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Scholarship & Research
2008
Lessons from Hurricane Katrina: Prison
Emergency Preparedness as a Constitutional
Imperative
Ira P. Robbins
American University Washington College of Law, robbins@wcl.american.edu
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Part of the Constitutional Law Commons, and the Human Rights Law Commons
Recommended Citation
Robbins, Ira P. “Lessons from Hurricane Katrina: Prison Emergency Preparedness as a Constitutional Imperative.” University of
Michigan Journal of Law Reform 42, no.1 (Fall 2008): 1-69. Reprinted in Prisoners and the Law, edited by Ira P. Robbins, vol. 1, 7:199
- 7:267. St. Paul, MN: Thomson/West, 2009.
This Article is brought to you for free and open access by the Scholarship & Research at Digital Commons @ American University Washington College
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LESSONS FROM HURRICANE KATRINA:
PRISON EMERGENCY PREPAREDNESS
AS A CONSTITUTIONAL IMPERATIVE†
Ira P. Robbins*
Hurricane Katrina was one of the worst natural disasters ever to strike the United
States, in terms of casualties, suffering, and financial cost. Often overlooked
among Katrina’s victims are the 8,000 inmates who were incarcerated at Orleans
Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of
New Orleans, these men and women, some of whom had been held on charges as
insignificant as public intoxication, remained in the jail as the hurricane hit, and
endured days of rising, toxic waters, a lack of food and drinking water, and a
complete breakdown of order within OPP. When the inmates were finally evacuated
from OPP, they suffered further harm, waiting for days on a highway overpass before being placed in other correctional institutions, where prisoners withstood
exposure to the late-summer Louisiana heat and beatings at the hands of guards
and other inmates. Finally, even as the prison situation settled down, inmates
from the New Orleans criminal justice system were marooned in correctional institutions throughout the state, as the judicial system in New Orleans ceased to
function.
The resulting effects were both tragic and unconstitutional, as the suffering at
OPP could have been prevented. This Article asserts that prison administrators
have a constitutional duty to plan for emergencies, and argues that the failures of
New Orleans officials to do so violated prisoners’ Sixth and Eighth Amendment
rights, as well as internationally recognized human rights standards. With the
wealth of training and planning materials available to prison officials and the
knowledge of possible emergencies, it is unconscionable for prisons to have nonexistent or inadequate plans. Assessing change through litigation and legislation, this
Article advocates a mixed approach, using judicial and legislative remedies for the
abhorrent violations of well-established prisoners’ rights. The Article recommends
that states develop mechanisms, such as emergency courts, to enable the administration of justice to resume promptly following serious natural or man-made
disasters. Prisons and courts should internalize the lessons of Hurricane Katrina,
which demonstrated the consequences of inadequate preparation and planning for
prisoners’ safety during and after a major emergency.
†
© 2008, Ira P. Robbins. All rights reserved.
*
Barnard T. Welsh Scholar and Professor of Law and Justice, American University,
Washington College of Law. A.B., University of Pennsylvania; J.D., Harvard University. The
author is grateful to Molly Bruder, Louis Dennig, Douglas Fischer, Michael Golub, Erica
Harvey, Eugene Ho, Lonnie Klein, Nicholas McGuire, Sara Steele, Kelli Stephenson, and
Alisa Tschorke for their excellent research and editorial assistance, and to the American
University Law School Research Fund for providing financial support.
1
Electronic copy available at: http://ssrn.com/abstract=1300971
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Introduction
As the American citizenry continually gains awareness of the
likelihood of natural disasters, terrorist attacks, and other emergencies, as well as the serious consequences of government
inaction, a strong movement urging emergency preparedness has
grown.1 The importance of this movement is undeniable, but as is
often the case, the interests of one subset of Americans—
prisoners—have been largely ignored in the conversation. Emergency preparedness is a topic of particular relevance in the
correctional context because, unlike other Americans, prisoners
have been deprived of their ability to care for themselves. When
prisoners’ safety is not planned for, the results are both tragic and
unconstitutional.
Hurricane Katrina provides an illustration of how inadequate
emergency planning can lead to unnecessary suffering and death.
The Orleans Parish Prison (OPP),2 for example, had inadequate or
nonexistent emergency plans for ensuring prisoners’ safety when
3
Katrina struck. Consider the story of Tyrone Lewis, an inmate with
1.
The federal government in particular has strongly promoted emergency preparedness programs through the Department of Homeland Security and one of its
components, the Federal Emergency Management Agency (FEMA). See About Ready,
http://www.ready.gov/america/about/index.html (last visited Aug. 28, 2008); FEMA, Plan
Ahead, http://www.fema.gov/plan/index.shtm (last visited Aug. 28, 2008) (providing
preparation advice for many kinds of emergencies, from nuclear explosions and terrorist
attacks to earthquakes and landslides). The government provides extensive emergency information on a variety of subject matters, such as how to care for pets during an emergency
and how to protect business records. FEMA, Information for Pet Owners, http://
www.fema.gov/plan/prepare/animals.shtm (last visited Aug. 28, 2008); FEMA, Protect Your
Property or Business from Disaster, http://www.fema.gov/plan/prevent/howto/index.shtm
(last visited Aug. 28, 2008). While all of this information is valuable, with so much attention
paid to the details of emergency planning it is problematic that the federal government has
not focused more on preparing correctional institutions for emergencies.
2.
Despite its name, OPP primarily serves the function of a county jail. Before Hurricane Katrina, on average sixty percent of OPP’s population had been arrested on
“attachments, traffic violations, or municipal charges—typically for parking violations, public drunkenness, or failure to pay a fine.” Eric Balaban & Tom Jawetz, Abandoned &
Abused: Orleans Parish Prisoners in the Wake of Hurricane Katrina 13 (2006),
available at http://www.aclu.org/pdfs/prison/oppreport20060809.pdf. The ACLU published a subsequent report detailing the problems examined in Abandoned & Abused.
ACLU, Broken Promises: 2 Years After Katrina (2007), available at http://www.aclu.org/
pdfs/prison/brokenpromises_20070820.pdf [hereinafter Broken Promises].
3.
The extent of emergency planning at OPP prior to Hurricane Katrina is unknown,
because OPP officials provided only a two-page, undated document entitled “Orleans Parish
Criminal Sheriff’s Department Hurricane/Flood Contingency Plan” in response to information requests by the ACLU. Balaban & Jawetz, supra note 2, at 124–26. The Louisiana
Department of Public Safety and Corrections does not maintain emergency plans for locally
run prisons like OPP. Id. at 139. Nonetheless, it has said it would refuse to turn over such
documents even if it possessed them, citing exceptions to the Louisiana Public Records Act.
Id.
Electronic copy available at: http://ssrn.com/abstract=1300971
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Lessons from Hurricane Katrina
3
a pacemaker. He and his family had complained of inadequate
4
medical attention for a year prior to Katrina. Like other inmates,
Lewis was stuck in OPP for days after Katrina, where he was forced
to stand in chest-high floodwaters for long periods of time and received no sustenance or hydration.5 When Lewis and other inmates
were finally removed from OPP, they stood in the sun for hours
without a chance to rinse off the contaminated floodwaters.6
Three days after Katrina hit, Lewis was transferred to Winn Correctional Center, where Lewis’s cellmate heard him complain of
chest pains.7 The deputy reportedly responded, “Fuck you nigger,
8
we’re not doing shit for you niggers from New Orleans.” Lewis’s
condition deteriorated, but he was not admitted to a hospital for
two weeks; he died three days after admission.9 Lewis’s family did
10
not learn of his death until a month later. In the meantime, Lewis
was laid to rest not by his family, but by prison staff who buried him
at a burial ground for unclaimed prisoner remains.11
Lewis’s story is just one of many tales of pain and suffering from
OPP prisoners. Many OPP inmates were deprived of food and water.12 Others were unable to receive essential medication or medical
13
attention. Some were attacked by their fellow prisoners because
the prison did not have enough guards to watch over the inmates.14
Prisoners were trapped in their cells as floodwaters rose around
4.
Id. at 44.
5.
Id.
6.
Id.
7.
Id.
8.
Id.
9.
Balaban & Jawetz, supra note 2, at 44 (citing Michael Perlstein, Grave Concern,
Times-Picayune (New Orleans), Mar. 12, 2006, at 1).
10.
Id.
11.
Id.
12.
Id. at 39. Although different facilities took (or failed to take) different measures to
feed inmates, it is clear that few inmates were adequately fed or hydrated. Id. In one facility,
there was flooding in the kitchen in which all the food was stored. Id. In another facility,
prisoners were apparently denied food, although prison guards and their families were
given bread and fruit. Id. In a third facility, inmates were told to drink toilet water when they
complained of dehydration and hunger. Id. New Orleans’s Sheriff Marlin Gusman, however,
claims that his staff served more than 20,000 meals a day to prisoners and had enough food
to feed all the prisoners throughout the hurricane. Id. at 72. Inmates have not corroborated
this version of the events.
13.
Id. at 39–40 (stating that, following the storm, many prisoners were deprived of
their HIV medications).
14.
For example, one guard at an OPP facility stated, “I couldn’t do a proper security
check to make sure everyone was alright because I was the only one on the floor.” Balaban
& Jawetz, supra note 2, at 45. Many inmates, moreover, reported seeing various fights break
out during the storm. Id. Pearl Cornelia Bland, a prisoner convicted of possession of drug
paraphernalia and who was only one day from her release to a halfway house, was brutally
beaten by a group of female inmates. Id. at 46. Yet, when other prisoners told the guards to
break up the fight, they reportedly declined to help, saying “let them kick her ass.” Id.
Electronic copy available at: http://ssrn.com/abstract=1300971
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them.15 More had to endure abuse from prison guards who were
16
not adequately trained in handling emergency situations. These
harms were as much a result of OPP’s inadequate emergency planning and preparation as the result of the natural disaster itself.
The grounds for asserting the need for prison emergency planning transcend moral concerns (though moral concerns are
obviously present, and important in themselves). This Article
maintains that prison administrators have a constitutional duty to
plan for emergencies and that the failure to create an emergency
plan that ensures “the minimal civilized measure of life’s necessities”17 violates prisoners’ Eighth Amendment rights.18 Prison
officials are legally obligated to protect inmates from serious
threats of harm and to provide food, water, and medical care.19
While natural disasters and other emergencies constrain officials in
their ability to perform some of these duties, the failure to plan for
foreseeable emergencies ignores prisoners’ constitutional rights.
Consequently, administrators can be said to have acted with the
“deliberate indifference” necessary for a court to find an Eighth
Amendment violation.20 Where a court finds a constitutional violation, it may order injunctive relief to ensure that correctional
institutions have a plan to prevent unnecessary suffering and
deaths when a future disaster strikes.
The failure to create adequate prison emergency plans also implicates the Sixth Amendment’s Speedy Trial Clause21 and
15.
Id. at 35 (relating the story of the female inmates at the Templeman II facility who
were forced to remain in their dorm even though it was flooded with four feet of water).
The inmates reported that they were forced to urinate and defecate into the floodwater that
surrounded them. Id.
16.
Id. at 53–54 (recounting how some inmates who inquired about their families or
about getting food were shot with beanbags, beaten, and sprayed with mace).
17.
Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
18.
See infra Part III.A (arguing that a failure to adequately prepare an emergency plan
constitutes deliberate indifference sufficient to establish an Eighth Amendment violation
and to sustain a claim under 42 U.S.C. § 1983).
19.
See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (noting that legislation has codified
the common law principle that “‘it is but just that the public be required to care for the
prisoner, who cannot by reason of deprivation of his liberty, care for himself’” (quoting
Spicer v. Williamson, 132 S.E. 291, 293 (N.C. 1926))).
20.
See generally id. at 104 (establishing deliberate indifference as the requisite state of
mind to find that a prison administrator violated a prisoner’s Eighth Amendment right to
adequate medical care). The deliberate indifference standard has since been held to be the
appropriate test for judging whether prison officials have violated prisoners’ Eighth
Amendment rights in all cases involving conditions of confinement and failure to prevent
harm to inmates. Wilson v. Seiter, 501 U.S. 294, 303 (1991).
21.
U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial . . . .”).
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Lessons from Hurricane Katrina
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fundamental human rights concerns.22 Inadequate emergency
plans often mean that prisoners awaiting trial are forced to wait
23
months, and maybe years, after a disaster strikes. If emergency
planning can ensure prompter trials through better record preservation and communication, as well as through procedures to keep
the courts open, then such planning should be required as a matter of policy.
Moreover, although it is not necessarily binding legal authority,
international human rights law also supports the practice of emergency planning in correctional institutions to prevent human
rights violations, even in extraordinary circumstances.24 The United
Nations Standard Minimum Rules for the Treatment of Prisoners,
for example, requires not only that prisoners receive adequate
food, water, and medical care,25 but also that institutional personnel and leaders be trained and tested regarding their abilities to
operate a penal institution humanely and safely.26
Finally, inadequate emergency plans for prisons may also
27
threaten the rights of outsiders.
Part I of this Article examines emergency planning at the Or28
leans Parrish Prison prior to Hurricane Katrina. This Part
questions whether plans were in existence prior to Hurricane
Katrina, and argues that, even assuming plans were in place, they
were inadequate because they lacked a specific command structure
22.
See infra Part III.C (arguing that the lack of emergency planning contravenes established international human rights standards).
23.
See infra notes 352–54 and accompanying text (indicating the varying lengths of
time that some detainees awaited trial).
24.
Cf. George E. Edwards, International Human Rights Law Violations Before, During, and
After Hurricane Katrina: An International Law Framework for Analysis, 31 T. Marshall L. Rev.
356 (2006) (cataloging international human rights law, both binding and non-binding upon
the United States, that can be used to analyze the rights that were violated in the aftermath
of Hurricane Katrina).
25.
Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955
by the First U.N. Congress on the Prevention of Crime and the Treatment of Offenders,
U.N. Doc. A/CONF/6/1, annex I, approved by E.S.C. Res. 663C, U.N. ESCOR, 24th Sess.,
Supp. No. 1 at 11, U.N. Doc. E/3048 (July 31, 1957), amended by E.S.C. Res. 2076, U.N.
ESCOR, 62d Sess., Supp. No. 1 at 35, U.N. Doc. E/5988 (May 13, 1977), available at
http://www.unhchr.ch/html/menu3/b/h_comp34.htm [hereinafter SMRs].
26.
Id. arts. 46–47, 50.
27.
The lack of proper plans endangers public safety because inmates may escape.
Without adequate planning to preserve the institution’s records and to ensure that there are
sufficient personnel to apprehend escapees, the public is put at great risk. When Hurricane
Katrina struck OPP, for example, the prison staff could not contain all of the inmates. The
sheriff’s office issued fourteen fugitive arrest warrants for possible escapees. See Michael
Perlstein, Fourteen Escape Prison in Katrina Chaos: Gusman Originally Claimed All Accounted For,
Times-Picayune (New Orleans), Nov. 19, 2005, at 1.
28.
See infra Part I (contending that OPP’s emergency plan, if it existed, was insufficient to deal with a disaster of the magnitude of Hurricane Katrina).
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and were insufficiently flexible to adapt to a broad range of emer29
gencies. As a point of comparison, Part I considers the Nebraska
Emergency System, which is an example of a comprehensive, flexible emergency plan.30
Part II discusses prison emergency preparation and response in
31
prisons in general. Emergency preparation has substantially expanded in recent years, but the importance of emergency training,
drills, and exercises, coupled with the resources now available to
prisons, heighten the need for prison administrators to continue to
increase their efforts in preparing for emergencies.32 Further, the
threat of terrorist activity adds to the natural emergencies that
could affect prisons and prisoners.
Part III argues that failure to plan adequately for emergencies
such as Hurricane Katrina implicates the Sixth and Eighth
Amendments, as well as international human rights standards.33
This Part claims that inadequate emergency planning constitutes
an Eighth Amendment violation, and likely gives prisoners a valid
cause of action under 42 U.S.C. § 1983. Further, the Sixth
Amendment and human rights concerns support a requirement of
emergency plans in prisons.34 Part III also considers how Hurricane
Katrina implicated the Speedy Trial Act.
Part IV of the Article makes recommendations on how prison
emergency planning should be promoted, or required, through
spreading public awareness, adjudication, legislation, and regulation.35 This Part concludes that a combination of litigation and
legislation is the most effective way to ensure that prison emergency
planning at least meets, and hopefully exceeds, constitutional requirements.36
There are many other issues in the aftermath of Hurricane
Katrina that affect the criminal justice system, but which will not be
29.
See infra Part I.
30.
See infra Part I.B.
31.
See infra Part II (detailing general trends in prison emergency planning, from the
adoption of emergency plans to staff and correctional officer training and drills, in preparation for emergencies ranging from natural disasters to terrorism).
32.
See Jeffrey A. Schwartz & David Webb, Hurricanes Katrina and Rita and the
Louisiana Dept. of Public Safety and Corrections: A Chronicle and Critical Incident Review 82 (2006), available at http://www.abanet.org/crimjust/katrinanicreport.pdf
(finding that Louisiana officials provided insufficient emergency preparedness training to
prison staff).
33.
See infra Part III (explaining the standards for prisoner claims under 42 U.S.C.
§ 1983, the Eighth Amendment, and the Sixth Amendment, and applying these standards to
the situation in OPP following Hurricane Katrina).
34.
See infra Part III.
35.
See infra Part IV.
36.
See id.
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addressed in this Article. Some of these issues include race and
37
class, and the lack of help provided to these citizens.
Generally, this Article argues that prison administrators have
both a legal and a moral obligation to create plans to ensure prisoners’ safety during emergency situations. This obligation includes
planning for prisoners to receive basic sustenance and medical
care, as well as ensuring that pre-trial detainees receive their trials
as soon as the circumstances allow. Thus, this Article does not argue for a radical advancement of prisoners’ rights, but rather for
the enforcement of established, well-recognized constitutional
rights. In planning for emergencies, we must heed the lessons of
previous disasters and recognize that our plans for adequate relief
must include prisoners’ safety and well-being.
I. Preparing for Hurricane Katrina
A. “There Was No Plan for This Situation.” 38
At a press conference on the morning of Sunday, August 28,
2005, New Orleans Mayor C. Ray Nagin declared the city’s first ever
39
mandatory evacuation. Nearly every person who remained in the
city was ordered to leave immediately.40 Among those excluded
from the evacuation were the “[e]ssential personnel of the Orleans
41
Parish criminal sheriff’s office and its inmates.” When a reporter
asked Mayor Nagin about the decision not to evacuate the OPP
prisoners, he deflected the question to Sheriff Marlin N. Gusman,
who commented, “[W]e have backup generators to accommodate
any power loss. . . . We’re fully staffed. We’re under our emergency
operations plan. . . . [W]e’ve been working with the police department—so we’re going to keep our prisoners where they
belong.”42
37.
See Broken Promises, supra note 2, at 11–16 (arguing that “countless race-based
attacks on . . . civil and human rights” have interfered with the recovery process from Hurricane Katrina in Louisiana, and that the process has demonstrated the continued existence
of race and class divisions in the United States).
38.
Balaban & Jawetz, supra note 2, at 25 (quoting Deputy Luis Reyes).
39.
Id. at 19.
40.
See CNN Breaking News: New Orleans Mayor, Louisiana Governor Hold Press Conference
(CNN television broadcast Aug. 28, 2005), available at http://transcripts.cnn.com/
TRANSCRIPTS/0508/28/bn.04.html (quoting Mayor Nagin, who listed exceptions to the
evacuation order).
41.
Id.
42.
Id.
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As the above anecdotes indicate, however, the emergency operations plan about which Sheriff Gusman spoke was either
43
nonexistent, grossly insufficient, or poorly executed. Many OPP
44
deputies abandoned thousands of inmates during the hurricane.45
46
Prisoners were left without food, water, or ventilation for days.
Trapped inside their locked cells,47 many prisoners broke windows
simply in order to breathe.48 Some tried to escape by carving holes
49
into the jail’s granite walls. Others made signs or set fire to bed
sheets to get the attention of rescuers.50 When they were finally
evacuated to other state facilities, conditions deteriorated for some
51
inmates. Thousands of evacuees, for example, were subjected to
rampant prisoner-on-prisoner violence at the Elayn Hunt Correctional Center.52
Approximately a month after Katrina, the American Civil Liberties Union of Louisiana (ACLU) filed a written request asking the
sheriff for a copy of the emergency operations plan.53 The sheriff
54
failed to respond for nearly two months. Human Rights Watch
made similar requests,55 also to no avail.56 The ACLU eventually
sued the sheriff pursuant to the Louisiana Public Records Act,
which requires government officials to answer such requests within
43.
Balaban & Jawetz, supra note 2, at 23.
44.
At the time of the hurricane, there were more than 6,000 inmates at OPP. Richard
A. Webster, Caught Off Guard: OPP Deputies Blame Sheriff for Hurricane Crisis, New Orleans
CityBusiness, Mar. 27, 2006, http://www.neworleanscitybusiness.com/viewStory.cfm?
recID=15123 [hereinafter Caught Off Guard].
45.
See Balaban & Jawetz, supra note 2, at 9. But see Richard A. Webster, Jail Tales: Sheriff Gusman, Prisoners Differ on Storm Evacuation Success, New Orleans CityBusiness, Feb. 20,
2006, http://www.neworleanscitybusiness.com/viewStory.cfm?recID=14735 [hereinafter Jail
Tales] (quoting Sheriff Gusman as saying, “[N]o one abandoned them. I know it may have
seemed long inside but it wasn’t three days because we weren’t there for three days”).
46.
See Jail Tales, supra note 45 (quoting an inmate who said, “We had no water, nothing to eat and no oxygen either. . . . At night we had to burn paper for light and it
smothered us”). But see id. (reporting that Sheriff Gusman said the prison had sufficient
food in storage to feed the entire inmate population during the hurricane).
47.
A number of malfunctioning cells had to be chained shut with handcuffs to prevent inmates from escaping. Caught Off Guard, supra note 44.
48.
Balaban & Jawetz, supra note 2, at 9.
49.
Id.
50.
Id.
51.
Id.
52.
Id.
53.
See Letters from Joe Cook, Executive Director, ACLU of Louisiana, to Various State
and Local Officials, Requesting Documents Pursuant to Louisiana State Law (Sept. 22,
2005), available at http://www.aclu.org/FilesPDFs/state%20foia%20letters.pdf.
54.
Balaban & Jawetz, supra note 2, at 25.
55.
See, e.g., Letter from Jamie Fellner, Director, U.S. Program, Human Rights Watch,
to Sheriff Marlin N. Gusman (Oct. 8, 2005), available at http://hrw.org/english/docs/
2005/10/08/usdom11907.htm.
56.
Balaban & Jawetz, supra note 2, at 98 n.41.
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three business days.57 The sheriff’s attorney, Allen Usry, wrote to
the ACLU, “All documents re[garding] evacuation plans were un58
derwater—can’t find any now.”
Multiple deputies at the OPP, however, attest that there were no
59
evacuation plans in place at the time of the hurricane. Christina
Foster, a deputy in the House of Detention for more than two-anda-half years, said she knew of no evacuation plan other than the
fire escape plan displayed on the walls of the jail.60 She also stated
that there was barely enough food and water for the guards, much
less for the prisoners.61 Another OPP deputy who joined the sheriff’s office in 2002 echoed similar sentiments:
[There was] no training for emergencies in the training back
in 2002. . . . Initial training for deputies went on for like three
months. We had a 90-hour course, and then we went to work
and to academy class at the same time. We didn’t even have
fire drills. Only way we knew about fire exits is because they
62
had posters on the wall, but no one ever told us.
Deputy Luis Reyes, who spoke to a reporter shortly after the
evacuation, said prisoners in the Community Correctional Center
“had been escaping throughout the night because we were so
63
shorthanded. . . . There was no plan for this situation.”
While claiming that all evacuation plans were destroyed by the
water, the sheriff provided the ACLU with a document entitled,
“The Orleans Parish Criminal Sheriff’s Office Hurricane/Flood
Contingency Plan.”64 Because the document is undated, the ACLU
suspects that it was hastily prepared in the weeks following the pub65
lic records request. Nevertheless, even if the plan existed at the
time of the hurricane, its shortcomings are so considerable that,
according to the ACLU, “it would have been of little use even if it
66
had been executed to perfection.”
57.
Id. at 25.
58.
Orleans Parish Criminal Sheriff’s Office, Hurricane/Flood Contingency Plan (undated) and Handwritten Notation by Orleans Parish Prison Attorney Allen Usry on Letter
from Joe Cook, Executive Director, ACLU of Louisiana, to Sheriff Marlin N. Gusman (Sept.
21, 2005), available at http://www.aclu.org/images/asset_upload_file879_22359.pdf [hereinafter Usry Notation], cited in Balaban & Jawetz, supra note 2, at 25.
59.
Balaban & Jawetz, supra note 2, at 25.
60.
Id.
61.
Id. at 33.
62.
Id. at 25.
63.
Id.
64.
Usry Notation, supra note 58.
65.
Balaban & Jawetz, supra note 2, at 25.
66.
Id.
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The deficiencies of the purported OPP emergency operations
67
plan are symptomatic of a larger departmental failure. The
Louisiana Department of Public Safety and Corrections (“the Department”) did not have a comprehensive emergency system.68
Parts of the system were missing, while the parts that did exist often
69
did not complement one another. Consequently, during the hurricane, prison officials generally ignored the existing emergency
plans and instead relied on their own experience and common
sense to deal with the crisis.70 The leadership and bravery of many
prison officials should be commended, but there is no question
that a more comprehensive system would have better prepared
them for the emergency.71
One could argue that no emergency plan, no matter how extensive, could have anticipated the magnitude of an event like
Hurricane Katrina.72 Although there is some truth to this statement—as surely there were some things that occurred during the
73
hurricane that no emergency plan would have foreseen —in many
ways this is always the case.74 No two emergencies are exactly alike.75
Emergency plans are not meant to account for every single contin76
gency. Rather, the purpose of an emergency plan is to provide an
organizational foundation and structure for the prison’s response,
from which prison officials can extrapolate general principles and
apply them to the specific situation at hand.77
67.
See Schwartz & Webb, supra note 32, at c (2006) (explaining that emergency
readiness is insufficient at both the departmental and institutional levels).
68.
Id. at 78.
69.
Id.
70.
Id. at 61.
71.
See id. at 78 (arguing that the Department’s “existing emergency plans could be
substantially stronger and more useful”).
72.
See id. at 79.
73.
For example, the Elayn Hunt Correctional Institute (EHCI) was asked at one point
“to come up with a cemetery for emergency burials” within twenty-four hours. Id. at 25; see
also id. at 81. The EHCI, however, did not have an emergency plan that included contingencies for establishing a cemetery. Id. The plans were therefore scrapped. Id. at 25.
74.
Jeffrey A. Schwartz & Cynthia Barry, National Institute of Corrections,
A Guide to Preparing for and Responding to Prison Emergencies 272–74 (2005), available at http://www.nicic.org/pubs/2005/020293.pdf [hereinafter NIC Guide] (stating that a
helicopter intrusion and escape from a prison in Colorado gave rise to unanticipated problems, such as using search vehicles to hunt down a helicopter).
75.
See Schwartz & Webb, supra note 32, at 79; NIC Guide, supra note 74, at 204.
76.
See Schwartz & Webb, supra note 32, at 79.
77.
See NIC Guide, supra note 74, at 205 (“[T]he challenge is to find common elements that make it possible to generalize across crisis situations so that policy, procedure,
equipment, and training can be developed and meaningfully applied.”); see also Schwartz
& Webb, supra note 32, at 79 (noting that plans were not used as a foundation during Hurricane Katrina).
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One significant flaw in the Department’s emergency system is
that it uses an outmoded approach to emergency planning: differ78
ent plans are created for different types of emergencies and plans
79
differ among institutions. The Louisiana approach to emergency
planning stands in contrast to the approach that most state Departments of Corrections (DOCs) now use. The standard approach
is characterized by a single, generic emergency plan with “offshoots” for the various kinds of emergencies and different
institutions.80 The plan for one kind of emergency often is not
practical for another kind of emergency.81 Further, the plan for a
particular emergency may be effective given one institution’s capa82
bilities, but substantially less realistic given another. The “all risk”
approach, however, standardizes the organization, format, and
style of emergency plans to create consistency among plans and
institutions, and ultimately engenders better preparation and efficiency.83 For example, if, during an emergency, prison staff
members from one institution are needed at another institution to
help implement the plan, they will be able to do so with the least
disruption.84
The Department, moreover, does not use any specific command
85
structure for emergencies. Instead, it relies on the same organizational structure that operates the prison on a day-to-day basis.86 As a
result, during an emergency, there is significant risk of confusion
87
regarding who is in command. During Hurricane Katrina, for example, while it was clear that Secretary Richard L. Stalder was the
person in charge of the Department, with the Chief of Staff second
in line, it was not clear who would exercise command if neither of
these officials could be reached.88 While this confusion did not
89
cause a serious problem, the potential clearly existed.
The Department’s emergency plans are also overly “personspecific” and “position-specific.”90 Institutional plans will frequently
specify that a particular assistant warden will fulfill one role in an
78.
Schwartz & Webb, supra note 32, at 78.
79.
Id.
80.
Id. at 78–79.
81.
See id. (asserting that there are many problems with having different plans for different kinds of emergencies).
82.
Id. at 79.
83.
Id.
84.
Schwartz & Webb, supra note 32, at 83.
85.
Id. at 79.
86.
Id.
87.
See id. at 79–80.
88.
Id.
89.
Id. at 80.
90.
Schwartz & Webb, supra note 32, at 80.
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emergency, while another key administrator will fill another role.91
During an actual emergency, however, if several or all of the top
administrators are unavailable, the plans do not specify who should
fill their roles.92 It is also unclear whether other individuals even
have the competence to fill their roles, as those key administrators
are often the only people who have been adequately trained for
their positions.93
B. Point of Comparison: The Nebraska Emergency System
The deficiencies of the Louisiana Department of Public Safety
and Corrections (LDPS&C) Emergency System become especially
evident when compared with emergency systems from around the
94
country. Consider the Nebraska Emergency System, one of the
more sophisticated systems in the nation. Unlike the LDPS&C system, the Nebraska system employs a single, generic plan that can
be used for any type of emergency.95 Once the emergency is identified, the commander then uses a specific incident plan that
96
supplements the general plan. Specific incident plans consist of a
series of checklists that are used before, during, and after an emergency to ensure that the most important steps are not forgotten
during the crisis.97
If an institution chooses to evacuate, the Nebraska system has a
comprehensive set of detailed policies in place for both the evacuating and receiving institutions.98 For example, the policies include
information on how many beds are available at each institution
and what type of prisoners the respective facilities are capable of
handling, such as whether an institution is capable of housing
prisoners with special needs.99 Nebraska’s system also prepares all
institutions to “defend in place” if they choose not to evacuate.100
91.
Id.
92.
Id.
93.
Id.
94.
See Balaban & Jawetz, supra note 2, at 27 (asserting that “[t]he problems with the
[OPP Emergency] Plan become even starker when the plan is compared with emergency
preparedness systems from other state prison and jail systems”).
95.
E-mail from Brad Hansen, Emergency Management Supervisor, Nebraska Department of Correctional Services, to Eugene Ho, American University, Washington College of
Law (Jan. 26, 2007, 05:00:00 EST) (on file with author).
96.
See NIC Guide, supra note 74, at EP-1 to EP-72 (providing a sample emergency
preparedness self-audit checklist).
97.
E-mail from Brad Hansen, supra note 95.
98.
Balaban & Jawetz, supra note 2, at 27.
99.
Id.
100. Id.
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Warehouses, for instance, are required to stock thirty days worth of
101
essential provisions.
The Nebraska Department of Correctional Services, unlike the
LDPS&C, employs an Emergency Management Supervisor, whose
principal duty is to ensure that all DOC facilities are prepared to
respond to emergencies. More specifically, the Emergency Management Supervisor manages the development of emergency
response and emergency incident plans, ensures that these plans
are reviewed and revised annually, develops and conducts emergency drills and exercises to test staff response, makes certain that
the Central Office Staff and Institutional Staff are adequately
trained, and supervises the Department’s emergency response
teams, including the Special Operations Response Team (SORT),
the Correctional Emergency Response Team (CERT), and the Crisis Negotiation Team (CNT).102 Brad Hansen, Nebraska’s current
Emergency Management Supervisor, knows of only three other
states—Kansas, New Mexico, and Washington—that have an Emergency Management Supervisor or similar position.103
It is important to note that the Nebraska DOC bases its emergency system on Law Enforcement Training and Research
104
Associates, Inc.’s (LETRA) Emergency Preparedness for Correctional
Institutions program, also used in Arkansas, Idaho, Iowa, Kansas,
Kentucky, Montana, New Hampshire, Oregon, Pennsylvania, South
Carolina, Vermont, and Wyoming.105 The program is a thirty-two
hour, four-day, hands-on course specifically designed for prison
and jail officials and administrators to plan for and cope with
emergency situations.106
II. Emergency Preparation and Response in
Prisons Generally
Emergency preparedness has come a long way in the last decade
107
and a half. Fifteen years ago, less than one-third of state departments of corrections had any kind of serious emergency
101. Id.
102. E-mail from Brad Hansen, supra note 95.
103. Id.
104. LETRA is a small non-profit organization in Campbell, California.
105. LETRA, Inc., Emergency Preparedness for Correctional Institutions: Reading Assignment: Introduction, Philosophy, Goals, Policy A1 (2004).
106. LETRA, Inc., Emergency Preparedness for Correctional Institutions:
Overview 4 (1997). This training is discussed in more detail in the Recommendations section of this Article. See infra Part IV.
107. See NIC Guide, supra note 74, at 198–99.
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preparation system.108 By contrast, a recent survey conducted by the
National Institute of Corrections (NIC) suggests that this figure is
109
now between seventy percent and eighty-five percent. Moreover,
fifteen years ago, nearly every prison that had an emergency system
used the then-conventional approach to emergency planning:
separate plans were developed for different kinds of emergencies.110 Now the general trend is toward using a single generic plan,
111
which is then supplemented by appendices. The advantages of
112
using a single generic plan are vast. It is easier, for example, to
train prison staff for one plan, as opposed to six or eight.113 A single
generic plan is also less cumbersome and thus more “user friendly”
114
than six or eight separate plans.
Despite the clear improvements in prison emergency prepared115
ness nationwide, serious problems remain. Emergency training,
both initial and refresher, remains an area of concern, particularly
at the new recruit level.116 In addition, evidence suggests that many
state DOCs do not take emergency drills and exercises seriously
117
enough. Finally, most state DOC preparations for potential terrorist attacks have been largely inadequate.118
A. Emergency Training
No matter how practical and well-thought-out an emergency
plan may be, its chances of being executed effectively are slim if
prison personnel, both at the new recruit level and at the middle
119
and more senior levels, are not adequately trained in the details.
Prison staff members must have a clear understanding of the specific procedures required of them if an emergency plan is to
108. Id. at 198.
109. Id.
110. Id. at 199; see supra notes 79–80 and accompanying text.
111. NIC Guide, supra note 74, at 186.
112. Id.
113. Id.
114. LETRA, Inc., supra note 106, at 2.
115. NIC Guide, supra note 74, at v (stating that, to this day, emergency preparedness is
often not afforded the priority that it deserves).
116. See id. at 190 (“The findings on emergency preparedness training for new recruits
are discouraging.”).
117. See id. at 199.
118. See id. at 199–200 (stating that it is unclear whether most DOCs are just slow to respond in the wake of September 11th or simply do not think terrorism is “a prison issue”).
119. See, e.g., id. at 268 (asserting that the quality of the emergency plans at the Southern Ohio Correctional Facility was irrelevant, as “staff had not been trained in them and did
not know them”).
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succeed.120 Moreover, training often serves the integral role of developing strong leadership skills, a necessity in situations in which
121
decisions must be made quickly and authoritatively. Unfortunately, the results of the NIC survey demonstrate that, while many
departments are taking appropriate steps to train at the middle
and upper management levels, there are still significant deficiencies in emergency preparedness training at the new recruit level.122
In the last three or four decades, the sophistication of recruit
123
academy training has improved dramatically. Twenty-five to thirtyfive years ago, some departments provided new recruits with no
124
pre-service training whatsoever. Instead, learning occurred only
125
on the job. Now pre-service training is fairly extensive, including
an average five-and-a-half-week recruit academy program.126 Within
these five-and-a-half weeks, however, typically less than three percent of the program (i.e., six hours) is devoted to emergency
preparedness training.127 It is hard to imagine a new recruit understanding, in just six hours, the level of detail essential to effectively
implement the procedures that are required in all of the different
kinds of emergency situations.128
New recruit in-service training is also lacking in many depart129
ments. The results of the NIC survey reflect three different
approaches to in-service training of general staff.130 Some departments devote substantial time, from eight to sixteen hours, to an
initial in-service emergency training program, which is supplemented with refresher training that ranges from four to eight
120. See id. (“Inevitably, staff found themselves trying to invent emergency response
procedures and strategies in the midst of the crisis.”).
121. See, e.g., NIC Guide, supra note 74, at 286 (summarizing the lessons learned from
the riot at the maximum-security compound of the Montana State Prison, and stating that
“[s]trong leadership from the person in charge may be the most important need during a
major prison emergency”).
122. See id. at 190.
123. See id. (asserting that state corrections has become increasingly professional, as indicated by the development of “rigorous standards for personnel and training”).
124. Id.
125. See id. (stating that older prison staff members remember receiving a set of keys on
their first day of work and being told to “be careful while you’re figuring it out”) (internal
quotation marks omitted).
126. Id.
127. See NIC Guide, supra note 74, at 190 (reporting that the average length of a recruit
academy is 213 hours and the average time spent on general emergency preparedness is six
hours).
128. Id.
129. See id. at 190–91 (explaining that many departments devote an hour or less each
year to in-service emergency preparedness training).
130. Id.
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hours annually.131 A second approach devotes minimal time to an
initial block of training but from two to four hours to annual in132
service training. Finally, some departments devote little to no
time, one hour or less, to any kind of in-service training, initial or
133
134
refresher. Far too many departments fall into this last category.
To the credit of most DOCs, emergency training at the middle
and upper management levels is generally encouraging.135 The majority of departments responding to the NIC survey provide
additional refresher training to prison staff at these levels; this
training is particularly important because these staff members of136
ten serve as shift commanders. Shift commanders are in charge of
the institution during nights and weekends; they often find themselves suddenly in command when an unexpected crisis occurs.137 It
makes sense, therefore, that these staff are provided with additional
138
training (generally at least two hours annually). Some departments
not only provide this additional training, but also specifically tailor
139
the training to reflect the increased responsibilities.
B. Emergency Drills and Exercises
Emergency drills and exercises are invaluable for emergency preparedness. Yet the NIC survey reveals that many departments fail to
140
engage in a systematic program of drills and simulations. One reason this may be the case is that institutions often believe there are
more pressing day-to-day needs than emergency drills. This is a dangerous rationale, however, for several reasons. First, it assumes that
prisons rarely implement their plans. Yet in the recent past, prisons
have had to respond to prison escapes,141 natural disasters,142
131. Id.
132. Id. at 191.
133. NIC Guide, supra note 74, at 191.
134. See id. (stating that of the thirty state DOCs responding to the survey, more than a
quarter fell into this category).
135. Id.
136. Id.
137. Id.
138. NIC Guide, supra note 74, at 191.
139. Id.
140. Id. at 199.
141. See, e.g., id. at 271 (describing a 1989 incident at the Arkansas Valley Correctional
Facility near Ordway, Colorado, where a helicopter landed on the ball field of the prison’s
main recreation yard and carried away two inmates, with little resistance from prison officials).
142. See, e.g., id. at 289 (discussing how floods in 1993 forced the Missouri DOC to
evacuate inmates at the Renz Correctional Center, a process that took two days but was accomplished without violence, injuries, or escapes). At Dade Correctional Institution in
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large-scale prison riots,143 and hostage situations.144 Second, this belief does not take into account the relative safety risk that being illprepared for an emergency will entail. Widespread inmate violence
or a natural disaster can threaten the lives of thousands of institutional staff and inmates. Finally, this belief fails to consider how
critical emergency drills are to emergency preparedness. Notwithstanding the comprehensiveness of an emergency plan, an
institution can truly know whether all parts of the plan are practical only by testing the plan.145 Moreover, emergency drills serve the
critical role of helping prison staff members become comfortable
146
with the procedures.
All DOCs responding to the NIC survey stated that they conduct
some sort of fire drills, either timed evacuations or staff walkthroughs.147 Institutions generally carried out all fire drills as actual
timed-evacuation drills, except in restricted or segregation housing
units (i.e., high-security areas).148 Presumably, safety is the reason
149
for this procedural difference. But staff walkthroughs are not as
effective as actual evacuations. It is not until a real evacuation is
conducted that prison administrators can discover problems with
plans that otherwise exist only on paper.150 While the safety risks are
undoubtedly significant in high-security areas, these risks can be
abated by using extra staff or engaging in additional planning.151
Moreover, when asked whether they conduct emergency exercises on each shift, more than half of the responding departments
answered “no” or did not respond.152 This suggests that prison
Florida, approximately 1,000 inmates were successfully evacuated to other state institutions
just hours before Hurricane Andrew hit. Id. at 319–20.
143. See, e.g., id. at 261 (detailing an eleven-day prison riot at the Southern Ohio Correctional Facility in Lucasville, Ohio that involved almost 2,000 law enforcement and
National Guard troops). In 1991, a riot at the maximum security Montana State Prison resulted in five inmate deaths and several other serious injuries. Id. at 277.
144. See, e.g., Jeffrey A. Schwartz & Dennis Luther, Hostage Incident at the
Delaware Correctional Center 1 (2005) (summarizing a situation in Smyrna, Delaware,
where an inmate took a young female correctional counselor hostage and raped her before
being shot to death by a DOC CERT team).
145. See NIC Guide, supra note 74, at 275 (noting that communications systems often
are not adequately tested until “after a serious incident in which communications proved to
be a major barrier”).
146. Id. at 252.
147. Id. at 191–92.
148. Id.
149. See id. at 192.
150. NIC Guide, supra note 74, at 192.
151. See id. at 191–92 (reporting that some administrators feel strongly that there is no
replacement for actual time evacuations, and thus they use these methods to conduct
evacuation drills in high-profile areas).
152. Id. at 192.
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administrators do not run drills during the night or weekend
153
shifts. Emergencies, however, can strike at any time, during any
shift. In fact, the tendency is for these events to occur at night and
on the weekends.154
C. Planning for Terrorism
In the last decade or so, events such as the September 11 attacks
on the World Trade Center and the Pentagon, the subsequent anthrax scares, the 2004 Madrid train bombings, and the 2005
London bombings have revealed challenges that American correc155
tions never before had to consider. While bomb threats and
other similar types of crises have traditionally been within the pur156
concerns over terrorism and its
view of prison officials,
potentially substantial consequences have changed the way officials
157
must think about exigencies. In this new world, no emergency
preparedness system is complete without comprehensive consideration of counterterrorism response.158
There are several reasons that prisons constitute a potential tar159
get for terrorist attack. First, prisons are densely populated and
the nature of confinement makes it extremely difficult for staff and
160
prisoners to evacuate quickly. Thus, an attack could kill and in161
jure numerous victims.
Second, prisons are symbols of
government authority.162 Terrorists who are seeking to challenge
163
such authority might target these facilities. Third, a terrorist attack on a prison has the potential to cause widespread panic.164
153. See id. at 192–93 (“Emergency drills and emergency plans tend to be written on the
assumption that crises and disasters will strike on the day shift between Monday and Friday,
and prison administrators often operate under the same assumptions.”).
154. Id. at 193.
155. See id. at v (stating that terrorism presents new risks that cannot be ignored).
156. See NIC Guide, supra note 74, at v.
157. See id. at 12 (explaining that the risks associated with terrorism “are quite different
in nature and scope from those posed by more traditional prison emergencies”).
158. See id. at 13 (noting that there is an “urgent need for prisons to gain familiarity
with [terrorism]”).
159. See id. at 242. But see U.S. Department of State, Significant Terrorist Incidents,
1961–2003: A Brief Chronology, http://www.state.gov/r/pa/ho/pubs/fs/5902.htm (last
visited Aug. 28, 2008) (listing significant terrorist attacks between 1961 and 2003). Out of
nearly 250 incidents listed, only one occurred at a prison. Id.
160. NIC Guide, supra note 74, at 242.
161. Id.
162. Id.
163. Id.
164. Id.
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High-security prisoners, if released, would present a grave danger
165
to the community at large.
Most DOCs, however, have not explicitly addressed the potential
danger.166 Indeed, fewer than thirty percent of the departments in
the NIC survey reported any specific policy designed to respond to
167
terrorist threats. This finding stands in stark contrast to the level
of counterterrorism planning in fire and law enforcement depart168
ments. It is unclear whether this lack of attention is because
prisons are slow to react or because they do not believe they need
to react at all.169 The NIC survey did reveal, however, that most of
the responding departments regularly participate in law enforce170
ment-led task forces on terrorism. Hopefully, their involvement
in these task forces will lead to more focused preparation for deal171
ing with terrorism.
The importance of having specific emergency preparedness
procedures for terrorist activities cannot be overemphasized. Absent proper planning and training, prison officials will almost
certainly make poor decisions, no matter how obvious their mistakes may seem to be in hindsight, when under the emotional
stress and time pressures of a terrorist threat.172 Institution officials
cannot expect (nor can they be expected) to figure out on the spot
how to respond most effectively,173 especially when their facility’s
general emergency preparedness plan will likely be insufficient.
For example, the medical services plan of a prison’s general emergency plan will probably not take into account a terrorist attack’s
174
potential for mass casualties. Furthermore, the unique nature of
an event such as a biological or chemical attack may require prison
officials to implement special procedures not necessary in a conventional emergency.175
Although prison emergency planning presents grave challenges
to prison officials, awareness of the issue is growing, and the
165. Id.
166. NIC Guide, supra note 74, at 199–200.
167. Id. at 198.
168. Id.
169. Id. at 199–200.
170. Id. at 200.
171. See id.
172. NIC Guide, supra note 74, at 248.
173. Id.
174. Id. at 250.
175. See id. (“If onduty staff at a prison found people sick or dying and suspected
chemical or biological contaminants, would any of them know how to contact the nearest
HAZMAT team?”).
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resources that are now available to administrators make overcoming these challenges more possible than ever before.
III. Legal and Moral Issues in Prison
Emergency Preparedness
A. Emergency Preparedness and the Eighth Amendment
This Part argues that, despite recent cases urging judicial restraint in prisoners’ rights lawsuits, Eighth Amendment litigation is
a potentially successful way to ensure that prison officials plan adequately for emergencies in their facilities.176 The goal of this Part is
to demonstrate how an inmate could present such a lawsuit successfully. The constitutional argument is framed within the story of
the Orleans Parish Prison during Hurricane Katrina,177 but the
same basic line of reasoning would apply in other emergency
178
planning situations as well.
Courts interpret the Eighth Amendment “in a flexible and dynamic manner,”179 meaning that, when faced with unique factual
scenarios, courts may make varied applications of legal standards
180
to determine whether a prisoner’s rights have been violated. The
Eighth Amendment prohibition on “cruel and unusual punish181
ments” not only prevents “unnecessary and wanton infliction of
182
pain,” but also ensures that prisoners are not deprived of “the
176. See David J. Gottlieb, Wilson v. Seiter: Less Than Meets the Eye, in 1 Prisoners and
the Law 2-33, 2-46 to 2-47 (Ira P. Robbins ed., 2008) (contending that the standard established for conditions-of-confinement challenges in Wilson v. Seiter, 501 U.S. 294 (1991),
provides a viable way to contest the “failure to meet basic human needs” requirement using
the Eighth Amendment, despite how some courts have interpreted Wilson’s holding).
177. It is important to note that, while at least forty prisoner suits relating to postKatrina conditions at OPP have been dismissed, for a variety of reasons these results are not
dispositive in showing that no constitutional violation occurred. See infra note 224.
178. Although Eighth Amendment cases are fact-sensitive, there are commonalities
among many emergency planning situations or disasters that allow application of the lessons
learned from Katrina. See infra Part III.A.1.
179. Gregg v. Georgia, 428 U.S. 153, 171 (1976) (deciding that Eighth Amendment
claims are not limited to protection against “barbarous” methods, but can adapt as the idea
of “humane justice” changes).
180. See Melissa Whish Coan, Comment, Whitley v. Albers: The Supreme Court’s Attempted
Synthesis of Eighth Amendment Standards for Prison Officials, 14 New Eng. J. on Crim. & Civ.
Confinement 155, 159–64 (1988) (explaining that, in Whitley v. Albers, 475 U.S. 312, 327
(1986), the Court applied a wide array of previously used Eighth Amendment law to develop
the standards for an Eighth Amendment case relating to a prison riot). See generally Ira P.
Robbins, Legal Aspects of Prison Riots, 16 Harv. C.R.-C.L. L. Rev. 735 (1982).
181. U.S. Const. amend. VIII.
182. Gregg, 428 U.S. at 173.
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minimal civilized measure of life’s necessities.”183 The inmates of
the OPP suffered many such deprivations during and following
Hurricane Katrina.
When Katrina hit the Gulf Coast, many OPP inmates were de184
Others were denied essential
prived of food and water.
medication or medical attention.185 Some inmates were violently
attacked by other prisoners because the prison had too few guards
186
to watch over the inmates. Prisoners were trapped in their cells as
floodwaters rose around them187 and others had to endure abuse
from prison guards who were not adequately trained to handle
188
emergency situations. These harms were as much a result of
OPP’s inadequate emergency planning and preparation as the result of the natural disaster itself.
Since courts have previously recognized that each of these
harms and risks implicates the Eighth Amendment, inmates could
bring a lawsuit against the prison administration for the constitutional violations suffered.189 The dynamic nature of Eighth
Amendment jurisprudence means that courts should recognize
both the exceptional dangers created by prison emergencies and
the constraints that such emergencies place on prison personnel.190
Of course, prison officials cannot foresee the occurrence of some
emergencies, nor can they necessarily account for every contingency that may occur during an emergency.191 However, many
emergencies, like the ones arising from Hurricane Katrina, are
183. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
184. Balaban & Jawetz, supra note 2, at 39.
185. Id. at 39–40 (relating that, following the storm, many prisoners were deprived of
their daily HIV medications).
186. See supra note 14 and accompanying text.
187. See supra note 15 and accompanying text.
188. See supra note 16 and accompanying text.
189. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (acknowledging that the failure to
protect against harm from other inmates implicates the Eighth Amendment); Whitley v.
Albers, 475 U.S. 312, 327 (1986) (finding that use of excessive force by guards can violate
prisoners’ Eighth Amendment rights); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding
that “deliberate indifference to serious medical needs of prisoners” is an Eighth Amendment violation). Of course, just because the Eighth Amendment is implicated does not
mean that the inmate will succeed in court. He or she still must prove that the defendantofficial had a culpable state of mind. See infra Part III.A.1 (identifying the standard for the
defendant-official’s state of mind as deliberate indifference).
190. See Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (recognizing the “Herculean obstacles” faced by prison administrators, and approving of courts that show both
deference to prison officials’ decisions and a “healthy sense of realism” by acknowledging
the resources and expertise required to operate a prison).
191. See supra notes 72–77 and accompanying text (noting that prison officials must be
able to adapt both plans and training to circumstances).
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192
fairly common, predictable, and actually predicted. Further, the
extensive literature available on emergency planning and the successes of various prison systems in preparing for emergencies
shows that proper planning can significantly reduce the chance
that prisoners’ constitutional rights will be violated.193 Where
emergency planning is so inadequate that the basic needs of prisoners, such as food, water, and medical services, go unfulfilled,
prisoners have a strong argument that prison administrators have
violated the Eighth Amendment.194
1. The Components of an Eighth Amendment Claim
An inmate who believes that prison officials have violated his or
her Eighth Amendment rights may bring a lawsuit for monetary
damages and injunctive and declaratory relief, pursuant to 42
U.S.C. § 1983.195 Prevailing on such an action rests on showing that
prison officials exhibited deliberate indifference to the prisoner’s
rights.196 Although the deliberate indifference standard originally
applied only to cases involving prisoners’ medical needs, the
197
United States Supreme Court, in Wilson v. Seiter, extended this
standard to actions challenging conditions of confinement198 and
192. See Center for Progressive Reform, An Unnatural Disaster: The Aftermath
of Hurricane Katrina 23 (2005), available at http://www.progressivereform.org/
Unnatural_Disaster_512.pdf (“Although the government will not typically receive prior
notice before a terrorist attack, there is often at least some advance warning of natural disasters, and of hurricanes in particular.”); infra notes 238–39 and accompanying text (noting
that Hurricane Katrina was predicted by weather forecasters and two government agencies).
193. See, e.g., Schwartz & Webb, supra note 32, at 78–81 (describing the situation in
New Orleans prisons during and after Katrina, and finding a general consensus that emergency plans would have made the ad hoc process much more efficient and humane); supra
Part I.B (highlighting the deficiencies of the Louisiana Department of Public Safety and
Corrections Emergency System by comparing it to the Nebraska Emergency System).
194. See infra notes 199–207 and accompanying text (asserting that corrections officials
have a duty under the Eighth Amendment to provide prisoners with humane conditions).
195. 42 U.S.C. § 1983 (2000) (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .”).
196. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
197. 501 U.S. 294 (1991).
198. Id. at 303 (quoting approvingly Justice Powell’s conclusion that, “[w]hether one
characterizes the treatment received by [the prisoner] as inhumane conditions of confinement, failure to attend to his medical needs, or a combination of both, it is appropriate to
apply the ‘deliberate indifference’ standard articulated in Estelle”).
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later to actions based on prison officials’ failure to prevent harm to
199
an inmate.
The deliberate indifference standard has an objective and a subjective component.200 The objective component requires that the
201
constitutional deprivation suffered be “sufficiently serious.”
Where a claim is “based on a failure to prevent harm,” as in the
context of an action challenging an insufficient prison emergency
plan, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”202 This standard was
satisfied where prison officials failed to provide inmates with
203
“prompt access” to mental health treatment. But there was no
Eighth Amendment violation where a prisoner’s claim that doublecelling had harmed inmates was unsubstantiated by any facts
showing that the practice had caused “serious injury.”204
Even in the face of sufficiently serious harm, courts have conditioned prison officials’ liability for violating the Eighth
Amendment on a showing of a culpable state of mind. Without
such a showing, the harm suffered by the prisoner is not considered to be a punishment and, therefore, is outside the bounds of
the Cruel and Unusual Punishments Clause.205 Judicial interpretations of the state of mind component of the deliberate indifference
standard have been far from uniform.206 Some of the variations in
applying the standard are determined by how the plaintiff or the
207
court characterizes a specific challenge. For example, if an inmate challenges the prison officials’ decision to use force on an
inmate population, then courts will allow great deference to the
officials and impose liability only where they did not act in good
faith or acted for the “purpose of causing harm.”208 In the context
199. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
200. Wilson, 501 U.S. at 298 (characterizing the objective and subjective components of
an Eighth Amendment claim, respectively, as whether the deficiency was “sufficiently serious” and whether the official’s state of mind was “sufficiently culpable”).
201. E.g., Farmer, 511 U.S. at 834 (1994).
202. Id.
203. Coleman v. Wilson, No. CIV S-90-0520, 1994 U.S. Dist. LEXIS 20786, at *41 (E.D.
Cal. June 6, 1994).
204. Rhodes v. Chapman, 452 U.S. 337, 368 (1981).
205. See, e.g., Wilson, 501 U.S. at 300 (“If the pain inflicted is not formally meted out as
punishment by the statute or the sentencing judge, some mental element must be attributed
to the inflicting officer before it can qualify.”).
206. See Gottlieb, supra note 176, at 2–44 to 2–45 (evaluating applications of the deliberate indifference standard and approving those that do not wholly abandon objective
standards for judging officials’ awareness of a risk, while criticizing Seventh Circuit Judge
Frank Easterbrook’s transformation of the standard into “a purely subjective one”).
207. See id. (explaining that cases involving persistent prison conditions satisfying the
deliberate indifference test are easier to prove than cases involving isolated events).
208. Whitley v. Albers, 475 U.S. 312, 320–21 (1986).
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of a claim challenging conditions of confinement,209 however,
courts have held that prison officials have a “sufficiently culpable
210
state of mind” when the plaintiff can demonstrate that the officials were aware of an “excessive risk to inmate health or safety”
211
and failed to take reasonable measures to abate that risk. Deliberate indifference to inmates’ health needs can be shown not only
where an individual inmate is denied access to medical attention,
but also where the state has failed to provide inmates with care that
is reasonably designed to meet their emergency medical needs.212
The Supreme Court has vaguely set the parameters for deliberate indifference by stating that it “entails something more than
mere negligence,” but “is satisfied by something less than acts or
omissions for the very purpose of causing harm or with knowledge
that harm will result.”213 More specifically, “the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.”214 Thus, the Court has concluded that “subjective recklessness as used in . . . criminal law” is “the test for ‘deliberate
indifference’ under the Eighth Amendment.”215 And, if an
Eighth Amendment plaintiff presents evidence showing that a
substantial risk . . . was “longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past,
and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the
risk and thus ‘must have known’ about it, then such evidence
could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk.”216
But it still “remains open to the [prison] officials to prove that they
217
were unaware even of an obvious risk to inmate health or safety.”
Prison officials can also defend against an Eighth Amendment
209. The “very high state of mind prescribed by Whitley does not apply to prison conditions cases.” Wilson, 501 U.S. at 302–03.
210. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994) (defining the state of mind as
“ ‘deliberate indifference’ to inmate health or safety”); Wilson, 501 U.S. at 302–03 (explaining that cases challenging prison conditions require assessment of prison official’s state of
mind and that the deliberate indifference standard must be met to establish culpability).
211. Farmer, 511 U.S. at 837.
212. Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980).
213. Farmer, 511 U.S. at 835 (citing Estelle v. Gamble, 429 U.S. 97 (1976)).
214. Id. at 837.
215. Id. at 839–40.
216. Id. at 842–43 (quoting Brief for Respondents, at 22).
217. Id. at 844.
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claim by showing that they responded reasonably to a risk despite
218
actually failing to protect inmates from the harm.
2. Applying the Deliberate Indifference Standard
to the Orleans Parish Prison
Depending on the facts of a given Katrina-related Eighth
Amendment lawsuit, claims could be characterized as challenging
conditions that posed a serious risk of harm, officials’ use of force,
and/or officials’ denial of medical treatment. Regardless of how
the claim is categorized, the biggest hurdle for a prisoner-plaintiff
will be overcoming the subjective requirements of the deliberate
indifference standard.219 The objective component, that serious
harms were suffered by inmates, is relatively straightforward.220
In an Eighth Amendment claim challenging conditions of confinement, plaintiff-inmates must show that the condition itself
presented the risk of harm.221 In the case of OPP, therefore, a prisoner could characterize the lack of a sufficient emergency plan as a
condition of confinement and draw the connection between that
condition and the harms suffered.222
Characterizing the lack of an adequate emergency plan as a
condition of confinement is a novel strategy. On the one hand, inadequate or nonexistent prison emergency plans present several
serious risks to inmates’ safety.223 On the other hand, a court could
218. See id. at 844–45 (indicating that prison officials’ Eighth Amendment duties to ensure inmates’ safety are judged by standards that account for the difficulty of providing
humane conditions to an entire prison population). “[P]rison officials who act reasonably
cannot be found liable under the Cruel and Unusual Punishments Clause.” Id. at 845.
219. See, e.g., Lloyd v. Gusman, No. 06-4288, 2007 WL 1850999, at *7 (E.D. La. June 26,
2007) (holding that plaintiff failed to show deliberate indifference on the part of Sheriff
Gusman, although recognizing that conditions were difficult); Kennedy v. Gusman, No. 065274, 2007 U.S. Dist. LEXIS 17866, at *11 (E.D. La. Mar. 13, 2007) (dismissing claims
against Sheriff Gusman for failing to show deliberate indifference, and characterizing the
conditions as “simply the unfortunate result of an act of nature”).
220. See Balaban & Jawetz, supra note 2, passim. For one example, the authors discuss
the situation of Raphael Schwarz, an inmate at OPP, who was stuck in a cell with eight other
inmates without food, water, or ventilation for four days and without any contact with deputies for two days. See id. at 31.
221. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (holding that courts should apply an Eighth Amendment analysis to conditions of confinement where “the conditions of
confinement compose the punishment at issue”).
222. Cf. Coleman v. Wilson, No. CIV S-90-0520, 1994 U.S. Dist. LEXIS 20786, at *22–23
(E.D. Cal. June 6, 1994) (holding that deficient mental health care within the California
Department of Corrections was a constitutional violation because of the conditions to which
prisoners were subjected).
223. See, e.g., Balaban & Jawetz, supra note 2, at 26 (citing flaws in the OPP Contingency Plan and the negative impact caused by the inadequate emergency plan).
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rule that it was the hurricane, and not the lack of an emergency
224
plan, that created those risks. And, unlike a claim challenging
physical conditions, it might prove difficult for a plaintiff to identify specific risks associated with insufficient emergency planning
until a physical risk to prisoners’ safety, such as rising floodwaters,
actually materializes. Yet once that condition appears, it would
224. See Allen v. Gusman, No. 06-4539, 2007 WL 2407305 (E.D. La. Aug. 20, 2007)
(claims dismissed as frivolous); Bridges v. Gusman, No. 06-4444, 2007 WL 2362335 (E.D. La.
Aug. 15, 2007) (same); Frye v. Orleans Parish Prison, No. 06-5964, 2007 WL 2362338 (E.D.
La. Aug. 14, 2007) (same); Francis v. United States, No. 07-1991, 2007 WL 2332322 (E.D. La.
Aug. 13, 2007) (same); Jones v. Gusman, No. 06-5275, 2007 WL 2264208 (E.D. La. Aug. 2,
2007) (same); Burbank v. Gusman, No. 06-4398, 2007 WL 2228593 (E.D. La. July 27, 2007)
(same); Maturin v. Gusman, No. 07-1932, 2007 WL 2079709 (E.D. La. July 17, 2007) (same);
Lloyd v. Gusman, No. 06-4288, 2007 U.S. Dist. LEXIS 46380, 2007 WL 1850999 (E.D. La.
June 26, 2007) (same); Harris v. Gusman, No. 06-3939, 2007 U.S. Dist. LEXIS 44853, 2007
WL 1792512 (E.D. La. June 19, 2007) (same); Daggett v. Gusman, No. 06-5625, 2007 U.S.
Dist. LEXIS 43751, 2007 WL 1746987 (E.D. La. June 14, 2007) (same); Anders v. Gusman,
No. 06-2898, 2007 WL 1029417 (E.D. La. Mar. 29, 2007) (frivolous); Robinson v. Gusman,
No. 06-3760, 2007 WL 1029425 (E.D. La. Mar. 29, 2007) (same); Fairley v. Louisiana, No. 063788, 2007 U.S. Dist. LEXIS 20825, 2007 WL 914024 (E.D. La. Mar. 23, 2007) (claims dismissed for failure to state claim), reh’g denied, No. 06-3788, 2007 WL 1991534 (E.D. La. July
3, 2007); Smith v. Gusman, No. 06-4095, 2007 U.S. Dist. LEXIS 20824, 2007 WL 914171
(E.D. La. Mar. 23, 2007) (same); Hines v. Cain, No. 06-3722, 2007 U.S. Dist. LEXIS 19962,
2007 WL 891875 (E.D. La. Mar. 20, 2007) (frivolous); Kennedy v. Gusman, No. 06-5274,
2007 U.S. Dist. LEXIS 17866, 2007 WL 782192 (E.D. La. Mar. 13, 2007) (failure to state
claim); Bennet v. Gusman, No. 06-1754, 2007 WL 763207 (E.D. La. Mar. 9, 2007) (frivolous);
Wright v. Gusman, No. 06-5768, 2007 U.S. Dist. LEXIS 10678, 2007 WL 519159 (E.D. La.
Feb. 15, 2007) (failure to state claim); Deselles v. Gusman, No. 06-4163, 2007 U.S. Dist.
LEXIS 2168, 2007 WL 121833 (E.D. La. Jan. 11, 2007) (frivolous); Hill v. Gusman, No. 06527, 2006 U.S. Dist. LEXIS 91676, 2006 WL 3760454 (E.D. La. Dec. 18, 2006) (same); Bright
v. Gusman, No. 06-2782, 2006 U.S. Dist. LEXIS 86887, 2006 WL 3469560 (E.D. La. Nov. 28,
2006) (same); Dean v. Gusman, No. 06-3243, 2006 U.S. Dist. LEXIS 86903, 2006 WL
3469558 (E.D. La. Nov. 28, 2006) (same); Holmes v. Gusman, No. 06-3245, 2006 U.S. Dist.
LEXIS 86896, 2006 WL 3469555 (E.D. La. Nov. 28, 2006) (same); Lopez v. Gusman, No. 063048, 2006 U.S. Dist. LEXIS 86881, 2006 WL 3469559 (E.D. La. Nov. 28, 2006) (same);
Henson v. Blanco, No. 06-0269, 2006 U.S. Dist. LEXIS 79539 (E.D. La. Oct. 26, 2006) (failure to state a claim); Tate v. Gusman, 459 F.Supp.2d 519 (E.D. La. 2006) (frivolous); Wade v.
Gusman, No. 06-4541, 2006 WL 4017838 (E.D. La. Oct. 17, 2006) (same); Galo v. Blanco,
No. 06-4290, 2006 U.S. Dist. LEXIS 72657, 2006 WL 2860851 (E.D. La. Oct. 4, 2006) (same);
Charles v. Gusman, No. 06-53, 2006 U.S. Dist. LEXIS 67538, 2006 WL 2604613 (E.D. La.
Sept. 6, 2006) (same); Hayes v. Gusman, No. 06-504, 2006 U.S. Dist. LEXIS 42590, 2006 WL
1985464 (E.D. La. June 22, 2006) (same); Gauff v. Gusman, No. 06-842, 2006 U.S. Dist.
LEXIS 62690, 2006 WL 2460753 (E.D. La. June 12, 2006) (Roby, M.J.) (same), adopted, 2006
U.S. Dist. LEXIS 62690, 2006 WL 2468771 (E.D. La. Aug. 21, 2006) (Engelhardt, J.); see also
Cobbins v. Gusman, No. 06-4397, 2007 WL 2228624 (E.D. La. July 31, 2007) (dismissed on
procedural grounds); Pittman v. Gusman, No. 06-0120, 2007 WL 2228596 (E.D. La. July 31,
2007) (same); Booker v. Gusman, No. 06-4477, 2007 WL 1729248 (E.D. La. June 14, 2007)
(same); Pederson v. Gusman, No. 06-5715, 2007 WL 1752631 (E.D. La. June 14, 2007)
(same); Washington v. Gusman, No. 05-6048, 2007 WL 1728729 (E.D. La. June 14, 2007)
(same); Conner v. Gusman, No. 06-1650, 2007 WL 1428749 (E.D. La. May 10, 2007) (same);
Bickham v. Gusman, No. 06-3844, 2007 U.S. Dist. LEXIS 18415 (E.D. La. Jan 31, 2007)
(same); Rudolph v. Gusman, No. 06-3514, 2006 WL 3422314 (E.D. La. Nov. 27, 2006)
(same); Pollard v. Gusman, No. 06-3941, 2006 WL 3388491 (E.D. La. Nov. 21, 2006) (same).
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seem more appropriate to characterize the physical occurrence,
rather than the lack of a plan, as the condition being challenged.
Further, the argument that the lack of an adequate emergency
plan is a condition of confinement might make it difficult for an
inmate to demonstrate officials’ awareness of a particular risk. Because officials must be aware of the risks associated with not having
a plan, their lack of a plan might be evidence that they were not
cognizant of the risks.
Alternatively, a prisoner could challenge the abhorrent conditions
of confinement post-Katrina, arguing that these conditions were
the result of insufficient planning, and that the insufficient emergency planning itself demonstrated officials’ deliberate indifference
towards prisoners’ health and safety needs.225 Such connections are
not difficult to draw. For example, by failing to designate a safe
place to keep food, the officials disregarded the risk that inmates
would be unfed in the event of a hurricane.226 Likewise, by not ensuring that an adequate number of guards would be present
during the hurricane, the officials did not address the probability
that inmate-on-inmate or guard-on-inmate violence would increase
227
in the midst of an emergency. Moreover, by not planning an effective evacuation procedure, officials forced inmates to remain in
unsanitary conditions and failed to address the likelihood that they
225. See Bob Williams, Reflections on Katrina’s First Year: The Story of Chaos and Continuing
Abuse in One of America’s Worst Justice Systems, Prison Legal News, Apr. 2007, at 1, 6 (discussing the incompetence of Sheriff Gusman and the lack of a viable plan).
226. See Balaban & Jawetz, supra note 2, at 18 (discussing the lack of food and water at
OPP). When notified of the shortage of food, water, batteries, and flashlights, Sheriff Gusman reportedly stated, “Those are incidentals, and we’ll deal with them later.” Id. at 23.
More recently, Dr. Demaree Inglese, Medical Director of OPP when Katrina hit, confirmed
that Sheriff Gusman refused to evacuate OPP before the storm despite the objections of his
own disaster planning committee. Broken Promises, supra note 2, at 29.
227. See Balaban & Jawetz, supra note 2, at 45 (explaining that, as conditions at OPP
worsened and guards left, tensions and violence rose among prisoners). Those prison officials who remained were unable to protect prisoners from each other. Id. at 17. One
prisoner reported:
There was a riot. They broke people out of their cells, they broke into the property
room, they broke into the deputies’ locker. Stabbing, fighting, kicking, jumping on
and beating ’em half to a pulp. I mean, 8, 9 guys on one guy. I tell ya, there was about
250, 300 people. It was only about 8 of us that were white. And the whole time, they
was . . . spittin’ on us, sayin’ “we’re gonna kill the white guys,” all that stuff, kickin’ at
us, all that stuff. You’re sitting there and you don’t know if someone’s gonna walk up
and kick you in the mouth, just ’cause you’re sitting there and they feel like hitting
somebody. It was chaos. I mean, we thought we were gonna die, ’cause no one was
there to stop anything.
This World: Prisoners of Katrina (BBC television broadcast Aug. 13, 2006), available at
http://tinyurl.com/2j2pcu.
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might be left in the prison if an emergency necessitated the
228
prison’s evacuation. Finally, by neglecting to place medical supplies in a safe and accessible location, officials acted indifferently
toward the potential unavailability of medications and medical care
to inmates during an emergency.229 Based on the seriousness of the
harms suffered, it appears that the objective portion of the deliberate indifference standard is satisfied in the case of the OPP.230
The question of whether the government officials violated the
Eighth Amendment rights of prisoners at OPP will then turn on
the application of the subjective component of the deliberate indifference standard. Once again, this standard requires that, where
an inmate was seriously harmed, “the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”231
And, if the official claims ignorance of a risk, the plaintiff may
prove the official’s knowledge by providing evidence of the obviousness of the risk.232
a. Officials’ Awareness of Serious Risks to Inmates
When suing under Section 1983 for the conditions prisoners
had to endure after Hurricane Katrina, two sets of facts are important in establishing officials’ awareness of the risks posed to the
prisoners. First, the officials would need to have been aware of
both the likelihood of a hurricane in their region and the specific
risks that a hurricane presented. If administrators did not know (1)
that a hurricane was likely in their region, and (2) that Katrina
would likely strike the OPP, then the officials would not have been
aware of the risks that the hurricane presented. Second, an inmate
would need to show officials’ awareness of the need to plan for
prison emergencies. If officials did not know that extensive planning and preparation were necessary to ensure adequate
228. See Balaban & Jawetz, supra note 2, at 17, 26 (stating that, because there were no
procedures for evacuation, prisoners were forced to stay in “unsanitary and hazardous conditions,” including standing in locked cells in chest-deep floodwaters for hours, and were
evacuated only after floodwater continued to rise and chaos ensued).
229. See id. at 26 (noting that several medical staff abandoned patients in need of care
and many supplies were destroyed by rising floodwaters). Iris Hardeman, arrested on minor
charges, did not receive her blood pressure or heart medication during the storm and died
less than a month after being evacuated to Angola Prison. Id. at 36.
230. See supra notes 43–52 and accompanying text (describing the range of harms at
OPP that implicate the Eighth Amendment).
231. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
232. Id. at 842.
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conditions for prisoners, then they were not aware that they were
risking inmates’ health and safety by failing to have a comprehensive emergency plan. Although direct evidence of OPP officials’
knowledge of these sets of facts may be difficult to come by without
explicit admissions, there is copious circumstantial evidence to
show that the officials were aware of the risks presented by an inadequately planned-for hurricane.
The facts relating to the hurricane itself provide strong circumstantial evidence. Since Hurricane Camille in 1969 (if not earlier),
Gulf Coast inhabitants have been aware that their geographic location and proximity to sea level make their region particularly
vulnerable to hurricanes.233 Hurricanes Elena (1983) and Andrew
(1992) confirmed this reality.234 Hurricane Katrina’s ravaging of the
235
Gulf Coast was predicted not only by weather forecasters, but also
236
by two government agencies. Originally classified as a tropical
storm, Katrina reached hurricane strength on August 24, 2005.237
On August 28, the National Weather Service office closest to New
Orleans released warnings cautioning that “[m]ost of the area will
be uninhabitable for weeks . . . perhaps longer.”238 The warnings
also foresaw the likelihood of “human suffering incredible by
239
modern standards.” It is beyond dispute that OPP officials knew
that Hurricane Katrina would likely strike their facility. The Louisiana Department of Corrections reports that it met on the morning
of August 27 to discuss preparations for Katrina and, following the
meeting, notified all divisions of the LDPS&C.240 Max Mayfield of
the National Hurricane Center, while reluctant to criticize the
emergency response to Katrina, said “[t]he fact that we had a
major hurricane forecast over or near New Orleans is reason for
233. In fact, more than seventy-five percent of New Orleans is below sea level.
Schwartz & Webb, supra note 32, at 8. National Hurricane Center Director Max Mayfield
explained, “The 33 years that I’ve been at the hurricane center we have always been saying—
the directors before me and I have always said—that the greatest potential for the nightmare
scenarios, in the Gulf of Mexico anyway, is that New Orleans and southeast Louisiana area.”
John Pain, Dire Katrina Predictions Were on Track, Associated Press, Sept. 16, 2005, available
at http://www.livescience.com/environment/ap_050916_hurricane_forecasting.html.
234. See Memorable Gulf Coast Hurricanes of the 20th Century, http://www.aoml.
noaa.gov/general/lib/mgch.html (last visited Aug. 28, 2008) (noting a history of hurricanes
in the Gulf Coast Region).
235. Pain, supra note 233 (observing AccuWeather, Inc.’s early prediction of the necessity for evacuating the regions struck by Katrina).
236. Id. (observing that both the National Weather Service and the National Hurricane
Center had forecast Katrina’s path and “potential for devastation with remarkable accuracy”).
237. Schwartz & Webb, supra note 32, at 8.
238. Pain, supra note 233.
239. Id.
240. Schwartz & Webb, supra note 32, at 12.
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great concern. The local and state emergency management knew
241
that . . . .”
While establishing OPP officials’ knowledge of Katrina is simple,
the officials must also have actually known of the ensuing risks to
inmate health and safety for their actions to rise to the level of deliberate indifference.242 Establishing officials’ knowledge of the
specific risks presented to inmates by a hurricane, particularly one
that is not prepared for, is more difficult and will require circumstantial evidence. As mentioned above, when establishing
awareness, the obviousness of the risk and the likelihood of the
prison administration having been exposed to information concerning the risk are relevant factors for a court to consider.243
That a hurricane has the potential for serious harm to those in
its path is common knowledge. Hurricanes produce a “storm
surge”244 that is likely to flood low-lying areas, placing residents in
grave danger.245 According to the National Hurricane Center,
flooding was responsible for more than fifty percent of deaths resulting from tropical storms and hurricanes “[in] the 1970s, ’80s,
and ’90s.”246 Further, the floodwaters that remain after the storm
247
has passed can be “contaminated by oil, gasoline, or raw sewage.”
These unsanitary floodwaters can then contaminate products, such
as food or drugs, with which people come into contact. Floodwaters also might contaminate an area’s supply of drinking water.248
These risks are painfully obvious, but prison officials might defend themselves by arguing either that none of these risks are
particular to their prison or that they thought their prison was less
vulnerable to these risks because of the degree of control they exercise over the environment.249 In anticipation of, or in response to,
241. Pain, supra note 233.
242. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (rejecting “an objective test for
deliberate indifference,” the Court held that the official must know of the possible risk and
draw the inference of serious harm).
243. Id. at 842.
244. FEMA, Hurricane Hazards: Storm Surge, http://www.fema.gov/hazard/
hurricane/hu_surge.shtm (last visited Aug. 28, 2008).
245. In urging caution during floods, FEMA warns that an average-size person can be
swept away by only six inches of floodwater. FEMA, Hurricane Hazards: Rainfall and Flooding, http://www.fema.gov/hazard/hurricane/hu_flood.shtm (last visited Aug. 28, 2008).
246. Inland Flooding, http://www.nhc.noaa.gov/HAW2/english/inland_flood.shtml
(last visited Aug. 28, 2008).
247. FEMA, After a Flood, http://www.fema.gov/hazard/flood/fl_after.shtm (last visited Aug. 28, 2008).
248. Id.
249. See, e.g., Kennedy v. Gusman, No. 06-5274, 2007 U.S. Dist. LEXIS 17866, at *11
(E.D. La. Mar. 13, 2007) (dismissing an OPP prisoner’s claims about conditions of confinement as “simply the unfortunate result of an act of nature which wrought devastation
throughout this region. During the time at issue, virtually all of this area’s citizens, incarcer-
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defenses in which officials plead ignorance of a risk, a plaintiff
could provide evidence to establish that the prison officials knew
not only of the general risks, but also of those specific to their institution. In the case of Hurricane Katrina, one such piece of
evidence is the fact that the LDPS&C actually contacted OPP officials to discuss meeting about potential prison evacuation plans in
the event of an emergency.250 While that meeting never occurred,
the idea to have it is an acknowledgement by officials that evacuation planning can be necessary to inmate safety.
The abundance of available emergency training materials also
helps establish OPP officials’ knowledge of the specific risks posed
by various emergency scenarios.251 For example, the NIC, an agency
within the Federal Bureau of Prisons,252 published the “Emergency
253
Preparedness Self-Audit Checklist” in June 2005. The seventythree-page checklist provides hundreds of criteria designed to help
prison officials determine whether their facility is prepared to
handle diverse emergencies. There are criteria concerning emergencies in general and others specific to various types of
emergencies, such as riots and hurricanes. The checklist asks
prison administrators many questions that are designed to expose
flaws in emergency preparedness.254 If the administrators of OPP
ated and free person alike, were forced to endure hardships and unpleasant conditions.”).
The reasoning in Kennedy fails to acknowledge that inmates cannot fairly be compared with
the general population, because inmates are detained and are unable to protect themselves
in emergency situations. See NIC Guide, supra note 74, at 3.
250. Schwartz & Webb, supra note 32, at 15.
251. See, e.g., Neb. Dep’t. of Corr. Services, Fire Safety and Emergency Evacuation Procedures, Admin. Reg. 111.04 (1982), http://www.corrections.state.ne.us/policies/files/
111.04.pdf (outlining a plan for the evacuation of inmates in the event of a major emergency); NIC Guide, supra note 74, at EP-1 to EP-73 (emphasizing the importance of prison
emergency preparedness and detailing self-audit criteria for prisons to assess their preparedness).
252. Central Office–National Institute of Corrections (NIC), http://www.bop.gov/
about/co/nic.jsp (last visited Aug. 28, 2008). One of the NIC’s primary missions is to provide “training, technical assistance, information services, and policy/program development
assistance to Federal, state, and local corrections agencies.” Id. The Federal Bureau of Prisons is itself a division of the Department of Justice. See A Brief History of the Bureau of
Prisons, http://www.bop.gov/about/history.jsp (last visited Aug. 28, 2008).
253. NIC Guide, supra note 74, at EP-1 to EP-73.
254. The questions include, inter alia: “Does the institution have a single, comprehensive emergency plan (versus individual plans for various emergencies)?”; “Does the
[emergency] plan include procedures for specific types of emergencies?”; “Does the institution’s emergency plan require an annual risk assessment?”; “Does the risk assessment
include identification of those emergencies judged most likely to occur at that institution?”;
“Are all roofs painted with numbers or letters for helicopter identification?”; “Does the institution have a tactical team trained to respond to emergency situations?”; “Is there a medical
person . . . attached to the disturbance control team?”; and “Does the institution have written agreements for assistance during an institutional emergency with . . . state police, nearby
correctional institutions, local hospitals, and ambulance services?” Id. at EP-19 to EP-38. The
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had read the NIC checklists or had been aware of the document
but had not read it, then they would have been subjectively on notice of the risks facing their institution were a hurricane or other
emergency to strike.255 Even if OPP administrators did not receive
or had not been aware of the NIC checklists, the body of other
planning resources available to prison administrators, along with
the obviousness of the risk, would render claims of ignorance of
256
the risks highly suspect.
Of course, prison officials who are sued pursuant to Section
1983 can concede their awareness that a condition presents an unreasonable risk to inmates’ health and safety257 and ask the court to
checklists also address whether the institution stocks emergency equipment, such as emergency generators, bolt cutters, and a two-to-three-day supply of potable water. Id. at EP-40 to
EP-47. Another set of criteria addresses both onsite and offsite evacuations, and asks
whether the institution’s offsite evacuation plan specifies evacuation routes, security precautions, and procedures for providing inmates with food and medical service. Id. at EP-56 to
EP-63. Finally, there are criteria that address whether the prison has a plan for “extended
emergencies,” id. at EP-65, and whether there is a “comprehensive medical plan,” id. at EP72. Further, the NIC Guide includes case studies, some of which provided the basis for the
various checklists. Id. at 255–323. Of particular relevance is the case study regarding how the
Dade Correctional Institution responded to Hurricane Andrew. Id. at 319. That study recommended that institutions facing hurricanes take many specific steps to ensure inmate and
staff safety, such as creating a tracking system for inmates during an evacuation and making
arrangements to guarantee that inmates have food and potable water. Id. at 321–23.
255. Discovery—either through interrogatories, or if need be, a subpoena—should reveal whether OPP officials received these checklists.
256. For example, Oregon’s DOC has a comprehensive emergency plan that many
other state DOCs cite as an example of comprehensive and effective emergency planning.
NIC Guide, supra note 74, at 185. The Oregon plan is itself based on LETRA’s Emergency
Preparedness for Correctional Institutions, which is a four-day course designed to prepare prisons
and jails to plan for emergencies. See LETRA, Inc., supra note 105, at A1 (listing state departments that use Emergency Preparedness for Correctional Institutions). Also, the NIC makes
available a computer training program aimed at preparing prison administrators for emergencies. Leadership in Times of Critical Incidents, http://nicic.org/Library/020523 (last
visited Aug. 28, 2008). And the American Correctional Association (ACA), a group that
accredits penal institutions and trains their employees, distributes a video that discusses
proper responses to prison emergencies. Videotape: Ready 2 Respond: Correctional Emergency Response Teams (ACA 2001) (available for purchase at ACA Bookstore,
http://www.aca.org/store/bookstore/view.asp?Product_ID=304 (last visited Aug. 28, 2008)).
In addition, the ACA publishes “Performance-Based Standards for Adult Local Detention
Facilities,” which includes requirements on emergency planning and standards requiring
prisons to train their employees in the implementation of written emergency plans. American Correctional Association, Standards for Adult Local Detention Facilities (3d
ed. 1991); see also American Correctional Association, Standards for Adult Correctional Institutions (4th ed. 2003). The sheer volume of e...
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