In a 38-page report issued Monday, attorneys with Downs Rachlin Martin concluded that DOC policies and personnel failed to protect Kenneth Johnson, a 60-year-old Black man who died after an undiagnosed tumor obstructed his airway. The firm also faulted Centurion, the medical contractor that ran the infirmary at Newport’s Northern State Correctional Facility, where Johnson was lodged.
The report questioned whether Johnson’s race contributed to his substandard treatment, concluding that “implicit bias likely played a role.”
The investigation found that authorities were aware that Johnson was in medical distress as early at 10 p.m. on December 6, but failed to respond appropriately to his requests for help. Though Johnson “appeared to be gasping for air,” according to one officer, staff neglected to summon a doctor or transport him to a nearby hospital.
After a Corrections officer found Johnson collapsed on the floor of an infirmary bathroom at 12:38 a.m. the next morning, prison staff ordered him to stay in bed and threatened to send him to a holding cell if he failed to comply, the report found. One supervisor told him to “knock it off.”
Johnson was discovered unresponsive at 2:17 a.m. and was pronounced dead shortly thereafter.
The firm concluded that the department and Centurion "could have and should have done more to assist Mr. Johnson during his health crisis," noting that he was "clearly and visibly in substantial distress during that time period.”
"While corrections staff did not completely fail in responding to these complaints, at the end of the day, their response was insufficient to keep Mr. Johnson from dying from a tumor-caused breathing obstruction," the report’s authors wrote. "That should not have happened."
During a press conference Monday afternoon, Downs Rachlin Martin director Tristram Coffin said “the conclusion is inescapable” that authorities could have done more for Johnson.
“It just is not sufficient that an inmate complains persistently and credibly of not being able to breathe for a period of some hours consistently, does not see a doctor, does not go to a hospital and then later dies — apparently from breathing complications,” said Coffin, a former U.S. attorney. “That is just not, as a policy matter, how Vermont should be conducting its business.”
Coffin said during the online press conference that he did not believe the conduct in question was criminal in nature, describing it instead as an avoidable tragedy. He would not say whether he referred any information gleaned in the investigation to law enforcement officials.
Separately, Attorney General T.J. Donovan, Orleans County State’s Attorney Jennifer Barrett, the Vermont State Police and the Secretary of State’s Office of Professional Regulation have all probed the matter, while the state’s chief medical examiner, Dr. Steven Shapiro, has said that the lack of care Johnson received could rise to the level of criminal neglect.
Charity Clark, Donovan’s chief of staff, said her office’s investigation was ongoing but declined to comment further.
Downs Rachlin Martin did not specifically recommend disciplinary action against Corrections staffers, but at Monday’s press conference, Human Services Secretary Mike Smith said those could be in the offing.
“We need to take a look at the actions of our personnel involved in this incident,” he said. “There are troubling details included in this report that suggest that some of our employees failed to take action when it was indicated.”
File: Jeb Wallace-Brodeur
Secretary of Human Services Mike Smith
Smith, whose agency oversees the Department of Corrections, called the report “disturbing” and said there was “plenty of blame to go around.” In particular, he faulted Centurion, whose employees refused to take part in the investigation. The state severed its relationship with the contractor in July for unrelated reasons.
“I have a really deep concern about Centurion’s refusal to participate in this independent investigation,” Smith said. “It’s both unfortunate and disconcerting to me, at least.”
Centurion representatives did not initially respond to requests for comment but provided a written statement days after this story was first published. In it, the company said it could not discuss Johnson’s case for patient privacy reasons but disputed many of Downs Rachlin Martin’s findings.
“We chose not to participate in this inquiry as we were given no information or assurances about the scope of the … investigation, and our employees have already participated in two other investigations,” the company said, adding that all medical records belonged to the state and were available to the firm. “Centurion stands by our record of service in Vermont and the quality of care that we have provided to thousands of incarcerated individuals in the state.”
In its report on Johnson’s death, the Office of the Defender General accused the Department of Corrections of being “complicit in covering up [Centurion’s] gross failure to provide live-saving medical care,” suggesting that staffers had failed to truthfully document their activity that night. But during Monday’s press conference, Coffin said his firm had found no evidence that was the case.
At the time of his death, Johnson was being held without bail on charges of human trafficking and sexual assault of a minor. He and another man were accused in September 2017 of luring a 15-year-old girl to a Lyndon motel and repeatedly assaulting her over the course of a month and a half. Johnson pleaded not guilty and was awaiting trial.
Several state officials and Johnson’s own family members have questioned whether his race played a role in his death. In a July interview with Seven Days, Gilbert Johnson said his brother had experienced racism while incarcerated.
The report noted that Johnson was under the care and supervision of “an almost entirely white staff” and found that several officers had not received implicit bias training. One supervisor said he had never even heard of implicit bias.
Though the report suggested it was “reasonable to conclude” that Johnson’s race affected his treatment, it also stated that it was “impossible to determine with certainty whether racial bias played a role in this tragedy.”
At Monday’s press conference, Coffin said, “It’s hard to say whether [Johnson’s race] resulted in having differential treatment, but it’s also hard to say that that wasn’t the case.”
Downs Rachlin Martin made several recommendations to the Department of Corrections, including reevaluating its use of holding cells for medical purposes.
According to a fellow inmate lodged in the infirmary, Johnson refrained from asking for help after the officers threatened to send him to a holding cell. “No inmate in DOC custody should be reluctant to seek medical care for fear of retribution in the form of segregation,” the firm wrote.
The report also recommended improving policies and training related to the observation of inmates experiencing medical issues, and it recommended clarifying when shift supervisors should contact higher-ups about medical situations. The investigation noted a discrepancy in the testimony of two staff members: A supervisor said he had kept the prison superintendent in the loop about Johnson’s health issues, but the superintendent disputed that.
The report questioned whether Johnson had been treated in a humane fashion and called on the department to “rigorously examine its institutional culture.”
During Monday’s press conference, interim Corrections Commissioner Jim Baker said he was committed to doing so. He said that the department had hired the Moss Group, a Washington, D.C., corrections consultancy, to address culture and policy issues. Tabitha Pohl-Moore, president of the Rutland branch of the NAACP, has also been engaged to train new recruits, he said.