Introduction
In August 2019, Hector Garcia, a fifty-five-year-old father of four, was jailed for unpaid fines amounting to $242.Footnote 1 On the third day of his confinement at Doña Ana County Detention Center (“DACD”), a corrections officer found him crawling on the floor, vomiting, and moaning in pain.Footnote 2 Despite requesting care, Garcia went untreated.Footnote 3 On day four, Garcia collapsed again, this time in the presence of guards and medical staff.Footnote 4 He yelled, “Help me!” and writhed in agony on the ground before receiving help from the nearby employees.Footnote 5 A nurse practitioner employed by Corizon Health, Inc. (“Corizon”), the correctional health care company contracted to manage DACD’s health care services, examined Garcia for only five minutes.Footnote 6 Despite noting that Garcia’s abdomen was distended, that he was in severe pain, that he was vomiting blood and bile, and that he had a history of peptic ulcers, the nurse attributed his symptoms to constipation.Footnote 7 On the fifth day, Garcia was finally sent to the hospital.Footnote 8 Rather than calling for an ambulance, however, Corizon staff members loaded Garcia into a security van — a choice that saved Corizon money but further delayed Garcia’s hospitalization.Footnote 9 At some point during the ride, Garcia went into cardiac arrest, while shackled in the backseat of the security van.Footnote 10 Garcia was pronounced dead the following day, just six days after he was jailed for $242.Footnote 11
Garcia displayed an obvious need for medical care, was denied adequate care by medical staff, and suffered an untimely and preventable death as a result. Unfortunately, stories like Garcia’s are far from uncommon. As prisons and jails have increasingly contracted with large corporate entities, such as Corizon, to manage in-house health care, so too have preventable injuries and deaths increased among incarcerated populations.Footnote 12
Garcia’s family filed suit in 2021, seeking compensatory and punitive damages against DACD and Corizon for violations of Garcia’s civil and constitutional rights under the Civil Rights Act, New Mexico’s Tort Claims Act, and the Wrongful Death Act.Footnote 13 Despite having a relatively strong case against Corizon, Garcia’s family was denied their day in court for over four years, and Corizon was almost successful in having the case dismissed altogether.Footnote 14 Corizon’s success is attributable to the Texas Two-Step, a recently developed and highly controversial tactic to evade mass tort corporate accountability by offloading liability onto a shell company and filing for Chapter 11 bankruptcy.Footnote 15
This Note explores how correctional health care companies attempt to circumvent mass tort liability by filing for bankruptcy, further exacerbating the challenges incarcerated individuals face in accessing the legal system. In Section I, I provide background on the increasing trend of prisons outsourcing their required health care capabilities to correctional health care corporations, the high rates of medical malpractice and adverse medical outcomes in prisons that contract with correctional health care companies, and the barriers incarcerated individuals face in seeking relief for medical malpractice. Section II provides an overview of Chapter 11 bankruptcy and the Texas Two-Step maneuver, explaining how they serve as mechanisms for resolving mass tort claims. To demonstrate this, I present a case study of Corizon’s attempted Texas Two-Step. In Section III, I analyze Corizon’s Texas Two-Step in light of Harrington v. Purdue Pharma’s prohibition of nonconsensual third-party releases and argue that the approved reorganization plan was nonconsensual, given institutional barriers to accessing the legal system in prisons. I also suggest and evaluate additional efforts that should be explored to decrease both medical malpractice and barriers to seeking relief in correctional settings.
Section I
A. Constitutional Mandate of Health Care in Prison & Health Care Outsourcing
In Estelle v. Gamble, the U.S. Supreme Court established that the Eighth Amendment’s prohibition against cruel and unusual punishment requires state and local governments to “provide medical care for those whom [they are] punishing by incarceration.”Footnote 16 In order to state an Eighth Amendment claim, an incarcerated person must “allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”Footnote 17 This requirement was later clarified in Farmer v. Brennan, which established that medical negligence is not sufficient to establish a claim under the Eighth Amendment.Footnote 18 Rather, to establish a claim, an incarcerated person must demonstrate that a prison official knew of “a substantial risk” and that they “disregard[ed] that risk by failing to take reasonable measures to abate it.”Footnote 19 Although these cases have set high standards that must be met to bring forth an Eighth Amendment claim, the Court has, nevertheless, made it clear that the Eighth Amendment requires that incarcerated people have access to adequate health care.Footnote 20
Currently, well over half of all prisons in the United States contract with private correctional health care companies to fulfill this Eighth Amendment duty.Footnote 21 Contracting with private correctional health care companies is beneficial for government entities in that it presumably reduces costs and administrative burdens, as well as limits legal liability through robust indemnification provisions typically included in such vendor contracts.Footnote 22 These indemnification provisions require that the contractor assumes responsibility for costs, expenses, and liabilities associated with correctional health care and compensates the government entity for care-related costs and liabilities incurred.Footnote 23 Over the past decade, a handful of companies have dominated the correctional health care industry: Corizon, Wellpath Holdings, Inc. (“Wellpath”), NaphCare, Inc. (“NaphCare”), PrimeCare Medical, Inc. (“PrimeCare Medical”), and Armor Correctional Health Services, Inc. (“Armor Health”).Footnote 24 Wellpath and Corizon are owned by private equity firms, and NaphCare, PrimeCare Medical, and Armor Health are privately owned.Footnote 25
B. Medical Malpractice in Correctional Health Care
While there are benefits to outsourcing correctional health care, many of the leading correctional health care companies have been shown to increasingly administer high rates of substandard care to incarcerated people.Footnote 26 Medical malpractice claims arise from a provider’s alleged breach of professional duty, causing damages.Footnote 27 Such damages may be caused by provider actions or inactions such as inadequate medication or condition management, failure to obtain informed consent, and deliberate indifference.Footnote 28 Denials of routine care visits are rampant in correctional facilities, causing over twenty percent of incarcerated individuals with a chronic condition held in state facilities and sixty-eight percent of those held in local jails to go without care.Footnote 29 There is particularly ample evidence of breaches of duty by correctional health care contractors.Footnote 30 For example, researchers investigating a Savannah, Georgia prison that contracted with Corizon found that, between 2014 and 2016, necessary medications were misplaced, incarcerated patients deemed gravely ill by medical staff were denied hospitalization, incarcerated patients with mental health conditions were denied treatment, and records were routinely falsified.Footnote 31
While there is currently no data available proving wrongful provider conduct is more prevalent in prisons using correctional health care contractors, there is evidence indicating that patient outcomes in such prisons may be significantly worse.Footnote 32 In 2020, Reuters surveyed 523 prisons across the United States and found that, between 2006 and 2019, prisons using one of the five top correctional health care contractors had seventeen deaths per 10,000 individuals, compared to thirteen deaths per 10,000 individuals in publicly run health care units.Footnote 33 Reuters and two independent statisticians found statistically significant disparities in death rates between the two categories of prisons, even after controlling for other contributing factors such as the overall health of the prison’s population and the prison’s budget.Footnote 34 However, some correctional health care companies, including Corizon, have disputed Reuters’s methodology and resulting conclusions, and at least one study analyzing the same dataset Reuters utilized found that privatization of correctional health care did not significantly increase short-term or long-term patient mortality.Footnote 35
Although conflicting studies have made it unclear whether privatized correctional health care leads to worse patient outcomes, several of the top five correctional health care contractors have faced significant mass tort litigation related to improper care. Between 2013 and 2018, approximately 1500 claims alleging neglect, malpractice, or wrongful death were filed against Corizon and Wellpath.Footnote 36 Additionally, a research paper published in the New England Journal of Medicine found that there are approximately 13,000 cases between 1985 and 2022 that cite Estelle and contain either the term “prisoner” or “inmate” and either the term “healthcare” or “health care.”Footnote 37 While this search roughly reflects the number of incarcerated individuals who successfully filed a claim related to negligent correctional health care, the number of individuals with a valid claim is likely significantly higher, given the numerous barriers that incarcerated individuals must overcome to access the legal system.Footnote 38
C. Barriers to Obtaining Relief for Medical Malpractice Claims in Prison
To obtain relief for medical malpractice, incarcerated individuals must overcome several obstacles that the general population typically does not face.Footnote 39 These obstacles include statutory restrictions, difficulties obtaining counsel, and challenges of self-representation.Footnote 40 The primary statutory obstacle is the Prison Litigation Reform Act (PLRA), which is codified at 42 U.S.C. § 1997e, 18 U.S.C. § 3626, 28 U.S.C. § 1346(b)(2), and 28 U.S.C. § 1915.Footnote 41 Section 1997e(a) prohibits an incarcerated individual from bringing forth an action concerning prison conditions before available administrative remedies are exhausted.Footnote 42 By requiring incarcerated individuals to comprehend and comply with often convoluted grievance procedures, this provision introduces a time delay in seeking relief and disproportionately burdens incarcerated individuals with low levels of education, limited English proficiency, or cognitive disabilities.Footnote 43
Section 1997e(d)(2) provides that “[w]henever a monetary judgment is awarded … a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees … . If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.”Footnote 44 As damages for incarcerated individuals are typically small amounts, capping recoverable attorneys’ fees at twenty-five percent of the awarded damages deters private attorneys from taking on correctional medical malpractice cases.Footnote 45 This effectively limits an incarcerated individual to either pro bono representation or self-representation.Footnote 46 However, pro bono attorneys are currently in short supply, and pro se civil rights cases brought forth by incarcerated individuals have a success rate of only six percent.Footnote 47
Section 1997e(e) prohibits incarcerated individuals from filing federal civil actions for “mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.”Footnote 48 This provision restricts the ability to bring forth claims of inadequate mental health care.Footnote 49 Section 1915 requires that an incarcerated individual bringing forth a civil action or appeal in forma pauperis must pay a filing fee in full.Footnote 50 The fee for filing a civil action is currently set at $350, while the hourly wage for most incarcerated individuals ranges from twelve cents to one dollar and fifteen cents.Footnote 51 This places a significant financial burden on incarcerated individuals seeking relief. Finally, Section 3626 states that “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”Footnote 52 Restricting relief to only that which narrowly corrects the violation of a federal right substantially limits the ability of incarcerated individuals to obtain meaningful redress.Footnote 53 This is particularly restrictive when compared to non-correctional cases, in which plaintiffs may obtain relief for any term that is not illegal or outside the scope of the action.Footnote 54
Those who overcome the substantial statutory barriers to accessing the legal system in prison are met with additional logistical hurdles. In order to obtain information concerning an ongoing suit, incarcerated claimants must rely on the fallible U.S. postal system and mail rooms controlled by prison guards who may have the power and motive to retaliate against incarcerated individuals attempting to access legal mail.Footnote 55 As a result, incarcerated individuals may receive filings several weeks late, if at all.Footnote 56
Nevertheless, thousands of claimants have overcome these hurdles and brought forth claims against private correctional health care companies.Footnote 57 In the face of these mounting litigation and financial pressures, these companies are now turning to Chapter 11 bankruptcy to resolve their issues.Footnote 58
Section II
A. Overview of Chapter 11 Bankruptcy
Chapter 11 bankruptcy allows an insolvent business, one that does not possess sufficient assets to honor its financial obligations to lenders, to propose a plan of reorganization to keep the business alive and pay creditors over time.Footnote 59 A Chapter 11 case begins with the filing of a petition, by either the debtor or creditor, with the bankruptcy court serving the area in which the debtor has a domicile, residence, or principal place of business.Footnote 60 As soon as the petition is filed, an automatic stay goes into effect, which temporarily and indefinitely suspends all creditor actions that arose before the petition against the debtor.Footnote 61 Per Section 11 of the Bankruptcy Code, the debtor is placed in the position of a fiduciary and is required to perform certain duties, which include “accounting for property, examining and objecting to claims, and filing informational reports as required by the court and the U.S. trustee or bankruptcy administrator.”Footnote 62 Throughout the Chapter 11 case, the U.S. Trustee monitors the debtor’s business operations and submission of operating reports and required fees.Footnote 63 The U.S. Trustee also appoints a committee, typically consisting of the seven unsecured creditors with the largest unsecured claims against the debtor, to represent the creditors’ interests throughout the case.Footnote 64
After the initial bankruptcy petition is filed, the debtor has 120 days during which only the debtor can submit a plan of reorganization.Footnote 65 However, this period can be extended up to eighteen months, subject to court approval.Footnote 66 The debtor has 180 days after the petition date to obtain approval of a reorganization plan, but this may also be extended up to twenty months.Footnote 67 The plan of reorganization must, in relevant part, designate classes of claims, indicate which claims will be impaired and which will remain unimpaired, and provide “adequate means for the plan’s implementation.”Footnote 68 Such adequate means for implementing the plan include retaining assets, transferring assets to another entity, merging with another entity, selling assets to creditors, satisfying or modifying a lien, canceling or modifying an indenture, waiving a default, extending the maturity date of existing securities, amending the debtor’s charter, and issuing additional securities in exchange for cash, assets, existing securities, claims, or interests.Footnote 69
In order to move forward with reorganization, the debtor must gain acceptance of the plan by creditors and confirmation by the court.Footnote 70 A class of claims or interests is deemed to have accepted a plan if the plan is accepted by creditors that hold more than two-thirds in amount and over one-half in number of the total claims or interests in such class.Footnote 71 Unimpaired classes under the plan are presumptively deemed to have accepted the plan.Footnote 72 However, if there are impaired classes under the plan, the court cannot confirm the plan unless at least one class of non-insiders who hold impaired claims accepts the plan.Footnote 73 Once a plan is accepted by creditors, confirmed by the court, and implemented, all outstanding pre-petition debts are discharged, and the business emerges as a reorganized entity.Footnote 74
B. The Utility of Chapter 11 in Resolving Mass Torts
For most of the twentieth century, mass tort liability was handled primarily through class action lawsuits and multi-district litigation.Footnote 75 However, as such proceedings are costly, lengthy, and lack uniformity, mass tort defendants began turning to the bankruptcy system in the 1980s.Footnote 76 In 1982, the Johns-Manville Corporation and UNR Industry, Inc., each facing over 16,000 asbestos-related injury claims, became the first corporations to resolve mass tort liability through the bankruptcy system.Footnote 77 The Johns-Manville reorganization plan provided that all future claims against Johns-Manville for asbestos-related claims would be channeled into a post-confirmation trust.Footnote 78 A decade later, Congress, recognizing both the value of this mechanism and the need for modifications, codified a version of the Johns-Manville trust in Section 524(g) of the Bankruptcy Code.Footnote 79 Section 524(g) allows debtors to create a settlement trust exclusively for the satisfaction of asbestos-related claims and permits the bankruptcy court to enact a channeling injunction requiring that all current or future asbestos-related claims be brought against this trust.Footnote 80 While this mechanism only expressly applies to asbestos claims, debtors often rely on Section 1123, which states that Chapter 11 plans can “include any other appropriate provision not inconsistent with the applicable provisions of this title,” and Section 105, which grants bankruptcy courts authority to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title,” to request similar channeling injunctions for non-asbestos claims.Footnote 81
Since the codification of Section 524(g), corporations have increasingly utilized Chapter 11 bankruptcy to obtain permanent and complete relief from mass tort liability.Footnote 82 In addition to the numerous corporations that have obtained relief from asbestos-related claims under Section 524(g), other corporations have utilized Sections 1123 and 105(a) to obtain relief from other mass tort claims, including bodily injury caused by silica, talc, silicone breast implants, opioid painkillers, defective ear protection devices, and sexual assault.Footnote 83
The availability of Chapter 11 bankruptcy to resolve mass tort liability is advantageous to debtors in that it allows an insolvent business to resolve all claims at once through a settlement. However, in recent years, some companies have attempted to take advantage of this process through the Texas Two-Step maneuver.
C. The Texas Two-Step
The Texas Two-Step, otherwise referred to as a divisional merger or divisive merger, is a relatively new, highly controversial method of utilizing the bankruptcy system to limit liability for mass tort claims.Footnote 84 During the first step of this procedure, the corporation facing mass tort claims (“the Old Co.”) must first reincorporate in one of four states that allow corporations to perform divisional or divisive mergers: Texas, Delaware, Pennsylvania, or Arizona.Footnote 85 The majority of Two-Step attempts have occurred through reincorporation in Texas, as the relevant laws in the other three states contain carveouts and limitations that reduce the likelihood of a successful Two-Step.Footnote 86 The definition of the term “merger” in Section 1.002(55)(A) of the Texas Business Organizations Code (“TBOC”) includes “the division of a domestic entity into two or more new domestic entities.”Footnote 87 Furthermore, TBOC § 10.003 includes a requirement that such divisive mergers include a “plan of merger” allocating the property and liabilities of the Old Co., and § 10.008(a)(4) expressly states that newly created entities resulting from divisive mergers are not responsible for any liabilities assigned to another newly created entity.Footnote 88 Once reincorporated in Texas, the Old Co. performs a divisional merger, creating two new, separate entities. In its plan of merger, the Old Co. designates one entity (“the Good Co.”) to absorb the company’s assets and designates the other entity (“the Bad Co.”) to absorb the company’s liabilities.Footnote 89
Since its 2017 invention by Jones Day attorneys, the Texas Two-Step has been attempted by a handful of companies, but only one has been successful in obtaining an approved and confirmed reorganization plan: Corizon.Footnote 90 Several other cases are ongoing.Footnote 91 Two of the most high-profile Texas Two-Step attempts, executed by Johnson & Johnson (“J&J”) and Georgia-Pacific, LLC (“Georgia-Pacific”), have recently resulted in a circuit split between the Third and Fourth Circuits on whether a debtor must be in financial distress to declare bankruptcy. On October 12, 2021, J&J performed a Texas Two-Step and split into two new entities, LTL Management LLC (“LTL”) and Johnson & Johnson Consumer, Inc. (“J&J Co.”), to resolve nearly 40,000 claims related to mesothelioma, ovarian cancer, and other conditions allegedly developed from exposure to talc in the company’s products.Footnote 92 J&J dumped all talc-related liabilities into LTL and most of its assets into J&J Co.Footnote 93 However, J&J also transferred several assets to LTL, including a funding agreement with J&J and J&J Co. stating that these two entities would pay in cash to satisfy any talc-related expense.Footnote 94 The funding agreement was valued at $61.5 billion.Footnote 95
The Official Committee of Talc Claimants filed a motion to dismiss LTL’s bankruptcy case under Section 1112(b) of the Bankruptcy Code, on the basis that the case was not filed “in good faith.”Footnote 96 On February 25, 2022, New Jersey U.S. Bankruptcy Court Judge Michael Kaplan denied the motion and approved a broad injunction protecting J&J and affiliates.Footnote 97 Recognizing the controversy surrounding the Texas Two-Step, however, Judge Kaplan certified his decision for direct appeal to the Third Circuit.Footnote 98 On January 30, 2023, the Third Circuit issued its decision.Footnote 99 The Third Circuit avoided weighing in on the validity of Texas Two-Steps broadly but struck down Johnson & Johnson’s Two-Step because LTL had more assets than liabilities.Footnote 100 The Court reasoned that, while only LTL’s financial condition and not J&J Co.’s is determinative in the good faith analysis, the funding agreement between J&J Co. and LTL indicated that LTL had enough cash to resolve its liabilities.Footnote 101 Thus, the Court found that LTL’s filing was not filed in good faith.Footnote 102 Since this initial ruling, J&J tried to utilize the Texas Two-Step to resolve talc-related mass torts two additional times, both of which were rejected by the court.Footnote 103
Similarly, Georgia-Pacific, a multi-billion-dollar corporation that manufactures paper, pulp, wallboard, joint compound products, and industrial plasters, became the first company to attempt a Texas Two-Step on July 31, 2017, in an effort to resolve approximately 64,000 asbestos-related claims.Footnote 104 The resulting Good Co., Georgia-Pacific, received most of the $28.3 billion company.Footnote 105 The Bad Co., Bestwall, LLC (“Bestwall”), received $32 million in cash, all contracts related to the asbestos claims, some real estate, 100% of a separate gypsum manufacturing company valued at $145 million, and an agreement stating that Georgia-Pacific would pay for Bestwall’s expenses, including a Section 524(g) asbestos trust, should Bestwall declare bankruptcy.Footnote 106 On November 2, 2017, Bestwall filed for Chapter 11 bankruptcy and obtained an injunction halting all asbestos-related litigation against Bestwall or Georgia-Pacific.Footnote 107 The Official Committee of Asbestos Claimants moved to dismiss the bankruptcy case in 2018, arguing that the filing was in bad faith because Bestwall was solvent, but U.S. Bankruptcy Judge Laura Beyer promptly denied this motion.Footnote 108 The Committee moved to dismiss again in 2024, this time arguing that the bankruptcy court lacked subject-matter jurisdiction.Footnote 109 Judge Beyer again denied the motion but also allowed a direct appeal to the Fourth Circuit.Footnote 110
On August 1, 2025, the U.S. Court of Appeals for the Fourth Circuit affirmed and allowed the bankruptcy to proceed, holding that federal courts have jurisdiction over Chapter 11 cases validly filed under federal law, even where the debtor is solvent.Footnote 111 The circuit court rejected the claimants’ argument that federal courts do not have subject-matter jurisdiction over bankruptcy cases filed by solvent debtors, reasoning that this is instead a question of the constitutionality of Congress’s power under Article I to make solvent debtors eligible for bankruptcy protection.Footnote 112 The circuit court also distinguished Bestwall from In re LTL Management, pointing out that the Third Circuit dismissed LTL’s bankruptcy filing on the basis of bad faith and not on subject-matter jurisdiction grounds.Footnote 113 Although a correct distinction, these cases clearly indicate different treatments of bankruptcy filings by solvent debtors by the Third and Fourth Circuits — the Third Circuit is likely to dismiss such bankruptcies as bad faith, while the Fourth Circuit is likely to allow such bankruptcies to continue.Footnote 114
Although many viewed In re Red River Talc LLC, the case that struck down J&J’s third and latest Texas Two-Step attempt, as a fatal blow to the Two-Step’s viability as a means of resolving mass tort claims, the Bestwall decision may have breathed new life into the maneuver.Footnote 115 While it remains to be seen whether this Two-Step will be successful in yielding a confirmed and approved reorganization plan, the mere attempt has brought about a five-year-and-counting stay on mass tort litigation.Footnote 116 This has allowed Georgia-Pacific to continue business as usual and likely afforded Bestwall a great deal of leverage in settlement negotiations — advantages other mass-tort-laden corporations are sure to take note of.Footnote 117
Since J&J and Georgia-Pacific made headlines for their failed attempts to resolve mass tort liability, the Texas Two-Step maneuver has garnered substantial criticism, including condemnation from several members of the U.S. Congress.Footnote 118 Opponents of the Two-Step view it as a vehicle for profitable, solvent corporations to take advantage of the bankruptcy system, delay or prevent mass tort litigation, and secure discounted bankruptcy settlements.Footnote 119 Critics also argue that the Two-Step greatly reduces the transparency of the bankruptcy system, as the Good Co. is not required to disclose its assets and liabilities, and there is minimal ability to look beyond the funding agreement.Footnote 120 In contrast, Two-Step proponents argue that the uniformity inherent to settlement agreements could lead to faster, more efficient, and potentially more profitable resolutions for both debtors and claimants.Footnote 121 The debates and controversy surrounding the Two-Step only increased when Corizon initiated the maneuver — for the first time ever, primarily affecting an incarcerated population.
D. Corizon’s Attempt to Perform the Texas Two-Step
From 2011 to 2016, Corizon enjoyed a dominant position in the U.S. correctional health care industry, operating in over fifty facilities in twenty-seven states.Footnote 122 However, from 2016 to 2021, Corizon lost over twenty-five contracts, in part due to subpar care.Footnote 123 In 2020, Corizon was acquired by Flacks Group, a private equity firm that targets “operating companies facing operational and financial challenges.”Footnote 124 However, in 2021, Flacks Group sold Corizon to Perigrove 1018, LLC (“Perigrove”), a private equity firm specializing in “healthcare investment and C-suite management.”Footnote 125 At the time of its acquisition by Perigrove in 2021, Corizon was facing at least 475 lawsuits related to inadequate medical care in prisons across the country, totaling an estimated $775 million in liability.Footnote 126 Corizon was also the defendant in at least forty-four employment-law claims related to discrimination, wage theft, and wrongful termination, and at least $88 million in claims from medical providers for unpaid invoices and failure to fulfill contractual indemnification requirements.Footnote 127
Shortly after Corizon’s 2021 acquisition by Perigrove, the private equity firm quickly fired then-CEO James Hyman and appointed Sara Tirschwell, a distressed debt specialist, as the new CEO.Footnote 128 Almost immediately, Corizon began initiating the Texas Two-Step maneuver. Under Tirschwell’s leadership, which lasted only fifteen months, Corizon reincorporated in Texas in May 2022 and performed a divisional merger, creating two new entities: Tehum Care Services, Inc (“Tehum”) and YesCare Corporation (“YesCare”).Footnote 129 Tehum absorbed all of Corizon’s liabilities, including over $860 million in mass tort and employment-related claims, while YesCare absorbed all of Corizon’s assets, including $170 million in cash and $300 million in public contracts.Footnote 130 Tehum filed for Chapter 11 bankruptcy in February of 2023, enacting an automatic stay on all claims against the business.Footnote 131 For the next two years, Tehum, led by Isaac Lefkowitz, who served as both Tehum’s director and director, part-owner, and co-founder of Perigrove, attempted to leverage the stay to push for a reorganization plan that included a settlement trust provision precluding any future suits against Corizon, Tehum, and YesCare.Footnote 132 Unburdened by active litigation, YesCare rebranded and continued to operate as its predecessor, Corizon, did before.Footnote 133 In fact, YesCare’s business appeared to have quickly expanded post-divisional merger. In February 2023, YesCare finalized a four-year $1 billion service contract with the Alabama Department of Corrections,Footnote 134 and in March 2024, the Maryland Board of Public Works voted to sign a $125 million nine-month contract extension with YesCare.Footnote 135
Tehum and the unsecured creditors’ committee initially agreed on a $37 million settlement in August 2023, but they decided to return to mediation after a romantic relationship was unveiled between former bankruptcy judge David R. Jones, then presiding over the case, and attorney Elizabeth Freeman, then representing YesCare.Footnote 136 Tehum and the committee then agreed on a $54 million settlement in April 2024, but Judge Christopher Lopez of the U.S. Bankruptcy Court for the Southern District of Texas, the new presiding judge, rejected the proposal, citing a lack of transparency surrounding the released parties’ finances and the source of the settlement payments.Footnote 137 Although the unsecured creditors’ committee appeared eager to approve the settlement throughout the negotiation process, the tort claimants’ committee, joined by the U.S. Trustee,Footnote 138 several U.S. Senators, led by Senator Elizabeth Warren,Footnote 139 and a few advocacy organizations, such as the American Civil Liberties Union,Footnote 140 had staunchly opposed each of Tehum’s settlement offers. The tort claimants committee requested in January 2024 that Tehum’s bankruptcy case be shut down altogether to allow tort claimants to sue YesCare.Footnote 141 However, Judge Lopez denied this request, reasoning that Tehum’s bankruptcy petition was not filed in bad faith.Footnote 142
The case turned around in July 2024 when Tehum, the unsecured creditors’ committee, and the tort claimants’ committee agreed to a new reorganization plan, which included a $75 million settlement to be paid by YesCare, Geneva Consulting, LLC, Perigrove 1018, LLC, Perigrove, LLC, M2 HoldCo, LLC, M2 LoanCo, LLC, and PharmaCorr LLC (the “Settlement Parties”).Footnote 143 In an unexpected but critical shift in approach, Tehum’s new reorganization plan allowed tort claimants, including those who are incarcerated, to opt out of the settlement and seek relief in court.Footnote 144 Those who opted out retained their right to litigate against Tehum, Corizon, and YesCare.Footnote 145 In March 2025, Judge Lopez confirmed this reorganization plan.Footnote 146
Although Tehum’s counsel has called this the “first ever confirmed Chapter 11 plan in a ‘Texas Two Step’ divisional merger case,” this is a debatable distinction.Footnote 147 The primary goal and key component of a Two-Step is a complete release of the Good Co. from liability. However, Tehum’s opt-out allowance ensured YesCare would continue to face litigation.Footnote 148 Although only a small handful of tort claimants chose to opt out, this has already proven to be catastrophic for YesCare. On April 2, 2026, a federal jury in Detroit, Michigan, awarded Kochise Jackson,Footnote 149 one of only twelve tort claimants to opt out prior to the reorganization plan’s confirmation,Footnote 150 $7.5 million in compensatory damages and $300 million in punitive damages against Corizon.Footnote 151
Further, whatever victory Corizon had achieved through the Two-Step unraveled on March 5, 2026, when the bankruptcy court terminated the channeling injunction, automatic stay, and releases benefiting Tehum, Corizon, and YesCare after the Settlement Parties repeatedly failed to make timely payments to the Personal Injury/Wrongful Death (“PI/WD”) Trust and the General Unsecured Claims (“GUC”) Trust.Footnote 152 As part of the approved reorganization plan, YesCare and its subsidiaries were required to pay $48 million of the total $75 million settlement to the PI/WD and GUC Trusts over thirty months with six percent interest.Footnote 153 However, the Settlement Parties missed approximately $7.5 million in payments between September 2025 and January 2026.Footnote 154 On February 2, 2026, the final day of the settlement payment default cure period, the Settlement Parties entered into a cure agreement requiring them to pay an immediate cure payment of $2.3 million by February 2 and an additional cure payment of approximately $2.01 million by February 17, plus eight percent interest on all past due amounts.Footnote 155 However, the Settlement Parties again failed to pay $2.01 million by February 17, prompting the trusts to file a notice of settlement payment default, indicating that all plan injunctions, stays, and releases would be terminated if the default was not cured by March 4, 2026.Footnote 156 After March 4 passed without an additional cure payment, the bankruptcy shield YesCare, Corizon, and Tehum had benefited from since 2023 was terminated, and the statute of limitations for all claims against these parties was extended until June 3, 2026.Footnote 157 Shortly after the dissolution of Tehum’s reorganization plan and Kochise Jackson’s $307 million recovery, the Alabama Department of Corrections abruptly canceled its $1 billion contract with YesCare.Footnote 158 Less than a month after this cancellation, YesCare filed for Chapter 11 bankruptcy on May 8, 2026.Footnote 159
Although Corizon’s Two-Step has ostensibly ended in failure, its validity warrants analysis, as other mass tort-laden correctional health care companies could still be enticed to perform a Two-Step. Had the Settlement Parties not defaulted and repeatedly failed to cure, they would still be released from the vast majority of PI/WD claims against them. Additionally, while substantial punitive damages have already been awarded against Corizon due to the reorganization plan’s allowance of opt-outs, Corizon’s total liability is considerably higher without any bankruptcy shield. Though likely unable to entirely resolve mass tort liability, the Two-Step may still be attractive as a partial shield against corporate accountability.
Section III
A. The Legality of Tehum’s Initial Reorganization Plan Analyzed in Light of Harrington v. Purdue Pharma’s Prohibition of Nonconsensual Third-Party Releases
On June 27, 2024, a sharply divided U.S. Supreme Court rendered its decision on Harrington v. Purdue Pharma. Footnote 160 Much like Corizon, Purdue Pharma attempted to utilize the Chapter 11 bankruptcy mechanism to release a third party from mass tort claims.Footnote 161 Purdue Pharma, a multi-billion-dollar pharmaceutical corporation owned and controlled by the Sackler family, is credited with playing a significant role in starting the U.S. opioid epidemic due to the misleading manner in which it marketed OxyContin in the mid-1990s.Footnote 162 In 2007, a Purdue Pharma affiliate pleaded guilty to a federal felony for misbranding OxyContin as “less addictive” and “less subject to abuse … than other pain medications.”Footnote 163 Shortly thereafter, thousands of tort claims were brought against the company.Footnote 164 In response, the Sackler family began to systematically siphon Purdue Pharma’s revenue to personal accounts and family companies.Footnote 165 Between 2008 and 2016, the Sackler family drained Purdue Pharma’s assets by approximately seventy-five percent.Footnote 166 In 2019, Purdue Pharma filed for Chapter 11 bankruptcy.Footnote 167 Purdue Pharma’s proposed reorganization plan stipulated that the Sackler family would return $4.325 billion of the $11 billion they siphoned from the company to an estate sale, but in return, the Sackler family would be discharged from all tort liability related to OxyContin.Footnote 168
In the landmark Harrington decision, the Supreme Court held that “the bankruptcy code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seeks to discharge claims against a non-debtor without the consent of affected claimants.”Footnote 169 The Court reasoned that third-party entities that have not come forward with all of their assets to the table — in this case, the Sackler family — and to which the asbestos-related bankruptcy exception does not apply are not within the class of entities eligible for discharge articulated by the Bankruptcy Code.Footnote 170 However, the Court made clear that such a prohibition only applies to nonconsensual discharges, and this holding does not prevent discharges in which the claimants’ consent is obtained.Footnote 171 Although the Court did not expressly discuss the Two-Step’s merit, a prohibition of nonconsensual third-party releases hinders a key element of the Two-Step: releasing the Good Co. from liability.
Although Tehum’s final, approved reorganization plan allowed each tort claimant to opt out of the settlement agreement, an analysis of Tehum’s initial, disapproved reorganization plan under the Harrington framework is warranted because it sheds light on the broader viability of the Texas Two-Step maneuver. Applying Harrington’s holding and analysis here, YesCare is clearly not within the class of entities that may receive a nonconsensual discharge. First, as a result of Corizon’s divisive merger, YesCare is a separate legal entity from Tehum, the entity that filed for bankruptcy. Thus, Tehum is the sole debtor in this bankruptcy case, and YesCare is a non-debtor or third party. Second, YesCare has not come forward with all of its assets. One of the defining characteristics of a Texas Two-Step is the funneling of most of a business’s liabilities to the Bad Co. and most of the assets to the Good Co. This is done with the goal of shielding the Good Co.’s assets while the Bad Co. proposes a reorganization plan that discharges the Good Co. As the Court pointed out in Harrington, however, a business filing for bankruptcy “‘creates an estate’ that includes virtually all the debtor’s assets.”Footnote 172 Like the Sacklers, YesCare sought a discharge, but failed to lay out all its assets on the table.Footnote 173 The Court makes it clear that this is not permissible under the Bankruptcy Code.Footnote 174 Third, it is clear that the asbestos-related bankruptcy exception pointed to by the Harrington Court does not apply to Tehum’s bankruptcy.Footnote 175 Tehum’s reorganization plan seeks to resolve liability for employment claims and mass tort claims related to inadequate health care provision. None of the mass tort claims are related to injuries or conditions caused by asbestos. Therefore, under the Harrington analysis, YesCare cannot be released without consent.
Whether YesCare’s discharge was nonconsensual is a trickier matter because, in Harrington, the Supreme Court declined to “express a view on what qualifies as a consensual release.”Footnote 176 In doing so, the Supreme Court has ostensibly reserved the authority to distinguish between consensual and nonconsensual releases for bankruptcy courts. While the Harrington decision resolved a circuit split concerning the validity of nonconsensual non-debtor releases, a jurisdictional split remains as to what constitutes a consensual third-party release. Some districts, such as the Southern District of Ohio, posit that for a release to be consensual, “all parties to be bound by the Third-Party Release [must have] either (i) voted to accept the Plan or (ii) affirmatively agreed to be a Releasing Party.”Footnote 177 Other districts posit that the opportunity to opt out of the third-party release, rather than the requirement to affirmatively opt in, is sufficient.Footnote 178
As Corizon filed for bankruptcy in the Southern District of Texas, that district’s stance is relevant here. As stated in In re Robertshaw U.S. Holding Corp., “what constitutes consent, including opt-out features and deemed consent for not opting out, has long been settled in this District.”Footnote 179 For a third-party release to be consensual, all affected parties must be afforded a “meaningful opportunity to opt out.”Footnote 180 If this requirement is satisfied, the bankruptcy court may rely on an affected party’s silence to infer consent.Footnote 181
Although the bar for determining consent is lower in the Southern District of Texas than in some other districts, Tehum’s initial reorganization plan did not meet this bar. In In re Robertshaw U.S. Holding Corp., each affected party received a ballot that stated clearly, in bold font, “If you submit your Ballot without this box checked, or if you do not submit your Ballot by the Voting Deadline, you will be deemed to consent to the releases contained in Article X.C of the Plan to the fullest extent permitted by applicable law.”Footnote 182 In Robertshaw, this language was also published in the Wall Street Journal, likely to ensure that claimants had meaningful opportunity to see it.Footnote 183 While Tehum included opt-out language similar to that of Robertshaw in its ballots, there are several key facts that distinguish these cases.Footnote 184
The Robertshaw opinion expressly notes that the lack of evidence of coercion or confusion alleged by the U.S. Trustee was of significance.Footnote 185 Here, however, the U.S. Trustee filed an objection against Tehum’s initial ballots on November 1, 2024, alleging confusion.Footnote 186 In this objection, the U.S Trustee pointed out that the initial opt-out form required claimants to select which type of claim they hold from the following list:
Holds a Class 1 (Other Priority Claim) against the Debtor
Holds a Class 2 (Other Secured Claim) against the Debtor
Holds a Class 3 (Convenience Claim) against the Debtor
Holds a Class 4 or Class 5 (General Unsecured Claim) against the Debtor
Holds a Class 6, Class 7, or Class 8 (PI/WD Claim) against the Debtor
Holds a Class 9 or Class 10 (Indirect Claim) against the Debtor
Holds a Class 11 (Interest) in the Debtor
Holds an Unclassified Claim against the DebtorFootnote 187
The U.S. Trustee explained that answering this question requires navigating pages of complicated text and cross-referencing definitions within various documents.Footnote 188 The average commercial creditor typically requires the assistance of legal counsel to correctly answer this question.Footnote 189 However, this is not a luxury afforded to incarcerated claimants, as most are unable to access counsel.Footnote 190 The U.S. Trustee further argued that incarcerated claimants are particularly at risk of not understanding the significance of the opt-out form, not receiving the form in a timely manner, and otherwise not being able to return the form by the deadline.Footnote 191 The U.S. Trustee ultimately concluded that, because of these risks, the Court should require affirmative consent for the third-party release, rather than the absence of an opt-out.Footnote 192 Although Judge Lopez declined to require affirmative consent for YesCare’s release, he refused to affirm this reorganization plan, noting concerns about claimants’ access to court documents.Footnote 193 Under the Robertshaw analysis, Tehum’s initial reorganization plan did not satisfy the “meaningful opportunity” requirement and was, thus, nonconsensual.
B. Analyzing Tehum’s Final, Confirmed Reorganization Plan in Light of Harrington and Robertshaw
As discussed above, Tehum’s final, confirmed reorganization plan allowed individual tort claimants to opt out of the settlement agreement to pursue a private action against YesCare. Tehum also removed the text requiring claimants to select which type of claim they hold, which the U.S. Trustee objected to as potentially confusing.Footnote 194 The revised ballots sent to each claimant expressly stated the type of claim that the claimant held.Footnote 195 Take, for instance, the ballot sent to Euril Nobles, a fifty-eight-year-old man serving a life sentence in Michigan’s Kinross Correctional Facility.Footnote 196 Item 3 of Mr. Nobles’s two-page ballot stated, “If the Plan is confirmed, the Holder of a PI/WD Claim ELECTS to: [checkbox] Be treated as the Holder of an Opt-Out Insured PI/WD Claim assigned to Class 8.”Footnote 197 Mr. Noble only needed to mark the check box to opt out of the settlement agreement. Facially, the inclusion of the opt-out provision brought Tehum’s plan into compliance with Robertshaw and Harrington. Furthermore, the inclusion and revisions eliminated most of the opposition to Tehum’s plan, among both claimants and Judge Lopez. However, I argue that a narrower definition of “meaningful opportunity to opt out” should be adopted — one that includes informed consent and a truly meaningful choice. Under this framework, I argue that the revised reorganization still did not provide a true “meaningful opportunity,” given the systemic barriers to accessing the legal system in prison.
One need only delve deeper into Mr. Noble’s case to observe that incarcerated claimants were likely not adequately informed. Initially, in January, Mr. Nobles voted to accept Tehum’s settlement plan but rejected the $5,000 personal injury expedited distribution.Footnote 198 However, on February 6, 2025, Mr. Nobles submitted a revised voting ballot, indicating he would like to accept the expedited distribution relief. In his letter, he wrote,
I don’t understand a lot of the language in the Settlement Plan on my own and I don’t have a lawyer to guide me. I have requested the appointment of counsel from the Court on this matter. The Court has not responded to my requests. Therefore, I am settling for the “PI” Expedited Distribution Relief of $5,000.Footnote 199
In an affidavit written on the same day, Mr. Nobles disclosed that he is a “mentally slow person” and was held back in several grades due to learning disabilities.Footnote 200 The affidavit also stated that, in the absence of counsel, Mr. Nobles got another incarcerated person to assist him in understanding the Settlement Plan, but that the assisting incarcerated person did not read the plan in its entirety, causing him to mislead Mr. Nobles.Footnote 201
As discussed previously, incarcerated people are largely unable to obtain legal counsel.Footnote 202 Further, as the U.S. Trustee and Judge Lopez agreed, incarcerated people are at high risk of not fully understanding legal documents and proceedings without the assistance of counsel.Footnote 203 As such, incarcerated claimants’ opt-outs are rarely informed. Furthermore, there is arguably no meaningful choice. Because of the almost insurmountable hurdles in accessing the legal system in prison, incarcerated people could reasonably view any offered settlement as their only real chance in obtaining relief. Moreover, the enormous imbalance in power and access between correctional health care companies and incarcerated claimants renders such settlement agreements unconscionable. As long as incarcerated individuals are barred from accessing counsel, whether by design or consequence, ensuring every affected party has a meaningful opportunity to opt out, devoid of coercion or confusion, is impossible. Therefore, I argue that Tehum’s revised reorganization plan did not truly satisfy the meaningful opportunity requirement, rendering it nonconsensual.
C. Additional potential solutions – Implementing alternative care models and reducing barriers to obtaining legal relief in prison
As applying Harrington’s prohibition against nonconsensual third-party releases only partially restricts correctional health care contractors’ ability to use the bankruptcy system to circumvent liability, other solutions must be pursued to ameliorate the high prevalence of medical malpractice and barriers to obtaining legal relief in prisons.
As discussed in Section I, private correctional health care contractors have been demonstrated to have high rates of medical malpractice and wrongful deaths.Footnote 204 This is likely due to the business model of correctional health care. Correctional health care is designed to focus on reducing financial burdens and liability for prisons rather than on patient-centered care.Footnote 205 Correctional health care contractors are also under-resourced and understaffed — factors which likely impose operational hurdles to providing adequate care.Footnote 206 In the past few years, researchers, advocacy organizations, news outlets, scholars, and politicians have increasingly brought attention to disturbing statistics and anecdotes that illustrate the problems in correctional health care,Footnote 207 but this is only a start. Additional public health research is needed to investigate the effects of the privatization of correctional health care. Furthermore, continued media attention and collective advocacy will be needed to ensure such research is promulgated widely and informs legislative decision making.
A fundamental shift is needed in correctional health care — one that prioritizes the health needs and personhood of incarcerated patients, while avoiding undue financial burdens for prisons and municipalities. A handful of municipalities have already rejected the majority approach and employed alternative correctional health care models that may provide guidance in paving the way toward such a shift.
New York City utilizes local health agencies to provide health care services in correctional facilities.Footnote 208 In 2015, Bill de Blasio, then the mayor of New York City, announced that the city would not renew its contract with Corizon, and that management of correctional health services would be returned to the publicly run New York Health and Hospitals Corporation (“NYC Health + Hospitals”).Footnote 209 NYC Health + Hospitals is the “largest municipal health care delivery system in the United States.”Footnote 210 New York City has utilized NYC Health + Hospitals’ resources to improve patient outcomes, provide reentry support services, and implement innovative programs, such as a partnership with Merck & Co. aimed at increasing Hepatitis C treatment access and affordability.Footnote 211 While considerable improvement is still needed in New York City correctional facilities,Footnote 212 outcomes appear to have improved when compared to other New York counties still utilizing private correctional health care contractors.Footnote 213
Washington, DC utilizes Unity Health Care (“Unity”) for correctional health care services.Footnote 214 Unity, the “first comprehensive community-oriented correctional health care model in the country” and largest network of community care centers in Washington, DC, has provided medical services for patients held in the DC jail facilities since 2006.Footnote 215 A year after contracting with Unity, Devon Brown, then the Director of the DC Department of Corrections, testified before the DC Committee on Health and Committee on Public Safety and the Judiciary that Unity had improved both quality and continuity of care.Footnote 216 Through Unity, patients held in the DC jail facilities can theoretically access emergency, urgent, or primary care services twenty-four hours a day, as well as reentry support services.Footnote 217 However, in recent years, Unity has faced rising pressure, both externally and internally, due to a shortage of providers and unsustainable scheduling practices.Footnote 218 According to the Union of American Physicians and Dentists, thirty primary care providers resigned from Unity in 2024, leaving only forty providers for 85,000 patients across Unity’s entire network.Footnote 219 As a result of this shortage and Unity’s ambitious scheduling practices, the remaining providers see up to twenty-four patients a day.Footnote 220 Arguing that this workload is causing provider burnout and negatively affecting patient outcomes, Unity’s physicians unionized in 2023 and began contract negotiations with Unity in January 2025.Footnote 221
Another alternative health care model is the academic-correctional health partnership.Footnote 222 Most notable are University Correctional Health Care (UCHC), operated by Rutgers University in New Jersey, and the Correctional Managed Health Care Committee (CMHCC) in Texas.Footnote 223 UCHC was founded in 2005 through interstate agency agreements and was initially focused solely on mental health and sex offender-specific treatment services.Footnote 224 Today, after several increases in scope and reach, UCHC provides comprehensive medical, mental health, dental, and sex offender-specific treatment to New Jersey Department of Corrections Inmates, New Jersey Juvenile Justice Commission Residents, and New Jersey State Parole Board Parolees.Footnote 225 CMHCC, a partnership between Texas’s Department of Criminal Justice and its public medical schools and hospitals, was founded by the Texas legislature in 1993.Footnote 226 Through CMHCC, the University of Texas Medical Branch (UTMB) manages care for approximately eighty percent of Texas’s incarcerated population, while Texas Tech University manages care for the remaining twenty percent.Footnote 227 While advocates of academic-correctional health partnerships argue that they improve the quality of care, provide training opportunities to medical students, and save municipalities money, critics have argued that these programs actually increase costs while yielding only marginal improvements.Footnote 228
These alternative care models each clearly have flaws and drawbacks. Nevertheless, they present promising opportunities to improve outcomes in prisons currently contracting with private health care companies. Further research comparing the patient outcomes in prisons contracting with private correctional health care companies and those utilizing alternative care models, as well as identifying areas in which alternative models may be improved, is needed.
In addition to analyzing the effectiveness of alternative care models, solutions to reduce barriers to obtaining legal relief after experiencing inadequate care in prison should also be explored. First, the PLRA should be repealed or amended. The purpose of the PLRA was to decrease frivolous lawsuits brought forth by incarcerated individuals.Footnote 229 It was thought that excessive damage awards and increased frivolous suits led to a significant increase in liability insurance premiums.Footnote 230 However, opponents of the PLRA argue that the increase in liability insurance premiums reflects economic realities, rather than frivolous suits.Footnote 231 Regardless, the act unreasonably burdens incarcerated individuals seeking relief.Footnote 232
Second, efforts should be made to increase the number of and empower “jailhouse lawyers.” Jailhouse lawyers — incarcerated individuals who help meet their own legal needs and those of others in prison — are generally authorized to perform such duties in criminal and civil rights cases, given the lack of access to adequate representation and assistance.Footnote 233 The right of jailhouse lawyers to advocate for other incarcerated individuals was first recognized in the 1969 case, Johnson v. Avery, in which the U.S. Supreme Court concluded that an incarcerated person can serve as a “jailhouse lawyer” for another incarcerated person in a postconviction criminal case.Footnote 234 The Court held that “unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation … barring inmates from furnishing such assistance to other prisoners.”Footnote 235 In Wolff v. McDonnell, the Court extended the protection of incarcerated individuals assisting other incarcerated individuals to civil rights cases but explicitly excluded prison disciplinary proceedings.Footnote 236 The Court held that incarcerated people do not have a right to appointed or retained counsel or assistance from other incarcerated individuals in prison disciplinary proceedings unless the proceedings involve an incarcerated person who is “totally or functionally illiterate” or complex issues that make it “unlikely that the inmate will be able to collect and present the evidence necessary.”Footnote 237 In such instances, the incarcerated individual may seek the aid of a fellow incarcerated individual or substitute counsel from a staff member or sufficiently competent incarcerated individual designated by staff.Footnote 238 When permitted to assist, jailhouse lawyers may not represent another person in court or accept payment, but they can offer advice, write motions and briefs, perform legal research, and assist in raising a legal claim.Footnote 239
While caselaw generally supports the right of incarcerated individuals to assist other incarcerated individuals in criminal and civil rights matters, jailhouse lawyers still face several obstacles. First, there have been periodic legal challenges to the validity of jailhouse lawyering. In 2016, the State of Vermont brought an action against Serendipity Morales, alleging that, in performing legal research and drafting motions on behalf of other incarcerated individuals, she engaged in the unauthorized practice of law.Footnote 240 While the Supreme Court of Vermont rightfully held that Ms. Morales’s jailhouse lawyering did not constitute the unauthorized practice of law, the recency of this lawsuit shows that, despite decades-old precedent, the scope of permissible jailhouse lawyering is still at risk of challenge.Footnote 241 Second, jailhouse lawyers have limited resources at their disposal, given the general lack of internet access in prisons and the 1996 Supreme Court decision, Lewis v. Casey, which held that incarcerated people do not have a right to a law library.Footnote 242 Finally, jailhouse lawyers may face retaliation from prison officials, especially when helping another incarcerated individual bring an action against the prison.Footnote 243 Indeed, in the years following In re Morales, Ms. Morales filed claims against two corrections officers, alleging that they beat her in retaliation for her jailhouse lawyering.Footnote 244 However, both claims were ultimately dismissed due to Ms. Morales’s failure to prove that she exhausted the administrative remedies available to her through the Vermont Department of Corrections, as required by § 1997e(a) of the PLRA.Footnote 245
Although jailhouse lawyers face these challenges across the United States, some states have taken measures to protect the role of jailhouse lawyers. New Jersey, for example, has issued several “Inmate Legal Services” regulations, authorizing “inmate paralegals” to render legal assistance to other incarcerated people, providing for the establishment of state-funded “inmate paralegal” training programs in prisons, and mandating accessible and adequate law libraries.Footnote 246 One New Jersey prison, Garden State Youth Correctional Facility (“Garden State”), allows any incarcerated person with a high school diploma or GED and an interest in assisting other incarcerated people in legal matters to take the state-funded paralegal training course, when available.Footnote 247 In 2024, five individuals graduated from Garden State’s 12-week paralegal certificate program.Footnote 248
Further research should be performed to evaluate the effectiveness of jailhouse lawyer training programs and resources in order to determine how to best empower incarcerated people to advocate for themselves and others. Future efforts should include collaborations between incarcerated people, grassroots organizations, and municipal governments to bridge the gap in accessing the legal system in prison.
Conclusion
As prisons increasingly outsource health care capabilities from private correctional health care corporations, research has demonstrated critical rates of medical malpractice, medical neglect, and wrongful death associated with such companies. Rather than take accountability for inadequate care, these correctional health care companies have begun to turn to the Chapter 11 bankruptcy system and the Texas Two-Step maneuver to circumvent liability. Such tactics threaten to compound incarcerated individuals’ barriers to accessing the legal system and seeking relief. In the future, courts should apply Harrington v. Purdue Pharma’s prohibition of nonconsensual third-party releases and adopt a narrow definition of claimant consent to reject further attempts by correctional health care contractors to utilize the Texas Two-Step maneuver. Additional solutions should also be explored to decrease both medical malpractice in prisons and barriers to seeking relief in prisons, such as investing in public health research focused on correctional health care, evaluating alternative care models, repealing or amending the PLRA, and empowering jailhouse lawyers.
Open access
