Judge reconsidering whether to intervene in DPS prison response to COVID-19

During a court hearing Wednesday, plaintiffs painted a stark picture of what it’s like to be in a North Carolina prison during a pandemic.

Social distancing isn’t possible; the Department of Public Safety doesn’t have a plan to further decrease the population; in fact it plans to increasing it by 1,700 to 1,800 people. The rate of infection in the state prisons is unknown, and DPS doesn’t have a comprehensive testing plan. Nor is DPS taking special steps to protect its most vulnerable incarcerated people from the deadly virus.

Leah Kang, a staff attorney at the ACLU of North Carolina representing the plaintiffs, highlighted stories of incarcerated peoples’ deaths, but also of those who are sick, who have been denied or delayed medical care, and those who had COVID-19 but “recovered” and will continue to suffer long-term and permanently debilitating effects from the virus.

“There is preventable human suffering and death that has and will continue to occur in DPS prisons,” Kang said. “It calls upon this court for a remedy. … This is cruel and unusual punishment, your honor.”

This is the second time Kang has argued in front of Judge Vince Rozier in Wake County Superior Court asking him to grant a preliminary injunction and appoint a special master to help DPS figure out how to implement proper social distancing and prioritize releasing medically vulnerable incarcerated people, as well as those individuals who are close to their release date.

Attorneys for DPS told another story. The agency said it is complying with, and in some cases exceeding, guidelines from the Centers for Disease Control and Prevention. Yes, the agency has resumed transfers of incarcerated people from prison to prison, said the attorneys, but it has been taking precautions to keep them safe, and has been transparent with the public about the policy changes during the pandemic.

Assistant Attorney General Orlando Rodriguez said social distancing is possible in prisons, just not at night because there isn’t space to move bunks far enough apart. However, there are still other options for people to distance. He also said the plaintiffs’ requests for relief are based on the premise that public health best practices are a standard of law, but they aren’t, and the constitution doesn’t require perfection.

“It is very unfortunate that this virus is ravaging all populations, but it is ravaging all populations,” he said. “The department is doing the best that it can with the resources that it has and the information that it has to adapt as the landscape changes and to mitigate the risks as best its able to its population.

“The fact that only five deaths, fortunately only five deaths, but no matter if it’s only five or one, they’re all unfortunate. But fortunately it’s not more. I think that is some evidence that what the department is doing works.”

Kang expressed revulsion at Rodriguez’s comment about the deaths. She told the judge that the US is only three months into a global pandemic that experts say will last 18 months to two years. She also pointed out that a nurse at one of the prisons also died from COVID-19, but that DPS hid it for weeks.

The agency has since offered voluntary testing to its employees at off-site locations, but it still doesn’t have comprehensive testing for incarcerated people. Kang said as of Tuesday, there were 10 or fewer COVID-19 tests administered at 40 of North Carolina’s 51 prisons. At 13 of those, no tests have been administered.

“Without testing, defendants are operating in near complete darkness and yet they are somehow telling this court that they have the pandemic under control,” Kang said. “They’re basically insisting that there is nothing to see, even as they admit that they refuse to turn on the lights.”

She also pointed out that less than a month after DPS told the court it wasn’t transferring incarcerated people, it has started transferring an average of 195 people per day within the system. In the past few days, she added, the department transferred 197 people from prisons with COVID-19 cases to prisons without cases; another 164 people without confirmed cases were transferred to facilities with cases.

The plaintiffs provided an affidavit containing an email stating that it’s understandable people would be concerned about the transfers, but that the department is not in a position to permit COVID-19 concerns to prevent it from fully using available space at its facilities.

“Defendants don’t get to declare this pandemic over or to decide that COVID-19 is no longer a concern that affects how they use their space,” Kang said. “Actually they have a constitutional duty to make it a concern.”

Rodriguez assured the judge that DPS was being as careful as possible with the transfers, but that the agency has to make room for incoming incarcerated people, especially since the courts are more active this month than previously.

Rozier questioned what authority he would have to order people released from prison, given sentencing laws in place. Attorneys for DPS and the state contended he did not have authority. Kang said a special master could help clarify which incarcerated people already had served minimum sentences and could be eligible for the state’s version of early release, called extended limits of confinement.

DPS has only released 790 people, or about 2% of its population, since the start of the pandemic, according to Kang.

Rozier said he would take arguments under consideration and issue a ruling at a later time.

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