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A game of political “chicken” may backfire on Alabama’s Department of Corrections should Sen. Jeff Sessions (R-Ala.) ultimately become U.S. Attorney General, according to a former assistant U.S. attorney and policy analyst.
Faced with unfavorable political decisions necessary to adequately fund its prison system—such as raising taxes or letting out low-level offenders early—Alabama instead backed civil actions and a U.S. Department of Justice investigation that raised questions about the state of its prisons, Arthur Rizer, justice policy director at libertarian think tank the R Street Institute and a former assistant U.S. attorney, told Bloomberg BNA on Jan. 19.
State officials were hoping that the results of the investigation would allow them to blame former President Barack Obama’s already unpopular administration for any unpopular actions, Rizer said.
But if Sessions is confirmed, Rizer said it’s likely that the conclusion of the investigation will happen while a popular Alabama politician heads the department. Although Sessions’s response to the investigation and lawsuits is uncertain, he could ultimately have to force his home state—led by members of his own party—to implement one of those unpopular solutions, he added.
“They played chicken with the DOJ and now it’s a major problem,” Rizer said.
The Alabama DOC is under investigation by the Justice Department to determine “whether prisoners are adequately protected from physical harm and sexual abuse at the hands of other prisoners; whether prisoners are adequately protected from use of excessive force and staff sexual abuse by correctional officers; and whether the prisons provide sanitary, secure and safe living conditions,” according to an October press release.
Alabama’s DOC is also facing class action lawsuits from two legal organizations for alleged violations of its prisoners’ constitutional and human rights.
Both the investigation and lawsuits are supported by the governor and all three U.S. attorney’s offices in the state, Rizer said.
In the same October announcement, the Justice Department stated that the U.S. Attorney’s Offices for the Northern, Middle and Southern Districts of Alabama would lead the investigation.
Alabama Gov. Robert Bentley (R) stated that he supported the investigation in his responding press release, also issued in October.
“I welcome the opportunity to continue to work with the Department of Justice and continue the efforts to make Alabama prisons better,” Bentley stated in the release. “This issue of overcrowding is a [decades-old] issue that must be addressed. I am looking forward to again working with the Alabama Legislature to permanently solve this problem.”
An essential component of the investigation’s findings will determine whether Sessions’s home state complies with the Prison Rape Elimination Act of 2003—a law Sessions co-sponsored that he repeatedly referenced during his confirmation hearing Jan. 10-11.
Waiting for the federal government to force the state to improve its own system means that Sessions will likely take the helm of an ongoing investigation that will surely result in a politically unfavorable result, Rizer said.
“Now it’s super awkward that the most popular politician in Alabama is going to be in charge of an investigation that’s going to mandate that they do something,” Rizer said.
There is a possibility that Sessions could revert to using voluntary concessions—settlements with noncomplying jurisdictions—that were prevalent under former President George W. Bush, Rizer said. Yet that would still push the burden for fixing the system back onto the state, he said.
Essentially, Alabama will be forced to choose between raising taxes to build prisons or implementing a program to release low-level offenders, both of which Rizer said will likely anger Alabama voters.
“On the state level, there is a massive political issue because there’s just no solution,” Rizer explained. “Are they going to spend $800 million to build mega-prisons? Hell no, because they don’t have money. Are they going to let these people out? No, they won’t do that either.”
In a Jan. 24 email to Bloomberg BNA, Bentley’s communication director, Yasamie R. August, said, “The Prison Transformation Initiative is something the Governor first pushed for last year during his State of the State address. The Alabama Department of Corrections is currently housing over 23,000 inmates which is an occupancy rate over 175 percent.”
“This year during the Governor’s State of the State address he will once again highlight the importance of the Prison Transformation Initiative,” August wrote. “This plan will allow the department to consolidate prison operations and decrease the prison population, to an occupancy rates of 125 percent in the next five years. This plan will also address the issue of safety for correction officers as well as inmates. The Governor knows this is a serious matter that must be addressed.”
It’s unlikely that Sessions will make any moves to impact either the investigation or the lawsuits, said Richard Cohen, executive director of the Southern Poverty Law Center, one of the organizations suing Alabama’s Department of Corrections. SPLC’s lawsuit alleges that “the mental health and medical needs of prisoners with serious—even life-threatening conditions—are routinely ignored,” according to a post the SPLC’s website.
“What’s happening here with the level of violence is appalling,” Cohen said. “The state realizes that something is radically, radically wrong and they have to fix it.”
Cohen said he doesn’t believe Sessions will do anything “particularly special one way or the other” for Alabama once he’s confirmed, but pointed out that the DOJ could provide an potential avenue of relief. The DOJ sometimes offers technical assistance in improving prisons systems and sometimes offers grants to assist state jurisdictions to come into compliance with federal law, he said.
“That’s the DOJ at it’s best—forcing the law but also helping jurisdictions comply,” Cohen said.
It’s unlikely Sessions would halt the investigation, he said. Based on Sessions’s comments about recusing himself from any potential action against former Democratic Party Nominee Hillary Clinton Sessions made during the campaign, Rizer said a more likely scenario would be a recusal.
“Jeff Sessions is the darling of Alabama,” Rizer said. “But he can get political coverage by saying, ‘For ethics purposes, I have to recuse myself.’ I think that would be really smart of him.”
Requests for comment to Sessions’s office were not returned.
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