Inmates seeking compassionate release face laws not built for COVID-19
'Nobody built these things with a pandemic in mind'
Madeline Griffin is feeling the same sharp pain in her throat that she had in August 2016. That’s when authorities transferred her to a hospital from her cell at York Correctional Institution so a surgeon could remove cancer from her vocal cords. She’d been getting chemotherapy and radiation treatments when she was first admitted to the Niantic prison in July 2014; in the two years between her incarceration and surgery, the cancer spread from the space where her thyroid used to be into her head and neck.
With COVID-19 looming, Griffin is worried she doesn’t have that kind of time. Her last full-body scan — regular examinations are crucial for people like Griffin, with metastatic cancer — was in January 2017. She’s terrified the stabbing pain in her throat means the cancer has returned.
“I want to make sure I’m not dying,” Griffin said during a phone call from York. “How do I know I don’t have cancer again?”
Despite occasionally conflicting messages, officials have worked carefully to shrink the incarcerated population, mindful of overtaxing community resources already spread thin. The prison population is at historically low levels, and continues to decline.
But many like Griffin — those with pre-existing medical conditions who have family members willing to take them in — still remain incarcerated.
It is not supposed to be a death sentence.”
A growing number of these inmates, desperate not to die in prison, have turned to the courts, filing lawsuits or seeking furloughs to spare them from catching the novel coronavirus in a correctional facility. Their pleas underscore the lack of release options for those with underlying health issues, and the challenges an already-strained prison health care system faces in caring for those with medical needs during a pandemic.
The lawsuits also highlight a systemic problem — they apply only to the individuals named in each petition.
Griffin, a 49-year-old grandmother who has a number of underlying medical conditions in addition to cancer, including diabetes and hypertension, is one of those who has filed a federal lawsuit.
Paul Garlinghouse, her attorney, wrote in her habeas petition that the eldest of her five children is willing to give her a place to live and drive her to medical and probation appointments. He’s not asking a judge to simply end her sentence; he’s requesting she be transferred to supervised home confinement, even if it’s only temporary. Griffin is serving 12 years for burning down her mother’s house so they could collect the insurance money.
“It is not supposed to be a death sentence,” said Garlinghouse.
As of Wednesday, 478 inmates had contracted COVID-19. Six have died, one of whom was just two years older than Griffin. No one at York has contracted the virus yet, officials say.
Garlinghouse filed Griffin’s suit in federal court. By law, state habeas cases must be filed in the Superior Court for the Judicial District of Tolland, as Garlinghouse wrote in Griffin’s petition. But no courthouse in that judicial district is currently open.
He’s not the only attorney who thinks a federal lawsuit is his only option. Darcy McGraw, director of the Connecticut Innocence Project, a unit within the Division of Public Defender Services, plans on filing a state habeas petition for a client who was denied compassionate release, but she doesn’t expect it to go anywhere.
“I’m going to file something in state court under the understanding that nothing will happen,” she said. “So, then I can file in federal court and say, ‘I filed in state court and nothing happened.’”
The ACLU filed a federal lawsuit that would solve the issue posed by sick inmates having to file individual petitions to secure their release, said Dan Barrett, legal director of the ACLU of Connecticut. The class-action suit would cover large portions of the incarcerated population, including those age 50 or older and those who have medical conditions that put them at heightened risk of death due to COVID-19.
The state tried to get that class action lawsuit dismissed by arguing state court services, though consolidated, remain open. Assistant Attorney General Terrence M. O’Neill argued in a legal motion that the ACLU’s similar and since-dismissed state suit shows that state courts are able to process certain cases.
“The very fact that the same attorneys were able to file such an action in state court completely refutes any claim that the state courts are ‘closed,’” O’Neill wrote, claiming that the incarcerated plaintiffs could seek release through bail reduction, sentence modification, or writs of habeas corpus.
Judge Janet Bond Arterton disagreed. In a 26-page ruling denying the state’s motion to dismiss the class action, she said the “extraordinary circumstances” and “life and death consequences” of COVID-19 permit them to file in federal court, regardless of whether they have pursued all forms of relief in state courts.
“Plaintiffs have adequately demonstrated that the state court system is operating at such a diminished capacity that it may not be able to timely respond to a massive volume of emergency habeas petitions—a number potentially in the hundreds or thousands, given the size of the putative class—in the urgent manner that those petitions require,” Arterton said, allowing the case to continue.
On April 7, the Department of Correction began moving most inmates who test positive for COVID-19 to Northern Correctional Institution to protect the remainder of the prison population. But those at York, the state’s sole women’s prison, can’t be transferred to a men’s prison if they contract the virus.
They stay at York, where the population has fallen since the pandemic began. On the first day of March, there were 884 women incarcerated there. On May 6, there were 663. York’s population peaked on Jan. 30, 2003, when it held 1,494 women.
“We have space there, which obviously is important if need be, if we had to separate someone that is sick, and quarantine those that individual has been in contact with,” said DOC spokesperson Karen Martucci, noting that the department has been releasing inmates deemed “eligible and suitable” to transition to the community.
If the ACLU’s class-action approach is successful, many York inmates could end up benefitting, creating even more space in the women’s prison for officials to utilize should they need more quarantine units.
As of April 30, there were eight pregnant women incarcerated at York. The CDC says pregnant women have a higher risk of severe illness when infected with viruses similar to COVID-19.
Of the eight, two were pretrial and being held on $60,000 and $50,000 bonds for violating a protective order and assaulting a police or fire officer, respectively. Two were locked up for picking up new criminal charges while on parole. The pregnant women with convictions were serving time for a slew of charges, including manslaughter, conspiracy and credit card theft.
The incarcerated pregnant women would likely qualify for release should the federal judge ultimately rule in favor of the ACLU’s class action suit, Barrett said.
Griffin would likely benefit from the ACLU class action, too, thanks to her litany of comorbidities.
“Where is the line drawn if someone like her can’t get released?” asked Noel Rodriguez, Griffin’s son.
When laws don’t fit the times
Aside from filing lawsuits, another way inmates with health issues are seeking release is through applying for compassionate or medical parole.
To qualify for compassionate parole, inmates must have served half their sentence and be so physically or mentally debilitated because of their age or medical condition that they are physically incapable of presenting a danger to society. Medical parole is a similar form of release, except the disease must be terminal and there is no requirement on time served.
Connecticut’s parole options are extremely limited. They’re basically saying, ‘Until you get COVID and you’re dying from it, none of these mechanisms are available to you.’”
McGraw recently represented a 67-year-old man who has served 34 of his 60-year sentence, and who applied for compassionate release. She described him as a model incarcerated citizen – a mentor to fellow inmates. McGraw argued that his Hepatitis C made him vulnerable for serious illness or death should he contract COVID-19.
On April 30, McGraw received a response from Richard Sparaco, executive director of the Board of Pardons and Paroles, informing her that her client would not be granted compassionate release.
“Unfortunately, he does not meet the eligibility criteria outlined in the statute as he is not debilitated, incapacitated or infirmed as a result of his condition(s),” Sparaco wrote. “He is housed in general population and is caring for himself with limited involvement from medical staff.”
Sparaco previously told the CT Mirror his agency was prepared to review compassionate parole cases referred to them by the DOC. Records indicate between March 1 and May 1 the DOC referred a dozen people to the Board of Pardons and Paroles for compassionate parole, and six individuals for medical parole. Of those, the board has granted two people compassionate parole, and one person medical parole.
The board granted the same number of people such paroles over the same timeframe the previous year.
“Connecticut’s parole options are extremely limited,” said McGraw. “They’re basically saying, ‘Until you get COVID and you’re dying from it, none of these mechanisms are available to you.'”
Members of the public have sent the board 44 requests for compassionate parole since March 1. Of those, five met the eligibility criteria for review. The board has referred those cases to the DOC for a full medical report, Sparaco said in an email.
The mere threat of contracting the virus does not meet the narrow eligibility criteria required for an individual to be granted medical or compassionate parole, Sparaco said.
The board is wrestling with whether having COVID-19 would make an inmate eligible for medical parole. The majority of people in- and outside of prison who contract the virus eventually recover, so they could be incapacitated for a relatively short period of time before they recover and possibly threaten public safety.
“On the medical end, it would only qualify if the virus advances to such a degree that all of a sudden his prognosis is they’re not gonna make it,” Sparaco said. “These two statutory criteria were not drafted to handle a virus such as this.”
There are other means by which Gov. Ned Lamont and Department of Correction Commissioner Rollin Cook could temporarily remove people with serious medical conditions from correctional facilities while keeping them under state supervision. But, by and large, it doesn’t appear they’re utilizing them, said Barrett.
For instance, Cook can temporarily release inmates on funeral, medical and reentry furloughs. The medical furlough is for inmates who need to obtain medical services that are otherwise unavailable behind bars. They are issued for 15 days at a time, and can be renewed.
The state tracks the total combined number of furloughs issued each month and publishes it in its monthly indicator reports. Cook released 15 people on furloughs in March 2020, two fewer than in March 2019.
Martucci said the use of medical furlough is “very rare” because the department often sends sick inmates in need of care to a hospital.
Barrett said there are two reasons the release options available to inmates with medical conditions are insufficient for the challenges posed by COVID-19. First, there are political considerations. No one wants to be the person who lets someone out of prison who goes on to commit more crimes.
Nobody built these things with a pandemic in mind.”
Second, they’re not designed for large-scale relief.
“Nobody built these things with a pandemic in mind,” said Barrett.
Rodriguez has spoken with lawmakers and the DOC about his mother’s potential release from York. He and his siblings and nephew have protested outside the governor’s mansion, demanding he take more of a role in protecting incarcerated people from COVID-19. Sometimes, when he speaks to legislators, he doesn’t even mention his mother.
“When I’m talking to these people I’m really trying to push to have a mechanism in place that can be helpful to everyone,” Rodriguez said. “The goal is to show how inadequate the systems are that are in place.”
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