DATA, DEFERENCE, AND NON-DISCLOSURE: SHEDDING LIGHT ON LOUISIANA'S DEATHS BEHIND BARS FROM 2015-2019.

• Date: 22 September 2021
• Author: Armstrong, Andrea

Table of Contents I. INTRODUCTION 106 A. Legal and Policy Deference to Carceral Administrators 108 B. Deaths As Signifiers 111 C. Federal Death Data Collection 115 D. Practical Challenges in Data Collection 118 II. THE DATA 120 A. Project Overview 120 B. Methodology 122 C. Who is Dying? 122 1. Race 123 2. Sex 123 3. Age 123 4. Trial Status 124 D. Where are they dying 124 1. Type of Facility 125 2. Location of Death within Facility 125 E. Why are they dying? 126 1. Medical 126 2. Suicide 127 3. Drugs 128 4. Accident 128 5. Violence 129 F. Data Takeaways 130 III. CONCLUSION 130 I. INTRODUCTION

Incarceration and the conditions within jails, prisons, and youth detention centers, are the least transparent aspect of the criminal legal system. (1) This lack of transparency serves to hide and obscure the experiences of people forcibly confined in these spaces; people who are blamed for society's ills and therefore deemed less worthy of protection and rights. (2) The disproportionate incarceration rates of Black, Indigenous, and Latino communities, (3) the harsh and extended sentences for low-level property and drug crimes, (4) the volatile and often unconstitutional conditions inside carceral facilities, (5) and the continued rate of violent crimes during the most heightened season of mass incarceration (6) undermine claims that the criminal legal system produces fair and impartial justice. (7)

Carceral spaces are also historically associated with death. Prison staff, not judges, jury members, or prosecutors, administer the actual execution of people sentenced to death. (8) Even for those not sentenced to execution, incarceration is still deadly. Interactions with the carceral system can increase a person's risk of premature death. (9) Public health scholars have documented higher rates of infectious diseases, chronic medical conditions, substance use, and mental health disorders for people in prisons compared to the non-incarcerated population. (10) Yet, these same carceral spaces, at least in theory, should be safer and healthier environments, due to the unique authority government actors possess to protect against certain types of harms and maintain a secure setting free of weapons and substances that plague some free communities.

This Article presents the first in-depth study of carceral deaths in Louisiana. (11) The data and analysis focus on deaths that occurred in jails, prisons, and youth detention centers. There are important differences, and similarities, among these different types of institutions. Nationally, jails, prisons, and youth detention centers typically hold different populations, though in Louisiana, this distinction is less clear. In general, jails confine three categories of people: people accused of a crime, but who are denied or cannot afford to post bail; people who have been convicted of misdemeanor crimes with sentences of one year or less; and people who are accused of violating judicially set conditions of their release through probation or parole after a conviction. In contrast, prisons typically only hold people who are serving a sentence for a felony crime after their conviction. In Louisiana, however, approximately 50% of people convicted of felony crimes serve their sentence in a local jail, instead of a state operated prison. (12) Youth detention centers include those operated by the state for youth convicted of crimes and those operated by local authorities for youth accused, but not yet adjudicated for a crime, as well as those serving sentences. These institutions also differ in the types of services and care provided, based on the general population they serve. Jails hold people for shorter amounts of time and tend to offer fewer programming and educational opportunities than prisons, which are designed for longer-term incarceration. Similarly, jails may not provide certain types of long-term medical care, such as for chronic conditions such as kidney disease, while prisons often contain significant populations of people requiring these types of medical services. Regardless of the category of population housed, all of these carceral spaces also benefit from extended judicial deference for their policies and practices.

All jails, prisons, and youth detention centers are also obligated under the U.S. Constitution to provide the health and safety of the people remanded to their respective institutions. The legal standards governing violation of these obligations may differ, however, depending on the type of institution. In general, the Due Process Clause of the Fourteenth Amendment governs conditions for people held pretrial (13) and the Eighth Amendment's prohibition of "cruel and unusual punishment" applies to people held pursuant to a conviction. (14) For youth held in detention centers, a majority of circuit courts have held that the Due Process Clause of the Fourteenth Amendment is the appropriate legal standard. (15)

Despite these differences, all of these institutions are designed to be secure facilities. Staff and visitors are subject to searches to prevent the introduction of contraband, such as drugs, weapons, and cell phones, to the facility. People who work in these facilities and have contact with incarcerated populations receive training on security and safety as a condition of their employment. Movement within the facility is usually tightly controlled and often requires passage through additional security doors within the facility itself. Areas are patrolled by security staff and often guards are assigned to patrol specific "beats," or areas of the facility. In these highly-controlled and regulated environments, deaths should be the exception, and not the norm. Thus, when deaths do occur, they deserve attention and analysis.

When a person dies behind bars, their family may have questions, including how and why their loved one died. As a society that collectively remanded their loved one to a jail, prison, or youth detention center, we owe those families an answer. But transparency and accountability can also serve other important purposes. Internal facility analysis may reveal inadequate policies or practices and may prevent future deaths. Externally, the transparency of the facility's actions and their review may enhance the legitimacy of the institution as a whole, as well as provide for broader accountability to family members and tax-paying residents. Part I of this Article connects judicial deference for carceral administrators to the deaths of incarcerated people. Part II describes recent efforts by law students at Loyola University New Orleans College of Law to collect data about deaths in custody across Louisiana. Further, an initial review of the data reveals 786 known deaths in prisons, jails, and youth detention centers throughout Louisiana from 2015-2019. This Article concludes with recommendations about enhancing safety for incarcerated people and creating more transparent reporting mechanisms.

1. Legal and Policy Deference to Carceral Administrators

   Courts have gone on a winding journey to determine what level of deference the judiciary should give to carceral officials' actions. On the one hand, judges assume that carceral staff, as representatives of government authority, are committed to respecting the constitutional rights of incarcerated people. (16) On the other hand, judges also recognize that "judicial intervention is indispensable if constitutional dictates are going to be observed in our nation's prisons." (17) From this point of view, carceral facilities are unruly places that must be monitored in order to ensure constitutional mandates are protected behind carceral walls. However, over time, the Supreme Court has concluded that judicial review of carceral actors should not be too exacting and that a rational basis standard appropriately recognizes the expertise of carceral administrators.

   Carceral officials have unique power and control over nearly every aspect of an incarcerated person's life and death. Officials control when people eat, who they can talk to, when they sleep, what they wear, and so much more. (18) Despite this unique authority over individuals, courts grant officials significant leeway by relying on a high standard of deference when reviewing carceral officials' actions. "[F]ar from achieving a balance between appropriate deference and appropriate constitutional enforcement, the Court's prisoners' rights case law seems instead to be a jurisprudence of evasion, justified by talismanic reference to the need to defer." (19)

   In modern judicial doctrine, courts began deferring to carceral officials when the Supreme Court decided Turner v. Safley in 1987. In Turner, the Supreme Court lowered the standard it used to analyze prison rules from intermediate scrutiny (20) to rational basis. (21) Turner concerned a challenge by an incarcerated person to a prison policy that prohibited him from sending certain mail to people incarcerated in other facilities, as well as a policy that restricted marriage by an incarcerated person. (22) The Court rejected applying a more exacting strict scrutiny standard because it would "seriously hamper [carceral officials'] ability to anticipate security problems and to adopt innovative solutions to the tractable problems of prison administration." (23) In lieu of intermediate scrutiny, the Court outlined a lower rational basis standard for analyzing constitutional challenges to prison rules: a carceral regulation is reasonable when (1) it is rationally related to a legitimate government interest; (2) no "alternative means of exercising the right" exists; (3) the accommodation of the right will have a limited impact on guards, inmates, and "prison resources generally;" and (4) there are no reasonable alternatives to the regulation. (24) With its new four-part test, the Supreme Court translated carceral official deference into a rational basis test. (25)

   However, Turner's holding was...