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HRDC comment to EPA on Environmental Justice and prisoners July 2015

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Human Rights Defense Center

July 14, 2015


Charles Lee
Deputy Associate Assistant Administrator for Environmental Justice
USEPA, Office of Environmental Justice (2201-A)
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Re: Comment on the inclusion of prisoner populations in EPA’s Draft
Framework for EJ 2020 Action Agenda
Dear Mr. Lee:
The Human Rights Defense Center’s (HRDC) Prison Ecology Project and the undersigned
organizations submit the following comment on the Environmental Protection Agency’s EJ 2020
Action Agenda Framework.
While it is encouraging to see the EPA attempting to increase the effectiveness of Executive
Order 12898 and Title VI of the Civil Rights Act in protecting communities that have been
overburdened by industrial pollution, we also find that there is a significant piece missing to the
dialogue thus far: recognition of the vast number of prisoners and their families as an extremely
and uniquely overburdened population.1
The need for EJ 2020 comes from the unfortunate reality that many of the environmental permit
approvals that have taken place in recent decades, and continue today, fall into a category of
poverty discrimination policies which almost exclusively impact poor communities, with a
disproportionate impact on poor communities of color. Few industrial sectors exemplify this
more clearly than the prison industry.2

HRDC uses the term “prisoner” to refer to people held in prisons, jails, detention facilities, civil commitment
centers and other facilities that hold people against their will as punishment or while awaiting court-related
proceedings, i.e. trial, sentencing, deportation, etc.
On July 9, 2015, Prison Policy Initiative released a new report on prisoner income: “Using an underutilized data set
from the Bureau of Justice Statistics, this report provides hard numbers on the low incomes of incarcerated men and
women from before they were locked up.… The American prison system is bursting at the seams with people who
have been shut out of the economy and who had neither a quality education nor access to good jobs. We found that,
in 2014 dollars, incarcerated people had a median annual income of $19,185 prior to their incarceration, which is
41% less than non-incarcerated people of similar ages.” Source:

P.O. Box 1151
Lake Worth, FL 33460
Phone: 561.360.2523 Fax: 866.735.7136
Paul Wright, Executive Director:

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A recent report from the Prison Policy Initiative shows that, according to the U.S. Census,
blacks are incarcerated at a rate five times that of whites, and Hispanics/Latinos are nearly
twice as likely to be incarcerated as whites. It goes further to illustrate that white people are
underrepresented in every one of the 50 states’ prison populations, whereas Hispanic/Latino,
black and Native Americans are consistently overrepresented in every state.3
There are over 2.3 million people incarcerated in prisons, jails, immigration detention centers
and other correctional facilities in the United States; if all of those prisoners were housed in one
location, it would constitute the fourth largest city in the nation with a population greater than
that of Houston, Texas.4
If we can recognize the problem with forcing people to live in close proximity to toxic and
hazardous environmental conditions, then why are we ignoring prisoners who are forced to live
in detention facilities impacted by such conditions?
We realize that the federal government’s responsibilities are divided up among multiple
agencies, with the EPA dealing primarily in issues related to ambient pollution. As such, some
of the issues addressed below may be outside the EPA’s immediate jurisdiction, but we
understand the EPA to be leading the Interagency Working Group on Environmental Justice and
feel that you will be able to best discern which agencies are best positioned to address the unique
circumstances of prisoner populations.5
While we cannot speak to the knowledge of all federal agencies, we do know that both the EPA
and the Department of Justice (DOJ) are well informed about the environmental impact of mass
incarceration on poor communities in general and poor communities of color in particular, and
that this impact affects both those imprisoned in detention facilities and those who are employed
in or live near them.6
The intention of this comment is to provide background on how prisoners are excluded from
environmental justice protections, both in the permitting of prisons themselves and the
permitting of other industrial facilities operating in proximity to prisons. We have also provided
a dozen examples of how and where this has manifested in various regions throughout the


“Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity” by
Leah Sakala, May 28, 2014. Source:
For example, EPA has a Memorandum of Understanding with OSHA:
This presumably takes the Department of Labor’s “Environmental Justice Strategy” into consideration: . We found no language addressing environmental safety for the prisoner workforce.
While prisons themselves are sources of outdoor pollution, e.g. particulates from outdated prison boilers,
discharges of untreated or inadequately treated sewage, etc., which affect surrounding communities that also often
fit the criteria of EJ communities, that matter is not what we are addressing in this particular comment.

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Background on the EPA and Prisons
Since 1999, the Office of Enforcement, Compliance, and Environmental Justice (OECEJ) within
EPA Region III office has conducted what they call a “prison initiative.” Although this initiative
has not been very active in conducting inspections since about 2011, over the course of a decade,
EPA Region III conducted multiple investigations of conditions in prisons which resulted in a
broad spectrum of enforcement actions.7 This initiative is well-documented through articles and
press releases published online and in printed publications such as the National Environmental
Enforcement Journal.8
Over the past six months HRDC’s Prison Ecology Project has been conducting extensive
research, public records requests, interviews and reviews of Environmental Impact Statements
and Environmental Assessments to understand how environmental justice criteria has been
applied to prisoner populations, given the overwhelming evidence that prisoners are
disproportionately people of color and almost entirely low-income, regardless of race. We are
disappointed to report that we have seen no information pointing to any intention of the EPA
to recognize the population of people in prison, despite the fact that they constitute the most
vulnerable and overburdened demographic of citizens in the country.
In an interview conducted by the Prison Ecology Project on February 5, 2015, EPA Region III
representative Donna Heron explained explicitly that environmental justice guidelines have not
been applied to prisoners because the EPA uses census data which does not take prisoners into
We find this reason to be insufficient. We believe that data exists or could be gathered to allow
the EPA to effectively and accurately determine environmental impacts on incarcerated
populations. If the EPA’s chosen data happens not to include these populations, the EPA should
seek to supplement the data for these missing populations by conducting research on what other
data sources should be included to provide the most accurate picture of the populations who will
be subject to any environmental impacts.9
We also found that prison-related permitting has often attempted to claim a Finding of No
Significant Impact (FONSI) in permitting, or worse, has alleged “categorical exclusions” that
keep these plans off the radar of public input.10 We feel that when plans are being made that

Until very recently, the activity of Region III’s prison initiative was documented online, but it was removed for an
unknown reason. Some of the information previously posted online can now only be found on the Prison Ecology
Project’s website:
In particular, an article written by EPA inspector Garth Conner titled “An Investigation and Analysis of the
Environmental Problems at Prisons” was published in the May 2003 edition of the NEE Journal, addressing the
overpopulation of prisons and the industrial facilities operated within them. The article highlighted six separate
investigations which all resulted in a broad spectrum of enforcement activity at state, federal and local correctional
HRDC is requesting further dialogue with EPA staff on this matter, as the methods used by the EPA to gather
population data, and the consistency of those methods, are currently unclear.
The following is a 2014 announcement of a FONSI on a 2,000-bed immigrant detention facility, before there was
even a site selected. According to the notice, “A geographical restriction associated with the RFP required the
facility to be located in one of the following states: Ohio, Michigan, Pennsylvania, Delaware, New Jersey, or New
York. See:

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involve the incarceration of hundreds or thousands of low-income people, for which there are
alternatives to incarcerating in the first place, this must be viewed as a significant environmental
justice impact.
The DOJ, BOP and Environmental Justice
“During the twenty years since Executive Order 12898 was issued, there have been
significant accomplishments by community leaders, Federal, state, local and tribal
governments, and others to advance this important work. Yet there is more work to be
done. Low-income, minority, and tribal Americans are still disproportionately burdened
with pollution, resulting in disproportionate health problems, greater obstacles to
economic growth, and a lower quality of life. The Department will continue to play a
vital role in making environmental justice a reality for all Americans. We welcome []
input on the Department’s environmental justice activities, strategy, and guidance as
we move forward.”
— Stuart F. Delery, Acting Associate Attorney General, from the DOJ’s 2014
Implementation Progress Report on Environmental Justice11
The DOJ’s updated guiding document on Environmental Justice Strategy contains much lipservice to viewing EJ as a priority. In section III.C.4, “Specific Component Obligations,” the
Federal Bureau of Prisons (BOP) is “working to ensure that its activities are consistent with
the President’s mandate [Executive Order 12898]. For example, the Bureau will include
consideration of environmental justice in its environmental impact statements [EIS] under
the National Environmental Policy Act [NEPA].”12
During the period that EPA conducted its prison initiative in Region III, reports also surfaced
about rampant pollution and environmental health problems stemming from industrial facilities
in federal prisons nationwide. According to a 2010 report, the Justice Department’s Office of
the Inspector General pinpointed “numerous violations of health, safety and environmental laws,
regulations and (Bureau of Prisons) policies” at certain prison industry programs.13
However, according to our research, the BOP has never taken its prisoner population into
consideration under NEPA’s EJ guidance. This remained true as of the agency’s most recent
example of a NEPA-required EIS, which was published for public comment earlier this year for
a facility in Letcher County, Kentucky. HRDC prepared a comment which, among other issues,
addressed insufficient efforts to address EJ-related concerns.14 The following is an excerpt from
HRDC’s comment submitted to the BOP:


The full HRDC comment on BOP’s Letcher County proposal can be found here:

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Under the Environmental Justice guidelines of NEPA, and according to the EIS, the
people most probable to be in BOP custody if this facility was built are very likely to meet
the criteria for recognition as Environmental Justice communities. Inside the prison, the
racial demographics and income of prisoners can be reasonably projected to populate
the facility based on the demographics of other BOP facilities in the country.… The BOP
reports 41% percent of its population to be of non-white “minority” status,15 whereas
this racial demographic only makes up approximately 25% of the entire US population.16
The EIS also says nothing of prisoners’ status as an almost entirely low-income
The EIS goes on to allege that, essentially, the only EJ impact to the local community (which is
a low-income rural region of Appalachia) will be the positive economic benefits associated with
the prison. The most obvious oversight here is that the region is known to have extreme water
contamination problems due to decades of heavy coal mining operations. In fact, both proposed
sites for the anticipated BOP facility are located on abandoned mines.17
In a review of a 2010 Environmental Assessment (EA) for a state prison being turned over to the
BOP for use as a supermax prison in Thomson, Illinois, HRDC found a very similar approach to
EJ matters with respect to permitting.18 This facility, which will be used for extreme isolation
units (solitary confinement) when opened, included no mention in its permits of the anticipated
demographics which would populate the prison. It also overlooked the need to review operating
such a facility in a flood zone, less than half-a-mile from the Mississippi River, and what unique
challenges this could pose to an extremely vulnerable population likely to fit the criteria of an EJ
Our position is that the DOJ, as a participating agency in the implementation of EJ strategy,
should require prisoner populations to be explicitly included in the EJ 2020 process.
Below are some additional examples which illustrate the need for recognizing prisoners in
environmental justice policy and implementation strategy:


New Orleans, Louisiana jail post-Katrina – This facility became an example of how
ill-prepared county-run prisons are to handle emergency situations, sparking a report
by the ACLU on the terrible reality that unfolded for prisoners after the storm in
2005. “The prisoners inside the Orleans Parish Prison suffered some of the worst
horrors of Hurricane Katrina,” said Eric Balaban, a staff attorney for the ACLU’s

Current BOP statistics do not include specific numbers for Latino or Hispanic prisoners, though they do report
19% of BOP prisoners are citizens of Latin American countries. (A 2010 report stated that 33% are “Hispanic from
any race.”) Source:
U.S. Census Bureau, “The White Population 2010.” Source:
Complete EIS can be viewed here:
Complete Environmental Assessment can be viewed here:

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National Prison Project. “Because society views prisoners as second-class citizens,
their stories have largely gone unnoticed and therefore untold.”19



Escambia County, Florida jail flood – In May 2014, another flood-related disaster
at a county-run jail on the Gulf Coast illustrated that very little had been done since
the lessons of Katrina to address the dangers of incarcerating people in increasingly
flood-prone areas. At the Escambia County jail in north Florida, severe rain led to
flooding in the basement of the facility that in turn resulted in a gas leak and
explosion that killed two prisoners and injured many others.20


Chemical spill in Charleston, West Virginia – Another risk to prisoners, who are
often located in industrial wastelands where the likelihood of pollution disasters can
contaminate the water supply, was demonstrated at the South Central Regional Jail in
Charleston after a major coal-processing-related chemical spill occurred in January
2014 when a storage tank ruptured. Prisoners were affected by the water
contamination to a greater extent than many other local residents, as they were
exposed to the contaminated water for longer periods without proper notice.21


Sing Sing Correctional Facility and the Indian Point nuclear plant in New York – A
2012 legal proceeding filed by environmental groups in the Hudson Valley of New
York during an administrative hearing of the Nuclear Regulatory Commission
exposed a completely insufficient emergency evacuation plan for prisoners held at
Sing Sing Correctional Facility, again illustrating why this population fits the criteria
of an EJ demographic.22


Rikers Island jail, New York City – The Rikers Island jail complex has become
notorious for its location on a toxic waste landfill site where lawsuits have been filed
against the facility by employees who have become ill due to the conditions there.23
As a result of this landfill, there have been frequent methane gas explosions on the
site. In addition, the lack of an evacuation plan during Hurricane Sandy illustrated the
increased potential for disaster at this facility.


Coal ash dump in LaBelle, Pennsylvania – Surveys and reports from prisoners at the
State Correctional Institute-Fayette have indicated ongoing problems related to
sickness among prisoners who are exposed to airborne coal dust. The prison houses
over 2,000 prisoners, was built on top of a former coal mine and sits adjacent to a
506-acre coal ash dump owned and operated by Matt Canestrale Contracting (MCC).
The dump receives ash waste from coal-fired power plants throughout the region.

Sources: (1); (2); (3)

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Before it became a fly ash dump, it was one of the world’s largest coal preparation
plants, which left over 40 million tons of coal waste. MCC recently renewed its
permit to dump 416,000 tons of coal ash per year at the site. Coal ash contains
mercury, lead, arsenic, hexavalent chromium, cadmium and thallium. “In short,
coal ash toxins have the potential to injure all of the major organ systems, damage
physical health and development, and even contribute to mortality,” according to a
report by Physicians for Social Responsibility.24



Thirteen Colorado prisons in contaminated area – Cañon City is the location of nine
state and four federal prisons and penitentiaries. It’s also known for longstanding
water quality problems related to the mining and processing of uranium. Liquid waste
laced with radioactive material and heavy metals was discharged into 11 unlined
ponds from 1958-1978. Those were replaced in 1982 with two lined impoundments,
and after well tests in Cañon City showed contamination, the uranium mill site was
put on a national list for Superfund cleanups. Samples collected from four wells north
of the mill in October 2011, analyzed at outside labs, indicated trichloroethene
concentrations of 1,800 parts per billion, 1,200 ppb, 490 ppb and 386 ppb. The EPA
standard is 5 ppb. The wells were up to 360 times the federal health limit. “Vapors
can seep up through the soil and get into homes. Then you have not only a drinking
issue but an inhalation risk,” EPA spokeswoman Sonya Pennock said. But the
cleanup isn’t expected until 2027.25


Valley Fever at Avenal and Pleasant Valley State Prisons, California – Lawsuits and
news reports have repeatedly noted that people imprisoned in areas prone to valley
fever (resulting from drought, over-development and increased temperatures) are at
elevated risk of contracting that disease due to constant exposure and abysmal
healthcare options available in prisons.26 Valley fever has claimed the lives of more
than 50 prisoners and sickened thousands of others. A federal court ordered the
removal of thousands of prisoners from the Avenal State Prison and Pleasant Valley
State Prison due to concerns about valley fever. “Medical studies have shown that
Filipinos, [B]lacks, Hispanics and people suffering from diabetes and HIV are more
susceptible to valley fever, meaning that prisoners in the Central Valley – where 16
of California’s 33 adult prisons are located – are especially vulnerable. For example,
blacks comprise just 6.6% of California’s general population but make up 29% of the
state’s prison population.”27


Arsenic in Texas and California water supplies – This is a reoccurring story, where
prisons such as Kern Valley State Prison in Delano, California and the Wallace Pack

Sources: (1); (2)
Sources: (1); (2)

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Unit near Navasota, Texas are built in areas with contaminated water supplies and
prisoners are forced to endure health impacts due to these environmental conditions.28



Prisons built on military Superfund site in California – The Victorville Federal
Correctional Complex was built on the site of one of the Weapons Storage Areas
(WSA) for the former George Air Force Base in California, Superfund ID:
CA2570024453. The DOD and Air Force did a federal-to-federal transfer of Parcel K
to the BOP, a site which contains the former South WSA. The Victorville Federal
Correctional Complex (FCC) consists of three facilities: FCI Victorville Medium I,
Medium II and United States Penitentiary-Victorville.29 A federal-to-federal transfer
was also done with Castle Air Force Base’s WSA where the United States
Penitentiary (USP) in Atwater was built “on a part of the base near where munitions
were kept and where investigators from the Air Force Safety Center suspect nuclear
weapons were maintained and stored.”30


Toxic and hazardous site for immigrant detention in Tacoma, Washington – The
Northwest Detention Center, a privately-operated prison designed to house 1,575
immigrants, is adjacent to a Superfund site known as Project Area #3 of the Tacoma
Tar Pits (EPA ID# WAD980726368).31 The location is also in a designated volcanic
hazard zone.32


Water contamination in prisons nationwide – A report published by Prison Legal
News in 2007 highlighted seventeen states, including Alabama, Georgia, Indiana,
Massachusetts, Maryland, Ohio and Washington, where water contamination in
prisons and their surrounding communities had been reported to cause problems
including illness (such as Legionnaire’s Disease) and various environmental
violations.33 The report concluded that protections under the Clean Water Act may
be difficult for prisoners, as such problems are often complex, requiring water testing
and expert witnesses to prove a claim, neither of which are likely to be available to
the average pro se prisoner litigant. According to author John Dannenberg, “As the
environmental movement in the United States grows, it may be time to make the
connection to environmental degradation caused by mass imprisonment.”

Source on arsenic:; in Texas:; in California:
EPA Superfund Record of Decision:

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Alternatives to Incarceration
While most of these issues present environmental justice concerns in a traditional sense of
the concept, there is another component which is an overarching matter for many if not all of
the examples listed above—the existence of alternatives to incarceration.34 The review of
alternatives is an integral piece of permitting through NEPA. When considering the value or
need for a prison, there should be a review of the ways in which a reduction in prisoner
populations would reduce or eliminate the need for expanding or constructing prisons, and
thus reduce or eliminate the resulting environmental justice concerns.
Impacts on Children
In addition, we feel that consideration of environmental justice impacts on prisoners should
extend to the families of prisoners as well, in particular those with children. Statistics show that
one in 28 children have a parent in prison—2.7 million children are growing up in households
in which one or more parents are incarcerated. Two-thirds of these parents are incarcerated for
nonviolent offenses, primarily drug offenses. One in nine black children has an incarcerated
parent, compared to one in 28 Hispanic/Latino children and one in 57 white children.35 Even
Sesame Street has taken note of the plight of children with parents in prison.36
The absence of a parent due to incarceration has a significant impact on the communities where
these children live. This factor should be considered among a review of the cumulative impacts
that affect environmental justice communities.37 And while a parent’s absence may be
temporary, negative health impacts resulting from incarceration can continue far beyond a
prisoner’s release date, causing additional financial and emotional hardships for families with
Next Steps
For the above-stated reasons, HRDC and the undersigned organizations ask the EPA to use the
EJ 2020 Action Agenda Framework to ensure that the millions of prisoners in this country
receive the protections that are intended under Executive Order 12898 and Title VI of the Civil
Rights Act.


Extensive examples of alternatives to incarceration can be found in the following websites: Office of National
Drug Control Policy,; American Psychological
Association,; Families Against Mandatory Minimums
(FAMM),; article from The
EPA’s involvement in the Partnership for Sustainable Communities provides context for the EJ cumulative
impacts that we are referring to here. “Creating healthy, sustainable, and equitable communities is a priority of the
federal government. Environmental Justice plays a key role in an integrated effort that concurrently addresses
housing, environment, transportation and health issues.” Source:

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HRDC would like to participate further in the EPA’s EJ 2020 Action Agenda Framework, to
ensure that prisoners are taken into consideration with respect to environmental justice and
impacts on minority and low-income populations. Please contact me to discuss how we may do
so. For example, one of our staff can be available for a meeting in-person or via conference call,
and we can invite participation from other stakeholders and advocates in the prisoners’ rights
and criminal justice reform community who are interested in this issue.
Thank you for reviewing our concerns; I look forward to further communication on this subject.
If you have questions or require additional information, please do not hesitate to contact me.

Paul Wright.
Executive Director, HRDC
cc: All EPA Points of Contact for EJ 2020
Stuart Delery, Acting Associate Attorney General, DOJ
Thomas A. Webber, Chief, Capacity Planning and Construction Branch, BOP
Issac Gaston, Site Selection Specialist, BOP

This comment is endorsed by the following 93 organizations:
Abolitionist Law Center (PA)
Amistad Law Project (PA) *
Architects / Designers / Planners for Social Responsibility (ADPSR)
Bill of Rights Defense Committee – Tacoma (WA)
California Coalition for Women Prisoners
California Families Against Solitary Confinement
California Partnership
California Prison Moratorium Project
Campaign for Youth Justice (DC)
Cascadia Forest Defenders (OR)
Center for Gender & Refugee Studies (CA)

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The Center for Sustainable Economy
Center for Women’s Health and Human Rights (MA)
Climate Justice Alliance
Coalition for Prisoners’ Rights (NM)
Columbia Legal Services (WA)
Communities United for Restorative Youth Justice (CURYJ)
Critical Resistance Los Angeles (CA)
Cross Timbers Earth First! (OK)
CURB (Californians United for a Responsible Budget)
Detention Watch Network
Dignity & Power Now (CA)
Drug Policy Alliance
Earth First! Humboldt (CA)
Earth First! Prison Support Project
Ella Baker Center for Human Rights
Enlace Int’l
Environmental Justice Advocates - Lewis & Clark Law School (OR)
Everglades Earth First! (FL)
Fen Valley Earth First! (MI)
Florida Institutional Legal Services (Project of Florida Legal Services, Inc.)
Florida Justice Institute, Inc
Georgia Detention Watch
Glacier’s Edge Earth First! (IN)
Global Justice Ecology Project
Got Green? (WA)
Grassroots Leadership (TX)
Hudson River Sloop Clearwater, Inc. (NY)

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Hudson Valley Earth First! (NY)
International CURE
Jesuit Social Research Institute
Justice for Families
Justice Now
Justice Strategies
Legal Services for Prisoners with Children
Longleaf Earth First! (FL)
Middle Ground Prison Reform
National Lawyers Guild
National Lawyers Guild - Lewis & Clark Chapter (OR)
National Lawyers Guild - Mass Incarceration Committee
National Police Accountability Project
National Religious Campaign Against Torture
New York City Jails Action Coalition
New York Environmental Law and Justice Project
November Coalition
Ohio Student Association
Palm Beach County Environmental Coalition (FL)
People’s Law Office (IL)
Power U Center for Social Change (FL)
Prison Books Collective (Chapel Hill, NC)
Prison Law Office (CA)
Prison Policy Initiative
Prison Watch Network
Prisoners’ Legal Services (MA) *
The Promise of Justice Initiative (LA)
Queer Detainee Empowerment Project

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Radical Action for Mountains’ and People’s Survival (RAMPS)
RAICES (Refugee and Immigrant Center for Education and Legal Services)
The Real Cost of Prisons Project
Rising Tide North America
San Francisco Bay View National Black Newspaper
Sentencing and Justice Reform Advocacy (CA)
The Sentencing Project
Sin Barras
Solitary Watch
Southern Center for Human Rights
Southern Poverty Law Center (SPLC)
Stories from South Central (WV)
Support Vegans in the Prison System
Sylvia Rivera Law Project (NYC)
Tar Sands Blockade (TX)
Texas Civil Rights Project
Texas Jail Project
TWAC (Trans and Women Action Camp) Cascadia
UC Davis Immigration Law Clinic
Urban Justice Center (NYC)
Urbana-Champaign Independent Media Center
Vermonters for Criminal Justice Reform
Virginia Organizing
Washington Lawyers’ Committee for Civil Rights and Urban Affairs (DC)
Women’s Council of the CA Chapter of the National Association of Social Workers
Working Narratives (NC)
350 Vermont
* Organizations that were inadvertently left off this list in our original comment.