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Judge may appoint a ‘special liaison’ to reduce COVID-19 risks in NC prisons

Sleeping in crowded dormitories, washing face masks in the shower, and fearing being sent to lock-up if fellow inmates got infected are some of the experiences Ethan Spears said he had living in prison during the coronavirus pandemic.

Some inmates also had breathing problems after bedding and lockers were sprayed down, and guards rarely wore masks, said Spears, who was incarcerated in Carteret Correctional Center from March 28 to Aug. 4, according to court documents.

“There was no hand sanitizer available to me during my time in prison, even after the COVID-19 pandemic began,” he said in an affidavit. “It was not uncommon to be without soap as well. When soap ran out, the correctional officers were charged with replacing it, which many times resulted in going without soap.”

Spears, who was convicted of multiple larcenies, is one of the the inmates whose stories were cited in court arguments Friday contending, again, that North Carolina officials aren’t complying with a judge’s orders to make state prisons safer during the pandemic.

The hearing in Wake County Superior Court was the latest legal step that has followed an April 20 lawsuit filed by the N.C. NAACP, Disability Rights North Carolina, the ACLU of North Carolina, other organizations and multiple inmates.

The lawsuit contends Gov. Roy Cooper, Secretary of the N.C. Department of Public Safety Erik Hooks and others aren’t doing enough to protect North Carolina’s more than 31,000 people in state prisons from the coronavirus.

Early release from prison

Attorneys for the plaintiffs argued that state officials failed to develop and share an effective plan to allow more people to be released from prison early. Officials have continued to isolate people who have tested positive for COVID-19 in punitive situations, such as solitary confinement, and are still transferring too many people, they argued.

They also said some prisons aren’t following health officials’ guidelines and that inmates who speak out face threats and punishment.

Whitley Carpenter, attorney with the organization Forward Justice, asked the judge to order the state to reduce transfers of prisoners, ensure that publicly reported information on COVID-19 in state prisons is accurate and enforce federal guidelines on personal hygiene and personal protective equipment in jails.

Carpenter also asked Superior Court Judge Vince Rozier to appoint a special master to the case with authority to expand the criteria for prison release and make recommendations for releasing people to the court.

“The special master should also have the authority to review grievances and other documentation related to the defendants’ management of the pandemic in our state prisons,” Carpenter said, and make sure inmates aren’t retaliated against for complaining.

Incarcerated population reduced

Meanwhile, an attorney for the state said officials have approached court orders in good faith and taken steps to a reduce the prison population, even though it was “authorized” by the court and not ordered.

State officials have also worked to inform inmates being isolated due to COVID-19 that it is not punitive, and when possible, maintained their privileges, and are now moving prisoners in batches that lets them be quarantined before or after a move, said Assistant Attorney General Orlando Rodriguez.

“The staff and the department, leadership in the department, the attorneys on the case take this issue very seriously, the COVID issue and the compliance with the court’s orders,” Rodriguez said.

Rozier said he needs time to review the evidence and plans to consider appointing a “special liaison.”

“I can let you know that I am somewhat moving towards there being someone involved, however, there would be certain limitations,” the judge said.

As of Friday afternoon, there had been 33,124 COVID-19 tests done in North Carolina prisons and 1,909 positive results, according to information provided by the Department of Public Safety. Those tests include a mass testing effort ordered by the court in June.

Ten people incarcerated in state prisons have died, and 1,577 of those who have been infected have recovered.

In a June 18 order for preliminary injunction, Rozier found the plaintiffs would likely succeed in proving the state’s actions resulted in cruel and unusual punishment, which violates federal constitutional rights outlined in the Eighth Amendment and a state law.

Rozier ordered the state to:

? Reopen the application process for programs willing to be early-release partners for incarcerated people.

? Test inmates before transferring them or placing them in isolation for 14 days. Isolation must not be executed with actions that would be deemed punitive or a means as punishment before the pandemic.

? Create a plan to test all inmates and identify disparities and weaknesses in prison facilities’ response to COVID-19.

Rozier also authorized state officials to identify new factors that could result in reduced sentences for some inmates.

Prison population reductions

The state has appealed the judge’s preliminary injunction, but has still devoted resources to comply with the order, Rodriquez said, including expanding eligibility for the Extended Limits of Confinement program that lets inmates serve some of their sentence outside of the prison in a community or related program.

As of Aug. 24, a total of 1,193 people in prisons have been considered for the program and about 450 have transitioned to the program. Twenty-four participants were returned to prison for violations.

An additional 433 were removed due to disqualifying factors. Another 109 were removed from the list because of pending charges that triggered consent for early release from district attorneys who didn’t provide it, Rodriquez said.

Nearly 200 people in prison are still under consideration or awaiting a DA’s approval for early release.

Discretionary credits

As of Aug. 21, the Department of Public Safety has awarded discretionary time credits to 1,086 individuals with release dates through Dec. 31. 2020, according to a court filing by state attorneys.

In addition, in May state officials implemented an incentive program, awarding four days of credit for every month offenders remain infraction free, the filing states. Under that program, prison time has been cut for about 20,000 offenders in recent months, Rodriquez said.

An attorney for the plaintiffs said the program wasn’t effective in substantially reducing sentences.

In addition, the parole commission is reviewing 1,200 individuals who are in prison after their post-release supervision was revoked and were re-incarcerated, Rodriguez said..

The current prison population of 31,184 people is about 4,000 people lower than when the pandemic began, he said.

The plaintiffs argued the state could do more to release inmates and create safer population levels, but is using its discretion not to do so


Before the pandemic, the Department of Public Safety averaged 1,206 prison transfers weekly. Since June 8, it has averaged 345 for reasons like moving inmates from intake to permanent housing, security, medical and other issues, according to the state filing.

The state set up quarantine dorms at 53 of the 55 facilities where transfers are grouped for two weeks of separation after their move, the filing states.

In addition, state officials are visiting prisons unannounced to ensure all the COVID-19 protocols are being followed, Rodriguez said.

An attorney for the plaintiffs questioned whether the judge’s order meant for individuals to be isolated in quarantine dorms compared to single cells.


©2020 The Herald-Sun (Durham, N.C.)

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