Federal Judge orders BOP to find ways to transfer prisoners "out of Elkton through any means" in the coming weeks

As reported in this ACLU press release, "Today, Judge James S. Gwin of the United States District Court of the Northern District of Ohio granted a preliminary injunction ordering Elkton officials to identify, within one day, all members of the subclass of medically vulnerable prisoners encompassed by the class action habeas petition filed by the ACLU of Ohio and the Ohio Justice and Policy Center on April 16. Following identification, Elkton officials are ordered to evaluate the prisoners’ eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. Elkton officials must quarantine prisoners for 14 days prior to transfer out of Elkton." Here is more from the press release:

“Countless lives will be saved as a result of this order. Even since we filed our class action the death toll at Elkton has doubled. Judge Gwin was absolutely correct in recognizing the dire situation at Elkton and we are eager to assist and facilitate the release of the members of the medically vulnerable class,” said David Carey, Senior Staff Attorney for the ACLU of Ohio.

In undertaking the evaluation, the judge further rules that older prisoners with heart, pulmonary, diabetes or immunity risks should receive priority review, and that any members of the class action transferred out of Elkton cannot return to the facility until the thread of the virus is abated or until a vaccine is available.

“People living in prison have Constitutional rights, too. This order will help ensure the well-being of prisoners, staff, and the surrounding community, while preserving our Constitutional obligations,” added Joseph W. Mead, Cooperating Attorney for the ACLU of Ohio.

The full 21-page order from Judge Gwin is available here, and here is the order's conclusion:

The Court orders the Respondents to identify, within one (1) day all members of the subclass as defined in this Order.  Respondents must identify in the list each subclass member’s sentencing court and the case number of their underlying criminal conviction.

Following identification, the Court orders Respondents to evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks.

In undertaking this evaluation, Respondents will prioritize the review by the medical threat level.  For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger.

Subclass members who are ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.  In transferring subclass members, Respondents must continue to comply with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton.

Any subclass members transferred out of Elkton may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first.

UPDATE: This Politico article discusses this ruling by Judge Gwin along with another ruling from Louisiana that refused to grant relief to prisoners in another federal institution with many infected inmates.  This piece is fully headlined "Judge orders transfer or release for some inmates at virus-wracked Ohio federal prison; But another court refuses to act as 'super-warden' for hard-hit U.S. prison complex in Louisiana."  Here are excerpts:

A judge has ordered the release or transfer of hundreds of elderly and vulnerable inmates at a federal prison in Ohio that has seen a particularly deadly and widespread outbreak of the coronavirus.

Although federal courts have been flooded in recent days with release and resentencing requests in individual cases, the ruling Wednesday from U.S. District Court Judge James Gwin appeared to be the first that could lead to a group release of federal convicts as a result of the ongoing Covid-19 pandemic....

The decision from the Cleveland-based Gwin came the same day a federal judge in Louisiana rejected a similar class-action, habeas corpus case brought on behalf of prisoners at a hard-hit federal prison complex in Oakdale, La.  U.S. District Court Judge Terry Doughty said federal statutes and legal precedents foreclosed the court from offering the same relief Gwin granted.

Doughty, an appointee of President Donald Trump, also sounded disinclined to second guess the decisions of the Bureau of Prisons.  “Such a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court,” Doughty wrote. “To rule otherwise would make this Court a de facto ‘super’ warden of Oakdale.”

Oakdale is suffering from the deadliest Covid-19 outbreak in the federal prison system, with seven inmates having expired.  Federal statistics show 21 prisoners and 22 staffers there confirmed as infected.