BREAKING NEWS: the Federal Panel’s Decrowding Order Becomes Final

The bottom line, fresh out of the court:

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ORDER

Within 45 days, defendants shall provide the court with a population reduction plan that will in no more than two years reduce the population of the CDCR’s adult institutions to 137.5% of their combined design capacity. Should any of defendants’ proposed population reduction measures require the waiver of any provisions of state law, the state shall so advise the court, and shall explain why the requested waiver is permissible under 18 U.S.C. § 3626(a)(1)(B). In preparing their plan, defendants shall consult with plaintiffs, intervenors, and other relevant stakeholders, including the Coleman Special Master and the Plata Receiver. Should such consultation fail to resolve any objections to the proposed population reduction plan, plaintiffs and intervenors shall file their objections no more than 20 days after defendants file their proposed plan, and defendants shall file responses to such objections no more than 10 days thereafter. Defendants shall set forth in their proposal the effective dates of the various actions they propose to undertake and their estimate of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months. The court will consider all of the written submissions and make any necessary modifications or changes to defendants’ proposed plan before issuing a population reduction plan as an order of the court. The court may before doing so request clarification on any matters and conduct any further hearings it deems necessary. However, given that this court issued a preliminary ruling on this matter almost six months ago so as to “give the parties notice of the likely nature of [this] opinion, and [] allow them to plan accordingly,” Feb. 9, 2009 Tentative Ruling at 1, the court will look with disfavor upon any effort to postpone or delay an expeditious resolution of the terms of the population reduction plan, including the submission of a proposed plan by the state and the issuance of the order adopting the final plan. The court will not grant any stay of the proceedings prior to the issuance of the final population reduction plan, but will entertain motions to stay implementation of that plan pending the resolution of any appeal to the Supreme Court. We will retain jurisdiction over this matter to ensure compliance with the population reduction plan and to consider any subsequent modifications made necessary by changed circumstances.

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You can download the full opinion and order here, and we’ll provide an analysis in the next few days.

The big questions – how does this work with the Governor’s plan from the previous post without anyone being in contempt – remain open and will be discussed here in the days to come.

Receivership News

Volume 2(6) of the Receivership newsletter, Turnaround Lifeline, is out. Among other issues, you’ll find information on creating an electronic repository of the inmates’ medical files, as well as on containing the H1N1 flu virus (an issue we reported about here).

Although closing to visitors was considered necessary to minimize the possibility of an influenza pandemic, it came at an unfortunate time for many- the prisons were closed on the weekend of Mother’s Day… [f]ortunately for all involved, only a very small percentage of CDCR’s pending probable cases of the H1N1 “Swine Flu” virus were confirmed by the State Testing Lab and the virus was contained. Dr. Winslow attributes this success to “fast and effective action by our medical and custody staff throughout the State.” He goes on to note that the steps taken by CDCR and CPHCS during the flu outbreak “appear to have helped avoid a potentially dangerous situation.” Visitation has since resumed and the previously cancelled Mother’s Day visitation trip has been rescheduled for June 26th, but precautionary health measures have been implemented to ensure the continued containment of the H1N1 “Swine Flu” virus.

There are also interesting features on telemedicine and on the pharmacy improvements. True to the spirit of humonetarianism, telemedicine is advocated as a cost-saving measure.

Leadership Reorganization and a Hospice Program, reported on the Receiership Newsletter

The Receivership’s newsletter, Turnaround Lifeline, reports structural changes in the Receivership’s leadership structure. 

[T]he executive level structure of the California Prison Health Care Services has been reorganized.  This structure, staffed with state-employed civil servants, is designed so that CPHCS will be prepared to function as an entity within the State of California once the goal of improving prison health care services to a constitutionally acceptable and sustainable level has been met.


The newsletter contains some basic facts about the Receivership, as well as the fact that that it has recently received MCE (Medical Continuing Education) accreditation. There’s also an interesting piece about the Supportive Care Services – a hospice program at the California Men’s Colony, which, among other things, trains prisoners to offer spiritual comfort to their dying friends. It makes a fascinating read, particularly given the rising rates of aging and chronically ill inmates. It is also a good reminder that people not only live – but also die – within walls.

The Flu Arrives in CA Prison System

As reported by CDCR:

SACRAMENTO – The State Viral Lab is reporting that the inmate case at Centinela State Prison that had been categorized as 95% probable has now been confirmed. The inmate remains in Centinela Prison. His case remains mild. The infected inmate’s cellmate remains under quarantine but has not exhibited any symptoms of H1N1 Influenza. The actions taken by California Prison Health Care Services (CPHCS) and the California Department of Corrections and Rehabilitation (CDCR) appear to have stemmed the spread of the virus at Centinela Prison. No other potential cases have been reported there.

However, the receiver’s office is currently monitoring numerous other potential cases throughout the system that have been sent for testing. More detail on those cases will be available once they are deemed probable or are confirmed. Due to the new potential cases, the visiting restrictions will continue in effect until further notice.

Much has been said in the last few days about the justification for the swine flu panic that has been sweeping the world. Whether or not the panic and precautions are necessary is a topic for a different blog. It is certainly the case, however, that whatever the dimensions of the problem is, it is orders of magnitude more problematic in prisons and other total institutions than in other places, for obvious reasons.

Should this become more problematic, in terms of numbers of cases, it will be a real test of the Receivership’s ability to handle such issues in a difficult environment.

California Prison Mental Health – A Failed Delivery System

I have just received the following email from a reader, who introduces him/herself as “a concerned prison mental health clinician” and who prefers to remain anonymous. I am publishing it verbatim.

A suicidal inmate with a diagnosis of Major Depression with Psychosis is handcuffed for up to three hours before he is transferred to a crisis bed.
A correctional officer yells out “you are full of it” to an inmate who requests permission to return to his cell from the yard, because he says he feels that “people are watching him, and he is feeling paranoid.” This inmate has a diagnosis of Schizophrenia, Paranoid Type.
A correctional counselor (CC) says to an inmate diagnosed with rapid cycling bipolar disorder, “you are just a con, you were up and about yesterday, I saw you, and today you won’t come out of your cell.”
A psych tech refuses repeated requests of an inmate to see a psychiatrist, for nearly three weeks, this inmate suffered from racing, and obsessive thoughts – because this psych tech decided that the inmate was “playing.” This inmate is diagnosed with Obsessive Compulsive Disorder.
A mental health clinical supervisor says to his clinical team, that these are all criminals, and they know what to say.
A sergeant in response to an inmate yelling at the TV (because he believes that the TV is talking to him) decides to “clean out his cell” because inmates are not allowed to yell.

These are just a few examples from just one week at a California correctional facility that is supposed to be complying with the Mental Health Service Delivery System, based on the Coleman v. Schwarzenegger decisions. The current prison mental health system is one horror story after another, and here we are talking not about “general population,” but about units that are supposed to specialize in providing mental health treatment.

There are many reasons for this, but primarily it has to do with the way prisons are designed, and the custody culture, that, for the most part, does not consider mental illness to be legitimate. The misperceptions, and stigma that exists in the larger society is hugely magnified inside a prison. Further, the custody staff, and even some of the clinical administration staff do not seem to understand mental health treatment, and the course of recovery.

An example of this stigma, and lack of understanding about mental health treatment is the statement by Department of Corrections and Rehabilitation Secretary Matt Cate:
“… We don’t need a treatment room and a yoga room and a music room and a basketball court for our most seriously ill inmates — we need to get those inmates better so they can return to the general population.” From Oakland Tribune by Josh Richman, February 3, 2009

Fact is that most of those with serious mental illness are not going to return to the “general population.” Most of the tens of thousands of seriously mentally ill inmates, if in the community, would qualify for disability (SSI) and would only be expected to work part-time at the very most. They would be living in supportive housing, such as licensed board and care facilities, or supported independent living, with onsite case management. The prison general population is a very high stress environment, and many of the mentally ill inmates would decompensate, and end up being hospitalized, or in crisis within a matter of weeks, if not days.

I was heartened to read by U.S. District Judge Lawrence Karlton’s statement that he is considering placing the mental health services also under a receivership. CDCR does not have the capacity, or understanding to provide effective mental health care. Their role is custody, not mental health treatment.

With 40-50% of California inmates seriously mentally ill, we need to enter into a process of rethinking, and redesigning prison mental health treatment. A few recommendations/suggestions that I, as a prison mental health clinician, have are as follows:

1. Under a future receiver’s office create a clinical oversight body within each prison-institution, comprising of both administrative and line clinical staff (psychiatrists, clinical psychologists, and clinical social workers) that would be charged with addressing clinical/treatment issues and obstacles.

2. Recognize that with such high numbers of seriously mentally ill inmates, prisons are effectively locked mental health institutions. The custody staff must re-think their roles as security, and mental health providers. Develop a new classification of “mental health custody” that would specialize in working within mental health units. A very small number of custody staff do have this kind of specialization, and where we have such staff, the units operate smoothly, and some level of mental health services are delivered. Where we do not have this level training, and/or interest, the services are spotty at best – and that would be the case in the vast majority of cases.

3. Begin developing a separate agency outside of the CDCR that would be charged with providing mental health services. This agency would then be held accountable for standards and practices, and would relieve the CDCR from trying to implement services that are outside of its custody role and scope.

4. Mental Health services in prison should be held at the same, or higher level of standard as those delivered in the community in California. This would include confidentiality, and clear protection against abusive or stigmatizing treatment.

5. And finally, but no means least, construct new facilities designed to provide mental health care.

The above recommendations are by no means exhaustive, but we need a public open conversation, and implementation of mental health treatment at the same time. We cannot continue to wait, while the civil and constitutional rights of California prisoners are violated daily. Such stigmatizing treatment would not be tolerated in the community, and there is no reason why such abuse is being tolerated in prisons.

It is time to take mental health out of the hands of the an incompetent state body, and placed in the hands of mental health receivership who would have the necessary mental health background to implement immediate change to the delivery system.

Kelso v. Schwarzenegger: 1:0 to Kelso

Here’s an update to our continuing coverage of the medical services litigation; this round of the fight over funding the prison medical services, it seems, goes to the receivership. Yesterday, the District Court addressed the state’s refusal to pay Kelso the first $250 million dollars mandated by the court, by reinstating contempt proceedings against the Governor for declining to do so. The Chron reports:

In Wednesday’s ruling, the court said the state had acted prematurely in appealing an order Henderson issued in October to pay $250 million as the first installment of a plan by the receiver, Clark Kelso, to build new medical and mental health centers and renovate existing ones.

…

Henderson said the money was available in a bill the Legislature had approved, and scheduled a hearing in November to hold Schwarzenegger and state Controller John Chiang in contempt of court for withholding the funds. Officials who are found in contempt can be jailed, but Henderson said he planned to assess financial penalties against the state until it complied with his order.

The state won a stay from the appeals court while judges reviewed the issue. But the three-judge panel dismissed the appeal Wednesday, saying Henderson’s order would not be final until Schwarzenegger and Chiang were actually held in contempt.

The state’s arguments – that the receiver was appointed illegally and that his construction plan violates federal law – can’t be evaluated until Henderson rules, the appeals court said. The court noted that the governor had consented to the receiver’s appointment and had not objected to his construction plan until last summer, when he balked at paying for it.

Lisa Page, a spokeswoman for Schwarzenegger, said the governor would keep urging Henderson “to recognize the fiscal restraints facing California and the excesses included in the receiver’s construction plan.” She declined to say whether the governor would comply with Henderson’s order to pay $250 million.

Kelso’s lawyer, James Brosnahan, said the ruling clears the way for a trial on contempt, “something that nobody wants to do, but we’ll do it if we have to.”

As explained in the Sac Bee, this is slightly more complicated because of Tuesday’s ruling by the 9th Circuit Court, according to which the state’s argument against Judge Henderson’s order is still premature.

A three-judge circuit panel said in a 15-page opinion it does not yet have jurisdiction over the issue because Henderson’s order is not final, “but is rather an interim step.” . . .

The state had maintained Henderson’s order amounted to an injunction, which would be appealable, but the three circuit judges rebuffed that argument as well. “Although the state presents important questions, which may be matters of first impression, concerning the 11th Amendment, the PLRA, and the prison construction program as a whole, none of those challenges has been properly raised in the district court,” the panel said.

However, while the opinion was issued Wednesday, it was obviously written before Henderson’s Tuesday order rejecting the state’s motion to terminate Kelso and his construction program. In that order, Henderson did address whether he has overstepped boundaries imposed on him by the PLRA, finding he has not.

The judges pointed to Henderson’s orders creating the receivership and mandating the state’s obligation to fund efforts to bring inmate health care into line with the Constitution’s Eighth Amendment bar on cruel and unusual punishment.

Not only did the state not contest these orders, it consented to them, the judges recalled. They remarked that the state’s consent “may affect or even negate its claim of 11th Amendment immunity … and … the claim of violation of the PLRA.”

Incidentally, Schwarzenegger says he is not running for another office.

Schwarzenegger. . . explained that he has more freedom to make policy decisions (including tax increases, a break from past campaign promises) precisely because he doesn’t have to run for another office. . .

“The point was that I am not running for anything, so no one could threaten me, because I’m not running for Senate, I’m not running for Congress, I’m not running for another term as governor,” Schwarzenegger said.

The governor is termed out in January 2011, and he has never said what he will do once he leaves his Sacramento office.

Receivership Salaries

(image courtesy sacbee.com)

Another attack leveled at the medical system receivership – this time, on the receivership employees’ salaries. The Sac Bee reports:

Last year, seven of 26 staffers – including two part-timers – still were paid more than the $225,000 annual rate earned by corrections chief Matthew Cate. Eight enjoy large Department of Corrections and Rehabilitation pensions on top of their salaries.

And prison doctors and nurses dominate the state’s best-paid roster. More than 240 doctors or nurses, state employees overseen by the receiver, were paid more than the $226,359 earned by the state prison department’s medical chief.

The receiver’s request to raise salaries was granted by the court in 2006 in order to “improve quality of care, help fill vacancies, reduce cost of contractors”.

The Fresno Bee has a somewhat more forgiving take on the salary issue:

The first federal receiver earned far above what a public service mission entails — a salary and benefits package of $620,000. The current receiver, J. Clark Kelso, hired a little more than a year ago, earns $224,000 — in line with the California corrections chief’s pay of $225,000.

Now, after a year in office, Kelso has eliminated three positions and shifted most of the remaining 25 receivership positions to state pay scales. That’s the right approach and will save a few million dollars.

But beyond focusing on receivership salaries, Californians ought to keep in mind the major driver of staggering costs for prison medical care: The state imprisons too many old, feeble and chronically ill prisoners no longer considered dangerous.

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.

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?).