Jim Porter: $16 billion to incarcerate elderly inmates in America | SierraSun.com

Jim Porter: $16 billion to incarcerate elderly inmates in America

Jim Porter
Special to the Sun

Our overcrowded and costly prison system in California and nationally, is the subject of many a study and court order. The growing number of elderly inmates makes the problem all the more difficult.

Between 2007 and 2010, the number of prisoners over the age of 65 grew 94 times faster than the general prison population.

Soon, one-third of prisoners will be over the age of 50. Query: Do prisoners turning 50 get AARP solicitations like the rest of us?

Nationally, it costs $16 billion to incarcerate 246,600 elderly inmates according to the American Civil Liberties Union.

In the state of Nevada, elderly inmates constitute 5.8 percent of the state’s prison population, but they account for 20 percent of the prison’s annual budget.

BLIND IN ONE EYE, CAN’T SEE OUT THE OTHER

Those statistics cited by the dissenting judge in Colwell v. Bannister (Nevada Department of Corrections) bring us to our case.

John Colwell is a 67-year old man serving multiple criminal sentences, including life without the possibility of parole. He developed eye problems after he was incarcerated with NDOC in 1991.

Cowell is blind in one eye due to a cataract. His treating doctors recommended cataract surgery and opined the surgery would restore his vision.

The surgery was denied by NDOC because of its “one eye policy” — cataract surgery is refused if an inmate can manage to function in prison with one eye.

MEDICAL DIRECTOR 106

NDOC has a formal written policy for cataract treatment, Medical Directive 106, which essentially states that surgical removal of cataracts is done on a case by case basis and requires approval of the prison’s medical director and the Utilization Review Panel, whatever that is.

Three different doctors recommended that Colwell’s right-eye cataract be treated. The prison denied surgery and Colwell’s grievances and appeals were also denied. Denial was partially based on Administrative Regulation 618 which considers cataract surgery as cosmetic/elective surgery.

CRUEL AND UNUSUAL PUNISHMENT

Colwell filed a lawsuit alleging that his Eighth Amendment rights were violated. His case was presented and argued by law students from Appellate Litigation Projects in the University of Arkansas and University of Saint Thomas School of Law in Minneapolis.

The students argued that prison officials were “deliberately indifferent” to Colwell’s serious medical needs in refusing him surgery to restore his vision.

PRISON MEDICAL CARE

Under court cases, the government has an obligation to provide medical care for those whom it is punishing by incarceration. “Deliberate indifference to serious medical needs” may constitute an Eighth Amendment violation — cruel and unusual punishment.

NO TRIFLING MATTER

Two of the three federal Court of Appeals judges agreed that monocular blindness is a serious medical need, writing, “Although blindness in one eye is not life-threatening, it is no trifling matter either. It is not a bump or a scrape or a tummy ache. . .the policy of the NDOC requiring an inmate to endure reversible blindness in one eye if he can still see out of the other … this is the very definition of deliberate indifference.”

DISSENTING OPINION

Circuit Judge Bybee disagreed, writing, “If I were the warden, and if I had the resources at my disposal, I would make sure the Colwell got his elective surgery. But that is not the question before us. The question is whether the State’s refusal to obtain surgery for Colwell’s eye constitutes ‘cruel and unusual punishment’ in violation of the Eighth Amendment.”

Bybee found no deliberate indifference to Colwell’s medical needs, instead simply a pragmatic decision. But his vote doesn’t count.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.