Hoping for the Best is Not Enough for Prisoner Safety

JURIST Guest Columnist Christopher Newton, St. John's University School of Law Class of 2013, is the author of the fifteenth article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. He argues that state legislatures should enact laws to compel prison officials and emergency management personnel to create contingency plans to protect inmates during natural disasters, citing Hurricane Katrina and the story of an inmate named Pearl Bland...



When Pearl Bland plead guilty to possession of drug paraphernalia in August 2005, she was to be released after undergoing a drug treatment program. However, because of an unpaid fine from an earlier offense, she was detained. Unfortunately for Bland, she and the other 8,500 prisoners in Orleans Parish Prison in New Orleans, Louisiana were just days away from experiencing Hurricane Katrina. While prisons along the Gulf Coast evacuated their inmates to safety, the sheriff of Orleans Parish Prison decided his prisoners could ride out the storm in New Orleans. As a result, Bland and her fellow inmates suffered through days of waiting in flooded or overcrowded cells without food or water before finally being shuttled to prisons throughout the state. With their arrest records destroyed by floodwater, many prisoners who had been arrested for petty crimes were held for months before seeing a judge. Bland wasn't released until ten months later, which was a longer prison term than the sentence for her crime. This inhumane treatment could have been prevented had the prison officials followed their constitutional obligation to create and follow a comprehensive emergency plan.

This is why states should adopt legislation requiring prison officials and emergency management officials to work together to develop comprehensive emergency plans for prisoner safety in all types of emergencies. Because of their incarceration, prisoners are unable to take responsibility for most of their basic needs, including protecting themselves from harm. In Estelle v. Gamble, the US Supreme Court determined that prison officials cannot demonstrate "deliberate indifference" to those potential harms, meaning that when prison officials are aware of a potential harm to an inmate — such as illness or a threat from another inmate — they cannot simply ignore it. To do so, the Court has determined, would violate the Eighth Amendment's prohibition against "cruel and unusual punishment." As with all of the Court's determinations, there are nuances to this standard. A single guard cannot be found to have demonstrated deliberate indifference to a single prisoner in the middle of an unforeseen emergency, such as accidentally hurting one person in the midst of a riot. However, officials must consider foreseeable future dangers, such as when a non-smoker is forced to share a cell with a prisoner who smokes five packs of cigarettes per day. Although many emergency situations do not come with a specific advance warning, we live in a world where the general potential for hurricanes, tornadoes, terrorist attacks, nuclear emergencies, floods, outbreaks of disease and many other situations is constant and cannot be ignored. Those of us who are not in prison or jail expect that our government is taking steps to protect us from these dangers even though most of us have some sort of emergency plan of our own. We should expect this protection even more so for those who cannot devise a plan to protect themselves.

New York currently has a law that requires prison officials to protect prisoners in the event of a fire in the facility, as well as a law that requires them to protect prisoners in the event of a contagious disease outbreak. It is a general rule of statutory interpretation that if the legislature makes a list, then it intended to exclude the things it did not put on that list. Of course, there are many more potential emergencies beyond fires and contagious diseases, which is why I propose legislation that would require prison officials and emergency management officials to work together to develop plans that prepare for all types of emergencies to ensure that prisoners are protected from these emergencies.

In mandating that prison officials work with emergency management professionals, the planning process is greatly simplified because prisons can be incorporated into already existing emergency plans. If New York City ever has to evacuate the estimated 12,000 residents of Rikers Island, it will be an undertaking that will require coordination beyond just prison officials and emergency management officials should be a part of that planning process well before the need to evacuate arises.

Another important element of this proposed legislation would be to give prison officials the power to create categories of low-level, non-violent offenders and, in the event of evacuation, to release such offenders into the general public. Those with pending charges would be expected to return to court after the emergency situation — just like prisoners who are released on bail do every day. Bland posed no real threat to the people of New Orleans. She and the hundreds of other prisoners being held on charges like possession of drug paraphernalia or public intoxication should have been released so that they could care for their families during and in the aftermath of Hurricane Katrina. Additionally, transporting such non-violent offenders during an evacuation is enormously expensive and, more importantly, requires the attention of guards who should be concentrating on detaining those prisoners who pose the greatest danger to the public. Allowing officials to create standards for release would save money, enable guards to focus on real threats and allow those prisoners a chance to ensure their own safety and the safety of their families during emergencies.

Voting for anything related to prisoners' rights is certainly no way for legislators to solidify their "tough on crime" credentials, but it is the right thing to do. First, it fulfills the obligation of the US Constitution, which is the primary responsibility of our legislators. Second, it ensures that we care for those who can least care for themselves. Many of those affected by this law will be people who have not even been convicted of anything yet. In a country that presumes such people "innocent until proven guilty," the least we can do is protect them from natural disasters. We cannot just cross our fingers and hope that nothing terrible happens to prisoners in emergencies because of our failure to make simple preparations. Stories like those of Pearl Bland should never happen again, and this legislation would ensure that they do not.

Christopher Newton is a Senior Articles Editor for the Journal for Civil Rights and Economic Development. His legal experience includes The Civil Legal Advice and Resource Office, Queens Legal Services, MFY Legal Services, Inc., the Elder Law Clinic at St. John's University School of Law and the Queens Volunteer Lawyers Project.

Suggested citation: Christopher Newton, Hoping for the Best is not Enough for Prisoner Safety , JURIST - Dateline, Dec. 18, 2012, http://jurist.org/dateline/2012/12/christopher-newton-prisoner-safety.php.



This article was prepared for publication by Emily Osgood, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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