SYMPOSIUM:
CRUEL AND UNUSUAL PUNISHMENT:
LITIGATING UNDER THE EIGHTH AMENDMENT
PRISON HEALTH CARE, POLITICAL CHOICE, AND THE
ACCIDENTAL DEATH PENALTY

Elizabeth Alexander*
In Hadix v. Caruso, I represent a class of prisoners in a decadeslong case challenging conditions of confinement, including medical
1
care, at various Michigan prison facilities. Since August 2006, I have
been haunted by the death of one of those prisoners because, in retrospect, his death appears to be the inevitable by-product of a prison
system swollen beyond any historical precedents, or its ability to manage such a huge number of people safely. Prisons are in fact extraordinarily difficult to operate safely and humanely, and the United
States will continue to fail to do so absent a fundamental change in
criminal justice policy. This Article seeks to trace some connections
between a dysfunctional criminal justice policy and the death of one
man.
Prison systems like Michigan’s have been allowed to operate unsafe prisons because the federal courts have failed to provide an effective form of oversight, and no other form of serious oversight exists in the United States. In a series of decisions, the Supreme Court
has preserved the form of Eighth Amendment challenges to conditions of confinement, but little of the substance, by allowing severely

*

1

Elizabeth Alexander is the Director of the National Prison Project of the American Civil
Liberties Union Foundation. She would like to thank Patricia Streeter, who has served as
an extraordinary co-counsel in Hadix v. Caruso (Hadix III), 465 F. Supp. 2d 776 (W.D.
Mich. 2006). I am also grateful for the assistance of Susan Pourciau, a third-year law student at Duke University School of Law, and Darcy Hirsh, a third-year law student at Benjamin N. Cardozo School of Law.
See, e.g., Hadix v. Caruso (Hadix III), 465 F. Supp. 2d 776, 778–79 (W.D. Mich. 2006) (detailing the history of the litigation), vacated, 248 F. App’x 678 (6th Cir. 2007) (per curiam). Until recent years, the case was known as Hadix v. Johnson, and generated a large
number of judicial opinions. See, e.g., Hadix v. Johnson (Hadix I), 367 F.3d 513 (6th Cir.
2004) (remanding finding of a constitutional violation regarding fire safety).

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overcrowded prisons, suggesting that considerations of cost can de3
feat an Eighth Amendment claim, and allowing Eighth Amendment
claims to be defeated even when prison conditions are objectively intolerable and deny prisoners basic human needs, including health
4
care. Unfortunately, Michigan may ultimately illustrate that the only
real restraint on prison growth is its cost, not the Constitution.
I. THE LONESOME DEATH OF TIMOTHY SOUDERS
Timothy Souders arrived at the Southern Michigan Correctional
Facility in March 2006 with medical problems that included a thyroid
5
disorder and cardiac risk factors. He also had been diagnosed with
bipolar disorder and depression, and had attempted suicide multiple
6
times. It was duly noted in his medical record that, because of his
medications and medical problems, he was at very high risk of injury
7
if exposed to excessive heat.
In March 2006, the prison psychiatrist changed Mr. Souders’s medications, prescribed lithium for his bipolar disorder, and subsequently increased his lithium. There are no records of laboratory
monitoring of the level of lithium in his blood for the relevant pe8
riod, although elevated lithium levels are toxic and can cause symptoms ranging from mental confusion to life-threatening side effects
9
such as kidney failure. Monitoring lithium levels in the blood is considered absolutely necessary when lithium is prescribed, and high lithium levels are particularly dangerous in someone who is dehy10
drated.
2

3

4

5
6
7

8
9
10

See Rhodes v. Chapman, 452 U.S. 337, 348–49 (1981) (explaining that when overcrowding has not been shown to inflict wanton pain or lead to deprivation of basic necessities,
such as food, it does not violate the Eighth Amendment).
Wilson v. Seiter, 501 U.S. 294, 301–02 (1991) (noting and not rejecting the argument that
requiring a showing that prison officials are deliberately indifferent in order for prison
conditions to violate the Eighth Amendment would allow prison officials to prevail by
showing fiscal constraints and stating that interpretation of the Eighth Amendment is
controlled by its language, not by policy considerations).
Farmer v. Brennan, 511 U.S. 825, 837–38 (1994) (defining the deliberate indifference
standard required to show an Eighth Amendment violation in prison conditions in a
manner parallel to the recklessness standard in the criminal law).
Hadix v. Caruso (Hadix II), 461 F. Supp. 2d 574, 577, 579 (W.D. Mich. 2006).
Id. at 578.
Transcript of Hearing on October 11-13, 2006, at 265–66, Hadix II, 461 F. Supp. 2d 574
(No. 06-2591) [hereinafter Hearing]; Plaintiffs’ Exhibit 114, at 152158, Hadix II, 461
F. Supp. 2d 574 (No. 06-2591) (providing Timothy Souders’s medical record).
Plaintiffs’ Exhibit 114 at 152157, Hadix II, 461 F. Supp. 2d 574 (No. 06-2591).
Hearing, supra note 7, at 134–35; see also Hadix II, 461 F. Supp. 2d at 579.
Hearing, supra note 7, at 134–35; Hadix II, 461 F. Supp. 2d at 579.

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Near the end of May 2006, the psychiatrist went on medical leave
and thereafter there was no psychiatrist on-site for the 1,400 prisoners
11
at the prison. In June, Mr. Souders was involved in a fight with another prisoner and was ordered to punitive detention. After thirty
days, he was released but sent back to the segregation unit for taking
an unauthorized shower during an August day on which the heat in12
dex was over 90.
He was put in a boxcar cell—essentially, an unventilated cell with
no windows and a solid metal door, rather than an open-barred cell
13
front—on the sixth level of the prison. When staff opened the food
slot in one of the solid doors, which is how staff talked to prisoners in
those cells, on hot days they could feel a blast of hot air from inside
14
the cell. During the next few days the heat index in the cells rose to
15
around 100.
On August 2, 2006, Mr. Souders damaged the metal stool in his
16
cell and was put into standing restraints. When he tried to flood his
sink, according to custody records, a supervisory nurse approved cut17
ting off the water to the cell. That restriction was removed only because someone noticed that the whole prison was on heat alert
18
status. Mr. Souders was then put on top-of-bed restraints on a con19
crete slab, with metal restraints on his wrists and ankles. Use of
these types of restraint is well known to carry a risk of death from as11
12

13

14
15
16
17

18
19

Hadix II, 461 F. Supp. 2d at 584; Plaintiffs’ Exhibit 5H at 322346–48, Hadix II, 461 F.
Supp. 2d 574 (No. 06-2591).
Prison Events Timeline, Plaintiffs’ Exhibit 106A at 1, Hadix II, 461 F. Supp. 2d 574 (No.
06-2591); Hearing, supra note 7, at 191–204; Investigation Records Re: Mr. Souders’
Death, Plaintiffs’ Exhibit 42, at 320501, Hadix II, 461 F. Supp. 2d 574 (No. 06-2591)
[hereinafter Investigation Records] (providing the segregation record). The heat index
combines temperature and humidity into a measurement that more accurately reflects
human perception of the apparent temperature. Heat index, rather than temperature, is
routinely used to measure risk of heat injury under particular conditions. A heat index of
90, roughly speaking, “feels” like a temperature of 90°F. National Oceanic and Atmospheric Administration, Heat Index and Humidity from Temperature and Dewpoint,
http://www.crh.noaa.gov/jkl/?n=heat_index_calculator (last visited Nov. 5, 2008).
See Plaintiffs’ Exhibit 106B, Hadix II, 461 F. Supp. 2d 574 (No. 06-2591) (showing Mr.
Souders’s cell confinement). For a description of a boxcar cell, see United States v. Koch,
552 F.2d 1216, 1218 (7th Cir. 1977).
Deposition of Francis Duffy, Plaintiffs’ Exhibit 103, at 73, Hadix II, 461 F. Supp. 2d 574
(No. 06-2591).
Hadix II, 461 F. Supp. 2d at 579.
Id. at 577; Investigation Records, supra note 12, at 320904, 320906.
Investigation Records, supra note 12, at 320904, 320844. The nurse subsequently denied
remembering whether she authorized the restraints or not. Deposition of Betty Glaser,
Plaintiffs’ Exhibit 104, at 38, Hadix II, 461 F. Supp. 2d 574 (No. 06-2591).
Investigation Records, supra note 12, at 320844.
Hadix II, 461 F. Supp. 2d at 577.

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phyxiation, heart attack, and dehydration.
That day the social
worker who was in charge of mental health services for the prison
21
characterized Mr. Souders as “floridly psychotic.” From August 2
through August 5, the segregation log and the video camera used in
his cell document that Mr. Souders was repeatedly screaming inco22
herently. Between August 2 and August 6, Mr. Souders rarely ac23
cepted water. During the first two days he was in restraints, the
video camera staff used to film him fogged up and staff complained
24
of the heat and humidity in his cell. As the use of restraints contin25
ued, Mr. Souders was held in restraints naked. He urinated in his
restraints and he developed burn-like sores on his body from lying in
26
his own waste.
At one point, custody records indicate that Mr.
Souders was transported to the prison’s unaccredited on-site “hospital,” but the physician there declined to examine him, apparently be27
cause he urinated on the examining table.
On August 6, correctional officers walked him to the showers; the
video shows him staggering. Shortly thereafter, the restraints were
removed. He then fell to the floor of his cell and was unable to get
28
up. Correctional officers returned him to the slab. A nurse examined Mr. Souders in his cell and told him that his pulse was faint, a
symptom that indicated that he had experienced a drastic fall in his
29
cardiac output. The nurse then left the cell without doing anything
30
to assist him. For the next hour there was no movement in the
31
cell. Then staff reentered the cell because Mr. Souders did not ap32
pear to be breathing. He was pronounced dead shortly thereafter,
33
at the age of 21.
Michigan allows “limited license psychologists” to treat prisoners
absent supervision even though they are not eligible to treat people
in the community without supervision by a fully-licensed psycholo20
21
22
23
24
25
26
27
28
29
30
31
32
33

Id. at 580–81, 595.
Id. at 578.
Investigation Records, supra note 12, at 320951–56, 320958–62; Plaintiffs’ Exhibit 106B,
supra note 13.
Investigation Records, supra note 12, at 320952–62, 320964, 320966, 320969.
Plaintiffs’ Exhibit 106B, supra note 13.
Hadix II, 461 F. Supp. 2d at 577.
Id.
Id.
Id. at 579.
Id. at 579–80.
Id. at 580.
Plaintiffs’ Exhibit 106B, supra note 13.
Hadix II, 461 F. Supp. 2d at 580.
Id. at 577, 580.

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34

gist. The limited-license psychologist who last saw Mr. Souders alive
had an undergraduate degree in theology and a master’s degree in
35
community counseling. This limited-license psychologist had seen
the psychologist who was officially “supervising” him once, from a dis36
tance, in the preceding year. The person who diagnosed Mr. Souders as floridly psychotic was a psychiatric social worker and also was
not licensed to practice in the community without formal supervi37
sion. Aside from the prison system’s employment of staff who are
not fully licensed, the staff demonstrated a pervasive indifference to
community standards of care, as illustrated by the psychiatrist’s failure to perform routine tests for toxic levels of lithium that any psy38
chiatrist in the community would have required.
Staff resources were severely stressed. The Director of Nursing at
the prison where Mr. Souders died testified that the prison complex
needed about eleven more registered nurses to deliver health care.
Almost a third of the registered nursing positions were filled by li39
censed practical nurses. Even today, despite Mr. Souders’s death,
the Department has no policy that requires large prisons with segregation units, which are typically full of mentally ill prisoners, to have
40
on-site psychiatrists.
34

35

36
37
38
39

40

Psychology Supervision Update and Doctoral Education Limited Licenses,
http://www.michigan.gov/documents/mdch/mdch_psycsuperrequ11_09_06_177860_7.
pdf (last visited Nov. 5, 2008).
Deposition of Allan Small, Plaintiffs’ Exhibit 105, at 5–6, Hadix II, 461 F. Supp. 2d 574
(No. 06-2591). This psychologist was involved in another patient death case during the
same period. Hadix II, 461 F. Supp. 2d at 581–82. He thought that the second patient
might have been suffering paranoid delusions, but did not refer the patient to a psychiatrist because the patient was refusing treatment. Id. at 582. Over a year after the patient
was known to suffer from toxic levels of thyroid hormone, the staff finally petitioned for
the appointment of a guardian to authorize medical treatment, but the patient died before treatment could be authorized. Id. at 582–83. The court found numerous other instances of inadequate psychological and psychiatric treatment of prisoners, some of
whom committed suicide. Id. at 583–84.
Hadix II, 461 F. Supp. 2d at 585.
Id.
See id. at 579 n.2 (describing Mr. Souders’s treatment as “not clinically appropriate”).
Deposition of Debbie Roth, Plaintiffs’ Exhibit 107, at 50–54, Hadix II, 461 F. Supp. 2d 574
(No. 06-2591); see also Hadix III, 465 F. Supp. 2d 776, 792–93 (W.D. Mich. 2006) (noting
testimony that nursing staff levels were inadequate), vacated, 248 F. App’x 678 (6th Cir.
2007) (per curiam).
The psychiatrists in the system are employed by the Department of Community Health
and are part of out-patient mental health teams. DEP’T OF CMTY. HEALTH, PERFORMANCE
AUDIT OF THE CORRECTIONAL MENTAL HEALTH PROGRAM (1998), available at
http://audgen.michigan.gov/comprpt/docs/r3965097.pdf. Many of the high security
prisons in the system do not have an out-patient team. Defendants’ Status Report Regarding Transfer Grid, at Ex. A, Hadix v. Caruso, No. 4:92-CV-110 (W.D. Mich. March 15,

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The medical staff operate in a culture of deference to custody that
interferes with care. That culture explains the behavior of the nurse
who told custody that there was no reason why Mr. Souders could not
be placed on a water restriction despite his medical problems and the
41
conditions within his boxcar cell. It similarly explains the conduct
of the doctor who knew of Mr. Souders’s urine burns, but neither
42
treated him nor objected to the use of restraints by custody. That
culture also explains how a registered nurse could fail to initiate
treatment when he learned that Mr. Souders had developed a weak
43
pulse. All of these individual failures took place in a context in
which no medical or mental health staff perceived a need to intervene. Nor did any medical staff question why custody made the decision to put a mentally ill man into restraints. Nor did anyone question leaving a man in restraints within a boxcar cell where staff could
not readily observe him. As the medical director for the Michigan
prison system admitted, there was ample opportunity for medical,
mental health, and custodial staff to intervene, but it never hap44
pened.
The autopsy determined that the cause of death was hyperthermia, with dehydration as a secondary cause, but it characterized the
45
death as an “accident.” While no one has asserted that any staff
member actively desired the death of Mr. Souders, I cannot accept
the claim that the death was an accident. Rather, the death of Mr.
Souders and other victims followed inevitably from the decision of
the State of Michigan to imprison almost 50,000 people but fail to
provide the resources necessary to provide them with minimally adequate health care, combined with a staff culture of willful blindness to
the risks that this lack of care entailed.

41
42
43
44
45

2007) (identifying a number of high security prisons, including Baraga Maximum Security Facility, as not having any on-site psychiatric coverage); see also Michigan Department
of Corrections, Baraga Maximum Correctional Facility (AMF), http://www.michigan.
gov/corrections/1,1607,7-119-1381_1388-5325--,00.html (last visited Nov. 5, 2008) (noting that Baraga Maximum Correctional Facility confines prisoners with the highest security classification (Level V), with four out of seven housing units designated as segregation units). For purposes of clarity, I will not cite unpublished Hadix filings to any of the
published Hadix cases.
See supra note 18 and accompanying text.
See supra note 27 and accompanying text.
See supra note 30 and accompanying text.
Hadix II, 461 F. Supp. 2d at 580.
Plaintiffs’ Exhibit A to Stipulation at 1, Hadix II, 461 F. Supp. 2d 574 (No. 06-2591) (providing the Timothy Souders Autopsy Report).

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II. JUST ANOTHER BRICK IN THE WALL
As might be expected from the number and variety of deficiencies
in the medical and mental health care implicated in the death of
Timothy Souders, this death took place against a backdrop of systemically inadequate care. For some years, the Michigan prison system has chosen to concentrate its sickest prisoners in the Hadix facili46
ties.
As of early 2007, at the largest Hadix prison, half of the
prisoners suffered from at least one chronic disease requiring ongo47
ing treatment.
The apparent reason for this concentration of
chronically ill prisoners was the proximity of Duane Waters Hospital,
run by the Department of Corrections. The hospital was required
48
under a Consent Decree entered early in the Hadix litigation. For a
substantial period of time, the hospital was accredited by the Joint
Commission on Health Care Organizations, but that accreditation
49
has now lapsed. Despite the lack of accreditation, the Department
of Corrections continues to allow a surgeon who lacks admitting privi50
leges at any hospital to perform surgeries there.
Thus, although the Hadix facilities have served as the linchpin of
the Michigan prison health care system, that linchpin is malfunctioning. The Hadix court made findings in 2002 regarding hundreds of
incidents in which prisoners received inadequate or delayed care, or
51
no care at all. These findings included cases in which the medical
system failed to provide timely access to prisoners with urgent and
emergent serious medical problems, including failures resulting in
52
death. Subsequent findings by the court-appointed medical monitor, Robert Cohen, M.D., described multiple medical failures, includ-

46

47

48
49
50

51
52

Findings of Fact and Conclusions of Law at 82, Hadix v. Johnson, No. 4:92-CV-110 (W.D.
Mich. Sept. 14, 2005); Hadix v. Caruso, No. 4:92-CV-110, slip op. at 2 (W.D. Mich. Mar. 6,
2007). In this Article, the term “Hadix prison” or “Hadix facility” means a prison unit confining members of the certified class in Hadix, and subject to the district court’s Hadix
orders.
Letter from Robert Cohen, M.D., Head of the Office of the Indep. Med. Monitor, to Hon.
Richard A. Enslen at 3, Hadix v. Caruso, No. 4:92-CV-110 (W.D. Mich. Apr. 30, 2007)
[hereinafter Cohen Letter].
Consent Decree at 8, Hadix v. Johnson, No. 80-73581 (E.D. Mich. Feb. 13, 1985) (requiring that the new hospital meet state licensure standards).
Hadix III, 465 F. Supp. 2d 776, 778 (W.D. Mich. 2006).
E-mail from Robert Cohen to Hadix parties (Nov. 29, 2007, 08:49 CST) (on file with author). Robert Cohen, M.D., is the head of the Office of the Independent Medical Monitor, established by the Hadix court. Hadix III, 465 F. Supp. 2d at 779–80, 809–810.
Findings of Fact and Conclusions of Law 28–190, Hadix v. Johnson, No. 4:92-CV-110
(W.D. Mich. Oct. 29, 2002).
Hadix III, 465 F. Supp. 2d at 779 (summarizing the 2002 findings).

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ing a prisoner who died of an untreated “staph” infection and gastro-intestinal bleeding; an HIV patient with difficulty in swallowing
who, despite a weight loss to 108 pounds, was denied the pureed diet
he needed; and a diabetic who predictably died of hypoglycemia after
gross failures of treatment and monitoring, accompanied by a failure
54
to respond to his emergency needs.
The court medical monitor and the Director of Medical Care for
the Department of Corrections, a physician, jointly reviewed six randomly selected medical records of Hadix class members whose specialty care appointments had been delayed. In one case, there were
no apparent consequences from the delay; in a second case, the only
effect may have been to force the prisoner to experience unnecessary
pain. In the other four cases, the Hadix court concluded, the delay
exposed the prisoners to the “prospect of unnecessary death and
55
grossly unnecessary suffering.”
These cases included a man who was allowed to go untreated for
an extended period without diagnosis or treatment for a kidney stone
that was rendering his kidney non-functional. Another man with
textbook signs of an impending heart attack was improperly scheduled to be seen in thirty days rather than immediately. By the time
he was seen, he was lucky to survive his emergency bypass surgery.
Another patient with known symptoms of bowel cancer had his diagnosis delayed for over a year. He proved to have an abnormal, poten56
tially pre-cancerous lesion. Perhaps equally striking, after the diagnosis, the patient was not scheduled for follow-up until his case was
57
discovered in the random case review.
The last patient whose file was randomly chosen for review had
complained that a mole on his back was increasing in size. He kited
(prison jargon for sending a written request for assistance to staff)
repeatedly and was diagnosed with a “melanocystic skin mole” that

53

54
55
56
57

Staphylococcus aureus is a common skin infection that can become life-threatening under
certain conditions. Drug-resistant forms of Staphylococcus aureus (methicillin-resistant
Staphylococcus aureus, or MRSA, and vancomycin-resistant Staphylococcus aureus, or VRSA)
have recently and notoriously become common in prisons and jails, as well as in hospitals
and other institutional settings. Ctrs. for Disease Control & Prevention, Staphylococcus
Aureus Resistant to Vancomycin—United States, 2002, MORBIDITY & MORTALITY WKLY., July 5,
2002, available at http://www.cdc.gov/MMWR/preview/mmwrhtml/mm5126a1.htm; National Institute of Corrections, Methicillin-Resistant Staphylococcus Aureus (MRSA), available
at http://www. nicic.org/MRSA (last visited Nov. 5, 2008).
Hadix III, 465 F. Supp. 2d at 780–81.
Id. at 786.
Id. at 786–87.
Hearing, supra note 7, at 593.

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needed to be “watched closely.” Nonetheless, a subsequent medical
order to remove the mole in two weeks resulted in no treatment; a
nurse told him to apply a hot compress to the mole. More than six
months after he began kiting, in January 2006, he saw medical staff
again, by which time the mole had grown into a black-red mass with
irregular margins and bleeding. About two weeks later, a pathology
report indicated malignant melanoma. He did not receive the next
necessary step in the diagnostic process, a sentinel node biopsy to determine whether he had metastatic cancer, until April 2006. That biopsy showed that the cancer had spread while he was not receiving
59
treatment.
Unfortunately, the mistreatment of this patient did not end despite the Hadix court’s December 2006 opinion noting the previous
delays in diagnosing his cancer. The medical monitor subsequently
discovered that the patient’s chemotherapy had been significantly interrupted when staff did not order his cancer treatment drugs in a
timely manner. When the drugs were ordered, staff specified an in60
sufficient quantity for the chemotherapy.
These delays in care took place in the context of a system that allowed 30% to 40% of the cancer patients at any given time to fail to
receive treatment within the time frames set by their physicians. This
occurred, even though, as the Hadix court found, those physicians often set dates for patients to be seen that were too far in the future
and often failed to take appropriate initial steps for timely diagnosis
61
of cancer. For example, another patient waited nine months for a
biopsy of his suspected cancer. He finally received a biopsy diagnosing prostate cancer on March 19, 2007. As of early July 2007, the patient had developed bloody urine and was still not yet scheduled for
62
surgery.
The medication distribution system is also broken. A randomized
study of medication prescription and renewal by the medical monitor’s office concluded that each month, hundreds of prisoners kited
within the Hadix facilities because their medications had been inter-

58
59
60
61
62

Hadix III, 465 F. Supp. 2d at 787.
Id.
Hadix v. Caruso, No. 4:92-CV-110, slip op. at 2–3 (W.D. Mich. May 4, 2007).
Hadix III, 465 F. Supp. 2d at 791.
Plaintiffs’ Ex. 8 Hearing on Motion for Temporary Restraining Order, Hadix v. Caruso,
No. 4:92-CV-110 (W.D. Mich. July 18, 2007); Declaration of Robert Camaj, Hadix v.
Caruso, No. 4:92-CV-110 (W.D. Mich. July 18, 2007).

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rupted. There is no functioning system to assure renewals of medications even when staff know of the need for renewals. As a result,
even HIV medications go unrenewed. Although the problem is
widely known among health care staff, nothing is done to address the
64
problem. In fact, a physician in the Hadix facilities refused to renew
medications in a timely fashion. The medical monitor documented
that records containing medication renewal requests, abnormal laboratory test results, and specialty consultation reports piled up unread
in physicians’ offices. The monitor also documented waits of three to
four weeks to see a physician, with physicians canceling scheduled pa65
tient appointments without cause.
As of the last date for which I have data, half of the registered
66
nurse positions were not filled by permanent staff. Of those filled by
temporary contract staff, 60% of the positions were filled by licensed
67
practical nurses rather than registered nurses. As a result, licensed
68
practical nurses take actions that they are not qualified to perform.
The nursing shortages also result in medical kites from prisoners go69
ing unanswered for days at a time.
Medical treatment is equally bad at the dialysis unit, where a
number of the prisoners with the most complex medical problems
are housed. An outside nephrologist review reported that the medi70
cal director “appeared disengaged” and that there were seriously deficiencies in water testing and documentation, management of vascular access complications, blood pressure management, specialty care
71
referrals and testing, medication continuity, and emergency care.
Registered nurses assigned to the dialysis unit have been administering medications in a variety of unapproved ways, including re-labeling
medications dispensed by the pharmacist for prisoners who have left
the facility in order to administer them to other prisoners, failing to
check medication orders correctly before administering them to
prisoners, and relying on an outmoded system to check that the cor63
64
65
66
67
68
69
70
71

First Report of the Office of Independent Medical Monitor 21–23, 31–33, Hadix v.
Caruso, No. 4:92-CV-110 (W.D. Mich. July 18, 2007).
Memorandum from Robert Cohen, M.D., to Barbara Hladki 1 (Feb. 12, 2007) (on file
with author).
Id. at 2.
Hadix III, 465 F. Supp. 2d at 793.
Id.
Id.
Id.
Eric M. Gibney, Report to the Office of the Independent Medical Monitor 1 (Jan. 11,
2008) [hereinafter Gibney Report] (on file with the author).
Id.

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72

rect medications are administered. Further, in part because medications are not being consistently ordered electronically, the medication regimens for the dialysis patients are frequently interrupted. According to a review by the medical monitor, 61% of the dialysis
prisoners experienced delays or interruptions of their prescribed
73
medications. Although dialysis puts patients at risk for sepsis, most
of the intravenous medications on hand to treat septic patients following hospital discharge are months or years past their expiration
date, even though there can be a three-day delay in the dialysis unit’s
74
ability to obtain new supplies of such medications.
Dialysis patients needing specialty care (other than urgent surgery
when vascular access for dialysis fails) frequently do not receive that
care or receive it only after significant delays. As of December 2007, a
dialysis patient with a cerebral aneurysm had been waiting since June
2007 for surgery. Another patient was receiving dialysis through a
perma-catheter in his chest wall, which is a dangerous method for dialysis access because of the heightened risk of infection it poses. The
patient was delayed between September and December 2007 in obtaining surgery to create a standard arteriovenous shunt for dialysis.
Shortly after the surgery, he was found to have a blood infection and
75
was started on intravenous antibiotics.
A nephrologist consultant for the monitor’s office reviewed the
deaths of a number of dialysis patients. One of those deaths involved
a patient whose cardiac symptoms were ignored over a long period,
except for one physician’s attempt to obtain a stress test for him. The
prison contract medical provider, Correctional Medical Services, Inc.
(“CMS”), denied the request. Subsequently, the patient died of cardiac arrest after his dialysis was delayed despite a life-threatening ele76
vation in his potassium level.
Another dialysis patient died of a
brain hemorrhage after his blood pressure problems were “ignored
77
and mistreated” by medical staff for a year. He was treated with a
single medication that cannot safely be used as the sole medication
for severe hypertension, and his death “was directly related to his se-

72
73
74
75
76
77

Draft, Office of the Independent Medical Monitor Dialysis Patient Medication Report 10–
12 (undated) (on file with the author).
Id. at 4.
Id. at 12.
Memorandum from Robert Cohen, M.D., to Peter Govorchin, et. al. 4–5 (Jan. 3, 2007)
(on file with author).
Gibney Report, supra note 70, at 7–10.
Id. at 11.

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vere, uncontrolled, and inappropriately managed blood pressure and
78
failure to ensure accurate medication administration.”
Another dialysis death occurred after staff failed to note increasing evidence of unstable cardiac disease. Although one of the patient’s physicians did note that he needed an echocardiogram, the
test was not performed. A nurse who thereafter saw the patient at a
time when he was experiencing classic symptoms of unstable angina
did not refer the patient to a physician. A month later, the physician
again remarked that he needed an echocardiogram, but the test was
not ordered. The following month, the patient was finally sent to a
hospital where he was diagnosed with a heart attack and died of car79
diac arrest following a bypass surgery. Another patient died after a
delay in summoning an ambulance after the patient experienced a
heart attack. The autopsy indicated that he had a structurally normal
heart, so prompt treatment of the heart attack might have saved his
80
life.
After years of reviewing the failures of medical and mental health
care, it is perhaps not surprising that the federal judge assigned to
Hadix wrote that: “[T]here are a large number of complicated cases
with interdisciplinary problems that unfortunately are being regularly
mistreated and/or ignored by staff. The phenomenon is now a regu81
lar feature of the system.”
Understanding how such a prison staff culture could become embedded requires a consideration of the larger policies that have
shaped the Michigan criminal justice system.
III. MONEY FOR NOTHING
As of the last available statistics, Michigan had per-prisoner medi82
cal costs that were about 108% of the national average. I consider
the more significant statistic that Michigan spent $2,841 per prisoner
on medical care in 2001, at a time that national spending on medical
83
care was $4,370 per person per year. Of at least equal significance,
78

79
80
81
82

83

Id. On several occasions, the patient was not given his prescribed medication, clonidine.
Clonidine is particularly dangerous if the patient misses doses because the patient may
experience life-threatening levels of “rebound” high blood pressure. See id. at 10–11.
Id. at 12–13.
Id. at 14–15.
Hadix II, 461 F. Supp. 2d 574, 577, 598 (W.D. Mich. 2006).
JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT:
STATE PRISON EXPENDITURES, 2001, at 6 (2004), available at http://www.ojp.usdoj.
gov/bjs/pub/pdf/spe01.pdf.
Id.

Dec. 2008]

PRISON HEALTH CARE

13

Michigan has been receiving limited value for the money that it does
spend on prison health care. According to a report by the National
Commission on Correctional Health Care (“NCCHC”), commissioned by the Michigan Department of Corrections (“MDOC”),
Michigan is getting poor value for the $300 million per year that it
84
currently spends on medical care. Part of the problem, according to
the report, was that Michigan contracts out physician services (other
85
than psychiatrists) to CMS.
An NCCHC reviewer became concerned about the level of cognitive functioning of one of the CMS physicians. The physician’s medical records had so many errors of spelling and language use that parts
of them were incomprehensible. When the reviewer asked supervisors about this physician, the supervisors were familiar with the prob86
lem but none believed he or she had the power to take action.
In addition, under its contract with the state, CMS pays for off-site
specialty care and it decides whether a physician will be allowed to refer a prisoner for such care. As the NCCHC report suggests, the fact
that the physicians work for CMS may explain why they rarely challenge the decision of CMS reviewers to deny their requests for spe87
cialty referrals. Similarly, this fact may explain why 30% to 40% of
cancer patients, as noted earlier, experienced disruptions in their
88
chemotherapy under this system.
A subsidiary of CMS, PharmaCorr, provides pharmacy services for
the prison system. PharmaCorr is not required to provide a consult89
ing pharmacist under the contract. Staff reported to the NCCHC
that they experienced delays in receiving medications for “same day”
90
delivery under the contract, which is not surprising because PharmaCorr ships all its medications to Michigan from its warehouse in
91
Oklahoma. The report also found that the formulary (a list of medications that a physician can prescribe without any additional authorization from a reviewer) lacked classes of medications that are
commonly included in the formularies of large health care organiza84
85

86
87
88
89
90
91

2007 Mich. Pub. Acts No. 124 §§ 107, 208 (appropriating about $300 million to prison
health care services in 2007).
NAT’L COMM’N ON CORR. HEALTH CARE, A COMPREHENSIVE ASSESSMENT OF THE MICHIGAN
DEPARTMENT OF CORRECTIONS HEALTH CARE SYSTEM 24 (2008), available at http://www.
michigan.gov/documents/corrections/Final_MDOC_HCS_Report_222383_7.pdf.
Id. at 6.
Id. at 9.
See supra note 61 and accompanying text.
NAT’L COMM’N ON CORR. HEALTH CARE, supra note 85, at 11.
Id.
First Report of the Office of Independent Medical Monitor, supra note 63, at 25.

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tions, and the procedures for ordering non-formulary medications
could pose serious safety concerns, aside from the paperwork burden
92
the inadequacies of the formulary posed.
The process for dispensing medication is unnecessarily time93
The medical records, which are partly
consuming and wasteful.
electronic and partly paper, pose a barrier to patient care and decrease the productivity of staff, in significant part because of prob94
lems with the electronic medical records system that Michigan uses.
In fact, Serapis, the electronic medical records system, is so flawed
that the NCCHC recommended that if Michigan intends to continue
using it for any purpose, it should at least stop using it to record cer95
tain medical functions and instead revert to paper records.
The report also commented that the MDOC was “one of the most
bureaucratic systems we have ever encountered,” and the report
questioned whether the proliferation of bureaucratic procedures of
dubious value undermined the system’s ability to complete necessary
96
procedures.
The proliferation of paperwork is “even worse” in
health care, with the fifty-one Michigan prisons generating hundreds
of reports each month that the NCCHC doubted would be read by
97
anyone.
At the same time, the productivity of CMS medical staff was strikingly low. While the reviewers expected physicians to see an average
of twenty patients per day, most CMS providers averaged eight to
twelve per day, and one provider averaged five per day. The NCCHC
identified three factors contributing to the low productivity: Serapis,
the poorly functioning electronic medical record system; certain custody rules; and the fact that the providers are not employees of the
98
MDOC.
The third point is the heart of the matter:
The providers have no incentive other than their own professionalism to see more patients. All MDOC facilities have been completing
[provider] Productivity Reports for several years. The [MDOC Bureau of
Health Care] administration says they cannot do anything about the situation, because they do not supervise the [providers]. They send the information on to the CMS administration, but nothing ever changes. We
were told by several MDOC staff that CMS administrators say they cannot
92
93
94
95
96
97
98

NAT’L COMM’N ON CORR. HEALTH CARE, supra note 85, at 13–14.
Id. at 16.
Id. at 16–20.
Id. at 20.
Id. at 22.
Id. at 22–23.
Id. at 23.

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PRISON HEALTH CARE

15

tell the [providers] what to do, because they are independent contractors
and not employees. Whatever the truth is, this situation must change.
....
The MDOC should seriously reconsider the advantages and disadvan99
tages of continuing to contract out provider services.

Not surprisingly, the report also found that the system lacked an
effective quality improvement program or a functioning peer review
system to assure health care quality. Instead, the system’s ostensible
100
quality improvement system amounted to mere “paper pushing.”
Many if not all of the problems the report identified stemmed
from Michigan’s failure to write a proper contract with CMS and other contractors, including the company that provided the Serapis program. The NCCHC reviewers were told that CMS often unilaterally
reduced its staff coverage for a particular position from five days a
week to two days a week, and the contract did not provide any disincentive for CMS to do so. In fact, the contract allows the prison system to require CMS to fill these hours, but the system has not insisted
101
on full staffing.
Perhaps most damning, over the ten years of the
contract, the NCCHC monitors were not provided with a single monitoring report, although the state was supposed to perform regular
audits and CMS was supposed to be assessed liquidated damages at
any facility that failed to achieve a designated level of compliance.
Notwithstanding this provision, not a single claim for liquidated
102
damages was ever made by the state:
Many staff verbalized that they have “heard from Lansing” [where the
headquarters of the MDOC is located] that the MDOC simply needs to
make the relationship with CMS “work.” Whether or not anyone in the
[MDOC] central office actually said this, this is what staff perceives. The
most glaring example of this is practitioner staffing shortages. . . . Staff
speculates that if the MDOC and CMS were operating in a truly arm’s
length relationship, there should be an immediate response from the
MDOC followed by rapid resolution of the problem, legal action, and/or
103
termination of the contract.

Although the causes differ in part, the mental health program is
also strikingly inefficient. The program is divided between the Michigan Department of Community Health, which provides the psychiatrists and certain other staff, and the MDOC, which provides most of
the psychologists. Certain prisoners are placed on the outpatient
99
100
101
102
103

Id. at 24.
Id. at 25.
Id. at 32.
Id. at 33.
Id.

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mental health team case load, and these prisoners have their mental
health care provided by the Department of Community Health. All
of the other prisoners supposedly have their health care provided by
the MDOC, including identification and initial treatment of patients
104
experiencing a mental health crisis. This organizational structure is
cumbersome and wastes resources. It also creates problems because
of disagreements between the two entities as to whether a prisoner
needs treatment, and allows staff to disclaim responsibility for services
that they consider not within their duties.
IV. TROUBLE AHEAD, TROUBLE BEHIND
Michigan citizens are justly proud that their state supports one of
the nation’s finest public universities, including a leading medical
school. In my view, they should also be proud that the state lacks a
judicially-imposed death penalty. Unfortunately, as the death of Mr.
Souders and many others illustrate, Michigan has a randomlyimposed death penalty for too many of its prisoners who have the
misfortune to suffer from serious medical needs, and this accidental
death penalty stems directly from public policy choices that have resulted in an underfunded prison system confining prisoners for
whom it is unable to provide minimally adequate medical care.
Michigan has the sixth-largest prison population among the
105
106
states, although it ranks eighth in total population.
Three states
with larger total populations—Ohio, Illinois, and Pennsylvania—have
107
smaller prison populations. Michigan’s comparatively high rank in
108
109
prison size reflects its comparatively high incarceration rate. This
104
105

106

107
108

Id. at 33–34.
See PUB. SAFETY PERFORMANCE PROJECT, PEW CHARITABLE TRUSTS, PUBLIC SAFETY, PUBLIC
SPENDING: FORECASTING AMERICA’S PRISON POPULATION 2007-2011, at 27 (rev. 2007),
http://www.pewcenteronthestates.org/uploadedFiles/Public%20Safety%20Public
%20Spending.pdf.
See U.S. Census Bureau, Resident Population of the 50 States, the District of Columbia,
and Puerto Rico: Census 2000, http://www. census.gov/population/www/cen2000/
maps/files/tab02.pdf (last visited Nov. 5, 2008).
Compare id., with PUB. SAFETY PERFORMANCE PROJECT, supra note 105, at 27.
Of course, the reality is that all fifty states have extremely draconian sentencing policies
when compared to world norms. The United States now has the highest incarceration
rate in the world, and almost one-quarter of the world’s prisoners. See CHRISTOPHER
HARTNEY, NAT’L COUNCIL ON CRIME AND DELINQUENCY, FACT SHEET: U.S. RATES OF
INCARCERATION: A GLOBAL PERSPECTIVE 1–2 (2006), available at http://www.nccdcrc.org/nccd/pubs/2006nov_factsheet_incarceration.pdf. If all the men, women, and
children confined in our nation’s prisons and jail were gathered in one city, it would be
the fourth largest city in the country. Compare WILLIAM J. SABOL ET AL., BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISON AND JAIL INMATES AT MIDYEAR 2006

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PRISON HEALTH CARE

rate is an outlier in the Midwest region, and ten of the eleven other
110
states in the region have rates lower than Michigan’s.
Nor can Michigan’s high incarceration rate be explained simply
by its crime rate. As shown in the table below, Michigan has the eleventh highest incarceration rate in the country, although it ranks sev111
enteenth in crime rates:

109

110
111

Incarceration
Rate Rank

Crime Rate Rank

Louisiana

1

6

Texas

2

12

Mississippi

3

32

Oklahoma

4

14

Alabama

5

22

Georgia

6

39

Missouri

7

16

South Carolina

8

1

Arizona

9

13

Florida

10

2

Michigan

11

17

(2007), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim06.pdf, with Press Release, U.S. Census Bureau, Census Bureau Announces Most Populous Cities (June 28,
2007), available at http://www.census.gov/Press-Release/www/2007/cb07-91table1.pdf.
Notwithstanding Michigan’s eleventh-place ranking among the states in incarceration
rates, its incarceration rate of 489 prisoners per 100,000 total population is below the national average of 500 per 100,000. Only nine states have above-average incarceration
rates. The nine states with incarceration rates higher than the national average are, in
order, Louisiana, Texas, Mississippi, Oklahoma, Alabama, Georgia, Missouri, South Carolina, and Arizona. SABOL ET AL., supra note 108, at 13.
Missouri is the exception with the seventh highest incarceration rate in the nation. Id.
U.S. Census Bureau, Statistical Abstract of the United States: Violent Crime Per 100,000
Population—2004, http://www.census.gov/statab/ranks/rank21.html (last visited Nov. 5,
2008).

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The chart demonstrates that incarceration rates are as much influenced by criminal justice sentencing policies as by crime rates.
Only three of the eleven states with the highest incarceration rates
have crime rates that also rank in the top eleven among the states.
While crime rates matter in determining incarceration rates, criminal
justice policies related to prosecution, sentencing, and parole matter
at least as much.
Michigan has adopted a relatively punitive set of criminal justice
policies, in significant part related to its history of extraordinarily
tough punishment for drug offenders. In 1978, the state legislature
imposed a mandatory punishment of life imprisonment without parole for persons convicted of possession of 650 grams of cocaine or
112
heroin. Not even convictions for rape or mayhem were punished as
harshly as persons punished under this drug possession statute; the
only other crime that Michigan punished equally harshly was first de113
gree murder. No other jurisdiction imposed a mandatory sentence
of life imprisonment without parole for first-time possession of illegal
114
drugs in comparable quantities.
Although the statute requiring a
mandatory life sentence for drug possession was repealed in 1998,
and prisoners convicted under the law subsequently received parole
115
eligibility, in the last five years, the Parole Board has granted parole
116
to eligible lifers at the rate of 0.2% per year. In 2002 to 2003, more
than 9% of the Michigan prison population was serving a life sentence, amounting to almost 4,600 prisoners. As of 2002 to 2003,
Michigan had the fourth-largest number of lifers of any prison system
117
in the nation.
More than half of those prisoners were serving life

112

113
114
115

116

117

Families Against Mandatory Minimums, Background on Michigan Mandatory Minimum
Drug Law Reforms, http://www.famm.org/ExploreSentencing/StateSentencing/Mich
iganFAMMCampaign.aspx (last visited Nov. 5, 2008).
Harmelin v. Michigan, 501 U.S. 957, 1025–26 (1991) (White, J., dissenting).
Id. at 1026.
For a background on Michigan reforms, see supra note 112. See also BETHANY WICKSALL,
MICH. STATE SENATE FISCAL AGENCY, STATE NOTES: THE MICHIGAN PRISON POPULATION:
MEN’S DECLINING BUT WOMEN’S STILL RISING (2003), available at http://www.
senate.michigan.gov/sfa/Publications/Notes/2003Notes/NotesJulAug03bw.pdf.
Foster-Bey v. Rubitschun, No. 05-71318, slip. op. at 42 (E.D. Mich. Oct. 23, 2007) (finding
that changes in parole policy have resulted in decreased eligibility for paroles of nonmandatory life sentences; in the last five years the Parole Board has granted such paroles
at the rate of 0.2% of eligible prisoners). The state legislative research bureau noted that
as many as 700 persons serving a lifetime sentence for drug possession with no other convictions were eligible to be paroled. WICKSALL, supra note 115.
MARC MAUER ET AL., THE SENTENCING PROJECT, THE MEANING OF “LIFE”: LONG PRISON
SENTENCES IN CONTEXT 10 (2004), available at http://www.sentencingproject.org/
Admin/Documents/publications/inc_meaningoflife.pdf.

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PRISON HEALTH CARE

19

118

without the possibility of parole. For lifers who were eligible for parole, the average sentence length for lifers who did gain release increased to an average of 23.2 years during 2000 to 2004; apparently
many of the lifers released in these years were released on medical
119
parole, which typically implies that the prisoner has a terminal illness or some other incapacitating medical or mental health condi120
tion. Thus, the combination of a large state population, a relatively
high crime rate, and a particularly severe set of sentencing and release policies have resulted in nearly 50,000 prisoners behind bars.
V. AND IT’S A HARD RAIN’S-A-GONNA FALL
As noted above, Michigan’s criminal justice system combines a
number of elements that fuel a particularly expensive prison system;
that is, a state with a large population, a state with a very high incarceration rate and an aging prisoner population reflecting a history of
unusually punitive criminal justice policies, and a state that receives
poor value for its expenditures on prison health care. In addition,
Michigan, unlike the majority of the states with comparatively high
incarceration rates, also has comparatively high per prisoner incarceration costs. Locking people in prison is, under any circumstances,
an expensive business, and Michigan policy makers appear to have
done virtually everything within their power to make it more expensive.
By 2003, the nation spent $61 billion just on corrections, out of a
121
total spending on the criminal justice system of $186 billion.
The
most recent available figures for the cost of incarceration per pris122
oner average $22,650.
That average cost, however, is subject to
wide variation. If we look again at the eleven states including Michigan with the highest incarceration rates in the country, we find that
six of them rank among the ten states with the lowest per prisoner
123
costs.

118
119
120

121
122
123

Id.
Foster-Bey, No. 05-71318,at 25–26, 38, 42.
Michigan law provides that the “parole board may grant a medical parole for a prisoner
determined to be physically or mentally incapacitated.” MICH. COMP. LAWS § 791.235(10)
(2008).
PUB. SAFETY PERFORMANCE PROJECT, supra note 105, at 2.
Id. at 18.
The data in the Table are derived from id. at 27, 33.

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JOURNAL OF CONSTITUTIONAL LAW

Incarceration
Rate Rank

Lowest Per-Prisoner
Cost Rank

Louisiana

1

1

Texas

2

7

Mississippi

3

4

Oklahoma

4

10

Alabama

5

2

Georgia

6

11

Missouri

7

6

South Carolina

8

3

Arizona

9

16

Florida

10

22

Michigan

11

36

Michigan is the only state with a high incarceration rate that also
ranks above the state median in per-prisoner cost. In fact, Michigan
also ranks well above the national average cost of incarceration, and it
is the only state on the chart with a per-prisoner cost that exceeds the
national average.
The approximately 50,000 Michigan prisoners cost the state an
average of $28,743 per prisoner, in contrast to a federal average perprisoner cost of $23,429 and a state average per-prisoner cost of
124
$23,876. The Pew Charitable Trust analysis found that the two critical factors in determining comparative per-prisoner incarceration
costs among the states are variations in the cost of employee wages
125
and benefits and variations in the prisoner-to-staff ratio. In a 2002
survey, base pay for correctional officers in Michigan was the sixth
124
125

Id. at 33.
Id. at 19.

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PRISON HEALTH CARE

21

126

highest in the country.
Wages and benefits have made up 71% of
127
the total operating costs of the Michigan prison system, although
on average, these expenses in state correctional systems account for
128
about two-thirds of the systems’ total operating costs.
Aside from the fact that MDOC wages and benefits account for a
somewhat high percentage of operating expenses, there is other evidence that its comparatively high per-prisoner cost does not reflect a
high ratio of staff to prisoner. The union that represents correctional
officers in Michigan claims that the number of state correctional officers declined from 10,600 to 9,200 between 2000 and 2005, despite
129
an increase of several thousand in the prison population.
Michigan can no longer afford to pursue this discordant cluster of
policies. Most states that provide abysmal medical care at least get
what they pay for; Michigan cannot even make that statement. Even
in the best of times, high incarceration rates combined with high incarceration costs result in difficult financial burdens, as large num130
bers of states have recognized. Because of the state’s high number
of lifers and its long sentences for drug crimes, Michigan’s prison
population contains many older prisoners who tend to need more
expensive medical care. When one adds in the high staff costs and
the waste of large amounts of money in the dysfunctional medical
care system, the cost of the system would not be sustainable over the
long term in relatively good economic times.
Of course, these are not good economic times, particularly in
Michigan. For over a year, the state has been caught up in a “one131
state recession,” with the highest unemployment rate in the nation.
As the economic downturn has worsened, the state has experienced a
132
major state budget crisis.
Part of the MDOC’s response to the reduction in its share of the state budget was to close the Southern

126

127
128
129

130
131
132

Posting of Tom Walsh, Michigan’s Budget Crisis Means We Have to Live Like We’re No.
25, to WZZM13.com, http://wzzm13.com/news/news_article.aspx?storyid=70480 (Feb.
12, 2007, 08:55:24 EST).
STEPHAN, supra note 82, at 4.
Id.
Press Release, Mich. Corr. Org., Michigan Corrections Officer Union to Hold Statewide
Pickets to Protest Dangerous Staffing and Safety Levels in State Prisons (May 24, 2005),
available
at
http://seiu526m.localsonline.org/ourlocal/press.cfm?pressReleaseID=
1612&bSuppressLayout=1.
MAUER ET AL., supra note 117, at 25–26.
CNNMoney.com, Unemployment State by State, http://money.cnn.com/pf/features/
lists/state_unemployment/ (last visited Nov. 5, 2008).
Michigan Department of Treasury, Budget Crisis Grows Deeper, http://www.michigan.
gov/treasury/0,1607,7-121-1755_1963-168824--,00.html (last visited Nov. 5, 2008).

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Michigan Correctional Facility, the prison where Mr. Souders and
133
many others died. I have no doubt that the major motivating factor
for the closure was the desire to save money by moving the concentrated population of sick prisoners to prisons not subject to the Hadix
orders. Now that these high-risk prisoners have been dispersed
throughout the system, it is highly likely that their medical care will
deteriorate further.
Aside from the moral responsibility that Michigan politicians and
the MDOC bear for Mr. Souders’s death and their refusal to prevent
future deaths, the current cluster of policies and practices are on a
collision course with reality. Michigan taxpayers are likely to find the
state paying large jury damages awards related to some of these
134
deaths.
The MDOC also risks new class actions seeking injunctive
relief at the facilities to which large numbers of the chronically ill
135
prisoners were transferred.
More importantly, until Michigan fundamentally reforms its sentencing and parole policies, as well as its system for delivering health
care, prisoners like Timothy Souders will continue to suffer a death
sentence for the crime of mental or physical illness. Until fundamental change occurs, I can only echo the words of Richard A. Enslen,
the Hadix federal judge who brought to public attention the failures
in the Michigan system: “Say a prayer for T.S. and the others who
136
have passed. Any earthly help comes far too late for them.”

133

134

135
136

Michigan Department of Corrections, Southern Michigan Correctional Facility (JMF)
Closed November 17, 2007, http://www.michigan.gov/corrections/0,1607,7-119-1381_
1388-5357--,00.html (last visited Nov. 5, 2008).
The estate of Jeffrey Clark, a prisoner at the Bellamy Creek Correctional Facility in Michigan, was awarded $2,750,000 by a federal jury based on his death from dehydration in a
hot cell after prison staff turned off the water in his cell and failed to give him water to
drink at a time when he suffered from apparent mental illness. Firm Fights for Justice in
Prison Deaths, THE FIEGER TIMES (Fieger, Fieger, Kenney, Johnson & Giroux P.C., Southfield, Mich.), Winter 2007-2008, at 3, available at http://www.fiegerlaw.com/pdf/2008vol17.pdf. A damages action in federal court on behalf of the estate of Timothy Souders
was recently settled by the state for an undisclosed sum. Dennis Pelham, State Settles Lawsuit Over Adrian Man’s Prison Death, DAILY TELEGRAM (Adrian, Mich.), July 7, 2008, available
at
http://www.lenconnect.com/archive/x1346879050/State-settles-lawsuit-overAdrian-man-s-prison-death.
Most of the chronically ill prisoners were transferred to a handful of prisons. See Cohen
Letter, supra note 47 (describing and critiquing the state’s proposed transfer plan).
Hadix II, 461 F. Supp. 2d 574, 576 (W.D. Mich. 2006).