Government entities across the country are quarreling about how to spend COVID-19 relief money — called the American Rescue Plan (ARPA) — and some, including Alabama, plan to spend at least a portion of the money improving correctional facilities or building new ones.
Last fall, Alabama Gov. Kay Ivey signed into law a prison reform bill that includes $1.3 billion to build two new mega prisons and to buy property for a third. The bill has been criticized because it includes $400 million of the $2.1 billion in ARPA money from the federal government — nearly 20% of the state’s allotment.
At the time, Ivey called the measure “a pivotal moment for the trajectory of our state criminal justice system.”
Prison problems were “decades in the making,” she said, and “achieving an Alabama solution to our problems rather than a federal court mandate was paramount.”
Ivey refers to a suit filed in December 2020 by the U.S. Department of Justice, saying Alabama’s prisons for men fail to protect inmates from each other and from staff. That suit followed a 2019 Justice Department report, describing a culture of violence across the state prisons for men with frequent rapes, beatings and fatal stabbings at the hands of fellow prisoners and a management system that undercounts homicides and fails to protect prisoners even when warned. The lawsuit, filed in Birmingham, alleges that the conditions at Alabama’s prisons for men violate the Constitution because Alabama fails to provide adequate protection from prisoner-on-prisoner violence and prisoner-on-prisoner sexual abuse, fails to provide safe and sanitary conditions, and subjects prisoners to excessive force at the hands of prison staff.
The plan calls for closing some of the state’s 14 prisons, building three new ones and renovating others. The first phase would include a 4,000-bed prison in Elmore County with facilities for medical and mental health care, education and addiction treatment programs, and another new prison in Escambia County with 4,000 beds. The second phase would include renovating three existing prisons and building a new 1,000-bed women’s facility in Elmore County to replace Julia Tutwiler prison. The first phase would cost about $1.3 billion funded by a $785 million bond issue, $145 million from the state general fund and $400 million from ARPA. Officials say construction would start on the two new prisons early next year and last two to three years.
This is the state’s second attempt to improve the prison system and avoid more trouble with the federal government.
The first attempt put much of the project in private hands, but underwriter Barclays pulled out, after criticism that it was breaking its own pledge to steer clear of for-profit prisons. Barclays confirmed that it would no longer be involved with CoreCivic’s construction of two prisons in Alabama that would be owned by the company but rented and operated by the Alabama Department of Corrections.
“We have advised our client that we are no longer participating in the transaction intended to provide financing for correctional facilities in the State of Alabama,” Barclays wrote in a statement to The Associated Press. “While our objective was to enable the State to improve its facilities, we recognize that this is a complex and important issue. In light of the feedback that we have heard, we will continue to review our policies.”
That sent state officials back to the drawing board, creating the newer phased plan with multi-source funding.
Critics of the latest prison plan, while supporting safer prisons and more humane conditions, say the bill does not provide funding to solve many of the problems outlined in the federal lawsuit.
Carla Crowder, executive director of Appleseed Center for Law and Justice, told the Alabama House Ways and Means General Fund Committee last September that “Appleseed supports safer prisons. We support leaky roofs being fixed. Working plumbing and sewers. Space for mental health care, drug treatment and educational programs. Safe places for the 25,000 Alabamians in state custody to live without fear for their lives. We are not against all new construction and I want to be clear about that.”
In her remarks, Crowder also says, “Appleseed’s concern with this bill is not about fighting new prison construction. It’s because this bill promises an Elmore facility with enhanced medical and mental health care, education and rehabilitation services, humane treatment for elderly people. But it provides no funding for these things.”
U.S. Rep. Terri Sewell, who represents the state’s 7th District, also released a statement, saying, “I am deeply disturbed to learn that the State of Alabama is considering a plan to use $400 million of COVID-19 aid from the American Rescue Plan to build prisons,” adding, “to be clear, the current state of the Alabama prison system is abhorrent, but the use of COVID-19 relief funds to pay for decades of our state’s neglect is simply unacceptable.
“COVID-19 relief money should be used for COVID-19 relief. Period.”
U.S. House Judiciary Committee Chairman Jerry Nadler even sent a letter to U.S. Treasury Secretary Janet Yellen, trying to prevent the state from “misusing” the COVID-19 relief funds for prison construction.
But so far, there have been no legal attempts to stop the prison construction or hold up the relief funds, and according to the Associated Press, Alabama Republicans in the legislature argued that using COVID-19 relief money addresses a public safety need and is allowed under a provision to replace lost revenue and support state services.
A memo from the Legislative Services Agency distributed to members of the legislature on federal guidelines for using the lost revenue dollars caused by COVID-19 says the state can show lost revenue of $537 million for the period ending Dec. 31, 2020, based on a formula established by the U.S. Treasury. The $400 million comes from that amount.
The memo cites Treasury Department guidelines that say the money can be used for “pay-go spending for building new infrastructure, including … the provision of police, fire, and other public safety services.”
Alabama is not alone in fussing over how the relief money should be spent.
The National Conference of State Legislatures said disagreements over who gets to hold the ARPA purse strings have also unfolded in several other states.
“In the end, authority is largely determined by the way states interpret their individual laws,” NCSL policy associate Emily Maher wrote last year.
That said, the Government Finance Officers Association posted the following on its website:
· ARPA funds are non-recurring so their use should be applied primarily to non-recurring expenditures.
· Care should be taken to avoid creating new programs or add-ons to existing programs that require an ongoing financial commitment.
· Use of ARPA funds to cover operating deficits caused by COVID-19 should be considered temporary and additional budget restraint may be necessary to achieve/maintain structural balance in future budgets.
· Investment in critical infrastructure is particularly well-suited use of ARPA funds because it is a non-recurring expenditure that can be targeted to strategically important long-term assets that provide benefits over many years. However, care should be taken to assess any on-going operating costs that may be associated with the project.
“The bottom line is, you’ve got to have incentives for prisoners (to) have good behavior,” Ivey said. “We need more prison criminal justice reform measures, but we’ve got to build a building so we can put the prisoners in a safe place and have space to teach them and deal with mental health and medical issues and teach them a skill,” Ivey said. “We will be working on more criminal justice reform. It is going to take two and a half to three years to build, so we’ve got time to put more reforms in place.”
Bill Gerdes is a Hoover-based freelance contributor to Business Alabama.
This story originally appeared in the January 2022 issue of Business Alabama magazine.