An empty visitation area at a North Carolina prison. Visitation has restricted at North Carolina prisons due to the coronavirus, but visitors aren't the only point of contact with the outside world. A staff member at the Greene County Correctional Institute has tested positive after exposure to a family member who tested positive. Photo courtesy of the NC Department of Public Safety

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A Superior Court judge is trying to determine whether conditions in North Carolina’s prisons are acceptable under the state and federal Constitutions, but said Friday that he’ll need more information that the state has presented in written briefs and arguments before the court.

Wake County Superior Court Judge Vincent Rozier Jr. ordered the state to provide information to the court about conditions inside every prison during the COVID-19 outbreak. What information the state already provided is not adequate, the Rozier’s order said, due to its “form and non-specific nature.”

The American Civil Liberties Union of North Carolina brought the case in collaboration with other legal advocacy groups. They are seeking the release of people from prison due to alleged unconstitutional prison conditions brought on by the spread of COVID-19.

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Gov. Roy Cooper, Secretary Erik Hooks of the Department of Public Safety and members of the Parole Commission are named as defendants in the case, as each has the power to release people from prison.

The information that the state provided the court was generalized and not specific to each prison, Rozier said. “It is impossible for the Court to determine whether specific practices and procedures undertaken at each of North Carolina’s incarceration facilities comply with Defendants’ statutory and constitutional obligations,” the judge wrote in the order.

DPS policy, state law, and the state and federal Constitutions require humane treatment and safe conditions of people who are incarcerated. The court case is focused on whether the state is meeting those requirements during the pandemic.

The judge will use the new information to issue another order with a decision on whether the state needs to decrease the prison population, which is the ACLU’s proposed solution if the judge finds the conditions unconstitutional.

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DPS did not respond to questions about the order, stating early on Friday afternoon that, “The order was just received and we are reviewing it.”

The case was originally filed in the North Carolina Supreme Court, was dismissed without prejudice likely due to technical legal concerns, and was re-filed in Superior Court last week. The ACLU then filed a temporary restraining order, which is a legal tool used when a situation is urgent and plaintiffs ask the court to take rapid action.

The case is time-sensitive because COVID-19 is currently spreading through the prison system, Kristi Graunke, Legal Director for the ACLU of North Carolina, said.

“This situation could not be more urgent,” Graunke said.

“It’s about life and death. It’s about people who are in very serious danger, as evidenced by the outbreaks at Women’s Institution and also Neuse Correctional Facility. People are under threat and we are learning how quickly the virus spreads in correctional environments.”

Confirmed cases of COVID-19 grew from nine to 82 in the last week at the North Carolina Correctional Institution for Women. Neuse prison is facing one of the most severe outbreaks of any prison in the nation, with 467 confirmed cases and two deaths.

In response to previous inquiries by Carolina Public Press to DPS about health conditions in Nuese prison, public information officer John Bull wrote, “As you know, the majority of people (over 80%) who contract the COVID-19 virus have mild or no symptoms and fully recover without medical treatment. Some who contract the virus may feel as if they have a mild case of the flu before they recover.”

However, DPS did not provide detailed information about how cases are being monitored, how people who became sick are cared for, when people are hospitalized, how many people are hospitalized, or what health information is being tracked.

Instead, DPS repeatedly said it is following guidelines issued by the Center for Disease Control, but has not described how those guidelines are put in place for a specific prison. DPS has also published a long list of actions it has taken to mitigate or prevent the spread of COVID-19 into and within its prisons.

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Several people incarcerated in the state’s prisons have made statements to CPP and other news outlets, as well as in affidavits for the ACLU litigation, that the state’s directives are not being equally or effectively carried out across all prisons.

The court faced the same dichotomy. The sworn statements by prison officials and the descriptions in the state’s legal brief lacked specificity and were contradicted by the ACLU’s sworn statements.

Judge Rozier is using his authority to demand more specific information.

“Part of this process is demanding accountability and transparency,” Graunke said.

“I think this order takes an important step in that direction.”

By 5 p.m. May 1, the state is required to provide prison-specific information about how many masks have been provided to people in custody, the sanitation supplies available and whether prisons have living conditions that could “reasonably prevent the spread of COVID-19.”

The ACLU is “pretty sure” that the state cannot show that conditions inside could prevent the spread of COVID-19, Graunke said.
“The prisons are too crowded to allow for the social distancing that needs to happen for people to protect themselves,” Graunke said. “At the end of the day, we still maintain that it is still going to be necessary to release people from DPS custody to truly protect people’s lives here.”

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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