Trial Magazine

As the novel coronavirus has spread nationwide, correctional institutions have been called “tinderboxes” where inmates and staff alike, unable to adequately socially distance, have little protection from the virus. Across the country, attorneys have filed suits for injunctive relief and civil rights violations. They demand that correctional institutions quickly identify and isolate infected individuals, increase facility cleanings, and provide adequate personal cleaning supplies. Attorneys and prisoner advocacy groups have pushed to reduce prison populations to allow for social distancing by releasing nonviolent pretrial detainees, granting early parole, granting furlough to medically vulnerable prisoners,¹ and using alternative detention means. 

Petri Dishes and Overcrowding

A lawsuit filed on behalf of pretrial detainees in Cook County, Ill., sought the release of medically vulnerable detainees and safer conditions for everyone.² Although the court preliminarily denied the release request, it granted a temporary restraining order (TRO) requiring the county to take several steps to protect detainees: social distancing during intake; more widespread coronavirus testing; and giving detainees access to soap, cleaning supplies, and masks.³ In a subsequent order, the court converted the terms of the TRO to a preliminary injunction, adding new social distancing requirements that limit the use of group housing and “double celling”—placing two inmates in one cell.⁴

Also in Illinois, prisoners at several state correctional centers have filed a federal class action against the governor and the state’s Department of Corrections, as well as a federal habeas corpus action against the Department of Corrections.⁵ A group of 10 prisoners brought §1983 claims, alleging that the state has been deliberately indifferent to the serious risk of harm posed by the coronavirus and that the state has denied them due process because they are eligible for either medical furlough or home detention. Seven plaintiffs also allege violations of Title II of the Americans with Disabilities Act, arguing that they are being placed “at a disproportionate risk of medical complication and death because of their disability.”⁶ The plaintiffs’ motions for a TRO, a preliminary injunction, and expedited release were denied in the Illinois cases.⁷

Chicago attorney Alan Mills, executive director of the Uptown People’s Law Center and who represents the plaintiffs, called the prisons “petri dishes for the coronavirus” and said that reducing the prison population is the only real way to keep prisoners safe during the pandemic. “The general public needs to pay attention—guards come in and out of prisons, and prisoners are released every day, mostly to communities that are already medically underserved and are hardest hit by the pandemic. If we don’t keep the coronavirus out of the prisons, everyone will suffer the consequences,” Mills said.

In California, the state’s Department for Corrections and Rehabilitation (CDCR) tried to ease overcrowding in prisons, releasing more than 14,000 prisoners between March and July 2020. In April, it granted expedited parole to about 3,500 people who were serving time for nonviolent crimes and due to be paroled within 60 days, and then in June, it announced it would allow certain inmates with 180 days or less of their sentence to be released to parole or probation.⁸

Attorneys have filed motions requesting populations in overcrowded dorms be reduced to a level that would permit social distancing and releasing or relocating medically vulnerable prisoners.⁹ They suggest paroling or post-release supervision for offenders who are considered low risk under the department’s risk assessment tool, as well as prisoners slated to be paroled within one year.

The court initially rejected these calls for release of additional prisoners.¹⁰ But by July, California federal district court Judge Jon Tigar, who is overseeing the California litigation, noted that “the disease has spread out of control at more than one institution, and the risks to elderly and medically vulnerable inmates are markedly more clear.”¹¹ Judge Tigar added that the “defendants’ failure to act will cause an inevitable and unnecessary loss of life—not just in California’s incarcerated population, but also among CDCR staff and those beyond institutional walls who interact with staff or their households on a daily basis.”¹²

Gay Grunfeld, a San Francisco attorney who represents a class of over 40,000 prisoners in one of the California cases—Coleman v. Newsom—agreed that “this unbridled, unchecked spread of disease in prisons affects all of us.” She noted that many prisons are located in small rural communities that lack the necessary health care facility capacity to deal with a large outbreak, but that even urban areas are being overwhelmed. Grunfeld said, “Because it is impossible to socially distance in prisons, a significant reduction in population is necessary.”

Compliance With CDC Guidance

Correctional institutions have been urged to comply with the Centers for Disease Control and Prevention (CDC) interim guidance on managing the virus in their facilities, which calls for enhanced cleaning and disinfection, access to personal hygiene supplies, increased space between people in facilities, and the use of personal protective equipment.¹³ The guidance also calls for prisoner, staff, and visitor health screenings; testing for suspected coronavirus cases; and medical isolation of infected people.¹⁴

Some states have worked to implement the guidance,¹⁵ and where implementation has been slow or inadequate, attorneys have stepped in to seek court orders to force facilities to comply.¹⁶ According to attorneys representing the prisoners, it’s unclear whether many correctional institutions can comply with the CDC guidance without significant inmate population reductions.

Claims Reach SCOTUS

By May, the first lawsuits reached the U.S. Supreme Court, which has been reluctant to reverse circuit court rulings against the prisoners.

Administrative roadblocks to relief. First, the Court rejected a certiorari petition by a group of prisoners from the Texas Department of Criminal Justice’s Pack Unit—a facility that mostly houses prisoners over 50 and those with preexisting health conditions—to enforce a federal district court order that would have provided them with disease prevention measures such as face masks and greater access to hand soap and sanitizers.¹⁷ The Court agreed with the Fifth Circuit that the prisoners had failed to exhaust the mandatory grievance process under the Prison Litigation and Reform Act (PLRA) before filing their claims in court.

However, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, cautioned that “while [s]tates and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death.”¹⁸ She added that “in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer,” an exception to the PLRA “could open the courthouse doors where they would otherwise stay closed.”¹⁹

Austin, Texas, attorney Jeff Edwards, who represents the Pack Unit prisoners, agreed: “We are measured by how we treat those in our prisons, especially this particularly vulnerable population of elderly and disabled inmates.”

Two weeks later, the Court denied the certiorari petition of another prisoner, Christopher Marlowe, a diabetic at Louisiana’s Rayburn Correctional Center.²⁰ In his motion for a TRO, Marlowe argued that he is especially  vulnerable to the coronavirus due to his underlying health condition and requested that the facility “meaningfully implement social-distancing procedures and other measures aimed at thwarting the spread of the coronavirus.”²¹ He alleged that the facility does not regularly clean common areas such as water fountains, has failed to eliminate “chokepoints” in dormitory walkways, and has inmates standing “heel-to-toe” to receive cafeteria meals that they then eat sitting directly next to each other.²²

A federal district court had required Louisiana’s Department of Public Safety and Corrections to submit a plan for implementing proper hygiene and social distancing practices, but the Fifth Circuit stayed the order, finding that the plaintiff failed to exhaust administrative remedies.²³ The Supreme Court denied Marlowe’s request to vacate the stay but indicated that he could still seek redress through the prison’s grievance process. His dorm was later quarantined when a fellow prisoner tested positive for COVID-19.²⁴

In a lawsuit calling for the release of prisoners at the Elkton Federal Correctional Institution in Lisbon, Ohio, the Court ultimately granted the U.S. Justice Department’s request to halt two federal district court orders that required the U.S. Bureau of Prisons to identify prisoners who are vulnerable to the coronavirus—those who are over 65 or who have documented medical conditions—and move them through either furlough or transfer.²⁵ The prisoners argued that confinement during the pandemic violates their Eighth Amendment rights, and the district court agreed, finding that the prison’s dorm-like structure made it impossible to implement social distancing and that the prison lacked adequate tests to determine which prisoners and staff members are infected.²⁶

The Court initially allowed the first order to stand, but the defendants had not requested a stay of the second order.²⁷ The Sixth Circuit ultimately reversed the second order, finding that the prisoners were unlikely to succeed on the merits of their Eighth Amendment claim.²⁸

“When the government takes individuals into its custody, it has an obligation to ensure their safety. Prison sentences should not be death sentences,” said ACLU National Legal Director David Cole, of New York City, who represents the class of Elkton prisoners. “Thus far, the government has seemingly spent more time fighting orders in the courts than keeping prisoners safe.”

* Editor’s note: All information and statistics are based on when the article went to production.

For more information on actions around the country to protect prisoners, see:

• Prisoners’ Rights, ACLU, https://www.aclu.org/issues/prisoners-rights
• A State-by-State Look at Coronavirus in Prisons, The Marshall Project (June 12, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-statelook-at-coronavirus-in-prisons
• COVID-19 and the Criminal Justice System, Prison Policy Initiative, https://www.prisonpolicy.org/virus/index.html

Maureen Leddy is an associate editor for Trial.

Notes

1. Most state prison systems allow for some form of compassionate release—such as medical furlough—for inmates who have serious medical conditions or are terminally ill. Some also allow for medical furlough of elderly inmates. See Mary Price, Everywhere and Nowhere: Compassionate Release in the States, Families Against Mandatory Minimums (June 2018), https://tinyurl.com/ybqche3t.
2. Emergency Motion for Temporary Restraining Order or Preliminary Injunction, Mays v. Dart, No. 1:20-cv-2134, 2020 WL 2617326 (N.D. Ill. filed Apr. 3, 2020).
3. Mays v. Dart, 2020 WL 1812381 (N.D. Ill. Apr. 9, 2020).
4. Mays v. Dart, 2020 WL 1987007 (N.D. Ill. Apr. 27, 2020).
5. Class Action Complaint, Money v. Pritzker, No. 1:20-cv-02093 (N.D. Ill. filed Apr. 2, 2020); Emergency Petition for Writs of Habeas Corpus, Money v. Jeffreys, No. 1:20-cv-02094, 2020 WL 1648583 (N.D. Ill. filed Apr. 2, 2020).
6. Class Action Complaint, supra note 5, at 46.
7. Money v. Pritzker, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020).
8. Cal. Dep’t of Corr. & Rehab., COVID-19 Information: Updates, https://www.cdcr.ca.gov/covid19/updates/; Cal. Dep’t of Corr. & Rehab., COVID-19 Response Efforts, https://tinyurl.com/ybottko7. On July 10, the CDCR announced that an estimated 8,000 inmates could be eligible for release by late August. 
9. Plaintiff’s Notice of Emergency Motion and Emergency Motion to Modify Population Reduction Order: Memorandum of Points and Authority to Support, Coleman v. Newsom & Plata v. Newsom, Nos. 2:90-CV-00520-KJM-DB & C01-1351-JST (E.D. Cal. & N.D. Cal. Mar. 25, 2020).
10. Order Denying Plaintiffs’ Emergency Motion to Modify Population Reduction Order, Coleman v. Newsom, 2020 WL 1675775 (E.D. Cal. Apr. 4, 2020); Order Denying Plaintiffs’ Emergency Motion Regarding Prevention and Management of COVID-19, Plata v. Newsom, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020).
11. Order Setting July 6, 2020 Case Management Conference, Plata v. Newsom,  (N.D. Cal. July 5, 2020).
12. Id. at 5.
13. Ctrs. for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22, 2020), https://tinyurl.com/ue7v8w4.
14. Id.
15. See N.H. Dep’t of Corr., COVID-19, https://www.nh.gov/nhdoc/covid/index.html.
16. In April, the Pennsylvania Supreme Court ordered counties in the state to work with correctional institutions to ensure compliance with the CDC guidelines. In Re: The Petition of the Pa. Prison Soc’y, 2020 WL 3116883 (Pa. Apr. 3, 2020).
17. Valentine v. Collier, 140 S. Ct. 1598 (U.S. May 14, 2020).
18. Id. at 1599.
19. Id. at 1601.
20. Marlowe v. LeBlanc, 2020 WL 2780803 (U.S. May 29, 2020).
21. Marlowe v. LeBlanc, 2020 WL 1955303, at *5 (M.D. La. Apr. 23, 2020).
22. Id. at 4.
23. Marlowe v. LeBlanc, 2020 WL 2043425 (5th Cir. Apr. 27, 2020).
24. COVID-19 cases continued to creep up at the Rayburn facility, which reported 59 cases as of July 30. See La. Dep’t of Pub. Safety & Corr., COVID-19 Inmate Positives, https://doc.louisiana.gov/doc-covid-19-testing/.
25. Williams v. Wilson, 2020 WL 2988458 (U.S. June 4, 2020).
26. Williams v. Wilson, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020); Williams v. Wilson, 2020 WL 2542131 (N.D. Ohio May 19, 2020).
27. Williams v. Wilson, 2020 WL 2644305 (U.S. May 26, 2020). The challenge to that second order was still pending before the Sixth Circuit when the U.S. Supreme Court considered the first order.
28. Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020).