With Its Prisons Dangerously Full, Why Is California Fighting for Custody of a Dying Prisoner Across the Country?

Gloria Johnson-Ester was on her way to church early on November 2, 2008, when she received a phone call telling her that her son's prison sentence had been commuted, and he would be coming home after spending the last 15 years behind bars.

"I just went to church and cried and couldn't sit still. I just got overjoyed," she recalls, beaming. "I thought, 'He's free! He's free!'"

Her son, Montell Johnson, is terminally ill, struggling through the advanced stages of chronic progressive multiple sclerosis. According to the phone call to his mother, his condition had convinced former Illinois Governor Rod Blagojevich to grant him a rare executive clemency order, which commuted his sentence to time served.

The day after she got the good news, Johnson-Ester raced to government and social service agencies all over Chicago, applying for social security and Medicare benefits for him and trying to piece together a plan to care for him at her home on the South Side, where she lives alone. She cleared out her dining room to create a makeshift hospital room. When a parole officer called her to find out where Montell was going to live, she gladly reported that he would be staying with his mother.

But no sooner had Johnson-Ester begun her preparations than she was hit with news that would grind her frantic preparations to a halt. Despite the order for his release from the Illinois prison system, officials in California were now saying that rather than go home, her son should be transferred to their custody. As per a ten-year-old agreement between the former governors of Illinois and California, Montell Johnson was to be extradited to California, to finish out the remainder of a life sentence for a different crime. (In April 1997, Johnson was found guilty of murdering an alleged drug dealer during an altercation in a Los Angeles liquor store that took place three years prior. The trial, in which Johnson acted as his own attorney, resulted in a life sentence.)

Montell Johnson, once a stocky man, now weighs 70 lb. and is paralyzed from the waist down. On good days, he is able to move the upper left side of his body. On bad days, he is unable to speak. There is no hope that he will ever be able to rid himself of the feeding tube that provides him with sustenance, or the catheter and fecal bag that replace any modicum of independence. Occasionally, nurses have to use a suction device to remove phlegm from his throat when he is unable to cough or rely on an oxygen tank to help him breathe.

Johnson requires "total care," according to a court statement submitted this summer by Chicago neurologist Dr. Norman Kohn. "He is severely impaired in speech and communication. His speech is almost unintelligible," the statement reads. "He relies on his mother for communication and decision-making." Indeed, his mother has worked out a system in which she goes through the alphabet and he opens and closes his eyes to try to signal the words he is trying to say. She says she is the only person patient enough to walk him through the process.

Despite all this, California officials are pressing forward to take him back -- and the state of Illinois is cooperating. According to a sworn affidavidt by the Chief Legal Counsel for the Illinois Department of Corrections, an "air ambulance company" has already been contacted to arrange the transfer of Johnson to California. On August 5, Judith Harper, Assistant Chief Counsel for the CDCR wrote to James Doran, a lawyer in the llinois Attorney General's office, to "confirm our conversation this morning" that the CDCR "is expecting that [Johnson] will be returned to California to serve out the sentence imposed on him here."

This latest demand for his rendition -- the term used in court documents -- comes at a time when the state of California has been ordered by a special three-judge panel to release some 43,000 prisoners in its custody over the next two years, specifically because emergency levels of overcrowding have led so many prisoners to languish without adequete medical care.

This order comes only a few years after California's prison healthcare was taken out of state hands by a federal judge, who placed the prison medical system into receivership after concluding that the care for its almost 175,000 prisoners was woefully inadequate. "By all accounts, the California Prison Medical System is broken beyond repair," U.S. District Judge Thelto Henderson wrote in 2005. " … It is an uncontested fact that, on average, an inmate in one of California's prisons needlessly dies every six or seven days, due to constitutional deficiencies in the [California Department of Corrections and Rehabilitation]'s medical delivery system. This statistic, as awful as it is, barely provides a window into the waste of human life occurring behind California's prison walls due to the gross failures of the medical delivery system."

Four years later, the state has reportedly provided more funding for prison healthcare -- raising the pay of prison medical staff, purchasing new medical transport vehicles, and hiring hundreds of new medical personnel, according to the California Prison Health Care Services website. But there is little proof that sick prisoners are receiving better care. Last month, the same three-judge panel that ordered deep cuts in the state's prison population found that the terrible conditions described by Judge Henderson have barely changed. "[T]he medical and mental health care available to inmates in the California prison system is woefully and constitutionally inadequate, and has been so for more than a decade," they concluded.

"Inmates are forced to wait months or years for medically necessary appointments and examinations, and many receive inadequate medical care in substandard facilities that lack the medical equipment required to conduct routine examinations or afford essential medical treatment. .. A significant number of inmates have died as a result of the state's failure to provide constitutionally adequate medical care."

Yet, the Schwarzenegger administration is fighting to resume control of its prison medical system. In January, state Attorney General Jerry Brown accused healthcare receiver J. Clark Kelso of pursuing a "gold-plated, Utopian plan" by demanding the state invest some $8 billion into such initiatives as the construction of seven prison hospitals.

"We all know that California's entire healthcare delivery system is in receivership because it can't deliver healthcare to patients it already has," Johnsons's attorney, Harold Hirshman, told AlterNet.

Sending Montell Johnson to California, he says, "would be the functional equivalent of throwing Montell Johnson in a pit."

The Death Contract

In December 2008 -- one month after Gloria Johnson-Ester got that fateful phone call -- AlterNet published an article explaining the circumstances that had led to this point.

They were unusual, to say the least. In 1998, the states of California and Illinois struck a deal: California would send Montell Johnson, then serving a life sentence for a 1994 drug-related murder, to Illinois to stand trial there for a separate homicide. Per the agreement, if Illinois succeeded in sentencing Johnson to death, that state would retain custody. If not, he would be returned to California.

"Should the sentence of death received … be vacated or commuted to a final judgment other than the sentence of death … then he shall be made available to the State of California to remain in the custody of the California Department of Corrections," the contract read. In court filings, Johnson's attorneys refer to the agreement as "the death contract."

Montell Johnson was indeed sent to Illinois's death row. However, in January 2003, then-Governor George Ryan emptied out death row and commuted Montell's sentence to 40 years, due in part to doubts that had arisen over his guilt -- not the least of which come from the mother of the victim in the case, Terry Hoyt, who firmly believes he is innocent of killing her daughter, Dorianne Warnsley. Despite the pact between the states, when his sentence was commuted, he was not sent back to California.

Hoyt has become an impassioned defender of Montell Johnson, through a steadfast belief in his innocence in her daughter's case, as well as a friendship with his mother. "Like I've said many times, if they were going to abide by the agreement made by those two governors," she says, "then they should've taken Montell in 2003."

Hoyt fears that Johnson won't survive the flight to California. Even if he does, she says, "he'll be gone shortly afterwards. I think that's cruel and inhumane."

"I don't care what he did out there," she says. "He didn't get the death penalty out there."

According to his Johnston-Ester, the fact that California still wanted her son back -- particularly now when he poses no risk and presents such a burden -- came as a shock. "I didn't know nothing about California," she said. "I didn't even consider California. I was busy doing all this stuff to prepare for him to come home."

On August 31, Hirshman filed a lawsuit on behalf of Johnson-Ester, seeking to block her son's transfer, arguing that the state of California is ill-equipped to care for Montell and that sending him there in his condition would constitute "cruel and unusual punishment," a violation of the 8th Amendment. Named in the lawsuit are: Gov. Arnold Schwarzenegger; Matthew Cate, Secretary of the CDCR; Robin Dezember, Chief Deputy Secretary of Health Care Services for the CDCR and three "Unknown Defendants," described as "employees or contractors of the [CDCR] who have refused to provide a treatment plan for Mr. Johnson."

In the lawsuit, attorneys for Johnson point out that he has already been "at death's door before because of constitutionally inadequate, disorganized, inattentive medical care and care for his life needs." (In October 2007, doctors gave him six months to live.)

"His life is at risk and he will endure needless and unconstitutional pain and suffering, if his rendition to California is allowed and Defendants treat him as they treat the other prisoners in their custody. Despite having access to the physicians currently responsible for Mr. Johnson's care, Defendants refuse even to discuss, let alone commit to, how they will care for him. Without an injunction, Mr. Johnson will be yet another victim of California's budget crisis and its unconstitutional prison medical system."

A System "Collapsing Under Its Own Weight"

A violent riot last month at the California Institution for Men in Chino, housing almost 6,000 prisoners -- twice the number it was built for -- was the latest sign of how out of hand the overpopulation problem has gotten in California's prisons. As Gov. Arnold Schwarzenegger admitted after touring the ruined prison grounds last month, California's prison system is "collapsing under its own weight."

This dire statement came at the same time as the three-judge panel’s observation that “a significant number of inmates have died as a result of the state's failure to provide constitutionally adequate medical care.”

Yet in the e-mail sent last month to Illinois attorney James Doran, Judith Harper of the CDCR claimed that "California has sufficient medical facilities to be able to address [Johnson's] medical needs," adding that "it would be inappropriate for our medical staff to develop a treatment plan for him until they have had a chance to examine him in person."

Assuming Johnson survives the flight to California -- a trip that, according to the most recent filings by Johnson's attorneys, will cost an estimated $25,000, to be paid by the state of Illinois -- the cost of his current care is estimated to be $10,000 a month.

That doesn't count the hours of care currently provided to him by his mother, who drives almost two hours in each direction five days a week to sit by his bedside at the Sheridan Correctional Center in La Salle County and attend to his needs. Without her care, she says, it is doubtful he would last very long at all. "He depends on me," she told AlterNet. "You take me out of the picture and it's over."

Terry Thornton, a spokesperson for the California Department of Corrections and Rehabilitation, said that she was unfamiliar with the specifics of the Johnson case and therefore could not comment on why the state would vie for custody of such a high-cost and low-risk offender. However, she said, "If he has a conviction in California, then he is required by the law to serve that and to be committed to the custody of the CDCR."

Although Johnson's legal team speculates that any order to enforce the original "death contract" would officially have to come from the Governor's office, says Hirshman, "We don't know who is behind this. All we know is we keep being told it's California's policy that they get Montell back."

Any attempts to go beyond such official statements have proven useless. "I don't get my phone calls returned," says Hirshman.

Phone calls from AlterNet to the CDCR, the office of Gov. Schwarzenegger, and the Illinois Attorney General's office went unanswered.

Terminal Prisoners Behind Bars: "Is this the best use of our taxpayer dollars?"

California's pursuit of Johnson runs counter to national trends, in which lawmakers and corrections officials, in an effort to mitigate the skyrocketing costs of caring for their growing elderly and special needs inmate populations, are actively seeking alternatives for low-risk and high-cost offenders.

Due mostly to more stringent sentencing guidelines and a reduced opportunity for parole, over the last 10 years alone, the population of prisoners over the age of 55 has doubled in state and federal facilities, with California leading the pack. The number of elderly inmates in California's prison system, for example, grew from four percent in 1990 to 11 percent in 2005. The associated medical costs are bankrupting corrections agencies across the country at a time when state budgets, California's among them, are already strapped.

According to a recent study by the Vera Institute titled The Financial Crisis in Corrections, in 2008 alone, "at least seven states established medical or geriatric parole, or expanded already existing provisions" in an effort to mitigate those costs. At least three states have already followed suit this year.

Among them is Washington State, where a legislative initiative hopes to reap $1.5 million in savings by placing about two dozen chronically or terminally ill inmates over the age of 55 into nursing homes or with family members over the next two years.

"It's a nationwide issue and we're certainly not immune to it," said Chad Lewis, a spokesman for the Washington State Department of Corrections. "Prisons are obviously designed for rehabilitation and they are designed for security, but they are not designed to be hospitals for severely ill. That's just not what prisons are intended to do."

"The question we are asking is: Is this the best use of our taxpayer dollars, to use two guards to transport someone who might be on a respirator? If someone is on a dialysis, is that the best place for them?," said Lewis. "There is also a humanitarian question. They are most likely someone's son or husband."

According to Dr. Robert Weisberg, a sentencing specialist and professor of at Stanford University, California, whose prison population is more than eight times that of Washington's, only grants compassionate release to about four to six inmates per year. California's program is administered by the original sentencing court, at the recommendation of either the Secretary of the California Department of Corrections and Rehabilitation (CDCR) or the California Board of Parole Hearings. Recommendations must be approved by the governor.

"On the whole, California is only doing this for the terminally ill people, and even then, not for all terminally ill people," said Weisberg. "I can only guess that the California officials that know about this case wouldn't have gone through the trouble of getting him back to California if they were even considering compassionate release for him."

But Gloria Johnson-Ester believes that her son could be eligible for the program if only they would consider his case. "I really believe that if California would take the time to send somebody to Illinois to look at Montell, they wouldn't want Montell," she said. "If they knew his condition, I don't think they would take them. They are in a $42 billion deficit! What purpose does it serve to bring a man back there just so that they can say he died in prison?"

"If Judge (Robert) Dow sends him to California, I'm going to come home and start writing his obituary, because he won't last, and I know that," she said.

Johnson-Ester's attorneys are charging that sending Montell back to California in his state would be in violation of the Eight Amendment ban on "cruel and unusual punishment." A federal judge in Illinois is currently weighing whether Johnson is physically able to make the trip, and awaiting a doctor's recommendation. The order could come as soon as one month from now.

Should he be released to his mother's custody, the burden of paying for his continued medical care would fall on a combination of state and federal programs, a price tag far less than the tens of thousands of dollars that Illinoisans currently pay to keep him in custody and under constant guard.

Gloria Johnson-Ester says she is more than ready to take on the responsibility of caring for him in her home. As his legal guardian, she has applied for state and federal benefits on his behalf and has received verification that he is eligible for Medicare and Social Security disability benefits. She has also has gotten a commitment from the National Multiple Sclerosis Society to help with various supplies and services.

"I took care of my husband after he suffered a massive stroke until he passed away seven years later," she says. "I know what to do and I can do it."

She has even thought about the end of his life, which she says no mother is prepared for, but that she expects to be alive to see. "Doctors have said that when he expires, he will either aspirate or his heart will just stop beating," she said. "I want him to die in dignity, at home, with his family and loved ones."

Terry Hoyt, who lost her own daughter 15 years ago, says the same thing. "I want him home when he goes,” she says. “That's the only justice I'm going to get out of this."

But California officials show no sign of budging. "It seems like it should be very simple for somebody to say, 'Gee, we don't want to spend this money. We've got plenty of other problems,'" says Hirshman. "But we can't seem to find anybody who's willing to make that decision."

This article was supported in part by a grant from the Soros Justice Fellowship Program of the Open Society Institute


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