TEXAS MAY HAVE TO SPEND MANY MILLIONS OF DOLLARS TO AIR CONDITION ITS PRISONS

Federal Judge Rules Extreme Texas Prison Heat Is Cruel and Unusual Punishment

By Meagan Flynn

Houston Press
July 20, 2017

For decades of Texas summers, prisoners of the Texas Department of Criminal Justice have lived in heat they described as equivalent to "walking out to your car in the middle of the summertime,” to "getting into a hot box in the sun." They have often slept on the concrete because it is cooler than their mattresses, and away from fans that blow hot air on them. They have sometimes struggled to write letters because their sweat drips over the paper as if it were raining. Twenty-three men have died in these conditions since 1998, including Larry McCollum, who, just days after being booked for writing a hot check, died of a heat stroke while convulsing atop his bed. His internal temperature was found to be 109 degrees.

These are all among the reasons that, on Wednesday, a federal judge in Houston ruled that such conditions violate the Eighth Amendment's ban on cruel and unusual punishment — that there is a "substantial risk of serious illness or death from the current conditions at the Pack Unit." U.S. District Judge Keith Ellison ordered in a preliminary injunction that TDCJ provide air conditioning, at least below 88 degrees, to heat-sensitive inmates, including the elderly, disabled and those taking medications that complicate the body's ability to regulate heat. For young and healthy inmates, he ordered TDCJ to implement a more robust "respite program," which would allow inmates to access air-conditioned areas at any time of day or night, for as long as needed. (This program exists, but is not adequately offered or operated well, Ellison found.)

"As [Fyodor] Dostoyevsky said more than 150 years ago, 'The degree of civilization in a society can be judged by entering its prisons,'" Ellison wrote. "Prisoners are human beings with spouses and children who worry about them and miss them. Some of them will likely someday be shown to have been innocent of the crimes of which they are accused. But, even those admittedly guilty of the most heinous crimes must not be denied their constitutional rights. We diminish the Constitution for all of us to the extent we deny it to anyone."

In his 100-page order, Ellison recounts evidence pointing not only to incompetence from TDCJ in understanding the grave risks inmates face in extreme heat, but also to deliberate indifference as to whether inmates die or fall seriously ill as a result. The heat index in the prison is, more often than not, above 100 degrees during the summer. During the summer of 2014, when the lawsuit was filed, remarkably, Pack Unit Warden Robert Herrera ordered his staff to stop recording the prison heat index. The plaintiffs hired their own expert to do it, who found the heat index to be above 105 for six days in a single week. Records showed that hundreds of correctional officers have also suffered from heat-related illnesses during the summer.

Yet despite the 23 deaths and often more than 100 cases of heat-related illness every year, TDCJ has never considered providing air-conditioning, and does not even have a written protocol for what to do in the case of a heat wave. The closest thing can be found in its training manual, in which it orders staff to "Take action! A Heat Advisory is issued within 12 hours of the onset of extremely dangerous heat conditions...Take precautions to avoid heat illness. If you do not take precautions, you could become seriously ill or even die.”

But Ellison found that, beyond offering inmates ice water, two cold showers a day and its haphazard "respite program," TDCJ fails to take any precautionary action at all during heat advisories — because TDCJ administration staff fails even to notify the prisons of them. When Ellison asked one official why, he said: "Because [the state operations center] receives these pretty much every day during the summer.”

Attorney General Ken Paxton announced yesterday that Texas will be appealing Ellison's ruling, saying that Ellison "downplays the substantial precautions TDCJ already has in place to protect inmates from the summer heat," which include the water, respite, showers and fans (which the Centers for Disease Control and Prevention says can be harmful and should not be used when the air is warmer than 95 degrees).

“Texas taxpayers shouldn’t be on the hook for tens of millions of dollars to pay for expensive prison air conditioning systems, which are unnecessary and not constitutionally mandated," he said.

Plaintiffs' attorney Scott Medlock said they intend to take the case to trial and will fight for greater relief for the inmates — including fully operating air-conditioning for all. While Ellison is not requiring it in the interim, he did find that TDCJ's cost estimates for installing air conditioning — $20 million at the Pack Unit permanently and $1.2 million temporarily — were exaggerated. He instead found that the costs were closer to somewhere above $110,000 to temporarily install a cooling system during the summer.

In closing, Ellison said he anticipated what many among the public would think about his order — that many people in the free world would claim that they, too, had lived in a time without air-conditioning, and that if they could do it, then inmates could. He found those comparisons to be ignorant of the helplessness inmates often face, as they lack the luxuries free people have to cool themselves down. He drew attention to TDCJ's argument that it was okay that prisons today lack air-conditioning because they weren't built with cooling systems 30 years ago. And he rebuked the agency for putting finances above human rights, saying that, even if it really did cost the millions TDCJ claims, if the conditions are cruel and unusual, the money does not matter.

"To deny modern technology to inmates today for the simple reason that it was not available to inmates in past generations is an argument that proves too much. No one suggests that inmates should be denied up-to-date medical and psychiatric care, or that they should be denied access to radio or television, or that construction of prison facilities should not use modern building materials. The treatment of prisoners must necessarily evolve as society evolves."