It was freezing outside when a detainee at the Durham County Detention Facility said he saw a staff member at the jail tie another detainee’s wrists and legs to a restraint chair for a few hours, with just a T-shirt and thermals to keep them warm that winter morning.

The man recently recounted the memory to John Schengber and Nikolai Wise, two law students with the Civil Legal Assistance Clinic at the University of North Carolina-Chapel Hill. UNC law students interviewed four detainees who also mentioned the chair.

As of right now, most of the policies on use of restraint chairs at the jail are not available to the public. But a new lawsuit seeks to change that. Emancipate NC, a local nonprofit, filed a lawsuit against the Durham County Sheriff’s Office on Wednesday, January 17 for violating the North Carolina Public Records Act by redacting too many policies in response to a public records request.

Emancipate NC, which advocates against mass incarceration and racism in the criminal justice system, submitted a public records request in April for “all written Durham jail policies.” The sheriff’s office took six months to fulfill the request, and put blocks of black ink over many sections, including most of the rules about restraining devices.

The complaint asks the office to disclose most of their policies or provide more specific justifications for the redactions, which the sheriff’s office says fall under the act’s exemption for sensitive security information.

Concerns about conditions in the jail have been echoing among local organizers and lawyers for several years. Among them are Elizabeth Simpson, UNC law professor and the strategic director of Emancipate NC.

Simpson’s students, including Schengber and Wise, started interviewing detainees and collecting letters detailing their experiences at the jail in the fall of last year. They say the policy redactions hinder their ability—and the public’s—to hold jail officials accountable. 

“Policies are the surest way—or at least should be the surest way—for the community, for people who are elected officials, or for policymakers to understand how people are treated or should be treated in the jail,” Schengber says.

The INDY obtained six letters from detainees and details from interviews that the Civil Legal Assistance Clinic at UNC-Chapel Hill Law School conducted in 2023, revealing complaints related to the redacted policies.

Simpson was especially alarmed by detainees’ complaints about solitary confinement when she began hearing from detainees. A spokesperson for the sheriff’s office denies the use of solitary confinement at the jail. However, in letters and interviews, detainees refer to the “hole.” One wrote in a 2023 letter, “solitary confinement is the toughest part.”

Most policies on what the jail calls “administrative segregation” and “disciplinary detention” are available to read, but the parts of the “General Guidelines” and “Inmate Movement” sections are redacted in the document the sheriff’s office returned to Emancipate NC. So is a paragraph in the section about logging which detainees are in segregation, parts of sentences about shaving, and a few details about programming offered to those in segregation.

Several other policies are blacked out, such as those governing meal times, library hours, tablet use, the housing classification process, and staff assigned to sanitation tasks.

Much of the redacted information does not pose a clear security risk to the jail’s operations, Simpson says.

“It’s just being secretive for the sake of being secretive,” Simpson says. “The public of Durham County probably doesn’t suspect that this is how our jail is being operated. As a progressive county, [Clarence] Birkhead ran as a progressive sheriff. I don’t think people, when they cast that ballot, are thinking this is a sheriff who has an entire policy on restraint chairs and won’t even tell us what it is.”

The sheriff’s office declined to comment on pending litigation. When the INDY asked multiple times if the sheriff would answer questions about specific redactions, the office did not respond. 

A Six-Month Process

On April 17, 2023, Emancipate NC submitted a public records request asking the sheriff’s office for “copies of all records related to all written Durham jail policies,” according to the complaint. 

On May 3, the sheriff’s office informed Emancipate NC that it received the request. But their response was not complete until six months later.

A week after receiving the request, the office said the request would take several weeks to complete because they had to redact some of the policies due to “relevant trade secret” and “public security” concerns.

Emancipate NC received copies of three ordinances outlining jail policies on June 12. In the month that followed, Emancipate NC asked for updates twice. In response, the sheriff’s office sent a series of email attachments on July 14, August 31, and on October 2. The jail deemed the request fulfilled on October 12, the complaint stated.

The following month, Emancipate NC sent the sheriff’s office a letter with a list of policies it wanted jail staff to provide. The letter asked for specific justifications for any redactions since the redactions, it argued, were “likely overbroad.”

The office responded with partially unredacted documents related to restraints, censorship of mail, and records of the Detention Response Team. But six pages of policy on restraint procedures remained mostly redacted, including a list of restraining devices, restraint chair procedures, and restraint during transportation.

When the INDY submitted its own records request, the sheriff’s office responded within a day and also sent redacted files.

The North Carolina Public Records Act guarantees access to all public records and information “at free or at minimal cost.” However, sensitive and specific security information such as “detailed plans, patterns, or practices associated with prison or local confinement facilities operations” are exempt.

In the complaint, Emancipate NC argues that according to legal precedent, the security exemption “must be construed narrowly.” North Carolina federal courts have rejected motions that lack specificity from government agencies and prison officials seeking to prevent public access, the complaint said. 

Emancipate NC requested Mecklenburg County’s jail policies and found far fewer redactions. The sections on use of force and restraint, which included guidelines on the restraint chair, are all available to read. There is a similar section in the state prison policies, which also includes fewer redactions.

Security Risks?

The complaint includes testimonies from detainees on a wide range of issues—from library and tablet use to sanitation—that refer to the redacted policies.

In an interview with Simpson’s students, one detainee said that a corrections officer wheels around a cart of  “all kinds of books,” around 20 in total, that detainees can sign in and out.

But in a letter to Wise and Schengber, a detainee said, “Books are hard to come by unless you can afford to order amazon, library never opens.”

“There’s no Library…no books being passed out,” another detainee wrote. 

The weekly library schedule and daily hours are redacted from the policies the jail provided.

Tablets offer a vital connection to the outside world for people as they await trial. They enable detainees to contact their families. All personal mail, including handwritten letters, must be viewed on a tablet, a detainee said. 

Detainees also access library and educational resources on the tablets, according to the jail policies. One of the detainees complained that residents of the jail often have just two to three hours with tablets, which is not enough time to complete their educational goals. 

The times and number of hours detainees can use tablets are redacted.

Meal times and lengths are also blacked out, including the minimum number of minutes individuals in “Disciplinary, Reclassification, or Administrative Segregation” sections have to eat in their cells. One detainee wrote in a letter that meals are served at 5:30 a.m, 10 and 10:30 a.m., and at about 4 p.m. 

“Very light meals which really just keep us alive, so there is at least 12 hrs where there is no food unless you are fortunate enough to afford the over priced canteen/commissary that arrives on Thursdays,” the detainee wrote.

After the 4 p.m. meal, “I still be hungry [throughout] the day to the next meal,” wrote another.

While instructions for sanitation and maintenance are available, the names of individuals or departments in charge of completing those procedures are redacted. Three detainees complained about the facility’s cleanliness in their letters, describing “visible mildew,” “filthy” cells, unbearably cold temperatures, brown, contaminated sink water, and poor air quality. One detainee described mold on the sinks they drink from and in the vents. 

“Cells are often dirty, if not filthy and usually are cleaned by a willing inmate before they move in or in a restless one looking to get out of his cell for a while,” a detainee wrote. “It’s the detention officer’s duty but he or she really isn’t interested in making sure cells are up to standard and sanitary.”

Another detainee said when the pandemic hit, some detainees began sending letters to reporters about inhumane conditions in the jail. News reporters went to the facility, but “were given a false and incorrect narrative of what inmates were experiencing,” a detainee wrote.

A former jail official told detainees to stop sending letters about jail conditions “because it’s making him look bad,” the detainee wrote. 

Another detainee’s mail was opened by a staff member who returned it to him because it talked about poor conditions inside the jail, the same detainee wrote. Staff then restricted the detainee’s access to phone privileges, tablets, and the law library.

The documents do describe the process for how media personnel can obtain interviews with inmates. But sections on the censorship of mail, what constitutes “suspicious mail,” security restrictions for media, and media access during interviews were all redacted.

Simpson says she does not expect the sheriff to disclose certain information, such as a blueprint of the jail or where keys are stored. 

But a source pointed the INDY to a 190-page document explaining security upgrades for the jail that is publicly available in the Durham Board of County Commissioners’ November 13, 2023 meeting agenda. Inside the document, is a 40-page section including a detailed blueprint of the jail and images of specific locations for security equipment. 

Transparency

A spokesperson for the sheriff’s office directed the INDY to its recent reaccreditation from the American Correctional Association (ACA). 

“Our policies, procedures and practices meet the nation’s highest standards,” Sheriff Birkhead wrote in August in response to an email from four members of Durham’s Safety and Wellness Task Force about recommendations for improving conditions in the jail.

But Luke Woollard, an attorney with Disability Rights North Carolina (DRNC), says ACA rules do not always cover what his group—and others in the legal community— consider best practices.

Birkhead admitted in his response to the task force that conditions in the jail “could certainly be improved.” Staffing and funding issues and a lack of service providers hinder the sheriff’s office from making improvements to the facility, he said. 

Not everyone in the jail is a bad actor, Wise, one of Simpson’s students, says. During interviews, some detainees say that conditions have improved under a new chief of detention services. Some correctional officers seemed eager to perform their jobs fairly, they say, and detainees also praise the staff member who delivers mail.

But the students and lawyers say the presence of good actors does not erase the importance of giving the public, whose taxes fund the jail, access to a complete set of policies. 

“Knowing what these policies are and being able to check that those policies represent best practices for whatever issue they’re the subject of is important,” Woollard says. “Especially when it comes to determining how safe these places are and making sure that the public is informed about what’s going on in their jail.”

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