By Jimmy Hoover

Law360 (May 26, 2020, 4:23 PM EDT ) The U.S. Supreme Court on Tuesday refused to block a court order that forces an Ohio federal prison dealing with a deadly COVID-19 outbreak to streamline the transfer of vulnerable inmates, taking issue with the "procedural posture" of the government's request.

The government had asked the justices to block a district court's April 22 order that compels it to consider moving vulnerable prisoners at the high-density Elkton Federal Correctional Institution — where nine inmates have died of COVID-19 — to home confinement, compassionate release or other prisons.

The court shot down the request Tuesday because the district court had entered a subsequent order on May 19 that the government has yet to challenge in the lower courts.

"Particularly in light of that procedural posture, the Court declines to stay the District Court's April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant," the Supreme Court said Tuesday in an unsigned order.

Justices Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch would have granted the request, according to the court's order.

"We commend the court for choosing to reaffirm the rights of the people incarcerated at Elkton prison, for whom a prison sentence must not become a death sentence," said ACLU national legal director David Cole, an attorney for the prisoners. "It is a disaster not just waiting to happen, but happening before our eyes, as hundreds are infected and nine have already died."

Prisoners challenging the confinement conditions at the Elkton Federal Correctional Institution say that the roughly 2,500-inmate facility in Ohio is incapable of stopping the spread of the virus and brought a habeas corpus action under the Eighth Amendment. Prisoners are in close quarters at virtually all times, and life-saving social distancing measures are impossible to implement, they argue.

The Northern District of Ohio agreed and on April 22 ordered the government to look at which prisoners could be sent to home confinement, compassionate release, furloughs or another facility, with a priority on those with medical conditions.

Roughly a month later, the court issued a subsequent order enforcing its original injunction and accused the government of "thumbing their nose at their authority to authorize home confinement." According to the prisoners who brought the action, the government had selected only five inmates for home confinement out of 837 whom it had identified as vulnerable due to age or medical conditions.

The government urged the Supreme Court to stay the original April injunction against it in a May 20 application filed to Justice Sonia Sotomayor that she referred to the full court. It argued that the prisoners could not bring a habeas challenge to their prison conditions in the midst of a pandemic, and that the district court did not properly apply the Prison Litigation Reform Act of 1995.

Opposing the government's bid for a stay, lawyers for the prisoners told the Supreme Court that the Elkton prison is "one of the worst" in the federal prison system for COVID-19 vulnerability.

"They are housed, cheek by jowl, in dormitory-style rooms of approximately 150 persons each," they said. "The result has been a severe COVID-19 outbreak lasting months, causing the deaths — so far — of at least nine people and infecting hundreds more among prisoners and staff."

The Department of Justice declined to comment Tuesday.

The government is represented by U.S. Solicitor General Noel Francisco.

The prisoners are represented by the American Civil Liberties Union and Hogan Lovells US LLP.

The case is Williams v. Wilson, case number 19A1041, in the U.S. Supreme Court.

--Editing by Peter Rozovsky.

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