"All right, I have to start off by saying that I, too, am skeptical about the proposed remediation plan," Duncan began, addressing the defendants. "[The] remediation lacks a sense of persuadability on its own standing ... and leaves me with little confidence to believe that what you are proposing is knowledgeable enough about the problem, specific enough, and has enough focus on it ... to make sure that it has a reasonable shot of accomplishing what we want to do."
The hearing, which took place on June 24 in Phoenix, was part of an ongoing settlement plan from a 2012 class-action lawsuit, Parsons v. Ryan, filed by the ACLU and Prison Law Office on behalf of 33,000 Arizona prisoners. The lawsuit exposed all sorts of systemic failures and long-standing problems in state prisons, and blamed the ADC for ignoring them.
As part of the 2014 settlement, the ADC was required to meet more than 100 health-care-related performance measures — everything from mental-health care to dealing with chronic physical problems, cancer, and pregnant inmates.
"[This] leaves me with little confidence that what you are proposing is knowledgeable enough about the problem, specific enough, and has enough focus." — U.S. Magistrate Judge David K. Duncan
The court also mandated that the prisons be subjected to routine checks, and about a year and a half ago, the defendants were found in noncompliance with dozens of the performance standards. So the ADC was told to design a remediation plan.
In early June of this year, the plan was completed and immediately raised red flags with the plaintiffs and the judge, court transcripts show. Within days, the plaintiffs filed a motion stating they had "grave concerns about the viability of the plan: "[It is] vague, lacks measurability, and largely fails to address the root causes of their substantial noncompliance," they wrote.
The June 24 hearing was arranged so Judge Duncan could weigh in, and as the scathing court transcripts show, he was unimpressed — to say the least. "I have to have some reason to believe that you understand what the problem is," he said at one point. "And when I read this, it makes me think that you don't understand what the problem is, and that, therefore, why should I think you have your hands on it grasped firm enough to be able to move forward in a constructive way?"
At one point he called the plan "wholly unpersuasive."
Summarizing what happened in the courtroom, ACLU attorney David Fathi, who represented the plaintiffs during the hearing, tells New Times, "Judge Duncan was frustrated with the vague and nonspecific nature of their plan, and said he expected them to come into compliance with the agreement they signed 1.5 years ago."
Fathi agrees. "We're going on a year and a half now that ADC has known exactly what it needs to do to comply with the agreement. The fact that they're still in gross incompliance really does raise the question about their willingness or ability to comply," he says.
Both Fathi and Duncan are particularly concerned with performance measure 85, which requires that any person who has recently gone off psychotropic medication be seen by a psychiatrist within 30 days.
"The fact that they're still in gross incompliance really does raise the question about their willingness or ability to comply." — ACLU attorney David Fathi
"When someone goes off medication, you need to monitor them. It's absolutely a standard of care in psychiatry," Fathi says. "And this was a measure they had been noncompliant with at every single prison in the last 10 months."
What's more, Fathi adds, "Their own documentation made it clear they weren't compliant because they didn't have enough staff. But their remedy was to reclassify a large number of people in this mental-health category so they would be in compliance, instead of hiring more staff."
Indeed, the ADC's remediation plan suggests that an internal review found that hundreds of inmates were improperly classified as MH-3D (i.e., just coming off psychotropics), which would in turn have overstated the number of patients for which prisons were failing to meet the 30-day window.
As can be seen in the transcripts, Duncan's gut inclination was to reject the plan outright and send the plaintiffs back to the drawing board.
"My first reaction, honestly, was just to reject it out of hand as being wholly insufficient," the judge said. "But then I thought: That maybe is not fair. Maybe, you know, [I should give] you a chance, because this is your proposal, offered in good faith, and [I'm] presuming that you wouldn't do something that you thought was doomed from the beginning."
In the end, the judge said, he'd decided to approve the remediation plan with the exception of performance measure 85, saying he'd let the defendants try again to meet compliance standards. If they do not, he warned, he will come down harder next time.
As for performance measure 85, he instructed the two sides to work out a middle ground for him to evaluate.
"As we said in our response, we're skeptical," Fathi says of the outcome of the hearing. "The fundamental problem is that they don't have enough staff, and this plan doesn't address this. If they think it's going to fix the problem, order them to do it and let them try. And if it doesn't work, we'll see them in court again."