Public Defender Service, ACLU-DC Challenge D.C. Jail’s Failure to Protect Incarcerated Individuals From COVID-19 Pandemic

WASHINGTON – The ACLU of the District of Columbia and the Public Defender Service for the District of Columbia today sued the D.C. Department of Corrections for its flagrant disregard of basic public health measures to limit the spread and severity of a COVID-19 outbreak inside the D.C. Jail. The case seeks immediate relief for unconstitutional conditions for all 1,600-plus individuals housed at the jail and its adjacent custodial treatment facility.

Allegations against the DOC made in today’s lawsuit include:

• delaying for days medical attention to those showing symptoms of COVID-19;
• denying COVD-19 tests to residents with symptoms;
• failing to provide soap or hand sanitizer for residents to clean their hands;
• failing to screen new detainees, staff, lawyers, and others entering the jail;
• withholding adequate cleaning supplies, including gloves, masks and other necessary equipment to facilitate thorough cleaning of the facilities;
• failing to adequately quarantine 65 individuals who had contact with a deputy U.S. Marshal who tested positive;
• failing to equip staff and jail residents with sufficient gloves or masks to use when preparing and serving food, resulting in many staff and residents passing food and utensils to each other with bare hands; and
• continuing to hold group therapy meetings in a manner that did not allow residents to practice Centers for Disease Control recommendations for social distancing.

These conditions, the lawsuit charges, violate two constitutional provisions. Under the Eighth Amendment, which prohibits “cruel and unusual punishment,” custodial officials may not be deliberately indifferent to conditions that pose a substantial risk of serious harm. Under the Fifth Amendment, pretrial detainees may not be held in conditions that amount to punishment at all. PDS estimates that more than three-quarters of the population of the DC Jail and associated treatment facility are confined either pre-trial or because of parole violations or misdemeanor sentences.

Today’s lawsuit follows orders by governors, judges, and mayors in several jurisdictions nationwide to significantly reduce prison and jail populations. In New Jersey, a state court judge ordered the temporary release of as many as 1,000 inmates. In New York City, more than 1,000 will be released after the New York City Board of Correction called on the city to “immediately remove from jail all people at higher risk from COVID-19 infection.” Facilities in California, Ohio, Montana, Maine, Texas, Pennsylvania, Tennessee, Washington, Oregon and Michigan have all granted some type of early or temporary release in response to the public health crisis. In addition, Germany, Canada, and Iran have collectively released nearly 100,000 incarcerated persons.

“Many of the people currently held at D.C. Jail suffer from chronic, pre-existing medical conditions that elevate their risk of severe illness or death from COVID-19, according to Centers for Disease Control criteria. These conditions include asthma, diabetes, and diseases that compromise the immune system,” said attorney Steven Marcus of the Special Litigation Division of the Public Defender Service for the District of Columbia. “With five COVID-19 cases confirmed to date among the incarcerated population, and a lack of adequate safety precautions, the disease is going to spread like wildfire absent immediate action.”

In addition to the risk to incarcerated individuals, the threat has affected DOC staff as well. In mid-March, the union representing corrections officers at the D.C. Jail, the D.C. Department of Corrections Labor Committee of the Fraternal Order of Police, voted “no confidence” in DOC leadership, asserting it had ignored the union’s attempts to secure better protective equipment for officers. On March 29, the FOP criticized the District and DOC leadership’s failure to adequately protect the health and lives of officers, concluding: “the Jail is the lowest priority among the health and safety community.”

“Incarceration should not be a death sentence,” said Scott Michelman, Legal Co-Director, ACLU of the District of Columbia. “The District’s utter indifference to the health and safety to the hundreds of individuals it holds in custody puts all their lives, along with the employees who work at the Jail and the community at large, in jeopardy.”

Today’s case, Banks v. Booth, was filed as a class action in the U.S. District Court for the District of Columbia. The lawsuit asks the court to order the Department of Corrections to exercise its authority under the D.C. Council’s COVID-19 Response Emergency Amendment Act of 2020 to release individuals sentenced for misdemeanors, who number nearly 100. The plaintiffs further ask the court to immediately appoint an expert who will make recommendations regarding further releases sufficient to enable the Jail to institute CDC-compliant safety protocols, and order the DOC to implement a list of 18 precautionary measures, including such basic steps as providing soap free of charge, regularly disinfecting surfaces, and immediately testing individuals showing symptoms of COVID-19.

The complaint and motion for emergency relief are available here: https://www.acludc.org/en/cases/banks-v-booth-challenging-life-threatening-lack-covid-19-precautions-dc-jail