Secret contract aims to upend landmark California prison litigation

California commissioned an exhaustive study of whether its prisons are providing sufficient mental health care, an effort officials said they could use to try to end a 34-year-old federal lawsuit over how the state treats inmates with mental illness.

But corrections officials won't disclose basic details of the now-stalled study — even the cost to taxpayers for two consulting firms and more than two dozen national experts retained to examine the issue in 2023. State lawyers cited attorney-client privilege and ongoing litigation in denying KFF Health News' public records requests for the information. Independent legal experts questioned the blanket denials.

The legal saga began in 1990, when attorneys representing prisoners sued California for violating the U.S. Constitution's ban on cruel and unusual punishment by providing inadequate mental health care in prisons.

The court ruled against the state in 1995, and since then a federal judge, guided by a court-appointed special master, oversees the state's treatment of about 31,000 prisoners with serious mental illness. It's one of several major federal lawsuits that have largely stripped the state of control of its own prison system.

California officials set out nearly four years ago to show that care has improved beyond the constitutional threshold, retaining Colorado-based Voorhis/Robertson Justice Services and Chicago-based Falcon Correctional and Community Services to undertake a study. In August 2022, their analysts reported that the state's treatment guidelines and its required levels of staffing exceed national standards "and exceed the levels needed for providing clinically adequate care for patients in a correctional setting."

The state then retained the same firms to conduct "a broader, systemwide study" of mental health services in California prisons and how they compare to national standards and other similar systems.

California could seek to end or modify court supervision based on the experts' findings and recommendations, though they "have not made any decision to move for termination," Paul Mello, one of the attorneys representing the state, said in a letter in court documents.

"They’re being cagey about exactly what the purpose is, but they’re reserving the right to use it to terminate," said Michael Bien, an attorney representing the rights of prisoners with mental illness in the case.

Despite the potential significance of the study, corrections officials repeatedly declined to provide even basic details about it.

They initially denied that it was their contract at all, pointing to a different state agency. A week later, and after KFF Health News’ further inquiries, corrections officials acknowledged it was indeed their contract. But they denied KFF Health News’ repeated public records requests for the contracts, the costs, or the expense invoices filed by the consultants, citing attorney-client privilege, attorneys' confidential work product, and the ongoing litigation.

Brittney Barsotti, general counsel of the California News Publishers Association, said the state could have kept sensitive information confidential while still responding to other aspects of the records request.

“The courts have held time and time again that redaction of documents is preferred over blanket denials like this,” she said. The use of blanket denials without any context or explanation is "an ongoing and I’d say even expanding issue," she said in advance of Sunshine Week, a collaborative effort to emphasize the importance of public records and open government, observed this year March 10-16.

Without information on how exemptions to public records laws apply to specific documents, it is difficult for reporters or other members of the public to challenge such denials or tailor their requests, Barsotti added.

“They should be able to provide some figures on cost," she added. "They should at least be able to provide aggregate general information that shouldn’t come under these various exemptions.”

The California Public Records Act allows exemptions for documents prepared specifically for use in pending litigation, said David Loy, legal director of the nonprofit, nonpartisan First Amendment Coalition, which supports government transparency. And a new law says government contracts, "including the price and terms of payment," are generally public records, while listing the same legal exemptions.

In their latest denial, on March 11, department officials cited a prior court ruling that legal privacy covers invoices, including the aggregate cost.

In court documents, however, the state's lawyers deny that the study is specifically tied to the litigation but is part of their self-evaluation of mental health care, casting doubt on the rationale given for denying the records requests.

Corrections officials provided KFF Health News with a single, two-page August 2020 letter to the consultants outlining the hourly rates the state would pay for the initial 18-month study. Managing partners or principals in the consulting firms were to receive $350 an hour; technical experts, $300; associates, $200; and support staff, $120. In addition, California agreed to reimburse the consultants for such expenses as airfare, lodging, meals, car rental, and gas.

Although the state declined to provide any records related to the bigger subsequent study, court documents outline the sweeping, exhaustive nature of what was anticipated.

One hired consultant, Elizabeth Falcon, the founder of Falcon, said in a written declaration that the research involved was a "massive logistical undertaking." The consulting firms hired about 30 top specialists in behavioral health, psychiatry, security, operations, nursing, programming, staffing, and data analytics, she said. They spent eight months developing a scientifically validated method to study the mental health care at prisons.

Prisoners' attorneys have objected that the state's plan for extensive visits to all 28 prisons where mental health care is provided is overly burdensome for patients and attorneys, as well as expensive.

The consultants had completed partial tours of five prisons in July 2023 before Chief U.S. District Judge Kimberly Mueller temporarily halted the visits while she considered their scope.

Mueller rejected the state’s request to resume the tours in a March 6 order.

“The record is devoid of several pieces of threshold evidence necessary to support the costly and time-consuming prison tours,” she wrote in part. Those include evidence backing the initial study’s finding that California’s standards exceed national standards or that those national standards themselves are sufficient.

Moreover, the tours would distract from the state’s ongoing and, so far, deficient efforts to bring mental health care to constitutionally adequate levels, she wrote. They also would be redundant to ongoing reviews by the special master, she wrote, including his expert’s findings that the state still is not doing enough to prevent prisoners’ suicides.

Department officials are reviewing the order, said spokesperson Terri Hardy, who, because of the ongoing lawsuit, would not say whether they will appeal Mueller’s decision.

Gov. Gavin Newsom is the second consecutive Democratic governor to toy with ending the litigation. His predecessor, Jerry Brown, tried unsuccessfully more than a decade ago, citing similar findings by the state's experts, but then-U.S. District Judge Lawrence Karlton ruled in April 2013 that the state was still providing substandard care.

This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.