Tyler LaRiviere/Chicago Sun-Times via AP
Demonstrators demand the release of prisoners during the pandemic, April 20, 2020, in Chicago.
CLEVELAND – For days in May, incarcerated people at Elkton Federal Prison in Columbiana County, Ohio, were being moved around the facility, tested for COVID-19, but left without answers. Family members told the Prospect that the prison email system at the 2,500-person low-security facility was temporarily shut down at one point, leaving inmates unable to contact their families on the outside.
The ACLU of Ohio had brought a federal lawsuit in April against Elkton prison and the Bureau of Prisons, alleging that the facility was unsafe during a COVID outbreak and that the prison was unable to protect those inside. But family members on the outside told me they struggled to communicate what was happening in the lawsuit to their incarcerated loved ones. On the inside, rumors swirled. In the week between when the ACLU filed the suit and when the judge heard arguments, three more incarcerated people at Elkton had died. As of June 17, nine incarcerated people have died at Elkton.
On April 22, U.S. District Judge James Gwin ruled in favor of the ACLU, demanding that the BOP assemble a list of medically vulnerable inmates within 24 hours and assess who would be eligible for home confinement or compassionate release. Others would have to be transferred to different prisons in order for Elkton to comply with social-distancing guidelines. As Gwin wrote in his first ruling, “The only effective remedy to stop the spread [of COVID-19] is to separate individuals,” which is “impossible” without at least some releases.
Ultimately, the Sixth Circuit Court of Appeals struck down Judge Gwin’s ruling, leaving medically vulnerable inmates stranded in Elkton and families without hope.
Prison officials listed 837 inmates within the 24-hour deadline, but then began to slow-walk the rest of the judge’s order. “When the results [of the evaluations] came back, it became clear the prison was not conducting those evaluations in good faith,” explained David Carey, the ACLU attorney on the case. “They were applying an extremely strict interpretation of their own guidelines.”
For example, officials were using any example of a violent offense on someone’s record as a categorical bar—even an offense that the incarcerated individual was not currently serving for. Even incident reports were included, despite Judge Gwin’s instructions to disregard low- or moderate-level incident reports on their evaluations. Such reports might include things like feigning illness, insolent behavior, or circulating a petition, Carey said.
As of May 19, no one had been moved or released as a result of Judge Gwin’s order. That day, he issued an enforcement order, writing that “by thumbing their nose at their authority to authorize home confinement, [prison officials] threaten staff and they threaten low security inmates.” At the time, Elkton had had more inmate deaths than any other federal facility and no one had been moved as a result of the judicial order. After two attempts, the Justice Department successfully blocked the order, as the Supreme Court allowed the administration more time to challenge it.
The Supreme Court order earlier this month put on hold the transfer of 120 incarcerated people who were scheduled to be transferred out of Elkton the next day. Ultimately, the Sixth Circuit Court of Appeals struck down Judge Gwin’s ruling, leaving medically vulnerable inmates stranded in Elkton and families without hope. “If they had spent a fraction of the time complying instead of trying to stay [the order] we would be in a very different position,” Carey said.
“The BOP has a legal and moral obligation to preserve the health and lives of the people who live in their care,” Carey said. “Unfortunately, here, the BOP appears to have taken the approach that it would take slow, half-hearted, at times non-compliance with the District Court’s order while frantically attempting to undo that order on appeal. We’re extremely disappointed with that approach and it comes at a human cost.”
“That [the court] allowed it and it was nothing but lies—that’s what really got to me,” said Aly, the wife of one incarcerated man at Elkton. “They won with lies.”
AT BUTNER FEDERAL Prison in North Carolina, a similar situation unfolded. Butner, explained the ACLU’s Brandon Buskey, is essentially an assisted-living facility for incarcerated people. It houses people who are medically vulnerable, concentrating the population of at-risk inmates in one facility. The toll has been high: According to the BOP, 12 incarcerated people have died at Butner as of June 23, nearly 14 percent of the official number of incarcerated people who have died of COVID in the federal system. According to the lawsuit filed against Butner, the death toll is as high as 18.
Buskey, deputy director of the ACLU’s Criminal Law Reform Project, explained that both the Elkton and Butner facilities house prisoners in open dorm-like settings, with three men to an 8ʹ × 10ʹ pod. During the day, incarcerated people are able to move throughout their unit, which may include around 100 people. The only real difference is that the population at Butner is more vulnerable. “Butner is a tinderbox for COVID-19, and the stories emerging from its overcrowded facilities are harrowing,” said Emily Harwell, senior staff attorney at the ACLU of North Carolina at the time.
Although BOP staff initially limited prisoners’ movement—including their time outside and their ability to spend at commissary on things like soap and medication—this has not prevented the spread of COVID. More recently, the Bureau of Prisons announced an agency-wide lockdown in response to national protests, further limiting inmates’ movements and preventing access to phones, computers, and even showers. According to at least one incarcerated person who messaged with the Prospect, inmates are only allowed to leave their units when they pick up meals (which they take back to their dorms) and when they go to commissary.
The ACLU of North Carolina filed a lawsuit on May 26 similar to the one against Elkton in Ohio, arguing for the release of enough medically vulnerable people and candidates for compassionate release or home confinement to ensure those who remained could comply with CDC guidelines on social distancing. But on June 12, the court ruled against the ACLU. U.S. District Judge Louise Flanagan said that the plaintiffs had not proved that the facility and the BOP had treated inmates with “deliberate indifference.”
Just days before, the North Carolina Superior Court had ordered that the state take action to stop the spread of the disease in state prisons.
CURRENTLY, THERE are at least five federal class action suits against federal prisons, with varied success rates so far.
“I think that the courts are inherently conservative institutions and there has been a judicial culture that prisons and jails are very complex systems and ones that don’t lend themselves to judicial interference,” Buskey said. But he pointed out that if courts believe enforcing their own orders is too big a job, they can appoint a “special master” to oversee enforcement of social distancing, transfer and release, and other measures.
One hurdle for these cases is jurisdictional. In 1995, Congress passed the Prison Litigation Reform Act (PLRA), which was designed to limit how incarcerated people can access the courts. So for every coronavirus case, the court has to be “laser-focused on whether or not the lawsuit is allowed under the PLRA,” he added. “Some of this is a structural problem we have to fix.”
The Elkton case led to “progress in the law,” David Carey noted, as the court found the claim acceptable under the PLRA. But at Butner, the court disagreed, ruling that it was not a legitimate claim, and that the plaintiffs didn’t have the proof to succeed anyway.
Asking the Supreme Court to rule definitively in cases like this could prove risky. “I think people are rightly concerned given the current makeup of the Supreme Court as to how it would react,” Buskey said. “If the government took up an appeal … the Court might have the same hesitation [as the lower courts] to grant relief that we’ve seen around the country.”
AT ELKTON, TESTING is ongoing for coronavirus, several incarcerated people told the Prospect, at least in part as a result of the legal scrutiny and the judge’s order. But for those who do get sick, the treatment is subpar, they say. One incarcerated man told me in an email that they were moving those who tested positive to the gym, sleeping on cots or the floor with their property. (He asked for anonymity to better protect himself from retaliation.) “It is a disgrace they are doing that to sick inmates, treating them like animals instead of protecting them and giving them what they deserve,” he added in the email dated May 30. At least 90 people in his unit had been moved to the gym, he wrote. Prior to the move, everyone mingled together in the low-security facility, he explained.
“They are doing absolutely nothing, in fact they are telling us that no one is leaving regardless of what the Judge says,” he wrote to me in May. He told me he had applied for home confinement due to asthma and high blood pressure, and that he’s now waiting for the paperwork to go through.
At Elkton, when inmates are tested, they are left in their unit until their test results come back, allowing them to continue infecting others in the meantime.
But for others, the present is still terrifying. Said one incarcerated man, “I am scared to death that I am 50 years old and on a CPAP [machine] and high blood pressure and overweight that I won’t make it 30 months and see my kids again.” He added that one of the men at Elkton who died of coronavirus he contracted in the prison, Michael Brookwalter, was in his unit. “I knew him and that scares me,” he continued. “I have nightmares of being on a ventilator.” He also said that he thinks there are at least 80 people who are quarantined now. Another man who emailed with the Prospect yesterday explained that when inmates are tested, they are left in their unit until their test results come back, allowing them to continue infecting others in the meantime.
As the Ohio lawsuit wound its way through federal courts, several inmates and their loved ones told the Prospect that corrections officers and the warden were telling inmates that no one was getting out. Even now, one inmate wrote to the Prospect, “there are elderly inmates on here that should be released but they will not let them go and we have heard the Warden will NOT let any one go if he has his way about it.”
Said one wife of an incarcerated man at Elkton, “If I don’t have him home, I’m not going to be OK. I need him home. He’s been in BOP’s custody for four years. I do not want to bury my husband. I don’t.”
Attorneys say that they are exploring all options, despite unfavorable rulings. “The case is not over,” Carey insisted. “We intend to continue exploring the BOP’s compliance with the Eighth Amendment, what they’ve done in response to the outbreak, and whether their measures—or half measures—have been effective and what more is needed.”
