Inmate Health Care Could Leave Governator in Contempt

A federal appeals court on Thursday began considering whether Gov. Arnold Schwarzenegger can be held in contempt for refusing to release money to improve inmate health care, testing the limits of federal intrusion into states' control of their prisons.

In a hearing before the 9th U.S. Circuit Court of Appeals, Deputy Attorney General Daniel Powell argued that a judge's demand for a $250 million down payment violates state sovereignty and federal law. A court-appointed receiver wants that money to go toward his $8 billion plan to build seven new medical and mental health facilities for the state's 33 adult prisons.

Powell told the three-judge panel that the plan goes far beyond what's needed to remedy the prison health care system. The state cited proposed amenities such as therapy rooms, basketball courts and bingo boards. Powell added that the state already has taken steps to improve care that has been ruled unconstitutional.

The demand for billions to improve inmate medical care comes during a time of "extreme fiscal crisis," the state argued. California is struggling to bridge a $42 billion budget gap, furloughing employees two days each month, cutting billions from education and social services and considering a variety of tax increases.

"It couldn't be a worse day for us to argue," said James Brosnahan, the attorney representing the receiver overseeing the health care reform efforts, J. Clark Kelso. "I wanted to get here before it got worse. It's just awful."

Nevertheless, Brosnahan said, the state cannot suddenly object to paying for facilities the Schwarzenegger administration has long agreed are sorely needed to keep inmates from dying unnecessarily.

U.S. District Judge Thelton Henderson of San Francisco had been preparing to hold the Republican governor in contempt until the appeals court stepped in.

The three judges gave no indication when they will rule on whether Henderson can proceed with a contempt hearing. But they seemed to side with Henderson and Kelso during 40 minutes of oral arguments Thursday.

"We're seeing a challenge to a lot of things that seem to have been agreed to beforehand," said Judge William C. Canby Jr. He and Judge Mary Schroeder noted that the state had repeatedly consented to the receiver's plans before reversing course last summer.

He also objected when Powell, the state's attorney, argued that the federal Prison Litigation Reform Act, which took effect in 1996, prohibits judges from ordering states to build prisons. "That doesn't prohibit anything," Canby responded.

The third judge, Michael Hawkins, said he's sympathetic to the state's dilemma but suggested the state could have made its arguments to Henderson and awaited his decision before appealing.

Powell said the state had to act to prevent a drain on its treasury. The state doesn't have the $8 billion needed for the prison improvements because state legislators did not approve Schwarzenegger's request to borrow the money.

Brosnahan countered that the $250 million down payment already has been set aside by lawmakers, while the final cost to the state has yet to be decided.

Kelso last week offered to scale back his plan for housing 10,000 physically and mentally ill inmates.

Kelso said his $8 billion plan is the best and quickest way to improve care so poor that inmates regularly die from suicides or neglect. But he said the courts and state could opt for a $2.5 billion plan to build three medical facilities -- an option that would not help mentally ill inmates.

Though legislators and the administration have balked, the state still could borrow the money to spread out the cost over many years, Kelso said in a phone interview. Kelso said he would not "back the truck up to the treasury" as the state slashes other programs.

The state also may need slightly less space for mentally and physically ill inmates because a different panel of federal judges on Monday said they plan to order the state to lower its prison population by around one-third over the next several years.

Class-action lawsuits over prison crowding and inmate health care are among many, sometimes conflicting, interventions by federal and state courts. Attorney General Jerry Brown said Wednesday that California prisons operate under more than a dozen court injunctions governing everything from employee discipline to the treatment of inmate dental problems and the due-process rights of parole violators.

Wednesday's court hearing pitted an irresistible force -- the federal courts -- against an immovable object -- the state of California.

"The receiver will never get that money," Schwarzenegger promised last month as the state filed a still-pending motion to have Kelso removed and the receivership ended. That would return control of prison medical facilities to the state.

Both attorneys said they are optimistic after the hearing.

"They certainly, I think, understand the massive scope of what the receiver is proposing and are concerned about it," said Powell.

Brosnahan said: "We have the United States Constitution on our side."