MONTGOMERY, Ala. – On Thursday, the U.S. Department of Justice (DOJ) released the results of a three-year (2016-19) investigation into claims that prisoners in Alabama’s state men’s prisons are routinely subjected to unconstitutionally excessive amounts of force by prison guards, saying that its study revealed that excessive force is too common in the state correctional system.
Alabama’s prison system, including state prisons for men, the Julia Tutwiler Prison for Women and work release centers, currently houses approximately 21,000 prisoners. Around 16,600 of those are housed in the 13 men’s prisons that were the subjects of the DOJ study.
The report reads:
There is reasonable cause to believe that the correctional officers within the Alabama Department of Corrections (“ADOC”) frequently use excessive force on prisoners housed throughout Alabama’s prisons for men. Such violations are pursuant to a pattern or practice of resistance to the full enjoyment of rights secured by the Eighth Amendment. We identified frequent uses of excessive force in 12 of the 13 Alabama prisons that we reviewed. Given the identified pervasiveness of the uses of excessive force and the statewide application of ADOC’s use of force policies and procedures, we have reasonable cause to believe that the uses of excessive force occurring within Alabama’s prisons give rise to systemic unconstitutional conditions.
The severe overcrowding and understaffing present in Alabama’s prisons contribute to the patterns or practices of uses of excessive force. As of January 2020, Alabama’s 13 prisons held 6,000 prisoners over their designed capacity. The severe and pervasive overcrowding increases tensions and escalates episodes of violence between prisoners, which lead to uses of force.
At the same time, the understaffing tends to generate a need for more frequent uses of force than would otherwise occur if officers operated at full strength. In an adequately staffed prison, officers can use a show of force and command presence to discourage fighting among prisoners or to quickly end fighting through sheer force of their numbers. But because Alabama’s prisons are severely overcrowded and operate substantially below the necessary staffing level, officers often find themselves near instances of prisoner violence.
As might be expected, the increase in use of force incidents tends to produce a rise in the number of incidents of excessive force, regardless of the initial reasons for that force. In some circumstances, officers may perceive the need to extricate themselves quickly from potential dangers posed by dozens of unrestrained prisoners, given the housing circumstances in most facilities,3 and may use more force than is reasonably necessary to subdue resisting or fighting prisoners. And relatedly, officers sometimes use force to punish prisoners involved in altercations. In addition, inadequate supervision and the failure to hold officers accountable for their behavior contribute to an increase in the incidence of excessive force. Insufficient staffing extends to supervisor ranks as well. Without correctional supervisors who demand adherence to use of force policy, training, and law, and who identify, discipline, and remove offending officers, correctional officers are far more likely to act with impunity than if staffing levels were appropriate. Combined with the lack of accountability—particularly the failure to discipline officers who engage in excessive force—this understaffing exacerbates the pattern of excessive force in Alabama’s prisons. In sum, overcrowding and understaffing at every level contribute to uses of force that that might otherwise be avoidable and to a significant number of uses of force that go beyond constitutional limits.
In late 2019, two prisoners died after use of force incidents. An inmate at Donaldson Correctional Facility died after two guards forcibly disarmed him of two improvised knives during a fight with another prisoner. An inmate at Ventress Correctional Facility died after guards reported that he fell out of his bunk; an autopsy revealed that the “fall” caused multiple points of intracranial bleeding, fractures to his nose and left eye socket and the loss of six teeth.
Allegations against prison staff members
Thursday’s report alleges that many prison guards resort to use of force without attempting non-violent de-escalation first, even when there is no immediate physical threat to them, and listed specific instances between 2016 and 2019 in which guards:
- “Use Excessive Force on Prisoners Who Are Restrained or Who Are Compliant” – 10 incidents
- “Unlawfully Use Force as Punishment or Retribution” – five incidents
- “ Use Chemical Spray Inappropriately” – two incidents, not including unnumbered instances in which guards sprayed inmates inside closed cells through the doors, despite no physical threat being present
In many cases, the report admits that use of force was instigated by misbehavior of prisoners, ranging from noncompliance with a valid order to close a door, up to climbing over the prison yard fence. The DOJ held that incidents between guards and prisoners often require use of force, but that the amount of force used in the cited incidents went beyond that which was necessary.
Allegations against the ADOC
The report further claims that:
- ADOC staff often fail to report or accurately document use of force incidents – The DOJ found incidents in which prisoners were injured severely enough to warrant hospitalization, but no incident report was ever filed to explain how they were injured.
- Use of force incidents reported to the ADOC are often not investigated – Of approximately 1,800 use of force incidents in 2017, only 14 were investigated.
- The ADOC fails to follow through with disciplinary actions – Guards charged with excessive use of force are rarely disciplined, unless their conduct involves other infractions like smuggling contraband.
Factors contributing to excessive use of force
The DOJ was, at least to some degree, sympathetic to the plight of Alabama prison staffers. According to the report:
The severe levels of overcrowding and understaffing contribute to the systemic use of excessive force. Since we issued our April 2019 Notice Letter, the overcrowding within Alabama’s prisons has actually increased. In addition, and as we noted in our April 2019 Notice Letter, ADOC is critically understaffed, and even now, ADOC remains critically understaffed. Many of Alabama’s prisons have a staffing rate below 50%, and several facilities’ staffing levels are well below that number. ADOC still needs to hire approximately 2,000 correctional officers to adequately staff its men’s prisons. ADOC is aware of the severe staffing deficiency yet has not taken meaning steps or other emergency measures to address the understaffing.
In these conditions, security staff are regularly required to work long overtime hours and extra shifts. This leads to officers being tired, stressed, overworked, and angry. These officers can find it difficult to maintain a calm, professional approach in situations requiring de-escalation. Additionally, these conditions lead officers to feel outnumbered by prisoners and improperly resort to uses of force without justification, believing such disproportionate responses are the only effective method for maintaining safety and security. One former Alabama prison warden said that without adequate staffing, officers feel like they have no back-up or support when they face violent situations. In these situations, force is more likely to be used without adequate justification. ADOC’s severe understaffing can place officers in unnecessary danger, and in situations where, while a use of force may be justified, it could have been avoided. And while some uses of force in those situations may be justified, uses of excessive force are not.
The high levels of contraband weapons in Alabama’s prisons also heightens correctional officers’ sense of danger even when they lack particularized evidence that a prisoner presents a danger. The officers’ generalized fear for their own safety may lead them to use more force than is necessary and appropriate in cases where no such threat is present. Thus, by failing to adequately staff its prisons, Alabama is contributing to dangerous conditions that give rise to uses of excessive force. These conditions, combined with the lack of a grievance system for prisoners or a central way to track repeated allegations of uses of force against particular correctional officers, increases the likelihood that there are officers who repeatedly use excessive force with little or no repercussions.
Recommended improvements
The DOJ listed the following changes that should be made immediately:
- Install cameras in dormitories, housing areas, congregate use areas, hallways, and other areas where high numbers of use of force incidents are occurring. Cameras should be of sufficient number and appropriately placed to be able to capture all activity occurring in these locations.
- Install secure recording capacity and retain video for 30 days unless an incident has been detected in which case it shall be retained until the conclusion of investigation or any resulting prosecution or litigation. Such video recordings of incidents that are undergoing investigations shall only be discarded with written approval of I&I (ADOC Department of Investigations and Intelligence).
- Establish procedures to secure the recordings and limit access to video to the wardens, captains, and I&I.
- Establish a centralized tracking database related to uses of force so that ADOC can identify patterns of force or officers who are outliers in uses of force.
- Implement a grievance procedure so that prisoners can register formal complaints about uses of force.
- Establish a centralized system—including a toll-free number—where prisoners, ADOC staff, ADOC contractors, and security staff can anonymously and confidentially report uses of excessive force. ADOC should adopt a policy requiring I&I to initiate a preliminary investigation—including collecting any documentary evidence—within three business days of receiving an anonymous report that provides sufficient reason to believe that unjustified or excessive force has occurred.
- Hire additional I&I investigators.
- Establish and implement a robust policy ensuring that prisoners’ movements are controlled.
- Ensure that the Deputy Commissioner of Operations and the Director of I&I meet with each warden to describe accountability measures for wardens regarding use of force at their respective prisons.
- Require that, when corrective action is taken in response to a use of force, the nature of the corrective action is accurately and explicitly documented in a systemwide database.
- Require that a knowledgeable and competent person conduct regular reviews or audits of institution-level excessive force investigations to determine if they are properly classified, investigated, and resolved.
- Establish a procedure where use of force investigators or supervisors are required to document why each investigation is closed.
- Establish a procedure where I&I investigators or supervisors are required to document, with sufficient detail, when and why any use of force incident is referred back to a warden.
- Establish an auditing process where a centralized authority ensures that, where excessive force is identified, wardens are referring the matter to I&I, rather than solely addressing such incidents with corrective action.
- Instruct all prisons to rescind any standard operating procedures or other policies related to uses of force that conflict with ADOC’s use of force regulation. Establish a centralized process where a prison’s standard operating procedures on uses of force are reviewed to ensure that facility policies are consistent with ADOC’s regulation and to prevent situations where a use of force is acceptable within some prisons but not in others.
- Modify its use of force or chemical agents regulations and procedures to:
- Specifically define the types of uses of force that must be referred to and investigated by I&I. The regulation should require that uses of force resulting in serious injuries be investigated by I&I.
- Ensure that a single head warden at each facility is responsible for determining whether to refer a use of force to I&I for further review.
- Explicitly state that strikes or contact to the head constitute a form of lethal force that should only be used if a correctional officer has grounds to reasonably believe that the subject of the force poses an imminent danger of death or serious bodily injury to the officer or to another person.
- Require statements or interviews of any medical personnel who treat a prisoner following a use of force that results in a serious injury.
- Require that a medical assessment be timely conducted after a use of force on any staff and prisoners involved. That assessment should be recorded and retained for future review.
- Modify its I&I regulation and procedures to:
- Explicitly establish that the standard of proof used in reviewing uses of force is a preponderance of the evidence, and define that standard.
- Require that all use of force investigations are completed, including referrals for consideration of criminal prosecution, even if a correctional officer no longer works at ADOC.
- Require that use of force investigations are not closed because an alleged victim refuses to cooperate or is unable to be located due to a release from incarceration.
- Establish a procedure to ensure that an I&I supervisor routinely audits I&I investigative files to ensure that proper and required documentation is included.
Recommended long-term solutions include:
- Staff Alabama’s prisons consistent with the staffing orders entered by the district court in Braggs v. Dunn.
- Maintain and expand the use of video surveillance and recording cameras to improve coverage throughout ADOC facilities in order to monitor activity and determine what is occurring when force is used.
- Retain a reputable and experienced law enforcement investigator to train each captain, warden, and I&I investigator on how to conduct professional investigations into uses of force, including interviewing techniques (e.g., use of open-ended questions). Such training shall be refreshed and provided annually.
- In consultation with a reputable and experienced law enforcement investigator, draft and disseminate a manual on how to conduct institution-level use of force investigations.
- Establish a use of force quality improvement committee to identify trends and interventions, make recommendations for further investigation or corrective action, and monitor the implementation of recommendations and corrective action. ADOC’s quality improvement system should include an early intervention component to alert administrators of potential problems with staff. The purpose of the early intervention system is to identify and address patterns of behavior or allegations that may indicate persistent policy violations, misconduct, or criminal activity.
- Require that the quality improvement committee conduct systemic reviews of use of force at least quarterly, in order to identify patterns or trends. ADOC should incorporate such information into quality management practices and take necessary corrective actions.
- Modify its use of force or chemical agents regulations and procedures to:
- Require that supervisors be informed immediately after a use of force.
- Include a force continuum that emphasizes de-escalation as a first resort and clarifies that force is to be used only after all other reasonable efforts to resolve a situation have failed.
- Require that chemical agent use is authorized only when (1) a prisoner is armed and/or self-barricaded; or (2) a prisoner cannot be approached without danger to self or others and it is determined that a delay in bringing the situation under control would constitute a serious hazard to the prisoner or others, or would result in a major disturbance or serious property damage.
- Require that, where practical, physical force shall not be used until the following conditions have been met:
- A warning or command has been given, and, if practical, repeated;
- The prisoner has had time to comply with the warning or command; and
- It appears that the prisoner is going to continue to resist the order or the staff’s effort to control the situation.
- Incorporate additional non-force alternatives, including crisis intervention methods and specific defusing techniques.
- Contain explicit prohibitions on the following:
- The use of force to retaliate against a prisoner;
- The use of force in response to a prisoner’s verbal insults, taunting threats, or swearing;
- The use of force on a prisoner who is under control;
- The use of unjustifiably painful escort or restraint techniques;
- Causing or facilitating prisoner-on-prisoner violence; and
- Pressuring or coercing prisoners, staff, or non-ADOC staff to not report use of force.
- Contain an explicit requirement stating that “all force shall cease when control of the prisoner has been established.”
- Ensure that ADOC policy and all facility standard operating procedures:
- Prohibit the use of force as a response to prisoners’ failure to follow instructions, verbal insults, or non-threatening behavior when there is no immediate threat to the safety or security of the institution, prisoners, staff or visitors;
- Prohibit the use of force against a prisoner after the prisoner has ceased to resist and is under control;
- Prohibit the use of force as punishment or retaliation; and
- Ensure that officers use only the level of force commensurate and proportionate with the justification for the use of force, and prioritize de-escalation techniques and tactics.
- Consistent with Garrity v. New Jersey, and applicable law, require that any officers who used or witnessed force submit a report or statement immediately after an incident occurs and before leaving for the day. ADOC should take measures to ensure that no statements are prepared in consultation with anyone else.
- Require that all incident reports describe any use of force, including what precipitated the event, the level of resistance encountered, and any attempts at de-escalation.
- Ensure that use of force investigations include timely, thorough, and documented interviews of all relevant staff and prisoners who were involved in or who witnessed the incident in question, to the extent practicable.
- Ensure that use of force investigations include all supporting evidence, including logs, witness and participant statements, references to policies and procedures relevant to the incident, physical evidence, body charts, photographs, and video or audio recordings.
- Ensure that use of force investigations at the facility level thoroughly document the basis for the investigator’s recommended finding, based upon application of a preponderance of the evidence standard.
- Discipline any correctional officer found to have: engaged in excessive force; failed to report or report accurately the use of force; retaliated against a prisoner or other staff member for reporting the use of force; or interfered or failed to cooperate with an internal investigation regarding the use of force.
- Maintain a computerized use of force tracking system and compile summary reports on at least a monthly basis. The summary reports shall be used to identify trends such as rates of use of force in general, as well as by prison, unit, shift, time of day, prisoner, and staff member. The system shall also note incidents referred to I&I or any other entity for investigation. The system shall be used to identify officers engaged in multiple uses of force within a reasonable timeframe for whom an evaluative meeting with their warden shall be required.
In a letter to ADOC officials sent with the report, the DOJ wrote, “We are obligated to advise you that 49 days after issuance of this Notice, the Attorney General may initiate a lawsuit under CRIPA (Civil Rights of Institutionalized Persons Act) to correct the alleged conditions we have identified if Alabama officials have not satisfactorily addressed them . . . The Attorney General may also move to intervene in a related private suit 15 days after issuance of this letter.
“We hope, however, to resolve this matter through a more cooperative approach and look forward to working with you to address the alleged violations of law we have identified.”
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