Heat-related Deaths in Texas Prisons Lead to Lawsuits, Reluctant Changes

by Matt Clarke and David M. Reutter

Prisoners across the nation are currently experiencing the oppressive heat of summer – particularly in the Southern states. Those incarcerated in Texas, however, have not just been sweating due to high temperatures. They have been dying.

Since 2007 at least 14 prisoner deaths in Texas have been linked to sweltering conditions during brutal summers. Prisoners who suffer from obesity, diabetes and high blood pressure, and those taking psychiatric medications, are especially susceptible to high levels of heat. But despite the fatalities – and resultant lawsuits – until recently the Texas Department of Criminal Justice (TDCJ) has done little to prevent prisoners from literally baking to death.

Such stonewalling has persisted in spite of a federal Court of Appeals ruling that found exposing prisoners to dangerously high temperatures may violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Unlike correctional facilities in many other states, most Texas prisons are not air conditioned – only 21 of 111 TDCJ facilities have full climate control, while others have air conditioning only in certain areas such as medical units.

In a rare and unusual display of unity, the union representing Texas prison guards has sided with prisoners, arguing that the excessive heat creates a hazardous work environment for line staff while wardens sit in cool, comfortable offices and even prison armories are air conditioned.

And while Texas lawmakers posture that the tax-paying public opposes providing prisoners with air conditioning, the TDCJ has added insult to injury by allocating three-quarters of a million dollars to construct climate-controlled barns for hogs the prison system raises ... using prisoner labor, of course.

Lawsuit Seeks Relief

In the most recent legal challenge to the stifling conditions in Texas prisons, four prisoners at the Wallace Pack Unit filed suit in federal court on June 18, 2014, seeking relief from the oppressive heat that turns metal-lined cell blocks into ovens. The plaintiffs, who suffer from medical conditions or disabilities aggravated by high temperatures, allege they are being subjected to inhumane conditions. See: Bailey v. Livingston, U.S.D.C. (S.D. Texas), Case No. 4:14-cv-01698.

“It is a concrete, persistent, well-known danger – summer comes every year, and every year, people die,” said Brian McGiverin, an attorney with the Texas Civil Rights Project (TCRP), which represents the prisoners.

“I don’t know if I will make it this summer,” stated Marvin Yates, 69, one of the four plaintiffs in the case. Yates has chronic obstructive pulmonary disease (COPD) and hypertension. “The heat and humidity are so bad I have trouble breathing,” he said. “The metal tables in the dorms are too hot to touch and feel like they can burn your skin.”

“The prisoners need the Court to stop TDCJ from subjecting them to these extremely high temperatures because Pack is a geriatric unit that has hundreds of inmates over age 60, and hundreds more that suffer from heat-sensitive medical conditions like asthma, diabetes and COPD,” said attorney Jeff Edwards, the lead attorney in the lawsuit. “TDCJ knows the temperatures at Pack place these prisoners in danger but rather than cool the housing areas or move the prisoners to safe locations, TDCJ plays Russian roulette with their health.” 

The lawsuit asks the court to order the TDCJ to reduce temperatures to a maximum of 88 degrees – the threshold established by a federal court in Louisiana in December 2013 for a unit housing death row prisoners in that state. The suit also seeks class-action status.

“Unlike many problems facing the prison system, this is one that can be easily fixed,” Edwards observed. “According to medical experts, TDCJ could eliminate nearly all heat-related illnesses that happen inside its housing areas by simply reducing the heat index to 88 degrees or below.”

Edwards said it was no coincidence that one day after the Texas Civil Rights Project issued a press release announcing the lawsuit, the news media reported the TDCJ had taken steps to reduce high temperatures in prisoner living areas at seven units.

Jay Eason, the TDCJ’s deputy director of prison and jail operations, said the purchase of 28 Cool-Space evaporative coolers at a cost of $1,800 each was “just something we thought we would try.” He added, “This year we purchased close to 700 additional fans for offender housing and work areas.”

Study Finds Dangerous Heat Conditions

The TCRP lawsuit was filed two months after the release of a study by the University of Texas School of Law’s Human Rights Clinic that found high heat and humidity, combined with a lack of policies to protect prisoners from life-threatening conditions, violate the Eighth Amendment and international human rights standards.

The April 2014 study, “Deadly Heat in Texas Prisons,” noted that of the 14 prisoners who died from heat-related causes since 2007, 13 suffered from medical conditions or were taking medication that rendered them heat-sensitive. However, the TDCJ had no policy for identifying heat-sensitive prisoners and housing them in climate-controlled prisons. Five of the six facilities where the prisoners died were built within the last 30 years, yet none provide a way to control excessively high temperatures in prisoner housing areas.

The heat index, a standard that measures the impact of severe heat – a combination of actual air temperature and relative humidity, or how hot it feels – is set by the National Weather Service. For example, a heat index of 103 degrees or higher carries a classification of “extreme caution,” “danger” or “extreme danger.” Extreme caution means that heat exhaustion is possible; the chance is greater on danger days, and heat exhaustion is probable on extreme danger days. Heat exhaustion can result in mental confusion, sweating, headaches, nausea and fatigue. Left untreated it may progress to heat stroke, a condition that can lead to organ failure and death.

According to the Human Rights Clinic study, TDCJ guards routinely log temperatures and humidity that drive the heat index into extreme caution, danger and extreme danger levels. For example, the 10:30 a.m. reading at the Hutchins Unit on July 19, 2011 indicated an air temperature of 112 degrees, humidity of 65% and a heat index of over 149 degrees – far into the extreme danger range.

“TDCJ takes precautions to help reduce heat-related illnesses such as providing water and ice to staff and offenders in work and housing areas, restricting offender activity during the hottest parts of the day, and training staff to identify those with heat-related illnesses and refer them to medical staff for treatment,” said TDCJ spokesman Jason Clark.

“The response that their policies are adequate today is ridiculous,” countered TCRP attorney Brian McGiverin. “They know well that people are dying from heat in their prisons. If they don’t feel that they have a problem with their policies that simply means that they don’t care that people are dying.”

Water coolers filled with ice can quickly run dry and, in any case, don’t go far in a housing unit with 150 or more prisoners; further, permitting extra showers is a policy that never seems to be followed. Thus, some prisoners strip down to their underwear and lie on the concrete floor in an effort to stay cool.

The TDCJ does use large fans to circulate air in housing areas, but such measures may actually increase the danger from oppressive heat. According to the Centers for Disease Control, “fans will not protect a person from heatstroke or heat-related illness when temperatures are above 90°F and humidity is above 35%. In fact, using fans in extremely hot and humid conditions may actually increase heat stress on the body.”

Appellate Court Ruling and More Lawsuits

The Human Rights Clinic report added weight to a recent decision by the Fifth Circuit Court of Appeals, which held that exposing prisoners to extreme temperatures “can constitute a violation of the Eighth Amendment.”

On July 30, 2012, the Fifth Circuit issued an unpublished ruling in a lawsuit brought by former Texas prisoner Eugene Blackmon, who claimed that prison officials “did not take constitutionally adequate measures to address the extremely high temperatures in his dormitory during the summer of 2008, exposing him to substantial health risks. Blackmon contended that he was particularly susceptible to the effects of the heat because, during the relevant time of his confinement, he was 63 to 64 years old and took prescription medication for pre-existing high blood pressure.”

The district court had granted judgment as a matter of law to the TDCJ defendants, and the Court of Appeals reversed and remanded for a new trial. The appellate court concluded that “when viewed in the light most favorable to Blackmon, the evidence presented at trial would allow a reasonable jury to conclude that the extreme heat in Blackmon’s dorm caused substantial health risks to Blackmon – a prisoner who, according to testimony presented at trial, was especially susceptible to the health risks of extreme heat because of his advanced age, pre-existing high blood pressure, and use of prescription medication.” See: Blackmon v. Garza, 484 Fed. Appx. 866 (5th Cir. 2012).

Following remand, the case settled in January 2013 for $8,000. Blackmon was represented by the Texas Civil Rights Project.

In June 2012, the TCRP filed suit over the wrongful death of prisoner Larry Gene McCollum, 58, at the Hutchins State Jail in Dallas. McCollum suffered from diabetes and hypertension, and weighed 345 pounds. The cause of his death was hyperthermia; when he was taken to a hospital, his body temperature was reportedly 109.4 degrees. The case remains pending. See: McCollum v. Livingston, U.S.D.C. (N.D. Texas), Case No. 3:12-cv-02037-L.

The TCRP also filed wrongful death lawsuits in federal court on June 13, 2013 against the TDCJ and University of Texas Medical Branch on behalf of the families of four prisoners who died due to heat-related causes – Douglas Hudson, Kenneth Wayne James, Rodney Adams and Robert Allen Webb. Hudson, James and Adams had died at the Gurney Unit, while Webb died at the Hodge Unit. All had medical conditions that made them more susceptible to high temperatures. The lawsuits remain pending, and the TDCJ defendants filed an interlocutory appeal to the Fifth Circuit in July 2014. See: Adams v. Livingston, U.S.D.C. (E.D. Texas), Case No. 6:13-cv-00712-KNM.

“These men were the weakest of the weak,” stated Texas Civil Rights Project attorney Jeff Edwards. “TDCJ knew putting men with these medical conditions in temperatures this high could kill them, but they did it anyway.”

“My dad was supposed to go to jail for four years for drunk driving and the temperatures were so bad that he couldn’t survive four days,” said Ashley Adams, whose father, Rodney, died a day after suffering convulsions. He had a body temperature of 107.9 degrees. Court records include an account from a hospital doctor who said Rodney was “perfectly well” until he was exposed to “extremely hot conditions within the holding tank” at the prison.

“No one deserves to die like that,” Ashley said.

Kenneth Wayne James, 52, was just a few months from release when he was discovered dead in his cell with a body temperature of 108 degrees on August 13, 2011. An autopsy found his death was due to “environmental hyperthermia-related classic heat stroke.”

Albert Hinojosa died at the Garza West Unit in Beeville, where the windows are sealed shut and the “prison housing areas are like an oven,” his mother, Ramona Hinojosa, wrote in a federal lawsuit filed against the TDCJ and prison and medical officials. An autopsy determined that Albert had died from hyperthermia; the suit remains pending. See: Hinojosa v. Livingston, U.S.D.C. (S.D. Texas), Case No. 2:13-cv-00319.

Politics as Usual and an Unlikely Ally

Ramona Hinojosa said Texas lawmakers are well aware of the problem, noting that state Rep. Sylvester Turner sent a letter to TDCJ executive director Brad Livingston in 2011 “expressing his concern about the high temperatures in TDCJ prisons, that ‘temperatures inside cells have reached as high as 120 degrees during the day and do not fall below 100 degrees at night.’”

But according to Hinojosa’s lawsuit, TDCJ officials consider air conditioning a “waste of money.” The cost of installing air conditioning in prison units has been estimated at $55 million, and there is no apparent support among legislators to provide that funding.

“We need to have a grownup discussion of what’s practicable and reasonable and what’s politically acceptable. But I can tell you, the people of Texas don’t want air conditioned prisons,” said state Senator John Whitmire, who chairs the Senate Criminal Justice Committee. “These people are sex offenders, rapists, murderers,” he added. “And we’re going to pay for their air conditioning when I can’t go down the street and provide air conditioning to hard-working, taxpaying citizens?”

Whitmire’s political posturing does not take into consideration the options available to Texans who are not incarcerated. Prisoners can’t open a window or go outside to cool off. They can’t go to a convenience store for a cold drink, or take a shower when they want to, or go to a mall or library that has air conditioning. Some don’t even have a fan in their over-heated cells.

The complaints raised by prisoners have garnered support from an unlikely ally – the union representing Texas prison guards. In a November 21, 2013 editorial in The New York Times, Lance Lowry, president of the Huntsville, Texas-based local of the American Federation of State, County and Municipal Employees (AFSCME), condemned the scorching conditions inside TDCJ prisons – especially in light of the agency’s highly-publicized and much-criticized effort to provide climate-controlled housing for the hogs it raises.

“In August, right around the time when the Texas summer heat was at its brutal worst, the state’s prison system finalized a bid to replace its aging swine-production facilities with six new climate-controlled modular barns, at a cost of $750,000,” Lowry wrote.

“The pigs raised for inmate consumption were going to get relief from the heat, but the state’s inmates would continue to suffer. In the last six years, at least 14 inmates died from heat stroke or hyperthermia in overheated Texas prisons, where air conditioning is scarce and temperatures can reach 130 degrees.”

Why the interest by prison employees? They are adversely affected by the heat, too. In 2012, 92 TDCJ workers suffered heat-related illness or injuries. Another 55 heat-related injuries and illnesses were reported by guards in the first eight months of 2013. Between 2011 and 2013, TDCJ employees filed 162 heat-related workers’ compensation claims.

“The correctional officers, whose working conditions are the same as the inmates’ living conditions, have taken note,” Lowry stated. “Several inmates’ families have filed wrongful death lawsuits, and the officers’ union supports them. We also support those officers who plan to take legal action against the state because of intolerable heat in their workplace.”

Lowry noted that union officials had complained about dangerous temperatures in Texas prisons for over 15 years, to no avail. “I’ve seen some of my co-workers pass out from the heat,” he said.

“Texas needs to ensure humane conditions for the inmates who live in prisons and the officers who work there,” Lowry concluded. “After all, people shouldn’t be treated worse than the livestock.”

“It is outrageous that TDCJ would prioritize the safety of pigs for slaughter over the lives of human beings,” said former TCRP attorney Scott Medlock. “TDCJ has literally made the decision that protecting its bacon is more important than protecting human lives.”

Litigation as a Solution

In a prelude to what may occur in Texas, as noted above, a lawsuit filed by death row prisoners at the Louisiana State Penitentiary resulted in a December 2013 federal district court order requiring the state to “develop a plan to reduce and maintain the heat index ... at or below 88 degrees Fahrenheit.” The court found that high temperatures at the prison constituted cruel and unusual punishment in violation of the Eighth Amendment.

In May 2014, the district court approved the defendants’ heat remediation plan and appointed Paul J. Herbert as a Special Master to oversee ongoing compliance with the plan. The defendants have appealed the order to the Fifth Circuit. See: Ball v. LeBlanc, U.S.D.C. (M.D. La.), Case No. 3:13-cv-00368-BAJ-SCR.

Courts have also ruled on heat-related conditions in prisons and jails in Arizona, Wisconsin, Georgia, Delaware, New York and Illinois. [See, e.g.: PLN, Jan. 2006, p.38].

Such legal challenges are not always successful, though. “Florida death row prisoners filed a suit over excessive heat a few years ago and lost,” said PLN editor Paul Wright. “But as a practical matter, except for some former Confederate states in the South, like Florida and Texas, [that] deliberately do not air condition their prisons to make a sadistic point, the rest of the country has heated and air conditioned prisons for both the prisoners and staff.”

Ironically, Texas law requires county jails to maintain temperatures between 65 and 85 degrees, but the statute does not apply to state prisons.

“In fact, if one of these counties chose to act like TDCJ and not air condition its jails, it would be breaking the law,” said Ranjana Natarajan, a clinical professor at the University of Texas School of Law. “TDCJ must be held to the same standard.”

“If TDCJ officers locked a dog in a hot car, they would go to prison for animal cruelty,” added Scott Medlock. “Doing this to human beings, no matter what crime they were convicted of, is unconscionable.”

Although heat-related deaths among Texas prisoners have received recent attention by the news media, they have been a long-standing problem. In November 1998, in an article titled “Texas Prisoners Bake to Death,” PLN reported on three prisoners who died due to excessively high temperatures – one on death row and two in transport buses.

Ultimately, the pending lawsuits against the TDCJ over heat-related deaths and injuries may achieve the necessary reforms that Texas prison officials and lawmakers lack the human decency and political will do to themselves.

Sources: Fort Worth Star-Telegram; The New York Times; www.richmondlegalexaminer.com; www.courthousenews.com; www.foxnews.com; www.texastribune.org; “Deadly Heat in Texas Prisons,” University of Texas School of Law, Human Rights Clinic (April 2014); Houston Chronicle; Austin American-Statesman; Texas Civil Rights Project; CNN; www.sltrib.com; Associated Press; www.dallasnews.com; www.thonline.com; http://gritsforbreakfast.blogspot.com; Wall Street Journal; NPR; http://journaltimes.com; www.woia.com

 

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