The Pulse

Judge rules for incarcerated people in lawsuit over DPS response to COVID-19

By: - June 9, 2020 8:30 am

Judge Vince Rozier announced his ruling Monday afternoon in a case about the protection of incarcerated people in North Carolina prisons from COVID-19, though the particulars of his decision have not been made publicly available.

He used a “bench memo” to announce the ruling and read some of it aloud at a public virtual court hearing. But the court order, which will be written by the plaintiffs, won’t be ready for several days until they confer with the defendants in the case, the state and the Department of Public Safety.

The court did not respond to a request Monday for a copy of the bench memo. Most of the plaintiffs also did not respond to a request for a copy of the memo; the NC NAACP did not have a copy.

Leah Kang, a staff attorney at the ACLU of North Carolina who represents the plaintiffs, said in an email response Monday night that the memo is addressed only to “counsel,” and “does not really look like the court intended it to be a public document.”

At the hearing, Rozier ruled in favor of the plaintiffs in the case. He addressed three issues in particular in his oral ruling: overcrowding and cohort-based social distancing, transfers and disparate levels of COVID-19 protection in different facilities. He ordered the defendants to reopen the application process to homes, facilities and programs who are willing to participate as early-release partners to improve an incarcerated person’s candidacy for release.

He also authorized DPS to identify new factors that could be used to calculate time for release for those who have met minimum sentence requirements but who are not yet available for release. The new factors may be deemed a necessary measure for population management to achieve safety and protection for all in custody while COVID-19 is still a substantial risk or concern. The factors can include, but are not limited to, those who are vulnerable to COVID-19 complications.

“That’s authorizing, that’s not ordering, but it needs to also be clear, because upon any modification of the factors that are already in existence, any modification of these factors for the early release of an inmate upon meeting the minimum sentence requirements, then DPS shall take the affirmative steps to effectuate some changes and provide a process for making eligible inmates aware of their new status due to those changes,” Rozier said.

He also said that DPS was to stop transferring incarcerated people between prisons, unless there was a medical reason or other immediate risk, unless the person being transferred is given a test to confirm whether they had contracted COVID-19. In lieu of a test, an incarcerated person could be placed in medical isolation for 14 days.

“But, isolation must not be effectuated with actions or in a manner that would have been deemed punitive or utilized as a means of punishment before all of this happened,” he added. “And so prior to COVID medical isolation, if there is a means of punishing someone such as solitary confinement, just for an example … I’m ordering that someone not be put in solitary confinement.”

Finally, Rozier ordered both the plaintiffs and the defendants to come up with a plan to test every incarcerated person in North Carolina prisons and to address any disparities in how each facility treats the threat of the virus. The plan is due by noon June 22.

“To summarize, an inmate should not be less likely to avoid or contract COVID based on the proactivity of different wardens,” he said. “Put another way, the inmate’s chances of contracting COVID-19 should not depend upon a facility in which the inmate is housed. It shouldn’t be based upon the inmate’s perceived luck of the draw in where they end up and whether they are less likely just because they luckily or to their detriment ended up at the wrong place.”

It’s not yet clear if the defendants will appeal. John Bull, a DPS spokesman, said the agency had just heard the judge’s order, received his bench memo and was consulting with the North Carolina Department of Justice to determine next steps.

The ruling is in response to a lawsuit from the ACLU of North Carolina, Disability Rights North Carolina, Emancipate NC, Forward Justice and the National Juvenile Justice Network asserting that the state’s failure to protect people in state custody from mass outbreaks of COVID-19 amounted to cruel and unusual punishment under the Constitution.

“This ruling affirms that state officials have a constitutional obligation to protect the health and safety of the people in their custody and combat the spread of this deadly disease,” said Kang in a news release. “The deadly outbreaks in our state prisons have already claimed six lives and continue to threaten all North Carolinians, especially communities of color which have been disproportionately impacted by this pandemic. We’re hopeful this ruling will help prevent further loss of life by forcing state officials to implement safety measures and release people from these dangerous conditions.”

Lauren Brinkley-Rubinstein, an assistant professor of social medicine at UNC Chapel Hill, said the ruling was good news. She is a public health expert who consulted on the case for the plaintiffs. “My understanding is that Rozier emphasized the need for release, to engage in universal testing, and to limit the use of solitary confinement units for medical isolation,” she said. “If that is correct, then this is a good first step to preventing further spread of COVID-19 in the prison system.”

As of Monday, five incarcerated people in state prisons and one prison staff person have died of COVID-19. Since the groups filed their initial lawsuit with the NC Supreme Court, state officials have announced the release of approximately 750 people, approximately 2 percent of the 34,000 people who were in their custody in mid-April.

“The NC NAACP is gratified that the court took a critical step toward bringing about more safety and justice today,” said the Rev. Dr. T. Anthony Spearman, President of the NC NAACP. “We will not stop our fight to ensure that the state of North Carolina upholds its constitutional obligations to those most vulnerable during this unprecedented pandemic.”

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Melissa Boughton

Melissa Boughton worked as the Courts and Law Reporter at NC Policy Watch from 2016 to 2020.