Civil rights groups filed an emergency lawsuit Wednesday afternoon with the N.C. Supreme Court to force Gov. Roy Cooper and the Department of Public Safety to release people from prison due to the coronavirus pandemic.

This comes after weeks of advocacy from civil rights groups and public health officials to the governor, the department and district attorneys to release people from jails and prisons.

Also Wednesday, the Durham County district attorney backed the release of several nonviolent offenders convicted in her jurisdiction due to the health risk from COVID-19, the disease caused by the new coronavirus.

Lawsuit: Release the only appropriate remedy

The lawsuit alleges that releasing people from prison is the only appropriate remedy in light of the pandemic and that Cooper and the head of the Department of Public Safety, Erik Hooks, have not taken adequate action to protect incarcerated people and prison staff from the virus. This, the lawsuit alleges, is a violation of the rights of the incarcerated and a failure of Cooper’s and Hooks’ constitutional and legal responsibilities to provide safe prison conditions.

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“The practices that can slow the spread of COVID-19 are inherently impossible in prisons, putting everyone who is currently incarcerated — as well as prison staff and the surrounding communities to which they return daily — at increased risk,” the lawsuit alleges.

The suit includes estimates from public health experts for hospitalizations and deaths from COVID-19, ranging from several hundred hospitalizations and a dozen deaths in a best-case scenario to several thousand hospitalizations and over 100 deaths. Without social distancing, which is impossible in prisons, the higher number of cases seems likely, according to the lawsuit’s health analysis.

Releasing people from prison — an action taken by the Federal Bureau of Prisons and several states, including California, Illinois and Iowa — decreases the number of people susceptible to the virus and limits transmission with the prisons. It could also help ameliorate the dangers of staff shortages made more severe by the illness, the suit claims.

Prisons respond

The Department of Public Safety has taken “numerous steps to help reduce the opportunity for the virus to spread into our facilities,” according to a statement released to CPP, which include following the recommendations by the Centers for Disease Control and Prevention.

But public health experts who provided a declaration for the lawsuit question the effectiveness of those measures and how closely prisons have adhered to some of them.

The department confirmed the first case of COVID-19 of someone who was incarcerated on April 1. The prisons now have 14 confirmed cases, Hooks said Wednesday. Public health experts expect these numbers to continue rising.

Since the tests the department uses take a week to return results and the number of tests are limited, the true number of cases in North Carolina’s prisons remains unknown.

The department’s statement also said it “has been actively and diligently working to identify avenues for reducing our population while also continuing our mission to maintain public safety.”

This is the first public statement indicating that the department is seeking to release people from its custody. As of publication, the department did not identify what those avenues were or what actions have been taken.

Responsible for inmates, staff health?

With the pandemic sweeping through the state, the responsibility for protecting people in this public health crisis does not end at prison walls, according to Whitley Carpenter, a staff attorney at Forward Justice, an organization participating in the suit.

“When our state is supposed to protect the people of North Carolina, that includes all of the people of North Carolina,” Carpenter said. “It doesn’t exclude the people that are incarcerated because they are North Carolinians, too.

“We need to get people out of the prisons, and we need to take the steps to protect the people that will still have to remain in there.”

Proposed remedies

The lawsuit asks the governor’s office and Department of Public Safety to release immediately people who are age 65 or older, have underlying medical conditions that put them at increased risk of serious illness or death from COVID-19, or who are within 12 months of release or are already approved for work release.

The specific kind of lawsuit filed, a writ of mandamus, requires the parties named in the suit to respond within 10 days.

The civil rights groups that sued, including the American Civil Liberties Union, Disability Rights North Carolina and Forward Justice, also filed a request to expedite the process. If that request is approved, Cooper and Hooks would have two days to respond.

After that, it will be in the court’s hands to decide how quickly the case moves. If the lawsuit’s requests are granted, possibly well over 10,000 people could be released from North Carolina’s prisons in short order.

The reentry system is already underfunded and inadequate, according to previous statements by Dr. Evan Ashkin, who works to connect people to health care after their release.

The release of 10,000 people over a short period of time would overwhelm the supports currently in place. However, Ashkin emphasized that despite these challenges, releasing people from prison is still the medically favored action over continued incarceration.

The Department of Public Safety wrote that “reentry for offenders is complex in the best of times. People often face challenges finding appropriate housing, job opportunities and medical care. These issues are even more difficult in this current state of emergency, particularly for vulnerable prison populations.”

However, that is not a reason for continued incarceration in light of the COVID-19 pandemic, Carpenter said.

“We shouldn’t not do what’s right and what is legally mandated to protect people’s lives because we’re afraid that the state reentry resources are going to fall through,” Carpenter said.

A lot of people in prison already have support networks they can return to, she said, noting that Forward Justice has been working with reentry organizations to scale up services.

Steps taken by Durham DA

In addition to litigation, the civil rights groups have been working with district attorneys to release people from prison on a case-by-case basis.

Durham County District Attorney Satana Deberry announced Wednesday that her office consented to sentence relief in several cases.

“We’ve been focused on those people who have been convicted of nonviolent crimes in which there are no human victims, and people who have served a majority of their sentence,” Deberry said.

In the last week, a judge has signed eight sentence reductions so that those people can be released from prison, Deberry said. An additional case was under review before the COVID-19 outbreak, she said.

This process is called a motion for appropriate relief. Defense attorneys find cases that they believe could be reviewed and present them to the district attorney. If the district attorney consents to the motion, it is immediately put in front of a judge, who then decides whether or not to grant it.

Deberry is the first district attorney in the state to publicly approve of this strategy to release people from prison in light of COVID-19, according to Forward Justice and the N.C. Justice Center, which have pursued this strategy with district attorneys across the state.

Last week, Wake District Attorney Lorrin Freeman said her office was not considering consenting to these motions at that time and that the first reported cases of COVID-19 inside prisons did not change her decision, citing public safety concerns.

Mecklenburg District Attorney Spencer Merriweather III told CPP that he did not think the motion for appropriate release was a legally sound way to release people in consideration of the COVID-19 outbreak.

“Anytime anyone has a motion for appropriate relief, be it in the middle of a global pandemic or otherwise, it has to be… guided by the law,” Merriweather said.

In his opinion, he said, it was not legally possible to amend the sentence for the cases recommended by the N.C. Justice Center. District attorneys are also limited to reviewing requests for the release of people in prison on a case-by-case basis, Merriweather said.

For the large-scale release of people from prison, Merriweather said, civil rights groups would more likely find that relief in the executive branch.

The timeline of COVID-19 spread in jails and prisons

The world got its first glimpse of the impact of COVID-19 in prisons in late February with reports of the disease spreading rapidly in China’s prisons.

By mid-March, human rights groups, civil rights organizations and medical professionals were warning that jails and prisons would be a major epicenter of the COVID-19 outbreak in the United States, which has the most people in jails and prisons in the world.

On March 18, the first case of COVID-19 was reported in New York’s Rikers Island jail, with dozens of additional cases reported in jails and prisons across the country coming in the following days.

Rikers was following CDC guidelines, according to its head doctor, yet the jail was neither able to keep COVID-19 out nor contain its spread.

On March 19, many of the civil rights groups filing suit in North Carolina this week requested that Gov. Cooper take action to release people from prison before the state’s prisons were hit with the pandemic.

By the time public health experts in North Carolina also called for the release of people as a preventive measure against a worst-case outbreak of COVID-19 in prisons on March 27, reported cases on Rikers Island had ballooned, showing how quickly the virus can spread in close, unsanitary conditions.

On March 30, the first COVID-19 case was reported in the Butner federal prison complex, located 12 miles northeast of Durham. Today, Butner has the worst outbreak of COVID-19 in any federal prison in the country, providing a close-to-home lesson for how quickly the illness can spread in close confines.

Also on March 30, staff at Maury Correctional Institution reported testing positive for COVID-19.

On April 1, the first person in state custody tested positive for COVID-19 at a state prison in Halifax County. Since the tests take a week to process, results of positive tests represent a lag from the presence of cases.

On April 5, Rikers reported the first death of a person in custody, with deaths in custody beginning to be reported around the country. North Carolina is about a week behind the curve on reported cases and seeing consequences of infection.

On Wednesday, an Associated Press reporter asked Gov. Cooper for comment on the lawsuit filed by the ACLU and others seeking the immediate release of people from prison.

“People who are in our correctional institutes are one of the congregate living groups that we are concerned about just like people in long-term care and skilled nursing homes,” Cooper said.

“People who are in a confined facility, we have deep concern about spread of the virus. We have concern about the people who are there, we have concern about staff, and we want to do what we can to protect them.”

Cooper then described the precautionary measures taken by the prisons to limit the spread of the disease and incentivize staff to work.