More litigation over summer heat in Texas prisons: Wrongful death suit filed

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The New York Times and the Texas Tribune both published stories yesterday about litigation over extreme heat in Texas prisons,  a subject Grits tackled earlier this month after oral arguments at the 5th Circuit Court of Appeals. Another lawsuit over the issue - this one a wrongful death suit - was filed last week. Reported the Times:

four inmates — Larry Gene McCollum, 58; Alexander Togonidze, 44; Michael David Martone, 57; and Kenneth Wayne James, 52 — died last summer from heat stroke or hyperthermia, according to autopsy reports and the authorities. Advocates for inmate rights believe that at least five others died from heat-related causes last summer.

On Tuesday, the Texas Civil Rights Project and an Austin lawyer filed a wrongful-death lawsuit in federal court on behalf of Mr. McCollum’s wife, son and daughter. They accused prison officials of causing his death by keeping him in the sweltering Hutchins State Jail outside Dallas, where he had a seizure around 2 a.m. on July 22 and fell from his bunk bed. 
When Mr. McCollum, who weighed 345 pounds and had hypertension, arrived at a Dallas hospital, his body temperature was 109.4 degrees. He died six days later.

The Times offered a bit more detail on other heat-related deaths from last summer:

Nearly two weeks after Mr. McCollum died, Mr. Togonidze and Mr. Martone died of hyperthermia on the same August day in different prisons. Five days later, Mr. James was found unresponsive at 3 a.m. at a prison near the East Texas town of Palestine. His body temperature was 108 degrees, and the cause of death was “most likely environmental hyperthermia-related classic heat stroke,” according to the autopsy report. Like Mr. McCollum, Mr. James had hypertension.

Also mentioned was the disparity in state rules for county jails and practices in state-run lockups: "A Texas law requires county jails to maintain temperature levels between 65 and 85 degrees, but the law does not apply to state prisons. The American Correctional Association recommends that temperature and humidity be mechanically raised or lowered to acceptable levels." Of course, the difference between state prisons and county jails is that most jail inmates are being held pretrial and haven't yet been convicted of anything. Still, it's ironic that the state regulates prisoner conditions at the counties that it's unwilling to address in its own facilities.

At oral arguments earlier this month, 5th Circuit Judge Carolyn Dineen King asked "do we have to wait till you kill someone in order for that person to have a cause of action?" As Grits reported, "The state's attorney answered 'no,' but could not articulate at what point prior to death a prisoner could sue over excessive heat." Now that litigation has expanded to include a heat-related wrongful death, that debate may eventually become moot, though the three-judge panel at the 5th Circuit didn't seem too impressed with it, anyway.

The Times article closed with what strikes me as an odd assessment from state Sen. John Whitmire:

State Senator John Whitmire, a Democrat from Houston and chairman of the Senate Criminal Justice Committee, said he was concerned about the inmate deaths but wanted to examine the circumstances of each. He said he was not sympathetic to complaints about a lack of air-conditioning, partly out of concern about the costs, but also out of principle. 
“Texans are not motivated to air-condition inmates,” he said. “These people are sex offenders, rapists, murderers. And we’re going to pay for their air-conditioning when I can’t go down the street and provide air-conditioning to hard-working, taxpaying citizens?”

That statement seems strangely disconnected on several fronts. First, about half of inmates in Texas prisons are nonviolent offenders, so the schtick about "sex offenders, rapists [and] murderers," makes for a good sound bite but isn't universally applicable. The fellow whose wrongful death suit was filed last week, for example, was convicted of forgery. Further, as of 2009, 89% of owner-occupied homes nationally and 98% in the South  had air conditioning*, so most "hard-working, taxpaying citizens" already have AC. Also, Texas does provide assistance with electric bills when the summer heat spikes, though it does so less frequently after the Legislature last year raided the special fund collected for that purpose. And of course, in the free world excursions to the library, public swimming pools, the supermarket, movie theaters or other air conditioned venues can provide respite from hot conditions. Somebody stuck in a cell with no windows, "sitting in an oven," as Judge King put it, has no such option.

I do agree with Sen. Whitmire, though, that a majority of Texas voters likely would not choose to pay to cool prison units if you asked them, but so what? These are federal lawsuits alleging a violation of constitutional rights. I'd never expect the Legislature to address the problem of their own accord, but if the courts decide the state must provide relief, poll numbers won't matter much. 

* Source: American Housing Survey (pdf), 2009, p. 17. Nationally 82% of renters had AC, but regional data is unavailable. Rentals made up 31.6% of occupied housing units in 2009.