A Superior Court judge may decide Monday afternoon whether North Carolina’s prison conditions during the COVID-19 pandemic are constitutional.
If he decides that the conditions meet state constitutional standards, the lawsuit seeking the release of people from prison will likely be dismissed. If he decides that conditions are in fact cruel or unusual, the judge has some latitude in deciding how to proceed.
This could include appointing an expert to help the court direct the release of people from prison to protect them from COVID-19, the disease caused by the new coronavirus.
While Judge Vinston Rozier Jr. of Wake County Superior Court will consider the evidence presented in his court in his decision, the plaintiffs and defendants in the case have disagreed over basic facts.
CPP and its fellow members of the NC Watchdog Reporting Network have found several gaps in the data and inconsistencies in what the state has presented to the court, reported to the public, and shared in internal documents.
Advocacy organizations across the country have accused states and key institutions like prison systems of hiding information or of intentionally limiting the amount of testing in order to mask the true scope of the problem.
Leah Kang, an attorney for the American Civil Liberties Union of North Carolina, leveled a similar complaint against the Department of Public Safety, which oversees the state’s prisons, in a court hearing last week.
“They’re basically insisting that there is nothing to see, even as they admit that they refuse to turn on the lights,” Kang said, referring to the number of COVID-19 tests performed by the prisons — a number the ACLU characterizes as inadequate.
“Once you turn on the lights, and once you actually get a view of the full scope and scale of the problem, the onus on these prison systems becomes a lot greater to actually respond to what is happening,” Kang told CPP.
But the state objects to that characterization.
“I would point the court to the wealth of information that DPS publishes on a daily basis on its website,” Orlando Rodriguez, an attorney for the state Department of Justice, said in court. “There is full transparency as to what the department is doing in response to this pandemic.”
Public health experts and news organizations across the state disagree.
Public health experts, some of whom have submitted affidavits for the plaintiffs in the case, say the prison system is not tracking or releasing enough information to keep North Carolinians safe.
DPS has failed to provide numerous records to news organizations or declined to answer information requests, 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 on May 28 against the governor and two Cabinet agencies, including DPS, due to the failure to fulfill outstanding records requests.
CPP also reviewed hundreds of pages of documents and found inconsistencies in what DPS has told the court, the public and what it has shared internally with its own staff.
Misleading language hides facts
The basic assertion of the litigation brought by the ACLU in partnership with several civil rights organizations is that there is not enough space in North Carolina prisons to practice social distancing. Distance, the plaintiffs say, is the key tool in limiting the spread of the disease.
Lawyers for the defendants, who include Gov. Roy Cooper, DPS Secretary Erik Hooks and the Parole Commission, disagreed with the plaintiffs’ argument that social distancing is not happening in prisons. Instead, the state’s lawyers characterized social distancing as “not impossible” in its prisons.
But a close reading of court documents and lawyer statements in court show that DPS stops short of saying that social distancing is followed in its prisons.
Instead, DPS describes social distancing in terms of individual activities, such as keeping inmates more than 6 feet apart while eating or lining up to receive medications.
Several people in prison have called CPP to describe conditions where even these measures are not respected by fellow inmates or enforced by staff. Several people made similar statements in affidavits filed with the plaintiffs in the court case.
Natasha Purvis was one of a handful of people from the N.C. Correctional Institute for Women who reached out to CPP in May after prison officials told them they were “presumed recovered” from COVID-19 because they had been quarantined for two weeks. Masks, a key tool in limiting the spread of COVID-19, were not necessarily required, she said.
Sylvester Armstrong, who was released from prison April 6, wrote in his affidavit that “not many changes were made to the conditions or protocols,” after the pandemic started. The week before he was released, he wrote, staff at Bertie Correctional Institution enforced a new rule whereby only two people could sit at each table in the dining hall. Still, they were within 6 feet of each other.
“I also did not understand how this was supposed to be an effective way to protect us from the virus when we were required to leave the dining hall and return to our dormitories, where we were closely packed in with one another,” Armstrong wrote.
In addition, over a dozen prison wardens submitted affidavits to the court in response to Rozier’s order for more information. Many wardens wrote that it is not physically possible for people in prison to sleep more than 3 feet apart.
In addition, several affidavits of prison wardens submitted to the court by DPS state that it is not physically possible for people in prison to sleep more than 3 feet apart.
In an affidavit submitted for the plaintiffs, Lauren Brinkley-Rubinstein, a public health researcher at the UNC School of Medicine, noted, “It is useless to do ‘partial’ social distancing.”
This kind of disagreement, where the meaning and therefore implementation of medical guidance differ, occurs regularly in the legal back-and-forth between the plaintiffs and the state.
For example, the CDC recommends that people in prison diagnosed with COVID-19 be put in medical isolation. The CDC guidelines specifically state that medical isolation “does NOT refer to punitive isolation,” which prisons use to punish people. Yet in at least the Albemarle and Caswell prisons, the “medical isolation” areas are located in the same units used for punitive isolation.
Repeatedly, across court documents and internal documents that CPP has reviewed, DPS refers to putting sick people in isolation. At only two prisons, Bertie and the N.C. Correctional Institute for Women, was it made clear that isolation would take place in the medical wing.
An internal DPS document describes having 128 people in isolation with respiratory and/or flu-like symptoms on April 20.
“We are all smart enough to know that shutting somebody away in solitary confinement is not a medical treatment,” Kang said. “It’s not medical isolation in the way that any of us out here not behind bars would be medically isolated if we were that sick.”
If there is a difference between medical isolation and punitive isolation for most of these ill people, it is impossible to tell from court documents, internal documents or from the experiences of people in prison.
Susan Rouse, a 72-year-old woman housed at NCCIW, was moved to the “lockdown isolation unit,” as she described it in a call to CPP last month, after COVID-19 spread through her dormitory at the prison.
“In tears, I said, ‘What have I done wrong? I have only tested positive and I’m being treated as if I have 10 infractions and have continued to be a bad inmate,’” Rouse said. “I’ve never had any infractions.”
Inconsistency between public data, court data and internal documents
Information DPS gives to the public has, on multiple occasions, not lined up with what is provided to the court or with internal documents.
An internal document showed April 20 that 649 COVID-19 tests for people in prison had been ordered. There were 410 positive results, 206 negative results, and the rest were pending. The public data posted that day showed fewer tests ordered, fewer positive cases, but more negative test results.
That means that the public numbers showed a less severe outbreak than the internal numbers. This was during the height of the outbreak at Neuse Correctional Institution, which at the time was among the largest in the country.
When asked about these reporting inconsistencies, DPS cited its process, which “required manual data entry of results. There was various amounts of lag time created based on the volume of tests and availability of staff to manually enter the results into our reporting system. There was a disclaimer recorded on the public webpage to explain the delay in reporting.”
DPS has been regularly announcing new policies intended to protect staff and inmates from COVID-19. DPS announced March 25 that it suspended work-release programs, in which incarcerated people leave the prison to work before returning to the prison at night.
But the state did not halt the cleaning operation that brought women from NCCIW to clean DPS’ Raleigh offices until April 16, according to reporting by The Charlotte Observer.
By then, women at the prison reported showing symptoms of COVID-19 for several days. Within two weeks, NCCIW had the second-largest outbreak in a North Carolina prison with 82 confirmed cases.
DPS announced April 7 that it would limit transfers between prisons. The rate of transfers did drop significantly. But some transfers still occurred.
Ben Finholt, a lawyer for N.C. Prisoner Legal Services who tracks DPS’ publicly reported data, submitted an affidavit for the plaintiffs showing that 2,164 transfers were made between prisons that had active COVID-19 cases while the limit on transfers was still in place.
Brinkley-Rubinstein, in her affidavit, describes these transfers as risk factors for spreading disease. The limit on transfers was lifted at the end of last month in preparation for accepting intakes again from the county jails.
This, Brinkley-Rubinstein wrote, “ is likely to introduce massive risk of outbreak to the population.”
DPS statements differ from reports received from inside prisons
DPS is largely able to control information about the state’s prisons. One exception is the information provided by people who are incarcerated in those prisons.
These differences can seem mundane, yet they are reminders that the policies DPS announces to the court or to the public are not necessarily carried out with fidelity across each of their prisons.
For example, DPS announced that prison staff would take responsibility for a significant amount of cleaning and disinfection around the prison.
“The staff don’t clean,” Daisy Watkins, who is incarcerated at NCCIW, told CPP.
“I don’t know why (Commissioner of Prisons) Todd Ishee put that in the paper today and said that the staff be cleaning. The staff don’t clean.”
Watkins made more serious characterizations, too, such as that many women showed symptoms of COVID-19 for several days and were ignored. This claim was backed by several other women in the facility who contacted CPP, along with still others quoted in reporting from The Charlotte Observer.
Similar claims that people showing COVID-19 symptoms are not screened, tested or quarantined have been made by people in prisons all over the state.
The ACLU included those claims in affidavits attached to its litigation, Finholt described those claims in letters sent to NCPLS, and CPP has received several calls from people in prison describing the same lack of care.
Watkins also said she sought medical care for her COVID-19 symptoms on April 13.
“I couldn’t smell, I couldn’t taste, my eyes hurt so bad,” Watkins said. “I don’t know why my eyes hurt. But my eyes were hurting.”
Almost a month earlier, DPS had announced that it would waive medical copays for inmates with fevers or flu-like symptoms. Watkins had to pay her $7 copay and was told she had a sinus infection, she said. She later tested positive for COVID-19.
Asked about these claims, a prison spokesperson indicated this should not be happening. He said officials could look into specific concerns, or inmates could file a grievance.
In a letter to N.C. Sen. Phil Berger, R-Rockingham, Ishee described distributing “surgical-style” masks to the people housed in Caswell prison. The masks in question are hand-stitched rectangles of thin cloth with bands that loop over the ears and are in no way medical- or surgical-grade.
Lack of data collection and publication
The plaintiffs argue that conditions in North Carolina’s prisons are unconstitutional during the COVID-19 pandemic. Their solution is to release people from prison so that those who remain can practice social distancing.
The plaintiffs do not, however, request that a certain number of people be released. Instead, releases would need to be based on a prison-by-prison review. This, in part, is due to a lack of information about the conditions inside each facility.
Dr. Brie Williams heads a team of medical experts at the University of California, San Francisco that focuses on the health of people who live and work in prisons and jails. Public health officials need to be in the driver’s seat, Williams said, when making these kinds of public health decisions.
The way to get this answer is by “going through each unit, every single unit and every single prison, every single jail with a public health officer, with an epidemiologist, with an infectious disease control specialist and with correctional health care leadership, and saying, ‘What does this unit need to look like to be as safe as possible and to decrease transmission as much as possible?’” Williams said in an interview with NC Watchdog Reporting Network last month.
She also said prisons should be testing far more people, a position shared by the ACLU and Brinkley-Rubinstein.
The N.C. Department of Health and Human Services updated its guidance May 15 on who should be tested for COVID-19, which includes people in prisons, regardless of symptoms.
But the average rate of testing for inmates has not increased since the change.
DPS did announce a statewide testing plan for staff that will extend through July. According to DPS, 1,976 tests have been performed, and 18 have come back positive.
In the snapshots gleaned from internal DPS documents, staff illnesses seem to have leveled off. On April 17, the documents showed 20 positive cases among staff. Since the confirmed cases from April 17 and those reported on DPS’ website are from two separate reporting methods, at least 38 DPS staff have tested positive for COVID-19, with about a month of missing data.
On May 7, a Caswell Correctional Institution nurse, Barbara Anne Stewart, age 57, died in a hospital in Danville, Va., becoming the first known prison staff member to die from illness related to COVID-19.