Sessions Helped Fill Alabama’s Overcrowded Prisons—Now He’s in Charge of Investigating Them

Believing what the state needs is serious prison reform, some are skeptical of how deep this Department of Justice investigation will delve, and what reforms it will (or won’t) recommend.

Throughout his career, Attorney General Jeff Sessions has pushed for criminal justice policies that call for more bodies in prisons, adopting a so-called tough-on-crime stance that research has shown does not translate into lower crime rates. Joe Raedle/Getty Images

After three years and five dead plaintiffs, an Alabama federal court recently found that the state has been subjecting prisoners to cruel and unusual punishment by denying inmates adequate mental health care.

That claim, ruled on in late June, is one of several cases the state has been facing over its prisons for the past few years. And just last fall, the U.S. Department of Justice (DOJ) began its own, separate probe into the Alabama Department of Corrections’ (ADOC) 14 men’s prisons, making the Yellowhammer State the first in history to face a federal investigation into nearly its entire prison system.

Over the last several years, local investigative reporters and advocacy groups like the Southern Poverty Law Center (SPLC) and the Equal Justice Initiative have uncovered devastating conditions within Alabama’s prisons.

Together, these reports paint a picture of widespread violence, rape, corruption, and filth, likely contributing to the DOJ’s decision to investigate. The investigation had barely begun, however, before the Trump administration came to power and installed Alabama’s own Jeff Sessions as agency head.

Sessions’ past and current records pushing policies that contribute to mass incarceration worry the civil rights attorneys and activists who have long been calling attention to Alabama’s deeply troubled prison system. Believing what the state needs is serious prison reform, some are skeptical of how deep this DOJ’s investigation will delve, and what reforms it will (or won’t) recommend.

“When it was announced, it was the most far-reaching investigation into a prison system that the Department of Justice had ever announced it was undertaking,” Maria Morris, an attorney for the SPLC—one of the leading plaintiffs involved in multiple legal claims against Alabama’s correctional system—told Rewire. “And the head of the Department of Justice is now the former senator from Alabama. We have no idea how that will play out. We certainly hope that he will push the department to do a really thorough and comprehensive investigation.”

“Tough on Crime”

The ADOC presently operates 14 men’s prison and one women’s prison. The DOJ previously investigated Julia Tutwiler Prison for Women in Wetumpka, Alabama; in 2015, it reached a settlement with the state to remediate the pervasive sexual abuse and violence discovered at the prison.

A bulging prison population and a sparse workforce are at the center of Alabama’s prisons problems. In 2014, Alabama’s prisons collectively housed nearly twice the number of inmates those prisons were designed to hold. Meanwhile, thanks to low wages and violent work conditions, shrinking staffs have spread correctional officers dangerously thin at many of the facilities. And although the state legislature has implemented criminal justice reforms—such as reducing sentences and eliminating jail sentences for nonviolent offenders—reporters and advocates note that the toxic, sometimes deadly environments persist.

The situation in Alabama happened neither in a vacuum nor overnight. According to AL.com, many of the poor conditions today are a result of the state’s Habitual Felony Offender Act of 1977, which the publication reported as contributing to an 840 percent increase in the state’s prison population. Sessions was among the state’s leaders—first as a federal prosecutor in the 1980s and then as the state’s attorney general in the 1990s—who helped perpetuate that troubled system.

Throughout his career, Sessions has pushed for criminal justice policies that call for more bodies in prisons, adopting a so-called tough-on-crime stance that research has shown does not translate into lower crime rates. By contrast, proponents of criminal justice reform argue that policies that focus on approaching criminal justice from multiple angles—including investing in training, educational, and housing programs for those released from prison—are more effective at reducing recidivism rates.

But Sessions appears to favor the lock ’em up approach, campaigning on a harsh criminal justice platform when he ran for Alabama attorney general in 1994. At the time, he publicly supported policies being floated by the legislature to try repeat juvenile offenders as adults and to allow prosecutors to use adults’ juvenile criminal records to determine their sentences, as Mother Jones’ Pema Levy reported in January. Those juvenile policies became law the following year.

During his first year as state attorney general in 1995, Sessions supported a controversial bill that resurrected chain gangs in Alabama prisons—the outdated custom of shackling prisoners to one another and making them perform hard labor, reported Levy, who has characterized Sessions’ criminal justice policy positions as “extreme even for their time.” The SPLC challenged the law’s constitutionality in 1996, after guards shot and killed a prisoner who had been fighting with the prisoner he was shackled to. In one of his final acts as state attorney general before leaving to serve in the U.S. Senate, Sessions released a non-binding memo asserting that chain gangs are legal. Even so, the state ended up retiring the practice as part of a court settlement.

Sessions continued to push pro-incarceration legislation during his time in the Senate. One of his last moves in Congress was to help thwart a bipartisan bill intended to abolish the policy of mandatory minimums for lower-level offenders.

The “prison population is declining at a rapid rate. It was 5,000 down last year. The budget for the prisons is being reduced as a result of a substantial decline in population. And at the same time, the drug use is surging and deaths are occurring. And in my opinion, it’s going to get worse,” Sessions said during a Senate Judiciary Committee hearing in March 2016, responding to news that President Barack Obama’s DOJ planned to prosecute fewer but “more serious” drug cases. As U.S. attorney for the Southern District of Alabama between 1981 and 1993, Sessions’ drug convictions had constituted about 40 percent of his total convictions, nearly double the rate of other Alabama federal prosecutors, according to the Brennan Center for Justice.

Barely a year after that testimony, as U.S. attorney general, Sessions reversed an Obama-era guideline asking prosecutors not to set mandatory minimum sentences for nonviolent drug offenders. Such mandatory minimums have led to disproportionately higher arrests and jail sentences for people of color.

That was just the beginning of the “tough on crime” approach Sessions has resurrected as the nation’s leading prosecutor. He has additionally encouraged the proliferation of private prisons, something the Obama administration had been trying to phase out given their problematic history.

Of note, Sessions still holds strong ties to the private prison industry. The GEO Group, one of the nation’s largest private prison corporations, hired two of Sessions’ Senate legislative aides.

Sessions continues to oppose efforts to legalize marijuana and recently made controversial statements about the subject that veer from mainstream medical and political views. While Sessions insisted marijuana is “only slightly less awful” than heroin, studies have shown marijuana is actually less dangerous than alcohol and tobacco, both of which are, of course, legal. And Sessions’ remark that “good people don’t smoke marijuana” has no basis in fact.

Advocates thus worry Sessions’ policies and positions will encourage increased incarceration not only at the federal prison level, but in state prisons across the country, as well.

“Given the rhetoric coming out of the White House and the selection of Sessions as attorney general, an increase in the federal prison population and a chilling effect on state reforms is a very real possibility,” Inimai Chettiar, justice program director at the Brennan Center for Justice, told the Associated Press earlier this year, shortly after the U.S. Senate confirmed Sessions as attorney general.

“Of Course Terrible Things Are Happening” 

“It’s never politically popular to fix prisons,” state Sen. Cam Ward (R-Alabaster) told Rewire in a phone interview. “It requires spending more money. And no one wants to do it .… When you have a choice between, say, keeping Medicaid afloat to have seniors a place to go to nursing homes or to make sure that kids aren’t going to school with a leaky roof or prisons, seniors and kids are going to win out every time.”

Ward, who chairs the state Senate Judiciary Committee, has been a longtime champion for prison reform in the state. He was the lead sponsor on legislation passed in 2013 and 2015 that dramatically changed sentencing guidelines for people convicted of nonviolent offenses and created new spending to enhance aging facilities. Ward said these bills were passed to deal with the prisons’ severe overcrowding issue.

Already, data shows the law has led to a significant plunge in the prison’s population. Though the state’s prisons are still at 167 percent capacity, that is down from 193 percent capacity three years ago, according to the Alabama Department of Corrections (ADOC). But that’s still a massive overflow: As of April, Alabama’s in-house prison population was at 22,233, according to the ADOC. That’s 20,884 men and 1,349 women, compared with Alabama’s in-house prison capacity of 13,318 people.

Ward told Rewire that lawmakers have been at an impasse over legislation that would, at minimum, require an $800 million budget increase to build new facilities. For now, this is what prison reform looks like in Alabama: the possibility of more prisons to alleviate the problems of prisons.

In the meantime, the courts may force the state’s hand.

Alabama’s Middle District Court ruled in June that the state has denied mental health care to prisoners in violation of federal law. In 2014, the SPLC and the Alabama Disabilities Advocacy Program, in an ongoing class-action lawsuit, alleged the state was providing inadequate mental health care, as well as involuntarily medicating mentally ill prisoners without due process. U.S. District Judge Myron H. Thompson ruled in favor of the plaintiffs, writing, “Simply put, ADOC’s mental-health care is horrendously inadequate.”

By the end of the court’s findings, five of the plaintiffs had died, not including a separate individual who died before the lawsuit was officially off the ground, Morris, the managing attorney for the SPLC’s Alabama office, told Rewire. Four of the five deaths were a result of serious medical conditions, and Morris said they were already very ill when they signed on as plaintiffs. The fifth, Jamie Wallace, who reportedly suffered from bipolar disorder and schizophrenia, died by suicide, after testifying in the lawsuit to Alabama prisons’ inadequate mental health care.

Since the court ruling, state officials have been meeting with lawyers for the plaintiffs to work out a plan to remediate the issues discovered. Next month, the court will hold a status conference to get an update on this plan.

“We’re all hopeful that we can get to an agreement that all sides can be on board with to bring the Alabama Department of Corrections into compliance with the Constitution and where our clients, the prisoners, are receiving the care that they need,” Morris told Rewire. “It’s going to be a difficult and costly process. But we’re hopeful that we’ll be able to get there.”

The Associated Press recently reported that in addition to building new prisons, state officials have been discussing hiring additional mental health workers and correctional officers. Ward told Rewire he anticipates the state might have to hire around 100 new mental health workers, which he estimates would cost between $30 million and $40 millionextra funding the state will have to authorize via new legislation. But if the legislature only authorizes enough to hire the workers and not to improve the prisons’ infrastructure, those employees will have no offices to work in, Ward pointed out.

Ward is trying to appeal to the philosophy of his Republican colleagues that states should have more say in their own destiny, by investing in the state’s prison infrastructure before the federal court forces even more remedies, at higher costs, to the state.

“If there’s a problem, why in the world would we turn it over to the federal government when we could fix it ourselves?” Ward said.

Another claim in the same class-action lawsuit charged the state with violating the Americans With Disabilities Act (ADA), specifically because inmates with disabilities were allegedly denied equal access to services. Both sides settled in 2016, with the state agreeing to hire an ADA coordinator for the prisons and to start complying with federal law.

And an outstanding claim alleging that the ADOC has been providing inadequate health care overall has not yet been scheduled for trial.

The issues uncovered so far in these lawsuits did not escape the attention of the Justice Department. The DOJ began its probe into Alabama’s prisons in 2014 with an investigation into the state’s lone women’s facility, Julia Tutwiler Prison, and found a pattern of sexual abuse. The DOJ settled with the state, which agreed to several reforms.

Last October, under the Civil Rights of Institutionalized Persons Act (CRIPA), the DOJ launched a much broader investigation into the violence, overcrowding, and rampant sex abuse within men’s prisons statewide, some of which has been documented in lawsuits, advocacy reports, and news articles.

The scope of the probe was broad, but specifically, the DOJ announced it would be examining “whether prisoners are adequately protected from physical harm and sexual abuse at the hands of other prisoners; whether prisoners are adequately protected from use of excessive force and staff sexual abuse by correctional officers; and whether the prisons provide sanitary, secure, and safe living conditions.” The investigation does not include any of the federal prisons located in Alabama.

Morris told Rewire in a phone interview that even though a lot has been exposed regarding the problems of Alabama’s prisons, she thinks if the DOJ digs deep, the agency will find a world of new issues.

“I think if the DOJ chooses to go forward with a comprehensive investigation, it will find a large number of very serious problems,” Morris said. “These are constant ongoing problems. There are issues with vermin and filth. There’s the sexual abuse problem. It’s rampant, and there’s both staff-on-inmate and inmate-on-inmate, and there’s very little accountability for it. There’s an extraordinary level of violence, most of which goes unreported.”

“The understaffing and overcrowding is grotesque,” she continued. “That’s the only way I can say it. We have been told stories about one facility where there are 1,400 men, and they routinely have two or three officers within the entire facility overnight. Of course terrible things are happening.”

Morris noted that she does not believe Alabama’s prison problems can be alleviated simply by opening new prisons. She said the state needs to address the understaffing issue as well.

What Comes Next?

Ten months later, it’s unknown where the DOJ’s investigation stands.

The DOJ declined to comment for this story, as did the United States Attorney’s Office (USAO) for the Northern District of Alabama, which is investigating the prisons alongside the DOJ’s main office and the U.S. attorney’s offices in Alabama’s Middle and Southern districts. Peggy Sanford, the press secretary for USAO for the Northern District, told Rewire in an email that the investigation “is in process,” but that she could not comment further.

Joyce Vance served as the U.S. attorney for the Northern District of Alabama during Obama’s two terms and was among those leading this investigation when it first launched. Vance retired from the DOJ after 25 years of service the day before President Trump was sworn in, and is currently a visiting lecturer at the University of Alabama School of Law.

Vance told Rewire in a phone interview that, given its large scope, she wouldn’t be surprised if the investigation took at least a year, though she said she has no knowledge of the investigation’s current status. Generally CRIPA investigations don’t lead to lawsuits, Vance said.

“Usually just because of the nature of those cases, the need for change is clear, and typically CRIPA cases are resolved collaboratively and not through litigation,” she said. “So, that would involve DOJ talking with the state about its findings and coming up with a joint assessment about what needs to be done to remediate the problems.”

Earlier in the summer there were rumors that Alabama Gov. Kay Ivey (R) would call a special session to try to pass a new prisons funding bill before the new year. But the governor’s office told Rewire in an email that there are currently no such plans to call a special session.

Asked whether the DOJ’s investigation is having any influence on the state’s prison reform plans, Ivey’s communication director Joshua Pendergrass shared the following statement:

Governor Ivey believes strongly that the problems faced by our state’s prisons should be decided in Alabama by Alabamians and not by the federal government. In that vein, the governor is exploring all options to address Alabama’s pressing prison needs.

Vance said both this investigation and the broader issue are incredibly important, and she hopes to see the state eventually use a more holistic approach to reforming criminal justice. To her, just opening new prisons without addressing other problems does not seem like the most effective solution.

“I would use the term ‘justice reinvestment,’” Vance said, meaning investing in community programs that help prisoners access education and training and re-enter the work force, as opposed to reoffending.

“I don’t really think anyone—whether it’s the old administration at DOJ, the new administration, people in the state system—I don’t think anyone would support the proposition that Alabama’s prisons are fine as-is,” Vance continued. “Something needs to change. The real question is, what will that solution look like? Will it be this holistic justice reinvestment approach, or will it be something more modest? Or will we, even worse, see some effort to return to private prisons and to have the private prisons deal with these issues, which I think would be, data suggests, not a good solution to have someone with a profit motive running a prison system.”