ACLU-CT, Yale Law School Professors, and Others Seek Protection for Incarcerated Persons during a Global Pandemic
Written by Paige Vaughn
Earlier this month, the ACLU of Connecticut, Connecticut Criminal Defense Lawyers Association, incarcerated individuals, and lawyers from Yale Law School’s Lowenstein International Human Rights Clinic and Jerome N. Frank Legal Services Organization brought a lawsuit against Governor Ned Lamont and Department of Corrections Commissioner Rollin Cook to prevent the spread of COVID-19 by reducing correctional facility populations. The lawsuit asks the Superior Court to mandate the release of particular populations, such as those who are vulnerable to COVID-19. It also asks the Court to require plans to better conditions within jails and prisons (e.g., through social distancing and the provision of medical treatment), and to assist individuals upon release from correctional facilities by providing transitional housing and other necessary funds.
Below, I interview three students from Yale Law School who are involved with the lawsuit.
Eli Feasley is a second-year law student. When the pandemic came about, Eli was worried that there would be a crisis in prisons. His enrollment in the Challenging Mass Incarceration Clinic and Advanced Sentencing Clinic led him to become involved with professors involved in the lawsuit and to redirect his work to focus on COVID in prisons. Eli’s involvement with the lawsuit primarily involved fact finding and researching what relief options might be authorized in the state.
Kamilyn (Kami) Choi, a second-year law student, and Faith Barksdale, a third-year law student, are in the Lowenstein International Human Rights Clinic. Kami has typically worked on international human rights issues and Faith has a background in criminal legal reform. Both students recently became involved with the campaign of ending solitary confinement in Connecticut. Their professor, Hope Metcalf, immediately recognized the problems that COVID-19 would present to jails and prisons, leading Kami, Faith, and a number of other law students to begin working on the lawsuit Kami and Faith were both involved with the legal argument portion of the lawsuit. Kami specifically researched how DOC’s inadequate response to the pandemic constituted deliberate indifference and cruel and unusual punishment.
Paige Vaughn: Can you please describe jails and prisons in Connecticut?
Eli Feasley: In Connecticut, the prison population is definitely aging. Sentencing in Connecticut at various times has been extremely draconian and so there are a lot of people who have been in prison for a very long time. Also, Connecticut has struggled with providing adequate healthcare to people in its prisons.
Faith Barksdale: Connecticut has a pretty unsatisfactory history with the provision of medical services to people incarcerated in its prisons. As part of the Lowenstein clinic, we drafted a letter to the United Nation’s Special Rapporteur on Torture that gives a very good background as to how Connecticut has not provided adequate mental health care and engages in a practice of shackling in its prisons …And unlike most correctional systems in the country, in Connecticut, there is no independent governmental oversight of prisons. So when incarcerated people have a grievance or have a complaint, they can go through the grievance process – the administrative process through the DOC – but they don’t really have any kind of outside body to grieve to or complain to. We’re pushing for that in legislation.
Paige: How did the idea of filing a lawsuit come about?
Faith: The idea seems to have emerged from a combination of professors at Yale and the ACLU. Our [Lowenstein] clinic, and Professor Metcalf in particular, and the ACLU were uniquely positioned because we had been working in the prisons for so long. Also Miriam Gohara, who’s the professor of the Challenging Mass Incarceration clinic, and Marisol Orihuela, who is the professor of the Sentencing clinic. We, and the lawyers who brought the case, have the legal knowledge and resources to prepare the lawsuit. Most importantly, however, is the fact that we had cultivated so many relationships for so long that we already have an ear to the group as to what’s happening inside. We know how to reach out to people.
Kami Choi: In addition to the lawsuit, there have been some actions and protests – for example, at the Governor’s house – calling on him and Commissioner Cook to adequately respond to this pandemic. There was also an open letter that has been circulating since before the lawsuit even started (Open Letter to Governor in Response to COVID). My sense is that the Governor is not very receptive to those calls.
Faith: Stop Solitary Connecticut organized a funeral procession that they had at the Governor’s house.
Paige: It’s my understanding that the Governor and the DOC Commissioner have the power to release people – if they want to. Is that what motivated the lawsuit against these two entities?
Eli: So, in terms of the mechanisms of release, The Board of Pardons and Paroles has the power to grant parole more. The Board also has the power to grant commutations and they egregiously shut down the entire commutations process a few months ago and they are not reopening it until September…The Governor could free everyone tomorrow with the stroke of his hand using a mechanism known as reprieve, which suspends people’s sentences until the next legislative session. So he can’t grant commutation, but he could let people out temporarily while this crisis is ongoing. And the DOC has the ability to grant furlough to people who they trust are going to return in a case of medical necessity. And then there are a lot of statutes that authorize release by a variety of different entities within the state for people who satisfy different requirements, whether it be based on the level of their charge, or the percentage of their time served, and there are people who are eligible under those statutes, many of whom have not been released, and some of whom are quite elderly and are at particular risk of COVID.
Paige: There have been reports of several incarcerated individuals and correctional staff members testing positive for COVID-19. Do you know how many people are being tested and how many have tested positive so far?
Kami: I think that when we started the lawsuit, there were zero incarcerated people who had tested positive. The fact that it has exponentially grown so much by this point, it’s worrisome.
Eli: It’s also worth noting that in terms of the people who they’ve tested and the tests have come back, 61 of the tests that have come back have been positive and 16 of the tests that have come back have come back negative. Which means that there are a great number of undetected cases.
Kami: Last I checked, I think there were 120 plus incarcerated people tested for COVID, and around 50 had tested positive.
Paige: Do you know what jail and prison conditions are like at the moment? I’ve heard that social distancing is nearly impossible in these facilities, that hand sanitizer isn’t allowed, etc. Have you been in contact with anyone on the inside?
Kami: Based on some of our conversations with folks on the inside, I think the conditions are truly terrible... For example, people are not getting soap when they need access to it or they have to pay for it, and there is just no way to socially distance, because either people are living with cellmates or in dormitory settings. And they’re still associating in congregate settings, whether that’s when they are out in recreation, or in sleeping or eating areas. I’ve heard that some folks have gotten maybe one or two masks made of cloth from DOC in the past couple of weeks, but they’re not required to wear them. And there have been some news articles about folks being transferred up to Northern for quarantining purposes, which is absolutely the worst response that the DOC could be giving to the pandemic.
Eli: There are already a lot of quite elderly and vulnerable people at Northern who are still there as they are transferring COVID-positive individuals.
Paige: Is it realistic to expect the DOC to provide better hygiene and/or social distancing within jails and prisons?
Kami: If the Court rules in our favor, I think that it may have to change.
Faith: It depends on the theory. So if the courts rule in our favor, it depends on why they did. That would define the scope of what kind of interventions they have to implement…Also, an interesting note is that Commissioner Rollin Cook is new to this job. I believe he started earlier in 2019. What’s interesting about Cook is that – he was Executive Director of the Utah DOC – and he developed a real reputation as being a reformer. The ACLU of Utah has had glowing things to say about him in the media. And he’s really built a persona as not only a progressive commissioner or warden, but a humane one. I think that if he is who he’s presented himself to be, he will take the steps and do the things in his power to do right by the people inside.
Paige: The lawsuit also asks for funding for transitional housing for people without housing upon release. It is my understanding that transitional housing is typically unavailable for people released from prison, so I’m wondering if you all think that this is a realistic expectation? Do you expect things to change and to be prioritized under current conditions or not?
Faith: Transitional housing is often unavailable upon release from prison. During reentry, individuals often run into a catch 22 where someone was up for parole but they needed an address, but in order to get an address, they had to go to a homeless shelter, which they couldn’t because they were in prison. But I’m optimistic that the defendants will work with other services in the state to find housing.
Paige: And on that note, do you know whether there are strong relationships between criminal justice agencies and community organizations that do work to assist with housing?
Eli: There are halfway houses that the DOC contracts with to provide services. People also get released to community supervision where they see a parole officer and check in but live elsewhere. But the state has failed to adequately fund enough beds for people to be released. That seems like a problem that one could overcome in the face of a pandemic.
Paige: What do you realistically expect to happen in the days moving forward? Did you design the lawsuit hoping to get all of these issues taken care of or with the understanding that only certain terms will be agreed upon, etc.?
Faith: It depends on what kind of relief the court chooses to grant. There’s a wide range of things that they can grant. It can be everything we’ve asked for in our lawsuit, or it can be a more limited ruling. Like they can rule, “you can’t release people, but you can appoint what is basically a medical supervisor.” So if you read the complaint, at the end, you can see the prayer for relief, it kind of lists all of the options and the court can grant any of those. It can grant none, it can grant some. It’s a relatively uncharted area, and so we reached for things that I felt were maybe less constrained, but we are still reaching for things that, you know, are legally feasible and that should be granted.
Eli: Also, the state has the authority to grant. Not only the authority, but also there’s a moral sort of necessity for them to grant the relief that we asked for and more. I think that we asked for relief that seemed plausible, that seemed like it would be acceptable to the public, that seemed like something that took public safety into account. In the relief that we asked for, we tried to balance public safety and the health of all stakeholders.
Paige: And lives are on the line.
Eli: And lives are on the line. And so in many ways, I think the impetus is on the lawsuit defendants to figure out a way to save these lives and they are going to have to act dramatically and drastically to do that. And we just sort of laid out some options.
Kami: And maybe, while some of these requests for relief, whether it’s relief on a larger scale, are pretty dramatic moves for the DOC and/or the Governor, many other jurisdictions have already released a lot of folks from prisons and jails and our argument is sort of that that is the only reasonable way that DOC can adequately respond to the COVID pandemic, especially because social distancing is at the heart of how governments at all levels are responding to this on an unprecedented scale. So it’s not an anomaly in terms of like what everyone else is doing; it’s an anomaly in terms of what DOC has done.
Paige: Can you think of any challenges that you would’ve liked to see addressed in the lawsuit that weren’t addressed? In particular?
Eli: I obviously would’ve liked to see them ask for more, and for a release of broader categories of people... But I think that at the same time, a lawsuit has to maintain credibility with the court and the judge it’s coming before, and seem like it’s reasonable people asking for a reasonable thing. [Kami and Faith agree.]
Paige: What do you think the long-term impacts of lawsuits such as this one might be? Is it possible that the pandemic – and the responses to it – may result in better conditions in jails and prisons in the long run?
Faith: I think that it presents a really great opportunity to see how decarceration can work. I think it’s giving lawmakers and courts an opportunity to think outside the box. And I think that it’s giving the American public a clearer idea of the types of stuff that happens behind bars. So I think it’s a real moment of opportunity.
Kami: I think the lawsuit does highlight the critical need for oversight. Because moving forward, if we get an independent correctional oversight body, if something like COVID happens again, there might just be a better response to it that could potentially save lives. And I think a second thing is, there have been many organizations (e.g., CT Bail Fund; Stop Solitary Connecticut) that have been organizing around this in Connecticut, and so I feel like credit is warranted in terms of what they’ve done so far and to say that the lawsuit sort of builds on a lot of the demands that these organizations have been pushing for for a long time.
Faith: It’s been extraordinary to see how all of these grassroots organizations, and also more traditional types of legal organizations, like Legal Aid, come together and create these really creative, inventive lawsuits. And to share resources and to lift each other up. And so I hope that these connections remain.
Complaint: https://www.acluct.org/sites/default/files/100.31_2020-04-03_complaint.pdf
Request for a court order: https://www.acluct.org/sites/default/files/101.00_2020-04-03_motion_for_temporary_order_of_mandamus.pdf
Repositories of COVID legal responses: UCLA: Legal Responses to Coronavirus ; Justice Collaborative COVID-19 Response and Resources ; COVID-19 Trackers & Useful Resources