The letter to the Kentucky Department of Corrections was simple and to the point: “No one should go to jail to die.”
Attorney Robert Blau believed that Kenneth Marcum’s death in the Campbell County jail wasn’t right. He thought it merited further attention.
Blau already had filed a lawsuit that was making its way through federal court. And his letter to the department was more than a plea. It was a well-reasoned demand:
“I believe that an investigation should be conducted of Mr. Marcum’s death. I believe that Southern Health Partners violated many standards in the care and treatment of Kenneth Marcum.”
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Southern Health Partners, a private, for-profit company, provided medical services to the Campbell County jail and 29 others in Kentucky.
Marcum, 50, had been placed in a so-called “detox cell,” where he was ignored by jail staff for hours despite a protocol that required monitoring in 20-minute intervals, according to the lawsuit. When staff finally checked Marcum on the morning of April 27, 2008, he was dead.
And in 2010, his advocate, attorney Blau, wanted the Department of Corrections to do its job and examine health care and oversight shortcomings at the jail.
Blau’s letter concluded: “Let me know your plans.”
But the state agency, with nearly 4,500 employees and an annual budget of a half-billion dollars, neither notified Blau of its plans nor investigated Marcum’s death.
That’s not uncommon. A months-long examination by WFPL’s Kentucky Center for Investigative Reporting found that the DOC rarely probes deeply when a jail inmate dies. And it apparently has not sanctioned a single jail in connection with the more than 140 inmate deaths that have occurred during the past five-and-a-half years.
“There is no inspection/investigation of the quality of medical care,” said Greg Belzley, a Louisville attorney who has filed numerous lawsuits alleging that substandard health care in jails has caused or contributed to inmate deaths and near-deaths.
The DOC says investigations of jail deaths routinely fall to law enforcement. But despite civil settlements, damning court opinions and an occasional criminal inquiry, there have been no recommendations by the department for more or better training. And there has been no tightening of policies and procedures to ensure proper care — despite the DOC’s motto that pledges a “safe, secure and humane environment” for inmates.
This is not just a Kentucky problem. This is a national problem. There needs to be a body that investigates as well as one that does routine monitoring. What kind of independent oversight and monitoring is going on?
Michele Deitch, who teaches at the University of Texas and is a nationally known authority on criminal-justice policy
Yet there is substantial evidence of substandard jail health care, including understaffed and inadequately trained medical teams, detailed in cases involving deaths such as Marcum’s. His mother’s lawsuit against the jail, its employees and Southern Health Partners was settled in 2011 for about $113,000.
The DOC says it does review reports of jail deaths to determine if there was a violation of state jail standards.
But those accounts, called Extraordinary Occurrence Reports, or EORs, are provided by the jails. They typically are sparse, often just a page or two, providing the jail staff’s account of what allegedly occurred, and usually with no independent inquiry or verification.
The department also contends that issues of medical-care quality and provider competency are not within its purview, and that it is not responsible for overseeing the private, for-profit health care companies that staff most of the state’s jails. The jails strike agreements with those providers, the department said in response to questions from KyCIR, and the state “is not a party to the contract.”
However, at least some Kentucky jails have written policies proclaiming that inmates “shall be entitled to health care comparable to that available to citizens in the surrounding community.” And Ray Sabbatine, a former Fayette County jailer who now does consulting work, said the “‘pass the buck’ days are over.”
“If life-safety standards are not being met, the DOC doesn’t defer to another state agency,” Sabbatine said. “As long as there are state standards, the DOC must enforce them.
“If a [jail] contracts for health care services, the government has the duty to assure that the contract provider is meeting the exact same standard of care as the county, as monitored by the DOC inspection process.”
Standards related to jail medical care that the department does enforce consist mostly of a checklist for basic policies and procedures, such as: Does the jailer have written delousing procedures? Does the jail have first-aid kits available at all times?
“Here's the problem with the state inspections: The state elevates form over substance,” Belzley said. “In terms of anything that's not immediately visible, the state looks to see if there's a policy in place and, if there is, it stops there.”
The department did not respond to a question from KyCIR asking whether the state needs additional legal authority to monitor medical care for inmates, and to address deficiencies.
Regardless of whether state regulations permit or require DOC investigations of jail deaths, Belzley and Sabbatine fault the department for failing to undertake them. The DOC “has a moral responsibility” to examine those deaths and instances of serious harm to determine “what was done and what should have been done,” Sabbatine said.
He should never have died. Their negligence was the reason he died. When he cried for help, they didn’t answer him.
Sandra Richard, mother of Kenneth Marcum
Michele Deitch, who teaches at the University of Texas and is a nationally known authority on criminal-justice policy, argues that an independent body should be responsible for investigating jail conditions, including the quality of health care.
“This is not just a Kentucky problem. This is a national problem,” Deitch said. “There needs to be a body that investigates as well as one that does routine monitoring. What kind of independent oversight and monitoring is going on?”
Deitch posed that question in a nationwide survey she conducted several years ago. The answer, in Kentucky and virtually every other state: none.
Corrections officials often see independent oversight “as a threat, but they shouldn’t,” Deitch said.
“Nobody wants someone looking over their shoulder to see how they’re doing,” she said. “But independent oversight benefits everybody.”
The American Bar Association agrees with the importance of independent oversight which, while rare in this country is widely practiced in Europe. In 2008, the ABA’s criminal-justice section urged state governments to “establish public entities that are independent of any correctional agency to regularly monitor and report publicly on the conditions” in prisons, jails and other correctional facilities.
The Department of Corrections told KyCIR that it has “no position” on the value of independent monitoring.
But Sandra Richard, Kenneth Marcum’s mother, is convinced that someone needs to do a better job of ensuring that jail inmates are safe and receive adequate health care.
“He should never have died,” Richard said. “Their negligence was the reason he died. When he cried for help, they didn’t answer him.”