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.