The Corrigan Radgowski Correctional Center in Montville (ct.gov)

Citing “extraordinary circumstances” brought about by the coronavirus pandemic, a U.S. District Court judge sided with state inmates seeking immediate protection from COVID-19 by agreeing to allow their class-action lawsuit to proceed.

Wednesday, Judge Janet Bond Arterton denied a motion to dismiss the lawsuit that was filed by attorneys for Gov. Ned Lamont and Department of Correction Commissioner Rollin Cook.

“Time is a luxury that incarcerated people do not have during this pandemic, as the DOC’s response to COVID-19 has placed people in prisons and jails in grave, imminent danger,” said Elana Bildner, an attorney with the American Civil Liberties Union who is working on the case. “We are grateful that the federal court has swiftly rejected the state of Connecticut’s procedural shell game and will allow people who are incarcerated to have their day in court.”

The Office of Attorney General William Tong, which is representing the state, and the governor’s office both declined comment.

Deputy Attorney General Terrence O’Neill, arguing Monday on behalf of Lamont and Cook, said that the plaintiffs, six medically fragile inmates, had not exhausted their remedies in state court before seeking federal intervention.

But Arterton agreed with Bildner, that due to the pandemic, state courts have reduced operations to the point that it would be impossible for potentially thousands of inmates to seek court intervention. Although the lawsuit was filed by six inmates, the CT ACLU is considering it a class action representing all of the nearly 11,000 inmates who are being held on bond while their cases are pending or who have been sentenced.

Arterton also pointed out in her ruling that the inmates were not challenging their sentences but rather the conditions at the prisons during the pandemic.

“The plaintiffs are challenging the current health conditions of their confinement, which they claim have become unconstitutional because of the COVID-19 pandemic risk,” she said. “They are not attacking their underlying sentences.”

The lawsuit asks the federal court to step in to allow medically fragile inmates to be temporarily relocated to halfway houses and other settings, and to require 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 2,718 state residents, including six inmates.

As of Wednesday, 478 inmates and 358 DOC staff have tested positive for COVID-19, Arterton said in her ruling. DOC officials said that 336 inmates and 157 staff have recovered from the disease. Another 100 inmates are being held in isolation at Northern Correctional Institution after testing positive.

DOC officials announced Wednesday that the prison population had dropped by 1,609 people since March 1 in part due to discretionary releases and other measures implemented by the agency as the pandemic spread in Connecticut.

“The population drop produced a considerable reduction in the number of offenders housed in dormitory style facilities,” DOC officials said in a press release. “The Carl Robinson Correctional Institution witnessed a 36 percent reduction and Willard-Cybulski Correctional Institution has seen a 33 percent reduction. In addition, the Radgowski portion of the Corrigan-Radgowski Correctional Center benefited by a 16 percent reduction.”

Cook said in the release that he had instructed staff to review all eligible inmates for release “without circumventing risk assessments” before any inmates or staff tested positive for COVID-19. He had also asked that inmates who were at the highest risk for complications or death from the disease be prioritized for release.

“Balancing public safety, victim impact and public health considerations, while identifying housing and community supportive services during a pandemic is no easy task,” Cook said. “The job they have done to release eligible offenders has exceeded even my expectations.”

But the initiative hasn’t done enough fast enough for inmates or their families who contend that conditions are too crowded to use social distancing to prevent the spread of the disease. One of the plaintiffs, a man over 50 with HIV, has tested positive for COVID-19 since the lawsuit was filed in late April, Bildner said.

A similar lawsuit filed in state court was dismissed on April 24. Arterton said in her ruling that the plaintiffs acknowledged that they hadn’t exhausted their state remedies. But she waived the exhaustion requirement, “in light of the extraordinary circumstances presented by the COVID-19 pandemic.”

Arterton will consider the plaintiffs’ motion for a temporary restraining order as the lawsuit moves forward.