Arizona prison health care takeover comes after 14-year lawsuit

Saying she's run out of patience with inmates suffering and dying unnecessarily, a federal judge late Thursday wrested control of the state prison health care system from the Department of Corrections, Rehabilitation and Reentry.

And Arizona taxpayers are going to pick up the yet-to-be-determined tab.

In an 83-page order, Judge Roslyn Silver detailed complaints that go back 14 years about inadequate physical and mental health care at the 10 prison complexes across the state. That included a history of agreements to do better, injunctions, and even multi-million dollar fines.

"But now after nearly 14 years of litigation with defendants having not gained compliance, or even a semblance of compliance with the injunction and the Constitution, this approach has not only failed completely but, if continued, would be nothing short of judicial indulgence of deeply entrenched unconstitutional conduct,'' the judge wrote.

"Plainly, only the imposition of the extraordinary can bring an end to this litigation and the reasons it was brought,'' Silver continued. "An end to unconstitutional preventable suicides. An end to unconstitutional preventable deaths. An end to unconstitutional failures to treat those in severe pain.''

In a prepared statement, the corrections department acknowledged failure to fully comply with reforms.

Yet the department strongly disagrees with Silver’s decision, arguing that the order disregards progress already made.

Arizona taxpayers will pay the cost if her order stands.

Full Arizona Department of Corrections, Rehabilitation and Reentry statement

The U.S District Court yesterday ordered the appointment of a receiver to oversee all health care services in the 9 state prisons run by the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR). 

The Department strongly disagrees with the Court’s decision, as it disregards the immense progress that has been made. We will aggressively pursue an appeal of this order.

Over the past three years, ADCRR has made significant, measurable improvements in health care delivery and infrastructure across Arizona’s prison complexes.  We now have approximately 1,340 full-time equivalent health care staff, compared to 841 at the time of the Court’s 2022 order. This has included additional doctors, nurse practitioners, physicians’ assistants, mental health staff, and other health care staff.  In total, the state has invested $1.3 billion in health care services for prison health care over the past 3 years.  

New mental health programming has been introduced, along with expanded inpatient and special needs beds and a modernized model of in-patient care led by primary care providers. Specialized programs now address drug and alcohol use and hepatitis C treatment. 

While acknowledging that full compliance with the Court’s injunction has not yet been achieved, ADCRR remains committed to demonstrating continuous improvement. The Department believes that ongoing reform and oversight from within the state’s correctional system offers the most effective path forward.

Under the Court’s receivership order, the State of Arizona (and hardworking Arizona taxpayers) will be responsible for paying all costs of the Court-appointed receiver, including any new requirements the receiver may impose on the Department. Plaintiffs have previously advised the Court that the Court-appointed receiver in California’s prisons costs the state approximately $3 million annually, in addition to the cost of requirements imposed by the receiver, but provided no estimate for the cost to Arizona. California’s receiver has been in place for twenty years, and Arizona’s receiver would likewise have no specified end date. 

Department Director Ryan Thornell commented that “if this decision stands, an exorbitantly expensive, unnecessary receiver risks disrupting the significant progress we have made in our prisons, all with no time clock on its authority. We will be promptly appealing the decision while continuing our work to comply with the Court’s orders and running a secure, safe, and accountable prison system.” 

ADCRR will continue to keep the public informed as the state reviews the Court’s decision and next steps.

David Fathi is the director of the ACLU National Prison Project in Washington, D.C. He’s one of the attorneys representing the prisoners. He says a receivership is a last resort.

“So it's a tool that courts use when a system is profoundly broken and all other solutions have failed,” he said.

Fathi says the state is constitutionally required to provide health care.

“The receiver's job is to manage the prison health care operation. So as to come into compliance with the court's orders and, of course, with the requirements of the Constitution," Fathi said.

The corrections department says it has transformed the prison health care system over the last two years by expanding access to treatment and increasing staff.

“This case was filed in 2012. Our clients have been waiting 14 years for minimally adequate health care. Tragically, many have not survived to see this day, but many others will benefit,” explained Fathi.

The state and attorneys representing the prisoners must now submit a list of candidates for the receivership role.

'Dragged their feet, delayed'

The order comes over objections from attorneys for the state prison system. They argued that they should remain in control of health care and that bringing in someone from outside, as she now will do, would just slow things up.

Silver dismissed that claim.

"Even since the issuance of the injunction, defendants have failed for more than two years to implement relatively simple solutions,'' she said. "Here, given more than 11 years of delays and the same arguments and non-compliance, the court finds that appointing a receiver that is willing to implement the recommendations of the neutral experts would be relatively quick and efficient.''

And the judge made it clear that she believes the people running the system are not only not interested in making fixes to bring care into compliance with constitutional requirements, but they are incapable of doing so.

"Defendants have consistently dragged their feet, delayed, exploited ambiguity, and fought compliance at every turn, making continued insistence on compliance ineffective,'' Silver wrote. "Defendants lack the leadership capacity to complete the necessary systemic changes to achieve compliance.''

In a prepared response, Gov. Katie Hobbs put at least some of the blame on her predecessors.

“I inherited a prison system plagued by a decade of neglect and mismanagement,'' she said, something not disputed by the judge who previously imposed $2.5 million in fines on the agency when it was run by Gov. Doug Ducey.

But Hobbs insisted that under Ryan Thornell, her hand-picked choice to head the agency, there have been "meaningful reforms'' and there is "drastically improved healthcare outcomes and increased staffing.''

Silver, however, doesn't share in that assessment.

"Here, the long history of this case has made evident that ADCRR's healthcare is deeply, systemically flawed,'' Silver said in Thursday's ruling. "New leadership already in place for two years has failed to make headway in rooting out systemic issues or offered any concrete plan for achieving compliance.''

From oversight to takeover

Corene Kendrick is an attorney and deputy director of the American Civil Liberties Union's National Prison Project, which brought the lawsuit. She told Capitol Media Services she wasn't surprised that Silver took the rare step of appointing a receiver to run the state prison's healthcare system. She said evidence of inadequate care presented by court-appointed monitors was "staggering and overwhelming.''

"Here, the facts just make it so absolutely clear that the non-compliance is not anecdotal or just one-off incident, but that the systemic rot goes to the core of the healthcare system in Arizona,'' Kendrick said.

The judge acknowledged that appointing a receiver who will be in charge of ensuring inmates get the mental and physical care to which they are constitutionally entitled is an unusual remedy.

But she said that, after years of litigation, including court-appointed monitors, things really haven't gotten better. And rather than working with the monitors, she said the state and prison officials "have engaged in unproductive and distracting litigation tactics.''

She also dismissed claims that a court-appointed receiver will waste money.

"There will be costs for improvements to the healthcare system,'' Silver said. "But the entire point of almost 14 years of litigation and the remedy for many years of constitutional violations is to improve the healthcare system. As such, defendants cannot use the cost of improvements already required under the injunctions to oppose appointment of a receiver on the grounds of expense.''

The judge ordered lawyers for the state and prisoners to confer and, within 30 days, propose the duties, powers, and authority of a receiver, presenting her with five potential appointees within 60 days.

Kendrick said whoever is put in charge will have broad authority, including ordering the state to spend more money than it wants to care for prisoners.

A decade of compliance issues

The 2012 lawsuit by the ACLU, the Prison Law Office and other prisoner rights groups alleged grossly inadequate care that harmed or even killed inmates.

The state agreed to a settlement in 2014. But federal judges overseeing the case ruled repeatedly in the following years that mental and physical healthcare provided to prisoners failed to live up to basic constitutional standards. They twice found the state in contempt and issued multi-million dollar fines.

In 2021, Silver threw out that settlement because of the ADCCR's "pervasive material breaches'' of the agreement. And during a 15-day trial before Silver in late 2021, attorneys for prisoners presented evidence of repeated and horrific consequences inmates suffered due to poor or inadequate healthcare.

Silver agreed. In a sweeping 200-page ruling in 2022, the judge said care provided by the state at prison is "plainly grossly inadequate'' and state officials are acting "with deliberate indifference'' to the substantial risk of harm to inmates. She laid out facts she said shows that not only were top prison officials aware of conditions that resulted in serious, unnecessary physical injury and death to inmates but that they actively ignored the problems.

All of that, the judge said, was verified by court-appointed monitors. Since then, the state has increased spending on healthcare and boosted staffing.

When the injunction was issued, it was spending about $300 million a year on healthcare and had about 1,100 providers under contract. The most recent corrections department report from last month shows about $400 million in yearly spending and more than 1,600 providers under contract.

However, only 1,365, or 84%, of those positions were filled. And at the time of last September's hearing, the state had been without a state medical director for a year.

Sophie Hart, an attorney for the Prison Law Office, told Silver during a hearing last September that it was clear the state lacked the capacity or the will to fix the system and the time had come for Silver to appoint a receiver to do the job.

"We are asking this court to appoint a receiver because after more than a decade of litigation, people incarcerated in the Arizona state prisons remain at unreasonable risk of harm, including death, due to a fundamental lack of medical and mental health care,'' she told Silver. "The monitor’s recent report is devastating -- it details the many system-level failures that continue to cause harm on a daily basis to our clients.''