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Lawsuits over coronavirus conditions in jail show fleeting nature of change

Christmas was days away, omicron cases of coronavirus were surging and the attorneys who had been fighting to protect people in jail were running out of options.

After a nearly two year court fight, Civil Rights Corps lawyers had reached a settlement agreement with officials in Prince George’s County, Md., to help those incarcerated at the jail there. The settlement imposed mandatory testing, isolation and vaccine protocols at a facility where people had complained of conditions so bad they said they didn’t even have enough soap.

But the third-party inspector and other measures designed to make the jail safer was about to go away — as the coronavirus was spreading as never before.

The best the attorneys could do, they decided, was to write a firm letter.

“While the enforcement period for the Settlement Agreement in this case ends today,” the attorneys wrote to county leaders in December 2021, “there is no end in sight to the COVID-19 pandemic.”

An ‘insane’ coronavirus lockdown two miles from the Capitol, with no end in sight

At the same time, several people detained at the D.C. jail were fighting their own lawsuit with similar accusations.

The legal battles over coronavirus protections in the neighboring jurisdictions, experts say, helped expose grim realities about the jails here and nationwide. Jails are not equipped to provide specialty or ongoing care, leaving the people in them vulnerable to the spread of infectious diseases. As a result, generations of detainees in the facilities have suffered from outbreaks of valley fever, MRSA, HIV — and now the coronavirus, with a looming new threat of monkeypox.

Because many jurisdictions have limited local independent oversight of their jails, incarcerated people often turn to lawsuits for relief from dangerous conditions. But the two-year litigation over coronavirus in the D.C. and Prince George’s jails — as well as a federal law that makes it harder for incarcerated people to file lawsuits — shows just how fleeting the direct impact of lawsuits can be, lawyers say, even when the allegations are a matter of life and death.

“This to me is a perfect example of why lawsuits can call attention to very pressing problems, but they are limited,” said Ellora Israni, the Civil Rights Corps attorney who helped lead the litigation in Prince George’s. “Lawsuits are not going to solve these problems in and of themselves.”

A 48-year-old said he had not received a bar of soap in two weeks. A 24-year-old said he wanted to wear a mask but couldn’t get one. A 46-year-old said medical staffers refused to meet with a sick detainee on his unit.

It was March 2020, and while much of the outside world was stocking up on dry goods and bottles of hand sanitizer, the people held in the D.C. jail struggled to protect themselves from what doctors were calling the novel coronavirus.

The D.C. Department of Corrections, attorneys alleged in court filings, was failing to provide basic sanitary equipment and medical care as people were falling ill behind bars. They filed grievance report after grievance report, trying to get the attention of leadership. When that failed, they sued.

In the earliest weeks of the pandemic, when the coronavirus was spreading far faster in the jail than in the rest of the city, the D.C. Public Defender Service and the American Civil Liberties Union of D.C. argued that the city had shown “ongoing failure to take reasonable precautions to prevent the spread and severity of a COVID-19 outbreak.”

“We knew we had to take action quickly,” said Scott Michelman, the legal director of the ACLU of D.C. “It was our view that days or hours were a matter of life or death.”

Two weeks later, a 51-year-old detainee named Deon M. Crowell died of covid-19.

The lawsuit, the attorneys hoped, would shine light on jail conditions, compel the court to order improvements and then, critically, help to ensure change.

For a time, Michelman said, that lawsuit worked. Court-appointed inspectors published a report that found detainees who were isolated with coronavirus infections were denied showers, spent days in soiled clothes and could not contact family members for up to weeks at a time. A federal judge granted a motion temporarily requiring jail officials to address those deficiencies.

In June 2020 — after inspectors returned and found shortcomings, including that the jail was still delaying care for those who were ill — the judge issued a preliminary injunction to reinforce and extend the guidelines in her first order.

Although the facility was never in complete compliance with the court’s order, attorneys for those detained said, by September 2020 the jail had “invested additional resources” in responding to detainees’ requests for medical help. They had also distributed tablet computers with educational programs about how to avoid catching the virus, according to an inspector report.

“I think it’s clear the order had a significant effect of changing the practices of the Department of Corrections,” Michelman said. “I really believed that saved lives.”

The jail’s population had also decreased since the onset of the pandemic, largely as a result of a drop in the number of people being charged and defense attorneys arguing in individual cases for pretrial release and sentence reductions for people deemed not dangerous.

But in July 2021, as the delta variant of the coronavirus was devastating the region, that progress began to unravel.

The city had used a federal law called the Prison Litigation Reform Act to argue that the preliminary injunction had long expired. The 1996 law requires incarcerated people to exhaust a facility’s entire grievance procedure before taking officials to court, and it causes preliminary injunctions to end automatically after 90 days.

The D.C. Court of Appeals agreed with the city, ending the injunction that had been in place for more than a year as detainees’ most powerful vehicle for effecting change.

The decision meant that in December 2021, when the first case of omicron was detected in the region and the threat of outbreaks in the jail once again escalated, no active court oversight was in place.

D.C. Council member Trayon White Sr. (D -Ward 8) said the deluge of phone calls he received complaining about coronavirus conditions at the D.C. jail that month took him back to the beginning of the pandemic.

A spokesperson for the D.C. Department of Corrections said in a statement that “DOC has made significant progress in our efforts to prevent the spread of COVID-19 among our residents and facilities,” and cited the department’s work with other District agencies to put in place practices including “rigorous medical evaluations of DOC residents” and “increased frequency of cleaning and sanitizing the facilities.”

By late December 2021, the city reported that 82 detainees and 62 employees at the jail had tested positive for the coronavirus, accounting for about a fifth of the facility’s total reported case count since the onset of the pandemic. The facility reverted to near lockdown.

‘The pandemic is far from over’

Next door in Prince George’s, advocates worried that omicron was spreading through the jail at an equally alarming rate.

But unlike in the District, where the ACLU and public defenders were just beginning their settlement negotiations, Civil Rights Corps attorneys in Prince George’s had already reached a resolution with the county — which came more than a year after a federal judge had blasted officials there for acting with “reckless disregard” of the outbreak.

As part of the settlement, infectious-disease specialist Carlos Franco-Paredes had access to the detention center from September to December 2021 for four independent, unannounced inspections.

Franco-Paredes found during those visits that the jail had made certain court-ordered changes, which he documented in reports obtained by The Washington Post. Officials, he wrote, had acquired more clean masks and sanitizing supplies. The jail also had improved its testing protocol after plaintiffs and the court criticized officials for under-testing people, then claiming low case counts.

But other deficiencies, he said, persisted.

Franco-Paredes said that medical staffers were consistently taking detainees’ temperatures on their arms or necks with a device that yields accurate results only when used on foreheads. Some detainees were waiting weeks for the medical staff to acknowledge requests for help, his reports said, and alleged they were often ignored altogether. Detainees sick with covid-19 in medical isolation told Franco-Paredes they had to yell and bang on their cell doors for attention. Even then, the doctor wrote, they were offered only Tylenol.

In his final walk-through in early December, shortly before the terms of the settlement were scheduled to expire, many of the same problems remained, he said. And vaccination rates were still concerningly low — despite what the doctor had reported as a good-faith rollout effort by the jail — because many detainees distrusted the jail’s medical staff.

“As evinced by the recent surge of COVID-19 cases in the surrounding community and the rise of the omicron variant,” Franco-Paredes wrote, “the pandemic is far from over.”

The terms of the settlement had allowed for a 60-day extension of the oversight, but a judge did not issue one — a decision made with no public ruling or explanation because settlement mediation is not documented in the court docket.

On Dec. 23, the day the enforcement period expired, the Civil Rights Corps team sent its letter to county officials.

“Prince George’s County itself has taken drastic steps to ensure the health and safety of its non-incarcerated residents,” the letter said. “Plaintiffs hope that the Department will take the same care with regard to incarcerated residents.”

The county never responded.

In a statement to The Post, the county acknowledged receipt of the letter but said officials did not respond because they were no longer legally obligated to do so. A spokesperson for the Department of Corrections described as “without merit” the allegations in the letter as well as the claims in Franco-Paredes’s reports about delayed response to sick calls and detainee distrust of the jail’s medical staff.

“All of the COVID-19 procedures and safety protocols remain in effect,” the county’s statement said.

Over the holidays, rumors began to circulate of another coronavirus outbreak.

Civil Rights Corps attorneys and community advocates were flooded with desperate pleas from incarcerated people and their family members. A group of 37 detainees at the jail wrote a signed letter to advocates and a Post reporter describing conditions inside and saying their concerns went unaddressed. Staffers were becoming sick and calling out, the letter said, forcing detainees into a two-day lockdown.

“Do we have to become ‘positive’ to get the proper treatment in here?” they wrote. “Or does someone have to ‘die’ before the jail takes this seriously?”

In December 2021 alone, according to the jail, at least 122 incarcerated people and 87 jail staffers tested positive for coronavirus — nearly the same number of confirmed cases as the prior 22 months combined.

By the end of January, the total covid case count for that month among detainees and staffers had reached 221.

‘Very temporary changes’

By the arrival of fall, a season when coronavirus case numbers have spiked and when experts predict new variants of the virus will continue to spread, the court-ordered independent inspections in D.C. will be long gone. In Prince George’s, there have been no lawsuit-related independent inspections this year.

Officials say they have implemented robust systems to protect people at the jails. But Franco-Paredes, who also conducted the D.C. jail lawsuit inspections, is worried.

“My impression is that these are very temporary changes,” he said, discussing his decades of work in detention facilities. “Once we aren’t watching, I don’t think there is any clear effort to make these systemic, long-term changes.”

Advocates and public defenders in both jurisdictions say lawmakers must do more to create permanent, independent oversight of the jails.

In D.C., there was some movement to create more permanent oversight of jail conditions after the U.S. Marshals Service conducted an unannounced inspection last year that found unsanitary living conditions and the punitive denial of food and water to those detained among other problems. Accusing the facility of “systemic failures,” the service transferred hundreds of detainees facing federal charges to a penitentiary in Pennsylvania. After that report, litigators and advocates pushed the D.C. Council to introduce legislation creating a new body to oversee the jail.

In Prince George’s, advocates and lawmakers say that there has been far less formal movement on establishing a local independent oversight body and that the jail is monitored by only a few outside community organizations, including Life After Release and its subsidiary, Court Watch PG.

In the future, advocates and people in jail say, their only recourse would be new lawsuits with new plaintiffs and new allegations. They’d have to start over.

“The problems in the jail don’t begin and end with covid,” said Israni, the attorney who helped litigate the Prince George’s case. “They don’t begin and end with this lawsuit.”

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