Trial News

As the coronavirus continues to spread in communities around the country, correctional institutions have been called “tinderboxes” where inmates and staff alike, unable to socially distance themselves, have little protection from the virus. Across the United States, trial attorneys are filing suits for injunctive relief and alleging civil rights violations, demanding that correctional institutions quickly identify and isolate infected individuals, increase facility cleanings, and provide adequate personal cleaning supplies. There also has been a broad push to reduce prison populations to allow for social distancing by releasing nonviolent pretrial detainees, granting early parole, granting medical furlough to medically vulnerable prisoners, and using alternative detention means.

On April 3, a lawsuit was filed on behalf of pretrial detainees in Cook County, Ill., seeking the release of medically vulnerable detainees and safer conditions for everyone. (Mays v. Dart, No. 1:20-cv-2134 (N.D. Ill. filed Apr. 3, 2020). Although the court preliminarily denied the release request on April 9, it granted a temporary restraining order (TRO) requiring the county to take a number of steps to protect detainees. The order requires social distancing during intake procedures; more widespread coronavirus testing; and detainee access to soap, cleaning supplies, and masks.

Chicago attorney Alexa Van Brunt, who represents the detainees in May, said that “the success in court was the result of all the people in the Cook County Jail who were brave enough to come forward about what they were experiencing. This is just a first step. We realize people are still at high risk inside the jail for illness and death, and we are evaluating our next steps.”

Claims also have been filed on behalf of all Illinois prisoners, including a federal class action lawsuit against the governor and state Department of Corrections and a federal habeas corpus action against the Department of Corrections. (Money v. Pritzker, No. 1:20-cv-02093 (N.D. Ill. filed Apr. 2, 2020); Money v. Jeffreys, No. 1:20-cv-02094 (N.D. Ill. filed Apr. 2, 2020).) These lawsuits advocate for the release of prisoners who are medically vulnerable or near the end of their sentences to reduce prison populations and allow for social distancing. The plaintiffs, a group of 10 prisoners, allege §1983 claims, including 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, as they are eligible for either medical furlough or home detention. Seven of the 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.”

On April 10, a judge denied the plaintiffs’ motions for a TRO, a preliminary injunction, and for expedited release in these Illinois cases. But Chicago attorney Alan Mills, who represents the plaintiffs, says that he will continue to work for his clients’ release. Mills added that “it’s impossible to socially distance while in prison.” He called the prisons “petri dishes for the coronavirus” and said that the only real solution is to reduce the prison population. “Guards come in and out, prisoners are released, and the coronavirus will invariably leak out into the communities—many of them sparse rural communities with too few intensive care unit beds,” Mills said.

Meanwhile, the California Department for Corrections and Rehabilitation has taken steps to reduce the population in its overcrowded prisons, releasing 6,758 people as of April 13, including granting expedited parole to about 3,500 people who were serving time for nonviolent crimes and due to be paroled within 60 days. Attorneys have asked the state to go further, filing a motion requesting targeted relief for all prisoners in overcrowded dorms—specifically, reducing populations to a level that would permit social distancing and releasing or relocating medically vulnerable prisoners. (Coleman v. Newsom, No. 2:90-CV-00520-KJM-DB (E.D. Cal. emergency motion filed Mar. 25, 2020); Plata v. Newsom, No. C01-1351-JST (N.D. Cal. emergency motion filed Mar. 25, 2020).) They suggest these population reductions could be achieved by releasing to parole or post-release supervision those offenders determined to be low risk under the department’s risk assessment tool, as well as those prisoners slated to be paroled within the year.

San Francisco attorney Gay Grunfeld, who represents the California plaintiffs, said that the state must “reduce the prison population as much as possible through wise action.” Uncontrolled outbreaks in prisons won’t just affect prisoners but also prison staff and their families, she added. Grunfeld also noted that many prisons are located in small rural communities that lack the necessary health care facility capacity to deal with a large outbreak.

Around the country, correctional institutions are being urged to comply with the Centers for Disease Control and Prevention (CDC) interim guidance on coronavirus management in correctional and detention facilities, which was issued on March 23. The CDC is calling for enhanced cleaning and disinfection, access to personal hygiene supplies, increased space between individuals in facilities, and the use of personal protective equipment. The guidance also calls for prisoner, staff, and visitor health screenings; coronavirus testing for suspected cases; and medical isolation of infected individuals.

Some states have worked to implement the guidance, but where implementation has been slow or inadequate, attorneys have stepped in to seek court orders to force facilities to comply. On April 3, 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 Society, No. 70 MM 2020 (Pa. Apr. 3, 2020). The order also calls on Pennsylvania counties to consider identifying for release certain individuals or classes if the use of “public health best practices is not feasible due to the population of the county correctional institutions.”

It’s unclear whether many correctional institutions can comply with CDC guidance intended to protect both prisoners and staff without significant inmate population reductions. But civil rights attorney Devon M. Jacob, of Mechanicsburg, Pa., remarked “what I have found most interesting about the response to the pandemic by certain jails and prisons that have historically housed inmates in inhumane living conditions is that when it became time to protect guards from the virus, suddenly, these facilities were able to be maintained in a sanitary condition.”

Many other cases have been filed on behalf of prisoners seeking protections from the coronavirus, including in Louisiana, Texas, and Washington, D.C. (Baqer v. St. Tammany Parish Gov’t, No. 2:20-cv-00980 (E.D. La. filed Mar. 22, 2020); Valentine v. Collier, No. 4:20-cv-01115 (S.D. Tex. filed Mar. 30, 2020); and Banks v. Booth, No. 1:20-cv-849 (D.D.C. filed Mar. 30, 2020).) For updated information on actions around the country to protect prisoners, see https://www.prisonpolicy.org/virus/virusresponse.html.

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