Could Arizona’s prison health care system be put under court control?

Arizona’s prison health care system is on the verge of being put under court control after more than two decades of litigation.

Judge Roslyn Silver has found the system “plainly, grossly inadequate.” That was three years ago. Two years ago, she filed an injunction requiring vast improvements. The state has also been held in contempt twice and been fined millions of dollars for not following orders in the case.

Now, lawyers representing inmates housed in Arizona's state prisons are asking the judge to appoint a receiver to take over the prison health care system — essentially taking over the system. But, the state is asking for more time to fix the long list of problems.

Beth Schwartzapfel is an investigative reporter covering the criminal justice system with The Marshall Project. She joined The Show to get a sense of the big picture, and how prison health care works — and doesn’t — around the country.

Robin Lubbock/WBUR

Full conversation

BETH SCHWARTZAPFEL: Pretty much every metric you can think of is deficient, the people who are suing the state have said. So there's inadequate mental health care, there's unnecessary suicides, there's deaths from preventable causes because there aren't enough doctors, there aren't enough specialists, the referrals to specialists don't happen quickly enough.

Pretty much all the pieces that are necessary to have a functioning health care system The people suing the state say none of them are working.

GILGER: Wow. So this lawsuit is against the state, but Arizona prisons contract out their health care operations, right? 

SCHWARTZAPFEL: That's right. In 2011, the Arizona state Legislature told the Department of Corrections that they had to privatize their health care. And they, they privatized it in 2012. And they said, you know, they told the Arizona Republic in 2012 that it was to save money.

And since then, they've cycled through a number of private health care providers. There was Horizon, then there was Wexford, now there's NavCare. But pretty much no matter who's providing the care, we see the same problems cropping up again and again and again.

And in this case, the judge has fined the state millions of dollars because of the failings of these health care providers, but nothing seems to change.

GILGER: Right, and it's been going on for so long at this point. There have been court orders. The state has been held in contempt more than once. I mean, is there anything else that the court can do? 

SCHWARTZAPHEL: Well, yeah, it's interesting that you phrase it like that, right? Because, yes, there is one other thing the court can do, and that's to appoint a receiver, and it looks like they may well be on the verge of doing that.

You know, the courts are inherently a sort of conservative institution, right? That's a little “c” conservative. They don't like to meddle in the workings of government. You know, that's not their role. That's not how the courts see themselves. So it takes an extraordinary mess for the court to say, I'm gonna reach in from the bench and tell you how to run your agency.

GILGER: Right.

SCHWARTZAPHEL: More often what they do is things like you mentioned, they'll levy fines, they'll hold them in contempt. So in a way, they haven't gotten away with it, right? The court has said, you're not following my orders. But their ability to fix that, to force them to follow orders, is limited to a fairly small toolbox, and none of those tools have worked so far.

And that's kind of like the point that the plaintiffs are making, that the prisoner's attorneys are making in their latest filing, which is to say, none of that has worked. Your Honor, you've used all the tools at your disposal. You've held them in contempt. You fined the millions of dollars. Nothing has changed. The only thing left to do is appoint a receiver, which is essentially the judge naming a proxy, a person who's going to be her stand-in but who's an expert in correctional health care and essentially do what needs to be done to bring the department into compliance.

GILGER: Put this into national context for us, Beth, because I know you cover criminal justice cases like this around the country. 

Have other states been in this position? Have we seen their prison health care systems put under court oversight? 

SCHWARTZAPHEL: So a receiver is incredibly rare. You could count on fewer than two hands how many times it's ever happened. And that's for all the reasons we were talking about before, that judges are incredibly reluctant to tell state agencies how to run their shop. That just feels, to most judges, sort of out of their lane.

But in a very small handful of cases, the situation has gotten so dire. And the judge has given the government agencies so many chances to fix the problem, and they haven't fixed it, that they have stepped in to appoint a receiver.

So the most famous example of that is in California. There was a landmark lawsuit called Plata, where the judge found in a sweeping decision that essentially the entirety of the California Department of Corrections was more or less dysfunctional. And the health care system in particular was in shambles. And they appointed a receiver to run that.

And I will say it's been decades. So it was 2006 when a judge appointed a receiver to run California's health care system. And if you can believe it, the receiver is still in charge of parts of California's health care.

GILGER: These cases take so long to play out. We have some experience with this in Arizona, in Maricopa County, with the Maricopa County Sheriff's Office. This wasn't about prison health care, but it was about how the jails are run. And there's still, a decade later, court oversight there because of a decision in that case. And there's been lots of complaints about that, about cost, about how long it takes, about how effective it is. 

Has it worked in other places where we've seen a receiver put over a prison health care system?

SCHWARTZAPHEL: Well, when I've asked the attorneys who brought the case in California, what the outcome of the receivership has been, their answer is usually that, you know, the health care is worlds better than it used to be. It's, it's not, it's not Cadillac care, but it's adequate and it didn't used to be.

And that's really all anybody's asking for in these cases. Nobody's asking for like private insurance level kind of health care, but they're just asking for it to be adequate. And, um, and in California, California, what I'm hearing is that that is, in fact, what the receiver has done.

GILGER: Let me ask you lastly about the use of private contractors to provide prison health care. As you pointed out, this was, in fact, a state law in Arizona for some time. This is not the case in every state in the country. Some use a mixed model, some use a public system. Is there any evidence, Beth, as to what's more effective? 

SCHWARTZAPHEL: Well, I guess that depends on what you mean by effective. The problem with these private health care contracts is it's a little bit fuzzy who the customer is, right? It's the state who hires them, and it's the state who has the ability to end their contract or cancel or not renew their contract. And so the company feels beholden to the state and the state's priority is to save money. And so that often leads to a lot of these problems, you know?

I mean, imagine when you use health care, you know, presumably you have health insurance or you have Medicaid, whoever it is, your health insurance company, Medicaid, they negotiate rates for all kinds of things, right? Like your doctor charges a certain amount for a procedure, Medicaid or your health insurance negotiates a lower price for the procedure, because they're buying in bulk, because they have so many people that are getting this procedure, they get a discount essentially.

But imagine going through your entire life, getting all the health care you need and just paying for it in cash out of pocket. Every checkup, every x-ray, every blood draw, they just send you the bill and it's not a negotiated rate. That's the situation in prisons.

Prisons are on the hook for every single health care expenditure. They don't have help from Medicaid. They don't have help from any insurance companies. The state just pays 100% out of pocket. So I'll just say, you know, I'm not defending the state for their lack of care, but the setup is really impossible.

You're asking the state to pay 100% out of pocket for every medical need that every person in their custody has. And you know, we're talking about many, many people. There's many people aging in prison. So what these companies say is we can bring your costs down. And you can see why that's attractive, right? Because the state, it's busting their budget to make sure that every single person has everything they need.

But when that is their promise, when that is the premise, we can save you money, then what you and I usually think of as the point of health care, which is to provide good health care and to make sure you're as healthy as you can be, that just sort of becomes secondary.