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February 15, 2005 - The Los Angeles Times (CA)

Brain-Dead Prison Inmate Is Granted an Early Release

Daniel Provencio, who had five months left to serve, was struck in the head by a foam ball fired by a Wasco State Prison guard on Jan. 16.

By Jenifer Warren, Times Staff Writer

Return to Drug War News: Don't Miss Archive

SACRAMENTO -- In a move they called exceedingly rare, state prison officials Monday granted an early release to an inmate who was shot last month by a correctional officer and has been declared brain-dead.

Daniel Provencio, 28, has been connected to a ventilator and feeding tubes in a Bakersfield hospital since Jan. 16, when he was struck in the head by a foam projectile.

Under an agreement between the Department of Corrections and the inmate's family, Provencio was discharged from custody although he had about five months left to serve. Relatives had hoped to transfer him closer to their Ventura County homes, but they acknowledged Monday that he was too fragile to move and that other hospitals had declined to accept him.

"Because of his condition, nobody will take him," Provencio's brother, Johnny, said. "Nobody is willing to do anything for him."

A spokesman for the prison system said Provencio's medical care, which had been paid by the Department of Corrections, probably would be covered by Medi-Cal. By late Monday afternoon, a guard was no longer standing near Provencio's hospital bed. The inmate had been guarded around the clock as part of a Department of Corrections policy.

"We finally found a solution that the hospital, family members and the department can all live with," Corrections Department spokesman Todd Slosek said.

The shooting at Wasco State Prison, a 6,100-inmate lockup near Bakersfield, remains under investigation by the department and state Inspector General Matt Cate.

The case has sparked interest among prison reformers, legislators and others because it raises questions about how corrections officials handle brain-dead inmates whose families are not ready to say goodbye.

In addition, critics have expressed concerns about the department's policy of requiring that prisoners in community hospitals be guarded 24 hours a day by at least one correctional officer. For Provencio, that requirement cost $1,056 per day. The department could not immediately provide the cost of his medical care.

Earlier this month, Gov. Arnold Schwarzenegger called guarding brain-dead and comatose inmates "ludicrous" at a meeting with the editorial board of the San Jose Mercury News.

Schwarzenegger said the state needs to "tighten the screw so we don't have this misuse of money. And instead of having these two guys standing there 24 hours a day guarding this guy that is in a coma, why not have these two guys working somewhere else where they really are needed."

Corrections officials said the policy, which was designed to protect hospital staff, other patients and the inmates, was under review. They said that in many cases, the state's contract with community hospitals requires such protection.

Sen. Gloria Romero (D-Los Angeles), chairwoman of a legislative oversight committee on prisons, said she had asked for statistics on how many other comatose or brain-dead inmates are under 24-hour guard, which she called "a totally crazy policy."

As for Provencio's release, Romero said, it was "clearly the right thing to do. But I'm troubled that once again it took an outraged reaction from the public and legislators to make the department act."

Provencio was shot after a fight broke out in a lounge area as about 40 inmates were being given dinner. Three prisoners were involved, and one tried to restrain guards who intervened. Officials have declined to say what Provencio's role was.

After officers ordered the inmates down on the floor, a guard in an elevated control room fired a large, foam pellet from a 40-millimeter launcher. The foam balls, which are used for riot control, are considered non-lethal and are meant to be fired at a person's extremities, prison officials said.

Provencio was taken to Mercy Hospital, where family members said doctors induced a coma to operate and relieve swelling on his brain. Since then, neurologists have declared him brain-dead, his family said.

Divorced with a young son who lives in Oxnard, Provencio was serving his second term in state prison - this time for a parole violation of drunk driving. Previously, he had served three years and eight months for narcotics violations.

His mother, Nancy Mendoza, said he had recently kicked a heroin habit and was working a steady job laying utility pipe. He was arrested while driving home from a Father's Day party at his aunt's house last year.

Johnny Provencio said that doctors repeatedly had asked family members to disconnect his brother from life support.

"They tell us that he is already dead, his spirit has left the body, and there is nothing they can do for him," Johnny Provencio said. "We told them pulling the plug is not an option."

Mendoza has said that she is hoping for a miracle because Johnny Provencio survived a coma as an infant. He is now 29.

"You see things all the time that give you hope," Johnny Provencio said. "Anything can happen."

Copyright 2005 Los Angeles Times

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