It appears there’s progress being made in budget talks between Arizona Republican legislative leaders and Gov. Katie Hobbs. But a recent court ruling could add another wrinkle into those negotiations.
That ruling ordered the state to hire a receiver to oversee healthcare provided by the Arizona Department of Corrections, Rehabilitation and Reentry. And the judge wants that person to be in place quickly, which would require funding in the new state budget.
Howard Fischer of Capitol Media Services joined The Show to talk about it.
Full conversation
HOWARD FISCHER: Good morning. Yes, we are moving somewhat slowly, but hopefully inevitably toward a budget.
MARK BRODIE: Yeah, I mean, certainly by the end of June, you’d hope there’s one. So, this is a really interesting issue, because a federal judge has issued an order that says the state has to hire somebody to oversee the prison healthcare system in the state. And that obviously costs money, and this is a time when the state doesn’t have a whole lot of extra money hanging around.
HOWARD FISCHER: Well, it isn’t even so much the cost of the receiver. Remember that the receiver would have the same powers as the director, and more to the point, be able to order the treasurer to do certain things.
You have to remember the history in this case. This case goes back 14 years. Finally in 2022, the judge said that the healthcare, mental and physical, at the prisons was "plainly, grossly inadequate" and that the state officials were acting "with deliberate indifference to a substantial risk of harm to the inmates."
Judge issued an injunction requiring the state to bring things up to constitutional standards, and now, since she said there hasn’t been progress — I mean, maybe a little here, a little there — she said very clearly: "The only thing to do is have judicial oversight of the prison system."
Now, the question is how much will it cost to bring healthcare up to standards. The governor had included about $100 million in her budget to start the process; there was nothing in the legislative budget. In fact, as legislators say, "Well, we’re just going to appeal it."
But federal judges don’t like their orders being ignored. Particularly when people are literally dying in prisons. They’re having problems with mental health, physical health. And again, this case has been going on for 14 years, and Judge Roslyn Silver is not about to sit around and say, "Well, sure, we’ll give you a little bit more time because the state is in a budget problem situation."
MARK BRODIE: Well, Howie, does — you mentioned the Republican budget that the governor vetoed did not have any money for this. Is that a realistic option here? Can the state just not spend money on this and wait to see whatever happens on appeal?
HOWARD FISCHER: Well, obviously, some of the Republican lawmakers say, "Well, we’ll just appeal it because we think the judge got it wrong." Now, remember, the state has paid millions and millions of dollars in fines over the years and promised to do better.
Now, is it possible the 9th Circuit Court will issue a stay and say, "We want more time to look at this"? Sure. But I think there are enough judges on the 9th Circuit who say, "Judge Silver has been more than patient with you guys. You know, it’s about time to do something."
Now, if the Legislature doesn’t appropriate, now we’re down to an interesting question. Can a federal judge simply order the treasury to go ahead and provide the money that the receiver says is necessary to hire enough people to do the job to ensure that inmates aren’t dying?
MARK BRODIE: Well, and that’s interesting because you mentioned that the governor’s budget did have money in this, but the governor also was not super thrilled, right, with this ruling and had kind of indicated that an appeal might also be coming?
HOWARD FISCHER: Oh, I’m sure she wants to appeal because remember, this is now her prison system. And she points out that there have been improvements, and that’s true. But again, this is a 14-year-old lawsuit, and they’re saying, "Well, what’s it going to take to do things right?"
You know, when you have people behind bars, it’s easy to say, "Well, they belong there." But there are certain constitutional rights against, whether you want to call it Eighth Amendment, cruel and unusual punishments, to say you shouldn’t — the fact that you’re sentenced to a prison should not be a death sentence. Should not mean that because of the fact that you have a toothache and nobody wants to treat you, that you end up dying, and that kind of stuff does happen.
MARK BRODIE: Yeah. So, Howie, in the universe of sort of issues that the Legislature and the governor are negotiating over, where do you get the sense that this one falls in terms of, like, is this a big issue between them? Is this something that could really hold things up, is it not?
HOWARD FISCHER: Well, I don’t know it’s a big issue between them because as you point out, I think the governor — even though she put some money in — would just as soon the issue goes away or get, get kicked down the road perhaps to what she believes will be her second term.
You know, there are so many other things that are going on. I mean, on one hand, I think the governor has finally given up on the idea that there’s going to be more revenues, that she’s going to be able to raise taxes and fees.
On the other side of the equation, I think the Republican lawmakers have given up on the idea that we’ll just simply be able to cut most state agencies by 5% across the board and everything will be fine. So, this is a piece of the puzzle. It’s a complicating piece of the puzzle because now you really have a, a three-sided negotiation here because the third side is, once the receiver is appointed, and the judge wants that receiver appointed soon, that receiver should have a role and will be telling lawmakers, "If you do not appropriate these sums of money, I’m going to go back to the judge, and then, then we’ll really start to dance."
MARK BRODIE: Well, and what’s interesting, Howie, is that it would seem it would be difficult to really have a sense of even how much money to set aside, right? Because this receiver has not yet been hired, although it sounds as though they, both sides have a human in mind to do this. But you know, the budget’s got to be done probably sooner than that receiver would know how much money it’s going to take to fix things.
HOWARD FISCHER: Oh, obviously ... that’s key. But we also know that the record is that the private company that the state has hired has not even met its obligations in terms of the number of doctors, the number of nurses, the number of psychotherapists that are needed.
Now, some of this goes back to the fact that state lawmakers decided, and previous governors decided, "We’re just going to contract out the health services." And perhaps what the receiver will say, "That hasn’t worked. I want — we’re going to hire these people, they’re going to be state employees, and you will pay them."
Now ... this is one of those constitutional crises that can occur. You know, what happens at the 9th Circuit? Hard to know. We have a totally new Supreme Court since this case started. How much latitude are they willing to give the judge to say that you are required to do basic minimum things to keep prisoners healthy and safe?
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