State courts are handling a limited number of cases and the prison grievance process takes more than 90 days leaving inmates with no alternatives to seek temporary release to escape COVID-19, according to attorneys representing six medically fragile inmates told a federal judge Monday.
But attorneys representing Gov. Ned Lamont and state Department of Correction Commissioner Rollin Cook in the federal class action contend that the inmates have not exhausted all their avenues for release in state courts making their arguments for federal relief invalid.
Both sides argued their case before U.S. District Judge Janet Bond Arterton Monday as the DOC announced that two more inmates died of COVID-19 Monday, bringing the total number of inmate deaths from the disease to five.
“The clock is ticking in every possible way,” said Attorney Elana Bilder with the American Civil Liberties Union Foundation of Connecticut who is representing the plaintiffs.
The lawsuit is pushing for the federal court to step in to allow medically fragile inmates to be temporarily relocated to other settings including halfway houses. It’s also calling for better sanitation of the prisons, better medical care for inmates and the release of enough people so that those who remain can properly social distance to avoid getting the disease which has killed more than 2,556 state residents.
The issue has been hotly debated with advocates seeking the release of more people as the public health crisis has intensified. Two of the six plaintiffs are men with HIV who have sought relief through the prison grievance process, Bilder said.
One man, who goes by the pseudonym “John Doe” in court documents filed a grievance but has not heard back from prison officials. The grievance process can take more than 90 days, Bilder said. The other man, who goes by the pseudonym “John Roe” in documents has since tested positive for COVID-19 and is being held at Northern Correctional Institution with more than 100 other male inmates who have also tested positive.
He asked to file a grievance while there and was told “we don’t do that here,” Bilder said. “A grievance takes 75 to 105 days to fully exhaust,” Bilder said. “The remedy under COVID-19 is not available.”
Lamont and Cook who are represented by attorneys from the Office of Attorney General William Tong are seeking a dismissal of the federal lawsuit. A state court judge dismissed a similar lawsuit filed by the CT ACLU on April 24.
Assistant Attorney General Terrence O’Neill, representing Lamont and Cook told Arterton that inmates still have the ability to file for a bond review, a sentence reduction or a habeas writ challenging the conditions of their imprisonment, since courts are still open on a limited basis.
O’Neill argued that since all state remedies have not been exhausted, the federal court should not continue the lawsuit.
Inmates can also file a grievance with the DOC, which is heard and considered outside of the court process, he said. Judicial Branch functions have been curtailed since mid-March with courts only hearing top priority cases such as criminal arraignments and emergency requests for restraining orders. But O’Neill said courts are open and two men who were seeking release through a state court judge were able to obtain a hearing.
“Under what conditions do we do this?” O’Neill said. “Do the petitioners really want people let out the door with a paper that says what to do to avoid contracting COVID-19?”
O’Neill argued that out of 450 inmates who have tested positive, only 116 remain at Northern while 314 have recovered and been returned to their original prisons. According to the DOC, 350 staff members have also tested positive with 154 returning to work.
“The remedy is not to order the release of inmates, it’s to shorten the grievance process,” O’Neill said.
But as Bilder pointed out the DOC just announced the deaths of two more inmates, one who was serving a 42-year sentence for murder and the other serving a 12-year sentence for burglary, she said that exhausting all relief was too time consuming in the face of the pandemic.
“It’s clear the system was not set, which is true for many things, for COVID-19,” Bilder said.
Arterton will have to rule on the state’s motion to dismiss before the lawsuit can move forward.