BURGAW — The state tested all 626 inmates at the Pender Correctional Institution in response to a Wake County judge’s ruling that conditions in state prisons during the pandemic were likely unconstitutional, and a subsequent ruling that the state had failed to comply with the initial order to test all inmates.
The Pender inmates were tested on Wednesday as part of the state’s efforts to test its entire prison population, according to John Bull, spokesman for the adult corrections division of the N.C. Department of Public Safety. He said testing results will be posted on the DPS website by Monday or Thursday.
Bull was asked for a response to Wake County Superior Court Judge Vince Rozier’s ruling issued on Friday, July 10, which said the “state has failed to comply with the Court’s directions in several meaningful ways,” according to Jordan Wilkie of the Carolina Public Press, and the court was “extremely concerned by the apparent indifference with which Defendants have treated the Court’s orders.”
“We are reviewing the judge’s order and consulting with our attorneys about next steps. That is all we can say about the litigation at this point,” Bull said.
By Friday, Pender County had reported 19 positive cases at the prison (the DPS said there were 17 cases). According to DPS data, only 65 of the 626 inmates had been tested before all inmates were tested Wednesday.
Bull said the DPS Division of Prisons “does not know how many staff were tested through their testing provider of choice” at Pender Correctional, which employs 150 correctional officers.
But he said current data at DPS indicates that five staff members have tested positive, three of whom have returned to work after meeting federal criteria.
State’s reactions to spread of Covid-19 in its prisons
Bull pointed to the actions taken by the DPS, which oversees the state’s prisons, since mid-March when the pandemic began spreading quickly throughout the U.S. Key among them, he said, are that prisoners now have at least two face masks “and most have four,” prisons are cleaned with disinfectants, prisons have medical quarantine and treatment protocols in place, and all prisons have “enacted offender movement procedures designed to keep offenders from mixing with offenders from other housing units.”
According to Carolina Public Press, this last action represents a shifting narrative by the state, who at first argued it was following social distancing guidelines set by the U.S. Centers for Disease Control and Prevention.
“The state has since changed its characterization to the court, describing instead that it is ‘cohorting’ groups of people together as a preventative measure for limiting the spread of Covid-19,” according to reporting by CPP.
In North Carolina, the number of positive tests among inmates in its prison system jumped from three on April 2 to approximately 491 on April 24, according to data provided by the DPS.
From mid-March to April 30, the DPS implemented a number of measures to counteract the spread among its inmates, including suspending visitation and volunteering (March 16), screening all staff entering prisons (March 31), providing additional personal protective equipment (March 31), implementing a two-week moratorium on accepting offenders from county jails (April 6), releasing roughly 500 prisoners into probation programs (April 9), reducing prison transfers, increasing the production of washable face masks (April 13), testing all offenders at the hardest hit prison, Neuse Correctional Institution (April 16), and again testing all offenders at the second-hardest-hit prison, N.C. Correctional Institution for Women (April 30).
From April 24 to June 18, the number of positive Covid-19 cases in state prisons has more than doubled, jumping from 491 to 1,067, while the number of tests performed has exploded, from roughly 820 to 12,872.
An outbreak at Neuse Correctional revealed how fast the virus is capable of spreading within the close confines of a prison facility. On April 2, the minimum security prison identified two positive cases; that number rose to roughly 80 by April 16 and 430 by April 24, according to the NCDPS website. By July 19, that number had reached only 466, showing an apparently successful slowing of the spread there.
But across the state, 12 prisons had identified 10 or more cases by July 17, including Pender Correctional with 17 cases (although Pender County’s own numbers showed 19 cases). But while many tests had been performed at other prisons, Pender correctional had only tested 10 percent of its prisoners before testing them all last Wednesday.
According to Bull, “the vast majority of the offenders who tested positive are now considered to be presumed recovered.” He said the mass operation to test the entire state prison populations is now underway and more than 20 prisons have been mass-tested at this point.
Civil rights groups take the state to court
Litigation against the state began on April 8, when several civil rights groups, represented by the American Civil Liberties Union of North Carolina, filed an emergency lawsuit with the N.C. Supreme Court to force Governor Roy Cooper and the DPS to release prisoners due to the pandemic. The state announced they would release 500 prisoners the next day.
The lawsuit argued that Cooper and DPS Secretary Erik Hooks had not taken adequate action to protect prisoners and prison staff from contracting the novel coronavirus, which causes Covid-19 — a violation of prisoners’ rights and a legal and constitutional failure to provide safe prison conditions.
The case was then dismissed without prejudice and refiled in the lower Superior Court, according to Jordan Wilkie, who has extensively covered the case for Carolina Public Press.
“Lawyers for the ACLU and its partners argued that the prevention efforts DPS claims to have undertaken — such as the distribution of cleaning supplies and masks — have not been carried out evenly or in full across every prison, and, even if they were, they would still be inadequate to protect people from likely COVID-19 infection,” Wilkie wrote.
Evidence to support this argument came primarily from current and recently released inmates, according to Wilkie.
“At its heart, the case is over whether the state is doing enough to protect the 33,300 people incarcerated in state prisons from potential illness or death as a result of COVID-19,” Wilkie explained.
On June 8, Wake County Superior Court Judge Vince Rozier ruled in favor of the plaintiffs, which also included the NAACP, and said conditions inside state prisons were likely unconstitutional because of the state’s failure to provide substantial testing. He also asked the DPS to draw up a plan to test all inmates in the state, limit transfers, and resolve disparities between different prisons’ responses to the pandemic.
But the state’s response was lacking, according to Rozier, who on July 10 said the DPS had exhibited “apparent indifference” with his June order and “willfully failed” to provide certain information to the court. And what they provided was consistent, incomplete, and potentially incorrect, according to Wilkie’s description of the ruling.
He ordered the DPS to provide more information and said he would appoint a court liaison to monitor the accuracy of that information. Additionally, Rozier required the state to show evidence that it was following the order by July 27 and a plan on preventing a further spread of Covid-19, including early release measures.
Bull said a “limited number of transfers” at Pender Correctional have occurred since early April, but those were done using “stringent medical transportation guidelines” from the CDC and only after each transferred inmate had tested negative or, if not tested, placed in a 14-day medical quarantine before any contact with the general population.
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