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Ohio Federal Prison, Struggling to Contain Coronavirus, Loses Challenge to Stall Releases

An appellate court says officials at Federal Correctional Institution, Elkton, must begin identifying prisoners vulnerable to the novel coronavirus.

Photo illustration by Kat Wawrykow. Photo by Getty Images.

Officials at a federal prison in Elkton, Ohio, cannot stall on identifying and transferring prisoners vulnerable to the novel coronavirus, the U.S. Sixth Circuit Court of Appeals ruled Monday.

The court unanimously denied a motion by officials at Federal Correctional Institution, Elkton, to stay enforcement of a district court order to begin transferring and releasing 837 medically vulnerable prisoners.

“The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing,” the federal court order reads. The three-judge panel noted that the virus is “rampant among inmates and staff” and that the prison lacks “adequate tests.”

Elkton officials were challenging an April 22 court order to—within one day—identify those prisoners most vulnerable to COVID-19, and later evaluate who is eligible for transfer “through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks,” according to the order. 

“Despite their efforts, the Elkton officials fight a losing battle,” U.S. District Judge James Gwin wrote in the April ruling. “A losing battle for staff. A losing battle for inmates.”

The case, brought by ACLU of Ohio, comes amid scathing news reports of ballooning outbreaks at prisons in the state, including at Elkton, the state’s only federal prison. At the time of suit’s filing, three prisoners had died. When the case was heard in court a week later, the death toll had doubled. 

“The only truly effective remedy to stop the spread is to separate individuals,” Gwin wrote in his ruling, which is “impossible” without releasing some individuals. 

Slow to test at Elkton

The federal government knew Elkton was a problem. In an April 3 memo, Attorney General William Barr singled out Elkton as one of three federal prisons where the Federal Bureau of Prisons should identify incarcerated individuals for release. But testing has since stalled and few Elkton prisoners have been released. 

“The BOP seems to be applying a very stringent set of protocols for determining who they would support for release and home confinement,” said David Carey, an ACLU of Ohio senior staff attorney. “And that’s simply not compatible with the moment. The BOP has been exhorted by Barr to move quickly. The fact that they haven’t done so despite having time is reason for a court to step in.”

As for testing, Gwin wrote in his ruling that the few additional tests that Elkton has pledged to administer “are all but useless considering Elkton’s 2,400 inmates.” 

The BOP held off from mass testing at Elkton. By April 24, fewer than 80 tests had been administered. As of Tuesday, 88 prisoners and 49 staff members have tested positive at Elkton, the fifth-highest number of positive tests in a federal prison. Seven prisoners have already died

Testing in state prisons

Meanwhile, in Ohio’s prison system, where the state has adopted what its Department of Rehabilitation and Correction calls an “aggressive” testing regimen—including testing everyone at three facilities, Marion Correctional Institution, Pickaway Correctional Institution, and Franklin Medical Center—test results show significant outbreaks. 

Marion and Pickaway counties now rank in the top 10 nationally for the highest number of cases per resident. Roughly 2,500 people are incarcerated at Marion’s facility, and 1,976 tested positive by last Wednesday. At Pickaway’s facility, 1,485 have tested positive out of a population of just under 2,000. 

On April 25, families protested outside Marion Correctional for their incarcerated loved ones. Already, the Ohio prison system is 10,000 people over capacity, and the death toll from COVID-19 is rising: At least 23 people have died at Pickaway because of the disease. As of Monday, 37 prisoners and two staff members have died across the state system. 

In his ruling on Elkton, Gwin pointed out that the testing regime adopted by Ohio’s state prison system renders the BOP’s arguments moot. “The Ohio prisons virus response undercuts BOP’s ability to argue that testing is either unavailable or is impossible,” he wrote. “Why has the Justice Department allocated Elkton an entirely insignificant number of tests while Ohio has been able to pull off mass testing across not only Marion, but at multiple institutions?”

Ohio was among the first states to begin conducting comprehensive testing inside correctional facilities, even with initial delays.

The broader counties are struggling, too. Pickaway County now has 1,731 cases per 100,000 people, the tenth-highest per capita rate nationwide. Marion County has the highest number of positive cases among counties in the state, despite having fewer than 100,000 residents.

‘Necessary’ action

Aside from the hundred or so people Governor Mike DeWine has released, the state has not yet taken aggressive action to reduce prison populations. He has, however, begun to reopen some parts of the state’s economy and plans to open all retail businesses on May 12.

On April 8, John Dawson became the state’s first corrections officer to die of the disease and the second Marion officer to test positive for it. But it wasn’t until April 16, that James Dzelajlija and everyone else in his dorm lined up outside to get tested. At Pickaway and Franklin prisons, similar testing unfolded. Five days later, Dzelajlija told The Appeal, he still hadn’t received his results. 

“They all give the same answer: Nobody knows anything,” he said on April 21. He only learned that Marion had become the number one hotspot in the nation when his wife, Azzurra Crispino, read him the news over the phone: At that time, more than 70 percent of people incarcerated at the prison had tested positive.

Two days later, Dzelejlija received his test results; he was positive for the novel coronavirus.

Ohio could have used testing as a way to mitigate the spread of the virus if it had tested earlier, Crispino said. She thinks testing at Marion and Pickaway are a waste of time. Instead, the state should be testing at Mansfield Correctional Institution and other facilities with few cases so that the facilities can actually follow quarantine and treatment protocols. 

“Where Mansfield is today is where Marion was three weeks ago,” Crispino said.

Carey of Ohio’s ACLU acknowledged that testing is an important step, but “but taking action at this point is more necessary.” 

Said Dzelajlija: “We’re sentenced to a term in prison. I didn’t commit a capital offense. It’s kind of scary, and they need to get people out of here.”