Litigation over Medical Services in Prison

Our next panel, chaired by my terrific colleague Aaron Rappaport, highlighted one of the hottest issues on the correctional agenda today: the issue of litigation over medical services.

Don Specter, Director of the Prison Law Office, opened the panel by telling us some of the realities of prison litigation. The Prison Law Office has been litigating prison health care in CA for three decades, and with the exception of the first trial, they have won every single case by judgment or consent by proving Eighth Amendment violations, which are extremely difficult to prove. Despite these victories, the conditions persist. In the latest chapter, the courts were motivated to make the Plata/Coleman tentative ruling in light of truly alarming data (provided by the Receiver’s office) on the standards of care, such as the shockingly high avoidable death rates in prison. Why did such conditions persist? Not only does overcrowding prevent the system from reaching acceptable standards of care, but the State is not committed, in the deep sense of the word, to the provision of medical treatment to inmates. The system focuses on the custodial aspects of its function; the medical services are an add-on, an afterthought, which the system is not designed, and unmotivated, to cope with, especially in cases of exigencies. Courts are rather poor institutions when it comes to solving such problems with injunctive relief, and are often dismayed at the State’s noncompliance, to no avail. The current move to block the Receivership, said Specter, is one such example. Instead, said Specter, the priorities should be as follows: a reduction of prison population to manageable levels (104,000 prisoners); proper classification of prisoners; and providing the Receiver with proper resources to do his job.

The next speaker, Lori Kohler from the Department of Family and Community Medicine at UCSF, reminded us of an important value: compassion. Prison is an invisible city, and as a society we fail to accept its existence and needs, and simply assume that people just “go away”. But this “city” in particular poses real challenges to medical staff: not only are minorities and poor people overrepresented – which raises questions of medical care prior to entering prison – but also, prison creates some of the most complex cases medical professionals have to deal with. Kohler spoke of the “culture clash” for medical professionals in prison: the doctors walk in with compassion and care, but prison environment constantly reminds one why people are there. There are plenty of opportunities to connect with the compassion of custodians and work together, since the guards themselves have vested interest in the provision of proper medical care; however, the need for safety, and system exigencies, complicate this. Safety rules (such as the inability to transfer people to appointments in the fog, or if someone lost a pair of scissors) complicate the provision of services. Also, the incredible low-tech environment problematizes the ability to take care of complicated medical situations such as HIV, Hepatitis C, and chronic pain. Another challenge is the hiring of proper staff; financial revenues are not enough to guarantee quality and care. Kohler reports having witnessed some truly horrific care, not just in the realm of passivity and neglect. She highlighted the importance of generating a culture shift within the institution by modeling compassion and care.

Clark Kelso, the Federal Receiver for the medical system, spoke of the health system as a symptom of the broader problems in prison: a prime example of insufficient resources to care for an exceedingly large number of prisoners, as well as bad allocation of the resources we already have. The receivership – a court-designated instrument to remedy the situation – is only one solution out of the four class actions dealing with medical, mental, and dental care, as well as with violations of the Americans with Disabilities Act. Part of the receiver’s job is to coordinate with the institutions designed to solve the other pieces of the puzzle.

Since the Receiver cannot change sentencing policies in California, his role in that respect is limited to providing technical information and advice to policymakers, such as the possible impact of sentencing policies on prison population. His primary responsibility, though, is to provide care for whatever population the state decides to incarcerate. In that respect, he focuses on providing mroe access to care, a higher quality of service, more staff, and construction suited to house these needs. Despite the fierce battles with the State, the State and the Receivership actually agree on most of these.

One important point made by Kelso had to do with the need to invest more money as an initial cost, which will go down in time. For example, in order to use telemedicine in prison, network lines need to established, which is very costly (150,000,000) because of the distant locations of the prisons.

Kelso is able to marshal data to assess how much progress has been made, and is pleased to see some important improvements. 85% of medical appointments are successfully made. Staffing is increasing. The challenges in making faster progress have to do with the need to play “catch-up” with thirty-five years of a failure to invest in the medical services, as well as from the need to make the medical services applicable in a system that has custodial and security needs.

Finally, Joyce Hayhoe, Legislation Assistant Secretary at CDCR discussed some of the recent improvements the Department made. Reminding us of the situation prior to the Department’s reorganization in 2003, she highlighted the punitive aspect of sentencing (ratcheting up sentences as a response to punitive public sentiments) as well as the lack of attention to rehabilitation. The recent Plata/Coleman litigation has impacted the CDCR quite deeply. First, the Receiver has managed to greatly improve health care for inmates (we were all invited to San Quentin to see for ourselves; we think we’ll take the CDCR’s invitation seriously!); and second, the three-judge panel decision requires a three-pronged approach to the overcrowding situation, which will include building more capacity, sentencing reform, and rehabilitation programs. She argued that the population is currently at a three-year low, and that the number of “bad beds” in gyms and cafeterias has been decreased by 7,000.

Defining the Problem

The conference launched yesterday to a great start. Our first panel, Defining the Problem, featured five thoughtful perspectives on the broad picture of the California problem.

Craig Haney, who opened the panel, had some disturbing realities to share with us. He had brought with him – and shared with us on the big screen – pictures from his visits to prison, each of which was really worth a thousand words. Inmates sleeping in cafeterias and gyms; medical examinations conducted in little cages; group therapy in cages inside a bathroom; triple bunks; and unbelievable density. The numbers were quite alarming. While the prisons become more and more overcrowded, crime rates have gone down; as Haney explained, most experts agreed that the rising imprisonment rates did not account for the crime decline. Also, the gap between prison population and prison capacity keeps growing. Haney did a terrific job of tying the California situation to the broader U.S. correctional disease, while highlighting the particulars that made CA a unique situation; particularly, the truly disappointing percentages of people exposed to rehabilitation programs and receiving medical care. And, as per one of the slides in his presentation, we got yet another sobering look at the expanding gaps between non-minorities and minorities in terms of their exposure to the correctional system.

Jeanne Woodford marshaled her extensive experience in prison management to identify three main sources for California’s misery: sentencing policies, uniform policies, and overcrowding. She traced the history of determinate sentencing since the late seventies, pointing to the many deficiencies of our penal code. She also pointed out the lack of coordination between jurisdictions regarding implementation of correctional policies, highlighting the following amazing fact (which I didn’t know): a person could be – and many people are – on probation in several different counties simultaneously, in which case one spends one’s post-incarceration time shuttling between counties several weeks for drug testing and following often contradictory courses of action. Without fact-based policies, and without clear objectives for incarceration beyond “punishment”, wardens and staff cannot be assessed by desirable measures such as decline in recidivism rates or program completion, but rather by how many prisoners escape; not a promising recipe for healthy corrections. Finally, Woodford discussed the fact that overcrowding is not only a problem in itself; it is a complicated factor which exacerbates everything else that happens in the system.

Harold Atkins from Centerforce was cheered by the audience after providing us with a valuable personal account of the problem from the perspective of one who had gone through it and who now reaches out and educates others. Having gone into prison for the first time as a young adult, he told us of being shocked not only by the lack of personal space, but also by the lack of safety. He also highlighted not only on prison conditions but also on the success of programs; the good fortune to be picked up for a program does not fall into the lap of many, and the programs’ reach is very minimal. The programs themselves, Atkins reminded, should not be implemented without thought; we must test them repeatedly to see what works and make them as widely available as possible. Another thing to consider are his wise words regarding the norms and codes that lead young people into prison; growing up in a difficult neighborhood, at the time of his incarceration he had already been well-schooled in the rules by which prison environment functions. Much of the educational work we have ahead of us needs to happen on the outside.

Frank Zimring followed by delivering a passionate “grumpy sermon” from the podium, in which he shared four important insights. First, the California problem is not an acute one; it is a chronic one. Prison population has been steadily growing for a long time, since the 1980s. Second, and importantly, the problem can be traced to the catastrophic error Zimring labeled the “correctional free lunch”. As Zimring pointed out – and as most amazed audience members had not known before – the “division of labor” between county and state is not conducive to anything helpful. The county decides on the sentence, while the state (who, in the era of determinate sentencing has no control over the length of stay) picks up the cost. Therefore, sentencing does not take into account the broader correctional costs. If this was not shocking enough, the third and fourth insights have to do with the deeper causes for these horrors: they were not part of a broad conspiracy, but rather a combination of complete oversight on the part of the politicians who established determinate sentencing and the logical conclusion of direct democracy in california: citizens do not mind paying to let people rot, but they very much mind paying to make their life nicer. One important answer advocated by Zimring was to establish, as soon as possible, a coherent Penal code, which is not full of “pick and choose” voter-approved policies and special laws, and which is updated to reflect the real severity of crimes.

After these, CDCR Secretary Matthew Cate had his work cut out for him, and his reply reflected the kind of concern and thoughtfulness that one expects from someone in charge of a system in serious crisis. The overcrowding challenge, he argued, made everything in prison more difficult, and required serious prioritizing of services. He shared the big dilemmas faced by CDCR in light of the gubernatorial 400,000,000 budget cut. Cutting all programs was not an option, and curring staff was also problematic; one possible answer to the cuts was engage in parole reform. In tems of parole reform, said Cate, we need to pay attention to who we place on parole, and rather than using a general parole policy, reserve parole for serious offenders through identification of crime types (unsurprisingly, sex offenders came up) or more efficient crime indexing. We also need to consider the introduction of credits for achievement in programs on the inside as categories for release. Cate also advocated building more prison cells, particularly for the Level 4 population, as part of the plan to alleviate overcrowding and treat inmates humanely. One thing he had come to learn, said Cate, was that with the given resources – that is, reliance on state employees – capacity would never catch up with population, and community assistance was hugely important.

The audience asked some difficult questions, many of which were addressed to Secretary Cate. One such question involved the elderly and frail prisoners, and whether release policies were not better for this group than creating special wards for them. The other problem raised was that, while prisoners are generally assessed for their medical, mental, dental, and vocational needs, it is very difficult (and, as Atkins’ experience shows, rare) to actually match a prisoner with a befitting program. Another important issue, directed at Zimring, involved an attempt to gauge an “acceptable” number of prisons, which turns out to be a very difficult number to produce.

Conference Blogging Invite and Publication Options

Dear Readers,

Today and tomorrow we plan to blog about the conference panels, and we’d like to invite you to participate. If any of you has thoughts or ideas you would like to expand on in this forum, please be sure to comment on our posts; and, if you’d like to guest-post yourselves about any of the topics we will be discussing, please email me your post to aviramh at uchastings dot edu, and I’ll be delighted to post it for you. The same goes for bloggers who might be interested in cross-posting.

We expect to be covering topics covered by the different panels:

  • “big picture” thoughts on the problem
  • the medical services litigation
  • the CA sentencing structure
  • alternative adjudication
  • special populations in prison
  • dangerousness, risk, and release
  • strategies for re-entry


I should also mention that the terrific journal that is co-hosting the conference, the Hastings Race and Poverty Law Journal, will be dedicating its fall issue to articles, comments, and writings on the conference topic and by conference participants, and that includes you! The Hastings Race and Poverty Law Journal is committed to promoting and inspiring discourse in the legal community regarding issues of race, poverty, social justice, and the law. If you are interested in submitting a piece for consideration in response to this conference to the Hastings Race and Poverty Law Journal’s forthcoming issue, please contact the Submissions Editor, Raegan Joern, at hrplj.submissions@gmail.com. To learn more about the Journal, or to subscribe, please visit the Journal’s website.

See you there!

TOMORROW! California Corrections Crisis Conference

In light of the medical services litigation, and many other recent developments, our conference tomorrow can’t be more timely. With more than forty participants – academics, policymakers, activists – we are eagerly looking forward to an opportunity to discuss our crisis in an intelligent, comprehensive way, and to think together about solutions. We have hundreds of people confirmed to participate, coming from all over the country and even some from abroad. Advanced registration is closed, but we will reopen registration on the event day and let people in on an available space basis. We look forward to having you with us. 

The updated schedule for the conference, and other pertinent information, is here.

Opinion piece by the Federal Receiver

You have to give the Federal Receiver Clark Kelso credit. He’s been attacked repeatedly in the press by Governor Schwarzenegger and Attorney General Brown for spending on “gold-plated” health care, for intruding on state sovereignty, and for other failings. Kelso, to his credit, hasn’t backed down. And he has taken the fight to the press, as well.

Just today, in the Sacramento Bee (my new favorite paper), Kelso published an opinion piece, entitled “Prison health care reform can save money.” According to Kelso,the prison health care system has been racked by waste and abuse. According to Kelso, eliminating these inefficiencies (and worse) has been a central task of the receivership, and the work has started to bear fruit. As Kelso writes, “We have found ways to cut $500 million from the annual cost of prison health care by cutting waste.”

Kelso focuses on three key reforms: (1) reducing the very expensive out-of-prison referrrals; (2) developming new cost-saving programs, like a new pharmacy program, and new measures to manage health records; (3) “Implementing performance measures in the prison medical care program.”

Is 10,000 beds excessive?

Readers interested in the prison health care crisis should take a look at a fascinating article in today’s Sacramento Bee. The article offers a detailed look at work of the Federal Receiver, and it’s not entirely laudatory. For example, the article raises questions about Clark Kelso’s plans to build 10,000 long-term medical and mental health beds. That number, the article suggests, is widely out of line with what other prison systems offer on a per inmate basis. Whether you agree with the article’s conclusions or not, the piece warrants a close read.

On a related point: The Sacramento Bee deserves to be commended for its coverage of the prison health care crisis. It seems to be one of the only papers today paying any significant attention to the issue (SF Chronicle, where are you?).

What’s the Big Deal? Federal Receiver or Special Master?

As discussed in the previous post, the Governor has filed a motion asking Judge Henderson to replace the Federal Receiver, Clark Kelso, with a “Special Master.” What’s the difference? Is it really that big a deal? Well, yes it is.

Here’s a helpful and concise explanation of the difference between the two from the Legislative Analyst’s Office:

“A Receiver, such as the one appointed by the court in the Plata case, differs from special masters that have been approved in other legal cases affecting the California Department of Corrections and Rehabilitation (CDCR). A Receiver has direct executive authority, and acts in place of the Secretary of CDCR in regard to the management of the medical care system. We are aware of only a few federal court rulings involving prison systems that have involved the appointment of a receiver. They include a 1979 federal court order that made the Governor of Alabama the receiver of that state’s prison system and the 1995 federal court appointment of a receiver for the Washington DC jails. Special masters, such as the one appointed in a separate legal case known as Coleman v. Schwarzenegger involving improvements in inmate mental health care, are a more common remedy in such cases. Special masters monitor the compliance activities of other parties (in this case, CDCR). They lack, however, direct executive authority and must rely on the federal courts to order changes when they discover problems in compliance with court orders.”

The excerpt makes clear what an unusual and extraordinary remedy the appointment of a Federal Receiver represents. But of course, sometimes extraordinary problems demand extraordinary remedies…..

And in this corner….


The next round in the battle between the State and the Receiver continues tomorrow. According to Saturday’s Sacramento Bee, Judge Henderson has scheduled a hearing for Monday to consider a motion filed by Attorney General Brown and Governor Schwarzenegger against the Federal Receiver, Clark Kelso.

The motion seeks to replace the Receiver with a special master. According to the State, “the Prison Litigation Reform Act of 1996 prohibits a federal judge from appointing a receiver and mandating construction” of facilities, even to remedy a constitutional violation. The motion also asks Henderson to terminate Kelso’s plan to reform the prison medical system by building up to 10,000 new medical and psychiatric beds.

The Bee observes (rightly in my opinion) that the motion is unlikely to persuade Judge Henderson, who has “made it clear he does not feel the receiver’s work is done.” More likely, “the state’s lawyers are setting the stage for an appeal of the expected denial of their motion.”

Kelso’s office, of course, hasn’t been passive in this ongoing battle with the State. Kelso himself has asked the judge to hold the Governor (and State Controller John Chiang) in contempt of Court for refusing to provide $250 million the receiver says he needs to upgrade existing prison medical facilities. In fact, the Governor has declared, “The receiver will never get that money…Because I will not give it to him. I think the controller will not give it to him. And I don’t think the legislators will give it to him.”

Federal Receiver Clark Kelso and Secretary of CDCR Matthew Cate will both be attending the Hasting Conference on the California Correctional Crisis this Thursday and Friday.

Special Edition: Punishment Beyond Borders: California Corrections and Criminal Deportation

(image courtesy of Brian Concannon’s excellent Haiti Justice Blog)

I have just returned from a week in Jeremie, Haiti, with the Hastings to Haiti Partnership (HHP). The program is based on a collaboration between UC Hastings and the Ecole Superieure Catholique de Droit de Jeremie (ESCDROJ), a law school operating under difficult conditions and devoted to public interest. The two law schools hold a joint conference in Jeremie, in which students and faculty present topics of interest. This year, we had a chance to conduct a criminal case simulation, as well as meet with individual law students to discuss their research interests and help them out with comparative materials.

The experience was rather interesting given our California Corrections Conference coming up next week. As disturbing and problematic as our prison overcrowding issues are, the prison conditions in Haiti in general, and in Jeremie in particular, are so much worse. Our students, who visited the prison to interview inmates, as well as local activists, church figures, and professionals, tell of conditions so dire they can hardly be imagined, which seem to have worsened over the last few years. With the number of inmates per cell sometimes exceeding forty, the men have no room to sleep, and have to sleep standing up, like farm animals. This sometimes takes months, as the legal system is highly corrupted and it takes months before a given prisoner gets to see a judge for the first time. Sometimes, people are held in these dire circumstances with only very flimsy evidence against them. As we were told by the local assistant prosecutors, the Haitian civil law system is not conducive to plea bargaining, so even pleading guilty to alleviate or shorten this misery is not an option. There are good people, both in Haiti and abroad, who are working hard to change this situation, such as the Institute for Justice and Democracy in Haiti, but things at this point look very grim. While at Haiti, I gave a talk about the Stanford Prison Experiment, and some of the local students reflected on the lessons from the study as they apply to local prison conditions; if social situations create a prisoner’s master status and self image, there is no hope for rehabilitation for any of the Jérémie inmates.

One of the Haitian students I met is writing his memoir (a research project required for graduation, akin to a Master’s thesis) on the causes of crime in Haiti, and is focusing on the issue of criminal deportees from the United States. He points out that the deportees are treated horribly upon arrival, which is not conducive to rehabilitation. Michelle Karshan from Alternative Chance/Chans Alternatif, who advocates for Haitian criminal deportees, reports that they are often held in horrifying health conditions and do not receive food.

What does this have to do with our correctional system here in California? I have been thinking about two main issues. The first is the change in CDCR policies regarding criminal deportees who return to the US. As reported on the CDCR website:

In 2007, CDCR turned over approximately 12,000 paroled criminal aliens, who committed a crime in our state while here illegally, to the federal government for deportation upon completion of their state prison sentence. Of those 12,000, nearly 1,600 deported parolees illegally returned to California. California’s only recourse was to further clog our prisons by imposing short revocation terms – usually four to eight months – for a parole violation on these repeat offenders.

In the spirit of creative solutions for overcrowding, from now on, such returning deportees will not be under parole supervision in California. Instead, they will be turned over to the Federal government. This is not to say that law enforcement will not continue to track them down;

The motivation for the change in policy is, to a great extent, fiscal:

The policy is expected to reduce California’s average daily prison population by up to 1,000 inmates annually, resulting in up to $10 million savings per year from the state’s prison and parole budgets. CDCR expects to spend approximately $970.1 million in total in 2008-09 for the incarceration of undocumented persons. The state expects to receive $110.9 million in federal State Criminal Alien Assistance Program (SCAAP) funding for 2008-09.

My second reflection on the situation sprang from the proximity of our Haiti visit to the CCC conference. If inmates in developing countries are held under much worse conditions than our own, does this mean we should direct our efforts to help those people before working to improve conditions closer to home? Or is the case that, paraphrasing Rashi, “the poor people of your own town come first”?

I’ve already pondered these questions elsewhere, and Patrick O’Donnell’s excellent comment there directed me to some readings on global distributive justice. As Patric argues in his comment, quite convincingly, “[i]n fact, given the enormous global disparaties of welfare and well-being or respective points on ‘quality of life’ indices, there’s much that can be done to help out those in emerging polities and so-called developing countries even if the bulk of our efforts are focused on what’s close at hand.” In addition, I think that our hightened sensitivity to the fate of the weaker links in society will, in time, also increase our empathy to people in dire conditions across the globe.

Community Justice Center Opens Its Doors

(image courtesy SF Chronicle)

The Chronicle reports this morning that the Community Justice Center opened its doors yesterday for the very first time. The article documents the CJC’s history, including the struggles for funding that we examined here and here.

In the traditional court system, defendants are given citations and told to appear at the Hall of Justice in 45 days. But many of them are homeless or struggling with mental health or substance abuse problems, so remembering a court date several weeks later is unlikely. At the new court, people will be arrested and seen by a judge within days – and in the same neighborhood where the crime occurred.

Getting people to show up is just one of the many challenges that have plagued the court since Newsom borrowed his idea from Manhattan’s Midtown Community Court, which is credited with turning around the once-notorious Times Square.

The court, which has been replicated in cities around the world, sentences perpetrators to a mix of community service to pay back the neighborhood and social services like mental health or drug treatment to address underlying issues. The idea is to keep perpetrators from cycling in and out in jail.

I found the Chron report to be surprisingly negative. In its subheadings, the article reports that “even voters rejected court”, and somewhat ridicules the fact that the first five “clients” of the court were no-shows (a very common phenomenon at the Hall of Justice as well). I have no horse in this race, but at the risk of sounding over-protective, I wish the Chron had given this a fair chance before introducing the gloomy undertone.

At the last town hall meeting, Commissioner Albers and coordinator Tomiquia Moss were very conscious of their accountability to the community, and said they would closely monitor their progress and report to the public. Part of this includes external evaluation, and I understand that the RAND corporation will be pursuing a study of recidivism rates among CJC defendants. Program evaluation takes time; look at what the Red Hook Community Justice Center has achieved since it opened its doors in 2000. We already know that the old program doesn’t really work. I would urge Chron writers, and readers, to reserve their judgment of the new program until there is actually something to judge.

I hope the collaborative justice blog will provide us with updates on the new court’s function.