Whichever way Supreme Court Justice Anthony Kennedy votes on the constitutionality of Obamacare, the people of his native state California need only get convicted of a serious crime, particularly if it involves violence, as a sure way to get adequate health care.
Those convicted of “non-non-non crimes”–non-serious, non-violent, non-sex related–are liable to get early release as a result of the Supreme Court’s 2010 ruling that the state must reduce prison overcrowding in order to provide adequate medical, mental and dental health care.
Petty thieves and the like can get freed and have no more claim to health care than an honest citizen.
Killers, rapists, and armed robbers, on the other hand, are free of health-care worries until they make parole, if they ever do.
The court ruled 5-4 that the absence of adequate care for prisoners violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The majority decision was written by Kennedy.
“Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care,” Kennedy said. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”
In an added twist, J. Clark Kelso, the overseer of California’s effort to comply with the order was a law clerk to Kennedy in the early 1980’s. He says that he gets the same question wherever he goes: “How come we’re giving felons better health care than I get?”
The question is invariably phrased in personal terms. Nobody ever seems satisfied by the answer.
“Once the government has taken someone into custody, that triggers a basic obligation to provide basic necessities of life,” Kelso says. “You have to provide food, water, shelter, and health care.”
Kelso is a law professor and sums it up thus: “The Constitution doesn’t guarantee everybody health care. Life, liberty and the pursuit of happiness, but not health care.”
He adds, “That’s why we’ve had a big national discussion about providing health care, because the Constitution does not guarantee that. The courts say you have to look to the political section to answer the question, ‘Where’s my health care?’”
He reports that this explanation only seems to leave his questioners more puzzled.
“They just sort of look at me like, ‘Who’s this crazy law professor?' They just shake their head.”
For his part, Kelso notes, “The world’s upside down.”
Those who retain that constitutional guarantee for life include a war hero turned convicted killer who filed the initial lawsuit two decades ago, pro se, without benefit of a lawyer or a legal education.
Back in 1966, Ralph Coleman was a 23-year-old Marine sergeant in Vietnam. He was part of an offensive known as Operation Prairie when his squad came under intense fire. The citation for his Bronze Star notes that he held off the enemy with grenades and automatic weapon fire and supervised the evacuation of five fellow Marines.
“I was just doing my job, what I had been trained to do,” Coleman later said.
In 1978 Coleman was working as a janitor in Sacramento, hometown to both Kelso and Kennedy. Coleman got into an argument with his wife over a debt. He grabbed a rifle and shot her in the head, then preceded to an upstairs bedroom, where he shot and killed his 9-year-old son and his 16-year-old niece. He fired at his daughter, but missed and went back downstairs.
A few minutes later, the daughter ventured from the bedroom and came downstairs when Coleman called her name. She somehow knew to hug him. He said he was sorry and put her on the phone with his sister, who advised her to leave immediately. She did so and when the police arrived at the home Coleman was sitting on the sofa with his face in his hands. His neighbors told police that he had always been an attentive father and was often seen playing catch outside with his son.
Coleman was found legally responsible for his actions but diagnosed as mentally ill as he began a life sentence. He was briefly treated at the California Medical Facility in Vacaville, and later sent to Pelican Bay State Prison, where the mental-health staff for 3,500 prisoners consisted of a single person with a Master’s degree in psychology.
The civil-rights suit Coleman filed in 1991 seeking mental-health care came to the attention of a fledgling volunteer lawyer named Donald Specter at the Prison Law Office in Berkeley, Calif. Specter made it the basis for a class-action suit, which was eventually paired with a suit filed in 2001 by an inmate named Marciano Plata seeking adequate medical care.
In 2008 a federal court appointed Kelso to oversee the states’ efforts to provide medical care consistent with the Eighth Amendment. A panel of three judges then ruled that the state would only be able to do so by reducing overcrowding. The state resisted and in 2010 the Supreme Court agreed to consider Brown, Governor of California, et al. v. Plata et al.
“Who would have thought?” Specter says.
Twenty years after he happened upon Coleman’s pro se suit, Specter found himself arguing for prisoners’ rights before a court whose more conservative members are hardly known to be warm and fuzzy about such matters. He dared to become hopeful when Kennedy seemed receptive to his arguments.
“I thought, ‘We have a shot, we just might win this,’” Specter recalls.
In May 2011 Specter checked the Supreme Court website with his smart phone, a device that was still science fiction back when Coleman first filed his suit. The court had ruled in favor of every inmate in California.
“That was like winning the Super Bowl for a lawyer like me,” Specter says. “Amazing!”
Kennedy and the other justices are now pondering whether the political side of government overstepped its bounds in a bill that was essentially a compromise aimed at providing affordable health care to as many people as possible absent a universal guarantee such as convicts enjoy.
Kelso offers no predictions.
“We’ll see what the court does,” Kelso says.
Kelso is sure from his own experience with California prisons these past four years that with a proactive plan and a consistent strategy, a government health-care program can succeed over time.
“It doesn’t happen overnight,” he says. “If you take a little bit of time to plan and if you’re given a little space to do it, government actually does work and can be made to work.”
The prison population has declined by 20,000 of some 150,000, with no accompanying horror stories, despite Justice Scalia’s talk in his dissenting opinion that the prisoners freed to facilitate medical care “will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”
Kelso has managed to cut costs by capping outside billing and employing HMO-like screening for specialized care while dramatically improving the medical staff and computerizing the records system. And the improvements build on themselves as staff attitudes change.
“They sort of recognize, ‘Oh, were doing medicine here. It’s not the Third World,’” Kelso says.
He is sure that some of these same strategies would prove useful in Obamacare, should it survive the court. He is also certain that we are capable of successfully providing health care even to those outside prison, should we ever decide it is everyone’s right, even though the Constitution fails to decree it.
“If the federal government wants to simply move to a single payer, no question you could provide health care,” he says, “That’s just absolutely clear.”
Meanwhile, the man who started it all was belatedly presented in prison with the Bronze Star he had been awarded in Vietnam but never actually received. Coleman continues to serve his life sentence and is presently at the California Men’s Colony, where he is said to have a perfect disciplinary record and to be active in veterans affairs.
He apparently no longer has immediate need of mental-health care, but he can now obtain adequate medical care such as the court has ordered for everyone behind bars.
The rest of us are still waiting.