SAN FRANCISCO (CN) – Suicide rates remain “sky-high” among California prisoners with mental illness, an attorney told a Ninth Circuit panel Tuesday, because the state refuses to adhere to its own timeframes for providing them with psychiatric care.
All three judges on the panel appeared to disagree with the state’s argument that failing to comply 100 percent with timeframes ranging between 24 hours and 30 days for transferring inmates between levels of care doesn’t amount to cruel and unusual punishment.
California contended in part that the timeframes, formalized under court supervision in 2006 to address previous Eighth Amendment issues, go above and beyond the amendment’s minimum requirements – so failure to comply 100 percent of the time doesn’t constitute a violation.
But the panel said the state had already been allowed to comply less than 100 percent of the time via court-approved exceptions to the timeframes – such as delays associated with medical or legal issues – and that the state itself had deemed any delays outside those exceptions a constitutional violation.
“[I]t was concluded with the state’s acquiescence that 24 hours was essentially necessary to cure the Eighth Amendment violation that was occurring,” U.S. Circuit Judge Paul Watford told Kevin Voth, the state’s attorney, on Tuesday.
“As of at least 2017, some substantial number of inmates was taking longer than that, so you were all not in compliance with what the program guide spelled out,” Watford continued. “And what was the district court supposed to do other than say, ‘Look, you need to comply with this, I’m serious, we’re not playing games here. I recognize that there are going to be situations outside the state’s control and we’ll work on developing those exceptions, but in all other cases, you do have to do it within 24 hours.’ I don’t see what’s wrong with that.”
Senior U.S. Circuit Judge Mary Schroeder agreed.
“Are you arguing that the court should have said you only have to comply 90 percent? Because that seems rather arbitrary,” she said. “It would seem sensible to say, comply with it, and then if there are instances in which there’s not compliance, there could be, of course, discussion for whether there should be some kind of sanction.”
When Voth countered there must be a “current and existing constitutional violation” to grant relief under the Prison Litigation Reform Act, Senior U.S. District Judge Edward Korman replied, “And they found that.”
Korman is sitting by designation from the Eastern District of New York.
The case stretches back to 1990, when prisoner Ralph Coleman filed a federal class action on behalf of prisoners with serious mental illness over California’s failure to provide timely psychiatric care, according to court documents.
Finding “delays everywhere” exacerbating “illness and patient suffering” in violation of the Eighth Amendment, the trial court in 1995 appointed a special master to help the state fix the violation, according to the class.
In 2006, the court formally approved a revised plan requiring that prisoners in psychiatric crisis be hospitalized within 24 hours. Transfers to acute inpatient care must be completed within 10 days of a clinician’s referral, and to longer-term inpatient care within 30 days.
But the delays continued. In March 2017, U.S. District Court Judge Kimberly Mueller of Sacramento found the delays were resulting in patients being held in settings unequipped to provide the emergency care required to stabilize them, according to the class.
The following month, Mueller ordered the state to attain 100 percent compliance with transfer timeframes.
Class counsel Lisa Ells countered Tuesday that, despite what the state’s attorneys say, Mueller didn’t “suddenly” require California to achieve perfect compliance with its transfer timeframes –the state has been under court order to comply for more than a decade.
Ells, who is with Rosen Bien Galvan & Grunfeld, described the effect of the delays on prisoners Tuesday.
Suicide rates “remained sky-high, far above the national average,” according to a 2017 report by the California State Auditor, Ells said, because the state failed to implement its own suicide-prevention policies.
A suicide prevention expert’s report that same year found prisoners were still being housed in “horrendous, outrageous settings” while awaiting crisis care, Ells added.
“There were people strapped to gurneys for three days, who were suicidal, who urinated all over themselves because they were waiting for crisis care. There were people not observed – as they were required to be by defendants’ policies – who killed themselves,” she said.
“Defendants like to say those are outlier examples in 2017,” she said. “The suicide prevention expert found 40 percent of the institutions he reviewed were not compliant with their suicide prevention policies. That’s not an outlier.”
The panel did not indicate when it will rule.