An enclosure outside the Cherokee County Detention Center in Murphy. Jails designed to hold inmates in close quarters raise public health and legal issues during the coranavirus pandemic. Colby Rabon / Carolina Public Press

By the end of the week, a Superior Court judge is expected to decide whether to require the state to release a significant number of people from prison in response to the spread of the new coronavirus, which causes COVID-19.

The decision will regard only a temporary restraining order related to the case and not the overall lawsuit. A temporary restraining order is a legal tool to seek a rapid, but not final, ruling from the court in cases that have high urgency.

“Obviously, a decision that comes swifter is better for the parties, but a decision that is correct is probably better as well,” Wake Superior Court Judge Vinston Rozier Jr., said when he announced he will issue his order on Friday.

[The latest: North Carolina coronavirus daily updates]

The judge ended the oral arguments, hosted on an online video meeting platform, by both expressing his concern for the people held in prisons and noting that it is his job to follow the order of the law.

At its heart, the case is over whether the state is doing enough to protect the 33,300 people incarcerated in state prisons from potential illness or death as a result of COVID-19.

The plaintiffs in the case, represented by the American Civil Liberties Union of North Carolina, argue that the only way to create safe — and therefore constitutional — conditions in the state’s prisons is to release a significant number of people.

Also at issue is the balance of powers among the courts, the legislature and the executive branch. If the judge sides with the plaintiffs, his court order will have to thread the needle of forcing the executive branch to act while remaining within the limits of state statutes and constitutional law. State statutes limit who can be released from prison and when. North Carolina constitutional law limits what the courts can force the executive branch to do.

The case was originally filed in N.C. Supreme Court but was dismissed and refiled in Superior Court, likely due to technical legal concerns over which courts had the authority to take up the case.

Gov. Roy Cooper, who is the head of the state’s executive branch, Secretary of the Department of Public Safety Erik Hooks and the Parole Commission are the defendants in the case.

Though the state has undertaken a long list of mitigation and prevention efforts to keep COVID-19 out of prisons and to keep it from spreading, the ACLU argues that those efforts are inadequate, as evidenced by the continued spread of the disease in prisons across the state.

As of Tuesday afternoon, DPS reported 596 confirmed cases of COVID-19 in 11 of 51 prisons. The experiences at Neuse Correctional Institution, where cases ballooned from 29 to 453 in two weeks, and at the N.C. Correctional Institution for Women, where cases grew from nine to 81 in a week, show that once the disease is inside a prison, it can spread rapidly. The state has reported two deaths of people in state custody to date.

Legal arguments

Lawyers for the ACLU and its partners argued that the prevention efforts DPS claims to have undertaken — such as the distribution of cleaning supplies and masks — have not been carried out evenly or in full across every prison, and, even if they were, they would still be inadequate to protect people from likely COVID-19 infection.

To support this contention with evidence, the ACLU relied primarily on statements from people who were recently or are currently incarcerated about conditions in prisons.

In response, Stephanie Brennan, a lawyer for the state, argued that DPS “has responded to this situation by developing a multifaceted, expert-driven plan that addresses all of the elements that plaintiffs are raising.”

The state also issued to the court a series of statements by wardens and DPS officials across North Carolina stating that DPS policies are being carried out on the ground, in contrast to the statements offered by the ACLU.

Brennan argued that the state is already decreasing the state’s prison population by releasing people at a more rapid rate than is usual and by refusing to accept new entries into the prison population, displacing those people to county jails.

To release people at an increased rate and to have its hand forced by the courts could pose a threat to public safety, according to the state’s arguments.

“These individuals have been convicted of crimes, and it is in the public interest to do the releases in a way that accounts for safety factors, considers the inmate’s safety net and minimizes chances of recidivism,” Brennan said.

Releasing people from prisons and back to their homes around the state would also pose a risk to public health, Brennan argued, presumably because they could have been exposed to COVID-19 while they were incarcerated.

The state also argued that to release any more people than it is currently would overwhelm the probation and parole system.

Leah Kang for the ACLU replied that the state’s measures for protecting people in prisons are not only insufficient but also mischaracterized. For example, Kang challenged the idea that people in prison were being “cohorted” in groups akin to families in quarantine together. Since social distancing is impossible inside prisons, people in prison are cohorted in groups, and those groups are supposed to be kept isolated from one another.

However, cohorts in prison can be as large as an entire dormitory, Kang said, which can be 80 people in a shared space, much larger than a family unit. In addition, staff members interact with other dorms or units in the prison as well as with the outside world.

In response to claims that the state is already releasing people to decrease the prison population, Kang cited a Sentencing and Policy Advisory report stating that, due to understaffing, the state is still above capacity in its prisons, even before considering the additional stresses caused by COVID-19.

The releases issued so far, Kang argued, are minimal and slow enough to be insignificant.

The ACLU’s suggested remedy is to release over 2,000 people already scheduled to be let out of prison in the next 60 days. After that, the ACLU asks the court to consider for release people already scheduled to be let out in the next year. Finally, the ACLU is requesting that people with underlying health conditions that could put them at increased risk of serious illness or death from COVID-19 also be released.

The rate of spread of the new coronavirus in North Carolina’s prisons is itself a public safety threat, Kang said. The ACLU did not offer a strategy for releasing several thousand people given the state’s limitations for post-release supervision.

“The types of arguments that defendants are making about administrative hurdles are arguments that almost always get made when a state is ordered to cure a constitutional violation,” Kang said. “But administrative difficulties do not excuse constitutional violations.”

The ACLU asked the court to order the state to submit a detailed and prospective plan about how it will release a significant number of people from the prisons and improve prison conditions. If the plan is inadequate, the ACLU suggested the court appoint a “special master,” or a supervising expert, to guide the state’s actions going forward.

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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