Vets Clinic Files Suit On Behalf of 80-Year-Old Incarcerated Disabled Veteran

An 80-year-old disabled former Marine and Navy sailor whom Connecticut has already approved for community release from Osborn Correctional Institution, filed a petition on April 22, 2020 for a writ of habeas corpus and emergency relief in U.S. District Court. David Terwilliger is being represented by the Veterans Legal Services Clinic at Yale Law School.

As 308 incarcerated people and 222 staff members in Connecticut prisons test positive for COVID-19, the petition alleges that Terwilliger’s continued confinement violates his rights under the Eighth Amendment and the Americans with Disabilities Act.

“I am terrified that my father will get infected and die before we have a chance to ever see him again,” said Mary DeSalvo, Terwilliger’s daughter, who could drive Terwilliger directly from prison to her home in Cataula, Georgia upon his release. “My father is an ordained minister. He just wants to spend his remaining years living a spiritual life and growing a vegetable garden. We’re begging the court to show him mercy and grant him a second chance with us at a peaceful life.”

Terwilliger is at high-risk of severe COVID-19 due to his advanced age and history of heart attacks, strokes, labored breathing, pleurisy of the lungs, hearing loss, and degenerative joint disease. On April 7, Terwilliger was approved for early community release from his 20 year-sentence by the Connecticut Department of Correction (CDOC). He has been incarcerated since 2003, when he was arrested and charged with manslaughter after a tragic dispute with his son-in-law.

“Prisons are powder kegs for this virus, and it’s only a matter of time before our client is infected,” said Arjun Mody ’20, a student in the Veterans Legal Services Clinic. “As an elderly individual with underlying health conditions, Mr. Terwilliger’s life is in grave danger. CDOC must release him to his family without delay, before his incarceration becomes a death sentence.”

Due to the cramped conditions of confinement in prisons, incarcerated people are generally unable to self-isolate and escape the virus: four out of 10 of the largest COVID-19 clusters in the nation are in correctional facilities. The overall case-fatality rate (CFR) for individuals aged 80 years old, like Terwilliger, is around 14.8 percent. At any age, individuals with certain co-morbidities, such as Terwilliger’s history of cardiovascular disease and lung problems, are at high risk for death, according to the clinic. On April 13, the first incarcerated individual in Connecticut died from the virus. The individual was serving just a two-year sentence and had already been approved for release.

“My grandfather spent over two decades serving his country honorably,” said Michelle Allen, Terwilliger’s granddaughter, who also is a resident of Cataula. “I know he has a complicated past, but he’s served his time. He was a wonderful father and grandfather — we built a playhouse together and he would tell me Bible stories. I want him to have an opportunity to build a playhouse with his great-grandchildren, and tell them those same Bible stories. He doesn’t deserve to die alone.”

Terwilliger enlisted in 1957 in the United States Marines Corps, serving until his honorable discharge in 1963. In 1973, Mr. Terwilliger joined the U.S. Navy, where he then completed over 20 years in active duty service until his retirement in 1992. During his time, he received numerous Good Conduct Medals and was injured in Cuba over the course of his service. He has two children, three grandchildren, and three great-grandchildren. Due to his veteran status, he will be able to seek VA healthcare in Georgia without inconveniencing the Connecticut healthcare or prison system.

“My father lives with a cellmate, and it’s impossible for him to self-isolate in prison,” said David Terwilliger, Jr., Mr. Terwilliger’s son and a resident of Tarpon Springs, Florida. “It’s not a matter of if he gets this virus, but when. We are asking the court to save my father’s life. Please. We love him so much.”

In general, the Connecticut prison system has been criticized for not locking down movement within the facility quickly enough, leading to the exponential spread of the virus. Prison healthcare systems are not well-equipped to handle a flood of seriously ill patients. Seriously ill incarcerated individuals are then transported to community hospitals, burdening Connecticut’s already overwhelmed hospital system, members of the clinic said.

“Under the ADA, Connecticut must reasonably accommodate disabled individuals like Mr. Terwilliger and protect him from this lethal virus,” said Casey Smith ’20. “CDOC’s botched response proves that the state cannot adequately protect our client while he is in custody. Our client and our communities will be much safer if Mr. Terwilliger stays healthy and away from Connecticut’s strained hospital system.”

“It is by definition cruel and unusual punishment to force Mr. Terwilliger to die in prison because of this virus,” added Cara Newlon ’21. “He is at the end of his sentence, especially vulnerable to COVID-19, and he has a loving family and home. He is the perfect candidate for release.”

Interviews with Terwilliger’s representatives are available upon request. A team of law students at Yale’s Veterans Legal Services Clinic, part of the Jerome N. Frank Legal Services Organization at Yale Law School, represents Terwilliger, including: Jade Ford ’20, Arjun Mody ’20, Kayla Morin ’20, Cara Newlon ’21, Molly Petchenik ’21, Leah Samuel ’22, Blake Shultz ’21, and Casey Smith ’22.