In a sweeping emergency order, Kollar-Kotelly demanded that District officials improve more than a dozen medical and safety measures to protect inmates and workers, citing a climbing rate of infection that has put 60 percent of inmates under quarantine and knocked one-quarter of D.C. Department of Corrections workers out of action in the five weeks since emergency declarations were ordered.
“The risks of contracting COVID-19 are very real for those both inside and outside DOC facilities,” Kollar-Kotelly wrote in a 31-page opinion, referencing the disease caused by the novel coronavirus. “However, Plaintiffs have produced evidence that inadequate precautionary measures at DOC facilities have increased their risk of contracting COVID-19 and facing serious health consequences, including death.
“Given the gravity of Plaintiffs’ asserted injury, as well as the permanence of death, the Court finds that Plaintiffs have satisfied the requirement of facing irreparable harm unless injunctive relief is granted.”
As of Sunday, the confirmed infection rate per capita for inmates behind bars at D.C. jail facilities was 15 times that for the city’s population as a whole. The infection rate for corrections employees was six times that for the population as a whole.
The District reported 90 inmates had tested positive for the virus and that 880 were in isolation or quarantined with symptoms or because of suspected exposure. Among corrections personnel, 26 had tested positive and 152 were not working because they tested positive or were in quarantine. One prisoner and one worker have died of the virus, and a 59-year-old prisoner who tested positive was hospitalized.
As of Thursday, 281 out of 949 (30 percent) funded department positions were unavailable for duty, a factor court-ordered inspectors singled out as rendering D.C. jail facilities unsafe despite written government procedures in place.
“Understaffing during a crisis situation such as the COVID-19 pandemic makes it difficult to enact and enforce the necessary precautionary measures,” Kollar-Kotelly wrote. “Having a written policy in place but not fully implemented cannot protect Defendants from a finding of deliberate indifference.”
Kollar-Kotelly mandated immediate improvements in screening, tracking and delivering prompt medical care for those showing symptoms; keeping inmates and staff six feet apart per Centers for Disease Control and Prevention guidelines; restoring and maintaining prisoners’ right of access to confidential legal calls while jail visitors are banned; and halting “punitive conditions of isolation” that she wrote make it more likely that inmates hide symptoms and infect others.
In an interview, ACLU of D.C. legal director Scott Michelman said: “We’re very pleased that the judge has recognized the urgency of the situation and the grave deficiencies of the D.C. jail. . . . The judge rightly found that the expert report corroborates what jail staff and detainees have been saying over the last few weeks.”
J. Michael Hannon, attorney for the union that represents D.C. corrections officers, case managers and nonmanagement workers — which has filed its own lawsuit against the agency in D.C. Superior Court and a friend of the court brief in the prisoners’ case — added, “We have no reason to rejoice, because DOC has persistently lied to us.”
Hannon continued: “We support the inmates, because the jail leaders have engaged in conscious disregard for our safety too. And if jail officials do not work with and listen to us now, their efforts to comply with Judge Kollar-Kotelly’s order will fail, just like their empty promises of the past.”
The office of D.C. Attorney General Karl A. Racine did not immediately respond to a request for comment.
The legal action comes as prisoner advocates nationwide have pressed local, state and federal jails and prisons to release prisoners deemed at low risk of flight or public dangerousness but at higher vulnerability of dying of the coronavirus because of age or underlying medical conditions.
Advocates call prisons “tinderboxes” for viral spread in communities — combining the risks of cruise ships and nursing homes by confining large populations of sicker and older occupants together, magnified by poor medical and sanitary conditions and high turnover or “churn” into the general public by the release of detainees charged with or sentenced of lower-level crimes, as well as the daily coming and going of big worker populations.
Kollar-Kotelly’s ruling relied on findings of inspectors Grace M. Lopes and Mark Jordan from three days of unannounced visits April 10-12.
Inspectors found the D.C. jail system is housing 22 percent fewer inmates than a month ago but is making “no effort to enforce” stated social distancing rules or other procedures because it has too few workers and supervisors, with one guard monitoring up to 45 prisoners.
Many inmates are using “tattered and soiled” rags made from tearing towels or T-shirts to try to clean cells and communal areas; workers and staff members are living in “fear” and uninformed about when, how and why to wear protective masks or gloves and how to use cleaning chemicals.
Inmates who test positive for the virus are placed in isolation units and not permitted to shower, clean their cells, contact family or attorneys or change soiled clothes, linens or masks for the duration of the illness, inspectors said.
Kollar-Kotelly called it “critical” for jail facilities to strengthen environmental health and safety conditions by hiring a registered sanitarian, overseeing new training for inmates and workers on use of cleaning tools and protective gear, and supporting security staff members’ enforcement of social distancing “on a unit-by-unit basis.”