Should Taxpayers Be on the Hook for a Convicted Murderer’s Cancer Treatment?

Forty-four years ago, Shawn Jensen took two lives. Now, he's asking the state to save his.

On a Wednesday in March 1973, Kathy Koger and her boyfriend, James Burgoyne, decided to skip school and take a trip out to the desert instead. They’d both done well on their final exams, and figured they deserved a day off.

Their parents agreed, and that morning, the two got in James’ car and drove out to Saguaro Lake.

Jensen, a Vietnam veteran, was also on his way to Saguaro Lake. The sky was dark and overcast, and it had rained a few days before, causing him to think he was back in Vietnam. As he walked through the desert, he later testified in court, he could hear aircraft flying overhead and the rustling of canteens.

Climbing a hill, he thought he saw two soldiers from the North Vietnamese Army approaching. He pulled out his revolver and started firing.

Later that evening, when Kathy Koger and James Burgoyne still hadn’t returned home, their parents contacted the police. The teenagers’ bodies were found three days later.

Jensen plead not guilty, claiming insanity. He was convicted on two counts of first-degree murder, and given a life sentence without the possibility of parole.

A decade later, he asked for a new trial, citing the fact that he’d been diagnosed with PTSD, which hadn’t been classified as a mental disorder back in 1973. His request was approved, but the jury once again found him guilty of first-degree murder.

He was sentenced to life without parole for a second time.

Fast forward to 2017. Jensen is now 68, and has prostate cancer, which has metastasized and  become life-threatening.

Wednesday night, the ACLU of Arizona filed an emergency motion on his behalf, requesting a court order that would require the Department of Corrections to allow him to get a full-body X-ray scan so that his doctor can figure out how advanced the cancer is and come up with a plan for treatment.

“This is a really simple case of someone in urgent need of medical care,” says Kirsten Eidenbach, one of the attorneys on the case. “The longer we wait, the more risk he has of the cancer spreading in a way that becomes less and less treatable. His life is at risk — he’s in grave danger.”

Jensen is perhaps not the most sympathetic character, and it’s safe to say that Arizona taxpayers are not going to be thrilled about paying the medical bills of a guy who killed two kids. But Eidenbach says this is a matter of constitutional rights.

“The really important thing to remember is when the state takes on custody of someone, they take on the responsibility of that person’s medical care — regardless of what crime they were convicted of,” she says. “Incarceration is not license to torture.”

The Arizona Department of Corrections referred questions about Jensen's treatment, including why he was denied the full body X-ray that his doctor had ordered, to Corizon Correctional Healthcare. Corizon is a for-profit company that contracts with the state to provide medical services for inmates.

A spokesperson from Corizon tells Phoenix New Times, “While patient privacy laws and the action filed today prevent us from commenting on specific aspects of Mr. Jensen’s care, we have been providing medically necessary care and we are continuing to evaluate his medical needs and following his plan of care.”

This is only the latest iteration in the battle over Jensen’s cancer treatment.

First, he had to wait for nearly three years to see a urologist and get a diagnosis. Then, after his prostrate was removed, a nurse botched a procedure intended to fix his catheter, requiring him to get emergency surgery.

He became one of the lead plaintiffs on Parsons v. Ryan, a class action lawsuit brought against the Department of Corrections by the ACLU in 2012 on behalf of all 33,000-plus prisoners in Arizona prisoners.

The suit, which contained one horror story after another, argued that inmates were not receiving adequate health care, and were living in inhumane conditions — a violation of the Eighth Amendment, which prohibits cruel and unusual punishment.

The Department of Corrections ultimately agreed to a settlement in 2015, promising to get health-care treatment for prisoners up to par.

But, as New Times documented  last year, very little progress has been made.

Jensen is still receiving inadequate treatment, the ACLU says. He hasn’t been receiving injections of Lupron like he’s supposed to. He’s been to numerous different specialists, but their recommendations — an X-ray to see if the cancer has spread to his hip, a digital rectal exam to see if the tumor has returned — have been ignored.

“Substandard is a bit of an understatement,” Eidenbach says. “He’s been through catastrophic experiences because of neglect and mismanagement.”

It’s hard not to imagine how that sounds to anyone who’s ever missed taking their medication because they couldn’t make the copay, gone into debt to pay for chemotherapy, or failed to get treatment because they couldn’t afford to take time off of work.

But the Supreme Court has made it clear that ignoring an inmate’s medical needs constitutes “cruel and unusual punishment” — a violation of their constitutional rights.

And, unfortunately, there’s nothing in the Constitution that guarantees free health care to everyone else.

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