By Jordan Wilkie, originally published by Carolina Public Press. Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.
Swannanoa Correctional Center for Women was one of the few North Carolina prisons that had been able to avoid an outbreak of COVID-19 since the first cases were reported among prison staff and inmates at the end of March.
That ended Dec. 4, when a staff person tested positive for the virus and was taken off duty, according to the Department of Public Safety. The staff member’s illness likely triggered the current outbreak at the facility.
Prison staff conducted contact tracing and put “some cohorts of offenders” on medical quarantine, DPS said.
The quarantine included the 18 women in the prison’s service club, who were told that evening that they had been exposed to COVID-19 in a meeting with the ill staff member the night before, according to one of the members, Sandra Dowell, and two other women in the group.
They were moved from locations throughout the prison to quarantine together in a hall with that had no heat in the sleeping area, they told Carolina Public Press.
The action is indicative of the state’s preparedness to respond to COVID-19 in its prisons. Poor conditions and sagging infrastructure that predated the pandemic make it harder to manage the pandemic.
Expanded testing, especially among staff, allowed the state to identify an outbreak relatively early on, but the testing rates and other COVID-19 responsive policies still fall far short of expert recommendations.
An ongoing lawsuit challenges the constitutionality of the prison system’s handling of COVID-19. The realities of prison response differs from what the state is telling the court is happening, according to the civil rights groups suing the state and prisoner advocacy group N.C. Prisoner Legal Services.
The women of Swannanoa’s service club slept in the cold with gloves on. They had their family members call the prison to request additional blankets, according to Betsy Fredell, another member of the prison’s service club. Prison staff fixed the heat after four nights, on Dec. 8.
By that time, several women were complaining of symptoms that could be related to COVID-19, though they were the ubiquitous ills that come with this time of year such as cough, headache and runny nose.
Betsy Fisher and three other women from the group showed serious enough symptoms that they were further separated from the others, into a hall called Greenwood B, she said.
Dowell, who stayed with the main group, had worsening symptoms, according to her lawyers. She is a plaintiff in the lawsuit challenging prison conditions.
In a preliminary injunction in June, the judge said conditions are likely unconstitutional, and the case is proceeding to trial in the spring.
‘It’s affecting our nervous system or something’
The prison medical staff checked temperatures and asked about symptoms every day the women were in quarantine, Dowell and the others said, which is proper procedure recommended by the national Centers for Disease Control and Prevention.
But they were not being tested.
One of Dowell’s lawyers, Elizabeth Simpson, associate director of Emancipate North Carolina, said her legal team emailed the state’s lawyers on Dec. 10. That night, the women in both halls were given rapid tests to detect COVID-19.
Dowell and six other women tested positive and were moved into Greenwood B.
Two of the women already there tested positive. One tested negative and was moved out. Fisher tested negative but was kept in the same hall as the nine women who tested positive, she told CPP.
DPS policy states, “Offenders who test positive are promptly separated from the rest of the offender population and placed in medical isolation to better ensure they don’t spread the virus.”
But Fisher, who tested negative, first with a rapid test then with a “three-day test,” so-called for how long it takes to get results, is still on Greenwood B. She has her own cell and only leaves it to shower or make calls, she said.
The Department of Public Safety told Carolina Public Press “offender population was mass tested on Dec. 11, at which point mass testing of the entire staff was initiated.” DPS has reported just over 50 tests in a prison with a capacity of 366, according to their website. While DPS can provide staff test results upon request, it is not publicly reported in the same manner as those for the people in state custody.
After getting negative results with rapid testing, two more women from the service club tested positive and moved into Greenwood B, including Fredell, the women said.
DPS has not responded to questions from CPP about the lack of heat when the women were first put in quarantine or about why Fisher is still being held in the same hall with 11 women who tested positive for COVID-19.
As of Tuesday night, Fisher told CPP that she had fatigue and sinus pressure. Like the other women, she is checked two or three times a day for symptoms, though so far she has not been tested again or moved to a hall without confirmed positive cases.
“I probably have the COVID, but they don’t want to test me because they gave it to me,” Fisher said of the prison staff member who housed her with women who tested positive.
Some of those women are now throwing up, have diarrhea and what the women call “the hippy shakes,” where it feels like their insides “just shake all the time,” Dowell said.
“You know, it’s like it’s affecting our nervous system or something,” she said.
The prison conditions Wake County Superior Court Judge Vinston Rozier Jr. ruled as likely unconstitutional in June do seem to be improving, if incrementally.
At the beginning of the pandemic, Prisoner Legal Services received many complaints about people in prison not having access to masks and staff not wearing them, according to the group’s staff attorney Ben Finholt.
Now, inmates are more worried about compliance with Rozier’s orders, including how they are tested and about following quarantine procedures.
At Swannanoa, the women who spoke to CPP said staff members, including the one who tested positive for COVID-19, wear masks and try to practice social distancing.
Rozier, who ruled that the prisons were out of compliance with his orders in July, wrote in a Dec. 11 order noting the defendants had “increased compliance with and responsiveness to this Court’s orders.”
At the same time, Rozier put a court liaison in place to oversee aspects of the state’s response to the pandemic, particularly to help the prisons process the backlog of people under consideration for programs that would decrease the number of people in the prisons.
“This court finds it necessary, based on the pernicious and present dangers associated with the COVID-19 pandemic, … to allow for early release of eligible individuals to the greatest and safest extent possible,” Rozier wrote in his order.
Specifically, he was concerned about prison closures and deaths. As of Tuesday night, 29 people in state prisons have died from COVID-19, according to DPS’ website.
In court, lawyers for the state argued prisons were already releasing people and the prison population is down to 30,000 people- the lowest it has been in years and within the range of “standard operating capacity,” which is a measure showing that the prisons are not “overcrowded.”
But even if the prison system has enough beds in nonpandemic times, large groups of people are still housed closely together in prisons the state cannot manage if it does not have the staff. The pandemic exacerbated chronic staff shortages, which contributed to the temporary closing of three prisons on Nov. 25.
As of Nov. 30, Commissioner of Prisons Todd Ishee told the state Senate Select Committee on Prison Safety that 319 staff members were out of work with COVID-19 and 1,560 staff members had become ill since March.
The closures mean there are now more people concentrated in fewer prisons. That goes against expert consensus that prisons should instead be spreading people out, according to Alison O. Jordan, a public health consultant from New York with expertise in jails and prisons.
“That’s a prescription for COVID spreading is what that is,” Jordan said. “Because now you have more people in closer quarters.”
Prisons need to do a number of interventions to keep the COVID-19 spread down, Jordan said, including maintaining distance, wearing masks, good hand-washing and frequent testing.
“Short of spreading out, then you would need to safely reduce the population the best you can so that you protect not just the incarcerated population but the surrounding communities where people will return and to where the staff who work in the facilities are returning,” Jordan said.
DPS efforts at reducing prison population
DPS says it is already reducing its prison population in two ways.
The first is through “extended limits of confinement,” or ELC, a program whereby people are still technically serving their prison sentences but are living at home.
Since April, DPS has released 776 on ELC. Sixty-two were brought back to prison for violations, and two escaped.
The plaintiffs suing the state argue that, compared to the overall prison population, the number released on ELC is so low as to be meaningless as a solution for reducing the prison population to a point where controlling the rapid spread of COVID-19 in prisons is possible. Several of those releases were already close to the end of their sentences.
The prisons are also moving people through the prison system slightly faster through a combination of earned credit programs, whereby people can earn time off their sentences for working or for good behavior.
DPS said it released 2,250 people using discretionary time credits since April. Typically, people can earn 60 days or fewer off their sentences, but it can be up to 100 days, DPS said.
That was the case for Lisa Phelps, who was in the women’s prison in Raleigh for just under six months on a probation violation. She earned 15 days off her sentence by working in the kitchen, she said, and was released Dec. 1.
“It was the greatest relief to just finally be led out of there, because they weren’t practicing safe quarantine, they weren’t they weren’t sanitizing their hands, they weren’t wearing their masks,” Phelps told CPP. “And I just felt safer being released to the public.”
On average, DPS released 2,000 people per month in the nine months since the pandemic began — 400 people more than 2019’s monthly average.
According to a September report from the Prison Policy Initiative, a nonprofit group that advocates from criminal justice reform, North Carolina tied with Arizona for the states with the smallest percentage of prison population reductions out of the 17 states for which data was available.
The plaintiffs suing the state argue DPS’ approach has been ineffective in reducing the prison population. For social distancing to be met in the prisons, people need to have 6 feet of space in between them, the lawyers have argued in court, and that is just not possible, especially in prison dorms.
Jeffrey Cobb is incarcerated at Bertie Correctional Institution and is in a dorm with 80 other people, he told CPP. The history of the pandemic in North Carolina has shown that COVID-19 spreads quickly in these kinds of large dorm environments.
For this reason, Rozier requested data from the state in June about how many people were grouped together in “cohorts” in each prison. In July he ordered the state to create a plan to reduce cohort size at several prisons.
For a while, few enough people were in Cobb’s Bertie dorm so they could sleep in every other bunk, he said, but recent transfers to the prison swelled the ranks again. The prison is also transferring people out of the higher-security section of the prison, which has single cells, Cobb said, to save those for people who need to be medically isolated.
Leah Kang, attorney for the American Civil Liberties Union of North Carolina, said the state still needs to decrease its prison population.
“It has been clear that the most effective relief that is needed right now is a reduction in the prison population, testing and screening for COVID-19, and then adequate quarantining and medical isolation,” Kang said.
New reforms fall short
In March, public health researchers at Duke University and UNC sent an open letter to Gov. Roy Cooper asking him to reduce the prison population and prepare for the COVID-19 pandemic to hit the state’s prisons.
The governor, a named defendant in his official capacity in the lawsuit NAACP v. Cooper, appears to have not followed those recommendations. He has not used his authority to grant clemency or pardons to let people out of prison, nor has he publicly directed the DPS secretary, who oversees the state prisons, to reduce the state’s prison population.
The reforms have instead been driven by litigation.
In the last week, Rozier ordered prison staff to be tested every two weeks and appointed a court liaison to oversee the prisons’ response to COVID-19.
But public health experts, including Jordan and Dr. Sandra Springer, an associate medical professor at Yale University, say staff testing should be done several times every week.
“If you could do frequent testing, which is sometimes upwards of two to three times a week, on every individual, and then … trace them, you could potentially reduce the likelihood of outbreaks happening,” Springer said. “So, that would be the ideal.”
Springer recognizes resources are limited, yet more frequent testing of inmates as well as staff is key to controlling the spread of the illness. Current DPS policy is to wait until people are showing symptoms before testing them for COVID-19, but by the time people are showing symptoms, they have already been infectious for up to 72 hours, Springer said.
“If you do detect somebody who had symptoms and that was your way of assessing and doing a test, then you’ve missed this period where … potential for transmission infection is significantly high,” Springer said.
Rozier’s other judicial reform, to appoint a court liaison who could help expedite prison reduction through the extended limits of confinement program, falls short of policy changes that could significantly decrease the prison population.
Finholt, the lawyer for N.C. Prisoner Legal Services, said he would like to see the state consider people with more serious sentences for release.
“I would much rather see them pay attention to folks who have really great records who have been in for a really long time, then draw an artificial line between violent and nonviolent crime, which is sometimes meaningful and sometimes not,” Finholt said.
At the moment, a blanket bar to release exists for anyone convicted of a violent crime. For Finholt, and for the plaintiff in the case, that distinction does not always make sense.
Dowell is currently a minimum-security inmate at Swannanoa and is serving a life sentence for second-degree murder. Incarcerated since 1992, she has a clean record with no infractions since March 2017. She will appear before the parole board soon.
Her lawyers argue Dowell and other people with similar records should be considered for release, especially since she has complicating health factors like high blood pressure, asthma and chronic obstructive pulmonary disease, or COPD.
People with less severe cases are also blocked from early release through the extended limits of confinement program. People close to release and serving time for convictions like robbery with a dangerous weapon should be considered, Finholt said, especially if they have preexisting medical conditions that put them at significant risk of serious illness or death.
“Nobody believes that if you commit robbery with a dangerous weapon, that’s it for you, you’ve got to be separated from society for the rest of your life,” Finholt said.
Unless DPS expands its criteria for releasing people, there is little indication that it will significantly reduce its prison population before the pandemic is over, creating conditions for many individuals to suffer from COVID-19 in the state’s prisons.
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