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SUSPECT CARE

N.M, like many states, has resisted calls for independent monitoring

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Lynn Otero, whose 36-year-old son, David Otero, has been incarcerated since his early 20s, said she’s been driven to her wits’ end trying to ensure he receives mental health care and treatment for throat cancer. She’s considering hiring an attorney, but so far, she said, she hasn’t been able to get the state Corrections Department to send her son’s medical records so she can show them to a lawyer.

She knows part of the problem is that she doesn’t read and write well, so she can’t request things in writing and wouldn’t completely understand the documents even if she got them.

Lynn Otero

“I called the prison requesting those papers like five times, and they won’t give me any information,” she said. “It’s like I’m being ignored. I have medical power of attorney, and they still won’t give it to me. … I’ve even called the governor to help me.”

For the families of inmates — many of whom lack education, money or connections — advocating for relatives in the system can feel maddeningly futile. And because New Mexico has no independent prison monitoring system or ombudsman, inmates and their families have little choice but go to court — a path that has been made increasingly difficult since the passage of the federal Prison Litigation Reform Act of 1996, aimed at stopping frivolous lawsuits.

New Mexico’s prison oversight system is so threadbare that despite a growing number of lawsuits against Corizon Health, which provides health care for 10 of New Mexico’s 11 state prisons, the company was allowed to operate largely unregulated, according to a six-month investigation by The New Mexican. The newspaper found that the state Corrections Department sometimes went years without auditing the company and state lawmakers largely ignored it.

The state is among many that have resisted calls over the years for independent monitoring from groups like the American Civil Liberties Union and the American Bar Association.

“Prisoners as patients are perhaps the most disempowered and voiceless patient group you can talk about,” said Carl Takei, a staff attorney for the ACLU’s National Prison Project. “Not only are they a group that is unlikely to receive sympathy from many voters, but there are structural reasons having to do with the prison environment why it’s very difficult to successfully complain about the quality of one’s medical care or receive redress when you receive poor medical care.”

Michele Deitch

Michele Deitch, senior lecturer at the Lyndon B. Johnson School of Public Affairs for the University of Texas at Austin, whose academic research focuses on prison oversight, said a national body that monitors prisons is “routine in every Western nation except the United States.”

Deitch’s research found few states have such bodies. A study she authored that was published in the September 2010 edition of the Pace Law Review provides an inventory of prison monitoring or oversight bodies in all 50 states.

“Although this report is thick with examples of entities that perform (or have the authority to perform) some kind of oversight function, it should be clear upon closer examination that formal and comprehensive external oversight — in the form of inspections and routine monitoring of conditions that affect the rights of prisoners — is truly rare in this country,” her study concluded.

This interactive map shows layers independent prison oversight measures states have implemented. The author of the 2010 study examined eight categories of oversight. New Mexico, like most states, had none. Only one state, California, had three. The author, Michele Deitch, a University of Texas senior lecturer, recently began updating the study and said not much has changed. Hover over any state to see detailed information on independent monitoring.

Source: A September 2010 study titled "Independent Correctional Oversight Mechanisms Across the United States: A 50-State Inventory."
Interactive graphic by Dan Schwartz/The New Mexican

Of eight categories of independent oversight, including commissions, ombudspersons and inspector generals specifically responsible for monitoring prisons, Deitch found that New Mexico was one of 25 states that had none. She said in an interview that she’s currently updating the inventory, but not much has changed.

“I think it’s important to have multiple layers of oversight so it creates accountability and transparency,” she said.

Deitch said she does not advocate for any particular oversight model to provide accountability and transparency in prisons. But, she said, any such government body should give monitors regular and unfettered access to prisons and prison records. Such models should also set standards for prison administrators and punish those who violate them.

“It’s a preventative mechanism,” she said.

The value of oversight boards was illustrated in Florida in September. The state’s Correctional Medical Authority found “life-threatening” delays in treatment at the Florida Women’s Reception Center, including a diabetic inmate who went without insulin for two to three months, an inmate with a golf ball-sized lump behind her ear who was a denied an MRI, and missing and incomplete records for 1,000 inmates. The medical provider was Corizon.

A review by The New Mexican of thousands of pages of internal audits, lawsuits and grievance records found similar complaints by New Mexico prisoners.

Since Corizon took over the medical services contract for New Mexico prisons in 2007, more than 200 inmates have filed lawsuits against the company. Corizon officials said the volume of lawsuits was not indicative of the care it offered and that prisoners are a “highly litigious” population.

But prisoners face difficult hurdles before they can file lawsuits. The obstacles include state and federal laws that require inmates to exhaust internal grievance processes, which can take months, before they are allowed to file court cases. Records needed as evidence are sometimes in disarray, illegible or lost. Some inmates say they fear retaliation by prison staff if they launch a grievance. Corrections Department policy strictly forbids such retaliation, but it is a recurrent theme in lawsuits.

The New Mexico Legislature, a traditional check on the executive branch of state government, has not paid much attention to the state’s contract with Corizon. In 2015, the state Senate passed Senate Memorial 132, which directed the corrections secretary to establish a task force to study “ways to optimize quality and efficiency” within the prison health care system. But in the year since the memorial passed, the task force has only met twice.



The Legislature’s Courts, Corrections and Justice Committee has only discussed the company twice in the last four years, once when Corizon won a contract renewal in 2012 and again in August 2014, when some members of the panel asked to be reminded about who had the contract and prisoner rights advocates briefed lawmakers on oversight issues.

Rep. Yvette Herrell,
R-Alamogordo

Rep. Yvette Herrell, R-Alamogordo, a member of the committee, attended the August 2014 meeting.

“I’m not so familiar with Corizon and the services they’re providing,” she said last week. “… Clearly, the medical services for the inmates is a huge concern and a huge expense.”

Rep. Antonio “Moe” Maestas, D-Albuquerque, a committee member and a lawmaker for almost 10 years who has argued for criminal justice reform, also couldn’t readily identify Corizon’s role when a reporter asked about the company. He called the Corrections Department the most “unaccountable” state agency and said the Courts, Corrections and Justice Committee hasn’t provided much oversight of the Corizon contract, in part because of the broad scope of the panel’s work, which includes all aspects of criminal and civil law.

The Legislature has been giving the Corrections Department a “blank check,” he added, because lawmakers don’t want a repeat of the 1980 prison riot in Santa Fe.

“There is no legislative oversight on these major, major contracts,” he said. “These contracts are in the tens of millions of dollars. It’s completely, completely run by the executive branch, and the leadership of the [Corrections Department] has pretty much carte blanche to contract with these major companies.”

Corizon’s contract with the state is scheduled to expire at the end of May, and it is among companies competing to win the new contract. Corrections Secretary Gregg Marcantel said the new contract will provide stronger oversight provisions, but he declined to provide specifics.

But so far, no one has called for an independent monitor. Prison advocates say cases like David Otero’s clarify the need for prison monitors or ombudsmen.

Awaiting care

Inmates at the Central New Mexico Correctional Facility await care in a holding room. Complaints from inmates and lawsuits call in to question whether New Mexico should institute an independent monitor to ensure contractors like Corizon Health, the nation's largest provider of prison medical services, meet the expectations of the state. The company's state contract expires in May, but no calls have yet been made for an independent monitor. Luis Sánchez Saturno/The New Mexican

Lynn Otero said her son was born with frontal lobe damage, is developmentally disabled and has a seizure disorder. He’s also had surgery for throat cancer, she said, “but the lumps are back and he’s losing weight. It’s not good.”

David Otero first went to prison for hijacking a car and then crashing into another car, injuring the people inside. He was only supposed to spend a year or two locked up, his mother said, but his mental health issues caused him to act out. He’s picked up new charges in prison that will likely keep him there for the rest of his life.

“They don’t like him in there,” Lynn Otero said. “They don’t understand him. He does have a mental health issue, so he’s not easy to deal with. … And the minute he steps out of line, it’s another five years, another seven years.”

Her son now faces 28 more years in prison. “I’m trying to get him into a mental institution, where he belongs,” she said.

She said a doctor has recommended that her son get an ultrasound for a lump in his throat, but the prison hasn’t taken him for the procedure. “They write it down and give paperwork to the guards, but weeks go by and they keep making excuses,” she said. “He hasn’t seen his cancer doctor for eight months. … The cancer is not going to go away by itself.”

David Otero frequently has seizures that cause him to collapse and become incoherent. “Nine times out of ten,” his mother said, she only finds out about these episodes when other inmates or their family members call her.

When that happens, she said, she calls the prison and demands answers and will sometimes get “a little snippet” of information, but her advocacy often backfires.

“They haven’t let him have any visits because we shake the cage,” Lynn Otero said. “They don’t like it when a family starts rattling the cage. But we’re rocking the boat because he’s in trouble. What are we supposed to do? He only calls once in a blue moon, and we’ll get cut off if he starts talking about it. I don’t know what do anymore. I’m just praying to God that somebody can help me.”

Asked if it would be helpful to have an independent ombudsperson or board to go to, Linda Manzanares — Lynn Ortero’s longtime partner — said, “Absolutely.”

“There is such a disconnect. A lot of time people think a middle man is a bad thing,” Manzanares said, “but in this case, I think it could be a good thing to have an independent party or person who doesn’t have anything to gain or lose on either side.”

Prison workers, she said, are sometimes “afraid to help you or tell you things because they are afraid of the consequences. … If there was a middle party that didn’t have to fear for their jobs, it would be a lot better.”

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