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Expert Brief

What’s Keeping Thousands in Prison During Covid-19

Procedural hurdles and tough legal standards are preventing incarcerated people from going to federal court for pandemic relief.

Published: July 22, 2020

Laddy Valentine, who turns 70 in September, is incarcerated in a prison northwest of Houston. He is a lead plaintiff in a federal class-action lawsuit trying to get the facility to supply personal protective equipment and soap and to institute effective social distancing policies to stop the spread of Covid-19.

Valentine is at elevated risk for Covid-19 — not only is he in an older age group, he has hypertension, has suffered a stroke, and uses a walker following back surgery. His prison has a history of showing indifference to incarcerated people’s health. Courts have previously intervened due to arsenic in the prison’s drinking water and a lack of air conditioning that led to heat-induced deaths.

His lawsuit was filed on March 30. Two weeks later, the trial judge granted a temporary restraining order requiring the prison to provide basic health and hygiene equipment and institute social distancing policies. But since then, the prison successfully appealed to prevent the court order from going into effect, continued to oppose the ongoing litigation, and denied imprisoned people’s internal requests for relief.

In just a few months, the case has gone all the way to the Supreme Court and back to the trial court as the prison continues fighting oversight from the federal judiciary. In that time, 18 people held in the prison have died from Covid-19, and at least 267 others have tested positive, including Valentine.

His situation is far from unique. In U.S. prisons there have been over 55,000 known cases of Covid-19 and over 600 deaths (including corrections officers) since the pandemic started, a predictable situation that advocates have been warning about from the start. A recent study shows that people in prison are over five times more likely to contract Covid-19, and three times more likely to die from the disease if they contract it. Due to poor access to basic hygiene products and close quarters, prisons have long been hotbeds of disease outbreaks, and prisons across the country have housed some of the worst clusters of Covid-19 cases since April.

The Constitution requires that prison officials and governments protect incarcerated people from the inevitable continued spread of Covid-19 behind bars. In the next Covid-19 legislation package, Congress should include relief for our nation’s incarcerated population, including funding to support the states in this effort, as well as legal changes that will more readily permit incarcerated people to bring their cases to federal court for review.

Despite advocates’ early calls for a fast reduction of prison and jail populations, a recent study from the ACLU and Prison Policy Initiative found that the measures taken by governorsprisons officialsprosecutors, and law enforcement have resulted in only a small overall reduction in the prison population, but there have been larger reductions in jail populations. Among 49 states, the total prison population has been reduced by only around 5 percent. The jail population, however, showed a 20 percent median decrease nationwide. But even with people being released, safe social distancing in jail or prison is virtually impossible. And all states have failed to adequately implement policies necessary to prevent the transmission of Covid-19 among their incarcerated populations and staff.

Some of the 95 percent of people in prisons who have been left behind have taken to the courts. While their options are generally to request release or seek improvements to conditions, they face a gauntlet of legal obstacles to enforce their constitutional rights in federal court.

As things stand now, the legal tools incarcerated people have vary depending on whether they are in prison or jail and whether they are in state or federal custody. The law also creates various hurdles when it comes to seeking relief in federal court due to the Supreme Court’s interpretation of the relevant laws and the Constitution.

Getting out of federal prison

Compassionate release under the First Step Act

For people in federal prisons, the First Step Act permits seeking a reduction in sentence based on age, time served, or other “extraordinary and compelling reasons.” But people in federal prisons cannot request compassionate release directly from federal courts — rather they must request it from the federal Bureau of Prisons (BOP), which then either requests it from the courts or rejects the request. A rejected request then goes through a lengthy series of appeals. If an initial request doesn’t receive a response from the bureau within 30 days, the person requesting it can then request it from the courts directly. But even 30 days is too long in this pandemic.

In practice, however, the BOP has neglected to make use of compassionate release, and has opposed it in court. In a May letter to congressional leaders, advocates noted that at FCI Elkton, a low-security federal prison, the BOP claimed that only 1 of 836 people identified as having a high risk of susceptibility to Covid-19 “met the criteria” for compassionate release.

Due to Covid-19’s rapid spread, some courts have interpreted the First Step Act as allowing them to ignore the 30 day requirement, reasoning that the statute’s purpose is to allow court intervention when the BOP cannot act quickly enough. Other judges, however, have declined to interpret the law that way, meaning that those in federal custody may get different treatment depending on where they are incarcerated or which federal judge is hearing their case.

Home confinement

Enacted during the pandemic, the Cares Act expanded the number of people in federal prison eligible to be transferred to home confinement — essentially house arrest. The BOP reports that it has placed 6,852 people in home confinement since March 26, representing just under 4 percent of the 174,923 who were in custody on February 20. And notwithstanding the pandemic, the BOP has made it more difficult to be released on home confinement because of a change to the risk assessment tool used to evaluate release decisions, which is itself worthy of concern.

Prison conditions lawsuits

Getting to court

For those who are not eligible for relief under the First Step Act, the path to federal court is even more difficult. If someone in state or federal prison wants to file a federal lawsuit seeking Covid-19 relief, such as ensuring that their facility complies with the CDC’s guidelines or seeking release from custody, their case is usually subject to the Prison Litigation Reform Act (PLRA), a 1996 law that curtails access to the federal courts for people in prison.

The PLRA generally prevents lawsuits brought by incarcerated people until they first seek relief inside their facility or exhaust available administrative remedies. The Supreme Court has held that this requirement is not optional if administrative remedies are available, and in 2016, it reversed a lower court’s decision to permit a lawsuit to go forward due to “special circumstances.” During the pandemic, courts have undertaken a case-by-case, factual analysis of the question of whether administrative remedies are “available.” And although some courts have decided that the risks posed by Covid-19’s rapid spread are dire enough to conclude that prisons’ administrative grievance processes are effectively “unavailable,” not all federal courts have taken this approach.

Rights and remedies

Even if an incarcerated person can successfully reach court, a further tangled web of legal requirements — based on the Supreme Court’s interpretation of the Constitution and the PLRA — makes it difficult to get any meaningful relief.

When people in prison sue in federal court regarding the conditions of their confinement, their claims are generally based on the Eighth Amendment’s prohibition of “cruel and unusual punishment.” In a string of cases decided before the PLRA’s passage, the Supreme Court held that in lawsuits about prison conditions, incarcerated people must show that prison officials are, or were, “deliberately indifferent” to a substantial risk of danger.

This burden is high. First, incarcerated people must show there is an objectively intolerable risk of harm. In addition, the incarcerated person must prove that the prison official knowingly disregarded that risk. This standard, which requires proof of a prison official’s subjective intent, is difficult to prove, especially if a prison official is taking some steps to fix the problems inside a facility, even if they’re insufficient.

Even if an incarcerated person convinces a court to intervene, the PLRA limits what relief federal courts may order when it comes to prison operations. Federal court orders must be “narrowly drawn” to vindicate an incarcerated person’s rights and be the “least intrusive means” possible.

In addition, the PLRA forbids courts from releasing a person from prison to protect their rights unless “less intrusive relief” has failed to remedy the deprivation or violation of the person’s rights. Release can also only be ordered by a three-judge panel, as compared to the single judge who normally presides over federal cases.

The path ahead

As Covid-19 continues to devastate the country, governorsprison officialsprosecutors, defense counsel, and the courts must identify those who can be safely released.

But Congress should also help in the next coronavirus legislative package. On the issue of compassionate release, the Covid-19 Safer Detention Act would shorten the amount of time an incarcerated person has to wait before the federal courts can hear their case. Provisions of the Emergency Grace Act would allocate money to support states’ efforts to speedily identify those who should be released on the basis of age or medical conditions.

Congress should also consider passing a public health emergency exception to the PLRA that would permit federal courts to hear cases with less delay by eliminating or shortening the timing for the exhaustion requirement and allowing for greater judicial discretion to address prison conditions.

Trial in Laddy Valentine’s lawsuit began virtually on July 13, and the case is moving along relatively quickly. But there are hundreds of thousands of incarcerated people nationwide who are also desperate for improved prison conditions. Respect for their lives demands more releases from prison as quickly as possible.