NC judge considering whether to order more robust COVID-19 prison response

Wake County Superior Court Judge Vince Rozier hears arguments Tuesday over video conference.

Two attorneys for several civil rights organizations and incarcerated people alleged in court today that the state is not doing enough to protect detention populations from contracting COVID-19.

They asked Wake County Superior Court Judge Vince Rozier to order a more robust plan with a faster release schedule to reduce the incarcerated population in North Carolina. They suggested the state start with the release of 3,000 incarcerated people who have 60 days or less to complete their sentence.

The hearing for a temporary restraining order was conducted remotely over a WebEx video conference system due to COVID-19 restrictions.

Attorneys for the state argued that releasing 3,000 people from prison would overwhelm the system and not be possible. In the regular course of business, the North Carolina Department of Public Safety (DPS) releases upward of 2,000 people per month.

“The types of arguments that defendants are making about administrative hurdles are arguments that almost always get made when states are ordered to cure constitutional violations, but administrative difficulties do not excuse constitutional violations,” said Leah Kang, an attorney with the ACLU of North Carolina. “We are not, moreover, asking this court to, as the defendants characterize it, ‘open up the doors and let everybody out without any follow-up, any process.'”

DPS reported today that there are 596 incarcerated people who have tested positive for COVID-19, and 1,143 tests have been performed. There have been two reported deaths of incarcerated people related to the virus.

Stephanie Brennan, an attorney representing the defendants — the state and DPS — argued that the prisons already are doing everything they can to protect incarcerated people. They have canceled visitations, reduced the intake of people from jails and implemented the Centers for Disease Control and Prevention guidelines to the extent possible in detention facilities.

She added that DPS is reducing the incarcerated population, it’s just not happening as fast as the plaintiffs would like it to. According to court filings, they have released or “will soon release” about 647 people — roughly 2% of the 33,000 who are in custody.

Kang said it’s not enough, and it consigns tens of thousands of others to dangerous exposure to a highly contagious and sometimes deadly virus. There already are large outbreaks at Neuse Correctional Institution and the N.C. Correctional Institution for Women.

She focused on the fact that social distancing is impossible in prison, and said it makes conditions there unconstitutional. She pointed out that medical and public health experts have uniformly stated that incarcerated people are particularly vulnerable to the disease; Kang submitted an expert affidavit in the case stating it is “necessary and urgent” that state officials reduce the prison population.

“Moreover, the more modest measures defendants say they are taking and on which they heavily rely (providing masks and masks, and doing more cleaning) are insufficient to meet their duty under the constitution to keep the people who are under their custody safe,” she said. “Plaintiffs also submitted multiple affidavits from currently incarcerated people that bring into question whether these other measures (masks, cleaning) have been applied with fidelity and uniformly across DPS prisons.”

Tammera Hill, an attorney for the defendants, argued that running a prison is inherently discretionary. She said the decisions about how to do it should be left up to the “boots on the ground” people who have been making decisions all along, not the court. Releasing incarcerated people, she added, takes time, and they have to consider minimum sentences and reentry information, such where they would go after being released.

Kang told Rozier that there is an expansive reentry network in North Carolina with organizations and community groups offering to step up their efforts to make sure people who are released are not on the streets.

“It is more dangerous for all of us if you just shutter the doors of the prison and try to keep everyone locked inside,” she added. “The bottom line is, your honor, the state has a wide range of tools for release here. They have failed to use them to the extent that they need to make social distancing possible for incarcerated people.”

Whitley Carpenter from Forward Justice also argued for the plaintiffs.

The plaintiffs are seeking a preliminary injunction from the judge ordering the defendants to take any and all steps to allow for social distancing, which means they would have to decrease the number of people in custody. Kang offered to draft a plan for the judge, or she said DPS could come back with a better plan, or the court could appoint a special master to help the parties come up with one.

Whatever the plan, Kang said, it must include a written document with a facility-by-facility approach for reducing the prison population.

Rozier took all the arguments under advisement and said he hopes to make a ruling by the end of the week.

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