwarzenegger's 2006 emergency order sending as many as 8,000 inmates to private prisons in other states as a way to relieve prison overcrowding.
A judge could order the money taken directly from the state treasury if the receiver doesn't get his way. To avoid that, Kelso wants the governor's office to sign a contract authorizing up to $7 billion for the medical care expansion.
"The federal court clearly wants me to try everything I can think of under state law before coming to the court for more direct intervention," Kelso said in a telephone interview.
Kelso did not specify where the money should come from, but says he needs it in installments through 2015.
Schwarzenegger spokesman Aaron McLear said the governor doesn't want to bypass lawmakers.
"The governor believes that lease-revenue bonds are the most cost-effective way to fund the receiver's request and is committed to continuing to work with the Legislature to protect general fund resources," McLear said.
Lease-revenue bonds do not require voter approval but usually sell at higher interest rates than general-obligation bonds.
Schwarzenegger and legislative Democrats say the only alternative to borrowing is to take the money from the state's general fund, which pays for most state programs and services.
The state is facing a $15.2 billion deficit in the fiscal year that begins July 1, effectively eliminating that alternative.
Kelso, who previously was the state's chief information officer, acknowledged his plan creates "a serious budgeting problem for the administration." But he said he already had tried to work with state lawmakers and failed.
Republicans, who have criticized Kelso's borrowing plan, said lawmakers first must fix a $7.4 billion prison and county jail construction bond they and Schwarzenegger approved last year.
Some of that money should be diverted to building the centers Kelso says are needed to improve inmate health and mental health care, said Senate Minority Leader Dave Cogdill, R-Modesto.
Borrowing requires a two-thirds vote in both houses of the Legislature, giving minority Republicans veto power over the bonds — unless Schwarzenegger issues them unilaterally. Administration officials said they were examining their options after receiving Kelso's letter.
Republicans said Schwarzenegger would be overstepping his authority if he chose to do so, despite last week's appellate court ruling. Assembly Minority Leader Mike Villines, R-Clovis, predicted a legal challenge if Schwarzenegger agrees to use his emergency powers.
"That's not emergency power. That's a complete usurpation of the legislative process," said Assemblyman Todd Spitzer of Orange, chairman of a prison oversight committee.
But state Sen. Mike Machado, D-Linden, who carried the failed bill with the prison receiver's borrowing plan, said Kelso's latest move would leave Republicans no choice but to go along with the additional borrowing.
Wed, 04 Jun 2008 00:10:01 GMT
SF: NOV. 17 TRIAL SET IF NO SETTLEMENT IN PRISON OVERCROWDING CASES
SAN FRANCISCO (BCN)
A three-judge federal panel has set a Nov. 17 date for a trial in San Francisco, if no settlement has been reached, on whether there should be a cap on the population of the state's overcrowded prisons.
A population limit, which could lead to an early release of prisoners, is being sought by inmates in two civil rights lawsuits filed over substandard medical and mental health care.
Their attorneys say a cap may be the only way to bring prison health care up to constitutional standards.
The state currently houses 159,500 inmates in 33 adult prison facilities originally designed for about 84,000 prisoners.
U.S. District Judge Thelton Henderson signed the trial date order Friday after lawyers for inmates and the state told the panel during a San Francisco hearing that they hadn't agreed on a settlement.
But the two sides asked for another 30 days to try to reach an agreement, working with a draft proposed by a court-appointed referee. They are due to report back to the panel at another hearing on June 27.
The state and inmate attorneys said they planned to form a committee to consider what the maximum target population of the prisons should be.
Referee Elwood Lui, a former state appeals court justice, proposed in a report last month that the population should be reduced to 132,500 inmates, or 158 percent of the designed capacity, by 2012. The proposed limit could be raised as new prison space is built.
Lui announced the general terms of the proposal May 19 and the full draft proposal was made public by the court Monday.
The proposal would reduce inmate numbers through a combination of diversion of low-risk offenders to county programs; alternatives to incarceration for lower-level parole violators; and improvement of existing early release programs.
In addition to Henderson, the judges on the panel are U.S. District Judge Lawrence Karlton of Sacramento and Circuit Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals.
The case is before a three-judge court because under a U.S. law on prison
litigation, an order limiting inmate population can be made only by a panel
of three federal judges and not by a district judge acting alone.
(© 2007 The Associated Press. All Rights Reserved. In the interest of timeliness, this story is fed directly from the Associated Press newswire and may contain occasional typographical errors. )
Posted on Wed, Jan. 23, 2008
Judge replaces Calif. prisons overseer
The blunt, tough-talking overseer of California's troubled prison health care system was replaced Wednesday by a law professor who has been a fixture in the administrations of two governors.
U.S. District Judge Thelton Henderson, in removing Robert Sillen as court-appointed receiver for the health care system, said the task ahead for the system "would best be accomplished by appointing a new receiver who brings a different set of strengths."
Henderson replaced Sillen with Clark Kelso, the professor who has worked for both Republican Gov. Arnold Schwarzenegger and Democratic former Gov. Gray Davis.
Kelso, 48, takes control of inmate medical care with orders from Henderson to complete the repair job quickly so the system can be turned back to the California Department of Corrections and Rehabilitation.
Sillen had estimated that it could take more than a decade to fix a system that at one point was blamed for killing an inmate a week through negligence or malpractice. Kelso said Wednesday that he hopes to complete the task in three or four years.
"Bob (Sillen) was like the bull that could come in and get things started, and he had the Constitution in his back pocket," said state Sen. Mike Machado chairman of a committee overseeing prison spending. "I think Clark Kelso brings a management ability. I think we can look for greater interaction and cooperation than we had previously."
Sillen, 65, declined to comment. He was replaced after picking fights with the attorneys whose lawsuit prompted the federal takeover of California's inmate health care system.
Don Specter, director of the San Ramon-based nonprofit Prison Law Office, welcomed the switch, and said Kelso will bring "a more collaborative style and administrative skills."
Sillen had demanded hundreds of millions of dollars in new medical equipment and buildings he said were needed to improve inmate health care. He sparked a salary war between state agencies when he unilaterally raised the pay scale for prison health care workers.
At one point, Sillen threatened to send U.S. marshals to raid the state treasury if legislators didn't approve his spending plans.
By comparison, Kelso signaled that he will try to work within a state budget that is stressed by a $14.5 billion deficit through July 2009.
"I have an intimate knowledge of California government and I think it's fair to say a high degree of credibility in both the executive and legislative branch for doing quality work," Kelso said in a telephone interview.
Schwarzenegger's legal affairs secretary, Andrea Hoch, thanked Sillen and said the administration looks forward to working with Kelso.
"We all share the same goal of developing and implementing a constitutionally adequate prison medical care system," Hoch said in a statement.
Associated Press writers Aaron C. Davis and Samantha Young contributed
to this report.
Prison health czar shown the door
A federal judge on Wednesday abruptly ousted the powerful overseer of California's state prison health system amid concerns about the pace of reform and his famously abrasive management style.
Before becoming the federal receiver nearly two years ago, Bob Sillen, 65, ran the Santa Clara Valley Health and Hospital System as a highly regarded but oft-feared power broker for more than a quarter century. He will be replaced as receiver by J. Clark Kelso, a University of the Pacific law professor.
The move throws into question the timing and nature of improvements in prison medical care that Sillen had initiated, but some political observers saw it as inevitable given his confrontational style.
Santa Clara County Supervisor Liz Kniss, who worked closely with Sillen as chair of the county's health and hospital committee, said she was "amazed" to hear of his departure but not surprised by the criticism.
"Bob could be absolutely charming, but when the charm wasn't working, he was bullying," Kniss said. "He used every way in the book to get his way."
Last, best hope
When Sillen took over as a federal receiver, he was lauded as California's best hope to reform a prison health care system so dysfunctional that inmates were dying for lack of care. The state's own reform efforts at its 33 prisons had stalled amid political infighting and lack of money.
U.S. District Judge Thelton Henderson appointed Sillen in 2006 after ruling that California officials had not significantly improved prison health care under the terms of a settlement of a class-action lawsuit filed by prisoners in 2001.
Sillen, who earned $500,000 a year in his new job, established an office in San Jose and soon was overseeing 40 employees and a special state fund of $120 million. Through a spokeswoman, he declined comment on Wednesday.
He sparked controversy when he ordered some poorly performing physicians who had been placed on paid administrative leave to return to work - in the mailroom and in other low-level jobs. Many chose to retire instead.
In a court order made public Wednesday, Henderson praised Sillen's work. Since April 2006, when Sillen began, he has raised doctors' salaries, hired nearly 1,100 nurses, purchased patient transport vehicles for every prison and built an emergency room at San Quentin.
"In general, his reforms were good for California's correctional system," said Jim Herron Zamora, a spokesman for Service Employees International Union Local 1000, which largely supported Sillen. "It's a shame he never got many of them implemented."
But Henderson had also expressed concerns that Sillen was moving too slowly. The receivership has reached a "critical juncture" requiring a new type of leader, he wrote. Sillen's "bold, creative leadership style" worked at the beginning, but the second phase of reform "demands a substantially different set of administrative skills and style of collaborative leadership," Henderson wrote.
Many political observers interpreted that as an indictment of Sillen's confrontational style, which has earned him enemies throughout California's prison system and the Legislature.
In contrast, Kelso reportedly has a more conciliatory style, having worked as an occasional troubleshooter in state government. He served as a temporary replacement for former state Insurance Commissioner Chuck Quackenbush, who resigned in 2000 after allegations of corruption.
Assemblyman Todd Spitzer, R-Orange, chairman of the Assembly Select Committee on Prison Construction and Operations, called Sillen's ouster long overdue.
"Mr. Sillen was nothing more than an obstructionist who was a one-man show and had no interest in working with any other parties responsible for corrections," he told the Associated Press.
Sillen even clashed with the San Francisco-based Prison Law Office, which had pushed for the receivership in the first place. Attorneys with the non-profit complained Sillen was blocking them from conducting prison visits and other monitoring efforts. Sillen argued that the monitoring was unnecessary and interfered with his work. The law group also complained that Sillen was taking too long to devise his reform plan.
At a series of hearings last fall over these issues, observers noticed that Henderson seemed unusually concerned about Sillen's behavior.
Prison Law Office Director Donald Specter declined to criticize Sillen on Wednesday and said his group hadn't sought Sillen's removal. Specter did credit Sillen for "cutting through a lot of red tape."
There was even speculation Wednesday that Sillen's personality had become an issue in contentious negotiations over the prospect of releasing some prisoners early to ease overcrowding. Sillen had criticized overcrowding as one reason prison health care suffered.
Prison-rights lawyers had convinced Henderson and another federal judge to convene a panel with authority to order early releases if the judges believe they are necessary.
Although the prospect appalled many officials and legislators, who viewed letting criminals out early as a potential public safety and public relations disaster, Schwarzenegger earlier this month proposed sending 22,000 inmates home early. But two sources familiar with prison issues suggested that the judge may have felt Sillen's antagonistic style wasn't conducive to working out a long-term settlement over both the medical care and overcrowding issues.
The politically powerful prison guards union was uncharacteristically quiet about the move, declining comment.
But Dr. Stuart Bussey, president of the Union of American Physicians and Dentists, which represents prison doctors, said the union wasn't "all that surprised" to hear of Sillen's removal.
"Mr. Sillen's particular management style apparently did not blend in well with the prison culture nor our doctors," Bussey said. The union "looks forward to working with J. Clark Kelso to improve the health care of California's inmates and the working conditions of its prison doctors."
Contact Barbara Feder Ostrov at firstname.lastname@example.org or (408) 920-5064.
From the Los Angeles Times
Two federal judges hold key to California prison reform
April 30, 2007
SACRAMENTO — Both are past 70, with creaky limbs, gray beards and an eye on retirement after long careers in the black robe.
But like it or not, federal judges Thelton E. Henderson and Lawrence K. Karlton hold the power to help California fix a catastrophic failure: its broken prison system. It is a task neither man covets.
Karlton has had heart surgery and carries a full load of cases aside from his prison work. Henderson suffers an autoimmune disorder that is attacking his muscles. He says he'd be enjoying his golden years already if not for his desire to see inmate medical care improve.
"I want to retire and go fishing and hang out with my grandson," Henderson said in a recent interview. "But Larry and I feel an obligation, a duty, here."
Now the judges' long-running role in California corrections is taking on new urgency. Each is poised to decide a potentially far-reaching question: whether crowding in the state's floundering prisons has become so severe that a cap on the inmate population is warranted. Hearings are set for June.
Last week, Gov. Arnold Schwarzenegger and lawmakers reached agreement on a $7.4-billion program to relieve overcrowding. The package will add beds, permit the governor to transfer some inmates out of state and boost rehabilitation programs. But it is not clear whether this new effort, which includes few measures offering quick relief, will impress the judges. Both declined to comment on the legislation.
Admirers hope the jurists will step in. They describe the judges as heroic figures unafraid to act, even if it means authorizing the early release of prisoners.
Critics see the two as activists bent on seizing total control of one of government's most essential functions, the incarceration of lawbreakers.
Either way, scholars say the politics of punishment have made the judges' participation in prison reform all but inevitable. With politicians eternally fearful of appearing soft on crime, federal judges — protected by lifetime tenure — embody the best hope for curing the myriad ills of the $10-billion correctional system, they say.
"The truth is, these judges give politicians cover to stand up and do things they would otherwise be afraid to do," said Malcolm Feeley, a professor at UC Berkeley's Boalt Hall School of Law. "If someone complains, they can point at the court and say, 'Sorry, but he made me do it.' "
Henderson agrees. Although he prefers to see elected officials lead the charge for improvements behind bars, he understands the political dynamics.
"Unlike the mistreatment of veterans, nobody is up in arms about prisoners," the judge said during a lunch break in his chambers at the U.S. District Court in San Francisco.
He added that even Schwarzenegger — the popular, twice-elected Terminator — told him in a meeting that politics dictated caution on prisons. Though the governor seemed genuinely interested in reform, Henderson recalled, he feared being perceived as a law enforcement wimp, or someone prone to "hugging a thug."
Rooted in a cause
More than any of their colleagues on the bench, Henderson and Karlton have long-standing ties to California's struggling prison system.
For Henderson, who was raised in Los Angeles, the son of a janitor and a maid, the work began with a case on the treatment of inmates at Pelican Bay State Prison near the Oregon border.
In 1995, Henderson issued a landmark decision calling a pattern of beatings and brutality at the prison cruel and unusual punishment.
"The dry words on paper," he wrote, "cannot adequately capture the senseless suffering and sometimes wretched misery that defendants' unconstitutional practices leave in their wake."
Henderson appointed a special master to oversee improvements.
More recently, he has led a wholesale restructuring of inmate medical care, and last year he appointed a federal receiver to run the $1.2-billion prison healthcare operation. He describes that move as "something I was reluctant to do."
But independent experts told him one inmate was dying every six days because of medical incompetence or neglect, so he hired Robert Sillen as receiver and bestowed on him sweeping powers.
"It was a last resort, a huge step," Henderson says. "But when you have life at stake, it tips the balance."
Karlton, who sits on the District Court in Sacramento, oversees the state's lumbering 11-year-old effort to improve conditions for mentally ill convicts. The reforms were spurred by a class-action case over care, and the state's sluggish progress has sorely tested the judge's patience.
"More than 25% of the persons in prison have certifiable mental conditions, and huge numbers of them have been treated as recalcitrant prisoners, despite the fact that they were motivated by voices in their heads and the rest of it," Karlton said in a recent interview. "I don't think the Constitution permits that."
In another case with huge and costly ramifications, Karlton ruled that the state was improperly jailing accused parole violators — sometimes for months — before granting them hearings.
And in a lawsuit testing the religious rights of inmates, Karlton said prison officials could not discipline Muslim convicts who chose to wear beards or attend services on Fridays.
Beyond sharing the theme of prisons in their caseloads, the judges have common roots in the fight for civil liberties.
Henderson became the first black lawyer in the civil rights division of the U.S. Justice Department and was assigned in 1962 to investigate voting rights abuses in Alabama. During that period, a white police officer stopped him for a traffic infraction, roughed him up and used a racial epithet before learning he was a government employee.
His work in the Deep South abruptly ended when, after a chance encounter, he lent his rented car to the Rev. Martin Luther King Jr., whose vehicle had become disabled. An uproar led by then-Gov. George Wallace prompted Henderson to resign.
He returned to the Golden State, where he ran a legal aid office for the poor and was assistant dean of Stanford Law School. In 1980, President Carter made him the first African American on the Northern District federal court.
With his soft voice and gentlemanly manner, Henderson, 73, is widely respected as a precise, contemplative judge. He takes his aging dog, a white bichon frise named Sara, to work and enjoys fishing and attending his grandson's Little League games.
Aside from his prison work, Henderson is known for his decision in 1996 striking down Proposition 209, California's anti-affirmative action measure. Conservatives called for his impeachment. One state assemblyman labeled him a "wacko." The measure was later upheld by higher courts.
Karlton, 71, also has experienced controversy. In 1999, he threw out a voter-approved ballot initiative limiting campaign contributions, saying the donation ceiling was too low.
And in 2005, he ruled that it was unconstitutional to require public school children to recite the words "under God" in the Pledge of Allegiance, inflaming culture wars over religion's place in government.
"You'd have to be from another planet not to think that whatever I did in that case would be controversial," Karlton said in the interview. The ensuing hubbub was "not my concern," he said. "My concern, as always, was to do the law."
A native of Brooklyn, N.Y., Karlton was named to the Eastern District bench by Carter in 1979. Previously, he worked as a lawyer affiliated with the American Civil Liberties Union, championing constitutional causes and often representing the powerless.
Lawyers describe the judge as volatile and intimidating, with a brilliant legal mind. Often emotional on the bench, Karlton — the son of Eastern European immigrants — has been known to grow misty-eyed when presiding over naturalization ceremonies.
He also is quick to act when he suspects foot-dragging. In 2002, he threatened to hold then-Gov. Gray Davis in contempt of court if the government did not produce a plan to rectify the state's treatment of parolees by a deadline he had set.
"Sometimes," the judge said with a little smile, "you have to get their attention."
In his off hours, Karlton enjoys a friendly game of poker and, like Henderson, spending time with his dog, a wire-haired pointer. Until his knees gave out, the judge's true passion was horseback riding. He still keeps his saddle in chambers.
Lawyers who have tried prison cases say the two men share a fearlessness to act however the law demands. Henderson keeps a paper with a handwritten message, lifted from "Star Trek," near his desk.
"To boldly go where no man has gone before," it reads.
Whether those words will apply when the judges answer the question facing them now is unclear. Both are hesitant; Karlton says capping the prison population would be "a radical step."
The issue flows from the two lawsuits over medical and mental healthcare. A smaller case involving disabled prisoners is before a third judge, but Karlton and Henderson are expected to lead the way.
Lawyers in all three cases have asked for a cap on the grounds that overcrowding has made it impossible for prison officials to carry out improvements they have promised.
The governor expressed confidence Thursday that the judicial hammer won't be needed. "I think the judge will see that … there is the will here in the Capitol to fix the problem," Schwarzenegger told reporters.
In court in December, Karlton said that prison improvements have been so slow he sometimes feels he is "spitting in the wind."
Allowing the federal judiciary to tell officials "how many people they can put in their prisons," he said later in the interview, "is not a good thing."
But "if I am put to it," he vowed, "I will do it."
If he or Henderson decides a cap is warranted, a three-judge panel will be formed to decide whether to impose one.
Michael Bien, a lawyer on the case, says it's clear that "these judges are begging the state to take responsibility for this mess."
"It seems to me they shudder a bit every time they are asked to take a more intrusive role," Bien said.
But the judges' records suggest they are not men inclined to fold.
"Unfortunately, improving this system is like turning one of those big ocean liners," Henderson said. "Eventually, it happens. You just have to keep pushing and wait."
Judging California corrections
U.S. District Judges Thelton E. Henderson of San Francisco and Lawrence K. Karlton of Sacramento have long-standing connections to the state penal system.
Thelton E. Henderson
Born: Shreveport, La.
Education: UC Berkeley, Boalt Hall School of Law
Title: Senior judge, Northern District of California
Appointed: 1980, by President Carter
Major prison-related decisions:
1995: Found that conditions at Pelican Bay State Prison amounted to cruel and unusual punishment. Deplored "grossly excessive" force used by guards.
2005: Appointed a federal receiver to run the state's $1.2-billion prison healthcare operation. Experts had found that one prisoner was dying every six days because of medical incompetence or neglect.
Lawrence K. Karlton
Born: Brooklyn, N.Y.
Education: New York University, Columbia University Law School
Title: Senior judge, Eastern District of California
Appointed: 1979, by President Carter
Major prison-related decisions:
1995: Rebuked then-Gov. Pete Wilson and other officials for "recalcitrant refusal" to provide proper treatment to mentally ill inmates.
2002: Found that the state acted unconstitutionally in revoking paroles, because parolees were jailed for months awaiting hearings, a violation of due process rights.
2004: Ruled that prison officials could not discipline or deny sentence-reducing credits to Muslim inmates who wear beards or attend religious services on Fridays.
Source: Times reporting
Testy session on prison plan
The prison medical care receiver and the State Personnel Board presaged an upcoming constitutional clash between their offices Tuesday, one that would pit the overhaul of the correctional health system against the rights of state workers to appeal disciplinary actions taken against them.
In an exchange between prison health czar Robert Sillen and board Chairman Sean Harrigan, the receiver signaled that he's ready to go to federal court to overturn agency actions that get in the way of his trying to fire substandard physicians -- part of his effort to bring the prison health care system up to constitutional standards.
Harrigan shot back that his agency's job is to protect the rights of California employees under the state constitution, and that he has no intention of backing down to the receiver anytime soon.
The face-off came at the end of Sillen's 90-minute appearance before the Personnel Board. He was invited to attend the session in an effort to smooth out issues that have erupted between them, such as the creation of a pre-employment drug testing program for newly hired licensed vocational nurses, which Sillen opposes, and disciplining prison doctors who exercise their rights to appeal.
Sillen said the state employee appeals process is "not acceptable" to him, to which Harrigan responded that the operation of the system has been upheld by the state Supreme Court.
"All I'm saying," Sillen countered, after stating several times that he is prepared to seek federal court orders to get what he wants to overcome state laws that impede him, "is that's the process as it exists now. We're merely sharing with you where we're going to change the process."
Harrigan, becoming visibly angry, told Sillen that the board invited him to the meeting to begin a dialogue "to try and figure out innovative ways to deal with some of the challenges you may have."
"If the name of the game is, you're going to do what you want to do anyhow, and you're just here to tell us what you're going to do, then I don't know why we would have a dialogue," Harrigan said.
The receiver made it clear that discussing problems with the Personnel Board is of only secondary interest to him, at a time when one inmate is dying every six days as a result of poor prison health care, according to the findings of U.S. District Court Judge Thelton Henderson. It was Henderson who set up Sillen's office in an October 2005 decision.
"I have some pretty heavy time frames," Sillen said. "I mean I really do. I've got to stop the killing. And, you know, this is a receivership. This isn't just a little dispute between a couple of state entities, or bargaining in another department, or a union and their managers -- this, that and the other thing. This is a violation of the Constitution of the United States of America -- cruel and unusual punishment. And I'm not going to get into months of dialogue."
"And our responsibility is the (state) constitution," Harrigan said. "To protect the rights of state employees. And we're not going to give up protecting those rights."
Sillen's appearance at the board meeting Tuesday was his second in front of a state panel in two months. And like his Nov. 16 testimony at the Little Hoover Commission, Sillen again said he is prepared to seek court orders suspending state laws and contracts and obtain whatever funding he needs through federal court action to bring the prison medical system up to his version of constitutional standards.
In his third bimonthly report released in November, he singled out the Personnel Board as an impediment to his efforts for requiring pre-employment drug testing on licensed vocational nurses he wants to hire to replace the 1,200 medical technical assistant positions in the California Department of Corrections and Rehabilitation.
"We're not going to have it," Sillen said of the drug testing. He told board members that he felt the practice would deter prospective nursing candidates to apply for the jobs.
Sillen said no other medical personnel in the prison system are required to take the drug tests before they are hired, an assertion that Personnel Board officials disputed.
Posted on Fri, Oct. 06, 2006
Judge considers prisons inquiry
As a federal judge weighed whether to order an investigation into Gov. Arnold Schwarzenegger's alleged failures to fix the state's broken prison system, an attorney for the governor made this novel argument in response: Don't do it, because the inquiry itself will hurt reform efforts.
With senior gubernatorial aides and departed Cabinet secretaries testifying under oath, such an inquiry would become a media spectacle and provide ``political fodder for those who oppose the governor's efforts,'' Arthur Shartsis, an attorney representing Schwarzenegger, told U.S. District Court Judge Thelton E. Henderson in San Francisco on Thursday.
Henderson listened, but indicated he may begin at least the initial steps of an investigation, anyway. A decision is expected in the next few weeks.
Thursday's hearing stemmed from a decade-old federal lawsuit alleging an ingrained ``code of silence'' within the prisons designed to protect outlaw prison guards who use excessive force against inmates. John Hagar, a special master appointed by Henderson, issued a report in June that lambasted the governor's recent actions to address the code of silence.
The governor's first two years in office ``marked one of the most productive periods of prison reform in California history,'' Hagar wrote. But progress ended in January, he said, after Schwarzenegger hired Susan Kennedy, a Democrat and former adviser to former Gov. Gray Davis, as his chief of staff.
Two pro-reform corrections chiefs resigned in a period of six weeks early this year, and top labor negotiators were removed from their jobs on the eve of contract negotiations with the politically powerful prison guards' union. Hagar said Schwarzenegger, facing re-election, buckled under pressure from the California Correctional Peace Officers Association. The governor and Kennedy have denied the charge, as have union officials.
At issue for Judge Henderson is whether to call the departed prison heads, Kennedy, union officials and others to answer Hagar's charges. Shartsis, the governor's attorney, said doing so would divert the administration's attention from dealing with the prison crisis; just this week, he noted, Schwarzenegger declared an emergency caused by rampant overcrowding -- a move that allows him to ease some of the strain by transferring thousands of inmates to prisons out of state.
Meanwhile, an attorney for the CCPOA dismissed the notion that the union is too close to the governor. Contract negotiations took a sour turn over the summer, and the governor declined to seek the union's endorsement in his re-election campaign.
``We are truly at war,'' the attorney, Ron Yank, told the judge.
Yank also said the union is committed to eradicating the code of silence with a stepped-up training program for incoming prison guards -- a pledge the judge called ``encouraging.''
Shartsis also tried to reassure the judge with an offer to provide regular
updates to the court about the administration's reform activities. But
Henderson said he may still call the two departed prisons chiefs, Roderick
Hickman and Jeanne Woodford, to testify about the reasons for their resignations.
Contact Mike Zapler at email@example.com or (916) 441-4603.
Friday, October 6, 2006
Probe of governor's ties to union on hold
SAN FRANCISCO – A federal judge said Thursday that he may call two former state corrections secretaries to testify before launching any formal investigation into the governor's relations with the state's powerful prison-guard union.
U.S. District Judge Thelton Henderson said the two former officials could shed light on whether their resignations and that of several other high-ranking state prison officials earlier this year were spurred by what a federal watchdog described as the Schwarzenegger administration currying favor with the California Correctional Peace Officers Association.
But lawyers for the governor and the union – who deny the allegations – urged Henderson to avoid any formal probe.
The political fallout could harm the governor's ongoing efforts to ease prison crowding, administration lawyer Arthur Shartiss said during a morning hearing at the federal courthouse. He and union attorney Ronald Yank argued there were better ways to ensure that the prisons overhaul federal watchdogs are seeking will take place.
On Wednesday, Schwarzenegger declared a state of emergency in the state's 33 prisons, authorizing thousands of prisoners to be transferred to out-of-state lockups as early as this month to ease crowding that threatens to shut down the system by next June.
Shartiss told Henderson that the governor was willing to issue a quarterly report on issues U.S. Special Master John Hagar is seeking to probe. And Yank said his clients would be willing to offer seminars to new correctional officers to discourage the "code of silence" among guards that Henderson has ruled led to prisoner mistreatment.
Henderson said he welcomed the recommendations but said "there's no room for politics" in the case and that "I intend to keep it that way."
"I want to make clear my sole purpose and sole authority as I see it is that my remedial orders are implemented and enforced and not undermined," Henderson said.
The two secretaries, Roderick Q. Hickman and Jeanne Woodford, quit within two months of each other earlier this year. Henderson's special master in a June report accused top Schwarzenegger aides – especially his chief of staff, Susan Kennedy – of abandoning the governor's proposed overhaul of California's beleaguered prison and causing the two secretaries to leave.
Shartiss disputed that allegation as well as the report's implication that Kennedy was driving prison policy.
"It's the governor's issue. ... No one else calls the shots," he said.
Schwarzenegger, whom Shartiss met with last month, is as "committed as he always has been to prison reform," the lawyer said.
Neither Hickman nor Woodford could be reached for comment. But Hickman told the Register in June that Hagar's findings "confirmed my perspective."
San Quentin warden fired over health care
Sacramento -- The warden at San Quentin State Prison, after little more than a year on the job, was fired Thursday amid an investigation into health care problems at the facility.
Jill Brown, a longtime corrections official who took over the top job at the Marin County prison in May 2004, has been under investigation by the state inspector general's office, and a corrections official said the office's report led to Brown's dismissal.
Todd Slosek, press secretary for the Department of Corrections and Rehabilitation, said Brown was told Thursday of her firing.
The inspector general's office, which acts as an independent corrections watchdog, investigated allegations that Brown had threatened disciplinary action against a doctor who spoke with attorneys about problems with health care delivery at the prison.
The report has not yet been made public, and calls to the inspector general's office were not returned Thursday. The office's findings include that a lack of communication between prison officials and medical staff played a large role in the poor health care there, according to a corrections official who asked to remain anonymous.
California's prisons have been under fire for more than a year over medical care for inmates.
Last week, a federal judge ordered that a receiver take over health care in the state's prisons. The judge concluded that conditions were so bad that inmates were dying for lack of proper medical treatment. Inmates have a constitutional right to adequate health care, and U.S. Judge Thelton Henderson found that that right was being violated.
Court-ordered improvements could send costs skyrocketing above the $1.1 billion already spent annually on prisoner health care.
San Quentin had been singled out earlier this year by medical experts who described filthy examination rooms and "deplorable'' conditions.
The prison's administrators have repeatedly failed to implement court- ordered improvements to health care, said Alison Hardy, an attorney for the Prison Law Office, which represents inmates in a class-action lawsuit over inmate medical care.
Hardy noted that a 2003 directive to inform inmates of upcoming doctor's appointments so they wouldn't miss them was not implemented until a few months ago. Inmates frequently were given just a few hours' notice of an appointment and often couldn't get out of work or other duties and were forced to forgo doctor's visits.
"San Quentin has had enormous health care problems and has lacked the leadership to fix them,'' Hardy said. "Jill Brown inherited a big mess, but she didn't lead them out of it.''
Brown had replaced Jeanne Woodford, who is now second-in-command of state prisons, after five years as San Quentin's warden.
The oldest prison in California, San Quentin houses the state's condemned inmates. The Death Row there is undergoing a $220 million renovation. The prison has 5,967 inmates, about twice its intended capacity.
Slosek said John Stokes, who has been chief deputy warden at the prison since April, will become acting warden.
It is unclear what will happen to Brown. Under state civil service rules, she could return to a prison job, such as associate warden, that isn't an appointed position.
Brown has been a state corrections employee for more than 20 years, working at numerous prisons in the state's system.
E-mail Mark Martin at firstname.lastname@example.org
U.S. seizes state prison health care
A federal judge, saying he was acting urgently to stop the needless deaths of inmates because of medical malfeasance, ordered Thursday that a receiver take control of California's prison health care system and correct what he called deplorable conditions.
Experts said the order by U.S. District Judge Thelton Henderson of San Francisco was unprecedented in its scope given that the prison system provides health care to roughly 164,000 inmates at an annual cost of $1.1 billion.
The order also was an embarrassing blow for the administration of Gov. Arnold Schwarzenegger, which has promised to deliver major medical reforms for nearly two years but, Henderson said, has utterly failed.
The prison medical system offered "at times outright depravity, and I intentionally call it that," said Henderson.
He also said the need for action was so dire that he might appoint a temporary receiver in just weeks to at least begin to limit the harm to inmates from the poor medical care before a permanent receiver is put in place.
Inmate families and those who have long fought for change in the prisons were ebullient.
"It's certainly everything we asked for," said Donald Specter, head of the Prison Law Office, the prisoner rights group that filed the suit on which the judge was acting.
Henderson said he would begin the process of selecting a receiver and defining his or her powers in consultation with state officials and the inmates' lawyers.
The decision followed weeks of testimony from medical experts that Henderson described as horrifying in its depiction of barbaric medical conditions in some prisons, resulting in as many as 64 preventable deaths of inmates a year and injury to countless others.
The state's attorneys have never even bothered to fight those characterizations or the need for federal intervention in spite of their damning reflection on prison managers.
"This is humiliating," said James Jacobs, a law professor at New York University and an expert on court intervention in prison management. "What's extreme here is, it's like the judge is saying to the state, 'I'm totally giving up on you -- you are unwilling or unable to do this on your own.' "
Indeed, top prisons officials for months have admitted the department was incapable of administering the system, a massive and complex medical program stretching the length of the state, often in remote locations. The state's lawyers have focused principally on trying to limit the power of the receiver.
"Nobody can do this by themselves," said Bruce Slavin, the prison system's general counsel. "A receiver can help us do what we want to do faster. "
The unions representing prison health workers, who have been at war with the prisons department, in part over who was responsible for conditions in the prisons, said they were thrilled at the judge's decision. The unions had jointly filed a brief in favor of the appointment of a receiver.
"All the unions are more than willing to work with the receiver," said Gary Robinson, the executive director of the Union of American Physicians and Dentists. "We think the department is incapable of the reforms that are necessary. The judge's position is absolutely correct. The management has been incompetent."
Michael Jacobson, the director of the Vera Institute of Justice and the former head of New York City's jails, said the receiver should begin a process of deep changes reaching into all levels of management and the culture inside the prisons.
"Nothing is going to happen for some years," he said. "This has to be a catalyst for longer-term structural changes. The potential implications of this are just so humongous."
Henderson said appointing a receiver was a last resort but was a result of the Schwarzenegger administration's refusal to comply with his orders to improve the appalling quality of prison medical care. A federal injunction has been in place for three years requiring phased-in medical improvements at each state prison, but the Corrections Department has met none of the goals.
In one case described by court-appointed experts, an inmate's spine was injured in a fight. A prison doctor refused to believe the inmate's claim that he couldn't move, and the doctor wrenched the inmate's head and neck during the examination, aggravating his paralysis. In a case at San Quentin in January, an inmate reported to the infirmary seeking emergency treatment with signs of shock. A doctor already under investigation for two previous suspicious deaths prescribed antibiotics for what he said was bronchitis. When the inmate collapsed on the way back to his cell, the guards brought him back. The doctor ordered that the inmate be given intravenous fluids, but when the staff could not find a vein, the inmate was simply returned to his cell. The inmate died the next day from a serious lung ailment.
He indicated that the receiver was likely to have the ability, at the least, to fire incompetent doctors and hire quickly to fill the more than 150 positions that have been vacant for years and to order construction to improve conditions in the state's 33 prisons.
"This is no panacea," said Jacobs. "It's a staggeringly large job."
Henderson was clear that the process is likely to be long and arduous because of the depth of the problems. In spite of condemning incompetent doctors described in earlier testimony, Henderson went out of his way to praise the rank-and-file prison health workers while excoriating prison managers.
"It's also become apparent that the state has no effective management structure to offer health care," Henderson said.
He added later in his comments from the bench, "My decision to establish
a receivership is just a start."
What it means
The administrator will answer to the court, not the Schwarzenegger administration, and will have the power to order improvements regardless of how much it costs state taxpayers.
Prisoner rights advocates and prison officials will recommend candidates to take control of health care programs. The judge will have the final say. The judge also may appoint a temporary receiver until a permanent appointee is named.
164,000: Approximate number of inmates at 33 state prisons.
$1.1 billion: What state will spend this year on prison health care.
64: The number of inmates who may be dying unnecessarily in state prisons each year because of poor medical care, according to court-appointed physician Michael Puisis.
E-mail James Sterngold at email@example.com
Judge orders takeover of state's prison health care system
A federal court judge, saying he was acting urgently to stop the needless deaths of inmates due to medical malfeasance, ordered Thursday that a receiver take control of California’s stumbling prison health care system and correct the deplorable conditions.
Experts said the order by the judge, Thelton Henderson of the San Francisco district court, was unprecedented in its scope, given that the corrections system provides health care to roughly 164,000 inmates at an annual cost of $1.1 billion. The order was also an embarrassing blow for the administration of Gov. Arnold Schwarzenegger, which has promised to deliver major medical reforms for nearly two years but, Henderson said, has utterly failed.
The prison medical system offered “at times outright depravity, and I intentionally call it that,” said Henderson. He also said that the need for action was so dire that he may appoint a temporary receiver in just weeks to at least begin to limit the harm to inmates from the poor medical care before a permanent receiver was put in place.
Inmate families and those who have long fought for change in the prisons were ebullient. “It’s certainly everything we asked for,” said Donald Specter, the head of the Prison Law Office, the prisoner rights group that filed the suit on which the judge was acting.
The decision, which the judge had hinted was coming, followed weeks of testimony from medical experts that Henderson described as horrifying in its depiction of barbaric medical conditions in some prisons, resulting in as many as 64 preventable deaths of inmates a year and injury to countless others.
The state’s attorneys have never even bothered to fight those characterizations or the need for federal intervention, in spite of its damning reflection on corrections managers.
“This is humiliating,” said James Jacobs, a law professor at New York University and an expert on court intervention in prison management. “What’s extreme here is it’s like the judge is saying to the state, ‘I’m totally giving up on you, you are unwilling or unable to do this on your own.’”
Indeed, top corrections officials have for months admitted that the department was simply incapable of administering the system, a massive and complex medical program stretching the length of the state, often in remote locations. The state’s lawyers have focused principally on trying to limit the power of the receiver.
“Nobody can do this by themselves,” said Bruce Slavin, the corrections agency’s general counsel. “A receiver can help us do what we want to do faster.”
The unions representing prison health workers, who have been at war with the corrections department, in part over who was responsible for the disastrous conditions, said they were thrilled at the judge’s decision. The unions had jointly filed a brief in favor of the appointment of a receiver.
“All the unions are more than willing to work with the receiver,” said Gary Robinson, the executive director of the Union of American Physicians and Dentists. “We think the department is incapable of the reforms that are necessary. The judge’s position is absolutely correct. The management has been incompetent.”
Michael Jacobson, the director of the Vera Institute of Justice and the former head of New York City’s jails, said that, to work, the receiver had to begin a process of deep changes reaching into all levels of management and the culture inside the prisons.
“Nothing is going to happen for some years,” he said. “This has to be a catalyst for longer term structural changes. The potential implications of this are just so humongous.”
Judge Henderson said that appointing a receiver was a last resort, but a result of the Schwarzenegger administration’s refusal to comply with his orders to improve the appalling quality of prison medical care.
A federal injunction has been in place for three years requiring phased in medical improvements at each state prison, but the corrections department has met none of the goals.
In one case described by court-appointed experts, an inmate’s spine was injured in a fight. A prison doctor refused to believe the inmate’s claim that he couldn’t move, and so the doctor wrenched the inmate’s head and neck during the examination, aggravating his paralysis.
In a case that took place at San Quentin in January, an inmate reported to the infirmary seeking emergency treatment with signs of shock. A doctor already under investigation for two previous suspicious deaths prescribed antibiotics for what he said was bronchitis. When the inmate collapsed on the way back to his cell, the guards brought him back. The doctor ordered that the inmate be given intravenous fluids, but when the staff could not find a vein the inmate was simply returned to his cell. The inmate died the next day from a serious lung ailment.
Henderson said that in the weeks ahead he would begin the process of selecting a receiver and shaping the precise scope of his or her powers, in consultation with state officials and the inmates’ lawyers.
He indicated that the receiver was likely to have the ability, at the least, to fire incompetent doctors and make quick hires to fill the more than 150 vacancies that have been open for years, and to order construction to improve conditions in the state’s 33 prisons.
“This is no panacea,” said Jacobs. “It’s a staggeringly large job.”
Henderson was clear that the process was likely to be long and arduous because of the depth of the problems. In spite of condemning incompetent doctors described in earlier testimony, Henderson went out of his way to praise the rank and file prison health workers yesterday, while excoriating corrections department managers.
“It’s also become apparent that the state has no effective management structure to offer health care,” Henderson said.
He added later in his comments from the bench, “My decision to establish a receivership is just a start.”
E-mail James Sterngold at firstname.lastname@example.org
Posted on Thu, Jun. 30, 2005
California's prison health care system to get outside oversight
BY MARK GLADSTONE
SAN FRANCISCO - (KRT) - With the toll of preventable deaths mounting weekly, an alarmed federal judge on Thursday seized control of California's woefully inadequate prison health care system to ensure that inmates receive the care they're guaranteed under the U.S. Constitution.
It is the most sweeping federal takeover of a prison health care system in the nation's history.
Citing "incompetence and outright depravity in the rendering of medical care," U.S. District Court Judge Thelton Henderson said he had no choice but to strip the Schwarzenegger administration of management of the $1.1 billion-a-year prison medical system and turn it over to an outside administrator.
The San Francisco judge estimated that an inmate dies every six or seven days due to medical negligence or malpractice. He described a bureaucracy engulfed in institutional inertia, unable to fix the problem.
In April, the San Jose Mercury News detailed one of the cases. An inmate who could neither eat nor drink and was dehydrated arrived at the San Quentin clinic shortly after 8 p.m. With a fever over 103 and a racing pulse, his vital signs indicated possible shock and a life-threatening emergency.
The prison doctor on duty did not have a chart to check the inmate's history. The doctor failed to evaluate for dehydration and diagnosed bronchitis and the flu. He prescribed Tylenol, Benadryl, cough syrup, antibiotics and two other medications and told the inmate to come back in a week.
The inmate collapsed on the way back to his cell, according to a report from three court-appointed medical experts obtained by the Mercury News. The physician, known only as "Dr. X," gave him some fluids and sent him back to his housing unit. By the next afternoon, the man was in shock and died - about 30 hours after he was first seen by Dr. X.
The litany of health care woes shows the rocky road the Schwarzenegger administration faces in trying to overhaul a dysfunctional prison system where costs defy containment, inmate care is shoddy and guards wield enormous political clout. Along the way, people die needlessly on the inside, while the state spends millions of dollars to guard comatose patients who cannot move, let alone escape.
Henderson said he would move within the next few weeks to name a temporary administrator who could hire qualified physicians and then launch a search for a permanent manager to crack down on mistreatment. He wryly said his challenge is to find someone who administered a major medical system like Johns Hopkins, received an MBA from Stanford in medical management and served as a prison warden.
Attorneys for the nonprofit Prison Law Office, which brought the action that resulted in Henderson's landmark decision, indicated they would support one of three court-appointed experts as the interim administrator.
State officials conceded inmates receive shoddy care and said they have no plans to appeal the ruling. Instead, they expect to cooperate with Henderson, who now will have the final say in health care in prisons.
"I have said all along that if something is broken it needs to be fixed," Corrections Secretary Roderick Hickman said in a statement. "The taxpayers of this state can't afford to keep paying for repeated lawsuits that result from the same kinds of problems such as inadequate health care, poor mental health treatment and insufficient staffing."
Attorneys for the state and inmates described the decision as historic and said they were unaware of such a sweeping action undertaken in any other prison health care system. Henderson hailed it as a "bold and uncharted adventure" that could last several years.
At 71 and already on part-time status, the bearded and bespectacled Henderson said he would like "to retire and go fishing" but he feels an obligation to provide humane treatment to the state's 16,000 inmates.
The decision is expected to shake up the sprawling prison system - which effective Friday is changing its name to the Department of Corrections and Rehabilitation as part of a massive reorganization. For one of the first times, someone with an independent set of eyes and broad power will be examining prison practices and that could affect the closed culture of the state's 33 prisons.
For the past 18 months, the Schwarzenegger administration has faced mounting problems in the prison system and has been at loggerheads with the guard union. The union represents some medical personnel, too.
Another key issue has been who has the ultimate say when an inmate is ill - the security staff or medical personnel. If the new health care administrator fails to give as much leeway to guards, it could lessen the power officers have inside institutions.
Thursday's hearing was set to hear final arguments in the latest episode of a class action lawsuit filed in 2001 by nine plaintiffs, including inmate Marciano Plata. The state previously had entered into a broad legal agreement intended to improve health care.
Sitting in front of a U.S. flag in the quiet courtroom with about 40 spectators, Henderson calmly described a trail of mostly broken promises made by the state prison authorities dating back 25 years.
In the Plata case, Henderson said, over the past four years he's tried to encourage the state "to fix what the state admits is a broken system."
After viewing the historic ruling from the jury box, Sen. Gloria Romero, D-Los Angeles, told reporters she expects the new receiver to find more problems.
"It's the tip of a very big iceberg," Romero said.
© 2005, San Jose Mercury News (San Jose, Calif.).
Visit MercuryNews.com, the World Wide Web site of the Mercury News, at http://www.mercurynews.com .
Distributed by Knight Ridder/Tribune Information Services.
July 12, 2005
Prison system hope
U.S. District Judge Thelton Henderson is a man of courage and conviction.
On Thursday, he took the unprecedented action of putting California's out-of-control prison system into federal receivership.
This, after days of hearings in which he heard doctors and other witnesses testify about the deplorable medical situations that exist in our state's prisons.
Story after story painted a picture of a system so barbaric and callous that scores of inmates are dying tortured deaths out of sheer neglect. Nearly one inmate a week is dying needlessly while Department of Corrections bureaucrats flail about, desperate to maintain order.
Now even the department's top brass are pledging cooperation.
The judge's action may seem extreme, but extreme action was required. Nothing else worked - not Senate hearings that exposed a corrupt and flawed system, not media attention, protests, letters or even lawsuits.
What was viewed as a landmark case five years ago has gone virtually ignored. The Plata case, named after one of 10 inmate plaintiffs, resulted in a settlement which required that CDC develop new medical protocols and procedures that address staff training, timeliness of care and other issues. Registered nurses were to staff emergency clinics 24 hours per day every day. And the department agreed to secure funding and implement policies at each prison according to a specific schedule.
Yet the system - including our two prisons in Vacaville - failed to meet these basic requirements.
The bodies and the lawsuits continue to stack up.
Judge Henderson will meet with attorneys for the nonprofit Prison Law Office next week to discuss who the receiver should be, or if it should be a team of people with a mix of medical administration, political management and correctional skills.
The new receiver will report directly and only to the judge however long it takes to get the state's $1.1 billion system back on track.
It could be years.
During our recent series on Vacaville's California Medical Facility, we met a lot of good people who really want to do a good job and make a difference. But it is impossible for them to succeed and thrive in a system as distorted and corrupt. Too many bad apples - scattered throughout the 32-prison system - and too many callous practices undermine the credibility of good doctors and nurses.
Desperate action was needed, and desperate action was taken. We believe that Judge Henderson is just the man to select an appropriate agent of change - an individual or team of individuals - that will raise standards and establish a protocol with dignity.
Failing is not an option.
Inmates' health up to judge
SAN FRANCISCO — A federal judge seized control of medical care in California's
prisons Thursday, deciding to appoint a receiver to overhaul a $1.1 billion
system in which an inmate needlessly dies every week on average.
Likely to be in place for at least a few years, the receiver will report directly to Henderson. Though the scope of duties has yet to be determined, it will almost certainly include firing and hiring personnel and reworking policy on health care at the state's 32 prisons.
Henderson said he realizes this takeover — unprecedented in its scope — is "perhaps the most extreme remedy that's available" and said he orders it neither lightly nor with a clear idea of exactly how it will work.
But all lesser means havefailed, lives are at stake, and time is of the essence, the judge said. The current crisis violates the Eighth Amendment's protection from cruel and unusual punishment, he said, and "is simply not to be tolerated."
State Sen. Gloria Romero, D-Los Angeles, who as chairwoman of the Select Committee on the California Correctional System has crusaded for prison reform, was in the courtroom Thursday and said, "This is the right thing to do, this is the only thing to do."
Having the system placed in receivership will "force the state of California to do a gut check" after a quarter-century of neglecting the basics, Romero said.
Prison Law Office Director Donald Specter, who argued for receivership, called this "a historic moment — nothing like this has ever been done in the country" on a scale near to this. "This is akin to running a major corporation ... in some ways it's more complicated."
Some states have outsourced medical services in their prisons, but California administers its own.
Prisoner advocates sued the state in 2001 over constitutionally inadequate health care in the prisons, and the prisons already have operated for three years under an injunction requiring systemic health care improvements. Yet few if any have come to pass; a plague of unqualified, unsupervised doctors and vacant management positions continues.
Henderson issued an order May 10 for the parties to show cause why a receiver should or should not be put in charge. Expert testimony given in Henderson's courtroom over five days in May and June described instance after instance in which inmates suffered or died due to neglect or improper care; statistically, it happens about once a week.
State officials initially were lukewarm to the idea of receivership, acknowledging the system was a failure but blaming stubborn doctors' unions and unwieldy bureaucracy for the lack of progress. By Thursday, however, they'd apparently embraced it as inevitable.
Jerrold Schaefer, the state's hired counsel, told Henderson on Thursday that the state hopes this will be "a collaborative process" with a high-ranking member of the correctional agency's Health Care Services Division acting as liaison.
Schaefer said the state hopes the receiver will be "a creator, not merely a critic of the system" who will enact policies to provide constitutionally adequate health care for decades beyond the receivership's end.
California Youth and Adult Correctional Agency Secretary Roderick Hickman issued a statement pledging his agency's cooperation and noting he's "said all along that if something is broken it needs to be fixed."
"That's what we intend to do with this case. We need to find a sustainable solution to the inmate health care issues that will keep this department out of the federal courts," he said. "The taxpayers of this state can't afford to keep paying for repeated lawsuits that result from the same kinds of problems such as inadequate health care, poor mental health treatment and insufficient staffing."
Gov. Arnold Schwarzenegger signed a bill in May to reorganize and centralize the state's correctional agencies; officials will roll out the structure, leadership and logo today.
"Tomorrow marks a new day for California's corrections system as the agency is transformed into the California Department of Corrections and Rehabilitation," Schwarzenegger spokeswoman Julie Soderlund said Thursday. "The governor looks forward to working with the receiver to create a sustainable health care system for our prisons."
Henderson praised the reorganization Thursday as being in the same spirit of reform as his decision to appoint a receiver. "I'm afraid, however, that the reorganization doesn't go far enough" in elevating inmate health care as a priority, the judge said.
Henderson said he'll expand on his ruling with a written order within the next few weeks. He refrained from declaring any state officials in contempt of court for their past failures to correct the problem, saying he'll need everybody's cooperation from this point forward.
The 71-year-old jurist also said the receivership will last however long it takes to solve the crisis, despite his personal desires.
"I want to retire, I want to go fishing," he said, drawing laughter
from the audience. "I don't want the receiver in here any longer than necessary."
Contact Josh Richman at email@example.com
It isn't the usual thing that happens in California courtrooms, where
a judge is actually informed about what is terribly wrong within the system
and takes corrective action.
But death sentences have routinely been given to hundreds of men and women through methods of slow and painful torture in the form of medical neglect in California's prisons. And the man who is doing something about it is Federal Senior Judge Thelton Henderson.
In his San Francisco courtroom Thursday, he ruled that the medical neglect and its death toll is so rampant that he must put the entire California Department of Corrections under the control of an emergency federal receiver.
This happened after shocking testimonies given by two investigative physicians, each with 20-years-plus experience, who compared California's medical crisis to that of Angola, one of the worst federal prisons in the country. Both physicians stated that in all their decades in practice in correctional settings, they had "never seen such callousness and gross incompetence so widespread."
They reported scores of preventable deaths verified from the medical records. At least 64 more per year are predicted to happen until the bureaucratic mess is cleaned up.
Physicians predicted an immeasurable toll of serious injuries that fall just short of death.
I sat through their testimonies in San Francisco, heard their stories told with tones of grief and moral outrage, and I cried silently as they described what is nothing less than torture.
Records were "missing" or never filed on 60 or more additional deaths. Is this a coverup or just unbearable incompetence?
The crisis isn't happening because there is a shortage of money. Everyone agrees on that point. The medical care budget for inmates is $1.1 billion per year.
Undersecretary Kevin Carruth, one of the men hired to remedy the problems in corrections quit his job during the course of the hearings. He admitted that medical care isn't exactly CDC's forte.
The governor and legislators implemented a grandiose reform plan that puts far too many responsibilities on a few men and women, but already it has crumbled by the resignation of one of the key men hired just 18 months ago to bring about the reform.
The plan was impractical to begin with, but the attempt at least caused some recognition to the problem. In itself, that was a bit of progress. The key element of the all-new, improved prison plan was civilian oversight, which struck out of it before the ink was dry.
After that, I couldn't take it seriously while others were anxious to pass anything just to get a start on the behemoth problems which have claimed numerous lives per year.
It's a simple equation. If prisoners doubled who are locked in cages and basic needs aren't met, such as decent food, water, proper housing and sanitary conditions, then the result is predictably chaos and crisis.
The core of the problem is severe overcrowding. We simply have too many people in prison. But nobody in the Legislature or those on boards and commissions will admit it.
Even though state murder by medical neglect is common, it is still an unthinkable remedy to grant compassionate release for terminal illness way past the time that anyone is a danger to society.
Releasing nonviolent inmates or changing the sentencing laws to include alternative sentencing is a common-sense approach that few want to consider.
That's because most of the callous people who block this reform were put into office by law enforcement labor unions so they could serve their interests, not the interests of the people.
And certainly not the interests of the 3 million people who are connected to the state's inmates. This number doesn't include the family members of those in jails, federal prisoners or juvenile halls. These people are mostly the poor and uneducated who have not organized a funded, voting lobby to the size and power that it would take to outnumber the California Correctional Peace Officers Association. The booming prison industry probably would be much smaller, around 30,000 inmates instead of 165,000 if former Republican Gov. Pete Wilson hadn't wanted to run for the presidency on a "tough on crime" platform.
As founder and director of UNION - United for No Injustice, Oppression or Neglect - I believe the lawsuits my group has helped families file in several wrongful death cases have made a serious impact. Now people are going to get fired for killing prisoners and demonstrating deliberate indifference. In the past there was no accountability. Three of those lawsuits were filed against Vacaville prisons for deliberate indifference.
In June, the Inspector General reached a surprisingly sensible conclusion that the death of a mentally ill prisoner who was carelessly doubled-celled was the prison's fault. Will there be murder charges filed against the prison administration or any consequences at all?
It remains to be seen.
But after the millions we taxpayers have spent for this impotent "independent agency," it's good to see one sensible finding.
How did all these people die without the media and the citizenry catching on? It's a valid question and one I am frustrated over every day.
The families alerted legislators and the media about what was happening by calling, faxing, writing thousands of letters, showing up to important hearings and picketing the Capitol and prisons.
Lawsuits were filed, press conferences were held, I published a daily newsletter, did a television series and recorded literally hundreds of radio and TV programs to get out the alert. Still, the curmudgeons in elected office buried this dirty little secret of prisoner deaths deep into state politics.
A few of these relics always voted the right way on the bills, don't get me wrong. But were their egos too big to admit to this full-blown crisis so dire that an emergency federal takeover became the only llth-hour option?
The short answer is yes!
While most legislators, the Inspector General and the Office of Internal Affairs have all failed to be responsive to appeals from inmates and their families - even in life and death emergencies - at least Sen. Gloria Romero, D-Los Angeles, had the common decency to admit that intervention by a higher power was needed. That much we should recognize.
Because grumpy old men in power were hiding the enormity of this emergency, it could not surface. Sen. Romero conducted a number of hearings demanding CDC to clean up the problems but they did not. Nor could any prison in California comply with court-ordered reform.
The dead bodies of men and women imprisoned in these blood houses are stacking up right under the noses of the taxpayers, the media and the legislators.
Judge Henderson considers those deaths reason enough to call an emergency. I agree. But why did no one listen to thousands of screams before now? The graphic courtroom descriptions equal abuses in Abu Ghraib, but we all faced and reported many of these deaths as they happened, working with devastated families.
Shame on all connected, whose callousness covered this up.
The author is founder and director of UNION - United for No Injustice, Oppression or Neglect - a Sacramento-based statewide group of advocates for prisoners and their families since 1998.
Article Launched: 07/06/2005 07:08:25 AM
Receivership is key to overhaul
A landmark decision was made by Judge Thelton Henderson last week that will eventually prevent future deaths of California inmates due to medical neglect and improper treatments.
Receivership hearings were part of one of the most important and progressive steps toward prison reform.
Medical neglect is such an important issue with prisoner advocate groups. Yet the absence of their representatives at these hearings was quite noticeable. They've asked for public support regarding prison issues, but are a "no show" to the most important judicial hearings in years that will impact the well-being of all inmates!
That's not helping the prison reform movement in my opinion.
Cayenne Bird, founder of United for No Injustice, Oppression or Neglect), and some UNION members attended. UNION is an advocacy group for California prison inmates and their families.
I thank them for their unconditional support and dedication to the inmates and their families.
Onita Rand, Antioch
Posted on Mon, Jul. 04, 2005
A chore the state's happy to hand off
Mercury News Editorial
Health care in the state prison system needed new management so badly that when a federal judge said he would take over, the Schwarzenegger administration essentially said ``be our guest.''
Citing ``incompetence and outright depravity in the rendering of medical care,'' U.S. District Court Judge Thelton Henderson said that ``a prisoner dies needlessly an average of roughly once a week.''
The judge will appoint a federal receiver within the next few weeks to manage prison health care, taking it away from the Department of Corrections and Rehabilitation.
This is a mess that Schwarzenegger inherited, not one he created. And it's a mess that the governor is probably happy to hand over to someone else. The administration pledged cooperation. It's not heading off to the court of appeal.
Perhaps the federal court will be able to combat the entrenched bureaucracy and the powerful prison guards union. They have been abetted by the legislative and public enthusiasm for locking people up on the cheap and forgetting about them. Previous reform efforts haven't made much headway.
Despite the many accounts of waste in the prison medical system, the most likely immediate consequence of the federal takeover is that the bill for prison health care will go up, probably $100 million to $200 million more than the $1.1 billion spent now. Vacancy rates are running at 15 percent to 20 percent in some medical job categories; the positions will be filled. The barely functioning system of medical records kept on paper needs to be replaced by computer tracking. Facilities will need improvement.
But eventually, better management should save money. One expert who has been inspecting medical care in prisons reported so much confusion that ``medical providers are reduced to guessing or repeating tests and treatment already done.''
And the state should lose fewer lawsuits from victims of mistreatment, or their survivors.
Henderson was more than patient with California's elected leaders and
prison officials. He couldn't wait any longer. Even prison inmates have
a right to a health care system that is not criminally bad.
Prisons' fix expected to be costly
By Andy Furillo / The Sacramento Bee
(Updated Sunday, July 3, 2005, 5:46 AM)
SACRAMENTO -- Lawmakers will need to get the checkbook ready when a judicially appointed receiver takes over the state prison health-care system, say close observers of the Department of Corrections and Rehabilitation.
Short-term fixes for the system, mostly in personnel costs for physicians, nurses, pharmacists and top-level managers, and installing a new, computerized records-tracking system, will probably end up costing at least $100 million a year, the experts said -- about a 10% increase over the $1 billion California currently budgets on health care for adult offenders.
Prison department spokesman J.P. Tremblay also said "there will be costs associated with whatever plan comes out" with the receiver, but that "it is premature to really make any kind of an estimate."
U.S. District Judge Thelton Henderson did not offer any cost estimates Thursday when he ordered the prison health-care system into receivership. And although the structure and scope of the receivership remain to be determined by the judge, prison watchers said that addressing the personnel issues probably would represent the first order of business.
Richard Steffen, a staff member to state Sen. Jackie Speier, D-Hillsborough, and a leading expert in the Capitol about prison health care, said he expects the receiver to move quickly to hire as many as 50 more general practitioners for the system, on top of the approximately 300 that were employed as of last September -- while at the same time weeding out the physicians and surgeons who aren't qualified for the work.
Prison doctors currently earn an average of $134,000 a year, said Gary Robinson, executive director of the Union of American Physicians and Dentists, an affiliate of the American Federation of State, County and Municipal Employees. Robinson said it probably would take $30,000 more a year to make the job more attractive to more doctors.
Steve Fama, one of the lawyers with the Prison Law Office who has pressed the lawsuit that resulted in Henderson's receivership decision, said that "incompetence" and "lack of management" were significant issues in the prison health crisis.
But a failure on the part of the state to spend more money, mostly on
good people, also has contributed to the problem, Fama said. "Most specifically,
with regard to the inability to recruit and retain sufficient numbers of
qualified nurses and physicians, a big part of the problem is inadequate
levels of compensation," Fama said.
Death in state prisons
Monday, July 4, 2005
LAST WEEK, U.S. District Court Judge Thelton Henderson described the horrifying consequences of providing inadequate health care to prison inmates.
He estimated that "a prisoner needlessly dies an average of roughly once a week," as a result of "incompetence and outright depravity in the rendering of medical care" to them. He said the prison system had no "effective management structure" to deliver adequate health care to inmates.
Henderson wasn't describing conditions in Abu Ghraib or Guantanamo Bay, but in prisons right here in California.
How did this happen? Over the past three decades, California's voters and legislators have blithely passed initiatives and laws that have crammed more and more inmates into a prison system built to handle only half its current population -- without taking into account the full costs of running such a system.
Apparently no one really planned for the costs of just providing health care to an aging, increasingly sickly prison population. The bill to the taxpayer for providing even inadequate health care is already $1.1 billion a year.
Gov. Arnold Schwarzenegger must himself take some responsibility for the crisis, because of his central role in defeating an initiative last year to reform California's "three strikes" law.
The defeat of the initiative means that California taxpayers will have to spend a fortune just on health care to keep thousands of inmates behind bars for the next several decades for committing relatively minor crimes.
In addition, the taxpayer must also cover the costs of thousands of inmates serving indeterminate life sentences, who have been denied parole even though many have strong claims to being fully rehabilitated.
Being tough on crime may sound appealing on the campaign trail. But
ratcheting up California's prison population from 22,000 in 1979 to 163,000
today has brought with it enormous costs -- as well as responsibilities.
One of them is providing decent health care, so that inmates don't die
because of poor medical care. That has no place in a civilized society,
even in its prisons.
Article Last Updated: 7/09/2005 07:58 AM
Labor unions not doing justice for our prisons
The article by B. Cayenne Bird ("Real hope for reform," Forum, The Reporter, July 3) is bold and accurate. The families of prisoners and inmates have absolutely no place to go for help in an emergency.
The families are regarded as criminals, even though they are crime victims. Being related to an addict or a mentally ill person in California apparently makes you a criminal in the eyes of the non system.
As Ms. Bird stated, the Inspector General's Office is impotent and so are the legislators, if they bother to open their mail. While they might care, they are all absolutely powerless against the California Department of Corrections and its sister organization, the California Correctional Peace Officers Association labor union.
When Ms. Bird referred to the CCPOA as "iron-fisted," that was an understatement. I agree with her that the core of the problem is overcrowding. These prisons are stacked three bunks high and even the dayrooms are full of beds.
Then we read about 7,000 parole violators being arrested. The law enforcement labor unions have taken over the government and there is no justice through parole.
How many families must be destroyed before the voters decide to do something about the overcrowding? How many dollars will be paid out in wrongful death and torture lawsuits that could have been used for prevention of mental illness and addiction?
What if everyone voted? That would be a big start.
What if a real inspector general listened to the families and inmates who know when they are going to die?
That would be huge. You'd think that after billions spent, somebody would be getting the job done.
Susan Randall, Vacaville
Article Last Updated: 7/10/2005 07:40 AM
Prisons become death camps
Every crime has a victim.
Every victim wants justice.
No one individual can afford to pay the price of locking up the person who committed the crime because that person must be housed, fed and receive basic health care. Add to that cost the enormous numbers of correctional officers and high-priced prison personnel to make sure that person walks the line and pays the price to society. The price tag for this type of justice, just keep adding up the dollars. Your dollars.
We do not live in Nazi Germany with government death camps, but maybe we live in California with state death camps.
If we are so bloodthirsty for justice that we are willing to lock up another human being for even the smallest offense, with a life sentence, then we better get out our wallets and be prepared to pay the price for our abusive justice system.
Federal Judge Thelton E. Henderson happens to believe a person, yes, even prisoners, live under a Constitutional state and if the taxpayers want this kind of justice, they must pay the price.
Maybe it is time we revise our death camp prison system and our bloodthirsty mentally.
Nora Weber, Bakersfield
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