31 Mar The need for independent oversight of the Texas Department of Criminal Justice
By Wallis Nader
The following testimony was submitted to the Texas House Corrections Committee for a hearing on House Bill 1421. The bill relates to the creation of the Office of Independent Oversight Ombudsman for the Texas Department of Criminal Justice.
“Mr. Chairman and members of the Committee:
I am honored for the opportunity to testify here today regarding the creation of an independent oversight ombudsman for the Texas Department of Criminal Justice (“TDCJ”). I, on behalf of the Texas Civil Rights Project (“TCRP”), thank you for holding this very important hearing and applaud the decision of this committee to consider H.B. 1421.
In a state that places significant value on open government, the creation of an independent oversight ombudsman is an obvious and necessary step in the direction of improving accountability in TDCJ’s operations and safeguarding against abuse and neglect in Texas prisons. In particular, effective oversight would do much to obviate the need for costly litigation aimed at reforming prison conditions that otherwise could be ameliorated through cooperation between the independent oversight ombudsman and TDCJ itself.
In the testimony that follows, I will overview some of the cases I have litigated on behalf of Texas prisoners as an attorney with TCRP, discuss in general terms the legal costs associated with prison conditions litigation, and explain how an effective oversight body could recognize and address some of these issues before they result in outcomes that currently necessitate judicial intervention.
Litigation Currently is the Primary Oversight Mechanism for Protecting the Rights of Texas Prisoners.
Regarding the role of litigation in holding prison administration accountable, leading prison litigation expert Margo Schlanger said it best:
Whereas in most other areas of governmental activity, other accountability mechanisms have pride of place, we have as a polity largely failed to implement any other effective regulatory system to govern our burgeoning incarcerative apparatus; at least in many states, litigation is just about the only reform tool available.
TCRP is a civil rights organization that uses legal advocacy to empower Texas communities and create policy change. As an attorney with TCRP, I use strategic legal advocacy as a tool to ensure the criminal justice system in Texas operates humanely and adheres to constitutional standards. Through my legal practice, I have had the opportunity to inspect TDCJ prison units, to study the Texas prison system as best one can from the outside, and to learn the applicable legal precedent governing prison conditions. Most importantly, I communicate regularly with TDCJ inmates and their families about life in the Texas prison system.
Imagine spending a Texas summer stuck in a concrete dormitory with numerous other bodies, no air conditioning, no windows to let in a breeze—in effect, a concrete convection oven in which fans merely circulate the hot air. TCRP represents six inmates at the Wallace Pack Unit in Navasota, Texas, who spend their summers in these conditions. The Pack Unit is a low-security geriatric facility where indoor temperatures during the summer months routinely exceed 100° F. On behalf of the men at the Pack Unit, TCRP has brought litigation under the Constitution and federal disability statutes seeking to enjoin TDCJ to maintain a heat index of 88° or lower inside the Pack Unit housing areas.
At least twenty-two inmates have died in Texas prisons due to excessive indoor temperatures since 1998. Referencing TDCJ’s failure to release the number of heat-related deaths previous to that period, Judge Keith Ellison of the Southern District of Texas recently ordered TDCJ to disclose records indicating the full number of heat-related deaths in Texas prisons since 1990. The need for transparency on this issue is clear, and without these lawsuits such facts would remain concealed from public scrutiny.
In addition to our heat litigation, TCRP represents two blind inmates at the W.J. Estelle Unit—a unit TDCJ has designated to house blind inmates—on their claims seeking reasonable accommodations under federal disability statutes so they can navigate prison safely. Operated by guards, the automatic cell doors at the Estelle Unit issue no warning before slamming shut. Our clients must therefore attempt to rush through the space to avoid getting their hands, fingers, and blind cane caught in what is, to them, effectively a metal jaw. That is but one example of the dangers blind inmates face daily because TDCJ fails to take simple steps to ensure their safety.
Prison Conditions Litigation Can be a Costly and Challenging Method of Holding TDCJ Accountable.
Though often an effective and necessary means of achieving prison reform and safeguarding prisoners’ rights, complex and protracted litigation can also result in significant costs. Indeed, a single civil rights action resulting in reforms to the Pennsylvania Prison System cost state taxpayers an estimated $3 million in 2006, while a prison-conditions lawsuit in Arizona cost the state around $10 million in legal fees in 2015. Moreover, a report by the California Office of the Inspector General (“COIG”) found that the California Department of Corrections and Rehabilitation spent a total of $139 million between 1997 and 2010 on costs associated with 12 class action lawsuits challenging abuses ranging from inadequate medical care to violations of the Americans with Disabilities Act.
In addition to the substantial costs associated with litigation itself, prisons often must undergo court-ordered monitoring such as was the case after Texas’s well-known Ruiz litigation. The COIG found payments amounts related to reformative prison litigation in California had increased exponentially over time due to the costs resulting both from ongoing litigation and court-mandated monitoring emanating from court orders in resolved cases.
As well as being expensive, litigation to reform prison conditions is uniquely challenging because it involves an environment intrinsically closed to the public—both physically and as a matter of access to clients—and is frustrated by the Prison Litigation Reform Act’s procedural barriers. This means litigation to achieve systemic reform in the prison context is often undertaken only once prison conditions have given rise to substantial constitutional, legal, or physical harm. Which is far too long to wait to address such violations, both for the prisoners experiencing these harms and the taxpayers who must foot the bill to address the problems.
Oversight Has the Potential to Serve as an Alternative to Litigation in Ensuring Transparency and Accountability in the Texas Prison System.
In considering this bill today, you are considering an alternative to the judiciary in holding the Texas prison system accountable, and one that has significant potential to reduce instances of litigation seeking to reform violative practices in TDCJ. In my opinion, many of the results advocates obtain through litigation are capable of being resolved through the work of an independent oversight ombudsman.
The nationwide scrutiny leveled upon mass incarceration as a costly and destructive practice holds particular resonance in Texas, where we boast a prison population of over 140,000. Even to the extent TDCJ’s upper management may be dedicated to lowering recidivism rates and maintaining prison conditions that meet constitutional standards, unit-level practices that violate prisoners’ rights may remain unaddressed in the large, populous TDCJ prison system. And Texas’s expansive geography alone may mean some TDCJ prison units situated in remote regions simply go overlooked. The creation of an effective independent oversight ombudsman tasked with, inter alia, investigating inmate complaints and inspecting TDCJ facilities has the potential to improve transparency such as will permit TDCJ’s leadership to monitor more effectively unit-level adherence to requisite standards.
This is not to say litigation doesn’t have its place. Many issues on which advocates seek reform through litigation, however, likely could be addressed more effectively and cost-efficiently through the creation of an independent oversight ombudsman. For example, blind prisoners have been submitting grievances regarding disability statute violations at the Estelle Unit for several years, at least. And discrimination against inmates with disabilities is a well-documented problem. TDCJ’s failure to accommodate blind prisoners whose limbs get caught in closing cell doors because the unit does not provide consistent, effective warning mechanisms could be identified by the independent ombudsman and resolved in coordination with TDCJ, with adherence to the requisite standards and regulations, presumably obviating the need for litigation to force compliance with those standards.
For the reasons set forth in this testimony, federal courts are not always the ideal avenue through which to hold state prison systems accountable to the Constitution and standards governing the humane and lawful treatment of prisoners. Where litigation remains the only tool available, however, advocates have little choice but to use that tool to achieve necessary reform.
Today, in considering H.B. 1421, you have an important choice to make: you can lead the way forward by creating an independent oversight ombudsman to improve the accountability and transparency of TDCJ—a government agency—or permit the oversight process to continue per the status quo by allowing courts to remain the only oversight tool for holding TDCJ accountable to the Texas public.
Wallis Nader is a staff attorney with the Texas Civil Rights Project.
To download the full testimony, click here
 See e.g. Open Government, www.texasattorneygeneral.gov, https://texasattorneygeneral.gov/og/open-government (last visited March 15, 2017) (“An open government is the cornerstone of a free society”); Kelley Shannon, Open Government is Part of Texas’ History of Straight Talk, The Dallas Morning News (March 9, 2016), http://www.dallasnews.com/opinion/commentary/2016/03/09/kelley-shannon-open-government-is-part-of-texas-history-of-straight-talk; see also The Federalist No. 51, at 288 (James Madison) (“In framing the government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government…”).
 See e.g. Texas Civil Rights Project & American Civil Liberties Union, A Solitary Failure: The Waste, Cost and Harm of Solitary Confinement in Texas, Texas Civil Rights Project (2015), https://www.texascivilrightsproject.org/en/wp-content/uploads/2016/04/tcrp2015_solitary.pdf; Texas Civil Rights Project, “A Thin Line” The Texas Prison Healthcare Crisis and the Secret Death Penalty (2011), https://www.texascivilrightsproject.org/en/wp-content/uploads/2016/04/tcrp_thinline_2011.pdf; Erica Gammill & Elia Inglis, A Texas-Sized Failure: Sexual Assault in Texas Prisons, Texas Association Against Sexual Assault (2016), http://taasa.org/wp-content/uploads/2016/11/BK_A-Texas-Sized-Failure-SA-in-TX-Prisons-Final.pdf; University of Texas School of Law Human Rights Clinic, Deadly Heat in U.S. (Texas) Prisons, University of Texas School of Law (2015), https://law.utexas.edu/wp-content/uploads/sites/11/2015/04/2014-HRC-USA-DeadlyHeat-USShadowReport.pdf.
 Margo Schlanger, The Political Economy of Prison and Jail Litigation, Prison Legal News (June 15, 2007), https://www.prisonlegalnews.org/news/2007/jun/15/the-political-economy-of-prison-and-jail-litigation/.
 See About Us, Texas Civil Rights Project, https://www.texascivilrightsproject.org/en/who-are-we/about-us/(last visited March 15, 2017).
Pack (P1) Correctional Institutions Division—Prison, Texas Department of Criminal Justice (September 15, 2016), https://www.tdcj.state.tx.us/unit_directory/p1.html.
Second Amended Class Action Complaint at 2, Cole v. Livingston, No. 4:14-CV-1698 (S. D. Tex. 2014), http://media.npr.org/assets/news/2016/09/Colelawsuit.pdf.
 Id. at 45.
 Gabrielle Banks, Judge’s order hits hard over heat-related inmate deaths, Houston Chronicle (February 14, 2017), http://www.houstonchronicle.com/news/houston-texas/houston/article/Judge-s-order-hits-state-hard-over-heat-related-10932997.php.
 Associated Press, Judge: Texas Must Give Number of Heat-Related Prison Deaths, Statesman, (December 29, 2017), http://www.statesman.com/news/judge-texas-must-give-number-heat-related-prison-deaths/OtHq2iHqQ2TV8pDTLkzjyK/ (“‘We are not talking about how many widgets were sold out of a given factory’ Ellison said during the hearing. ‘We are talking about human lives, and I would be very distressed if the answer is the TDCJ does not even keep count of how many people died of heat-related illness’”).
 Third Amended Complaint, Wilson v. TDCJ, No. 4:14-CV-1188 (S.D. Tex. 2014).
Sarah Vandenbraak Hart, Evaluating Institutional Prisoners’ Rights Litigation: Costs and Benefits and Federalism Considerations, 11:1 U. PA. J. Const. L. 73, 63 (December 2008), http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1143&context=jcl.
 Craig Harris, Judge Approves Arizona Inmate Health-Care Settlement, The Arizona Republic, (February 18, 2015), http://www.azcentral.com/story/news/local/arizona/2015/02/19/judge-approves-arizona-inmate-health-care-settlement/23657207/.
David R. Shaw, Special Review: California Department of Corrections and Rehabilitation’s Legal Costs Associated with 12 Significant Class Action Law Suits, Office of the Inspector General State of California 1 (November 2010), http://www.oig.ca.gov/media/reports/ARCHIVE/BOA/Reviews/CDCRs%20Legal%20Costs%20Associated%20With%2012%20Significant%20Class%20Action%20Lawsuits.pdf
 Ruiz v. Johnson, 154 F. Supp, 2d 975 (S.D. Tex. 2001).
 Shaw, supra. at 2.
 Michele Deitch, The Need for Independent Prison Oversight in a Post-PLRA World, 24 Fed. Sent’g Rep. 236 (April 2012), https://lbj.utexas.edu/sites/default/files/file/news/Deitch–The%20Need%20for%20Independent%20Prison%20Oversight%20in%20a%20Post-PLRA%20World–Federal%20Sentencing%20Reporter–April%202012%5B1%5D.pdf.
 Schlanger, supra.
 Data Applications Texas Prison Inmates, The Texas Tribune (January 2017), https://www.texastribune.org/library/data/texas-prisons/.
 Michael B. Mushlin, Opening Up a Closed World: What Constitutes Effective Prison Oversight?, 30 Pace L. Rev. 1383, 1391 (Fall 2010), http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1744&context=plr.
 Third Amended Complaint, Wilson v. TDCJ, No. 4:14-CV-1188 (S.D. Tex. 2014).
 See Jamelia Morgan, Caged In: Solitary Confinement’s Devastating Harm on Prisoners With Physical Disabilities, American Civil Liberties Union (2017), https://www.aclu.org/sites/default/files/field_document/010916-aclu-solitarydisabilityreport-single.pdf.