Trump judges ignore death and sickness in prisons across the nation

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Covid in ICE detention

Two Trump judges overturned a lower court order requiring ICE to take steps to protect vulnerable detained immigrants at high risk of contracting and dying from Covid-19. Central California District Judge Jesus Bernal, an Obama appointee, ruled last year that immigrants were likely to succeed in their class-action lawsuit against ICE alleging the agency has shown “medical indifference” and has put them at “substantial risk of harm.” Bernal ordered immigration authorities to begin considering for release all detained immigrants at higher risk of complications from Covid. The court based its decision in part on testimony about unsanitary conditions in ICE facilities last year (pdf):

Al Otro Lado observed guards standing in groups in close proximity, and detainees report to the organization that guards did not wear gloves or masks in early to mid March [2020]. Detainees clean most of the facility and do not have masks themselves, and report a shortage of cleaning supplies. One Adelanto detainee, a sixty-three-year-old asylum seeker who is not subject to mandatory detention told his attorney on March 20, 2020 that he was confined with about 80 detainees…

[At Aurora Contract Detention Facility] Up to eighty people live in a dorm with a maximum capacity of eighty-two. The dorm consists of four- to eight-person cells, where it is “impossible to stay away from other people.” Detainees do not have access to hand sanitizer, have not been tested for COVID-19, have no access to masks, and have not changed cleaning procedures…According to another detainee’s report, the only guaranteed way to get bar soap is to buy it for $3 at commissary.

Then, last month, Trump Ninth Circuit judges Daniel Bress and Eric Miller threw out Bernal’s order that ICE release those at high risk of contracting severe Covid, calling it “overbroad” in its national scope.

Judge Marsha Berzon (Clinton appointee) dissented (pdf):

With regard to the underlying finding regarding the level of risk—again, an essential aspect of determining whether any failure to cabin that risk was “reckless”—the district court found that 15% of subclass members would die if they contracted COVID-19, which was significantly more likely while they remained detained…

I am convinced that the district court did not err in determining that circumstances were potentially life-threatening for subclass members; that issuing an injunction would be in the public interest; and that Plaintiffs raised serious questions on the merits of their reckless disregard claim in light of these facts. The majority is nonetheless alarmed by the modest, deferential, preliminary injunction. Contrary to the majority’s suggestion, the district court’s remedy does not place all federal detention facilities under its control nor purport to set policy. The injunction directs ICE to craft, implement, and enforce its own policies, adequate to meet the needs of the medically vulnerable members of the Plaintiff subclasses

Private prison ban

Two Trump judges temporarily blocked California’s law phasing out all federally-contracted private, for-profit, immigration detention facilities in the state. The law in question, A.B. 32, was signed into law in 2019 and requires the closing of all private detention centers by 2028. The Trump administration and GEO Group, a company that operates two private immigration detention centers in California, sued to challenge the rule. The Biden administration opted to continue the challenge despite campaign promises by Biden that he would close such prisons.

Ninth Circuit Judges Kenneth Lee and Bridget Bade ruled that A.B. 32 impeded the federal government’s historically “broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities.” Further (pdf): “AB 32 facially discriminates against the federal government. California created a blanket prohibition and then exempted large swaths of state contractors in line with its own preferences. Meanwhile, it provided no comparable exceptions for the federal government.”

Judge Mary Murguia, an Obama appointee, dissented:

Even if Congress has not prevented private immigration detention, Congress certainly has not clearly authorized such detention either… At bottom, the collage of statutes and regulations allowing the Secretary to enter into contracts and other agreements for detention of noncitizens says nothing about private companies like GEO, so there is nothing expressing the sort of “clear and manifest” intent necessary to prevent the operation of AB 32’s general prohibition on private detention…

The district court did not err in determining that California’s AB 32, which prohibits the operation of private detention centers to protect detainees within the state’s borders, is entitled to the presumption against preemption as a regulation of health and safety within the state’s historic police powers, and that Congress did not express any “clear and manifest” intent to overcome that presumption with respect to the ICE facilities at issue in this case…

Nor did the district court err in determining that AB 32, a law that applies only to the state department of corrections and private parties, neither directly regulates nor discriminates against the federal government in violation of intergovernmental immunity. At the end of the day, AB 32 enacts a prohibition on “a person” operating a “private detention facility”; it does not prohibit the federal government from doing anything.

Death in prison

Two 6th Circuit Trump judges and one G.W. Bush judge unanimously reversed a lower court decision and granted Kentucky prison officials qualified immunity over the death of a man under their care. When Marc Crawford was arrested in 2017, his wife informed officers that he suffered from acute lung cancer and required “immediate medical attention.” The officers told her that they would transport Marc to the hospital, but instead, they took him to jail (pdf):

On May 30, 2017, Defendant Jones, an MCDC correctional officer, twice requested that the MCDC medical staff attend to Mr. Crawford, but Jones was told that Mr. Crawford would not be transported to the hospital. The following day, May 31, 2017, Crawford was transported to Kentucky State Reformatory (“KSR”). He presented with an elevated heart rate, difficulty breathing, and a painfully swollen leg, but KSR medical staff refused to treat him, ignored his complaints, and refused to provide him with his prescribed medications and breathing treatments. The medical staff also refused to provide Mr. Crawford with his chemotherapy treatments until June 20, 2017, at which time they scheduled an appointment with an oncologist for July 5, 2017. Mr. Crawford passed away on June 24, 2017.

Ms. Crawford sued, arguing her late husband’s medical records demonstrate that he “was a victim of a health care model utilized in Kentucky’s correctional facilities that runs counter to national standards and falls far short of meeting inmates’ critical medical needs.” The District Court judge—a Trump appointee, herself—denied the correctional department’s motion to dismiss the lawsuit. They appealed.

Last month, fellow Trump judges John Nalbandian and Joan Larsen joined with G.W. Bush appointee Richard Griffin to grant James Erwin, then Kentucky’s Acting Commissioner of the Department of Corrections, qualified immunity (pdf). The trio went against 6th Circuit precedent in dismissing the lawsuit without any discovery, claiming it is the court’s responsibility to help defendants “avoid pre-trial discovery where the lawsuit is ‘insubstantial.’”

  • The Kentucky corrections system contracts medical treatment to Correct Care Solutions/Wellpath, a private company based in Tennessee that is the nation’s largest for-profit provider of health care to correctional facilities. The company has been sued at least 140 times (as of 2017) and blamed for over 70 (as of 2019). “Across the country, the same themes have been found: doctors and nurses have failed to diagnose and monitor life-threatening illnesses and chronic diseases. CCS employees have denied urgent emergency room transfers. They have failed to spot or treat serious psychiatric disorders and have allowed common infections and conditions to become fatal.”

Religious rights in prison

Two Trump judges ruled that state prisons can limit the length of inmates’ facial hair despite protections under the Religious Land Use and Institutionalized Persons Act (RLUIPA), reversing a lower court opinion. Georgia prisoner Lester Smith filed suit against the Georgia Department of Corrections (GDOC) over its grooming policy that prohibits inmates from growing facial hair over a half-inch in length. According to Smith, the policy “placed a substantial burden on his religious exercise because as a Muslim he sought to grow an untrimmed beard.” The District Court found that Smith should be allowed to grow a three-inch beard, but neither party agreed and appealed.

RLUIPA provides that the government may not “impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.”

The state argued that even the “less restrictive alternative” of a three-inch beard still presented a significant security concern. Eleventh Circuit Judges Elizabeth Branch and Kevin Newsom, both appointed by Trump, agreed.

Judge Beverly Martin (Obama appointee) dissented (pdf):

GDOC has not shown how it is different from prison systems that now successfully accommodate untrimmed beards. In Holt, the Supreme Court made clear that “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course.” Here, the District Court found that 37 states, the District of Columbia, and the BOP allow prisoners to grow beards “without any length restriction.” Although GDOC argued at trial that “its prisons are different because they house a large number of more violent inmates and they don’t have the same staff ratios and resources to accommodate beards,” it offered no meaningful evidence to support that factual assertion. In other words, GDOC offered arguments—“mere say-so”—but not evidence…

GDOC is required to do more than articulate mere arguments for why Georgia is uniquely unable to manage untrimmed beards. But that is all it did. Even so, the majority allows GDOC to forbid prisoners from following the tenets of their religion requiring untrimmed beards. I fear the majority opinion renders the Supreme Court’s command in Holt meaningless, such that prisons in Alabama, Georgia, and Florida can now unjustifiably deny prisoners religious freedoms they would enjoy almost everywhere else in the country…

Mr. Smith is sentenced to spend the rest of his life behind bars. As a result of today’s decision, he will live out his life in a manner that fundamentally violates the tenets of his religious beliefs. This profoundly flawed outcome is all the more tragic because it relies on little more than speculation offered by his jailers about the problems untrimmed beards could cause. If he were in almost any other facility in our country, Mr. Smith would not be forced to live this way. But because he is incarcerated within our Circuit, he has no relief for this egregious violation of his religious rights