Public defender says Philly jails are ‘cruel and callous,’ and violate clients’ rights

The Philadelphia Department of Prisons has been locked in federal litigation for more than a year with civil rights lawyers who say conditions are unsanitary, cleaning supplies inadequate, the climate dangerous, and the time prisoners spend outside of cells inhumanely scarce. A judge found grounds to hold the city in contempt of an order to let people out of their cells at least three hours a day. And sanctions of $10,000 a day — payable to Philly’s two nonprofit bail funds — could be imposed as soon as June 10 if the city fails to comply.

Now, the Defender Association of Philadelphia has begun filing petitions demanding action even sooner, arguing for the immediate release of some clients from jail conditions it says are “so cruel and callous” as to be unconstitutional.

“Given everything I’ve heard and seen over the past six months, it’s not only a legal responsibility but a moral responsibility to bring this information to the attention of the courts in the interest of seeking our clients’ release,” said Alan Tauber, the city’s acting chief defender. “We really have no choice.”

The filings, known as habeas petitions, constitute an unusual though not unprecedented approach — sparked by what advocates say is one of the worst crises in a half-century, one that has seen the city prison system embroiled in five sprawling lawsuits litigated over the course of years or decades.

» READ MORE: Can Philly jails be forced to pay bail fund $10,000 a day? That’s the ask in a federal lawsuit.

Since the start of the pandemic, at least 16 people have died in city custody, only one of them from confirmed COVID-19. Five were killed by cellmates, in some cases on unmanned or understaffed units. A corrections officer and a prisoner are facing federal charges for allegedly smuggling contraband. Near-daily incident reports from the jails describe prisoners emerging from cells past faulty locks to brawl with staff or other prisoners, at times causing serious injuries.

Some of those killed were jailed on nonviolent or low-level charges, like Christopher Hinkle, who had been arrested for a drug offense when he was put in a cell with a man accused of repeated random assaults on strangers.

A prison spokesperson declined to comment, citing the ongoing lawsuit. In its most recent court filing, the city acknowledged it had failed to provide three hours out of cell per person per day. But it cited circumstances outside administrators’ control, including chronic staff absenteeism and a jail population of 4,700, up 30% from the start of the pandemic. The city’s filing emphasized areas of progress, including negotiations to encourage and incentivize workers.

» READ MORE: Another assault at Philly jail leaves a man on life support and staff warning of a crisis

But the Defender Association’s filings — so far, in just a handful of cases in which people were held on bail or on probation-related detainers — suggests defendants are endangered by conditions that have improved only incrementally as the rest of the city has begun reopening.

It includes declarations from incarcerated people who report having to scream for help for an hour or longer during medical emergencies. And it cites a social worker who reported “most if not all of her clients have recently begun to experience new mental health issues, including nightmares, anxiety, panic attacks, and paranoia.”

Some judges immediately dismissed the petitions, though others appear to have factored them into bail decisions.

Claire Shubik-Richards, executive director of the Pennsylvania Prison Society, said the petitions were appropriate given what she called “highly troubling, dangerous” jail conditions. She’s seen the number of complaints from Philadelphia double in recent months.

Though some families have taken to protesting along State Road on Fridays, she expressed frustration with the lack of a louder outcry from the public or city leaders. “This is a human rights violation and crisis on the scale of any of the ones that have resulted in massive protests,” she said.

David Rudovsky, a longtime Philadelphia civil rights lawyer representing the plaintiffs in the current federal lawsuit, said he was last aware of habeas filings over Philadelphia prison conditions in 1969. The Pennsylvania Supreme Court affirmed the court’s order granting relief, citing findings that “the prison was a cruel, degrading, and disgusting place, likely to bring out the worst in a man, and that after a riot the prison had become a place ruled by cold-blooded terror.”

More recently, said Margo Schlanger, a University of Michigan law professor and an authority on civil rights and detention conditions, habeas filings have grown fairly common during the pandemic — with mixed success.

Schlanger said the question of what conditions of confinement are unconstitutional remains unsettled by the courts.

In pretrial cases, it’s a violation to create conditions that are objectively and unreasonably poor enough to constitute punishment.

But, Schlanger added, “what you do with people who are trying but failing to run a safe jail? If they’re doing the best that can be done, it’s hard to call that unconstitutional, even if the outcome is very, very bad.”

Staff writer Chris A. Williams contributed to this article.