Several N.C. prisons have outbreaks of coronavirus, with a major outbreak at the Neuse Correctional Institution is Goldsboro. Photo courtesy of the NC Department of Public Safety

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Editor’s note: Information about the outbreak at Neuse Correctional Institution was updated late Friday. Officials with the N.C. Division of Adult Correction and Juvenile Justice said that more than 250 inmates at the Neuse Correctional Institution had tested positive for COVID-19. Officials said 98% of the cases were asymptomatic, or showed no visible symptoms of the illness.

Also on Friday, the Supreme Court of North Carolina dismissed the case without prejudice, allowing for it to be potentially refiled in a lower court.

When civil rights and criminal justice reform groups filed a lawsuit with the N.C. Supreme Court last week, they set in motion a request that could, if the court sides with them, reduce the population in state prisons to levels the state has not seen in decades.

At the heart of the lawsuit is the belief that potentially thousands of additional people will get sick with more than a hundred of them dying from COVID-19 if the state does not quickly release thousands, and potentially tens of thousands, of people from the state’s prisons.

This could leave the state’s criminal justice system looking “drastically different,” according to Leah Kang, an attorney with the American Civil Liberties Union of North Carolina, which is representing the plaintiffs in the case.

[The latest: North Carolina coronavirus daily updates]

“But doing that is clearly responsive to just how drastic and critical that public health crisis really is,” Kang said.

Since the initial lawsuit filing last week, a series of briefs and responses filed by the ACLU and its partner organizations, and the replies of the state Department of Justice representing Gov. Roy Cooper and the head of the Department of Public Safety, Erik Hooks, have argued over whether the state is doing enough to protect people in prison, prison staff and surrounding communities from the disease.

The arguments also center on whether the N.C. Supreme Court has the authority to compel the governor and the Department of Public Safety to take certain actions.

Broadly speaking, all parties to the lawsuit agree on a basic set of facts.

People who are incarcerated are at higher risk of contracting the new coronavirus, which causes COVID-19, due to the crowded nature of prison facilities. The parties also agree that people in prisons will require medical care, including the hospitalization of incarcerated people.

Finally, the parties agree that a “measured reduction of the incarcerated population” is the best response to pandemic because the best way to stop the spread of infection is to stay away from other people who could spread the virus. “Social distancing” is not currently possible in prison, the parties recognize.

But the parties disagree on the scale of a “measured reduction” and on the appropriate authorities for deciding who is released and under what conditions.

An outbreak in real time

While the court decides the outcome of the litigation, outbreaks have occurred at several state prisons, with a major outbreak of COVID-19 happening in Neuse Correctional Institution in Goldsboro.

On April 2, the Department of Public Safety announced that two people housed in Neuse prison tested positive for COVID-19.

On Thursday, the department announced that “approximately 80” people housed in Neuse and eight staff have tested positive, with more tests outstanding.

The department is testing all 700 people housed at Neuse and offering tests through the Wayne County Health Department to 250 staff members at the prison. The Department of Public Safety decided to expand testing after previous tests revealed that at least 30 people in the prison had COVID-19.

Many of the 80 people with COVID-19 incarcerated at Neuse were not symptomatic, according to the Department of Public Safety’s press release. This reflects “that up to 25% of people infected with the novel coronavirus do not display any symptoms and those who do develop symptoms are infectious prior to symptom onset,” according to public health experts quoted in the ACLU’s lawsuit.

This is, in part, why the new coronavirus is so difficult to contain and track.

At the current number, over 11% of the Neuse prison population has tested positive for COVID-19. It is impossible to know how many of those infected will require hospitalization or will die. However, public health experts were able to model, across the entire prison system, what would likely happen if a certain percentage of incarcerated people and prison staff were to be infected.

At 10% across the 52 prisons and 35,085 people in prison used in the estimate, 775 people in prison could be hospitalized, 170 might require intensive care, and 20 could die.

This estimate was included in the lawsuit as a declaration by public health experts, including David Rosen, a researcher at UNC Chapel Hill who specializes in the spread of disease through prison and jail populations.

The projection also included an estimate of health outcomes if 60% of people incarcerated in the state’s prison system become infected, which is the estimated infection rate from the Centers for Disease Control and Prevention if interventions such as social distancing are not exercised. In that case, about 4,650 people in prison could be hospitalized, 1,030 might require intensive care, and 120 could die.

What’s more, outbreaks in prisons can lead to outbreaks outside the walls when the virus is spread by staff or by people being released from custody.

“Health in prisons and jails is community health,” Rosen and his peers wrote in their deposition for the lawsuit. “Protecting the health of individuals who are incarcerated is vital to protecting the health of the wider community.”

Infections in prisons put the state at risk

The Department of Public Safety, in light of the threat of COVID-19, began to release 300 people from prison up to three months early and to expand the limits of confinement for up to 500 more. Expanding the limits of confinement means that people can serve the remainder of their sentences at home, under the supervision of the department.

Of the 500 under consideration, six have been released, according to the last public statement by the department.

The department has “no specific timeline,” according to Department of Public Safety spokesperson John Bull, with reviews happening  as “quickly as possible.”

The state has also taken a series of actions in an attempt to keep COVID-19 out of prisons and to limit its spread once inside.

In the documents filed Wednesday, the ACLU called the state’s actions “so infinitesimal and slow that they amount to inaction.”

“What we are asking for is a public safety solution to a public health problem,” ACLU attorney Kang said.

“If we do nothing, and frankly, if we don’t do enough, what happens in the prisons will inevitably spill over to the surrounding communities and have to be absorbed by the rest of the state.”

The ACLU and public health experts argue that, with “the approximately 50,000 in the North Carolina prison system (35,000 incarcerated people and 14,000 staff) unable to fully partake in social distancing, it is likely that the prison system will remain a reservoir of infection for the entire state.”

What happens in prisons will determine what happens to prison staff, their families and their communities, Kang said.

In addition, even under normal processes, roughly 2,000 people are released from prison every month in North Carolina, providing yet another avenue through which the virus could be distributed across the state.

Limited solutions

The ACLU and public health experts argue that the only available option to prevent mass illness and dozens of deaths — if not more — in the state’s prisons is to release a significant number of people.

Neither the ACLU nor health experts define what number, exactly, that could be, though Kang described it as the number necessary to enforce social distancing within prisons.

Taken at its most literal, that would require the state to release enough people for those remaining in prisons to keep 6 feet between themselves and others at all times. In effect, that would be tens of thousands of people released from the prisons, which currently have a population of just over 35,000.

Even a release of several thousand people would be a historic benchmark for the state, which has not had a prison population under 30,000 since 1996.

The Department of Public Safety states in its brief that it is operating at 90% capacity, without accounting for severe staffing shortages.

Even so, social distancing is impossible in the prisons, according to the director of Prisoner Legal Services, Mary Pollard, who has visited her clients in prisons for years.

“You know, if you walk through some of these units, you just can’t protect these guys,” Pollard said. “They’re living on top of each other. You can’t protect the staff. It’s unavoidable.”

Given the nature of the COVID-19 pandemic, the conditions in prisons are cruel and unusual, according to the ACLU’s arguments. An outbreak does not need to occur in a prison, as it has in Neuse Correctional Institution, for the conditions to become unconstitutional, the ACLU argues. The fact that prison conditions expose people who are incarcerated to greater risk of illness and death is itself, even before infection occurs, cruel and unusual.

By this standard, the ACLU and the other groups signed on to the lawsuit argue, the state needs to release far more people than it is currently considering and do so rapidly.

Within the power of the courts?

The state’s main arguments against the lawsuit are twofold. First, the state argues that the governor and the Department of Public Safety have taken significant action to address the pandemic, obviating the need for the courts to intervene.

Second, the state argues that it is not within the court’s authority to force the governor or the secretary of the Department of Public Safety to make discretionary decisions, such as deciding who are pardoned, have their sentences commuted or are released through any number of other avenues.

Further, the lawsuit was not filed by the proper order in the proper court, the state argues.

The response by the ACLU and its partners is that times of crisis call for emergency measures. If they filed the lawsuit in a lower court, as the state suggested, and worked through the normal appeals process, many people in prison “may not survive to see this case through the orderly process of judgment and appeal,’ ” the ACLU wrote.

In the end, a technical interpretation of the court’s powers could decide whether the governor and the Department of Public Safety are forced to release significant numbers of people from prison to protect them from contracting COVID-19.

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.

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