HOUSTON — Visibly frustrated with the Texas prison system for violating his court order to place some inmates in air conditioning, U.S. District Judge Keith Ellison threatened Friday to lock up prison officials in the same stifling temperatures.
“It seems the most obvious sanction is pretty straight forward,” he said in an emergency hearing in his Houston courtroom. “We ought to have prison officials in prison at the same temperature.”
The hearing was the latest development in a five-year lawsuit over the heat in one of 75 Texas prison units that do not have air conditioning in inmate housing areas. In 2014, several inmates at the William Pack prison near College Station sued the Texas Department of Criminal Justice for keeping prisoners in uncooled housing where temperatures routinely surpassed 100 degrees.
The department has reported nearly two dozen prisoner heat-related deaths since 1998, and at least one other death was reported to be caused by heat last year, though the department has contested that finding and said a final autopsy is still pending. As of Aug. 28, TDCJ reported 56 heat-related illnesses in 2019 for prisoners and employees. Agency spokesman, Jeremy Desel, said that number is down significantly from last year, when there were 71 incidents.
Ellison agreed with the inmates in 2017 that the high temperatures were cruel and unusual punishment, and ordered that the prison system place the men in the unit in air-conditioned housing. He also ruled TDCJ had been deliberately indifferent to the potential harm the heat could cause for inmates.
The judge applauded the department after a settlement was reached in 2018 to air condition the Pack unit. But he has since returned to issuing scathing orders and comments on the department’s violations of his order to keep cool the nearly 900 inmates left in the class-action lawsuit, regardless of which prison facility they are currently in. On Friday, he said some of those inmates were in “grotesque conditions” and questioned if the agency had misguided priorities in a situation where “the stakes could not be higher.”
“I thought the last hearing and the last order would be sufficient to get people’s attention,” he said, referring to emergency action taken last month after reports of nearly 40 inmates housed with a long-broken air conditioner. “What can I do to get the state’s attention?”
Friday’s hearing was set Thursday after the inmates’ attorneys filed a lengthy motion to find prison officials in contempt and fine them, claiming the agency repeatedly kept inmates in the settlement in sweltering temperatures and then tried to cover up the violations.
“This is not a mere compliance issue, this is a life and death issue” the inmates’ lead attorney, Jeff Edwards, told the judge Friday. “Someone is going to die because of one of two things: utter incompetence that I haven’t seen in my practice of law — and I’ve seen a lot — or utter indifference.”
No one from TDCJ or the Texas Attorney General’s Office appeared at the quickly-set hearing in person, but Assistant Attorney General Leah O’Leary spoke at the hearing on the phone. She claimed the department was in the process of moving many of the inmates who were part of the lawsuit and no longer at the Pack Unit back to that prison, where air conditioning has since been installed and a temperature reporting system is in place. For the prisoners who are not at the Pack Unit — currently 81, according to the inmates’ lawyers — the department is planning to install thermometers at their current units to be able to record and ensure that the heat index, which also includes humidity, stays at or below 88 degrees as is required by the settlement order.
Before the judge issued any fines or other sanctions, like potentially jailing prison officials, O’Leary asked for more time to answer questions about temperatures and conditions in response to the motion filed the day before.
“We understand that civil sanctions are something you intend to impose here,” O’Leary said. “We hear your message, you have our attention.”
Ellison, who sat with a rigidly furrowed brow throughout the hearing and regularly rubbed his forehead in frustration, said he doubted he had TDCJ’s attention, but held off on any immediate punitive decisions. He questioned the effect of fines, as was requested by Edwards, since the money would come from taxpayers, not out of officials’ pockets. If he did decide to hold officials in contempt of court, the inmates’ lawyers said after the hearing Friday that they would likely be held at a federal detention center — which is air-conditioned.
The judge set another hearing for Tuesday afternoon for TDCJ to update him on the situation and report temperatures from each of the 12 units currently housing inmates in the lawsuit. He also ordered that the wardens of those units at least phone in and testify under oath subject to penalty of perjury about current heat conditions and compliance with the court order.
“If that’s not done, then I think I have no option to award sanctions forthwith,” he said.