A federal statute from the Carter era favors negotiation, but that can take a long time.

by Alysia Santo, The Marshall Project

The Harris County jail in Houston is among the nation’s largest, and it’s also one of the most deadly. Within the last decade, scores of prisoners have died, often from a lack of prompt medical care or staff misconduct, according to several independent investigations.

One report, by the Department of Justice, targeted poor medical and mental health care as factors in a string of deaths. “[T]he number of deaths related to inadequate medical care ... is alarming,” said the department, which also found excessive force by guards and safety lapses in the violent and often overcrowded facility.

But it’s hard to fix a troubled jail.

That report was issued in 2009, and in the seven years since, prisoners have continued to die preventable deaths in the Harris County jail, despite the Justice Department’s efforts to negotiate improvements. Sometimes the obstacles are local, with politicized budget battles and the effects of the way police and courts deal with arrest and detainment. But an undeniable part of the problem is also the department’s chief weapon – a 36-year-old law with a cumbersome title: the Civil Rights of Institutionalized Persons Act, or CRIPA.

Enacted during the waning months of the Carter administration, it was designed to be a state-of-the-art tool to help the federal government protect people in state or local jails and prisons, as well as institutions designed for the elderly, the disabled and the mentally ill. It focuses on allowing state and local governments to fix problems voluntarily, through negotiations with the Justice Department, rather than with the blunt force of federal lawsuits or takeovers.

So the result, at the Harris County jail, which has a population of about 9,000, and at some other large facilities, has been lots of talk, less action and, in some notable cases, scant sustainable improvement.

While the Justice Department is well-known for routinely using its power to step in and force police agencies to change their ways, its power to fix prisons and jails is more limited under CRIPA. Department lawyers can sue and try to force change through court order, but each step of the process triggers additional periods of review that can prolong the initial effort by months and even years. CRIPA is the only civil rights statute that requires the Attorney General to personally sign off on a complaint, while department lawyers on other civil rights matters have more autonomy. In 1996, Congress further restricted the DOJ by making it easier for resistant prison and jail officials to get Justice Department cases dismissed. (Two years into a court order, a defendant can move for dismissal, unless the Justice Department can prove the constitutional violation has continued. This forces federal officials to defend older lawsuits instead of working on fresher enforcement efforts.)

In Washington, government lawyers have found that the tendency for prolonged negotiations can wear down an office that barely has enough staff to keep up.

Jonathan Smith, who was chief of the special litigation section of DOJ’s civil rights division from 2010 to 2015, said: “When I took over, we had something like 500 open matters and fewer than 50 lawyers.” Over his five years there, he said, a hiring freeze reduced his staff, at the same time there was a push to make police-department reform a priority.

With CRIPA, some matters can sometimes stretch on for decades. An investigation at Los Angeles County’s jail system began in 1996, and at the Baltimore City Detention Center in 2000. At both jails, reports of abuse and inhumane conditions continued. Justice officials eventually changed their approach in Los Angeles and Baltimore from one that relied on cooperation, to one that had an enforcement mechanism by taking both jails to court.

Smith said that during his tenure, the department’s strategy shifted to more reliance on court-sanctioned agreements, and less on voluntary resolutions, as in Harris County. However, even going to court doesn’t guarantee a jail or prison will change. “There’s not a great track record that litigation is a huge success,” said Smith. “Fixing a jail takes a long time. The jurisprudence is hostile.”

There are other places, similar to Harris County, where federal interventions have remained in the negotiation phase despite continuing problems. A report about federal jail oversight in Grant County, Kentucky, by the Kentucky Center for Investigative Reporting, recently found that “inmates have died needlessly or have been raped, abused and neglected.... Meanwhile, the Justice Department responds with rebukes but no show of force, no push for a consent decree or a lawsuit to compel compliance.” In Orange County, California, federal officials warned for years of “poor supervision,” repeatedly putting jail administrators on notice that security at the jail complex needed to be tightened, yet the matter was kept out of court. In January 2016, three prisoners, all charged with felonies, escaped but their absence wasn’t noticed for about 16 hours.

Still, there are success stories. The power of CRIPA was apparent in April 2016, when the Justice Department closed an investigation into Pennsylvania’s Department of Corrections after the state agreed to stop putting prisoners with serious mental illness into solitary confinement.

Many of the conditions uncovered in jails and prisons over the years have been caused, at least in part, by pressures that are outside of the Justice Department’s authority, such as overcrowding. In Harris County, a lawsuit filed last spring alleged that hundreds sit in the jail on minor charges, simply because they can’t raise bail. The jail is also seriously understaffed, pay is low and there’s been a high turnover rate, so staffers tend to be less experienced.

“In some places you go, the warden or the sheriff has been asking for extra money for medical care or other improvements for years, and isn’t getting it,” said Robert Driscoll, a former senior Justice Department official under President George W. Bush. “That becomes a political question.”

While it may be hard to assign blame to any one agency or person, it’s undeniable that scores have died in the Harris County jail as these negotiations have dragged on. According to a November 2015 investigation by the Houston Chronicle, 75 people have died since the Justice Department’s 2009 intervention, and 19 died from medical issues that were “either treatable or preventable, or in which delays in care, or staff misconduct, could have played a role in their deaths.”

For some, patience with Harris County’s slow progress is wearing thin. U.S. Rep. Sheila Jackson Lee, a Democrat from Houston, wrote to then-Attorney General Loretta Lynch twice last year, asking that the Justice Department return “to take immediate action and to conduct a thorough investigation” at the jail. In an emailed response to The Marshall Project, a department spokesman, David Jacobs, said that there remains an “open investigation into the Harris County Jail that focuses on their mental health care and use of force.... Jail officials have worked cooperatively to implement corrective action plans that the Civil Rights Division helped develop. The department remains actively engaged in the reform process.”

Ryan Sullivan, the public information officer for the Harris County Sheriff’s Office, said that over the past year-and-a-half the jail has overhauled many of its practices. The minimum age to work at the jail has been moved from 18 to 21 years old; training for staff has gone from a two-week online course to a six-week academy; and the jail has doubled its capacity for those in acute mental crisis, from 200 beds to 400. Additionally, just this past August, the jail finished installing $5 million in surveillance cameras.

“It’s a long ship to turn course,” said Sullivan, adding that in the past year, jail administrators have become more aggressive in making changes, which he said have gone above and beyond the recommendations made by the DOJ. “The wheels are turning, it’s just a question of how quickly it will have its final impact.”

The Harris County Attorney’s Office said the Justice Department is due back for another visit in a couple of months. 

This article was originally published by The Marshall Project (www.themarshallproject.org) on September 13, 2016; it is reprinted with permission, with minor edits.

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