In the Press
Thursday, August 13, 2020Personal contact could be next casualty in U.S.-China tech feud Politico
Tuesday, August 11, 2020Anthony P. Lester – A Commentary by Harold Hongju Koh EJIL: Talk!
Tuesday, August 11, 2020The Second Oxford Statement on International Law Protections of the Healthcare Sector During Covid-19: Safeguarding Vaccine Research Just Security
Tuesday, August 11, 2020How to end America's politics of hate and polarization USA Today
Thursday, May 28, 2020
Liman Center Presses for Health and Safety in Prisons During Pandemic
Lawyers urging the courts to protect the health and safety of prisoners and staff by preventing the spread of COVID-19 in prisons are making their cases with the knowledge and advocacy of experts affiliated with the Arthur Liman Center for Public Interest Law. Dr. Jaimie Meyer, a physician who is one of the Liman Center’s Affiliated Faculty members, has provided a critical public health perspective in various cases. Judith Resnik, Arthur Liman Professor of Law and the Center’s Founding Director, contributed insightful legal analysis that has been provided to judges in many different jurisdictions. As a result of the Liman Center’s network, more than 150 current and former Liman fellows have been drawing on these perspectives as they represent detainees around the country.
A CRITICAL DECLARATION
In March, just two weeks after the first confirmed COVID-19 case in New York State, Meyer wrote a declaration for a lawsuit seeking emergency relief for people detained by U.S. Immigration and Customs Enforcement (ICE) in New York City. Meyer, an Assistant Professor of Medicine at Yale School of Medicine and an expert in infectious diseases within jails and prisons, has worked with the Liman Center on research and advocacy related to incarcerated women.
In her declaration, Meyer wrote that jails and prisons are “dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community.” Meyer emphasized that the risk extends beyond prisons, writing, “Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. . . . Prison health is public health."
Meyer recommended immediately reducing the number of people held in prisons to prevent the spread of the coronavirus, adding “The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks.”
A federal court ruled in late March that ICE must end what the lawsuit described as a blanket no-release policy and must promptly evaluate people in detention for release. The opinion and order cited Meyer’s declaration. The judge invoked Meyer’s statement that infectious disease poses a significantly higher risk in jails and prisons than in the general community. The court further noted that Meyer had explained that the risk is even greater in ICE facilities because “delays in access to care that already exist in normal circumstances will only become worse during an outbreak.”
Lawyers have since submitted Meyer’s declaration in a wide range of cases. Many lawsuits have been on behalf of detainees in various settings: state prisons, federal prisons, and ICE detention centers. The declaration has also been used in a lawsuit on behalf of a corrections officers’ union for a county jail, a case that underscores the risk of coronavirus to all who live and who work in prisons. Many of these cases were brought by former Liman Fellows and by other former Yale Law School students, including Matthew Vogel ’13, Sirine Shebaya ’12, Thomas Scott-Railton ’18, and Katie Chamblee-Ryan ’12.
A (ONCE) LITTLE-KNOWN LEGAL REMEDY
A class action lawsuit was filed in April against the Federal Correctional Institution in Danbury, Connecticut by a Yale Law School clinic and other partners to protect some 1,000 women and men incarcerated there during an alarming COVID-19 outbreak. The lawsuit not only made use of Meyer’s declaration, but also included a declaration on the role of courts by Professor Resnik. In May, a U.S. District Court ruled that officials there must identify prisoners at higher risk of COVID-19 complications and enact a plan quickly to review their requests for home confinement or compassionate release. The Danbury case has several connections to the Liman Center. The lawsuit was brought by a group that includes Yale Law School Clinical Associate Professor Marisol Orihuela ’08, a former Liman fellow who also directs the Criminal Justice Advocacy Clinic, and Sarah Russell ’02, a professor at Quinnipiac University School of Law and former director of the Liman Center.
Resnik’s declaration outlines the authority of the courts to protect the health and safety of prisoners as prisons emerged as COVID-19 hotspots. Her statement was first filed in April for a case about an Illinois prison. In the declaration, Resnik described the temporary remedy of enlargement, which was then not well known. The term refers to expanding or “enlarging” the place of an incarcerated person’s custody from a particular prison to another setting, such as home, a hospital, or a halfway house. Unlike release or bail, a person granted enlargement remains in custody while not in prison. To document the use of this remedy, Resnik compiled examples with the help of two law students, Kelsey Stimson ’20 of Yale Law School and Ally Daniels ’21 of Stanford Law School.
“Given that the provisional remedy of enlargement was not regularly discussed in reported decisions or in academic analyses I realized it was important to bring it to the fore,” Resnik explained.
Resnik encountered the concept of enlargement decades ago while teaching in Yale Law School’s clinical program and representing a prisoner contesting his parole recession at the Federal Correctional Institution in Danbury. This remedy has new relevance as the coronavirus raises legal questions such as whether prison sentences that were lawful when imposed are still constitutional when they put prisoners at risk of illness or death. While courts consider the issues raised by these lawsuits, enlargement can enable judges to provide immediate, temporary relief.
“Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges explore a myriad of complex legal questions,” Resnik wrote.
The court did not ultimately provide that relief in the Illinois case for which Resnik wrote the declaration originally. However, later in April, a federal court in Ohio cited the declaration and ordered officials to identify and grant enlargement to medically vulnerable prisoners at a federal prison where 70 percent of people held tested positive for COVID-19. That decision has since been cited by many other courts. In a subsequent ruling, the court ordered the prison to comply with its previous order after finding that the prison “made only minimal effort to get at-risk individuals out of harm’s way.” Federal prison officials sought to block that order, but lawyers for the prisoners asked the Supreme Court to deny that request. On May 26, the Supreme Court declined the federal government’s request to block the order, which means that the order to move prisoners stands.
Liman Center affiliates who represent people detained in other parts of the country are also using the enlargement argument to help their clients. Senior Liman Fellow in Residence Laura Fernandez ’02 is part of the legal team suing the state of Arkansas over inadequate measures to prevent COVID-19 transmission in its prisons. The prisoners’ lawyers urged a court to follow the lead of the Ohio district court and grant enlargement to a group of prisoners, some of whom are in a facility where the number of people testing positive jumped from one to 600 in nine days. The court denied the request for preliminary relief in a ruling last week and the case continues.
In these last ten weeks, as this unprecedented health risk emerged and spread, the network fostered by the Liman Center has been able to provide guidance of a variety of kinds and connect experts in health and law with lawyers working to limit the harms of COVID.
“This is one example of the many ways in which Liman Center-affiliated faculty and fellows are responding to make as many people as safe as possible under circumstances that are so challenging,” said Resnik.