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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.