Prisoners’ rights attorneys from the American Civil Liberties Union traveled from Washington, D.C., to Baltimore on Tuesday, asking a federal judge to intervene in an increasingly contentious fight with the Maryland Office of the Attorney General over conditions in Baltimore jails.

For nearly three hours, the two sides traded arguments about the directives provided by Dr. Michael Puisis, the independent medical monitor who has for years assessed the health care system inside city jails, which have been run by the state since the early 1990s.

U.S. Judge Ellen Hollander described the arguments made by the state as a “sea change” in legal strategy that she could not help but notice coincided with the hiring of private attorney William Lunsford, of Butler Snow LLP, and his colleagues. The private lawyers have gained a reputation for defending prison systems in the Deep South in exchange for lucrative contracts.

“I feel that now that you’re in the case, things that had been taken for granted ... are no longer tolerated,” Hollander remarked at one point in the hearing, addressing Lunsford directly. “It’s noticeably different since you joined the crowd.”

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Lunsford quipped that he wasn’t sure whether to be apologetic or proud of the judge’s comments about him, referencing the stagnant state of the lawsuit and noting that he had his colleagues “had to be disruptive.”

“We’re going to have to change some things to move forward,” he said.

Eight years into its settlement agreement with the ACLU and other advocacy groups over health care and mental health treatment in Baltimore city jails, the Maryland attorney general’s office has abruptly taken aim at the independent physician tasked with gauging whether the corrections department is achieving mandated improvements, describing his reports and recommendations as confusing and erroneous.

Attorneys working for the state also recently disallowed Puisis from directly interviewing clinicians at the jail, as he has done since 2020, without first arranging it with the state corrections department.

But if the civil rights attorneys were expecting reinforcement from Hollander in defending the monitor against those attacks, she showed few signs of preparing to do so. The federal judge questioned whether the independent medical monitor really needed to speak with doctors without the state’s attorneys or other staff present. She also questioned whether Puisis was clear enough on what the state needs to do to end its federal oversight.

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The lawsuit at issue, Duvall v. Moore, stretches back to the mid-1970s. Since then, it has been settled, reopened, and settled again, mostly recently in 2016, then reopened once more to enforce that settlement.

In his reports, Puisis has provided an atypical level of transparency into the dysfunction of the jail’s health care system under its current private medical provider, YesCare, whose parent company rebranded into two entities. One of those entities declared bankruptcy earlier this year in a controversial legal maneuver that has blocked the monetary awards of hundreds of people who won or settled lawsuits over substandard medical care while incarcerated.

Puisis has identified a multitude of deficiencies, most recently detailing how people with dementia were winding up improperly housed in the Baltimore Central Booking and Intake Center, and in at least one case, assaulted. He has served as an expert witness in numerous correctional health care lawsuits across the country.

In a court filing, Lunsford argued that the state of Maryland has, despite the monitor’s assessments, vastly improved medical care in the jail. But the medical monitor, Lunsford added, was posing “significant challenges,” creating confusion and frustrating state officials.

“The state, DPSCS [Department of Public Safety and Correctional Services] and — in particular – the dedicated men and women working in BCBIC [Baltimore Central Booking and Intake Center] have endured years of monitoring, working at every stage to acquiesce to the ever-shifting recommendations following each monitoring cycle,” Lunsford wrote in the filing. “Despite all these efforts, compliance seems equally elusive and unattainable in the views of many.”

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Lunsford and his co-counsel added that the “root cause of this confusion” was attributable to Puisis making “recommendations falling outside the terms of the settlement agreement.” He described the monitor’s directives as “confusing and/or unclear” or “new recommendations.” Attorneys for the state also accused Puisis of inaccurately describing its progress, or lack thereof, with crafting new policies for the jail, and its obligations to do so.

Attorneys for the ACLU, David Fathi and Corene Kendrick, have pushed back in recent months on several of the state’s arguments and characterized its efforts as “gratuitously attacking” Puisis. Many of the recommendations the state asserts are “new” have in fact been “made repeatedly over a period of years” and yet have been “persistently disregarded” by the state, the attorneys wrote in a recent filing.

Another item of contention is whether the corrections department is required to hire an on-site medical director for the Baltimore jail.

Tensions had been rising prior to the dispute over the medical monitor. Earlier this year, the ACLU’s prisoners’ rights attorneys expressed their frustration with the state for what they describe as its slow pace on coming into compliance with the settlement, which is years past its due date.

The ACLU asked the judge to call the Tuesday status conference and quiz the state about its “copy-and-paste” plans to come into compliance that the attorneys said were “recycled” from previous versions. The state had been resisting the conference, insisting that it is an added unnecessary burden and that it is making significant progress.

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But when the hearing came, the judge appeared to be sympathetic to the state’s arguments and its attorney’s frustrations, describing various provisions of the settlement agreement as “circular” and indicating that they could be interpreted numerous ways.

Hollander also described Puisis’ reports as “dense” multiple times and, while she applauded his attention to detail, suggested that she could see why they might be confusing.

But the judge also called attention to the contradictions of the state’s evolving posture on the case. For instance, while the state now claims it can achieve compliance within a year, Hollander pointed out that earlier this year, the attorney general’s office admitted it would not be in compliance with multiple provisions of the settlement agreement by the mandated deadline of June 2024.

And the attorney general’s office never attributed that to confusion over the monitor’s reports, she added.

“I sense that is changing,” Hollander said.

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Lunsford responded that they were merely “acquiescing to the measurements” laid out by the monitor.

Puisis also spoke on his own behalf, explaining to the judge that his many recommendations are not used to score compliance, but to help corrections officials improve health care.

The state is requesting that the parties adhere to a “priority listing” of mandates remaining to come into compliance with the settlement, then have a separate listing of disputes with Puisis that would be decided by the magistrate judge.

Puisis called that suggestion “much ado about nothing.” He added that much of the information in his reports is derived from audits conducted by the corrections department itself. In his estimation, the state is “not close” to coming into compliance within a year.

The medical monitor’s main insistence was that the corrections department should have an on-site medical director who works full time at the jail. He has complained that the state uses policies designed for its prisons in the jail and described the Baltimore jail system as the “little orphan that gets neglected.” Lunsford later called out that characterization as offensive.

Attorneys for the state have asked that Hollander, the judge overseeing the case, issue a court order suspending all site visits and audits by the medical monitor “until such time as the parties and the medical monitor obtain a consensus on a final listing of all tasks to be undertaken by the state to achieve substantial compliance with the settlement agreement.”

Hollander told the ACLU and the state’s attorneys that she will have to “mull it over” and would either order another conference, or write a letter, in the coming weeks.

bconarck@thebaltimorebanner.com

This story has been updated to clarify that a company affiliated with YesCare declared bankruptcy.

Ben Conarck is a criminal justice reporter for The Baltimore Banner. Previously, he covered healthcare and investigations for the Miami Herald and criminal justice for the Florida Times-Union.

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