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BOP Loses Fight Against Orders to Release Ohio Prisoners Threatened By Coronavirus

Noting a “significant level of infection” of the coronavirus that causes COVID-19 in the Federal Correctional Institution (FCI) at Elkton, Ohio, U.S. Attorney General William Barr directed federal Bureau of Prisons (BOP) Director Michael Carvajal on April 3, 2020 to “move with dispatch” to save vulnerable prisoners at the low-security prison just outside Cleveland, using “appropriate transfers to home confinement.”

But BOP failed to comply, according to a class-action habeas corpus petition filed April 13, 2020, by the state chapter of the American Civil Liberties Union (ACLU) in U.S. District Court for the Northern District of Ohio.

BOP fought back, citing a “danger to the community” if the ACLU’s petition was granted by arguing that the releases would “over-burden police” on the street because the ex-prisoners would be “mingling with their former criminal associates” and “return to their former ways.”

In a hearing on the case April 22, 2020, Federal Judge James Gwin rejected the argument, saying that BOP “might as well be arguing against the release of any inmate, at any time, for any reason, because even in the best of circumstances the country’s criminal justice system has no way, short of life imprisonment, of ensuring former prisoners do not recidivate. The COVID-19 pandemic has not suddenly raised this issue.”

Judge Gwin also called the prison a “hotspot for the virus” that causes COVID-19 – for which there is no cure or thus far no vaccine – and he determined that officials at FCI Elkton had been fighting a “losing battle for staff” and a “losing battle for inmates.”

“The only truly effective remedy to stop the spread (of the virus) is to separate individuals,” Gwin concluded, something he said was “impossible” without releasing some prisoners.

In a ruling issued the same day, April 23, 2020, Judge Gwin granted the ACLU’s petition for “emergency habeas action,” and he gave BOP one day to turn over a list of all prisoners who are part of the class he certified, which includes:

• any prisoner at the facility 65 years old.

• any prisoner with “documented, preexisting medical conditions” of numerous kinds.

On April 24, 2020, BOP complied with the 24-hour deadline and provided the judge a list of 837 qualified prisoners — nearly one-third of FCI Elkton’s population. The Court gave BOP two weeks then to use “compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough” to remove the vulnerable prisoners from the facility. See: Wilson v. Williams, 4:20-cv-000794 (N.D. Ohio Apr. 22, 2020).

FCI Elkton does not lead BOP facilities in COVID-19 deaths; FCI Oakdale in Louisiana had the most, with a total of 23 prisoner deaths. But the ACLU noted that BOP dragged its feet at FCI Elkton: By April 24, 2020 – three weeks after Barr’s directive – just 80 tests had been administered in the prison, which holds 2,400.

As of April 27, 2020, FCI Elkton had seven deaths to the disease. That was the same date on which U.S. Attorney James Bennett filed an appeal and asked for a stay of Judge Gwin’s emergency order against BOP.

In a press release, U.S. Sen. Dick Durbin (D-IL) noted bipartisan criticism and “worry” over the BOP’s response to the coronavirus pandemic, expressing a fear “that BOP is not fully and expeditiously implementing relevant statutory and directives from the Attorney General.”

“We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because (the agency) has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can easily spread,” the statement concluded.

On May 5, 2020, the U.S. Sixth Circuit Court of Appeals voted unanimously to deny Bennett’s petition on BOP’s behalf. Agreeing with Judge Gwin that FCI Elkton’s “dorm-style structure rendered it unable to implement or enforce social distancing,” the three-judge panel also determined the virus had apparently run “rampant among inmates and staff,” but that the prison lacks “adequate tests” even to determine that much about the prevalence of the disease.

By the time of the appeals court ruling, the ACLU said that 52 prisoners and 46 staff members at FCI Elkton had been infected with COVID-19, the fifth-highest totals in any BOP facility. In addition to the seven deaths at FCI Elkton, the disease had so sickened 12 prisoners and two staff members that they had been left on ventilators. See: Wilson v. Williams, 2020 U.S. App. Lexis 14049.

On May 26, an unsigned Supreme Court brief upheld the Sixth Circuit. The Trump administration had asked the Court to block Judge Gwin’s ruling. As PLN went to press, the BOP had not complied with the court ruling. 


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