At a Texas prison unit housing mostly elderly inmates, COVID-19 has killed more than 20 men and hospitalized nearly 100 so far. Advocates for the prisoners, who accused the state of failing to implement measures to prevent the spread of the virus, are awaiting a Fifth Circuit ruling they hope will help curb the outbreak.

Earlier this month, the Fifth Circuit heard oral arguments on an expedited briefing schedule over whether it should reinstate a permanent injunction requiring the prison to implement a COVID-19 containment protocol. The Fifth Circuit had stayed the permanent injunction pending Texas Department of Criminal Justice's appeal of the district judge's order, and the U.S. Supreme Court declined to reinstate the order after the inmates appealed.

The case involves a certified general class of inmates in the Houston-area Wallace Pack Unit — where most of the inmates are 65 or older, according to court documents — and two subclasses of medically vulnerable and mobility impaired prisoners.

The district court had found that the TDCJ failed to keep inmates safe from the virus since the unit lacked a contact tracing plan, staff failed to wear masks, and social distancing was not enforced, among other things. Jeff Edwards of Edwards Law, counsel for the inmates in Laddy Valentine et al. v. Bryan Collier et al., told Law360 he hopes that at some point the prison system will treat the virus less as a litigation issue and more as a human rights issue.

Edwards said he expects the Fifth Circuit to rule soon on whether or not to affirm the district court's findings that TDCJ had failed to safeguard the inmates.

"If you have a disease that you know spreads unless you wash your hands all the time, and you don't give people in wheelchairs or people who have trouble walking the same ability to go to the sink or the ability to use hand sanitizer, what do you think is going to happen?" Edwards asked.

The case is one of many that inmates have filed in state and federal courts across the country seeking recourse amid COVID-19 outbreaks. The suits have been met with varying degrees of success as jails, prisons and detention centers continue to see high case numbers amid the third wave of the pandemic, and experts say it may be tough to show that prisons were deliberately indifferent to the pandemic's risks.

According to data compiled by The Marshall Project, a nonprofit, criminal justice-focused news organization, there have been at least 276,235 cases of coronavirus and 1,738 deaths reported among prisoners as of Dec. 18. The Marshall Project reported that 186,881 of the inmates who tested positive have recovered.


The federal Bureau of Prisons, or BOP, which has more than 124,500 inmates in its institutions, declined to comment on matters that are the subject of litigation. But on its website the agency has outlined various modifications to its facility operations to mitigate the spread of COVID-19. Among other steps, the bureau suspended social visitation and increased the amount of time inmates can talk on the telephone.

The agency said social visits are being reinstated where possible with social distancing and other safety measures. The bureau said it has also implemented modifications to limit inmate movement and prevent congregating as much as possible.

Catherine D. Marcum, professor of Justice Studies at Appalachian State University, said most states follow the BOP's lead on operational changes related to the pandemic, adding that the bureau's policies are usually based on recommendations from the Centers for Disease Control and Prevention.

Marcum said states such as New Jersey have been freeing offenders early, noting that many long-term inmates incarcerated as part of the war on drugs are now eligible for early release. She anticipates that there will be a continued pattern of early release and an increase in the use of diversion programs and community corrections.

Marcum noted that it's very difficult for detention facilities to hold inmates alone in secure cells with continually ventilated air. She said that while some correctional facilities are doing their best to maintain secure and sanitary conditions, "there are some that are not doing their very best. I've been in both."

Inmates and their advocates, however, face a tough road getting prisons that are underperforming to do better.

Erin Saltaformaggio, a partner at Bradley Arant Boult Cummings LLP who co-authored a piece in the beginning of the pandemic about constitutional lessons for prisons amid the outbreak, said that in large part, facilities are trying to do what they can with the resources they have to follow guidelines that are in place.

Under a deliberate indifference analysis, plaintiffs have to prove that the defendant was subjectively aware of a substantial risk to the plaintiffs' health or safety and then acted in disregard of that risk. And if a plaintiff is able to establish a constitutional violation, the court then looks at whether the violation was clearly established when it happened.

"I think this is a tough hill for plaintiffs to overcome due to the novel nature of this pandemic, which has truly changed the way that every person has had to live over the last several months and without really any precedence and continually shifting recommendations from various authorities on best safety practices," Saltaformaggio said via email.

Sarah Grady, who leads the Prisoners' Rights Project at Loevy & Loevy, represented inmates at the Cook County Jail in Illinois and helped secure a notable affirmation by the Seventh Circuit of a district judge's preliminary injunction to follow various safety practices in one of the country's largest jail systems.

While the district court had previously denied the inmates' requests for release, it did grant several of their requests for preliminary injunction to provide measures such as face masks, sanitary supplies, social distancing at intake and socially distanced housing arrangements, Grady said. The Seventh Circuit upheld nearly all of those requirements, reversing only the order to socially distance inmate housing arrangements.

Grady said that while officials claim to be compliant with those measures, the number of virus-positive detainees in the jail is still significant. As of Dec. 13, she said the sheriff reported that there were 334 detainees currently testing positive.

She said she is concerned about that number, noting that it has been rising for the past month, but she declined to comment further on potential further actions in the case.

Grady also represented a proposed class of Illinois Department of Corrections inmates who asked an Illinois federal court to temporarily allow certain groups of prisoners to go on either early release or medical furlough to lessen their chances of contracting COVID-19 while incarcerated. U.S. District Judge Robert Dow Jr. rejected the request in April, but Grady said the matter is in ongoing settlement talks.

While many district courts granted preliminary injunctions during the pandemic to require prison facilities to take certain steps, that was followed by a series of divided circuit court opinions overturning the injunctions, Grady said.

"It was difficult to escape the conclusion that the majorities in those cases were essentially giving prisons and jails a complete free pass in terms of how they handled COVID-19 ... simply because it was a difficult issue and easy for the court to seemingly raise the burden placed on plaintiffs so high that it became impossible to beat," Grady said.

She said that in the next year or two, damages lawsuits for inadequate care related to COVID-19 will crop up, and she is hopeful that the analysis for qualified immunity for prisons in those cases won't be altered because the medical diagnosis at issue is the relatively new virus.

"I think that we are going to have to reckon with qualified immunity in the wake of claims for deliberate indifference response to COVID, and I'm hopeful courts will properly apply that law rather than take a categorical approach that all COVID denials entitle defendants to qualified immunity," Grady said.

Andrea Woods, a staff attorney at the American Civil Liberties Union's Criminal Law Reform Project, said she was disappointed by reversals that were handed down in the Fifth and Eleventh circuits, although she said it doesn't foreclose prisoners recovering, noting that the Fifth Circuit case could still go the other way.

"We were hoping the courts would be more courageous earlier on, but I'm becoming more optimistic that they're seeing now that the kinds of representations that prison and jail officials and ICE officials were making earlier in the pandemic are just not bearing out," Woods said, referring to U.S. Immigration and Customs Enforcement.

The ACLU is involved in COVID-19 prisoner cases against private entities and the government and has sued at every level of government, Woods said. She said the organization realized early on what a crisis the coronavirus would present for its incarcerated clients and worked to tee the issues up "in the hopes that that could save lives and prevent catastrophe."

Woods said that in the cases she is working on, prison officials did not do enough to protect inmates. Prisons were reluctant to provide enough soap, didn't replace masks when they broke, didn't space out beds when they could have, and had units where they weren't housing anyone while crowding inmates in other units. She said there are also prisons that discouraged people from getting COVID-19 tests because they didn't want the number of positive results to increase.

She said the federal courts have let her clients down and that judges wanted to believe officials when they said how seriously they were taking the pandemic. In all the cases that Woods is working on, jail populations that were once reduced have crept back up to their pre-pandemic levels, she said.

But there have been other litigation successes for plaintiffs. In October, a California state court ordered San Quentin State Prison to reduce its population by half because of its failures to address COVID-19. A similar ruling in a state court came down for the Orange County Jail on Dec. 11.

And on Dec. 15, a federal magistrate judge rejected Oregon's qualified immunity argument in a case brought by inmates who accused Gov. Kate Brown and other officials of violating the Eighth Amendment and negligently responding to the pandemic. U.S. Magistrate Judge Stacie F. Beckerman rejected the state's position that because of the novelty of COVID-19, no previous case has clearly established the appropriate constitutional response to the pandemic, saying existing law provided the state with fair warning of its responsibility to protect prisoners from heightened exposure to a contagious disease.

Woods said that even if courts were inclined to give the benefit of the doubt to detention facilities in the early days of the pandemic, there may be more tangible relief in store for inmates, "even on the injunctive side," because officials have continued to fail to uphold their obligations.

"It is not being treated like the ongoing crisis that it is," Woods said. "That's part of why I think the way the cases shake out and the final judgment on appeals is yet to be decided."

Woods said COVID-19 is unique in terms of the scale of harm it has wrought, but she said it's not unique in terms of being a respiratory virus. The way these diseases spread has been known for a long time, and prisons officials should have known better and worked harder to combat that spread.

The Supreme Court has recognized a constitutional violation under far less dire circumstances, Woods said, including the risk of exposure to secondhand smoke. She said that if anything, the differences with COVID-19 make it a more obvious violation of someone's right to be reasonably safe when in custody.

"We're not trying to invent anything completely new here," Woods said. "We're just trying to keep people safe."

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--Additional reporting by Dorothy Atkins, Melissa Angell and Lauraann Wood. Editing by Jill Coffey.