Weighing the Odds of a Federal Takeover of State Prisons

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Ben Botkin / Oklahoma Watch

More than a century old, the Oklahoma State Penitentiary in McAlester is a poster child for Oklahoma’s deteriorating prison system. Even the sign at its entry gate, with its missing letters, speaks to the infrastructure degradation and other problems inside. Warden Terry Royal says the current needs are the result of neglect.

Padlocks are welded onto cell doors at the Oklahoma State Penitentiary for when the electronic locks fail.

The state’s three prisons for women are at 129 percent of capacity, meaning inmates must sleep in temporary bunk beds in day rooms.

Shelves with thousands of inmate files jam what once was a basketball court at the Kate Barnard Correctional Center – the backup for a three-decade-old software program used for recordkeeping.

With overcrowded and deteriorating prisons and shortages of corrections officers, Oklahoma’s prison system might appear to be primed for a federal takeover. As if to make the point, the state Department of Corrections last month proposed a budget increase of $1 billion in appropriations for fiscal 2019, similar to last year’s request.

“We are not a listing ship,” Corrections Director Joe Allbaugh said recently, seated in his Oklahoma City office. “We are a sinking ship.”

But after years of warnings that the federal government could take the helm of corrections and right the ship, it has yet to happen.

Year after year, the inmate population continues to rise, facilities decline, the department turns to private prisons, costs go up, and efforts to lower incarceration rates advance in fits and starts. Allbaugh and other leaders also warned that a riot could erupt, evoking memories of the notorious three-day riot in 1973 that burned much of the penitentiary in McAlester and left three inmates dead.

There are some signs that legal action could eventually lead to dramatic changes. But instances of federal courts or agencies taking control of states’ entire prison systems are unusual and scattered.

Still, across the country a number of state prisons or county jails answer to federal overseers. And in Oklahoma, it would be a case of repeating history.

How the Feds Intervene

The federal government doesn’t decide on its own to assume control of a state corrections system or send in its own hand-picked people to operate a system or prison.

Federal intervention often begins with a lawsuit filed by one or more inmates who allege a pattern of problems or injustices in a facility or a system. The potential for impact widens if the lawsuit is granted class-action status by a U.S. District Court judge, meaning the alleged harm to a handful of inmates is considered representative of a larger inmate population.

The lawsuit may result in a consent decree, with the state agreeing to cede authority over all or part of its prisons and submit to oversight and supervision by the U.S. Justice Department or a judge.

The Justice Department also has the authority to investigate jails and prisons and file lawsuits on its own, or join existing lawsuits, in order to force changes. Corrections agencies sometimes reach agreements with the Justice Department on improving conditions without a drawn-out lawsuit.

Ben Botkin / Oklahoma Watch

Oklahoma Department of Corrections Director Joe Allbaugh says his agency is increasingly at risk of being forced into a consent decree that might allow federal officials to dictate costly improvements. But “I would be remiss in my responsibility if I did not openly talk about the challenges that face this department today and in the months and years to come,” Allbaugh says.

A number of prison or jail systems have faced federal action:

>Alabama’s corrections system entered into a consent decree in 2015 to improve conditions for inmates at a women’s prison.

>In 2009, Oklahoma County entered into an agreement with the feds to improve its jail in areas such as mental health services and housing.

>The Justice Department in 2015 reached a schedule with the Territory of Guam for implementing prison reforms. That came after decades of working under a 1991 settlement agreement.

> Ohio entered into a consent decree in 2008 to reform conditions at juvenile facilities that included unlawful seclusion of offenders with mental health needs. The agreement ended in 2015 after a monitoring team reported to the court on improvements.

In Oklahoma, the question is whether life and treatment of inmates in prisons have reached a point where constitutional rights are being violated, which could lead to federal oversight. President Donald Trump’s administration, however, might be less inclined than former President Barack Obama’s administration to intervene.

Allbaugh says that absent any changes in the agency’s overall direction, the state could find itself under a federal consent decree.

“That is where the Justice Department comes in and tells you how you’re going to run your prison system, and it’s very costly,” he said.

Images from the Penitentiary

Lawsuits Simmer

It’s common for inmates to sue corrections departments in state or federal court, representing themselves or relying on an attorney.

Earlier this week, a federal appeals court revived inmate Joseph Womble’s lawsuit against the Corrections Department alleging that conditions in the state’s prisons violated his constitutional rights. He said temperatures in his cell at the Mack Alford Correctional Center in Stringtown climbed above 90 degrees for half of June 2016 and he became dehydrated.

Another lawsuit brought in August by inmates and an advocacy group allege that state officials and private-prison companies are perpetuating high rates of incarceration through the state’s guarantee that it will keep private prisons at least 98 percent full. The inmates have asked the Justice Department to intervene.

A Long-Range Forecast

The Crime and Justice Institute, which the Oklahoma Corrections Department uses for planning purposes, projects that the state’s total inmate population will grow by 25 percent over the next decade. Currently there are 27,026 inmates. Oklahoma already has the nation’s highest rate of female incarceration, with 151 out of every 100,000 women in prison, according to the U.S. Bureau of Justice Statistics. Growth in women imprisonment is expected to continue.

That trend underscores part of Corrections Director Joe Allbaugh’s $1.5 billion budget request for next fiscal year; it includes $813 million for two new medium-security prisons, one for men and another for women.

Also on his wish list are competitive pay for medical staff; 5-percent raises for correctional officers; myriad repairs for prison infrastructure and better inmate access to mental health services.

Facility needs run the gamut, and much of the work has been delayed for years. At the Oklahoma State Penitentiary, for example, the department is replacing a 40-year-old leaky roof that has a lifespan of 20 years. A boiler for heating needs to be replaced, as does a water line.

The budget request includes $3 million for re-entry programs aimed at helping inmates prepare for life after prison, including substance abuse treatment.

Melissa Baldwin, director of justice and policy with the Oklahoma Mental Health Association, said the proposal shows the department is “wanting to make an investment in the treatment of people.” But “we’ve got a long way to go.”

As of Dec. 11, another 1,149 inmates were in county jails awaiting transfer to a state prison. That same day, another 1,845 inmates were in assigned to temporary beds in 14 facilities. The system also must deal with the aging inmate population and their higher costs.

“We’ve tried to run this agency as a state on the cheap side of the tracks and now we’re paying a price for it,” Allbaugh said.

One inmate, Stephen Craig Burnett, has sued the Corrections Department several times, most recently in 2014 when he was in the James Crabtree Correctional Center in Helena. Serving a life sentence for murdering his wife, Burnett alleges that prisons are overcrowded and understaffed and pose a danger to inmates and officers. The case was dismissed but remains on appeal.

Asked about its efforts in corrections, American Civil Liberties Union of Oklahoma said it is considering filing a lawsuit related to prisons as early as next spring, although nothing is firm. Brady Henderson, legal director, said the lawsuit potentially could focus on medical care for inmates and physical conditions on death row at the penitentiary.

Henderson noted there are different approaches, such as filing several smaller, narrowly framed lawsuits or pursuing a larger case that covers the entire system.

“I think the question is, at some point are we going to get to the big, kitchen sink case?” he said, adding winning that case would require showing systemic problems.

Typically, corrections officials, county sheriffs and others involved with jails and prisons fear loss of control and ballooning costs for improvements once the federal courts step in.

Historic Case

Tulsa attorney Louis Bullock spent much of his career on a landmark Oklahoma case, Battle v. Anderson, involving federal intervention in the state’s prisons. Bullock became the lead counsel for plaintiffs in 1976, working on the case until 2000.

The Battle case started with about six inmates in the penitentiary and centered on medical care, due process and use of force in 1972 and before. In 1977, when lawyers had a better understanding of the evidence, the case had grown to include confinement conditions and overcrowding, Bullock said. The litigation also expanded to cover all the state’s prisons and inmates.

The lawsuit was filed one year before the 1973 riot, which put the system under further scrutiny.

Even so, the “minimally adequate system” that resulted from the lawsuit was “unfortunately a high-water mark” for Oklahoma before conditions worsened, Bullock said.

Bullock said there is “little question” that the state is following a path that will lead to a lawsuit and federal oversight of the prison system.

“They do not have the capacity to hold the number of people they’re locking up,” he said, adding, “Even from my distance, I can see the deterioration that is taking place, and they have a very real risk that the federal courts will have to take over the prison system again.”

Bullock added that money won’t fix everything – changes to the criminal justice system also are needed. He’s concerned that the Corrections Department is seeking money to build new prisons rather than focusing on reducing incarceration.

“The one lesson that Oklahoma should know by now is that they have never been successful –  in fact, no one’s ever been successful – in building out of this crisis,” Bullock said. He invoked a line from the movie “Field of Dreams”: “Prisons are like the proverbial ballfields in Iowa. If you build it, they will come.”

As to whether federal oversight will happen, corrections director Allbaugh said, “We’ll see. I hate the thought of that because I believe the Department of Corrections is one of the major core functions of government … There’s always going to be bad people.”

But “if the state doesn’t demonstrate that they can handle their prison population in a safe and humane way, what are inmates supposed to do? They’re going to sue.”

Reach reporter Ben Botkin at bbotkin@oklahomawatch.org or (702) 418-6089.