Prisons health monitor won’t relinquish post
The deadly outbreak of COVID19 at San Quentin State Prison resulted from a mass transfer of inmates from a virusplagued prison in Southern California, a transfer approved by J. Clark Kelso, the courtappointed receiver in charge of health care in the state’s penal institutions. A legislator whose district includes San Quentin says Kelso should be fired from the job he has held since 2008.
“The federal receiver is responsible for medical care in the prisons” and should be held to account for “the incompetence and negligence that has resulted in the worst prison health screwup in state history,” Assemblyman Marc Levine, DSan Rafael, said in an interview.
A shakeup does not seem to be in the works. The federal judge who oversees Kelso has not removed him despite denouncing the decision to transfer the prisoners. Lawyers for inmates who sued the state over prison health care say Kelso bears some blame for the deaths at San Quentin but have not
argued for his removal. Kelso himself has acknowledged responsibility but is not stepping down.
Still, the outbreak, which has caused nearly 1,200 diagnoses of COVID19 among inmates at San Quentin and claimed at least 12 lives — a Death Row inmate died Monday — in a prison previously free from known cases of the coronavirus, warrants a closer look at the troubled history and management of prison health care in California.
State prisons are usually in charge of their own health care. But nearly 15 years ago, a federal judge found that shoddy medical care was killing more than one inmate per day, and ordered California to transfer health management in its overcrowded prisons to a courtappointed overseer. Six years later, the U.S. Supreme Court ordered the state to address the health care crisis by reducing its prison population by more than 30,000.
Today, the prison population has dropped to courtordered levels, though it remains 25% above the prisons’ designed capacity. Kelso, who took over the job in 2008 after his predecessor was removed by the court, recently returned some management authority to the state, but still shares responsibility with Gov. Gavin Newsom’s administration for the health care of California’s 110,000 prisoners.
In late May, Kelso’s office approved the transfer of 121 aging or medically vulnerable inmates from the California Institution for Men in Chino (San Bernardino County) to San Quentin. The Chino prison had more COVID19 cases than any other state prison, though all 121 inmates had tested negative for the coronavirus.
But information soon surfaced that some of the tests had been conducted four weeks earlier, leaving ample time for the men to become infected before leaving. On the bus trip north, as The Chronicle reported , four men showed symptoms of the disease.
At San Quentin, the new inmates were not quarantined, but instead were placed in barred upstairs cells where their vapors drifted out and downward to cells in lower floors.
The nearly 1,200 cases diagnosed since the transfer are more than half the state prison system’s total, according to prison officials. In addition, 234 prison staff members have been diagnosed with the coronavirus, more than twice as many as at any other prison.
More than 160 new cases have also been reported at the state prison in Corcoran (Kings County), where other inmates from Chino were transferred.
In the uproar that followed, there has been one personnel change: The prison system, with Kelso’s approval, removed Dr. R. Steven Tharratt as its top health official in charge of daytoday medical operations, transferred him to Kelso’s staff as a special adviser and replaced him with another physician, Joe Bick.
During a conference call with lawmakers in late June, Assemblyman Levine said, Kelso called the prisoner transfers a “big mistake” and a “selfinflicted wound” but did not offer to step down. He made similar statements at a state Senate committee in June.
At a hearing a few days before the conference call, U.S. District Judge Jon Tigar of Oakland described the transfers as a “significant failure of policy and planning” but did not express any intent to fire Kelso, which is within Tigar’s sole authority. Tigar inherited the case after U.S. District Judge Thelton Henderson, who had established the receiver’s position in response to a lawsuit by inmates, retired from the bench in 2017.
Kelso is a professor at McGeorge School of Law in Sacramento who formerly served as the state’s chief information officer and acting insurance commissioner. Directed by Henderson to return prison health care to the state as soon it could be done safely, he transferred medical authority at 19 of the 35 prisons — including San Quentin, the California Institution for Men, and Corcoran — back to the Department of Corrections and Rehabilitation in 2018.
But Kelso still has statewide supervisory authority. In an interview last week, he said he takes responsibility for what went wrong but will not depart voluntarily.
“I don’t think this was a oneperson mistake — but, having said that, I’m the one at the top,” he said. “The buck stops with me.”
When the coronavirus first surfaced at the Chino prison in early April, Kelso said, he and Ralph Diaz, the secretary of Corrections and Rehabilitation, decided to drop a ban they had imposed on interprison transfers and move inmates who were considered vulnerable because of their age or medical condition. They relied on standards that prison health officials had drafted weeks earlier, with Kelso’s approval, allowing transfers of prisoners who had tested negative for the virus.
“We were getting test results in three to five days back then” and weren’t aware that by the time of the Chino outbreak, the waiting period in the system was as long as four weeks, Kelso said.
By then, however, Kelso’s staff had medical files on every inmate they planned to transfer, saying how long it had been since they were tested. Tigar said in an order last month that the files showed waiting periods of several weeks in many cases. It’s not clear whether Kelso himself had examined the files.
The transfers were “a mistake that had very big consequences,” Kelso said. “This is my responsibility on the health care side,” since neither he nor anyone else in charge could expect “officers in the field to realize that we have to worry about when the test was.”
Now, he said, “we’ve taken steps to make sure it doesn’t happen again.” New standards are being drafted that will allow transfers only if an inmate has tested negative in the past week, an interval that is safer though not foolproof, Kelso said. In the meantime, he said, there will be no largescale movements of prisoners, only “essential” ones.
A lawyer for inmates who sued the state over prison health care in the 1990s isn’t calling for Kelso’s removal but says he and his office deserve some of the blame for the San Quentin outbreak.
“It should have been obvious to somebody that you don’t put somebody on a bus with other people to prevent them from getting COVID when some of the people on the bus haven’t been tested for three or four weeks,” said attorney Donald Specter, executive director of the nonprofit Prison Law Office.
Hadar Aviram, a law professor at UC Hastings in San Francisco who is not involved in the court case, said this isn’t the time to point fingers.
“I don’t think it’s nearly as important to cast blame as it is to save lives,” she said. “After the dust settles, we can check who was responsible for the botched transfers, etc., but right now the priority is to release as many people as possible, with age and medical condition being the primary considerations.”
Family members of San Quentin inmates and other protesters have been demonstrating outside the prison’s gates, demanding that hundreds be freed. This month, Newsom ordered the release of approximately 8,000 prisoners, including an undetermined number from San Quentin.