Federal District Court Judge Robert Mariani has ordered the Pennsylvania Department of Corrections (DOC) to treat political prisoner Mumia Abu-Jamal within 21 days with direct-acting antiviral medications for his hepatitis C infection.
The unprecedented decision was announced Jan. 3 after a two-year-long campaign by community, health care and prison activists to force the state to treat Abu-Jamal and up to 7,000 other prisoners infected with the deadly virus. Even as supporters celebrated the legal victory, they began preparing a movement to see that the order is enforced.
“This is the first case in the country in which a federal court has ordered prison officials to provide an incarcerated patient with the new [hep C] medications that came on the market in 2013,” attorney Robert Boyle said in an Abolitionist Law Center (ALC) media release Jan. 3.
The Abu-Jamal vs. Kerestes court decision stems from three days of evidentiary hearings in Scranton, Pa., in December 2015. Bret Grote of the Pittsburgh ALC and New York City attorney Robert J. Boyle represented Abu-Jamal before a courtroom packed with supporters from Philadelphia; New York; Pittsburgh; Washington, D.C.; and North Carolina.
On Aug. 31, 2016, Mariani ruled it was unconstitutional for the DOC to refuse to give hep C-infected prisoners medicines boasting a 95 percent cure rate. However, Judge Mariani refused to order the state to treat Mumia because of a technicality: the DOC’s Hepatitis C Committee members were not specifically named in the lawsuit. Bret Grote refiled the lawsuit naming the individual members of the committee on Sept. 30.
In response, Judge Mariani ruled Jan. 3, 2017, that the Pennsylvania DOC has an obligation under the U.S. Constitution to provide adequate medical care to the men and women incarcerated in its jails. In his 44-page decision, Mariani found the DOC was “deliberately indifferent to his (Abu-Jamal’s) serious medical need.” (Abu-Jamal v. Wetzel et al., 3:16-cv-02000-RDM)
Mariani’s decision and separate order requiring treatment compels the DOC to have Abu-Jamal “be seen by a Supervising Physician within 14 days” and that the DOC shall begin the 90-day treatment of direct-acting antiviral medication “no later than 7 days after the Supervising Physician’s determination that there are no contraindications for the administration of DM medications to Plaintiff.”
Health care a right regardless of cost
Under the law, the DOC can appeal that order, or they can also choose not to appeal and to administer the drugs immediately. Activists immediately launched a new campaign to pressure the DOC to let the decision stand and comply with the ruling.
Pam Africa of the International Concerned Family and Friends of Mumia Abu-Jamal hit the airwaves at 6:30 a.m. on Jan. 4 on Thera Miling’s WURD 900 am radio show with news of the groundbreaking decision. Attorney Boyle, Pennsylvania state Rep. Vanessa Lowry Brown and Campaign to Bring Mumia Home spokesperson Johanna Fernandez all called in.
Rep. Brown emphasized to listeners that the high price of drugs affects everyone, especially seniors, and prisoners as well. “You have people who are dying because they can’t afford the medication. It’s what we have here in prisons too because the DOC doesn’t want to pay $90,000 to treat them.” (tinyurl.com/haxklq9)
In a Prison Radio interview on the same day, Abu-Jamal criticized the medical industry for its high prices, saying, “It’s not medicine. It’s business. It’s profits. It’s not caring for the health of the people that you swore to care for.” (tinyurl.com/jhysnb4)
If the DOC does appeal, it’s expected they will focus on the high price of sofosbuvir (Sovaldi) or sofosbuvir-velpatasvir (Harvoni), the new drugs that cure hep C. The DOC claims treating all 7,000 prisoners would cost the prison system $600 million.
However, a study presented at The Liver Meeting, Nov. 11-15, 2016, in Boston put the actual cost of producing sofosbuvir at only $62, including a 50 percent profit, yet the current U.S. price is 1,355 times higher. (tinyurl.com/zl97eu4) At this more realistic and justifiable price it would cost Pennsylvania only $434,000 to treat every infected prisoner.
If state officials are truly opposed to the outrageous pricing, it could take Gilead Sciences, the biopharmaceutical corporation that provides the hep C drugs, to court. It could bar the company from doing business in the state because of its immoral conduct. It could arrest Gilead executives for criminal price gouging. It should do all these things, but it cannot refuse to treat prisoners because of the drug’s price.
|Mariani’s ruling specifically states: “While the court is sensitive to the realities of the budgetary constraints and the difficult decisions prison officials must make, the economics of providing this medication cannot outweigh the Eighth Amendment’s constitutional guarantee of adequate medical care.” (p 44, Abu-Jamal v. Wetzel et al., 3:16-cv-02000-RDM)|
DOC appeal would further delay treatment
Boyle pointed out during the WURD interview that the progression of hep C in Mumia’s body will not pause as appeals are fought in the courts. Anyone with the disease has “a significantly higher risk of liver cancer. Once you have liver cancer, these antivirals, which are a great drug, are useless. You have liver cancer.”
Abu-Jamal in Mahanoy Prison, Major Tillery in Frackville Prison and thousands of other prisoners infected with the deadly disease would continue to suffer and inescapably die from lengthy delays as an appeal advances in the court system.
Abu-Jamal spent 29 years on death row after a widely criticized trial which Amnesty International characterized as “in violation of international law and standards governing the imposition of capital punishment.” (tinyurl.com/zfdpbc9)
Mass public pressure led him to being taken off death row in 2012, but he is still serving a life sentence without possibility of parole for killing a white police officer, a crime that he did not commit. The struggle to free him continues, along with the immediate fight for his life.
In 2015, Abu-Jamal was hospitalized after he fell into diabetic shock and was found to have hepatitis C. He continues to suffer from severe itching, diarrhea, scaly skin and difficulty sleeping, despite medication and doctor-prescribed baths.
Mariani’s decision is expected to set a precedent for other prisoners in Pennsylvania and other states. Less than 1 percent of U.S. prisoners are currently being treated for hep C, according to a Health Affairs article entitled “New Hepatitis C Drugs Are Very Costly and Unavailable to Many State Prisoners.” (tinyurl.com/gte27bc)
Organizers are asking supporters to call, email or tweet Secretary John Wetzel, head of the Pennsylvania DOC, at 717-728-2573; 717-728-4109; [email protected] or @johnewetzel. Demand that the DOC not prolong the suffering of those who have hepatitis C by appealing Judge Mariani’s decision.