“57. Most Texas prisons are not air conditioned in the housing areas and in most areas where incarcerated people spend their time. According to an investigative news article, 4 out of 5 incarcerated people in Texas do not have access to air conditioning in their prison cells. In the hot summer months, outdoor temperatures in some parts of Texas can soar to 110 degrees F or more (43 degrees C), and can stay that high for weeks on end. Indoor temperatures are even higher. These extreme temperatures make the conditions inside the living areas unbearable, and for some incarcerated people, the heat is not just uncomfortable but deadly. There have been at least 20 deaths in Texas prisons attributed to heat stroke since 1998, and in 2019, there were 56 heat-related illness for incarcerated people and staff, according to TDCJ. Incarcerated people who are taking psychotropic medications and medications for high blood pressure, as well as those who are geriatric, are particularly vulnerable to heat stroke and death. 58. A five-year lawsuit challenging the lack of air conditioning in one prison facility, a geriatric unit, resulted in a federal court ruling in 2017 that the conditions amounted to cruel and unusual punishment. After vigorously fighting the court order, TDCJ ultimately agreed in 2018 to settle the lawsuit by air conditioning this particular facility. Nevertheless, the prison agency’s efforts to comply with the agreement were so inadequate that the judge threatened to hold the agency officials in contempt in 2019. The judge called conditions in the facility ‘grotesque’ and said he wished he had the authority to order the entire prison system to be air conditioned, but that he lacked the power to do so. 59. Efforts by advocates to persuade the Texas Legislature to provide funding to air condition the housing areas in Texas prisons have been unsuccessful to date. Given the extraordinary budget shortfalls the state is facing at the current time due to the COVID crisis, it seems extremely unlikely that this funding situation will change in the current legislative session. Even if funding were to become available, the political dynamics in Texas mean that many lawmakers would not support any efforts to improve the living conditions of people in custody.”
“60. With approximately 100 facilities in the Texas prison system, conditions will vary to some degree among the different prisons (also called “units”). But there are commonalities among most of the facilities, and the newer facilities (those built since Texas vastly expanded its prison system in 1993) all follow certain prototypes. 61. A Texas general population prison cell can be as small as 40 square feet (8’ x 5’) in the older prison facilities. The newer prisons have cells that are supposed to measure 80 square feet. The vast majority of cells hold two people, so the individual square footage per person in a cell is between 20 and 40 square feet (1.86 to 3.7 square meters) of encumbered space. As much as half the space in the cell is encumbered and not usable. The cells contain a metal bunkbed and a stainless steel open toilet attached to a washbasin. Drinking water comes from the washbasin. There is no privacy partition of any kind. With very few exceptions, there are no televisions in the cells. There are no windows in the cells of the older prison units (though there are windows in the hallways), and only the most minimal natural lighting in the newer cellblocks. Older cellblocks have bars (sometimes with metal mesh coverings over the bars), while newer cellblocks have solid metal doors. The cells are spartan and cramped, regardless of whether the facility is older or newer. 62. Approximately 30 to 40 percent of cells in Texas prison facilities appear to not meet international human rights standards, which have been interpreted by the European Court of Human Rights as requiring a minimum of 3 square meters per person of floor space. Moreover, the vast majority of cells in Texas prisons do not meet the requirement that each person must have an individual cell (see Mandela Rule 12). Each cellblock has a dayroom, which consists of several stainless steel tables and chairs bolted to the ground, and some benches facing a mounted television. People are generally provided the opportunity to move between their cells and the dayroom once per hour. Conditions in the dayroom can get very crowded and noisy. The dayrooms are also used as staging areas for people to wait before being taken to the ‘chow hall,’ to their work assignments, to medical appointments, to showers, or to programs. 64. To take showers, people are usually taken to a central area in the prison, where they wait in long lines in the hallway. The shower area itself consists of rows of showerheads, with no privacy partitions between showers. Hundreds of people may be forced to shower at the same time, in very crowded and dirty conditions. There is a place in each shower area for people to exchange their dirty clothes for clean ones. No one has individually designated clothing items; even underwear is communal. 65. Many of the prison facilities also have dormitory-style housing areas that can each house up to 100 or more individuals. These dormitory areas consist of rows of cubicles with short walls, each containing a single bed and a small desk. There is a row of open toilets and sinks in each dormitory, and many dormitories do not have their own showers. Also, there is a small open dayroom area in each dormitory, consisting of a few benches or tables and a television.”
“The TDCJ has robust precautions in place during extreme temperatures. The well-being of staff and inmates is a top priority for the agency and we remain committed to making sure that both are safe during the extreme temperatures. The agency takes precautions to help reduce heat related illnesses such as providing water and ice to staff and inmates in work and housing areas, restricting inmate activity during the hottest part of the day, and training staff to identify those with heat related illnesses and refer them to medical staff for treatment. Some correctional units, to include all medical and psychiatric facilities, are air conditioned (AC). However, on those units not having AC to mitigate the impact of excessive heat, the agency employs a number of protocols to ensure that the most heat sensitive inmates are identified, monitored and provided appropriate housing. Additional measures are taken to protect all inmates regardless of their heat sensitivity. Certainly, extra attention is paid to inmates with medical conditions, such as COVID-19. In closing, the TDCJ meets or exceeds American Correctional Association standards and is fully compliant with federal PREA mandates. Should Anthony Rae be convicted and sentence to a term of imprisonment, he would be incarcerated in a facility that complies with both US and Texas law.”
“The agency is accredited through American Correctional Association (ACA), which has specific standards for spacing. Those standards are listed below. 5-ACI-2C-01: Cell/rooms used for housing inmates shall provide at a minimum, 25 square feet [2.32 sq. m.] of unencumbered space per occupant. Unencumbered space is usable space that is not encumbered by furnishing or fixtures. At least one dimension of the unencumbered space is no less than seven feet. In determining unencumbered space in the cell or room, the total square footage is obtained, and the square footage of fixtures and equipment is subtracted. All fixtures and equipment must be in an operational position. 5-ACI-4B-06: All cells/rooms in Restrictive Housing provide a minimum of 80 square feet and shall provide 35 square feet of unencumbered space for the first occupant [3.25 sq. m.] and 25 square feet [2.32 sq. m.] of unencumbered space for each additional occupant. It is also worth noting that the agency's population is at 120,000. Our population has not been this low since 1995. At the beginning of January, the inmate population was approximately 140,000. This has allowed us to close facilities and have additional spacing during the pandemic.”
“For housing areas allowing two individuals within the same shared space, approximately 87% of the inmate housing areas within the TDCJ have a minimum of three metres of unencumbered space utilising the UK definition. should there be a single inmate housed in the space, 100% of beds meet the requirement. Regardless of the inmates housing assignment, every inmate has an assigned bunk and an individual sleeping space. An inmate may move freely around his assigned bunk and sleeping space. In 2020, the TDCJ has closed three correctional facilities and idled four others. This is a result of declining inmate populations. Since 2011, a total of 15 facilities have been closed or idled. As of February 8, 2021, there were 118,861 inmates in the custody of the agency at secure correctional facilities. The agency’s bed capacity is 138,861 and our operational capacity (96%) is 133,307. For context, the prison population in 2011 was 156,522. Predictions by the Legislative Budget Board in Texas do not show a return to pre-pandemic levels in the next three years.”
“Should [the appellant] be convicted and sentenced to a term of imprisonment in the TDCJ on the pending charges before the Court, the TDCJ assures it will make a good faith effort to place [the appellant] in a conforming housing area (at least three square meters of personal space) during the term of his incarceration. However, the TDCJ cannot guarantee he will never be placed in a nonconforming housing area over the term of his incarceration due to operation or inmate needs. The TDCJ continues to see decreased inmate populations. As of May 12, 2022, there were 118,422 inmates in the custody of the agency at secure correctional facilities. The agency’s bed capacity is 133,612 and our operational capacity (96%) is 128,268.”
“The TDJ have indicated that the information does not demonstrate that there is a less than 5% chance of being detained in a cell with less than 3m2 of personal space.” (Emphasis added.)
“(1) The extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue, which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought. (2) If it is shown that there are substantial grounds for believing that the requested person would face a “real risk” of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes “absolute” rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is “relative”. (5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured. (6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant. (7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 metres 2, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3: (see the ECtHR judgment of Ananyev v Russia (Applications Nos 425/07 and 60800/080910) of January 2012, referred to at [9] of Florea v Romania[2014] EWHC 3538 (Admin) (“Florea”). (8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements.”
“(1) Member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary. (2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful.”
“Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”
“no room in the Strasbourg jurisprudence for a concept such as the risk of a flagrant violation of article 3’s absolute prohibition against inhuman or degrading treatment or punishment (akin to that of the risk of a ‘flagrant denial of justice’). By the same token that no one can be expelled if he would then face the risk of torture, so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading.”
“177. However, in reaching this conclusion, the Court would underline that it agrees with Lord Brown’s observation in Wellington that the absolute nature of art.3 does not mean that any form of ill-treatment will act as a bar to removal from a Contracting State. As Lord Brown observed, this Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other states. This being so, treatment which might violate art.3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of art.3 in an expulsion or extradition case. For example, a Contracting State’s negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the Court to find a violation of art.3 but such violations have not been so readily established in the extra-territorial context. 178. Equally, in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court’s conclusion that there has been a violation of art.3: • the presence of premeditation; • that the measure may have been calculated to break the applicant’s resistance or will; • an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority; • the absence of any specific justification for the measure imposed; • the arbitrary punitive nature of the measure; • the length of time for which the measure was imposed; and • the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The Court would observe that all of these elements depend closely upon the facts of the case and so will not be readily established prospectively in an extradition or expulsion context. 179. Finally, the Court reiterates that, as was observed by Lord Brown, it has been very cautious in finding that removal from the territory of a Contracting State would be contrary toart.3 of the Convention . It has only rarely reached such a conclusion since adopting the Chahal judgment. The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of art.3 if an applicant were to be removed to a state which had a long history of respect of democracy, human rights and the rule of law.”
“16. The argument before us proceeded on the basis that there was no difference of approach for the purposes of article 3 between prison condition cases of the sort considered by the Strasbourg Court in which serving prisoners have complained of the conditions in which they are being detained in an ECHR state, and extradition cases. In short, that if a requested person could establish that there were substantial grounds for believing that there was a real risk that he would be detained in a multi-occupancy cell with less than three square metres of personal space, as defined in Muršić, his extradition would be prohibited unless the narrow circumstances identified in paragraph 138 (quoted above) were in play. We were content to approach the case of that basis because this aspect of the appeal turns on the assurances given by the Paraguayan authorities. Nonetheless, we would not wish to be taken as having decided that the approach is necessarily the correct one. 17. We have observed that it is the reality that the courts of the many countries whose prison conditions have been the subject of pilot judgments in the Strasbourg Court have been able, whilst they seek to improve conditions and reduce prison populations, to detain prisoners on remand and sentence those convicted to imprisonment even though that entails a real risk, even likelihood, of being detained in non-compliant accommodation. We have not seen any decision of the Strasbourg Court (or the Luxembourg Court) dealing with the question of space in the context of extradition. It might be thought anomalous, to say the least, that a fugitive from justice in an ECHR state apprehended in his own country would be returned to prison (with his remedy for sub-standard accommodation being a complaint in the courts and then Strasbourg) but the same person who manages to cross the border into another ECHR state would be immune from return, absent assurances. The same anomaly would be apparent were the countries concerned both in the European Union and subject to the European Arrest Warrant procedure. Similarly, in connection with extradition of a person from an ECHR state to a non-ECHR country, it might be thought anomalous were extradition to be impossible in circumstances where the conditions of detention would satisfy, for example, the ICRC suggested standards but not match the high standards applicable to ECHR states set by the Strasbourg Court in Muršić. No doubt, the Strasbourg Court itself will in time have an opportunity to consider an application which raises these issues. 18. In the meantime, they may arise in another case in the domestic context.”
“Moreover, the Court points out that in the domestic context, in the event of a finding of a violation ofArticle 3 of the Convention , the applicant would remain in detention pending the application or introduction of a Convention-compliant review mechanism which could – but would not necessarily – lead to his release earlier than initially intended. Thus, the legitimate penological purposes of incarceration would not be undermined. In contrast, in the extradition context the effect of finding a violation of Article 3 would be that a person against whom serious charges have been brought would never stand trial, unless he or she could be prosecuted in the requested State, or the requesting State could provide the assurances necessary to facilitate extradition. Allowing such a person to escape with impunity is an outcome which would be difficult to reconcile with society’s general interest in ensuring that justice is done in criminal cases (see López Elorza, cited above, § 111). It would also be difficult to reconcile with the interest of Contracting States in complying with their international treaty obligations (see Khasanov and Rakhmanov, cited above, § 94), which aim to prevent the creation of safe havens for those charged with the most serious criminal offences.”
“The Court would emphasise that the prohibition of Article 3 ill-treatment remains absolute. In this regard, it does not consider that any distinction can be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra-territorial context (compare Harkins and Edwards, cited above, §§ 124-131). Furthermore, nothing in the preceding paragraphs undermines the now well-established position that the extradition of a person by a Contracting State will raise problems underArticle 3 of the Convention where there are serious grounds to believe that he would run a real risk of being subjected to treatment contrary to Article 3 in the requesting State (see Soering, cited above, § 88; see also López Elorza, cited above, § 102).”
“I take into account his evidence that currently there is underoccupancy of the prison estate which will affect the numbers of inmates in cells…”
“Not only have I evidence from the Chief of Staff of the TDCJ about the amount of personal space but also that the occupancy of the prison estate is reduced which I consider significant, as submitted by Mr Evans, when looking at real risk…”
“In 2020, the TDCJ has closed three correctional facilities and idled four others. This is a result of declining inmate populations. Since 2011, a total of 15 facilities have been closed or idled.”