It’s early on a weekday morning and Kyle Walker is thinking about what she has to do to keep her incarcerated boyfriend alive. At over six feet tall, the energetic 41-year-old stands out from the relatively somber rush hour crowd making their way to the office buildings of downtown Austin, Texas. She’s on her way to work as a legal assistant, the job that supports her two kids and her boyfriend, who despite being in the custody of the Texas Department of Criminal Justice still needs a constant stream of help just to have the most basic necessities behind bars.
“I can’t send him any money, because they’re just going to take it from him,” Walker explains between drags from an e-cigarette.
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Walker’s boyfriend* has been labeled as a sex offender since he was 17, after he slept with his then-girlfriend, who was 13 at the time. Upon finishing a seven-year term in the Barry B. Telford Unit, a prison in New Boston, Texas, he struggled to find a home because of his sex offender status. When police came by her home acting on a tip that there were drugs on location in early 2015, Walker says, they arrested and charged her boyfriend with failing to register his residence, a violation of probation. Now he’s back at the Telford Unit, the same prison in which he spent much of his youth. Despite making parole last summer, he’s been unable to find a legal place to live, a condition of his release. And until Walker and her boyfriend sort that out, he needs to cope with the Texas prison system, where inmates supplement their meager provisions with food and supplies bought by their families on the outside.
More than anything else, though, it’s health care that comes at a steep price.
After a 2011 Texas law raised the copay for medical care from $3 for each visit to a $100 annual flat fee, families of the incarcerated have scrambled to find a way to pay the difference. If a prisoner is considered indigent, meaning they don’t have any money in their “trust fund”—the account that’s used to pay for items like food and toilet paper—then they don’t have to pay the $100 to receive health care. But once any money is deposited into the trust fund, half of it is docked to go towards the outstanding copay until the full amount is paid off. For Walker, that means any money she places into her boyfriend’s account would go to pay off his debt for the health care he’s already received, which includes care for managing his schizophrenia, desperately needed dental work, and further treatment for mental health issues.
“I can only afford to spend $30 to $40 every couple of weeks to support him, and even to just put the money in his trust fund, there’s a fee for that transaction,” Walker explains. “So for them to deduct half of the money for services he’s already received—it defeats the purpose of me even sending him money.”
Families and significant others like Walker have found themselves shouldering a growing financial burden as prison systems across America look to raise revenue by charging inmates for necessities like clothing, food, toilet paper, and even the prison cell they’re being kept in. Right now, at least 35 states charge their prisoners for health care in some way or other, with some county jails going so far as to pursue civil actions against prisoners after they’re released in hopes of recouping health care costs. But Texas has the highest state prison population in the country, with an average of over 150,000 people sitting in its cells at any one time. And like many things in Texas, the state’s prison medical copay is easily the largest in America.
Unlike other states where prisoners are compensated—however meagerly—for their labor, the overwhelming majority of prisoners in Texas are not paid for any of their work, much of which involves serious agricultural and industrial activity. Most inmates manage to avoid the copay, with just 15,000 people paying it in 2014. But the fee is a glaring example of how the criminal justice system can further impoverish already marginalized communities, one made especially troublesome by how little it seems to be helping to alleviate the state’s budget woes. As a new, decidedly pro-prison administration takes power in Washington, DC, the Texas prison medical copay regime offers a case study in how not to do criminal justice reform.
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Texas has long been at the center of the story of medical care behind bars in America. The right to healthcare for prisoners was first established due to negligence in the state: Ruiz v. Estelle, a class-action lawsuit filed by prisoners alleging widespread mistreatment in 1972, placed the Texas Department of Criminal Justice under federal court supervision for over two decades. “The judge concluded that the best practice would be to have one doctor for every 500 inmates,” says Brian McGiverin, a civil rights attorney who has worked on dozens of cases alleging mistreatment of prisoners by the TDCJ. Currently, he estimated, prisons have one doctor for every 2,200 inmates.
Still, that in itself doesn’t open up the state to constitutional violations. A separate case brought a Texas inmate in 1974, Estelle v. Gamble, went all the way to the US Supreme Court, where the justices found that prisoners have the right to medical care, but a state has to show deliberate indifference to a prisoner’s medical condition for it to be considered a form of cruel and unusual punishment. “So long as nobody is denied service, even if service means they’re facing a huge bill, which will in turn deprive them of other amenities, it just doesn’t trip the wire for constitutional protections,” McGiverin tells me. A 2014 lawsuit against the medical copay failed along those very grounds.
The copay is the brainchild of former state representative Jerry Madden, who in 2005 was put in charge of the state legislature’s corrections committee despite, by his own admission, having no previous exposure to the criminal justice system. The Republican was given one directive by the speaker of the legislature: Stop opening new prisons. By 2005, the state had 169,000 people under its jurisdiction, and the exploding prison population was simply costing too much money. Madden’s reform efforts mirrored other bipartisan initiatives to reduce the cost of prisons across America: more diversion programs, more granting parole to older offenders, and more encouraging prosecutors to stop overcharging for nonviolent crimes. He helped stop the precipitous rise in the prison population and was even praised by the American Civil Liberties Union. But wedged inside his reform plans was HB26, which pushed copays up to $100 a year.
Madden retired from the state assembly in 2013 and now works for the conservative prison reform think tank Right on Crime. When we meet for coffee in Richardson, an affluent suburb of Dallas, it’s a day before he was heading to Washington, DC, to meet with the American Legislative Exchange Council, a prominent (and controversial) conservative policy clearinghouse. Madden plans to advise ALEC on reform initiatives they might pursue under the Trump administration. The genteel Texan is open about his days as an unlikely reformer who in 2007 got the state to use almost half the $523 million that had been added to the budget for new prisons for diversion and drug treatment programs instead.
“Instead of building new prisons, we showed that we would spend less, we wouldn’t have the growth in prisoners, and we would put in drug treatment programs, alcohol treatment programs, and expand the specialty courts,” he tells me, pausing for a moment. “And we’d figure out a little way to generate some cash. So that’s where we got into the bit about the medical costs.”
Madden had a background in insurance. And his reasoning, when looking at where to generate some revenue for the system, was that in private life, everyone has to pay a deductible. Why shouldn’t that apply to prisoners?
“What does a prisoner get? He gets free room, free board, free medical expenses,” he explains. “So I said, ‘How many of these guys have enough that they could afford a $100 deductible?’ And we figured out it was about half of the prisoners had enough money in their [trust fund] that they could cover that deductible.”
“We were not going to keep anyone from getting medical treatment,” he adds. “If you were indigent, you would still be able to see a doctor. But I never followed up on how much money TDCJ ended up collecting from prisoners. Anyway, it’s just $100. That’s a couple less candy bars they could buy from the commissary. That’s OK.”
But the fact is that in Texas prisons, commissary—and the funds sent by families to ensure access to it—plays a key role in ensuring the safety and health of prisoners. Jennifer Erschabek has spent years advocating on behalf of the families of inmates as executive director of the Texas Inmate Families Association after her own son was incarcerated. Her son developed serious rashes on his hands and arms after working in a metal shop in incredibly hot conditions. Erschabek was able to buy for her son the anti-fungal medication to keep him from developing a serious medical problem, but others aren’t so lucky as to have someone on the outside looking out for them. Scabies, skin infections, chicken pox, norovirus and other easily treated conditions confront prisoners, who face a constant struggle to maintain their health.
Notwithstanding access to health care, an overwhelming majority of all prisons in Texas lack air conditioning in housing units, which can expose prisoners to temperatures well above 100 degrees for weeks at a time. Purchases made at the commissary help inmates cope with the extreme heat, as well as avoid having to barter favors in the cellblock black market. It also gives prisoners access to things they’re provided with for free in several other states like toothpaste, soap, shampoo, underwear, and coffee.
“A family pays out about $400 a month to support a member inside,” Erschabek tells me in her Austin office. “That’s with visitation, commissary, phone calls, books, leftover bills, attorney fees. You have all those expenses that a family is struggling with and you just put salt into the wound with a copay.”
The activist shares a building with other nonprofits just a few miles from the state capitol building, where she was lobbying the legislature as it began a new session this month (lawmakers only meet once every two years.) “That financial impact has a greater impact on communities of color because they’re already impacted by racism and poverty,” Erschabek notes.
Nationally, families of the incarcerated spend an average of $13,607 on the criminal justice system, specifically attorney and court fees—not counting how much it costs to support someone once they’re in prison. One-third of families who have a member go to jail end up in debt. A 2013 study by the state’s Legislative Budget Board estimated that the $100 medical copay would raise $13.5 million in revenue for the state over the next two years, out of a total medical budget for corrections of $871.8 million. But when Erschabek filed an Open Records Request in 2015 to check on how much the state had actually collected from prisoners through the copay during that period, she found that in 2013, the state collected $2.4 million and in 2014, that figure declined to $1.5 million. Just 10 percent of all prisoners had actually paid the copay, with the rest either being deemed indigent, clearing their trust fund accounts to qualify as indigent, or, most alarming, not seeing a doctor at all.
And even when prisoners see a doctor, either by claiming indigence or paying the copay, there’s still a serious gap between what prisoners receive and the healthcare people get in the outside world. Jorge Renaud spent 27 years in the Texas prison system and is now an organizer at Grassroots Leadership, a national organization that aims to take profit out of the prison industry. For the amount of agricultural and physical labor that prisoners have to do, Renaud says, he witnessed indifference on the part of some authorities to physical pain.
Jorge Renaud in Austin, Texas. Photo by the author
“I didn’t have a really good medical check up the entire time I was there,” Renaud tells me. “The medical care is atrocious, and every individual who has been incarcerated could give you a story about it.”
For the past several years, the state has slashed millions from the budget for medical care, provided for most prisons by the University of Texas Medical Branch (UTMB), which runs a prison hospital in Galveston. As the age of prisoners continues to rise, along with the cost of care, UTMB has relied on telemedicine to make up the difference, where doctors can videoconference with prisoners instead of being on site. Dr. Owen Murray, the vice president of correctional managed care at UTMB, has watched as the population in the prison shifted considerably—there are now 27,000 inmates over the age of 50. With costs running so high, and the governor looking to cut the overall prison budget by as much as $250 million, Murray doesn’t see the money generated by the copay as making much of a difference in the larger picture. People aren’t paying, but the state continues to need to provide tremendous amounts of money for care.
“It’s a small number that pay, but that’s not to say people aren’t getting medical care. We would have concern that this would be some impediment in care, but we haven’t seen the numbers drop off at all,” Murray tells me in his office outside of Galveston. “And again, the copay is only for routine care. If someone has an emergency, has a preexisting condition, then you don’t have to pay the copay. Our metrics would show that care volumes continue to go up.”
The 23-year-old son* of Houston resident Mignon Zezqueaux is one of the few inmates in Texas who have actually paid the copay instead of emptying out their trust fund account or avoiding care altogether. He wears glasses and receives treatment for psychological trauma, according to his mother. “It’s a burden not only for those being held captive, but for those who are supporting them as well,” Zezqueaux tells me. The state can deduct up to 50 percent of money deposited into the trust fund account until the full amount of the copay is paid off. “Say I send him $50 a month, if I want him to actually want him to get that $50, I need to put in $100. And of course there’s always fees attached.”
Not paying the copay is simply not an option for Zezqueaux. When her son was provided boots by the state for his work detail, it was infested with scabies, she says. He could either wear boots that would cause him even more medical distress, or she could pay the copay and eventually get enough into his trust fund account so that he could buy new boots.
Zezqueaux lives on a fixed income and sighed loudly when I told her that people consider $100 to be not that much money. “I don’t know anyone who is wealthy that has someone incarcerated,” she says. “It’s about survival in there and we’re living day-to-day out here. When it’s as simple as getting our son eyeglasses, we can’t just send it to him. We have to pay their fee. And it has to be eliminated because it’s not teaching anyone anything. It’s just another burden that we have because we have a loved one in prison.”
Zezqueaux believes that while lawsuits are useful in the long-term, pressuring the legislature will be what ultimately changes conditions in Texas prisons. “With us being on the outside, we have the obligation to change what’s happening on the inside,” she says.
Civil rights and criminal justice groups are now working to support reform bills in a Texas legislative session that will be dominated by debates over abortion and transgender rights. But there’s no proposed legislation that would end the medical copay for prisoners, which takes money out of the pockets of those who can afford it least. In a charged environment, where the state—like others across America—is looking to make even further budget cuts to an already underfunded system, no legislator has dared propose closing any revenue stream, no matter how paltry.
For her part, Jennifer Erschabek, the family advocate, told me she isn’t holding out much hope for change: “Once the state has its claws in you for money, it’s very hard to get them to let go.”
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*Inmates’ names have been withheld to protect their identity.
