Mary Scott Hodgin: A heads up before we get going. This is a grown-up story about prison. It's not for kids and it may not be for all adult listeners. 

News Clip 1: Prison conditions are so poor in Alabama, the federal government now says inmates’ civil rights are being violated.  

News Clip 2: The Justice Department report details cases of inmate deaths, rapes and rampant contraband, weapons and drugs.

 News Clip 3: The feds now saying to Alabama “clean up your act, or else.”

Mary Scott Hodgin: There are many violent, overcrowded prisons in the United States. But Alabama’s stand out. 

The federal government says they’re among the most dangerous prisons in the country. 

And if Alabama can’t improve things, a federal judge could step in. 

And it wouldn’t be the first time. 

On January 13, 1976, Alabama made national headlines.

Tom Brokaw: Evening. A federal judge today in effect took over the Alabama state prison system.

Mary Scott Hodgin: NBC’s Tom Brokaw introduces the story. Then passes it to a reporter on the ground in Alabama.

The video shows images inside Alabama’s prisons. Black and white shots of mostly young men stacked together. Overflowing into hallways. Sleeping shoulder to shoulder on the floor. 

These conditions convinced federal Judge Frank Johnson Alabama could no longer run its prisons. 

Reporter: Judge Johnson described the prisons as horrendously overcrowded, filthy, dilapidated, barbaric jungles, which he said defeated the whole idea of prisons by turning out people who were worse than when they went in. 

Mary Scott Hodgin: This ruling was a big deal. Frank Johnson was a big deal. He was a well-known federal judge from Alabama, famous for his rulings in support of the civil rights movement.

And this ruling in 1976 got a lot of attention. It all stemmed from a class action lawsuit over the treatment of people locked up in Alabama’s prisons.  

Judge Johnson called the state’s prisons inhumane and unconstitutional. And he said the federal government needed to step in. 

From WBHM in Birmingham, this is Deliberate Indifference: the story of Alabama’s prison crisis and the people inside it.

I’m Mary Scott Hodgin. 

In this episode, we take a look back at how racism and forced labor shaped Alabama’s prison system. And how it led to federal intervention.

PART ONE

Wayne Flynt: My name is Wayne Flynt...

Mary Scott Hodgin: Wayne Flynt is like a historian celebrity, if that’s a thing. He’s a retired history professor, and lives on a quiet street in Auburn, Alabama. And his home is full of books, including the ones he’s written about Alabama history, race and poverty.

When I first met Flynt, I told him I’m trying to understand the history of Alabama’s prison system. How it’s become so overcrowded and violent. 

So I explain my idea. I want to start by going back to the last time the feds stepped in, to the 1970s. I want to understand what happened then to get a better perspective on where we are now. 

But Flynt stops me and he’s like, wait, wait, wait.

Wayne Flynt: Every storyteller has to ponder. Where does the story begin? And basically, you're beginning the story at the wrong place. 

Mary Scott Hodgin: Flynt says the story begins in a different era. 

Wayne Flynt: So if you go back in time to antebellum Alabama. Concepts of penology and how you distribute justice is basically divisible within two cultures. 

Mary Scott Hodgin: White people defined both of these “cultures.”

Wayne Flynt: One culture is a frontier culture. And for them the way you settle disputes was with a knife and a gun and gouge out eyes. And so why do you need prisons? You don't need jails or prisons. I mean, white justice was retributive. I mean there was a way of getting even with people.

Mary Scott Hodgin: And that was determined by race. What Flynt calls ‘frontier culture’ was white justice for white people. For hundreds of thousands of enslaved Black people there was a much more brutal and inhumane system.  

Wayne Flynt: Well, a slave plantation, justice is meted out by the master of the plantation. So you don't need a sheriff or anything like that. 

Mary Scott Hodgin: There was no justice for Black people enslaved in the South.

During those years leading up to the Civil War, Alabama didn’t rely much on a prison system. But the state did build its first prison during this time.  

It was a two-story building with about 200 prison cells. It opened in 1842 

At the time, enslaved Black people were denied access to the courts. According to the state prison system, Alabama’s first inmate was locked up for trying to help someone escape slavery.   

The prison population back then was 99 percent white, mostly immigrants. 

That soon changed.

After the South lost the Civil War in 1865, Wayne Flynt says Southern white people were faced with a new reality.

Wayne Flynt: So at the end of the Civil War, the question is, you’ve got freedmen and most of them were sharecroppers. They couldn't read and write. And so how do you control them, politically, socially and all the other ways? 

Mary Scott Hodgin: The answer came from the federal government. When the Civil War ended, Congress passed the 13th Amendment. It outlawed slavery and involuntary servitude, but it made an exception for people convicted of crimes.

And that’s when the incarcerated population in Alabama starts to look different.

Remember before the Civil War, the state’s prison population was 99 percent white. Well, a decade after the Civil War, Alabama’s prison population was 90 percent Black. 

Wayne Flynt says white people at the time had power and privilege and they were worried about losing it. 

Across the South, they created new laws to prevent Black people from gaining power and money. And more and more Black people were sent to prison. 

But there was a problem. Locking up more people costs more. And Alabama was not about to raise taxes. 

Wayne Flynt: So what you’ve got is a system that has to be funded. Well, that’s a simple problem, the convict lease system. 

Mary Scott Hodgin: By the late 1800s, the prison system had become an official state business. Private companies paid the state to use inmate labor. 

The practice known as convict leasing spread throughout Alabama, and the brutality of the prison system moved underground. 

One place where this happened was around the small town of Brookside. 

Alfred Collins: This graveyard was started in 1836.

Mary Scott Hodgin: Brookside, Alabama is about 15 miles from Birmingham. It has a city hall and a Dollar General and that’s about it. 

Alfred Collins grew up here. He’s part of a big family. And as a kid, they spent a lot of time at this old cemetery in town. 

Alfred Collins: When I was seven years old, we would come out here in the summertime and clean the graveyard off. It was about 30 of us. And they would tell us about the history of the graveyard.

Mary Scott Hodgin: Collins says this cemetery was established in the 1830s to serve as the final resting place for Black people who were enslaved by a local colonel. 

Over the years, Collins says hundreds of Black people were buried here.

Today, the graveyard is overgrown. Collins, who’s 78, spends his days trying to clean it up and preserve it.  

Alfred Collins: The grounds have changed over the years. All these here are graves in here. Watch your step there.

Mary Scott Hodgin: A lot of the graves are not labeled. 

But Collins says you can tell where someone came from, based on the kind of stone that marks their gravesite. 

Alfred Collins: See you look right here.

Mary Scott Hodgin: He points one out. It’s a smooth rock. He says it comes from inside a coal mine. 

Alfred Collins: See how the grave there? This right here this was an inmate grave right here. See that rock there?

Mary Scott Hodgin: An “inmate grave.” Collins says the men buried in these plots died while working in nearby mines. He says many, if not all of them, were incarcerated at the time. 

A century ago, Brookside was a mining town. Collins says there were coal mines about a mile from the cemetery. 

It’s in a part of Alabama where thousands of men worked as convict laborers.  

Historians say it’s difficult to determine how and where prisoners were buried. Most were not given a formal burial in an organized cemetery. 

Using prisoners for labor was not a new idea. Decades earlier, after Alabama built its first prison, the state put people to work. 

Incarcerated people in those early days built wagons and made shoes. Shortly after the Civil War, they helped rebuild railroads.

But the system really became profitable in the late 1800s and early 1900s during industrialization. That’s according to Bob Corley. He’s a retired history professor in Birmingham. 

Bob Corley: There was a demand for labor all over the country, and so it was hard to find people who would come and work in very tough jobs, particularly in coal mines. Because if you thought about coal mines in those years, people are digging, literally with picks and shovels. There’s no mechanization at all. And so it was a very tough, physical labor.

Mary Scott Hodgin: The biggest iron and steel companies in Alabama had contracts with the state prison system to lease incarcerated people. 

And by the way, this wasn’t just happening in Alabama. It was happening across the South. States that had previously relied on slave labor started leasing prisoners, most of whom were Black, to grow their economies. The practice was especially popular in Alabama.

The government made money and companies got an almost endless supply of bodies to send down into the coal mines.

Men often spent all day underground with no protection and little food. They slept in filth, sometimes chained to their beds. They were regularly whipped and beaten.

Mary Ellen Curtin: It was a terribly brutal and cruel system and also treated Black prisoners worse than white prisoners.

Mary Scott Hodgin: Mary Ellen Curtin is a historian and professor at American University. She wrote a book about convict leasing in Alabama, called Black Prisoners and Their World.

Curtin says during this time, roughly 90 percent of the people locked up in Alabama were Black. And the crimes they were charged with were often petty or made up. 

Again, here’s historian Bob Corley.

Bob Corley: Getting Blacks to be criminalized was actually not that hard because whites controlled the police force, the sheriff’s department, the courts. And they would convict them often times of quite minor charges. 

Mary Scott Hodgin: Historians say sheriffs would often target Black saloons and arrest people for crimes like “gambling” or “drunkenness.”  

The consequences could be deadly. 

In 1911, there was an explosion at one of the mines outside of Birmingham. It killed 128 men, almost all of them were convict laborers and almost all of them were Black.

People did speak out against the system. Inspectors and public health officials published reports describing the inhumane conditions. Prisoners and activists wrote letters and petitions to abolish the practice.

But convict leasing continued for years. 

Historian Wayne Flynt, from Auburn, says most people didn’t see what happened in the labor camps. And they didn’t want to know. 

Wayne Flynt: You don't get very many prominent people in the convict lease system. They're the lowest rung of Alabama society. The forgotten people, if ever there were forgotten people. 

Mary Scott Hodgin: Flynt says initially, Alabama’s political leaders supported the system. But over time, opposition grew. 

Wayne Flynt: At first, the attorney generals applauded it. And the political culture supported it completely. And then there were more and more cases of just appalling brutality. And even, even good conservative people began to say, “this is, this is a bridge too far. This, this is awful what's happened here.” And then, of course, the trigger to the end of it was that case in Jefferson County in the 1920s. 

Mary Scott Hodgin: He’s talking about the case of James Knox. Knox was an inmate working at a coal mine near Birmingham. Flynt says he wasn’t working to the deputies’ satisfaction and they killed him by dropping him into a vat of boiling water. 

Flynt says that got people’s attention. There had been abuse and killings before, but James Knox was white. The uproar after his death helped put an end to convict leasing in 1928. 

But American University historian Mary Ellen Curtin says inmates didn’t stop working. 

Mary Ellen Curtin: That is also kind of an Illusion that ending convict leasing you know introduced something more humane. 

Mary Scott Hodgin: With convict leasing, the state rented people to private companies. After that stopped in the late 1920s, Alabama continued to use inmate labor for government projects.  The practice went on for decades.

Incarcerated men served on road gangs. They worked by day and slept in camps nearby. 

According to the state prison website, the highway department paid the corrections department $2 a day per inmate. 

Incarcerated men also worked at farms, canning factories, even a state-owned cattle ranch, all part of Alabama’s prison system. 

Alabama did build some brick-and-mortar prisons during this time. A few are still around. 

By the early 1970s, about 5,000 people were locked up across the state, living in large prisons, road camps or work release centers. 

There were four major prisons for men. And around that time, Alabama closed all of the road camps. It’s not exactly clear why. One theory is that building roads wasn’t as labor intensive anymore.

Whatever the reason, after the road camps closed, state prisons, already overcrowded, got even more so.

And inside the prisons, there was rampant violence, racial tension, abuse and filthy living conditions. 

Incarcerated people spoke out about it.

And one man’s plea for help got the attention of a federal judge.

Tom Brokaw: The American prison system is on trial in effect in Montgomery, Alabama. It’s the result of a lawsuit brought about by an eighty-two year old man. He claimed in a petition written by hand that he has been in and out of prison for more than 30 years and that no attempt ever has been made to rehabilitate him.

Mary Scott Hodgin: The man behind that hand-written petition was Worley James, the son of a Black sharecropper. James wrote a detailed legal complaint asking for better medical care, food and rehabilitation in Alabama’s prisons. 

Around the same time, another state inmate, Jerry Lee Pugh, also filed a lawsuit. Pugh was a young white man who was almost beaten to death in a prison dormitory. 

Federal Judge Frank Johnson took an interest in both of these complaints. 

Johnson is the ‘big deal’ judge I mentioned at the beginning of our story.

And what he did with these cases was revolutionary for the time. 

He combined Worley James’ and Jerry Pugh’s complaints to create a class action lawsuit against the state of Alabama, the state department of corrections, and the Governor at the time, George C Wallace.  

The unique lawsuit took on state government. 

And state leaders were not happy about it. 

After a break, a little backstory on Judge Frank Johnson. One of his earliest rulings involved a case from Montgomery and a woman named Rosa Parks. 

You're listening to Deliberate Indifference, from WBHM in Birmingham.

PART TWO

Mary Scott Hodgin: This is a grown-up story about prison. It's not for kids and it may not be for all adult listeners.  

This is Deliberate Indifference. I’m Mary Scott Hodgin.

News Clip: Evening. A federal judge today in effect took over the Alabama state prison system. The unprecedented move by federal Judge Frank Johnson…

Mary Scott Hodgin: That 1976 court order declared Alabama’s prisons inhumane and unconstitutional and it turned over control of state prisons to the federal government.  

It was remarkable. And so was the man behind the ruling.  

Judge Frank Johnson was from northern Alabama, an area that stands out from much of the state. Many people there sided with the Union during the Civil War. 

Johnson was a World War II veteran. And he was the youngest federal judge in the country when he was appointed in 1955. 

Alabama historian Wayne Flynt says Johnson was one of his heroes. He says Johnson had a “biblical moral compass.” 

Wayne Flynt: And he believed that justice was meted out in courts. That people would not voluntarily just step up and say, “oh, well, this is iniquitous and wrong and so we ought to change it.” He believed that a justice system is required to tell you: this is not permissible. And there is no better example of this than race. His his rulings on race.

Mary Scott Hodgin: Johnson was a beacon for many during the civil rights movement. 

One of his earliest rulings was in favor of Rosa Parks and the Montgomery bus boycott. 

He ordered countless institutions to desegregate: public schools, colleges, libraries, restaurants, even the state police force. 

In 1965, he sided with activists led by Dr. Martin Luther King Jr., allowing them to march from Selma to Montgomery in support of civil rights. 

Over the years, Johnson expanded the reach and the impact of federal courts, often in the name of human rights. 

He ordered sweeping reform to Alabama’s mental health institutions. 

And in 1976 Judge Johnson ordered Alabama to do something about its prisons.

John Carroll is a law professor and a former judge. He helped represent inmates during the class action lawsuit against the state.

John Carroll: It really was viewed as one of the most revolutionary uses of federal power in the country at that time. There were some other decisions by courts in Arkansas, but none reaching the scope that Judge Johnson found. I mean, essentially an order requiring the prison system to completely change the way it was doing business.

Mary Scott Hodgin: Johnson’s ruling detailed horrific conditions and rampant violence inside Alabama’s prisons. He described men sleeping next to urinals, on mattresses infested with lice and roaches. He said “robbery, rape, extortion, theft and assault” were “everyday occurrences.” And all these problems were exacerbated by pervasive overcrowding and understaffing. 

Johnson ordered the state to make several changes and said if the state didn’t comply, he’d order several prisons to close.

When he issued the ruling, Judge Frank Johnson was already unpopular with Alabama’s white establishment.  During the civil rights movement, he was regularly threatened. The Ku Klux Klan called him “the most hated man in Alabama.” 

Johnson was especially unpopular with Alabama’s Governor, George Wallace.

George Wallace: And I say segregation now, segregation tomorrow and segregation forever.

Mary Scott Hodgin: Wallace was the face of segregation in Alabama. And he and Johnson had a history. Decades earlier, they had attended law school together at the University of Alabama. 

So when Judge Johnson handed down his ruling about the state’s prison system in 1976, Governor Wallace was furious.

Here’s John Carroll, who represented plaintiffs in the case.

John Carroll: Well, Governor Wallace was the governor at the time the order came down. And not long after the order came down, he was quoted in the newspapers as saying that Judge Johnson ought to get a barbed wire enema. So needless to say, in the early stages, when Wallace was the governor, it was tooth and nail fight to get anything done. 

Mary Scott Hodgin: Wallace denied there was a problem in Alabama’s prison system. Every time Johnson ordered a change, Wallace pushed back.

The governor argued the ruling was an overreach of federal power. He said prison reform was disrespectful to crime victims. The governor even used his own experience as a victim. Wallace had been shot years earlier while campaigning for president. He was left paralyzed from the waist down. 

Here’s Governor Wallace talking to reporters back then. 

George Wallace: There’s more interest in looking after the man who shot me and others like me, than the people who were shot themselves.

Mary Scott Hodgin: People in Alabama got behind Wallace. The state pushed back against federal intervention. And this was the 1970s, a time when high profile court cases were defining the civil rights movement.

There was not much sympathy for prisons or the people in them who were mostly Black. 

Wallace fed right into that sentiment. 

George Wallace: And I again say that thugs and federal judges seem to be running the country. 

Wayne Flynt: It's funny, we call our motto, "we dare defend our rights". No. The motto of Alabama is "punt, Bama punt". What you do is you refuse individual responsibility for solving your own problems and turn it over to a federal court. 

Mary Scott Hodgin: Punt Bama punt. The phrase also refers to a legendary Auburn - Alabama football game.

But Wayne Flynt is not talking about football. 

Flynt says Alabama has a history of “punting” its problems to the federal courts.  

The 1970s prison case is yet another example. 

Back then, Judge Johnson said taking over Alabama’s prison system was the right thing to do. 

Here he is in a 1980 TV interview.

Frank Johnson: I do think a federal judge has no business running a state institution such as prisons and schools and mental institutions. But the state has defaulted in those areas or the federal judge wouldn't find it necessary to step in. 

Mary Scott Hodgin: In this same interview, Johnson went on to talk about how the federal courts of the time were evolving. He said in the past big lawsuits had been focused on property rights or capitalism. But he said he saw the focus shifting to cases over civil rights and human rights.  

And he said the people involved in the suits were not after money. They wanted change.

In his rulings, Judge Johnson ordered very specific changes to Alabama’s prison system. How many square feet of space inmates must have. How much food they should get. And a number of measures designed to improve prisoner safety.

Johnson even required activities and programming. His ruling said prisoners should have meaningful jobs and be able to participate in basic educational programs.

Historian Wayne Flynt says Judge Johnson recognized how cruel and inhumane the prison system can be.

Wayne Flynt: There are those who've been in the system and those who’ve studied the system and know the system and they’re appalled. And I can just imagine a man with a moral compass as firm as Frank Johnson's encountering the reality of that. And he would not have known the reality of that. You know, going through law school doesn't make you knowledgeable about the prison system and even being a judge doesn't make you knowledgeable about it. The thing that ruined Frank Johnson is he had a moral compass. 

Mary Scott Hodgin: Judge Frank Johnson’s ruling sought to reform Alabama’s prison system. But it had limited success.

Federal oversight of Alabama’s prisons lasted roughly 13 years. In fact Johnson didn’t even finish the case. He moved on to a higher court position in 1979 and passed it on to another judge. 

Some of his original orders, like those about programming and rehabilitation, were overturned by higher courts. 

There were some changes. Governor Wallace left office, and the man who replaced him, Fob James, appointed a new prisons commissioner. Alabama lawmakers eventually approved some money to build new prisons.  

But progress was slow. 

At one point, in the early 1980s, the federal judge overseeing the case got so fed up with overcrowding that he ordered the release of a few hundred inmates. The men on the list were either approaching a parole date or the end of their sentence. 

But the judge’s order got a lot of pushback. And ultimately it didn’t make much of a difference in terms of overcrowding. 

Eventually, at the very end of 1988, the feds we’re like, “OK Alabama, you’ve done enough.” And they ended federal supervision of the state prison system. But they warned that many issues still existed. 

John Carroll, who worked on the case, says compared to how bad conditions had been before things were better. 

John Carroll: You know, I think the improvements were significant. Again, a professional guard staff. I remember….

Mary Scott Hodgin: Carroll says when he first visited a state prison in the 70s, guards didn’t wear uniforms.

And he says there were other improvements.

John Carroll: The mental health treatment significantly improved. The medical treatment significantly improved. There were more programs and but more importantly, there were more prisons. 

Mary Scott Hodgin: There were more prisons. 

From the 1970s through the 1990s Alabama built ten prisons. The state also built several work release centers.

They did this to reduce overcrowding and to keep up. Because this is when the country launched a war on drugs and mass incarceration exploded.

In 1976, when Judge Johnson issued his ruling on Alabama’s prison system, there were about 5,000 people locked up in the state. Thirty years later, that number jumped to more than 25,000. 

And so it didn’t take long for those new prisons to become overcrowded. 

John Carroll has read about current prison conditions. He read the 2019 report by the Department of Justice detailing violence, overcrowding and understaffing. 

John Carroll: To me, it's been interesting to put side by side the conditions that Judge Johnson described in his 1976 order and the conditions that the Department of Justice described in their report and they're very, very eerie similarities. It's just like it was in 1976, only the population is significantly greater.

Mary Scott Hodgin: Yeah. And like what? How has that happened? 

John Carroll: It happens because there is no constituency that cares about the prisons. That's one side and the other side is that we are in a state that barely funds the operation of government in its essential functions. People don't think prisons are an essential function, so prisons don't get the attention they need.

Mary Scott Hodgin: Historian Wayne Flynt says it’s a cycle.

Every few decades, something happens that gets a lot of attention and it forces people to look at the prison system. 

Flynt says sometimes these moments trigger change, like the end of convict leasing or funding for new prisons. But that momentum doesn’t last long.

Wayne Flynt: And you, you go back, you revert back to the old patterns, the old cultural patterns. And the old cultural patterns, basically, have this political dimension to them of: you really don't want to know what's going on in the prisons, because if you are a person of some conscience, with some moral compass, what you don't want to know is the brutality, the savagery, the hopelessness of the prison system.

Mary Scott Hodgin: Flynt says that’s just as true today as it was in the past.

With the current lawsuit over prison conditions, we could see another federal judge step in like Judge Johnson did. 

But it wouldn’t be quite the same. These days, the courts are more restricted in how much they can intervene in a state’s prison system.

The country is also in a different place today politically, socially. 

When Judge Johnson took over Alabama’s prison system in 1976, the War on Drugs and the “tough on crime” era was just ramping up. 

Prosecutors promised to lock up the “bad guys.” There was pressure to keep them locked up longer.

News Clip 1: This country now has more people in prison than ever before. 

 News Clip 2: Twenty-nine states are under court mandates to do something about prison overcrowding. 

Mary Scott Hodgin: Alabama’s prison population has risen so quickly, the state couldn’t sustain Judge Johnson’s call for reforms. 

And once again Alabama’s prisons are bursting at the seams.  

Some people have been locked up for decades because of sentencing laws passed during the tough on crime era. 

Ronald McKeithen: I knew I deserved to be in prison. But I didn’t deserve to be in there that long or with that sentence. 

Mary Scott Hodgin: Today, some state leaders want a different approach to sentencing. But sentencing reform has a lot to do with the public’s perspective on crime and punishment. 

Charlie Graddick: I cringe when people say, “Well, it costs so much to keep somebody in prison.” Anybody in here lost a loved one to a crime?

Mary Scott Hodgin: That’s next time, on Deliberate Indifference. 

This is Deliberate Indifference. 

I’m Mary Scott Hodgin. I wrote and reported this episode. 

Kate Smith and Gigi Douban edited the script.

Meg Martin fact checked the episode.

Matthew Hancock created our music and served as audio engineer.

Miranda Fulmore helped with production assistance and digital material.

Help along the way from Audrey Atkins and Andrew Yeager.

NPR’s Story Lab helped get this project started. Thanks to Debbie Elliott and Peter Breslow. 

Special thanks to Alberto Enes Romero.

To learn more about Judge Johnson’s ruling and the 1970’s trial, I recommend Larry

Yackle’s wonderful book Reform and Regret.

To hear all of our episodes, subscribe wherever you get your podcasts. And check out our website, deliberate indifference dot org. 

Join me next time for a new episode of Deliberate Indifference.