The Justice Department has just released a scathing 96-page report accusing the Fulton County jail in Atlanta, GA of engaging in “cruel and unusual punishment” in the September 2022 death of a mentally disabled inmate, LeShawn Thompson, who was found lying face down dead in his cell, his body covered with lice and bedbugs.  The Department seized upon Thompson’s death as an egregious example of conditions in the Atlanta facility – including cells flooded with water and human waste, unchecked vermin, exposed wiring and sexual assaults and attacks – conditions that the DOJ described as “inhumane,” “illegal” and “atrocious.”  The Department has given the jail’s superintendent 50 days to remedy conditions in the facility, or risk being slapped with a DOJ lawsuit that could result in fines and criminal prosecution.

This is not the first time the Fulton County jail, which some have dubbed “America’s GITMO,” has been found lax in providing legally required safe and healthy conditions for its inmates.  But in accusing the prison of violating the 8th Amendment prohibition on cruel and unusual punishment, the DOJ has raised the stakes of the battle, invoking Constitutional safeguards that are rarely used to sanction unlawful prison management.

The DOJ report, compiled after an exhaustive 16-month long investigation, details not just the horrific circumstances surrounding Thompson’s tragic death but also a pattern of unsafe conditions inside the Fulton County jails, including more than 300 stabbings of inmates in the past year alone.  Former inmates who have spoken with the media – some of whom were charged but never convicted, but languished awaiting trial – have detailed how they feared for their ;lives in an overcrowded prison climate where just about anyone was subject to random violence and abuse – and often survived through sheer luck alone.

The effects of prison overcrowding on the health and safety of the incarcerated first became widely known, thanks to a seminal 2012 GAO report that followed the historic 2011 Brown vs. Plata decision issued by the US Supreme Court a year earlier.  The GAO report found that the Federal Bureau of Prisons was operating at almost 40 percent over recommended capacity nationwide and that federal prisons remained under-staffed at 90 percent, leaving fewer guards and support personnel available to keep order and minister to prisoner needs.   The report found that 94 percent of high security inmates were double bunked, and 82 percent of low security inmates were triple bunked or housed in space not originally designed for inmate housing.  Cramped quarters and a lack of privacy was leading to a heightened level of tension in correctional facilities, and an increase in the incidence of violence against staff and inmates.  In addition,  mental health, drug and alcohol or anger issues were not being addressed adequately, because of excess caseloads, and inmates who wanted and needed medicine or counseling weren’t getting it, leading to a rise in anti-social and violent behavior.

“If you start cramming more and more people into a confined space, you’re going to create more tensions and problems,” David Maurer the GAO’s Director of Homeland Security and Justice told The Huffington Post.  “It creates the possibility that someone’s going to snap and have a violent incident.”

Still, holding states and their prison administrators formally and legally accountable in a constitutional sense for prison overcrowding was virtually unheard of until the Supreme Court intervened in 2011.  Two years earlier, prison rights advocates in California had convinced their state supreme court to take up the issue, and a three-judge panel ruled in their favor, ordering Governor Jerry Brown to reduce the state’s heavily overcrowded prisons to a more manageable 137% of capacity.  Brown appealed the ruling to the US Supreme Court, arguing that the 8th amendment prohibition on cruel and unusual punishment applied only to the sentencing of criminals – not to the conditions of their confinement.  For confinement to be considered an issue, there needed to be a pattern of gross negligence and deliberate indifference to the health and welfare of prisoners, Brown’s lawyers argued.  Overcrowding from a rising conviction and incarceration rate, combined with budgetary pressures that reduced available prison space, simply didn’t meet the 8th amendment standard, they insisted. But the High Court, by a slim 5-4 majority, led by liberal justice Anthony Kennedy, disagreed.  It was an historic decision.

Naturally, prisoner rights advocates were jubilant, while conservatives like Justice Antonin Scalia and Samuel Alito were beside themselves with rage.  Scalia not only issued a fiery dissent to the majority decision but as a measure of his contempt decided to read his opinion aloud from the bench.  Scalia, with characteristic hyperbole,  called Plata vs. Brown  the “perhaps the most radical injunction issued by a court in our nation’s history.” It could have been a national turning point in the debate but even rights advocates cautioned that it was likely to be a rare precedent.

“California is an extreme case by any measure,” according to David C. Fathi, director of the American Civil Liberties Union’s National Prison Project, which submitted a brief urging the justices to uphold the lower court’s order. “This case involves ongoing, undisputed and lethal constitutional violations. We’re not going to see a lot of copycat litigation.”

OIn fact, Gov. Brown found a clever way out of confronting a possible PR disaster that might have resulted had released prisoners re-offended in large numbers – one of the concerns voiced by Alito.  Most of the 46,000 prisoners mandated for release were simply transferred to local jails, easing the burden at the federal and state level. The High Court originally balked at Brown’s solution, but eventually acceded, and the matter was settled.

Partly for that reason, many prisoner advocates have been skeptical that the Plata decision would be applied broadly – and in fact, to date, it hasn’t been.  The two cases that had first prompted the court challenge centered mostly on an egregious denial of access to prompt medical care;  the issue of prisoner health conditions or to threats to prisoner safety had not figured prominently.  Moreover, there is a long-standing view in criminal justice circles that conditions of incarceration are meant to be harsh and harrowing – as a punishment for wrongdoing, just as Brown’s lawyers had argued in the Plata case.  According to this view, the threshold to “cruel and unusual punishment” based on confinement alone should remain high.  A pattern of deliberate malfeasance – gross neglect of unsafe conditions, or excessive internal punishment within the jail system – by prison authorities must be present to trigger 8th amendment concerns, according to this consensus.   A prison environment in which some level of inmate violence occurs is often considered part and parcel of the prison experience.  Persistent acts of guard retribution, however severe, are not enough.

The real issue now is whether the DOJ’s devastating Fulton County report – which documents conditions far worse than those found by the High Court in Plata vs. Brown – will push the needle further in the direction of prisoner rights when it comes to egregious conditions of overcrowding.   Fulton County jail – ranked as one of the nation’s most violent – is just one of several of the nation’s prisons that has recently come under official scrutiny.  In November 2023, the DOJ also began looking into prison conditions in two South Carolina facilities where reports of unhealthy living conditions and egregious inmate and guard violence have circulated widely.  Prisons in Alabama, which have the 4th highest incarceration rate in the country, have also come under scrutiny.  Many more such cases would likely be brought under the current DOJ, which to its credit, has made prison overcrowding – and its Constitutional implications – an urgent priority.

  But will the incoming Trump administration – assuming it’s helmed by a conservative law–and-order Attorney General like Florida’s Pam Bondi – do the same?  That’s not likely given Trump’s stated priority on locking up and deporting illegal immigrants, many of them almost certain to be detained under harsh conditions which may well rival those currently facing native-born Americans in the overcrowded US prison and jail system.  Bondi herself has some experience with the issue.  Miami-Dade County jails rank fairly low on the prison violence scale, according to official data, but a November 2023 audit conducted by KPMG, citing rising incarceration rates and deteriorating prison infrastructure, found that Florida’s prison system was “unsustainable.”  The report called for a thorough renovation of the state’s prison facilities and the building of at least one new prison within the next 20 years.  Yet, despite pleas from prison rights advocates, KPMG was not allowed to review whether prisoner release programs aimed at non-violent offenders might also figure into the future state management program.

Law-and-order conservatives have largely created a dilemma of their own making.  The draconian policies of the 1980s and 1990s – including mandatory three-strikes sentencing and the mass incarceration of relatively low-level drug offenders – have filled the nation’s prisons and jails to the brim, and overflowing.  But fiscal conservatism has also dampened public enthusiasm for new large-scale state funding to house an expanding convict population.  The natural solution?  Let more and more prisoners out early to reduce overcrowding and make prison management more manageable – and indeed, Constitutional.

Trumpian conservatives love to preach these days about liberal attacks on the Constitution.  But as the latest DOJ report reveals, there’s nothing constitutional about prison overcrowding and the kind of rampant abuse that it engenders.  Claims from the likes of Scalia (now deceased) and Alito, still the Court’s leading right-winger, that early release endangers the general public need to be debunked with hard data, which is out there.  Rather than avoid a sticky and contentious issue, progressive advocates can and should step up boldly now offer creative solutions that can expose the systemic racism at work in the US prison system, at the same time protecting prisoners and public alike from the potential for further abuse.

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