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Officials urge end to prison oversight

January 28, 2009|Michael Rothfeld

SACRAMENTO — Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown will ask a federal judge today to end court oversight of healthcare in California prisons and return the inmate medical system to the state's control.

In a filing with U.S. District Judge Thelton E. Henderson, who seized prison healthcare from the state nearly three years ago, Brown and Schwarzenegger administration officials are expected to contend that the receivership has exceeded its authority and violated federal law with an $8-billion plan to renovate healthcare clinics and build seven "holistic" facilities for 10,000 inmates.

"We believe the receivership has become a government unto itself, operating without accountability, without public scrutiny and without clear standards," Brown said Tuesday. "Tremendous sums have been spent, and tremendous progress has been made, but we feel that it's time to place the responsibility on the director of corrections and not have this parallel government operating on its own."

The state intends to ask Henderson to replace the receiver with a special master who could report on the state's progress and work with state officials but would not have the same broad powers.

J. Clark Kelso, the receiver appointed by Henderson, has the ability to hire, fire and manage employees and make contracts. He oversees $1.8 billion in state spending annually to overhaul a healthcare system that the judge ruled was causing many inmates to die needlessly.

Although Schwarzenegger and his aides initially cooperated with the receiver, their relationship has soured. And as state officials grapple with a $42-billion budget gap projected by the middle of next year, they have clashed with Kelso. The receiver has been unable to secure funding for his construction plans so far in the Legislature, from the governor or in federal court.

In an interview, Kelso called the state's impending move "outrageous." He said he had sought a review from the state for all of his efforts, and that only months ago the Schwarzenegger administration had asked him to move ahead with construction. Kelso said he expected that the judge would reject the state's request because the receivership is the only entity that has improved inmates' healthcare.

State officials have conceded in the past that they cannot do that job, he said, and officials' promises of change are empty.

"Terminating the receivership would only increase and prolong unnecessary deaths and suffering, and the state, the governor and the attorney general would be responsible for that," Kelso said.

In a filing to Henderson earlier this month, he took a swipe at Schwarzenegger for reneging on pledges of cooperation, writing that "court orders are not Hollywood contracts . . . where promises are cheaply given and then ignored when convenient."

And in a jab at Brown, who is exploring a run for governor, Kelso wrote that "public officials who choose to run their political campaigns for higher office" by trying to block judges' orders "actively promote disrespect for the courts."

Brown, who has adamantly fought Kelso's plans for months in court, said he was shocked that the receiver would politicize the issue.

The receiver's plans, he said, violate the federal Prison Litigation Reform Act, which prohibits prison construction from being ordered by a judge. The attorney general also said Kelso's proposed facilities flout the federal requirements that he use the least intrusive means to improve healthcare.

State officials estimate that the facilities would cost up to $2.3 billion a year to operate, and draft plans have included exercise rooms, music and art therapy areas, natural light and landscaping.

"The environment should be 'holistic,' " Kelso's plan says.

Schwarzenegger's corrections secretary, Matthew Cate, said the receivership has already met many of its initial goals by filling vacancies for doctors and nurses, improving the skill level of the providers and ensuring better access to care. Cate and other state officials say California's expenditures on prison medical care, more than $10,000 per inmate, dwarf the spending levels in other states.

If he were to take control from Kelso, Cate said, he would analyze the receiver's construction proposals and other factors before deciding if any new medical facilities are needed.

"We certainly wouldn't do it in the way he has currently proposed," Cate said. "The receiver's plans obviously have a lot of good aspects to them, but they're definitely not cheap."

Henderson has already embraced Kelso's plans, ordering the state last year to turn over $250 million to the receiver. The state protested that ruling in the U.S. 9th Circuit Court of Appeals, where it remains pending.

Donald Specter, director of the nonprofit Prison Law Office, which brought the inmate lawsuit that led to the receivership, said the attorney general has taken contradictory positions on the receivership. In a related federal trial on prison overcrowding, the state's lawyers were positive in citing Kelso's efforts as a reason that a three-judge panel should not cap the inmate population.

State officials have long expressed hope that even if Henderson rejects their arguments, they may ultimately receive favorable rulings in the U.S. Supreme Court with respect to the receivership and the overcrowding issue.

Specter said that even though there are "five very conservative judges" on the Supreme Court, they might rule against the state.

"I wouldn't be surprised if they are kind of shocked at the level of harm and injury that prisoners are suffering," he said.

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michael.rothfeld@latimes.com

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