by Mark Wilson
With 3,392 (28.1%) of 12,073 prisoners infected with coronavirus (COVID-19) and 42 prisoner deaths - 20 deaths occurring in January 2021 alone — Oregon prisoners are being infected at nearly 10 times higher than Oregon’s 3.1% general public infection rate and they are dying at a rate 8.5 times higher than Oregon’s general population COVID-19 death rate as of January 31, 2021.
In contrast, neighboring Washington state confines about 4,000 more prisoners than Oregon but has seen only about one-third of Oregon’s positive COVID-19 cases and just ten prisoner deaths since the pandemic entered the prison system in March 2020.
“We can see exactly why the pandemic is out of control in these prisons,” said Juan Chavez, an attorney with the Oregon Justice Resource Center (OJRC), which represents Oregon prisoners in a federal class action suit against the Governor and prison officials. “It’s DOC-created conditions, by failing or completely ignoring CDC guidelines for almost, what, 10 months now?”
Oregon Department of Corrections (ODOC) “administrators acknowledge that current measures are inadequate to stop the spread of COVID-19,” wrote United States Magistrate Judge Stacie F. Beckerman on February 2, 2021. See: Maney v. Brown, USDC No. 6:20-cv-00570-SB (D. Or. 2.2.21).
Prison officials have only compounded the problem by throwing up their hands. “We hear our clients say they’re told by staff, ‘You’re all going to get it anyway,”‘ said lawyer Tara Herivel, who represents hundreds of Oregon prisoners in state court COVID-19 habeas corpus cases. “I would argue it doesn’t matter what they were sentenced for, they weren’t sentenced to death by pandemic.”
ODOC’s first identified COVID-19 case was a guard who tested positive on March 27, 2020. As of February 2, 2021, 806 (18.3%) of ODOC’s 4,400 employees had tested positive for the virus, but none had died.
ODOC officials recently “determined that all but one (prisoner’s) COVID-19 infection was transmitted through an ODOC staff member,” noted Judge Beckerman. “ODOC staff and contractors are the primary vector of COVID-19 within ODOC.” See: Maney v. Brown, USDC No. 6:20-cv-00570-SB (D. Or. 2.2.21).
Comparing Oregon’s approach to Washington’s makes it clear that there are clear reasons for ODOC’s COVID-19 explosion. “This is all, in a sense, avoidable,” noted Bobbin Singh, OJRC’s executive director. “There are things we could be doing to ensure that the trajectory we’re on changes.”
Most notably, ODOC’s deadly outbreak is directly attributable to guards not taking the virus seriously and administrators lacking the will to hold them accountable.
Washington officials require mandatory weekly testing of nearly all staff and contractors. If employees refuse the routine tests, they are not allowed to enter the prison.
“We have experienced the deaths of two incarcerated individuals and one staff member to COVID-19 and that is three deaths too many,” Washington officials wrote in a memo to all prison employees. A far cry from “three deaths is too many,” ODOC spokeswoman Jennifer Black finally acknowledged after 42 deaths that “these deaths have been difficult for (prisoners’) loved ones and all who live and work in the prison.”
Difficult?! Still, she failed to offer anything that prison officials intended to do to stem the rapidly swelling death toll.
Soon after implementing mandatory staff testing, Washington prison officials identified several asymptomatic Washington prison employees who could have unknowingly spread the virus throughout the prison system.
In contrast, ODOC officials refuse to implement mandatory staff testing measures, arguing that it’s up to staff to seek private testing on their own, if they so choose. “ODOC does not directly provide COVID-19 testing ... to staff,” noted Joe Bugher, ODOC’s assistant director of health services in a September 18, 2020 sworn declaration. ODOC officials claim they cannot force staff to be tested.
“In other words, mandatory testing would violate labor agreements that are put in place to protect workers’ rights and prevent abuse,” ODOC declares on its website. Oregon prison officials clearly fail to understand, or care, that labor agreements they enters with 4,400 employees do not, and cannot, trump the constitutional rights of the 12,073 prisoners it is obligated to care for.
“The Eighth Amendment imposes an obligation on (prison officials) to protect the people in their custody because they cannot protect themselves. Courts have long recognized that prison officials have an Eighth Amendment duty to protect inmates from exposure to communicable diseases,” wrote Judge Beckerman. “Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless.”
Yet, Oregon officials have repeatedly thumbed their nose at this constitutional mandate at every tum since the beginning of the pandemic, with deadly consequences.
Washington started requiring all staff and prisoners to wear masks in April 2020. Oregon did not. Rather, they allowed the guard union to vote on whether they should do so or not. Of course, they voted no.
It wasn’t until ODOC had a problem on its hands that it finally ordered staff to wear masks starting July 13, 2020. It first made masks available to prisoners on August 12, 2020. “While masking remains a primary means of reducing transmission in ODOC facilities, (prisoners) and staff did not readily accept masking recommendations,” noted Judge Beckerman on February 2, 2021. “To date, non-compliance with masking requirements remains an ongoing problem at ODOC facilities.”
“It is difficult to stand our ground on our current directive, as not all of us are following it,” wrote Steward, quickly adding, but “I am in no way pointing fingers.”
Steward warned of the risk of “progressive discipline “ for non-compliance. “To mitigate our risk of COVID-19, being mandated to wear face coverings at all times, and further litigation - those found not using face coverings when required will be reminded,” wrote Steward. “Anyone within six feet of others refusing to wear a face covering after being reminded, will be sent home for the day without pay and progressive discipline will begin ... effective Tuesday, July 14.”
Yet, experience on the ground suggests that Steward’s warning was all bark and no bite. “We know of no discipline,” said Herivel. “It doesn’t appear to be enforced at all.”
In late August 2020, ODOC took heat for posting a photo on its Facebook page depicting two uniformed employees lifting a pallet of personal protective equipment in a warehouse, but not wearing masks.
“DOC you need to do better by our inmates by enforcing the mask mandate for the corrections officers in your employ,” wrote one prisoner’s wife in response to the photo. “The inmates can’t go out and get COVID. So your officers are bringing it in.”
Oregon’s Governor and Health Authority (OHA) included people who work in correctional settings - but not prisoners - within the highest priority of people who are eligible to receive a COVID-19 vaccination. “ODOC strongly encourages (but does not require) its staff and contractors to be vaccinated,” noted Judge Beckerman. Vaccinations were made available to all 4,400 ODOC employees beginning December 28, 2020.
“Initially, ODOC estimated that approximately fifty-five percent of staff would accept the vaccine when offered to them .... To date, ODOC has administered only 1,500 first doses, which constitutes approximately thirty-four percent of its staff and contractors, a lower number than expected,” noted Judge Beckerman. “Even assuming that vaccinated (guards) cannot spread the virus to prisoners ( an assumption public health experts have not yet endorsed), vaccinating only one of every two or three correctional staff is inadequate to stop the spread of COVID-19 in the prisons.” In contrast, ODOC mistakenly offered vaccines to 1,5 58 prisoners who were over sixty or who had medical vulnerabilities. Of those offered the vaccine, 1,3 43 prisoners chose to be vaccinated for an acceptance rate of eighty-six percent, according to Judge Beckerman. “An additional 316 adults under age sixty received the vaccine because there were leftover doses.” Yet, the remaining ODOC prisoners - about 10,41 4 people - were not offered a COVID-19 vaccine and were not initially scheduled to receive one until sometime after an estimated 919,000 Oregon teachers and seniors are vaccinated. “They will be sometime after all seniors are eligible,” said Black. ‘‘So in March.” OHA put that date closer to April or May.
“It’s just a matter of time before everyone gets infected here,” said Alexander Vasquez, a prisoner at the Two Rivers Correctional Institution (TRCI), where 16 of the 20 January 2021 deaths occurred. TRCI prisoner Richard Flores said that the prison experienced an “explosion “ of COVID-19 cases in December 2020 after infected prisoners were transferred there from Deer Ridge Correctional Institution (DRCI).
Spokeswoman Black admitted that ODOC transferred COVID-19 positive DRCI prisoners to TRCI because DRCI had more COVID-19 cases than its medical staff could handle. “We are required to medically care for those in our custody, and sometimes that requires they be moved to another institution,” said Black. But this decision echoed a California transfer of COVID-19 positive prisoners to San Quentin in [May] 2020, which caused a massive COVID-19 outbreak and 29 prisoner deaths, ultimately resulting in the termination of California’s prison director and health services administrator. See: (PLN - 2020, p. _).
The CDC guidelines require immediate medical isolation when an individual develops COVID-19 symptoms or tests positive. However, ODOC continually thumbs its nose at that requirement.
Frances Lanegan, 56, and her cellmate at the Coffee Creek Correctional Facility (CCCF), Oregon’s only women’s prison, both tested negative on December 19 and 28. When they were tested again on January 6, 2021, however, Lanegan’s cellmate tested positive. Lanegan expected she would be moved but was told she would be staying with her infected cellmate since she had already been exposed. “I’m vulnerable,” said Lanegan, who suffers from respiratory issues. “They just left me in there with her.” Other CCCF prisoners tell similar stories:
“Here at Coffee Creek, there’s no more room for the girls with COVID, so they’re now housing them in general population,” said prisoner Anna Marie Valdez during a phone call with a reporter. “I’m in general population right now and there’s a girl who’s positive for COVID. She’s on this unit.” Just a few minutes into the call, a guard told Valdez to hang up and return to her cell.
After initially denying claims like those made by Lanegan and Valdez, ODOC now admits that since January 9, 2021, CCCF prisoners who test positive for COVID-19 have been living with or near people who have not tested positive. “In our celled units (prisoners) who test positive and are asymptomatic are staying in their cells,” ODOC admitted in a statement.
Coffee Creek is not the only place this is happening. TRCI prisoner Anthony White took a COVID test on December 31, 2020, but did not hear anything for nearly a week. While awaiting his test results, White was never told to isolate. His cellmate was moved and a different prisoner was assigned to his cell.
Black claims that it is ODOC policy to promptly notify prisoners of a positive test result. Yet, if this is true, prison staff are engaging in a vast pattern and practice of blatantly violating the policy with impunity.
Medical staff never informed White of his test results. But when he awoke on January 6, 2021, he found a sign on his cell door saying that he tested positive and needed to isolate. A few days later, his new cellmate began showing symptoms and later tested positive.
Similarly, TRCI prisoner Richard McKenzie, 59, said he took a COVID test in early January 2021, but after nearly a week with no news, he asked medical staff about the results. He was finally told on January 19, 2021 that his test had come back positive and he needed to go into isolation. Just three days later, however, guards moved a new prisoner into his cell who had not yet contracted the virus.
“I can’t fathom some of the stuff they do in here,” said McKenzie. “They really don’t care.” He is far from alone in this belief.
During the week of January 21, 2021, Herivel received an email from an attorney at the Oregon Department of Justice (DOJ), telling her that one of her clients had tested positive for the virus. “Instead of telling my client he was positive and taking the immediate steps to isolate him from spreading to anyone else, (they) told their lawyer at DOJ he was positive, who told me later and I told my client he was positive, hours later, after all of this contact he was allowed to have with other prisoners,” said Herivel.
Returning to another contrast between the decisions of Oregon and Washington officials, “experts agree that smart, swift, and evidence-based decarceration is the most effective way to save the lives of our family members, friends and neighbors in prison,” observed Judge Beckerman. See: Maney v. Brown, USDC No. 6:20-cv-00570-SB (D. Or. 6.1.20). “At this juncture, neither ODOC’s policies nor this Court’s pen can reduce the prison population to save lives. Only the Governor has that power.”
In response to a request from Oregon Governor Kate Brown, ODOC informed her on April 13, 2020 that 5,800 prisoners- about 40% — would need to be released to create enough space for social distancing. The Oregon District Attorneys Association quickly pressured Brown not to release any prisoners early because it would upset crime victims. Brown caved.
“Do I plan to early release adults in custody as a result of the COVID-19 crisis?” she asked at a news conference a few days later. “The answer is no.”
On June 1, 2020, Oregon lawmakers presented Governor Brown with a “decarceration” plan calling for the early release of 2,000 prisoners. Brown again refused, leaving 42 dead prisoners and their devastated, heartbroken families in the wake, including Joseph Lawrence, 76, who died in prison on December 9, 2020, just two days before his scheduled release date.
“We had an opportunity there that could’ve played out differently,” said Oregon Senator Floyd Prozanski, chairman of the Senate Judiciary Committee and former prosecutor whose sister was murdered when he was a teenager. As one of the lawmakers who encouraged Brown to release 2,000 prisoners, Prozanski said more should have been done to release vulnerable people early in the pandemic.
Governor Brown has slowly started commuting a small number of prisoner sentences on a case-by-case basis, but not at a rate that will have any meaningful impact upon the remaining prison population. Washington Governor Jay Inslee has released 950 (6%) of the state’s 16,700 prisoners, compared with Governor Brown commuting the sentences of just 336 (2.8%) of Oregon’s prisoners.
Of course, Governor Brown is receiving pressure from far more than prosecutors and crime victims. On December 14, 2020, Robert W. Hillmick, statewide president of one of Oregon’s guard unions sent an email to all of his members, calling them to arms.
“As you all know, the Governor is getting ready to commute the sentences of over 1,000 inmates with the end goal of closing three prisons and putting our Union brothers and sisters out of work!” wrote Hillmick. “If Governor Brown is successful, it will decimate these communities and families will be destroyed! The Union will spend every waking moment to do everything we can in order to stop this from happening.”
Of course, the President of the guard union that has not lost a single brother or sister to COVID-19 does not say a single word about the “decimated” and “destroyed” families of the 42 - and counting - prisoners that his union brothers and sisters are directly responsible for sentencing to death by COVID-19; families like that of prisoner Juan Daniel Tristan, 58, who was rushed to a hospital emergency room on December 26, 2020 with pneumonia, sepsis, multiple organ failure and COVID-19.
“He was having multi-organ failure. As they were trying to stabilize him as he was arriving, he coded, so his heart stopped,” said Felishia Ramirez, his niece. “They did CPR on him for 10 minutes and they were able to bring him back. But 10 minutes is a long time to be without oxygen to your brain.”
Prison officials couldn’t be bothered to tell Tristan’s family that he was sick, or in a hospital emergency room. His loved ones had no idea, as he laid there unconscious and alone for weeks on a ventilator and kidney dialysis machine.
A prisoner who knew Tristan was able to track down a friend who was finally able to alert his family of his condition on January 18, 2021. Ramirez and other family members then called the prison for weeks, trying to find out what happened, where he was and if he was even alive.
Luckily, they finally connected with hospital staff who gave them some information.
Prison officials defended their callous disregard for Tristan and his family, claiming that it is ODOC’s practice to not notify family members if a prisoner is hospitalized, for “security reasons.” If true, ODOC has apparently refused to notify the decimated and destroyed families of any of the 42 prisoners who have died of COVID-19, or the hundreds of other prisoners who have been hospitalized but fortunately recovered during the pandemic to date.
“Thankfully, I got to be there when he took his last breath,” Ramirez sobbed. “But we got one day with him. Just one day ... He was in the hospital for almost a month and nobody - it just breaks my heart .. . Nobody deserves that.”
Tristan died January 22, 2021. “Someone should have noticed, a guard, anybody, that he was not well,” said Ramirez. “Not once did anybody make an initiative to get him that medical treatment.”
Yet ODOC officials want you to believe they are “heroes,” making “valiant efforts” to save prisoner lives. “We have been working nearly around the clock to slow the spread of COVID-19 and protect our most vulnerable populations inside our communal living facilities,” claimed ODOC Assistant Director Bugher in a September 18, 2020, sworn declaration. “Our employees have worked tirelessly to protect the (prisoner) population and the public. Moreover, ODOC is already taking every reasonable step it can to reduce the spread of COVID-19 within its facilities.” Bugher’ s false, self-serving claims were echoed by ODOC’s infectious disease “expert,” Dr. Daniel Dewsnup, MD — who “treated” a COVID-positive prisoner who had two stents placed in his heart two months earlier with hydroxychloroquine, despite FDA warnings that hydroxychloroquine has no medical efficacy and poses significant risk of increased heart problems. “ODOC has made extraordinary efforts to protect and treat (prisoners) during this pandemic and will continue to do so,” he asserted in a September 18, 2020 sworn declaration. Seriously?!
“At some point it’s just going to become too morally repulsive to allow this to sustain,” said Singh. We desperately hope that he is right, but, sadly, we fear that he is not.
It remains a problem, of course, because ODOC administrators refuse to enforce the “mandate.” As a guard holding a union leadership position openly mocked the requirement for days by wearing a fishnet wrapped across his mouth and other employees wear masks bearing political statements such as “So I Won’t Be Fired!” administrators look away, sending a clear message that staff need not take masking seriously.
This appears again to be based upon the mistaken belief that administrators are powerless to enforce ODOC’s masking “requirement.” In a department-wide July 13, 2020 email, Deputy Director Heidi Steward pleaded with employees for their help because “we are facing legal action for not following our face covering protocol,” as she acknowledged and validated anti-mask sentiment.
“I want to acknowledge we each have — and are entitled to — our own thoughts and opinions on face coverings,” wrote Steward. “I also recognize it is difficult to wear a face covering for an eight-hour shift.”
Sources: The Oregonian/OregonLive, The Statesman Journal, Sinclair v. Laney, Marion County No. 20CVI 9431; Maney v. Brown
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Related legal case
Maney v. Brown
|Cite||USDC No. 6:20-cv-00570-SB (D. Or. 2.2.21)|