Alabama using COVID funds to build new prisons — is that Biden’s vision?

Against the trends on both sides of the aisle, Alabama Gov. Kay Ivey recently signed legislation that directs COVID-19 stimulus funds to the building of new state prisons. That’s an unmistakable embrace of mass incarceration, the phenomenon that has ruined the lives and the communities of millions. Funneling money meant for economic recovery into new prisons flies in the face of the nationwide, bipartisan effort to rewire the criminal justice system and bring mass incarceration to an end. The Biden administration must ensure that other states don’t follow Alabama’s lead.

Alabama plans to put $400 million — nearly 20 percent of its federal COVID funding — towards the construction of two men’s mega prisons, with about 4,000 beds each. The federal government should have stepped in to stop Alabama from allocating stimulus funds for prison building. Now it must stop other states from doing the same. 

Alabama is making a disastrous mistake. Prisons as well as jails are some of the least safe places to be in this pandemic. As of Oct. 11, more than 2,600 people incarcerated in prison and more than 200 correctional staff have died nationwide from COVID-19. Alabama has the highest state prison death rate due to COVID-19 in the country, according to UCLA Law Covid-19 Behind Bars Project. The Prison Policy Institute recently gave Alabama a failing grade for its response to COVID-19 in prisons — the only state where they could not find evidence of the corrections department providing masks to those behind bars. As late as this August, Alabama corrections officials were not required to wear masks.

This is also not the first time Alabama has injected stimulus funds into mass incarceration. Following the financial crisis of 2009, Alabama supplanted close to 30 percent of its corrections budget with federal dollars from the 2010 American Recovery and Reinvestment Act, which provided states with billions of dollars in emergency stimulus funds. 

Although newer federal grant programs such as the Second Chance Act have helped those released from prison and jail reintegrate more successfully into their communities, federal funds have played an outsized role since the 1960s in the ever-growing size and scope of the correctional apparatus that exists today. This funding mechanism has fueled local criminal justice policy toward the goal of more enforcement and has resulted in more arrests, more community sanctions such as probation and parole, higher incarceration rates, and an overall larger carceral footprint in America.

Thanks to laws like the Law Enforcement Assistance Act of 1965, the Omnibus Crime Control and Safe Street Act of 1968, the Anti-Drug Abuse Act of 1986, and the 1994 “Crime Bill,” the federal government has invested billions of dollars to support and grow a system of mass incarceration where dozens of states are now poorly managing prison networks that are overcrowded, unhygienic, and bursting at the seams.

But the solution to inhumane conditions shouldn’t be to build new prisons using federal COVID funding.

It’s true that Alabama’s prisons are atrocious, and in dire need of attention. Most of the state’s correctional facilities don’t have air conditioning, and a 2019 Department of Justice report documented showers covered in mold and without hot water. Last year the DOJ sued the Alabama Department of Corrections for failure to protect prisoners from violence and sexual abuse, failure to protect them from excessive force by staff, and failure to provide safe conditions of confinement. And in a July 2020 report, the federal government found violations of excessive force rules in 12 of the 13 Alabama prisons reviewed.

Using federal dollars earmarked for COVID relief funds to finance part of a prison construction plan should have been unconscionable to Alabama lawmakers. The state should instead invest resources in diverting people away from the criminal legal system and supporting drug treatment, mental health programming, and re-entry services.

The Biden administration has options for making sure that states don’t use COVID-19 relief funds to build more prisons. House Judiciary Committee Chairman Rep. Jerry Nadler recently called on Treasury Secretary Janet Yellen to “take all appropriate steps” to prevent states from misusing COVID funding for prisons. The Treasury Department oversees the creation of guidelines for how states use these funds, and it should immediately order specific rules prohibiting states from using these dollars to build prisons. Additionally, the White House can condemn states for spending this money to subsidize mass incarceration.

Congress approved billions of dollars in relief money to support communities across the country and help them thrive — not to lock more people up. The Biden administration must uphold its commitment to reducing mass incarceration and prevent other states from spending COVID money on prisons.

Lauren-Brooke Eisen is director of the Justice Program at the Brennan Center for Justice at NYU Law and author of Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration. Follow her on Twitter @lbeisen.