Oct. 16-- A federal lawsuit against S.C. Department of Corrections director Bryan Stirling seeking the widespread release of prisoners to protect inmates from COVID-19 has been dismissed by a federal judge.
One reason for the dismissal was that in order to win, the ACLU Foundation of South Carolina, which represented the 20-plus inmates who brought the lawsuit, would have to show the S.C. prison system was "deliberately indifferent" to the health and safety of inmates, who by the mere fact of being in close quarters in prison cannot practice social distancing and other protective anti-coronavirus measures.
But since last spring, the prison system has been taking increasing actions to better protect inmates, so the "deliberately indifferent" standard -- which is necessary to show a violation of a prisoner's constitutional rights -- would have been difficult if not impossible to prove.
Moreover, the release of thousands of prisoners sought in the case was not practical, the U.S. District Judge Donald Coggins told the lawyers in a closed meeting early last July, according to records in the case.
For one thing, Coggins said at that meeting, South Carolina law "simply does not provide many avenues" to legally release inmates at risk for COVID-19. Unlike some other states, neither the governor nor the Department of Corrections director, Bryan Stirling, has the power under state law to release inmates.
For another, Coggins refused to invoke a remedy sought by the ACLU -- to set up a board and let the board decide what prisoners were in the most danger of being infected and release them. That is a role to a legislature, not an unelected judge, Coggins told the lawyers.
At the time Coggins spoke, only three inmates had died of COVID-19 and 313 had tested positive. As of Thursday, 31 inmates have died and 2,290 have tested positive, and of the positive cases 1,828 have recovered.
From last spring, to the early July meeting Coggins had with lawyers to the present, the prison system has increasingly done what it could with the available resources, according to court records, prison director Stirling and the ACLU.
Although Stirling and the ACLU agree on substantial progress, each, in separate interviews with The State newspaper on Thursday, approached the topic from different perspectives.
Stirling said Corrections, even without the ACLU, last spring was already asking steps to learn from and adapt best practices from other prison systems around the country.
That said, the ACLU in South Carolina "probably made suggestions that we incorporated" in our policies, Stirling said. "I can't give you any specifics of what we incorporated, but most of it, we were probably already doing."
Stirling said "the conversation" with the ACLU was helpful. "We were talking with them before they filed the suit," he said. But once the ACLU filed the suit in April, "communication is severely limited," he said.
No one knows how many more inmates will come down with COVID-19, and how many will die, Stirling said. "What I can tell is, we're doing everything we can."
That "everything" includes increased COVID-19 testing, help from the National Guard, the S.C. Department of Health and Environmental Control, the Medical University of South Carolina, Stirling said. He also sought and got $1 million from state officials recently to buy ionizers for the various prisons. Those machines will go to screen virus particles from the air.
Corrections has also acquired from the state Emergency Management Division 5,000 N95 masks, 10,000 gowns and 2,000 gallons of hand sanitizer. The agency also bought or financed other acquisitions including masks, gowns, two kinds of disinfectant foggers, face shields, gloves, bleach and accelerated COVID-19 test result processing.
Shirene Hansotia with the ACLU Foundation of South Carolina said, "We do commend SCDC for working with us in a collaborative fashion. I would say they are understating by quite a bit ACLU's role in saying they were doing this ahead of time."
For example, Corrections had no formal widespread testing procedures in place before the ACLU filed its lawsuit, she said. "Through our work with them, and through the pressure and leverage of having a lawsuit, we were able to get them to implement widespread testing," she said, praising the agency for coordinating with the Medical University to get it to help out with fighting COVID-19 inside the prison system.
The ACLU also stressed the importance of flagging medically vulnerable individuals who were eligible for parole and getting their cases before the Parole Board for possible earlier release, she said.
And inmates who have a grievance related to COVID-19 now have a much shorter wait time -- seven days instead of 45 days -- to have their issues handled, Hansotia said.
Finally, she said, Corrections implemented and published in the federal court record on Oct. 7 a completely new and detailed policy on how the prison system should deal with COVID-19.
That policy covers everything from mask wearing to proper mixtures of bleach (five tablespoons of bleach to one gallon of water) to ventilation and says, "Public safety is central to the mission of the S.C. Department of Corrections."
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