(CNN) -- The Supreme Court and courts across the country will see an increasing number of pandemic-related disputes in the coming weeks concerning prison conditions and whether prisons are violating the constitutional rights of inmates by failing to adequately protect them against the coronavirus.
Inmates are raising concerns about what they call the deliberate indifference of prison officials during a serious public health crisis and asking for home confinement or appropriate resources to improve hygiene and block the spread of Covid-19. For their part, state and federal officials are pushing back hard arguing that they are trying to respond to evolving risks while battling an unprecedented global pandemic.
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Justice Sonia Sotomayor sent up a flare up this month after inmates argued that their prison conditions amounted to cruel and unusual punishment.
"It has long been said that a society's worth can be judged by taking stock of its prisons," Sotomayor wrote. "That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm."
The issue is further complicated by the fact that federal law that governs prison conditions requires an inmate to exhaust a grievance process set up by correctional officials before turning to litigation. That system was put in place to keep frivolous litigation out of courts and give prisons the chance to remedy a problem before a lawsuit. But it never envisioned a pandemic like Covid-19 that is ripping through prisons filled with at-risk inmates.
Appeals from Louisiana, Ohio and Texas
While lower courts have been dealing with cases for weeks, emergency petitions are only now filtering up to the Supreme Court.
Last Thursday night at 6:11 p.m., for example, the court rejected an appeal from Texas prisoners. Forty minutes later, however, a new petition landed at the court from a Louisiana inmate. By Wednesday, the Trump administration asked the court to put on hold an order to expedite the transfer or release of 837 medically vulnerable prisons in a federal facility in Ohio.
"Covid-19 is raising fundamental issues about prisoners' right to minimal standards of health and safety and human decency," David Fathi, the director of the ACLU's National Prison Project, told CNN. "It's inevitable that these cases will occupy the courts, including the Supreme Court, for the foreseeable future."
According to Fathi, the virus has already killed 38 prison staff and nearly 400 incarcerated people nationwide.
The low security Elkton Federal Correctional Institution in Ohio, which houses inmates with lower public risk factors has been hit particularly hard.
Earlier this week, a federal judge in Ohio blasted the Bureau of Prisons for having made "only minimal effort to get at-risk inmates out of harm's way." The judge said officials were moving too slowly in evaluating the ability to transfer a class of the most medically vulnerable inmates.
James S. Gwin of the United States District Court for the Northern District of Ohio, said that while the prison bureau had implemented mass testing, the "progress creeps." He noted that the data demonstrates that one in four inmates has been infected and that the BOP had the authority to transfer some prisoners to home confinement.
The facility "must move inmates out," Gwin ruled. "By thumbing their nose at their authority to authorize home confinement," officials "threaten staff and they threaten low security inmates."
Solicitor General Noel Francisco filed an emergency petition with the Supreme Court Wednesday night, urging it to put Gwin's ruling on hold.
Francisco said that the pandemic had "created extraordinary public health risks and that the prisons bureau is working "assiduously to mitigate those risks" by minimizing social interactions, distributing cleaning supplies and PPE and establishing quarantine and testing protocols.
"A judicial order peremptorily requiring the removal of over 800 inmates from a federal prison based on an alleged Eighth Amendment violation -- in the midst of a pandemic -- presents extraordinarily significant questions and should not be imposed without this Court's review," Francisco told the justices.
Sotomayor, who has jurisdiction over the Ohio Court asked for a response by Friday.
Last week, in the case out of Texas, the court ruled against two prisoners seeking greater protections in the state geriatric prison where they are currently housed. Laddy Curtis Valentine -- serving a 25 year sentence for child sexual abuse, indecent child contact and several counts of aggravated sexual assault -- was the lead plaintiff in that case.
The court denied his request to mandate stronger prison protections meant to stop the spread of the virus. The case will continue in the lower courts. Sotomayor, joined by Justice Ruth Bader Ginsburg, took the occasion to say that while she respected the court's decision as it applied to the case at hand, she was on high alert.
She acknowledged that under the Prison Litigation and Reform Act, the Texas inmates had improperly filed a lawsuit before filing any grievance with the prison itself.
But, she had a warning. There may be times, Sotomayor said, when exceptions to the law, "could open the courthouse doors where they would otherwise stay closed." She said that, on one hand, prisons "retain discretion" in how they respond to health emergencies, but federal courts "do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger or death."
Sotomayor nodded to lackluster efforts on the part of some facilities to comply with policies meant to stop the spread of the virus, highlighting, for instance, an inmate serving as a janitor who was given one pair of gloves to share with another janitor and a limited supply of cleaning solution.
The justices are also currently considering a Louisiana case brought by Christopher Marlowe who is serving at the state's B.B. Rayburn Correctional Center for attempted second degree murder.
Like Sotomayor, Marlowe suffers from diabetes which makes him susceptible to serious complications should he contract Covid-19.
"Laying in my bed, I can reach my left hand over and touch my neighbor," Marlowe told a lower court judge according to court papers. "Five feet from my head is a water fountain, it's the only water fountain trafficked by every inmate in the dorm."
A ‘Kafkaseque’ situation
Nationally, the ACLU alone has filed seven lawsuits and dozens more have been filed by its affiliates across the country. A group called Civil Rights Corps has also filed litigation on behalf of inmates.
"Overcrowding, deplorable conditions and inadequate access to healthcare makes jails and prisons ripe for infectious diseases, " Civil Rights Corps spokeswoman Kiara Pesante Haughton said. "It's no surprise that during this global pandemic we're seeing Covid-19 spread viciously through these facilities, making them 11 out of the top 15 outbreak hot spots in the nation."
Last month, District Court Judge Alison Nathan, lambasted the Bureau of Prisons in a case concerning Gerard Scparta, who was serving time at FCI Butner in North Carolina. The prison has suffered on of the worst outbreaks of Covid-19. Lawyers for Scparta filed an administrative request with the bureau for compassionate release due to his preexisting health conditions that would put him at high risk of severe medical consequences if he were to catch the virus. The bureau decided that he should be released from custody to serve the remainder of his term in home confinement.
Before release, however, it determined that he must remain in custody for a 14 day quarantine.
During that quarantine, however, he was housed with other people, one of whom tested positive for Corona-19. Under agency policy, that meant Scparta's 14 day waiting period had to start again, before he could be released.
Nathan, who sits on the US District Court for the Southern District of New York, was incredulous, calling the situation "Kafkaesque."
"Under the BOP's policy, if any one of the individuals in Mr. Scparta's unit, most of whom have also been approved for home confinement, tests positive, the 14-day waiting period for all inmates in the unit starts anew," she recounted.
"The Court speaks in stark terms," Nathan warned. "This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science and a danger to both Mr. Scparta and the public health of the community." She ordered his immediate release.
Nathan was referring to a memo penned in late March by Attorney General William Barr directing leaders of the federal prison system to increase the use of home confinement for some inmates. In the memo to the Bureau of Prisons, Barr said that officials should prioritize the use of statutory authorities to release eligible prisoners early to home confinement.
Another case involves Chalana McFarland, who is serving a 30 year sentence in the FCI Coleman facility in Florida for what the government called a multimillion-dollar mortgage fraud scheme.
She applied for release because she has asthma, high blood pressure and sickle cell trait. While she was granted relief she has still not been released.
"We are sentenced to serve a certain amount of time, and I get that," she told her lawyers in an interview provided by the ACLU. "But I don't deserve to die in here," she said.
In the cases before the Supreme Court, Texas Attorney General Ken Paxton defended the prisons, arguing that the state had worked "diligently to protect its prisons" from the pandemic. He said the state's mitigation strategy began March 22, days before President Donald Trump declared a national state of emergency.
"Unfortunately, no corner of society has been spared, including the prison system, " he said.
In its defense, Louisiana says that not only had Marlowe failed to properly bring his claim and exhaust the normal grievance procedures, but that his original lawsuit was filed back in 2018, long before Covid when he was residing in a different facility. Jeff Landry, Louisiana's Attorney General, said Marlowe's petition is riddled with errors and that the lower court had highlighted the fact that officials at the facility had "taken numerous steps to implement policies to contain the spread of COVID-19".
Prison officials "have and continue to dynamically and reasonably respond to the evolving risks and circumstances of COVID-19" Landry said.
As for the Trump administration, Francisco stressed that the pandemic "poses risks" to inmates, "but it also poses risks to the population as a whole, and BOP has worked diligently to mitigate the risks."
But Fathi points out that as things stand, under a process where challenging prison conditions can take time, lives are at risk.
“We are working around the clock to save as many people as possible before the virus rips through prisons and jails with full force,” he said and added, “time is of the essence.”