High Court Stays Out of Order to Move Virus-Vulnerable Inmates at Ohio Prison

WASHINGTON (CN) — The Supreme Court declined Tuesday to disturb an order compelling the Bureau of Prisons to transfer vulnerable inmates from an Ohio prison where nine people have died from Covid-19.  

The Trump administration asked the Supreme Court earlier this month to stay a federal judge’s April injunction requiring the Elkton Federal Correctional Institution to identify inmates at high risk of contracting and developing complications from the disease who would be eligible for transfer from the facility through compassionate release, parole or home confinement.

Under the order, those at high risk of Covid-19 whom the Bureau of Prisons deems ineligible for that relief must be sent to another prison that has put in place greater controls to stop the spread of the coronavirus. High-risk inmates cannot return to the prison "until the threat of the virus is abated or until a vaccine is available."   

The order covers more than 800 inmates at the facility. 

After releasing an order list this morning with no new grants of certiorari, the Supreme Court issued a brief order this afternoon that denies the bureau’s stay. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the request to block the injunction. 

Of the nearly 137,000 inmates in federal custody, 64 inmates have died from Covid-19, nine at Elkton. According to the Bureau of Prisons, 1,577 inmates have an active, confirmed case, including 203 inmates at Elkton. An additional 3,180 federal inmates have recovered from the disease across the country. 

As the pandemic has raged across the United States, a particular focus has turned to outbreaks in prisons, where social distancing and other measures used to combat the spread of the coronavirus are difficult or impossible. 

Four inmates at Elkton filed a class action claiming the conditions of their confinement violate the Eighth Amendment. The class includes "current and future" inmates at Elkton, as well as a subclass of people who are particularly vulnerable to Covid-19. The injunction covers the subclass, which the court defined as people who are 65 or older or have certain underlying health concerns. 

Defending the injunction, the inmates argue the dormitory housing at Elkton leaves them no meaningful ability to distance themselves from potentially infected fellow prisoners, some of whom might be asymptomatic. While the harm to the government is minimal, the inmates argue, the case is a matter of life and death for many of them. 

"The risk of harm to petitioners is substantial in probability, devastating in character and unavoidable by any course of action other than swift transfers," the inmates' brief states.

The inmates also argue the government is challenging not the injunction but an enforcement order the judge issued on May 19 after finding the government was not complying with the initial injunction.

David Cole, legal director at the American Civil Liberties Union, represents the plaintiffs. Cole called Tuesday for more courts to take similar action. 

"We must see more brave action from courts around the country to protect the lives of incarcerated people, staff who work at these facilities and the communities they return home to," Cole said in a statement. "History will judge us based on how swiftly and boldly we act." 

The enforcement order required the government to drop certain criteria it was using to foreclose home confinement, conduct a review of Elkton inmates, and explain why some were denied home confinement or release to another facility. The administration has not appealed the enforcement order. 

The order from the Supreme Court allows the government to seek review of the May 19 order in the future. 

In asking to stay the Elkton injunction, the administration says the prison has tried to track with federal guidelines in combating the spread of the virus.

The prison has issued face masks and other personal protective equipment to inmates, while also taking steps to limit person-to-person contact in the facility by staggering mealtimes and requiring inmates to pick up their meals and eat in their units. Inmates who show symptoms of Covid-19 are isolated for two weeks, according to the brief. 

"The government acknowledges that Covid-19 poses significant health risks," the administration's brief states. "But BOP has mitigated the risk of serious injuries at Elkton by its numerous and increasing responses." 

The Bureau of Prisons declined to comment on the pending litigation.

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