Two of the largest palm oil plantations in Peru are located on the west side of the Ucayali River, which flows from the Andes to the Amazon. From above, the surrounding landscape looks like stirred paint: a swirl of green amid inky lakes and brown rivers. Tibecocha, the larger of the two plantations, appears to have been etched into the jungle with a ruler and a straight razor. Its rectangular grid of roads extends over almost 8 miles and contains a million palm trees. The smaller property, Zanja Seca, is nearly the size of Manhattan.

Each year, these plantations generate about $50 million in revenue for the Ocho Sur group, whose palm oil has ended up in products ranging from Cheetos to Colgate toothpaste. The $160 million that the company's backers, primarily US venture capitalists and private equity funds, have spent on its operations represents the largest foreign investment in agriculture in the history of the Peruvian Amazon.

The palm industry got off the ground here thanks to US development programs designed to give farmers a money-making alternative to growing coca plants, the precursor to cocaine, and the US ambassador to Peru even paid a visit to Ocho Sur's properties last year. Ocho Sur's operations are now so vast, and it is such a dominant force in the region's economy, that locals refer to it simply as la empresa — "the company."

But the creation of the plantations came at a steep price. To make way for those industrial fields of palm trees, some 30,000 acres of rainforest were cut down, a swath of destruction that one Indigenous leader called an act of "eco-genocide." Biologists from Chicago's Field Museum have ranked the rugged mountains that rise west of the plantations "among the most diverse of all conservation areas in Peru." When the museum's team surveyed the region for three weeks in 2000, it tallied 1,600 species of plants, 71 species of mammals, and more than 500 species of birds. At least 28 species were new to science.

Since the 1960s, more than 13% of the original Amazonian rainforest has been cleared. Most of the destruction has been concentrated in Brazil, but Peru is second on the list. If the destruction continues, Thomas Lovejoy, a former biodiversity advisor to the World Bank, has argued that the Amazon could reach a tipping point and become too hot, dry, and fire-prone to remain a rainforest. Without the carbon-absorbing capacity of the Amazon, the world would face increasing temperatures and melting the ice caps, making cities as far away as Mumbai virtually unlivable.

Seeking to be a model of sustainable development, Ocho Sur has signed pacts with local communities to conserve the native ecosystem, and its polished English-language website features a slideshow of anteaters, sloths, and monkeys. The company has replaced its trucks and tractors with mules and water buffalo and has vowed not to expand its operations into standing forest. Over the past two years, Ocho Sur says, it has spent $3 million maintaining roads and building schools and medical clinics.

When the company's CEO, Michael Spoor, who joined Ocho Sur in 2019, talks about the company's accomplishments, he draws a sharp line between the Ocho Sur Group and whoever it was who first staked a claim in the virgin territory. "We came to Peru in 2016 and bought two farms in Ucayali at a public auction," he has said. "All that we have done, we have done without deforesting anything."

Documents I obtained from a criminal investigation into Ocho Sur — along with an exclusive trove of internal company emails, bank records, and spreadsheets covering eight years of plantation operations — tell a more complex story about the role of the company's founders in the original destruction of the rainforest. At its heart is an American businessman named Dennis Melka, who a Peruvian prosecutor has claimed is the ringleader of a "criminal organization" that passed mature plantations from one company his investors had bankrolled, United Oils, onto a second, Ocho Sur. After the transfer, I found, key personnel from United Oils remained in place — including Melka. Most importantly, prosecutors say that United Oils illegally cleared much of the plantation land, and that Ocho Sur, for all of its sustainable initiatives, is in many respects the same entity as its clear-cutting predecessor. Melka has not responded publicly to the prosecutors' allegations and did not respond to requests for comment.

Ocho Sur's links to deforestation have profound implications for businesses, consumers, and the environment — and what exactly counts as "sustainability" in the palm oil industry. The global market for palm oil, valued at more than $70 billion last year, is experiencing steady growth, driven by its use in products as varied as food, beverages, biofuels, and cosmetics. Last year, the European Union passed new regulations on deforestation that promised to be the strictest in the world. Companies like Ocho Sur are now racing to demonstrate that their plantations were not illegally deforested — or risk losing their share of the lucrative market. But it may not be that easy.

"Nearly everything they export has been illegally produced," Julia Urrunaga, who leads research in Peru for a Washington, DC-based environmental organization, argues. "What needs to happen here is they need to be sanctioned, and they need to be ordered to reforest and leave."

In April, Michael Spoor invited me to spend a few days visiting Ocho Sur's plantations and the surrounding communities. The company was losing buyers left and right. That month, PepsiCo, which had used Ocho Sur palm oil in its Cheetos and Doritos, became the latest global brand to be named in the media over the historic deforestation. Spoor was eager to tell his side of the story.

The company's headquarters are on the fifth floor of the Wyndham hotel in the regional capital of Pucallpa, a city of 300,000 on the banks of the Ucayali River. When I met Spoor in the lobby one morning, he was wearing what passes for executive attire in these parts: a loose nylon shirt, khaki pants, and hiking boots. He looked more like a tourist heading off to hike the ruins of Machu Picchu than the head of a palm oil empire.

The son of a Protestant minister in Iowa, Spoor earned a degree in civil engineering before working for Exxon and leading companies that recycled spent oils and other industrial waste. One of his operations, NewStream, which Spoor ran from 2008 to 2014, was accused by the Massachusetts attorney general of illegally dumping wastewater tainted with lead, chromium, and other hazardous chemicals into a municipal treatment facility that flows into the Ten Mile River. In April 2014, Spoor signed a consent decree on behalf of NewStream to settle the case and the company paid a fine; he has denied that NewStream released any hazardous waste. Two months later, he headed to Latin America. His first stop was Mexico, to run another waste recycler. Then, in 2019, he joined Ocho Sur to oversee a different kind of cleanup.

Before accepting the position, Spoor visited the plantations with one of Ocho Sur's shareholders. He marveled at the efficiency of the African oil palm, which can produce five times as much edible oil per acre as corn or soy. Every 10 days, each tree develops a 50-pound cluster of fruits oozing with thick, red oil. They will keep producing for the next 20 years. The catch is that oil palm can be profitably grown only within 10 degrees of the equator, a region that overlaps with the planet's most biodiverse ecosystems.

As environmental activists raised the alarm about the palm oil industry's toll on the tropical forests of Southeast Asia two decades ago, Unilever, the world's largest buyer of palm oil, teamed up with the World Wildlife Fund and other parties to establish the Roundtable on Sustainable Palm Oil. The roundtable launched a program in 2007 that certifies growers whose plantations are not on recently deforested or contested lands. Only a fifth of palm oil sold across the globe was certified by 2022. Spoor's mission was to get Ocho Sur's crop certified as deforestation-free, but exactly what that means depends on when you start the clock.

Spoor and I headed out of Pucallpa in a four-wheel-drive truck driven by Krassimir Doldourov, a chain-smoking Bulgarian who oversees the plantation's road maintenance work. After an hour, Doldourov swung onto a dirt road with tire-swallowing holes. We passed abandoned farms, cattle pastures, and stray dogs, but not much forest. Finally, Doldourov maneuvered the truck down the scoured bank of a large, brown river, a tributary to the Ucayali, and onto the platform of Ocho Sur's pontoon-style ferry, powered by two outboard motors.

On the other side of the river, we passed a series of signs Spoor had installed when he took the job. "We work in harmony with nature," read one. "We protect wildlife," read another. "We conserve forests," read a third.

As Spoor pointed out, most deforestation in the Peruvian Amazon today comes at the hands of small-scale farmers, and he wanted to convince me that industrial agriculture, which had deepened climate impacts elsewhere, could achieve the opposite here. Ocho Sur is the largest formal employer in the Department of Ucayali and accounts for about half of its exports, meaning that it provides economic opportunities to thousands of people who might otherwise be clearing forest for cattle or short-lived crops like banana or cassava. Oil palm, as he rightly noted, can sequester more carbon than such annual crops, though studies have found it absorbs less than half that of a standing forest. "It's a permanent crop that's going to grow for decades and decades and decades," he said.

"What is it that people are going to do here in the jungle?" Doldourov asked. "They are going to grow coca."

In Spoor's view, only sustained investment could lead to the cultivation of valuable crops like oil palm on all the degraded land we had passed. If not, he said, settlers will keep clearing primary forest and abandoning the spent land a few years later. Fighting this migratory agriculture was one of the goals of Peru's National Plan to Promote Oil Palm, enacted in 2000, which helped attract the company's investors to the region over a decade ago. "Those plantations, 20 years from now, will be the greenest areas in the whole zone," Spoor said. "People are going to look back and go, 'Wow, look at those two islands of green!' and, in some weird way, that will have been the result of what we started."

To dig deeper into the origins of Ocho Sur's plantations, I flew north to the jungle city of Iquitos to meet with William Park, a self-described "eco-social entrepreneur" from Bronxville, New York. Over an açai bowl at the Dawn on the Amazon Café, a favorite spot for travelers and expats, Park relayed his life story. He had served in the Marine Corps and earned a biology degree in college, but a childhood meeting with the founder of the organic food company Arrowhead Mills shaped his unconventional path. After a job running sales for a hemp apparel company, he lit out for Peru, where he launched Eco Ola, an export business in Amazonian superfoods, with the goal of helping local communities develop sustainable economies from their native forests. Operating between two worlds — conservation and business — made him particularly suited to recognize what had unfolded here on the Amazon River back in June 2013.

One day, Park was sitting on this same patio when he heard troubling news from a friend who lived upriver in Tamshiyacu, an isolated village on the edge of an uninterrupted swath of rainforest that stretched for hundreds of miles. The region, which is believed to have the world's greatest concentration of uncontacted Indigenous groups, is also home to several threatened species, including the bald-headed uakari monkey. "It's a vitally important area," Park said. Now, according to Park's friend, a massive palm oil plantation was springing up in the area. Workers had been conducting surveys and slashing paths with machetes.

Initially, Park was skeptical. He often heard rumors of new megaprojects, but they usually fell apart before they got off the ground or turned out to be scams. Tamshiyacu seemed too remote to be worth anyone's while, he thought.

He was wrong. Before long, workers showed up there with two dozen bulldozers and excavators. They proceeded east, widening and grading a dirt road for some 6 miles until they reached their destination. "Clearcutting happening now, the neighboring communities are not happy," Park wrote to an environmentalist he knew. "The name of the company and its international affiliations are not known but it is rumored to be a Malaysian company."

His email eventually landed in the inbox of Matt Finer, a scientist then with the Center for International Environmental Law in Washington, DC. Finer hunted for satellite images to confirm the devastation, while other environmentalists followed a paper trail to figure out who was behind the operation. Julia Urrunaga, who works as a researcher with the Environmental Investigation Agency tracking deforestation in the region, discovered a network of companies recently registered in the region. First, she found "Plantaciones de Loreto" based in Iquitos, then "Plantaciones de Ucayali." Ultimately, she unearthed more than two dozen interrelated companies. Like a series of nesting dolls, six of these companies were owned by two shell companies in the British Virgin Islands, which were in turn owned by a Cayman Islands-based company called United Oils Limited. This corporate labyrinth obscured the true shareholders and decision-makers, but one figure stood out in the records: Dennis Melka.

In business records Urrunaga obtained and recently shared with me, Melka is the only one authorized by each of these entities to approve payments for "an unlimited amount."

Melka, Urrunaga learned, was a venture capitalist who had made his name developing palm oil plantations on Borneo, but she couldn't find much detail about his plans for Peru, or even what crops he planned to grow. Images online showed a sharply dressed man in his late 30s with a bald head and blue eyes.

Finer, meanwhile, got his hands on the first clear satellite images showing strips of bare, red earth in the forest as the Tamshiyacu plantation took shape. Finer notified a journalist at the local newspaper, La Región, and a photograph of the naked landscape ended up on the front page. "Where is the environmental prosecutor?" the paper asked.

They didn't yet know that Melka's clearing and planting was already further along in Ucayali.

When I first heard about Melka's role in these events some years ago, I tried to talk to him in person at a conference in San Francisco. He was in his element, pitching investors, and looked relaxed in jeans and a blazer as he handed me his business card in a hotel banquet hall. He would be flying to Peru a few days later. When I started to ask about the deforestation allegations against him, his face grew tense, and he waved me away. "I created thousands of jobs in Peru," he said. "Leave me alone."

From what I learned without his cooperation, Melka grew up in Marin County, California, and his first job out of college was at Credit Suisse in New York. After postings in London and Prague, he found his niche in the free-market mecca of Singapore, where he set up his own venture capital fund in 2006.

In those days, palm oil was booming on Borneo, a 90-minute flight to the east. "When I started meeting the companies and talking to them, I realized this was a phenomenal business," Melka later told a Singaporean publication. "That's something I want to get into."

His biggest problem was that most available land on Borneo and other parts of Indonesia and Malaysia was controlled by Indigenous people or held in state forestry concessions. "Without special connections within the government, you won't be able to secure this land," a former Melka employee told me. Melka soon made those connections through a business partner, Graeme Iain Brown, whose father-in-law, according to an industry report, was a former Indonesian cabinet minister.

In 2009, Melka and his partners founded a company called Asian Plantations that obtained 50,000 acres of rainforest through what the company called "non-competitive" negotiations based on "long standing local relationships." They proceeded to clear-cut their land and plant oil palm, according to satellite analyses conducted by the Environmental Investigation Agency. Six years later, as a member of the Roundtable on Sustainable Palm Oil, they sold that operation to Felda Global Ventures, the third-largest palm oil company in the world, for almost $200 million. (Brown told me the notions that they had deforested any land or benefitted from family connections were "totally false.")

Malaysia and Indonesia dominated global palm oil production at the time, but usable land was predicted to run out by the end of the decade and Melka was already on the hunt for new territory. Company emails show that he reached out to government officials in the newly created country of South Sudan and in Myanmar, which was just opening for business after emerging from a military dictatorship. But Peru topped his list.

Under President Alan García, Peru was welcoming foreign investors with open arms. Not only was García's government offering sweetheart deals to foreign investors under its National Plan to Promote Oil Palm, but the country had more than 3 million acres suitable for oil palm. "Tax free at all levels!" Melka raved in an email to a London-based investment advisor. "Labor costs at US$11.50 per day. . . !" And, unlike in much of Southeast Asia, Peru allowed foreigners to own plantations outright. Palm oil, as he put it in his pitch, was "the most profitable crop that humans can grow outside of narcotics."

It was more than a clever line.

Over the past 30 years, the rise of the palm oil industry in Peru has been directly stimulated by the United Nations and by the US Agency for International Development, which has spent hundreds of millions of dollars there funding organizations that work to redirect coca farmers toward alternative crops. The first oil palm project, spearheaded by the United Nations Office on Drugs and Crime in 1991, helped 270 families in Ucayali — largely refugees fleeing Shining Path guerillas — to establish 3,000 acres of oil palm along a highway near Pucallpa. The United States later financed a mill that would be run by a farmer cooperative.

Rolf Wachholtz, an economist hired to evaluate one of the UN's coca-eradication programs in 2010, praised it for improving the livelihoods of farmers but stressed that the UN needed to "focus more on environmental issues," including deforestation.

Melka worked to take full advantage of the government aid. After making connections with diplomats and development agencies in multiple countries, he was even hired by USAID to provide a financier's perspective on its work in Peru. "The Peruvian industry needs scale," he said in a draft report he prepared in 2010. "All UN & USAID efforts should be focused on growing the productive resource and planting land."

That November, he repeated the theme when he gave a talk in Lima organized by the UN, along with his business partner Bill Randall, the managing director of Pacific Agri Capital, a private equity firm that Melka founded in 2008 to fund his Malaysian plantations. Peru still had only 100,000 acres of palm under cultivation, and Melka was seeking to triple that number, according to a documentary film, "The King of Cocaland." "He could impress anybody," said Wachholtz, the UN evaluator, who was in the audience that day. "I found it crazy."

The next day, Melka established the first eight Peruvian corporations for the plantations he wanted to develop — several of which, according to company records, would be acquired by his offshore holding company, United Oils. In a letter to local authorities, he wrote that his company had "extensive experience implementing the world's best practices for environmental stewardship."

During a meeting at the US Embassy in Lima, Melka was introduced to Alfredo Rivera Loarte, an agronomist at the UN Office on Drugs and Crime. Melka promptly hired him as a consultant to oversee plantation operations. Rivera's son Julio also came on board, as did another UN employee, Maria Teresa Trigoso. Doldourov, who drove Spoor and me around during my visit, had also worked at the UN, and built roads for United Oils before joining Ocho Sur.

Along with United Oils, Melka created United Cacao, having decided that the Tamshiyacu plantation to the north was better suited for that crop. Melka boasted of his UN ties every chance he got, writing in one pitch document that his senior managers collectively had several decades of experience with the organization.

Over the next three years, Melka raised $38 million for United Oils, according to the company's shareholder records. Seed funds came from wealthy friends and friends of friends, some of whom told me they hadn't fully appreciated what they were supporting.

"At some point I had started to learn more about orangutans and how they were being impacted by palm oil plantations" on Borneo, said one American investor, who was so ashamed by his participation that he asked me to withhold his name. "Oh, fuck," he remembered thinking. "I just put my money with someone who is clearing forest in the Amazon."

Melka quickly lined up more than a dozen investors. Early financers included Eric Varvel, then the CEO of Credit Suisse in the Asia-Pacific region and Steadfast Financial, a New York hedge fund with over $8 billion under management. At the company's launch, the majority shareholder, with $10 million in equity, was a fund managed by Randall at Pacific Agri Capital. Randall's fund received $3 million in capital from Anholt Services, a holding company that managed the $2 billion trust left behind by the Danish petroleum shipping magnate Torben Karlshoej, who founded Teekay. Though Anholt was an indirect investor in United Oils, the company received a privileged view of the company's inner workings directly from Melka, according to a confidentiality agreement signed in September 2012.

In 2014, after being assured by local counsel that Melka was complying with Peruvian laws, Anholt joined with a core group of shareholders in providing United Oils with an additional $48 million through a private bond offering. "The business can support easily US$50m in debt or so (or more)," Melka assured a shareholder in an email. He had purchased $7 million of the company's debt himself.

Melka told his shareholders that he was aiming for an initial public offering on either the Nasdaq or the London Stock Exchange in early 2016. "We've been meeting with mid-tier investment banks with positive feedback," he wrote. "Granted i-banks will always whisper 'sweet nothings' in a client's ear but at least there is interest."

The next challenge was acquiring land for the plantations. Outside conservation areas and Indigenous communities, much of the Peruvian Amazon was in the hands of regional governments: Undivided, untitled, and unclaimed, it was controlled by a glacial bureaucracy in a country where government corruption was widespread.

With his fresh infusion of cash, Melka needed to either find large blocks of land that cash-strapped authorities in Ucayali were willing to swiftly title and sell to him directly, or buy individual properties from homesteaders — settlers who had obtained "certificates of possession" for untitled state lands by proving they had used it continuously for at least one year. According to Juan Luis Dammert Bello, a Peruvian geographer who has studied the growth of plantations in the Amazon, buying land from settlers is an attractive loophole for large developers who are restricted from clearing forest themselves.

Increasingly, shady intermediaries known as land traffickers were organizing peasants to invade untitled lands and then packaging and selling the properties for a profit. Sometimes, the "settlers" they enlisted never actually set foot on the land they were claiming: They just signed a document asserting that they had. Land-trafficking mafias, which operate in every region of Peru, have allowed developers to launder unclaimed swaths of rainforest into legal farmland. But experts say Melka's enablers would be the first to carry it out on such a large scale.

"Melka is the game changer," Dammert told me. "There is a before and an after."

Melka used his UN ties to identify promising opportunities, according to "The King of Cocaland," the documentary film about Hans-Jochen Wiese, the leader of the UN's alternative development program in Peru. "I was supposed to designate land suitable for growing oil palms," Pablo Ramírez Mori, an official with the regional agriculture authority in Ucayali told the filmmakers. Wiese, Ramírez said, "agreed to this or that zone." Ramírez declined my request for an interview, saying it was "up to the authorities to follow the process"; Wiese, who died in an accident last year, had said his only goal in helping Melka was to help the Peruvian people.

In 2012, Melka acquired the 17,000-acre Tibecocha property, which included 222 parcels owned by an association of farmers. The association's members had obtained certificates of possession years earlier under questionable circumstances, according to Dammert's research. Apart from the extraction of high-value timber, Peruvian auditors found little evidence that they had cultivated it in a sustained way during their tenure, as required under the law. Most of them didn't even live nearby. Dammert has called it a textbook example of "ghost titling," where government officials create an association whose ranks they fill primarily with friends and relatives, hoping to profit from a subsequent sale. One sales contract, for a 109-acre parcel, indicates that Melka paid members of the group about $100 an acre.

Some 10 miles west of Tibecocha, Melka obtained a second property, Zanja Seca, by different means. This included 11,000 acres of state land in Ucayali that had already been surveyed and would soon be mass-titled in an effort to support a hundred or so subsistence farmers who had abandoned coca under a USAID-funded program. As soon as they received their certificates of possession, these farmers were hoping to plant cacao and oil palm. But after a massive fiscal decentralization, the Ucayali government was in need of cash. Ucayali authorities began dragging their feet in finalizing the homesteading paperwork, according to a legal complaint filed by the farmers. Then, to their great surprise, Melka purchased all 11,000 acres directly from the state for a steal: $25 an acre. (This month, three officials were sentenced to prison by an anti-corruption court for abuse of their positions in making that deal.)

With his lands in hand, Melka hired contractors to bulldoze the forest, burying the trees in trenches to improve the poor tropical soil. Analyses of satellite images conducted by the Peruvian government and environmental groups indicate that more than 90% of the Zanja Seca and Tibecocha properties were covered with primary or secondary forest at the time Melka took ownership. A million palm seeds were soon imported from Ecuador, Colombia, Costa Rica, and Ivory Coast. Worker camps, dining areas, and soccer fields were erected.

With Melka's development of the plantations came new roads, followed by more homesteaders, speculators, and land traffickers, according to Dammert and other researchers. Oil palm spread in the uplands, rice crops in the peatlands. Land conflicts were on the rise. Melka's two plantations were like a tightening vise, forcing communities in the middle to decide whether they would work with the company or against it.

One of the communities trapped in this vise was Santa Clara de Uchunya, an Indigenous Shipibo village tucked away in a looping bend of the Aguaytía River, a tributary of the Ucayali. The Peruvian state granted the community about 540 acres in 1986. It wasn't much, but they had only to cross the river to hunt wild game, gather native fruits, and harvest natural dyes for pottery and textiles they sold in local markets. Now, those forests were being cleared.

In an April 2015 letter to the director of the regional agriculture authority, the leaders of Santa Clara de Uchunya complained about their situation. "Our ancestral territory has been granted to Plantaciones de Pucallpa for the planting of oil palm," they wrote. They requested a territorial expansion to make up for what was being lost. And to help their cause they summoned a prominent Indigenous activist, Washington Bolívar Díaz, a descendant of the neighboring Kakataibo people.

Bolívar had helped found a federation uniting nine Kakataibo communities and became an eloquent defender of Indigenous rights. He was immediately recognizable by his long hair and the beaded necklaces and headdresses he wore for meetings.

In May 2015, Bolivár filed a legal complaint with Peru's Public Ministry, which has the power to launch criminal investigations. In it, he alleged that corrupt officials in the regional agriculture department had conspired with Melka's company to steal and deforest their lands. He described visiting the Tibecocha property one morning that month with a contingent from Santa Clara de Uchunya as part of a government inspection. Bolívar said he was shocked to hear "crying baby monkeys" and "wounded animals looking for their mothers" as the sun beat down on a landscape that had become "a cemetery of trees."

Melka tended to move fast, and that held true as he snapped up land. A new, stricter agricultural law had gone into force in Peru in 2012, but he didn't wait for the government's sign-off on an environmental management plan or obtain a "change of use" authorization to demonstrate the property's suitability for growing crops, according to a 2022 audit by Peru's comptroller general. Nor did he leave 30% of the property's forest cover intact, as required under the law, the audit found. In some cases, the audit said, Melka had cleared property he did not even own, including several hundred acres of a state-owned timberland known as the Biabo Cordillera Azul, which abutted the Tibecocha lands.

None of that corner-cutting stopped Melka from working toward his dream of earning environmental plaudits for his palm oil. In October 2013, a United Oils subsidiary, Plantaciones de Pucallpa, joined the Roundtable on Sustainable Palm Oil. Becoming a member was the first step toward getting the farm certified as 100% sustainable, which could mean a 2% to 7% premium in US and European markets. According to roundtable records, Melka's subsidiary affirmed that it had not cleared any forest for Tibecocha. Melka prepared for certification by commissioning an art-deco-style poster showing a worker hoisting a palm seedling in front of a pale yellow sun. "United Oils," it reads. "World's Finest Palm Oil."

Government investigators were now fanning out across Ucayali to interview hundreds of suspects and witnesses, as part of the criminal investigation that Bolívar's complaint set off. They soon discovered Melka was on the verge of pulling off his most brazen scheme. To skirt the reputational risks of buying more land directly, his employees had begun selecting parcels for homesteaders to clear themselves, then lending them money for fertilizer and seedlings.

They would effectively become contract farmers for United Oils — in debt to the company from the moment they set foot on their new land.

Melka's team had pitched the idea directly to farmers. "What is oil palm? Where will it take us?" one of the sons of Alfredo Rivera, the manager Melka hired after his decades with the United Nations, told a group gathered near Zanja Seca, according to a transcript by a researcher who attended the meeting. "Look, how I have credit cards like a casino! One for my wife, one for me, another one for my wife, and another one for me. That is what oil palm is."

The farmers' paperwork would get fast-tracked by the regional agriculture director, a man named Isaac Huamán Pérez who was a true believer in the promise of oil palm to alleviate poverty. "What alternatives do we have?" he asked me. Though he said he had never met Melka, he had longstanding ties to the United Oils team. He had known Alfredo Rivera since the 1990s. Huamán also told me he was "a great friend" of Ulises Saldaña Bardales, the former mayor of Pucallpa whom Melka had hired as institutional relations manager.

One of the farmers who seized the opportunity was Freddy Monteluiz Paima, who lives with his wife and two children in the community of Esperanza, a village on the left bank of the Aguaytía. When I arrived at his wooden home one May afternoon, he told me that he had no idea what oil palm was until Melka's people arrived.

But the money sounded good, and he said he happily joined 16 other residents in 2015 who heeded the company's call. They grabbed their chainsaws and piled onto several tuk tuks, heading out to a 500-acre plot of land that a local land trafficker had told them they could claim as their own to cultivate oil palm for the company. "That is where the conflict began," he recalled.

Melka had sought to bring another 12,000 acres into cultivation through this sharecropping strategy. In fact, a total of 128 certificates of possession, totaling at least 7,000 acres, were rubber-stamped by the titling division overseen by Huamán, the regional agricultural director. Apart from Monteluiz and a few others from Esperanza, most of the other new landholders had no connection to the area; some went to relatives of Huamán or other officials in his office, according to a prosecutorial report I obtained. When Ucayali's field-titling team visited the area in September 2015, the settlers could not even point out their own parcels. The property lines had all been drawn in a back office in Pucallpa, signed off on by the town's mayor, who was working with the land trafficker. The process was so haphazard that some of the parcels Huamán approved were partway inside a lake.

The plan quickly backfired. On September 24, 2015, according to prosecutors' records and interviews with participants, Bolívar and a few dozen residents of Santa Clara de Uchunya, outfitted with rusty machetes and rifles, headed out to the disputed land to confront the settlers. Monteluiz and his companions fled into the jungle, leaving behind their chainsaws.

By then Julia Urrunaga, of the Environmental Investigation Agency, had published the first detailed report on Melka's modus operandi in Malaysian Borneo and Peru, arguing that a failure to prosecute him would be "to expose Peru's national forest patrimony to rampant illegality and ultimately deforestation."

"The cost is simply too high, the victims too many, for Peru not to act," she and her colleagues wrote.

Peruvian regulators had issued a stop-work order to the Zanja Seca plantation for failing to comply with environmental regulations; now they ordered work to halt on the Tibecocha plantation too. The Roundtable on Sustainable Palm Oil followed suit with its own stop-work order.

In a response to the roundtable, the company wrote, "Most of these lands had been degraded by the illegal cultivation of coca, and by other exploitations of the forest, such as illegal timber and migratory cultivation over 40 years." As for the growing international controversy, Melka responded by lashing out. In one unsigned email to a Czech journalist, he called Bolívar "a total fraud" and warned the reporter to "cease and desist from attacking our company."

For over a year, Melka was able to defy the stop-work orders and operate without consequence. He could not, however, operate without capital. The first revenue from palm oil sales wouldn't arrive until the end of 2016, and he was so underfinanced, according to one investor, that he wasn't spending enough to adequately fertilize the trees. "Bank accounts are empty," Melka emailed his board. "Suppliers are physically protesting outside the office doors."

That February, United Oils defaulted on a $5 million interest payment on its corporate bonds. The $48 million principal would be due in six months time. Melka wrote his shareholders to say that his attempts to obtain bridge financing had gone nowhere. United Oils was on the verge of insolvency, and Melka would soon be publicly named in a criminal investigation against the company and its collaborators.

The crisis pitted Melka's investors against one another. Some shareholders stood to gain in a bankruptcy and some stood to lose, depending on how much of the company's debt they held.

The company's final balance sheet, dated March 2016, tallied the company's assets at $77 million. If a foreclosure auction reaped offers in that ballpark, the surplus could pay back most of what the shareholders had put in, and then some.

But debt trumps equity, and Anholt, the lead creditor with more than a third of the debt, had oversight over any sale. That gave Bill Randall of Pacific Agri Capital grave concerns: Though Randall's funds had been pivotal in the company's early days, they had only purchased 6% of the company's debt. Anholt, he warned in a May 11 memo, might try to "keep the price of the assets as low as possible and attract as little number of bidders for the assets as possible."

Under Cayman Islands law, Anholt's lawyer wrote back, creditors had no obligation to achieve the highest possible price. As for Melka, company balance sheets show that his stake in the plantations would remain around 15% after a sale. (Randall did not respond to multiple requests for comment, and Anholt referred all questions about its investment to Spoor.)

Advertisements soon appeared in the pages of El Peruano and The Jakarta Post inviting interested bidders to participate in a public auction of the plantations. On the auction's final day, July 14, Anholt and the other bondholders acquired all of United Oils' assets in exchange for forgiveness of their debt.

The new company's name: Ocho Sur.

Corporate records indicate that 18 of the 19 shareholders in Ocho Sur funded entities that bankrolled Melka's work clearing and planting of the rainforest between 2012 and 2014. With Melka and other key personnel from the early days remaining involved, the only truly new player was Amerra Capital Management, a New York private equity firm whose funds purchased $10 million of United Oils' bonds.

According to Peruvian prosecutors, Amerra had been told in a due-diligence document that United Oils had "caused the deforestation of approximately 7,000 hectares." Amerra's managing partner, Craig Tashjian, declined to comment, but a person who worked on the portfolio told me the information they received on the legality of the plantations was inconclusive. "We looked at this so many times," he said. "It's not like the investors took it for granted that Melka was right."

Álvaro Rodás Farro, the prosecutor specializing in organized crime who named Ocho Sur in the case against Melka, has argued that the transfer of the mature plantations was part of a criminal conspiracy in which Melka was the ringleader. He dubbed the maneuver "covert business succession."

The company has robustly denied this claim. "Ocho Sur is not the continuation of any previous company," the company wrote in February in response to a new report from the Environmental Investigation Agency. "It is incorrect and impossible to attribute to it any alleged actions that occurred before its existence."

As for the tight-knit circle of environmentalists in Peru who had been tracking Melka for the last several years, they were in the dark during the 2016 transition.

Unless you had a budget for bodyguards — and Lucila Pautrat Oyarzún, the forest engineer who runs Kené, a tiny Peruvian environmental NGO, certainly didn't — it was too dangerous to travel to Pucallpa at that time. Since 2010, at least 29 environmental defenders have been killed in the Peruvian Amazon. Pautrat instead monitored the situation from Lima, in a modest third-floor apartment where the shades were always drawn, messaging with government informants and managing undercover investigators.

It wasn't until January 2017 that Pautrat first saw the name Ocho Sur in a document she obtained from the Peruvian business registry. Then she got a tip that Melka was still visiting Pucallpa, in his roles as a consultant and a member of the board. In fact, she learned, several key players — including Alfredo Rivera, Ulises Saldaña, and Krassimir Doldorouv — continued working their old jobs for the new company. Ocho Sur kept the same United Oils offices in what would become the Wyndham hotel. The signs were simply updated.

Pautrat believed that she was witnessing a greenwashing operation of epic proportions.

Soon, some of United Oils' enablers, including Isaac Huamán, were sentenced to prison for obstruction of justice. But the plantations were receiving fresh investment; Amerra brought a crop consultant over from England, and the shareholders put their money into building a state-of-the-art mill.

Michael Spoor was hired in 2019 after being recommended by an old friend, Joseph Massoud, the managing director of Anholt. Spoor said the overlap in employment in the company was not "surprising or suspicious" given how few qualified professionals are available in the region.

One of his first acts after taking the company's helm was to get rid of Melka. "I went to the board of directors, and I said, 'I don't think we have a chance of success if he remains associated with the project,'" Spoor told me. The company bought out Melka's shares and ended his consulting contract.

Next, Spoor and the company's lawyers worked to get the $2.5 million in fines the company owed to government agencies overturned. In order to get the land reclassified as farmland, they had to pay the state approximately $450,000 to cover harvest rights for the timber that Melka had chopped down. In any event, Spoor thought he was making progress toward resolving the outstanding claims against the company. Then, in 2022, Peru's comptroller general released three audits, concluding that, despite the agency reversals Spoor had orchestrated, Ocho Sur's plantations could never be brought into compliance with existing laws. Spoor took issue with the agency's findings, saying the officials had "overstepped their legal competence."

Spoor has little good to say about the environmentalists who have sought to hold his plantations accountable. The campaigns against Ocho Sur — funded by what he called a "powerful, transnational ideological machine" with "limitless" cash — had cost the company millions in legal fees. They had also led it to be blacklisted, he said, by some of the world's largest food companies, including Nestlé and PepsiCo, and by such prominent commodities traders as Bunge and Louis Dreyfus.

In the past year, Ocho Sur and its supporters have participated in a slew of news coverage critical of environmental NGOs — what Peru's right wing calls the "caviar mafia." Willax Television, the Peruvian counterpart to Fox News, ran a story early this year claiming, without evidence, that Pautrat was hiding millions of dollars in an offshore account. One of Ocho Sur's lawyers made a cameo.

"If I had this money," Pautrat told me, "I would be living in Italy." Kené's annual budget is $160,000.

One day in Pucallpa, Spoor connected me to one of his trusted advisors, Álvaro Agurto Mazzini, a gregarious entrepreneur who has been promoting Ucayali's economic development for over a decade. He wanted me to meet Ulises Saldaña, one of the employees whom Ocho Sur inherited from the Melka days and who now served as the community-relations manager.

Saldaña emerged from an open-air restaurant with two coworkers and a broad-shouldered man in blue jeans and a Henley shirt. This third man stood out because his hair was pulled into a high ponytail atop his shaven head. It was Washington Bolívar, the activist who had helped Ucayali's Indigenous communities fight the palm oil plantations. Once Ocho Sur's most outspoken enemy, he had become the company's supporter.

"He knows that Ocho Sur is defending the truth," Agurto said. "That the NGOs are shit."

"The situation changes," Bolívar said, "because what we want is to improve the quality of life of the people." He now frequently appears in the media as an Indigenous voice lambasting NGOs.

Bolívar was not the only one who'd switched sides. In 2019, the state government granted Santa Clara de Uchunya a chunk of forest adjacent to Ocho Sur, which tripled the community's size to 1,544 acres. After an election in January 2022, their new leader, Wilson Barbarán Soria, wrote prosecutors asking them to drop the community as an "aggrieved party" in the criminal case against the company, because it was now in "good relations" with Ocho Sur.

Saldaña arranged to take me to visit Santa Clara de Uchunya the following day. When we arrived, a group of residents were gathered under a metal canopy as a television blared. We found a quiet place to speak with Barbarán, the newly elected leader.

"We are not going to live like our parents had lived," he told me. "We want to better ourselves." He said his people now had the chance to obtain an education to become teachers, lawyers, and police officers.

In his view, Ocho Sur had helped make all this possible by providing benefits like a Starlink terminal, a new health post, and a better road. "Thanks to la empresa, we have a line of communication to the internet," Barbarán said.

In turn, Santa Clara de Uchunya had signed a pact with Ocho Sur to preserve its newly acquired forests for the next 25 years. It was a critical final step for Ocho Sur in legalizing its plantations. Since Melka had failed to preserve 30% of the forest he'd purchased, as required under Peruvian law, Spoor needed to offset the deforestation by guaranteeing conservation elsewhere.

As Saldaña jumped in to explain that the conflict with the company had been blown out of proportion by the media, a woman emerged from the house next door and interrupted our conversation. "Señor, Ulises," she said, "why do you deny it?" There was an awkward moment as Saldaña calmly ignored her, saying that the majority of the community fully supported Ocho Sur.

I later learned that the woman was the daughter-in-law of a woman named Luisa Mori González, who heads an organization made up of the resistance — a group of 10 or so families who remained opposed to Ocho Sur and didn't share Barbarán's rosy assessment of the community's prospects.

I found Mori in the back of the house, seated at a table near a wood fire stove, where a splayed possum was about to be cooked in a blackened pot. She expressed indignation about the pact the community had signed with the company, saying they were still a long way away from securing enough forest for their own future.

"Where are we going to work during the next 25 years? Where are we going to hunt animals like this?" she said, gesturing to the stove. Though the agreement with Ocho Sur allowed hunting and gathering in the forest, she said too many natural resources had already been lost. It was no longer possible, she said, to find the apacharama tree, whose bark was traditionally burned to ash and used in pottery.

"I am taking this position so as not to be tricked by the businessmen, the millionaire entities that are going to fool us with 1 kilo, 2 kilos of rice," she said. At stake, she said, was the future of the community. "Life is not bought — life is borrowed," she said. "Just as my ancestors left our territory for me, so I am going to leave it to my children and to my grandchildren."

Later that day, Spoor and I met for lunch at a cabana with a palm-thatch roof overlooking the dark waters of Tibecocha Lake. It's a lovely spot on the edge of the property where Spoor has brought many of his influential guests. As the company chef prepared us a meal of risotto and breaded arapaima, an Amazonian fish, we leaned against the railing, gazed out at the forest on the opposite bank.

He told me he was proud to have opened a new weigh station to purchase palm fruits from farms it has verified as deforestation-free. "It is literally a cash register for farmers," Spoor said. "Farmers who used to grow coca leaves are happy to switch to palm oil." Peru's ministry of agriculture liked the idea enough to finance families seeking to grow oil palm for Ocho Sur and other local mills on previously degraded land. Diane Farrell, the US deputy undersecretary of international trade, even attended a launch event at Ocho Sur's nursery.

As Spoor and I talked, I noticed a fresh clearing in the lakeside forest, where rice shoots were sprouting from the soggy soil. It had been leveled just six months earlier by farmers from Esperanza, who had once sought to grow oil palm for Melka. "It was a devastating surprise," Spoor said. He had been hoping, he said, to conserve that land to add to the company's offsets.

Since Melka's arrival in 2010, the Ucayali region has experienced the highest rate of deforestation in Peru. In addition to the land-clearing on Tibecocha and Zanja Seca, one study documented 6,000 acres of forest destroyed from 2011 to 2016 by four communities that now grow oil palm on some of those lands for Ocho Sur. Coca farming, meanwhile, has increased by a factor of five. Researchers who have evaluated the impact of the USAID and UN eradication programs concluded that while they had produced some benefits, they sometimes pushed "marginalized coca growers into more precarious positions, often leading them to replant coca in more distant forests."

A spokesperson for USAID told me that the agency now works to limit deforestation by helping small coffee and cacao growers increase production and that the US government "will continue to partner with and strengthen institutional capabilities of Peruvian agencies involved in counternarcotics efforts." Candice Welsch, who heads the UN Office on Drugs and Crime in the Andean region, said the office's strategies had evolved in the decade since Hans-Jochen Wiese was leading alternative development. In 2022, the UN approved a resolution prioritizing biodiversity protection in its development work. "We never advocate for monocultures," Welsch said.

When I asked Spoor recently how Ocho Sur could ever escape the land-clearing its plantations were built upon, he challenged me to identify anyone in the region who was truly worse off because of it today. "Do you think 10 years from now, 20 years from now, people will say this is a tragedy?" he asked. "I'm puzzled by this ideology that wants to keep people in poverty." He told me he hoped my story would focus on the "paradox of human progress" and show how "even amidst despair, seeds for a better future can take root."

For Ocho Sur, achieving that dream has meant erasing history. The company has vigorously challenged its inclusion in Rodás' criminal case against Melka, filing a countersuit claiming that the prosecutor had overstepped his powers and engaged in "ideological persecution." Rodás' office told me formal charges were imminent.

But the real battle over the company's future and the definition of deforestation has already shifted from the courts to the politicians.

In January, Peruvian lawmakers granted amnesty to landowners who, like Melka, had cleared their land without first obtaining the change-of-use authorization. Supporters of the new law have said it will help formalize the farming sector, but the move has been challenged in court on the grounds that it could worsen conflicts between settlers and Indigenous communities. Fighting in favor of the amnesty is a familiar name: Washington Bolívar. He is represented in these efforts by the law firm Estudio Ghersi, which is also defending Ocho Sur in the criminal case.

One of the biggest obstacles to Ocho Sur coming into full compliance with Peruvian law is its lack of an approved environmental management plan, but a separate regulation, enacted in June, gave companies across the Peruvian Amazon a chance to retroactively obtain the needed approvals.

A few months after my visit, the Amazon was engulfed by record wildfires that incinerated over a hundred million acres of rainforest. The forests of Ucayali were among those going up in flames. In a climate of impunity, farmers and land traffickers had set hundreds of fires to clear new land for crops. These fires, I was told by one human rights organization, had swept through part of Santa Clara de Uchunya's new territory.

The firefighting crews had taken up residence in housing provided by Ocho Sur.

The European Union met the moment by voting last month to postpone its new deforestation regulations for a year.

Over a span of days, Joshua England's pleas for help became more desperate.

"I've been puking all night, and now I'm puking what looks like blood," he wrote to his medical providers on May 22, 2018. "My stomach hurts so, so bad." At the medical clinic that day he clutched his abdomen and described his pain as sharp and intense — an 8 out of 10. But he was seen by a lesser-trained licensed practical nurse, who didn't give him a complete abdominal exam or send him for any lab work. Instead he was given Pepto-Bismol and told to drink water and eat fibrous food.

The Pepto-Bismol didn't help. The next day England wrote that his pain was so bad he could barely breathe. He couldn't eat or sleep. He again went to the clinic, where he said he'd had bloody stool and his pain was now a 10 out of 10. The physician assistant found that his pulse was racing but didn't conduct an abdominal exam. Instead, he chalked up England's symptoms to constipation and prescribed a laxative.

At that point someone with England's symptoms might seek out a new clinic, to get a more thorough workup, or even head straight to an ER. But Joshua England didn't have that option. He was inmate No. 775261 at Joseph Harp Correctional Center, a medium-security facility in central Oklahoma. He'd been sentenced to 343 days in prison after he and some buddies set some hay bales on fire one drunken night. This reconstruction of the events of those days in May 2018 is based on prison and medical records obtained by Business Insider in collaboration with The Frontier, a nonprofit newsroom in Oklahoma.

Four days after he first requested help, England submitted his fourth sick call — a one-page form that prisoners at Joseph Harp used to request medical attention. He again wrote down how it was hard to breathe or even lie down. This time the licensed practical nurse who saw him consulted with the prison's supervising physician, Robert Balogh. Balogh prescribed ibuprofen over the phone. He, and the physician assistant who saw England earlier, each had marks on their records: Balogh had been fined and put on probation for a time by the Oklahoma narcotics bureau, and the license of the PA had once been revoked for prescription fraud.

As medical professionals downplayed England's symptoms, he continued to deteriorate. He couldn't work or eat or shower; instead he remained in his cell, curled up on the floor in tears. Other prisoners reported that he had lost weight, his skin color had changed, and he no longer seemed fully cognizant.

On May 29, 2018, a corrections officer discovered England slumped over on the floor next to his cell. The Choctaw Nation kid who loved fishing and cattle ranching had died, just weeks after turning 21. Autopsy records show that the cause of death was a ruptured appendix.

Appendicitis is easily treated with minimally invasive outpatient surgery. Even treating a ruptured appendix is considered routine as long as the patient is immediately hospitalized. In this case, the PA was notified of his declining condition the morning of his death; he later told investigators he didn't believe England's condition had been life-threatening. A licensed practical nurse who saw England a few days earlier said she suspected he was in withdrawal and seeking painkillers.

Five years after England's death, the Oklahoma legislature approved a $1.05 million settlement with his mother, Christy Smith, to resolve a claim under the Eighth Amendment, which bars "cruel and unusual punishments." During litigation, the Oklahoma attorney general maintained that the prison's course of treatment was legitimate; in settling, the state admitted no wrongdoing.

Balogh, who no longer works for the department, confirmed the probation and said he was cleared to work without monitoring in 2015. He said he worked remotely for Joseph Harp so was reliant on information provided over the phone by the nurse, who he said did not mention that England had been having symptoms over a span of days. "You had a system where, many times, the physician was not there," Balogh said. "There were some ways that information could fall through the cracks."

A spokesperson for the Oklahoma Department of Corrections declined to comment about the case, as did Joan Kane, a clerk for the Western District Court of Oklahoma, on behalf of Judge Charles Goodwin, who presided. "It is atypical for federal judges to speak publicly about specific legal situations or cases," she said. No other judge on a case mentioned in this story agreed to comment.

Few cases win outright

Business Insider analyzed a sample of nearly 1,500 federal Eighth Amendment lawsuits — including every appeals court case with an opinion we could locate filed from 2018 to 2022 and citing the relevant precedent-setting Supreme Court cases and standards — and found that a settlement like Smith's was exceedingly rare.

The cases in BI's sample overwhelmingly detailed serious claims of harm, including sexual assault, retaliatory beatings, prolonged solitary confinement, and untreated cancers. Prisoners lost a vast majority of them — 85%.

Roughly three-quarters of civil suits filed in the United States settle, and nearly half of nonprisoner civil-rights suits do. In BI's sample of Eighth Amendment cases, just 14% settled. Many of the settlements were sealed. Of the rest, none involved an admission of wrongdoing by prison officials. BI was able to identify just six cases that settled for $50,000 or more; half of those, including the England case, involved prisoner deaths.

Many of the cases settled for modest amounts: An Oregon prisoner received $251 over a claim that she was sexually assaulted by another prisoner and then pepper-sprayed by a guard. A Nevada prisoner got $400 on a claim that guards beat and pepper-sprayed him while he was in restraints. A New York prisoner won $2,000 for claims that he suffered debilitating pain while prison officials delayed treating his degenerative osteoarthritis.

In 11 cases — less than 1% of the sample — the plaintiffs won relief in court.

Seven of these plaintiffs won damages, the result of six jury trials and one default judgment; plaintiffs in the other four cases, including two class actions, were granted motions for injunctive relief, such as being freed from a prolonged stint in solitary. In one of these cases, a plaintiff in Wisconsin was granted access to gender-affirming surgery to treat her gender dysphoria after a seven-year delay. Along the way, the 7th Circuit granted the officials qualified immunity, which protects the conduct of public officials in the line of duty, so the plaintiff was denied damages. Beth Hardtke, the director of communications for the Wisconsin Department of Corrections, said the department updated its transgender-care policy in response to the ruling.

Litigants without lawyers

Another pattern jumped out: In every case in BI's sample in which a prisoner prevailed, the plaintiff was represented by legal counsel. They were outliers.

In the vast majority of cases, 78%, prisoners litigated pro se — without counsel — in large part because a Clinton-era law, the Prison Litigation Reform Act, tightly capped attorney fees, making it prohibitive for lawyers to take prisoner cases. BI interviewed 10 attorneys who represented prisoners or their families in cases that prevailed; they all said the cases would have struggled to succeed without counsel.

"Pro se litigants do not win cases in federal court," said Victor Glasberg, one of a team of attorneys who successfully proved in 2018 that conditions on Virginia's death row violated prisoners' Eighth Amendment rights. "When faced with abysmal anti-plaintiff litigation and jurisprudence, the chance of a pro se litigant getting to first base is about as good as my flying to the moon."

Even lawyers struggle to master the convoluted standards that now guide Eighth Amendment claims, said Chris Smith, a Mississippi attorney who won a constitutional claim over inadequate medical care in 2021.

Smith told BI that his team's ability to access documents was critical for winning the case; he and his colleague spent days combing through 5-inch binders containing years of medical records to prove the corrections department was responsible for treatment delays.

But prisoners face a litany of hurdles, he said, starting with the difficulty they face obtaining records.

They don't have experience in the rules of civil procedure, he said. They don't know how to plan a litigation strategy, or draft jury instructions, or take depositions.

In England's case, because he had died, his mother was the plaintiff in a 2019 lawsuit alleging that corrections and medical staff had failed to treat his appendicitis. Since she was not incarcerated, she was able to secure legal counsel free from the PLRA's fee caps.

The settlement, reached after a four-year legal battle, did not require the defendants to admit to any wrongdoing. State taxpayers, rather than the named defendants, footed the bill.

"The people that actually were responsible for it," England's stepfather, Darren Smith, said, "have no accountability whatsoever."

Prisoners succeed more before juries

One federal judge, Lawrence Piersol of the South Dakota District Court, said that in his experience, jurors are not generally sympathetic to imprisoned plaintiffs. BI's data indicates that plaintiffs actually fare somewhat better before juries than before judges. Of the 1,488 cases in BI's sample, prisoners prevailed more often before juries. Just 2% of the cases BI reviewed were decided by a jury. Yet more than half of the 11 prisoners who won their suits had jury trials.

Glasberg, the Virginia attorney, said he suspected that if more cases were decided by jurors, it would "significantly improve the plight of people in prisons and jails." Many prisoners, he said, see their cases dismissed preemptively by a judge, before a jury has the chance to hear evidence.

One Louisiana prisoner, Tony Johnson, was awarded $750,000 in 2020 after a jury found that a guard at Angola had sexually assaulted him. The guard denied the allegations.

Johnson's lawyer, Joseph Long, told BI that the verdict was the result of years of litigation, including obtaining dozens of depositions and spending nearly $40,000 on the case. The underlying Eighth Amendment claim, he said, entailed abuse with the potential to infuriate even jurors sympathetic to law enforcement.

"Prison isn't supposed to be good, but when they get raped by a guard even the most hard-bitten conservative has to admit that's wrong," Long said. The guard resigned from the prison in 2014 and was never criminally charged; four years after the verdict, Long said, his client has yet to receive his money from the state. The Louisiana Department of Public Safety & Corrections declined to comment on the record.

Chris Smith's client, a Mississippi prisoner named Thad Delaughter, had complained for years about severe hip pain caused by rheumatoid arthritis. Eventually, in 2011, he was allowed to see an outside specialist who found that he needed surgery to reconstruct his hip. The operation was scheduled, only to be abruptly canceled; one of Smith's arguments in court was that prison officials didn't want to foot the substantial bill.

The treatment kept getting delayed as his condition deteriorated. At trial, jurors found that Gloria Perry, the department's chief medical officer, had violated Delaughter's constitutional rights by delaying the procedure; he was awarded $382,000 in damages and, in 2022, had the operation.

Perry denied any wrongdoing, saying in court filings that her actions didn't rise to the level of a constitutional violation; her motion for a new trial was denied. A representative of the Mississippi Department of Corrections said Perry no longer worked for the department and declined to comment on litigation matters; her attorney did not respond to queries.

'I want him to live'

Among the jury wins for prisoners in BI's sample were two cases filed against doctors who worked for Wexford Health, the private correctional healthcare company. In one case, an Illinois prisoner named William Kent Dean convinced a jury that his kidney cancer had metastasized after healthcare providers failed to diagnose and adequately treat his symptoms over a span of seven months. At one point, email records showed, Wexford employees discussed admitting him into hospice in lieu of paying to treat his illness. "He's the love of my life," Dean's wife, Cynthia Dean, said during the trial, "and I want him to live."

In 2019, Dean won $11 million in damages at trial against Wexford and two of its medical providers. Appeals court judges of the 7th Circuit then sent the case back, after finding that Dean hadn't proved the defendants were "deliberately indifferent" to his suffering, as the Supreme Court requires.

One 7th Circuit judge, Diane Wood, dissented, writing, "Wexford directly learned of the lack of significant medical intervention and the arc of Dean's cancer's progression, yet still did not act efficiently or effectively."

Dean died of kidney cancer in 2022 at the age of 61.

Wexford and the Illinois Department of Corrections did not respond to requests for comment.

In August, a new jury again found in favor of Cynthia Dean, who had taken over as plaintiff. This time the award was $155,100. Wexford, in a court filing, denied all of the allegations.

BI's database is packed with cases that also allege significant harm — but the plaintiffs lost.

One was another Illinois prisoner under the care of Wexford, who sued his doctor for waiting over a year to test for an abdominal hernia — prolonging his pain and delaying corrective surgery. Another involved an Oklahoma man who filed suit saying that a prison doctor had improperly discontinued his medication to treat chronic nerve pain from tongue cancer. Both cases were dismissed when judges found the prisoners could not prove their doctors were deliberately indifferent.

A woman in California sued after doctors persistently misdiagnosed a growing lump that, years later, was diagnosed as Stage 4 breast cancer. Even then, she said, doctors denied and delayed chemotherapy as the cancer spread.

The US District Court for the Eastern District of California dismissed her case when she died. There was nobody to take over for her as plaintiff.

Terri Hardy, a spokesperson for the California Department of Corrections and Rehabilitation, declined to comment on the breast cancer case and said the department works to ensure that its complaint process is fair, thorough, and timely. A spokesperson for the Oklahoma Department of Corrections declined to comment on the tongue cancer case.

Large settlements for prisoner deaths

One way for a plaintiff to win a large settlement, BI found, is to end up dead.

Of the six lawsuits BI identified that settled for $50,000 or more, half of those were filed by family members such as Josh England's mother, Christy Smith, whose sons or brothers died behind bars. Unlike prisoner plaintiffs, these surviving relatives didn't have to overcome the PLRA's hurdles.

"Somebody has lost their life, so there should be a lot of money," said Paola Armeni, a Las Vegas attorney. "They're not getting their loved one back."

Armeni's case is one of a handful in our sample in which a lawsuit forced substantive change. She represented the family of Carlos Perez Jr., a Nevada prisoner who was killed in 2014 at Nevada's High Desert State Prison by a trainee officer named Raynaldo-John Ruiz Ramos. Ramos shot Perez multiple times with birdshot, a kind of ammunition used to hunt small game. "They lit him up," Armeni told BI. "The birdshot was from his waist up. It was a murder."

Six months later, a prisoner named Stacey Richards was permanently blinded when a corrections officer shot him with birdshot at another Nevada prison, Ely State.

After an eight-year legal battle, the state settled last year with Perez's family for $1.6 million. That same year, a case filed by Richards settled for $2.25 million. In exchange, Richards' attorney agreed that his client wouldn't talk to the press about the case. Ramos maintained in court that firing his weapon was a reasonable use of force to break up a fight between prisoners.

As a result of Perez's death, the state corrections commissioner was forced out and the department commissioned an external review of its use-of-force policies, ultimately agreeing, in 2015, to phase out the use of birdshot, which prison guards had deployed for decades.

In reaching a settlement with the Perez family, the state did not accept liability for Perez's death, even though the Clark County coroner's office had ruled it a homicide.

The Nevada Department of Corrections declined to comment; Ramos' attorneys did not respond to requests for comment.

Ramos was charged with involuntary manslaughter. In 2019, he entered a plea deal. In exchange for community service and a mental-health evaluation, he avoided prison.

On the morning of March 16, 2015, the night-shift nurses of Martin Correctional Institution clustered in the medical exam room to brief Robert Silvis, the prison's nursing director. Silvis had just started his shift at the facility in Indiantown, Florida, and the nurses looked stunned. They explained, as well as they could, what had occurred the night before.

A man was dead.

Silvis called a prison captain and pulled the surveillance tape.

The video showed someone Silvis recognized as Carolyn Conrad, a licensed practical nurse, entering the D block dormitory at 7:24 p.m. to begin the nightly ritual of distributing medication to the men. When a corrections officer arrived outside cell D2210, he discovered Christopher Cox sprawled on his stomach on the concrete floor. Cox was unresponsive, his arms slack against his sides, his face bloodied and pressed against a pillow, a white T-shirt twisted into a noose around his neck.

Corrections officers handcuffed Cox's cellmate, Hurley Brown, then cuffed Cox's arms and legs before turning his limp body to the side and removing the noose. At 7:28 p.m., Conrad entered the cell. She left seven minutes later. Records show that Conrad, who had been working at the prison for only a month, did not call 911 or start CPR.

Silvis was taken aback. He knew someone with a practical-nurse license, which requires a high-school diploma and a year of vocational school, is not credentialed to diagnose or decide a course of treatment. Anyone with that license certainly lacks the training or authority to declare a person dead. When she saw that Cox was unresponsive, Conrad was required to alert emergency services and start CPR until a more senior medical professional could relieve her. Instead, witnesses later told a state investigator, she left Cox while his skin was still warm.

Silvis called Conrad to demand an explanation. He recalls her telling him she hadn't started CPR on Cox because she believed he was already dead.

As with many men and women incarcerated in the United States, Cox's life was left in the hands of overstretched and minimally qualified medical providers operating in institutions that rarely face accountability for shoddy care. At Martin that night, there was no doctor on duty, only one registered nurse and a group of four LPNs, including Conrad, to care for up to 1,500 men.

Outside the prison walls, someone witnessing a murder can call for an ambulance. But incarcerated people cannot visit a medical clinic on their own, or choose their own doctor. They cannot seek a second opinion, make an appointment with a specialist, pursue additional testing, or control the type or quality of care they receive. They cannot dial 911.

Injury and illness are commonplace in prisons. In a 2009 study of nearly 7,000 men incarcerated in 12 state prisons, 19% reported being physically assaulted by a fellow prisoner over a six-month period; 21% reported being assaulted by prison staff. Meanwhile, waves of men and women, locked up during the height of the war on drugs and mandatory minimum sentences, are now growing old behind bars, often with chronic health conditions such as HIV. Over a third of those incarcerated in US prisons have been given diagnoses of mental illness — a higher rate than on the outside.

Prison healthcare budgets have struggled to keep pace with these growing needs, and much prisoner healthcare has been outsourced to for-profit providers. With fixed per-patient revenue, these privately owned companies have an incentive to avoid expensive procedures and otherwise cut costs. Prisons and private contractors alike have depended on less-trained health providers, such as licensed practical nurses, to keep staffing costs low. A legal settlement in California established that one leading private prison health provider, Corizon, had saved 35% for every low-level nurse who did the work of an RN. Prisons may have a single doctor on staff, and recruitment and retention have become such an acute problem that medical contractors have often retained doctors who have racked up a long history of complaints.

As these problems mounted in the 1980s and 1990s, Congress and the Supreme Court limited prisoners' ability to get relief. To win a lawsuit over constitutionally inadequate medical care, a prisoner must now survive the many restrictions imposed by the Prison Litigation Reform Act, which in 1996 mandated preliminary screenings and other measures meant to weed out frivolous prisoner lawsuits. A prisoner also has to overcome a Supreme Court standard known as "deliberate indifference." As defined in the 1994 case Farmer v. Brennan, the standard says that "cruel and unusual punishments" hinges on the defendant's mindset. Under this standard, the potentially lethal effects of Conrad's decision not to treat Cox would not be enough. A successful Eighth Amendment suit would have to show that Conrad was aware of the risk of harm her inaction presented.

While prisoners can file malpractice claims in state court, there they typically face caps on damages and are unable to recoup attorney fees. And any prisoners seeking injunctive relief — such as a transfer to a hospital — must file a federal constitutional claim. So the barriers to relief in the federal courts introduced by Congress and the Supreme Court have proved nearly insurmountable, preventing claims of even the most egregious forms of medical neglect from prevailing in court.

Business Insider analyzed a sample of nearly 1,500 federal cases alleging cruel and unusual punishment in violation of the Eighth Amendment, including every appeals court case with an opinion we could locate filed from 2018 to 2022 and citing the relevant precedent-setting Supreme Court cases and standards. Nearly two-thirds of those cases involved allegations of constitutionally inadequate medical care. Among them were claims of grievous harm: untreated infections so severe they resulted in amputations; deaths from treatable conditions like gallstones or appendicitis; and agonizing months and years spent waiting for diagnosis and treatment as cancerous tumors swelled, metastasized, and grew lethal.

Hundreds of prisoners complained of inadequate treatment for potentially fatal illnesses such as hepatitis C and HIV or said their mental-health crises were met with violence or solitary confinement rather than care. Dozens said they experienced excruciating pain — stemming from conditions such as collapsed vertebrae or severe infections — that went untreated for months or years. Still more said they were denied basic medical accommodations such as dentures and walkers.

Together, the claims describe a US prison medical culture defined by a gross disregard for human life.

For generations, federal courts have understood the constitutional protection against cruel and unusual punishment to guarantee prisoners the right to adequate healthcare. Occasionally, over the past 30 years, the ACLU or other powerful litigators have managed to win Eighth Amendment cases in which courts have mandated oversight measures and reforms in a prison's, or a prison system's, medical care. But such sweeping accountability measures are rare.

In BI's sample, nearly nine out of 10 cases alleging substandard care were unsuccessful. Most of the remainder settled; many for a few hundred dollars, and all without an admission of wrongdoing, whether by the prison, the department of corrections, or the private medical contractor.

Plaintiffs in only five of these cases won their Eighth Amendment claims.

"Medical treatment only violates the Eighth Amendment when it is 'so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness,'" the judges of the 11th Circuit Court wrote in 2022, citing case precedent in denying a claim of inadequate care by a prisoner named Maximo Gomez, who was at risk of suicide.

Such readings of the Constitution have largely insulated prison healthcare providers from legal accountability.

In 2017, Gomez told officers at Hamilton Correctional Institution in Florida that he was experiencing intense distress, extreme depression, and suicidal ideation, according to his civil complaint. A licensed practical nurse employed with Centurion Health, then contracted to provide care in some Florida prisons, spent six minutes conducting what appeared to be a cursory mental-health assessment and determined that he did not need to be placed in an observation cell. Corrections officers, Gomez said, joked that they'd treat him with "hot sauce," slang for pepper spray.

A surveillance camera recorded Gomez flinging himself to the ground, screaming that he needed help and might kill himself. It showed corrections officers wrestling him into arm and leg restraints; his complaint said they then locked him in a shower cell, punched and kicked him in the face, and blasted him with pepper spray as he begged for psychiatric care.

In court filings, the officers said they used force on Gomez "to force compliance" after he refused to submit to restraints but denied punching or kicking him, and the Centurion nurse said she gave Gomez a mental-health assessment according to correctional staff instructions.

Gomez's lawsuit was dismissed. "The Eighth Amendment," the judges wrote, quoting precedent, "does not require medical care to be perfect, the best obtainable, or even very good."

The Florida Department of Corrections declined to comment on individual cases but said each prisoner is "continuously monitored and evaluated for medical, dental, and mental health needs throughout incarceration" in accordance with Florida law.

A 'difference of medical opinion'

The night Cox died, he was three years into a 25-year sentence for murder. At about 7 p.m., a prisoner named Derek Cedri heard the sounds of a struggle in the cell next to his and then a cry for help, he later told a Florida Department of Corrections investigator. On the other side of the cell block, a second prisoner peered through his narrow cell window and caught a glimpse of Brown with his arm wrapped tightly around Cox's throat.

Cedri did the only thing he could: He shouted to a nearby corrections officer that a man was being killed. The officer did not respond; he later told investigators he didn't hear Cedri cry out. Meanwhile, Brown continued to attack Cox; medical records would later show he bludgeoned Cox's face and stomped on his head and neck.

"Man down!" other prisoners yelled. Soon men across the unit were battering their steel cell doors into a steady thunder. Nearly 30 minutes passed before prison medical staff and corrections officers appeared. Four minutes after that, Conrad, the licensed practical nurse, arrived and left without performing CPR.

Conrad did not respond to inquiries by phone, email, or mail.

Her decision not to provide care may not have been an anomaly. In dozens of cases in BI's sample, incarcerated people said they were denied emergency medical treatment by corrections officers or medical staff despite obvious medical distress.

While incarcerated at Camille Griffin Graham Correctional Institution in South Carolina in April 2019, Julie Mason later told a court, she woke nauseated and in severe abdominal pain.

Because she was incarcerated, Mason had only one way to seek medical care: placing a sick call. These written requests don't always prompt immediate attention; in some cases, court records show, they go unanswered for weeks. Even when a diagnostic test for cancer is delayed or an appointment to address excruciating pain is repeatedly rescheduled, prisoners have no internal recourse except to submit another sick call — or submit a complaint to prison administrators. Prisoners' requests for care, court records show, are sometimes met with suspicion if not outright contempt: the prisoner with acute appendicitis denied emergency care by a nurse who thought he was just seeking pain meds; the suicidal prisoner who said he begged for psychiatric care and was told by a guard to "go for it."

In her civil complaint, Mason said she had sent repeated sick calls requesting emergency medical treatment over two days, all unanswered. When Mason continued to complain of severe pain, she said, a corrections officer offered her Tylenol but failed to report her condition to medical staff. The next day, another officer discovered Mason in her cell, collapsed in her own vomit. Mason was sent to medical twice, where nurses checked her vitals; one sent her back to her cell with anti-nausea medication. Hours later, she suffered a grand mal seizure. Only then did a nurse seek sign-off from a prison doctor to send her to a local emergency room, where she was given a diagnosis of necrotizing pancreatitis, a condition that puts a patient at risk for a fatal septic infection. Mason spent nine days in the hospital.

The US District Court for the District of South Carolina agreed with defense arguments that the nurse had sent her for emergency care, and that the corrections officer had "checked on her" and provided "something for her pain at least one time." Under the deliberate-indifference standard, the judges decided, those actions were enough to show that Mason had received adequate care. She lost the case.

The South Carolina Department of Corrections did not respond to requests for comment.

"Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments," Judge Anthony Celebrezze of the 6th Circuit wrote in a 1976 court opinion. Over successive decades, such judicial caution has become pervasive. In hundreds of cases BI analyzed, if healthcare professionals offered any medical attention at all, judges deferred to their judgment.

Many chalked up the gap between the medical care a prisoner said they required and what was provided to a "difference of medical opinion."

The judges of the South Carolina District Court, and all but one of the other judges mentioned in this story, declined to comment or did not respond to queries.

For months in the summer of 2016, James Kirk complained to the healthcare staff at Jackson Correctional Institution in Wisconsin of classic symptoms of heart failure — acute chest pain and labored breathing. Kirk had a history of heart attacks and had been told he had coronary artery disease and congestive heart failure. But according to his complaint and internal grievance files, the prison medical staff denied Kirk's request to be seen at a hospital. Instead, they issued him an inhaler, attributing his chest pain to his age, history of smoking, or inclement weather. A month later, Kirk collapsed and was transferred to a local hospital. There, doctors discovered a total obstruction of one of his coronary arteries.

Kirk received treatment and survived. When he sued the medical staff involved in his care, the defense argued that Kirk "appeared stable and they were trying different treatments and medications to address his symptoms." The judges of the 7th Circuit found that under the deliberate-indifference standard, the "disagreement" between the hospital doctors and the prison's health providers over Kirk's medical needs was insufficient for an Eighth Amendment claim. He lost the case.

Beth Hardtke, a spokesperson for the Wisconsin Department of Corrections, declined to comment on the Kirk case but said the department "strives to provide the same quality of healthcare as is available in our communities."

In at least a dozen cases BI examined, outside medical authorities, such as hospital doctors, testified that the medical treatment prisoners received was substandard. Yet such testimony rarely persuaded judges that claims had met the deliberate-indifference bar.

One particular case stood out. In late 2010, Dr. Jerry Walden, a physician who'd once served as chief medical officer at a federal prison, was asked by the family of a Michigan prisoner, who had advanced hepatitis C and end-stage liver failure, to advocate on his behalf. After reviewing the medical records, Walden wrote to the Michigan Department of Corrections that the prisoner, Kenneth Rhinehart, who had been serving time for murder since 1973, needed specialized acute care and that if prison administrators were unable to provide it, they "should seriously consider pursuing a medical commutation for this very ill man."

Rhinehart was never offered medical release, and medical staffers at the G. Robert Cotton Correctional Facility continued to delay his treatment. His medical appointments were rescheduled and canceled. His repeated petitions for care were dismissed or ignored. In March 2011, Rhinehart sued, asking the court to compel doctors with Prison Health Services — the private company that then provided medical care to Michigan prisons and later merged with Corizon — to offer care that would prolong his life.

Months later, in June, Rhinehart was rushed to the emergency room after he complained of severe abdominal pain. Arteries in his esophagus had burst — a complication of advanced liver failure, hospital doctors later said. Rhinehart underwent emergency surgery to repair the tears in his throat.

An MRI scan during his hospitalization showed that a mass on his liver had grown to 11 centimeters. Walden wrote again to prison administrators. The mass might be cancerous, Walden wrote, and prison doctors had left it untreated for over a year. Rhinehart needed to be seen by an oncologist immediately.

The prison's medical contractors never scheduled the appointment.

Not long after, the arteries burst again. He woke in his cell doubled over in pain. Blood poured from his mouth and nose, nearly filling a small trash can in his cell. He had a second emergency surgery. To decrease his chances of another bleed, Dr. Lynn Schachinger, who performed this surgery, recommended Rhinehart be transferred to an acute-care facility for the installation of a stent. Rhinehart's condition was serious, Schachinger wrote to Rhinehart's prison doctors, and without further treatment he might "bleed to death."

Corizon doctors refused to authorize the stent procedure, and Rhinehart was sent back to prison instead. When a colleague of Schachinger's insisted on documenting the prison's decision to withhold care, Jeffrey Stieve, then the prison's chief medical officer, balked. "I believe he was threatening me and the department with his refusal to accept our primary management of the patient," Stieve wrote in Rhinehart's medical file.

Stieve and the Michigan Department of Corrections did not respond to requests for comment. A spokesperson for YesCare (formerly Corizon) declined to comment on individual cases but said the correctional healthcare industry "is filled with mission driven professionals who are committed to serving incarcerated individuals, many of whom have never received healthcare in their life, within a challenging prison environment."

By February 2013, Rhinehart's disease was consuming him. He died after a Corizon provider gave him a high dose of morphine. An autopsy commissioned by Rhinehart's family listed the cause of death as an overdose.

Rhinehart's brothers continued his federal case, accusing Corizon, the company's health providers, and other defendants of inflicting pain, depriving their brother of potentially life-prolonging treatment, and then giving him a lethal morphine dose. In court filings and depositions, Walden, Schachinger, and three other outside doctors all testified to the profound inadequacy of Rhinehart's care, saying his treatment "constituted cruel and unusual punishment."

Corizon doctors argued in court filings that Rhinehart's prognosis was poor and his suffering would have been acute with or without the treatment delays. They argued that the stent procedure would not have prolonged his life and their treatment plan of beta blockers, pain medication, and 24-hour surveillance was sufficient.

Judges of the District Court for the Eastern District of Michigan and the 6th Circuit appeals court nevertheless found that the Corizon doctors had provided constitutionally adequate care. Their decision not to install a stent boiled down to a "mere difference of doctors' opinions," so they had not been indifferent to his suffering.

Hesitation by the courts

The Supreme Court's deliberate-indifference standard hinges on something that, the data shows, is nearly impossible to prove: mindset. Judges are asked not only to assess the cruelty of what a prisoner experienced but to decide whether that harm was the result of someone's reckless disregard. In doing so, judges have accepted the slightest bit of care as evidence that prison healthcare providers were doing an adequate job.

Mark Mann's experience in the Florida prison system echoed Kenneth Rhinehart's. Mann first complained of stomach cramping and blood in his stool in May 2014. Prison doctors ordered an abdominal X-ray and stool screenings, which returned normal results. As Mann's abdominal pain continued over the next two years, according to medical records, prison medical staff ordered X-rays and lab work but did not conduct a thorough oncological screening. The prison doctor gave diagnoses first of hemorrhoids, then of acid reflux. He prescribed Imodium and Maalox. It wasn't until June 2016, after Mann repeatedly complained of "extreme pain," that the prison's doctor ordered a CT scan.

Mann had Stage 4 colon cancer.

In 2019, Mann sued Corizon and Centurion Health, the private companies then contracted to provide care in Florida prisons, and his prison doctors. He called an expert witness, a colon and rectal surgeon, who described Mann's doctor as "grossly negligent" for failing to order further tests over a period of two years as Mann's cancer progressed.

A spokesperson for Centurion declined to comment on Mann's case but told BI that "Centurion seeks to improve the lives of all those entrusted to our care."

Corizon called an expert witness, too, a family and internal medicine doctor, who said Mann was appropriately treated and a colonoscopy was not warranted given that Mann was young — he was in his 30s at the time — and had no risk factors for colon cancer. Centurion said its medical providers gave Mann continuous care, diagnosed his disease, and "were not indifferent to Mann's cancer" but rather "helped cure it." (Mann has since died.)

Eleventh Circuit judges found that this scope of care, including the X-rays and lab work, was enough. The treatment Mann received may have violated the "applicable standard of care," the judges said, but Mann's symptoms had been addressed with both testing and medication. "When a prison inmate has received medical care," the judges said, citing an earlier decision, "courts hesitate to find an Eighth Amendment violation."

Beverly Martin, a former federal appeals court judge, reviewed Cox's case in 2019, the same year Mann filed suit. "The law was exceedingly tough on prisoners back in 2019," she told BI. "And I think it has gotten tougher since then."

The judicial hesitation to second-guess medical providers was visible in another case the following year, when a group of prisoners at Federal Correctional Institution Elkton, a low-security prison in eastern Ohio, sued the federal prison system at the start of the pandemic. They asked the court to order the release of medically vulnerable prisoners and mandate additional COVID-19 safety precautions. By the time they filed suit in April 2020, three men at the facility were already dead. Hundreds of other prisoners were believed to be infected. The prisoners won a preliminary injunction requiring the prison to evaluate medically vulnerable prisoners for temporary release. But the Bureau of Prisons got the injunction reversed on appeal.

The 6th Circuit Court agreed with defense arguments that since the prison had implemented an "action plan" of sorts — including issuing each prisoner two paper masks and a 4-ounce bottle of soap each week — the bureau had not been indifferent to the spread of the deadly virus among the 2,300 men trapped in Elkton's crowded housing units. The case eventually settled, with the bureau agreeing in May 2021 to track COVID-19 infections at the facility.

Ben O'Cone, a spokesperson for the bureau, declined to comment on specific cases but said the bureau is committed to upholding prisoners' constitutional rights and makes "every effort to provide essential medical, dental, and mental health (psychiatric) services."

BI identified nearly 200 cases in the sample in which courts found that prisoners had suffered serious harm — including heart failure and untreated cancer — but struck down their cases on mindset alone. In more than 250 other cases, federal judges never made a finding on the objective severity of the harm, deciding solely on the basis of mindset that no constitutional violation had occurred.

In 2023, most malpractice suits in the United States settled, and the average medical malpractice payout was about $400,000, according to a federal database. A 2019 study of insurance claims calculated that the average payout for grievous malpractice — such as a cancer misdiagnosis — was above $700,000.

In the handful of settlements in BI's sample in which the damages were disclosed, the settlements were far smaller. Leaving aside two cases in which prisoners died, no settlement over inadequate care was larger than $45,000, and many were for far less.

One of these cases was filed by a woman incarcerated at Coffee Creek Correctional Facility in Oregon. Her 2017 civil filing said that after a fellow prisoner sexually assaulted and beat her in the shower, corrections officers responded to her screams for help by pepper spraying her and putting her in solitary confinement. The pepper spray, she said, left her with excruciating blisters on her underarms, under her breasts, along her cesarean-section scar, and on her genitals. For over a week, while locked in solitary, she begged for medical treatment without response.

In 2023, she reached a settlement for $251 in damages.

The Coffee Creek defendants denied in court filings that they'd withheld medical care, saying the prisoner was "seen numerous times by medical following the incident." In settling, they admitted no wrongdoing; the Oregon Department of Corrections did not respond to requests for comment.

Medical attention without medical treatment

The most frequent repeat defendants in BI's sample were not individual doctors and nurses, but for-profit companies such as Wexford, Centurion, CoreCivic, and the private-equity-backed Wellpath and Corizon (now YesCare) that receive multimillion- or billion-dollar contracts to provide medical care in state prisons.

As defendants in prisoner suits, the companies have an advantage over individuals: To win an Eighth Amendment claim against a contractor, a prisoner must prove their suffering was due to a company policy or custom. In BI's sample, private medical contractors almost never lost.

In a strongly worded 2022 decision in a class action suit in Arizona, a district judge found that the state, in partnership with Wexford, Corizon, and Centurion, had provided "plainly grossly inadequate" healthcare. She mandated the creation of new policies to force both "quantitative and qualitative" improvements in care and appointed a court monitor.

Such court outcomes are extremely rare.

Of the 210 cases in BI's sample that named private medical contractors or their employees, the defendants prevailed 84% of the time. Almost all of the remaining cases settled.

A 2020 New York University Law Review article argued that the PLRA and the Supreme Court's deliberate-indifference standard had effectively shielded private medical contractors from large liability damages, court monitoring, or other significant forms of federal judicial oversight — and that this had shifted companies' cost-benefit analysis. "The absence of any true threat of legal action exacerbates this environment of unaccountability," Micaela Gelman, then an executive editor of the law review, wrote, and "leads to dangerous, ineffective healthcare that is shielded from constitutional challenge."

Gelman further argued that the low chance of facing penalties, combined with pressure from state agencies to cut costs and pressure from investors to maximize profits, had incentivized private companies to cut corners.

A spokesperson for Centurion, a defendant in 16 cases in BI's sample, said it was "spot on" that funding levels for prison healthcare lagged behind marketplace costs but added: "Any assertions that denying care or using staff with insufficient licensure or credentials to increase profit are patently false. Not providing the very services a company is hired to provide is not a sound, long-term business model for any company in any industry, particularly healthcare."

Ryan Gustin, a spokesperson for CoreCivic, a defendant in seven cases in the sample, said, "We take seriously our role and responsibility to provide high-quality comprehensive medical, dental, and mental-health care to every individual," noting that medical personnel were onsite 24/7 and worked closely with outside hospitals and specialists.

In a 2009 review of cases filed on behalf of Massachusetts prisoners alleging inadequate medical care, Joel H. Thompson, the managing attorney at the Harvard Prison Legal Assistance Project, found evidence that in fact private contractors had exploited the deliberate-indifference standard to avoid accountability. He found that private contractors delayed medical testing when it might have led to diagnoses that would obligate them to pay for more advanced care; that they avoided referring patients to expensive specialists or outside facilities; and that they conducted routine examinations documenting patient complaints but rarely prescribed further medical intervention.

They provided medical attention without providing medical treatment, he concluded. And the courts signed off.

Prisoner court filings describe all of these patterns at Wexford, one of the nation's largest prison health providers. The privately held company was a defendant in 94 suits across eight states in BI's sample — nearly half of the cases with private-sector defendants.

Several of the suits, according to one federal judge, accuse Wexford of running a business designed "to skimp on medical care in order to enrich themselves" by means of chronic understaffing, routine delays in critical cancer screenings and necessary surgeries, and declining to provide even basic medical treatment. As with the other private companies, Wexford typically prevailed. The company settled one in five cases in BI's sample, mostly for undisclosed amounts and all with no admission of wrongdoing, and lost two cases outright. In one case, Wexford paid $155,000 in damages to the widow of an Illinois prisoner, William Kent Dean, who died of kidney cancer after Wexford doctors delayed lifesaving care.

Wexford did not respond to requests for comment.

A 2018 decision by the 7th Circuit appeals court in a case filed by Kelvin Norwood, then incarcerated at another Illinois prison, Stateville Correctional Center, was typical. Norwood's knee was badly injured, and he had sued Wexford, several Wexford employees, and other defendants for providing him with inadequate medical care for a tear in his meniscus, severely damaged cartilage, and a partially ruptured Baker's cyst. His claim had failed against all of the defendants at the district court.

In his appeal, Norwood argued that two Wexford healthcare providers, Dr. Parthasarathi Ghosh and a physician assistant, had prescribed insufficient pain medication and delayed or withheld critical treatment, including medically necessary surgeries and assistive devices such as a brace and a cane. They had done so for eight years, Norwood said, years marked by intense pain.

"Norwood has been the victim of serious institutional neglect," the judges found. "These delays look like features of the Wexford system of healthcare, rather than anything Dr. Ghosh controlled." Still, they decided in the defendants' favor, finding that Ghosh and the PA had not been indifferent because they had provided ongoing care.

Neither Ghosh nor his attorneys responded to requests for comment.

Ghosh was a defendant in multiple cases in BI's sample, though he always prevailed. And he was not alone. Dozens of prison healthcare workers were repeat defendants. The two doctors with the most complaints were, like Ghosh, employed by Wexford.

One, a doctor named Saleh Obaisi, was sued by Illinois prisoners nine times over five years over claims that he'd provided inadequate medical care, delayed essential surgeries, or failed to treat crippling pain. In each case Obaisi denied he'd been indifferent to his patient's medical needs, and he prevailed in all but three.

Vipin Shah, another Illinois doctor employed by Wexford, appeared as a defendant in eight cases. Shah was accused of providing inadequate care for severe infections and, like Obaisi, delaying necessary surgeries. Shah also denied each time that he'd been indifferent; he prevailed every time.

Despite these red flags, Obaisi remained employed with Wexford until his death in 2017, and Shah, according to court filings, remained on Wexford's payroll until July 2021, a year after the last of the eight complaints against him was filed.

Shah, Obaisi's estate, and their attorneys did not respond to requests for comment.

Wexford was the company in charge of Cox's care at Martin Correctional Institution that spring of 2015.

Wexford misses 'red flag' symptoms

The morning after Cox died, Silvis, the nursing director, began to ready charges against Conrad with the Florida nursing board. He thought her failure to provide CPR constituted a violation of her medical license.

That day, March 16, 2015, he called Wexford, his employer, to report what had happened and inform them of his decision. Silvis' manager told him not to report Conrad, who was at the time employed by a Wexford subcontractor. Instead, Silvis recalled, the manager asked him to quietly bar Conrad from ever returning to work at Martin.

Wexford wanted it buried, Silvis thought. How could you protect a nurse who went against practice and cost someone their life?

Less than three months later, Wexford did fire someone — and it was Silvis.

On June 10, he wrote to a Florida state investigator to report the Cox incident and charge that "upper mgt at Wexford is not concerned with inmate care or safety." The state investigator closed Silvis' complaint against Wexford, saying the allegations had previously been addressed in two related cases. Conrad was barred from working at any Florida state prison, according to the investigative report, and she was later fired from her job at the nursing temp agency. In a deposition, Conrad said she retired.

In addition to Silvis, BI spoke with three other former Wexford healthcare providers. All four described the company's cost cutting as extremely dangerous. They said the company drove revenue by chronically understaffing facilities and retaliating against staff who reported lapses in care.

One of those providers was a 16-year prison nursing veteran named Tracie Egan, who found a job as a health-services administrator with the company at Southern New Mexico Correctional Facility in Las Cruces, New Mexico, in April 2022. She said she knew almost immediately that she'd made a mistake.

On her first day, she expected training. Instead, she told BI, she got a pile of outdated policy manuals and a chilly welcome. Within a few days, multiple nurses quit. By her first weekend, Egan was left with a skeletal medical staff to serve nearly 1,000 men, many of whom were on complex combinations of medication or had significant medical needs.

In a suit Egan later filed claiming retaliation, she said she was soon working 19-hour shifts, scrambling to sort pills and handle prisoner sick calls. Sixteen nurses short of a full staff, she was drowning. Routine care was falling through the cracks, she said in court filings. Without dedicated nurses to administer the prison's pharmacy, medications were haphazardly stored, sorted, and distributed, increasing the risk of mix-ups or accidental overdoses. Men sometimes went weeks without their pills and longer without nurse's visits.

She asked Ronald Martinez, then the prison warden, for more staff, training, and resources. In October 2022, she said in court filings, she reported the facility to the state pharmacy board for what she said was a lack of safety precautions in the handling of medications. Then she appealed to Wexford's regional managers. Her daily requests turned into desperate pleas. She told Martinez and her regional managers that she considered the situation extremely dangerous, both for herself and for the people in her care.

She said that Martinez responded by criticizing her job performance and that her Wexford regional managers refused to take remedial action.

Martinez did not respond to requests for comment. Brittany Roembach, a spokesperson for the New Mexico Corrections Department, noted that Martinez and the department were recently dismissed from Egan's lawsuit and said that the agency "remains committed to the health and safety of our inmates and to maintaining high standards of care within our facilities."

Egan said she returned home after one shift, about six months into her job, feeling demolished, only to find two $50 gift cards and a signed note from a Wexford official, Jim Reinhart, thanking her for sticking with the job. "Wexford appreciates everything you are doing to try and fix Southern," Reinhart, who is now Wexford's director of business affairs and transitions, wrote. "Most people would have walked away by now but somehow you have stuck it out."

Reinhart did not respond to requests for comment.

She felt proud and even hopeful. She decided to email Reinhart directly, according to her complaint, alerting him to her working conditions and asking for assistance.

Egan was fired shortly after. In court filings, Wexford denied that Egan was insufficiently trained, that her workplace was unsafe, and that the company had failed to respond to her requests for support. Wexford said any harm that Egan suffered was caused by Egan's conduct alone. Egan's retaliation suit against Wexford remains ongoing.

A December 2023 monitoring report, the result of a consent decree requiring Illinois to improve care in the state's prisons, where Wexford runs medical operations, documented the company's routine failure to meet its medical care obligations. The report describes a litany of preventable deaths and critical lapses in treatment.

The Illinois Department of Corrections did not respond to requests for comment.

The monitor reviewed records of 107 prisoner deaths in the state from 2021 to 2023 and identified nearly 900 treatment deficiencies. Over and over, Wexford doctors and nurses did not recognize or treat "red flag" symptoms; chronically delayed or denied treatments, tests, and referrals to specialty care; and failed to provide basic emergency medical care such as taking vital signs or calling 911.

In dozens of cases, the report found, men and women under Wexford's care were subjected to prolonged treatment delays. A critical lack of staff, the report said, may explain the "widespread and therefore systemic" deficiencies. As of June 2023, the report said, Wexford had failed to fill even half of its contractually obligated medical positions.

In December 2023, Illinois state officials awarded Wexford another five-year contract worth more than $4 billion.

'There was nothing more I could do'

In the months and years after Cox's death, the state's investigative report and subsequent court filings laid out the events of his final hours in granular detail.

At 7:28 p.m. on March 15, 2015, Carolyn Conrad, the Wexford subcontractor, entered Cox's cell at Martin Correctional Institution. She noted his stilled chest and blood trickling from his nose and mouth. Two corrections officers told a Florida state investigator they saw Conrad search for a pulse at Cox's wrist. In a later deposition, Conrad said she also checked Cox's pupils, looked for breath or other signs of life, rubbed her knuckles against his sternum to check for reflexive movement, and administered a few chest compressions, though the officers who were present recall none of this.

"He's dead," she told them, and exited the cell.

Cox's mother, Monica Stone, commissioned an independent review of the autopsy report by a forensic pathologist. He noted that Cox's brain had swollen against his skull, an indication, he said, that Cox's heart was still beating for an indeterminate period of time after he was attacked. Whatever chance Cox had of survival was lost when no one gave him CPR. That failure, the pathologist wrote, was "grossly negligent and should be considered as contributory to his death."

Five minutes after Conrad left, two other licensed practical nurses arrived sprinting into his cell. They started chest compressions and ordered officers to call 911. Paramedics arrived at 8:16 p.m. and, nearly an hour after Conrad and the corrections officers first saw that Cox was unresponsive, they declared him deceased.

Cox's mother, Monica Stone, sued Conrad, the prison warden, the corrections officers who first arrived at his cell, and the secretary of the Florida Department of Corrections in 2017. She argued that they'd violated her son's constitutional rights by withholding critical medical care.

Conrad had told Florida investigators that she had not received any training from the prison or from her employer, the nursing temp agency contracted by Wexford. In her subsequent court deposition, Conrad said she did not knowingly withhold care because she genuinely thought Cox was dead.

"I believed there was nothing more I could do," she said.

Shaniek Mills Maynard, a magistrate judge, did not find a constitutional violation. Conrad may have been negligent, she reasoned, but if the licensed practical nurse genuinely believed him dead, she had not been deliberately indifferent to his suffering.

A district judge, Robin L. Rosenberg, concurred. In the eyes of the courts, Conrad's failure to give CPR was not constitutionally inadequate care. The District Court for the Southern District of Florida granted summary judgment to every defendant.

On appeal, the judges of the 11th Circuit found Conrad's decision to withhold care "regrettable and potentially tragic."

"But there is nothing in the record," they said, "indicating that it was made in bad faith."

It rained heavily the night before the retaking of New York's Attica Correctional Facility. A guard, William Quinn, had been killed. Negotiations had ended. The men on the D yard waited for the inevitable.

Four days earlier, on September 9, 1971, 1,281 prisoners had wrested control of Attica, taking 42 prison staffers hostage and delivering a manifesto demanding humane treatment including adequate healthcare, independent oversight, and an end to racial discrimination.

"We are men," said L.D. Barkley, one of the leaders of the revolt. "We are not beasts, and we do not intend to be beaten or driven as such."

In the early-morning light on September 13, men in D yard heard the thrum of a helicopter as it flew over Attica's 30-foot stone walls and flooded the yard below with tear gas. Steady gunfire from ground forces tore through the gas clouds, chipping the concrete and shredding the bodies of hostages and prisoners alike. Terrified, the men desperately searched for cover. They found none. One prisoner was shot 12 times at close range by two separate guns. Another lay dying of a gunshot wound when a New York state trooper stepped up to finish him off, firing buckshot directly into his neck. A paramedic later testified he saw a trooper execute a prisoner begging for help at point-blank range. State troopers and corrections officers fired nearly 400 shots, killing 39 people — 29 prisoners and 10 prison staff — and wounding 89 more.

The surviving prisoners were corralled and moved to A yard, stripped, and ordered to lie face down in the mud. If they moved, troopers beat them and threatened to shoot them where they lay. Hours later, still naked, they were ordered to stand and run, hands above their heads, through what judges would later refer to as the "gauntlet" — a tunnel leading inside that was lined with troopers and corrections officers. They struck prisoners with clubs and hurled racist epithets. Many prisoners stumbled to the ground and ended up crawling on pavement littered with shattered glass. Once inside, officers threatened some prisoners with castration. Others they forced to play Russian roulette with live ammunition or lined up against the wall in mock executions.

It took nearly three decades for the surviving D yard prisoners to reach a final resolution on their claims that those nightmarish days and nights constituted "cruel and unusual punishments," in violation of the Eighth Amendment. In the intervening period, a series of new laws and legal standards changed the landscape for incarcerated plaintiffs. The Supreme Court introduced one standard in 1976, further codified in 1994, that prison officials violate the Constitution only when they are "deliberately indifferent" to a prisoner's suffering. And in 1986, the court granted broad protections to law enforcement, as long as their actions were not "malicious and sadistic." Guards, the justices found, often had to make decisions "in haste, under pressure, and frequently without the luxury of a second chance."

One set of claims, over the failure of New York's corrections commissioner, Russell Oswald; Attica's warden, Vincent Mancusi; and other senior officials then in charge to provide adequate medical care and prevent retaliatory violence by officers after the uprising was quelled, was decided on the new deliberate-indifference standard. Those claims settled in 2000 without state officials admitting any wrongdoing; damages were capped at $10,000 for anyone not subject to torture, serial beatings, or gunshot wounds.

Another set of claims, covering the planning and execution of the retaking itself, was decided in 1991 on the malicious-and-sadistic standard. The plaintiffs' lawyers argued that the standard had been met, as defendants were responsible for the "wanton infliction of pain and suffering for the purposes of 'maliciously and sadistically' punishing rebellious prisoners."

The judges of the 2nd Circuit disagreed. Aspects of the plan, such as declining to give prisoners an ultimatum before opening fire or allowing correctional officers to participate in the retaking "despite the extreme hostility the officers bore toward the prisoners as a result of the takeover," might constitute negligence or even indifference, Judge Jon O. Newman wrote. But that was not enough, without evidence that those elements were designed to wantonly inflict pain. "Tactical decisions needed to be made," he wrote, and courts cannot substitute their own judgment for that of law enforcement officials on the ground.

One of the most infamous campaigns of state violence against incarcerated people in US history did not, in the eyes of the court, constitute cruel and unusual punishment.

A lone prisoner victory

Senior corrections officials agree that physical force is sometimes necessary to maintain order and safety for both staff members and the prisoners in their care. If prisoners are harming themselves or another person, for example, quick intervention can be critical.

Training documents Business Insider obtained from 37 state departments of correction show that officers in most states are guided to use the minimum amount of force necessary to maintain order. Many departments train officers on de-escalation techniques meant to defuse violence before force is necessary and instruct them to use force "only as a last resort."

But in the 50 years since the Attica uprising, many corrections departments have failed to check staff violence when it tips into excess. Government oversight reports and journalistic investigations over the years have documented systemic abuse in multiple state prison systems: guards brutalizing incarcerated people in New York state, a pattern of sexual assault committed by prison staff in California, and a culture in Alabama prisons in which "unlawful uses of force" were common, including two beating deaths by staff in 2019 alone.

In the face of these institutional failures, federal courts have declined to step into the breach. BI analyzed a sample of nearly 1,500 Eighth Amendment lawsuits, including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards. Of these, 208 cases involved claims of excessive force.

In analyzing these cases, BI found that courts have often sanctioned extreme acts of violence by guards against prisoners. Dozens of plaintiffs in BI's sample said they were beaten while immobilized in restraints. Another dozen said they were subjected to racist abuse or threatened with retaliatory violence. Others said they were placed in life-threatening chokeholds or hit with plastic or rubber bullets shot at such high velocity they cracked femurs and skulls. Multiple people said they were sexually abused by prison staff, including two while in restraints. All of these plaintiffs lost their cases.

Judges dismissed many excessive-force claims under strict administrative requirements imposed by the Prison Litigation Reform Act, a 1996 federal law designed to curb "frivolous" prisoner lawsuits. Judges dismissed others for failing to meet the malicious-and-sadistic standard, or due to doctrines that protect law enforcement officials like prison guards. Judges rarely questioned the authority of prison staff to determine when a use of force was justified.

Sixty-one of the excessive-force cases, almost a third, settled. Only one of the excessive-force plaintiffs, Jordan Branstetter, won his case in court.

In that case, Branstetter said a corrections officer at a state prison in Hawaii had viciously assaulted him for nearly 20 minutes, punching him in the back of the head as he curled into a fetal position on the floor, then kneeing him in the back, breaking two ribs, and choking him.

The Hawaii Department of Corrections and Rehabilitation did not respond to requests for comment.

Less than a third of the cases reached settlements — far less than is typical for civil suits filed in the outside world. Of the excessive-force settlements made public, two were for more than $1 million, but the typical award was about $9,000. None of those cases involved an admission of wrongdoing. Whether for technical reasons or because they viewed the use of force as necessary, federal courts across the country offered impunity to officers accused of excessive force the vast majority of the time.

In September 2022, Judge James Jones of the District Court for the Western District of Virginia ruled that officers at Virginia's Red Onion State Prison were justified in deploying a dog to attack Cornelius Lightfoot. Two officers, thinking Lightfoot had a weapon, tried to frisk him and, when he resisted, tackled him to the ground; a handler then allowed his dog to tear open the flesh of Lightfoot's thigh. An incident report showed that Lightfoot was unarmed by the time the dog attacked; he said in his complaint that the officers had acted in retaliation, taunting him just before the attack that the dog would get his "grievance-filing ass."

The officers said they thought Lightfoot had posed "a serious threat to staff safety." Jones reviewed surveillance footage and determined that Lightfoot was resisting the officers as they tried to subdue him and dismissed the case, ruling that "no reasonable jury could find that any of the defendants used physical force or the canine 'maliciously and sadistically to cause harm.'"

The UCLA law professor Sharon Dolovich discussed the malicious-and-sadistic standard in a 2022 Harvard Law Review article. "That this standard is intrinsically defendant friendly," she wrote, "is undeniable."

Jones, and every other judge mentioned in this story, declined to comment on the record for this story or did not respond to queries. Kyle Gibson, a spokesperson for the Virginia Department of Corrections, declined to comment on the Lightfoot case but said that the agency had "zero tolerance for excessive force or abuse" and that violators "are disciplined according to agency operating procedures."

At about the same time as Jones' ruling, judges with the 5th Circuit appeals court ruled that five officers at a Texas prison known as Coffield Unit were justified when they pepper-sprayed a prisoner who had refused to leave his cell, then put him in a chokehold and wrestled him to the ground. The prisoner, Robert Byrd, was serving a life sentence for capital murder; as he was splayed under the weight of four officers, a fifth officer smashed his outstretched arm with a riot baton, breaking a bone.

While officers later photographed a wooden shank they said was recovered from Byrd's cell, an internal prison investigation determined that Byrd was restrained and unarmed when he was struck and that at least one officer, the one wielding the baton, had deployed excessive force. Still, the appeals court decided that even if Byrd was unarmed, he was violently resisting, so force was "obviously necessary." All the officers had deployed force, Judge Stuart Kyle Duncan wrote in the majority opinion, "in a good-faith effort to maintain or restore discipline."

Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice, said the video footage of the incident was key to the state's case because it showed a "'hostile, combative, utterly noncompliant' prisoner who was committed to violent resistance."

"We are to accord prison officials 'wide-ranging deference,'" Duncan, one of the 5th Circuit judges who heard Byrd's case, wrote, quoting case precedent. "The Supreme Court has told judges not to micro-manage the force necessary to quell such volatile situations."

Judges dismissed other cases on technicalities.

In August 2022, D'Andre White, a prisoner at Ionia Correctional Facility in Michigan, filed suit claiming that, earlier that year, he'd been shackled by his hands and feet in a bathroom stall during a court appearance when he asked a guard to uncuff one hand so he could more easily use the toilet. The guard refused, White said, then grew irate at how much time White was taking. White said the guard then grabbed him by the throat, slammed him to the ground, kicked him repeatedly, and dragged him to the court's holding cell.

Robert Jonker, a judge in the District Court for the Western District of Michigan, ruled against White, finding that he had not fulfilled his prison's internal grievance process before filing suit, as required by the PLRA.

The Michigan Department of Corrections did not respond to requests for comment.

Two years later, in 2024, Judge Christine O'Hearn of the District Court for the District of New Jersey dismissed the case of Tyrone Jacobs, a federal prisoner who said that four officers had retaliated against him for filing complaints against the prison. He said the officers handcuffed him, pulled him from his cell, and, out of view of surveillance cameras, slammed his head against the wall and dragged his face along the concrete. Jacobs said one officer screamed, "I will fucking kill you."

Because Jacobs had missed a deadline to appeal his internal prison grievance, O'Hearn decided in favor of the defendants.

A 'good-faith effort' to restore discipline

In BI's sample of excessive-force lawsuits, one facility stood out: California State Prison, Sacramento, popularly known as New Folsom. The vast complex surrounded by steel fences and guard towers was built in the 1980s, just across from the Gothic granite tower of Old Folsom, the site of Johnny Cash's legendary 1968 live album. The new facility has a reputation for violence. California Department of Corrections and Rehabilitation data shows corrections officers there deployed force at a far higher rate than any other California prison over the past decade. In 2023, the most recent year for which data is available, New Folsom officers used force — fists, baton strikes, pepper spray, or high-velocity less-lethal ammunition — in nearly 700 documented incidents. That's nearly twice a day. By comparison, officers at the California City Correctional Facility, a high-security facility in Southern California that was recently decommissioned, used force 192 times — less than four times a week.

Violence by guards at New Folsom sparked three complaints of excessive force in BI's sample; all of the plaintiffs lost.

The allegations contained in the legal complaints, together with evidence from state oversight reports and criminal cases against former officers there, hint at a corrections culture in which casual violence prevails and retaliatory cruelty often goes unchecked.

Terri Hardy, a spokesperson for the California Department of Corrections and Rehabilitation, emphasized that in each California case mentioned in this story, the department prevailed, and said the department "takes every allegation of employee misconduct seriously."

One complaint describes an incident that took place in February 2015, in New Folsom's C yard, where a man named Tshombe Kelley, who was serving 52 years for murder, approached a group of officers to ask a question. When he and another prisoner didn't immediately comply with an order to back away and drop to the ground, incident reports show, officers swiftly reacted. One officer, who said he saw Kelley clench a fist, blasted him in the face with pepper spray. Kelley said he reeled back and stumbled to the ground; officers said he again failed to comply with an order to lie flat. Two other officers then deployed physical force, an incident report shows; Kelley said they punched him, kicked him, and dragged him in the dirt. Transcribed surveillance video describes the officers wrestling Kelley into handcuffs and pinning him down with their knees on his shoulder and back, as he pushed against their combined weight.

An officer heard him plead, "I can't breathe."

Instead of easing up, officers deployed a spit mask, a cotton bag that covers the face and head. Blinded and panicked, his throat burning from the pepper spray, Kelley later said, he lost consciousness.

Kelley sued and lost. Officers said in court filings that they feared Kelley and another prisoner might attack them; they said Kelley had refused a direct order to hit the ground and resisted their attempts to restrain him, and only one recalled hearing Kelley say he couldn't breathe. Surveillance video showed that as Kelley was pinned down — and struggling to breathe — he arched his back and thrashed his legs. Carolyn Delaney, a magistrate judge with the District Court for the Eastern District of California, found that the officers' use of force was necessary to combat Kelley's "ongoing resistance."

Judges also sided with guards who injured prisoners they didn't perceive to be resisting.

In October 2020, less than a year after Kelley's case was dismissed, a prisoner named Nathanael Carter Jr. noticed a fight erupt in the New Folsom B yard, according to his civil suit. Guards ordered all prisoners to the ground. Carter immediately complied, dropping to his stomach, arms spread-eagled. From the guard tower, an officer fired two less-lethal rounds from his state-issued 40 mm launcher into the crowded yard, according to multiple incident reports. Both shots missed the men fighting. But one round smashed into Carter's skull, leaving a hematoma the size of an egg and triggering migraines, blackouts, and memory loss.

Like Kelley, Carter lost his case. He'd argued in court filings that he was an innocent bystander who was shot despite "getting on the ground following instructions." The guard said he'd hit Carter by accident, and Dennis Cota, an Eastern District magistrate judge, ruled that the use of force related to "the prison's legitimate penological interest in maintaining security and order."

In more than a dozen cases in BI's sample, judges found that the question of whether a use of force was malicious and sadistic was immaterial, as long as officers were doing their job.

Federal courts grant broad protections to law-enforcement officers for actions taken "under the color of law" — in the line of duty.

That's how one California prisoner's case failed before the District Court for the Eastern District of California. In his complaint, the prisoner said that six corrections officers at a federal prison in Atwater in April 2021 threw him to the ground, handcuffed him, and slammed his head against the wall before dragging him to a holding cell where they physically and sexually assaulted him while calling him racist slurs.

Magistrate Judge Stanley Boone recommended dismissal of the case, finding that any remedy the court might impose "risks interference with prison administration." District Judge Jennifer Thurston agreed and dismissed the case.

Ben O'Cone, a spokesperson for the Federal Bureau of Prisons, did not address the Atwater case but said the agency "does not tolerate excessive use of force" and thoroughly investigates all allegations of employee misconduct.

Cases against corrections officers run into another set of challenges under the doctrine of "qualified immunity." Unless a court has previously found that a particular use of force constituted a constitutional violation, a defendant is given the benefit of the doubt under the doctrine. The Supreme Court standard, established in 1967 and refined in 1982, shields public officials from civil liability when they're legitimately acting in the line of duty. The standard has drawn national attention as an obstacle to police accountability. In prisons, BI has found, qualified immunity has also protected corrections officers who have been accused of excessive force.

That's how things played out in court in the wake of a December 2016 incident at the Darrington Unit, now called Memorial Unit, in East Texas. That day, a prisoner named Marquieth Jackson threw water at a corrections officer passing by his solitary-confinement cell. Incensed, the officer brandished his pepper spray and threatened Jackson. He then spun and blasted a prisoner in a nearby cell in the face at point-blank range.

Why he did so is contested: The officer, Tajudeen Alamu, said that after he was doused with water, he ran for cover by the cell of the other prisoner, Prince McCoy Sr. Alamu said that McCoy threw something that hit him in the face — court documents later identified it as a wad of toilet paper — and that his mind then "went blank" and he reacted instinctively. McCoy denied throwing anything and said Alamu attacked him in anger "for no reason at all."

Alamu did not respond to requests for comment by phone and mail.

After losing at the district court level, McCoy appealed and got a rare finding from the judges of the 5th Circuit. They decided that Alamu had been "malicious and sadistic" in his use of force, in violation of the Eighth Amendment. But after finding that no previous case in the 5th Circuit had established that pepper spraying a man confined in his cell constituted excessive force, they granted Alamu qualified immunity.

"How could any guard not know that an unprovoked use of pepper spray is unlawful?" Gregg Costa, one of the appeals court judges, wrote in a furious dissent. "Yet the majority concludes it would have been reasonable for a guard to think the law allowed him to gratuitously blind an inmate."

The other judges' reading of the qualified-immunity standard, Costa wrote, "ensures vindication of the most egregious constitutional violations."

McCoy appealed, and the case made it to a jury, which again found for the defendant. But the jury disagreed with the 5th Circuit on one critical point: The pepper-spray deployment, they found, had not been malicious and sadistic.

A culture of silence

This pattern of rejection by the courts is especially devastating to prisoners, given how hard it is for them to file suit in the first place.

For nearly 30 years, thanks to the PLRA, any prisoner who wants to file an excessive-force claim has to first file an internal grievance — a petition to prison administrators to address violations committed by their staff. But it can be dangerous for prisoners to report an incident involving the very officers who control every aspect of their daily lives. The cases BI reviewed contain multiple claims of retaliation against prisoners who decide to complain.

One complaint, filed by a New Folsom prisoner named Christopher Elliott, offers a window into the ordeal prisoners often face when they seek redress.

In January 2021, Elliott tried to raise an excessive-force complaint, filing a grievance that said a corrections officer had shoved him onto the concrete floor of his cell and jumped on him while his legs were shackled and his arms were cuffed behind his back. Medical records show a laceration on his left hand, which he said got pinned behind him in metal cuffs, spattering blood across the floor.

After Elliott filed the grievance, he said in a court filing, the corrections officer returned to his cell to issue a threat: If Elliott didn't stop pursuing the grievance, the officer would force Elliott to perform oral sex on him — and order Elliott killed.

When asked about allegations of violent retaliation by prison staff, Hardy, the California corrections spokesperson, said the department had "fundamentally reformed" its approach to investigating allegations of staff misconduct and had deployed body cameras and audio surveillance to "create an environment in which incarcerated and supervised persons are comfortable raising concerns without fear of retaliation."

Akiva Israel, a transgender woman who was incarcerated at another California men's prison, Mule Creek, filed an internal grievance in April 2021 accusing an officer named J. Padilla of threatening to sexually assault her. She said other gay and transgender prisoners immediately warned her to be careful: Reporting the officer might invite even worse consequences.

Israel later filed a civil complaint saying that a week after she submitted the internal grievance, officers handcuffed her and brought her to a prison administrator's office where they hurled transphobic and homophobic slurs and again threatened her with sexual violence. "You fuck with Padilla," she quoted one officer saying, "You fuck with me."

She said the officers then marched her to solitary, stripped her naked, threw her to the floor, and kicked her in the head. They then yanked her off the ground, she said, suspending her by the metal cuffs, causing "excruciating agony," and slammed her to the concrete floor.

Kimberly Mueller, a judge with the District Court for the Eastern District of California, dismissed Israel's case without prejudice on a technicality. Handling her case without an attorney, she had missed a deadline to file an amended complaint while being treated for breast cancer.

In Elliott's case, Kendall Newman, a magistrate judge in the same court, also recommended dismissal on technicalities: Elliott might have a case, Newman said, but he had not signed his complaint filing and his claims of retaliation were unsupported by evidence.

It has become so rare for the courts to find constitutional violations that the wins send shock waves through prison communities. On October 17, 2022, William Shubb, a senior judge in the Eastern District, sentenced a former New Folsom guard, Arturo Pacheco, to 12 years in prison for knocking the legs out from under a handcuffed 65-year-old prisoner who landed face-first on a concrete walkway, breaking his jaw. The prisoner, Ronnie Price, suffered a pulmonary embolism and died two days later.

In the lead-up to Pacheco's sentencing, a New Folsom prisoner named Mario Gonzalez fired off an urgent letter to Shubb, saying Pacheco and another indicted officer "know more than what they've shared." He said many more staff there should be prosecuted, including corrections officers who he said "cuff us and beat us" and lieutenants who he said had lied in incident reports to cover up excessive force.

In an earlier civil suit, Gonzalez said he'd reported to his prison psychologist that a group of officers was committing "illegal beatings of fellow inmates" and that he feared for his safety. Soon after, he wrote, four officers cornered him in his cell: One put Gonzalez, who then used a walker, into a headlock, wrenching his spine backward until he feared it would snap. Three others kicked him in the ribs, torso, back, and groin, then scooped urine and feces into his mouth.

"My back was broken. My ribs were broken," Gonzalez wrote to Shubb, injuries that he had documented in his civil suit and in prison grievances. "I have night terrors at least 4-5 times a week. I also cannot get that piss and shit taste out of my mouth." He said he reported the incident but believed no internal investigation had taken place. His case was dismissed repeatedly over six years while he was in prison, most of the time without a lawyer. He wrote to Cota, the Eastern District magistrate judge, alleging that officers were retaliating against him for being outspoken by locking him in solitary confinement and inciting fellow prisoners to attack him.

"I pray you please take action cause my life is endangered," he wrote in one letter.

Still, his complaint languished. Only after Gonzalez got a new lawyer and was released from prison in the fall of 2023 did Cota allow his case to continue. (The case remains ongoing.)

The California state prison system has been under official scrutiny for decades, springing from a 1995 decision by a federal judge finding a pattern of egregious violence perpetrated by guards at Pelican Bay State Prison, some 380 miles northwest of New Folsom, in violation of the Eighth Amendment. California prison officials, the judges found, "permitted and condoned a pattern of using excessive force, all in conscious disregard of the serious harm that these practices inflict."

It remains the only case decided under the malicious-and-sadistic standard to spark significant prison reforms in the state.

The court mandated a suite of new oversight mechanisms, including the appointment of a special master and a new use-of-force action plan.

Nearly a decade later, the special master issued a scathing evaluation: California prison officials had deliberately misled the court by filing false or misleading reports. The report found that administrators had endorsed a "code of silence" — an informal but aggressively policed policy under which corrections officers refuse to report misconduct to avoid being labeled "a rat."

The special master found California's entire system for investigating and disciplining officers accused of excessive force was "broken to the core." The court ordered a new plan, which included direct oversight and annual reports from the state's inspector general.

The special master's mandate has long since expired. Yet the inspector general's annual reports continue to identify severe deficiencies in how California prisons deploy and investigate the use of force.

In 2023, the most recent year examined, the inspector general reviewed 730 use-of-force incidents and identified 225 that appeared to involve staff misconduct, including 82 incidents where staff may have deployed excessive force. Prison officials initially failed to refer nearly half of those 225 incidents to internal affairs for investigation, including incidents involving the potential use of excessive force and those involving the potential withholding of medical treatment or failure to follow protocol.

The inspector general found that officers repeatedly failed to turn on their body cameras, sometimes wrote misleading or blatantly untrue use-of-force incident reports, or failed to report deployments of force at all. In the vast majority of cases, supervisors rubber-stamped the use of force as acceptable, often without interviewing the prisoner in question or reviewing all of the available video evidence. Even after the inspector general's investigators identified cases that appeared to involve excessive force, they found that prison officials sometimes declined to open internal affairs investigations into the officers involved.

These patterns had been long documented. In each of the five years preceding 2023, the inspector general found that California prison staff appeared to have violated use-of-force policies in at least 40% of the hundreds of incidents the office reviewed. Each year, the office also found significant deficiencies in how managers investigated use-of-force incidents — and found that supervisors regularly declined to take action against officers who deployed "unreasonable force."

If the courts were expected to provide a backstop, they failed.

Over the same five years in BI's sample, no federal judge found for the plaintiff in a single excessive-force claim filed by a California prisoner.

Over the past decade, Minnesota's prisons have experienced officer assaults, lockdowns, and chronic staffing shortages. They have faced allegations of substandard medical care, inhumane living conditions, sexual abuse by guards, and retaliation against prison employees who have sounded the alarm. "It's a very sick system," one former lieutenant told Business Insider. Officers "have each other's back," she said, "even if that means lying."

Within this troubled system, officers and prisoners said one facility has stood out: Minnesota Correctional Facility–Rush City.

A former Rush City therapist described it as one of the state's most dangerous prisons, and a former corrections officer there recalled near-daily fights. "The staff up there are a bunch of cowboys," a former Rush City lieutenant said. Officers there "go hands-on much quicker than they would at any other facility," he added. "It was a culture that was just ingrained from the day it opened."

The first lieutenant, who spent a year at Rush City, described the place as a "time bomb."

The routine brutality earned Rush City a moniker: Gladiator School.

Despite the frequent violence, Dario Bonga, a longtime Rush City prisoner, said one assault, in particular, had stuck with him. It was the day a prisoner bashed in James Vandevender's head.

Bonga was one of six prisoners and officers who said the attack was so brutal they still remembered it over a decade later.

A methodical attack

On June 8, 2012, Vandevender, then 25, had only a few months left on his yearlong sentence over assaulting someone during a fight. He and Bonga were working that day in the prison's industry area, folding balloons, when Bonga was startled from his work by a loud thud. A prisoner had swung at Vandevender's head with a four-by-four wooden post. Bonga watched in shock as the man, later identified as Mark Latimer, continued his methodical attack.

Surveillance footage obtained by BI corroborates Bonga's account. It shows Latimer pick up an unsecured wooden board from a shelf in the woodworking area, drop it, and walk away. A few seconds later he's back, and this time he quickly pulls out a wooden post. No officers are visible in the video; the unguarded woodshop wasn't operating that day.

In the surveillance footage, Latimer saunters several hundred feet across the workshop with the four-by-four. No one tries to stop him — no corrections officer; no one from Minncor Industries, the corrections division that oversees prison labor — as he approaches Vandevender's worktable, hoists the post over his shoulder, and begins to swing.

Only after the sixth blow — after Vandevender has collapsed onto the table, bleeding from his nose and mouth, and after Latimer has slipped into the crowd of panicked men — do officers come running.

Later, at the hospital, a doctor told Vandevender's mother, Peggy Vandevender, that her son had a 20 to 30% chance of survival. He spent 45 days in a coma and woke up 40 pounds lighter. His face was numb, and he couldn't speak or read. He thought he had a prison softball game that weekend, not processing that he had been in the hospital for a month and half.

Years later, the effects of Vandevender's traumatic brain injury persist. Tests indicated a decline in cognitive function. Seizures have forced him to take epilepsy medication. Deep depression sent him in search of meth, which landed him at Rush City again.

When Vandevender arrived back, about four years later, Bonga thought he was seeing a ghost. No one thought he could have survived that beating.

'Unacceptable' risks

In 2018, Vandevender filed a lawsuit alleging that prison officials, by failing to protect him from the attack that day, had violated his Eighth Amendment rights to be free from "cruel and unusual punishments." His attorneys argued that officials had been aware of the risks: For several months before the assault, officials had specifically instructed prisoners to pile and store the boards in an unsecured area that was accessible to prisoners, against prison policy. Vandevender's complaint said that in the weeks before the attack, a prisoner had warned a guard that "the open pile of wood was a threat to the health and safety of all of the inmate population and could be used as a weapon against him and other inmates." The prisoner said the guard told him it was none of his business and "not to worry about it."

There was reason for concern: Vandevender's complaint cited an incident in which, he said, one Rush City prisoner had assaulted another with the wooden handle of a pitchfork, "causing serious head injuries." When, six years after Vandevender's assault, a corrections officer named Joseph Gomm was killed by a prisoner wielding a sledgehammer taken from a work area at another Minnesota prison, Gomm's family sued, alleging a "long-standing culture" in which Minncor's revenue was prioritized over safety.

"Had there been more staff, had there been more cameras out there, absolutely Officer Gomm would not have been killed," a former Rush City corrections officer told BI. "Same thing with Vandevender."

Aaron Swanum, an information officer for the Minnesota Department of Corrections, said that among Minncor staff, only production supervisors are required to receive security training. At Rush City, he said, there is just one.

After reviewing the circumstances surrounding Vandevender's attack for his case, Tim Gravette, a corrections consultant, concluded that Rush City staffers were negligent for failing to properly follow state correction policies, and that if they had, Latimer couldn't have attacked Vandevender in the way he did. "I find the lack of work material accountability to be unacceptable practice," he wrote.

Paul Schnell, Minnesota's corrections commissioner, said that while he couldn't comment on Vandevender's case because it predated his tenure, "obviously we want to be in a place where we're trying to take the steps to keep people safe."

He said that since he became commissioner in 2019, he'd established an Office of Professional Accountability to address employee complaints, revived an independent ombudsman office to address internal grievances, started a body-camera pilot program, and, in the wake of Gomm's murder, increased the number of staff and cameras in the industry area of the prison where he died. The department confirmed that there have been no such changes at Rush City.

Whether a prisoner wins or loses a lawsuit, Schnell said, "we're certainly looking at our practices no matter what."

He said that "everything's incremental" when it comes to corrections reform.

"The challenge is that we were struggling to get our staffing complement up in general, so while we may have put more bodies in Minncor, we were shorter elsewhere," he said. "It's always give-and-take."

A guardrail against cruelty

From its beginnings, the Eighth Amendment was understood as a guardrail against unabashed cruelty; by the mid-20th century it was also being used to push back against inhumane prison conditions, violence, and medical neglect. Then, in the 1980s and 1990s, as mass incarceration was on the rise, the Supreme Court issued a series of opinions that shifted the focus away from these underlying abuses to the question of prison officials' intent.

In practice, these decisions made it difficult for prisoners to assert their constitutional rights.

One of those pivotal cases was 1994's Farmer v. Brennan. The court unanimously ruled that prison officials were liable for Eighth Amendment violations only if they acted with "deliberate indifference" to a prisoner's suffering. To meet this standard, Justice David Souter wrote, prisoners must show that officers were aware of and disregarded a serious risk of harm, saying this approach "comports best with the text of the Amendment." Officials were now on the hook only if they had the knowledge that a particular harm would occur if they didn't act.

While Souter said a court could infer awareness if the risk was obvious, the standard still required incarcerated plaintiffs to marshal proof of something ineffable — a prison official's inner thoughts.

Business Insider's analysis of a sample of nearly 1,500 Eighth Amendment cases — including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards — shows that mindset has become an extremely difficult standard to meet. For the vast majority of prisoners in BI's database who filed their suits without counsel, proving mindset can be almost impossible — 85% of their cases decided under the deliberate indifference standard lost.

All of the remaining pro se cases settled, often for modest amounts.

"However obvious the circumstances, people may at times remain oblivious," Sharon Dolovich, a law professor at UCLA, wrote in an anthology on the Eighth Amendment. "And when this is true of prison officials, no constitutional liability may lie, however 'soul-chilling' the conditions."

Deference to officials, coupled with "the long and troubling history of unspeakable maltreatment against incarcerated people by the very actors charged with their protection," she wrote, has created a landscape where "the power that prison officials have over incarcerated persons is sure to be abused."

In BI's sample, a few attorneys successfully proved mindset, sometimes by obtaining explicit circumstantial evidence, such as email exchanges introduced in the case of one Illinois prisoner that show prison healthcare providers floated the possibility of sending him to hospice care after his oncologist recommended treatment that would cost $15,000 a month. But such cases were rare.

Few sitting judges would comment to BI about the deliberate-indifference standard; some did not respond to interview requests, while others declined to comment. One who did, Lawrence Piersol, a federal judge in South Dakota, decided a case under the standard filed in 2020 by a prisoner named Jason Dunkelberger. While incarcerated at the South Dakota State Penitentiary, Dunkelberger said, the tips of his fingers were severed by a metal shear in the prison machine shop that he'd never been trained to use; in a deposition, he said he was told he'd be sent to solitary if he refused the assignment, given to him by a fellow prisoner put in charge by the machine shop's supervisor. He said he waited 90 minutes before being sent to the hospital, where the fingers were amputated.

The South Dakota Department of Corrections did not respond to requests for comment.

In his lawsuit, Dunkelberger argued that prison staff had violated his constitutional rights by failing to keep him safe. Because the directive to use the machine had come from a prisoner, and not an officer, Piersol ruled that officials couldn't be considered deliberately indifferent. Piersol said his decision spoke for itself, but he agreed to comment on Eighth Amendment cases generally.

"It's difficult for a prisoner to succeed," Piersol said. "But sometimes there are some decent settlements."

Dunkelberger's claim couldn't meet that high bar. Vandevender's didn't either.

Donovan Frank, a federal judge with the District of Minnesota, granted the prison officials qualified immunity in the Vandevender case, finding that he had failed to prove they "were subjectively aware of a substantial risk posed by the wooden boards." Even if they should have known that leaving them unsecured violated Rush City's tool policy, Frank wrote, that "does not satisfy the subjective-culpability requirement."

He dismissed the case before Vandevender could take discovery.

After Vandevender appealed, the 8th Circuit agreed with Frank, deciding that Vandevender was the victim of a surprise attack and that corrections officers therefore could not have violated his rights by failing to protect him. The court determined that the prior assault with a wooden pitchfork handle hadn't signaled a "pervasive risk."

When BI spoke with Mark Bradford, Vandevender's attorney, two years after he lost the case, he seemed defeated.

"I'm not sure what more you could possibly do to show deliberate indifference," he said. "It really is a troubling standard that the 8th Circuit has employed here."

Appended to the appeals court's judgment is a separate opinion, authored by Judge Jane Kelly, who wrote that she concurred only because she was bound by 8th Circuit precedent. "Our caselaw may set the bar too high for the typical inmate to sufficiently plead prison officials were deliberately indifferent to a substantial risk of serious harm in a case like this one."

'The easiest lie to tell'

The Eighth Amendment cases BI reviewed include claims of untreated cancers and heart disease, retaliatory beatings, sexual assaults, limb amputations, and prisoners wasting away in squalid cells littered with feces and dead flies. There was a New York teenager who said he was put in a vermin-infested cell in late 2021 where he was attacked by a bat and bitten by a poisonous spider, an Arizona prisoner who said in 2020 he was given only Tylenol to treat a broken jaw, and a Michigan man who filed a complaint in 2019 saying his eyesight deteriorated because prison doctors refused to conduct cataract surgery. Again and again, courts dismissed these cases, finding that prisoners had failed to meet the deliberate-indifference standard. The standard introduced three decades ago by the Supreme Court — and its interpretation by federal courts in the years since — has created formidable obstacles to accountability in this country's prisons.

The Arizona Department of Corrections, Rehabilitation & Reentry did not comment on the broken-jaw claim but said that Gov. Katie Hobbs had appointed a new corrections director, Ryan Thornell, in January 2023 "to make needed changes to the correctional system" and that he was ensuring "high-quality, patient-centered care and wellness are becoming standard practice." The New York and Michigan corrections departments did not respond to requests for comment.

Of the cases in BI's sample, 1,361 were argued under the deliberate-indifference standard. Only 10 plaintiffs prevailed in court; another 164 cases settled without the prison admitting liability. All 10 of the successful plaintiffs were among the minority in the sample who were represented by counsel.

David Fathi, the director of the National Prison Project at the ACLU, told BI the standard has been "an enormous barrier to justice for incarcerated people." If prisoners encounter conditions that are "inhumane, unhealthy, dangerous, or even lethal," he argued, "that should be enough to violate the Eighth Amendment — you shouldn't have to go looking for someone who was thinking bad thoughts."

David Shapiro, the executive director of the Chicago Lawyers' Committee for Civil Rights, has litigated dozens of Eighth Amendment cases on behalf of prisoners.

"I didn't know this person was going to get attacked by another incarcerated person," he said of defenses under the deliberate-indifference standard. "I didn't know that this person was having chest pains because they were experiencing a heart attack."

As long as prison officials assert that they didn't know about the risk, he said, a federal court will rarely find an Eighth Amendment violation.

"What is the easiest lie to tell?" he said. "I didn't know."

'A dark and evil world'

For generations, the federal courts took a mostly hands-off approach to conditions in America's prisons. That changed in the wake of the Civil Rights Movement, as judges began to issue Eighth Amendment rulings that secured key rights for prisoners.

In 1970, for instance, a federal judge put every Arkansas prison under court order, calling the state system "a dark and evil world completely alien to the free world." Six years later, another federal judge found prisons in Alabama "wholly unfit for human habitation" in violation of the Constitution.

About this time, a Texas prisoner named J.W. Gamble sued his facility over inadequate medical care, arguing that officers had failed to treat his intense pain after a 600-pound cotton bale fell on him during a work assignment. While the Supreme Court found that Gamble's constitutional rights hadn't been violated, the 1976 decision, written by Thurgood Marshall, established that prisoners have a right to medical care under the Eighth Amendment.

"Deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,'" Marshall wrote. "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met."

It was a consequential decision. It was also, fatefully, the court's introduction of the phrase "deliberate indifference."

"There it sat," John Boston, the former director of the Prisoners' Rights Project of the New York City Legal Aid Society, said, "extremely vulnerable to a more conservative court coming along and trying to define it downward in ways disadvantageous to prisoners."

That shift occurred quickly. As President Ronald Reagan ramped up the war on drugs, legislators from both parties, committed to a tough-on-crime agenda, began to pass a raft of criminal-justice measures. The impact of these policies is now well known. In less than 30 years the country's penal population grew sixfold to a peak of more than 2 million, leaving the US incarcerating more people than any other country.

The critical Farmer v. Brennan case came when Dee Farmer, a transgender woman, filed a claim saying federal prison officials had failed to protect her from sexual assault. In an interview, she described how, after being raped by another prisoner at knifepoint, she was sent to segregation for over a year.

When Farmer won her case before the Supreme Court, it was hailed as a major victory for transgender rights. The decision also cemented the current deliberate-indifference standard.

Farmer's lead attorney, the ACLU's foremost prison expert, Elizabeth Alexander, argued that the standard should hinge on what officials had the professional responsibility to know. The solicitor general, Drew Days III, disagreed, contending that officials should be held liable only for risks they were aware of. "Petitioner's 'should have known' approach ignores the 'deliberateness' requirement of the 'deliberate indifference' standard," he wrote in his brief.

The Supreme Court agreed with Days, finding that officials were liable only if they personally knew of and disregarded the risk, regardless of the gravity of the harm to the prisoner.

Some issued warnings at the time. Michelle Alexander, the noted civil-rights lawyer and author, who was then a clerk for Justice Harry Blackmun, suggested that the majority opinion "would allow a prison official to argue to the jury that although a particular risk of harm was plainly obvious, and a reasonable prison official would have been aware of it, he wasn't."

In his own concurring opinion, Blackmun described the new standard as fundamentally misguided. "A punishment is simply no less cruel or unusual because its harm is unintended," he wrote.

Alexander, in a recent email, described the decision as one of many during that period that created what she called "unconscionable obstacles to meaningful relief for people ensnared by our criminal injustice system."

Vandevender is one of hundreds of prisoners in BI's sample for whom those obstacles were insurmountable. Prisons are inherently dangerous places, the 8th Circuit concluded in his case, and "inmates bent on assaulting other inmates will use even the most harmless objects as weapons."

Judge James Loken, who authored the majority opinion, wrote that, for Vandevender, "the outcome was tragic, and an assault with this weapon was, in hindsight, no doubt avoidable."

Still, he concluded by quoting the Farmer decision, writing, "an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of Eighth Amendment punishment."

A fiancée's warning

Six years after Latimer's assault on Vandevender, Rush City experienced another violent attack. This time, officials were repeatedly warned of the risk.

Trina Murray was at home in bed one night when she got the call. She was confused; her daughter never phoned that late. She listened with a rising panic as she learned that her only son, David Hodges, had been assaulted at Rush City.

Hodges is a large man, tall and broad-shouldered, with the word "family" inked onto his right forearm. But Murray still worried about his exposure to violence when, in 2011, he was sent to prison for sexual assault. She knew what Minnesota's prisons could be like, having worked in two of them.

She tells one story from when she was an officer at Minnesota Correctional Facility–Lino Lakes, a medium-security prison outside Minneapolis, in the 1990s. There, in her telling, she witnessed a group of officers placing bets on how many prisoners they could send to solitary confinement. When she reported the behavior, she became the target of a campaign of retaliation. The officers, all men, followed her to her car. They called her the N-word, she said, and told her to go back to Africa. Later someone threw a rock through the window of her home. Eventually, she quit.

After the call that evening in September 2018, she scrambled to learn what had happened to her son. In incident and investigative reports, Hodges claimed that another prisoner, Courtney Osgood, had entered his cell with a shank, angry that Hodges had refused to pay off a debt owed by Hodges' cellmate. Osgood grabbed Hodges' locs, ripping some out, and attempted to stab him. Hodges, who had been making coffee on a small hotplate, threw the boiling water at Osgood, who raced out of the cell.

Prison officials weren't aware of the altercation, according to an incident report, until Hodges' then-fiancée called the prison, concerned about his safety. Once alerted, Hodges' subsequent civil complaint said, they sentenced Osgood to 20 days in segregation — and gave twice that to Hodges. Gene Olson, a prison lieutenant who investigated the incident, said in a deposition that he couldn't prove Hodges' account of the attempted stabbing because officials couldn't track down the shank. Osgood also denied Hodges' account in a message to BI, calling it a "fabricated narrative."

In segregation for about six weeks, locked in a tiny cell, the lights on 18 hours a day, Hodges said, he obsessed about one thing: what was waiting for him when he got out.

"It's prison politics 101, if I assault you and I hurt you real bad, you're looking to get your lick back," he said. "Needless to say, I'm a big guy, and I know this time he was coming with help."

Hodges begged officers to move him to a different unit, verbally and in writing. Murray, his mother, along with his fiancée, his sister, and his grandmother, called and wrote over a period of six weeks to the prison and to state corrections headquarters, imploring officials to take action because they feared for his life. "What exactly must he do to get a transfer to another facility for his safety?" his fiancée asked in a late-October email to the warden at the time, Jeffrey Titus. "Why must something really bad happen before he is taken seriously."

Every prison in Minnesota has an incompatibility-review committee composed of prison staff that meets to decide whether particular prisoners pose a risk to each other and need to be separated. Their deliberations, a former corrections staffer at Rush City told BI, are usually documented in great detail. Rush City's panel, which included Olson, had met in late September 2018 and decided that Hodges and Osgood didn't need to be separated. Ashlee Berts, a corrections program director who oversaw the committee, said in a deposition two years later that no notes were kept to explain their rationale. She said she didn't remember who was on the committee, whether it had convened in person or over email, and what was discussed. Olson said under oath that, despite the pleas from Hodges and his family, he didn't believe Hodges faced any threats.

Schnell, the corrections commissioner, said he expected his staffers to fully document incompatibility reviews. "It's news to me that there wasn't that information," he said of Berts' claim that no records were kept. "We want to be in a position where we can say that we have documentation that we did that and the basis for it."

In early November, just hours after Hodges was released from segregation, Osgood and a fellow prisoner assaulted him in the living unit, throwing a mixture of hot water and capsaicin, a chili-pepper extract, in his face. Surveillance video shows Hodges trying to escape as the two men come toward him. They land a series of punches as Hodges waves his arms in a futile attempt to make contact with his assailants. His eyes were blinded and burning, he told BI, saying it felt like an eternity before officers arrived. Medical records show he suffered a nasal fracture, second-degree burns, and an eye injury.

Ten days after the assault, the committee made a new determination: Hodges and Osgood were incompatible, and Hodges' transfer request was granted.

Almost five years later, Hodges discussed the incident while sitting in an empty visitors' room at Minnesota Correctional Facility–Moose Lake, a state hospital turned prison an hour north of Rush City. The window blinds concealed a barbed-wire fence just outside. He wears wire-framed glasses now, to help with the blurred vision he's lived with since the attack. "I had a lot of sleepless nights," he said. "Every time I think about the situation, I'll have flashbacks." In a July 2019 incident report, an officer described finding him crying in the midst of an anxiety attack.

Like Vandevender before him, Hodges filed a lawsuit alleging that prison officials at Rush City failed to keep him safe.

With Vandevender, the court's ruling hinged on the fact that he'd experienced a surprise attack. But the attack on Hodges came after a campaign of urgent warnings that he feared for his life.

The defendants argued that launching the incompatibility review was itself proof they hadn't been deliberately indifferent to Hodges' welfare. A federal judge, Wilhelmina Wright, accepted the officers' claim that they had determined in good faith that Osgood no longer posed a threat.

"The fact that this conclusion proved to be incorrect does not demonstrate that Defendants recklessly or intentionally ignored an obvious risk," Wright wrote in deciding in the officers' favor. The 8th Circuit — the same appeals court that decided Vandevender's case — agreed with Wright on appeal, finding that the officials had simply "predicted incorrectly." Hodges' claim failed.

A modern-day 'Lord of the Flies'

The sample BI analyzed is full of cases in which officers failed to act on warnings that prisoners were at risk.

Marc Bakambia, another Rush City prisoner, said that after a group of prisoners beat him up and threw him over a railing, he was placed in their same unit and assaulted again, leaving him with bone fractures and a traumatic brain injury. Craig Shipp claimed he had sought orthotic shoes for his diabetes and degenerative joint disorder but Arkansas prison and medical staff denied his repeated requests; he said he eventually developed an infection severe enough to result in the amputation of his right foot. Mitchell Marbury claimed he requested a transfer after a friend warned him that a fellow prisoner was out to get him; he said an Alabama corrections officer laughed and told him to get a shank. Less than a week later, he said, he was stabbed in the facility's day room.

The Arkansas and Alabama corrections departments did not respond to requests for comment; the Minnesota corrections department did not comment on the Bakambia case.

"Marbury's argument is essentially that every prisoner who tells prison officials about an unspecified threat from an unspecified inmate without more is entitled to protective custody or a transfer," 11th Circuit judges wrote in the majority opinion. "Our caselaw establishes a higher standard for deliberate indifference."

"The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies," Judge Robin Rosenbaum wrote in a scathing dissent. By not holding officials responsible, she said, "the Majority Opinion condones this behavior and ensures it will occur again."

In reviewing Hodges' appeal, Kelly, the 8th Circuit judge, wrote her own opinion, as she had in the Vandevender case. She disagreed with how her colleagues assessed the question of mindset, writing that a committee finding alone should not release prison officials from liability. She also noted that "the absence of documentation regarding prison decisions or prison officials' inability to remember events central to their decision-making process may be relevant," raising the question of whether those gaps could have been deliberate.

Many corrections officers are made aware of the mindset standard. BI requested officer training materials from every state prison system and obtained them from 37 — most of which explicitly trained on deliberate indifference. Taken together, the documents indicate that the standard, as interpreted by federal courts, could encourage prison staff to remain incurious about what goes on in their facilities.

As Oregon's training materials say, "basically, deliberate indifference is a cognitive choice to do what you did."

Fathi, of the ACLU, reviewed a sample of the training materials BI obtained and said the guidance might lead officers "to act in ways that violate people's rights and that harm people very severely."

Many of the materials, he said, appear to train officers to treat prisoner complaints with suspicion. In a 2021 Mississippi slide deck, for instance, corrections officials were told prisoners try to compromise their integrity "as entertainment and for their amusement" or "to facilitate an escape, assault, rape or murder." A slide in a 2018 Utah training PowerPoint displayed the header "inmates do crazy things… then sue YOU for it."

"It's good to train them on the law," Fathi said. "But they should also make clear that we expect more than the absolute minimum that's required to avoid violating the Constitution."

Memory issues

On a muggy June morning in 2023, as the sun was just beginning to peak out in Euless, Texas, James Vandevender was already up in his father's modest one-story house in the Dallas suburb, pouring himself a cup of coffee. He had moved there from Minnesota, after his last prison stint, looking for a fresh start.

He was dressed in khakis for his job installing high-end appliances. A tattoo of his son's name showed below his shirt sleeve, and a scar cut across his cropped brown hair.

He moved through the same routine as every morning: packing his lunchbox, scarfing down breakfast, and swallowing an array of anti-seizure pills and antidepressants.

Still, that day, he forgot to put the ice pack in his lunchbox and had to redo it. When he headed outside to toss out the trash, he couldn't remember where he stowed the garbage bins. By the time he and his coworkers gassed up and headed off to the first house, Vandevender had misplaced his phone.

As they wrapped up their first job and headed back to their truck, Vandevender realized he'd left his tool bag inside.

At the next house, the men were tasked with installing a mounted range hood they'd never encountered before. It was a tricky job, Vandevender said. By late afternoon, visibly frustrated, he called the installation a "fucking joke."

His coworker Mike, in a black baseball cap to protect from the sweltering sun, took a breather in the driveway, away from the tension inside. "He's been having memory issues all day long. It's an everyday thing," he said of Vandevender. "That's when he gets frustrated."

Ashley Christen, the mother of Vandevender's 20-year-old son, said that when the two of them were growing up in rural Minnesota, Vandevender was smart and quick-witted, known for delivering the best one-liners. As a kid, he loved to hunt and spend time on his grandfather's dairy farm; his mother, Peggy, said he was fun and lovable, always offering to help out around the house.

But since the assault, they both said, he's struggled to communicate. He's forgetful, irritable, and prone to snap. Peggy said he relied on scribbled notes to get through the day.

"It shouldn't have happened," she said. "It was because of their lack of watching the people," she added. "It was due to their negligence."

On a recent fall afternoon, 12 years after Latimer bludgeoned him with the wooden post, Vandevender sat down with a friend to watch surveillance footage of the attack for the first time. He doesn't remember anything from that day; his first recollection is waking up weeks later, confused and shackled, in a hospital bed flanked by corrections officers.

"I just want to make sure you're mentally prepared to see it," the friend told him, before pressing play. "I want to," Vandevender said.

When the video finished, there was a long silence.

Eventually, he started talking. He said the footage took him back to his time in prison — the smell, the barbed wire, the disrespect. He said that he noticed Latimer picked up the post from an unauthorized part of the industry area, where prisoners weren't allowed, and that any unused lumber should have been disposed of. He said he felt the weight of what it must have been like for his mother, when she got the call every parent of an incarcerated child dreads.

When asked about the life he could have had, the one where he got out of prison at age 25 without the burdens of a traumatic brain injury, he struggled to respond.

"I don't want to talk about it," he said.

Nearly three years into Bill Clinton's first term as president, US senators took to the floor to tackle an urgent concern. Prisoners across the country were filing too many lawsuits.

"The vast majority of these suits are completely without merit," Sen. Orrin Hatch, the Republican chair of the Judiciary Committee, said in September 1995. "It is time to lock the revolving prison door and to put the keys safely out of reach of overzealous federal courts."

Sen. Harry Reid, who would go on to become the Senate Democratic majority leader, ticked off a litany of ridiculous cases he said were clogging up the nation's courts. There was the Missouri prisoner who sued because his facility didn't have salad bars on the weekends. And the Nevada prisoner who said his constitutional rights had been violated when he received chunky peanut butter — not smooth — from the prison canteen.

"And to think, we, the taxpayers, are paying for all of this," Reid said.

Reid and Hatch were speaking in support of the Prison Litigation Reform Act, introduced by the most powerful man in the Senate at the time, the Republican Bob Dole. Dole, then the majority leader, had pitched it as a common-sense reform that would sharply curb such "frivolous lawsuits." Hatch insisted it wouldn't affect prisoners who raised legitimate claims.

The National Association of Attorneys General helped craft the legislation and circulated top-10 lists of "frivolous" prisoner lawsuits, including the complaints about salad bars and peanut butter, to garner support. A few attorneys general — from red and blue states alike — took their case to The New York Times. "We feel strongly that convicted criminals should not be granted unlimited free access to our courts to conduct their costly and most often frivolous lawsuits," they wrote.

"It was about resources," a former attorney general who backed the legislation said. "You are just struggling to run what was then the state's largest law office. So to me it was a question of degrees. Let's find some balance and look at cases that need to be looked at and get rid of steak and wine and peanut butter cases."

Some elected officials issued warnings. Sen. Ted Kennedy of Massachusetts called the bill "patently unconstitutional," and Joe Biden, then a Delaware senator, said it placed "too many roadblocks to meritorious prison lawsuits." But it passed easily, buried in an omnibus appropriations bill, with little legislative debate about its potential repercussions.

In April 1996, Clinton signed the PLRA into law.

A separate system of justice

While it had never been easy to file a lawsuit from prison, the rules of play had been roughly the same as for any other indigent person seeking redress in court. The PLRA changed that, effectively carving out a separate and unequal system for prisoners.

Prisoners could now win monetary damages only if the harm they endured was physical, rather than mental or emotional. Strict caps on attorney fees discouraged lawyers from representing prisoners, leaving the vast majority of plaintiffs, many without a high-school diploma, to file on their own.

Many prisoners would no longer get their day in court: A judge or staff attorney would screen cases before any evidence could be presented or any motions could be made. If the screener deemed a case frivolous or decided it had failed to clearly state a constitutional claim, the judge could simply dismiss the case. A prisoner who had three suits dismissed in this way — the "three strikes" rule — would be barred from filing another without paying prohibitive court fees.

Crucially, any claims that made it to court would be dismissed if a prisoner could not show they had exhausted their prison's internal grievance process — procedures that a number of state corrections departments have turned into arcane, highly technical affairs.

"In a busy court, there's a template to get rid of the cases," Nancy Gertner, a former federal district judge in Massachusetts, said of the PLRA, "and invariably they're gotten rid of."

The senators were right that there had been an uptick in prisoner lawsuits. But that increase closely tracked the rise of the prison population as the war on drugs and punitive sentencing laws more than doubled incarceration rates from 1986 to 1996, the year the PLRA became law.

Reid had compared prisoners to "an alcoholic locked inside a liquor store," abusing the nation's legal system with easy access to the courts. But legal scholars have found that the rate of prisoner legal filings had actually stayed relatively consistent.

In fact, Margo Schlanger, a law professor at the University of Michigan, found that in the year before the PLRA was signed into law, prisoners filed a similar number of lawsuits per capita as people on the outside.

Within five years of its passage, prisoner suits dropped by 43%, even as the prison population continued to grow, according to Schlanger's research. Schlanger examined prisoner filings again in 2022 and found that the filing rate never rebounded.

Cases that prisoners have filed since the law's passage, she found, have struggled to succeed. To understand why, Business Insider analyzed a sample of nearly 1,500 federal cases alleging "cruel and unusual punishments" in violation of the Eighth Amendment, including every appeals court case we could locate with an opinion filed from 2018 to 2022 citing the relevant Supreme Court cases and standards.

Some were filed by former prisoners after their release, or by their families, who were not bound by the PLRA. But in an examination of the roughly 1,400 cases filed by people while they were imprisoned, the impact of the PLRA jumped out — 27% of those cases failed because of the law's requirements.

In BI's district court sample, the PLRA's effects were more dramatic — 35% failed because of the law.

A few dozen of the claims BI examined appeared to center on minor matters: For instance, an Indiana prisoner claimed he developed a rash after he wasn't allowed to shave, an Alabama prisoner said he was served undercooked food, and a Michigan prisoner sued saying he'd been denied shoes while being held in a dirty shower. But the vast majority clearly involved claims of substantive harm. Among them were dozens of claims that prisons had allowed retaliatory beatings, stabbings, sexual assaults, and egregious forms of medical neglect.

These include the case of Kenneth Coleman, a Florida prisoner. He said prison officials put him in the same cell as an "enemy" who later assaulted him, leaving his left eye with a sag. He lost his case for failing to complete the prison's grievance process before filing suit. They include a case out of Colorado, in which the plaintiff said she began self-mutilating after medical providers failed to dispense the hormone blockers that had been prescribed to treat her diagnosed gender dysphoria; her case was dismissed because the court ruled that self-harm didn't count as a physical injury. And they include the case of Benjamin Gottke in Louisiana, whose left leg was amputated below the knee after, he said, corrections officials failed to protect him from being assaulted. His case was dismissed at screening for failure to properly state his legal claim.

The Louisiana and Colorado corrections departments declined to comment on the record. A spokesperson for the Florida Department of Corrections did not comment on the Coleman case but said, "We ensure the safety and healthcare of our inmate population in accordance with Florida law."

When prisoners' cases are knocked out by the PLRA, they rarely succeed on appeal. Such appeals, BI found, failed nine out of 10 times.

Victor Glasberg, a civil-rights attorney in Virginia, has represented prisoners for decades and successfully litigated an Eighth Amendment case about conditions on the commonwealth's death row. "The Prison Litigation Reform Act is the worst piece of federal legislation to have been enacted in my lifetime, and I was born in 1945," he said. "It is malicious, vindictive, and grossly unfair."

An undiagnosed tumor

Kevin Harrison Jr. was 24 years old and not long into a life sentence for murder when he first noticed lumps on the left side of his chest. In July 2011, he saw Michael Hakala, a doctor at Southeast Correctional Center in Missouri who worked for a prison healthcare company called Corizon Health, now YesCare, which was then contracted to provide healthcare to the state's prisoners. In a civil complaint he would later file, Harrison said Hakala assured him that the lump was benign without ordering a biopsy.

Two years later, the lumps had grown considerably, Harrison's complaint said. During shirtless basketball games, he said, other prisoners told him he looked as if he'd been shot.

Harrison said Hakala again assured him that nothing was wrong.

More than seven years after his first appointment, in November 2018, Harrison said he was granted a visit with another doctor; that doctor also worked for Corizon. Concerned by what had become a gnarled mass, the doctor ordered a biopsy. At 31 years old, Harrison was told he had a rare form of skin cancer.

He underwent what he described as a grueling, invasive surgery that required doctors to cut deep into his pectoral muscle to remove the tumor. He wore a bandage for months as his chest slowly healed, and he lived with debilitating pain. Several years later, the muscle pain and spasms have barely abated, he said, and with his follow-up appointments often delayed he worries the cancer will return.

In March 2022 he filed suit against Hakala and other medical staff alleging that they had violated his constitutional rights by failing for years to biopsy his tumor.

His case was dismissed during screening.

Patricia Cohen, a magistrate judge for the Eastern District of Missouri, found that his handwritten complaint, filed without counsel, had failed to make a clear Eighth Amendment claim: He hadn't shown he could prove the defendants had intentionally delayed his treatment.

As in many claims dismissed at screening, the judge gave Harrison 30 days to file an amended complaint. In this case, a court clerk, Nathan Graves, said Cohen had provided Harrison with "clear instructions" for how to do so. Harrison, whose request for an attorney was denied by the judge, told BI he missed the deadline because he was locked in solitary confinement for assaulting two corrections officers. He refiled the case last year, which is still pending; the defendants have yet to respond to the underlying claims.

Tad Eckenrode, Hakala's attorney, declined to comment on the pending litigation but noted that Harrison's claims remained unproven allegations; the Missouri Department of Corrections declined to comment. A YesCare spokesperson declined to speak about Harrison's case but said by email, "Our industry is filled with mission driven professionals who are committed to serving incarcerated individuals, many of whom have never received healthcare in their life, within a challenging prison environment," adding that "ignoring the many successes and positive advancements in our industry only serve to make it more difficult to retain and recruit medical professionals to serve incarcerated populations."

Of the 376 cases in BI's sample disqualified by the PLRA, 75% were dismissed at screening, denying the plaintiffs the chance to argue their case in court — or seek discovery. Over half of those cases involved allegations of inadequate medical care, including several for potentially fatal illnesses, such as Harrison's cancer.

"As a result of the PLRA, people who have suffered horrific harm, people who have extremely meritorious and compelling cases, get thrown out of court for reasons that have nothing to do with the merits of their case," said David Fathi, the director of the National Prison Project at the ACLU. "It just tilts the playing field against prisoners across the board."

Several cases in BI's sample dismissed at screening involved claims that negligence had left prisoners with permanent disabilities. A Kansas plaintiff said one of his feet was amputated after an infection was allowed to fester; a prisoner in California said he was left with persistent migraines and dizziness after a guard, while trying to quell a fight between two other prisoners, shot him in the head. Eight prisoners who alleged that they'd been sexually assaulted had their cases dismissed at screening.

The Kansas Department of Corrections declined to comment; a spokesperson for the California Department of Corrections and Rehabilitation did not address the shooting claim but said the department had "fundamentally reformed its approach to addressing allegations of staff misconduct to enhance staff accountability and improve transparency."

A ticking clock

Prisons are hierarchical systems, largely insulated from the outside world, where corrections officers control every aspect of a prisoner's life. The PLRA effectively requires prisoners experiencing abuse or neglect to confront those officers directly, mandating that they pursue grievances internally before they have the right to seek redress in court. Prisoners in multiple cases said that requirement came with consequences.

In the spring of 2016, a Texas prisoner named Juanita Ornelas began a prolonged battle with the prison bureaucracy. Ornelas, a transgender woman who said she presents as masculine in prison for safety reasons, said she was being repeatedly sexually and physically abused by another prisoner at the William R. Boyd Unit in East Texas.

Ornelas, who was serving time on weapons charges, was required by Texas corrections policy to try to resolve the issue informally and then to submit a formal grievance, on a specified form, all within 15 days of the incident. The unit's grievance coordinator would then have at least 40 days to respond, at which point, if Ornelas wasn't satisfied, she would have another 15 days to file an appeal.

In a complaint that she would later file in the Western District of Texas, Ornelas said she had been terrified her attacker would kill her if she filed a grievance. She said that she had witnessed attacks on other people who had filed grievances and that it was common knowledge that officers at Boyd often ratted out prisoners who disclosed sexual abuse. When Ornelas finally asked an officer for a grievance form, she said in a memorandum she introduced in court, the officer refused and instead told her to stop snitching.

Desperate for help, she said, she instead submitted several I-60s — a form Texas prisoners use for routine transfer requests — to Alexander Hamilton, an investigator in the criminal justice department's office of the inspector general who had once visited the unit. Ornelas thought if she reported the assaults directly to Hamilton, she would have a better chance at getting moved out of danger.

But her I-60s to Hamilton went unanswered and the abuse continued, she said.

Amanda Hernandez, a spokesperson for the Texas Department of Criminal Justice, said that Ornelas' claims were investigated and could not be substantiated and that "the agency takes all allegations of abuse seriously," promptly forwarding them to the appropriate authorities. The office of the Texas attorney general, which represented Hamilton, did not respond to queries.

In early June 2016, officials moved Ornelas to a different prison. It had nothing to do with the rape allegations, she told BI; she'd been accused of housing a weapon in her cell, though she said it wasn't hers. There, 200 miles away, she submitted a series of grievances to document the abuse she said she experienced at Boyd. Even then, Ornelas said in her memorandum, officials repeatedly refused to process the forms or said they hadn't received them. In January 2017, she said — nine months after she had sent her first I-60 to Hamilton and four months after she went on a hunger strike — a grievance form was finally processed.

"I couldn't believe it was so hard to report something like that," Ornelas said. "They just completely ignored and disregarded the sexual-abuse report."

A year later, Ornelas filed a pro se lawsuit alleging that Hamilton had violated her Eighth Amendment rights by failing to protect her from repeated sexual assaults. Though Ornelas said the rapes were so violent they left her bloodied, the attorney general never weighed in on the underlying claims in court, focusing on Ornelas' failure to meet the deadline for submitting a prison grievance before filing suit; a district judge, Alan Albright, agreed with that assessment and dismissed her case. On appeal, the 5th Circuit ruled that even if Ornelas had followed prison protocols, she'd still lose the case: She had offered no proof that Hamilton ever saw or received the letters.

The offices of Albright and the other federal judges who presided over cases decided in this story declined to comment, didn't respond to interview requests, or, in the case of Cohen, the judge in Missouri, said the decisions spoke for themselves.

'Byzantine grievance processes'

The requirement to exhaust a prison's internal grievance system before filing suit is one of the PLRA's most significant obstacles. Of the prisoner cases knocked out by the law in BI's sample, nearly one in four failed because judges decided the plaintiff had not fully complied with the grievance process.

"The exhaustion-of-remedies requirement definitely incentivizes prison systems to create Byzantine grievance processes," Corene Kendrick, the deputy director of the ACLU National Prison Project, told BI. "If you fail to meet a single deadline, or if you worded something in a way that wasn't quite specific enough, the courts will often just throw the cases out."

Legal scholars have described prison grievance procedures as something out of Kafka.

In Colorado, for instance, a grievance can be denied if the handwriting is deemed illegible or if the prisoner uses more than "one line of dialogue" to describe the abuse allegation. In Florida, a grievance can be rejected if more than one issue is discussed in a single form. In West Virginia, only one staple may be used to attach the pages.

Many states require prisoners to use an official grievance form, which prisoners sometimes depend on corrections officers to supply. Once filed, the form may go into oblivion.

"A lot of times, especially in segregation, you give the grievance to an officer," one West Virginia prisoner told BI. "Nine times out of 10 it's going in the garbage."

Andy Malinoski, a representative of the West Virginia Department of Commerce, responding on behalf of the state corrections division, said the agency "adamantly denies" the prisoner's claim and "is committed to the safety, quality of life, and well-being of those in the care of the legal system in our state."

Tiffany Yang, an assistant law professor at the University of Maryland, authored a study last year finding that the PLRA had effectively provided a playbook to prison systems on how to narrow the pathway to judicial relief. She documented instances in which state corrections departments had responded to a successful prisoner lawsuit by amending their grievance requirements to make the rules more complex. She called this cycle the "prison pleading trap."

"Each prison system can define its own internal grievance procedure, and that decision has created a system that is designed to fail the very people that it should protect," Yang told BI. "Even if an incarcerated person is successful in overcoming administrative exhaustion, what prison officials can do with that defeat is to transform it into a blueprint for how to amend the grievance policy to make it more difficult for future litigants."

In her study, Yang discussed a 2005 case in Arkansas in which the courts allowed a prisoner to move his case forward against medical staffers he said had denied him dental treatment, ruling that they were identifiable even though his grievance listed only their job titles, not their names. The state corrections department then updated its procedures to require all Arkansas prisoners to specify, in their first grievance, the full names of each individual involved. As Yang wrote, that alone can prove to be an impossible hurdle in situations in which officials don't wear name badges, hide their badges, or refuse to provide their names to prisoners.

The Arkansas Department of Corrections did not respond to queries.

In a 2022 legal brief, the ACLU joined with other civil-rights groups in arguing that because prison administrators design the procedures that prisoners must follow before suing them, there is "a perverse incentive to make grievance processes as impenetrable as possible."

The statute of limitations for civil suits is typically measured in years. But most prisoners must file a grievance on a much tighter timeline. In Louisiana, prisoners are encouraged to seek an informal solution and then have three months to file a grievance. In Arizona, they have 10 days to make an informal complaint and then five days after that to file the formal grievance. In Michigan, they have two days to resolve the issue informally and then five days after that to submit a grievance form. If they don't file on time, they can't win in court later.

Even when an incident has left a prisoner consigned to the hospital or solitary confinement, the clock can continue to tick.

A former Minnesota prison lieutenant told BI that, at the facilities where she worked, "a fairly high percentage" of prisoners had no idea how to navigate the grievance process. She said that prisoners were alerted to its existence, but only through a "two-second conversation" during intake. Prisoners at facilities in several states told BI they were never instructed by staff on how to properly complete these forms, and instead relied on rare visits to the library or on fellow prisoners — untrained jailhouse lawyers — for guidance.

Paul Schnell, Minnesota's corrections commissioner, said the department continually tries to improve its grievance system. He expressed surprise at the lieutenant's claim, "given the number of grievances we get."

"If the door is closed for people, that's not OK," he said. "We want to make sure people have a mechanism" for exercising their due-process rights.

In any case, filing a grievance comes with risks. The risk of retaliation from other prisoners and staff, as Ornelas feared in Texas. Or the risk of formal punishment. In some states, such as Alaska, officials can hand down disciplinary action if they believe a prisoner has abused the grievance system.

Again and again, a law meant to end frivolous prisoner lawsuits has halted Eighth Amendment claims on technicalities regardless of the underlying merits of their case. Many were thrown out over missed grievance deadlines; others because a prisoner failed to provide the full name of a staffer or use the proper terminology in stating their claim.

Unintended consequences

From the moment it was enacted, the PLRA faced intense criticism. In testimony before the Senate Judiciary Committee in September 1996, an advocate for incarcerated teenagers warned that the law "contains several provisions that hinder efforts to protect children from danger and abuse" in juvenile institutions; the American Bar Association admonished Congress for passing a law that it said contained "unconstitutional" provisions.

David Keene, as chair of the American Conservative Union, called for the law to be reformed, saying in a 2008 op-ed article that "it had the unintended consequence of virtually insulating prison officials from external oversight." In 2014, the United Nations' Committee Against Torture expressed concern that the law was "curbing prisoner lawsuits at the expense of inmates' rights."

One of the most sustained efforts at reform coalesced in 2007, more than a decade after the PLRA was signed into law. The bipartisan SAVE Coalition rallied behind a bill introduced by Rep. Bobby Scott of Virginia that sought to ease some of the law's most onerous requirements. "It needed reform because there's so many instances where legitimate claims couldn't be heard," Scott told BI. "On the meritorious cases, prisoners just don't have rights."

Those who testified on behalf of the bill included a retired federal judge who said the PLRA "unnecessarily constrains the judge's role, limiting oversight and accountability"; a former director of the California prison system, who said the legislation created "often-insurmountable obstacles" for prisoners; and a former Republican attorney general who, after himself spending time in prison for mail fraud, called the PLRA a "deeply flawed" law that "undermines the protection of constitutional rights that all Americans, including prisoners, share."

Sarah Hart, as an assistant district attorney in Philadelphia, had assisted Congress in drafting the PLRA and testified against the proposed reforms, arguing that "the current system allows corrections managers to learn of serious problems in the prison, take prompt action to stop them, and remedy past problems."

Keene, who went on to serve as president of the National Rifle Association, told BI that one of the reasons he took up criminal-justice reform was that his son had spent time in a federal prison. During testimony before the House Judiciary Committee in 2007 in support of Scott's bill, Keene said it was impossible for his son to properly file grievances, accusing prison officials of intentionally giving him the wrong forms and of reading his confidential legal mail. "The process is broken," he said, quoting a letter his son wrote from prison. "It feels like I'm playing poker in a rigged game."

In their March 1995 letter in The New York Times, the state attorneys general insisted that the PLRA wouldn't block meritorious cases, that "no reasonable individual would accept that cases of sexual assault by prison guards or unchecked and rampant tuberculosis within the prison population should be dismissed or disregarded as nonmeritorious."

On the contrary, in the decades since the law was enacted, many prisoners accusing guards of assault have had their cases blocked by the PLRA. In BI's sample, PLRA technicalities likewise knocked out cases involving allegations of sexual harassment by a corrections officer, delayed treatment for hepatitis C, and prolonged stints in solitary confinement.

Just months after the PLRA became law, Jon O. Newman, a federal judge on the 2nd Circuit Court of Appeals, authored an article in the Brooklyn Law Review. In it, he examined the three lawsuits attorneys general cited as frivolous in their New York Times op-ed, at least two of which made their way onto the Senate floor. He found that the Nevada prisoner hadn't filed suit because he preferred chunky peanut butter over creamy. He sued because he said that the commissary had charged him $2.50 for the jar — nearly a week's wages for a prisoner — and that he never received the item. "I readily acknowledge that $2.50 is not a large sum of money," Newman wrote. "But such a sum is not trivial to the prisoner whose limited prison funds are improperly debited."

The Missouri prisoner who was ridiculed for wanting a salad bar, meanwhile, had filed suit with dozens of other prisoners alleging major deficiencies at their facility, including insufficient food, meals contaminated by rodents, a lack of proper ventilation, and dangerous overcrowding that the plaintiffs said had resulted in the housing of healthy people together with those with contagious diseases.

"The prisoners' reference to salads was part of an allegation that their basic nutritional needs were not being met," Newman wrote. "The complaint concerned dangerously unhealthy prison conditions, not the lack of a salad bar."

Decades later, it was as if Newman's article had never appeared. In a 2015 brief before the Supreme Court, Michigan's attorney general at the time, Bill Schuette, pulled out the peanut-butter anecdote again to argue that a prisoner's case should be dismissed under the PLRA.

His brief used the word "frivolous" 48 times.

In the 1980s and 1990s, a series of Supreme Court decisions and a new law sought to curb "frivolous" prisoner lawsuits and give more deference to prison officials. Together, they changed the legal landscape of the Eighth Amendment — the foundational constitutional protection against "cruel and unusual punishments."

Heavy criticism soon followed — from the American Bar Association, members of Congress, and Supreme Court justices themselves. Ted Kennedy, then the senior senator from Massachusetts, described one critical measure, the 1996 Prison Litigation Reform Act, as "a far-reaching effort to strip federal courts of the authority to remedy unconstitutional prison conditions."

In successive decades, judges and legal scholars have continued to argue that these developments erode protections for the 1.2 million people incarcerated nationwide. Top law-enforcement officials, on the other hand, have argued that prisoners were clogging up the courts with costly, meaningless actions. And federal judges have hesitated to substitute their own judgment for that of correctional personnel on the ground.

Little has been known about how the Supreme Court standards and the 1996 law shaped outcomes for cases alleging Eighth Amendment violations — and how many of the underlying claims dealt with frivolous matters.

Business Insider set out to investigate. Guided by advice from legal scholars including Margo Schlanger, a law professor at the University of Michigan, and attorneys who have argued Eighth Amendment cases, BI built and analyzed an original database of 1,488 federal Eighth Amendment lawsuits.

BI found that constitutional protections had been dramatically weakened. Cases settled a third as often as civil-rights suits filed by nonprisoners. And plaintiffs won their cases less than 1% of the time.

Here's how we arrived at our findings.

We started with cases in appellate courts

BI sampled lawsuits using Westlaw, a legal-research platform, searching for opinions that cite one of the two Supreme Court standards that now guide how federal courts evaluate Eighth Amendment claims. While Westlaw is one of the most complete databases of legal filings, it is, like the others, not completely comprehensive.

Claims that allege excessive force are governed by a standard called "malicious and sadistic," so to sample those claims BI searched Westlaw for opinions that mentioned the standard and cited one of the Supreme Court's precedent-setting decisions, Whitley v. Albers or Hudson v. McMillian.

Cases alleging constitutionally inadequate healthcare, a failure to protect, or inadequate conditions of confinement are governed by the "deliberate indifference" standard; to sample those claims, BI searched Westlaw for opinions that mentioned the standard and cited Farmer v. Brennan, Wilson v. Seiter, or the earlier Estelle v. Gamble, the relevant Supreme Court precedent-setting cases.

Because so few Eighth Amendment cases make it to the appeals stage, we were able to pull all opinions that fit these parameters over the course of five years — from 2018 to 2022 — spanning two presidential administrations and the COVID-19 pandemic, which affected prisons and courts nationwide.

Then we sampled cases at the district courts

A great many cases filed in district court never reach the appeals courts. In consultation with constitutional scholars, we pulled a sample of district-level cases to understand how Eighth Amendment cases founder earlier in the process. For these, we pulled all cases with judicial decisions filed in the third quarter of 2022 that fit the same search parameters.

Our district sample captured many more cases that failed under mechanisms imposed by the PLRA.

Together, our samples spanned cases from every circuit in the United States filed by prisoners held in hundreds of US prisons in 47 states, Washington, DC, and Puerto Rico. They are likely not comprehensive. If a case file did not mention the Supreme Court standards or the precedent-setting cases — as when a prisoner without counsel lacked knowledge of the law and the case was dismissed on technical grounds at prescreening — our search would not have captured that case. The impact of the PLRA may be greater than our dataset indicates.

About one in 10 cases contained additional claims unrelated to the Eighth Amendment, including claims filed under the First Amendment or the Americans with Disabilities Act. We tracked only the outcomes of their Eighth Amendment claims.

The sample is dominated by suits filed by people while they were incarcerated but also includes cases filed by formerly incarcerated people or their surviving families. BI excluded cases unrelated to incarceration and those pertaining to pretrial detainees. We excluded any case from our district sample that also appeared in the circuit sample. We also excluded cases that had not reached a final disposition, including subsequent appeals, by September 1, 2024.

Our data analysis

A team of researchers read federal court filings associated with each case and logged details in 59 variables including plaintiff names and incarceration status; the claim category and standard applied; defendant names, roles, and employers; alleged harm suffered, such as broken bone, amputation, or death; whether defendants asserted an affirmative defense, such as qualified immunity; whether the plaintiff had counsel; and judge and court names. If a plaintiff had a lawyer at any point during their case, we logged them as having legal representation.

Researchers assigned each case a final disposition category based on the standard or procedural mechanism under which the case was ultimately decided. BI counted all cases that failed under any mechanism of the PRLA — whether they were dismissed at screening, or were struck because prisoners failed to exhaust the prison's grievance process before filing suit, or fell short of any other of the law's requirements — as having failed under the PLRA. This tally included cases in which a judge granted a plaintiff leave to amend. If the plaintiff filed an amended complaint, we logged the case according to its final resolution.

When defendants voluntarily withdrew their cases for reasons clearly unrelated to reaching a settlement; died without a family member or estate to continue their case; or otherwise failed to respond to a court order resulting in dismissal, BI counted these cases as abandoned or withdrawn.

BI's sample included 86 cases with claims governed under both the "malicious and sadistic" and "deliberate indifference" standards. For those, we analyzed the case on both standards, recorded each claim's disposition, and assigned a final disposition category to the case based on the longest surviving claim. For example, if a judge dismissed a plaintiff's excessive-force claim but allowed the plaintiff's claim of inadequate medical care to go to a jury trial, we counted the case outcome under the "deliberate indifference" standard.

In 12 cases, judges granted summary judgment to claims governed by both standards in a single order. Ten of these cases alleged excessive force and alleged inadequate medical care for the injuries they said resulted; two claimed both excessive force and inadequate conditions of confinement. We assigned all these cases as having lost on the "malicious and sadistic" standard since the claims centered on an excessive-force complaint.

The sample includes 28 cases in which a jury found in favor of the defendants. BI counted these as cases in which the plaintiffs lost on the relevant standard.

BI counted cases as having failed on qualified immunity, the Supreme Court doctrine that can shield public officials from civil liability, only when that standard was decisive in the dismissal of a plaintiff's claim. Another Supreme Court precedent, known as Bivens, governs cases filed against federal officials; we tallied a case as a Bivens failure only when a judge dismissed a claim solely because it had not met Bivens standards.

All cases were recorded as having reached a settlement when the settlement was clearly stipulated in the docket or when the defendant and the plaintiff submitted a joint motion for dismissal pursuant to an out-of-court settlement agreement. To identify damages paid, BI reviewed the docket for disclosed settlement amounts and supplemented this research with news reports and public announcements.

BI counted two categories of cases as plaintiff wins: cases in which the plaintiff won at jury trial and cases in which judges made decisions in favor of the plaintiff — whether for damages or for injunctive relief.

To supplement and contextualize our analysis of the 1,488 lawsuits, containing tens of thousands of pages of court records, we reviewed hundreds of pages of training materials obtained through public-records requests from 37 states, as well as medical records, incident reports, and surveillance footage obtained through records requests and court filings. We reviewed scholarly literature on the Eighth Amendment; read Supreme Court decisions, dissents, and archives; and reviewed archived congressional debates. And we interviewed more than 170 people, including prisoners and their families, attorneys and legal scholars, correctional staff and prison healthcare providers, policymakers and law-enforcement officials, and current and former federal judges.

The prisoners write in carefully lettered script or on old electric typewriters. There are sometimes grammatical errors or misspellings. But the language is direct. They describe facing Stage 4 cancer after their symptoms went undiagnosed for years. The denial of orthotic shoes to treat a diabetic condition that led to a severe wound and amputation. Nineteen years locked in solitary confinement.

Some describe beatings and sexual assaults by fellow prisoners that they say corrections officers failed to prevent. Others say they were assaulted by officers themselves.

The Eighth Amendment, which bars "cruel and unusual punishments," was intended by the founders as a bulwark against prisoner abuse. Over the years it came to mean any treatment that "shocked the conscience." But prisoners and civil-rights attorneys have said that it is now nearly impossible to win such claims in court.

To investigate whether that constitutional protection holds, a Business Insider team read tens of thousands of pages of court records for nearly 1,500 Eighth Amendment complaints, including every appeals court case with an opinion we could locate filed from 2018 to 2022 citing the relevant precedent-setting Supreme Court cases and standards. We reviewed hundreds of pages of training materials, medical records, incident reports, and surveillance footage. We read cases from prisoners convicted of violent and nonviolent crimes — some who have spent decades behind bars for murder or sexual assault, others sentenced to short stints for marijuana possession or third-degree assault. We spoke with more than 170 people, including prisoners and their families, attorneys and legal scholars, correctional staff and prison healthcare providers, and current and former federal judges.

We uncovered a near evisceration of protections for this nation's 1.2 million prisoners, largely propelled by legal standards and laws put into place at the height of the war on drugs.

In our analysis, plaintiffs prevailed in only 11 cases, including two class actions — less than 1%.

"If a right is unenforceable, then it's not much of a right," Paul Grimm, a former federal judge for the District of Maryland, said after reviewing BI's findings. "It is essentially unavailable."

One Tennessee prisoner wrote a letter to the court after failing to overcome these steep odds in his own case.

"To everyone I tried to talk to and ask to file grievances and complaints to bring the wrongs to light," he wrote, "I'm sorry that I tried to bring hope and law and order to a place that has no hope or process of order."

Failed oversight

Over decades, federal and state oversight agencies have repeatedly found that US prison systems have failed to protect prisoners in their care. Just this year, an inspector general found that staff in federal prisons had failed to adequately respond to medical emergencies, contributing to 166 prisoner deaths. The Department of Justice recently found that people held in Georgia state prisons had experienced "horrific and inhuman conditions" stemming from what the DOJ called "complete indifference" by the institutions. "Inmates are maimed and tortured," the department wrote, "relegated to an existence of fear, filth and not so benign neglect."

Some years ago, an oversight monitor found that California prisons' system for disciplining officers accused of excessive force was "broken to the core."

For prisoners inside these systems, the courts are often the only backstop left.

But in the 1980s and 1990s, as the nation's prison population exploded, a new law and a series of revised legal standards radically restricted the ability of prisoners to prevail in Eighth Amendment lawsuits.

The 1996 Prison Litigation Reform Act, passed with robust bipartisan support, effectively carved out a separate and unequal system for prisoners who seek to file suit.

It required prisoners to complete a prison's internal grievance process before filing a claim in court — and then survive a screening process. After that, their claims faced exacting Supreme Court standards. Claims that guards had used excessive force were now decided under a 1986 standard that granted broad protections to prison staff as long as their actions were not "malicious and sadistic." Claims that prison staff have failed to keep prisoners safe — whether from violence, negligent healthcare, or inhumane conditions of confinement — were now decided under a Supreme Court standard, refined in 1994, which says such failures violate the Constitution only if officials were "deliberately indifferent."

Together, the standards shifted the focus away from the underlying claims of abuse, however extreme, and onto the question of prison officials' intent.

David Fathi, the director of the National Prison Project at the ACLU, said the emphasis on mindset has become "an enormous barrier to justice for incarcerated people." If abuse or neglect exists in prisons, he said, "that should be enough to violate the Eighth Amendment."

"You shouldn't have to go looking for someone who was thinking bad thoughts."

Altogether, said Kathrina Szymborski Wolfkot, a former appellate attorney at the MacArthur Justice Center, these laws and standards have made federal courts "inhospitable places for incarcerated people." Though some attorneys turn to state courts instead, there they face another set of challenges, such as caps on damages for malpractice claims or, in some cases, weak state constitutional protections.

The Department of Justice, the ACLU, and other powerful litigators have sometimes succeeded in winning Eighth Amendment cases that usher in reforms through consent decrees or injunctive orders. But such outcomes are rare. The DOJ has secured consent decrees in just four prison cases over the past decade.

A separate and unequal system

In restricting access to the courts, lawmakers in the 1990s argued that most prisoners filed suits over "frivolous" matters. Yet only a few dozen of the claims in BI's sample were over minor complaints, such as being denied shoes to wear in a dirty shower.

Among cases that prisoners lost, we logged 161 claims that guards had failed to protect a prisoner from being beaten or stabbed, including four fatalities. We identified 42 failed cases alleging untreated cancer, heart disease, HIV, or hepatitis C. We logged 78 claims of untreated mental illness, including eight that ended in suicide. There were 21 claims of sexual assault by prison staff. There were claims of confinement in extreme filth, including exposure to poisonous spiders, black mold, and feces.

The vast majority of prisoners, BI found, are navigating all of this without attorneys, in part because of the PLRA, which prevents attorneys from recovering their full litigation costs.

In the outside world, most civil suits settle — about 73%, one study found. In BI's sample, only 14% of prisoner lawsuits did, sometimes for paltry amounts or no damages at all. One North Carolina prisoner who said guards beat him while he was in restraints settled for $250.

By the time the cases were settled or decided in favor of the plaintiffs, those in charge — the wardens and medical directors — had almost always been dropped as defendants, limiting the ability of those judgments to drive institutional change.

Billions of taxpayer dollars go to corrections contractors, to run everything from food services to healthcare to staffing to data management, and the legal obstacles introduced in the 1980s and '90s have shielded these for-profit companies as well. For example, hundreds of private prison health providers or their employees were named as defendants in BI's sample. Of these cases, 14% settled and plaintiffs prevailed in less than 1%. One law-review article concluded that the low risk of liability had influenced companies' cost-benefit analysis and "leads to dangerous, ineffective healthcare that is shielded from constitutional challenge."

More than one federal judge described prisoner claims as tragic — before going on to cite precedent or the narrow standards in deciding against the plaintiffs. Several issued fiery dissents. One was issued in an August 2019 case filed by a prisoner who was denied a transfer he said was necessary for his safety. "We do not sentence people to be stabbed and beaten," Judge Robin Rosenbaum of the 11th Circuit wrote.

"The Eighth Amendment does not allow prisons to be modern-day settings for Lord of the Flies," she went on. "The Majority Opinion condones this behavior and ensures it will occur again."

This project was supported by a grant from Columbia University's Ira A. Lipman Center for Journalism and Civil and Human Rights in conjunction with Arnold Ventures. Data analysis and visualization were supported by the Fund for Investigative Journalism.

A bipartisan group of members of Congress has sent letters to Google’s and Apple’s CEOs citing 404 Media’s reporting and asking what the giant tech companies are doing to address the rampant problem of nonconsensual AI-generated intimate media enabled on their platforms. The Congress members also sent a letter to Microsoft CEO Satya Nadella given Microsoft Designer’s role in creating the infamous nonconsensual nude images of Taylor Swift that were viewed millions of times on Twitter, a story 404 Media broke as well. 

“Earlier this year, Apple removed three apps used to create deepfakes off of its app store after an independent report by 404 Media provided links to the apps and their related ads,” the letter to Apple CEO Tim Cook said. “While it is positive that these apps were removed, it is concerning that Apple was not able to identify the apps on their own. The App Store requires developers to undergo a screening process, but the persistence of these apps illustrate that loopholes exist in Apple’s guidelines. As Apple works to address these loopholes, we would like to understand what steps are being taken, and what additional guidelines may need to be put in place to curb the spread of deepfake pornography.”

The letter, which was signed by 26 Republican and Democratic House Representatives was sent to Cook on November 25, and is referencing 404 Media story from April about Apple removing a number of face swapping apps which were explicitly advertising their ability to create nonconsensual porn. Apple removed those apps after we published a story earlier in April about those ads appearing on Instagram. 

“As Congress works to keep up with shifts in technology, Republicans and Democrats will continue to ensure that online platforms do their part to collaborate with lawmakers and protect users from potential abuse,” the letter says, and then presents Cook with a series of questions like “What plans are in place to proactively address the proliferation of deepfake pornography on your platform, and what is the timeline of deployment for those measures?”

A separate letter sent to Google CEO Sundar Pichai by the same members of Congress about Google’s role in allowing apps to advertise their ability to create nonconsensual deepfake porn in Google Search. 

“Earlier this year, Google announced it would ban advertisements for websites and services that produce deepfake pornography,” the letter says, referring to a Google ad policy change we covered in May. “As you know, the emergence of deepfakes has resulted in an increase in ads for programs that cater to users who wish to produce sexually explicit content. While Google’s updated policy instructs AI app developers to build in precautions against offensive content, adds in-app flagging and reporting mechanisms for users, and devalues deepfake porn results in internal search. However, despite these efforts, recent reports have highlighted that Google continues to promote results for apps that use AI to generate nonconsensual nude images. This development raises concerns about Google’s complicity and role in the proliferation of deepfakes. We would like to further clarify the outcome of these updates and understand what additional guidelines may need to be put in place to curb the spread of deepfake pornography, including efforts to remove deepfake platforms from Google’s search results.”

The letter cites a story we published in August which showed that searching for “undress apps,” “best deepfake nudes,” and similar terms on Google turns up “promoted” results for apps that use AI to produce nonconsensual nude images. Google removed those advertisers in response to our story. 

That letter also goes on to ask what plans Google is putting in place to practically address this problem. 

The same members of congress also sent letters to the CEOs of Facebook, TikTok, and Snapchat regarding nonconsensual content on their platforms as well. 

As I wrote in August, face swapping apps present Google and Apple with a very difficult “dual use” problem where the apps can present themselves as benign on the app stores, but promote their ability to produce harmful content off platform. There are more measures these tech companies can put in place to mitigate the problem, but fundamentally any face swapping app has the potential to create harmful content and has to be moderated closely in order to prevent that harm. Monitoring the huge number of apps that are added to these app stores on any given day would be a major and new investment from both Google and Apple.

• Researchers find AI-related emissions will soon rival that of all the cars in California.
• AI electricity consumption could cause asthma deaths to spike by more than a third in the next six years.
• In Virginia alone, AI's backup diesel generators could lead to 190 air-pollution-related deaths.

Researchers have found that the training of one large AI language model — like Meta's Llama 3.1 — would generate as much air pollution as a car driving round-trip from New York to Los Angeles 10,000 times. The total cost of AI's health impacts, they found, could reach $20 billion within six years.

The team of researchers from the University of California at Riverside and the California Institute of Technology conducted what they say may be the first study of its kind assessing AI's impacts on air pollution. The paper, "The Unpaid Toll: Quantifying the Public Health impact of AI," which will be released later today, finds that the generation of electricity for data centers hosting artificial intelligence applications could pollute the air so much that by 2030 an additional 1,300 people may die prematurely each year as a result.

That would be a 36% increase over the current annual asthma-related deaths in the country.

The researchers — led by Shaolei Ren of UC Riverside and CalTech's Adam Wierman — examined the release of nitrogen dioxide, sulfur dioxide, and particulate matter with a diameter of 2.5 micrometers or less, which can penetrate deep into the lungs, by power plants and diesel generators associated with AI facilities.

The boom in artificial intelligence has resulted in a spike in electricity demand. McKinsey & Company, the consulting firm, projects that data centers will use 11 to 12% of the total electricity consumed in the United States in 2030, up from 3 to 4% last year. While the carbon emissions and water usage implications of that growth have started to draw scrutiny, the direct health impacts of the air pollution these facilities generate have been mostly ignored.

"There is something like this, air pollution, which is affecting people right now," Ren said in an interview. "We aren't paying attention to it at all."

The researchers estimate that the generation of electricity for AI data centers could trigger roughly 600,000 asthma symptom cases a year by 2030.

Last year, the researchers estimate, the generative AI boom led to a public health burden of $5.6 billion. By 2030, they calculated, AI's electricity-related public health costs will top $20 billion. That's more than double the public-health costs of coal-based US steelmaking, they write, and will rival the emissions produced by California's 35 million cars.

The cost estimates are based on a risk assessment tool developed by the Environmental Protection Agency that assigns a dollar figure to what it would take to avoid negative health outcomes, such as premature deaths, asthma symptoms, heart attacks, and missed days of school or work.

For Ren, whose field of study is responsible artificial intelligence, his interest in air quality dates back to his childhood. He lived in a small mining town in China until the age of six, where he saw a correlation between poor air quality and adverse health outcomes in his community, including lung cancer.

The paper is what's called a preprint, a standard practice in computer science research in which researchers make a paper public before submitting it for peer review.

Diesel generators appear deadly in Virginia

The researchers also examined air pollution driven by emissions from diesel generators used by data centers for backup power and by the manufacturing of the silicone chips used in artificial intelligence.

To examine the impact of diesel-generators, the researchers looked at those permitted in Virginia, home to one of the densest collections of data centers in the world. Generators, according to the paper, produce 200 to 600 times the nitrogen dioxide per unit of power produced than a natural gas power plant.

"Diesel generators represent a major source of on-site air pollutants for data centers and pose a significant health risk to the public," the researchers wrote.

Even assuming that emissions by Virginia-permitted generators were just 10% of what the commonwealth's regulations allow, they would cause an additional 13 to 19 deaths each year. If the diesel generators emitted 100% of what is allowed, they would lead to 130 to 190 additional deaths, the researchers found.

The public health burden of Virginia's data center generators amounts to $220 million to $300 million a year under the 10% assumption and as much as $3 billion a year under the 100% assumption, according to the study.

The researchers found those health effects are not contained to the state, as air pollution travels. They found it's actually a county in Maryland — Montgomery County — that is most affected by Virginia's AI generators.

The effects, according to the EPA tool, would also be felt in West Virginia, New York, New Jersey, Pennsylvania, Delaware,Washington D.C., and as far away as Florida.

"We thought the air pollution was limited to a small area," Ren said. "That's not true. There is actually cross-state air pollution." He and the other researchers found that the harmful effects are felt disproportionately by "economically-disadvantaged communities."

Ren said that understanding the broad dispersion of negative health outcomes could encourage AI companies to alter their site locations or AI training schedules. Health impacts are higher during the day, he said, and some locations have higher or lower health effects.

The researchers also call for greater transparency from the big tech companies that lead large language model training.

Those companies, including Amazon, Google, Microsoft, and Meta don't currently detail the air pollution impacts of their AI operations in their annual sustainability reports, the researchers wrote.

"If you look at the sustainability reports from these companies, they mention carbon and water, but they don't mention anything about air pollution," Ren said. "They should start reporting this in the same way."