PHOENIX — Attorneys for Arizona prison inmates are telling the U.S. Supreme Court it should reject a last-ditch bid by the state to delay wresting away control of its health care system.
In a new filing, the lawyers detailed the 14 years of litigation, millions of dollars in fines, agreements by state officials to do better and an injunction telling the state to ensure that 25,000 inmates in state-run facilities get the physical and mental health care they are entitled to under the U.S. Constitution. In fact, they noted, the state actually agreed to abide by that 2023 injunction.
But they pointed out that, even now, Arizona's Department of Corrections, Rehabilitation, and Reentry admits it still isn't meeting the legal standards.
All that resulted in U.S. District Court Judge Roslyn Silver appointing a former Ohio prison official to take over by Oct. 19.
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Yet the attorneys from the American Civil Liberties Union and the Prison Law Office said that prisons director Ryan Thornell is asking for more time to fix the problem — and do it himself and without a court-appointed receiver. And they are telling Justice Elena Kagan, who handles such immediate issues for Arizona and surrounding states, that she — and her colleagues — should reject the request.
"In practical terms, these failure have resulted in widespread and shocking medical and mental health neglect,'' they wrote. "People incarcerated in Arizona's prisons are dying unnecessarily.''
And the lawyers said that Silver, who had tried for years to get the state to comply with what is legally required, was justified in taking the unusual — but not unprecedented — step of appointing a receiver to run the health system.
"In order to protect people who are confined in Arizona's prisons from suffering the same cruel fate as others before them, the court imposed a remedy that under these circumstances is the least intrusive means of preventing further unconstitutional conduct,'' the attorneys told Kagan. And they said she should reject the request to delay Silver's order "so that the receiver can begin the important work of implementing the injunction — work that all parties agree is essential to save lives in Arizona's state prisons.''
Attorneys for Arizona prison inmates say in a new court filing to the U.S. Supreme Court that it should reject the state's latest effort to delay a court-ordered takeover of its health care system.
The state's petition to the Supreme Court came after Silver refused to reconsider her order.
"It is indisputable that plaintiffs and other parties interested in the proceeding continue to be harmed by the unconstitutional health care conditions in Arizona state prisons,'' Silver wrote. "And the longer the conditions are allowed to persist, the more injury plaintiffs suffer.''
The 9th Circuit Court of Appeals was not interested in overturning her order. That leaves the nation's high court as the only way to forestall Annette Chambers-Smith from taking over next month.
In its petition, the state's lawyers do not dispute that Arizona prisons are not yet meeting the legal standards for care. But they said that a better alternative would be for Silver to impose some sanction short of seizing control of the prison health care system.
And, in seeking high court intervention, they are telling the justices that they should consider carefully the act of giving critical functions of a prison system into private hands — particularly while they pursue an appeal of the judge's original order.
But the lawyers for the inmates spelled out in detail the efforts that have been made since the lawsuit was filed in 2012 to gain compliance — and why the state can no longer be trusted to provide adequate care for those in its custody.
That included millions of dollars in fines — going back to the administration of Gov. Doug Ducey — along with assurances from the state that fixes were being made.
They weren't.
In 2022, Silver issued a 200-page list of problems, saying care remained "plainly grossly inadequate'' and that state officials were acting "with deliberate indifference'' to the substantial risk of harm to inmates. That was followed by the injunction in 2023 telling state officials what needs to be fixed, complete with specific staffing and care requirements.
Attorneys for the state argued that the justices should ignore everything that happened before 2023 and instead focus on what has been done since then when Gov. Katie Hobbs installed Thornell to run the entire prison system. They said progress is being made and he should be given more time before control of health care is wrested away.
The lawyers for the inmates told Kagan not to buy that argument.
"Even if the department were correct (but it is not), the lower court carefully considered that argument and determined that insufficient progress had been made in that time period to warrant another remedy'' short of appointing a receiver, the attorneys said in their new filing.
They also argued that Silver, having decided a receiver was necessary, acted responsibly.
First, they noted, the decision to select Chambers-Smith. Not only is she a former prison director from Ohio but actually was a name suggested by the state.
It is true that Chambers-Smith will have broad powers, including the ability to hire and fire people and to modify the contracts the state has with NaphCare, the private company the state hired to provide the care for inmates.
But the receiver will not have unlimited authority to order the state to spend money.
"The court set up a process requiring notification and consultation with state officials before the court would even consider a motion for more funds,'' the inmate lawyers told Kagan.
The bottom line, they said, is that Silver concluded that she really had no alternative but to appoint a receiver.
They pointed out to Kagan that the trial judge concluded that, after 14 years of litigation and various efforts to remedy the situation, the state does not have "even a semblance of compliance with the injunction and the Constitution.'' And the judge said that allowing things to go on without a receiver "would be nothing short of judicial indulgence of deeply entrenched unconstitutional conduct.''
"Plainly, only the imposition of the extraordinary can bring an end to this litigation and the reasons it was brought,'' Silver wrote.
"An end to unconstitutional preventable suicides,'' the judge continued in her order. "An end to unconstitutional preventable deaths. An end to unconstitutional failures to treat those in severe pain.''
No date has been set for Kagan to either rule herself on the state's request to delay the receiver or for her to ask the full court to weigh in.
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
