In that June hearing, Rozier ordered the state to take several actions. The N.C. Department of Public Safety, which oversees prisons, needed to create a plan to test all people in state prison custody for COVID-19, limit transfers between prisons, account for disparities between prison responses to COVID-19 and to expand the criteria that would allow people to be released from prison sooner.
The state “willfully failed” to provide certain information to the court. What the state did provide was inconsistent, incomplete and potentially incorrect, Rozier wrote.
The only way to get certain information about prison conditions and operations is for the state to provide it. More information is “helpful and necessary for the court to determine whether Defendants continue in the cruel or unusual treatment of those in its custody,” Rozier wrote.
Rozier ordered the state to provide more information and stated he will appoint a court liaison to monitor the accuracy of information submitted to the court, to be paid for by the state.
Friday’s order also required the state to provide evidence to show it is following the court’s order, due by July 27, including a detailed plan on preventing the spread of COVID-19, the state’s plan for early release from prison and protecting new intakes to the prison system.
“The court has been clear about the responsibilities that the defendants have under the Constitution, to keep people alive and safe during this pandemic,” Leah Kang, ACLU attorney, said.
A shifting narrative in prisons
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.
Prisons lack enough space for people to properly distance by staying six feet apart at all times. When social distancing is impossible, cohorting is a tool for grouping people together, then keeping the groups separate. If someone in a group is infected with COVID-19, the entire group can be monitored for infection, and the illness could be prevented from spreading further.
However, the plaintiffs in the case said the state’s version of cohorting was not in compliance with public health best practices and was not adequate to protect people in state custody.
On Friday, Rozier described the “extreme variation” in cohorts, ranging in size across prisons from two people to 200. He ordered the state to describe, in the July 27 report, how it will prevent “cross-cohort contamination” at each of the prisons. This will include a plan to decrease the size of some cohorts, which the plaintiffs argue are too large to be effective.
“Really the only practical way anyone can see to do that, to decrease the size of these large cohorts, is to think seriously about release,” Kang said.
Rozier also outlined several other differences between prison responses to COVID-19, the lack of a uniform or equitable distribution of face masks, ongoing transfers between prisons and plans to medically isolate people without simultaneously punishing them with isolation.
These disparities between prisons contribute to the unconstitutional conditions in the prison system, as one’s health may be subject to the random assignment to one prison or another, according to Rozier’s previous order.
State testing plan
In response to a previous order, the state issued a plan to test every person in state prison over 60 days. The National Guard was approved to assist in the testing.
Rozier sped up the process, slightly, ordering the state to finish testing within 30 days of Friday’s order. A detailed copy of all testing results is due to the court by August 11.
The judge also ordered the state to provide weekly reports to the court, updating all parties on their progress, starting on July 20. This comes at the request of the plaintiffs, who argued that without regular reporting, there is no way to know if or how the state is complying with the court orders.
The state will also be required to conduct “surveillance testing,” or ongoing, randomized testing to monitor the health of the prison population after the mass testing is complete.
The state has until Thursday to appeal the case to a higher court. Unless a higher court takes action, the state is bound by Rozier’s orders.
If the state does not appeal, or if the appeal is unsuccessful, this lawsuit would move to the discovery stage, where the plaintiffs would be able to request information from the state and interview state staff. Then, the case would go to trial.
Neither the Department of Public Safety nor the North Carolina Department of Justice, which represents the state in court, answered questions Friday related to the judge’s order.
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