Deadly heat in Texas prisons sounds ‘cruel and unusual.’ Why is it still happening?

For many Texans, this was not just a summer of record-breaking heat. It was the summer they learned about the plight of inmates in state prisons. More than two-thirds of prison cells in Texas lack air conditioning. And as this year’s relentless heat ground on, stories of horrific prison conditions started to get out.

“It literally feels like I’m baking in a pizza oven,” one woman, incarcerated at the Hobby Unit prison outside of Waco, told KUT.

Other Hobby inmates, who wished to remain anonymous, reported getting sick and seeing other prisoners require emergency care because of the heat. They talked of getting burned by the stainless steel toilets in their cells, being deprived of regular access to cool water, respite or showers, and needing to strip to their underwear to lay in pools of dirty water on their cell floors just to cool off.

“I wholeheartedly believe that has saved lives,” one inmate said of the practice.

It literally feels like I’m baking in a pizza oven.

It wasn’t just the Hobby Unit. Inmates, their family members and advocates report strikingly similar conditions across the state this summer. As they did, Texas prisoners died in higher than average numbers.

In the extreme summer temperatures, cement and metal Texas prison cells can act like a heat sink, reaching the 90s, or even triple digits for much of the day. Outside experts, looking at prison mortality rates, say the practice of forcing people to live in that heat is killing them. Prison officials say there is no evidence of that.

But, even if official denials are to be believed, prisoners describe conditions that seem to fit the definition of “cruel and unusual punishment,” something the U.S. Constitution is supposed to guard against.

“I’m still being punished,” one inmate told KUT. “But this is torture.”

So, how is this allowed to happen?

Lawyers and inmate advocates say the courts, along with federal and state lawmakers, have created a nearly insurmountable series of barriers to winning reform and improving prison conditions.

What counts as “cruel and unusual”?

Scott Medlock is an attorney who helped win a rare victory for Texas prisoners when it comes to access to air conditioning.

In 2012, Medlock and others filed a lawsuit against the Texas Department of Criminal Justice on behalf of inmates at the Wallace Pack Unit prison in Navasota, about an hour outside Houston. The lawsuit claimed that the extreme heat in prison cells at Pack violated inmates’ rights under the U.S. Constitution, the Americans with Disabilities Act and the Rehabilitation Act.

“When I’d go and see them, before air conditioning, they’d be dragged out all red in the face, sweating,” Medlock remembers. “They were in horrible shape.”

The suit led to a settlement with the TDCJ that guaranteed air conditioning would be installed at the prison. But, Medlock says, the settlement would have been difficult to achieve if the state had not conceded that the Pack Unit was housing prisoners with extreme medical vulnerability.

That was kind of the low-hanging fruit because [the prison] is always described as a geriatric facility,” he says. “It was kind of the logical place to start [a legal challenge].”

The reality, Medlock says, is that it is incredibly difficult for prisoners to win relief from the heat in court.

For one thing, under current legal standards, a claim that inmates’ treatment is cruel and unusual needs to show that prison officials are showing what’s called “deliberate indifference” to their suffering.

That “essentially means that they’ve done nothing about fixing the problem,” Medlock says.

‘Rearranging the deck chairs on the Titanic’

When asked about heat in Texas prisons, the TDCJ points to tactics they use to mitigate the problem, including tracking prisoners who are medically vulnerable.

“The department uses an array of measures to keep inmates safe. Everyone has access to ice and water,” TDCJ spokesperson Amanda Hernandez wrote in an email. “Fans are strategically placed in facilities to move the air. Inmates have access to a fan and they can access air-conditioned respite areas when needed. “

Inmates say these policies are not only insufficient, they are often not implemented by corrections officers overseeing prisons. Even in places where cold water and fans are available, the policies amount to “rearranging the deck chairs on the Titanic,” Medlock says.

That’s “the beauty of air conditioning, it’s the idiot-proof solution,” he says. “You can figure out pretty easily if the air conditioning was being turned on. It’s really hard to find out, ‘Was the ice bucket filled up every hour like the warden said it was?’”

But, even if the policies requiring fans and ice buckets aren’t enough to protect inmates from the heat, they protect the TDCJ against charges of “deliberate indifference.” They can show, as Medlock puts it, that the state “was not doing nothing” when it was accused of cruel and unusual punishment.

Another roadblock

Legal opinions over what constitutes ‘deliberate indifference’ may change from decade to decade, or from judge to judge. But, in the tough-on-crime era of the 1990s, former President Bill Clinton signed a law to make it even harder for prisoners to try to improve their conditions through lawsuits.

The Prison Litigation Reform Act, signed in 1996, was framed by Clinton and congressional lawmakers as a response to frivolous litigation from inmates. In reality, it made it nearly impossible for their cases to be heard in court.

The act does this by requiring that inmates exhaust the internal grievance process of the prison system where they are incarcerated, before taking their case to a judge. If they fail to do that, or if there is a problem with their paperwork, or if prison officials claim they never received the proper paperwork, the case can be thrown out.

My witness is a prisoner who’s doing 20 years to life and their witness is a decorated corrections officer. They are telling two starkly different stories. It’s not hard to figure out who’s going to get believed nine times out of 10.

“It’s very, very difficult to find lawyers who can handle these kinds of cases because of all these barriers,” says Michele Deitch, director of the Prison and Jail Innovation Lab at UT Austin’s LBJ School of Public Affairs. “It’s very hard to win them and it has nothing to do with the legitimacy of the underlying issue.”

If a case makes it to court, and the judge finds the prison has been operating illegally, the Litigation Reform Act also limits how the judge can tell a prison to resolve the problem. The act says the judge must order the least intrusive solution. This, again, could mean buckets of ice water or common rooms with fans, rather than air conditioning in prison cells.

Finally, Medlock says, prison officials have a built-in advantage in any court setting.

“My witness is a prisoner who’s doing 20 years to life and their witness is a decorated corrections officer,” says Medlock. “They are telling two starkly different stories. It’s not hard to figure out who’s going to get believed nine times out of 10.”

Despite these barriers, lawsuits have occasionally brought air conditioning to individual prisons across the country. But the challenges and roadblocks are so significant that even some attorneys say there is little hope of bringing systemic reform through litigation.

“Why do we rely on the courts to step in and say that this is an inhumane and intolerable situation? This is a political problem,” says Deitch. ”This is a political issue. We shouldn’t rely on the courts to have to tell us what to do.”

But if we need to wait for Texas political leaders to take action, prison reform advocates say we’ll be waiting for a long time.

‘The needed level of compassion’

“Gov. Abbott hasn’t said a single word on this issue. … The lieutenant governor has said nothing,” says Amite Dominick, president of the Texas Prisons Community Advocates. She says the Texas Senate has been, at best, reserved and, at worst, silent. “They just don’t seem to have the needed level of compassion or empathy,” Dominick says.

Over this year’s scorching summer, Dominick has lobbied state lawmakers and helped organize rallies to raise awareness of prison heat. One protest included a mock prison cell meant to simulate the temperatures inmates endure for months in their confinement.

So far, she says, there has been no response from those at the top of state power. But the silence doesn’t end there.

“I’m really shocked at the lack of federal intervention as well,” Dominick says.

While Texas may be one of the hottest states, with the largest prison population living without air conditioning, it is far from the only one. Right now, 44 states don’t mandate AC in state-run facilities. Federal prisons, likewise, have no requirement for air conditioning.

We sit around here and talk about, ‘Are we going to be alive in five years?’

But as global warming makes the heat worse, the issue of AC in prisons will touch states where it has, so far, been less of an issue. In fact, one study found that lack of air conditioning in prisons during heat waves may lead to higher fatalities in northeastern prisons, where the prisons are less prepared and the inmate population is less accustomed to extreme heat.

“This is a societal problem,” Dominick says. “Society thinks that these people [in prisons] were so horrible that they need to be treated that way. [But] if we are going to do this type of premeditated cruelty to another individual … who exactly is the criminal?”

While some congressional Democrats have called for a House investigation, there seems to be little interest from the Biden administration to press the issue through changes to federal standards, or with a Department of Justice investigation into the problem of prison heat in specific states.

Why?

“That’s a question for [U.S. Attorney General] Merrick Garland and Joe Biden,” Medlock says. “Because this has been a problem forever. It’s only getting worse.”

And for many people living in prisons without AC, it feels like they may be running out of time.

“The news is scary,” one inmate at the Hobby Unit says. “With climate change and record-breaking heat every day and heat domes and heat waves … we sit around here and talk about, ‘Are we going to be alive in five years?'”

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