Updates

[A version of this story was previously published at  MeisterArchive.com]

By David J. Meister
June 27, 2026

After 14 years of continual litigation, a federal judge has finally ordered the takeover of medical services in Arizona State Prisons.

The United States District Court for the District of Arizona addressed unconstitutionally deficient medical care for prisoners in the State of Arizona, ordering experts to conduct an evaluation and file a report. Experts found Arizona “substantially non-compliant” and that State officials’ efforts to self-assess were “totally unreliable.” The experts provided a written, detailed discussion of the specific deficiencies, and included comprehensive medical evaluations conducted by auditors of some patients, finding the patients had received very poor medical treatment.

District Judge Roslyn Silver said it bluntly, the prison healthcare system is, quote, “AN INTOLERABLE GRAVE AND IMMEDIATE THREAT OF CONTINUING HARM AND SUFFERING because the systemic deficiencies pervade the administration of health care.” See Jensen v. Thornell, 2026 U.S. Dist. LEXIS 33723, at *16 (D. Arizona Feb. 19, 2026).

Much the same can be said of systems from Pennsylvania to California where prison healthcare is increasingly taken into court-ordered receivership across the nation. See, e.g., Plata v. Schwarzenegger, 2005 U.S. Dist. LEXIS 43796 (N.D. Cal. Oct. 3, 2005). Yet relief comes only after decades of suffering and litigation, if it comes at all.

In a famous example of protracted litigation for little reward, medical services at the Idaho State Correctional Institution were under court scrutiny for over 35 years, until the court finally deemed constitutional minimums satisfied, “but barely so.” Balla v. Idaho, 2020 U.S. Dist. LEXIS 95915, at *5 (D. Idaho May 30, 2020). At no point in that case’s lengthy history were prison officials or medical providers subject to significant monetary sanctions. When the court subsequently relinquished control, the Idaho prison immediately backslid. A monetary cudgel may have shortened that case by 30 years and ended in permanent improvements.

Returning to the instant case, a private profiteer—Arizona’s NaphCare—has already been operating with impunity during a 14-year period, heedless of court oversight. Apparently, in the face of billion-dollar contracts, they’ll assume the risk of offending a judge or two.

Laudable as Judge Silver’s intentions are, perhaps the solution to Arizona’s failing prison healthcare lies not in rehabilitating a faulty system that has no will to change, but in finally holding the culprit officials and corporations financially responsible. Perhaps they will care about their money—because they certainly don’t care about the inmates’ healthcare.

by James Mancuso, Prison Journalism Project
June 9, 2026

Payton Tucker can usually be found trying to track down incarcerated people at South Idaho Correctional Institution, a minimum custody facility, or working through her list of one-on-one visits at the nearby medium custody Idaho State Correctional Institution.

She always seems to have a smile on her face, and works tirelessly to help people prepare for reentry. Tucker’s job is of great importance. U.S. Department of Justice statistics show that about 95% of people are expected to return home from state prisons at some point. But they often encounter significant barriers to finding housing, jobs or important social safety nets that will prevent them from returning to prison.

Even though almost everyone comes home, about 71% of people return to prison within five years of leaving, according to the last widespread study conducted by the U.S. Bureau of Justice Statistics in 2012.

As a reentry navigator with the nonprofit Society of St. Vincent de Paul Southwest Idaho, Tucker speaks to each incarcerated person she works with to learn their needs. She helps people find job openings, housing, social services and helpful programs or classes they can access, among other things. Tucker said she takes a holistic approach to a person’s transition from prison to society.

“Nearly every person that experiences incarceration is going to be someone’s neighbor,” Tucker told me during an interview in February, at her desk in the back of the prison’s graphics shop.

A formative time

In seventh grade, Tucker was living in Hawaii and had her whole life planned out. She was going to be a doctor. Then, in high school, she saw a gruesome video of a basketball player’s shinbone compound fracture and changed her mind.

Midway through high school, Tucker and her family moved to Idaho, where she finished high school. Being a bit of a bookworm, Tucker liked to read about all the different places she could live. She decided to move to New York City for college and major in teaching.

“I was nervous until I got off the plane in New York, then I felt like I was at the place I was meant to be,” she said.

During college, Tucker joined a homeless outreach group, where she became a student leader. “That struck a chord within me,” Tucker said.

After college, Tucker returned to Idaho and began working for a Waldorf education-based school. The Waldorf methodology was built around the physiological and psychological stages of child development. She taught seventh grade in a system that had little to no technology. All her exhibits and notes were drawn on a chalkboard or on large pieces of paper to be hung on the classroom walls. They’d start the day with meditative chants together, and experience lessons in the form of storytelling and hands-on learning.

Over time, her interest in teaching waned. Tucker often felt like she was doing more paperwork than face-to-face teaching. She wanted to sit across from someone, not stare at her laptop.

A couple years ago, Tucker volunteered for Cookies for Corrections, a local program where St. Vincent de Paul volunteers pass out cookies and holiday cheer to residents during the Christmas season.

“I walked away feeling like I wanted to come back and bring light to their day,” she said.

A dream job

In 2025, just as Tucker decided to move on from teaching, the reentry navigator job with St. Vincent de Paul Southwest Idaho opened. She was hired in April of that year.

“I’m grateful to be part of the team because they are such a loving and dedicated group of people,” Tucker said. “We’re a perfect puzzle of people.”

When asked what she dislikes about the job, she said, “There are so many people who need our help yet so few resources to offer them.”

As a reentry navigator, Tucker’s job is to find out what incarcerated people need to be successful when returning to society.

Tucker leans heavily on her storytelling and teaching background when she helps people draft resumes, cover letters and find substance abuse or mental health counseling. If the person needs a ride to get to and from appointments, she’ll figure that out too.

“Every [prisoner ID] number is attached to a real live human being,” Tucker said. “I need to sit with them face-to-face and open my heart up so I can really listen to what they need, not just hear the words they say. We can then come up with a plan tailored to them, which will give them a better opportunity to be successful upon their release.”

Chris Carter, who’s detained at Idaho State Correctional Institution, said Tucker has been great to work with as he navigates his upcoming release.

“She really listens to you and will explore a bunch of different options until you find something that feels right to you,” Carter said.

‘Every story matters’

Jim McGahey, the inmate workforce development coordinator for Idaho Correctional Industries at the prison, said Tucker is good at her job because she has “developed a network of resources and understands how to utilize that network.”

“Recently she’s been working with an inmate that has done 30 years,” McGahey said. “He had no outside support. Payton crafted and built around him a network of support so that the guy is now getting out with people to pick him up, housing, job opportunities and four different phone numbers of people out in the community that can help him.”

Reentry isn’t easy. It’s important to have someone like Tucker to listen to our stories and help that transition be as seamless as possible. It’s her enthusiasm, her kind words and genuine compassion that are felt the most.

“It’s important to operate from a space in which you understand that everyone has a story and that every story matters,” Tucker said.

This article first appeared on Prison Journalism Project and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.

Over 200 people Tuesday evening attended a virtual ceremony over Zoom for the third annual Stillwater Awards. I was able to tune in with my dad, thanks to my prison’s video-visit technology. (Pops pulled up the ceremony on a second device and aimed me in its direction.)

As the screen filled up with faces of journalists, journalism educators and supporters of the finalists, I unsuccessfully searched for others viewing from prison. (Possibly they were hiding in the sea of black boxes used to protect attendees’ privacy.)

Several times during the ceremony, my video visit cut out, forcing me to log out and back into the visiting app.

Thankfully, the visit stayed connected when my submission for the Best Op-Ed category took third place!

After the announcers read the judges’ comments and a statement that I prepared, they asked if anyone in the audience wished to speak on my behalf.

Pops and I both got a little emotional as he chimed in, thanking everyone involved in producing the awards and two of my biggest supporters, who were also in the audience. (Sadly, multiple finalists received awards without anyone to speak for them.)

Towards the end of the ceremony, in what I viewed as the evening’s highlight, the staff of the Mabel Bassett Balance, incarcerated at the Mabel Bassett Correctional Center in McLoud, Oklahoma, appeared on screen to receive an award for their publication. In true rock star fashion, after realizing that their sound wasn’t working, they all formed hearts with their hands and broadcast their love to the crowd.

Thanks to everyone who participated in the third annual Stillwater Awards!

Support prison artists and writers by sharing any of the following links:

“PJP Writers on Their Award-Winning Stories About Life Behind Bars.”

Homestead Happenings – “2026 STILLWATER AWARDS”

Society of Professional Journalists – “Stillwater Awards, 2025 Winners”

After years of controversy surrounding lethal injections, the state looks to automate the process of shooting people sentenced to death.

[This article was originally published at the Prison Journalism Project]

Come July, a new Idaho law will require the state to prioritize use of the firing squad when performing executions. It will become the first state in the country to make shooting prisoners condemned to death its method of choice, followed by lethal injection.

Idaho’s turn to the firing squad follows years of controversy surrounding its procurement of lethal injection chemicals and its failed 2024 execution of Thomas Creech. Creech’s execution was called off when a medical team repeatedly failed to establish the IV line needed to deliver the injection.

In an interview with a PJP editor, Ryan Mortensen, a spokesperson for the Idaho Department of Correction, said the department is evaluating options to “procure a remotely operated system” — an effort intended to reduce staff involvement in the gruesome process.

“It is a traumatic thing to experience,” Mortensen said. “The number one priority is safety and security for all involved.”

IDOC is currently reviewing how other states have implemented firing squad executions. If a remote option is not obtained, Mortensen said, “a manual process will remain necessary as a back up.”

A corrections officer, who asked to remain anonymous, said he heard the eventual weapon would likely be placed on a stand and “operated by a computer to release a firing pattern.”

“It’s kind of like Call of Duty,” the officer added.

Today, only four other states are legally authorized to use the firing squad for executions. The method is rarely used. Last year, South Carolina became the first state in 15 years to execute a prisoner by firing squad when three volunteer prison employees shot rifles at a red bull’s eye over the heart of Brad Keith Sigmon. Sigmon chose the method over lethal injection.

Idaho’s death chamber is located at the Idaho Maximum Security Institution, in a cellblock adjacent to the track and ball field at Idaho State Correctional Institution, where I’m incarcerated. The sound of gunfire from a nearby firing range regularly echoes throughout the compound.

The range is being used for routine training by local law enforcement, including the Idaho Department of Corrections, said Mortensen.

The occasional small eruptions are eerie.

“It’s as close to full-auto as you can get,” Mark Hopson said of the sound. (Mortensen said that IDOC personnel do not train with automatic weapons.)

In addition to South Carolina, Mississippi, Oklahoma and Utah have also kept the firing squad on the books. But Idaho is the only state set to prioritize it over other execution methods. South Carolina killed a total of three prisoners by firing squad last year. Prior to that, Utah was the only state in nearly 50 years to deploy its firing squad, for a total of three times.

The view from around the compound

Following Creech’s failed execution, I remember watching a press conference, with corrections officials and media witnesses, live from my unit.

“Why have a punishment that’s more or less for theatrics?” prisoner Jason Stark said during a recent interview in the dayroom. “This is a question of ethics and humanity. Not on the part of the person dying but on the people supporting the system. If taking a life is so horrible, then why are they doing it?”

When asked about use of the firing squad, Stark ranked its perceived humaneness among other methods.

“Lethal injection is better than firing squad,” he said. “Both of those are better than hanging, and better than the electric chair. But really, the most peaceful way to die is by nitrogen asphyxiation.”

Experts tend to disagree. Even some veterinarians oppose the use of nitrogen asphyxiation to euthanize animals because of its uncertain effects, according to a report from the American Civil Liberties Union.

In line for breakfast, Frank Nicolai, who is 22 years into a sentence of life without parole, told me he’s not a proponent of the death penalty. “But I do believe that people serving fixed-life sentences should be given the option of euthanasia,” he said.

Last year, the Idaho Statesman reported that the state spent $200,000 on execution drugs that expired after going unused.

“I personally think they should just take them out to the courtyard and use a cattle knocker,” Robert Sanders said between mouthfuls of biscuits and gravy. A cattle knocker is a pneumatic device that is applied to the cranium of cattle during slaughter. “Do away with all of the commotion and save the taxpayers money.”

RJ McKinney spent 28 years on death row. He is the closest thing to an expert on the subject that I could find. I caught him walking back from a volunteer shift.

“Killing me isn’t a punishment,” he said. “That’s just getting rid of me. If you really want to punish me, keep me around for the rest of my life and let me think on what I’ve done.”

Embedded in this post are two documents. The first is a page from the log of public record requests submitted to the Idaho Department of Correction in December. The second lists the Idaho codes used to justify redactions made to the first.

Requesting the agency’s monthly log of public record requests is something I’ve done for years. I use these logs to track investigations into the agency’s operations, and also to network with other criminal justice advocates, researchers and writers. I’ve seen a lot of redactions made to these logs, but never a level of obfuscation like this.

Check out request R032917-123025, logged December 30, 2025. (I tagged it with a star to help you find it.) Note the eight strategically-placed inkblots, how they obscure the requestor’s attempt to investigate what their past-tense verbiage infers to be death of an incarcerated loved one.

Note in the second document how the agency cites Idaho Code 74-105(4)(a)(i) for each of the eight redactions made to this request.

Idaho Code 74-105(4)(a)(i):

The following records of the department of correction [are exempt from public disclosure]: 

Records of which the public interest in confidentiality, public safety, security and habilitation clearly outweighs the public interest in disclosure as identified pursuant to the authority of the state board of correction under Section 20-212, Idaho Code.

(Section 20-212 gives the board of correction the power to create agency-specific policies in accordance with other state laws.)

In 2025 InvestigateWest used public record information to unearth the ongoing sexual abuse of female prisoners by Idaho corrections staff.

After the investigaiton findings were published Idaho determined that it’s no longer in the public’s interest to disclose why law enforcement officers leave their jobs.

If you are anything like me, you are curious to know the truth behind this document’s redactions. You are also probably wondering just how far Idaho will go to conceal corruption within its agencies. And lastly, you will be eager to support this family as it searches for accountability and closure.

I wish to invite the person who submitted this request to a private conversation. Please help me to reach them and share this post as you see appropriate.

Hey folks,

Remember that op-ed I published last year, “Who Should Care for the Elderly in Prison?” Well, to my surprise, a panel of professional journalists, editors and journalism educators recently selected it as a finalist for the third annual Stillwater Awards.

The Stillwater Awards are a national awards program that seeks to honor journalism excellence among writers incarcerated in the U.S.

Organized by the Society for Professional Journalists and Prison Journalism Project, this year’s awards will be distributed across 10 categories to first, second and third place.

My placement will be announced during a ceremony over Zoom on Tuesday, April 28 at 8pm Eastern.

Friends, family and fellow journalists/bloggers are welcome to join. Keep an eye on the Stillwater Awards website to learn how.

My heartfelt thanks to all for your ongoing patience and support!

“Underdog” — Alicia Keys

Idaho prisons are in the midst of a three-year pilot program that some believe could curtail abuse and promote accountability.

[Originally published by Prison Journalism Project.]

By James Mancuso

Idaho state prisons are piloting body cameras on guards, which some believe will increase safety and accountability.

Last year, the Idaho prison system instructed guards at some state prisons to start wearing body cameras, according to information I obtained through a public information request.

Dozens of people I surveyed for this story think that’s a good thing. Nearly every one of them told me they believed guards wearing cameras would make state prisons safer and hold guards more accountable.

“It’ll keep both ends honest with each other,” said Cody Fortin, an incarcerated resident, referring to prisoners and officers.

As of my writing in mid-February, body cameras have not been mandated at the prison where I’m detained, Idaho State Correctional Institution. But Fortin recently arrived here from Idaho State Correctional Center, which did utilize cameras for three months as part of a three-year pilot project.

Fortin, who spent five months in ISCC last year, told me he interacted with a corporal both before and while he wore a body camera. In their limited interactions, Fortin said the high-ranking officer seemed nicer and more helpful when wearing the camera.

“More accountability is great for everyone,” said Patrick Irving, a PJP contributor who is incarcerated with me.

What officers think

During the trial period, officers were asked to wear cameras on the upper-front torso in a way that was not obstructed by clothing, according to a policy document I obtained. The cameras were to be activated during qualifying events, including patrol on the housing tiers, use-of-force events, transporting someone of the opposite sex, or when a prisoner or fellow employee was aggressive or engaged in harassment.

I spoke to a corrections officer who had firsthand knowledge of the pilot at Idaho Maximum Security Institution, which is close to our prison. The officer, who asked to remain anonymous because he is not permitted to speak with the media, said he thought every officer would eventually be required to wear one.

Another guard told me he thinks body cameras will keep officers honest “and root out the bad officers.”

“I consider myself to be a good officer and see the body cams as a means of accountability,” he said. “Officers who are more malicious and tend to antagonize residents, rather than use the conflict resolution and de-escalation tactics we learned in training, have pushed back on the idea of body cams.”

Another officer said he was indifferent.

“If I’m told to wear one, I’ll wear it,” he said. “If not, not.”

A skeptic’s view

The department’s body camera pilot program is funded by a three-year federal grant, expected to expire in September next year, an Idaho Department of Correction’s spokesperson told a Prison Journalism Project editor in an email. IDOC has also utilized body cameras in probation and parole offices and the state’s special investigations unit for fugitive recovery.

The plan is to deploy up to 512 body cameras before the funding for the pilot concludes. At that point the department will assess the program’s outcomes and consider whether to expand or extend the use of body cameras.

Mirza Delic was the lone person I found who expressed concern about the body cameras. Delic, an incarcerated person, wishes IDOC would have pursued other funding or grant opportunities. In particular, he would like to see better shoes provided to indigent prisoners (they are given something similar to boat shoes now), upgraded gym equipment at maximum security prisons and murals painted on prison walls to make a facility feel more “like a home.”

Delic added that part of his skepticism with body cameras is that they have not proven to be a catch-all solution to stopping law enforcement overreach. He referenced the recent killings by federal officers of two different protesters in Minnesota.

Even though that was caught on video, Delic said, nothing significant seemed to happen.

[A version of this story was previously published at  MeisterArchive.com]

By David J. Meister

When the Supreme Court overturned Roe v. Wade, headlines centered on abortion rights. But buried in the decision was a legal shift with consequences far beyond reproductive freedom. In Dobbs v. Jackson Women’s Health Organization (2022), the majority not only rejected a constitutional right to abortion—it cast doubt on the legitimacy of substantive due process, a doctrine that underpins many of the rights people in prison still have.

Justice Clarence Thomas didn’t mince words. In his concurring opinion, he urged the Court to revisit every case decided under substantive due process: Griswold v. Connecticut (contraception), Lawrence v. Texas (private sexual conduct), and Obergefell v. Hodges (same-sex marriage). But the implications go even further—into the prison system, where thousands of people depend on this doctrine for basic rights.

If substantive due process is dismantled, incarcerated people won’t just lose abstract protections. They’ll lose tangible rights tied to medical care, humane confinement, family contact, and bodily autonomy. Some already have.

The Legal Foundation at Risk

Substantive due process is the idea that some rights are so fundamental that the government can’t infringe on them—even with fair procedures. It’s been used to affirm personal liberties not explicitly named in the Constitution but deemed essential to human dignity.

In prison law, this doctrine fills gaps left by the Eighth Amendment. That amendment bars cruel and unusual punishment, but only applies to convicted prisoners. What about people locked up before trial? Or those in civil commitment centers? Or immigrant detention?

The Supreme Court addressed this in Bell v. Wolfish (1979), ruling that pretrial
detainees are protected under the Fourteenth Amendment’s substantive due process clause. Unlike convicted individuals, they haven’t been sentenced to punishment—so they can’t be subjected to punitive conditions at all.

This distinction has shaped how courts handle cases involving:

• • • Civil commitment: Detaining someone indefinitely for mental health or public safety reasons must serve a therapeutic, not punitive, purpose.
      Immigrant detention: Detainees awaiting deportation have the right to humane treatment and medical care.
    • Involuntary medication: The state can’t forcibly medicate someone without a legitimate government interest and due process procedures.
    • Medical autonomy: Even behind bars, people retain limited rights to refuse
      non-emergency treatment.
    • Parental visitation: Some courts have recognized a liberty interest in maintaining family contact, especially for incarcerated parents.

None of these protections come from the Eighth Amendment. They exist because courts have recognized substantive due process as a necessary safeguard. If the doctrine is overturned, these rights don’t get replaced. They disappear.

This is especially concerning given the demographics of incarceration. Pretrial detainees make up roughly one-third of the jail population in the United States. That’s hundreds of thousands of people who haven’t been convicted of a crime but are subjected to conditions that often mirror or exceed those of sentenced inmates. If substantive due process protections are removed, there would be no constitutional barrier to punitive treatment of people who are presumed innocent.

The Real-World Consequences

Let’s take a real example: someone held in jail awaiting trial. They haven’t been convicted. They haven’t been sentenced. But in many jurisdictions, they’re locked down 20 hours a day, denied meaningful programming, and subjected to conditions no different from convicted inmates.

Under current law, this can be challenged as a violation of substantive due process. If that doctrine no longer applies? There’s no constitutional recourse.
The same is true for someone in civil commitment who’s being warehoused indefinitely without treatment. Or an immigrant detainee subjected to medical neglect. Or a prisoner forcibly medicated with antipsychotics despite having non-violent charges and no history of danger.

These aren’t hypotheticals. These cases are happening. Substantive due process is often the only doctrine giving courts a framework to push back.

Consider the implications for incarcerated parents. In many cases, prison policies arbitrarily restrict or eliminate access to visitation, phone calls, or correspondence. Substantive due process has been used to challenge these policies, especially when they disrupt the parent-child bond without legitimate justification. If this legal tool disappears, so does the ability to contest those restrictions.

And then there’s medical autonomy. Prisoners already face extraordinary challenges accessing care. Denials of treatment, long delays, and medical indifference are all too common. Substantive due process has been invoked in cases where inmates refused non-emergency treatment—like chemotherapy or surgery—and were punished or coerced into compliance. Removing this safeguard makes it easier for prison officials to force compliance under the guise of security or cost-saving.

What the Courts Might Do—and What They Might Not

Justice Alito’s majority opinion in Dobbs suggests that only rights “deeply rooted in the Nation’s history and tradition” deserve protection. That framing excludes many modern understandings of human dignity—including those that apply in jails and prisons.

Justice Thomas goes further: he doesn’t just question the doctrine’s scope; he rejects it outright. If the Court adopts his view in a future case, the fallout for incarcerated people could be immediate and devastating.

In theory, Congress or state legislatures could step in and codify these rights. But history shows that constitutional protections for people in custody rarely get replaced with statutory ones. Without a constitutional floor, the rights of prisoners become discretionary—subject to the politics of the moment.

And politics are rarely kind to the incarcerated. Lawmakers are more likely to posture on “tough-on-crime” rhetoric than to introduce bills protecting the rights of people in prison. That leaves any hope of protection resting on unstable political ground. Substantive due process may not be perfect—but without it, incarcerated people face a legal vacuum.

The Bottom Line

Most people don’t realize how much of prison law depends on substantive due process. It’s not just a legal technicality. It’s the foundation for humane treatment, medical care, and the basic principle that people who haven’t been convicted shouldn’t be punished.

If the doctrine falls, the Constitution offers no alternative. There is no backup plan.

Incarcerated people have long lived on the margins of constitutional protection. Without substantive due process, even that margin disappears.

We’re not just talking about legal theory. We’re talking about whether people in custody will be treated as human beings—or as wards of a state with no duty to respect their autonomy, health, or dignity. That choice may soon rest in the hands of a Court ready to erase the only doctrine that has ever tried to draw that line.

[A version of this story was previously published at  MeisterArchive.com]

By David J. Meister

By the nature of incarceration, U.S. prisoners are totally reliant on facility  officials to provide adequate medical care. That is a major operational  expense. An industry of private healthcare providers has emerged to fill a  need traditionally—if reluctantly—filled by government, offering cheaper solutions.

Typically, a prison healthcare provider is paid a fixed amount per inmate (e.g., $20–$25) housed at the facility. A 2,000-bed facility, for example, might pay a private provider $40,000 to $50,000 a day, or $14 to $18 million a year. Serious dollars.

From that sum, the company employs staff, covers overhead, and pays for outside medical services like specialist care and hospital visits. What money remains on the back end, the company keeps as profit.

Their grimy business model: provide less medical care, employ fewer staff, stock fewer supplies, reduce outside referrals, and always use the cheapest alternative for all of the above. Maximize profits (or the shareholders will sue). Although the ethical boundary is in the rearview mirror, it’s definitely not illegal for a healthcare provider to increase revenue by innovating ways to save costs.

It is illegal to purposely provide inadequate healthcare to prisoners. However—considering the thousands of prisoner lawsuits filed every year and their relatively dismal success rate—prison healthcare providers have clearly  learned to ride the line between maximum corporate earnings and civil liability.

DENY. DELAY. DEFEND.

Cheap, easy, convenient medical problems are treated swiftly and with a good bedside manner. Public relations. More serious (expensive) medical issues are processed… differently.

Take a common scenario, for example: when an inmate breaks a foot playing sports.

Initially, care will be denied—that is, the inmate will be triaged, given ibuprofen, possibly a wheelchair but more likely crutches, and told to submit a Health Service Request (HSR) form. After submitting the HSR, the inmate will be triaged again by a Nurse’s Assistant within the next day or week, and possibly referred for X-rays and a provider visit. Neither of these  appointments will likely be scheduled unless the inmate submits a second HSR complaining that the injury is going untreated. Another triage by an NA would follow, but no real treatment of the broken foot.

The next step is to delay care as long as possible. When a persistent patient presses for care, the provider (usually a Nurse Practitioner) might dole out “consolation” care (a boot or cast, physical therapy, more ibuprofen) while promising care that doesn’t come—appointments aren’t scheduled, scheduled appointments are missed, specialists “aren’t available,” any excuse to delay delivery of substantial care.

Substantial care is delayed until the patient gives up or prevails on an official grievance. Ideally, by then, the inmate’s medical condition has degraded beyond the point of no return and remedies become futile. The broken foot healed on its own, crooked and atrophied, and after a great deal of unnecessary pain.

The last step in the process is to defend. Prison healthcare providers bank on most prisoners giving up on their requests for care, but in the one-in-a-hundred case when an inmate actually litigates inadequate medical care, the system has the prisoner at a huge disadvantage. This is where prison healthcare departs from free-world healthcare—inordinate restraint on prisoner litigation changes everything.

LITIGATION: FEDERAL v. STATE COURT

So how do providers escape liability? Short answer: the legal system is stacked in their favor.

An internet search of prisoner cases alleging inadequate medical treatment might crash your browser. Prison medical companies survive tsunamis of inmate lawsuits by exploiting barriers lawmakers created around prisoner litigation. It starts with unfairly difficult and demanding prison grievance procedures that must be exhausted to the letter or any subsequent lawsuit will be dismissed at the court’s doorstep. (Google PLRA.) Claims that successfully emerge on the other end of that bureaucratic gauntlet face a Hobson’s Choice.

An inmate may choose one of two jurisdictions to file a medical claim: the local federal District Court (for Eighth Amendment claims), or the nearest state trial court. Really, this choice is between (1) an insurmountably high burden of proof for federal constitutional claims, or (2) an impossible requirement to produce an expert on state malpractice claims.

FEDERAL COURT: DELIBERATE INDIFFERENCE

To state a viable constitutional claim in federal court, an inmate must prove deliberate indifference, meaning that the provider knew of a serious medical need and deliberately chose an inappropriate course of treatment that harmed the patient. Deliberate indifference is essentially the civil equivalent to criminal “recklessness.” Farmer v. Brennan, 511 U.S. 825, 836 (1991). Deliberate indifference is an extremely high standard beyond malpractice and even
gross negligence. Balla v. Idaho, 29 F.4th 1019, 1025-26 (9th Cir. 2022).

If, say, a provider failed to note a medication allergy even though it was a professional duty to collect that information, and later the inmate became ill from a prescription that should not have been administered, the inmate would have to prove both that the provider deliberately failed to collect allergy information and that the provider knew the inmate would be prescribed medication that would cause an allergic reaction. It is virtually impossible to prove either element unless the provider confesses to them. More likely, they’d claim “inadvertence,” which may be negligent (malpractice), but not deliberate indifference.

STATE COURT: MEDICAL MALPRACTICE

That same failure to collect allergy information would likely be actionable in state court under professional negligence—medical malpractice in this case. The standard of proof for medical malpractice is preponderance of evidence that the provider breached a professional duty of due care, causing the inmate harm. A provider’s failure to complete a mandatory checklist involving
medical allergies is facially proof of negligence, and is much easier to prove in court than deliberate indifference.

Why, then, wouldn’t inmates plead the easier standard of medical malpractice in state court?

They don’t, because state law usually requires a medical expert for a plaintiff to proceed on a malpractice claim. See, e.g., Idaho Code § 6-1013. A state court will dismiss a prisoner’s malpractice lawsuit, preliminarily, if an expert is not lined up to testify about (1) the usual standards of healthcare in the community and (2) that the healthcare in dispute fell below those standards. Nonnegotiable—even if the conduct is plainly within average understanding, such as when a provider fails to check for allergies before prescribing medication.

Then find a medical expert, right? Unfortunately, most prisoners cannot afford legal counsel and there is no right to appointment of legal counsel at public expense in these types of civil cases. And the number of medical experts that will consult on a legal case with an unrepresented
inmate equals the number of unicorns frolicking the woods out back.

If an inmate is represented by counsel, two huge barriers persist: availability and cost.

The politics of professionals like medical doctors may be fundamentally antagonistic to helping inmates, and the pool of experts in the area might not be willing to assist inmates because of their crimes. That’s the first problem, and it’s not uncommon. The second problem is that medical experts charge between $400 and $600 an hour, with other assorted fees on top. Case
review, consultation, affidavits, depositions, hearing testimony, trial testimony—all add up to tens of thousands of dollars at least. Prohibitively expensive to inmates.

There is a slim chance that a neutral medical expert could be appointed to advise the court. In such case, that’s a huge advantage to the inmate because prison healthcare providers are usually, in fact, guilty of violating their professional duties and an expert is likely to confirm that.

But it’s rare for a court to do this in an inmate case, and few inmates possess the knowledge or legal expertise to ask.

WHAT CAN THEY DO?

Prison healthcare providers are intimately aware of the legal nuances that end inmate medical lawsuits before they begin. That security against liability was copied into the corporate manual, and prison healthcare providers now operate at the level of gross negligence—just shy of deliberate indifference—keeping them and their investors in the money.

An attorney who is expert in the traps and pitfalls of prisoner litigation and who is willing to invest their own cash into a hired-gun medical expert would, in theory, clean up. With the right finances, they could find dozens of good cases at one prison alone—they’d prove medical malpractice all day long. And yet this just doesn’t happen.

If I had to guess, I would blame fee caps that the PLRA and parallel state laws have placed on the dollar amount an attorney can recover for their work on an inmate’s case. These caps might reduce attorney’s fees to less than half of normal rates. On top of that, jury awards in many jurisdictions tend to be lower, awarding comparatively minuscule damages in prisoner cases.
Combining the degree of difficulty with a smaller potential payoff, attorneys have little incentive to take inmate cases.

The reality is that prisoners are forced to file deliberate-indifference claims on their own in federal court (where experts aren’t strictly required), where  there’s a slim margin of success… but at least a chance to make a case.