The Ninth Circuit: The Feds are Responsible for the Health of Inmates in Privately-Managed Prison

Petitioner Richard Nuwintore with his attorneys,
Ian Wallach and Jason Feldman, after their Ninth Circuit victory

Today the Ninth Circuit decided Edison and Nuwintore v. U.S.–two cases involving the government’s responsibility for the valley fever epidemic at Taft, a federal prison located in Kern County. Taft is owned by the U.S. government but operated by the GEO Group, the second largest private prison company in the country.

Gregory Edison and Richard Nuwintore were sent to Taft without warning about the dangers of valley fever. The disease, also known as coccidiodomycosis, has a severe variation that disproportionally manifests in African American patients. Both Edison and Nuwintore fell ill; Nuwintore, who has been released, is now treated under Obamacare, and Edison is being released soon and will also receive care under Obamacare. The condition is chronic and can make people too sick to work.

Is the United States responsible for their illness? The federal government tried to argue that, under the independent contractor exception to the Federal Tort Claims Act, it cannot be held responsible for the actions of a private contractor. Today, the Ninth Circuit found that, due to the government’s special responsibility for the plaintiffs (as their jailer), the exception does not apply and the government is liable. I had the great pleasure to correspond with Ian Wallach of Feldman and Wallach, who told me a bit more about the case:

Walk me through the ownership/operation structure of Taft. I understand that Taft is the only federal facility which is owned by the Government and operated by a private contractor. Why is this arrangement so rare?

Taft is presently owned by the USA, who contracted with Management and Training Corporation back in 2007 to operate the facility.  I don’t know why the arrangement is so rare.  It did create some novel issues with the application of the independent contractor exception.  Colleagues have wondered if it is because of the valley fever issue.  It may sound like a conspiracy theory, but there are some legitimate concerns.  The USA recognized the cocci (another word for valley fever, short for coccidiodomycosis) problem potentially in 1999, and knew some would get ill, and perhaps die.  And the USA has less liability if someone else is operating the facility, even though the USA sends people there.  And the facility is, for unknown reasons, primarily a pre-deportation facility.  That means that people facing low terms, or people about to be deported, are held there.  If they get sick, and are deported, there is not much practical legal recourse available.  Worse than that — there isn’t much access to medical care.  This is why we know of only one fatality from valley fever at Taft, but there may be many more.

Given Taft’s unique status as government-owned and privately operated, would the government’s responsibility in this case extend to private prisons in which the facility is both owned and operated by private contractors? How much government involvement should create responsibility and prevail over the independent contractor exception?

Sure.  As to the failure to warn claim.  And the negligent implementation of policy claim — if the USA developed and implemented policy.  And if the USA reserved control over any aspect of the facility — as it did here with structural changes.

The test, as adopted by the Court, is “is there an independent basis for liability?”

If yes, then the claim should stand. As to your second questions, people have brought challenges, in other contexts, to the independent contractor exception, asserting that the USA asserted so much control that it didn’t really delegate the duties at issue.  I have some charts with summaries of cases on this issue I prepared for use in the oral argument (which can be seen here).  I should clean them up before circulating them, and today has been busy, but let me know if I should send them along.  The standard was too high for us to meet, so we didn’t make that argument on appeal (we did below).  And we had some independent bases for liability, which we felt was the right way to go.

Should we be concerned about a potential incentive for the federal government to distance itself from inmates and shift any potential liabilities on the shoulders of private contractors?

Absolutely.  And that may be what happened here.  Plus privatization of prisons is messy.  I understand that there is a private prison in Ohio that successfully petitioned to control parole hearings (and even here, parol boards can consider reports by an inmate’s prison in determining parole).  And these corporations have a financial incentive for parole to be denied.  That’s flesh-peddling.

This case involved a federal privatized facility, but as we know, state facilities, which are public, are often public only by name, and much of the health care in California state prisons is privatized. Does today’s decision shed any light on questions of liability in this context?

Only to the extent that if you can identify a breach of a separate and distinct duty, and get around any immunity, then your claim should proceed. Today’s case was about federal governmental immunity. This would not apply to private actors (although their attorneys have litigated that it does).

And California has separate immunities.  Which are awful.  In the class action we have, Jackson v. Brown, where 800 inmates need life-long care, and where 40 inmates died, all as a result of infections at Avenal and Pleasant Valley state prisons, the District Court dismissed the case arguing that qualified immunity protected everyone from 8th Amendment claims, because even if the conduct was “cruel and unusual”, there was no “clearly identified right” at issue.  We think it was the right to be housed in a safe facility, but the court claimed it was the right to be in a facility without an excessive amount of valley fever spores, determine by societal standards.  That is on appeal.

There is a great case from the Cal. Supreme Court — Giraldo v. Cal. Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371 (2008), which we relied on and the 9th Circuit expanded upon in today’s decision, that spoke of the Jailer’s duty to inmates, and set forth a special relationship.  It’s a great read and a positive expression of the law.

As the sad facts in this case remind us, individuals of certain ethnicities are more prone to certain medical conditions; this is true for valley fever, and also for other diseases and chronic conditions. Would this create an incentive for private prison contractors to refuse inmates of certain ethnicities, because their healthcare would be more complicated or costly? And should we resist such bargaining with regulation?

I am not aware of any vehicle where this could occur.  A bidding process is set up to operate a facility, and the bidders know who will be housed there and what is apparently needed, and can request to transfer people away, but no one has to listen to that request.  In three other valley fever cases we have, the contractor argued that they had no say in who they accepted, and the injury was the delegation.  These cases (People v. Hammond, Sutton, and Aluya) were also dismissed on summary judgment — because the court bought it.  This is on appeal too (and you are beginning to see how Eastern District court respond to claims by inmates about valley fever.  Add that there are no attorney’s fees provisions, and these are exhausting mid-level tort cases, so few lawyers fight them.  Which is why these dangerous practices continue, as there is very little accountability).  Regulation is a great idea — but in the interim, I’ll keep suing.

Finally, a big part of today’s decision involved the government’s duty to warn inmates about the medical dangers involved in serving their prison term at Taft. But if inmates have no choice on where they are incarcerated, what lends this duty legal value?

The failure to warn deprived these individuals of four avenues of redress.  Had they been warned, they could have done the following:

  • Seek an administrative remedy to be housed elsewhere, before ever arriving at Taft.
  • Seek an administrative remedy the day they arrive, seeking transfer.  Most people are infected within the first few months of arrival, but if they are lucky, they could be transferred out before getting infected.
  • Change their lifestyle while there. This is largely a camp facility with tons of leisure time.  Which, if warned, would be better spent inside. 
  • And they can choose not to take certain jobs (like those that involve digging or gardening or any contact with soil).  They can wear N95 filtration masks if they wish.  

And these changes may greatly decrease their exposure.

The Ninth Circuit decision sheds an interesting light on the malleability of the public-private divide in the context of prison privatization. Congratulations to the plaintiffs and their attorneys, and wishes of good health to everyone impacted by the epidemic.

Elections 2016: Does It Matter Who’s President?

As in every election cycle, CCC will be releasing endorsements once the propositions are on the ballot. We will also release an official endorsement for president for the Republican and Democratic primaries before June 3. But let’s stay focused on what actually matters: from the criminal justice perspective–from policing to incarceration and beyond–while it somewhat matters who the President of the United States will be, what happens in California matters a lot more.

As I argued in Cheap on Crime, 2008 was the first year in more than three decades in which criminal justice was not a fundamental part of the conversation. Obama and McCain, and in 2012 Obama and Romney, discussed the economy, immigration, and foreign policy (albeit to a lesser extent), but did not much address mass incarceration. With the advent of the financial crisis, and the state and local frantic scramble for funds, the political scene was a fertile Petri dish for bipartisan collaborations.

Indeed, the Obama administration did a lot of important things–some merely symbolic, some practical–to reverse the mass incarceration trend. They reduced the crack/powder cocaine disparity, scaled back mandatory minimums, proclaimed a federal intention to stay away from marijuana-legalizing states, made changes to solitary confinement in the federal system, created the conditions for the DEA to consider descheduling marijuana, and it is rumored that some death row pardons might be in the works. Obama’s personal decency, deep humanity and presidential demeanor contributed to the perception of this administration as more committed to fairness and moderation: among other things, he visited a federal prison in Oklahoma and spoke there of reform, and recently he had lunch with a group of nonviolent drug offenders whose sentences he commuted.

This is wonderful stuff, and the Obama administration should be lauded for all this. Sadly, none of the candidates on offer for 2016, with no exception, match his eloquence, dignity, integrity, and good sense. And indeed, even though the federal system is small in scope, it does have some impact on criminal justice reform.

According to the Bureau of Justice Statistics data, in 2014 there were 1,561,525 federal and state prisoners in the United States. 1,350,958 (86.5%) of them were held in state prisons and 210,567 (13.5%) in federal prisons. The 1% decline in prison population between 2013 and 2014 is attributable in part to the federal system, which saw a decline of 2.5%, compared to the 0.7% in the states. So, yes–some change can be made at the federal level, but its impact on the overall system is fairly limited.

An example that has recently been in the news is the confrontation between Bill Clinton, campaigning for his wife, and the Black Lives Matters activists. As John Pfaff argues in the New York Times, the 1994 Crime Bill–lauded by Clinton for its effects on public safety and excoriated by the activists for its effects on incarceration–did neither of these things. Pfaff writes:

We know the act didn’t cause mass incarceration: Prison populations started rising around 1974, and by 1994 they had roughly tripled, from 300,000 to over one million. It’s almost surely the case that America was the world’s largest jailer well before the act was passed. So if the act didn’t cause mass incarceration, the question becomes: Did it help continue to drive it? The answer, by and large, is no.

For one thing, most of the act’s provisions applied only to federal crimes. The tough new anti-gang laws, the expanded death-penalty provisions, the three-strikes laws: All applied only to those tried in federal court. And those, over all, are fairly minor players, with the federal prison system holding about only 13 percent of all prisoners. The other 87 percent of inmates are in state systems — and none of the act’s new criminal laws affected what happened in state systems.

But, the Act’s role in reducing crime was also marginal at best:

The most obvious thing to consider is that rates of violent crimes and property crime began to decline in 1992, three years before the law’s various provisions started going into effect. There’s no real perceptible change in the rate of that decline after the act. If you want to claim that the law did much to stop crime, this alone is a pretty significant problem. It’s not the only one, either.

For one thing, if the law had very little impact on prison populations (despite all the claims to the contrary), then it can’t take credit for however much crime was reduced by rising incarceration. And while the act authorized almost $10 billion over six years to hire up to 100,000 additional police officers — a provision that could have reduced crime — the data suggest any impact was fairly slight. (Once again, $10 billion seems like a lot, but local governments spent over $250 billion on policing during the six years the program was in effect.) All told, the policing program seems to have pushed crime rates down by perhaps an additional 1 percent. And a government review of the included assault-weapons ban found that its effect was minimal, if only because people shifted to non-assault weapons with large-capacity magazines.

There are important things that a conscientious federal administration can affect. It can make it easier for inmates to review their cases through habeas corpus, thus perhaps correcting some of the horrific miscarriages of justice in cases of exnoerees. It can make it easier to litigate prison conditions in federal courts. It can make important symbolic gains in the fight against the death penalty and the war on drugs.

But the bottom line is that, if you want to see criminal justice reform with substantial consequences, you are better off focusing on the state and local arena. Among the propositions battling for your attention are Justice That Works, a death penalty repeal measure; Gov. Brown’s initiative to abolish direct filing of juvenile cases in adult courts and to bring back some early releases; and an initiative to legalize marijuana in California. This is a remarkable year that could generate massive improvements where they matter, so don’t let the Drumpf circus throw off your focus.

Big Developments on the Federal Sentencing Front

The last few months in Federal sentencing have been rather monumental, at least in rhetorical terms. In 2010, as readers may recall, Congress enacted the Fair Sentencing Act, famous particularly for the diminished crack/powder cocaine sentence disparity. And just recently, the Department of Justice announces a clemency initiative that could have far-reaching consequences.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Check out this reaction from the Brennan Center:

“With this initiative, the president is making better use of his clemency powers to reduce our exploding prison population,” added Inimai Chettiar, director of the Brennan Center’s Justice Program. “This is an excellent use of executive power by the president. Additional opportunities to use clemency to reduce mass incarceration exist. Specifically, in addition to these important steps forward, the Justice Department should work to identify and seek out the estimated 5,000 Americans who languish in federal prison because they were sentenced before the 2010 Fair Sentencing Act reduced the unjust sentencing disparity between crack and powder cocaine crimes. It should then solicit, review, and expedite clemency applications from these prisoners, instead of waiting for them to identify themselves.”

We can’t help but agree, and add another comment about the difference between executive clemency and other ways of ending the war on drugs: Providing a legal solution that would be retroactive would be incredibly tricky. Many of the cases of people who might receive clemency under this new order are already final, in the sense that all direct appeals of them have been exhausted (or not pursued.) Reopening cases that are final can only occur under very, very rare circumstances. It is exactly in these sort of situations that clemency is a better solution than a necessity for the legal apparatus to admit its defeat and lose legitimacy.