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In June, a judge in Wake County Superior Court ruled that the state’s prison system was likely unconstitutional. In July, he ruled that the state “failed to comply with the court’s directions in several meaningful ways.”
Now, Judge Vinston Rozier Jr. is weighing whether to hold the state in contempt of court for failing to comply with his orders.
Plaintiffs in the case, represented by a coalition of five North Carolina-based civil rights groups, argued in Friday’s hearing that the state is not following the judge’s orders and that the time has come for the court to use its authority to force the state to act. Without the court’s oversight, the state will not solve the problems identified in the litigation, according to Whitley Carpenter, one of the plaintiffs’ lawyers and the criminal justice staff attorney at Forward Justice.
“In the context of this litigation, (the defendants) have shown that they cannot be trusted to consistently tell the truth or do the right thing as it relates to the health of incarcerated people in our North Carolina prisons during the COVID pandemic without further intervention,” Carpenter said.
Carpenter and her co-counsel, Elizabeth Simpson, the associate director at Emancipate NC, alleged that the state has continued transfers, failed to release a significant number of people from prison, punished people who become ill with COVID-19 and retaliated against people who speak out against the conditions in the prisons.
The defendants in the case — including the Department of Public Safety which oversees the state’s prison system, Gov. Roy Cooper and the parole commission — flatly objected to the plaintiffs’ arguments on all fronts.
The state, represented by Orlando Rodriguez, an assistant attorney general at the N.C. Department of Justice, argued that the court’s previous orders gave the state permission to release people from prison at higher rates but did not actually mandate that specific actions needed to be taken.
“We also take quite seriously the very pointed accusations and allegations of dishonesty, lying, manipulating numbers that were just presented to the court,” Rodriguez said.
He called the allegations offensive and asked Rozier to weigh statements made by prison staff against those made by people who are, or were recently, incarcerated.
Now, Rozier needs to weigh the facts and his authority to change the requirements in his earlier rulings, which the state has said it is appealing.
“What happens behind these prison walls …”
Throughout the lawsuit, the plaintiffs have relied on statements from people incarcerated in state prison to describe the conditions they are facing.
Those sources described limited access to sanitation, such as soap and disinfectant, with no access to hand sanitizer. They describe staff not wearing masks while their own masks are of poor quality and have severely degraded due to use and being hand-washed.
When people fall ill with COVID-19, the disease caused by the new coronavirus, they are put in solitary confinement. In theory, this is supposed to be a medical isolation. In reality, it is still a form of punishment, much as it was before the pandemic struck, plaintiffs’ sources say.
The state admitted that it sends people to the solitary confinement unit when they need medical attention and need to be isolated to keep the illness from spreading but argued that the practice was an “issue of geography.” The restrictive housing unit is the only place in most prisons where officials can meet the requirements of medical isolation, Rodriguez said. DPS officials have sent out memos and told wardens on conference calls to “be on top of their staff” to make sure the sick people in isolation do not have their privileges taken away to the greatest extent possible.
The new policies and memos are not enough for the plaintiffs.
“When the conditions are actually inhumane, it doesn’t matter what you say,” Carpenter said.
Even when not in isolation, people in prisons with active outbreaks are on lockdown, meaning they are kept in their dorms or units for 23 hours a day. In prisons like the N.C. Correctional Institution for Women in Raleigh that lack air conditioning, the stress of the pandemic and the over-100 degree temperatures have led to more fights and increased depression, plaintiffs said.
The plaintiffs have relied on unsigned statements for several of their reports, which hold less weight in court, because their sources fear retaliation for speaking out, either to lawyers or the press, plaintiffs said.
Incarcerated and recently incarcerated sources who have given their names have also independently described each of these conditions to Carolina Public Press, which has been reporting on COVID-19 in prisons since the first cases were confirmed inside at the end of March.
The defense, however, challenged the plaintiffs’ claims.
In one example, the wife of a current inmate alleged that the National Guard improperly collected COVID-19 samples for testing at Carteret Correctional Center. DPS’ own nurses took those samples, not the National Guard, Rodriguez said. The state submitted statements from prison wardens to counter the claims made by the plaintiffs’ sources.
In describing conditions in the prisons, Simpson compared the power dynamics between prison staff and inmates to that of police and Black men, saying it was naive to think that wardens knew everything that happened in their prisons and that all correctional officers always acted with good faith.
“What happens behind these prison walls can only be tolerated because most people never see it and don’t want to believe it happens,” Simpson said.
For the first time in the course of this litigation, plaintiffs argued that the state was intentionally providing inaccurate information to the court and that the state was retaliating against the people who spoke out.
April Wright, who was released from NCCIW on July 22, said she hopes “that they don’t come get me and take me back to prison” for describing the conditions inside.
Plaintiffs also described the cases of Pamela Humphrey and Carl McMillian, both of whom spoke to the media on multiple occasions. Humphrey has not been considered for release under the Extended Limits of Confinement program despite qualifying for it, plaintiffs said.
McMillian was given a charge for being an active rioter, was transferred among prisons, put in solitary confinement and had his sentence extended after speaking with CPP.
DPS confirmed that there was no riot, rather there was a “short-lived incident,” and that the charges were better described as encouraging a group demonstration. McMillian was released from solitary confinement, then released from prison on his original date due to the intervention of an advocate and the media, the plaintiffs said, a privilege that few people in prison have access to.
The state challenged these allegations.
“Retaliation of any sort is not is not going to be tolerated and needs to be rooted out,” Rodriguez said. “That’s been the case before this pandemic and that will be the case going after the pandemic.”
Affidavits and unsworn testimony from individual people do not prove any kind of systematic scheme of retaliation, Rodriguez said.
Playing with the numbers
The plaintiffs in the case described the state as “playing with the numbers” and being in “willful noncompliance” with the court by failing to provide the information the court requested.
The poor quality of information provided by the state has been at issue since the first filing in the case and caused, in part, Rozier’s July order saying the state was out of compliance with the court.
Rodriguez said the inconsistencies in data pointed out by the plaintiffs could be explained by the fact that the information the state is presenting to the court is different from the information the state is providing to the public. Each set of data serves different purposes and therefore each has different presentations.
But CPP’s reporting found that that argument is not accurate.
In July, Rozier ordered the state to create a plan to decrease the size of cohorts in its prisons. Last week, after a monthlong extension, the state submitted plans for only 17 of the state’s 55 prisons.
In the court hearing itself, Rodriguez identified his own mistake in the state’s filings, accidentally overreporting the number of people who have been granted earned-time credits for good behavior by 40,000 people, well over the total number of people in North Carolina’s prisons. Rodriguez also incorrectly identified the date that the plaintiffs filed their most recent motion, which undermined his argument that the state was being proactive rather than waiting for court orders and complaints by the plaintiffs to take meaningful action.
Making the decision
Rozier’s ruling in this case would not be a final determination in the case, which is going to trial and will be ongoing for some time.
For this hearing, Rozier is weighing whether to impose further obligations on the state, as plaintiffs want, or to continue with the current orders, as defendants want.
In one aspect of the case, that of releasing more people from prison, Rozier seems to agree with the state’s arguments that he “authorized” rather than explicitly directed the state to release more people.
Rozier also said he would appoint a court liaison to review information submitted to the court to ensure that it was accurate and complete, a step he laid out in a previous order. The plaintiffs asked Rozier to appoint a “special master” with extensive authority to oversee the state’s actions, though Rozier said his liaison’s responsibilities would fall well short of the plaintiffs’ request.
Since the defendants filed a notice of appeal of Rozier’s orders to date, he also said he would need to weigh the authority he has to amend the preliminary injunction he has already put in place.
The state’s reasons for appealing are unknown. DPS said it does not comment on litigation. The governor’s office did not respond to questions. Only the notice of appeal, and not the actual documents, have been filed to date.