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Federal Judge Orders Texas Department of Criminal Justice to Provide Safe Water to Prisoners

On June 21, 2016, U.S. District Court Judge Keith Ellison ordered the Texas Department of Criminal Justice (TDCJ) to provide prisoners at the Wallace Pack Unit in Navasota with drinking water free of unsafe levels of arsenic. Prisoners at the facility had filed suit in 2014, seeking relief not only from the contaminated water but also the extreme heat levels that often reach 100 degrees.

Judge Ellison issued a preliminary injunction to prevent further constitutional deprivations at Wallace Pack. “It is undisputed that, since 2006, the drinking water at the Wallace Pack Unit has contained between two and four-and-a-half times the amount of arsenic permitted by the EPA ... the prisoners ... are forced both to endure extremely high temperatures and to drink water with impermissibly high levels of arsenic,” he wrote.

Safe environmental conditions for prisoners, including safe drinking water, have been a priority for the Human Rights Defense Center through its Prison Ecology Project, and Prison Legal News has previously reported on arsenic-tainted water at Wallace Pack. [See: PLN, Sept. 2015, p.12].

According to PLN contributing writer Christopher Zoukis, “One of the attorneys for the inmates said that the [Texas] prison system has unacceptably known about the unsafe arsenic levels since 2006, and inmates have made comments about the extreme conditions, noting that the heat and humidity can cause difficulty breathing.”

Judge Ellison noted that non-prisoners have a choice, and if their water is tainted they “can find or buy a different water source to drink from; [they] can buy and use a personal water filter, and can even move, if [they] wish, if the water system has not been fixed within a year or within ten years. For prisoners, those options obviously do not exist.”

He also recognized the health risks due to excessive heat levels but declined to order the TDCJ to provide air conditioning, stating, “[A]n order from this Court making such respite areas mandatory, rather than voluntary, could have a negative impact on the operation of the Wallace Pack Unit.”

Although Judge Ellison acknowledged “the Constitution ‘does not mandate comfortable prisons,’” he also noted the “Eighth Amendment imposes on prison officials the duty to provide humane conditions of confinement.... This Court believes that among the duties imposed by the Eighth Amendment is the duty to provide safe drinking water when the temperatures are so hot that excessive water consumption is recommended, and necessary, to prevent heatstroke or other heat-related injuries.”

The preliminary injunction concluded that the TDCJ’s “current and ongoing conduct violates contemporary standards of decency,” and ordered Texas prison officials to “provide drinking water ... that conforms with EPA maximum contaminant level requirements for arsenic beginning not later than fifteen days from the date of this Order to provide drinking water ... which complies with EPA standards.”

A week before the preliminary injunction was issued the district court granted class certification in the lawsuit, with subclasses for heat-sensitive prisoners and disabled prisoners housed at the Wallace Pack Unit. The TDCJ has appealed and filed a motion to stay the preliminary injunction, which was denied on August 17, 2016. The case remains pending. See: Cole v. Livingston, U.S.D.C. (S.D. Texas), Case No. 4:14-cv-01698; 2016 U.S. Dist. LEXIS 80345.

According to the United Nations, “The human right to water ... [is] indispensable for leading a human life in dignity.... We should be ensuring these rights for all people, including those who are incarcerated. It should not require lawsuits or multiple deaths before safe water is provided.” 

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