Inmates at Neuse Correctional Institution walk outside behind fences in Goldsboro on May 15. The prison has been the site of a major outbreak of COVID-19. Lawyers for the ACLU and N.C. Department of Public Safety argued in court Wednesday about the effectiveness of the state's protection of prisoners during the pandemic. Melissa Sue Gerrits / Carolina Public Press
Inmates at Neuse Correctional Institution, apparently unmasked and not socially distanced, walk outside behind fences in Goldsboro on May 15, 2020. The facility was the site of a major COVID-19 outbreak in the first months of the pandemic. Melissa Sue Gerrits / Carolina Public Press

Whether a judge sides with plaintiffs seeking the release of prisoners due to the pandemic or with the N.C. Department of Public Safety’s opposition to that request may hinge on key questions about the judge’s authority and the constitutional standard he should apply. Those issues were the focus of arguments during a court hearing Wednesday in Raleigh, along with questions about opposing sets of facts on the merits of the case.

Wake County Superior Court Judge Vinston Rozier Jr. presided over the second hearing in a lawsuit seeking to force the state to release people from prison to protect them from the new coronavirus, which causes COVID-19.

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At issue were constitutional standards for determining what is cruel or unusual punishment and how those standards can be enforced, the basic facts of how state prisons are responding to the pandemic and the court’s authority to release people from prison.

The lawsuit, brought by a coalition of civil rights groups and led by the American Civil Liberties Union of North Carolina, argues that social distancing is the bedrock measure for protecting people against illness and death caused by COVID-19. The only way to achieve social distancing in prisons, the plaintiffs argue, is to decrease the number of people in prison.

Without that standard, the plaintiffs argue, the remaining actions taken by the Department of Public Safety, which oversees the state’s prisons, are ineffectual.

In return, the state argued that DPS has taken numerous actions to prevent the spread of COVID-19, that its actions have been expert-driven and in good faith, and that its actions have been successful.

“The fact that only five deaths — and fortunately only five deaths — but no matter that it’s only five or one, they’re all unfortunate, and fortunately it’s not more,” said Orlando Rodriguez, assistant attorney general at the N.C. Department of Justice.

“I think that is some evidence that the department, what the department, is doing works.”

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Although not directly discussed in court, recent news reports may raise doubts about the state’s contentions during the hearing on the effectiveness of its efforts to protect prisoners and prison staff.

Barbara Anne Stewart, a prison nurse at Caswell Correctional Center, died May 7 at age 57, according to an investigation by a collaborative of seven news organizations including Carolina Public Press called the NC Watchdog Reporting Network. Prison officials refused for a week to confirm that a Caswell Correctional employee had died.

The NC Watchdog Reporting Network also investigated documents provided to the court for this case and found that, without changes to state policy, more deaths can be expected.

The NCDOJ is defending Gov. Roy Cooper, DPS Secretary Erik Hooks and the members of the Parole Commission, who are all named in the lawsuit and who all have some authority to release people from prison.

Rozier previously dismissed the plaintiff’s motion for a temporary restraining order and a motion for a writ of mandamus. The hearing on Wednesday regarded the plaintiff’s motion for a preliminary injunction. All three are legal tools with different legal standards used when rapid action is needed from the court.

Standard for constitutionality

The core of the case is whether conditions in the prisons violate the state and federal constitutions.

North Carolina’s Constitution states that “cruel or unusual punishments” cannot be inflicted. The federal constitution bans “cruel and unusual punishments.” The lawyers argued over the distinction between “or” and “and,” which in turn has implications for the legal standard of proof that plaintiffs have to meet to win their case.

Leah Kang argued for the ACLU that “keeping human beings caged in close proximity to each other during a pandemic against the warnings of medical and public health experts” is a constitutional violation that disproportionately harms African Americans.

In response, Rodriguez argued for the state that the plaintiffs’ standard for constitutional conditions was flawed.

“Plaintiffs’ case, really, is also premised on this idea that the public health best practices create the constitutional floor,” Rodriguez said.

“That’s not the law. Public health best practices inform practitioners, policymakers, governments in their implementation of policy. Public health best practices do not create a constitutional standard.”

Are the lights on or off?

DPS largely controls the information that comes out of the prisons, including the nature of conditions inside each facility.

On May 1, Rozier ordered the state to provide a comprehensive list of information, as what the defendants had provided to date was “form and nonspecific.”

The plaintiffs argued during the hearing and in previous court filings that the state had not provided enough information and that, by refusing to test more people for COVID-19, was hiding the possible severity of the outbreak.

“They’re basically insisting that there is nothing to see, even as they admit that they refuse to turn on the lights,” Kang said.

“We flatly reject that assertion,” Rodriguez said.

He pointed to DPS’ website, which details COVID-related policy decisions, tests completed with results and deaths due to COVID-19.

“So the notion that there is some nefarious ongoings happening with the department and the lights are shut off is just, it’s not, it’s not accurate,” Rodriguez said.

However, media organizations have gone to court to seek public records the prisons have failed to provide, raising doubts about the agency’s alleged transparency. CPP and other members of the NC Watchdog Reporting Network, along with a coalition of associated news media companies, filed a lawsuit last week against Cooper and two cabinet agencies, including DPS, due to the failure to fulfill outstanding records requests.

The accuracy and availability of information have a significant impact on the outcome of the case, as the judge must rely on facts presented to the court to make his decision.

What information that has been provided has led the plaintiffs and the defendants to opposite conclusions.

According to the expert affidavit of Lauren Brinkley-Rubinstein, a public health researcher at the UNC School of Medicine, the state’s actions to date “do not meaningfully reduce the risk of substantial transmission of COVID-19 in North Carolina’s state prison facilities.”

The state is not testing enough people, either inmates or staff, Brinkley-Rubinstein said in her affidavit. The state is also not effecting social distancing in the prisons, nor is it cohorting people in prisons effectively, according to Brinkley-Rubinstein’s analysis.

The state argues each of these points, mostly relying on standards from the national Centers for Disease Control and Prevention.

Prison officials are following all of the recommendations from the CDC, Rodriguez said. The only standard they are not following is to keep bunks 6 feet apart. Otherwise, they are keeping social distance in the prisons.

But the plaintiffs and the state seem to disagree on what social distancing actually means. Public health experts have repeatedly claimed that social distancing cannot happen in prisons, where dozens of people often share dorms or common bathrooms. Further, plaintiffs say social distancing is an absolute — if people are not keeping 6 feet of separation when they are sleeping, then they are not social distancing.

But the state uses the same phrase to different effect, saying that social distancing is occurring, even as people in prison sleep within an arm’s reach of each other and are kept in small groups that eat, shower, go to the yard and live together.

This, according to Brinkley-Rubinstein, is not social distancing. It is another medical term called “cohorting.” That, Brinkley-Rubinstein wrote in her affidavit, is ineffective at containing COVID-19 if the staff works across cohorts with COVID-19 and without, if inmates are being transferred and if there is not sufficient testing. According to Brinkley-Rubinstein, all three are problems in DPS.

Authority of the court over prisons

Even if the judge sided with the plaintiffs, it is not clear what authority he has to release people from prison.

When people are sentenced to prison, that sentence is structured by laws passed by the legislature. There are minimum amounts of time people must serve under the law. The governor can pardon people or commute sentences, and the legislature can change laws, but Rozier asked the ACLU what the plaintiffs expect him to be able to do.

“I don’t know where the statutory authority comes from for me to just outright modify someone’s sentence and so you just get out,” Rozier said.

The power and place of the courts have been at issue throughout this case. The lawsuit was originally filed with the N.C. Supreme Court, which dismissed the case without prejudice, allowing it to be refiled in a lower court.

In that original filing, the state used a technical legal argument that the state Supreme Court was the wrong venue for this type of litigation. The dismissal without prejudice could have been an indication that the court agreed and that the case could be filed again in a lower court, UNC School of Government professor Ann Anderson told CPP at the time.

Kang, the lead attorney on this case for the ACLU, suggested several remedies that are in the court’s authority. People who have met their minimum sentences can be released. Others could be let out on a program called Extended Limits of Confinement, in which people serve the remainder of their sentences at home under state supervision.

Though the state is already using these programs to release people from prison, the state and the plaintiffs disagree on whether the number of releases is significant enough to protect the health of those who remain incarcerated.

The governor’s powers of commutation and pardon were not mentioned. It was previously argued by the state that the judge has no authority to force the governor to use those powers.

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Jordan Wilkie is a former Report for America corps member and former reporter at Carolina Public Press. To reach the newsroom, email us at

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