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Family Can Sue State Officials Over Prison Death. But Not Us, Right?

At what point does moral responsibility for prison conditions fall on the voter?
At what point does moral responsibility for prison conditions fall on the voter?
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Larry Gene McCollum was 58 years old in 2011 when he was busted for a bad check in Waco. He was 5 feet 10 inches tall and weighed 330 pounds, with a history of diabetes, high blood pressure and a tendency toward depression. He was sentenced to a year in prison and sent to the Hutchins State Jail in Dallas near the intersection of Interstate 20 and I-45.

Bad luck. That was a hot summer. For each of the seven days McCollum stayed alive at Hutchins, outside temperatures exceeded 100 degrees. McCollum was crammed into a dormitory where the sheer body heat of 57 other men raised the heat index to 150 degrees over sustained periods, according to federal court testimony and evidence.

Worse luck. Before being sent to Hutchins, while McCollum was still in custody in the McClennan County Jail, jail doctors there put him on a drug called clonidine to control his blood pressure. When he got to Hutchins, he was switched to something called hydrochlorothiazide.

Hydrochlorothiazide can have the side effect of turning a human being into a poikilotherm — that is, the equivalent of a cold-blooded creature like a lizard, unable to achieve internal body temperatures substantially different from ambient air temperature. In nature an over-heated poikilotherm — for example a naked mole rat, corn snake or cane toad — can cool itself by finding a cool muddy place next to a stream or by burrowing into the ground. At Hutchins there was no such respite. McCollum was assigned to an upper bunk in a dormitory with sealed windows and a couple of wall fans.

Water was supplied in a 10-gallon jug left in the dormitory for 58 prisoners to share. Prisoners also could draw water from a bathroom tap, but that water was sometimes as warm as 107 degrees. McCollum, however, was not provided a cup. Had he lasted 35 days instead of his seven, he would have been allowed to buy himself a cup from the commissary.

Other prisoners said that McCollum had a very hard time climbing up to his bunk and, once there, was reluctant to leave. On one occasion he persuaded another prisoner to bring him some water in a cereal bowl. Eventually prisoners reported to guards that McCollum had stopped leaving his bunk at all, even for meals.

He died on July 28, 2011, of hyperthermia — heat stroke — one of 10 Texas state inmates to die of heat stroke that month. In a court order made public this week, a federal judge in Houston ruled that McCollum’s family can sue top Texas prison officials and staff at Hutchins but not because he died of heat stroke. It’s way harder to sue prison officials than that.

Previous federal court cases have established that prisoners have no right to air conditioning. And even if conditions in a prison are so bad they cause death, prison officials are protected by law from civil suits unless plaintiffs can show that the officials deliberately caused or allowed death to occur.

It’s pretty close to the standard for murder. A plaintiff has to prove that prison officials were guilty of something called “deliberate indifference,” which is about one degree shy of intent.

Most of us think of prison issues as turning on our Eighth Amendment constitutional protection from “cruel and unusual punishment,” and we’re right, sort of. But in order to meet that standard, a punishment has to be pretty close to torture.

U.S. District Judge Keith P. Ellison ruled that McCollum’s treatment might meet that test in the eyes of a reasonable juror. A juror, Ellison found, could find that recently retired Texas Department of Criminal Justice Executive Director Brad Livingston, Hutchins Senior Warden Jeff Pringle and other TDCJ and Hutchins staff were guilty of deliberate indifference. The judge’s finding strips them of their immunity and means that McCollum’s family can proceed with a civil suit against them for their roles in his death.

But that’s not really about his being overweight and sick or about his being given drugs that turned him into a lizard or even about his being assigned to an upper bunk in a dormitory that reached a heat index of 150 degrees. The deliberate indifference issue had more to do with what happened next.

A little after 2 a.m. on July 22, 2011, officer Richard J. Clark was performing an inmate count in the dormitory when a prisoner told him that McCollum was shaking. Clark examined McCollum and decided he was having a seizure. He ran to a guard who had a phone and told him to summon medical help. Clark, by the way, is the only one of multiple defendants in the case whose immunity was upheld by the judge on the grounds that Clark did what he could.

Federal District Judge Keith P. Ellison.
Federal District Judge Keith P. Ellison.

But after it was determined that McCollum was seizing, a series of other prison personnel who looked at him waited more than hour before calling an ambulance, even though Hutchins had no medical staff of its own. Their explanations to the judge about why they waited for an hour included the statement of one prison staffer that, “She cannot recall an instance when the on-call medical staff advised a TDCJ officer to immediately call an ambulance simply because an offender is having a seizure.”

By the time McCollum reached medical help, he was beyond saving and died. An expert for the state testified that waiting an hour to call EMS didn’t cause McCollum’s death because he was beyond helping by then anyway. The judge thought that was a decision that needed to be made by medical personnel, not prison guards.

And it was all actually even a little worse than that. More testimony elicited the reality that, no matter what was going on with a prisoner, the staff were not allowed to call 911 without an OK from the chain of command, something the staff were obviously reluctant to seek. The judge found that all of these conditions and circumstances — the absence of medical staff, the reluctance to call for outside medical assistance — were the result of budget cuts imposed on state agencies by the Legislature and governor.

Now, we as taxpayers might look at that situation and conclude just the opposite of what the judge did. We might say McCollum’s grotesque demise was not the fault of prison staff, who were only following orders, nor of their superiors, who were only carrying out directives imposed upon them by the Legislature and the governor.

The Legislature and the governor, of course, could point to us, the voters, and explain that they merely were doing what we voters put them in office to do — save money. By then all of their fingers would be pointing toward you and me as their justification and excuse.

The judge didn’t disagree with the finger-pointing, exactly, only with the inference. In his view doing what was done to McCollum deliberately, knowingly, intentionally and in order to save money is exactly what the law calls “deliberate indifference.” It is the cruel intentional quality that strips the defendants of their claims to immunity.

Viewed from that perspective and when everybody gets done pointing, that would come back to you and me as well, would it not?

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