Advocates, family members plead with Gov. Cooper to to take action “before it’s too late”
[Editor’s note: This is the second of a three-part series examining the threat  posed by the COVID-19 pandemic to jails, prisons and other detention facilities. The reports will highlight stories about incarcerated individuals, staff members who are charged with caring for them and the Cooper administration’s response to calls for change before a potential outbreak.]A bout seven years ago, a Buncombe County man stole a piece of metal from a dumpster and then sold it at a scrap yard. He needed money, because as a chronic substance user he had relapsed after his wife miscarried their child.
The man was charged with larceny and selling property under false pretenses, but because he had previous drug charges — set aside when he graduated a court-ordered substance use program — prosecutors resurrected those charges as part of his sentencing. Now he is finishing a six-year sentence in state prison and considered by the justice system to be a habitual offender.
(Policy Watch is withholding the names of the couple at their request because they are afraid the man will be retaliated against in prison.)
He is supposed to be released in November, but his wife is scared he’ll die in prison of COVID-19 before that happens.
“Some of the inmates, I believe, are a little bit nervous, and it scares me,” she said in a phone interview, her voice cracking. “It scares me. … I just told [my husband] don’t panic. Sit tight. Don’t retaliate. Just stay away from people; you’re close to coming home. You are going to come home. And I tell him this, but then I’m scared that he might not come home, you know?”https://s39248.p1438.sites.pressdns.com/wp-content/uploads/2020/04/MB-Series-Audio.mp3 
Gov. Roy Cooper has broad power to commute the sentences of thousands of incarcerated people, but three weeks into the COVID-19 pandemic and three days after the first positive diagnosis in a state prison, he’s taken no such action.
“Inaction is action,” said Daryl Atkinson, co-director at Forward Justice, a law, policy, and strategy center dedicated to advancing racial, social and economic justice. “You’re saying these folks are fit to die; that’s what you’re saying by your inaction, and that’s what the governor is going to have on his hands if he doesn’t take action.”
Atkinson is one of numerous advocates in the state who, along with several public health experts, have pleaded with Cooper and other criminal justice officials, including the Department of Public Safety to release vulnerable people from prisons and jails: those 60 years or older, those who are not a threat to public safety and nonviolent offenders who are scheduled to be released within five years. They’ve also asked officials to reduce the number of new inmates and to protect the health of those currently incarcerated.
“You’re saying these folks are fit to die” — Daryl Atkinson, co-director at Forward Justice
Because of crowded living conditions, jails and prisons are de facto petri dishes, ripe for communicable diseases to incubate and spread. At the state prison where the Buncombe County man is serving his sentence, the guards wear masks but the inmates have no protection, the man’s wife said. She described his situation as a dormitory-style room where inmates sleep in bunk beds. Several inmates have already been quarantined.
“Our reality is, we’ve got to help these people,” the woman said, sounding exasperated. “You cannot just leave them. What’s going to happen? You’ve got so many people, and you can’t just leave them in there to die like animals, and that’s how they will die. There will not be anybody in there to comfort any of those men or women for that matter.”
‘Pathway for transmission’
Leah Pope, a senior researcher at the Vera Institute for Justice, described several factors that make inmates especially vulnerable to COVID-19. For example, incarcerated people often have higher rates of underlying medical conditions and infectious diseases, which puts them in the high-risk category. Overcrowded conditions and the constant flow of people in and out of the facilities invite the spread of disease.
“The conditions of confinement create really the ideal environment for the admission of contagious diseases,” Pope said. “These places are not equipped to deal with a rapidly spreading [virus].”
Jails are generally run by counties or sheriffs’ offices. Most incarcerated people there are awaiting trial and have been accused, but not convicted of a crime. Their stays are short. Prisons are owned and operated by the state or federal government — or in some cases, private companies — and most residents have been convicted of felony charges. The people there are serving longer sentences, and the populations are more stable.
But guards and other prison staff could contract COVID-19 in their communities and bring it into the prisons — or contract it there and infect their families, friends or neighbors. And hundreds of people enter or leave jails every week, increasing the risk of an infected person passing through.
“There’s so much churn in the jail system in terms of people coming in and out,” Pope said. “We’ve really created a pathway for transmission.”
Lauren Brinkley-Rubinstein, an assistant professor of social medicine at UNC Chapel Hill, expressed similar concerns. The poor health outcomes among inmates is already high, she said. While jails and prisons provide medical care, she said, the facilities “can be really under-resourced and there are also sort of policy barriers,” like co-pays for medical visits.
The New York Times and the Marshall Project released a story this week examining county jail incarceration trends reported by the Vera Institute. They found that 200,000 people flow in and out of county jails every week across the nation.
“We’ve really created a pathway for transmission.” — Lauren Brinkley-Rubinstein, an assistant professor of social medicine at UNC Chapel Hill
Pope highlighted Mecklenburg County as an example. She said that in 2017, when the most recent data is available, 410 people entered the jail and 510 people left it during an average week.
“That’s exactly what we’re trying to stop when we’re talking about social distancing,” she said. “What worries me on the flip side of that, we certainly don’t want a scenario where they’re not releasing people from jail.”
She added that a good way to prevent influx of people into the jails is for law enforcement officers to use citations more often, as opposed to taking people into custody.
There is no state entity tracking reported cases of COVID-19 in the county jails, so it’s unclear how many people have contracted it in those facilities. Eddie Caldwell, executive vice president and general counsel of the North Carolina Sheriffs’ Association, said earlier this week that each of the state’s 100 counties has its own information.
In Mecklenburg County, at Detention Center Central there are 1,439 inmates. The number of people released varies, but averages between 30 to 80 each day and night shift, said Dejah Gilliam, a public information manager for the Mecklenburg County Sheriff’s Office.
Gilliam outlined several precautions correctional officials are taking to prevent the spread of the virus, including screening every person who enters a facility. Nurses are always onsite. Officers are wearing gloves when fingerprinting incoming arrestees; the gloves are changed each time it’s done.
Detention Center Central, she said, is equipped with an infirmary with negative pressure rooms for symptomatic people, and an unused housing unit that is available should they need to isolate people.
In addition, their contracted healthcare services provider has visited every housing unit in each facility and conducted information sessions about COVID-19. Incarcerated individuals had the opportunity to ask questions of healthcare professionals and educational literature was left for everyone.
Gilliam outlined protocols for officers and arrestees who have a fever of 100.4 or greater. If an officer has a fever who brings in an arrestee, they are to notify a supervisor and have someone report to finish the intake process. If an arrestee has the fever, a nurse will evaluate their symptoms, give them a mask and call a doctor to determine if they should stay or be denied based on the severity of their symptoms. A magistrate will ultimately make the decision, and if they stay, they go to the infirmary for housing.
Still, the office reported on April 2 its first incidence of COVID-19: a nurse contracted through Wellpath – which services residents at both Detention Center Central and the Juvenile Detention Center. She reported to work at the juvenile facility Sunday after having been on personal leave, but didn’t report feeling sick and passed the screening.
Soon after, she felt ill and was sent home to self-quarantine. Her only contact was with a second nurse, who has been quarantined out of caution, according to a news release.
The Sheriff’s Office reported that since the onset of the pandemic, Wellpath has isolated nine people with related symptoms and/or potential exposure to COVID-19. All were cases associated with new arrestees coming into Detention Center Central, and all were tested for the virus; of the seven test results returned to date, all have been negative.
No other staff or contractors have tested positive for COVID-19, and there are no confirmed cases of the virus in the detention population.
The Orange County Sheriff’s Office has also implemented several precautionary measures to protect incarcerated people from COVID-19. Alicia Stemper, director of public information, said it followed professional recommendations and installed multiple air scrubbers with HEPA filtration in the detention center. The scrubbers reduce particulate matter and airborne viruses and significantly improve air quality in the facility, she said.
“We canceled visitation,” she said. “Procedures are in place for emergency legal visits or other dire circumstances such as an inmate needing to receive notification of the death of a loved one. These meetings will be conducted using digital devices while the inmate is in a private isolated room. No face-to-face contact will occur.”
All incoming detainees to the Orange County Detention Center will initially stay in one of two new negative pressure rooms in the facility, where their temperatures will be monitored for three days. If a person has no fever and remains symptom-free, only then will he or she transfer into the general population, Stemper said.
Their contracted medical provider also uses a coronavirus screening form on any feverish person admitted for a felony and who can’t be released.
There were no reports yet of COVID-19 in the facility, she said.
Spread in NC prisons and jails well underway, but response is muddled
Cases of COVID-19 are beginning to spread throughout the federal prison system. The first COVID-19 case was reported March 21, and by April 2, there were 75 positive cases nationwide among incarcerated individuals and 39 positive cases among staff.
In North Carolina, the first COVID-19 case at a federal prison was reported March 27 in Butner and involved a staff member. Less than a week later, 10 inmates tested positive for the virus at the same facility.
The Bureau of Prisons responded this week by announcing that it would quarantine all incarcerated people in their cells for 14 days. U.S. Attorney General William Barr has also directed bureau officials to identify “at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement.”
Advocates have criticized both decisions: the first for being inhumane and against the advice of public health experts, and the latter for potentially excluding many incarcerated people from consideration for early release. Barr’s directive could also be discriminatory, excluding people of color because of the methodology that would be used to narrow the list of eligible inmates.
Still, the latter is a clearer, more actionable plan than the one DPS has announced. The agency reported its first COVID-19 case Tuesday; a staff member at Maury Correctional Institution in Hookerton self-reported testing positive for the virus after being exposed to it by a family member.
A statement from DPS says that the employee, while asymptomatic, is believed to have had only very limited, brief interactions with inmates.
The employee has been off the job since Sunday, when the COVID-19 test was taken and sent to a lab for processing. The Division of Prisons is following Centers for Disease Control and Prevention and state health department guidelines in conducting contact tracing and notification procedures, as well as isolation and cleaning protocols.
The day after that announcement, DPS confirmed its first incarcerated person who tested positive for COVID-19 at a different facility. A man in his 60’s contracted the virus at the minimum custody unit of the Caledonia Correctional Complex in Tillery.
“We have prepared long and hard for this day,” said Todd Ishee, Commissioner of Prisons. “This is not a surprise and we are following the infectious disease protocols we have in place for exactly this type of situation. Our top priority is the health and safety of our staff and the men and women in our care.”
The incarcerated man is in isolation at the prison and is being treated by licensed medical staff assigned to the facility, according to a news release. He began displaying symptoms March 24 and received the positive test result April 1. He is in stable condition, Ishee said.
“Pursuant to our protocols, precautions have been taken to prevent anyone else from becoming infected by the virus,” the release states. “Contact tracing is also underway to identify persons who may have had unprotected contact with the offender within six feet over a span of 10 minutes. Those individuals will be monitored and tested for COVID-19 as warranted, in accordance with CDC guidelines.”
The entire minimum-security unit has also been placed on quarantine, and the housing dorm where the incarcerated man was assigned has been locked down. Inmates are served meals in their dorm now, and all staff and incarcerated people have been issued masks.
DPS also decided Wednesday that all transfers from county jails would be quarantined for 14 days before being released into the general population.
By Thursday, it reported two more positive cases among residents at Neuse Correctional Institution in Goldsboro and some self-reported staff positives at other facilities. “We are soon going to reach a point where we cannot track everything for everyone,” said spokesman John Bull in an email.
The agency has announced it will review ways to reduce its prison population but has not said how or when that will happen.
We are soon going to reach a point where we cannot track everything for everyone.” — DPS spokesman John Bull
“There are multiple statutes involved with varying limited authorities,” Bull said. “The Department of Public Safety is considering what options, if any, are available for reducing the Prison population while maintaining public safety.”
Brinkley-Rubinstein said Thursday that she feels sympathy for officials at jails and prisons, because they want to do the right thing. She said she’s seen jail officials release people when possible and prison staff say that they want to do the same.
“It’s really pointed out to me that there is a lack of partnership between public health and medical systems to support the jails and prisons to do the right thing,” Brinkley-Rubenstein of UNC said.
She said that facilities have very limited access to COVID-19 testing, and the ones with access have to wait as long as a week to get test results back.
“The risk of contagion is so high, and so if you’re not able to know pretty immediately if someone has it, then your need to stop transmission is really low,” she said. “If you don’t have access to testing that rapidly provide results, then it leaves other tools on the table that might have other long-term harm.”
In the absence of routine, rapid testing, quarantining could work if done correctly, so it’s not necessarily the wrong response, Brinkley-Rubinstein said, but rather, the result of having limited options.
“Everyone’s kind of forgotten that prisons and jails should be incorporated into public health responses, then they’re sort of left to do it any way they can,” she added. “It might lead to mass solitary for anyone who is symptomatic in any way, and there’s been good research on the long-term harms of solitary both psychologically and also for physical health.”
Will the Cooper administration act?
The rate of infection in some detention facilities is very high. At Rikers Island in New York, the rate of infection last week was five times that of New York City, which has become the COVID-19 epicenter of the world. This week, the rate of infection is nine times that of New York City, Brinkley-Rubinstein said.
“If I ran a prison, I would be like screaming in the streets to get rapid testing in my facilities,” she said. “This is the Number One place to have these tests. There’s just a limited number of ways to stop the spread.”
In Massachusetts, she pointed out, the medical community has partnered with jails and prisons to get them 10 rapid tests per day with a four-hour turnaround to improve the response to spread. It only happened because jail and prison employees were demanding help, she said.
In North Carolina, advocates also have been demanding that the Cooper administration release people before it’s too late. Even Brinkley-Rubinstein signed on to the letter to Cooper from medical officials  asking him to drastically reduce incarcerated populations.
“If I ran a prison, I would be like screaming in the streets to get rapid testing in my facilities.”— Lauren Brinkley-Rubinstein
“Concern over the people detained in our jails and prisons should be sufficient to spur you to action, but they are not nearly the only people who stand to suffer if conditions are not changed,” the letter states. “It is inconceivable that an outbreak in a prison stays confined to that facility. … Facilities combine the worst aspects of cruise ships and nursing homes when dealing with COVID-19 …”
“Unless you immediately address this threat, you are leaving North Carolinians vulnerable to a massive outbreak of COVID-19,” the letter goes on. “But it is within your power to immediately release people from jails and prisons and thus work to mitigate the spread of this disease.”
Cooper’s power to commute incarcerated peoples’ sentences is quite broad, according to Jamie Lau, an associate clinical professor of law at Duke Law School, and James Markham, a distinguished professor of public policy at the UNC School of Government.
“The Governor has a lot of power when it comes to clemency,” Markam said. “For example, he could permanently reduce a person’s sentence through a commutation, or he could issue a conditional pardon, releasing a person on certain restrictions. He is also empowered by the North Carolina Constitution to issue reprieves .”
au pointed out a state statute attempts to constrain the governor’s power over commuting sentences. It requires notice to the victim and a reasonably calculated time for the victim to provide a written response. But he said that statute could run afoul of the constitution and the separation of powers.
“The Constitution explicitly says what power the General Assembly has with respect to clemency, which is only to prescribe requirements for a pardon application. Thus, any limits, including a notice requirement prior to a commutation is likely unconstitutional. I should be clear. I am not saying notice is necessarily a bad thing, but my assessment is that the General Assembly cannot require the governor’s office to give notice of this type.”
Lau said Cooper can commute sentences for a group of incarcerated people or for individual sentences. For example, he could potentially issue a commutation to all individuals meeting a certain criterion and then order the DPS to identify those individuals and release them.
Cooper also has authority to set conditions on those granted commutations, so he could set conditions and require supervised release by a parole officer.
“[Cooper] may try to hide behind the statute but that would be political in my mind, as most executive branch leaders would not concede a constitutionally vested power in this manner unless they welcome the political cover afforded by the statute.”
Cooper’s office has acknowledged safety concerns facing incarcerated people and the staff caring for them, but has refused to say whether he will consider shortening sentences or implementing a statewide order to respond to the concerns.
Atkinson pointed to the case of the Buncombe County man who is in the last months of his sentence.
“I think [his] story highlights some things that we’re demanding of the Governor that’s squarely within his power,” he said. “He can commute the sentences of people who are within 12 months of release. … why not facilitate the early release to make sure they’re safe?”
There’s been some pushback among prosecutors to advocates’ requests that “habitual offenders” be released during the pandemic. Atkinson said the Buncombe County man’s story refutes the assumption that those individuals would be a “grave threat” to the public.
While they aren’t trying to “create a dichotomy; good versus bad, undeserving versus deserving of thinking about their health and safety,” Atkinson said it’s important to eliminate stereotypes about people who are convicted of felonies.
“Eventually, one way or the other, the virus knows no boundaries, it will get inside of institutions and spread. So, ultimately, the governor has a choice to make. Does he want to make choices that are in favor of health and in public safety, or does he want to make choices that result in people’s deaths? It’s one or the other.”