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May 14, 2020

COVID in prison reaches SCOTUS as it refuses to vacate Fifth Circuit stay ... and Justice Sotomayor has much to say

The Supreme Court this evening denied, via a one-sentence order (available here), a request to vacate a stay that the Fifth Circuit put in place to halt, pending appeal, an injunction requiring a Texas prison take various measure to protect inmates from the dangers of COVID–19.  Though the full court used only one sentence to deny the request to vacate the stay, Justice Sotomayor (joined by Justice Ginsburg) added this statement about that denial that runs seven pages.  Here are a few excerpts from the start and end of her statement:

Under the circumstances of this case, where the inmates filed a lawsuit before filing any grievance with the prison itself, it is hard to conclude that the Fifth Circuit was demonstrably wrong on this preliminary procedural holding.

I write separately to highlight the disturbing allegations presented below.  Further, where plaintiffs demonstrate that a prison grievance system cannot or will not respond to an inmate’s complaint, they could well satisfy an exception to the PLRA’s exhaustion requirement.  Finally, while States and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death....

While I disagree with much of the Fifth Circuit’s analysis at this preliminary juncture, the court required reports every 10 days on the status of the inmates in the prison’s care.  I expect that it and other courts will be vigilant in protecting the constitutional rights of those like applicants.  As the circumstances of this case make clear, the stakes could not be higher.  Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” Supp. Brief Regarding Emergency Application 1.

Nothing in this Court’s order, of course, prevents the Fifth Circuit from amending its stay.  Nor does anything in our order prevent applicants from seeking new relief in the District Court, as appropriate, based on changed circumstances.  Finally, administrative convenience must be balanced against the risk of danger presented by emergency situations.  The prison, for example, has failed to explain why it could not simply decrease dorm density, despite having an empty unit at its disposal.

It has long been said that a society’s worth can be judged by taking stock of its prisons.  That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.  May we hope that our country’s facilities serve as models rather than cautionary tales.

May 14, 2020 at 07:47 PM | Permalink

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