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Alabama’s secretive prison project same as 2018 Kansas deal

Eddie Burkhalter

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The secrecy behind Alabama’s plan to build three new prisons using private prison companies mirrors a project in Kansas that left some lawmakers there feeling that the state got “hoodwinked.”  

The Kansas governor has since said her state was “hoodwinked” by one of the same private prison companies now vying for a piece of Alabama taxpayer’s $900 million to build one or more of the state’s three planned prisons. Promised savings never materialized, and Kansas now plans to send some inmates to a private-prison-operated facility out-of-state because of continued overcrowding. 

Gov. Kay Ivey in August announced the five companies that expressed interest in building new prisons through build-lease contracts are: The Geo Group, Inc., Corvias, LLC, Corrections Consultants, LLC, CoreCivic, Inc. and Alabama Prison Transformation Partners. 

APR was able to confirm that B.L. Harbert International and Star America Infrastructures are two of the entities behind Alabama Prison Transformation Partners, but additional partners haven’t been identified, and the state isn’t saying. 

Corrections Consultants is owned by the Tennessee businessman Doctor Robert Crants Jr., APR also recently confirmed

The Alabama Department of Corrections (ADOC) had promised the interested companies that the state would keep information about the businesses private until contracts are finalized, the ADOC told several news outlets.   

“…The Request for Qualifications assures competing developers that “any information received in response to the solicitation/request will not be publicly available until final contract(s) has received all approvals,” the ADOC said in statements last week. 

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Most everyone agrees that Alabama has to address the state’s aging, overcrowded and dangerous prisons, but just how that’s done, and at what cost, remains debated. 

Alabama is under a judge’s order to roughly double the number of correctional officers by 2022, and the U.S. Department of Justice in April threatened Alabama with a federal lawsuit because of what the department found to be the unconstitutional treatment of prisoners over violence and sexual abuse in the overcrowded, understaffed prisons. 

The state Legislature in 2015, passed criminal justice reforms which reduced prisons from 200 percent of capacity to about 160 percent, but prisons remain dangerously overpopulated and understaffed. A team of law enforcement agencies on Monday confiscated 621 makeshift weapons at the G.K. Fountain Correctional Facility in Escambia County. 

In 2018, the state Legislature increased ADOC’s funding by $86 million for additional medical and mental health services and correctional officers, and in 2019, increased the budget again by $40 million to hire 500 more correctional officers and boost pay by 20 percent to help retain staff, but other attempted fixes have failed. 

Lawmakers tried three times in recent years to pass legislation to replace and consolidate aging prisons in new facilities though bond issuances, but closing job-providing prisons in one’s own district, and taking on additional debt to do so, wasn’t politically popular. 

“Three times it was introduced and three times it failed,” state Sen. Cam Ward told APR on Monday. Ward is also chairman of the prison oversight committee. “Lawmakers wanted prisons in their district. Don’t close mine, close his.” 

Estimates in bills pushed in the Legislature in 2016, and 2017, put the cost of the state itself to build four new prisons – not three –  at around $800. The cost over the 30-year term of the bond issuance would have been $1.5 billion. 

The ADOC has estimated that it would cost the state more than $440 million to repair all 17 major detention facilities. 

After those failures, Gov. Kay Ivey presented a solution: Remove the need for legislation by contracting directly with private companies to build the prisons, then lease them back over a period of decades. Under Ivey’s proposal, the private prison companies would be responsible for maintenance of the prisons and the state would operate them. 

“The politics of it are still dicey,” Ward said. “You still have some legislators who really want us to do it. I think at the end of the day you’re going to see a sit-down where the legislators who want to see the state do it are going to put their numbers on the table and the administration is going to put their numbers on the table, and whichever one is cheaper is the way it’s going to go.” 

Ward said he understands the concern many have about the secrecy behind the ADOC’s request for qualification process, and said he still doesn’t know all of the entities behind Alabama Prison Transformation Partners. 

“They’re naturally suspicious, because that’s a lot of money. You’re talking about close to a billion dollars. There’s going to be concerns there and it’s valid,” Ward said. “I think for their part more transparency would be helpful to them.” 

Kansas leads the way

Kansas officials used the same process that Ivey’s administration is moving forward with when that state entered into a build-lease contract with CoreCivic in 2018, to replace the state’s Lansing Correctional Facility. 

Shar Habibi, research director at the California-based think tank In the Public Interest, which focuses on privatization and the economy, pointed to an audit that determined it would have been less costly for Kansas to build the new prison itself with a bond issuance of $155 million. 

The state’s finance council instead chose to contract with CoreCivic at a cost of $159.5 million, or $362 million over 20 years including maintenance and insurance payments, according to Mother Jones

“I think the theory is that you get a project that’s best for the state, not necessarily one that’s low-bid,” Mike Gaito, director of capital improvements at KDOC, told the Topika-Capital Journal. 

The Kansas Department of Corrections estimated that building the new prison would save approximately $23 million over the 20-year lease, largely by cutting staffing in half by using newly designed cell blocks that don’t require as many officers to oversee inmates. 

That projected savings didn’t come to be, however, when KDOC found the land unsuitable to the new design, and the savings was reduced from $23 million to just $1.3 million over 20 years, according to the state’s projected savings

CoreCivic had hired to aides to former Kansas Gov. Sam Brownback,  according to the Kansas City Star, but Brownback at the time said his office wasn’t involved in selecting CoreCivic. The governor had to approve the deal, however, the newspaper noted. 

Kansas Sen. Carolyn McGinn expressed concern at the time that the state’s process lacked transparency. 

“The problem here — we’re in this decision mode now — is because so much of this process was done behind closed doors,” McGinn told  The Kansas City Star. “It wasn’t an open process.”

Just as in Alabama, the Kansas Department of Corrections did initially name the companies that expressed interest in the project, but declined to give out any more information once bids were placed, including the names of the companies that bid or the bid amounts, according to The Kansas City Star. 

The Kansas City Star noted that the KDOC had previously named CoreCivic, Geo Group and Lansing Corrections Partners has having expressed interest, but the paper couldn’t identify who was behind the Tennessee-based Lansing Corrections Partners. No such business is registered in Tennessee or Kansas. APR was also unable to identify the people behind Lansing Correctional Partners. 

Kansas Gov. Laura Kelly told the Associated Press in February that the state was “hoodwinked” by CoreCivic into believing the new design would save the state millions. 

“We were just, you know, hoodwinked, I think,” Kelly told the AP. She had been critical of the private prison proposal as a state senator before her governorship. “I was not.”

Changing Tactics

Both CoreCivic and Geo Group have in recent years worked to grow real estate holdings to take advantage of each companies’ change in 2013, from traditional corporations to Real Estate Investment Trusts (REIT), which allows them to save many millions through federal tax exemptions. 

Building Alabama’s prisons and managing them as landlords would help the two companies meet an obligation of their REIT’s that they hold a certain amount of real estate in their portfolios, Habibi said, and it lets them move into states that may have been leery of allowing private prison companies to operate facilities. 

Financing Alabama’s prison builds may have gotten a little trickier for the two largest companies recently, Habibi said, which could mean it’ll cost the companies, and the state, more in the long run. 

“In the past few months all of the major banks that have provided financing to CoreCivic and Geo Group…have all said no new financing,” Habibi said. 

JP Morgan Chase & Company had already financed CoreCivic’s Kansas project before the banks made that announcement in March following public outcry over the private prison and detention center companies’ connection to the Trump administration’s undocumented immigrant family separation policy. 

President Trump in June signed an executive order ostensibly ending the policy, but since then at least 700 families have been separated, according to a report by the U.S. Department of Health and Human Services

Wells Fargo, SunTrust, Bank of America, BNP Paribas, Barclays and Fifth Third Bankcorp have all said the banks would stop financing private prison and immigration detention companies. 

Without access to those banks, CoreCivic and Geo Group stand to lose 72 percent, or $1.9 billion, of the companys’ current available financing, according to a joint report in July by In the Public Interest and several other groups.  

Habibi also warned that locking the state into long-term leases with a private prison companies “significantly hampers” Alabama’s ability to change its criminal justice system. 

“If the state is serious about criminal justice reform, if populations do decline, you can’t just say we only need three prisons now. It doesn’t matter. You’re on the hook for the money,” Habibi said. 

Donald Cohen, executive director of In the Public Interest, told APR that he also worries there would be little incentive for the state to continue with criminal justice reforms and reduce prison populations if the state is locked into long-term leases. 

“Theoretically, you could do anything you want, but why would you? You have no incentive to do that,” Cohen said. “There’s only an incentive to keep the beds filled.” 

Habibi also pointed to problems CoreCivic has had in the past maintaining facilities for local governments. A report released by In the Public Interest in January noted that CoreCivic, doing business under the company’s previous name, Corrections Corporation of America (CCA), “failed to repair rusted doors, replace damaged windows, seal cracks in walls and floors, fix damaged ceiling tiles, and patch leaks in the roof” at Hernando County’s jail north of Tampa, Florida. 

After Hernando County took back over control of the jail in 2010, county officials estimated that CCA owed $1 million for needed repairs, which the company agreed to pay, according to the Tampa Bay Times. 

Beyond maintenance issues that might arise, Habibi said there’s a real concern that states contracting with these companies to build and maintain prisons can later amend contracts to let private prison companies operate them as well. Once in the door, it’s much easier for private prisons to negotiate other terms, she explained. 

“And there are a lot of examples of human rights abuses that CoreCivic and Geo Group have engaged in” Habibi said. 

Both companies have faced numerous lawsuits over alleged civil rights abuses, neglect and violence at their facilities. 

Kansas officials announced in August that around 600 state prisoners would be transferred to a CoreCivic-operated prison in Arizona at a cost of around $16.3 million a year because of prison overcrowding, according to The Wichita Eagle. 

“Sending Kansas inmates to another state is an option we wish we could avoid,” Acting Kansas Department of Corrections secretary Jeff Zmuda said in a press release.  

Whatever the solution, Alabama officials are under pressure to fix the state’s troubled prison system, and the threat of a lawsuit by the U.S. Department of Justice still looms. 

Sen. Ward sees Alabama’s current plan to use the build-lease option as part of a much needed remedy, and one that needs to come quickly. 

“There’s no dispute that we’ve got to have new facilities to replace the old ones,” Ward said. “The issue is getting it done in a timely manner and based on specifications.” 

Ward said that during the state’s request for proposal process later on, the unknown names connected to some of these companies will come to light, which he said is critical to “transparency and making people feel more comfortable with it.” 

“But yes. I think the way the governor is doing it right now is a good way,” Ward said.

 

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Crime

Seventh Alabama inmate dies after testing positive for COVID-19

Eddie Burkhalter

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A seventh Alabama inmate has died after testing positive for COVID-19, and the man is the second person from the infirmary at the Staton Correctional Facility to have tested positive for the virus and subsequently died. 

Daniel Everett, 74, died Tuesday after testing positive for coronavirus at a local hospital, the Alabama Department of Corrections announced in a press release Wednesday. Everett, who had been housed in Staton’s infirmary due to previous illnesses, was tested after another inmate in the infirmary, 80-year-old Robert Stewart, tested positive for the virus and died on June 14

Coronavirus seems to be spreading among inmates and staff at Staton prison, where, as of Tuesday, there have been 17 confirmed cases among inmates and 23 among workers. That’s more confirmed cases than in any other state prison. Tutwiler prison follows closely behind at 39 confirmed cases — 10 among inmates and 29 among employees, one of whom died.  

ADOC also announced that an inmate at St. Clair Correctional Facility, one at the Julia Tutwiler Prison for Women and another at Staton prison all tested positive for COVID-19, bringing the total confirmed coronavirus cases among state inmates to 68, 43 of which remain active, according to the department. 

Of the state’s approximately 22,000 inmates, 329 had been tested as of Tuesday, according to ADOC

In addition to the new cases among inmates, ADOC said a worker at the Easterling Correctional Facility and an employee at the Alabama Corrections Academy tested positive for COVID-19. There have been 165 confirmed cases among ADOC staff, who are asked to self-report if they receive positive test results independently. ADOC has not offered free testing to staff. 

ADOC announced last week the first death of a prison worker, an employee at Tutwiler prison, who tested positive for COVID-19. 

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Despite calls by Rep. Chris England, D-Tuscaloosa, and numerous criminal justice reform groups and advocates for incarcerated people for ADOC to increase COVID-19 testing and release as many of the very sick and older inmates as possible, who are more at risk from the virus, the department has not publicly indicated plans to do so. 

ADOC Commissioner Jeff Dunn in an op-ed published in the Alabama Daily News on Monday wrote that he believes the depiction by some of prisons as petri dishes for the virus is not entirely off base, and said that “an enclosed environment housing a disproportionately unhealthy population where social distancing is virtually impossible, coupled with COVID-19’s highly contagious nature and long incubation period, creates a recipe for a potential health disaster if not managed correctly.”

But Dunn wrote that handling the pandemic in prisons “cannot be reduced to simple conversations about testing data or be solved through the sudden release of unrehabilitated inmates back into society.” 

As the confirmed coronavirus cases and deaths continue to increase in Alabama prisons, the virus is also surging outside prison fences and across the state. 

Alabama on Monday saw a new record number of patients in hospitals with COVID-19, and the number of new cases in the state has continued to reach record highs in recent days.

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How qualified immunity affected an Alabama man shot five times during a police sting

Eddie Burkhalter

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Trinell King was driving his girlfriend’s car to give an acquaintance, Donavan Brown, a ride when a Warrior Police Department officer pulled him over because the car didn’t have a license plate.

King, who is Black, didn’t have proof of insurance or a driver’s license that September day in 2015, but gave the officer a photo ID.

Brown — on the other hand — gave a false name, and while the officer was back at his police vehicle, King told Brown to be honest with the officer, according to court records in a case over the incident. Brown told King that he had outstanding warrants and a gun. He was going to run.

Brown got out of the car and ran, and the officer ordered King out at gunpoint, handcuffed him and placed him in the back of the police car. King fully cooperated and told the officer that Brown had a gun. Even the responding officers, in court depositions, agreed that King fully cooperated.

Soon, King was surrounded by numerous white officers, one of whom testified in a deposition that King was “extremely cooperative from the beginning” and “willing to give [them] any information without having to really ask.”

King’s only crime was driving without insurance or a license, not something Warrior police usually arrest someone for, officers said in depositions, but he remained handcuffed while officers tried to coerce him into helping capture the armed man who’d ran from the scene.

“F— him [i.e. meaning King], you don’t want to help us out, we’re going to throw — we’re going to hit you with this charge, you gonna start f—ing us over, we’ll f— over you,” King said an officer told him, while testifying in a deposition.

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Officers repeatedly threatened King that they would “f—” him “over” if he didn’t help.

King said he was “nervous” and “scared” — that he “felt threatened.” He believed his “life was in danger,” according to court records, and after nearly two hours of coercion, he agreed to take part in a dangerous sting operation to capture Brown. Police officers in depositions disputed that they coerced King into helping them with the sting operation, and said it was his idea to do so, according to those records.

“With the negotiation, the threats, everything they was telling me, if I don’t cooperate they’re going to throw some charges on me, and they going to f— me over. So in the streets that means it could mean anything. It can mean being shot. It can mean being anything. My life —,” King said in a deposition.

Going along with the plan, an officer called Brown and put a cell phone to King’s ear while he was handcuffed. King told Brown what he was told to say: that police had let him go. He could come and pick Brown up. Police told King to drive his girlfriend’s car, pick up Brown and that they’d pull him over again.

Once again, an officer told King “if you f— over us, we’re going to f— over you,” according to the court documents.

Once King picked up Brown, the officers decided to pull him over before they had discussed, Brown pulled his gun and told King he “had” to shoot the officers, according to court records.

“King could not stop the car before Brown started shooting, and the officers returned fire,” King’s attorneys wrote in a court filing.

King, who wasn’t given a bullet-proof vest, was struck by bullets five times, and there were 20 bullet holes in the car. Brown was shot 13 times, but remarkably both survived. One officer was shot but was protected by a vest. King underwent multiple surgeries, but lost the use of one arm.

King’s case is an Alabama example of how the legal doctrine of qualified immunity prevents some who’ve been harmed by the actions of law enforcement from seeking relief from courts. Qualified immunity, a controversial doctrine established by Supreme Court precedent, protects government officials who have been sued in their individual capacity, unless their actions violate established legal precedent.

King sued, but a U.S. District Court judge in 2017 dismissed the case before it even went to trial on grounds of qualified immunity, and a three-judge panel of the 11th Circuit U.S. Court of Appeals in a June 5 ruling also found that the officers were protected by qualified immunity.

[What is qualified immunity?]

Despite the courts’ rulings, witnesses testified that the officers’ actions were improper.

Daniel Busken, a retired police chief and law enforcement consultant, testified in a deposition as a witness for King that the officers should have known they were putting King’s life at risk.

Busken said that the police “knew, or should have known, that their plan to force Mr. King to assist in their capture of Brown represented a significant danger to Mr. King’s safety … and an unpredictable situation for Mr. King,” because Brown “was a desperate man in a desperate situation that had showed how desperate he was.”

Another officer testified in a deposition that he was unaware of any plan to protect King’s life, or if the department had ever conducted such a sting before.

“Nevertheless, Defendants planned to have five vehicles and seven armed officers — all of whom planned to draw their guns on Brown — involved in the sting,” King’s attorneys wrote in an appeal.

The judges ruled that King could not bring his case before a jury to decide whether the officers should be held accountable for nearly costing him his life — not because his case lacked merit but because of the controversial legal doctrine of qualified immunity

Attorneys for King have appealed the 11th circuit panel’s ruling to the full 11th circuit court, and are asking all the circuit judges to reconsider, and to allow the case to go before a jury.

The attorneys argue that the officers violated his Constitutional protections. The June 5 ruling came at the peak of tensions between peaceful protestors and police, some of whom responded with tear gas and so-called rubber bullets.

The judges,  in their opinion, wrote that “even taking King’s testimony as true and drawing all reasonable inferences in his favor, there is no evidence that the officers threatened him with false charges” — because the officer’s didn’t say what he might be charged with if he didn’t go along with their plan.

“As for the alleged threats of physical violence, the evidence is similarly thin,” the judge’s wrote. “If the officers had told King ‘help us, or we’re going to f–k you up’ (or something like that) then King would have a more compelling argument. But that isn’t what he said they said.”

“Instead, King testified that the officers told him “[if] you don’t want to help us out, we’re going to throw—we’re going to hit you with this charge, you gonna start f–king us over, we’ll f–k over you. I don’t know where you get your car back,” the judges wrote.

King’s attorneys in the appeal to the full 11th circuit argue that the case should be heard by a jury of King’s peers, and that the all-white judges on the panel are “good people with good intentions” but that they are out-of-touch with “the common experiences of the people, especially Black Americans, and the reasonable inferences that they would draw from the totality of the evidence presented.”

“Suffice it to state that Black and other Americans of color, and a significant amount of White and other Americans, would come to a different conclusion than the panel, based on their different life experiences, which is the reason why the Founders insisted that the Seventh Amendment require trial by jury, and not by a panel of judges who do not have the same life experiences,” King’s attorneys wrote.

King told APR that he was left without a choice, forced to risk his life in a bid to help the officers, with whom he cooperated from the start.

“I can’t believe that the courts have given the officers who made me help them catch their suspect immunity after they forced me to go along with their plan to trap him. They knew he was armed and dangerous. They put on their bullet proof vests while I waited, and they made me go pick him up with no protection at all,” King said in a statement. “I had done everything I could to cooperate and even told them his name, that he had a gun and had warrants on him, but then they forced me to help them catch him.”

“I didn’t have any choice because they made it clear that if I didn’t go along with their plan they were going to hurt me,” King continued. “There was no doubt about that. I was one Black man surrounded by all these white cops who were threatening me. How can judges sit there and say what a jury would think about that?”

Spurred by the death of George Floyd, a Black man killed by a white police officer in Minneapolis, protestors and criminal justice reform advocates are calling for an end to qualified immunity, which they say allows police to escape responsibility for harming the public.

On June 19, in a tribute to Juneteenth, Colorado Gov. Jared Polis signed into law a series of law enforcement reform bills, included among them an avenue for Coloradans to sue police in state court if their rights have been violated. The Enhance Law Enforcement Integrity Act states that “qualified immunity is not a defense to liability.”

Colorado is the first state to pass such legislation barring qualified immunity as protection for officials, but the state law can’t stop such officials from claiming qualified immunity if a case is brought before a federal court instead of a state court.

That could change, if the U.S. Supreme Court ruled against such protections, but earlier this month, the Supreme Court passed up a chance to rule on the matter.

It was the U.S. Supreme Court in the 1967  Pierson v. Ray case that established qualified immunity as a doctrine as a protection against frivolous lawsuits, and over the years, courts have expanded the protection, and the doctrine still has its supporters.

Democrats have pushed for broad police reforms in the wake of Floyd’s homicide, including an end to qualified immunity, but many Republicans argue that doing so would result in frivolous lawsuits and discourage people from becoming law enforcement officers.

The U.S. House of Representatives on June 25 passed a series of policing reforms in a largely party-line vote, but the Trump administration is threatening a veto, and the measure has little support among Republican lawmakers, just three of whom broke ranks and voted for the House bill.

Democrats opposed a GOP proposal in the U.S. Senate, and said the bill didn’t go far enough, effectively stalling that bill and leaving the matter in limbo as protests against police brutality continue across much of the country.

Birmingham attorney Rip Andrews, one of King’s attorneys, told APR in a statement that he hopes the full 11th circuit considers the case in the current context.

“Qualified immunity has so far kept Trinell from having his day in court in front a jury. Win or lose — a day supposedly guaranteed by the Seventh Amendment,” Andrews said. “His only chance now is the hope that the full Eleventh Circuit reads his story in the context of our time and agrees to hear his appeal.”

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Crime

Sixth Alabama inmate dies after positive COVID-19 test

Eddie Burkhalter

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A sixth incarcerated person in Alabama died Monday after testing positive for COVID-19, the Alabama Department of Corrections announced Monday. 

Wanda Gaye Dison, 68, who was serving at Julia Tutwiler Prison for Women in Wetumpka died at a local hospital Monday, according to the department. Dison was hospitalized for advanced, chronic health problems, was tested and found to be positive for coronavirus.

Dison’s exact cause of death is pending an autopsy. 

Two more inmates at Tutwiler tested positive for COVID-19, ADOC also announced Monday. One woman was asymptomatic but was tested for precaution during a transfer from another facility and was found to be positive, according to the release. The other woman was tested after showing symptoms. Both are now in medical isolation. 

There have been 29 COVID-19 cases among workers at Tutwiler and nine cases among inmates, according to the department. The prison was at 175 percent capacity in April, according to the department’s monthly statistical report. 

ADOC on Thursday announced that a worker at Tutwiler prison died after testing positive for the virus, becoming the first Alabama prison worker to have died after receiving positive test results. 

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ADOC also announced eight new coronavirus cases among staff from five separate prisons, including the Birmingham Community Based Facility and Community Work Center, St. Clair Correctional Facility, Holman Correctional Facility, North Alabama Community Based Facility and Community Work Center and the Kilby Correctional Facility. 

Forty-one of the 65 total COVID-19 cases among inmates remained active on Monday, while 82 of the 163 cases among staff were still active. Coronavirus cases have been confirmed in 27 of the state’s 32 facilities.

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Crime

Alabama Department of Corrections investigating inmate death

Eddie Burkhalter

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A 38-year-old man serving at Donaldson Correctional Facility died last week, but the cause was unclear Monday. 

The Alabama Department of Corrections in a statement to APR on Monday said the department was investigating the events that led up to the death of Darnell McMillian of Mobile County, but the department declined to answer APR’s questions on whether there is a correctional officer-related use-of-force investigation or an inmate-on-inmate assault investigation underway in his death. 

The exact cause of McMillian’s death is pending an autopsy, according to the department’s statement. 

There have been at least five inmate homicides in Alabama this year, four possible overdose deaths and five likely suicides, according to the ACLU of Alabama’s records. ADOC doesn’t typically release information on an inmate’s death unless journalists discover the death by other means and provide the name of the inmate to the department in a request for information. 

During 2019, there were at least 8 suicides, 14 homicides, including two men who died after being beaten by correctional officers, and five possible overdose deaths. 

The U.S. Justice Department in April 2019, released a report highlighting what the department described as systemic problems of violence, sexual assaults, drugs and homicides in Alabama’s overpopulated, understaffed prisons. 

The Justice Department continues to negotiate with the state to prevent the possibility of a federal lawsuit over what the department says is a potential violation of the Constitution’s Eighth Amendment and its prohibition on cruel and unusual punishment.

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