Louisiana’s death row doesn’t need to be air-conditioned, but three condemned killers with medical ailments who claim the extremely hot conditions there make them more susceptible to heat-related injury are entitled to some relief, a federal appellate court ruled Wednesday.
That relief could involve diverting cool air from the guards’ pod on death row into the death row tiers; allowing inmates access to cool showers at least once a day; providing an ample supply of cold drinking water and ice at all times; supplying personal ice containers and individual fans; and installing more ice machines, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans said.
The panel agreed with Chief U.S. District Judge Brian Jackson, of Baton Rouge, that Louisiana is in violation of the three prisoners’ Eighth Amendment protection against cruel and unusual punishment. The panel also said Jackson did not abuse his discretion in issuing an injunction against the state.
“The scope of the injunction is another matter,” Circuit Judge Edith Jones wrote for the panel, which vacated the injunction and sent it back to Jackson for reconsideration.
Jackson had ordered the state to develop a plan to reduce and maintain the heat index — how hot it actually feels — at or below 88 degrees from April through October in the death row tiers at the Louisiana State Penitentiary at Angola.
The 5th Circuit panel said Jackson effectively required the state to install air conditioning throughout the death row housing.
Air conditioning, the panel stated, is “unnecessary to correct the Eighth Amendment violation.” The three inmates are entitled to a remedy that reduces the risk of harm to a “socially acceptable level,” the panel said, adding that some risk is “permissible and perhaps unavoidable.”
“Even assuming that air conditioning is an acceptable remedy here — and it is not — it is possible to provide air conditioning solely to these three inmates,” Jones wrote.
Elzie Ball, Nathaniel Code and James Magee, the three inmates who sued the state for improved conditions, could be placed in cells next to the guards’ pod, she said. Jones noted that those cells are cooler than the ones farther down the death row tiers. The state also could air-condition one of the four death row tiers for the benefit of prisoners susceptible to heat-related illness.
The 5th Circuit panel sent the case back to Jackson to consider the possible remedies.
The inmates’ attorneys have the option of asking the three-judge panel or the entire 5th Circuit to rehear the case. Several of those attorneys did not respond Wednesday to requests for comment.
The state Department of Corrections said in a written statement that the 5th Circuit ruling means Louisiana residents “will not have to bear the expense of providing air conditioning while providing constitutionally appropriate accommodations to DOC offenders.”
“The Department has maintained from the beginning that providing air conditioning to offenders on death row goes far beyond constitutional mandates and established case law,” the statement read.
Prior to a summer 2013 trial of the inmates’ lawsuit against the state, the department offered to provide many of the remedies mentioned in the 5th Circuit ruling, but the inmates’ attorneys declined the offer, the statement pointed out.
The department said it intends to review the ruling in greater detail in the next several days.
In addition to finding the state in violation of the three prisoners’ constitutional rights, the appeals court panel — as Jackson did — found that state corrections officials were deliberately indifferent to the risk facing those inmates.
“Most strikingly, after this suit was filed, and during the court-ordered monitoring period the Defendants surreptitiously installed awnings and began soaking some of the tiers’ exterior walls with water in an attempt to reduce the interior temperature,” Jones wrote. “Their trick backfired.”
Jackson gave a stern lecture to several attorneys for the state in March 2014 but chose not to sanction them for what he termed their “lack of candor” about the awnings and soaker hoses installed in summer 2013 while death row heat indexes were being measured for the court.
Angola Warden Burl Cain admitted in federal court testimony in August 2013 that he “messed up” by ordering awnings over death row windows and walls soaked with water while the litigation was ongoing. Cain also said he did not intend to violate Jackson’s order to preserve evidence of prison temperatures that could endanger the health of inmates.
Jones was joined in the 5th Circuit decision by Circuit Judge Jennifer Walker Elrod. In a one-paragraph dissenting opinion, Circuit Judge Thomas Reavley said he agreed with almost all of the majority opinion but would affirm Jackson’s injunction, “which in principal only orders the heat index in the Angola death row tiers to be maintained below 88 degrees.”
Jackson personally toured Angola in summer 2013 and issued his ruling in December of that year following a trial.
The judge approved the state’s court-ordered remediation plan in May 2014, which included adding air conditioning, providing ice chests filled with ice and allowing death row inmates once-daily cold showers. The 5th Circuit halted the plan’s implementation in June 2014 during the appeal process.
Ball, Code and Magee claim in their suit that heat indexes on death row reached 172 degrees in 2012 and 195 degrees in 2011, but the state disputes those figures. The inmates contend their medical conditions are exacerbated by extreme heat.
Ball has diabetes and is obese, Code is obese and has hepatitis, and Magee is depressed and has high cholesterol, the 5th Circuit panel said in its ruling Wednesday. All three also have hypertension.
Death row inmates have access to ice, but they can only personally access the lone ice chest on each tier during the one hour a day they are allowed to walk the tiers. The rest of the time, inmates depend on guards or other prisoners for ice, the panel said. There is only one ice machine.
Windows that can be opened line the exterior wall of each death row housing tier, and 30-inch fans next to the windows serve two adjoining cells, the appeals court judges said. Each cell contains a 6-by-8-inch vent that draws air into the cell. Sinks in each cell provide unlimited access to potable water, the judges added.
Ball is on death row for shooting a beer delivery man to death during a 1996 armed robbery of a Gretna lounge. Magee was condemned to die for the 2007 shotgun killings of his estranged wife and their 5-year-old son in Mandeville. Code was given the death penalty for the 1985 murders of four people at a house in Shreveport.