Arkansas to Add More Prison Beds Using Budget Surplus from Federal COVID Funds
The State is Already the Nation’s Fifth-Most Incarcerated and Its Highest User of Solitary Confinement
After years of unsuccessful attempts to secure funding, the Arkansas Department of Corrections (ADC) recently obtained the go-ahead to add more beds to the state’s prison system. In March, state lawmakers passed legislation dedicating $75 million to add 498 high-security beds to the North Central Unit, a men’s prison in Calico Rock.
Advocates like those at decARcerate, an organization working to end mass incarceration in Arkansas, oppose adding more prison beds in the fifth-most incarcerated state, where 1 in 100 Arkansans is locked up. They also fear that the additional single cells will lead to more solitary confinement in a state that already uses solitary at the highest rate in the country.
The expansion has been championed by Republican Gov. Asa Hutchinson and the Board of Corrections, a seven-member group appointed by the governor that oversees the ADC. They say the added space is needed to ease backlogs and delays getting sentenced people out of local jails and into state prisons, an issue that has long contributed to overcrowded Arkansas jails. Officials also argue that Arkansas’ growing population will inherently lead to ever-increasing numbers of people behind bars.
“We’re growing as a state in population, and obviously at some point you have to continue the increase of prison space,” said Hutchinson in a press conference in February.
But DecARcerate pushed back on the idea that Arkansas needs more and more prison and jail beds over time, noting in a press release that “Arkansans are not more criminal than 46 other states.” Instead, it argues: “When we no longer hold those too poor to buy their freedom, address the failure to appear in a different manner, and provide robust pretrial services we will see empty jail beds.”
Funding for the prison expansion passed easily in the state legislature. In addition to concerns about overincarceration, opponents pointed out that the allocation does not include the future costs of keeping people incarcerated in these cells.
ADC is basing its plans for expanding prisons on projections that its prison population will grow dramatically over the next decade, despite far slower growth in the recent past. Source: ADC briefing deck.
Arkansas Has Been Trying to Expand the Prison for Years, Citing Jail Backlogs
The Board of Corrections has been trying to expand the North Central Unit for the past decade. For the 2017-19 biennium, it submitted a similar budget request to add 576 single- and double-celled prison beds to the prison, 30 of which were specified to be solitary confinement. (That total request amount was much lower, at $39 million.) The 2017-19 request noted that the expansion project had also been requested earlier, in 2013-15.
In local news stories covering the the 2017-19 expansion request, officials claimed the new solitary cells were needed because of increased violence in state prisons, particularly during the summer. “It does happen that more disciplinaries are written in the summertime, and that there are more fights in the summertime and that you get inmates refusing to go to work in the summertime, that’s not unusual,” then-prisons director Wendy Kelley told the Arkansas Democrat Gazette in 2017. (Unlike in many states, air conditioning is nearly universal in Arkansas prisons; however, incarcerated people are still subjected to extreme heat, particularly when they are forced to work outside in the fields.)
And similarly to today, Board officials then said the new prison beds also would be necessary to alleviate a backlog in county jails throughout the state.
On paper, people sentenced to a year or more of incarceration are supposed to serve that time in a state prison. But Arkansas prisons are at capacity. Instead of making any meaningful effort to reduce the number of people sentenced to prison, or parole more of the existing prison population, state officials have responded by leaving many people to serve their prison sentences in county jails, thereby transferring the overcrowding problem to jails. In March, there were 1,528 people in jails throughout Arkansas who should have been serving their sentences in prison, according to a chart released by the ADC.
This problem is not new. A 2019 KY3 article found that in each of the years from 2009 to 2019, there was an annual average of 500 to 2,400 people who should have been in Arkansas prisons, but who were still incarcerated in local jails.
This situation is detrimental for incarcerated people. Jails typically have fewer resources than prisons, including programming, physical and mental health care, and educational opportunities, and they are not intended for multi-year stays. While the state does pay a per diem for each state-sentenced person left in jail, local sheriffs complain that the backlog leaves their facilities overcrowded and exacerbates conflict.
These jail-to-prison backlogs are contributing to the huge and growing problem of jail overcrowding in Arkansas and other states around the country. Even as the overall U.S. prison population has slowly decreased in recent years (as have local jail populations in major cities), jail populations are on the rise in rural areas and small-to-medium sized cities. In many cases, jails adapt by converting their few recreational spaces into bed space, setting up mattresses for people to sleep on the floor, limiting freedom of movement and access to programs and services, and locking people in cells for much of the day.
Some of this jail growth is driven by local policing and bail policies that keep poor people behind bars. But the problem is severely exacerbated by the fact that—as in Arkansas—many jails are filled with people under the jurisdiction of the state or other entities. Around the country in 2013, roughly 80 percent of county and city jails held people (in exchange for a per diem) for states, other counties, or federal agencies like the U.S. Marshals and ICE. In fact, that year, 46 percent of people in rural southern jails were being held for other jurisdictions.
Jail overcrowding is made even worse by court delays that keep people in jail for months or even years awaiting trial—a situation pre-dating, but worsened by the pandemic.
In some cases, counties have responded by building larger jails in order to hold all the state detainees—and to capture more of the per diems, turning incarceration into a business. Since 2015, Arkansas jails have added 2,154 beds.
Now, ADC says these longstanding jail backlogs justify the prison expansion.
But advocates say the solution to overcrowding is to decrease the overall incarcerated population, not to add prison beds or push the problem upstream to local jails.
Throughout the country, states and counties have failed to respond to the dangers of the pandemic by reducing their prison and jail populations. From January 2020 to October 2021, Arkansas’ total prison population dropped just 6.5 percent—not nearly enough to stop the spread of COVID-19 or even begin to address the long-standing overcrowding problems.
“Policy changes have not been attempted and could easily remedy any overcrowding concerns,” noted decARcerate in a press release. The group outlined a variety of alternative uses for the funds, including funding community organizations that provide social services, creating county-based pretrial services divisions to help arrested people access services and make court dates, and providing community-based mental health and addiction services. DecARcerate argued that reforms like these “would leave these beds sitting empty in the near future.”
Are Prisons and Jails “COVID Relief?”
Arkansas plans to fund the prison expansion with its state budget surplus, which Gov. Hutchinson says was achieved last year through “belt-tightening.” The state ended its 2021 fiscal year with a record-setting surplus of $946 million, more than double its previous record from FY2007.
But Hutchinson’s “belt-tightening” explanation overlooks the $2.85 billion in federal COVID relief funds Arkansas received in 2020 and 2021, via the Coronavirus Aid, Relief and Economic Security Act and the American Rescue Plan Act (ARPA). The impact of this influx is apparent throughout the country: Every single state completed 2021 with a budget surplus, many of them for the first time in decades. State coffers, including Arkansas’, were further inflated by states’ postponement of 2020 tax payment deadlines due to COVID, meaning that many 2020 tax payments counted toward 2021 revenue.
(In addition to the prison expansion, Arkansas is using its surplus to give $5,000 bonuses to all police officers, and passed a major tax cut for top earners—a cut that is expected to reduce future state revenue by a total of $1.8 billion through 2026. Hutchinson has said it is his top priority to to call a special session this fall to further reduce taxes for the highest income bracket.)
Arkansas politicians have said repeatedly that the funds for the prison expansion will come from this 2021 surplus. It appears very likely that federal COVID aid was one component in creating the record-setting surplus, along with the delayed 2020 tax payments and the unexpected economic recovery in 2021.
In fact, whether or not COVID relief funds can be used for prison and jail expansions is a key question in 2022. In January, the federal Department of the Treasury released its “final rule” on the use of Coronavirus State and Local Fiscal Recovery Funds (SLFRF), a subset of the ARPA grants. The rule explicitly bans states from using the funds for “construction of new correctional facilities as a response to an increase in rate of crime.”
On paper, this should stop states from blatantly using SLFRF to build prisons or jails. But there are many loopholes in the rule (including a threshold amount, below which no reporting is required). And it’s much harder to stop a state from using its general surplus for prison building—even if that surplus was created in part with COVID relief funds.
And the Treasury rule doesn’t even seem to be stopping blatant application of COVID relief funds to prison building. Alabama passed a $1.3 billion plan in 2021 to construct new prisons, which explicitly includes $400 million in ARPA funding (an amount five times higher than the state allocated for hospitals). As the Appeal reported, this allocation of funds was a runaround by the state; earlier last year, the state’s prison-building plan appeared doomed after a coalition called Communities Not Prisons convinced banks not to fund the construction.
But now, Alabama is planning to ignore the 2022 Treasury rule and move ahead with using ARPA funds for prison construction. A representative from the state told the Associated Press that they do not believe the no-new-prisons rule applies to the specific portion of APRA funds the state plans to use.
And there are plenty of other ways for states to use COVID relief funds to fuel mass incarceration. President Joe Biden encouraged cities and states to use ARPA funds to hire police officers and purchase new police equipment. And at least 17 states plan to use the funds to build new jails.
Some states, such as Kentucky, are also using ARPA funds to increase the per diems they pay to local jails for holding state detainees. In March, Arkansas increased this jail per diem from $32 to $40.
Excessive Use of Solitary Confinement in Arkansas
In Arkansas, it seems particularly likely that prison expansion will mean an expansion in solitary confinement. One out of every five people incarcerated in the state’s prisons between January and March 2020 spent time in solitary, according to a 2021 report by DecARcerate and Disability Rights Arkansas, which combined quarterly reports from the ADC with data collected in national surveys by the Correctional Leaders Association and the Liman Center at Yale Law School (CLA-Liman).
Many of these individuals are in solitary for extremely long periods of time. CLA-Liman’s October 2019 point-in-time count revealed that 11 percent of people in Arkansas prisons had spent more than 14 days in solitary—a length of time at which the United Nations considers solitary to be torture. Arkansas was the only state in the report to crack double digits; the national median across states participating in the survey was 3.8 percent.
Even more shocking, decARcerate found that 38.4 percent of people sent to solitary in Arkansas stayed there for more than one year.
People held in isolation experience mental and physical deterioration. In fact, ADC data shows that one-third of suicide attempts and half of completed suicides occured in a type of solitary confinement housing called the Restrictive Housing Unit. The damage caused is particularly acute for people with serious mental illnesses (SMI). DecARcerate notes that while SMI prevalence is estimated at 10.6 percent of the U.S. population and 15 to 24 percent of the U.S. incarcerated population, ADC reports that just 2 percent of its incarcerated population has a diagnosed SMI, suggesting that its system is seriously underdiagnosing mental health issues.
The state of Arkansas has made some gestures toward reducing its use of solitary in recent years. In March 2021, the state legislature passed legislation banning solitary for pregnant youths and heavily restricting its use on pregnant adults.
And one of the stated goals in the ADC’s 2021-2022 strategic plan is to reduce the number of people in restrictive housing and isolation. However, the five strategies the department plans to use to reduce solitary would create little actual reduction: Three of the strategies aim to “continue” current policies, one aims to “use disincentives” in solitary units, and one aims not to release people directly from solitary to the outside world.
DecARcerate found that more than 90 percent of stints in solitary confinement in Arkansas were for nonviolent infractions. In fact, correctional officers at Cummins Unit, another Arkansas prison, sent people to solitary 570 times for refusing to work their prison jobs from January 2019 to May 2020, according to records obtained by The Nation. This is despite the fact that in 2017, the then-prisons director told the Arkansas Democrat Gazette that prisons would no longer send people to solitary for refusing to work, as part of an effort to keep segregation cells available for more serious offenses.
Zachary Crow, Director at decARcerate, noted that a comment made by Arkansas Board of Corrections Chairman Benny Magness at a board meeting in February seems to suggest that the Board expects to have an increased need for high-security cells. Asked why the 498 new beds in the North Central Unit expansion will be so expensive to build, Magness explained: “Because our population of inmates are getting a little bit harder core… we’re trying to build more two-man cells or single-man cells, instead of the barracks style.”
Arkansas Solitary Units Are Filled with Human Rights Abuses
Not only does Arkansas use solitary at a high rate, but the 2021 decARcerate report paints a dire picture of life in these solitary units, where even prior to COVID-related lockdowns, individuals were allowed out of their cells just two hours each weekday and not at all on weekends.
ADC enforces bizarre, torturous rules in solitary, according to the report; For example, people are forbidden from having a watch or clock in their windowless cells for their first 30 days in segregation. They are forbidden from having any personal items, including photos of loved ones, and are usually only allowed one religious book and one self-help book. Only one visit is permitted each month. Those placed in punitive segregation have their mattresses removed from 7 am to 7 pm every day.
In a response to the decARcerate report, the ADC claimed that its solitary confinement is “thoughtfully and carefully implemented.”
“I just watched people go downhill,” a woman named Vera, who spent two years in solitary in Arkansas while serving a 10-year sentence, told the authors of the report. “In ‘seg,’ some people enter a fantasy world because there’s nothing else for them to do. When they get out of prison, they don’t have a rock to ground themselves, they are just floating around in the free world… They don’t feel human anymore.”
“As a human, I feel we are designed to socialize, be around somebody you can speak to, communicate with, not be alone, especially for a 17-year-old boy,” another interviewee, Dustin, told the authors. “The hole just makes you different. After 90 days, I was talking to myself when I got out. I’ve just never seen anything good come out of it.”
Additional reporting by Sara Rain Tree.
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Thank you for bringing this to the table. I’ve lived in Arkansas my entire life so I had no idea how broken our “correctional” system really is until recently. If Arkansans knew the horrible truth of how people are treated in the system, they not only would be disgusted, but they would also be furious to know how their tax dollars are being used to do so. Furthermore, if Asa Hutchinson wouldn’t have ended the rental assistance, think of all of the crime that could be prevented; resulting in less beds being needed. As they say, desperate times call for desperate measures. He knows this to be true so of course he has to prepare the space for the ones that he’s pulling the rug out from under. It’s clear that he’s no longer working for the people that elected him.