by Christopher Zoukis

On November 23, 2004, Wilbert Lee Henson was arrested for an outstanding warrant related to a driving with a suspended license charge, and was booked into the Wichita County jail. Six days later, he was dead.

The events leading up to Henson's death are a classic example of bureaucratic indifference and negligence in the United States jail and prison systems. Henson did everything right: he told medical staff that he had pneumonia and emphysema and had been in the emergency room a few days earlier, made multiple attempts to see a doctor, and spent the six days between his arrest and death essentially begging for medical attention.

The medical staff at the Wichita County jail did everything wrong: Licensed Vocational Nurses (LVN) George, Krajca and Coleman gave Henson inhalers, antibiotics, and cough drops, but never recognized that he was dying right in front of them. Despite being placed on the list to see jail doctor Daniel Bolin, Henson was never seen by any doctor. And no one at the jail sent Henson to the hospital until he was dead.

Henson's estate sued, claiming that Henson's constitutional rights were violated by Wichita County jail staff. Sheriff Thomas J. Callahan was granted immunity from suit because there was "no predicate constitutional violation upon which to base [his] supervisory liability." Nurse Krajca was granted immunity because, despite her actions being "indicative of negligence, gross negligence, or malpractice," they did not rise to the level of deliberate indifference to Henson's rights. But Henson's case against Wichita County and Dr. Bolin went forward.

Until the Fifth Circuit got their hands on it, that is. Addressing the case against the county, the court determined that the "condition of confinement" (here, substandard medical care) was reasonably related to a legitimate governmental interest. The court grounded its finding on a determination that the Wichita County jail had a "Health Services Plan." The court found that the plan was constitutional and didn't amount to punishment.

The plan didn't work for Wilbert Lee Henson, though. He suffered the ultimate punishment as a result of the plan. He spent six days slowly suffocating to death while locked in a jail cell because of a suspended driver's license. He couldn't call 911 or go to the emergency room. The only people that could have helped him were grossly negligent – they gave him cough drops – but that didn't violate the constitution, according to the court.

Henson's estate sued Dr. Bolin on a theory that he "condoned and enforced with fear and intimidation a well-known policy and custom among the nurses of the Wichita County Sheriff's Department not to send inmates with serious medical conditions to the hospital," and "fostered an environment of intimidation at the [j]ail, such that the LVNs (and other [j]ail staff) were so discouraged from contacting him regarding severely ill inmates . . . that the LVNs ultimately decided on a treatment plan for inmates."

The court did not find that such de facto policies existed, as evidence indicated that nurses did send inmates to the hospital despite Dr. Bolin's "harsh" and "grumpy" attitude. Interestingly, though, the court made no comment on the fact that, in the case of Henson, the nurses did not send Henson to the hospital. And they made that decision in the face of an illness so serious that the other inmates in Henson's cell block intervened and attempted to get him proper medical attention.

The sad fact is that the level of medical "care" provided to Henson, which resulted in his death, is commonplace in the jails and prisons of this country. It is commonplace because we collectively care so little for prisoners that our courts find grossly negligent health care that results in death constitutional.

See: Estate of Henson v. Wichita County, Texas, 795 F.3d 456 (5th Cir. 2015).

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