00:02 PT

Okay, I think we're good to go.

00:05 PT

Okay, so I wanted to start by explaining how we plan to use the conversation we're about to have. Our conversation is not legally privileged, and we will not keep what you say confidential. We plan to make transcripts and recordings of our interviews available for use by future researchers in the general public. And portions may be posted online or discussed and posted on our website or other published writing. I want our conversation to go freely and I realize that what you may discuss is a sensitive topic or mentioned a piece of information that you later realize you would like withheld. If you request it now, at the end of the interview, or later, on after further reflection, we're happy for you to review the transcript of our conversation before it is made public and to redact any portions you deem necessary from the transcript and the recording. So the focus of this interview is on your experiences and how the pandemic impacted your work and emotions more generally. So I guess I would love if you could start by introducing yourself and just giving a brief professional biography including your work and the type of cases that you work on.

01:09 SS

Okay, my name is Stacy Scheff, I have my own firm and I do prisoners’ civil rights cases almost exclusively. Been doing that for over 10 years. Yeah, is that…

01:25 PT

Yeah, that's awesome. Um, do you want to tell us a little bit more about your work before the pandemic began? We can just start with that.

01:35 SS

Yeah, I was just doing prisoner civil rights cases, the main issue that I found was medical care, because Arizona has privatized medical care for prisoners. And so that was becoming the majority of the work that I was doing for prisoners anyway.

02:03 PT

Okay and so then when COVID hit, did that change your work in any specific way? Or how would you say like, the transition was, from pre COVID to during the pandemic?

02:17 SS

Well, obviously, I could no longer visit my clients in person, they locked down on visitation. And so it was all via phone and video. The reactions of the, like prison administration and the private health care providers was very disappointing. My clients were reporting not getting masks, you know, not getting tested not getting isolated when they were sick. And so obviously, this is-- it's a medical issue, but it's a new medical issue at that point. And so the medical providers tended to fall back on Well, gosh, you know, nobody could have known about this. So, you know, we certainly couldn't have done anything to prevent illness and death.

03:41 PT

Right. Right. That makes sense. So, wow, okay. That's crazy. Like, I know, you said that the administration was really disappointing. Were there any other specific ways that you could pinpoint? Of course, the lack of masks and the lack of social distancing is obviously heartbreaking. Or is there any other like specific instance that you can recall where you were, like, particularly disappointed in a certain case or in a certain interaction?

04:07 SS

Well, I saw early on that the administration was telling officers not to wear masks, like specifically. You know, because we're a very Republican, right wing state, and, you know, masking was and still is a political thing. So they were saying, you know, you can't wear masks. The, the union was saying, you know, if they tell you not to wear your mask, you walk away, you know, walk off the job because it’s not safe and so they eventually resolved that. When I did start going back, I was noticing that my clients masks were very poorly made. They were, you know, the the reusable ones, but they would only have one. And they were, they were, like gapping. And they didn't sit well. And then I had a client who we had just won a preliminary injunction for him to go to a neurosurgeon when he passed away of COVID.

05:35 PT

Oh my gosh.

05:40 SS

And that, that obviously made the case much more complicated for me to deal with the, the death portion, and, you know, substituting the plaintiff and then having the court basically say, look, because he died, you can't get pain and suffering damages. And so, you know, it took what was a really good case, and made it almost impossible to to get anything out of because, of course, the the private contractor was saying, well, you know, this COVID has nothing to do with the lawsuit, if you want to add, you know, another claim for the COVID. But nobody saw this coming. And so, good luck with that.

06:40 PT

Oh, my gosh, that's heartbreaking. That's so so crazy. Um, so I guess, how did you respond in that case? Because obviously, you're presented with a good luck with that sort of, I guess, statement, but how did you personally respond to whether that was professionally or personally? Like, how did you go about handling that?

07:11 SS

Well, I was personally very sad. Of course, I did get the plaintiff substituted, I managed to get an estate attorney to represent the the personal representative, who was substituted for the plaintiff, and then the state kept trying to get it thrown out. We did survive summary judgment. However, the court did find that there was no pain and suffering damages that survived. And that's apparently an ongoing issue. And, like, there, there is actually a malpractice claim against me currently, so I don't want to go in too much detail about that, because there's, you know, but, you know, the facts of the case are that the judge believes that when you die, unless you have a wrongful death claim, your pain and suffering for, you know, his neurological issues, just goes away because he's dead, he's, he's not suffering anymore. And the the, there is some case law that says that the purpose of section 1983 is remedial to ensure that this doesn't happen to anyone else. And so, you know, if the state can just kill people and get rid of the cases, that doesn't help the purposes, you know, and so, like the state law says that pain and suffering damages do not survive death, but that that conflicts with 1983. And so there's some federal case law that says that when when there is conflict, then the federal law prevails, and you can get pain and suffering. But there is, you know, some issues in in various appeals courts about that exact issue.

09:37 PT

Okay. What, could you elaborate a little bit more on what those I guess, opinions are within appeals courts?

09:45 SS

Well, some it's just about whether the state law still applies to the damages. And in what, what contexts

10:00 PT

All right. Okay, that makes sense. Wow. Okay, that's definitely a very complicated situation. Oh, my gosh, would you say like, whether it's from that case or any other case that you've been working on since COVID, like that there was any particular like lesson or something that you learned that you're going to continue to apply in your work moving forward? Like, was there anything that really stuck with you?

10:28 SS

Well, there's that lesson, I do have a client who is likely going to pass away not from COVID. But from other issues. And so, you know, I did learn that you need to protect those damages very carefully. If they do pass away, that that throws a whole wrench into your case that, you know, you may need extra help with. I guess, you know, just dealing with the, the health care contractors for the prison has been very enlightening about the lengths that they will go to avoid liability. I mean, I knew that already. But with COVID, they, you know, it's not just liability that they're trying to avoid, but expense. And so things like tests, vaccines, masks, social distancing, all of those things cost money, and so they were just very reluctant to do any of it.

12:04 PT

Right? Were there any like methods or techniques that you found were particular successful in getting them to be less reluctant with whether it's funding or actually supplying these necessities?

12:04 SS

No, I mean, as a lawyer, I just, you know, it's like to a man with a hammer, everything's a nail. I've just been, you know, hammering away at that with you know, it's not particular to COVID. But I have learned that in order to get a preliminary injunction in federal court, you have to go back repeatedly, with motions for TRO or preliminary injunction and evidence of these patterns that are just—that anybody who's dealt with these companies, these private health care companies that knows about of trying to deny care, and then hide the the evidence that they're denying care based on money.

You know, and just being able to like, one of the issues that I'm dealing with right now is trying to get the indexes of medical records, because you'll have 1000s of pages of records, and different categories, and each category has an index in their electronic system. So it's like a handy dandy timeline of events, like health service requests, health service encounters, referrals to outside providers, blood lab work. And so you can just go down that list and say, you know, oh, he was supposed to have a follow up lab test at this point, but it's not in this timeline. Whereas if you have to take the 1000s of pages of records and go through and create your own timeline, you know, obviously, it's more difficult to see what's missing. So they do not want to give me those indexes. They're fighting really hard not to give me those indexes.

14:23 PT

Oh, my gosh. So I know you described it kind of as like a hammer and nails situation like would you say that-- this, I guess, feeling or this resistance, did you feel this way prior to COVID with other health issues, I guess, or is this particularly like, has the battle increased because of COVID?

14:47 SS

Ah, well, it's just gotten more detailed, you know? Like we have a class action in Arizona for prisoner medical and mental health care. And when COVID hit the class attorneys filed a motion for an injunction for your basic provisions for prevention. And the court said, Well, you know, gosh, COVID wasn't in the complaint. You didn't talk about COVID in the complaint, so we can't, you know, do anything about it?

Yeah, so it sort of, even though it was in a lot of ways foreseeable, we know that we get these pandemics from time to time. And that it hits, you know, any kind of issue like that is going to hit prisoners harder than the general public. And so, you know, I feel like it's sort of disingenuous of the court to say, well, here we have a class action about medical issues that affect prisoners more, than you know in particular ways, and you're saying, you know, because we didn't predict that this was going to happen and put it in the complaint… So there's, you know, there's that, that everybody sort of used it as an excuse, right, to do things or not do things.

16:42 PT

Right, that that definitely makes sense. Like, I guess even just basing it off of the topic of mental health itself, like being in any system of incarceration is obviously so mentally taxing, let alone adding a pandemic to that whole situation? Like, how would you describe the way in which the pandemic took a toll on the mental health of your clients or anybody you observed in particular?

17:16 SS

Yeah, it's just, they were particularly worried about, you know, their own health and also the health of people around them when they were sick. I've heard several clients talk about testing positive and then being put in with other people who were not, you know, had not tested positive. And, you know, just being offended at that, is sort of being used as a weapon against their fellow prisoners. And yeah..

17:59 PT

So it was almost, you know [unintelligible] to make it worse. It was not only that there no prevention, but by intentionally placing people who had been testing positive, like you said it was being used as a weapon? Oh my gosh.

18:15 SS

Well, I, you know, I don't know if it was just convenience or incompetence, or intentionally trying to spread it amongst prisoners, it who knows. But that was frequently happening. Yeah. What was I gonna say? Well, I was also frequently told that I couldn't have calls with prisoners who were in quarantine. So not only would they not do the quarantine, right, but they would then prevent me from being able to speak to the clients to see what was going on.

18:56 PT

And what was the reasoning behind that?

18:59 SS

Oh, well, you know, we can't we can't take our phone to him or you know, or we can't take him out to go to a private legal call. You know, we can't put him in our office because he's sick. We can't, you know, and I'm like, okay, get a cordless phone, sanitize it, you know, wear a mask and a hazmat suit if you want, like, take it to him, sanitize it when he's done it. You know, you're fine. But they wouldn't do it. They're just like, you gotta wait until quarantine is over. And of course, you can't sue in that time. It would be done. And the courts would say, well, that's reasonable.

19:48 PT

Oh, my gosh. So how long would you say it like, was there weeks in which you would go without being able to speak to your clients or months?

19:48 SS

Yeah.

19:48 PT

Oh my gosh

20:00 SS

Could be weeks usually.

20:01 PT

Oh my gosh, that's just so awful. Like, obviously, this is all so, like, disappointing and distressing. Was there any moment throughout any of your work or in any interaction, where you were like, oh, there's like, hope or there's a positive-- there's anything positive here, there's anything to be impressed by you're proud of in the way that we've been handling COVID inside systems of incarceration? Or was there just simply nothing?

20:36 SS

Well, you know, eventually they did start you know, giving out masks, and, you know, they put up barriers on, so I could have legal visits, you know, just have like, a plexiglass shield between us. But that too, was used, you know, against me and my clients, because, like, one time I showed up, you know, with just a cloth mask. And they say, you have to have a N95 mask. And I'm like, okay, you know, they gave me one. So I'm wearing that. And, and I go in, and, but nobody else in the, you know, in the place is wearing any masks at all. But they make me wear one, and I'm like, You're not wearing a mask. And what, why do I have to wear one and she says, You're not from here, which I thought was very strange. I'm like, Well, you're not from here, either. You go home at night, too. So, you know, we had our visit and then like, so sometimes they would require the client to have a mask as well. Sometimes they wouldn't. Sometimes they would enforce it. Sometimes they wouldn't. One time, a client got a ticket, because we did an elbow bump, instead of a handshake. And they're like, no contact

Oh what was it? One time—I have issues with buying snacks and drinks for clients on visits that I've been through, sometimes they have an issue with it. But a lot of times they don't. But so like during COVID, they didn't have anything in the vending machines. And then after COVID, they started stocking stuff again. And so I went and bought my client a drink. And they're like, No, you can't do that. And I'm like, No, I can I've been through this before, you know, talk to your supervisor. And so then they come out with a memo that they had added this, just you know, for that visit “You can't buy any, any snacks or anything.” So I take it up to the you know, central office, and it finally comes back. Yes, you can buy drinks and snacks for your clients on visits. So the next visit I go, they have emptied out the machines.

23:38 PT

Oh my gosh.

23:41 SS

And they're all saying, Oh, it's COVID [laughs]

23:49 SS

So they just they just make up policies.

23:53 PT

Right, it's like back and forth and just changing minds.

24:00 SS

Right, just trying to mess with me. It's really nothing to do with safety. It's just trying to prevent prisoners from being able to effectively litigate and enforce their rights.

24:15 PT

Right. And then it goes down to set even the smallest details of snacks and a vending machine. That's how far they're willing to go in order to bar prisoners from having access to not even equal litigation, but litigation. It's crazy…

24:30 SS

Right, well, it's pretty harassment, you know, to make it unpleasant. And to make you wonder, you know, what's going to happen next? What are they going to find next?

24:47 PT

Right. Did any of your clients describe a difference in their access? Like were they noticing the differences in the, I guess access to legal counseling as well. Were they frustrated by it or I guess take note of the difficulty in even meeting in person or I guess, like any form of interaction, or I'm not sure what else would be frustrating. But what would you say?

25:16 SS

Well, yeah, I mean, it's always difficult to have consistent communications with my clients. And there's just a new way of interfering. It was just a new use. So they used it.

25:33 PT

Oh, my gosh, and would you say like, did you feel like your relationship with your clients was impacted? Like, yes, of course, these barriers were put in place to attempt to have that or be a negative factor in your relationship with your clients? Do you feel like there was a successful, I guess, like, impact on the person to person relationship that you had with your clients?

26:03 SS

Yeah, yeah, it definitely, definitely made it more difficult. And you know, the clients are always concerned about being in touch with their lawyer. And so when these delays and, you know, would happen, I'm particularly known for not ever taking no for an answer. And I'll just all keep fighting until I get my call. But, but that takes a lot of time and a lot of work. And, you know, I can't always keep up that level. And so when the communication sort of slip, then the clients get frustrated… for sure.

27:04 PT

Right. Right, I guess, how would your experience working on or how has your experience working on these cases, since the pandemic started sort of impacted the way that you think about prison law in general? And yeah, I guess that's my question.

27:25 SS

It's, uh, you know, it started out as a uphill battle for sure. And this has just illuminated how difficult it is to really be successful in this area. You know, I started out when I was doing these cases, trying to do them for as little money as possible, because, you know, we're dealing with a population that doesn't have a lot of money to spend, I don't have a lot of money to spend. The cases are notoriously risky investments. So it's very hard to get that money from any other source. But, you know, when I started getting into the medical care cases, the listserv in particular, you know, I was asking you about how to do a hepatitis C case without an expert. And the answer that I got back was you can't, and don't try it, because you're gonna have bad case law.

So then I started getting experts. And at first, I was very lucky and got good people for, like, under $10,000, for an initial opinion. But that's still a lot of money.

28:57 PT

Yeah, it really is.

29:01 SS

And that's hard. And now, you know, and, and I was able to get that back, you know, in settlements. So I was willing to invest more. And I started having clients that were willing to pay that much, you know, for experts, because they understood that it's necessary. [redacted]

But all right, so let's just go back, maybe skip back to talking about experts. You know, it's, you need a lot of money. And so that that has really been the lesson that I've learned. And how I deal with these cases is that you have to have funding like, like a good $50,000 to put into these cases in order to prevail. And I think that that is obscene, to, for people who have the most need for, for care, and the least ability to you know, to get it themselves, like, I have clients who have offered to pay for certain things, and, you know, out of their own money, like medical care, and the prison won’t let them do it, and then still deny them necessary stuff.

And so, you know, the and, and for the courts to not, I've tried to get courts to appoint experts, because we couldn't afford them and that they just won't do it. So yeah, that's really the escalation that I've seen in these cases. And with COVID, you know, you're going to need particular experts not only in medical care, but in correctional policy, and like, what should they have done? So it's, it's not a well established standard of care.

32:14 PT

Right, that, if that makes sense. So when…

32:18 SS

Sorry does that…?

32:25 PT

Yes, that definitely answers our question. Yes, just a follow up, like when clients were offering to pay out of their own pockets for experts, and being denied access to this opportunity, or I guess this necessity, how were prisons responding by like, when they were declined?

32:50 SS

Sorry, let me just clarify, they were offering to pay for medical care, or, or like, somebody needed a, like an MRI, they're like, and the private health care provider is saying, No, we don't think you need it. And, and he's like, Well, I have a doctor saying I should get it. You know, I'll pay for it out of my own pocket.

33:10 PT

Right, and then they…

33:13 SS

Yeah, the health care provider, just saying, No, we're not gonna let you do that.

33:19 PT

Oh, my gosh, without any really solid foundation or reasoning behind it at all?

33:23 SS

No, I mean, and because the standard of liability is so much higher, it's deliberate indifference. These private contractors know that they can commit malpractice and not have liability. So they'll say like, oh, gosh, you know, I, the nurse practitioner, don't think that you need an MRI, even though the, the outside MD that we sent you to said, get him an MRI. You know, I'm overriding that. And, and then when you sue over it, the defense says well, it's just a difference of opinion, of medical opinion. And that's not enough for deliberate indifference. And so they don't get their MRI.

34:19 PT

Oh, my God

34:25

You know, and then it turns out that they have some issue that would have been picked up by the MRI and then you know, you got to sue over it and ya know, and it's yeah, it's just incredibly difficult.

34:41 PT

Yeah, I can imagine. So… sorry no continue.

34:46 SS

I’m sorry, I--. Yeah. So the nurse practitioners, the providers in the prison, know that they can just sidle up to that line. They can just go right up to that deliberate indifference line consistently and not have any liability.

35:10 PT

Right, and never face any repercussions. Yeah, that's crazy. So What lessons do you think that we as a society should take from, I mean, I guess, the pandemic in general, the impact on incarceration, all of these cases that you've talked about, like, what lesson would you say, we should be paying attention to, and should really take note of?

35:29 SS

Well, I was personally hoping that we would understand the value of universal health care from the pandemic. You know, if we had taken the money that we paid individuals, you know, this, the support payments, and, you know, really invested in a universal health care system, not only would people be healthier, in general, but our economy would be in better shape. Because, you know, a lot of the whole privatization of health care, I think, is, is the big problem because it forces people to, you know, have a budget for being sick, and when they can't work, and they can't earn the money, and, you know, can't afford the care that's needed. Obviously, that hurts the economy and so you know, I would hope that instead of just sort of doubling down on the every man for himself philosophy, that we would see that, that's really not in anybody's best interest, right, like, in the long term, even the CEOs of the insurance companies, and the, you know, Horizons and Centurions of the world. So that's… and prisons are just the best example of that it's just this incredibly concentrated example of society where everything is controlled for them. And, and so trying to make money off of health care, in that-- in those conditions just lead to worse outcomes. And even though they're prisoners, even though they're there, for committing crime, sometimes horrible crimes, people get out. And when they get out, they're gonna get out sick, they're gonna get out broke, they're gonna get out hated by society. They're not going to be able to afford health care, they're not going to be able to afford to socially distance you know, and it just, anybody who looks at it, honestly will tell you that this is just going to make the pandemic worse. You know, you just sort of have this petri dish of disease and crime that you then let ooze out back into the world and call them corrected. Yeah.

38:53 PT

Yeah. Well, no, that’s a great way to put it.

39:01 SS

Yeah

39:03 PT

Wow, Okay, like no, it's just very, very well said. I guess like, is there anything else that you want to address or talk about before we finished speaking today? This has all been so great and so helpful, but I just want to give you the opportunity to address or say anything else that you might want to

39:24 SS

Well thank you yeah, I think just my main thoughts lately has just been that you know, the options for enforcing prisoners’ rights are being limited and eliminated daily and that it's really like a like a hydraulic press on these people and stuff is gonna ooze out the sides. You know, you just can't-- you can't squeeze a population that much, especially a population that, you know, while it's, it's easy to ignore them for a certain time. They do have people who love them, and something's got to give, you know unless we really address these, not just the COVID, but the underlying problem of trying to deny the humanity of these people, you know, it will and does affect society. And, you know, it's, it's not going to be good if we don't-- it's just gonna keep getting worse.

40:49 PT

No, I completely agree. I think that's very well put.

40:54 SS

Thanks. All right. That's it. I'm done. [laughs]

40:56 PT

Well, thank you so, so much for taking the time to speak with me today. That was like, so informative and helpful. And I really appreciate your time, especially because I'm sure your schedule is so busy right now, but I really do appreciate it and I know everybody else will too.

41:12 SS

Thank you very much.

41:15 PT

Okay. Thank you have a nice rest of your day.

41:17 SS

You too. Okay.

41:18 PT

Bye