HEAT IN US PRISONS AND JAILS Corrections and the Challenge of Climate Change By Daniel W. E. Holt August 2015 © 2015 Sabin Center for Climate Change Law, Columbia Law School The Sabin Center for Climate Change Law develops legal techniques to fight climate change, trains law students and lawyers in their use, and provides the legal profession and the public with up-to-date resources on key topics in climate law and regulation. It works closely with the scientists at Columbia University's Earth Institute and with a wide range of governmental, non- governmental and academic organizations. Sabin Center for Climate Change Law Columbia Law School 435 West 116th Street New York, NY 10027 Tel: +1 (212) 854-3287 Email: [email protected] Web: ColumbiaClimateLaw.com Twitter: @ColumbiaClimate Blog: blogs.law.columbia.edu/climatechange Disclaimer: This paper is the responsibility of The Sabin Center for Climate Change Law alone and does not reflect the views of Columbia Law School or Columbia University. This paper is an academic study provided for informational purposes only and does not constitute legal advice. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. No party should act or rely on any information contained in this White Paper without first seeking the advice of an attorney. About the author: Daniel Holt, M.A., J.D., was a Visiting Scholar at the Sabin Center for Climate Change Law from 2013 to 2015. He can be reached at [email protected]. Acknowledgments: I would like to thank Michael Gerrard for hosting me at the Sabin Center and for encouraging me to undertake this project. I have learned an enormous amount from him and am grateful for his guidance and support. Michael Burger helped me stay on track and provided consistently valuable comments and suggestions. Others at the Sabin Center whose friendship and intellect nurtured me include Ethan Strell, Meredith Wilensky, Teresa Parejo Navajas, Shelley Welton, Adam Schempp, Margaret Barry, Jessica Wentz, and Jenny Klein. My conversations with Stuart Gaffin deepened my understanding of heat and passive cooling, and the students in his Capstone Workshop in Sustainable Development provided research assistance. Discussions with Brett Dignam, A. T. Wall, and Marcy Kahn helped me in the early stages as I was framing my questions and structuring my research. I am also grateful for the assistance of Leann Bertsch and George Camp at the Association of State Correctional Administrators. Finally, thanks to Ellen Baker for her unwavering love, faith, and support. Heat in US Prisons and Jails: Corrections and the Challenge of Climate Change EXECUTIVE SUMMARY This paper addresses two important but largely neglected questions: How will increased temperatures and heat waves caused by climate change affect prisons, jails, and their staff and inmate populations? And what can correctional departments do to prepare for greater heat and minimize the dangers it poses? Some 2.2 million inmates are currently incarcerated in around 1,800 prisons and jails across the United States. Nearly half a million correctional employees work in these facilities. Indoor environmental conditions in prisons and jails therefore have a direct impact on the health of well over 2.5 million people. Climate scientists forecast with a high degree of confidence that average temperatures in the US will rise throughout this century and that heat waves will become more frequent, more severe, and more prolonged. Extreme heat is already the most common cause of weather- related death in the US and it will only become a graver threat to public health in the coming decades. Rising temperatures and increasingly harsh extreme-heat events will jeopardize the health of inmates and correctional officers alike, and will stress the physical plant of the correctional sector. Adapting their systems and facilities to greater heat and the other impacts of climate change will become an urgent challenge for correctional departments. The success or failure of correctional adaptation efforts will be measured in human lives as well as public dollars. Until now, the implications of climate change for corrections have been largely disregarded by both correctional administrators and public officials working on climate adaptation policy. This paper begins the process of connecting the discussions of climate policy and correctional policy. It provides an overview of the correctional sector and its specific vulnerabilities to heat, explores relevant legal issues, and offers recommendations for adaptation to address unique challenges that climate change poses for corrections. Key Features of the Correctional Sector Several key features of the correctional sector shape how it will likely be affected by increasing heat and how adapting to higher temperatures will test correctional departments: Sabin Center for Climate Change Law | Columbia Law School i Heat in US Prisons and Jails: Corrections and the Challenge of Climate Change The correctional sector spans diverse jurisdictions, each with its own systems and facilities, laws and policies. The federal government and all 50 states operate prison systems. Nearly 3,000 individual jurisdictions, including counties, cities, and Indian tribes, operate jails. Correctional facilities vary greatly by size, age, architecture, and security level. Most prisons and jails were built since the phenomenon of mass incarceration began in the 1980s, but hundreds predate World War II, including around a hundred built in the nineteenth century that still house inmates. Older facilities have been added to and altered in hodgepodge fashion over the decades. Close quarters and mass incarceration mean high population density in correctional facilities. Overcrowding is a significant problem, with dozens of state prisons and hundreds of jails under court orders or consent decrees to reduce inmate populations. Risk factors for succumbing to heat-related illness, including advanced age, poor mental and physical health, and the use of medications, are prevalent among the 2.2 million US inmates. The inmate population is graying, with one in ten prisoners now 55 or older. Inmates over 50 are generally much less healthy than their peers in the outside world. Mental illness is widespread among inmates of all ages. Obesity, hypertension, and asthma are commonplace. Large numbers of inmates take medications that compromise the body’s ability to handle heat. Heat is already causing serious harm to inmates and correctional officers. Heatstroke and other heat-related illnesses have claimed the lives of numerous inmates in recent years, while correctional officers in several prisons have suffered from heat stress. Key Legal Issues and Findings Correctional departments that fail to protect inmates and staff from extreme heat face the prospect of costly legal consequences. Existing policies and regulations are generally inadequate to ensure that temperatures remain within a healthy range. This paper’s key findings include: Sabin Center for Climate Change Law | Columbia Law School ii Heat in US Prisons and Jails: Corrections and the Challenge of Climate Change The US Constitution may require correctional departments to undertake adaptation efforts to mitigate the impacts of climate change. It is now well established that high cell temperatures can constitute Cruel and Unusual Punishment. Federal courts have ordered correctional departments to reduce and control temperatures in inmate housing to remedy constitutional violations. Financial considerations do not excuse noncompliance with court-ordered reforms where constitutional violations are found. Inmates with disabilities that make them more susceptible to heat stress may have viable claims under the Americans with Disabilities Act. Litigants have pushed courts to recognize impaired thermoregulation—the ability to regulate body temperature—as a disability under the ADA. The US Department of Justice has shown an interest in excessive cell temperatures and has legal tools to protect inmates from extreme heat. DOJ recently filed an amicus brief in support of inmates claiming that extreme heat subjected them to Cruel and Unusual Punishment. The Civil Rights of Institutionalized Persons Act empowers DOJ to investigate conditions of confinement that may violate the constitution and to initiate legal action to remedy any violations. Correctional officers have legal protections against workplace hazards such as extreme heat. COs exposed to extreme temperatures can turn to occupational safety and health laws. COs with disabilities that put them at greater risk of heat illness can demand reasonable accommodations under the ADA. Many jurisdictions have some policies or regulations governing temperatures in inmate housing but many do not. Existing policies and regulations vary widely. A compilation is provided as an appendix to this paper. The Federal Bureau of Prisons is required by executive order to conduct climate change adaptation planning but little is required in other jurisdictions. Adaptation planning by DOJ encompasses the federal prison system. To date, no comparable requirements exist at state or local levels. Sabin Center for Climate Change Law | Columbia Law School iii Heat in US Prisons and Jails: Corrections and the Challenge of Climate Change Key Recommendations Like all sectors of government, corrections must begin to prepare for the impacts of climate change.