A dire fix for ailing prisons
By Timm Herdt
Ventura County Star
SACRAMENTO, Calif. — Moving further into largely uncharted legal territory, the man acting under a federal judge’s order to fix California’s abysmal prison healthcare system last week committed state taxpayers to spending $2.5 billion.
The money would be the first installment on a $7 billion plan to build the new healthcare facilities he believes are necessary. The plan envisions the construction of seven new, stand-alone prison healthcare facilities, one of which is being considered at the site of the Ventura Youth Correctional Facility in Camarillo.
Where the money will come from, no one knows for certain. But receiver Clark Kelso, armed with a construction plan approved by federal District Court Judge Thelton Henderson, is certain he has the authority to spend it.
The documents Kelso signed Thursday with the construction design firm URS/Bovis immediately commit the state to an obligation of about $15 million. After the firm completes a prototype design by the end of the year, Kelso intends to sign off on construction contracts committing the state to paying the rest of the $2.5 billion bill.
“These are legally binding obligations of the state of California,” Kelso said. “I wouldn’t be signing these contracts if I didn’t believe I had both the authority and the ability to pay.”
Those obligations could speed a possible showdown in Henderson’s courtroom, where Kelso has said he will seek a court order demanding that Controller John Chiang pay the bills by whatever means necessary. The confrontation could be avoided if legislators approve a plan to finance the projects through lease-revenue bonds before the first invoices come due.
Lease-revenue bonds would allow the state to borrow the money upfront and pay it back with interest over time with a portion of the money it spends annually on prisons.
The appointment of a receiver to take control of any aspect of a correctional system is rare; it has been done on a statewide basis only once before, in Alabama.
“It really is the nuclear option in prison litigation,” said John Boston, director of the Legal Aid Society’s Prisoners’ Rights Project and a national authority on prison law. “I don’t know that there’s a lot of fine learning about the limits of a receiver’s power when the situation has grown so extreme that appointment of a receiver is merited in the first place.”
The use of receivers is a long-established practice in English and American jurisprudence, where it has traditionally been employed to manage or dispose of property. The role of receivers was broadened during the civil rights era, when federal courts appointed individuals to carry out school desegregation orders in cases in which local school officials were uncooperative.
Supreme Court decisions have asserted the rights of federal judges to both fix deficiencies in prison healthcare and to use extraordinary means to ensure that deficiencies are corrected.
Ruling in a 1976 Texas case, the court held that the failure to treat a prisoner’s medical needs “may actually produce physical ‘torture or lingering death,’ the evils of most concern to the drafters of the Eighth Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency.”
Henderson ruled in a class-action lawsuit against the state Department of Corrections and Rehabilitation that California’s prison healthcare delivery was so bad, it violated the constitutional prohibition of cruel and unusual punishment. Uncontested testimony showed that, on average, one inmate in California dies every six or seven days as a result of inadequate medical treatment.
After state officials made little progress to improve the healthcare system, Henderson announced in 2005 that he would appoint a receiver to take control.
Here, too, the Supreme Court has made clear that federal judges can act aggressively if ordinary means fail. “Federal courts are not reduced to issuing injunctions against state officers and hoping for compliance,” the high court held in a 1979 case.
Donald Specter, director of the San Francisco-based Prison Law Office, which represents the plaintiffs in the healthcare lawsuit, said there should be no question about the court’s ability to do whatever it takes to bring medical care up to constitutional standards.
“The principle is certainly well established,” Specter said. “If state government is running an unconstitutional prison system and they refuse to fix it, the court can do whatever it takes.”
Few lawmakers are anxious to test Kelso’s authority to tap the state treasury without an appropriation.
“We’re not sure what the receiver can do,” said Sen. George Runner, R-Lancaster. “I don’t think the receiver is sure what he can do.”
Although a proposal to have the state issue $7 billion in revenue bonds to finance the receiver’s construction plans has twice died in the Senate for lack of Republican support, Runner said GOP senators are hopeful a deal can be worked out.
Runner is proposing legislation that would fix flaws in a prison-reform law passed last year. Those flaws have prevented the issuance of lease-revenue bonds to finance construction of new beds designed to deal with widespread overcrowding in state prisons.
Sen. Mike Machado, D-Stockton, said that Democrats in the Senate are agreeable to fixing last year’s bill, but that it must be part of a three-pronged solution that also includes passage of his measure to authorize the healthcare construction bonds and approval of budget-cutting measures that would reduce the overall prison population.
If the bond to finance the receiver’s plan is not passed, Machado said, the state general fund will be at risk - at a time when the state is without a budget and lawmakers are already struggling to close a $15 billion shortfall.
“I expressed the urgency of this measure when I brought the bill to the floor a month ago,” Machado said.
The progress of both construction plans - those envisioned by last year’s law and those laid out by Kelso - potentially could affect a fall hearing before a panel of three federal judges. That panel will decide whether to cap California’s prison population, a decision that would effectively force the early release of 20,000 inmates or more.
“When we go before them in November, we’ve got to demonstrate some progress,” Runner said. “We have some federal judges who are willing to go forward and take draconian action, and we appear to be playing a game of chicken.”
Specter, of the Prison Law Office, said he doesn’t believe the federal judges’ decision whether to cap the prison population will be swayed by whatever plans the state has in place to build new facilities in the future.
“The judges have been pretty clear,” he said. “Those beds are three to five years out in the future, and they’re concerned with the conditions now. ... My clients are having trouble seeing doctors now.”
Copyright 2008 Ventura County Star