In Prisons, Coronavirus Precautions Found Lacking

      Christopher Marlowe, an inmate at the Rayburn Correctional Center in southeastern Louisiana, suffers from diabetes — an underlying condition that makes him especially vulnerable to the risk of contracting COVID-19 from the novel coronavirus that is sweeping through prisons nationwide. Marlowe has been in federal court for the past two years, claiming inadequate medical treatment, and now is seeking more urgent relief in the form of stricter public health measures to protect himself and other inmates from the risk of coronavirus contagion.

      The federal judge in Marlowe’s case is one of two, the other in Texas, to have ordered prison officials last month to do more to protect inmates from the coronavirus. In both cases, however, a three-judge appeals court panel put the injunctions on hold with seemingly little concern about the urgency of protecting the inmates’ health.

      The judge who heard Marlowe’s testimony via teleconference along with the prison warden’s explanation of the protective measures under way concluded last month [April 23] that the prison had done too little to limit the spread of the virus. In a 14-page memorandum opinion, Judge Brian Jackson noted Marlowe’s testimony that water fountains and microwave ovens are not wiped clean and disinfected on a regular basis. Jackson also noted evidence that social distancing guidelines are not followed and are inevitably breached because of narrow corridors and lack of spacing the telephones for inmates’ use.

      Jackson acknowledged Warden Robert Tanner’s testimony that the prison staff had taken “some steps to deter the spread of the virus.” But the judge faulted Tanner for failing to require prison staff and orderlies to wear masks and other personal protective equipment.

      Marlowe testified that he sleeps in a 78-inmate dormitory, an arm’s length away from the prisoner in the adjoining bunk. At the outset, Jackson noted that Marlowe, because of his diabetes, was “extremely susceptible to serious, potentially fatal, complications should he contract COVID-19.” The judge also noted that 23 inmates had been found to have contracted the virus at the time of the hearing. With that evidence, Jackson concluded flatly that the “interests of justice demand that the court take emergency action”—specifically, ordering the prison to institute all the health measures recommended by the state.

      The fate of Jackson’s order now rests with the U.S. Supreme Court after a three-judge appeals court panel put Jackson’s injunction on hold. Emily Posner, the New Orleans attorney representing Posner, filed an application last week [May 14] asking the justices to lift the stay issued by the Fifth U.S. Circuit Court of Appeals on April 27. Marlowe’s case, Marlowe v. LeBlanc, 19A1039, is the second coronavirus-related prison suit to reach the Court within a matter of weeks; the previous case, Valentine v. Collier, 19A1034, from Texas, followed a similar path with a district court injunction ordering Texas officials to institute more stringent protective measures and then an appeals court decision to stay the injunction.

      In the Texas case, U.S. District Court Judge Keith Ellison noted such shortcomings as the lack of hand sanitizers and then detailed more than a dozen steps for the officials at Wallace Pack Prison in southeastern Texas to institute to protect the geriatric inmates at the facility from what he called the “grave” dangers from the virus. Ellison noted in his April 16 decision that one inmate at Pack Unit had already died from Covid-19 and that Covid-19 was “spread[ing] like wildfire” in prisons in Texas and throughout the country.

      The state asked the Fifth Circuit to stay Ellison’s injunction. The stay panel consisted of two Republican appointees — the veteran conservative Edith Jones and a Trump-appointed conservative Andy Oldham — and one Democratic appointee, Stephen Higginson. In an unsigned opinion granting the stay on April 22, the panel noted that some of Ellison’s ordered steps went beyond guidelines adopted by the federal Centers for Disease Control and Prevention (CDC). The panel also noted that the Prison Litigation Reform Act, adopted in the 1990s, requires that any court-ordered remedies in prison condition suits be “narrowly drawn” and “the least intrusive means necessary to correct the harms.”

      Attorneys for the inmates asked the Supreme Court, in effect, to reinstate Ellison’s injunction by staying the appeals court’s stay. But the Court turned down the request in an unsigned order issued last week [May 14]. In a seven-page opinion, Justice Sonia Sotomayor appeared to concede that the inmates had failed to make the showing needed to undo the appeals court’s stay, but went on to explicitly criticize the Fifth Circuit’s reasoning. “[T]he Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates,” she wrote. Sotomayor added later that the appeals court “may have acted outside its authority in refusing to defer to [the district court’s] factual findings.”

      Sotomayor closed by admonishing the appeals court to continue to monitor the litigation and to consider modifying its stay. The same panel, however, had already cited its ruling in the Texas case as authority for staying Judge Jackson’s order in the Louisiana case in an order issued on April 27. “It has long been said that a society’s worth can be judged by taking stock of its prisons,” Sotomayor wrote in a concluding passage. “That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.”