In March, the ACLU of Connecticut filed a lawsuit, McPherson v Lamont, on behalf of everyone incarcerated in Connecticut’s prison system, seeking to protect incarcerated people from COVID-19. On July 20th, the United States District Court approved a settlement of the lawsuit, to be in effect from July 20, 2020 until December 31, 2020. The settlement set a floor – not a ceiling – for what the Connecticut Department of Correction (DOC) and State of Connecticut had to do to limit the spread of COVID-19 in prisons and jails. The settlement fell short of requiring safe releases of incarcerated people to their loved ones, which is what we ultimately wanted and the thing that would most protect people from getting sick from COVID-19 inside. It did, however, require the DOC to take commonsense precautions that were critical for public health, such as providing incarcerated people with masks and requiring staff to wear them, and providing people with soap and the ability to clean and sanitize their environment. (You can catch up more on what the settlement required here).
On December 31, that settlement ends. The months under this settlement have unfortunately shown something we already knew: Govenor Lamont, the DOC, and the Attorney General’s office that represents the DOC in court cases, have not prioritized the lives and safety of incarcerated people during this pandemic.
We hoped that a court-approved settlement would change that, or at least provide more tools to hold the DOC accountable for people’s health and lives. Yet the DOC refused to comply even with legally mandated settlement requirements, including one of the most important: staff mask-wearing. We raised the alarm and brought reports of noncompliance – including consistent issues with DOC staff not wearing masks – to the DOC’s attorneys from the Attorney General’s office, the panel monitoring the settlement, and the Court.
The situation inside Connecticut’s prisons today continues to be critical, with hundreds of incarcerated people and staff sickened by COVID-19. This has been compounded by Governor Ned Lamont continuing to ignore his constitutional and moral responsibilities to safely release more people to stop the spread of COVID-19 in prisons and jails. As outbreaks inside become outbreaks on the outside, due to staff moving in and out of communities daily, the Governor’s failure to take appropriate measures to release incarcerated people has also threatened public health throughout our state.
The results of Lamont and the DOC’s inaction are clear, with cases rising during the second wave and five people dying from COVID-19 complications in DOC custody since November 18—including at least one who had already been approved for release. This is not where Connecticut should be.
It is not too late for Lamont or the DOC to take action to prevent further death and suffering. Governor Lamont has had the ability since March to issue an executive order requiring safely releasing certain incarcerated people to their families, and he needs to use that power now. While the settlement-required independent monitoring panel only issued one report, it contained a key warning that the DOC was not following appropriate physical distancing measures, a clear sign that Lamont needs to de-densify prisons and jails to prevent further harm. For its part, the DOC needs to do the things that it should have been doing all along: requiring staff to wear masks, correctly, at all times inside; truly providing incarcerated people with enough masks at all times; implementing all of the other public health and dignity requirements of the settlement; and more.
People who are incarcerated are people, with lives and health that matter, and people who love them. Because of systemic racism in the criminal legal system, more than 70 percent of people in Connecticut’s prisons and jails today are Black or Latinx, making the question of how our state treats incarcerated people a question of racial justice. And what happens to people who are incarcerated affects all of us, whether we know someone inside or not. It should be a no-brainer – from moral, legal, and public health standpoints – for Connecticut to protect incarcerated people from COVID-19. Families should not have to continue to protest and plead for Governor Lamont to prioritize their loved ones. We should never have had to file a lawsuit to begin with.
What happens now?
The McPherson settlement agreement ends today, meaning that all terms of it end, and ACLU lawyers will no longer represent class members. The class itself — all people incarcerated by Connecticut DOC from March 1 - December 31, 2020 — ceases to exist as a class in court. Beginning January 1, incarcerated people will be able to file new lawsuits and habeas petitions contesting COVID-19 prevention, treatment, and vaccine distribution inside Connecticut’s prisons. They can also continue to file damages suits for COVID-related injuries, just as they have been able to do throughout the time the settlement was in effect.
There is nothing preventing the DOC or Governor Lamont from following the requirements outlined by the settlement after the settlement ends. The end of the settlement, after all, does not mean the end of the DOC or Governor Lamont’s moral and constitutional responsibilities to incarcerated people’s health and wellbeing.
The ACLU of Connecticut will continue to join incarcerated people and their loved ones in advocating for the governor and legislature to create effective COVID prevention and treatment in prison; to prioritize incarcerated people for COVID vaccine access at the same time as all others in congregate living situations; and to maximize discretionary releases to prevent needless infections and outbreaks.
Our lawyers welcome hearing from people about conditions inside, because more information is critical for advocacy efforts. Because our lawyers are no longer representing the class members, however, they may not be able to respond to everyone (if you or your loved one have direct knowledge of conditions inside and want to inform our legal team, you can continue to reach us at prisoncovid [at] acluct.org or by voicemail at (860) 523-9146 x.6)
Why not extend the settlement?
In the end, it wasn’t possible to reach an agreement to extend the settlement in a way that most benefited incarcerated people.
It is important to remember that the McPherson settlement was negotiated in the early summer of 2020, when everyone knew less about how COVID spreads. Some things that science thought were important then have turned out to be less important, and some things that science wasn’t sure about have turned out to be critical (like wearing masks indoors at all times, even when more than six feet away from others). Extending the 2020 settlement agreement would have committed incarcerated people to terms that were important in early 2020, but might not be in 2021.
Things looked different in early summer 2020. A vaccine seemed far away. Testing was not as available, and the DOC had barely begun testing people in its custody. Now, healthcare workers are already starting to receive the vaccine, and the question of whether incarcerated people are given the option of accessing the vaccine in the early phases is critical. In no small part due to pressure from the lawsuit, the DOC is testing incarcerated people regularly. In the summer, the DOC was sending people with COVID symptoms to the notorious supermax, Northern Correctional Institute. Now, there is a dedicated unit in MacDougall-Walker for those who are symptomatic, and the DOC has new quarantining procedures. On the other hand, in the fall and winter, COVID prevention has taken the form of indefinite solitary confinement, with many people in custody locked down in cells for 23 hours a day (or more) for weeks or even months. The settlement did not reflect any of these new realities, which rose to the fore since July 2020.
A new settlement agreement period also would have prevented incarcerated people from filing certain kinds of COVID-related lawsuits going forward, including those that address these new realities. That was too high a price to ask incarcerated people to pay. (Incarcerated people have always been able to file monetary lawsuits for COVID injuries, also called “damages suits.” The McPherson settlement never affected those kinds of lawsuits.) Things are changing rapidly as 2021 approaches: Connecticut is experiencing a new, intense wave of COVID throughout the state and inside its prisons, and COVID vaccines are becoming available. Those two things could give rise to a need for new lawsuits by incarcerated people.
While the settlement left open the possibility of extending the agreement, an extension also would have required the agreement of all sides, meaning that incarcerated people would need to agree to it, as well as Governor Ned Lamont and Acting DOC Commissioner Angel Quiros (who serves at the discretion of the Governor), who are represented by Attorney General William Tong’s office.
We had hoped that the monitoring panel set up by the agreement would be allowed to continue its work in 2021: visiting DOC facilities, talking to staff and incarcerated people, and doing what it could to encourage the DOC to take adequate testing, quarantining, and sanitation measures to do the utmost possible to prevent transmission of COVID inside prisons. That panel includes four doctors with substantial infectious disease, critical care, and correctional health experience, as well as one correctional official, and was regularly speaking with the DOC throughout the settlement period. We asked for the monitoring panel to continue, but Governor Lamont, DOC Commissioner Quiros, and lawyers from Attorney General William Tong’s office were unwilling to let the panel continue working into 2021.
