Receivership for Arizona's prison health care system has been a long time coming, ACLU lawyer says

A federal judge is taking control of Arizona’s prison health care system away from the state and giving it to a court-appointed receiver.

In a ruling late last week, Judge Roslyn Silver noted complaints that’ve gone back more than a decade and promises from the state to improve both physical and mental health care in its prisons.

But, she wrote: "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.”

In a statement, the Arizona Department of Corrections, Rehabilitation and Reentry says it “strongly disagrees with the ruling, as it disregards the immense progress that has been made,” and promises an appeal.

David Fathi is director of the American Civil Liberties Union's National Prison Project and one of the lawyers representing the prisoners in this case.

Full conversation

MARK BRODIE: David, good morning.

DAVID FATHI: Good morning. Thanks for having me.

BRODIE: Thanks for being here. So, I want to ask first off about sort of the timing of this, because as we mentioned, this has been going on for quite a while. What do you think it was now that led the judge to finally say enough is enough?

FATHI: Well, we have to start with the fact that, as you say, this case has been going on for 14 years. And in all of that time, the state has never been in compliance with the court's orders to provide minimally adequate health care to incarcerated people. So, after 14 years of litigation, almost three years after the court entered an injunction that the state agreed to, I think Judge Silver finally decided that more stringent measures were necessary.

BRODIE: So, what do you make of the state Department of Corrections of Rehabilitation and Reentry basically saying: "Look, we have made some progress in the last three years. We've added health care staff. We have introduced new programming," things like that. Does that, do you see that? Does that make any progress to you?

FATHI: There have been improvements, and Judge Silver acknowledges them, but people are still suffering and dying right now, today, because of grossly inadequate medical care. We're talking about a court order that the state agreed to almost three years ago — and the state admits it is nowhere close to complying with it. When people's lives are at stake, partial compliance just isn't good enough.

BRODIE: So, what do you think the receivership looks like? What actually changes when this actually goes into effect?

FATHI: Well, Judge Silver hasn't yet decided on the scope of the receiver's power. She's asked both sides to submit our positions on that question, and then she'll make a decision. But generally speaking, the receiver's job will be to administer the prison health care system so as to come into compliance with the court's orders and the Constitution — something state officials have unfortunately been unwilling or unable to do. The receiver is essentially an administrator. Judge Silver has dozens of cases. She can't spend all her time on this one case. A receiver will be someone who is focused on this one case to make sure the state does what it needs to do to finally come into compliance with the Constitution.

BRODIE: Do you have a sense of what kinds of terms you're going to be asking for?

FATHI: We're going to be asking for fairly broad powers for the receiver to be able to do what is necessary to finally bring the state into compliance. The receiver is an agent of the court. The receiver doesn't have any greater powers than the court.

But let me give you one example. There's been a persistent problem with incarcerated people being seen by outside specialists, if they need to see a cardiologist, a gastroenterologist, et cetera. There's a state law that caps how much outside specialists can be paid. And the state has acknowledged that that law is a barrier to providing adequate care. So, the receiver might be given the power to waive that law so that the specialist can be paid adequately and people can get the medically necessary health care that they need.

BRODIE: So, I mean, what would it actually take to comply with the court order and the Constitution? I mean, you're saying you're asking for fairly broad powers. It seems like it would take an awful lot to bring the state into compliance here.

FATHI: Well, the single most fundamental problem throughout the life of this case has always been inadequate health care staffing. The prison system doesn't have enough adequately qualified staff to take care of the people it incarcerates. The court has said this, the neutral court experts have said this, and the state doesn't disagree. And even today, almost three years after the court issued its injunction — which the state agreed to — the prison system's healthcare contractor hasn't even filled all the staff positions that are required under the current contract. Let alone the additional staff that the court experts have said are necessary to come into compliance. So there is a long way to go.

BRODIE: Do you have a sense of how much all of this might cost?

FATHI: Well, the cost of the receiver itself is pretty insignificant. In California, whose prison system is about four times the size of Arizona, the receivership costs about $3 million a year. And even if we assume that it costs that much in Arizona, that's less than one-fifth of 1%. of the prison system's $1.7 billion annual budget. And it's certainly much less than they're spending fighting this case in court. So, to focus on the cost of the receivership is really a red herring.

BRODIE: All right. So you mentioned California. Had things gotten better in prisons there with that system in receivership?

FATHI: Yes, the receivership of the California prison medical care has been a resounding success. Medical care has greatly improved, to the point where the receiver has now returned control of 31 out of 35 prisons back to the Department of Corrections. So, after years of dysfunction and suffering and death, the receivership has turned the system around and has given control back to the state.

BRODIE: All right, we'll have to leave it there. That is David Fathi with the ACLU's National Prison Project, the director of that project. David, thanks for your time. I appreciate it.

FATHI: My pleasure.