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'It Has Been Life-Threatening': Lawsuits Detail COVID Conditions, Question Why More Prisoners Aren't Released Amid Virus Surge

(Jesse Costa/WBUR)
(Jesse Costa/WBUR)

Two lawsuits filed in the past week allege that Massachusetts correction officials are endangering prisoners and staff during the pandemic, refusing to take steps that would tamp down infections and protect communities outside the prison walls.

Both suits say the current outbreaks in correctional facilities could have been avoided if more prisoners were released.

"In the past six weeks over 1,000 prisoners have been confirmed infected, over two thirds of the total infections to date. Five incarcerated people have died in the past month," reads the preliminary injunction filed Wednesday by Prisoners Legal Services of Massachusetts (PLSMA). "All the measures DOC has put in place to control the spread of infection, such as lockdowns, mask use, and disinfection, have failed."

The PLSMA emergency motion names as defendants Massachusetts Department of Correction commissioner Carol Mici, Parole Board Chair Gloriann Moroney and Executive Office of Public Safety and Security Secretary Thomas Turco.

The motion contains declarations from almost three dozen people in custody at prisons around the state. Every prisoner says the effects of the months-long pandemic-related lockdowns have exacerbated tensions and harmed their physical and mental health. Some are serving long sentences, while others are in custody on technical probation violations, like failing a drug test.

One prisoner who has been granted parole cannot take the next step and move to a pre-release facility because of the pandemic.

All the prisoners' declarations describe recent COVID-19 outbreaks in prisons and some harsh living conditions.

Alan Gaudreau, 58, was due to be released from MCI-Norfolk in February 2021. But he tested positive for the virus last month and was placed in the prison quarantine unit.

"When I was there, there were about 76 of us in the dormitory," Gaudreau's declaration reads. "People were vomiting and throwing up blood. But we were expected to do all the cleaning ourselves and we had no laundry service until we fought for it. The bathrooms were dirty and in complete disrepair. Of the nine sinks, five were broken and three were clogged — one from a guy throwing up blood."

The prisoners also say that any programming has been virtually eliminated and medical and mental health care is restricted — or in some cases nonexistent.

"People were vomiting and throwing up blood ... The bathrooms were dirty and in complete disrepair. Of the nine sinks, five were broken and three were clogged -- one from a guy throwing up blood."

Alan Gaudreau, incarcerated at MCI-Norfolk

Joseph Palmisano, 32 and incarcerated at Old Colony Correctional Center, said he has tried to kill himself.

"The most difficult thing about the pandemic lockdown has been the excruciating isolation, combined with nothing to do," Palmisano said in his declaration. "Being stuck in my cell, stuck in my head, stuck in a small space with one other person for 21 hours a day has really messed with my head. My mental health has deteriorated so much that it has been life-threatening. I have attempted suicide twice in the last four months, and as a result was hospitalized twice for 30 day evaluations."

The main request in the emergency motion is that the state improve social distancing in correctional facilities by either moving detainees or taking steps to reduce the prison population through methods like home confinement, furloughs and medical parole. Some prisoners wrote that their requests for such programs have been denied.

Emmett Muldoon, a 64-year-old prisoner at MCI-Norfolk, wrote that he is at a higher risk of complications if he contracts COVID-19 because of his underlying health issues, including diabetes, multiple sclerosis and congestive heart failure.

Muldoon wrote that he often talked about the possibility of medical parole with another prisoner, 76-year-old Milton Rice, who died in a local hospital last month, a day after being granted medical parole.

"All of a sudden, he got ill with COVID and passed away within six or seven days," Muldoon wrote. "It made me understand that this stuff is all around me in my housing unit."

Rice's attorneys allege that the Department of Correction granted medical parole only once it became clear that Rice was gravely ill and to prevent his death from being reported as a COVID-related prison death. The state medical parole law does not allow for prisoners to be released if they might contract the virus, but only if they are terminally ill.

The emergency motion asks that the risks of COVID-19 be considered in medical parole requests.

"Being stuck in my cell, stuck in my head, stuck in a small space with one other person for 21 hours a day has really messed with my head. ... I have attempted suicide twice in the last four months."

Joseph Palmisano, incarcerated at Old Colony Correctional Center

The prisoners also write that the pandemic has resulted in the elimination of programming like educational classes, job training and religious services. And it has limited on ways to earn "good time" to reduce their sentences. The suit asks that prisoners within three months of completing their sentences be awarded enough "good time" for release.

Willie Dortch, 48, incarcerated at MCI-Concord, wrote that he was granted parole in February of 2019 but his parole was rescinded when a friend dropped off a pair of shoes at his work release program. Dortch was then moved to Concord, where he contracted the virus and was hospitalized at Emerson Hospital for a week.

"Even though I was released from the hospital over two weeks ago, I am not back to normal," Dortch wrote. "I have frequent pain in my chest and sides. My lung capacity is very small and I continue to have difficulty breathing. I am very concerned about the long-term impacts of COVID-19 on my health. If I had been granted parole when I filed my motion to reconsider parole revocation, I believe that I would have been able to protect myself from the virus."

The suit also says many facilities are understaffed because correctional staff are ill. The correction officers' union says it is not able to comment without permission from the DOC.

As of Wednesday, there were 183 active cases of the virus reported among prisoners and more than 180 cases among correction officers.

The DOC says it does not comment on pending litigation. It has defended its handling of the virus behind bars and says it has tested tens of thousands of prisoners since the pandemic began and has improved the cleanliness of its facilities.

The second lawsuit focuses on how Massachusetts jails are dealing with the virus. The petition alleges that state houses of correction, run by county sheriffs, are not routinely testing detainees and staff and are holding more people pre-trial than they were before the pandemic began.

"Nine months since the governor declared a state of emergency, and as
Massachusetts braces for a deadly holiday season, the record in this case establishes that the houses of correction still are not undertaking two essential steps to mitigate the threat of COVID-19 in communal living environments: routine, comprehensive COVID-19 testing and meaningful population reductions," the amended petition reads.

The petition was filed with the state Supreme Judicial Court by the state public defender agency — the Committee for Public Counsel Services — the Massachusetts Association of Criminal Defense Lawyers and the American Civil Liberties Union of Massachusetts.

It amends the litigation filed in March saying that because more is now known about the coronavirus and its spread, jails should be required to test more and should make efforts to reduce their populations through programs such as home confinement and pre-trial diversion.

"As the commonwealth enters the deadliest phase of the pandemic so far, more action is required to protect the health of incarcerated people, correctional staff and community members," ACLU legal director Matthew Segal said. "Correction officials and other leaders must act now to reduce incarceration levels and increase testing so that more people are alive to receive the vaccine when it becomes available.”

The petition says that no county jail has conducted routine, comprehensive testing of non-symptomatic incarcerated people or staff on a regular basis. Coronavirus testing in seven counties — Barnstable, Berkshire, Bristol, Middlesex, Norfolk, Suffolk and Worcester — has been particularly infrequent, the complaint says. Barnstable has not tested any incarcerated individuals since mid-October, and Bristol, Worcester and Norfolk have tested fewer than 70 prisoners since September, the petitioners say.

All state jails and prisons are required to file weekly reports — detailing COVID testing of prisoners and staff and the rate of positive tests — with the special master appointed by the SJC. The attorneys allege that they requested more testing information from sheriffs during meetings with the special master, but they have not been provided.

"Petitioners also requested written testing policies and procedures from the HOCs," the petition reads. "After the sheriffs’ designated representative informed the special master they would not provide these protocols, petitioners sent public records requests to each HOC in the last week of October. As of this filing, four had not yet produced testing protocol documents."

Just weeks into the pandemic, in an April 3 ruling, the SJC appointed the special master to monitor the virus behind bars and determine if further action was warranted. The high court urged the state to take other steps to reduce the prison population.

The advocates says while there was a decline in the number of people incarcerated early on in the pandemic, the jails have not reduced their incarcerated populations by using programs such as home confinement. It also says the number of people held pre-trial is higher now than it was in the spring .

"The incarcerated population in four counties is now at least 92% of the population at the start of reporting, and the overall pretrial population now exceeds the population on April 3, 2020," the petition says.

The Massachusetts Sheriffs' Association did not respond to requests for comment.

Jails and prisons are in the first phase of the state's vaccine rollout plan. It's widely expected that vaccines may be distributed in jails starting in January and given to both detainees and correctional workers. At this point there are few details as to exactly when and how that might be done.

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Deborah Becker Twitter Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.

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