A sign left on the ground outside the Arizona Capitol building on November 12, 2021. The sign was carried by an attendee o...

Arizona’s privatized prison health care has been failing for years. A new court case could change that

When Timothy Pena was moved from a federal prison to a state prison in Arizona, he said the first thing the state prison authorities tried to do was take him off his HIV medication.

After explaining to the medical staff that the federal prison provided him Genvoya, which was prescribed by his doctor, they switched Pena to a different drug that he said made him suicidal.

“I spent the first four months in the Department of Correction trying to kill myself,” he told the PBS NewsHour.

Pena is far from the only person incarcerated in an Arizona prison to have allegedly experienced medical neglect – neglect that was supposed to be a thing of the past after a 2015 court settlement from a 2012 federal class action lawsuit that asserted the Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) had been providing inadequate medical and mental care in their facilities.

Timothy Pena, a veteran and formerly incarcerated person, speaking at a vigil outside the Arizona Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

Timothy Pena, a veteran and formerly incarcerated person, speaking at a vigil outside the Arizona Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

Inmates suffered from disease that went undiagnosed, and in some cases were left untreated even after being discovered. Medical care, prescription drugs and treatments were denied to prisoners with chronic conditions. And prison medical facilities were found to be chronically understaffed and under-resourced, according to expert reports filed during that trial.

But in late 2021, after six years and few signs of improvement, a new trial around the same reports of poor medical care was opened between the ADCRR and prisoners represented by the ACLU, Prison Law Office, Perkins Coie law firm and Arizona Center for Disability Law.

The new proceeding began in November 2021 after Judge Rosalyn O. Silver tossed the terms of the 2015 settlement and ordered a new trial. Silver stated that the prison authorities had “proffered erroneous and unreliable excuses for non-performance, asserted baseless legal arguments and in essence resisted complying with the obligations they contractually knowingly and voluntarily assumed.”

Silver is expected to make a ruling this year after the two parties concluded their arguments in December. Deputy director of the ACLU National Prison Project Corene Kendrick believes the structure of this case and its eventual conclusion could set a precedent for how other states are held accountable for the medical treatment of those incarcerated.

A history of mistreatment

The original federal class action lawsuit was filed in 2012, just a few months before Arizona fully transitioned from a government-run prison medical system to a privatized medical system in an attempt to mitigate logistical and monetary strain on the state.

According to data from Pew Charitable Trusts in 2015, at least 20 states, including Arizona, had made this transition to a contracted model from a direct model, where corrections department clinicians, who are employees of the state, primarily provided the care.

This slow, nationwide transition to privatizing prison health care began in 1976 after the Supreme Court found that inadequate care was a violation of the 8th Amendment, pushing prisons to invest more resources toward incarcerated care.

Since 2012, Arizona has contracted three prison health care providers: Wexford Health, Corizon and Centurion. While reports of dangerously inadequate care began before 2012, those incarcerated in ADCRR facilities and expert witnesses brought in for the original trial have reported equal, if not worse, conditions throughout multiple periods when all three companies were in charge.

The 2012 lawsuit continued for several more years before the parties settled in 2015 under the terms that the prison system would meet more than 100 benchmarks for adequate care in order to stay compliant with the court.

Over the next few years, however, the ADCRR showed few improvements within their facilities, according to reports by the ACLU and confirmed by the court. In 2018, Judge David Duncan, who oversaw the original trial, found the agency in civil contempt of court, which ADCRR fought in the Ninth Circuit, but the decision was ultimately upheld.

After Silver took over the case from the previous judge, she also decided to hold the ADCRR in contempt of court for a second time in 2019. Kendrick said it’s notable that the ADCRR has been held in contempt not just once, but twice.

“Judges very rarely find people in contempt of court,” said Kendrick. “That’s pretty extreme.”

Silver’s order to reopen the case in July of 2021 was scathing and critical of what it called ADCRR’s lack of improvement, “persistent resistance” and “non-performance”.

The new trial began on Nov. 1, 2021. The side defending those incarcerated took the opportunity to reevaluate conditions in the prisons and offer new evidence of inadequate care. The ADCRR also argued their case before Judge Silver.

‘Inmates are just cattle’

Prior to the trial, the ADCRR attributed some of the recent issues in their system to the COVID-19 pandemic. In her decision to reopen the case, Judge Silver acknowledged this, but stated that “COVID-19 cannot be used as a complete shield against noncompliance” and firmly maintained that they were still required to uphold the specified quality of care.

But while COVID does raise challenges for a system, it makes it all the more urgent to ensure basic, adequate health care is present as a baseline in order to also handle the new threat, says Yale Law School Prof. Judith Resnik.

In any case, the issues being brought up by plaintiffs span a much longer time beyond the onset of the pandemic, suggesting deeper issues at play.

“It should be understood to be extraordinary for the defendants to not be doing what the law requires them to do … which is to keep people safe,” Resnik said.

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The main culprit, according to Kendrick and others, as the source of the issues is the privatization of medical care in these facilities and the way it has been implemented.

“With privatization, it just creates this extra layer of bureaucracy and unaccountability,” she said.

Dr. Todd Wilcox, who has worked as a jail physician for 27 years, has been an expert for the plaintiffs on the Arizona trial since 2013 and was brought in again to make a 2021 report on conditions. One case Wilcox describes is that of a 69-year-old man whose lung cancer went undetected for years while in the system. After several red flags that should have been caught, and an eventual imaging that found the cancer, the prison staff apparently failed to act on it, according to the report. Even as the inmate’s health was deteriorating, the report suggests staff failed to provide pain management.

“He died a horrific and painful death as a result,” Wilcox wrote.

Dr. Pablo Stewart, a psychiatrist, has also been one of the key experts in this case since it began. In his recent testimony from 2021, he highlighted a serious staffing issue within the complexes. In the Eyman prison located outside of Phoenix, for example, the contract with Centurion specifies a total of three full time psychologists be present in the prison. Stewart observed that, in a four-month period over the summer of 2021, the prison only had one psychologist on staff.

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“If you only have a third of the people that you’re supposed to have, then I don’t see how you can even begin to provide standard of care,” he said on Nov. 3 during a direct examination found on transcripts provided to PBS NewsHour by the ACLU.

Wilcox also cited a “longstanding failure” to provide enough clinical staff to care for the prison populations he has observed.

Michele Deitch, a prison policy lecturer at the University of Texas, and others believe there may be an incentive to keep staffing and care at or below minimum.

“There are questions about whether private health care [is] capable of providing appropriate services, given that the profit motive is going to interfere with the provision of care,” said Deitch. “They have a built-in incentive to limit the treatment that’s provided.”

Kendrick explained that Arizona pays their medical contractors a flat rate to service the prisons, which comes out to $16.60 per inmate, per day. She said this creates a “perverse incentive” to spend as little time and money as possible in order to gain anything leftover as profit.

“That model is flawed,” said John Fabricius, the director of Arizonans for Transparency and Accountability in Corrections (ATAC), who has also served time between 2003 and 2018 in the Arizona prison system. “It rewards the private contractor for not providing medical care.”

John Fabricius observing a vigil outside the Arizona Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

John Fabricius observing a vigil outside the Arizona Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

Pena, who says that he was provided incorrect medication for his HIV, now runs a veteran justice advocacy program. He said he has heard many similar stories as those recorded in the expert testimonies and believes prison can delay or even reverse progress people make to improve themselves before entering a facility. For that reason, he speaks on behalf of veterans currently in, or facing, incarceration, pushing for alternative solutions to imprisonment.

In the prison system, “it’s all about money. They’re driven by shareholders. They’re driven by the stock market. And all the inmates are just cattle,” Pena said.

When contacted by PBS NewsHour, ADCRR declined to comment on the case. The Newshour also reached out to Centurion, the current health care provider for Arizona prisons, who requested a list of questions, but did not respond after receiving them.

‘Tip of the iceberg’

The case against the ADCRR is not the only legal action against a prison system, but it is exceptional because it covers an entire state prison system where officials have not implemented changes that were ordered in the previous settlement, according to Betsy Ginsberg, a professor at the Cardozo School of Law.

“It’s a huge case and it covers an entire system. And it’s a system that has resisted reform of its medical practices for so many years,” Ginsburg said.

Ginsberg believes that the Arizona case could be “the tip of the iceberg” when it comes to health care issues in prisons across the country.

“I don’t think Arizona is so unusual,” she said. “I have never encountered a system that I thought did a good job.”

In fact, over the last two decades, many other cases across the country unfolded, or are underway, and center on prison conditions.

Observers light candles at a vigil held outside Arizona’s Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

Observers light candles at a vigil held outside Arizona’s Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

In 2005, the California prison system was similarly found to be providing inadequate mental care and health care to those incarcerated in their facilities, primarily due to overcrowding. The judge in that case ordered a receiver be placed within the agency – someone who directly reports to the court in order to closely monitor health care improvements made by the state’s prison system and its contractors in order to be in compliance with the necessary standards. In 2020, Alabama’s corrections agency was also placed under scrutiny for offering inadequate mental health care. A witness who testified in that case, formerly incarcerated in the state, committed suicide two weeks after his testimony in 2016.

Most recently, Rikers Island prison in New York has drawn attention for inadequate staffing and massive overcrowding in the middle of the pandemic, creating neglectful and chaotic conditions within the system. In 2021 alone, there were 15 deaths reported within the facility, according to the New York Times.

In the ongoing Arizona case, Kendrick believes Judge Silver’s ultimate decision could potentially set a precedent in future cases, adding to an existing volume of trials from the last couple decades scrutinizing the way prisons care for the incarcerated.

“I can’t say what will or won’t happen,” Ginsburg said. “But one would hope that people who are running prison system[s], people who are in charge [of] administering medical care and mental health treatment, would take note.”

Problems continue to persist

When Alexandria Garcia, 29, went to Arizona’s Perryville women’s prison in 2014, she was taking medication for rheumatoid arthritis, a condition that can cause long-term damage if not adequately treated. She told the NewsHour that the medical staff in the prison couldn’t find the paperwork for her diagnosis and denied her treatment for months.

“They kept telling me things like I was too young to have rheumatoid arthritis and that I must have had a misdiagnosis,” she said. It was only after being able to see a physician outside of the prison system that she received the correct diagnosis and treatment.

The details shared over the course of the Arizona trial, as well as numerous personal stories from formerly incarcerated people like Garcia, who was not part of the trial, spotlight cases of inadequate medical care, which appear rampant, leading to delayed treatment at best, and painful deaths at worst.

Alexandria Garcia shares her experience about serving time in Perryville women’s prison during a candlelight vigil for those who have died in Arizona prisons during 2021. The event was held outside Arizona’s Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

Alexandria Garcia shares her experience about serving time in Perryville women’s prison during a candlelight vigil for those who have died in Arizona prisons during 2021. The event was held outside Arizona’s Capitol building on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

As a part of the new case, Wilcox recently wrote and submitted as evidence that “the problems I have found previously persist to this day.”

His documented testimony describes several issues, including nurses working outside the scope of their license and a failure to address serious symptoms for inmates in a timely manner.

“Too often, nurses simply send patients back to their housing unit and tell them to submit another written sick call request if symptoms worsen,” Wilcox wrote.

He observed that nurses often become the “final decision maker” when assessing whether patients should receive further care.

Alongside inadequate medical care, mental health care problems were also prevalent, according to formerly incarcerated people and expert testimony shared during the trial.

In his report after touring the facility, Stewart, the psychiatrist who has been one of the key experts in the original case, wrote that, “My most recent observations … confirms that the systemic deficiencies that I have repeatedly brought to the court’s attention since 2013 unfortunately persist to this day.”

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His report goes on to cite numerous examples of inadequate care in Arizona facilities. In one anecdote from the Eyman complex in Florence, Arizona, Stewart spoke with a person who had experienced auditory hallucinations that made him want to “curl up in a ball and scream.” He filed a Health Needs Request, but did not see a medical staff person until ten days later.

Stewart’s report cited multiple incidents where an incarcerated person committed or attempted suicide. A consistent contributing cause that the inmates cited was a “delay in access to care,” as well as a limited level of interaction with medical staff when care was provided.

“It is simply not possible to assess a patient and determine their risk of self harm or suicide in an encounter lasting five, three, or two minutes,” Stewart wrote.

Dr. Joseph Penn, a correctional psychiatrist from Texas, spoke during the hearing in favor of ADCRR prison conditions after also taking a tour of the facilities.

“So my opinion of the totality would be that there is adequate access to care … whether it be suicide risk assessment, mental health evaluations, suicide precautions, psychiatric evaluations [or] psychotropic medication treatment,” Penn said, according to transcripts of testimony provided by the ACLU. ADCRR was contacted to confirm the transcript, but they declined to do so.

Despite this assessment, most of the mental health experts who testified in the trial observed, or admitted to, administrative problems and practices that potentially exacerbated existing psychological issues among the inmates.

Consequences

The body of evidence collected by the experts and those formerly incarcerated suggest years of inadequate care, with single individuals often bearing a network of comorbidities stemming from that failure.

These reported levels of inadequate or severely delayed care, both medical and mental, can often carry long-term consequences beyond the walls of the prison facilities.

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“They’ve got medical conditions that are worsening to the point where they cannot be cured from their illnesses anymore,” Deitch said about the numerous people incarcerated in Arizona prisons.

Fabricius, the director of ATAC, who also served time in the Arizona prison system, said he experienced some residual mental health issues after leaving the system in 2018. He explained that he used that trauma as motivation to fix the system– something not everyone is able to do.

“I saw people come into the Department of Corrections who had never used drugs and walk out with a full on drug habit,” he said.

Resnik pointed out that, while it’s often easy to separate incarcerated people into a subgroup, they’re still citizens of Arizona, most of which will go on to rejoin the community after leaving prison. Putting incarcerated people, some of whom were imprisoned for minor offenses, in a position where they “leave more ill” than when they came in is “tragic,” Resnik said.

‘Disingenuous and disconnected’

Several witnesses were brought into the trial by ADCRR to speak on their behalf, in addition to Texas psychiatrist Dr. Joseph Penn. In transcripts provided by the ACLU, Dr. Bobbie Pennington-Stallcup, the mental health program director for the ADCRR since August of 2020, said she oversaw the creation of treatment plans for incarcerated individuals with a history of self harm. She also said correctional officers are given suicide prevention training and that staff in mental health units receive additional care.

David Shinn, the director of ADCRR, also spoke during the trial. He testified on Nov. 16 that corrections is a “challenging business” and spoke positively of the work conducted by Centurion in recent years, especially during the COVID-19 pandemic.

WATCH: America’s prison population is aging, but care options for older parolees remain limited

Overall, he said the systemic improvements implemented over time have given those incarcerated equal, if not better care to people outside of prison.

“They often have greater access to care than I do as a private citizen,” he said, in the transcripts.

THE ADCRR declined to comment on this testimony for PBS NewsHour.

Fabricius said that response is “completely disingenuous and disconnected” from what’s actually happening inside the prisons.

“Out here, you can always walk into an emergency room,” he said. “But that’s not something that’s available to [incarcerated people].”

“It makes you angry, it makes you distrust authority, it makes you anxious,” he said. “It’s a constant cycle of angst and worry and helplessness.”

A sign outside Arizona’s Capitol building for a vigil on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

A sign outside Arizona’s Capitol building for a vigil on November 17, 2021. Photo by Chloe Jones/PBS NewsHour

‘Change the narrative’

Kendrick believes the rapid movement of this case could carry over into other similar civil cases, but changes in state justice systems tend to come slowly.

“One would hope that this bucks up the courage of other judges across the country who are overseeing these sorts of huge, long lasting civil rights cases that involve big government agencies,” she said.

Ginsburg, however, worries that the years of seemingly obstinate behavior from the ADCRR is a sign of entrenched beliefs about how prisons should be run, and that such beliefs may carry into other states.

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“There’s some concern that, in some of these circumstances, there’s not a logical response from the prison systems,” she said.

This year, as Silver continues reviewing the case, Arizona’s Republican Gov. Doug Ducey released a budget proposal requesting over $1.5 billion for the ADCRR. That number doesn’t factor in an estimate for prison health care costs due to the ongoing trial. If approved, it would be the highest budget for ADCRR to date.

No matter the outcome of the trial, Fabricius believes the road to permanent change requires legislative intervention and a dramatic shift in the way society treats its incarcerated citizens.

Fabricius’s organization is working with members of the Arizona legislature in order to pass a bill that would create an ombudsman to oversee ADCRR facilities for the legislature. He hopes such legislation would be more resilient than those Silver could impose.

“We need to change the narrative … inside of our correctional facilities where we decided that we need to treat people poorly because they behaved poorly,” he said.

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