Could the failure to move forward on USP Letcher indicate an end of the Appalachian prison boom?

by Panagioti Tsolkas

“I refuse to have our community’s future built on the backs of other people.” That’s what Letcher County, Kentucky resident Elizabeth Sanders said to an NBC reporter last year who was inquiring about local opinions on a proposed federal prison in the area where she lives. 

At the time, opposition efforts to stop the USP Letcher prison seemed bleak. But as of June 2019, in a rare turn of events resulting from persistent opposition and a lawsuit, the proposed facility is officially off the table. Gaining a deeper understanding of how and why the prison was stopped could help criminal justice reform advocates undermine a half-century of mass incarceration in the United States.

On March 22, 2018, NBC published its article on opposition to the proposed 1,200-bed facility. While plans to construct the most expensive federal prison in the nation’s history were already five years along, the write-up was the first major news coverage about USP Letcher. The article’s title, “Does America need another prison? It may be this rural county’s only chance at survival,” reeked of the same political influence that was present in the story.

By the end of that month, lawmakers in East Kentucky had announced the passage of a “record of decision,” the supposed final step in a tumultuous environmental review process for the proposed maximum-security facility. 

There are already three federal prisons in that region of Kentucky, all pushed for by U.S. Representative Harold D. “Hal” Rogers, who represents that district. With around $510 million in funding approved by Congress and the major hurdle of federal environmental oversight completed, there seemed little that could stand in the way of ground-breaking on the prison project.

Rep. Hal Rogers, “Prince of Pork”

Rep. Rogers was consistently the number one booster for USP Letcher, with his office pumping out press releases at every opportunity, claiming the project was a done deal. As the head of the House Committee on Appropriations, he was essentially the holder of the purse strings for billions in public money. Rogers is currently serving in his 20th term as representative for Kentucky’s Fifth District. He served on the Appropriations Committee for 33 years, leaving a legacy of pork-barrel spending before hitting the Committee term limit in 2017. 

Rogers had spent over 10 years specifically securing the $510 million allocated to the construction of USP Letcher, making it the single most expensive federal prison in history. He didn’t intend on letting that project go without a fight. Although local opposition to the facility surfaced in Whitesburg, Kentucky during the 2013 public scoping process – the initial part of an environmental review required under federal law – it wasn’t a fight that many who knew Rep. Rogers thought he was likely to lose.

With help from politicians like Rogers, the era of mass incarceration ushered in a prison construction boom that has been a defining characteristic of the American landscape for almost half a century, peaking in the ‘90s when a new prison was built almost every two weeks, on average. Many of the facilities were sited in rural communities, like those in the Appalachian mountains, socially isolated and often desperate for economic opportunities outside of resource extraction industries such as coal mining.

Rep. Rogers has a national reputation for pillaging federal funds to bolster his friends and supporters with massive contracts for projects of questionable value. In May 2006, The New York Times reported that Jay M. Meier, a senior securities analyst at MJSK Equity Research, which had followed Rogers’ support for security industry interests, referred to one of his schemes as “the sickest example of what is wrong with our homeland security agenda that [he] can find.”

Meier was referring to a debacle in Corbin, Kentucky that resulted in tens of millions of dollars being wasted on a failing manufacturing plant intended to produce a near-useless security identification card. That level of malfeasance would have been dwarfed by the proposed USP Letcher project in the midst of a federal prison population that has been steadily dropping for years – so much so that the federal Bureau of Prisons (BOP) has repeatedly said it no longer had a need for a facility in Letcher County. That, of course, didn’t stop Rogers from demanding that the project move forward, to create an estimated 300 jobs for his constituents.

Jonathan Haggerty with the conservative R Street Institute called the prison project “an unambiguous waste of resources” and said it “stinks of pork.” He added, “It is a waste of time and totally counter to the spirit of reform that the [Trump] administration has spearheaded.”

The Resistance Grows

It took a federal lawsuit by prisoners and activists to finally shut the book on the proposed USP Letcher. While the lawsuit was originally filed by attorney Emily Posner in November 2018, with 21 prisoner plaintiffs and the Abolitionist Law Center as an organizational plaintiff, the foundation for the suit was laid during four years of community organizing to develop the administrative record surrounding the case. [See: PLN, Jan. 2019, p.18].

In March 2015, the Human Rights Defense Center, which publishes Prison Legal News, coordinated the first national declaration of opposition to the Letcher County prison project’s Environmental Impact Statement (EIS), with over 20 organizations signing on to comments regarding the BOP’s draft EIS. That action was part of HRDC’s Prison Ecology Project. [See: PLN, June 2016, p.1]. The impact statement was particularly important as the prison was going to be built on a former coal mining site.

The following year, the Letcher County Governance Project, co-founded by county resident Elizabeth Sanders, was formed to oppose the prison, launching a social media campaign by interrupting Rep. Rogers’ speech at a regional economic summit. The group called for crowdsourcing local opinions on how the government could better spend federal funds in Appalachia, using the hashtag #Our444Million (the initial projected cost of the prison before it exceeded the half-billion mark).

Over the next two years, alliances between local landowners and residents developed alongside environmental non-profits and grassroots anti-prison activists. They generated thousands of letters to the BOP opposing the prison, and even conducted a blockade of the BOP’s parking garage at its main office in Washington, D.C.

Unprecedented NEPA Litigation

In April 2019, the federal lawsuit initially filed by Posner, Barroca v. Bureau of Prisons, was amended and refiled with the help of a public interest environmental law firm, Green Justice, and a newly formed group in East Kentucky known as Friends of Lilley Cornett Woods and the North Fork Watershed.

Following the refiling of the suit, the BOP withdrew its intent to build the federal prison in Letcher County. On June 17, 2019, federal officials published a formal “withdrawal of record of decision” in the Federal Register, canceling the prison construction project.

The litigation had focused on the concerns of prisoners and activists about the proposed facility being located on a former mountaintop removal coal mine and near an active mine and coal sludge pond, and the BOP’s failure to ensure prisoners were able to participate in the EIS process. It raised claims under the National Environmental Policy Act (NEPA).

The alliance of individuals and organizations in the lawsuit had a few precedents in fights over state prison-building projects, but successful opposition at the federal level represented an unprecedented victory. 

“The lawsuit highlighted that both the process and actual building of the USP Letcher facility conflicted with various federal laws. The Bureau of Prisons did the right thing in withdrawing its construction plans,” said Marianne Cufone, the lead attorney with Green Justice.

The Campaign to Fight Toxic Prisons supported the suit with a grassroots organizing campaign, which garnered support across the country.

“Spending hundreds of millions of dollars to build a new prison makes no sense with the substantial decreases in the federal prison population over the last several years,” noted Dustin McDaniel, executive director of the Abolitionist Law Center. “We hope the BOP’s action ends this prison project permanently, and that it also signifies a turning point nationally, away from investing money in prison construction, and toward increased investment in communities devastated by mass incarceration.”

One of the plaintiffs in the lawsuit, prisoner Jason Palacios, agreed with McDaniel in a simple statement sent from his prison cell: “Spend money to rehabilitate – not incarcerate.”

Attorney Emily Posner added, “Some proponents of the new prison speculate that this withdrawal is temporary, but that seems misguided, given the many problems with the project. In these times of climate uncertainty, this is not the type of federal investment needed, funds should be used to create meaningful and sustainable economic opportunities for the people of southeastern Kentucky.”

Elvenia Blair, a Letcher County resident and spokesperson for Friends of Lilley Cornett Woods, declared, “This prison would have threatened the health and well-being of prisoners, correctional workers and our already fragile environment, including habitat for several endangered bat species. I am so relieved this project is not moving forward.”

Blair noted that Friends of Lilley Cornett Woods exists for the purpose of conserving and strengthening the environmental integrity of Letcher County, and the human and natural environments of the broader Appalachian region, by fighting against the exploitation of natural resources and marginalized communities, and advocating for an economy based on a just transition away from resource extraction (e.g., coal mining) and prison construction. She also clarified that the organization was not affiliated with Eastern Kentucky University or its Lilley Cornett Woods Appalachian Ecological Research Station.

Is it Really Over?

To date, the Barroca lawsuit has not been officially dismissed or resolved. Although the BOP has withdrawn its decision to construct the prison, it’s unclear if the project could be revived with the issuance of a new “supplemental EIS,” or whether it would need to start fresh.

This means opponents are staying vigilant, and continuing to deepen ties with organizing on the ground in Letcher County and the Appalachian region generally. 

As Elizabeth Sanders with the Letcher County Governance Project was quoted in the NBC article last year, “it’s hard, because it’s not a win if this doesn’t get built.” A win would be a successful conclusion to the ongoing struggle by activists to transition away from predatory economic opportunities, including coal mining and prison construction, in one of the most impoverished and exploited areas in the nation. 

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Sources: Lexington Herald-Leader, NBC, Boston Review, The New York Times, fighttoxicprisons.org, publicnewsservice.org, wymt.com

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