This report does not represent the official positon of the School of Law or of The University of Texas, and
the views presented here reflect only the opinions of the individual authors and of the Human Rights Clinic.

1

Contents
Acronyms & Abbreviations ................................................................................................................ 3
Executive Summary .............................................................................................................................. 4
Introduction ............................................................................................................................................ 7
Texas Prison Inmates and Staff Are Exposed to Dangerous Heat Conditions .................. 8
Extreme Heat in TDCJ Facilities is Unhealthy............................................................................ 14
Texas Prisons Lack Adequate and Effective Policies to Protect Inmates from
Exposure to Extreme Heat and Heat-Related Injuries ........................................................... 17
Texas Lags Behind Other States in Protecting Inmates from Extreme Heat .................. 19
Current Texas Prison Conditions are Unconstitutional ........................................................ 22
Texas Prison Conditions Violate Inmates’ Human Rights..................................................... 25
Texas Violates Human Rights Obligations Regarding Detention Conditions................. 26
Texas Fails Its Duty to Prevent Cruel, Inhuman, or Degrading Treatment..................... 29
Conclusion and Recommendations............................................................................................... 34

2

Acronyms & Abbreviations

TDCJ

(In order of first appearance)
Texas Department of Criminal Justice

NWS

National Weather Service

CDC

Centers for Disease Control

ACA

American Correctional Association

OSHA

Occcupational Safety and Health Adrministration

TCJS

Texas Commission on Jail Standards

ASHRAE

American Society of Heating, Refrigerating and Air-Conditioning Engineers

ABA

American Bar Association

IACHR

Inter-American Commission on Human Rights

ICCPR

International Covenant of Civil and Political Rights

UDHR

United Nations’ Universal Declaration of Human Rights

ADRDM

American Declaration of the Rights and Duties of Man

IACtHR

Inter-American Court of Human Rights

CAT

Committee Against Torture

ACHR

American Convention on Human Rights

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

OAS

Organization of American States

CPT

European Committee on the Prevention of Torture

UN

United Nations

3

Executive Summary
The Texas Department of Criminal Justice (TDCJ) is currently violating the human and
constitutional rights of inmates in Texas by exposing them to dangerously high temperatures and
extreme heat conditions. Extreme heat in TDCJ-run correctional facilities has long caused heatrelated injuries and deaths of inmates during the hot Texas summers. Since 2007, at least
fourteen inmates incarcerated in various TDCJ facilities across the state of Texas have died from
extreme heat exposure while imprisoned. Many of these inmates had preexisting health
conditions or were taking medications that rendered them heat-sensitive, yet properly cooled
living areas were not provided to them by the TDCJ. These fourteen victims, along with other
TDCJ prisoners and even TDCJ personnel, were and continue to be exposed to dangerously high
heat levels on a regular basis. This practice violates individuals’ human rights, particularly the
rights to health, life, physical integrity, and dignity.
In spite of repeated, serious, and egregious incidents, the TDCJ has yet to implement
measures that effectively mitigate heat-related injury in inmate housing. While the TDCJ has
installed fans and allowed for ventilation in inmate living areas, the Centers for Disease Control
(CDC) has proven these measures to be ineffective in preventing heat-related injuries in very hot
and humid conditions, such as those present in TDCJ facilities. Despite these findings, TDCJ
facilities largely do not provide air conditioning to the living areas of the general inmate
population, many of whom are serving time for non-violent offenses. At the same time, the
TDCJ has spent money on air conditioning for its warden offices and for its armories.
Additionally, the TDCJ has not promulgated any maximum temperature policies for inmate
housing, even though the Texas Commission on Jail Standards and numerous other state
departments of corrections across the country have done so. As a result, TDCJ inmates continue
to suffer through Texas summers, and are forced to risk heatstroke and other heat-related injuries
while incarcerated with the TDCJ.
This Report, prepared by the Human Rights Clinic of the University of Texas School of
Law, concludes that current conditions in TDCJ facilities constitute a violation of Texas’s duty
to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its
duty to prevent inhuman or degrading treatment of its inmates. These duties have been affirmed
by countless human rights bodies and instruments such as the United Nations Human Rights
Committee, the Universal Declaration of Human Rights, the Inter-American Commission on
Human Rights, and the American Declaration on the Rights and Duties of Man, to mention just a
few. Many international human rights decisions have found that extreme heat similar to
situations in Texas contributes to a finding of inhuman or degrading prison conditions. The
TDCJ’s continued incarceration of inmates in extreme heat conditions violates its duties to
inmates, and constitutes inhumane treatment of such prisoners in violation of international
human rights standards.
The Human Rights Clinic concludes that current extreme heat conditions in TDCJ
facilities also violate inmates’ constitutional right to be free from cruel and unusual punishment.
4

The United States Court of Appeals for the Fifth Circuit has recognized time and again that
extreme heat in prisons can constitute a violation of inmates’ Eighth Amendment rights. In a
2012 case, a 63 year old Texas prisoner presented with a preexisting blood pressure condition,
and was taking medication that would affect his body’s ability to regulate temperature. The court
decided that a reasonable jury could conclude that a failure to provide air conditioning, among
other things, to an individual with these conditions was a violation of the prisoner’s
constitutional rights. Most recently, the Middle District of Louisiana issued a decision in 2013
condemning the extreme heat conditions in a Louisiana prison facility similar to those conditions
present in TDCJ facilities as a violation of the Constitution. There is therefore clear and recent
precedent for denouncing the hot conditions in TDCJ facilities as violating the guarantees and
rights of inmates under the Eighth Amendment.
Given that the TDCJ’s current treatment of its prisoners is a violation of the Constitution
and international human rights law, the Human Rights Clinic recommends the following actions
to immediately eliminate the TDCJ’s current practice of inhumane treatment of its prisoners in
extreme heat conditions:
1. The Texas Department of Criminal Justice should immediately codify and implement
preventative policy measures for the coming summer months to prevent exposing inmates
to extreme heat conditions and, particularly, to avoid additional heat-related injuries and
deaths. Permanent and adequate measures should, at the least, include installation of air
conditioning units to keep temperatures in inmate housing areas below 85 °F. Until this is
completed, TDCJ should take additional precautions to reduce the risk of injury and
death, including:
a. Immediate screening of all new inmates for health conditions or medications that
could make them more susceptible to heat-related illness;
b. Immediate movement of more susceptible new inmates to housing areas that do
not have temperatures exceeding 85 °F;
c. If areas at a safe temperature are not yet available, continuous monitoring of
susceptible new inmates which starts immediately after screening;
d. Frequent monitoring of any inmates housed in non-air-conditioned units when
temperatures in inmate housing areas exceed 85 °F;
e. Provision of constant inmate access to cool liquids and ice; and
f. Uniform documentation of these practices, including number of inmates classified
as susceptible to heat-related illness and quantity of cool liquids provided per
inmate.
2. In the long term, either by promulgation of new TDCJ policy or by amendment of the
Texas Administrative Code, a maximum temperature standard should be set for all TDCJ
facilities. This standard should mirror the standards promulgated by the Texas

5

Commission on Jail Standards and the standards TDCJ currently has in place for the
prison workplace. Specifically, the standard should follow widespread precedent and
adopt a maximum temperature standard of 85 °F throughout its facilities, including in
prison cells and inmate housing areas.
3. The TDCJ Board and Texas Legislature should approve funding as necessary for
installation of permanent air-conditioning at TDCJ prison facilities, as needed, to ensure
temperatures do not exceed 85 °F.
By continuing to disregard the plight of TDCJ inmates subject to extreme heat, Texas and
the Texas Department of Criminal Justice are in violation of both international human rights
standards as well as the Constitution. The TDCJ therefore must take immediate action to protect
the human rights of its prisoners.

6

Introduction
Since 2007, at least fourteen inmates have died from extreme heat exposure while
detained in correctional facilities run by the TDCJ.1 These deaths have taken place in various
prisons and transfer facilities throughout Texas, including the Gurney, Michael, Hutchins,
Huntsville, Hodges, and Garza West Units. Aside from the Huntsville Unit,2 these facilities were
opened in the past thirty years, but still lack safe climatic and temperature conditions for inmates
detained within them. The families of some of the inmates who have died have brought
complaints in federal district court, seeking justice for the inhumane treatment and overheated
prison conditions that contributed to the death of their loved ones.3
Exposure to extreme heat in detention conditions such as those present in Texas prisons
violates several human rights of those incarcerated and constitutes cruel and unusual punishment
under the Eighth Amendment. This Report discusses how Texas ignores current scientific
findings regarding the dangers of extreme heat and how extreme temperatures are an ongoing
threat to the lives of many inmates in Texas prisons. The findings of the Report demonstrate how
the current situation is contrary to Texas’s constitutional obligations to protect inmates from
cruel and unusual punishment are discussed. The Report also demonstrates that Texas has not
met the obligations arising from international human rights standards relating to the treatment of
prisoners under extreme heat conditions. Texas also falls short in comparison with the standards
developed by other states. Finally, the Report proposes heat-mitigating standards and procedures
for Texas prisons, and urges the TDCJ to implement such standards in order to prevent future
human rights violations in its facilities.
Current standards for mitigating extreme heat in TDCJ facilities (or lack thereof) are
woefully inadequate by any comparative measure. Not only do the conditions in TDCJ facilities
violate international standards for detention conditions, but these conditions also constitute
violations of the Constitution. Texas lags behind many other southern states with regard to
enacting and enforcing adequate standards to deal with extreme heat in its prisons. Even Texas
county jails have standards for maximum allowable heat.
This Report from the Human Rights Clinic of the University of Texas School of Law was
co-written by Albert Suarez IV, Kyle Shen, Samantha Chen, and Alex Goeman under the
supervision and guidance of the Clinic’s Director Ariel Dulitzky.

1

For purposes of this report, reference to “Texas prison(s),” “correctional facilities run by the TDCJ,” “TDCJ-run
correctional facilities,” “TDCJ facilities” shall mean “state prisons, state jails[,] and private correctional facilities
that contract with the TDCJ.” About the Texas Department of Criminal Justice, TEX. DEP’T. OF CRIMINAL. JUSTICE,
https://www.tdcj.state.tx.us/about_tdcj.html (last visited March 29, 2014).
2
The Huntsville Unit was established in 1849. Unit Directory: Huntsville Unit, TEX. DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/unit_directory/index.html (last visited Feb. 27, 2014).
3
These cases are: Adams v. Livingston, Marone v. Livingston, McCollum v. Livingston, Togonidze v. Livingston,
Webb v. Livingston, and Hinojosa v. Livingston. Each case is brought on behalf of the family of a person whose
family member has died in a prison in Texas, and seeks compensatory, punitive, presumed, and nominal damages to
which the family member is entitled for the wrongful death of their kin.

7

I.

Texas Prison Inmates and Staff Are Exposed to Dangerous Heat Conditions

In Texas, average summer temperatures frequently reach over 90 °F, 4 and are often
combined with humidity levels that can approach 100%.5 These temperatures produce concerns
for health among the general population.6 Air conditioning in these conditions becomes very
important, particularly for children, the elderly, and people with disabilities or medical
conditions that make them vulnerable to the heat.7 It is estimated that by the year 2011, 88% of
newly built single family homes in the United States were equipped with air conditioning.8
Prisoners with certain physical or medical conditions are at an even higher risk for heat-related
illnesses, as they are encarcerated in enclosed environments with limited freedom of movement.
Nevertheless none of the TDCJ facilities in which inmates died of heat illnesses were equipped
with air conditioning for the general inmate population.9
The National Weather Service (NWS) recognizes the danger of heat-related injury,
calling excessive heat “one of the leading weather-related killer[s] in the United States, resulting
in hundreds of fatalities each year.”10 As humidity increases, the chances of heat-related injury
rise to dangerous levels, even at relatively low summer temperatures.11 The NWS offers a chart12
to identify the risks of heat-related injury in different climates, which shows a sharp increase in
the likelihood of heat-related injury when high humidity coincides with high temperatures.13
Despite these risks, Texas prison staff has recorded prison internal heat indices that fall squarely
in the “extreme danger” category identified by the NWS, illustrating the TDCJ’s continued
indifference to endangering the health or lives of heat-vulnerable inmates.14

4

Climatology Comparison, THE WEATHER CHANNEL,
http://www.weather.com/weather/wxclimatology/compare/77002?sfld1=Palestine,%20TX&sfld2=Rusk,%20TX&cl
ocid1=&clocid2= (last visited Feb. 27, 2014).
5
See infra Figure 2.
6
Hot Weather Exercise Tips, TEXAS HEART INSTITUTE (December 2013),
http://www.texasheart.org/hic/topics/hsmart/hydrate.cfm (last visited Feb. 27, 2014).
7
Heat: A Major Killer, NAT’L WEATHER SERV. OFFICE OF CLIMATE, WATER, AND WEATHER SERV.S (Jan. 14, 2014),
http://www.nws.noaa.gov/os/heat/index.shtml (last visited Feb. 27, 2014) [hereinafter NWS].
8
U.S. Dep’t of Commerce, Heating and Cooling the Home, U.S. CENSUS BUREAU NEWS: FACTS FOR FEATURES,
April 22, 2013, available at https://www.census.gov/newsroom/releases/pdf/cb13ff-08_earthday.pdf.
9
Frequently Asked Questions, TEX. DEP’T OF CRIMINAL JUSTICE, https://www.tdcj.state.tx.us/faq/faq_cid.html#air
(last visited Feb. 27, 2014).
10
NWS, supra note 7.
11
Id.
12
See infra Figure 1.
13
Id.
14
See infra Figure 2.

8

Figure 1: NWS Heat Index Chart15
Texas has one of the highest imprisonment rates and one of the largest inmate
populations in the country.16 The TDCJ’s latest published statistics show that there were 152,303
incarcerated individuals in TDCJ facilities as of August 31, 2012,17 located in 109 TDCJ units
throughout the state.18 Most of these inmates are exposed to extreme heat. Recent TDCJ
temperature logs have recorded heat indices surpassing 100 °F by 8:30 in the morning.19 Even if
the climate remained in this state for the entire day, inmates already would be facing heat indices
that the NWS has identified as approaching with extreme caution due to an increased likelihood
of heat-related injury.20 In some instances, records also show that air temperatures outside some
TDCJ facilities have spiked above 110 °F by 10:30AM, resulting in a heat index exceeeding 149
°F.21 These temperatures can remain at that level for several hours;22 indeed, investigations into
heat-related deaths at TDCJ facilities have found temperatures above 90 °F even past midnight.23
This heat far exceeds any levels of extreme danger identified by the NWS.24

15

NWS, supra note 7.
E. ANN CARSON & DANIELA GOLINELLI, BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2012 – ADVANCE COUNTS
1 (July 2013), available at http://www.bjs.gov/content/pub/pdf/p12ac.pdf.
17
TEX. DEP’T OF CRIMINAL JUSTICE, FISCAL YEAR 2012 STATISTICAL REPORT 1, available at
http://www.tdcj.state.tx.us/documents/Statistical_Report_FY2012.pdf.
18
Unit Directory, TEX. DEP’T OF CRIMINAL JUSTICE, http://www.tdcj.state.tx.us/unit_directory/index.html (last
visited Feb. 27, 2014).
19
See infra Figure 2.
20
NWS, supra note 7.
21
See infra Figure 2.
22
Id.
23
Complaint at 130–31, Hinojosa v. Livingston, No.2:13-cv-00319 (S.D. Tex. Dec. 15, 2013); UNIVERSITY OF
TEXAS MEDICAL BRANCH, FINAL AUTOPSY REPORT: HINOJOSA, ALBERT 2 (2012).
24
See supra Figure 1.
16

9

Figure 2: Temperature Log, Hutchins Unit, Texas Department of Criminal Justice25
Additionally, almost half of TDCJ facilities are built with outer walls that are either
partially or fully constructed from metal.26 Temperatures in these metal-constructed facilities are
consistently higher than ambient temperatures or temperatures in concrete facilities.27 Inmates
housed in these facilities have no way of escaping the heat, and are placed at risk of suffering
heatstroke as a result.
Despite extreme temperatures, TDCJ-run correctional facilities (with the exception of
hospitals and psychiatric facilities) generally do not provide air conditioning to prison inmates,
as would be the proper and adequate measure to take.28 While the commissaries in TDCJ
25

TEX. DEP’T OF CRIMINAL JUSTICE, TEMPERATURE LOG HUTCHINS UNIT (July 19, 2011).
Joseph Torey Nalbone, Evaluation of Building and Occupant Response to Temperature and Humidity: NonTraditional Heat Stress Considerations: A Comparison of Different Construction Types Used by the Texas
Department of Criminal Justice 7 (Dec. 2004) (unpublished Ph.D. dissertation, Texas A&M University), available at
http://repository.tamu.edu/bitstream/handle/1969.1/1504/etd-tamu-2004C-ITDE-Nalbone.pdf?sequence=1.
27
Id. at 29.
28
Frequently Asked Questions, supra note 9.
26

10

facilities sell fans to inmates for $22.50,29 those fans are the fifth most expensive item on a list
that is largely populated with items costing less than a dollar each. 30 Not only is this price
prohibitively expensive to many suffering inmates, the use of fans in extremely hot and humid
conditions may not even mitigate the situation for these prisoners. Studies conducted by the CDC
have reported that fans will not protect a person from heatstroke and heat-related illnesses when
temperatures are above 90 °F and humidity is above 35%.31 In fact, using fans in extremely hot
and humid conditions may actually increase heat stress on the body.32 As already stated, TDCJ
records33 show that temperatures and humidity in its prison units many times exceed these levels
in the summer months, causing danger to inmates that can quickly progress to death.34

29

TEX. DEP’T OF CRIMINAL JUSTICE, COMMISSARY AND TRUST FUND PRICE LIST (Nov. 22, 2013), available at
http://www.tdcj.state.tx.us/documents/finance/Commissary_Price_List_11-22-2013.pdf.
30
Id. Texas Citizens United for Rehabilitation of Errants (TX-CURE) runs a fan program through which indigent
prisoners are provided fans at no cost to them. Texas CURE Fan Program, TEXAS CURE,
http://www.texascure.org/fanprogram.html (last visited Apr. 3, 2014). However, the availability of the fans is
dependent on donations received by TX-CURE, and “the group never has enough funding to help everyone who
requests [a fan].” Bob Ray Sanders, When Summer arrives, Texas inmates suffer more, FORT WORTH STARTELEGRAM, (Jun. 1, 2013), http://www.star-telegram.com/2013/06/01/4899449/sanders-when-summer-arrivestexas.html.
31
Ctr.s for Disease Control and Prevention, Heat–Related Illnesses, Deaths, and Risk Factors --- Cincinnati and
Dayton, Ohio, 1999, and United States, 1979–1997, MORBIDITY AND MORTALITY WEEKLY REPORT (June 2, 2000),
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm4921a3.htm (last visited Feb. 27, 2014) [hereinafter MORBIDITY
AND MORTALITY WEEKLY REPORT].
32
See, e.g., Precautions Can Prevent Heat-Related Illnesses, CITY OF HOUSTON,
http://www.houstontx.gov/health/heatillness.html (last visited Apr. 2, 2014); Fans, NATIONAL COLLABORATING
CENTRE FOR ENVIRONMENTAL HEALTH (March 2011), http://www.ncceh.ca/en/major_projects/heat_advice/fans (last
visited Apr. 2, 2014).
33
See supra Figure 2.
34
See R. Sari Kovats & Shakoor Hajat, Heat Stress and Public Health: A Critical Review, 29 ANNUAL REV. OF PUB.
HEALTH 9.1, 9.2 (2008), available at
http://cgch.lshtm.ac.uk/Heat%20Stress%20and%20Public%20Health%20A%20critical%20review.pdf.

11

Figure 3: Small Fan in Inmate Cell35
Deadly Texas prison temperatures have been a long-standing, ongoing issue in TDCJ-run
facilities, and the TDCJ is well aware of this issue. For example, at least sixteen Texas prison
inmates experienced symptoms related to hyperthermia in the summer of 1998, three of whom
died from their symptoms.36 Many of those inmates had preexisting health conditions and were
receiving psychotropic medications, yet were housed in units that were not cooled to their
medical needs.37 Over the years, TDCJ facilities seem to have seen little improvement,
completely disregarding the rights and dignity of its inmates. Since 2007, at least fourteen
inmates have died from extreme heat38 in nine different TDCJ prisons.39 All fourteen inmates
had preexisting health circumstances that rendered them more vulnerable to heat-related
illnesses, such as obesity, diabetes, and history of hypertension. 40 41 Thirteen of the fourteen
35

Photograph, Tex. Dep’t of Criminal Justice, Polunsky Unit Fan, Livingston, TX (Jan. 1, 2006) (on file with
author).
36
HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH MENTAL ILLNESS 125 (2003),
available at http://www.hrw.org/reports/2003/usa1003/13.htm; Letter from Dr. Jeffrey L Metzner to attorney Donna
Brorby (December 31, 1998) 17, available at http://www.clearinghouse.net/chDocs/public/PC-TX-0003-0015.pdf.
37
HUMAN RIGHTS WATCH, supra note 36.
38
Amended Complaint at 14–15, Adams v. Livingston, No.3:13-cv-00217 (S.D. Tex. July 24, 2013). There may well
be more heat-related deaths that have not been reported as such. See Abderrezak Bouchama & James P. Knochel,
Heat Stroke, 346 NEW ENG. J. MED. 1978, 1978 (2002) (stating that heat stroke is an underdiagnosed illness).
39
Id. at 14–15. These units are Byrd Unit, Gurney Unit, Hutchins Unit, Coffield Unit, Hodge Unit, Michael Unit,
Huntsville Unit, Connally Unit, and Garza West Unit.
40
RICHARD BEEBE & JEFFREY MYERS, PROFESSIONAL PARAMEDIC, VOLUME III: TRAUMA CARE & EMS
OPERATIONS 271 (2011); Extreme Heat: A Prevention Guide to Promote Your Personal Health and Safety
Continued, CTR.S FOR DISEASE CONTROL AND PREVENTION (July 31, 2009),
http://www.bt.cdc.gov/disasters/extremeheat/heat_guide-page-2.asp (last visited Feb. 27, 2014); Frequently Asked

12

inmates were also on prescribed medication at the time of their deaths. 42 These medications
included diuretics, psychotropics, and beta-blockers,43 all of which can further inhibit the body’s
ability to sweat or otherwise cool down, and should have alerted medical staff of inmates’
susceptibility to heatstroke. Five of the inmates spent less than a week in TDCJ custody before
the dangerously hot conditions in the prison facilities, and the lack of proper TDCJ preventative
measures, killed them.44 All inmates whose body temperatures were measured had body
temperatures of over 105 °F at the time of their deaths.45
High temperatures have not only exposed inmates to dangerous situations and caused
multiple deaths, but have also consistently and systematically harmed prison personnel. In 2012,
92 TDCJ correctional officers suffered heat-related injuries or illnesses, and 55 additional
injuries and illnesses were recorded by the TDCJ by September of 2013.46 Many of these same
officers also filed workers’ compensation claims with the Texas Department of Insurance. 47 In
2011, 66 heat-related workers’ compensation claims were filed by TDCJ correctional officers, 66
were filed in 2012, and 40 in 2013.48 The situation has become so egregious that in October of
2013, union officials representing corrections officers in Texas prisons publicly supported
lawsuits filed by families of prisoners who had died, citing the stifling heat and heat-related
injuries among prison guards.49 The union reported that corrections officers complained of
temperatures as high as 130 °F, and were especially incensed that Texas had spent $750,000 on
exhaust fans and misters for pig farms to keep swine cool, while neglecting extreme heat
conditions for inmates and guards inside the prisons.50 Not only does this heat cause significant
injury to guards, but it also precludes them from properly managing inmates by discouraging
prolonged exposure to the extremely hot inmate housing areas of the prisons.
The dangerous heat situation in Texas prisons is well documented. Almost every audit
report of the American Correctional Association (ACA)51 performed on TDCJ facilities during

Questions About Extreme Heat, CTR.S FOR DISEASE CONTROL AND PREVENTION (Aug. 15, 2006),
http://www.bt.cdc.gov/disasters/extremeheat/faq.asp (last visited Feb. 27, 2014).
41
Amended Complaint, supra note 38, at 15.
42
Id.
43
Id.
44
Id. at 23.
45
Id. at 21.
46
Brittney Martin, Guards May Join Inmates in Complaints Over Heat in Texas Prisons, DALLAS NEWS (Sept. 17,
2013), http://www.dallasnews.com/news/state/headlines/20130917-guards-may-join-inmates-in-complaints-overheat-in-texas-prisons.ece (last visited Feb. 27, 2014).
47
Id.
48
E-mail from Roslan Daniels, Program Supervisor I, Risk Management, ARRM Division, Texas Department of
Criminal Justice, to author (March 27, 2014, 4:00 CST) (on file with author). These numbers may be higher. See
Martin, supra note 46 (stating that 72 “heat prostration” claims were filed by corrections employees in 2012).
49
Ann Zimmerman, Extreme Heat Tests Prisons, WALL ST. J., Oct. 17, 2013, available at
http://online.wsj.com/news/articles/SB10001424052702304441404579123381202026834.
50
Id.
51
The ACA promulgates national standards applicable to domestic correctional facilities. Standards &
Accreditation, AMERICAN CORRECTIONAL ASSOCIATION, https://www.aca.org/standards/faq.asp#overview_whatis
(last visited Feb. 27, 2014). For a facility to become ACA accredited, it must comply with a certain percentage of
ACA standards. Id. Compliance is based largely on the results of an ACA audit. Id. If a facility is found to be in

13

the summer months mention the hot conditions inside TDCJ prisons.52 The audit for the ColeMoore unit, in particular, mentions that the inmate living areas were “uncomfortably warm in
spite of the use of large fans.”53 In addition, the ACA’s audit of the Gurney Unit noted the deaths
of five inmates in the “very hot summer” of 2011, stating that “[e]ach of these persons had
medical and/or mental health conditions that placed him at risk, and excessive heat was judged to
have been a significant contributing factor in the deaths.”54 While the ACA accredited these
units, the subject of heat was brought up time and again, showing that extreme heat is a tangible
and noticeable issue in TDCJ facilities.55 Despite these findings, the TDCJ has failed to take any
proper action.
II.

Extreme Heat in TDCJ Facilities is Unhealthy

Extreme heat injuries are widely studied in medical and scientific literature, as well as by
government and regulatory bodies. The effect of excessive heat on the human body is called
hyperthermia.56 One result of hyperthermia is heat stroke,57 the most extreme type of heat-related
injury and the sort suffered by those who died in TDCJ prisons. Heat stroke occurs once the body
is no longer able to reduce its internal temperature.58 When this occurs, the body’s internal
temperature rises to 106 °F within ten to fifteen minutes; two inmates who died from heat stroke
in TDCJ facilities had body temperatures above 109 °F at time of death. 59 60 The pulse becomes
strong and rapid,61 and his or her skin will feel very hot.62 Eventually, the person may become
compliance and is subsequently accredited, the accreditation award will last up to three years, at which point the
facility must become re-accredited. Id.
52
See, e.g., AMERICAN CORRECTIONAL ASSOCIATION COMMISSION ON ACCREDITATION FOR CORRECTIONS,
ACCREDITATION REPORT: BRISCOE/COTULLA UNIT 7 (2012); AMERICAN CORRECTIONAL ASSOCIATION COMMISSION
ON ACCREDITATION FOR CORRECTIONS, ACCREDITATION REPORT: COLE/MOORE UNIT 7 (2012) [hereinafter
COLE/MOORE UNIT]; AMERICAN CORRECTIONAL ASSOCIATION COMMISSION ON ACCREDITATION FOR CORRECTIONS,
ACCREDITATION REPORT: EASTHAM UNIT 6 (2011). Despite these issues, every TDCJ-run facility subject to ACA
audits in the last three years has been accredited by the ACA.
53
COLE/MOORE UNIT, supra note 52, at 7.
54
AMERICAN CORRECTIONAL ASSOCIATION COMMISSION ON ACCREDITATION FOR CORRECTIONS, ACCREDITATION
REPORT: GURNEY UNIT 9 (2012).
55
There has been some criticism among significant organizations such as the ABA about the accreditation process
of prison accreditation bodies. See American Bar Association Criminal Justice Section, Key Requirements for the
Certification of Correctional Accrediting Agencies (2011), available at
http://www.americanbar.org/content/dam/aba/administrative/criminal_justice/2011a_resolution_105b.authcheckdam
.pdf (critiquing currently available accreditation processes and calling for more transparency and accountability of
accreditation bodies).
56
NWS, supra note 7.
57
Ctr.s for Disease Control and Prevention, Heat Stress, THE NAT. INST. FOR OCCUPATIONAL SAFETY AND HEALTH
(Nov. 7, 2013), http://www.cdc.gov/niosh/topics/heatstress/ (last visited Feb. 27, 2014) [hereinafter NIOSH].
58
Id.
59
Id.
60
Amended Complaint, supra note 38, at 15.
61
Heat Illness, U.S. NAT’L LIBRARY OF MEDICINE NAT’L INST.S OF HEALTH (Feb. 25, 2014),
http://www.nlm.nih.gov/medlineplus/heatillness.html (last visited Feb. 27, 2014).
62
Heatstroke: Symptoms, MAYO CLINIC (Sept. 2, 2011), http://www.mayoclinic.org/diseases-conditions/heatstroke/basics/symptoms/con-20032814 (last visited Feb. 27, 2014).

14

unconscious.63 At a certain point, the organs, including the brain, will stop functioning. 64 Given
prompt and proper treatment, a person may recover from this condition, but if left untreated, the
person risks permanent disability or death, sometimes within ten to fifteen minutes.65
Several other types of injuries can result from exposure to excessive heat. At any stage of
heat-related illness, prompt treatment is important to stave off more dangerous symptoms.66
Heat-related illness can manifest in relatively mild conditions, like heat rash, where a person’s
skin breaks out in rough, itchy patches of red blemishes.67 More than just an uncomfortable
inconvenience, these red splotches impede the skin’s ability to sweat, which further exacerbates
the body’s overheating problem.68 If the person has been involved in strenuous physical activity,
heat cramps may also occur.69 These are painful and uncontrollable muscle spasms in the legs or
the abdomen.70 More serious conditions include heat exhaustion, where a person becomes
sluggish and very weak as their body pushes to cool itself.71 The person develops cold and
clammy skin, a weak and rapid pulse, and may even faint.72 Because the body’s primary coping
mechanism for heat is sweating, dehydration often accompanies heat-related illnesses.73
Dehydration is dangerous not only because it means the body can no longer sweat properly, but
also because it can independently lead to organ failure through the loss of important electrolytes
and nutrients on which the body relies to function properly.74
The effect of heat on an individual’s physiology will vary from person to person.
However, organizations such as the Department of Labor’s Occupational Safety and Health
Administration (OSHA) and the CDC have outlined conditions where the likelihood of heatrelated illness increases across the broader population.
The OSHA recommends that even workers involved in light, sedentary work like writing
or knitting should avoid continuous work in temperatures higher than 87 °F.75 The OSHA states
that ample supplies of liquids should be made available to these workers, and that workers
should drink small amounts frequently (such as one cup every twenty minutes) to replace lost
fluids.76 Furthermore, efforts at climate control like proper ventilation, air conditioning and fans

63

Id.
Id.
65
Id.
66
NWS, supra note 7.
67
NIOSH, supra note 57.
68
Id.
69
NWS, supra note 7.
70
Id.
71
NIOSH, supra note 57.
72
Id.
73
NWS, supra note 7.
74
Dehydration, MAYO CLINIC (Feb. 12, 2014),
http://www.mayoclinic.com/health/dehydration/DS00561/DSECTION=complications (last visited Feb. 27, 2014).
75
OSHA Technical Manual (OTM) Section III: Chapter 4, UNITED STATES DEPARTMENT OF LABOR OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION, available at
https://www.osha.gov/dts/osta/otm/otm_iii/otm_iii_4.html#iii:4_3.
76
Id.
64

15

should be used to avoid heat-related injury.77 The CDC has adopted similar recommendations.
Any time heat-related injury may become an issue, the CDC recommends the frequent
replacement of fluids and taking breaks from prolonged exposure to extreme heat and
humidity.78 The CDC has also found that while fans may be helpful and may increase comfort
when temperatures are below 90 °F, they will not protect against heatstroke and heat-related
illnesses when temperatures are above 90 °F and humidity is above 35%.79
For instance, in 2006, the CDC investigated climatic conditions at an aluminum smelter
in Texas during late July.80 The CDC investigation discovered that workers in the smelting plant
were exposed to indoor temperatures ranging from 83 °F to 120 °F, accounting for humidity,
radiant heat, and wind.81 These temperatures are similar to those present in TDC facilities.82
Many participants in the investigation reported symptoms of heat-related injury like rapid
heartbeat, headache, muscle cramps, and lightheadedness,83 and showed signs of inadequate
hydration and acute kidney injury from fluid depletion.84 Given these findings, the CDC report
recommended the installation of a cooling area and the elimination of long overtime shifts that
exposed workers to overheated conditions for prolonged periods.85 By continuing to subject
TDCJ inmates to extreme heat for hours at a time, the TDCJ has clearly not followed the
recommendations of this CDC report. Additionally, the CDC found that personal protective
equipment86 was considered “the least effective means for controlling employee exposures,”
“should not be relied upon as the sole method for limiting employee exposures,” but rather was
to be used “until engineering and administrative controls can be demonstrated to be effective in
limiting exposures to acceptable levels.”87 Therefore, while provision of lightweight or
“appropriate”88 clothing may be helpful in mitigating heat-related injury, it is, on its own, not
enough to adequately limit inmate heat exposure.
The TDCJ Risk Management Department is well aware of the risks of heat-related
illnesses when temperatures and humidity rise. In its May 2013 Training Circular, a publication
77

Id.
NIOSH, supra note 57.
79
MORBIDITY AND MORTALITY WEEKLY REPORT, supra note 31.
80
BICH DANG ET AL., NAT’L INST. FOR OCCUPATIONAL SAFETY AND HEALTH, HEAT STRESS AND STRAIN
EVALUATION AMONG ALUMINUM POTROOM EMPLOYEES – TEXAS iv (2011), available at
http://www.cdc.gov/niosh/hhe/reports/pdfs/2006-0307-3139.pdf.
81
Id. at 5.
82
See supra Figure 1.
83
Id. at 6.
84
Id. at 7.
85
Id. at 10–11.
86
Personal protective equipment is defined as equipment worn to minimize exposure to serious workplace injuries
and illnesses. Personal Protective Equipment, OCCUPATIONAL SAFETY & HEALTH ADMIN.,
https://www.osha.gov/SLTC/personalprotectiveequipment/ (last visited March 29, 2014). The CDC report suggests
the use of lightweight, reflective aprons as personal protective equipment for aluminum plant workers. DANG ET AL.,
supra note 80, at 11 . Personal protective equipment protecting against heat stress can include, among other things,
reflective clothing or wetted clothing. Heat Stress Guide, OCCUPATIONAL SAFETY & HEALTH ADMIN.,
https://www.osha.gov/SLTC/emergencypreparedness/guides/heat.html (last visited March 29, 2014).
87
DANG ET AL., supra note 80, at 11.
88
ADMIN. DIRECTIVE AD-10.64 (REV. 6) 5 (2008).
78

16

distributed among TDCJ employees to manage risk and to raise awareness in TDCJ prisons, the
TDCJ admits that risks for heatstroke can begin at temperatures as low as 91 °F, and that
temperatures of 95 °F can create an imminent danger of developing heatstroke.89 Despite this
training, the TDCJ has failed to adopt comprehensive measures to prevent or minimize risk of
heat-related injury. The Risk Management Department has even trained its employees in heat
injury prevention for their pets, asking employees if their homes were air conditioned and if
fresh, cool water was available to their pets at all times.90 Unfortunately for TDCJ inmates, these
measures are not made available to them in their cells, and temperatures in TDCJ-run
correctional facilities continue to pose a threat to the lives of TDCJ inmates.

Figure 4: TDCJ Risk Management Department: Injury Prevention—Heat Awareness
Training91

III.

Texas Prisons Lack Adequate and Effective Policies to Protect Inmates from
Exposure to Extreme Heat and Heat-Related Injuries

Despite the obvious need for procedures to mitigate heat-related situations in Texas
prisons, the TDCJ does not have standards in place to protect inmates from life-threatening
temperatures in their cells, and has failed to adopt effective measures to do so.
While the Executive Director of TDCJ has a statutory responsibility to establish or to
delegate the establishment of guidelines for the treatment of prisoners under TDCJ care,92
currently promulgated procedures controlling inmate exposure to extreme temperatures apply
89

Tex. Dep’t of Criminal Justice, May Hot Weather, TDCJ RISK MGMT.’S TRAINING CIRCULAR, May 2013, at 4,
available at https://www.tdcj.state.tx.us/documents/training_circular/Training_Circular_2013-05.pdf.
90
SHERILYN EPPERSON, TEX. DEP’T OF CRIMINAL JUSTICE, INJURY PREVENTION—HEAT AWARENESS TRAINING 9,
10 (2010).
91
Id. at 9.
92
TEX. GOV’T CODE § 493.006 (2011).

17

only to the working conditions of inmates, not to their living areas. 93 Acccording to those
procedures, when inmates are placed in work environments where temperatures cannot be
controlled by the TDCJ (such as outdoor work), the Warden and the Department Supervisors
must ensure that appropriate measures are taken to prevent temperature-related injury.94 When
there exists a possibility of heat exhaustion or heatstroke, the Warden must instruct staff to
initiate precautionary measures.95 At heat indices as low as 90 °F, staff is required to implement
five minute rest breaks per hour for inmates on work assignment. 96 When the heat index reaches
110 °F, staff must promote high water intake, implement five minute rest breaks every half hour
during which inmates must lie down with their feet raised, and work is to be reduced by one
third.97 When the heat index reaches 130 °F, work pace should be reduced by one half to two
thirds, excessive water intake is required, and ten minute rest breaks are implemented every half
hour, during which inmates must lie down with their feet raised.98 Staff is also is instructed to
conduct a special medical evaluation on inmates taking diuretics or other sweat-inhibiting drugs
before assigning them to work assignments in extreme heat conditions.99 Although these detailed
standards are useful to both staff and inmates in prison work environments, no similar TDCJ
standard is available for inmate cells and living areas, where inmates spend a large part of their
time. Given that many of the most heat-vulnerable prisoners may not be allowed to work due to
their health issues, heat-mitigating measures in work environments do not help the situation of
the most heat-sensitive inmates.100
This is not to say that all Texas governmental agencies have failed to act with regard to
inmate housing conditions. While the TDCJ is responsible for operation of many state
correctional facilities, the Texas Commission on Jail Standards (TCJS) regulates and monitors
county jails and privately operated municipal jails in the state of Texas.101 The TCJS has
promulgated temperature standards in the Texas Administrative Code in order to protect county
and municipal jail inmates. These standards require that “temperature levels shall be reasonably
maintained between 65 degrees Fahrenheit and 85 degrees Fahrenheit in all occupied areas.”102
In contrast, the TDCJ has failed to adopt any heat-related policies or procedures
applicable to inmate housing spaces in its own facilities, despite the Department’s awareness of
the dangers of heat to inmates’ health and well-being.103 Air conditioning is available in TDCJ
warden offices104 and even in prison armories105 but not for the general inmate population.106
93

ADMIN. DIRECTIVE AD-10.64 (REV. 6) (2008).
Id. at 1.
95
Id. at 5.
96
Id. at 10.
97
Id.
98
Id.
99
Id. at 5.
100
See id. at 5 (“Offenders under treatment with diuretics or drugs inhibiting sweating require special medical
evaluation prior to assignment to work in extreme heat.”).
101
TEX. ADMIN. CODE § 251.1 (2011).
102
TEX. ADMIN. CODE §§ 259.160, 261.160, 261.255, 261.350 (2011).
103
May Hot Weather, supra note 89.
104
Deposition of Robert Eason at 111, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Tex. 2013).
94

18

While air conditioning is also available in some TDCJ medical facilities,107 the majority of
prisoners, such as those serving short-term sentences for nonviolent offenses, suffer in
inadequately cooled environments.108 Although some ventilation is provided in inmates’ cells,
when the climate becomes too hot and humid, providing ventilation without adequate measures
for cooling does not provide relief. Ventilation and electric fans cannot guarantee that conditions
are maintained at safe temperatures, particularly once temperatures exceed 90 °F.109
Without a statute or administrative policy setting maximum allowable temperatures for
TDCJ prison cells, TDCJ officials currently ignore the effects of extreme temperatures on
inmates without risking immediate consequences. This practice has fostered an environment that
subjects inmates to human rights violations and extremely dangerous and life-threatening
conditions.
IV.

Texas Lags Behind Other States in Protecting Inmates from Extreme Heat

Many state prison administrative bodies, in states with similar weather conditions as
Texas, have established heat-related standards for prisons that are compatible with the
requirements of international law and the Eighth Amendment. The Arkansas Department of
Corrections mandates summertime cell temperatures to be between 74 °F and 78 °F, and all
prisons have been air-conditioned since the late 1970s.110 The Arizona Department of
Corrections requires indoor temperatures of its prison facilities to be maintained at a maximum
temperature of 78 °F through the use of mechanical cooling. This maximum temperature is
allowable only when it falls within the American Society of Heating, Refrigerating and AirConditioning Engineers (ASHRAE) “summer comfort zone” standard; a lower air temperature
may be required of the facility if exacerbating factors, such as high humidity levels, are
present.111 ASHRAE, a leading and widely respected international building technology society,
defines “summer comfort zones” through the use of parameters such as air temperature,
humidity, and air speed.112 Similarly, both the New Mexico Department of Corrections and the
Oklahoma Department of Corrections require prison inmate housing areas to be maintained at

105

Deposition of Richard Thaler at 180, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Tex. 2013).
Id.
107
Frequently Asked Questions, supra note 9.
108
Elizabeth Koh, Climate-Controlled Swine Buildings Dismay Inmates’ Advocates, THE TEXAS TRIBUNE (Aug. 16,
2013), http://www.texastribune.org/2013/08/16/cooling-tdcj-swine-units-dismays-inmate-/ (last visited Feb. 27,
2014).
109
NIOSH, supra note 57.
110
Mike Ward, Guards to join convict litigation over hot state prisons, AUSTIN AMERICAN-STATESMAN (Aug. 29,
2013), http://www.statesman.com/news/news/guards-to-join-convict-litigation-over-hot-state-p/nZgSD/ (last visited
Feb. 27, 2014).
111
PHYSICAL PLANT STANDARDS TECHNICAL MANUAL 1.5.1.3.2.1 (Ariz. Dep’t of Corrections 2012).
112
See Hoyt Tyler et al., CBE Thermal Comfort Tool, CTR. FOR THE BUILT ENVIRONMENT AT UNIV. OF BERKELEY
(2013), available at
http://cbe.berkeley.edu/comforttool/ (showing ASHRAE-compliant “comfort zones”).
106

19

temperatures appropriate to both summer and winter comfort zones.113 While this language is
open to interpretation, use of the ASHRAE definition of “comfort zones” would produce specific
maximum temperatures for straightfoward staff implementation.114 All these states, like Texas,
experience extremely hot temperatures in the summer, but are still committed to setting humane
temperatures for inmates incarcerated in their state prisons.
While the above departments of corrections run facilities are analogous to those run by
the TDCJ, multiple states have also established specific temperature standards for county and
municipal jails. As previously discussed, the Texas Administrative Code requires that county and
municipal jails maintain “temperature levels… between 65 degrees Fahrenheit and 85
degrees Fahrenheit.”115 The Tennessee Corrections Institute, under the authority of the
Tennessee Administrative Code, requires local jails, lock-ups, workhouses, and detention
facilities to maintain inmates’ sleeping and activity areas at temperatures between 65 °F and 80
°F.116 North Carolina county jails and municipal lockups are required to have ventilation and air
conditioning systems capable of keeping confinement areas at 85 °F or below.117 The Illinois
Administrative Code provides that municipal jails must routinely provide temperatures between
67 °F and 85 °F.118
Even when correctional facilities are not bound by directives or statutes specifically
delineating maxiumum allowable cell temperatures, departments of corrections in other states
have publicly recognized the dangers of extreme heat to their inmates. In the recent investigation
of the heat-related death of Jerome Murdough, a mentally-ill homeless man who was put in a
Rikers Island jail for trespassing “after trying to curl up and sleep in an enclosed stairwell on a
113

PHYSICAL PLANT REQUIREMENTS CD-163000 FF (N.M. Dep’t of Corrections 2011); STANDARDS FOR
INSPECTIONS OP-130107.IV.B.16 (Okla. Dep’t of Corrections 2012).
114
The Adult Correctional Facilities manual from the American Correctional Association currently applies the same
language seen in the New Mexico and Oklahoma policies to all adult correctional institutions, noting that
“[t]emperatures in indoor living areas” must be “appropriate to the summer and winter comfort zones.” AMERICAN
CORRECTIONAL ASSOCIATION, 2012 STANDARDS SUPPLEMENT § 4-4153 (2012) [hereinafter STANDARDS
SUPPLEMENT]. However, the ACA has recently discussed potential improvements to its current facility standards.
While suggested changes from the current standard have yet to be accepted by the ACA Standards Committee,
suggestions over the past year have included requiring ASHRAE standards compliance and requiring a maximum
temperature of 78 °F in new construction living areas. AMERICAN CORRECTIONAL ASSOCIATION, STANDARDS
COMMITTEE MEETING MINUTES ACA File No. 2012-067 (July 2012) available at
http://www.aca.org/standards/pdfs/Standards_Committee_Meeting_August_2012.pdf; ACA AMERICAN
CORRECTIONAL ASSOCIATION, STANDARDS COMMITTEE MEETING MINUTES: PHYSICAL PLANT STANDARDS
SUBCOMMITTEE UPDATE – JANUARY 2013 2 (Jan. 2013), available at
http://www.aca.org/standards/pdfs/Standards_Committee_Meeting_Minutes_January_2013.pdf; ACA AMERICAN
CORRECTIONAL ASSOCIATION, STANDARDS COMMITTEE MEETING MINUTES: PHYSICAL PLANT STANDARDS
SUBCOMMITTEE UPDATE – AUGUST 2013 1–2 (Aug. 2013), available at
http://www.aca.org/standards/pdfs/Standards_Committee_Meeting_August_2013.pdf. This ongoing discussion
shows concern for the lack of specificity in the current ACA standards and the fear that some facilities, such as
TDCJ-run prisons, will not adequately adhere to the inmate living standards expected by the ACA and the
international community.
115
TEX. LOCAL GOV’T CODE § 351.004 (2011).
116
RULES OF THE TENNESSEE CORRECTIONS INSTITUTE CORRECTIONAL FACILITIES INSPECTION 1400-1.04(1)(d)
(Tennessee Corrections Institute 2004).
117
N.C. ADMIN. CODE § 14J.1217 (2013).
118
22 ILL. REG. 19227 § 720.40 (2013).

20

chilly winter night,” the New York City Department of Correction found that several cells in the
jail were warmer than 80 °F.119 As a result of these findings, the department said that it had taken
steps to fix overheating issues, such as correcting any mechanical issues in the facility, despite
not being bound by a specific maximum temperature standard.120 The lack of written maximum
temperature standards for TDCJ facilities is therefore no excuse for the extreme heat conditions
in prisoners’ living areas.
The American Bar Association (ABA) has also addressed the issue of extreme heat in the
Standards on the Treatment of Prisoners. 121 While these standards have no binding authority on
the TDCJ or any other jurisdiction, they were developed and approved as a set of workable
standards by a diverse group of legal and correctional practitioners with the intention of guiding
courts in their interpretation of constitutional requirements that apply to prisoners. These
standards can help guide correctional departments towards safe, humane, and effective
facilities.122 The standards provide that the physical plant of the correctional facility should have
appropriate ventilation systems.123 In its commentary, the ABA adds that “cooling should be
appropriate to maintain humane comfort and safety in all living and work areas” (emphasis
added).124 It also specifically notes that prisoners who are “particularly vulnerable to heat-related
illnesses”125 should be safely accommodated, and says that “a prison without air conditioning…
poses acute dangers to prisoners who are taking certain psychoactive medications.”126 Thirteen
of the TDCJ inmates who have died since 2007 were in fact on such medications. It is clear that
the TDCJ, by allowing these individuals to live in non-air conditioned facilities, has not
adequately provided for the safety and health of its heat-vulnerable inmates.
In fact, the TDCJ has itself set administrative guidelines for extreme heat conditions
when inmates are on prison work assignment. As previously mentioned, the Warden and the
Department Supervisors have a duty to monitor temperatures when prisoners are working in
extreme heat, and to notify medical staff immediately when temperature-related injury occurs.127
TDCJ staff procedures require implementation of different heat-mitigating measures for different

119

Matt Pearce, Report: New York man ‘basically baked to death’ in Rikers Island Jail, L.A. TIMES, March 19,
2014, available at http://www.latimes.com/nation/nationnow/la-na-nn-new-york-jail-death20140319,0,1996037.story#axzz2wnl1NWTk.
120
Id.
121
See AMERICAN BAR ASSOCIATION, ABA STANDARDS FOR CRIMINAL JUSTICE: TREATMENT OF PRISONERS 79–81
(3d. 2011), available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.authc
heckdam.pdf (discussing standards of housing prisoners); AMERICAN BAR ASSOCIATION, ABA STANDARDS FOR
CRIMINAL JUSTICE: TREATMENT OF PRISONERS 70–78 (3d. 2011), available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Treatment_of_Prisoners.authc
heckdam.pdf (discussing standards of treatment of prisoners potentially vulnerable to heat-related illnesses).
122
Id. at 1.
123
Id. at 63.
124
Id. at 65.
125
Id. at 70.
126
Id. at 78.
127
ADMIN. DIRECTIVE AD-10.64 (REV. 6) 6–7, 9–12 (2008).

21

temperatures,128 clearly demonstrating the TDCJ’s knowledge of how extreme heat can harm
individuals, as well as its ability to promulgate specific standards when it wants to do so.
The ACA has promulgated standards for inmate housing areas in ACA-accredited
facilities.129 Its overarching principle for these standards states, “Inmate housing areas are the
foundation of institutional living and must promote the safety and well-being of both inmates and
staff.”130 The strong language of this statement suggests that the TDCJ’s failure to promote the
safety of inmates and staff is itself a deviation from the ACA’s expectations for its accredited
facilities. The ACA has also specifically addressed heating and cooling in inmate housing areas,
stating that temperatures in housing areas must be “appropriate to the summer and winter
comfort zones.”131 The ACA official comment to this nonmandatory standard notes that
“temperature and humidity should be capable of being mechanically raised or lowered to an
acceptable comfort level.”132 As previously discussed, fans are largely useless in high
temperature and high humidity conditions, and are not capable of mechanically lowering extreme
temperatures to a level that will protect inmates from the risk of heat injury.133 The TDCJ’s
failure to protect its inmates from heat injury through adequate mechanical measures such as air
conditioning therefore does not meet ACA’s heating and cooling standards for inmate housing
areas, nor its expectations for how these standards should be reached.
Therefore, the TDCJ’s failure to promulgate cohesive policies and procedures to ensure
safe temperatures are maintained in inmate living quarters is a clear and inexcusable departure
from best practices—and widely-adopted practices—around the country and in Texas, as
evidenced by other states’ practices regarding climate control, the ACA’s critiques of TDCJ
facilities on this front, the ABA standards with regard to humane temperatures, and the
regulations applicable to other types of correctional facilities in Texas.
V.

Current Texas Prison Conditions are Unconstitutional

Texas’ failure to guarantee adequate treatment of prisoners and safe climatic conditions
during detention is both unconstitutional and an international human rights violation. The Eighth
Amendment’s “cruel and unusual punishment” provision incorporates the requirement that
detention conditions respect human dignity.134 Indeed, the Supreme Court has said that, “The
basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” 135 In
Farmer v. Brennan the Supreme Court held that “deliberate indifference” to conditions of
confinement constitutes a violation of the Eighth Amendment when a prison official
demonstrates a subjective deliberate indifference to conditions posing a substantial risk of
128

Id.
AMERICAN CORRECTIONAL ASS’N, STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS (4th ed. 2003).
130
Id. at 36.
131
STANDARDS SUPPLEMENT, supra note 114, § 4-4153, at 58.
132
Id. § 4-4153 cmt. at 58.
133
MORBIDITY AND MORTALITY WEEKLY REPORT, supra note 31.
134
Furman v. Georgia., 408 U.S. 238, 241 (1972).
135
Trop v. Dulles, 356 U.S. 86, 100 (U.S. 1958).
129

22

serious harm to the inmate.136 In defining the subjective element of deliberate indifference, the
Court held that the mental state of the prison official should be analyzed according to the
criminal law standard of “reckless.”137 As such, if a prison official has “actual knowledge of a
potential danger” to a prisoner and fails to prevent this danger, then that official has acted with
deliberate indifference to the safety of the prisoner in violation of the Eighth Amendment.138 As
has already been stated, TDCJ officials have extensive knowledge of the extreme heat and the
danger that it poses to inmates. Specifically, TDCJ officials know that inmates with certain
health conditions are at a particularly high risk. TDCJ has been and continues to be acting with
deliberate indifference.
The Fifth Circuit has repeatedly held that high temperatures in a detention facility can
constitute a violation of the Eighth Amendment.139 In Smith v. Sullivan, the court held that relief
should be granted under the Eighth Amendment “if the proof shows the occurrence of extremes
of temperature that are likely to be injurious to inmates’ health.” 140 Drawing on this principle, in
the 2004 case Gates v. Cook, the Fifth Circuit upheld a district court decision that granted an
injunction to Mississippi death row inmates requiring provisions to cool themselves from May
through September or, alternatively, whenever the heat index was above 90 °F. 141 Expert
testimony in that case showed that even though in that case no prisoner had ever died of heat
stroke, the extreme heat in detention combined with the prison’s “deliberate indifference” to such
a significant risk of harm constituted an Eighth Amendment “cruel and unusual punishment”
violation.142
Following this holding, in Valigura v. Mendoza the Fifth Circuit stated that “we have
held that temperatures consistently in the nineties without remedial measures, such as fans, ice
water, and showers, sufficiently increase the probability of death and serious illness so as to
violate the Eighth Amendment.”143 The most recent opinion of the Fifth Circuit applying Eighth
Amendment obligations to temperature extremes in TDCJ facilities found that the prisonerplaintiff in that case had alleged sufficient facts to justify a finding that the state violated his
constitutional rights.144 Specifically, the prisoner was 63 years old, had a preexisting blood
pressure condition, and was taking medication that would affect his body’s ability to regulate
temperature.145 On 51 days during the prisoner’s confinement, the heat index reached levels
136

Farmer v. Brennan, 511 U.S. 825, 828 (1970).
Id. at 839.
138
Id. at 831.
139
See, e.g., Smith v. Sullivan, 553 F.2d 373, 381 (5th Cir. 1977); Gates v. Cook, 376 F.3d 323, 336 (5th Cir. 2004);
Valigura v. Mendoza, No. 07-40284 (5th Cir. 2008), available at
http://www.ca5.uscourts.gov/opinions/unpub/07/07-40284.0.wpd.pdf; Blackmon v. Garza, No. 11-40316 (5th Cir.
2012), available at http://www.ca5.uscourts.gov/opinions%5Cunpub%5C11/11-40316.0.wpd.pdf.
140
Smith v. Sullivan, 553 F.2d at 381 (5th Cir. 1977).
141
Gates v. Cook, 376 F.3d at 336 (5th Cir. 2004).
142
Id. at 339.
143
Valigura v. Mendoza, No. 07-40284, at 5 (5th Cir. 2008), available at
http://docs.justia.com/cases/federal/appellate-courts/ca5/07-40284/07-40284.0.wpd-2011-02-25.pdf?1301264190.
144
Blackmon v. Garza, No. 11-40316 (5th Cir. 2012), available at
http://www.ca5.uscourts.gov/opinions%5Cunpub%5C11/11-40316.0.wpd.pdf
145
Id. at 10.
137

23

considered a “danger” by the NWS, and on 11 of these days, the heat index was considered an
“extreme danger.”146 The court found that the TDCJ failed to provide remedial measures,
including failure to provide air conditioning, lack of personal fans, and windows that were
unable to open.147 Prisoners were forced to drink from their sinks because insufficient water was
provided to them.148 The court concluded that a reasonable jury could find that this failure to
provide protective and remedial measures constituted deliberate indifference to the health and
safety of the prisoner, and therefore a violation of his Eighth Amendment rights.149
In light of these decisions by the Fifth Circuit, the United States District Court for the
Middle District of Louisiana issued a decision in December 2013 stating that officials at a death
row detention facility violated the Eighth Amendment.150 The court determined that inmates
were subjected to multiple consecutive days in which the heat index reached well over 100
°F151—levels considered by the National Weather Service to constitute conditions that warranted
“extreme caution” and “danger.”152 Furthermore, the court found that the officials at the facility
disregarded the substantial risk of serious harm to the inmates in spite of their knowledge of that
risk.153 This disregard, the court found, constituted deliberate indifference in violation of
officials’ Eighth Amendment obligations.154
Such conditions are present in many of the facilities operated by the TDCJ. On many
summer days the heat index is over 90 °F.155 Of those inmates who have died from hyperthermia
in Texas since 2007, the TDCJ was aware that all had preexisting conditions that rendered them
more vulnerable to heat-related illnesses, such as obesity, diabetes, and history of
hypertension.156 As mentioned, thirteen of the fourteen inmates were also on prescribed
medication at the time of their deaths.157 These medications should have alerted medical staff to
inmates’ susceptibility to heatstroke. All inmates whose body temperature was measured had
body temperatures of over 105 °F at the time of their deaths.158
TDCJ officials were aware that these factors made people more susceptible to
hyperthermia.159 Furthermore, TDCJ officials and medical personel knew of the medical
conditions and prescription drugs taken by the inmates who passed away while the inmates were
under their care.160 Nevertheless, TDCJ officials did not protect these particularly vulnerable
individuals from heat injury and death. To cite one example, the regional director of the TDCJ
146

Id. at 8.
Id. at 9.
148
Id.
149
Id. at 11.
150
Ball v. LeBlanc, 3:13-cv-13-00368-BAJ-SCR 97 (M.D. La. 2013).
151
Id. at 25.
152
NWS, supra note 7.
153
Ball v. LeBlanc, 3:13-cv-13-00368-BAJ-SCR at 31.
154
Id. at 12.
155
Climatology Comparison, supra note 4.
156
Amended Complaint, supra note 38, at 15.
157
Id.
158
Deposition of Robert Eason at 76, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Tex. 2013).
159
Amended Complaint, supra note 38, at 16.
160
Deposition of Glenda Adams, M.D. at 86, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Tex. 2013).
147

24

Region II was aware that eight detainees died in 2011 in his region, yet stated his belief that the
TDCJ did not have a problem with heat related deaths. He went so far as to say the TDCJ was
doing a “wonderful job.”161 This is clearly a case in which prison officials were aware of an
actual danger to inmates and failed to prevent this danger. These conditions have not changed in
TDCJ facilities, and as such the continuing threat to current and future TDCJ inmates constitutes
an ongoing deliberate indifference to the risks faced by these inmates. Even if inmates do not
actually die, current and future inmates are subjected to actual risks to their lives, and failing to
address these risks constitutes deliberate indifference on the part of TDCJ officials. The Fifth
Circuit has unequivocably held that this deliberate indifference to the risks of extreme heat on
inmates constitutes a violation of the Eighth Amendment.
VI.

Texas Prison Conditions Violate Inmates’ Human Rights

The Supreme Court has long held that when interpreting the concept of “cruel and
unusual punishment” under the Eighth Amendment, it is instructive and appropriate to look to
International Human Rights norms.162 In the seminal case establishing that international concepts
of justice are relevant to interpreting the Eighth Amendment, the Supreme Court noted that the
constitutional prohibition on “cruel and usual punishment” traces its origin directly to the laws of
another nation.163 For this reason, said the Court, the Eighth Amendment's meaning must be
drawn from the “evolving standards of decency that mark the progress of a maturing society.”164
In later cases, the Supreme Court noted that “the climate of international opinion
concerning the acceptability of a particular punishment” is an additional consideration which is
“not irrelevant.”165 Furthermore, the Court has “recognized the relevance of the views of the
international community”166 in determining which punishments a “civilized society will not
tolerate,”167 and has said that “the overwhelming weight of international opinion… provides
respected and significant confirmation to the Court’s determination” that the penalty violates the
Eighth Amendment.168 The Court states that “it does not lessen fidelity to the Constitution or
pride in its origins to acknowledge that the express affirmation of certain fundamental rights by

161

Deposition of Robert Eason at 110, McCollum et al. v. Livingston, No. 3:12-CV-02037 (N.D. Tex. 2013).
See, e.g., Trop v. Dulles, 356 U.S. 86, 102–03 (U.S. 1958); Coker v. Georgia, 433 U.S. 584, 596 n. 10 (1977);
Enmund v. Florida, 458 U.S. 782, 788 (U.S. 1982); Thompson v. Oklahoma, 487 U.S. 815, 830 n. 31 (U.S. 1988);
Atkins v. Virginia, 536 U.S. 304, 325 (2002); Roper v. Simmons, 543 U.S. 551, 554 (2005). The Supreme Court has
also looked to international norms in interpreting other portions of the Constitution besides the Eighth Amendment.
See Lawrence v. Texas, 539 U.S. 558, 573 (U.S. 2003) (noting that the European consensus on repealing sodomy
bans undermined the notion that banning sodomy was a fundamental aspect of Western civilization).
163
Specifically, the foundation for the phrase “cruel and unusual” stemmed from the “Anglo-American tradition of
criminal justice,” was taken directly from the English Declaration of Rights of 1688, and the principle itself came
from the Magna Carta. Trop v. Dulles, 356 U.S. 86, 100 (1958).
164
Id. at 101.
165
Coker v. Georgia, 433 U.S. at 596 n. 10.
166
Id. at 596 n. 31.
167
Thompson v. Oklahoma, 487 U.S. 815, 831–32 n. 34 (1988).
168
Roper v. Simmons, 543 U.S. 551, 554 (2005).
162

25

other nations and peoples underscores the centrality of those same rights within our own heritage
of freedom.”169
Thus, the Supreme Court has been unequivocal in stating that human rights are highly
persuasive in guiding Eighth Amendment analysis.
VII.

Texas Violates Human Rights Obligations Regarding Detention Conditions

The lack of adequate TDCJ policies and standards for dealing with hyperthermia and
exposing inmates to extreme heat constitutes a violation of international human rights standards
and of the requirements of the Eighth Amendment. States, including Texas, have both positive
and negative obligations170 to not only respect the right to life and the right to humane
detainment, but also to guarantee that these rights be respected. Because the State exercises total
control over individuals deprived of their liberty, the State bears an additional heightened
obligation to guarantee these several rights of inmates.171 Furthermore, where the State is aware
of a real and imminent danger for a specific individual or group, the State has an obligation to
adopt additional reasonable prevention and protection measures.172 TDCJ officials are aware of
the increased risk of heat-related injury and death faced by detainees with pre-existing medical
conditions and those taking psychotropic medications, yet the TDCJ continues to fail its
obligation to implement proper preventative measures.

169

Id.
Report on Citizen Security and Human Rights, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II, doc. 57 ch. IV ¶ 35
(2009), available at https://www.oas.org/en/iachr/docs/pdf/CitizenSec.pdf.
171
Pacheco Teruel et al. v. Honduras, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R.
(ser. C) No. 121 ¶ 64 (2012), available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_241_ing1.pdf.
172
Pueblo Bello Massacre v. Colombia, Interpretation of the Judgment of Merits, Reparations and Costs, Inter-Am.
Ct. H.R. (ser. C) No. 140 ¶ 120 (2006), available at
http://www.corteidh.or.cr/docs/casos/articulos/seriec_140_ing.pdf.
170

26

Figure 5: Polunsky Unit, Livingston, TX173
Although persons who are incarcerated have been deprived of their right to liberty, these
individuals still retain most of their fundamental human rights, most notably the rights to dignity,
life, security of person,174 the right to be free of inhuman or degrading treatment, and the right to
health.175 Nearly every body of human rights law includes provisions specifically for the
protection of prisoners’ rights.176 The fact that this idea has such universal support demonstrates
that guaranteeing the protection of basic rights of inmates has become part of customary
international law, which comes from a general and consistent practice by other nations. In briefs
submitted to the Inter-American Commission on Human Rights (IACHR), the United States has
relied on the concept of customary international law, showing that the the United States accepts
the binding nature of customary international law.177
Photograph, Tex. Dep’t of Criminal Justice, Polunsky Unit Interior, Livingston, TX (Jan. 1, 2006) (on file with
author).
174
Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/Res/217(III), art. 3 (Dec. 10, 1948).
175
Id. art. 5.
176
See, e.g., id. art. 3; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc.
A/6316, art. 10 (Dec. 10, 1948); Inter-Am. Comm’n H.R. [IACHR], Principles and Best Practices on the Protection
of Persons Deprived of Liberty in the Americas, Res. 1/08 (March 13, 2008), available at
http://www.cidh.oas.org/pdf%20files/RESOLUTION%201_08%20-%20PRINCIPLES%20PPL%20FINAL.pdf
[hereinafter Principles and Best Practices]; American Declaration on the Rights and Duties of Man, Ninth
International Conference of American States (1948), OEA/Ser.L.V/II.82, doc. 6 rev. 1 art. XV (1992).
177
Response of the Government of the United States of America to Inter-American Commission on Human Rights,
Digest of United States Practice in International Law 2004, Ch. 18, doc. 60 (2004); RESTATEMENT (THIRD) OF THE
LAW OF THE FOREIGN RELATIONS OF THE UNITED STATES § 101 cmt. c (1987).
173

27

Texas’ first obligation to persons deprived of liberty and under its control is to guarantee
the right to life. Various human rights bodies have unanimously affirmed the right of all people
to preserve their lives. As was noted before, the State bears an increased duty in guaranteeing
this right to those deprived of liberty and under the control of the State. 178 The reason for placing
an increased burdon on the State to guarantee prisoners’ rights was summarized by the IACHR:
The State, by depriving a person of his liberty, places itself in the unique position
of guarantor of his right to life and to humane treatment. All this means that the
act of imprisonment carries with it a specific and material commitment to protect
the prisoner's human dignity so long as that individual is in the custody of the
State, which includes protecting him from possible circumstances that could
imperil his life, health and personal integrity, among other rights.179
This quote also illustrates that the State also has the equally important duty of guaranteeing
prisoners’ health and dignity. The International Covenant on Civil and Political Rights (ICCPR),
the Universal Declaration of Human Rights (UDHR), and the American Declaration on the
Rights and Duties of Man (ADRDM) all acknowledge the basic and unalienable dignity that
every individual possesses.180 Likewise, both the UDHR and the ADRDM include the right to
health as one of the fundamental rights retained by all human beings.181 There are no
justifications for a State to fail to meet these basic obligations, not even financial constraints.
Both the Inter-American Court of Human Rights (IACtHR) and IACHR have steadfastly
maintained that economic hardship and financial difficulties may not be invoked by States in
order to justify detention conditions that fail to meet international standards.182
It is also important to note that the human rights bodies have repeatedly held that the
State’s obligation to avoid “torture and inhuman or degrading treatment or punishment” are
banned in absolute terms, irrespective of the victim's conduct or the financial situation of the
State.183 The reason that the right to be treated with dignity is considered so fundamental to
prisoners’ rights is because being stripped of dignity can result in, “feelings of anguish and
inferiority capable of humiliating and debasing [prisoners] and possibly breaking [their] physical
178

Pacheco Teruel et al. v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 121, ¶ 64 (2012), available at
http://www.corteidh.or.cr/docs/casos/articulos/seriec_241_ing1.pdf.
179
Minors in Detention v. Honduras, Case 11.491, Inter. Am. Comm’n H.R., Report No. 41/99, OEA/Ser.L./V/II.95,
doc. 7 rev. ¶ 135 (1998), available at http://www1.umn.edu/humanrts/cases/1998/honduras41-99.html.
180
International Covenant on Civil and Political Rights, supra note 176, art. 1; Universal Declaration of Human
Rights, supra note 174, art. 1; American Declaration on the Rights and Duties of Man, supra note 176, art. I.
181
Universal Declaration of Human Rights, supra note 174, at 25; American Declaration on the Rights and Duties
of Man, supra note 176, art. XI.
182
Report of the Inter-American Commission on Human Rights on the Situation of Persons Deprived of Liberty in
Honduras, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II.147, doc. 6 ¶¶ 74, 104 (2013), available at
https://www.oas.org/en/iachr/pdl/docs/pdf/HONDURAS-PPL-2013ENG.pdf.
183
See, e.g., Ireland v. United Kingdom, App. No. 5310/71, ¶ 163 (1978), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57506 (“The Convention prohibits in absolute terms
torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Article 3 makes no
provision for exceptions and… there can be no derogation therefrom even in the event of a public emergency
threatening the life of the nation.”).

28

or moral resistance.”184 Because basic dignity is fundamental to every human being, depriving
someone of dignity is a form of inhuman treatment.185
Texas’ positive obligation to guarantee inmates’ right to health is particularly important.
Prisoners have no other way of accessing medical treatment, and as such are entirely reliant on
the TDCJ to ensure their well-being. The IACHR has found violations of the right to health
where prisoners had medical conditions that prison officials were aware of, and yet no measures
were taken to address these health problems.186 This exact same scenario has occurred—and is
occurring—in TDCJ facilities. The TDCJ is aware that certain medical conditions and
medications increase prisoners’ susceptibility to heat related illness, and yet there still exist no
proper procedures for protecting these vulnerable inmates’ health.
Persons deprived of their liberty have been dying in the custody of the TDCJ from
preventable causes. The fact that officials at the TDCJ were aware of risks to inmates that rose to
the level of a substantial threat to their health, safety, and dignity shows that the state of Texas is
not taking adequate measures to protect the physical well-being of those detained by the TDCJ.
If nothing else, this in itself demonstrates that Texas is failing its obligation to guarantee the
rights to life, health, and dignity of those persons deprived of liberty and under control of the
state. As all inmates at TDCJ facilities are exposed to these extreme temperatures, even those
who have not died have had their lives put at risk by the TDCJ as a result of the lack of
preventative and remedial measures to address extreme heat, and their rights to health and to be
treated with dignity have been violated.
VIII. Texas Fails Its Duty to Prevent Cruel, Inhuman, or Degrading Treatment
Texas violates all TDCJ inmates’ rights to not be subject to cruel, inhuman, and
degrading treatment. The general standard regarding treatment of persons deprived of their
liberty was first set out by the United Nations in the UDHR. Article 5 of the UDHR states that
“no one shall be subject to torture or cruel, inhumane, or degrading treatment or punishment.”187
This standard has since been reiterated in almost every major body of human rights law,
including but not limited to the ICCPR,188 the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT),189 the American Convention on Human
Rights (ACHR),190 the ADRDM,191 and the European Convention on Human Rights (ECHR).192
184

Peers v. Greece, App. No. 28525/95 ¶¶ 21–22 (2001), available at
http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-59413.
185
Mathew v. The Netherlands, App. No. 24919/03 ¶ 216 (2005), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-70377.
186
Oscar Elías Biscet et al. v. Cuba, Case 12.476, Inter-Am. Comm'n H.R., Report No. 67/06, OEA/Ser.L./V/II.127,
doc. 4 rev. 1 ¶ 157 (2007), available at http://www1.umn.edu/humanrts/cases/67-06.html.
187
Universal Declaration of Human Rights, supra note 174, at 71.
188
International Covenant on Civil and Political Rights, supra note 176, art. 7.
189
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res 39/46,
U.N. Doc. A/39/51, art. 16 (Dec. 10, 1984).
190
American Convention on Human Rights, supra note 176, art. 5.
191
American Declaration on the Rights and Duties of Man, supra note 176, art. XXVI.

29

The purpose of this standard is to ensure that all persons deprived of their liberty be treated with
respect and the inherent dignity of a human being.
Although the phrase “torture or cruel, inhuman, or degrading treatment or punishment” is
somewhat vague, various international human rights bodies have developed an in-depth body of
case law regarding this standard. These standards and recommendations include, but are not
limited to, the UN’s “Standard Minimum Rules for the Treatment of Prisoners,” 193 the IACHR’s
“Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas,”194 and the Council of Europe’s “Recommendation of the Committee of Ministers to
Member States on the European Prison Rules.”195
The most substantial body of case law regarding what constitutes “torture or cruel,
inhuman, or degrading treatment or punishment” has been established through litigation in the
European Court of Human Rights and in the Inter-American system. For the purposes of this
report, the case law regarding detention conditions will be analyzed collectively because their
decisions are highly uniform, the international human rights bodies often cite one another, and
because the Inter-American system has expressly adopted many of the Europeans Court of
Human Right’s (ECtHR) standards regarding detention conditions.196
Nonetheless, the decisions from the IACHR and IACtHR are more relevant than the
ECHR and the ECtHR. As a member of the Organization of American States (OAS), the United
States is a signatory of the ACHR.197 The Convention establishes the IACtHR as the court
competent to address matters arising from commitments made under the ACHR.198
Because the term “torture” is generally isolated as a specific breach requiring intentional
infliction of a very severe harm,199 the international human rights bodies have generally focused
on determining what conditions constitute “inhuman or degrading treatment or punishment” by
considering the relevant standards in cases most analogous to extreme heat issues in Texas
prisons.”200
192

European Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, E.T.S.
No. 5, 213 U.N.T.S. 221.
193
Standard Minimum Rules for the Treatment of Prisoners, E.S.C. Res. 663C, Annex 1, at 11, U.N. Doc.
A/CONF/611 (July 31, 1957), amended by E.S.C. Res. 2076, at 35, U.N. Doc. E/5988 (May 13, 1977).
194
Principles and Best Practices, supra note 176.
195
Council of Europe: Committee of Ministers, Recommendation Rec(2006)2 of the Committee of Ministers to
Member States on the European Prison Rules, Rec(2006)2 (Jan. 11, 2006), available at
https://wcd.coe.int/ViewDoc.jsp?id=955747.
196
See, e.g., Luis Lizardo Cabrera v. Dominican Republic, Case 10.832, Inter-Am. Comm'n H.R., Report No. 35/96,
OEA/Ser.L./V/II.98, doc. 7 rev. 821 (1997), available at http://www1.umn.edu/humanrts/cases/1997/domrep3596.html (referring to the definitions from the European Commission on Human Rights and the European Court of
Human Rights to distinguish inhuman and degrading treatment from torture, and adopting its own criterion that
included some, but not all of the criteria from the European bodies).
197
Org. of Am. States, Am. Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
198
Id. art. 33.
199
See, e.g., Convention against Torture, supra note 189, art. 1.
200
The European Commission on Human Rights has distinguished between inhuman and degrading, defining
inhuman as “severe suffering, mental or physical, which, in the particular situation is unjustifiable,” and degrading
as “grossly humiliat[ing] him before others or driv[ing] him to act against his conscience.” See BRICE DICKSON, THE
EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE CONFLICT IN NORTHERN IRELAND 140 (2010) (quoting

30

There is no definitive test or any explicit list of factors to determine whether detention
conditions constitute “inhuman or degrading treatment or punishment.” Instead, international
human rights bodies have favored an approach that requires analysis of conditions be done solely
on a case-by-case basis.201 In each case brought by a person deprived of liberty regarding
detention conditions, the human rights body will analyze the circumstances specific to that
complainant, requiring that the situation reach a “minimum level of severity” in order to
constitute “inhuman or degrading treatment.”202 The evaluation of this minimum level of severity
is highly dependent on a broad analysis of all the relevant circumstances that affect conditions of
detention.203 The international human rights bodies will generally consider many factors such as,
but not exclusively, the duration of the treatment, and its physical and mental effects, as well as
the sex, age, and health of the victim.204
It is important to note that that the Texas’ obligation to avoid subjecting persons deprived
of their liberty to “cruel, inhuman, or degrading treatment or punishment” consists of both
negative and positive obligations. Texas not only has the obligation to refrain from causing a
prisoner to be subjected to “cruel, inhuman, or degrading treatment or punishment,” Texas also,
as guarantor of life and physical and psychological integrity of those under its control, has the
additional positive obligation to prevent third parties from unduly interfering with the enjoyment
of rights and personal liberty.205 This obligation imposes a duty on Texas to “ensure that... [a
person deprived of their liberty’s] health and well-being are adequately secured by, among other
things, providing him with the requisite medical assistance.”206 This duty is especially relevant to
the most vulnerable detainees, including children, the elderly, and people with disabilities or
medical conditions because in these cases Texas’ obligations increase considerably. For example,
in Brown v. Jamaica, the complainant charged that he suffered an asthma attack while in
extremely hot cells during pre-trial detention. The Human Rights Committee ruled that the harm
suffered by the complainant while detained in these conditions and the denial of exercise,
medical treatment, adequate nutrition, and clean drinking water was a violation of both articles 7

Denmark, Norway, Sweden and the Netherlands v. Greece, App. Nos. 3321/67, 3322/67, 3323/67 and 3344/67, 12
Y.B. Eur. Conv. on H.R. 186 (Eur. Comm’n on H.R.) (1969)). However, more recently, the courts have defined
inhuman and degrading together. See, e.g., Iorgov (II) v. Bulgaria, App. No. 44082/98 (2010), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-100271; Mayzit v Russia, App. No. 63378/00 (2005),
available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-68067.
201
Ireland v. United Kingdom, App. No. 5310/71, ¶ 12 (1978), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57506 (“It is thus left to be determined in the light of the
circumstances of each particular case whether what occurred amounted to, or constituted the specified treatment.”).
202
Id. at ¶ 162 (1978).
203
Id.
204
Id.
205
Ximenes-Lopes v. Brazil, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 149 ¶ 86 (July 4, 2006),
available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_149_ing.pdf.
206
Kudla v. Poland, App. No. 30210/96, 35 Eur. Ct. H.R. Rep. 198 (2000), available at
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=001-58920.

31

and 10 of the ICCPR (relating to cruel or unusual punishment and preserving the dignity of
incarcerated persons, respectively).207
International human rights bodies have consistently considered extreme temperature and
lack of adequate heating or ventilation, similar to to the conditions in Texas, as factors that
contribute to detention conditions being considered “inhumane or degrading treatment or
punishment.” For example, in Peers v. Greece, the complainant suffered from extreme heat in
an overcrowded segregation unit with poor ventilation and a broken toilet with no privacy from
the other inmates.208 In the winter, heating was only provided for two hours a day. 209 The
European Court considered the fact that the applicant was placed in the segregation unit when
temperatures rise considerably, and referred to witness testimony that the complainant was
affected by the heat and lack of ventilation in the cell. 210 Given these extreme heat conditions
and the lack of action by Greek authorities to remedy the situation, the European Court found
that the complainant had been subjected to inhuman and degrading treatment, and that the
government had violated Article 3 of the European Convention—the prohibition against
inhuman and degrading treatment.211 Additionally, in Štrucl and others v. Slovenia,
overcrowding212 and temperatures averaging around 82.4 °F and occasionally exceeding 86 °F213
contributed to conditions that exceeded a threshold of severity of suffering in detention that
amounted to degrading treatment and a violation of Article 3.214 Following the same reasoning,
in Lăutaru v. Romania, the European Court of Human Rights found that living in an
overcrowded facility with summer temperatures reaching over 104 °F in a cell, where a window
grille prevented proper ventilation of hot air in the cell, constituted a violation of Article 3.215
The ECtHR has even go so far as to proclaim that “[it is] unacceptable that anyone
should be detained in conditions involving a lack of adequate protection against… extreme
temperatures.”216 Neither the ECtHR nor the IACtHR has ever expressly stated what
temperatures constitute extreme heat, or affirmatively held that air conditioning is a requirement
to prevent inhumane detention conditions. However, because the human rights bodies have
repeatedly held that the State must do everything within its power to minimize the suppression of

207

Brown v. Jamaica, Case No. CCPR/C/65/D/775/1997, 6 IHRR 978 (1999), available at
http://www1.umn.edu/humanrts/undocs/session65/view775.htm.
208
Peers v. Greece, App. No. 28525/95 ¶¶ 21–22 (2001), available at
http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-59413.
209
Id. at ¶ 26.
210
Id. at ¶ 72.
211
Id. at ¶ 75.
212
Štrucl and others v. Slovenia, App. No.s 5903/10, 6003/10, 6544/10 ¶ 52 (2011), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-107141.
213
Id. at ¶ 87.
214
Id. at ¶ 89.
215
Lăutaru v. Romania, App. No. 13099/04 ¶¶ 11–12 (2011), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-107028.
216
Mathew v. The Netherlands, App. No. 24919/03, ¶ 216 (2005), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-70377.

32

individual rights and to ensure health and welfare of detainees, 217 the State has the duty to
provide minimum material requirements,218 and there are no mitigating circumstances for these
obligations.219 In fact, while the European Committee on the Prevention of Torture (CPT) has
acknowledged that it has not specified an ideal maximum temperature for prison cells, it “has
made it clear that… excessive heating, whether artificial or natural, is… to be avoided.”220
Therefore it is clear that under current human rights standards, Texas, as the guarantor of rights
of those under its custody, has an unmitigated duty to provide adequate relief from extreme heat.
Reports published by the various human rights bodies have also repeatedly condemned
facilities throughout the world for their inadequate detention conditions relating to extreme
climatic conditions. For example, a modern prison built in Peru in 1997 had no provision for
basic water, power, or communications services.221 Inmates were exposed to temperatures in the
winter that fell to -4 °F.222 No heating mechanism was available in cells or corridors, and the
cold was exacerbated by humidity from leaking water, which could not be removed due to lack
of ventilation.223 The Inter-American Commission found that the Peruvian State had failed to
comply with its obligations under the U.N. Standard Minimum Rules for the Treatment of
Prisoners as well as the Peruvian Constitution to provide prisoners at Challapalca with adequate
facilities.224 Likewise, a facility in Jamaica was found to be “in serious violation of the right to
humane treatment” as a result of inmates being exposed to extreme heat with a lack of adequate
ventilation.225 Similar conditions—lack of ventilation and “oppressive heat”226—created a
“suffocating atmosphere” in prisons in Honduras and Suriname.227 The IACHR found that Cuban
political dissidents were held in cramped cells without any means to endure temperature
extremes.228 In another facility in Benin, heat indices reached 123.8 °F to 129.2 °F.229 The
United Nations Subcommittee on the Prevention of Torture recommended these conditions be

217

Montero-Aranguren et al. (Detention Center of Catia) v. Venezuela, Preliminary Objection, Merits, Reparations
and Costs, Inter-Am. Ct. H.R. (ser. C) No. 150, ¶ 86 (July 5, 2006).
218
Yvon Neptune v. Haiti, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 180, ¶ 138 (May 6, 2008).
219
See Ireland v. United Kingdom, App. No. 5310/71, ¶ 163 (1978), available at
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57506 (“Article 3… makes no provision for exceptions
and… there can be no derogation therefrom even in the event of a public emergency threatening the life of the
nation.”).
220
ROD MORGAN & MALCOLM D. EVANS, THE ASSOCIATION FOR THE PREVENTION OF TORTURE, THE PREVENTION
OF TORTURE IN EUROPE (2001), available at http://www.apt.ch/content/files_res/APT%20CPT%206%20En.pdf.
221
Special Report on the Human Rights Situation at the Challapalca Prison, Department of Tacna, Republic of Peru,
Inter-Am. Comm’n H.R., OEO/Ser.L/V/II.118, doc. 3 ¶ 23 (2003).
222
Id. at ¶ 26.
223
Id. at ¶ 38.
224
Id. at ¶¶ 104, 116.
225
Report on the Situation of Human Rights in Jamaica, Inter-Am. Comm'n H.R., OEA/Ser.L/V/II.144, doc.
12 ¶ 201 (Aug. 10, 2012), available at https://www.oas.org/en/iachr/docs/pdf/Jamaica2012eng.pdf.
226
Report on the Human Rights of Persons Deprived of Liberty in the Americas, Inter-Am. Comm’n H.R.,
OEA/Ser.L/V/II., doc. 64 ¶ 402 (Dec. 31, 2011).
227
Id. at ¶ 288.
228
Id. at ¶ 401.
229
U.N. Subcommittee on Prevention of Torture, Report on the visit of the Subcommittee on Prevention of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment to Benin, CAT/OP/BEN/1, ¶ 180 (2011).

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the subject of urgent review, that inmates be provided natural light and ventilation, and that
measures be put in place to reduce the temperature extremes.230 In the country of Georgia, many
facilities had unheated cells,231 and temperatures in facilities were found to be as low as 59 °F.232
These conditions led the European Committee Prevent Torture to recommend that cells be
properly heated.233
The U.N.’s Standard Minimum Rules for the Treatment of Prisoners explicitly states a
heightened concern for the condition of detention regarding climate. Paragraph 10 states, “All
accommodations provided for the use of prisoners… shall meet all requirements of health, [with]
due regard being paid to climatic conditions… [including] heating and ventilation” (emphasis
added).234 A similar concern over climatic conditions in expressed by the IACHR in their
“Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas.” Principle XI states that “Persons deprived of liberty shall have adequate floor space,
daily exposure to natural light, appropriate ventilation and heating, according to the climatic
conditions of their place of deprivation of liberty” (emphasis added).235
The conditions in Texas prisons violate these obligations. The very fact that prisoners are
dying for preventable reasons demonstrates that the fundamental right to life has been violated in
contravention of the Texas’ duty to ensure this right. Furthermore, subjecting inmates to
extended periods of extreme heat rises to the level of inhuman treatment and is a violation of
their right to health and dignity. The extreme heat in the cells where the inmates died violate the
standards established by every organization that has explicitly considered the issue of regulating
exposure to extreme heat.
IX.

Conclusion and Recommendations

Given the current situation in Texas prisons, the University of Texas School of Law
Human Rights Clinic concludes that the extreme heat in certain Texas prisons violates
international human rights standards that require Texas to guarantee the right to life and physical
integrity of prisoners, prisoners’ right to health and to be treated with dignity, and to prevent
prisoners from being subjected to “inhumane or degrading treatment or punishment.” These
standards require the TDCJ to guarantee these rights for all prisoners, not just those that are
particularly susceptible to heat-related injury. The extreme heat in Texas prisons risks the lives
of all inmates that are subject to these conditions, and this violates their physical integrity as
well. The continuing lack of standards and preventitive measures to address these risks increases
the seriousness of the violations. International human rights standards notwithstanding, the

230

Id. at ¶ 190.
EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT (CPT), REPORT TO THE GEORGIAN GOVERNMENT ON THE VISIT TO GEORGIA ¶¶ 42, 108, 138 (2010).
232
Id. at ¶ 92.
233
Id. at ¶ 95.
234
Standard Minimum Rules for the Treatment of Prisoners, supra note 193, ¶ 10.
235
Principles and Best Practices, supra note 176, at XI.
231

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temperature extremes in Texas prisons also constitute a violation of the Eighth Amendment’s
prohibition of cruel and unusual punishment.
The Human Rights Clinic recommends the following actions to immediately eliminate
the TDCJ’s current practice of inhumane treatment of its prisoners in extreme heat conditions:
1. The Texas Department of Criminal Justice should immediately codify and implement
preventative policy measures for the coming summer months to prevent exposing inmates
to extreme heat conditions and, particularly, to avoid additional heat-related injuries and
deaths. Permanent and adequate measures should, at the least, include installation of air
conditioning units to keep temperatures in inmate housing areas below 85 °F. Until this is
completed, TDCJ should take additional precautions to reduce the risk of injury and
death, including:
a. Immediate screening of all new inmates for health conditions or medications that
could make them more susceptible to heat-related illness;
b. Immediate movement of more susceptible new inmates to housing areas that do
not have temperatures exceeding 85 °F;
c. If areas at a safe temperature are not yet available, continuous monitoring of
susceptible new inmates which starts immediately after screening;
d. Frequent monitoring of any inmates housed in non-air-conditioned units when
temperatures in inmate housing areas exceed 85 °F;
e. Provision of constant inmate access to cool liquids and ice; and
f. Uniform documentation of these practices, including number of inmates classified
as susceptible to heat-related illness and quantity of cool liquids provided per
inmate.
2. In the long term, either by promulgation of new TDCJ policy or by amendment of the
Texas Administrative Code, a maximum temperature standard should be set for all TDCJ
facilities. This standard should mirror the standards promulgated by the Texas
Commission on Jail Standards and the standards TDCJ currently has in place for the
prison workplace. Specifically, the standard should follow widespread precedent and
adopt a maximum temperature standard of 85 °F throughout its facilities, including in
prison cells and inmate housing areas.
3. The TDCJ Board and Texas Legislature should approve funding as necessary for
installation of permanent air-conditioning at TDCJ prison facilities, as needed, to ensure
temperatures do not exceed 85 °F.
It is likely at least some facilities will require the addition of either temporary or
permanent air conditioning units in order to comply with this new standard. However, this is a
cost that must be incurred. Continuing to disregard the plight of TDCJ inmates subject to
extreme heat is not an option; the TDCJ would be in violation of international human rights
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standards and the requirements of the Eighth Amendment if it were to do so. The TDCJ must
take action to stop its continuing violation of several human rights of prisoners in Texas prisons.

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