The Growing Litigation Battle Over COVID-19 in the Nation’s Prisons and Jails

Covid in Prison

By Burton Bentley II

The COVID-19 pandemic is sure to become a staple of court dockets in the months and years to come, and already one sector has triggered a wave of litigation over questions of civil rights, public health, and institutional liability—America’s prisons and jails.

Since the first novel coronavirus cases reached the prisoner population earlier this year, hundreds of actions have been filed in state and federal courts. By early August, three prisoner-related matters had even reached the U.S. Supreme Court—the latest involving a preliminary injunction against the Orange County, Calif., jail.

Most of the cases have taken the form of class actions, filed by civil rights and prisoner advocacy groups, often with the support of major law firms working on a pro bono basis. The cases generally call for improved conditions that match or exceed Centers for Disease Control and Prevention (CDC) guidelines designed to curb the spread of the virus. Many of the cases also advocate for the compassionate release of sick or vulnerable inmates.

Prison authorities have fought back. They have argued with some success that they are moving as quickly as they can to protect inmates and their staffs against a fast-moving health threat, and that they must balance prison conditions with public safety and the limits of their budgets.

Meanwhile, new filings continue to mount. To better understand this growing body of prison-related litigation and its potential impact, it is useful to review: the current state of COVID-19 at correctional institutions; how expert physicians with first-hand knowledge of the situation view the crisis inside prison walls; practical steps correctional institutions may take to avoid and contain outbreaks; and the developing case law around the country.

Increasing Numbers

In a March 15 report on coronavirus and its threat to incarcerated populations, the World Health Organization said “prisons, jails and similar settings…may act as a source of infection, amplification and spread of infectious diseases” to people inside and beyond prison walls. “Prison health is, therefore, critical to public health,” and requires a “whole-of-government and whole-of-society approach,” the WHO wrote.

Unfortunately, by the time of the WHO report, COVID-19 had already penetrated a handful of U.S. prisons and jails, and it moved rapidly to facilities around the country. According to data gathered by the Associated Press and The Marshall Project, a nonprofit news organization covering criminal justice issues, 80,000 coronavirus cases have been reported among inmates in federal and state correctional facilities. Nearly 800 of those prisoners have died. In addition, about 18,000 staff members have been infected, and 55 (as of this writing) have died as well, the data shows.

Those numbers do not include all local jails, detention centers and police stations, where outbreaks have also been widespread. In one well-publicized incident, for instance, the Cook County, Ill., jail reported more than 1,000 cases among employees and detainees. A study published in June by the journal Health Affairs found that one in six cases in Cook County may be attributed to people cycling in and out of the jail and making contact with the community at large.

As in the general population, the COVID-19 infections have been increasing rapidly among inmates. Since the last week of April, the number of inmate infections has risen by at least 2,000 each week, with several weeks in June and July topping 6,000 and 7,000 cases.

A View From Inside

For additional perspective, two doctors with first-hand experience working in correctional institutions shared with me their observations about the pandemic and how it is spreading in jail settings.

Dr. Rebecca Lubelczyk, a professor of internal medicine, correctional healthcare specialist, and practitioner at the Massachusetts Partnership for Correctional Healthcare, is often called upon to inspect facilities facing  litigation. She notes that the outbreak poses a paradox for the incarcerated population. On one hand, Lubelczyk says, inmates are “uniquely, physically separated” from the general public “and therefore have less risk of getting infected.” That is, until “the virus sneaks its way into the facility” via a staff member, contractor, visitor, volunteer, or a newly admitted inmate or detainee.

“Once the virus makes it over the walls and through the gate, it can cause an outbreak that can overwhelm an institution’s ability to care for the incarcerated population,” Lubelczyk says. “It’s like a pinball, hitting anyone in its path until it is contained and isolated.”

Dr. Venktesh Ramnath, a San Diego-based, board-certified pulmonologist and lung disease expert, has been at the leading edge of a number of compassionate release cases and has been treating COVID-19 on a daily basis. Ramnath says risks rise in environments where individuals live in close quarters and have limited access to personal protective equipment. The severity of the outbreak only multiplies when individuals have existing cardiac or respiratory conditions, he says.

Correctional facilities, both physicians say, can take practical steps to help prevent the spread of COVID-19. “Since up to 62% of transmissions can occur prior to the onset of symptoms in infected patients, recommended approaches to disease prevention continue to support wearing face masks, physical distancing of more than six feet, and hand and surface disinfection,” Ramnath says.

Preventative Measures

Dr. Lubelczyk offered a number of measures facilities may take to prevent and contain the virus, including:

  • Screening staff and others entering the facility with temperature checks and questionnaires, and immediately sending home anyone ill.
  • Quarantining new inmates, as well as those who temporarily leave and reenter a facility, particularly in regions where the virus is rapidly growing.
  • Preventing asymptomatic individuals from spreading the virus, and ensuring that proper face coverings (masks that cover the mouth and nose) are distributed and that mask-wearing rules are enforced.
  • Advising staff and inmates to cover their mouths when they cough and to wash and sanitize hands frequently, to refrain from touching their faces, and to stay six feet apart when possible.
  • Frequently sanitizing common areas and surfaces. This includes telephones, light switches, doorknobs, and other high-touch areas. Frequent cleaning helps decrease viral load on these surfaces and the risk of contact transmission.

Unfortunately, most correctional institutions were built with public safety in mind, not to halt disease transmission. Crowding, delays in medical treatment, limits on access to basic cleaning supplies (soap and water, for instance), training lapses, and prohibitions against the use of harm-reducing tools can hamper efforts to control the virus.

Developing Case Law

These issues are often at the heart of the cases being litigated around the country. In all, more than 400 compassionate release matters have been decided by federal courts, according to data compiled by the Health is Justice project at Columbia Law School, with cases filed in 42 states, as well as Puerto Rico and Washington, D.C.

Here are just a few examples of the dozens of new cases filed in just the last few weeks:

  • In Tulare County, Calif., the sheriff’s department was the target of a class action brought by county jail inmates for allegedly failing to provide face masks and other basic protections against COVID-19.
  • In Clayton County, Ga., the sheriff’s department has been sued by civil rights advocates over the lack of personal protective equipment and cleaning and sanitation supplies at the county jail.
  • A suit has been filed against the federal prison in Sheridan, Ore., seeking a prisoner’s release because of his age and underlying health conditions and asking a court to force the U.S. Bureau of Prisons to address coronavirus prevention efforts at the facility.
  • A class action filed in Maricopa County, Ariz., federal court asks for the release of vulnerable inmates, mass testing, and additional safeguards for prisoners and staff.

From a legal standpoint, many the cases center upon: due process claims under the Fourteenth Amendment, particularly related to pre-trial detainees; Eighth Amendment protections against cruel and unusual punishment; Americans with Disabilities Act violations; and discrimination claims under the Rehabilitation Act. Plaintiffs are often asking judges to intervene to force immediate changes at prisons and jails, while litigation is pending.

The approach has yielded mixed results thus far. Some judges have moved aggressively, ordering institutions to improve conditions and to do more to adhere to CDC guides. Yet those decisions have met with continued appeals and resistance from corrections officials, and the U.S. Supreme Court has twice overturned efforts by federal judges to intervene forcefully in coronavirus-related matters.

In May, the high court rejected on procedural grounds a request by inmates to increase cleaning and COVID-19-related education efforts at their Texas-based geriatric correctional facility. The court upheld the U.S. Court of Appeals for the 5th Circuit, which had overturned a Houston-based federal judge’s ruling supporting the prisoners. A few days later, however, the court appeared to switched course, letting stand a federal judge’s order requiring that prison officials move hundreds of inmates from an Ohio institution where nine people had died from COVID-19. Then, on Aug. 3, justices, in a 5-4 decision, overturned a lower-court injunction requiring stricter health and safety measures at the jail in Orange County in Southern California.

An Instructive Case

The Orange County case, Barnes v. Ahlman, is instructive in terms of the arguments being made on both sides and the response by the courts. The jail’s leadership was accused by prisoners of ignoring Centers for Disease Control and Prevention recommendations by failing to enforce social distancing measures and declining to isolate inmates with COVID-19 symptoms. A federal judge in California had issued a preliminary injunction that required the jail to take stronger measures, and the U.S. Court of Appeals for the Ninth Circuit declined a request by the jail to halt the injunction.

Jail officials argued that, prior to the injunction, CDC guidelines had been “largely implemented” and said the injunction’s requirements far exceeded the scope of the CDC’s recommendations. They also cited their efforts to voluntarily release half of the jail’s inmates to help with social distancing and said they had all but eliminated “COVID within the jail population.”

The Supreme Court majority voted to stay the injunction while litigation continues. As is custom, the justices did not explain their reasoning in the order. Justice Sonia Sotomayor dissented, saying the stay was premature and that jail had placed inmates at significant risk. Earlier in the Texas case, Sotomayor encouraged lower courts to ensure “that prisons are not deliberately indifferent in the face of danger and death.”

The Road Ahead

Though much of the litigation related to COVID-19 and the incarcerated population is still pending, the cases have raised awareness about the unique issues facing correctional institutions, inmates, and staff. In response, some jurisdictions have acted by reducing jail populations, halting jail time for misdemeanors, moving to virtual court proceedings, and releasing the most vulnerable prisoners.

Nonetheless, in the days and weeks ahead, attorneys, corrections officials and judges will continue to face complex questions about the appropriate response to the pandemic. They can ease their task by engaging with experts in medicine and science to provide accurate, up-to-date epidemiological information and informed, emotion-free assessments of actual conditions at institutions. Such actions can save lives—both inside and outside jail walls.

Reprinted with permission from © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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