Cruel and Unusual Still

On March 1, U.S. District Judge William Wayne Justice issued another judgment in the continuing litigation over conditions in the Texas prison system. The state (Texas Criminal Justice System — Institutional Division, defendant in the ongoing lawsuit) argued that improvements in system conditions as well as new federal legislation (the Prison Litigation Reform Act, 1996) mean that the state is now in compliance with federal law, and therefore the federal courts should no longer have jurisdiction over Texas prisons. After three weeks and nearly fifty hours of testimony, Judge Justice found against the state.

The following is a brief but representative selection from Judge Justice’s March 1 Memorandum Opinion (David Ruiz, et al., Plaintiffs, v. Gary Johnson, Director TDCJ-ID, et al., Defendants), omitting primarily the lengthy case history and the technical discussion of the P.L.R.A. (For the reader’s convenience, footnotes and legal citations are largely omitted. The headings are taken from those within the opinion.) – M.K.

From the Introduction

There can be no doubt that since David Ruiz and the other named plaintiffs began this civil action in 1972 with allegations of unconstitutional practices and conditions in the Texas Department of Corrections’ (TDC) prisons, the parties have effected remarkable changes within the prison system. In an epic trial in 1978 and 1979, the plaintiffs’ evidence offered a rare glimpse behind the walls that so conveniently shielded free world society from the barbarous living conditions of many of the approximately 25,000 individuals then incarcerated in the TDC prison system. Faced with the staggering magnitude of the constitutional violations found in Texas prisons in 1980, this court regretfully acknowledged that “it is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls – the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices” (Ruiz v. Estelle, 1980).

Today, plaintiffs and defendants alike look back with horror at the way the system used to be. Plaintiffs and defendants alike may also look back with pride at how much the system has changed.…

Prisons, of course, are designed to punish. Institutions of incarceration are an unfortunately necessary infrastructure of our society. And, this court has sentenced more offenders to such institutions than it cares to remember. However, an offender is sentenced to a term of imprisonment; an offender should not, and must not, be sentenced to a term of enslavement by gangs, rape and abuse by predatory inmates, or excessive force by prison employees.…

Couched in two motions to terminate its jurisdiction in this civil action, this court has before it, once again, questions of the Texas prison system’s constitutionality. After determining that the termination provisions of the Prison Litigation Reform Act violate the separation of powers doctrine and due process clause of the Constitution of the United States, the court has alternatively found the Texas prison system continues to violate inmates’ constitutional rights.

It is determined that TDCJ’s medical and psychiatric care systems, while at times plagued by negligent and inadequate treatment of members of the plaintiff class, are not so deliberately indifferent to inmates’ physical and mental health needs as to be unconstitutional. The extreme deprivations and repressive conditions of confinement of Texas’ administrative segregation units, however, have been found to violate the Constitution of the United States’ prohibition against cruel and unusual punishment, both as to the plaintiff class generally and to the subclass of mentally ill inmates housed in such confinement. Furthermore, members of the plaintiff class still live under conditions allowing a substantial risk of physical and sexual abuse from other inmates, as well as malicious and sadistic use of force by correctional officers. Despite its institutional awareness of these conditions, TDCJ has failed to take reasonable measures to protect vulnerable inmates from other, predatory prisoners and overzealous, physically aggressive state employees.

From the Overview of the Evidence

Plaintiffs’ evidence may be organized into several categories specifying allegations of unconstitutional practices and conditions in the Texas prison system. First, plaintiffs allege that TDCJ-ID is deliberately indifferent to prisoners’ medical and psychiatric care needs. A number of medical and psychiatric experts testified on behalf of the plaintiff class. Plaintiffs’ experts Drs. Dennis Jurczak, Roberta Stellman, Jeffrey Metzner, Steven Jenison, and John Robertson all alleged that their independent review of prison medical or psychiatric services revealed serious insufficiencies in TDCJ-ID’s treatment of ill prisoners. A number of inmate witnesses testified to their own experiences with what they believe is a deficient system of medical and psychiatric care.…

Through the testimony of penological psychology expert Craig Haney, as well as experts Breed and Riveland, and a number of psychiatrists, plaintiffs further allege that prisoners in administrative segregation, especially those with psychiatric illnesses, are suffering cruel and unusual punishment by being deprived of a minimal measure of civilized life’s necessities. Plaintiffs further accuse TDCJ-ID of practicing a widespread pattern of warehousing mentally ill prisoners in administrative segregation.…

Through inmate and expert witnesses, plaintiffs also accuse TDCJ-ID of failing to ensure the reasonable safety of prisoners incarcerated in TDCJ. Plaintiffs’ experts Allen Breed and Chase

Riveland, both of whom have extensive experience in prison management, testified to systemic deficiencies in the system’s attention to the needs of sexually and physically victimized inmates. Many, if not most, of the inmates who testified for the plaintiffs presented disturbing personal stories of their own victimization at the hands of other inmates, as well as their frustration with a system that, they allege, has failed to protect them despite repeated pleas for help.…

Plaintiffs finally allege that TDCJ-ID subjects prisoners to malicious and sadistic force by prison guards. Expert witnesses Breed and Riveland made condemnatory conclusions as to the prevalence of unnecessary and excessive force and intimidation of inmates by correction officers in their day-to-day interaction with them. Inmate witnesses repeatedly described their own purported experiences with, and resulting injuries inflicted by, abusive guards.…

On the Quality of Medical Care

From the cardiac cases, Dr. Robertson concluded that “viewed collectively, [they] identify a consistent problem in multiple medical encounters of failure to adequately evaluate significant and serious disease processes. This occurred in terms of level of medical practitioner, timeliness, and/or appropriateness of subsequent treatment and referral.” … In the “Summary Findings” of his report, Dr. Robertson concluded:

“This review of deaths presents a troubling pattern of systemic problems in the health care delivery to inmates in the Texas Department of Criminal Justice. Of a total of fifty-nine charts reviewed, twenty (34%) were found to have received poor to very poor medical care. To assure that this finding was balanced a very conservative approach was taken, namely, only when a significant clinical outcome could be demonstrated was a score lower than 3 [(below ‘satisfactory’)] given. Of particular concern was the finding that sixteen of the deaths (27%) could be deemed as ‘preventable.…'”

On Staff Indifference

Dr. Robertson’s analysis revealed numerous accounts of staff indifference. Inmate Collins Gentry showed obvious symptoms of an acute heart-attack, but was sent back to his cell. Inmate Ophelia Rangel spent five days not eating and suffering from psychotic episodes and severe diarrhea, but she was not treated. She died. Michael Bias, who fell into a coma after a suicide attempt, was left to lie in one position, so that he developed infected pressure sores that led to massive loss of skin, breakdown of muscle, and kidney failure. Presenting what Dr. Robertson considered to be obvious symptoms of metastatic prostate cancer, inmate Robert Lee was treated by a physician assistant as malingering. The inmate finally became paralyzed and was sent to emergency radiation therapy to regain control of his legs and bladder.

Dr. Jenison reviewed the death chart of one 24-year-old woman who entered prison shortly after a free world hospitalization for meningitis. Medical personnel at the prison also were aware of her having HIV. She died after two months in prison. No therapy for the meningitis was ever initiated. Another female inmate, Layovonda Alexander, was sent back to her cell after reporting significant weight loss and coughing up blood – symptoms of her HIV infection. Rather than immediately treat her, a nurse and midlevel [staff member] documented that she was “refusing to work” and was made to return to work. Layovonda Alexander died within five months.

On Treatment

Other times the “communication” problems seem to be between medical staff and security staff. Inmate Webb was housed on the third floor despite a medical housing restriction to the first floor because of his seizures. Tonya Fountain, who was being used to train tracking dogs at the time and wearing a protective suit, broke her leg after being told to jump out of a tree into the dog pack by a prison “boss.” She had surgery to insert a pin into her leg. Not only did she have to endure the pain and indignity of pulling herself on and off buses on her buttocks (because she was not allowed crutches on the bus), but also her mobility restrictions were not honored at the unit, and she was required to walk to chow hall and pill lines. On one occasion, her crutches slipped and she re-injured her leg so badly that she had to have another reconstructive surgery.

On Mental Health Care

Dr. Metzner found a significant over-diagnosis of malingering. He related the case of Adan Garza in particular to illustrate this point. Inmate Garza entered the system with a history of suicide attempts, self-mutilations, hallucinations, and hospitalizations. His medications were discontinued and he was diagnosed as having no Axis I illness. After a brief visit to Skyview, he was discharged with Dr. Tchokoev recommending no medication and heavy work in the field. The same day he returned to Beto, he cut himself and then attempted to hang himself. He is now in a vegetative state. Inmate Paul Ferguson testified about the events he observed on the day that inmate Garza cut himself. Inmate Ferguson alleges that Officer Smith told inmate Garza she would call for psychiatric help, but she apparently failed to do so, as no help came.

On Administrative Segregation

Texas’ administrative segregation units violate those rights through extreme deprivations which cause profound and obvious psychological pain and suffering. Texas’ administrative segregation units are virtual incubators of psychoses – seeding illness in otherwise healthy inmates and exacerbating illness in those already suffering from mental infirmities.…

According to Dr. Haney, of the perhaps dozens of prisons he has visited and studied in his career, Texas’ ad-seg units were “as bad or worse as any I’ve ever seen.” When asked how Texas’ ad-seg units were worse than others around the country, Dr. Haney responded:

“The bedlam which ensued each time I walked out into one of those units, the number of people who were screaming, who were begging for help, for attention, the number of people who appeared to be disturbed, the existence, again, of people who were smeared with feces, the intensity of the noise as people began to shout and ask, Please come over here. Please talk to me. Please help me. It was shattering. And as I discussed this atmosphere with the people who worked here, I was told that this was an everyday occurrence, that there was nothing at all unusual about what I was seeing.”…

Dr. Haney reported one instance in which he happened to see a man removed from his cell after having cut the veins in his arms and ankles. Again, Dr. Haney was told by prison employees that such occurrences happened regularly. According to Dr. Haney, “[t]he level of desperation and despair in that particular facility as I saw it on the day that I was there was unparalleled, in my experience.”…

Breed visited the ad-seg units of each of the units he toured. He found Texas’s ad-seg system unique among prison systems across the country, in that the large majority of inmates being moved into the ad-seg system begin in Level III, the level with the most severe restrictions. Breed found “no correctional justification whatsoever” for a system that immediately places a prisoner in a situation with nothing left to lose.…

Emphasizing that he did not report on borderline mentally ill patients but only on inmates who would be found mentally ill by any reasonable psychiatrist, Dr. Jurczak testified that he had identified 15-20 “floridly psychotic” individuals in administrative segregation. “The patients demonstrated unequivocal signs and symptoms of a serious mental disorder, predominately that of schizophrenia.” Dr. Jurczak found that many of these individuals were not being followed by the mental health staff and many were not identified as mentally ill. Dr. Jurczak also encountered a number of mentally ill patients in administrative segregation had been identified by TDCJ. Some were receiving care, some not.…

Dr. Jurczak led the court through descriptions of his encounters with a number of the inmates in ad-seg that he identified as mentally ill. A number of the prisoners had free world records of mental illness. The behaviors he reported included paranoid thoughts, looseness of association, and “pressured speech.” One inmate scrubbed to remove the bugs from his skin. Others incessantly talked to themselves. Others were “frequent fliers” – those that frequently attempted suicide and made repeated trips to inpatient suicide watch. Another was a young man referred to him by other inmates. The inmate had been smearing his feces for several years. When Dr. Jurczak tried to interview him, the inmate was incoherently giggling, mumbling, and looking around. According to his records, this inmate was not identified as mentally ill and was not being treated. Dr. Jurczak recognized the possibility that such behaviors were for secondary gain, but stated, “I think with 30 years of practicing psychiatry in many, many prisons, if these guys pull the wool over my eyes, they’re pretty darn good.”

Dr. Jurczak also explained that, in his expert opinion, Texas’s administrative segregation system harmed mentally ill inmates. Such inmates, he said, need contact and social stimuli. More generally, Dr. Jurczak testified that the ad-seg system is destructive to all its occupa
ts: “I think it’s a very destructive system. And I’ve been in many, many systems … and I’ve never seen one as repressive as I have seen [in TDCJ].”

Legal Analysis and Conclusions re Ad-Seg

It is found by a preponderance of the evidence that inmates in administrative segregation, particularly those in Levels II and III, are deprived of even the most basic psychological needs. More than mere deprivation, however, these inmates suffer actual psychological harm from their almost total deprivation of human contact, mental stimulus, personal property and human dignity. The scene revealed by the plaintiffs’ experts, one largely unrefuted by defendants’ emphasis on policies and procedures, is one of a frenzied and frantic state of human despair and desperation. Furthermore, plaintiffs submitted credible evidence of a pattern in TDCJ of housing mentally ill inmates in administrative segregation – inmates who, to be treated, would have to be removed to inpatient care. These inmates, obviously in need of medical help, are instead inappropriately managed merely as miscreants. It is determined that TDCJ officials are well aware of both these conditions and these inmates’ ensuing pain and suffering. Whether because of a lack of resources, a misconception of the reality of psychological pain, the inherent callousness of the bureaucracy, or officials’ blind faith in their own policies, TDCJ has knowingly turned its back on this most needy segment of its population.

It is deplorable and outrageous that this state’s prisons appear to have become a repository for a great number of its mentally ill citizens. Persons who, with psychiatric care, could fit well into society, are instead locked away, to become wards of the state’s penal system. Then, in a tragically ironic twist, they may be confined in conditions that nurture, rather than abate, their psychoses. The United States Constitution cannot abide such a perverse and unconscionable system of punishment. As to mentally ill inmates in TDCJ-ID, the severe and psychologically harmful deprivations of its administrative segregation units are, by our evolving and maturing society’s standards of humanity and decency, found to be cruel and unusual punishment.

On Overall Inmate Safety

The evidence before this court revealed a prison underworld in which rapes, beatings, and servitude are the currency of power. Inmates who refuse to join race-based gangs may be physically or sexually assaulted. To preserve their physical safety, some vulnerable inmates simply subject [themselves] to being bought and sold among groups of prison predators, providing their oppressors with commissary goods, domestic services, or sexual favors. The lucky are those who are allowed to pay money for their protection. Other abused inmates find that violating prison rules, so that they may be locked away in single cells in administrative segregation, is a rational means of self-protection, despite the loss of good time that comes with their “punishment.” To expect such a world to rehabilitate wrong-doers is absurd. To allow such a world to exist is unconstitutional.

On the Prevalence of Excessive Force

It is notable that in almost every prison and jail civil action to which Breed was appointed by state and federal courts, he was responsible for monitoring excessive used of force. This makes all the more alarming the fact that Breed found in Texas more excessive force, in quantity and degree, than in any other state system he has seen. Breed testified that, in forming his opinions about use of force in TDCJ, he found a large proportion of excessive or unnecessary force among the hundreds of use of force instances he reviewed.


It has been over three decades since the matter of Texas prisons’ constitutionality first came before this court. In light of the egregiousness of the violations of the Constitution found in 1980, the Texas Department of Criminal Justice, through the sometimes strained partnership with the representatives of the inmate plaintiffs in this civil action, has dramatically overhauled its prison system. The imposition of extensive policies and the formation of a bureaucracy do not, however, immunize the system from constitutional challenge. The measure of a prison system’s constitutionality, as always, is not its production of policies, but its treatment of inmates.

Texas prison inmates continue to live in fear – a fear that is incomprehensible to most of the state’s free world citizens. More vulnerable inmates are raped, beaten, owned, and sold by more powerful ones. Despite their pleas to prison officials, they are often refused protection. Instead, they pay for protection, in money, services, or sex. Correctional officers continue to rely on the physical control of excessive force to enforce order. Those inmates locked away in administrative segregation, especially those with mental illnesses, are subjected to extreme deprivations and daily psychological harm. Such practices and conditions cannot stand in our society, under our Constitution.

William Wayne Justice is Senior United States District Judge, Southern District of Texas, Houston Division.

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Published at 12:00 am CST