In the coming weeks, senior U.S. District Judge WIlliam Henry Barbour, Reagan appointee and cousin of Haley, will issue his decision in Dockery v. Hall, otherwise known as the Mississippi private prison case. There was sporadic national media coverage of the grim testimony at the just-concluded five-week bench trial and some of it was quite good. But nothing so far has adequately described the scope of the problems at the East Mississippi Correctional Facility (EMCF) in Meridian. It is a place of remarkable lawlessness and violence where prison officials were deliberately indifferent to the rights of inmates.
The penitentiary today is essentially run by two private operators, Management & Training Corporation, which handles the security component, and Centurion, which handles the medical and mental health care component. In 2013, nearly five years ago, the ACLU and the Southern Poverty Law Center filed a class-action suit alleging that Mississippi, working through private operators, systematically deprived inmates of their constitutional rights. The gist of the story, and the sweep of the proof, is both simple and shocking: On too many days, in too many ways, the law of nature, not the rule of law, governed the EMCF.
The sad story starts off with a classic correctional strategy: put the most troublesome eggs in one basket and then try to guard that basket as closely as possible. But the plan went wrong from the beginning. It’s not hard to understand why. Mississippi officials collected most of the mentally ill prisoners in the state and transferred them to the EMCF. Under arrangements curiously lacking in adequate safeguards ensuring accountability or transparency, the state then farmed out its responsibilities for those men to private companies. Those companies, including predecessors to MTC and Centurion, provided the inmates with deplorable medical and mental health care or, in many instances, no care at all.
This isn’t a case where a prison through poor management and oversight slips negligently into bad practices. This is an example, the trial evidence suggested, where years of bad practices seemed inevitable given the economic incentives from the start. Guards were unwilling or unable to enforce appropriate rules and standards to protect prisoners. And state officials were unwilling or unable to enforce contract provisions with the private operators that would have punished those guards. The next time someone asks you why the privatization of our justice systems almost always dooms the men and women in those systems, tell them to read the trial transcript here.
Witnesses (and not just inmates but experts as well) told Judge Barbour that many prisoners did not receive urgent medical treatment for days. “The components of a minimally safe and adequate health care system are missing at EMCF,” one M.D. expert told the court. “The health care system at EMCF therefore puts the entire inmate population at EMCF at constant and substantial risk of serious injury.”
The failure to provide care was exacerbated by the fact that the facility was unusually dangerous. One former warden of a maximum-security prison, using Management & Training Corporation’s numbers, found that more than one weapon per day was seized from the inmates in the 19-month period between July 2014 and January 2016. Obviously, guards do not find every weapon. “[T]hese numbers are startling and alarming,” he wrote.
The judge was told there weren’t enough guards, and the guards who were there often lacked proper training and experience. The physical plant was falling apart—filthy even by prison standards. Locks were broken by inmates and not repaired. The use of solitary confinement for mentally ill prisoners was persistent. If you want proof that inmates, not guards, ran the prison, watch this edited video of a prisoner being beaten into unconsciousness and how it takes the guards 30 minutes to respond – after everything has returned to normal.
MTC and Centurion officials and staff knew this was happening. So did state officials. The legislatively-sanctioned contract between the public and private actors included a clause that allowed Mississippi to seek “liquidated damages” if the companies failed to meet certain legal requirements governing inmate treatment. But the state never invoked that clause against Centurion.
This is especially strange since MIssissippi last year sued MTC and others under the state’s RICO statute to recoup money the state paid to those involved in the state’s latest prison bribery scandal. (The longest-serving Mississippi Corrections Commissioner was accused of taking $1.4 million in bribes and kickbacks in steering $800 million in contracts.) What that means, in effect, is that the state was willing to turn on MTC over money but not willing to turn on MTC or Centurion for the way their staff treated inmates.
Centurion came on board at EMCF in 2015 so its employees are not responsible for the health care provided to inmates when the litigation began. Both Centurion and MTC have made some reforms at the prison, Judge Barbour was told, and those changes have improved inmates’ lot in some ways. There are more staff, for example, and the physical plant is somewhat improved.
But one of the central questions of the trial, and certainly one of the most important questions Judge Barbour now has to answer, is whether the companies and the state are earnestly committed to long-term reform or whether the improvements are simply cosmetic, cynical attempts to alter the course of the litigation.
Closing arguments were April 9th and the Associated Press and some local outlets covered them with neutrally and with what may be called false equivalence. “Mississippi’s prison conditions normal or barbaric? Closing arguments made at trial,” was the headline on the AP story in the Clarion-Ledger, the largest newspaper in the state. The constituency of free people there who are sympathetic to the prisoners’ cause may be growing (and that’s debatable) but it’s still small. This is the state, remember, known in prison circles for its continuing use of the notorious Mississippi State Prison in Parchman.
Here is the transcript of those closing arguments. If you take the time to read it a few things will become quickly evident. The first is that the prisoners face significant legal and institutional hurdles even though they presented unremitting evidence of inhumane treatment and conditions at EMCF. The law, as handed up by law-and-order legislators and interpreted by state and federal judges, favors the defendants. The second is that the defendants in the case, unable fully to parry the thrust of the facts, chose instead to argue a theory of relativity. Sure, conditions for the prisoners may be awful, they told the judge, but these men are criminals, after all, and it’s not like everyone or anyone in Mississippi gets great health care.
The third point about the closings is that Judge Barbour clearly feels he is in a pickle. It’s almost certain that he’ll side in some fashion with the plaintiffs. But what ought the remedy be? How do you fix something as complicated as a state prison when it is so manifestly broken? At one point he asked: “Where does the state of Mississippi find enough competent psychiatrists who are willing to come to a rural area outside of a relatively small Mississippi town to man a facility like this?” At another point he asked: “What is a judge in a case like this supposed to do? Tell the state of Mississippi and the medical contractor to put ‘X’ number of doctors on staff?”
Here’s another example. Defense attorneys emphasized throughout the trial that the whatever deplorable conditions that may have existed years ago when the case began now are gone or eased because of new leadership at the prison and a newfound devotion to improving the lives of prisoners. Speaking to one of the plaintiffs’ lawyers during closings, Judge Barbour responded to this line of argument. He said: “They’re [the defense] going to argue that [conditions have] changed with the change of management [in 2017], specifically the new warden and that that should not have been the way the prison was run and that it is much better now. What do I believe? How do I give them credit for making some change?”
It might be easier for the judge to credit the defense for “making some change” if the defense had taken a different approach to its own closing arguments. William T. Siler, one of the defense attorneys, deployed a particularly disappointing tactic. First, he played the entitlement card, suggesting that life for the inmates was akin to life on a cruise ship. “They have big screen TV sets. They have headphones. They have programs, educational, religious, substance abuse, life skills,” he said of the inmates. “They have—even though they criticize health care, Your Honor knows just like I do, 99 percent of the inmates in that prison wouldn’t have anywhere close to the quality of health care if they were not in prison that they have where they are. Most of these men would not be on any kind of health insurance.”
Then Siler suggested to the judge that the inmates either were faking their illnesses or taking advantage of the medical care offered in the prison. “It’s just the fact of life in the area in which we live,” he said. “Every one of them is on medication that the list of which is as long as your arm. I don’t know that anyone that came across the stand didn’t say they were diabetic or had various other kinds of illnesses, and I doubt seriously whether any of them would have been on those medications in the free world.” Here’s more from Siler on violence at EMCF: “I asked a question earlier in the trial and I was serious about it. I grew up in a family of four boys. We had more than 13 assaults a month amongst my brothers. It’s amazing we lived through high school.”
The old saw, attributed to Carl Sandburg, goes like this: When you don’t have the facts you argue the law, when you don’t have the law you argue the facts, and when you don’t have either the law or the facts you pound the table and raise hell. Here’s how Siler ended his portion of closings: “What the plaintiffs want, Your Honor—there’s an agenda here. They do not want private companies managing prisons. They want them out. They couldn’t get them out through legislation so now they are trying to litigate them out of business. That’s what’s going on. They want to run — the ACLU, the SPLC, the National Prison Project, whatever groups they can pull under their umbrella, they want to run this facility. And they want you as an accomplice to do that.”
If, as expected, Judge Barbour rules for the plaintiffs it will be up to the defendants in the case to get a first crack at proposing remedies. A federal monitor may be necessary to oversee the prison. State lawmakers may be asked, forced, really, to gin up more public funding to ensure EMCF is adequately staffed with properly trained guards. Perhaps the private companies now overseeing the place will be replaced. Perhaps the state will take back control of the facility. But Mississippi has a long history of atrocious prisons and unspeakable cruelty toward its inmates. And you get the feeling that no matter what Judge Barbour decides, no matter how craftily he shapes his remedies, no matter how violent and dangerous a place EMCF was and continues to be, change is going to come there more slowly than it ought to.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.