Court rejects at least for now governments request to block Ohio prisoner release plan

Today the Supreme Court denied a request by the federal government to put a temporary hold on an order by a federal court that could lead to the release or transfer of over 800 inmates from a federal prison where nine inmates have died from COVID-19. The inmates victory, however, appeared to be mostly procedural and likely fleeting: The court explained that the government had not asked them to block the district courts most recent order, and it indicated that the government could return to the Supreme Court to seek a new stay if circumstances warrant. Moreover, three justices Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have granted the governments request.

Todays order came in a case filed last month by inmates at a low-security federal prison in Elkton, Ohio. The inmates argued that they face a disproportionately high risk of contracting COVID-19 because they are in such close proximity to other inmates and correctional staff that social distancing is virtually impossible. In an order issued on April 22, the district court instructed officials at the Bureau of Prisons to evaluate elderly and high-risk prisoners for transfer out of the Elkton facility, either through some form of early release (such as home confinement, compassionate release, parole or community supervision) or by moving them to another facility.

The inmates returned to the district court this month to enforce the April 22 order. They stressed that although the BOP had identified 837 inmates as elderly or high-risk, none of them had been released or moved yet: five were waiting for home confinement, while six others had been designated as potentially qualifying for home confinement. On May 19, finding that the BOP had been thumbing their nose at their authority to authorize home confinement, the district court ordered the government to make full use of the home confinement authority, and to reconsider inmates eligibility without using certain criteria such as the amount of time remaining on an inmates sentence as a categorical bar. The district court also ordered the government to act quickly on applications for compassionate release, and to explain by May 26 why any prisoners who are not eligible for release could not be transferred to another facility where social distancing is possible.

The government came to the Supreme Court last Wednesday, asking the justices to put the district courts April 22 order on hold while it appeals to the U.S. Court of Appeals for the 6th Circuit and, if needed, the Supreme Court. In a filing by U.S. Solicitor General Noel Francisco, the government argued that allowing an order that would require the release or transfer of over 800 prisoners could both jeopardize public safety and interfere in the management of federal prisons.

In their brief opposing the stay of the district courts order, the inmates emphasized that as of May 19, there were 135 active COVID-19 cases among the inmates at the Elkton prison, plus eight active cases among staff members. The only way to lower the risk of infection for inmates and staff is to transfer inmates out of the facility, as the attorney general himself has recognized, they argued.

The inmates stressed that, despite the governments contrary characterization, the district courts May 19 order didnt mandate the release or transfer of any inmates. Instead, it simply instructed the BOP to explain why, despite the April 22 order, no one had been released or transferred yet. Moreover, they noted, although the governments real complaint is with the May 19 order, it hadnt actually appealed much less asked any court to block that order. In any event, they continued, a stay of the April 22 order would be inappropriate because the inmates are likely to win on their claim that conditions at Elkton violate the Eighth Amendments ban on cruel and unusual punishment: By housing them in close quarters and refusing to take available steps to meaningfully reduce that risk, the Government is continuing to confine prisoners at Elkton in a manner that poses a known, heightened risk of infection[,] suffering and death from COVID-19.

In the one-page order today, the court explained that the government was seeking a stay only of the District Courts April 22 preliminary injunction, even though the district court had issued a new order enforcing the preliminary injunction and imposing additional measures on May 19. Particularly because the government had neither appealed the May 19 order nor asked the 6th Circuit to put it on hold, the court continued, the Supreme Court would not now block the April 22 injunction, but the government could return to seek a new stay if circumstances warrant.

This post was originally published at Howe on the Court.