Alabama Wants To Use $400 Million In Covid Funds To Build New Prisons

Over 60 Alabama inmates filed a lawsuit to block the project citing Treasury Department guidelines on how relief funds may be used.

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The state of Alabama is trying to use Covid relief funds to construct new prisons, but a new lawsuit from incarcerated people in Alabama might upend its plans.

In October, Gov. Kay Ivey signed into law a plan to fund the construction of three new prisons in the state. The overall cost of the project is estimated at nearly $1.3 billion with $400 million coming from Covid relief funds via the American Rescue Plan Act. The state plans to construct two new 4,000-bed prisons for men and a 1,000-bed prison for women.

In 2020, the DOJ sued the state, alleging the sanitary conditions are so poor and inmates are so inadequately protected from violence from both other inmates and guards that the entire prison system violates the Constitution. The Ivey administration, in part, alleges the construction of new prisons is out of necessity to properly respond to the Department of Justice’s lawsuit against the state over conditions in its prison, as it will allegedly help alleviate overcrowding, though these claims have been met with heavy skepticism as the prison plans predate the DOJ lawsuit.

Veronica R. Johnson, the Executive Director of the Alabama Justice Initiative, is one of the many Alabamans who don’t believe them.

“Who’s to say that building new prisons is going to alleviate overcrowding? We have a broken parole system that’s in deep need of repair. We have so much stuff that needs to be done but the only solution they’re coming up with is building new prisons and that’s not going to solve anything. All it’s going to do is continue to over-incarcerate black males,” Johnson said.

Only around 27% of Alabama’s population is Black, according to the Census Bureau. Yet 13,539 out of the 25,544 incarcerated people in Alabama state prisons are Black, comprising nearly 53% of the prison population in the state. Alabama admitted over 14,000 people to prison in 2019, the most recent year comprehensive data is available, according the Bureau of Justice Statistics. There has been a steady rise in annual admissions since the 1980s.

In addition to the Covid funds, an additional $135 million will be allocated by the state. Alabama’s Finance Department attempted to raise the remaining $725 million though the sale of bonds but ended up closing $216 million short due to pressure from activists who successfully dissuaded some investors from participating. Alabama officials will now need to find funds elsewhere to address that shortfall. The bonds that did sell mature in 2052, which shifts a financial burden onto future generations of Alabamans.

“Even though most constituents didn’t want these prisons, they’ll have a long-term effect because the bonds […] won’t mature until 2052. So, literally my grandchildren will still be responsible for these prisons. I’ll probably be long gone by then,” Johnson said.

The use of Covid funds for the construction of new prisons has raised both legal and ethical questions. The purpose of the American Rescue Plan Act was to help states recover lost revenue caused by the pandemic and to assist in community enrichment and investments in health and human services projects. Despite that general guidance, Gov. Ivey and her administration plans to use roughly 20% of Alabama’s total Covid relief funds on the prison project.

The “construction of new correctional facilities” are deemed “generally ineligible” per Treasury guidelines on acceptable use of Covid relief funds for state and localities which were released in January 2022. But the Treasury also said it will “generally not take action to enforce provisions contained in the final rule.” Because Alabama enacted the plan via legislation signed in October 2021, the Treasury doesn’t appear poised to intervene.

But two new lawsuits filed last week, both from incarcerated people in Alabama, are trying to force the Treasury’s hand. In one, over 60 inmates allege the Treasury is violating the American Rescue Plan Act by not enforcing its own guidelines on proper use of funds. The complaint states:

“The Treasury stated that, in accordance with its understanding of ARP guidelines, prison construction was not a proper use of the funds. However, the Treasury inexplicably seemed to ignore its own rules for states that had already moved forward on projects that did not meet federal guidelines. In essence, the Treasury rewarded states that jumped the gun by failing to wait for the final rules it would issue about what was a proper use of funds. In Alabama’s case, the state explicitly knew that the Treasury was set to weigh in on proper use of the funds, as they submitted a letter requesting clarification about whether prisons could be financed with ARP funding. Rather than waiting for a response, Alabama moved forward with its prison plan, circumventing the authority of the Treasury to determine the proper use of congressionally appropriated funds.”

Lawyers for the plaintiffs stressed the need for better medical care in Alabama’s prisons, especially when dealing with Covid and suggested it would be a much better use of funds than constructing new ones. Prisons in the United States have been hotbeds for Covid outbreaks during the pandemic. The Covid Prison Project has identified over 600,000 cases of Covid among incarcerated people in prisons and over 200,000 cases for prison staff. As a result, at least 2,899 incarcerated people and 278 staff have died from Covid.

In the other case, 15 incarcerated people in Alabama allege the plan violates the National Environmental Policy Act because Alabama officials didn’t sufficiently examine the environmental impact and consequences of new construction before green-lighting the project, as is required by law.

These lawsuits underscore a lack of response from the Federal Government. In addition to Treasury’s inaction, around two dozen organizations sent a letter to the House Financial Services Committee and its Chairwoman Rep. Maxine Waters late last year demanding the committee investigate Alabama’s plan to misuse funds with no substantive action in response. The White House Press Secretary at the time, Jen Psaki, also told reporters when asked about Alabama’s prison plan, “I would be surprised if that was the intention of the funding.”

Neither the Department of the Treasury or the Alabama Attorney General’s office responded to requests for comment.

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A special note of thanks to Chris Geidner, who writes Law Dork, with Chris Geidner, for helping me obtain the filings. You can subscribe to his substack here:

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