By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona has lost its bid to keep a court-appointed receiver from taking over the state prison health care system later this month.

In a brief order Thursday, Justice Elena Kagan rejected a last-ditch bid by attorneys for the state to delay the order by U.S. District Court Judge Roslyn Silver putting Annette Chambers-Smith in charge of ensuring that the 25,000 inmates in state-run facilities get the physical and mental care they need — and to which the judge said they are constitutionally entitled.

Attorneys for the state and Ryan Thornell, director of the Department of Corrections, Rehabilitation, and Reentry went to Kagan after Silver refused to reconsider her order. The 9th Circuit Court of Appeals also refused to intercede.

What makes Kagan’s views significant is that emergency petitions, like the one filed by the state, go to whoever is the duty justice over that areas of the country. For Arizona, that is Kagan.

Most immediately, the lack of relief from Kagan leaves no barrier to Chambers-Smith taking over on Oct. 19.

Silver has given her the same powers over the health care system that Thornell now has, subject only to the judge’s review. That includes the ability to hire, fire, supervise, promote, transfer, discipline and even determine the pay of all prison employees and contract staff who provide care.

Potentially more significant, Chambers-Smith, a former Ohio prisons chief, can negotiate — and even terminate — the contract the state now has with NaphCare, which has been providing much of the direct care.

What makes that important is Dr. Marc Stern, named by Silver to serve as her expert after years of litigation, reported that “the quality of care provided by NaphCare remains woefully inadequate.”

Stern and his team also warned that “patients are in daily danger” and “pervasive dangers in the delivery of (mental health) care.”

And they also said that Thornell had not taken the necessary steps to ensure adequate staffing and that, even eight months after Silver issued her 2023 injunction ordering the state to do better, staffing remains “dangerously low.”

Silver put Chambers-Smith in charge of health for up to five years, with the state paying her $500,000 annual salary.

“Gov. Hobbs disagrees with the Supreme Court decision,” said press aide Christian Slater. “Elected officials should decide how Arizona’s prison system is run, not bureaucrats appointed by federal judges.”

Slater, however, did not note that this case has now been going on for 14 years.

Kagan’s decision refusing to delay Silver’s order does not end any ability of the state to try to escape that oversight in the interim. All it does is clear the way for Chambers-Smith to take charge of the health system while Arizona pursues a separate appeal to the 9th Circuit.

The judges there have agreed to hear the state’s arguments that Silver had exceeded her legal authority by appointing a receiver.

Only thing is, that hearing is not scheduled to occur until Dec. 7, leaving the receiver in place in the interim.

In pursing their appeal, lawyers for the state intend to argue that appointment of a receiver is something that should occur when there are no other remedies a court can use to force compliance. In this case, they said, Silver has other options such as imposing fines.

But Corene Kendrick, an attorney with the American Civil Liberties Union who is representing inmates along with the Prison Law Project, noted Silver has tried that, holding the state in contempt and imposing millions of dollars in fines. Yet even state officials concede the care being provided right now and the staffing that is available has yet to comply with her orders.

There are other claims the state is expected to make.

One is that things have gotten better since Silver issued a 200-page ruling in 2022 when she found that the care provided in Arizona prisons is “plainly grossly inadequate” and that state officials are acting “with deliberate indifference” to the substantial risk of harm to inmates.

She also cited testimony from David Shinn, the state prison director at the time which she said “provides compelling evidence of knowledge of the failures but a refusal to take meaningful measures to correct systemic flaws.”

All that resulted in the 2023 injunction ordering the state to fix the problems.

What’s changed, the state’s attorneys continue to argue, is that Shinn is gone, with Hobbs, newly elected as governor in 2023, replacing him with Thornell. And the lawyers say the department has more than doubled its health care spending and grown its health care staff by more than 50%.

On the other side of the equation, though, is the state’s admission it still isn’t in compliance with the 2023 injunction. And Silver herself, in deciding a receiver is necessary, said “the record is rife with examples of their willful inability to institute constitutionally adequate healthcare in compliance with the injunction.”

Kendrick on Thursday cheered Kagan’s decision.

“Arizona has spent years fighting accountability at every turn while people in its prisons continue to suffer and die from preventable causes,” she said. “Today’s decision clears the way for a receiver to do what the state has failed to do for more than a decade.”

And Maya Abela, deputy legal director at Disability Rights Arizona, agreed that Kagan’s action will finally pave the way for a receiver to require the state to do what Silver ordered years ago.

“Further delay would have only served to increase the risk of harm to incapacitated people in Arizona’s state-operated prisons and we are glad the court recognized that this must not be allowed to occur.”