Pulling the Plug on Privatized Prison Health Care

By Joanna Jandali.

[TW: this blog post contains graphic descriptions and content related to suicide.]

“Notice of Impending Death.” This was the title of a handwritten message sent to a federal district court judge on August 29, 2017. The author, Walter Jordon, was a 67-year-old inmate in an Arizona prison suffering from cancer. In his message, Jordon warned the judge that he would “be luckey [sic] to be alive for 30 days,” all because the Arizona Department of Corrections (ADC) and Corizon Health, the state’s for-profit prison health care contractor at the time, had delayed treating Jordon’s treatable cancer.

And Jordon couldn’t have been more accurate. Nine days after his impending death notice was delivered, Jordon died. His invasive skin cancer ate through his skull and invaded his brain. Horrifyingly, Jordon’s untimely and inhumane death is not an anomaly in Arizona state prisons. For the last decade, Arizona prisons have been inundated by reports of inadequate and delayed health care leading to untreated physical and mental illnesses and, most egregiously, death.

However, after years of state officials failing to provide adequate health care in ten state prisons, the 27,000 plus inmates who wholly depend on the state for their health care are finally receiving their day in court.

A plaintiff-class of incarcerated individuals from across Arizona are currently facing off against prison officials in a groundbreaking federal district court case, poised to define the landscape of the state-prison health care system for decades to come.

Background: Arizona’s Attempt to Cut Costs Created a Health Care Crisis

In 2013, the Arizona Department of Corrections began contracting with Corizon Health, a private correctional health care company serving more than 220 facilities in 17 states, to provide health care at Arizona’s ten state prisons. The state’s goal was to “save money in tough economic times” by outsourcing its prison health care provision to a for-profit company.

Like most other states that have privatized their prison health care, Arizona agreed to pay its private contractor a set amount per incarcerated individual per day. This financing scheme, however, creates a perverse incentive for the private contractor: if the company decreases the cost of its health care and treatment, it can pocket the difference.

Unfortunately, this danger has been realized here in Arizona. Incarcerated individuals across the state have raised claims of inadequate medical, dental, and mental health care, inadequate physical exercise, inadequate nutrition, and degrading conditions of extreme social isolation and environmental deprivation. And the horror stories abound: one inmate bled to death after being prescribed the wrong medication; another died after his swollen legs split open, the wounds leaking pus and swarmed by flies; and in the spring of 2017, four individuals committed suicide within a three-week period after being denied access to regular mental health care.

A Futile Settlement

In 2012, plaintiff-inmates from across Arizona filed a class-action lawsuit against the ADC, challenging the inhumane and unconstitutional failures of the state to provide minimally adequate health care to individuals in custody. The plaintiffs and the ADC settled the case in 2014, with the ADC agreeing to comply with 103 specified health care performance protocols, including improving staffing, medical records, pharmacy access, intakes, access to care, diagnostic services, specialty care, chronic care, and mental health treatment.

However, to date, the ADC has done little to effectively implement these protocols. Furthermore, an ironic but foreseeable by-product of the state’s decision to privatize prison health care has been an increase in state costs arising from $2.5 million in fines imposed on the state for its noncompliance and more than $21 million in legal expenses.

In a scathing order in July of 2021, U.S. District Court Judge Roslyn Silver chastised the state for failing to improve the quality of health care in its prisons, leading to preventable deaths and suicides. Despite $2.5 million in sanctions imposed on the state, “Defendant’s longstanding refusal to acknowledge their shortcomings, and identify plausible paths to compliance evidences their pattern of conduct will not change.” Judge Silver rescinded the six-year-old settlement and ordered the parties go to trial.

A Landmark Trial and a Potential for Change

The trial started a few weeks ago and is expected to run into December. Witnesses for both sides have taken the stand. On behalf of the plaintiffs, medical experts have described the quality of Arizona’s prison health care as “catastrophic” and “egregious.” In response, ADC Director David Shinn took the stand and testified that the health care that Arizona inmates receive in prison is faster than the health care that private citizens receive.

Once the trial comes to a close, Arizona inmates, their loved ones, and the ADC will all wait primed for Judge Silver’s decision, which could either maintain the status quo or dramatically alter the landscape of prison health care. 

In the former scenario, Judge Silver could impose additional financial sanctions against the state or require the state to take a series of affirmative steps, like hiring more healthcare workers.

In the latter, more drastic scenario, Judge Silver could take control over prison health care out of the state’s purview and place it in an appointed outside official.

This is the path that U.S. District Court Judge Thelton Henderson took when he transferred control of California’s $1.2 billion inmate health care system from state officials to a third-party—the appointed official was granted the power to set budgets, hire and fire staff, make and break contracts, and decide how every dollar of prison health care was spent. In return, the official was ordered to report bimonthly to the court.

If Judge Silver is similarly as convinced as Judge Henderson was that state officials can no longer solve the prison health care crisis, she may be inclined to take up that option, momentously and comprehensively reshaping the state’s provision of prison health care. Given Judge Silver’s recent sharp rebukes of the state’s repeated failures to meet the settlement conditions, appointing an outside official to run the state’s prison health care system appears not only plausible, but also probable.

Either way, change is long overdue. It’s time for Arizona to take responsibility for the extrajudicial deaths and suffering it has caused. And it’s time for Arizona to end its privatized prison health care system.

"Seodaemun Prison" by christian.senger is licensed under CC BY-SA 2.0

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By Joanna Jandali

J.D. Candidate 2023

Joanna Jandali an ASLJ Staff Writer and a 2L from Tucson, Arizona. She graduated from the University of Arizona in 2020 with her B.A. in Political Science and Law and a minor in Arabic. Joanna is interested in criminal justice reform, transitional justice, and environmental law. Outside of law school, she enjoys traveling, trying new coffee shops and vegan restaurants, and thrift shopping.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.