Articles Posted in Civil Rights

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An incident in Colorado, recently recounted by The Oregonian, offers striking insight into the culture of neglect in our prisons and the important role our courts must play in ensuring justice is done.

On the night of July 31, 2018, the newspaper reports, an inmate at a county jail in Denver “gave birth to her son alone in her cell without medical supervision or treatment, despite repeatedly telling the jail’s staff that she was having contractions, according to a federal lawsuit.” The paper reports that the entire incident was “captured on surveillance video.” Yet, astonishingly, “an internal investigation by the Denver Sheriff’s Department cleared its deputies of wrongdoing.”

To call this appalling is an understatement. As I noted in a blog last March, an 8-1 Supreme court ruling dating all the way back to 1976 (Estelle v Gamble) clearly established the right of prisoners to adequate medical care. The court wrote that “deliberate indifference to serious medical needs of prisoners” falls under the constitution’s prohibition of “cruel and unusual punishment.”

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The series begins with several examples of prison and jail deaths, followed by a stark statistic: “Since 2008, at least 306 people across the Northwest have died after being taken to a county jail.” Over the course of a three-part investigation published last week Oregon Public Broadcasting, working in cooperation with other public media outlets in Oregon and Washington, offered a detailed, and disturbing, look at the state of health care available to people jailed here in the Pacific Northwest.

Notably, the death statistic does not come from an official source. As OPB reports, “until now, that number was unknown, in part because Oregon and Washington have not comprehensively tracked those deaths in county jails.” In other words: it took a media investigation to determine the extent of the problem, one that OPB calls “a crisis of rising death rates in overburdened jails that have been set up to fail the inmates they are tasked with keeping safe.”

OPB reports that suicide is “by far the leading cause of jail deaths in the Pacific Northwest, (accounting) for nearly half of all cases with a known cause of death.” Yet the issues the series raises concerning negligence and indifference on the part of jail staff are also significant. The series offers a number of examples of inmates who died after being served food to which they were allergic, or whose complaints about serious medical issues were ignored.

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A lengthy article recently published in The New Yorker is shining a light on the extraordinary extent to which private companies have taken over health care in prisons. It is a trend that has grown quietly – and largely out of sight – over the last several decades, combining many of the worst elements of both our dysfunctional national health care system and the morally and legally ambiguous trend toward privately-run, for-profit, prisons.

The article details numerous cases in which private companies are alleged to have provided inadequate care whether through neglect or inadequate staffing and concludes: “Taken as a whole, evidence from cases across the country suggests that four decades of policy failures in both health care and criminal justice reform have left a largely neglected population vulnerable and, at times, at risk, and that for-profit companies, which were promoted as a solution, have instead become an integral part of a troubled system.”

Because prisoners represent a population with which many people have little sympathy, it is important to note here that cities, states and the federal government have a legal obligation to care for the people they lock up. “The standard of care that incarcerated people have a right to receive was established in the landmark case of Estelle v Gamble in 1976,” the magazine notes. In that case the Supreme Court ruled 8-1 that “deliberate indifference to serious medical needs of prisoners” violates the constitution’s prohibition against “cruel and unusual punishment.” As the article goes on to note, “Estelle also spawned a wave of civil-rights litigation seeking to enforce the Eighth Amendment protection,” a process which, over time, caused the standard of required care to become more precisely defined.

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A recent article in The Oregonian outlined what has become a depressingly common story: the abrupt disappearance of Saudi Arabian students facing criminal charges here in Oregon. The newspaper reports that it “has found criminal cases involving at least five Saudi nationals who vanished before they faced trial or completed their jail sentence in Oregon.”

The suspects “include two accused rapists, a pair of hit-and-run drivers and one man with child porn on his computer.” A 2014 case detailed by the newspaper fits the pattern: shortly after the man’s arrest a Saudi diplomat appeared at the local district attorney’s office to post bail for the accused student. Having made bail and been released the defendant later failed to appear for his trial. As the newspaper puts it, the “cases raise new questions about the role the Saudi government may have played in assisting its citizens fleeing prosecution in Oregon – or possibly elsewhere in the United States.”

Any conduct along those lines would be a serious violation of diplomatic norms. Questions like that lie outside the scope of this blog, but there are other issues raised by these cases that are of immediate concern to us here.

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This week The Oregonian carried the extraordinary story of a man who “was arraigned on 34 charges for allegedly recording colleagues at the Banana Republic Factory Store” on NE Cascades Parkway near the Portland airport. The 34-year-old allegedly placed hidden cameras in the women’s restroom at the store and recorded video of dozens of partially naked women, including children.

What is especially shocking is the revelation that the man had faced similar allegations at his previous job as a pharmacist with Kaiser Permanente. Last month the suspect “was arraigned on 71 similar charges for allegedly recording 51 men and women using the unisex bathrooms and changing rooms at the Kaiser Permanente facility” on Portland’s Northeast 138thAvenue. The man was fired after another employee “found a camera” in one of the bathrooms.

The article notes that some of the employees from the Banana Republic store are considering a civil suit. Two areas bear particularly close examination. First, there is the question of whether the Banana Republic store did everything it could to prevent this man, or anyone else, from invading employees’ privacy by installing secret cameras in the restroom. We need to know more about the nature of the cameras, where they were positioned, how they operated and how long they were in place. Most importantly, we need to consider what the store could have done to prevent this and other forms of employee misconduct. The U.S. Department of Labor’s website on workplace health and safety (see link below) lays out the standards all employers are expected to uphold. Difficult questions clearly need to be asked about how the store managed to get itself into this position in the first place.

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A recent investigation by The Oregonian found “that county employees had received reports of serious neglect or abuse” at what the newspaper describes as the city’s “premier mental health facility,” the Unity Center for Behavioral Health in Northeast Portland. These reports began to come in “within months of its opening in 2017.” In 16 cases “a police report should have been filed but none was found.”

This scandal fits a wider pattern that I have been writing about for several years. In day care centers, prisons and, now, mental health facilities people who have a legal obligation to watch for abuse are failing to do so. As I noted in a blog more than a year ago, laws that we often think of as focused on child abuse are, in fact, designed to protect vulnerable people more generally. Section 419B.005 of Oregon’s legal code sets standards for care and extends these to all forms of abuse and neglect. This state statute compliments 42 USC 1983, part of the federal legal code. Together, they make protection from abuse a civil right.

It offers little reassurance that once the cases were uncovered a spokesman for the Multnomah County Sheriff’s office told The Oregonian “thankfully that number (16) is relatively low compared to what we fear we may find.”

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A lengthy article published last week in the St. Helens Chronicle details a disturbing case of alleged prison abuse. According to the newspaper “a former inmate has requested a jury trial, seeking $500,000 for damages after an encounter with a K-9 while imprisoned in Columbia County jail this year.”

The case was filed in federal court earlier this month. Like other cases of prison abuse that I have written about in recent months it is a civil action built around 42 United States Code 1983. This statute requires state and local governments to enforce the rights that inmates and others are guaranteed under the eighth amendment to the US Constitution. 42 USC 1983 says that all people are entitled to “any rights privileges or immunities secured by the Constitution and laws” and that state and local governments must acknowledge and enforce these rights. As The Chronicle notes, this interpretation of the statute was upheld in a 1978 US Supreme Court Ruling (Monell v New York City Department of Social Services 436 US 658).

The St Helens case alleges that deputies at the county jail ordered a police dog to attack a prisoner in his cell, claiming falsely that the inmate was violent and uncooperative when, in fact, he had merely insulted a guard. According to the suit “the county and its officials… failed to provide adequate training to sheriff’s deputies with respect to constitutional limits on the use of force, detention, mental health, and inmate cell extractions and failed to adequately discipline or retrain officers involved in misconduct,” the newspaper reports. It also alleges that the deputies conspired to cover up their actions by filing false reports.

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Last month I wrote about private prison companies in a blog focused on prisoner medical care and civil rights issues. I want to return to that issue today, but shift the focus away from the privatization of public services and toward the services themselves.

A few days ago Oregon Public Broadcasting reported that “a Jefferson County grand jury has indicted three of the county sheriff’s deputies in connection with an inmate’s death last April.” The broadcaster reports that the deputies were charged with criminally negligent homicide, a felony. The broadcaster reports that “the attorney for at least one of the deputies said her client plans to plead not guilty.”

The charges stem from the death of a man who had been held in the county jail for two days following his arrest on drug charges in late April 2017. The victim reported to guards that he was not feeling well on the morning of April 26. “He was seen by nurses employed by the sheriff’s office,” but it was only later that same morning when he again reported being ill that an ambulance was called. By then, it was too late. The inmate died a short time later, according to OPB.

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A recent story published by Courthouse News Service details a legal case in Arizona that deserves to be making headlines nationwide. There has been a lot of media coverage over the last few years of the abuses of the private, for-profit prison industry. The Arizona case, however, highlights what can go wrong even when the state is still in charge. It also reminds us of the critical role our courts play in overseeing those with power and ensuring they do their jobs properly and humanely.

In Arizona, according to the news service, the state retained control of the prisons that are the focus of the lawsuit, but contracted out medical services to “Corizon, one of the nation’s largest prison health care providers.” Citing reporting by local NPR affiliate KJZZ, the news service writes that a Corizon staff member told a doctor working with the company part-time “to cancel a pending infectious disease consultation for a prisoner” because the consultation was past due and the company risked being fined for its slow response. The whistleblower also reported instances of critical medication, such as insulin, being withheld from prisoners and of her superior ordering her not to treat an inmate who had suffered a heart attack. She alleges she was told to spend less time with patients and focus on paperwork instead.

This case raises serious political issues, reminding us that the ‘savings’ offered by privatizing public services can sometimes be illusory. It also raises an equally serious civil rights issue. As I have noted in the past, federal, and many state, laws require that inmates receive a level of health care comparable to what they could expect to receive were they free. Failure to provide that level of care is a civil rights issue as defined in 42 US Code 1983. This statute protects anyone who has been deprived of “any rights privileges or immunities secured by the Constitution and laws” by the government at any level. Crucially, that responsibility extends to the government’s agents – in this case, private contractors. Corizon is a private company, but because it is working for the government, the government’s obligation to provide proper medical care extends to the company itself. Corizon, in legal terms, becomes a “state actor” because they are under contract to, in this case, Arizona to treat people who are, ultimately, in the state’s care.

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An article published just before the weekend in The Oregonian outlined a new effort to change the way the state handles juvenile jails in general and mental illness among juvenile detainees in particular. “Nearly a dozen organizations, including the ACLU of Oregon, as well as groups that advocate for people with mental illness and juveniles, asked Gov. Kate Brown for ‘support in reducing Oregon’s reliance on youth incarceration’ and ensuring better conditions for juveniles in custody,” the paper reports.

According to The Oregonian the initiative was “prompted by Disability Rights Oregon’s blistering critique of the Northern Oregon Regional Corrections Facility, known as Norcor, in The Dalles. The organization… found that juveniles were locked in their cells for hours at a time and punished ‘for looking around.’”

This new focus on the juvenile detention system follows equally sharp criticisms of Oregon’s child welfare system, something I wrote about at length last month. Taken together they paint a picture of state institutions ill-equipped to protect children who end up in the care of the government. The conditions described in The Oregonian’s account of the juvenile justice system are particularly shocking. The coalition report on Norcor in particular portrays it as an institution using “outdated policies designed to ‘break the will at any cost.’” This way of thinking, it adds, is “out of step with the latest research and practices on juvenile incarceration.”

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