United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-02094

Money et al v. Jeffreys Assigned to: Honorable John F. Kness Cause: 28:2254 Petition for Writ of Habeas Corpus (State)

Date Filed: 04/02/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff James Money

represented by Jennifer Soble Illinois Prison Project Suite 1056 53 W. Jackson Suite 660 Chicago, IL 60604 312-324-4463 Email: jennifer@illinoisprisonproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sheila A Bedi Roderick Macarthur Justice Center 375 E. Chicago Avenue Chicago, IL 60611 (312) 503-2492 Email: sheila.bedi@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanessa Del Valle Roderick And Solange Macarthur Justice Center Northwestern University School Of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 Email: vanessa.delvalle@law.northwestern.edu LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Alan S. Mills Uptown People's Law Center 4413 North Sheridan Chicago, IL 60646 (773) 769-1411 Email: alan@uplcchicago.org ATTORNEY TO BE NOTICED
Amanda C Antholt Equip For Equality 20 N. Michigan Avenue Suite 300 Chicago, IL 60602 (312) -895-7330 Email: amanda@equipforequality.org ATTORNEY TO BE NOTICED
Elizabeth N. Mazur HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 W. Madison, Suite 4000 Chicago, IL 60602 312.604.2726 Email: emazur@hsplegal.com TERMINATED: 06/16/2020
Nicole Rae Schult Uptown People's Law Center 4413 N Sheridan Chicago, IL 60640 (773) 769-1411 Email: nicole@uplcchicago.org ATTORNEY TO BE NOTICED
Samantha Reed Equip For Equality 20 N. Michigan Ave Suite 300 Chicago, IL 60602 (312) 895-7307 Email: samantha@equipforequality.org TERMINATED: 08/11/2020
Sarah Copeland Grady

Plaintiff William Richard

Loevy & Loevy 311 N. Aberdeen Street 3rd Floor Chicago, IL 60607 (312) 243-5900 Email: sarah@loevy.com ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady

Plaintiff Gerald Reed
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED

Amber Watters
Plaintiff Tewkunzi Green

represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi

Plaintiff Danny Labosette

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address)

Plaintiff Carl Reed

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carl "Tay Tay" Tate

Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur

Plaintiff Patrice Daniels

(See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Anthony Rodesky

Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer Soble (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheila A Bedi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanessa Del Valle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan S. Mills (See above for address) ATTORNEY TO BE NOTICED
Amanda C Antholt (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N. Mazur (See above for address) TERMINATED: 06/16/2020
Nicole Rae Schult (See above for address) ATTORNEY TO BE NOTICED
Samantha Reed (See above for address) TERMINATED: 08/11/2020
Sarah Copeland Grady

(See above for address) ATTORNEY TO BE NOTICED

V. Defendant Director of IDOC Rob Jeffreys
Intervenor Plaintiff Romale Bussell Service List

represented by Gopi Kashyap Illinois Attorney General's Office (100 West Randolph) 100 West Randolph Street 13th Floor Chicago, IL 60601 312 814 4684 Email: gkashyap@atg.state.il.us ATTORNEY TO BE NOTICED
Katherine Marie Doersch Illinois Attorney General's Office 100 West Randolph Street 12th Floor Chicago, IL 60601 (312) 814-6128 Email: ksaunders@atg.state.il.us ATTORNEY TO BE NOTICED
represented by Romale Bussell PRO SE
represented by Prisoner Correspondence 10 Internal Use Only Email: ilnd_PC10@ilnd.uscourts.gov ATTORNEY TO BE NOTICED

Date Filed 03/30/2020

# Docket Text
30 ORDER Second Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order

04/02/2020
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for guidance. Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020. Mailed notice(ef, ) (Entered: 04/15/2020)

PETITION for writ of habeas corpus filed by Danny Labosette,

1

Gerald Reed, Carl Reed, Patrice Daniels, William Richard, Carl

"Tay Tay" Tate, Amber Watters, James Money, Anthony Rodesky,

Tewkunzi Green against Rob Jeffreys Filing fee $ 5, receipt number

0752-16904831. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit,

# 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit,

# 9 Exhibit, # 10 Exhibit, # 11 Civil Cover Sheet)(Del Valle,

Vanessa) (Entered: 04/02/2020)

2 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Sarah Copeland Grady (Grady, Sarah) (Entered: 04/02/2020)

CASE ASSIGNED to the Honorable John F. Kness. Designated as Magistrate Judge the Honorable Jeffrey Cummings. Case assignment: Random assignment. (ec, ) (Entered: 04/02/2020)

3 MOTION by Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard for hearing re PETITION for writ of habeas corpus filed by Danny Labosette, Gerald Reed, Carl Reed, Patrice Daniels, William Richard, Carl "Tay Tay" Tate, Amber Watters, James Money, Anthony Rodesky, Tewkunzi Green against Rob Jeffreys Filing

fee 1 (Del Valle, Vanessa) (Entered: 04/02/2020)

4 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Jennifer Soble (Soble, Jennifer) (Entered: 04/02/2020)

5 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Vanessa Del Valle (Del Valle, Vanessa) (Entered: 04/02/2020)

6 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Samantha Reed (Reed, Samantha) (Entered: 04/02/2020)

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04/02/2020

7 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Sheila A Bedi (Bedi, Sheila) (Entered: 04/02/2020)
8 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Amanda C Antholt (Antholt, Amanda) (Entered: 04/02/2020)
9 MINUTE entry before the Honorable John F. Kness: Plaintiffpetitioners have this day filed their "Emergency Petition for Writs of Habeas Corpus," along with a motion styled "Petitioners' Motion for an Expedited Hearing on Emergency Petition for Writs of Habeas Corpus." Under Paragraph Three of Second Amended General Order 20-0012 ("In re: Coronavirus COVID-19 Public Emergency"), available on the Court's website ( www.ilnd.uscourts.gov ), all civil case hearings on or before May 1, 2020 are stricken and will be reset to a date on or after May 4, 2020. As a result, and in the light of the Emergency Petition, the Court construes Petitioners' Motion for an Expedited Hearing as seeking emergency relief. Counsel is thus directed to Paragraphs Five and Six of the Second Amended General Order, which provide for situations in which a party seeks emergency relief: "Any party may seek emergency relief in any case.... In addition to filing the emergency motion in the case in which emergency relief is sought, the party must file the motion in Case No. 20-cv-01792, which is a docket created to receive emergency motions filed under this Second Amended General Order. The emergency motion must be filed (i) electronically via CM/ECF if possible.... The emergency motion will be considered as soon as practicable by the presiding judge, an emergency judge, or the Chief Judge." Accordingly, to the extent they are in fact seeking emergency relief, Petitioners must comply with the procedure for emergency relief set forth in the Court's Second Amended General Order. Mailed notice (ef, ) Modified on 4/2/2020 (tg, ). Modified on 4/2/2020 (tg, ). (Entered: 04/02/2020)
10 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Elizabeth N. Mazur (Mazur, Elizabeth) (Entered: 04/02/2020)

04/02/2020 04/02/2020

11 Amended Civil Cover Sheet by Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters (Del Valle, Vanessa) (Entered: 04/02/2020)
12 MINUTE entry: This order is entered by Judge Dow as the designated emergency judge and will also be entered on the regular docket in (1) Money, et al. v. Pritzker, et al., No. 20cv2093, assigned to Judge Seeger, and (2) Money, et al. v. Jeffreys, et al., No. 20cv2094, assigned to Judge Kness, and pertains only to the emergency motions filed on the docket in the special docket, In re: Emergency Motions During Coronavirus COVID-19 Public Emergency, No. 20cv1792. All other motions will be handled by the assigned judges in due course. Plaintiffs' emergency motion for TRO or preliminary injunction in Case No. 20cv2093 91 is taken under advisement. Plaintiffs' request for expedited treatment in Case No. 20cv2093 92 and Petitioners' request for expedited treatment in Case No. 20cv2094 93 are granted. Expedited briefing is ordered as follows: Defendants' brief is due on 4/6/2020 by 5pm; Plaintiffs' reply is due on 4/8/2020 by 5pm. In their response brief, Defendants may address any issues they would like relating to the requests for relief under Section 1983 and habeas, but are requested to give special attention to explaining exactly what measures, if any, are currently being taken in Illinois "to protect people in prisons from the impending spread of COVID-19 by releasing people in an effort to reduce populations" [See 91, at 33; see also id. at 33-39 (describing efforts by state and county governments to reduce prison population, particularly for those who are more vulnerable, close to completing their sentences and/or whose release is deemed to be less dangerous to the community)]. In their reply, Plaintiffs may address any issues they would like, but are requested to give special attention to the citation of any authority or precedent for a federal court order directing state officials to release large numbers of incarcerated individuals. [See 91, at 59-60 (citing Thaker, et al. v. Doll, et al., No. 20 C 0480, Dkt. 47 (M.D. Pa. Mar. 31, 2020), and indicating that in that case the court "granted a temporary restraining order requiring the immediate release of 11 prisoners in federal custody who suffer from chronic medical conditions and face a serious threat of injury or death if exposed to COVID-19")]. After reviewing the briefs, the Court will either issue a ruling by mail or set the matter for telephonic hearing. If a telephonic hearing will be held, it likely would take place on 4/10/2020 at 10:00 a.m. and the Court would provide the call-in information. All additional filings on this motion must be made in the emergency docket, No. 20-cv-1792, and in the underlying dockets as well. Mailed notice (cdh, ) (Entered: 04/02/2020)

04/03/2020
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13 MINUTE entry before the Honorable Robert M. Dow, Jr: Upon further review of the materials filed to date in Case Nos. 20-cv2093 and 20-cv-2094, it appears that in their request for immediate relief, Plaintiffs ask the Court to "preliminarily certify Plaintiffs' proposed subclasses 1 and 2, and order Defendants to transfer [certain] individuals to their homes to self-isolate via a temporary medical furlough." [91, at 70-71.] The Court draws to counsel's attention the provisions of the Prison Litigation Reform Act, which (among other things) restrict the circumstances in which a court may enter an order "that has the purpose or effect of reducing or limiting the prison population." 18 U.S.C. § 3626(g)(4); see also Brown v. Plata, 563 U.S. 493 (2011). The Court requests that in their briefs the parties give careful attention to whether the PLRA applies to these cases. Mailed notice (cdh, ) (Entered: 04/03/2020)
14 ATTORNEY Appearance for Defendant Rob Jeffreys by Gopi Kashyap (Kashyap, Gopi) (Entered: 04/03/2020)
15 MINUTE entry before the Honorable Robert M. Dow, Jr: This matter is before Judge Dow as emergency judge. Consistent with the order entered by Judge Kennelly in Case No. 20-cv-2134, the Court enters the following supplemental briefing order in Case Nos. 20-cv-2093 & 20-cv-2094: By 12:00 p.m. on 4/6/2020, Plaintiffs are directed to supplement their TRO/PI motion to provide their position regarding the applicability and effect of 18 U.S.C. § 3626 to each lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion. Mailed notice(cdh, ) (Entered: 04/04/2020)
16 MINUTE entry before the Honorable Robert M. Dow, Jr: This matter is before Judge Dow as emergency judge. Consistent with the order entered by Judge Kennelly in Case No. 20-cv-2134, the Court enters the following supplemental briefing order in Case Nos. 20-cv-2093 & 20-cv-2094: By 12:00 p.m. on 4/6/2020, Plaintiffs are directed to supplement their TRO/PI motion to provide their position regarding the applicability and effect of 18 U.S.C. § 3626 to each lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion. Mailed notice (cdh, ) (Entered: 04/04/2020)
17 SUPPLEMENT to petition for writ of habeas corpus,, 1
Submission Regarding Applicability and Effect of 18 U.S.C. 3626 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mazur, Elizabeth) (Entered: 04/06/2020)

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04/09/2020

18 RESPONSE by Defendant Rob Jeffreys to petition for writ of

habeas corpus,, 1 04/06/2020)

, supplement 17 (Kashyap, Gopi) (Entered:

19 MOTION by Defendant Rob Jeffreys for leave to file excess pages (Kashyap, Gopi) (Entered: 04/06/2020)

20 STATE Court Record by Rob Jeffreys (Attachments: # 1 Exhibit A & B)(Kashyap, Gopi) (Entered: 04/06/2020)

21 MINUTE entry before the Honorable Robert M. Dow, Jr: Unopposed motion for leave to file excess pages [149 in Docket No. 20-cv-1792; 19 in Docket No. 20-cv-2094] is granted. Petitioners are also given leave to file an oversized reply brief on 4/8/2020. Mailed notice (cdh, ) (Entered: 04/06/2020)

22 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Nicole Rae Schult (Schult, Nicole) (Entered: 04/07/2020)

23 ATTORNEY Appearance for Plaintiffs Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters by Alan S. Mills (Mills, Alan) (Entered: 04/07/2020)

24 REPLY by Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters to Response 18 , PETITION for writ of habeas corpus filed by Danny Labosette, Gerald Reed, Carl Reed, Patrice Daniels, William Richard, Carl "Tay Tay" Tate, Amber Watters, James Money, Anthony Rodesky, Tewkunzi Green against Rob Jeffreys Filing fee 1

(Attachments: # 1 Exhibit New York Times Report, # 2 Exhibit Declaration of Adam Kaney, # 3 Exhibit Declaration of Prof. Judith Resnik, # 4 Exhibit Executive Order 2020-19, # 5 Exhibit Declarations from Petitioners' Families)(Soble, Jennifer) (Entered: 04/08/2020)

25 MINUTE entry before the Honorable Robert M. Dow, Jr: This minute entry is issued by Judge Dow as designated emergency judge in Case Nos. 20-cv-2093 and 20-cv-2094. In view of the comprehensive briefs and supporting materials and the need for expedited ruling, the Court has determined that a telephonic hearing

will not be necessary and will issue a written ruling as soon as possible. The Court appreciates the extraordinary effort of counsel to provide high quality briefs on a highly compressed schedule. The Court notes Plaintiffs' offer to call as witnesses the individuals who submitted the declarations attached to the reply brief. [See docket entry 28 in Case No. 20-cv-2093, at 45.]. That will not be necessary, as the Court will accept as true for purposes of this hearing their representations in the declarations. Nor will it be necessary to make arrangements for the named Plaintiffs/Petitioners to either appear by phone or file their own declarations, as the Court also will accept as true for present purposes the accuracy of counsels' representations about the medical conditions of the named Plaintiffs/Petitioners. In order to ensure that the Court has accurate information on an admittedly moving target, the Court directs counsel for Defendants to submit by 5:00 pm today and by 2:00 p.m. on each subsequent day until a ruling is issued an update on (1) how many inmates have been released through each available vehicle and the total reduction in IDOC population since March 2 [see docket entry 26 in Case No. 20-cv-2093, at 3-4 and docket entry 28 in Case No. 20-cv-2093, at 7 & n.1] and (2) how many incarcerated individuals have confirmed cases of COVID-19 at (a) each institution where the named Plaintiffs are housed and (b) across the entire IDOC system. If the Court is unable to issue a decision by the close of business tomorrow, it does have the capability to issue a decision on the docket electronically over the weekend and will do so. Mailed notice (cdh, ) (Entered: 04/09/2020)

04/09/2020

26 ATTORNEY Appearance for Defendant Rob Jeffreys by Katherine Marie Doersch (Doersch, Katherine) (Entered: 04/09/2020)

04/09/2020

27 STATUS Report by Rob Jeffreys (Doersch, Katherine) (Entered: 04/09/2020)

04/10/2020

28 STATUS Report by Rob Jeffreys (Doersch, Katherine) (Entered: 04/10/2020)

04/10/2020 29

MEMORANDUM OPINION AND ORDER signed by the Honorable Robert M. Dow, Jr., as emergency judge, on 4/10/2020: For the reasons stated in the accompanying Memorandum Opinion and Order, Plaintiffs' motion for temporary restraining order and preliminary injunction in Money v. Pritzker, Case No. 20-cv2093 9 is denied. Plaintiffs' motions for leave to file oversized brief 5 and for expedited treatment 12 in that same case are granted. Defendants' motion for leave to file sur-reply in that case 32 is granted. Petitioners' motion for expedited treatment in Money v.

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Jeffreys, Case No. 20-cv-2094 3 is granted, but the Court denies Petitioners' request for expedited release. The petition 1
remains open on the docket, subject to further action by the parties and the judges, both assigned and emergency, as explained in the Memorandum Opinion and Order. No further status hearings will be set at this time by the emergency judge. Mailed notice(cdh, ) (Entered: 04/10/2020)
31 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket9, ) (Entered: 04/27/2020)
32 ORDER : STANDING ORDER REGARDING CIVIL CASES. Signed by the Honorable John F. Kness on 4/30/2020: Mailed notice. (docket4, ) (Entered: 04/30/2020)
33 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For nonemergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket10, ) (Entered: 05/26/2020)
34 MOTION by Attorney Elizabeth Mazur to withdraw as attorney for Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed. No party information provided (Mazur, Elizabeth) (Entered: 06/15/2020)
35 MINUTE entry before the Honorable John F. Kness: Motion by counsel to withdraw as attorney 34 is granted. Attorney Elizabeth N. Mazur is withdrawn as counsel of record. Mailed notice (ef, ) (Entered: 06/16/2020)
36 MOTION by Pro Se Intervener's Romale Bussell for Emergency Relief. (ph, ) (Entered: 07/08/2020)
37 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by

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09/28/2020 09/28/2020

the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk9, Docket) (Entered: 07/10/2020)
38 MOTION by Attorney Samantha Reed to withdraw as attorney for Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Carl "Tay Tay" Tate, Amber Watters. No party information provided (Reed, Samantha) (Entered: 08/07/2020)
39 MINUTE entry before the Honorable John F. Kness: Motion to withdraw as attorney 38 is granted. Attorney Samantha Reed is terminated as counsel for plaintiffs. Mailed notice (ags) (Entered: 08/11/2020)
40 MINUTE entry before the Honorable John F. Kness: Upon a review of the docket, the Court directs the parties to submit a concise joint status report. This report must be filed on the public docket on or before September 25, 2020. Respondent shall also respond to pro se Intervenor's Romale Bussell's motion for emergency relief 36 on or before October 2, 2020. Mailed notice (ags) (Entered: 09/10/2020)
41 STATUS Report (Joint) by Rob Jeffreys (Kashyap, Gopi) (Entered: 09/25/2020)
42 ORDER: The Court has reviewed the parties' joint status report 41 , which was filed on September 25, 2020. In view of the parties' ongoing "productive settlement discussions" in the related matter of Richard v. Prtizker, No. 20-cv-02093 (N.D. Ill.) (Seeger, J.), this case is stayed with the exception of the previously set briefing schedule 40 on pro se Intervenor Bussell's motion for emergency relief (that briefing schedule remains in effect). The parties shall file a joint status report on or before November 18, 2020. SO ORDERED. Signed by the Honorable John F. Kness on 9/28/2020.Mailed notice(mjc, ) (Entered: 09/28/2020)
43 RESPONSE by Rob Jeffreys to MOTION by Intervenor Plaintiff Romale Bussell 36 (Kashyap, Gopi) (Entered: 09/28/2020)
44 STATE Court Record by Rob Jeffreys (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kashyap, Gopi) (Entered: 09/28/2020)

10/02/2020 10/22/2020 11/13/2020 11/18/2020
11/23/2020
12/23/2020
02/19/2021 02/22/2021

45 ORDER ON INTERVENER'S MOTION FOR EMERGENCY RELIEF signed by the Honorable John F. Kness on 10/2/2020. Mailed notice(ef, ) (Entered: 10/05/2020)
46 LETTER from Bob Donley dated 10/16/2020. (Exhibit) (Envelope postmark not legible). (mc, ) (Entered: 10/23/2020)
47 LETTER from Bob Donley dated 11/9/2020. (bg, ) (Entered: 11/16/2020)
48 STATUS Report Second by Romale Bussell, Patrice Daniels, Tewkunzi Green, Danny Labosette, James Money, Carl Reed, Gerald Reed, William Richard, Anthony Rodesky, Service List, Carl "Tay Tay" Tate, Amber Watters (Soble, Jennifer) (Entered: 11/18/2020)
49 ORDER signed by the Honorable John F. Kness on 11/23/2020: The Court has reviewed the parties' second joint status report 48 . In view of the parties' ongoing settlement discussions in the related matter of Richard v. Pritzker, No. 20 C 2093 (N.D. Ill.) (Seeger, J.), the Court continues the previously-entered stay in this case. The parties shall file a joint status report on or before February 19, 2021. Mailed notice(ef, ) (Entered: 11/23/2020)
50 ORDER: The Clerk is instructed to strike the letters filed at docket entries 46 and 47 from the record. The Clerk shall also send a copy of this order to Bob Donley, K57096, at the Centralia Correctional Center. See accompanying Statement for details. Signed by the Honorable John F. Kness on 12/23/2020.Mailed notice(nsf, ) (Entered: 12/23/2020)
51 STATUS Report (Joint) by Rob Jeffreys (Kashyap, Gopi) (Entered: 02/19/2021)
52 MINUTE entry before the Honorable John F. Kness: Before the Court is the parties' Third Joint Status Report 51 , in which the parties report that they have reached a settlement agreement "in principle." The parties further report that they anticipate finalizing their agreement by March 5, 2021 and filing an updated status report on or before that date. Based on this report, the case is remains stayed. A status hearing is set for 3/29/2021 at 09:45 a.m.; that hearing will be stricken if a stipulation of dismissal is filed in advance. The parties are to use the following call-in number: 888684-8852, access code 3796759. The public and media representatives may have access to the hearing via the same number. Audio recording of the hearing is not permitted; violations of this prohibition may result in sanctions. Participants are directed

to keep their device muted when they are not speaking. Mailed notice (ef, ) (Entered: 02/22/2021)

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 Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 1 of 57 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JAMES MONEY, WILLIAM RICHARD,

)

GERALD REED, AMBER WATTERS,

)

TEWKUNZI GREEN, DANNY LABOSETTE,

)

CARL REED, CARL “TAY TAY” TATE,

)

PATRICE DANIELS, and ANTHONY

)

RODESKY, on behalf of themselves and all

)

similarly situated individuals,

)

)

Petitioners,

) Case No.

)

)

v.

)

)

ROB JEFFREYS, in his official capacities as

)

DIRECTOR OF THE ILLINOIS DEPARTMENT OF )

CORRECTIONS,

)

)

Respondent.

)

______________________________________________________________________________

EMERGENCY PETITION FOR WRITS OF HABEAS CORPUS James Money, William Richard, Gerald Reed, Amber Watters, Tewkunzi Green, Danny Labosette, Carl Reed, Carl “Tay Tay” Tate, Patrice Daniels, and Anthony Rodesky (“Petitioners”), on behalf of themselves and others similarly situated, and by and through their attorneys, allege as follows:
I. PRELIMINARY STATEMENT 1. Without urgent action by the Illinois Department of Corrections (“IDOC”) to
drastically reduce Illinois’ prison population, the novel coronavirus is likely to spread not just inside the walls of Illinois’s 28 prisons, but throughout prison communities as well. Nearly 37,000 people are incarcerated in Illinois, living in close quarters where all aspects of daily life,

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including healthcare and food service, take place. As with other congregate settings like nursing

homes and long-term care facilities, social distancing guidelines can never be fully or effectively

implemented in prison. And each day, thousands of staff must come and go from prison facili-

ties, potentially carrying with them the novel coronavirus for days, even weeks, without ever

showing symptoms. These settings pose a particular risk of spreading the virus, with cata-

strophic consequences not just to the prisoners and staff, but also to their communities and the

hospitals that serve them.

2. To understand the devastating impact that COVID-19 will have on the Illinois

prison system and the communities that house those prisons, one need look no further than Joliet,

Illinois. On March 25, 2020, the IDOC announced the first confirmed case of COVID-19 at

Stateville Correctional Center. Just five days later, Dr. Ngozi Ezike announced that twelve pris-

oners had been hospitalized with confirmed cases of COVID-19, while another 77 prisoners

demonstrated symptoms but had not yet been confirmed. That same day, St. Joseph Hospital,

where Stateville prisoners had been hospitalized, announced it was “overwhelmed” by inmates

suffering from the effects of coronavirus and staff already were “maxed out.” The hospital’s

medical director characterized the situation as “a disaster.” The following day, Governor Pritz-

ker confirmed at least one prisoner had died from the virus, while the number of confirmed cases

among staff and prisoners continues to grow.

3.

Stateville’s reality might have been avoided if the Governor and IDOC had acted

with the urgency and scope required to mitigate the oncoming harm. Instead, IDOC has contin-

ued to house thousands of elderly, disabled, and medically vulnerable prisoners who could be re-

leased, many of whom are approaching their release dates and have homes in which they could

more safely quarantine. To effectively prevent the continued spread of the COVID-19 infection

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in prison communities, the state must take urgent steps to release, furlough, or transfer to home

detention all that qualify under the law, and particularly those who are elderly and medically vul-

nerable.

4. Every single person in IDOC custody faces a substantially increased risk of harm

as a result of the Respondent’s failure take reasonable measures to stop the spread of COVID-19

by refusing to reduce the number of people living in IDOC custody through the implementation

of medical furlough, transfer to electronic monitoring/home detention, and other mechanisms to

reduce the prison population. Even people who lack an available pathway to release are harmed

because their likelihood of contracting the virus is substantially increased and their ability to ac-

cess preventative sanitation resources and medical care is adversely affected.

5.

Petitioners and similarly situated medically vulnerable individuals and those

with pathways to release must be released now. Now is the time to act to stop the spread of

COVID-19 inside the prisons, and to protect the individuals who live and work in the prisons as

well as the broader community from the serious risk of harm to their health and safety. The State

is not acting with sufficient urgency, and without intervention from this Court, people are going

to die unnecessarily.

II. PARTIES

6. Petitioner James Money (S11097) is 28 years old and is housed at Illinois River

Correctional Center in Canton, Illinois. He is eligible for medical furlough pursuant to 730 ILCS

5/3-11-1, release through an award of good time pursuant to 20 Ill. Adm. Code 107.210, and

transfer to home detention pursuant to 730 ILCS 5/5-8A-3(b). Mr. Money is a member of Sub-

classes 1, 5, and 6.

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7.

Petitioner William Richard (M52774) is 66 years old and lives in the healthcare

unit at Dixon Correctional Center. Mr. Richard has less than four months remaining on his sen-

tence, and is eligible for transfer to home detention under 730 ILCS 5/5-8A-3(d). Mr. Richard is

a member of Subclasses 1, 2, 3, and 6.

8. Petitioner Gerald Reed (N32920) is 57 years old and housed at the Northern Re-

ception Center. Mr. Reed has heart failure, hypertension, is pre-diabetic, and uses a wheelchair

for mobility. Mr. Reed is eligible for medical furlough at his mother’s home. Mr. Reed is a

member of Subclasses 1 and 2.

9.

Petitioner Amber Watters (Y39454) is 30 years old and is housed at Logan Cor-

rectional Center in Lincoln, Illinois. She is serving two three-year sentences for low level drug

offenses out of Livingston County, and is eligible for transfer to home detention under 730 ILCS

5/5-8A-3(e). Ms. Watters is a member of Subclass 4.

10. Petitioner Tewkunzi Green (R84568) is 38 years old, and housed at Logan Cor-

rectional Center in Lincoln, Illinois. She suffers from asthma and severe hypertension, and is eli-

gible for medical furlough under 730 ILCS 5/3-11-1. Ms. Green is a member of Subclass 1.

11. Petitioner Danny Labosette (B23629) is 56 years old and currently housed at

Robinson Correctional Center in Robinson, Illinois. Mr. Labosette is a double amputee and suf-

fers from untreated Hepatitis C. Mr. Labosette is eligible to be transferred to home detention un-

der 730 ILCS 5/5-8A-3(d). Mr. Labosette is a member of Subclasses 1, 2, and 3.

12. Petitioner Carl Reed (R48993) is 59 years old, and currently housed at Graham

Correctional Center in Hillsboro, Illinois. He suffers from chronic kidney disease—requiring di-

alysis three days per week—diabetes, hypertension, and underlying neurological impairments.

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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 5 of 57 PageID #:5

Mr. Reed is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. Mr. Reed is a member

of Subclasses 1 and 2.

13. Petitioner Carl “Tay Tay” Tate (R12529) is a 40-year-old transgender woman

diagnosed with Gender Dysphoria, who is housed at Danville Correctional Center. Ms. Tate

lives with hypertension, for which she takes medication. Ms. Tate is a member of Subclass 1.

14. Petitioner Patrice Daniels (B70662) is 45 years old, serving a life sentence and

not eligible for release. Mr. Daniels is a member of the Class.

15. Petitioner Anthony Rodesky (R47057) is 49 years old and currently housed at

Pontiac Correctional Center in Pontiac, Illinois. He has diabetes and other chronic health condi-

tions, and in 2015 he had a below-knee amputation. Mr. Rodesky is a New Jersey prisoner who

is in Illinois custody pursuant to an interstate compact agreement. Mr. Rodesky is a member of

the Class.

16. Respondent Robert Jeffreys is the Director of the Illinois Department of Correc-

tions.

III.

JURISDICTION AND VENUE

17. The Petitioners bring this action pursuant to 28 U.S.C. § 2254 for relief from

custody in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. See

Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (“Roughly speaking, this makes § 2254 the

exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to chal-

lenge anything affecting that custody.”).

18. The Court has subject matter jurisdiction over this Petition pursuant to Article I,

§ 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Eighth and the Fourteenth Amend-

ments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs

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Act); and 28 U.S.C. § 2254 (habeas corpus). In addition, the Court has jurisdiction to grant de-

claratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.

19. Venue is proper in the Northern District of Illinois pursuant to 28 U.S.C. §

1391(b)(2) because a substantial part of the events and omissions giving rise to these claims oc-

curred and continue to occur in this district.

IV.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

20. Petitioners are excused from exhausting state court remedies because Illinois

courts are functionally unavailable to hear their petition for urgent release. COVID-19 has

proven to be an unprecedented assault on the normal functioning of society as a whole, including

the state legal system. Indeed, in an effort to reduce the spread of COVID-19 and protect public

health, Chief Judge Evans issued an order on March 13, 2020, postponing most cases in the Cir-

cuit Court of Cook County through April 16, 2020. On March 30, 2020, Chief Judge Evans ex-

tended that order through May 18, 2020. See Circuit Court of Cook County General Order 2020-

01. Similar orders have been issued throughout the state. Given the reduced operations of the

state courts, Petitioners are unlikely to obtain timely relief from the state courts before contract-

ing—and potentially dying from—COVID-19.

21. Federal habeas corpus exhaustion requirements are waived when “there is an

absence of available State corrective process, or circumstances exist that render such process in-

effective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). While Peti-

tioners have attempted to exhaust available state court remedies, the reality remains that the state

corrective process is not currently available, and the imminent danger presented by COVID-19

renders the delayed state court process ineffective.

A. Absence of a Corrective Process

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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 7 of 57 PageID #:7
22. Petitioners are excused from exhausting state court remedies that are not available to them. See U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976). Here, mandamus is the only state process ostensibly available to petitioners to raise their claims1—yet even that process is effectively unavailable due to the current circuit court closures. Given the emergency nature of their request, and in an effort to exhaust despite the circuit court closures, Petitioners have brought a parallel petition before the Illinois Supreme Court requesting a writ of mandamus requesting urgent release. At this time of filing of the present petition, it is unclear whether the state supreme court will allow Petitioners to move forward in that proceeding given its urgency and the current circuit court closures.
23. The unavailability of state corrective process does not and has never prevented federal review of a habeas claim. The effective closure of the Illinois court system to Petitioners means that there is no appropriate remedy in the state courts to address their claims. The exhaustion requirements in Section 2254 do not “bar from federal habeas prisoners in states whose postconviction procedures are technically inexhaustible.” Castille v. Peoples, 489 U.S. 346, 350 (1989). “If an appropriate remedy does not exist or its utilization is frustrated by the state system, ... [t]he deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations.” U.S. ex rel. Hankins v. Wicker, 582 F. Supp. 180, 182 (W.D. Pa. 1984).
B. Circumstances Exist that Render State Processes Ineffective to Protect Petitioners’ Rights
24. Given the pressing threat posed by COVID-19, the rapid rate of transmissions, and the ever-growing number of cases among prison staff and inmates, Petitioners’ rights can
1 Petitioners’ claims do not involve an attack on the proceedings that lead to their convictions, so their claims cannot be brought through a state post-conviction petition. See 725 ILCS 5/122-1.
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 8 of 57 PageID #:8
only be protected through immediate consideration of their claims. To the extent that state corrective processes would exist for Petitioners under ordinary circumstances, current circumstances created by COVID-19 render those state processes ineffective to protect Petitioners’ rights. Given that most civil and criminal matters in Cook County will not be heard until at least May 18, 2020, the state process will be too delayed to result in meaningful relief for Petitioners.
25. “Undue delay by a state court might show that available state remedies have been exhausted, permitting the federal court to proceed even while the state appeal was pending.” Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993); see also Hankins v. Fulcomer, 941 F.2d 246, 250 (3d. Cir 1991). To satisfy this exception to the exhaustion requirement, the delay must be inordinate, and must be attributable to the state. Here, both conditions are met; there are inordinate delays in the state process, and those delays are attributable to the state.
26. First, there are inordinate delays to the state process, as already described. Although Petitioners recognize that the current delay in criminal and civil hearings is shorter than the months of delay that has established unjustifiable delay in other proceedings, see e.g., Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981); Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970), the threat posed by COVID-19 makes any delay inordinate.
27. Second, the delay is attributable to the state. The Circuit Court of Cook County, where more than 17,000 class members’ cases arise, has suspended the normal operations of the court; other county courts have also suspended normal operations and delayed proceedings individually through at least May 18, 2020. Therefore, any attempt to access the state court process would likely result in a delay of days or weeks, possibly months.
V. STATEMENT OF FACTS A. The COVID-19 Outbreak Has Created a National and Global Health Emergency
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 9 of 57 PageID #:9
28. We are living in the midst of an extreme, unprecedented worldwide health emer-
gency caused by the rapid spread of the coronavirus, COVID-19. The World Health Organiza-
tion has declared COVID-19 to be a global pandemic.2 On March 9, 2020, Illinois Governor
J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois.3 On March 13,
2020, President Trump declared a national emergency.4
29. The number of known COVID-19 infections is increasing daily. As of April 1,
2020, there were more than 823,000 reported COVID-19 cases throughout the world and more
than 40,500 people had died as a result of the virus.5 In the United States alone, there are over
186,000 confirmed cases and over 3,600 deaths.6 In Illinois, there are over 6,900 confirmed
cases and 141 deaths.7 The number of COVID-19 cases in the United States is expected to grow
exponentially. The Centers for Disease Control and Prevention (“CDC”) projects that without
2 Rolling Updates on Coronavirus Disease (COVID-19), World Health Organization, https://www.who.int/emergencies/diseases/novel-COVID-19-2019/events-as-they-happen (last visited Mar. 29, 2020). 3 Gubernatorial Disaster Proclamation, https://www2.illinois.gov/sites/gov/Documents/APPROVED%20-%20Coronavirus%20Disaster%20Proc%20WORD.pdf 4 Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), available at https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-diseasecovid-19-outbreak/ 5 Coronavirus Disease 2019 (COVID-19) Situation Report – 72, World Health Organization (April 1, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200401-sitrep-72-covid-19.pdf?sfvrsn=3dd8971b_2 6 Coronavirus Disease 2019 (COVID-19): Cases in U.S., Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fcases-in-us.html (last visited Apr. 1, 2020). 7 Coronavirus Disease 2019 (COVID-19), Ill. Dept. of Pub. Health, http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus (last visited April 1, 2020).
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 10 of 57 PageID #:10
swift and effective public health interventions, over 200 million people in the U.S. could be infected with COVID-19 over the course of the epidemic, with as many as 1.7 million deaths.8
30. COVID-19 is a particularly contagious disease. A recent study showed that the virus can survive for up to three hours in the air, four hours on copper, up to twenty-four hours on cardboard, and up to two to three days on plastic and stainless steel.9 Indeed, a new study of an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission resulting from infected people contaminating common surfaces—in the study, it was a communal mall bathroom.10
31. Controlling the spread of COVID-19 is made even more difficult because of the prominence of asymptomatic transmission—people who are contagious but who exhibit no symptoms, rendering ineffective any screening tools dependent on identifying disease symptoms.11
32. There is no known vaccine or cure for COVID-19. No one is immune.
8 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times, (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html 9 Novel Coronavirus Can live on Some Surfaces for Up to 3 Days, New Tests Show. TIME https://time.com/5801278/coronavirus-stays-on-surfaces-days-tests/ (last visited Mar. 31, 2020). 10 Jing Cai, et al., Indirect Virus Transmission in Cluster of COVlD-19 Cases, Wenzhou, China, 2020. Emerg Infect Dis. (2020), available at https://wwwnc.cdc.gov/eid/article/26/6/20-0412_article. 11 Johnny Milano, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, New York Times, https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html (last visited Apr. 1, 2020) .
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 11 of 57 PageID #:11
33. Common symptoms of COVID-19 include fever, cough, and shortness of breath.12 Other symptoms include congestion, sneezing, fatigue, or diarrhea.13 Many individuals who become infected with COVID-19 may have mild or moderate symptoms; some may experience no symptoms at all. Other patients may experience severe symptoms requiring intensive medical intervention.14 However, even with hospitalization and intensive treatment, thousands of individuals have died as a result of this infection. Regardless of the type of severity of symptoms, all infected persons are contagious and can rapidly transmit the virus from person to person without proper public health interventions.15 The virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.16
34. People over the age of fifty-five face greater chances of serious illness or death from COVID-19. In a February 29, 2020 WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 70-79 had an overall 8% mortality rate, individuals age 60-69 had a 3.6% mortality rate, and individuals age 50-59 had a 1.3% mortality rate.
12 Coronavirus Disease 2019 (COVID-19), Symptoms of Coronavirus, CDC, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited Mar. 29, 2020). 13 Q&A on Coronaviruses (COVID-19), World Health Organization, https://www.who.int/newsroom/q-a-detail/q-a-coronaviruses (last visited Mar. 29, 2020). 14 Id. 15 Coronavirus Disease 2019 (COVID-19): How It Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Ftransmission.html (last visited Mar. 29, 2020). 16 Id.
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For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.17
35. People of any age who suffer from certain underlying medical conditions are also at elevated risk, including people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people who are pregnant.18 The WHO-China Joint Mission Report indicates that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.19
36. For these vulnerable populations, the symptoms of COVID-19, particularly shortness of breath, can be severe, and complications can manifest at an alarming pace. Most people in higher risk categories who develop serious illness will need advanced support. This level of
17 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (date analysis based on WHO-China Joint Mission Report). 18 Coronavirus Disease 2019 (COVID-19): People Who Need Extra Precautions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html (last visited Mar. 29, 2020). 19 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 13 of 57 PageID #:13
supportive care requires highly expensive and specialized equipment, including ventilators, that are in limited supply.20
37. Increasingly, and in the United States in particular, even some younger and healthier people who contract COVID-19 may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen.21 Medical providers and medical facilities are in peril of becoming completely overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 continues to spread.22
38. Even for those who survive COVID-19, recent clinical evidence indicates that in persons who suffer severe symptoms, the virus may also cause damage to organs such as the heart, the liver, and the kidneys, as well as to organ systems such as the blood and the immune system. This damage is so extensive and severe that it may be enduring. Among other things, patients who suffer severe symptoms from COVID-19 end up having damage to the walls and air sacs of their lungs, leaving debris in the lungs and causing the walls of lung capillaries to thicken so that they are less able to transfer oxygen going forward. Indeed studies of some recovered patients in China and Hong Kong indicate a declined lung function of 20% to 30% after recovery.23
39. The only way to prevent complications and the enormous risk to medically vulnerable people is to prevent them from becoming infected. Everyone is at risk of transmission of
20 Greifinger Aff., Exhibit 1. 21 Meyer Decl., Exhibit 2. 22 Id. 23 Tianbing Wang, et al., Comorbidities and Multi-Organ Injuries in the Treatment of COVID19, The Lancet, available at https://www.thelancet.com/journals/lancet/article/PIIS01406736(20)30558-4/fulltext (last visited Mar. 21, 2020); George Washington University Hospital, GW Hospital Uses Innovative VR Technology to Assess Its First COVID-19 Patient, available at https://www.gwhospital.com/resources/podcasts/covid19-vr-technology (last visited Apr. 1, 2020).
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Case: 1:20-cv-02094 Document #: 1 Filed: 04/02/20 Page 14 of 57 PageID #:14
COVID-19. There is no available vaccine to protect against infection from COVID-19 and no medications approved to treat it.24 The CDC and other public health agencies have universally prescribed social distancing—every person should remain at a distance of at least six feet from every other person—and rigorous hygiene—including regular and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces—as the only ways to meaningfully mitigate the spread of this virus.25
40. The CDC has issued a guidance that gatherings of more than 10 people must not occur.26 People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.27
24 Coronavirus Disease 2019 (COVID-19): Situation Summary, CDC, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html (lasted visited Mar. 29, 2020). 25 Coronavirus Disease 2019 (COVID-19): How to Protect Yourself, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fprepare%2Fprevention.html (last visited Mar. 29, 2020). 26 Interim Guidance for Coronavirus Disease 2019 (COVID-19), Guidance as of 3/15/2020, https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/mass-gatherings-readyfor-covid-19.html (last visited Apr. 1, 2020). 27 Coronavirus Disease 2019 (COVID-19): How Coronavirus Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 1, 2020).
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41. On March 20, 2020, Illinois Governor Pritzker took the strictest measure yet to fight the virus’s spread, issuing a “stay at home” executive order for all residents effective starting March 21, 2020 through at least April 7, 2020; which was then extended to April 30, 2020.28 The order directs all non-essential business and operations to cease. People are allowed to leave their homes only for essential activities. Any gathering larger than 10 people is prohibited, and people are recommended to stay at least six feet away from others. Restaurants, bars, schools, parks, and libraries have all been shut down. In a statement to the public, Governor Pritzker explained that his order was based on his conversations with “some of the best medical experts, epidemiologists, mathematicians, and modelers,” and all recommended a stay at home order “to avoid the loss of potentially tens of thousands of lives.”29
42. Governors around the country, including in California, New York, and Connecticut, have issued similar stay at home orders to curb the spread of the virus.30
43. Recognizing the imperative of social distancing, Circuit Court Chief Judge Timothy Evans ordered that the Cook County courts be largely closed to the public, that all hearings be conducted via videoconference wherever possible, and that all individuals in the courthouses maintain a minimum distance of six feet from all other individuals.31 This Court, joined by other
28 Executive Order In Response to COVID-19 (COVID-19 Executive Order No.8), https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf; Illinois’ Stay-at-Home Order Extended Through April, Pritzker Announces, NBCChicago (Mar. 31, 2020) https://www.nbcchicago.com/news/local/illinois-stay-at-home-order-expected-to-be-extended-sources/2247274/ 29 Gov. J.B. Pritzker issues order requiring residents to ‘stay at home’ starting Saturday, Chicago Tribune, Mar. 20, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinoisshelter-in-place-lockdown-order-20200320-teedakbfw5gvdgmnaxlel54hau-story.html 30 Id. 31 Circuit Court of Cook County, Administrative Order 2020-01 (amended Mar. 30, 2020), available at http://www.cookcountycourt.org/Portals/0/Order%203-30-20.pdf
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district courts in the state and across the country, have continued all criminal and civil jury trials because the imperative of social distancing “render[s] juror participation difficult or unsafe.”32
B. Incarcerated People Are Particularly Vulnerable to Infection from COVID19
44. None of the recommended measures for mitigating the spread of COVID-19 are available for persons confined in correctional facilities and for those who must interact with them. Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another. It is impossible to achieve social distancing standards in these settings.33 Therefore infectious diseases, particularly airborne diseases, such as COVID-19, are more likely to spread rapidly between individuals in correctional facilities.34
45. The risk of contracting an infectious disease is also higher in correctional facilities because the facilities are not sanitary environments. People share toilets, sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are in short supply.35 These needs are now multiplied and also compounded by the lack of personal protective equipment (PPE) such as masks and gloves for either staff or prisoners. This means there are more
32 U.S. District Court for the Northern District of Illinois, 2d Am. Gen. Order 20-0012 (Mar. 30, 2020); see also U.S. District Court for the Southern District of Illinois, Admin. Order 263 (Mar. 30, 2020); U.S. District Court for the Central District of Illinois, Am. Gen. Order 20-01 (Mar. 18, 2020). 33 Greifinger Aff., Exhibit 1; Haney Decl., Exhibit 3. 34 Beyrer Aff., Exhibit 4; Meyer Decl., Exhibit 2. 35 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2; Beyrer Decl., Exhibit 4; Haney Decl., Exhibit 3.
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people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
46. Given the history of epidemiologic outbreaks in correctional facilities, such as tuberculosis, influenza, and MRSA, it is expected that COVID-19 will also readily spread in prisons, especially when people cannot engage in proper hygiene and adequately distance themselves from infected residents or staff. 36
47. The people who live in these environments—environments that defy all current public safety standards— are themselves at high risk due to the high rates of chronic health conditions, substance use, mental health issues. They are part of the aging and chronically ill populations who may be vulnerable to more severe illnesses, and to death, after infection from COVID19.37 As Dr. Craig Haney, a correctional health expert, explains, prisoners are “unusually vulnerable to stress-related and communicable diseases. Formerly incarcerated persons suffer higher rates of certain kinds of psychiatric and medical problems. Incarceration leads to higher rates of morbidity (illness rates) and mortality (i.e., it lowers the age at which people die).”38
48. Additionally, many correctional facilities lack an adequate medical care infrastructure to address the spread of infectious disease, like COVID-19, and treat high-risk people in custody.39 Prison health units are not equipped with sufficient emergency medical equipment, such as oxygen tanks, nasal cannulae, and oxygen face masks, to respond to an outbreak of patients with respiratory distress. For these reasons, among others, experts have warned that, “widespread community transmission of COVID-19 within a correctional institution is likely to
36 Beyrer Decl., Exhibit 4. 37 Id. 38 Haney Aff., Exhibit 3. 39 Greifinger Aff., Exhibit 1; Meyer Decl., Exhibit 2.
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result in a disproportionately high COVID-19 mortality rate.”40 Prisons and jails rely on outside community hospitals to provide more advanced and intensive medical care, and during an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.41
49. Prisons are not closed environments. By necessity, members of the free community, including correctional officers, social workers, attorneys, medical personnel, and many others must enter and leave the prisons on a daily basis. Staff arrive and leave each facility three times a day in large numbers, and there is little to no ability to adequately screen staff for new, asymptomatic infection. When the COVID-19 virus occurs and spreads within a prison, all persons, staff and prisoners alike, are at heightened risk of contracting the virus and, in turn, spreading the virus to others with whom they come in contact in their own homes and neighborhoods.42
50. At the Governor’s March 29, 2020, daily briefing on the coronavirus situation, IDPH Director Dr. Ngozi Ezike acknowledged the present danger that when the infection enters prisons, the congregate nature of these facilities, with staff coming and going from the community each day in large numbers, will “increase the rate of infection and its fast spread through these facilities.”43
40 “COVID-19 in Correctional Settings: Unique Challenges and Proposed Responses” (March 23, 2020), https://amend.us/wp-content/uploads/2020/03/COVID-in-Corrections-Challengesand-Solutions-1.pdf; see also “Correctional Facilities In The Shadow Of COVID-19: Unique Challenges And Proposed Solutions," Health Affairs Blog, March 26, 2020, available at: https://www.healthaffairs.org/do/10.1377/hblog20200324.784502/full/ 41 Meyer Decl., Exhibit 2. 42 Greifinger Aff., Exhibit 1. 43 The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinois-health-officials/2234359/ (last visited March 31, 2020).
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51. On March 30, 2020, following the death of a COVID-19 patient at Stateville, Dr.
Ezike again acknowledged the heightened risk posed by correctional settings and the inability to
conform them to public health standards:
Congregate settings such as Stateville, any other correctional center, pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there. Those who are incarcerated obviously live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced. The options for isolation of COVID-19 cases are limited in this focused setting and it becomes very difficult depending on the size of the facility and the population that’s already in the facility. Ideally, all cases should be isolated individually and close contact should be quarantined individually. I know our partners at the Department of Corrections are working innovatively to try to create the best situations for these, for these facilities. But some facilities and correctional centers do not have enough individual cells, and so we are considering isolating multiple laboratory confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group.44 52. The devastating impact that a COVID-19 outbreak in IDOC will have on sur-
rounding communities is already a reality. Stateville Correctional Center announced its first con-
firmed case on Wednesday, March 25, 2020, and by Monday evening, March 30, 2020, St. Jo-
seph Hospital in Joliet was “overwhelmed” by inmates suffering from the effects of coronavirus
and staff were “maxed out.”45 The hospital’s medical director, Dr. John Walsh, said, “This is a
disaster because what I most fear is that without some resolution, the number of cases coming in
from Stateville will become excessive. We currently have nine inmates on ventilators, critically
ill. There was four in the emergency department a couple of hours ago, and I believe the volume
of patients there is huge. In addition, something has to be done at Stateville. You will have a
44 Available at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefingfrom-illinois-health-officials/2234359/ (last visited March 31, 2020). 45 abc7 Chicago, Illinois Prisoners Sick with COVID-19 Overwhelm Juliet Hospital (video), available at https://abc7chicago.com/health/illinois-prisoners-sick-with-covid-19-overwhelm-joliet-hospital/6064085/ (last visited Mar. 31, 2020).
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huge epidemic, remembering that 20% of the people who contract this virus are probably gonna end up in hospital and a number of them are gonna die. This could end with up to 100 inmates dying if this is out of control, and they are not isolated well at this point.”46 St. Joseph Hospital is now caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. Other prison communities throughout Illinois are similarly situated, many with far fewer intensive care beds available to provide care when an outbreak occurs. To prevent the crisis now occurring in Joliet from repeating and worsening across the state, effective mitigation measures must be taken now.
C. Reducing the Prison Population Is the Only Meaningfully Means to Prevent the Harm Caused by COVID-19 in Prisons and their Surrounding Communities
53. Because the public health and safety measures cannot be fully achieved in correctional facilities, other steps must be taken to save lives and protect the spread of the infection from these communities. Proactive risk mitigation, including eliminating close contact in congregate environments, is the only effective way to prevent the spread of the COVID-19 infection. In fact, a study published in the Journal of Travel Medicine found that the number of COVID-19 cases on the Diamond Princess cruise ship would have been more than eight times lower if the ship had been evacuated in a timely manner, rather than requiring the passengers to quarantine within the close confines of the ship.47
46 Id. 47 Sandoiu, supra (Citing Rocklov J., Sjodin H., Wilder-Smith A., COVID-19 Outbreak on the Diamond Princess Cruise Ship: Estimating the Epidemic Potential and Effectiveness of Public Health Countermeasures. Journal of Travel Medicine (Feb. 28, 2020), https://academic.oup.com/jtm/advance-article/doi/10.1093/jtm/taaa030/5766334
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54. Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region’s limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and require hospitalization in these small communities.
55. Dr. Robert Greifinger, a correctional health expert, has concluded that “[r]isk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy . . . Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.”
56. Dr. Greifinger explains that reducing the prison population “has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for hand washing, disinfecting supplies for surfaces, frequent laundering
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and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.”
57. Similarly, Dr. Craig W. Haney, a Distinguished Professor of Psychology and UC Presidential Chair at the University of California Santa Cruz, recommends that “adult prisons must reduce their populations urgently in order to allow the necessary social distancing in response to the COVID-19 Pandemic.”48
58. Professor Chris Breyer, professor of Epidemiology at John Hopkins Bloomberg School of Public Health, has concluded: “While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.”49
59. Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing, has concluded that “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.”50 She explains that “[h]ealth in jails and prisons is community health. Protecting the health of individuals who are detailed in and work in these facilities is vital to protecting the health of the wider community.”51
48 Haney Decl., Exhibit 3. 49 Beyrer Decl., Exhibit 4. 50 Meyer Decl., Exhibit 2. 51 Id.
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60. Dan Pacholke, a corrections expert with more than 37 years of experience, has specific recommendations for steps IDOC can take to proactively respond to COVID-19 to protect the health and safety of people in IDOC custody and IDOC staff.52 Mr. Pacholke explains: “Among those steps is considering how IDOC can exercise its authority and discretion . . . to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs.”53 Mr. Pacholke further explains that “[a]ll of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services.”54
61. Internationally, governments have recognized the threat posed by COVID-19 in correctional facilities and have released detainees. In Iran, for example, about 70,00 people were temporarily released from jails to curb the spread of COVID-19.55
62. In the United States, the need to address the COVID-19 problem in prisons has been recognized on a national level. The COVID-19 stimulus package passed by Congress specifically includes funding for federal prisons to purchase personal protective gear and tests kits for COVID-19 because of the “density of the inmate population, the high traffic, the high volume of inmates, [and] the high rate of turnover of inmates and personnel.”56 The bill authorizes the
52 Pacholke Decl., Exhibit 5. 53 Id. 54 Id. 55 Iran Temporarily Releases 70,000 Prisoners As Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5 56 Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) H.R. 748, at 633 (2020), available at https://assets.documentcloud.org/documents/6819239/FINAL-FINAL-CARESACT.pdf
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Attorney General to lengthen the maximum amount of time that a federal prisoner can be placed in home confinement during the pandemic.57
63. On March 30, 2020, the United States House of Representatives Committee on the Judiciary recommended a similar plan of action, calling on the federal Bureau of Prisons to drastically increase its population reduction efforts, including through release where viable and increased use of home detention.58
64. Echoing the calls of advocates and medical professionals, a group of 35 elected prosecutors have called on leaders within the criminal legal system to “dramatically reduce the number of incarcerated individuals and the threat of disastrous outbreaks.”59
65. A number of states have begun to take steps to protect people in prisons from the impending spread of COVID-19 by releasing people in an effort to reduce populations.
66. In California, Governor Newsom announced his plans to accelerate the release of 3,500 people from state prisons in an effort to reduce the population as COVID-19 infections continue to spread in the prisons.60 This announcement comes in advance of a court hearing schedule to begin later this week to determine if more individuals should be released.
57 Id. at 634. 58 March 30, 2020 letter, https://judiciary.house.gov/uploadedfiles/3.30.20_letter_to_ag_barr_re_covid19.pdf?utm_source=The+Marshall+Project+Newsletter&utm_campaign=e6df8704ef-EMAIL_CAMPAIGN_2020_03_31_11_34&utm_medium=email&utm_term=0_5e02cdad9d-e6df8704ef-174272961 59 Fair and Just Prosecution, Joint Statement from Elected Prosecutors on COVID19 and Addressing the Rights and Needs of Those in Custody (Mar. 2020), https://fairandjustprosecution.org/wp-content/uploads/2020/03/Coronavirus-Sign-On-Letter.pdf 60 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, LATimes (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronavirus-california-release-3500-inmates-prisons.
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67. The Iowa Department of Corrections has announced that the DOC is expediting
the release of about 700 prisoners, or 7% of its population, who are approved for parole or work
release.61
68. In New York, Governor Cuomo ordered the release of more than 1,000 people
who are in prisons and jails across the state on the basis of a parole violation.62
69. In Colorado, Governor Polis issued an executive order that suspended the caps
and criteria Colorado places on the accrual of good time credits in order to allow the DOC to
award earned time credits to “facilitate the reduction of the population of incarcerated persons
and parolees to prevent an outbreak in prisons.”63 Additionally, the Colorado governor sus-
pended and relaxed the criteria for individuals to be released to Special Needs Parole.64
70. The Vermont Department of Corrections has worked to reduce its population:
“[t]he goal is to reduce our (inmate) population so we can start spreading out the remaining pop-
ulation.”65 Jim Baker, commissioner for the Department, stated that they “started by looking at
61 Officials cut prison, jail numbers; Iowa virus cases hit 105, Newton Daily News (Mar. 24, 2020) https://www.newtondailynews.com/2020/03/23/officials-cut-prison-jail-numbers-iowavirus-cases-hit-105/acs5xbk/. Also, in North Dakota, the state parole board decided to release over fifty people, or about 2% of its prison population, on early parole. See April Baumgarten, North Dakota paroles 56 prisoners early amid pandemic, including 3 convicted of sexual assault, Grand Forks Herald (Mar. 20, 2020), https://www.grandforksherald.com/news/crime-andcourts/5009882-North-Dakota-paroles-56-prisoners-early-amid-pandemic-including-3-convicted-of-sexual-assault 62 Brendan J. Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deaths-surge-again-in-New-Yorkfrom-coronavirus-15160973.php (reporting on New York Governor Cuomo’s order to release parole violators). 63 State of Colorado, Executive Order D 2020 016, March 25, 2020, at pg. 2, available at: https://drive.google.com/file/d/18o0yWHzZleHJ87hmgLuBmXwpM8R74Q5x/view 64 Id. 65 Anna Merriman, ‘It’s very difficult to control’: Many Vermont inmates released so that those who remain can be spread out, Valley News (Mar. 26, 2020). https://www.vnews.com/VermontNH-prisons-working-to-reduce-population-to-prevent-virus-spread-33512589
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which inmates can be let out on furlough and who can be released on probation.”66 Since late February, the Vermont DOC has released over 200 prisoners (from a population of approximately 1600), with 100 prisoners being released in the past week.67
71. Other states, like Oklahoma and Wisconsin, have taken more moderate, and thus less effective, steps to reduce the populations in prisons by only halting new admissions from county jails into state prison facilities.68
72. Several counties with significant jail populations have also undertaken measures to reduce their facility’s population in an effort to slow the spread of COVID-19. Many of these steps have included drastically reducing the jail populations within a matter of weeks, or sometimes days. Counties on the West Coast have been the sites of several large scale jail population reductions. Counties in California in particular have seen significant reductions. The Los Angeles County Sheriff decreased the jail population by ten percent by releasing 1,700 individuals within the last month.69 In Alameda County in Northern California, more than 300 individuals have been released from jail in the span of two weeks, amounting to eleven percent of the jail’s
66 Id. 67 Id.; For population size, see https://doc.vermont.gov/sites/correct/files/documents/2020-0323-DOC%20Staff%20Test.pdf 68 DOC Stops Accepting Newly Sentenced State Prisoners, The Frontier (Mar. 22, 2020), https://www.enidnews.com/news/local_news/doc-stops-accepting-newly-sentenced-state-prisoners/article_ea6a42a4-47c1-5dbc-9446-5dec46032c5d.html (Oklahoma DOC halting new admissions into the state prison system); Emergency Order # 9, Order to the Dep’t of Corrections, Tony Evers, Gov. Wisconsin (Mar. 20, 2020). 69 Justin Carissimo, 1,700 inmates released from Los Angeles County in response to coronavirus outbreak, CBS News (Mar. 24, 2020), https://www.cbsnews.com/news/inmates-released-los-angeles-county-coronavirus-response-2020-03-24/
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population.70 Oregon has similarly reduced its jail population in Washington County, outside
Portland, by more than 120 inmates (from a population of 574), freeing up enough space for each
remaining inmate to be housed in their own cell.71 Washington State similarly released more
than 400 individuals from county jails in Clark and King County over the course of a couple of
days.72 In Arizona, Coconino County released ten percent of the jail population to reduce the
population to 400,73 and the Pima County Sheriff has proposed releasing seven percent of the jail
population by releasing 135 inmates.74 In Utah, about 200 individuals are in the process of being
released from the Salt Lake County jail over the coming days (a 10% reduction in population),
following the release of about 90 women from county jail.75
70 Sheriff Releases 314 Inmates to Reduce Coronavirus Risk at Alameda County Jail, NBC Bay Area, (Mar. 19, 2020), https://www.nbcbayarea.com/news/coronavirus/sheriff-releases-314-inmates-to-reduce-coronavirus-risk-at-alameda-county-jail/2258026/ (“The release of the 314 inmates reduces the number of inmates at Santa Rita to 2,40.”). 71 Kimberly Kindy, Emma Brown & Dalton Bennett, ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, Washington Post (Mar. 25, 2020), https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-released-as-jails-face-coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313df458622c2cc_story.html (Washington County jail reduced its population by 120 individuals); Bob Heye, Coronavirus and Crime: Jail releases, a rash of break-ins and one encouraging trend, KATU (Mar. 23, 2020), https://katu.com/news/coronavirus/coronavirus-and-crime-jailreleases-a-rash-of-break-ins-and-one-encouraging-trend 72 Jerzy Shedlock, Clark County Jail releases nearly 200 inmates due to COVID-19, The Columbian (Mar. 25, 2020), https://www.columbian.com/news/2020/mar/25/clark-county-jail-releases-nearly-200-inmates-due-to-covid-19/ 73 Scott Buffon, Coconino County jail releases nonviolent inmates in light of coronavirus concerns, Arizona Daily Sun (Mar. 20, 2020), https://azdailysun.com/news/local/coconino-countyjail-releases-nonviolent-inmates-in-light-of-coronavirus-concerns/article_a6046904-18ff-532a9dba-54a58862c50b.html. 74 Jacques Billeaud, Tucson lawyers seek release of nonviolent inmates from jail, Tucson.com (Mar. 24, 2020), https://tucson.com/news/local/crime-and-courts/tucson-lawyers-seek-release-ofnonviolent-inmates-from-jail/article_0cd49be4-6dd6-11ea-99d3-576d60e1dae5.html. 75 Francisco Kjolseth, Hundreds of Utah inmates will soon be released in response to coronavirus, The Salt Lake Tribune (Mar. 20, 2020), https://www.sltrib.com/news/2020/03/21/hundreds-utah-inmates/ (the total jail population in Salt Lake County jail was 1,964 people).
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73. Cleveland, Ohio drastically reduced the Cuyahoga County jail’s population by releasing over 700 people from detention, a 35 percent reduction in population.76 In Minnesota, the Hennepin County jail released 26 percent of the individuals detained.77 In New Orleans, judges overseeing the local criminal court issued a “blanket order” to release a substantial number of individuals being held in pretrial detention.78 The New Orleans jail population has subsequently been reduced by about 14 percent.79 In Alabama, the jail population in Washington County is likely to reduce by over 40 percent: from more than 800 a few months ago to below 450.80 Several other Midwestern and Southern counties have seen population reductions of 150
76 Officials taking steps to reduce county jail populations in Ohio, AP, WBNS (Mar. 21, 2020), https://www.10tv.com/article/officials-taking-steps-reduce-county-jail-populations-ohio-2020mar 77 Coronavirus In Minnesota: Hennepin County Jail Population Cut By 26% After Release Of Low-Risk Inmates To Prevent COVID-19 Spread, CBS Minnesota (Mar. 23, 2020), https://minnesota.cbslocal.com/2020/03/23/coronavirus-in-minnesota-hennepin-county-jail-population-cutby-26-after-release-of-low-risk-inmates-to-prevent-covid-19/ 78 Orleans Criminal Court judges order release of certain inmates amid coronavirus crisis, WDSU News, (Mar. 26, 2020), https://www.wdsu.com/article/orleans-criminal-court-judges-order-release-of-certain-inmates-amid-coronavirus-crisis/31943462# 79 Id. 80 Tom Sissom, Washington County jail plans for release of 81 more inmates, Northwest Arkansas Democrat-Gazette (Mar. 26, 2020), https://www.nwaonline.com/news/2020/mar/26/washington-county-jail-plans-release-81-more-inmat/
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or more individuals from relatively small county jails, including: Oklahoma County, Okla-
homa;81 Sedgwick County, Kansas;82 Bexar County, Texas;83 St. Louis County, Missouri;84 Ma-
comb and Wayne Counties in Michigan;85 Kenton and Louisville Counties in Kentucky;86 and
Nashville, Tennessee.87
81 Oklahoma County, (Kayla Branch, Coronavirus in Oklahoma: Over 200 nonviolent offenders released from Oklahoma County jail to limit COVID-19 spread, The Oklahoman (Mar. 25, 2020) https://oklahoman.com/article/5658504/coronavirus-in-oklahoma-over-200-non-violent-offenders-released-from-oklahoma-county-jail-to-limit-covid-19-spread (releasing 200 people). 82 R. Leiker & Michael Stavola, So far, 200 jail inmates released over COVID-19 concerns, Sedgwick County DA says, The Wichita Eagle (Mar. 26, 2020), https://www.kansas.com/news/local/crime/article241501106.html 83 Eileen Pace, Bexar County Jail Explores Early Releases, Ceasing Low-Level Arrests Amid Coronavirus, Texas Public Radio (Mar. 20, 2020), https://www.tpr.org/post/bexar-county-jailexplores-early-releases-ceasing-low-level-arrests-amid-coronavirus (releasing more than 140 people). 84 Jeremy Kohler & Joel Currier, St. Louis city and county to release more than 140 inmates amid virus concerns, St. Louis Post-Dispatch (Mar. 26, 2020) https://www.stltoday.com/news/local/crime-and-courts/st-louis-city-and-county-to-release-more-than-inmates/article_dd8b30f6c3ea-5229-b7ac-0aa36ee8f14c.html. 85 Karen Drew, Metro Detroit county jails reviewing cases to see which inmates could be released amid coronavirus (COVID-19) outbreak, Click On Detroit (Mar. 24, 2020), https://www.clickondetroit.com/news/defenders/2020/03/25/metro-detroit-county-jails-reviewing-cases-to-see-which-inmates-could-be-released-amid-coronavirus-covid-19-outbreak/ (the two counties combined released more than 440 individuals). 86 John Cheves, Chief justice pleads for Kentucky inmate releases ahead of COVID-19, but progress slow, Lexington Herald Leader (Mar. 23, 2020), https://www.kentucky.com/news/coronavirus/article241428266.html; Katrina Helmer, Metro Corrections releasing non-violent inmates to prevent coronavirus spread, WDRB.com (Mar. 18, 2020), https://www.wdrb.com/news/metro-corrections-releasing-non-violent-inmates-to-prevent-coronavirus-spread/article_0fbed080-6968-11ea-ada1-f73b721440b2.html 87 Kevin Johnson, Local jails releasing hundreds of prisoners amid coronavirus fears, up from dozens just weeks ago, USAToday (Mar. 26, 2020), https://www.usatoday.com/story/news/politics/2020/03/26/jails-free-hundreds-prisoners-stop-coronavirus/5077204002/
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74. On the East Coast, Pittsburgh reduced the county jail population by 20 percent by
releasing approximately 500 people.88 New York City plans to release about 7% of Rikers Is-
land’s population by releasing 375 inmates who do not pose a threat to society, amidst a call
from advocates for more releases given the ballooning rate of infection in Rikers Island.89 A
Florida county, which includes Tampa, also reduced its local jail population of 2,700 by releas-
ing 6 percent, or 164 people, from the jail.90
75. Supreme courts in several states have collaborated in or led the efforts to reduce
jail populations by issuing orders, demonstrating a growing consensus on the huge impact that
the virus has within detention facilities. The Chief Justice of New Jersey ordered the release of
approximately 1,000 individuals from New Jersey jails, which is nine percent of the popula-
tion.91 South Carolina’s Chief Justice ordered the release of all individuals charged with a non-
capital offense on their own recognizance, unless the individual presents an unreasonable danger
88 Paula Reed Ward, 485 Allegheny County jail inmates released over virus fears, Pittsburgh Post-Gazette (Mar. 26, 2020), https://www.post-gazette.com/news/crime-courts/2020/03/26/Allegheny-County-jail-inmates-485-released-Pittsburgh-coronavirus-COVID-19-fears/stories/202003260184. 89 Tess Owen, NYC Is Releasing Hundreds of Inmates to Stop the Spread of Coronavirus, VICE News (Mar. 26,2020), https://www.vice.com/en_us/article/939j9a/nyc-is-releasing-hundreds-ofinmates-to-stop-the-spread-of-cornavirus; Noah Higgins-Dunn, Coronavirus: New York City to release 300 nonviolence inmates from Rikers Island, CNBC (Mar. 24, 2020) https://www.cnbc.com/2020/03/24/coronavirus-new-york-city-to-release-300-nonviolent-inmates-from-rikers-island.html 90 Thomas Metevia, , Hillsborough County to free non-violent inmates in effort to prevent COVID-19 spread, , Click Orlando.com (Mar. 20, 2020), https://www.clickorlando.com/news/local/2020/03/19/hillsborough-county-to-free-non-violent-inmates-in-effort-to-prevent-covid-19spread/. 91 In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering the release of any inmate in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction); see Tracey Tully, 1,000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, NYTimes (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.
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to the community or is an extreme flight risk.92 Nearly 200 people were released pursuant to this order.93 In Montana, the Chief Justice instructed his state’s judges to “review your jail rosters
and release, without bond, as many prisoners as you are able, especially those being held for
non-violent offenses.”94 In California, the Chief Justice instructed courts at sentencing or when
setting conditions of release to consider the person’s “existing health conditions” and any “con-
ditions existing at . . . the anticipated place of confinement that could affect the [person’s] health.”95
76. Recognizing the immediate threat of COVID-19 and the need to reduce the popu-
lation of Cook County Jail to limit the risk of jail detainees and staff being exposed to COVID-
19 and allow for people in the jail to practice social distancing, on March 23, 2020, Judge LeRoy
Martin in the Circuit Court of Cook County issued an order for an expedited bond process for
specific classes of defendants, including those charged with low-level felonies, those detained on
a cash bond they cannot afford, medically-vulnerable detainees, those serving a jail sentence, and those locked up on a probation or parole violation warrant.96
92 Memorandum from Donald W. Beatty, Chief Justice of South Carolina Supreme Court, to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461 93 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), https://theappeal.org/politicalreport/some-supreme-courts-are-helping-shrink-jails-coronavirus/ 94 Letter from Mike McGrath, Chief Justice of Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-03-20115517-333. 95 Kyle C. Barry, Some Supreme Courts Are Helping Shrink Jails To Stop Outbreaks. Others Are Lagging Behind, The Appeal (Mar. 25, 2020), https://theappeal.org/politicalreport/some-supreme-courts-are-helping-shrink-jails-coronavirus/ 96 Matt Masterson, COVID-19 Case at Cook County Jail Prompts More Calls for Mass Detainee Release, WTTW News (Mar. 23, 2020), https://news.wttw.com/2020/03/23/covid-19-case-cookcounty-jail-prompts-more-calls-mass-detainee-release
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D. IDOC and Governor Pritzker Are Failing to Take Necessary Precautions to Reduce the Spread of COVID-19 Within Prisons and Their Surrounding Communities, Placing People at an Increased Risk
77. The IDOC operates 28 adult correctional facilities throughout the State of Illinois and houses around 37,000 individuals. There are 11,600 individuals employed by the IDOC.
78. Illinois prisons are on the cusp of an outbreak, but there is still time for urgent and decisive action that can prevent harm. The first confirmed cases of COVID-19 in IDOC occurred on Wednesday, March 25, 2020—three prisoners and three staff tested positive for COVID-19, and 10 additional prisoners were tested and were awaiting results.
79. As of April 1, 2020, there are 52 confirmed prisoners who have COVID-19 in two different correctional centers (Stateville and North Lawndale ATC) and 25 confirmed staff who have the virus in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC).97 There are 187 additional prisoners who were tested and are awaiting results.98 However, the actual number of individuals with COVID-19 in IDOC is likely much higher.
80. On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19.99
81. On March 26, 2020, the Governor acknowledged that “certain populations are at a higher risk of experiencing more severe illness as a result of COVID-19, including older adults
97 COVID-19 Response, Illinois Department of Correction, https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 1, 2020). 98 Id. 99 Emily Hoerner, Edlerly inmates are at high risk for coronavirus. Why are there so many of them in Illinois’s prisons?, InjusticeWatch, https://www.injusticewatch.org/news/2020/elderlyinmates-are-at-high-risk-for-coronavirus-why-are-there-so-many-of-them-in-illinoiss-prisons/
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and people who have serious chronic health conditions, such as heart disease, diabetes, lung disease or other mental or physical conditions.”100 The Governor also acknowledged that “the vast majority” of those housed within IDOC are in “close proximity and contact with each other in housing units and dining halls,” making them “especially vulnerable to contracting and spreading COVID-19.”101 The Governor further acknowledged that “the IDOC currently has limited housing capacity to isolate and quarantine inmates who present as symptomatic of, or test positive for, COVID-19.”102 The Governor stated that “to ensure that the Director of the IDOC may take all necessary steps, consistent with public health guidance, to prevent the spread of COVID-19 in the IDOC facilities and provide necessary healthcare to those impacted by COVID-19, it is critical to limit any increases in the number of inmates in the IDOC facilities.”103 In response, the Governor issued an emergency executive order that suspended admissions of new prisoners from county jails.104 The Governor’s order, however, failed to address the fact that hundreds of people will still come and go from the prisons every day, and does not speed up and extend the release of any of the current population.
82. Neither the Governor nor the IDOC have acted with the urgency or decisiveness that is required to quell this oncoming crisis. The Governor has not taken any steps to substantially reduce the population or expand IDOC’s ability to release, furlough, or transfer to home detention even those who are medically vulnerable. IDOC has taken only limited steps to this
100 Executive Order 2020-13 (March 26, 2020), https://www2.illinois.gov/IISNews/21288Gov._Pritzker_Stay_at_Home_Order.pdf 101 Id. 102 Id. 103 Id. 104 Id.
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end, releasing far fewer than it could even in cases of those who are medically vulnerable and close to the end of the incarceration period anyway.
83. Even before COVID-19 entered IDOC, activists, community organizers, and civil rights lawyers began advocating for de-population efforts in IDOC to curb the spread. On March 17, 2020, advocates sent a letter to Governor Pritzker urging him to order IDOC to release individuals who can be released from custody in a way that is consistent with public safety. The letter outlined a number of specific actions Governor Pritzker should take to protect the vulnerable individuals in IDOC custody, as well as the staff who work there, including: (1) immediately ordering the release of individuals whose release dates are within 120 days; (2) release all individuals in custody awaiting parole revocation hearings; (3) prioritize release for any individuals whose release plans are pending host site approval; (4) order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants; (5) release individuals with viable clemency petitions; (6) take all actions necessary to maximize good time credits; (7) evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs; (8) evaluate individuals with HCU living assignments and chronic care needs for consideration of early release; (9) take steps to limit intake into IDOC facilities; and (10) ensure that the IDOC has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities.105
84. Illinois law provides several established mechanisms for reducing the prison population, all of which are available to the Governor and Director in this emergency. The Governor and Director of IDOC have authority pursuant to various Illinois statues to reduce the population in Illinois prisons. Pursuant to 730 ILCS 5/3-11-1(a)(2), the IDOC may release a person from
105 March 17, 2020 Letter, Exhibit 6.
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prison on medical furlough “to obtain medical, psychiatric or psychological services when adequate services are not otherwise available.” The IDOC therefore has statutory authority to release on medical furlough individuals who are medically vulnerable to COVID-19 either due to age or pre-existing medical conditions.
85. Pursuant to the Electronic Monitoring and Home Detention Law, 730 ILCS 5/58A-1 et seq. (“Home Detention Law”), IDOC has the authority and obligation to implement procedures through which eligible prisoners may serve a portion or all of their custodial sentence in home detention. The Home Detention Law directs the Department to issue administrative directives to allow for specifically enumerated categories of state prisoners to serve portions of their sentence in home detention. Pursuant to 730 ILCS 5/5-8A-3(d), IDOC may place a prisoner in an electronic monitoring or home detention program if that person is over 55 years old, has 12 months or less to serve on their sentence, has served at least 25% of their sentenced prison term, and is serving a sentence for conviction of an offense other than for certain sex offenses.
86. Pursuant to 730 ILCS 5/5-8A-3(e), IDOC may place a person of any age serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense in an electronic monitoring or home detention program at any time.
87. Pursuant to 730 ILCS 5/5-8A-3(b) and (c), IDOC may place a person of any age serving a sentence for conviction of a Class 1 or Class X felony offense, other than an excluded offense, in an electronic monitoring or home detention program for a period not to exceed the last 90 days of incarceration.
88. Pursuant to the Administrative Code, 20 Ill. Adm. Code 107.210, the Director of IDOC may award to eligible prisoners up to 180 days of discretionary good conduct credit.
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89. On March 23, 2020, advocates sent a detailed memo to the Governor’s office, setting forth further details of who the IDOC could and should be releasing based on these relevant statutes and administrative directives. This memo emphasized that IDOC should identify and release as many individuals as possible who are medically vulnerable with regard to COVID-19 as well as people who are over the age of 55. The memo also urged the Governor’s Office to order IDOC to immediately, inter alia: (1) transfer to home detention and electronic monitoring all eligible people serving sentences for Class 2-4 felonies pursuant to 730 ILCS 5/58A-3(e); (2) transfer to home detention and electronic monitoring all eligible people over the age of 55 who have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A3(d); and (3) award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.106
90. Despite this pressure from advocates, and despite the Governor’s own admissions that people in IDOC custody are especially vulnerable to contracting and spreading COVID-19, the IDOC is not utilizing its authority with any degree of urgency to identify and release medically vulnerable prisoners or prisoners who otherwise qualify for early release.
91. On March 31, 2020, officials publicly announced that IDOC has released around 300 individuals—or less than one percent of the prison population.107 This number is far lower than the population reduction needed to protect those who remain in custody and the surrounding
106 March 23 Letter, Exhibit 7. 107 The Governor’s Press Conferences are available for streaming at: https://www.nbcchicago.com/news/local/watch-live-daily-coronavirus-briefing-from-illinois-health-officials/2234359/ (last visited March 31, 2020).
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communities. Moreover, many who qualify for release and are medically vulnerable remain in custody, including named Petitioners here, putting their lives in jeopardy.
92. Corrections expert Dan Pacholke has opined that IDOC should “determine who, including those still housed in prisons, and those on work release, is within the categories . . . that IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. the criteria adopted should be designed to significantly reduce the prison population.”108
93. If IDOC does not act immediately to reduce its prison population, COVID-19 is likely going to spread rapidly throughout IDOC, overburdening IDOC’s medical care program and resulting in likely deaths.109
E. IDOC’s Medical Care Program is Gravely Under-Resourced and UnderFunctioning, and is Not Capable of Managing COVID-19
94. Even before COVID-19, IDOC’s medical care program was ill-equipped to meet the medical needs of prisoners in its care. For over a decade, IDOC has been mired in litigation over its consistent failure to maintain a minimally adequate system. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.). In 2014 and again 2018, the Lippert court appointed teams of independent experts to conduct exhaustive reviews of IDOC’s medical system, both of which exposed a system in dire need of reform. In October 2018, the team of experts issued a 1200-page report, reaching the following the conclusions:
a) The clinical care provided within IDOC was “extremely poor” and “resulted in preventable morbidity and mortality”;
108 Pacholke Decl., Exhibit 5. 109 Haney Decl., Exhibit 3.
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b) IDOC lacked an adequate infections disease control program; c) IDOC’s Infectious Disease Coordinator position was vacant and had been vacant
since at least 2014; d) Systemic sanitation problems existed at multiple IDOC facilities; e) IDOC’s medical staff vacancy rates were “very high” and staffing was a “critical
problem” throughout IDOC; f) Physician staffing at IDOC was “very poor,” with “persistent and ongoing vacan-
cies” in site medical director positions, high rates of turnover, and an over-reliance on “traveling” medical directors who go from site to site; g) Physicians who worked at IDOC were improperly credentialed, which was “a major factor in preventable morbidity and mortality” and “significantly increase[ed] the risk of harm to patients within IDOC.”110 95. Less than one year ago, IDOC agreed to a consent decree, which was approved and entered by the Court in May 2019, to begin needed reforms. See Lippert v. Jeffreys, No. 10 cv 4603 (N.D. Ill.), Doc. No. 1238 (consent decree). The consent decree called for the appointment of an independent monitor and a near complete overhaul of IDOC’s medical system. 96. In the nine months since the Lippert consent decree was entered, IDOC has taken preliminary steps to comply, but circumstances within the facilities remain largely unchanged. IDOC is still only in early stages of developing a compliance plan. There has been no meaningful on the ground change yet; facilities are still critically under-staffed and under-resourced. IDOC is simply unable to adequately meet the serious medical needs of IDOC’s population even under non-pandemic circumstances.
110 Exhibit 8 (Lippert Expert Report, October 2018) at 9-10, 21-31, 84-91.
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97. Even before the COVID-19 outbreak, in November 2019, the Lippert court monitor warned that the prevalence of elderly and infirm individuals in IDOC was straining the system.111 Regarding this population, the monitor noted: “It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community.”112
98. Since the outbreak of COVID-19, IDOC administrators have issued memos to prisoners notifying them that their medical resources were “stretched thin” and that they needed to focus “on [their] most vulnerable patients at this time.”113
99. As of the date of this filing, there are 48 confirmed COVID-19 cases at Stateville, with approximately 19 Stateville prisoners in outside hospitals—so many that they overwhelmed the outside hospital that typically serves Stateville residents. The situation at Stateville is so grave that the Governor had to activate Illinois National Guard service members to provide additional medical support at the prison.114 At this point there are no confirmed prisoner cases at any other prison, but there is no reason to believe that COVID-19 will not reach the other prisons. Likewise there is no reason to believe that Stateville’s tragic outcome will not repeat itself at other facilities. The time to act is now.
F. Petitioners are Particularly Vulnerable
111 Exhibit 9 (Lippert Court Monitor Report, November 24, 2019) at 9-10. 112 Id. 113 Exhibit 10 (IDOC Memorandum, COVID-19 Response). 114 Tina Sfondeles, Illinois National Guard medics headed to Stateville as inmate coronavirus cases rise, Chicago Suntimes (Apr. 1, 2020), https://chicago.suntimes.com/coronavirus/2020/4/1/21202995/coronavirus-covid-19-illinois-prison-stateville-national-guard-fieldhospital
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100. Petitioners in this case and individuals who are currently housed in prisons are who are particularly vulnerable to serious illness or death if infected by COVID-19.
101. James Money (S11097) is 28 years old and is housed at Illinois River Correctional Center in Canton, Illinois. In 2016, Mr. Money was diagnosed with Stage 3 metastatic thyroid cancer. He has undergone several surgeries, most recently in January 2020, resulting in the removal of over 80 lymph nodes and a full thyroidectomy, and is now immunocompromised. He was scheduled to begin chemotherapy treatment on March 24, 2020, but IDOC cancelled his treatment, presumably to focus instead on COVID-19. Mr. Money has already served nearly 5 years of his sentence for residential burglary out of Adams County, and he is currently scheduled to be released on June 19, 2020. He is eligible for medical furlough pursuant to 730 ILCS 5/311-1 and discretionary good time pursuant to 20 Ill. Adm. Code 107.210. Mr. Money is also within 90 days of his release date, is eligible for release to home detention pursuant to 730 ILCS 5/5-8A-3(b). Mr. Money’s parole conditions have already been determined and he is approved to reside with his fiancée’s residence in Warsaw, Illinois. His fiancée is fully prepared to provide for his medical needs. Mr. Money is a member of Subclasses 1, 5, and 6.
102. William Richard (M52774) is 66 years old and lives in the healthcare unit at Dixon Correctional Center. Mr. Richard has COPD, emphysema, and heart disease, and uses a wheelchair for movement. His respiratory disease requires continuous oxygen and a breathing treatment two to three times per day. He shares his roughly 12 feet by 15 feet cell with three other individuals, making social distancing impossible—his bunk is less than 5 feet from his cellmate’s bunk, and all four men share a toilet, sink, and the chuckhole through which they receive
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their meals. Mr. Richard has less than four months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to transfer to home detention at his mother’s home. Mr. Richard is a member of Subclasses 1, 2, 3, and 6.
103. Gerald Reed (N32920) is housed at the Northern Reception Center. He is 57 years old. Mr. Reed has heart failure, hypertension, and is pre-diabetic. Mr. Reed uses a wheelchair for mobility because of a decades-old leg injury that adversely affects his mobility. Within the last year, Mr. Reed has been hospitalized for a heart attack and for pneumonia. At the NRC, he is prohibited from accessing commissary and is only provided a single, small bar of soap. Pursuant to 730 ILCS 5/3-11-1, Mr. Reed is eligible for medical furlough at his mother’s home. Mr. Reed is a member of Subclasses 1 and 2.
104. Amber Watters (Y39454) is 30 years old and is housed at Logan Correctional Center in Lincoln, Illinois. Ms. Watters has neurological complications from a broken back she suffered prior to her incarceration in 2019. Prior to her incarceration, Ms. Watters was the primary caretaker for her three minor children. She is serving two three-year sentences for low level drug offenses out of Livingston County; a Class 4 sentence for possession of heroin, and a Class 2 sentence for possession with the intent to distribute a small amount of heroin. Ms. Watters is scheduled to be released on May 1, 2020, and is eligible under 730 ILCS 5/5-8A-3(e) to transfer to home detention to her mother’s home. Ms. Watters is a member of Subclass 4.
105. Tewkunzi Green (R84568) is housed at Logan Correctional Center in Lincoln, Illinois. She has asthma and severe hypertension for which she takes multiple medications. In January 2019, she fainted related to hypertension and was held in the cardiology unit of an offsite hospital for several days. At Logan, Ms. Green shares a room with three other women. Ms.
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Green has a pending commutation petition, which was filed by the January 23, 2020, filing deadline; her hearing date of April 7, 2020 was postponed and she is now scheduled for a non-public hearing. She is also eligible for medical furlough under 730 ILCS 5/3-11-1. Ms. Green has a stable housing plan in that her mother, who owns her own home in Peoria, Illinois, where she also cares for Ms. Green’s 13-year-old son, is willing and able to receive Ms. Green at any time. Ms. Green is a member of Subclass 1.
106. Danny Labosette (B23629) is currently housed at Robinson Correctional Center in Robinson, Illinois. Mr. Labosette is 56 years old and is a double amputee; his left leg has been amputated above the knee, and his right foot has been amputated. Mr. Labosette uses a wheelchair. Mr. Labosette also has untreated Hepatitis C. Mr. Labosette is housed in the Transitions Unit, a treatment facility within Robinson Correctional Cell. Social distancing is impossible for Mr. Labosette—he resides in a dorm with roughly 20 other men. He sleeps in the bottom bunk of a bunk bed, which is 3 feet away from the neighboring beds. Mr. Labosette has less than six months remaining on his sentence, and is eligible under 730 ILCS 5/5-8A-3(d) to be transferred to home detention at his mother’s home in Florida, which has already been modified to accommodate his disabilities. Mr. Labosette is a member of Subclasses 1, 2, and 3.
107. Carl Reed (R48993) is currently housed at Graham Correctional Center in Hillsboro, Illinois. He is 59 years old and he suffers from chronic kidney disease—requiring dialysis three days per week—diabetes, hypertension, and underlying neurological impairments. A doctor who is an expert in correctional health care has reviewed Mr. Reed’s medical records and recommends his immediate release for Mr. Reed’s health and safety. Mr. Reed has eight years left on his sentence, and he is eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. He has a
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pending petition for executive clemency, and he has a stable housing plan for his release: he can live with his sister in Chicago. Mr. Reed is a member of Subclasses 1 and 2.
108. Carl “Tay Tay” Tate (R12529) is a 40-year-old transgender woman diagnosed with Gender Dysphoria, who is housed at Danville Correctional Center. Ms. Tate has almost six years left of her sentence to serve. Ms. Tate lives with hypertension, for which she takes medication. Ms. Tate also lives with severe anxiety, and the COVID-19 outbreak has only increased her anxiety. She shares a small cell with one other person. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, Ms. Tate estimates that around 24 people may be in the dayroom at a time. She estimates that around 75 people may be in the yard. Ms. Tate also works as a laundry porter, which places her in frequent contact with other prisoners and staff. She has asked for gloves to use, and has been denied. She has also asked for more cleaning supplies to clean the dayroom, including the phones, and has been denied. It is impossible for Ms. Tate to practice social distancing in her living situation. Ms. Tate has a pending clemency petition—which has the support of 40 organizations across the state—and her hearing date of April 7, 2020 was postponed and is being rescheduled. Ms. Tate has a stable housing plan in place for when she is released: she will live with her sister who resides in Lansing, Illinois. Ms. Tate is a member of Subclass 1.
109. Patrice Daniels (B70662) is 45 years old, serving a life sentence and not eligible for release. He is incarcerated at Joliet Treatment Center. Although this is one of the few facilities that has single occupant cells, he still shares a shower and dayroom with the other residents of this housing unit. Even with current limits on the number of people in the unit who are allowed out of their cells to use the communal dayroom, up to 8 people may be in the dayroom at a time. Mr. Daniels also works as a dietary aide, which places him in frequent contact with other
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prisoners and staff from outside of his housing unit each day. Mr. Daniels estimates that even with in-unit meal delivery, each person’s meal is handled by approximately 6-8 other people between preparation and delivery. Mr. Daniels describes feeling “like a sitting duck” waiting for the coronavirus to strike. Mr. Daniels is a member of the Class.
110. Anthony Rodesky (R47057) is currently housed at Pontiac Correctional Center in Pontiac, Illinois. He is 49 years old and has diabetes and other chronic health conditions, and in 2015 he had a below-knee amputation. Mr. Rodesky is a New Jersey prisoner who is in Illinois custody pursuant to an interstate compact agreement between New Jersey and Illinois and he is not eligible for release. Mr. Rodesky has ongoing medical needs, and he must interact with Pontiac health care staff at least twice daily, in order to receive his insulin shots. He also must stand next to other prisoners when he leaves his cell to obtain his insulin shots. Mr. Rodesky is deeply fearful of contracting COVID-19 on account of his pre-existing medical vulnerabilities. Even if Mr. Rodesky is not exposed to COVID-19, an outbreak at Pontiac would drain medical resources at Pontiac that he and other prisoners with chronic health conditions rely on for every day survival. Mr. Rodesky is a member of the Class.
VI. CLASS ALLEGATIONS 111. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2254
on their own behalf and on behalf of all persons similarly situated. See Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (“Roughly speaking, this makes § 2254 the exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting that custody.”). Petitioners seek to represent a class consisting of all people who are currently or
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who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic. Petitioners’ request for release from physical custody is limited to the following six subclasses:
a) Subclass 1: People in custody who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
a) Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
b) Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d).
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c) Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).
d) Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
e) Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Adm. Code 107.210 - Discretionary Sentence Credit.
112. A representative action may be maintained to pursue habeas claims. Bijeol v. Benson, 513 F.2d 965, 967 (7th Cir. 1975); see also Reno v. Flores, 507 U.S. 292 (1993) (class action seeking relief pursuant to 28 U.S.C. § 2241); U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Cir. 1976); U.S. ex rel. Green v. Peters, 153 F.R.D. 615, 617 (N.D. Ill. 1994) (granting class certification in habeas context, noting that “the obvious undesirability of a large number of individual petitioners clamoring for preference in the allocation of scarce resources… counsels strongly in favor of certification”). Although Rule 23 does not apply to habeas proceedings, the principles of Rule 23 provide guidance for evaluating when to allow such representative actions. All of the principles suggest that a representative action is appropriate here.
113. A representative action is the only practicable means by which the individual named Petitioners and the class members can challenge the Respondent’s unconstitutional actions. Many members of the class are without the means to retain an attorney to represent them in a habeas petition.
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114. The class and subclasses are so numerous that joinder of all members is impractical. The number of people in custody exceeds 36,000 on any given day, and each subclass contains hundreds, and sometimes thousands, of people. Subclass 1 contains approximately 12,000 who live with one or more medical vulnerability. Subclass 2 contains 4,807 people who are medically vulnerable to COVID-19 because they are 55 and older. Subclass 3 contains 700 people who are over age 55, have less than one year left on their sentence, and are eligible for transfer to home detention. Subclass 4 contains over 9,000 people who are currently in custody for Class 2, 3, or 4 offenses and eligible for transfer to home detention. Subclass 5 contains 2,401 people who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for transfer to home detention. Subclass 6 contains 5,308 people who are eligible to be released in six months.
115. There are questions of law and fact common to all class members and the subclass, including: (1) does COVID-19 present a substantial risk of harm to people in the custody of the Illinois Department of Corrections; (2) does the Respondent have available to him measures that could reduce the number of people living in IDOC prisons, including those who are especially vulnerable to COVID-19; and (3) has the Respondent failed to act reasonably to mitigate the spread of COVID-19 and protect those in custody who are most vulnerable by not fully utilizing furlough, home detention, and mechanisms to reduce the prison population?
116. The claims of the named Petitioners are typical of those of the class as a whole. That typicality stems from their claim that Respondent has placed them at significant risk of harm by failing to take appropriate steps to address the risk of COVID-19 throughout the IDOC. Every single person in IDOC custody faces the same risk of contracting COVID-19 if the IDOC
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fails to take meaningful action to reduce the in-custody population. While members of Subclasses 1-2 have an increased risk of serious health complications and death as result of the threat of COVID-19 and Subclasses 3-6 suffer due process violations, the overarching nature of the threat of COVID-19 to every person confined in IDOC custody is sufficient to satisfy typicality.
117. The individual named Petitioners will fairly and adequately represent the interests of the class and subclasses. The named Petitioners have no conflicts with the unnamed members of the proposed class. In addition, their lawyers are experienced in federal court civil rights class actions, particularly those involving prisons and jails.
118. Respondent has refused to act in a manner that applies generally to the class as a whole, rendering class-wide injunctive and declaratory relief appropriate.
VII. LEGAL CLAIMS A. SECTION 2254 IS AN APPROPRIATE VEHICLE TO ADDRESS PETITION-
ERS’ CLAIMS FOR RELIEF 119. Habeas corpus is the appropriate instrument to obtain release when the core grievance is that the petitioner is being unlawfully subjected to physical restraint. Preiser v. Rodriguez, 411 U.S. 475, 486, (1973). Section 2254 allows this Court to grant habeas corpus relief when a state prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (“Roughly speaking, this makes § 2254 the exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting that custody.”). 120. A prisoner’s custody may violate the constitution when the physical restraint of imprisonment itself presents an imminent risk to the health and life of the individual. See Roba v. United States, 604 F.2d 215, 219 (2d Cir. 1979) (holding that prisoners’ “right not to be forcibly transported by government officials” while gravely ill was cognizable in habeas corpus); see
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also Preiser, 411 U.S. at 499 (leaving open the possibility that Section 2254 could be used to challenge conditions of confinement that render otherwise lawful custody unconstitutional).
121. Here, while Petitioners’ claims are rooted in the risk to their health posed by COVID-19, a “quantum” change in Petitioners’ custody is the only action sufficient to address the particular risk of harm they face as a result of their physical confinement in IDOC facilities. See Glaus v. Anderson, 408 F.3d 382, 387-88 (7th Cir. 2005).
122. Habeas corpus is the appropriate instrument even when prisoners seek something “less than complete freedom.” Maleng v. Cook, 490 U.S. 488 (1989); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (“If the prisoner is seeking what can fairly be described as a quantum change in the level of custody… then habeas corpus is his remedy.”). Here, while all Petitioners do not necessarily seek total release from IDOC custody, Petitioners do seek urgent release from prison facilities, whether by medical furlough or transfer to home detention on electronic monitoring. Both would arguably constitute a “quantum change in the level of custody.”
123. Transfer to home detention, medical furlough, and the awarding of good time credit sufficient for release are the only remedies sufficient to address the urgent violations of Petitioners’ constitutional rights. The inherent structure of prison facilities and nature of prison life makes social distancing utterly impossible, and no lesser remedy can adequately mediate the risk that imprisonment poses to Petitioners at this time.
B. IDOC’S Failure to Take Steps to Mitigate Transmission of COVID-19 Constitutes Deliberate Indifference to the Serious Risk of Harm to Petitioners 124. Respondent is violating Petitioners’ Eighth Amendment rights by continuing to
incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable condition and/or age. The reach of the Eighth Amendment includes “exposure of inmates to a serious,
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communicable disease.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“correctional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”).
125. All people held in the Illinois Department of Corrections are entitled to be protected from conditions of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment); French v. Owens, 777 F.2d 1250, 1252 (7th Cir. 1985) (“Prison conditions could be cruel and unusual when they deprive inmates of the minimal civilized measure of life's necessities or when they result in punishments that involve the unnecessary and wanton infliction of pain or are grossly disproportionate to the severity of the crime.” (citations omitted)).
126. The risk of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for the Petitioners and the vulnerable class members described herein. Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases). Under IDOC’s current conditions, Respondent has not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, release is the only means of protecting Petitioners and the class they seek to represent from unconstitutional treatment.
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127. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Id. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted); see also, Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (incarcerated people “may not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future health”) (citation and internal quotation marks omitted).
128. Here, Petitioners face a substantially increased risk of exposure to COVID-19, with the attendant risk of death that follows given their vulnerable conditions and/or age, because of Respondent’s failure to take meaningful and accessible steps to reduce the prison population. Respondent is well aware of this risk; in a March 30, 2020 press conference, the Director of the Illinois Department of Public Health Dr. Ngozi O. Ezike noted that:
Congregate settings such as Stateville. . . pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there. Those who are incarcerated live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread quickly once it’s introduced. Dr. Ngozi O. Ezike, March 30, 2020 Briefing. More crucially, Dr. Ezike noted that there are simply not enough cells in the Illinois prison system to allow sick prisoners to appropriately isolate. Id. (“Some correctional facilities do not have enough individual cells [to allow for quarantine of sick inmates].”).
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129. Release of all or some of the class members is the only remedy sufficient to remedy this constitutional violation. Without a substantial reduction in the prison population, Respondent is unable, by the admission of the Director of the Illinois Department of Public Health, to prevent or even mitigate the spread of COVID-19 throughout the prison.
C. IDOC’S Failure to Implement Illinois’s Home Detention Law Violates the Due Process Clause.
130. Respondent has further violated the Due Process rights of Petitioners in Subclasses 3, 4, and 5 by failing to implement statutorily-created mechanisms that would allow the Department of Corrections to transfer them to home detention. Inmates have a liberty interest in regulations that affect conditions of confinement, such as good-time credit. Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011). “A cognizable liberty interest may arise from the Constitution, statutes, or regulations.” Murphy v. Raoul, 380 F.Supp.3d 731, 760 (N.D. Ill. 2019) (citing Felce v. Fiedler, 974 F.2d 1464, 1488 (7th Cir. 1992) and Williams v. Lane, 851 F.2d 867, 879–80 (7th Cir. 1988)). As is the case here, “a state may create such an interest by state law.” Felce, 974 F.2d at 1490. If the language and structure of the statutes in question create an expectancy of release, they create a liberty interest. See Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001); Taylor v. Edgar, 52 F. App'x 825, 826–27 (7th Cir. 2002). Here, Respondent has failed to implement Illinois’s Electronic Monitoring and Home Detention Law, 730 ILCS 5/5-8A-1 et seq., in violation of Petitioners’ Due Process rights.
131. Through the Electronic Monitoring and Home Detention Law, 730 ILCS 5/5-8A1 et seq. (“Home Detention Law”), the Illinois Legislature created mechanisms through which state prisoners could be transferred to home detention. Section (e) of that statute allows transfer to home detention for anyone serving a sentence for a Class 2, 3, or 4 felony:
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(e) A person serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense may be placed in an electronic monitoring or home detention program pursuant to Department administrative directives. 730 ILCS 5/5-8A-3(e). Section (d) of the same statute provides for electronic monitoring or home detention of prisoners who are over the age of 55, have served more than 25% of their sentence, have not been convicted of an excludable offense, and have less than 12 months of remaining incarceration. See 730 ILCS 5/5-8A-3(d). Section (b) and (c) of the statute provides for electronic monitoring or home detention of prisoners who have been convicted of a Class X or Class 1 felony, have not been convicted of an excludable offense, and have less than 90 days of remaining incarceration. See 730 ILCS 5/5-8A-3(b)-(c).
132. The Home Detention Law implicitly and explicitly orders the Department to create directives allowing for transfer to home detention. 730 ILCS 5/5-8A-3(e) (“These directives shall encourage inmates to apply for electronic detention to incentivize positive behavior and program participation prior to and following their return to the community, consistent with Section 5-8A-4.2 of this Code.” (emphasis added)). Through its mandate, the statute creates enforceable rights to be included for consideration for home detention. Id. (“These directives shall not prohibit application solely for prior mandatory supervised release violation history, outstanding municipal warrants, current security classification, and prior criminal history, though these factors may be considered when reviewing individual applications in conjunction with additional factors, such as the applicant's institution behavior, program participation, and reentry plan.” (emphasis added)). Through its repeated orders to the Department—including orders that “these directives shall contain certain provisions—the Illinois Legislature has created an enforceable liberty interest in the Home Detention Law.
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133. Here, Respondent has taken no steps to implement the Home Detention Law; despite the plain language of the statute, eligible prisoners have no mechanism for seeking release or even consideration for home detention.
134. When a petitioner alleges that a state’s action—or inaction—violates the Due Process Clause, courts ask two questions: (1) whether there exists a liberty or property interest of which a person has been deprived, and if so, (2) whether the procedures followed by the State were constitutionally sufficient. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
135. Here, there is no question that Petitioners have been deprived of a liberty interest. The Supreme Court has repeatedly held that prisoners have a liberty interest in quantum changes in the conditions of confinement, such as probation, parole, and mechanisms for changes in confinement such as good time. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (circuit court’s holding that petitioners have a liberty interest in parole is consistent with Supreme Court law); Board of Pardons v. Allen, 482 U.S. 369, 373–381 (1987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979); Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (recognizing a liberty interest in good time credit). Like restrictions on probation, parole, or good-time credit, Petitioners’ inability to access the statutorily-created home detention law “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
136. Given that Petitioners have been deprived of a liberty interest, this Court must next consider whether the procedures followed by Respondent are constitutionally sufficient. Swarthout, 562 U.S. at 220 (“When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication—and federal courts will review the application
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of those constitutionally required procedures.”). Here, there is simply no procedure in place. Respondent has taken no steps to implement the Home Detention Law, effectively blocking any path to obtain the liberty created by statute. Respondent’s utter failure to create procedures by which Petitioners can access this statutorily created right is constitutionally insufficient. See, e.g.,Salcido ex rel. Gilliland v. Woodbury Cty., Iowa, 119 F. Supp. 2d 900, 925 (N.D. Iowa 2000) (absence of procedure for determining payment of involuntarily committed person, thereby limiting placement options, was constitutionally sufficient to protect liberty interest in placement).
VIII. PRAYER FOR RELIEF WHEREFORE, Petitioners respectfully request that the Court order the following relief: a) Immediate medical furlough for members of Subclass 1: People in custody who have se-
rious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1;
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b) Immediate medical furlough to members of Subclass 2: People in custody who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
c) Immediate transfer to home detention of members of Subclass 3: People in custody who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d).
d) Immediate transfer to home detention of members of Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e).
e) Immediate transfer to home detention of members of Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c).
f) An immediate aware of 180 days of sentencing credit to members of Subclass 6: People in custody who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Adm. Code 107.210.
g) Grant such other relief as this Court deems just and proper.
Petitioners seek an emergency hearing on this motion.
Respectfully submitted,
By: /s/ Vanessa del Valle One of the Attorneys for the Petitioners
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Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 sheila.bedi@law.northwestern.edu LukeFernbach2021@nlaw.northwestern.edu EmilyGrant2021@nlaw.northwestern.edu ttollner@nlaw.northwestern.edu * Law student licensed pursuant to Illinois Supreme Court Rule 711

Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932 vanessa.delvalle@law.northwestern.edu

Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411 alan@uplcchicago.org liz@uplcchicago.org
Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Ave, Suite 300 Chicago, IL 60602 (312) 341-0022 amanda@equipforequality.org samantha@equipforequality.org
Counsel for Petitioners

Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465 jennifer@illinoisprisonproject.org
Sarah C. Grady Loevy & Loevy 311 North Aberdeen St., 3rd Fl. Chicago, IL 60607 (312) 243-5900 sarah@loevy.com

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EXHIBIT 1

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Affidavit of Robert B. Greifinger, MD
I, Robert B. Greifinger, certify as follows:
1. I am a physician who has worked in health care for prisoners for more than 30 years. I have managed the medical care for inmates in the custody of New York City (Rikers Island) and the New York State prison system. I have authored more than 80 scholarly publications, many of which are about public health and communicable disease. I am the editor of Public Health Behind Bars: from Prisons to Communities, a book published by Springer (a second edition is due to be published in early 2021); and coauthor of a scholarly paper on outbreak control in correctional facilities.1
2. I have been an independent consultant on prison and jail health care since 1995. My clients have included the U.S. Department of Justice, Division of Civil Rights (for 23 years) and the U.S. Department of Homeland Security, Section for Civil Rights and Civil Liberties (for six years). I am very familiar with correctional facilities, having toured and evaluated the medical care in several hundred correctional facilities across the nation. I currently monitor the medical care in three large county jails for Federal Courts. My resume is attached as Exhibit A.
3. COVID-19 is a coronavirus disease that has reached pandemic status. As of today, according to the World Health Organization, more than 465,915 people have been diagnosed with COVID-19 around the world and 21,031 have died.2 In the United States, at least 85,724 people have been diagnosed and at least 1,275 people have died thus far.3 These numbers are likely a severe underestimate, due to the lack of availability of testing.
4. COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. There is no vaccine to prevent COVID-19 and there is unlikely to be a vaccine for at least a year. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to mitigate COVID-19 transmission is to use scrupulous hand hygiene and social distancing.
5. When infected, people in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. The U.S. Centers for Disease Control and Prevention (CDC) recently reported that the risk of
1 Parvez FM, Lobato MN, Greifinger RB. Tuberculosis Control: Lessons for Outbreak Preparedness in Correctional Facilities. Journal of Correctional Health Care OnlineFirst, published on May 12, 2010 as doi:10.1177/1078345810367593. 2 See https://experience.arcgis.com/experience/685d0ace521648f8a5beeeee1b9125cd, accessed March 27, 2020. 3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?searchResultPosition=1, accessed March 27, 2020.

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serious disease and death among those with COVID-19 increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.4 Early reports from China show that nearly half of those with the coronavirus had comorbidities, or underlying health conditions.
6. In the United States, younger adults with COVID-19 have been severely affected by the disease as well. While people under the age of 20 have largely been protected from severe effects of the coronavirus, 55% of COVID-19 hospitalizations and 20% of deaths were from people between the ages of 20 and 64.5
7. Mortality is high among those with COVID-19 who become severely affected. Those who do not die have prolonged serious illness, for the most part requiring expensive hospital care, including ventilators that are in very short supply.
8. The Centers for Disease Control and Prevention (CDC) has identified underlying medical conditions that increase the risk of serious COVID-19 for individuals of any age: blood disorders, chronic kidney or liver disease, compromised immune system, endocrine disorders, including diabetes, metabolic disorders, heart and lung disease, and neurological and neurologic and neurodevelopmental conditions.
9. A primary concern of medical and public health experts and public officials is the effect that the pandemic is having and will have on health systems. Because severe COVID-19 cases require extended hospitalization and intensive medical care, a significant number of COVID-19 cases can quickly overwhelm a health system. This is true in urban areas but is particularly true in rural areas where health care facilities have far more limited capacity to respond to an increase in patients who need hospitalization and intensive care.
10. The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected. The recommended hand hygiene measures are frequent handwashing with soap and water, and the use of alcohol-based sanitizers when handwashing is unavailable. Surfaces such as doorknobs and light switches which have a high degree of human contact should be cleaned and disinfected regularly with bleach.
11. Recognizing the urgency and severity of the pandemic, public health officials have recommended extraordinary measures to combat the spread of COVID-19. Schools, courts, collegiate and professional sports, theater and other congregate settings have been closed as part of a risk mitigation strategy.
12. Illinois has been hit hard by COVID, with at least 2,538 cases and at least 26 deaths
4 See https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid=mm6912e2_w, accessed March 22, 2020. 5 Id.

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reported as of March 26, 2020.6 The cases of COVID-19 have spanned the State, including in central and southern Illinois. As a result, Illinois Governor J.B. Pritzker has issued an order to “stay at home” for the entire State.7
13. COVID-19 has now reached the correctional facilities in Illinois, with cases reported in the Illinois Department of Corrections and the Cook County Jail. 8 In New York, we have seen the rate of infection in city jails far outpace the rate of infection of the general population, by seven.9 The same can be expected in Illinois facilities.
14. The conditions of congregate settings, such as prisons, poses a heightened public health risk for the spread of COVID-19.
15. Correctional facilities are enclosed environments, much like the cruise ships and nursing homes that were the sites of the largest concentrated outbreaks of COVID-19 initially. Correctional facilities have even greater risk of transmission of infection because of a) crowding for prolonged periods of time; b) the high proportion of vulnerable people detained; and c) often scant medical care resources.
16. In prisons, people live in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. In most congregate settings, it is impossible for those detained to maintain a six-foot distance from others or to avoid groups.
17. Food preparation and food service is communal, with little opportunity for surface disinfection. Toilets, sinks, and showers are shared, without disinfection between use.
18. Staff arrive and leave on a shift basis; there is little to no ability to adequately screen staff for new, asymptomatic infection.
19. Many correctional facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. Even where they do have formal linkages with local health departments or hospitals, correctional facilities are often in under-resourced areas where the local health department or hospital would quickly become overwhelmed in the face of an infectious disease outbreak.
20. Prisons are ill-equipped to diagnose and manage the spread of a disease like COVID-19. In the event of exposure in a prison, all individuals should be tested. Those who test positive should be isolated. Health care providers should have access to personal
6 See http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-z-list/coronavirus, accessed March 27, 2020. 7 https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-shelter-in-place-lockdown-order-20200320teedakbfw5gvdgmnaxlel54hau-story.html 8 See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx, accessed March 26, 2020; https://chicago.suntimes.com/coronavirus/2020/3/25/21193871/cook-county-jail-coronavirus-covid-19-cases, March 25, 2020. 9 https://www.nydailynews.com/coronavirus/ny-coronavirus-nyc-jails-rikers-island-legal-aid-20200325o5du2jczc5agrhj42y5tk4gfmi-story.html (March 25, 2020).

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protective equipment, including masks. Access to resources for testing, personal protective equipment, and necessary supplies are often inadequate in prisons. Those infected and symptomatic should be isolated in airborne negative pressure rooms, which rarely exist in prisons. Where such negative pressure rooms do exist, there are rarely enough to be available in the event of an outbreak.
21. There is a nationwide shortage of tests for COVID-19. It is my understanding that Illinois correctional facilities do not have sufficient access to these tests. As people may be asymptomatic or have no fever, COVID-19 may be spread in prisons and infect many prisoners and staff without warning.
22. The heightened risk of infectious disease transmission in prisons threatens the health of prisoners, staff and the broader population. Releasing vulnerable patients reduces the risk of widespread intramural outbreak, and thereby reduces the risk to staff who return to their homes on a daily basis.
23. Indeed, I monitor a correctional facility for the Federal Court that has already had an outbreak of COVID-19 among vulnerable people living on a medical housing unit. A Nurse Practitioner, four correctional officers, and two inmates have confirmed COVID-19. Several other inmates have pending tests. Three nurses are hospitalized with COVID-19. As such, I have firsthand knowledge of the serious effects of this virus in correctional facilities and the lack of preparedness in these institutions. Correctional facilities are not equipped to manage and treat an onslaught of this disease. It is a dangerous and rapidly evolving situation.
24. Risk mitigation is the only viable public health strategy available to limit transmission of infection, morbidity and mortality in prisons, and to decrease the likely public health impact outside of the prisons. Even with the best-laid plans to address the spread of COVID-19 in prisons, the release of individuals, prioritizing the most medically vulnerable individuals, is a key part of a risk mitigation strategy. In my opinion, the most urgent public health need is to release people from prison, prioritizing those who are most vulnerable, given the heightened risks to their health and safety, especially given the lack of a viable vaccine for prevention or effective treatment at this stage.
25. Additionally, the release of detainees who present a low risk of harm to the community is also an important mitigation strategy as it reduces the total number of detainees in a facility.
26. Combined, this has a number of valuable effects on public health and public safety: it allows for greater social distancing, which reduces the chance of spread if virus is introduced; it allows easier provision of preventive measures such as soap for handwashing, disinfecting supplies for surfaces, frequent laundering and showers, etc.; and it helps prevent overloading the work of detention staff, which will likely be reduced by illness, such that they can continue to ensure the safety of detainees.
27. The prison is a microcosm of the broader community. Social distancing and scrupulous hygiene and sanitation are required to avoid an outbreak. If there is inadequate social

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distancing, hygiene and sanitation, there will almost certainly be infection and an outbreak. In the event of an outbreak, those who are medically vulnerable will be most immediately at risk, but eventually the effect will be felt by all as the health care infrastructure will be inadequate to respond to the needs. 28. For an airborne disease, the most effective mitigation strategy to limit the spread of the virus is to reduce crowding, as this increases the opportunity for social distancing. In a prison, even if everyone is isolated in a single cell, there is still an increased risk of transmission among prisoners and staff because the institutional setting requires the delivery of food, cleaning supplies, documents, and other items. 29. Isolation, e.g., segregation or solitary confinement, is not an acceptable mitigation strategy. People who are isolated are monitored less frequently, due to decreased visualization. If they develop COVID-19 symptoms, or their symptoms escalate, they may not be able to get the medical attention they desperately need in a timely fashion. It also makes it more likely that there will be increases in suicide attempts or self-harm, giving rise to more medical problems in the midst of a pandemic. Isolation also increases the amount of physical contact between staff and prisoners—in the form of increased handcuffing, escorting to and from the showers, and increased use of force due to the increased psychological stress of isolation. My expert opinion is that the use of isolation or lockdown is not a medically appropriate method for abating the substantial risks of COVID-19. Under penalties as provided by law pursuant to § 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Executed this 27th day in March 2020 in New York City, New York.
Robert B. Greifinger, M.D.

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EXHIBIT 2

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
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7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. 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. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities 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. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT 3

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EXHIBIT 4

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Declaration for Persons in Detention and Detention Staff COVID-19
Chris Beyrer, MD, MPH Professor of Epidemiology Johns Hopkins Bloomberg School of Public Health Baltimore, MD
I, Chris Beyrer, declare as follows:
1. I am a professor of Epidemiology, International Health, and Medicine at the Johns Hopkins Bloomberg School of Public Health, where I regularly teach courses in the epidemiology of infectious diseases. This coming semester, I am teaching a course on emerging infections. I am a member of the National Academy of Medicine, a former President of the International AIDS Society, and a past winner of the Lowell E. Bellin Award for Excellence in Preventive Medicine and Community Health. I have been active in infectious diseases Epidemiology since completing my training in Preventive Medicine and Public Health at Johns Hopkins in 1992.
2. I am currently actively at work on the COVID-19 pandemic in the United States. Among other activities I am the Director of the Center for Public Health and Human Rights at Johns Hopkins, which is active in disease prevention and health promotion among vulnerable populations, including prisoners and detainees, in the US, Africa, Asia, and Latin America.
The nature of COVID-19
3. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the WHO. Cases first began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
4. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 2002-2003 SARS epidemic.
5. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are selflimited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
6. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate is higher in men, and varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
7. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical

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ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
8. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South Korea, and the US, now the world’s most affected country. As of today, March 29th, 2020, there have been 713,171 confirmed human cases globally, 33,597 known deaths, and some 149,000 persons have recovered from the infection. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
9. SARS-nCoV-2 is now known to be fully adapted to human to human spread. This is almost certainly a new human infection, which also means that there is no pre-existing or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
10. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again, is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
The risks of COVID-19 in detention facilities
11. COVID-19 poses a serious risk to inmates and workers in detention facilities. Detention Facilities, including jails, prisons, and other closed settings, have long been known to be associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis.
12. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities from which inmates derive.
13. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as 6-foot distancing and proper decontamination of surfaces is virtually impossible. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May, 2019.
14. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding, population density in close confinement, insufficient ventilation, shared toilet, shower, and eating environments and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Limits on soap (copays are common) and hand sanitizer, since it can contain alcohol, are also risks for spread.
15. Additionally, the high rate of turnover and population mixing of staff and detainees increases likelihoods of exposure. This has led to prison outbreaks of COVID-19 in

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multiple detention facilities in China, associated with introduction into facilities by staff. The current outbreak in the detention facility of Riker’s Island in New York City is a example—and in the first days of that outbreak the majority of cases were among prison staff, not inmates. 16. In addition to the nature of the prison environment, prison and jail populations are also at additional risk, due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to more severe illnesses after infection, and to death from COVID-19 disease. 17. While every effort should be made to reduce exposure in detention facilities, this may be extremely difficult to achieve and sustain. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible. 18. Pre-trial detention should be considered only in genuine cases of security concerns. Persons held for non-payment of fees and fines, or because of insufficient funds to pay bail, should be prioritized for release. Immigrants awaiting decisions on their removal cases who are not a flight risk can be monitored in the community and should be released from immigration detention centers. Older inmates and those with chronic conditions predisposing to severe COVID-19 disease (heart disease, lung disease, diabetes, immune-compromise) should be considered for release. 19. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are highly likely. Releasing as many inmates as possible is important to protect the health of inmates, the health of correctional facility staff, the health of health care workers at jails and other detention facilities, and the health of the community as a whole. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
Executed this 16th day of March, 2020.
_____________________ Professor Chris Beyrer

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References
Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016.
Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85.
Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447.
Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344.
Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)306638. doi: 10.1016/S0140-6736(16)30663-8
Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151

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EXHIBIT 5

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I, Dan Pacholke, declare as follows: 1. I am over the age of 18, have personal knowledge of the facts set forth herein, and, if called as a witness, I could and would testify competently as set forth below. 2. I have more than 37 years of experience, training, and education in the field of adult institutional corrections. This experience includes over three decades as an employee of the Washington State Department of Corrections (WDOC), beginning as a correctional officer and retiring as Secretary. In that time, I served as Chief of Emergency Operations; Superintendent of three correctional facilities (Cedar Creek Corrections Center, Stafford Creek Corrections Center, and Monroe Correctional Complex); Deputy Director; Director of Prisons; and Deputy Secretary. In October 2015, Governor Inslee appointed me to serve as Secretary of Corrections, a position I held until March 2016. As a WDOC employee in administration and leadership positions, I was one of the individuals responsible for the development and implementation of correctional policies, practices, and procedures. 3. My experience also includes work as a consultant for the National Institute of Corrections, a federal agency with a legislative mandate to provide specialized services to corrections from a national perspective, and as a Senior Research Scholar with New York University Marron Institute of Urban Management. Currently, I am a principal at Dan Pacholke Consulting, LLC and frequently consult with and collaborate with correctional systems, researchers, and policymakers on strategies to create safer correctional institutions. Attached as Exhibit 1 is a copy of my curriculum vitae. 4. In my capacity as a correctional practices consultant in 2016--17 I visited and toured several prisons operated by the Illinois Department of Corrections (IDOC) including Pinckneyville, Stateville, Hill, East Moline and Pontiac.
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5. As a result of my many years of experience in corrections, I have extensive knowledge of correctional policies and practices relating to the operation of prisons, including the standards regarding when and how individuals are released from custody, and, how and when corrections can exercise its discretion to take immediate affirmative actions to address issues impacting the health and safety of people in custody into account.
6. In my opinion, COVID-19 represents a serious and unprecedented risk to the health and safety of people in IDOC custody and IDOC staff. This risk makes it imperative that IDOC immediately take steps to proactively respond to the virus to protect those individuals. Among those steps is considering how IDOC can exercise its authority and discretion (along with any other body which has the authority or discretion to order release, such as the Prisoner Review Board, using its power to grant parole or to decline to revoke parole, and the Governor, using his power of Executive Clemency) to reduce the prison population. This includes awarding good time credits, transferring people to home detention, and authorizing medical furloughs. All of these and any other options should be fully utilized to allow individuals to maintain social distancing and have better access to testing and treatment. This will also help mitigate the impact of staff shortages and lessens the burden on prison medical services. Reducing the population will improve the health and safety of people in custody who are currently symptomatic and/or test positive as well as individuals who have been exposed to COVID-19 but are not yet showing symptoms and have not yet been tested. As in the community outside IDOC facilities, the numbers of individuals in both categories will increase exponentially.
7. Shortly after I was appointed Secretary of WDOC, I was faced with a crisis that, though different from the current COVID-19 emergency, was similar in that it required immediate and decisive action. In December of 2015, it was brought to my attention that WDOC
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had, for thirteen years, miscalculated certain sentences, resulting in approximately 3,600 inmates being released from prison an average of approximately 60 days early. We employed a number of strategies to resolve this error, one of which was the use of the furlough statute. This was used when it was determined that an offender released early had: (1) performed and continued to perform appropriately on community supervision; (2) had an appropriate residence; and (3) had not absconded while on supervision or committed additional felony offenses. If these conditions were met, I authorized a furlough for 30 days, completed a follow-up check-in, and subsequently extended the furlough for an additional 30 days. This helped the impacted individuals maintain their job, living arrangement, and family responsibilities. Illinois appears to have a similar mechanism allowing various classes of prisoners to be transferred to home confinement.
8. If faced with the current Covid-19 crisis, I believe that immediate action is needed to reduce the prison population for the benefit of inmates and staff. I would determine who, including those still housed in prisons, and those on work release, is within the categories that the IDOC or other body has the legal authority to release or transfer, and establish objective criteria, such as having an appropriate release address, to establish who could safely be released or transferred to a non-prison setting, even though many might still remain in IDOC custody. The criteria adopted should be designed to greatly increase the number of releases, to significantly reduce the prison population.
9. The timely implementation of measures to reduce the prison population will decrease the density and slow the spread of this virus in our state prisons and work releases. It will allow IDOC the space it needs to accomplish more effective social distancing, allow more effective quarantining of impacted individuals, and greatly reduce the burden on medical staff and local hospitals. In many cases, this will return those individuals who would otherwise be
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Case: 1:20-cv-02094 Document #: 1-5 Filed: 04/02/20 Page 5 of 11 PageID #:89 released within the next year to their homes now, where they can more effectively self-isolate with their families, provide child and elder care, and receive testing and treatment as needed.
10. The staff and the people who live in prisons and work releases are placed at greater risk for the spread of diseases. It is imperative that IDOC do everything in its power to “flatten the curve” in these facilities during this crisis to protect the health and safety of its staff and the people in its custody. The best way to do this is to quickly implement strategies to reduce the population, in a way that supports public health and safety, to reduce the spread of this virus and maintain increasingly limited staff and medical resources.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.
Dan Pacholke April 1, 2020
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Attachment 1
DAN PACHOLKE
PROFILE
Served the Washington State Department of Corrections for 33 years, starting as a Correctional Officer and retiring as Secretary. Leader in segregation reform and violence reduction in prisons. Extensive experience in program development and implementation, facility management, and marshaling and allocating resources. Proven ability to make change. Led efforts resulting in a 30% reduction in violence and a 52% reduction in use of segregation in Washington State Prisons. Co-founder of Sustainability in Prisons Project. Champion of humanity, hope and legitimacy in corrections.
EMPLOYMENT HISTORY
Principal, Dan Pacholke Consulting, LLC. 2018 to Present Offering a full range of consulting services in the field of corrections.
New York University, Litmus at Marron Institute of Urban Management Associate Director 2016-2017
Collaborate with researchers and practitioners to develop alternatives to segregation and transform corrections management. Advance stakeholder-led research and innovation by soliciting, supporting, and disseminating the best new strategies to create safer, more rehabilitative corrections environments.
Washington State Department of Corrections Secretary 2015-2016
Governor appointee providing executive oversight of the agency with a yearly operating budget of 850 million and 8,200 full time employees. Reorganized agency to allow for greater emphasis on effective reentry. Led department through response and recovery from a crisis resulting from the discovery of a sentencing calculation error that had occurred for over 13 years.
Deputy Secretary 2014-2015 Oversight over operations divisions: Offender Change; Correctional Industries; Community Corrections (16 Work Releases and 150 field offices); Prisons (15 facilities); and Health Services. These combined operations had a yearly operating budget of 700 million and 7,166 full time employees. Emphasis on core correctional operations, violence reduction, and performance management leadership to affect positive and sustainable system wide change.
Director, Prisons Division 2011-2014 Oversight over 15 institutions and contract relationships with jails and out of state institutions incarcerating approximately 18,000 offenders. Also responsible for providing emergency response and readiness oversight to all facilities and field offices of all divisions. Advanced multi-faceted violence reduction strategy to include the development and implementation of the “Operation Ceasefire” group violence reduction strategy for application in close custody units in prisons. Expanded Sustainability in Prisons Project programs to all prison facilities. Implemented classroom-setting congregant programming in intensive management units.
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Attachment 1
Deputy Director, Prisons Division 2008-2011 Administrator over 6 major facility prisons, multi-custody level for adult male offenders with a biennial budget of 290 million. Provided leadership and appointing authority decision making to six facility Superintendents. Through Great Recession implemented staffing reductions, offender movement alterations and cost savings initiatives while maintaining safety and security. Represented the Department in legal issues, labor relations, media, staff discipline hearings, union relations and bargaining. Oversaw statewide operations of Emergency Preparedness and Response, Intelligence & Investigations, Intensive Management Units, Offender Grievance Program, Offender Disciplinary Program, Food Service, Sustainability and Close Custody Operations. Implemented statewide system of security advisory councils and security forums to improve staff safety.
Monroe Correctional Complex Interim Superintendent 2008
Led a 2,486-bed, multi-custody facility for adult male offenders.
Stafford Creek Corrections Center Superintendent 2007-2008
Led a 2,000-bed, multi-custody facility for adult male offenders with a biennial budget of 39 million. Implemented Sustainability in Prisons Project initiatives to include large scale composting to include zero-waste garbage sorting. Initiated first dog training programs for male offenders.
Cedar Creek Corrections Center Superintendent 2003-2007
Led a 400-bed, minimum-security adult male correctional facility, with a biennial budget of 7.3 million. Directed operational and related program activities to include security and custody programs, medical services, plant maintenance, education, and food service. Co-founded the Sustainability in Prisons Project with Nalini Nadkarni, PhD.
Monroe Correctional Complex Special Assignment Deputy Superintendent 2002
Formulated new strategic direction in order to enhance operations and security at the Complex, which consists of four separate units and houses approximately 2,300 adult male felons. Managed unit operations and security. Supervised the Intelligence Investigative Unit and Offender Grievance System. Developed and implemented capital construction initiatives at the Special Offender Unit and the Washington Reformatory Unit to enhance security of these Units.
Headquarters Performance System Administrator 1999-2002
Led the development and implementation shift from staff training department to an organizational performance system. Administered staff performance academies, supervised five regional teams, four Program Managers and provided leadership for policy development to support this department wide program. Administered the Department’s Emergency Response Plan, Emergency Operations, Officer Safety Program and Firearms Training Unit.
Headquarters Emergency Response Manager 1995-1999
Developed and implemented statewide emergency response system. Directed the
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Attachment 1
development of departmental policy, emergency response team academies and response protocols. Managed emergencies and security events. Directed Critical Incident Review Teams in the post incident analysis of critical incidents department wide. Led development of security plans for the management of high-risk operations to include 400 offenders out of state, Y2K, and execution security.
Clallam Bay Corrections Center Correctional Captain 1989-1995
Responsible for the security management of a maximum, close, and medium custody male facility. Oversaw facility mission changes including: close custody conversion; implementation of blind feeding; facility double bunking; opening of an intensive management unit; opening of first direct supervision unit; and developed the facility’s Emergency Response Plan.
Clallam Bay Corrections Center Correctional Lieutenant 1986 -1989
Washington Corrections Center Correctional Sergeant 1985-1986
McNeil Island Corrections Center Correctional Officer 1982-1985
PUBLICATIONS Useem, Bert, Dan Pacholke, and Sandy Felkey Mullins. "Case Study–The Making of an Institutional Crisis: The Mass Release of Inmates by a Correctional Agency." Journal of Contingencies and Crisis Management (2016) Pacholke, Dan (2016, July 27). Change is relative to where you begin. Vera Institute of Justice. Think Justice Blog. https://www.vera.org/blog/addressing-the-overuse-of-segregation-in-u-sprisons-and-jails/change-is-relative-to-where-you-begin
Pacholke, Dan and Sandy Felkey Mullins. More Than Emptying Beds: A Systems Approach to Segregation Reform. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2016. NCJ 249858.
Pacholke, D. (2014, March). Dan Pacholke: How prisons can help inmates lead meaningful lives [Video file]. Retrieved from https://www.ted.com/talks/dan_pacholke_how_prisons_can_help_inmates_live_meaningful_lives?la nguage=en
Young, C., Dan Pacholke, Devon Schrum, and Philip Young. Keeping Prisons Safe: Transforming the Corrections Workplace. 2014.
Aubrey, D., LeRoy, C. J., Nadkarni, N., Pacholke, D. J., & Bush, K. Rearing endangered butterflies in prison: Incarcerated women as collaborating conservation partners. 2012.
AWARDS
Olympia Rotary Club, Environmental Protection Award, 2013 Governor’s Distinguished Managers Award, 2012 Secretary of State, Extra Mile Award, 2007
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Governor’s Sustaining Leadership Award, 2003 CONSULTING Sustainability in Prisons Project, Co-Director 2004-2015 Nebraska Department of Correctional Services 2015
With Bert Useem, PhD, provided system assessment following May 2015 disturbance at Tecumseh State Correctional Institution in which two inmates were killed. Identified underlying causal factors and provided recommendations. National Institute of Corrections 1998 to 2002 Provided training and consultation services to state, territory and federal correctional systems. Responsible for delivering of training to include: Management of Security, Entry Level Supervision, Emergency Preparedness Assessment, Disturbance Management and Basic Security. Defensive Technology Corporation Senior Instructor 1995 to 1998 Provided tactical and specialty munitions training to correctional and law enforcement personnel throughout the U.S. Security Auditing & Critical Incident Reviews Lead Auditor Completed security audits and critical incident fact finding reviews in facilities throughout the Washington State Department of Corrections and two correctional jurisdictions in other states, one of which involved multi-jurisdictional entities.
EDUCATION: The Evergreen State College, BA, Olympia, Washington
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Attachment 3
Career Highlights
• Reduced violence in Washington State prison system by over 30% while also reducing the number of people held in long-term administrative segregation by over 50%.
• Designed and implemented congregate group programming in the intensive management units (IMU’s). The programs offered included evidence based programs and other complimentary offerings. Today all IMU’s in Washington State prisons offer congregate programming.
• Designed and implemented the first prison Ceasefire model. This deterrencebased model reduced serious violent incidents (assault against staff, use of a weapon and multi on single man fights) by 50% and continues to be utilized in Washington State close custody (Level IV) prison to reduce serious violence.
• Co-authored a protocol for in-custody Swift, Certain and Fair sanctioning. This deterrence-based model offers a strategy for the reduction of low-level in-custody violations.
• Implemented the Correctional Officer Pre-Service training model at Clallam Bay Corrections Center. This 10-week program offered half-time course work and half-time OJT in order to certify newly hired correctional officers. This program was implemented state wide as the CORE Program, a six-week standardized training required of all staff that work in prisons.
• Served as a lead design team member on the creation and implementation of the Correctional Officer Achievement Program (COACH), a yearlong, on-the-job training program accredited by the WA State Board for Technical and Community Colleges.
• Led the design and development of a comprehensive agency-wide Emergency Response Plan and complimentary learning academies: Emergency Response Instructor (40 hrs.); Emergency Response Team (40 hrs.); Special Emergency Response Team (40 hrs.); Crisis Negotiator (40 hrs.); Joint Operations (24 hrs.); and the Designated Incident Management Team (multiple ICS certifications).
• Co-Authored, Keeping Prisons Safe, Transforming the Corrections Workplace and accompanying field guide which are used in CORE and Annual In-Service Training at WA DOC.
• Co-founder and past co-director of the Sustainability In Prisons Project; this program brings nature into prison and features science education. It is recognized internationally and features programs to restore endangered species e.g., Oregon Spotted Frog, Taylor Checker spot Butterfly, Indigenous Box Turtles and over fifty different rare and endangered native prairie plants. http://sustainabilityinprisons.org.
• Offered two TEDx events in prison. These events featured inmates, staff and volunteers as TEDx speakers.

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• Implemented Dog retraining programs in all Washington State Prisons.

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EXHIBIT 6

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March 17, 2020 The Honorable J. B. Pritzker 207 State House Springfield, IL 62706 Re: Coronavirus in Illinois Prisons Dear Governor Pritzker:
The COVID-19 pandemic represents an unprecedented threat to men and women who are incarcerated in IDOC custody. These individuals are held in close quarters— several feet closer than the six-foot distance that you and the CDC have recommended for individuals not held in custody. They are simply not able to engage in the “social distancing” that public health officials have stressed is mandatory to combat the rate of illness. As a result, if any one of these individuals becomes infected with COVID-19, nearly everyone within the prison will face a dangerously high risk of becoming infected.
If and when (as is likely, given reports from countries like Italy who are experiencing our rate of infection just weeks ahead of the United States) IDOC prisons experience an outbreak, the prison’s health system will be overwhelmed. That, in turn, is likely to overwhelm local outside hospital systems where sick prisoners are referred, which will render them unable to provide lifesaving treatment to the population—both incarcerated and free—that need it.
We are thankful that at this point IDOC does not have any positive cases. To avoid contamination, in addition to the steps already announced by IDOC, it is imperative that you take action to ensure that every individual in IDOC custody today who can be released in a way that is consistent with public safety, is released.
This administration has taken the lead across the country in ensuring that the threat faced by the COVID-19 pandemic is taken seriously. In keeping with this administration’s initiative, we implore you to take the following immediate steps to protect the vulnerable individuals in IDOC custody, as well as the individuals who work there:

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1. Immediately order the release of individuals whose release dates are within 120 days. These individuals have already worked with prison staff and those outside to confirm that they will be returning to a confirmed home site, and have release plans.
2. Release all individuals in custody awaiting parole revocation hearings. People previously on supervised release who are in IDOC custody because of non-violent parole violations and new charges that are bail eligible, and especially people in custody because of technical violations, should be released immediately.
3. Prioritize release for any individuals whose release plans are pending host site approval. These individuals have a place to return, but are simply waiting for IDOC to approve. These people should be prioritized, and once approved, immediately released.
4. Order IDOC to stop taking people into custody for parole violations unless they present a clear and present danger of imminent physical harm, and rescind all parole warrants. As we know from the information set out by your administration and the CDC, introducing new people into the prison population will only exacerbate the likelihood of an outbreak within the prison. IDOC should immediately stop taking any individuals into custody for parole or MSR violations unless their actions present a clear and present danger of imminent physical harm, and should withdraw all parole-related warrants.
5. Release individuals with viable clemency petitions. Several individuals have viable clemency petitions that are awaiting decision by this administration; anyone whose petitions are viable should be released immediately.
6. Take all actions necessary to maximize good time credits. Under Illinois law, 730 ILCS 5/3-6-3, the IDOC Director “may award up to 180 days of earned sentence credit for good conduct in specific instances as the Director deems proper.” This provision should be used proactively to reduce the population in IDOC facilities.
7. Evaluate individuals who are pregnant, postpartum, or living with their infants in IDOC programs. Pregnant and postpartum women, as well as the babies in the Moms and Babies nursery, are particularly vulnerable to illness. People who are pregnant often have suppressed immune systems and can also have decreased lung capacity, complicating respiratory illnesses. High fevers can also lead to birth defects and miscarriage. The majority of pregnant people and participants in the Moms and Babies program have release dates within the next twelve months. Their release should be prioritized through all available means.
8. Evaluate individuals with HCU living assignments and chronic care needs for consideration of early release. These are vulnerable populations who require significant staff time and resources. If these individuals have sentences that allow

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for consideration of any form of early release, and home placement options, steps should be taken to get them released as soon as possible.
9. Take steps to limit intake into IDOC facilities. As we are quickly learning from public health experts, the safest way to protect against outbreaks of COVID19 is to limit the number of social interactions. We urge you to take action to decrease the number of individuals being taken into IDOC custody, including by placing any limits allowable on receiving, by asking courts and prosecutors to adjust sentencing priorities to avoid incarceration to the fullest extent possible.
10. Ensure that the IDOC has the resources necessary to combat a possible COVID-19 outbreak in one or more IDOC facilities. It is imperative that IDOC have the resources that it needs to provide supplies to both prisoners and staff. This must include unfettered access to soap and cleaning supplies for prisoners, and thermometers and protective gear for staff.
These actions are a necessary first step to minimize the likelihood of an outbreak in IDOC facilities, and to contain the virus within the state. Many of the individuals in IDOC custody are among the most vulnerable for catastrophe should an outbreak occur. We hope that you will approach their health as seriously as you have approached the health of the rest of the state.
The organizations below would welcome an opportunity to speak with you or members of your administration about how to effectively respond to this public health emergency and protect the health and safety of individuals and IDOC custody and the Illinois community.
Signed,
ACLU of Illinois Chicago Community Bond Fund Chicago Urban League Children and Family Justice Center, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Community Justice and Civil Rights Clinic, Bluhm Legal Clinic,
Northwestern Pritzker School of Law Equip for Equality John Howard Association Legal Council for Health Justice Loevy & Loevy Roderick and Solange MacArthur Justice Center Shriver Center on Poverty Law Uptown People’s Law Center Women's Justice Institute

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cc: Lt. Governor Juliana Stratton Director Rob Jeffreys Chief of Staff Camile Lindsay Gary Caplan, Office of the Governor Christian Mitchell, Deputy Governor for Public Safety, Infrastructure, Energy & Environment

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EXHIBIT 7

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PURPOSE:
The State of Illinois must act with increased urgency to release individuals from incarceration who are at significant risk of harm from COVID-19, as well as those who require substantial medical and staff resources that should be preserved for the COVID-19 response.
The purpose of this document is to assist in identifying prisoners who are medically vulnerable, elderly, or resource-intensive (in terms of medical equipment, space and staff time) due to disability or medical condition. We also set forth steps that the Governor’s Office and the IDOC must take to release or, where release is unavailable, to transfer individuals to other settings better able to care for their needs to the furthest extent possible.
I. Facility Identification of the High-Risk/Resource-Intensive Population
If IDOC has not done so already, IDOC must identify all prisoners (a) who are medically vulnerable with regard to COVID-19, (b) who are elderly, and (c) who require medical resources and staff time that should be devoted to COVID-19. As we understand it, IDOC may have already created a list that meets some of or all of these criteria. If this has not been done in any part, or if the current list was not prepared with facility-level medical input, IDOC should direct each facility, through its Medical Directors (MDs) and Health Care Unit Administrators (HCUAs), to create a list, or supplement its existing list, to include the following:
- People over age 55.
- People housed in Health Care Units (HCUs) who could reside at home with supports or services. While many of IDOC’s sickest residents are housed in prison HCUs, not everyone who resides in a HCU would need inpatient care in the community. (We understand there is reluctance to release those who would need to be discharged to a community hospital.) For example, some people reside in HCUs because they need certain equipment (such as oxygen tanks) that could be dangerous inside the general prison population. People with paralysis are frequently housed in HCUs because they need assistance with activities of daily living. Others reside in HCUs

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because they frequently see outside medical specialists for treatment of chronic conditions. Still others are receiving palliative or hospice care.
- People who are immunocompromised.
- People who are seen at chronic clinics.
- People who are pregnant, nursing, or in “moms and babies” programs. It should be easy for administrators at Logan or Decatur to determine who falls into this category.
Due to the urgency of this situation, the Governor should give IDOC facilities a strict deadline by which to identify these individuals, such as 24 hours.
II. Release High- Risk and Resource-Intensive Prisoners
All the individuals on this list are people who are either at risk of severe harm from COVID-19 and/or require regular medical resources that should be preserved to prepare for an outbreak within the system.
IDOC should utilize its authority and discretion, under existing law, to release as many individuals as possible. Maintaining custody of people in these categories presents a significant threat to public safety and health because of the devastating impact that an outbreak will have inside the prison, as well as on staff, local hospitals, and surrounding communities. Releases should be completed as quickly as possible. If COVID-19 becomes widespread in the prisons before vulnerable people are released, the influx of incarcerated people who become sick into community-based hospitals will without any doubt overwhelm their capacity, and cause avoidable deaths.
The Governor’s Office needs to act decisively to insure that IDOC is fully exercising its authority to release as many people as possible from custody to the furthest extent possible, including by ordering IDOC to immediately:
● Issue administrative directives allowing for the transfer to home detention and/or electronic monitoring all individuals identified pursuant to Section I above who qualify under 730 ILCS 5/5-8A-3(d) and (e).
● Release to home detention and electronic monitoring all individuals within its authority to do so, including all people serving sentences for Class 2-4

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felonies pursuant to 730 ILCS 5/5-8A-3(e), and all eligible people over the age of 55 who have less than 12 months left to serve on their sentence pursuant to 730 ILCS 5/5-8A-3(d). This reduction is necessary to allow for social distancing and to preserve IDOC’s resources and medical staff for COVID-19 preparedness.
● In coordination with PRB, expeditiously return all IDOC-requested good time credit pursuant to 20 Ill. Adm. Code 107.160. IDOC should direct counselors at each institution to submit requests for good time restoration for all offenses other than for violations under Offense 102a.
● Award discretionary good time credit pursuant to 20 Ill. Adm. Code 107.210 to the furthest extent possible to all eligible individuals to facilitate immediate and continuing releases.
● Immediately lift all outstanding parole holds for people who are in custody (in both IDOC and local jails) awaiting preliminary and final revocation hearings. Communicate the release of parole holds to local Sheriffs, Public Defenders, States Attorneys and Judges.
Due to the state of emergency and significant threat to public safety, the Governor’s Office must also expand the number of people eligible for release, including by:
● Immediately act to expand eligibility for release to home detention to all individuals identified pursuant to Section I above.
● Increase staffing of parole and field services, to the extent necessary, to facilitate IDOC’s preparedness for a COVID-19 outbreak. Work in collaboration with social workers and other staff from nonprofit organizations to identify appropriate placements for people eligible for release, to expedite the pace of release.
● Direct State’s Attorneys, Courts, and County Sheriffs to take immediate steps to release anyone who is either identified as elderly or medically vulnerable. ○ To expedite the timely release of medically vulnerable people, State’s Attorneys should agree to resentence anyone identified by IDOC as medically vulnerable to time served.

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○ Courts should act quickly on joint motions to release defendants who are being held pretrial, on motions to resentence defendants who are serving incarcerative sentences. Courts should grant motions on the paper submissions whenever possible, and should schedule any hearings expeditiously and telephonically. Courts should waive the presence of the defendant whenever possible.
○ Sheriffs should use their discretion broadly to reduce pre-trial detention to the furthest extent possible. Sheriffs should coordinate with other entities to reduce detention in all manners possible, including by communicating with IDOC to release parole warrant holds. Sheriffs should decline to arrest or cite low-level and misdemeanor conduct ,and should use cite-and-release authority whenever possible.
● The Governor’s Office should use its broad clemency powers to initiate the commutation of sentences to time served for all people in the target categories listed in Section I who are not otherwise eligible for release pursuant to existing statutes and who (i) in addition to being identified in the categories laid out in Section I, have release dates within the next five years, and/or (ii) due to being over the age of 70 and/or due to severe medical condition (such as cancer), are in the highest category of risk of death as a result of COVID-19 infection, regardless of release date.
● The Governor’s Office should direct the PRB to restore good time credit revocations to the furthest extent possible.
● The Governor’s Office should conduct an expedited review of all pending commutation petitions, regardless of whether a hearing by the PRB has been scheduled or completed. This review should begin with any medical emergency commutation petitions that have been filed and then any petitions filed by individuals over the age of 55. Many clemency petitions include a reentry plan that can be immediately enacted.
● The Governor’s Office should direct IDOC to immediately release all people who are awaiting parole revocation hearings on technical violations.
● The Governor’s Office should direct IDOC to stop taking people into custody on technical parole violations. These people do not need to be in IDOC custody. With each new person processed into reception facilities, the risk of

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COVID-19 outbreak grows. Additionally, the medical clearance process diversts valuable medical resources away from COVID-19 management.
● The Governor’s Office should direct the PRB to convene telephonically to immediately review every C-number prisoner still in custody for immediate parole. These individuals, by definition, are all over the age of 60 (the majority are in their 70s), and therefore at extremely high risk of serious illness and death from COVID-19.
● The Governor’s Office should take steps to expand 730 ILCS 5/3-6-3 to allow IDOC to award up to 360 days (from 180) of earned sentence credit for good conduct in specific instances as the Director deems proper.
III. Prioritize Resources to Facilitate Safe Releases Immediately
Steps must be taken to facilitate the immediate release of these individuals in the safest manner possible, including the following steps:
Expansion of Field Services: Field services should immediately execute release/transfer planning for all people identified pursuant to Sect. I above to determine all viable placement options. To the extent needed, Field Services could utilize other clinical staff resources to assist in identifying home placement options. Facilities should be directed to make this effort a priority. Facilities should also be given the discretion to identify other individuals in their custody who staff believe should be candidates for release.
Evaluate public host site requirements and remove barriers to host site approval that are not related to public safety. The requirements should be reviewed and any that are not essential to ensure re-entry should be abandoned. For example, host sites are often denied for lack of a landline phone despite the availability of other forms of communication. Another example is that some host sites have been denied because they are located in “high crime” neighborhoods. Given the statewide order to shelter in place, this should not be a barrier to placement at this time. Additionally, the Governor’s Office should assist in expanding housing options connecting with community partners, universities, and grant providers for social services to explore new housing options.
Provision of State-Issued Identification: The Governor’s Office should take immediate action to facilitate an interagency agreement or memorandum of

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understanding between the IDOC and the Secretary of State’s Office to immediately provide state identification to individuals who are, or are about to be, released. Many of these individuals will need identification in order to provide for themselves, including to obtain prescribed medications, but state offices that issue IDs are currently closed. This could be done in a number of ways, including by IDOC providing the photos and personal information needed directly to the Secretary of State to reduce the amount of in-person involvement needed by the individual.
Medicaid Expansion of Eligibility, Benefits and Enrollment: The state has flexibility to adapt its Medicaid programs to address COVID-19 and should take steps to expand eligibility and benefits and to make enrollment easier. The state may do this (without federal involvement) through state plan amendments (SPAs) or changes in policies and processes.
The Governor should bridge the necessary state agencies and IDOC to prioritize and require changes in the Medicaid program to specifically expedite the enrollment and benefits for all individuals identified in Sect. I above who are being released. While the state’s Medicaid program may already be reviewing eligibility requirements more broadly, the Governor’s Office must ensure that specific steps are taken to expedite the enrollment and benefits for those being released from IDOC, including by considering expanding a category of presumptive eligibility for those identified pursuant to Sect. I above. For more information, see: https://d28lcup14p4e72.cloudfront.net/245981/5087590/Medicaid%20flexibilities%20 to%20address%20COVID19.pdf
Medical Documentation: Many of the individuals subject to Sect. I above will require immediate and ongoing medical care. The State or its vendor should therefore provide them a copy of their medical records without charge to facilitate their care.
For those released who are presumptively qualified for SSI benefits, we have attached a draft form that physicians can use to easily provide the needed documentation. This form should be provided to all facilities for immediate use.
Continuity of Care: To the furthest extent feasible, the State and the IDOC should take steps to:
● Provide at least a one month supply of prescription medications upon release. This is an increase from the current two-week supply issued in light of the

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difficulty many may encounter with obtaining identification and finances to obtain their own medications.
● Schedule appointments for continuing care with any outside treaters currently utilized for the patient’s care where the release is to the same community, or assist in identifying treaters as needed in the home community.
● Assist in providing resources and referrals for home services and health care. We will provide a list of resources.
● Provide the Social Security pamphlet to individuals identified in Sect. 1 above. https://www.ssa.gov/pubs/EN-05-10133.pdf
● Provide Medicaid/Medicare applications and the relevant phone numbers.
Amanda Antholt, Equip for Equality Sheila Bedi, Community Justice Clinic at Northwestern Pritzker School of Law Camille Bennett, ACLU of Illinois, Jobi Cates, Restore Justice Illinois, Thomas F Geraghty & Northwestern Pritzker School of Law, Bluhm Legal Clinic Sarah Grady, Loevy & Loevy Harold C. Hirshman, Dentons Alan Mills, Uptown People’s Law Center Jennifer Soble, Illinois Prison Project Sarah Staudt Chicago Appleseed Vanessa del Valle, MacArthur Justice Center

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EXHIBIT 8

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Statewide Summary Report Including Review of Statewide Leadership and Overview of Major Services
Report of the 2nd Court Appointed Expert Lippert v. Godinez
October 2018
Prepared by the Medical Investigation Team Mike Puisis DO Jack Raba, MD
Madie LaMarre MN, FNP-BC Catherine M. Knox RN, MN, CCHP-RN
Jay Shulman, DMD, MSPH

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Table of Contents
Background ........................................................................................................................... 2
Methodology......................................................................................................................... 2
IDOC Prisons Overview .......................................................................................................... 6
Key Findings .......................................................................................................................... 9
Statewide Medical Operations............................................................................................. 12 Leadership, Staffing, and Custody Functions............................................................................ 12 Wexford Provider Staffing and Physician Credentialing........................................................... 21 Statewide Use of University of Illinois ...................................................................................... 31
Statewide Overview of Major Services................................................................................. 32 Clinical Space and Equipment................................................................................................... 32 Medical Records........................................................................................................................ 37 Medical Reception .................................................................................................................... 42 Intrasystem Transfer................................................................................................................. 45 Nursing Sick Call ........................................................................................................................ 48 Chronic Care.............................................................................................................................. 52 Urgent/Emergent Care.............................................................................................................. 59 Specialty Consultations ............................................................................................................. 62 Infirmary Care ........................................................................................................................... 69 Pharmacy and Medication Administration ............................................................................... 77 Infection Control ....................................................................................................................... 84 Mortality Reviews ..................................................................................................................... 91 Dental Program ....................................................................................................................... 103 Internal Monitoring and Quality Improvement...................................................................... 118
Recommendations ............................................................................................................ 121 Key Recommendations of Second Court Expert ..................................................................... 121 Organizational Structure, Facility Leadership, and Custody Functions .................................. 122 Clinic Space and Equipment.................................................................................................... 124 Medical Records...................................................................................................................... 126 Medical Reception .................................................................................................................. 127 Intrasystem Transfer............................................................................................................... 129 Nursing Sick Call ...................................................................................................................... 129 Chronic Care............................................................................................................................ 131 Urgent/Emergent Care............................................................................................................ 133 Specialty Consultations ........................................................................................................... 135 Infirmary Care ......................................................................................................................... 137 Pharmacy and Medication Administration ............................................................................. 138 Infection Control ..................................................................................................................... 140 Mortality Reviews ................................................................................................................... 146 Dental Program ....................................................................................................................... 147 Internal Monitoring and Quality Improvement...................................................................... 150

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other state prison systems nationwide.21 IDOC Spending in 2017 is still below the average 2015 spending of prisons nationwide.

Ten Lowest Per Capita Expenditures for Health Care in US State Prison
Systems in 2015

State Louisiana Alabama Indiana Nevada South Carolina Arizona Georgia Illinois Kentucky Mississippi

Per Capita Annual $2,173 $3,234 $3,246 $3,246 $3,478 $3,529 $3,610 $3,619 $3,763 $3,770

For most state systems, the number of employees, age, and percent of female population were the largest drivers of cost of prison health programs. The Federal Bureau of Prisons assessed that institutions with the highest percentages of aging inmates spent five times more per inmate on medical care and 14 times more per inmate on medication than institutions with the lowest percentage of aging inmates. The National Institute of Corrections estimates that inmates over age 55 cost, on average, two to three times more than the expense for all other inmates.22 Based on this same 2017 report, Illinois has the seventh lowest rate of persons over age 55 (8.5%). As well, in 2015 IDOC had a female population of 5.8%, the ninth lowest rate of females incarcerated in state prison systems. These two factors should lower the costs of care somewhat, but are not so great as to account for the difference in IDOC cost from the mean health expenditure of state prison systems.23
Staffing appears to be the biggest contributor to the low IDOC spending on health care. In fiscal year 2015, Illinois has the second lowest number of full-time equivalent (FTE) health care workers (19.3 per 1,000 inmates) of all 50 state prison systems. The range of FTEs per 1,000 in the 50 state systems range from 18.6 FTEs per 1,000 inmates to 86.8 FTEs per 1,000 inmates.24

21 In his deposition, Mr. Brunk the Chief Financial Officer for the IDOC stated on pages 12-13 that the total expenditures on health care in the IDOC were approximately $203 million. Using a population of approximately 42,000 the expenditures per inmate per year would be approximately $4,800. 22 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 23 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality. 24 Prison Health Care: Costs and Quality; a report from the PEW Charitable Trust, October 2017 as found at http://www.pewtrusts.org/en/research-and-analysis/reports/2017/10/prison-health-care-costs-and-quality.

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There is a direct correlation between the FTEs per 1,000 inmates and per-inmate annual spending. A low number of staff can reflect a more efficient system of care or understaffing with its attendant negative consequences for provision of health care. In our study, we found that in 2018 there were 25 employees per 1,000 inmates, which still places Illinois approximately in the lower 10% of state prison systems based on 2015 data. This will be discussed later in this report.
Key Findings
Overall, the health program is not significantly improved since the First Court Expert’s report. Based on record reviews, we found that clinical care was extremely poor and resulted in preventable morbidity and mortality that appeared worse than that uncovered by the First Court Expert.
Governance of the IDOC medical program is subordinated to custody leadership on a statewide level and at the facility level. The subordination of health care to custody leadership has resulted in a medical program that is not managed on sound medical principles and one that is without medical leadership.
The existing IDOC system of care was established to have a more robust central office capable of monitoring vendor activity. The IDOC central office has been progressively diminished over the years to the point where it is incapable of effective monitoring.
The medical program does not have a separate budget. The IDOC could not provide to us a document that included expenditures for medical care. Authorization and responsibility for medical expenditures does not reside with the health authority.
IDOC Administrative Directives are inadequate policies for this state system. The IDOC medical policies need to be refreshed, augmented, and address all National Commission on Correctional Health Care (NCCHC) standards.
The IDOC does not have a staffing plan that is sufficient to implement IDOC policies and procedures. The staffing plan does not incorporate a staff relief factor.
Custody staffing has also not been analyzed relative to health care delivery to determine if there are sufficient custody staff to deliver adequate medical care.
Budgeted staffing was increased but vacancy rates were higher than noted in the First Court Expert’s report. Staff vacancy rates are very high.

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list of major responsibilities or tasks, except for addressing questions of the physician staff. Because neither IDOC nor Wexford performs effective review of clinical care of physicians, poorly performing physicians continue to perform poorly without apparent oversight. We noted this on multiple chart reviews and mortality reviews.
Wexford Regional Medical Directors are also responsible for ensuring patient care is consistent with community standards.43 Yet we found many examples of physicians providing care inconsistent with current standards of care that appear to be systemic practices. For example, IDOC does not provide colorectal cancer screening based on current standards of care and does not appear to routinely screen patients with cirrhosis for varices or hepatocellular carcinoma. Persons with chronic obstructive lung disease (COPD) are not provided pulmonary function testing, which is a cornerstone of management of COPD. The current management of lipid disorders is not in line with current standards or with the Office of Health Services treatment guideline. We will discuss these later in the Chronic Disease section of this report. These deficiencies need to be corrected because these deficiencies have caused morbidity and mortality. There is no evidence of participation of the Wexford Regional Medical Team in identifying these deficiencies to the IDOC or ensuring that their physicians are practicing based on contemporary standards of care.
With respect to facility leadership, administrative supervision by HCUAs at individual facilities has improved since the First Court Expert’s visit. The IDOC HCUAs are responsible for administrative operational supervision of each facility. Of the 26 HCUA positions, all but one is now filled. However, two of the HCUAs also serve as acting Regional Coordinators, making them much less effective as HCUAs. Effectively, only 23 of 26 HCUA positions are filled. HCUAs were all competent and were engaged in solving administrative problems, even though some problems appeared unrecognized. This is one of the most significant and positive advances since the First Court Expert’s report and is a strength that the program can build on.
Medical Directors are all Wexford positions. Of the 26 Medical Directors statewide, 8.5 (33%) are vacant.44 This is an enormous vacancy rate for this key leadership position. Approximately only half of physicians have training in primary care, which will be discussed later in this report. This is a very small percentage of physicians trained in primary care. When a Medical Director is not trained in primary care it is very difficult to be responsible for monitoring performance of medical staff rendering direct patient care. An untrained physician is not likely to know how that care is supposed to be provided. We found that onsite monitoring of clinical care was very poor to nonexistent.
Director of Nursing (DON) positions can be either Wexford or IDOC. Fifteen (58%) of the DON positions are staffed by Wexford. Eleven (42%) are staffed by the IDOC. Seven (27%) of DON positions are vacant; four DON vacancies are Wexford positions and three DON vacancies are

43 Regional Medical Director’s Responsibilities as provided by Wexford Health Sources. 44 Illinois Medical Vacancy Report with ASRs as of 6/18/18 provided by the Attorney General’s Office from Wexford Health Sources. This report gives staffing at all facilities as of 6/18/18.

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IDOC positions. Nursing staff can be either IDOC or Wexford, making it difficult, because of coemployment rules,45 to properly supervise line staff.
Of the 78 leadership positions (Medical Director, DON, and HCUA) at the 26 facilities, 16.5 (21%) are vacant. The vacant positions are compounded by co-employment issues46 and use of two HCUAs as Regional Coordinators. The leadership vacancies are significant on a statewide basis. The lack of Medical Directors is dramatic and is compounded by using physicians in these positions who are, in our opinion, unqualified by virtue of not having primary care training.
In summary, administrative supervision by HCUAs is adequate but clinical-medical supervision and management, particularly physician care, is inadequate and places patients at significant risk of harm. The clinical supervision at the facility level is inadequate based on Medical Director and DON vacancies, and poor qualifications of physicians.
IDOC Policy The IDOC provides policy direction on clinical care through its Administrative Directives and chronic care guidelines. The medical Administrative Directives are a part of the larger IDOC Administrative Directives which include all custody policy. We will discuss the chronic disease guidelines in the section on Chronic Disease and dental guidelines in the Dental section. The Medical Administrative Directives are inadequate with respect to the breadth of guidance that is necessary for a correctional medical program. The IDOC has only 18 Administrative Directives. In comparison, the National Commission on Correctional Healthcare47 has 68 standards, which is a minimum panel of policies for a large prison system. There are essential areas of service that are not governed by Administrative Directives and thereby are not guided by policy and not standardized statewide. Though each facility can have additional institutional policies and procedures, the lack of statewide guidance means that practices are not standardized. The Office of Health Services needs to be responsible for statewide policy guidance in all areas of service, with local policy following statewide policy. The 18 medical Administrative Directives are inadequate for this purpose. The National Commission on Correctional Health Care standards are a reasonable guideline to determine the scope of processes of care that should be governed by Administrative Directives.
Wexford Provider Staffing and Physician Credentialing
It is our opinion that the quality of physicians in the IDOC is the single most important variable in preventable morbidity and mortality, which is substantial. The first step in provision of quality of care is to ensure appropriately credentialed medical staff. In its response to the First

45 Co-employment means that there are two employers (IDOC and Wexford), each of whom has some legal responsibility for the same employees. 46 When a State employee HCUA is responsible for managing the health care unit but staff are Wexford, there are some limitations with respect to discipline and assignment as a result of union rules. When a DON is a Wexford employee and staff nurses are state employees, the same occurs. These co-employment issues affect multiple facilities we visited. 47 The National Commission on Correctional Healthcare is the leading organization establishing standards for correctional health programs.

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Court Expert’s report,48 on page 4 an attorney for the State states that, “More than 80% of WHS’ [Wexford Health Services] physicians are either Board Certified in Family Practice or Internal Medicine, or have more than 10 years of Family/Internal Medicine practice experience or correctional medical experience.” This is a misleading statement that gives an inaccurate representation of the credentials of physicians. Credentialing information provided by Wexford shows that only six (20%) of the physicians are board certified in a primary care field. Because physicians typically work alone in these facilities, experience alone is no guarantee that performance will improve to be consistent with current standards of care. We document multiple preventable deaths in the mortality review section of this report. It is our opinion that poorly credentialed physicians contribute significantly to those preventable deaths.
Currently, there are 30 Wexford physicians working in IDOC facilities. Of these, only 16 (53%) have completed training in primary care. Of the 16 that completed primary care training, only six (20% of the 30) are board certified in primary care. Two doctors are obstetricians who work at LCC doing women’s care, for which they are appropriately credentialed and privileged; one of these is board certified. These doctors only provide obstetrical and gynecological care, not primary care. Five physicians have an internship or a year or two of primary care training but did not complete a residency.49 The remaining seven include:
• One anesthesiologist • One doctor with two years of occupational medicine • One doctor with some training in pathology • One doctor with a year of physical medicine • One surgeon • Two radiologists, one of whom did not complete residency training.
Credentialing is a process whereby a physician’s qualifications are evaluated by reviewing their education, training, experience, licensure, malpractice history, and professional competence with respect to the work they will be expected to perform. Proper credentialing is the foundation of protecting patient safety. Credentialing must ensure that a physician is properly trained for the work they will be performing. Credentialing protects patient safety by preventing incompetent, poorly trained, or impaired physicians from engaging in patient care. In correctional facilities, the scope of practice required and the health care needs of patients are mostly primary care, which requires physicians who have residency training in a primary care field. However, the only requirement in the IDOC with respect to credentialing is to verify that a physician has a license. A Regional Coordinator testified that the only review of credentials is to verify that the doctor has a license, and that their training, board certification, or disciplinary history is not part of credentialing review.50

48 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 49 This information comes from items 42Z9081-42Z8845-Part 1; 42Z9082-42Z8845-Part 2; 42Z9085-42Z8845-Part 4; 42Z908842Z8845-Part 3; and 42Z9090-42Z8845-Part 5. This credentialing information was provided by Wexford Health Sources, Inc. 50 Deposition of Joseph Ssenfuma, Regional Coordinator, on September 28, 2017.

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Privileges are the services and procedures that a physician is qualified to perform based on training and experience. The credentials and training of a physician determine what privileges that physician should have. As an example, a doctor who is trained and credentialed in general surgery can obtain privileges to perform appendectomies and cholecystectomies. A physician trained and credentialed in obstetrics can obtain privileges to deliver babies. Physicians trained and credentialed in internal medicine or family practice can obtain privileges to practice primary care. Physicians trained and credentialed in internal medicine cannot obtain privileges to deliver babies or perform appendectomies. And physicians trained and credentialed in radiology or general surgery cannot obtain privileges to provide primary care. Because the scope of practice and needs of the patients in a correctional medical program are primary care, physicians should be credentialed and privileged in primary care. In IDOC, physicians are credentialed to perform primary care even when they have no training in primary care. This is a serious problem with the credentialing process. For this reason, we agree with the First Court Expert that Medical Directors be board certified in a primary care specialty. Given the size of the IDOC facilities, there is only one physician on staff at most facilities. When this physician is not trained in primary care, there is no other available physician to care for the patient.
Because there are so many physicians who have not completed a primary care residency, the level of supervision of their care should be at a higher level than for board certified physicians. This is not the case. There is no special monitoring for this group. All physicians receive the same type of peer review.
Peer review is a means to monitor the quality of physician and other provider care, and thereby protects patient safety. Peer review of physicians in the community is typically of two types. One type of peer review is done on a routine basis for all physicians and is done as a monitoring device to ensure quality of care. This type of peer review is often called performance evaluation program or PEP. A second type of peer review is done when a member of the medical staff may have committed a serious gross or flagrantly unacceptable error or exhibits a serious character or behavior problem and needs to be evaluated with respect to possible reduction of privileges or referral to a medical board. The latter type of peer review is generally a formal quasi-legal procedure that has significant implications for the physician’s employment and professional status. We found that the first type of peer review is done for all physicians and mid-level providers in the IDOC, but the second type of peer review does not appear to occur in IDOC, based on information made available to us. As will be detailed later in the mortality review section of this report, there were numerous grossly and flagrantly unacceptable episodes of care that should have resulted in peer review but did not. Peer review in the IDOC is ineffective, as physicians who commit repeated egregious medical errors continue to practice and continue to harm patients.
The first type of peer review which is performed by Wexford is a structured questionnaire performed by one Wexford physician on another Wexford physician. We noted at one facility that a general surgeon performed the peer review of the primary care work of a nuclear radiologist. It is our opinion that this type of performance evaluation is defective and unlikely to

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result in meaningful evaluation, as neither doctor is adequately trained to practice primary care and would not be able to know when care was adequate.
Also, the peer review that is done is so poor that it is unlikely to identify problems. The Wexford peer review consists of a review of 10 single episodes of care for five areas of service. For each of these areas of service there are a series of questions ranging from 10 to 15. Some of the questions are not relevant to clinical quality, such as:
• Is the handwriting legible? • Is the signature with professional designation legible? • Is the patient enrolled in all relevant clinics? • Are all medications written on a script? • Does the clinic include pertinent vital signs?
While it is important to write a legible note, legibility does not evidence clinical competence. Many questions require an interpretation. For example, the question “Was treatment appropriate for this visit” requires that a physician know the appropriate treatment. The problem is that when only 20% of doctors are board certified and 23% have no training in primary care, many doctors will not know the appropriate treatment. Doctors performing these evaluations need to be expected to know what the appropriate treatment is, otherwise the test will not perform as expected. Also, these episodes of care are picked at random and may not include patients that have serious illness. When someone does not have a serious illness, it is difficult to test the clinician, because it is very difficult to make an error if there is no decision to make with respect to the treatment. Additionally, it appears that these reviews are not taken seriously and appear to be done merely because these are requirements of the contract. For these reasons, it is not surprising that almost all peer reviews were scored 100% adequate. When we compare these results with death chart reviews we performed, there is dramatic discrepancy. Most chart reviews we performed contained many errors. We reviewed the care provided over two years prior to the death. Of 33 death charts we reviewed, there were over 1700 errors. Many had serious errors. Some had egregious errors that resulted in death. We noted the same level of medical error in chart reviews we performed on site visits. The Wexford methodology of peer review does not appear to accurately review physician practice, based on a comparison to our record review of clinical care. This process is not working as intended.
The First Court Expert opined that Wexford hired underqualified physicians, and recommended that facility Medical Directors be trained in primary care and be board certified. We agree with this finding, based on the credentialing information above, and we agree with his recommendation.
In reviewing the Defendants’ comments to the First Court Expert’s Draft Report,51 the Defendants challenged the assertion of the First Court Expert that Wexford Health Services has hired “underqualified clinicians.” In their attempt to refute that assertion, the Defendants

51 Re: Lippert v. Godinez – Defendants’ comments regarding Confidential Draft Report via email dated November 3, 2014, authored by William Barnes.

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stated that, “The community standard, as espoused by the American Medical Association, requires physicians to possess only a license to practice medicine.” This is misleading and inaccurate. This statement implies that the current community standard of medicine is for physicians to only have a license to practice medicine, presumably in any field. We disagree. It is our opinion that the community standard in the U.S. is for physicians working in primary care to have residency training in a primary care field. One would never see a pathologist delivering babies. The Defendants’ statement also implies that the American Medical Association (AMA) endorses their position. This statement of Defendants is neither the community standard nor is it a standard we could identify as espoused by the AMA.
It is true that it is legal for a doctor without residency training to open a private practice in the community and practice primary care medicine without any training in primary care. However, it is becoming increasingly uncommon, and particularly in urban areas, it is now extremely uncommon to find doctors without residency training in primary care who work in general practice. The standard in the community is for physicians in organized medical practices to undergo credentialing and privileging, and to have residency training consistent with their scope of practice.
With respect to the recommendation to hire board certified physicians, the State’s response said,
“This recommendation, along with any recommendations dictating specific training or certification for licensed correctional physicians, lacks any justification or support in state law and community, ACA, AMA, and NCCHC standards. Accordingly, this recommendation exceeds minimum constitutional standards of adequacy” [my emphasis].52
With respect to the assertion that use of board certified primary care physicians exceeds minimum constitutional standards of adequacy, we note as an example that there has been Federal Court intervention requiring use of primary care trained physicians when that training was necessary to protect inmate-patients. For years, the California Department of Corrections and Rehabilitation (CDCR) had poorly credentialed physicians, which resembled the current situation in the IDOC. In 2004, in the California prison system, many physicians were not trained in primary care; instead, they had training in surgery, radiology, gynecology, pathology, etc., similar to the IDOC situation in 2018. Many physicians had prior or current sanctions of their licenses and evidence of clinical incompetence by virtue of malpractice claims, which we were unable to evaluate for Wexford physicians. It was the opinion of the Court in California that the lack of qualified physicians resulted in increased morbidity and preventable death. We believe that the situation in California is similar to the situation in the IDOC. In California, as a result of that situation, the Federal Court issued an order53 requiring the use of physicians who were

52 Letter via email to Dr. Shansky, First Court Expert from William Barnes, representing the IDOC dated 11/3/14. 53 Proposed Stipulated Order Re: Quality of Patient Care and Staffing; Marciano Plata, et al., v. Arnold Schwarzenegger, et al.; United States District Court Northern District of California No. C-01-1351 T.E.H., originally filed 9/17/04. In that order, the Court stated: “As of January 15, 2005, defendants shall not hire independent contractor primary care physicians who are not boardeligible or board certified in internal medicine or family practice.” p. 3.

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board certified or board eligible54 in internal medicine or family practice.55 We note that in the California prison system in 2007, there were 18 preventable and 48 potentially preventable deaths, and in 2017, when all physicians were required to be board certified, there were 0 preventable deaths and 18 potentially preventable deaths.56 Although there were other systemic improvements that helped reduce the number of preventable deaths, improvements in physician credentialing played the major role. Improving credentials of physicians and removal of unqualified physicians has been shown to reduce mortality.57
We have learned that in the mid-1980s, approximately 12 IDOC prison facilities were accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). At that time, the Agency Medical Director approved all facility Medical Directors and his requirement was that Medical Directors completed primary care training. Accreditation by JCAHO required privileging based on appropriate credentials. At that time, the IDOC placed into its Administrative Directives the requirement that all physicians have one-time primary source verification of their credentials, which was a requirement to verify training. The IDOC ended their accreditation with JCAHO but kept in the Administrative Directives the requirement of primary source verification. Over the years this practice was ignored and currently the HCUAs we interviewed do not even know what primary source verification is. The only credentialing review is to ensure at the annual CQI meeting that every physician has a license.
Physician Staffing Physician staffing in IDOC is very poor. The Vice President of Operations for Wexford could not remember the last time there was a full physician staff. She thought in 2014 there was only one vacancy, but that was as close to full staffing as the program got. We noted earlier in this report that IDOC lacks adequately trained physicians. This is compounded by vacancies in physician positions. Persistent and ongoing vacancies in the Medical Director position title contribute significantly to physician staffing deficiencies. In addition to vacancies of Medical Directors, all five facilities we visited were missing a physician. Two facilities had replaced a physician position with a nurse practitioner because of the inability to fill physician positions. Statewide, the total days of missing Medical Directors totaled 22% of total days these positions were supposed to be filled,58 an unacceptable vacancy rate.
Because of vacancies, physicians are moved from site to site as “Traveling Medical Directors.” One of the facilities we investigated, NRC, had a Traveling Medical Director. This individual did

54 Board eligible is a term used to describe a physician who has completed a residency training in a field and is therefore qualified to take a board certification test for that specialty. For example, a board eligible internist is one who has completed a residency in internal medicine and is qualified to take the board certification test but has not yet done so. 55 Since this order, the California Department of Corrections and Rehabilitation, through the Receiver’s office, requires board certification in family practice or internal medicine. 56 Based on annual analyses of inmate deaths as reported by Dr. Imai, consultant to the medical receiver in California as found under the heading of Death Review at https://cchcs.ca.gov/reports/. 57 Terry Hill, Peter Martello, Julie Kuo; A case for revisiting peer review: Implications for professional self-regulation and quality improvement. Plos One at https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0199961&type=printable. 58 Document 42P5621-IDOC Facilities lacking permanent medical directors 7-1-15 to 11-26-17 Bates number 550.

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not participate meaningfully in quality improvement, did not show any evidence of oversight of the medical program, and had clinical issues.
The turnover of Wexford physicians is also very high. Of 33 physicians listed on a 9/19/14 report59 by Wexford, only 18 (54%) are still working three and a half years later. The inability of Wexford to hire and retain qualified physicians is a serious problem and was mentioned as a significant problem by every HCUA we spoke with. There has been no formal analysis of this that we could find. The Vice President of Operations for Wexford told us that it was harder to recruit to corrections because of the impression that if you worked in corrections, you were a bad doctor. We disagree. In our opinion and from experience, recruitment in corrections depends on establishing conditions of work that are professional and foster a sense of providing a worthwhile service. When that occurs and when doctors are properly supported, qualified doctors can be found and retained in correctional environments and elsewhere.
At the five sites we visited, none had a long-tenured Medical Director. LCC had a Medical Director who had the longest tenure of the five facilities we inspected. She had been Medical Director since May of 2016. The Medical Director at Dixon started in October of 2017. The Medical Director at MCC has been in his position since June of 2017. One Medical Director was at Dixon for a short period of time before being moved to NRC. After several months at NRC, he was moved to SCC. About two months after being moved to SCC, he resigned. His position at NRC was filled in coverage by the ex-Medical Director at Hill, who the First Court Expert stated had identified clinical issues. This musical chairs rearrangement of Medical Director assignments is demonstration of the failure to create an environment likely to attract qualified physicians. The IDOC needs to determine why it is that their vendor cannot recruit and retain qualified physicians.
Physician leadership was not improved based on the First Court Expert’s comment that,
“the Medical Directors were functioning in primarily clinical roles and spent little if any time reviewing the clinical practice of other providers or engaging in other important administrative duties.”60
Several of the HCUAs spoke about poor physician quality as an issue. Two of the Medical Director positions were vacant. A coverage physician at one facility with a vacant Medical Director position did not participate meaningfully in quality work or in providing clinical leadership. In two of the remaining three facilities we visited, the HCUA spoke of having problems with the Medical Director. One was described as only doing chart reviews, not wanting to see patients, not reviewing deaths, and having to be urged to see patients. When leadership and quality of physicians is inadequate, patients are placed at risk because poor quality will not be identified or corrected.

59 40C0134- IL Physicians Report 9 19 14 Key Produced by Wexford Health Services. 60 Final Report of the Court Appointed Expert, Lippert v. Godinez December 2014 p. 7.

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Non-Physician Staffing On a statewide basis, exclusive of dialysis and the HIV and hepatitis C telemedicine program, there are 1119.6 medical staff in the IDOC program, with an inmate population at mid-year 2017 of 43,075. This amounts to 26 staff per 1000 inmates, which places IDOC approximately in the lowest 10% of state prison systems in the country61 with respect to staffing numbers based on 2015 data. Of the 1119.6 staff, 401 (36%) are employed by IDOC and 718.6 (64%) are employed by Wexford Health Sources. Of the 1119.6 medical staff, there are 245.8 (22%) vacancies, not including leave of absences, which would increase this number a few points. Wexford has an 18% vacancy rate for its 718.6 employees and IDOC had a 29% vacancy rate for its 401 employees. These are very high vacancy rates and compound a very low staffing level, making staffing a critical problem statewide. This was confirmed by HCUAs at sites we visited.

We compared facility staffing for mutually visited facilities. In 2014, the First Court Expert determined that for the five facilities we visited there were 303.41 budgeted positions, an 18% vacancy rate, and 25 staff per 1000 inmates.

Positions, Vacancies, and Positions per 1000; First Court Expert’s 2014 visit62 Facility Positions Vacancies % Vacancy Population Staff per 1000

SCC & NRC 73.90

23

31%

4078

18

LCC

62.21

4

6%

1997

31

Dixon

66.30

18

27%

2349

28

MCC

101

9

9%

3750

27

Total

303.41

54

18%

12174

25

For the same five sites we visited, there were 405.05 budgeted positions. There were 99
(23.5%) vacancies. This is a very large vacancy rate, which makes it difficult to effectively operate a health program.63 Four of the five facilities we visited had unacceptable vacancy rates.64 We note several key differences in the staffing differences between 2014 and 2018. The
population in the five facilities we reviewed decreased by 2177 (18%). The number of positions

61 Prison Health Care: Costs and Quality, Pew Charitable Trusts, October 2017. We note that the staffing levels given in the Pew study reflect 2015 numbers. However, these 2018 IDOC staffing numbers still would rank Illinois in the lowest 10% of state prison systems comparing IDOC 2018 staffing to nationwide 2015 numbers. 62 This table is constructed from data taken from tables presented in the First Court Expert’s report. 63 In Defendants’ comments on our report they noted that there is a national nursing shortage and cite a survey of readily available health care facilities in the United States in January 2018 by Nursing Solutions, Inc. a recruitment firm. Defendants note that over 25% of the hospitals in this country who responded to the survey have Registered Nurse (RN) vacancy rates of greater than 10%. This same study reported that the average vacancy rate for Registered Nurses is 8.2%. In either case, nursing vacancies in the IDOC facilities we visited exceeded the average from this survey and were much more than the maximum of 12.5% used in the study. 64 Except for LCC, all IDOC facilities had vacancy rates of 20% or greater. These vacancy rates are much higher than Federal Bureau of Prisons policy that establishes that vacancy rates not exceed 10% during any 18-month period (Program Statement P3000.03: Human Resources Management Manual, Chapter 3, page 11 obtained at https://www.bop.gov/PublicInfo/execute/policysearch#. There are no published reports comparing vacancy rates amongst health care providers working in state prison settings.

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increased by 101.64 (33%).65 The staff per 1000 inmates increased by 16 (64%). But the vacancy rate increased from 18% to 23.5%, a 30% increase.

Positions, Vacancies, and Positions per 1000 Inmates; 2018 visits

Facility

Wexford and IDOC staff

Vacancies

% Vacancy

Population

Staff per 1000

SCC

98.00

24

24%

1183

83

NRC

69.00

29

42%

1681

41

LCC

53.15

1

2%

1806

29

Dixon

93.80

19

20%

2298

41

MCC

91.10

26

29%

3029

30

Total

405.05

99

23.5%

9997

41

While budgeted staffing increased at three of five facilities we visited, it decreased at two of five facilities. There are 44 additional staff working at these facilities than there were when the 2014 report was written.

Four of five facilities we visited had significant vacancy rates, as high as 42%, which are mostly nursing staff. Almost every HCUA told us that there were insufficient nursing staff. This was confirmed in the deposition of the Agency Medical Coordinator, who noted that over the past several years there have been nursing shortages at SCC, Pontiac, Decatur, Graham, Southwestern, and MCC.66
Most HCUAs told us that if all their positions were filled they believed that there would be adequate staff. We do not agree. The IDOC has not performed a staffing analysis based on expectations of the Administrative Directives and special care needs, including infirmaries and geriatric care. Relief factors have not been included in staffing considerations and budgeted staffing numbers do not appear to be adequate. In our opinion, despite increased nurse budgeted staffing and even when vacancies are filled, there will still be nursing shortages. The IDOC, in their comments on our report, assert that the IDOC in the current fiscal year and Wexford in the past year spent a total of $8,283,718 on overtime wages. We acknowledge that this is a significant expenditure. Based on our investigation, overtime is used to cover some but not all vacant shifts. However, reliance on overtime contributes to staff fatigue, increased errors, staff dissatisfaction and turnover as well as higher incidence of poor patient outcomes.67 While we did not evaluate working conditions for staff, we did find ample evidence of error and

65 Dixon appears to have had a significant increase in staffing, but as the HCUA related to us, this is artefactual, as 22 nurses were moved from the mental health program to the medical program but still had assignments in mental health. Their reassignments did not create increased staffing for the medical program, but gave the impression that there had been a large increase in staffing. If these 22 nurses are removed from the Dixon staffing, the actual increase in staffing would be 79.64 positions or a 26% increase, not a 33% increase. 66 Deposition of Kim Hugo, Agency Medical Coordinator pp. 25-31, April 11, 2018. 67 Institute of Medicine (2004) Keeping Patients Safe: Transforming the Work Environment of Nurses. National Academies Press, Washington, D.C., Stanton, M. (2004). Hospital nurse staffing and quality of care. Agency for Healthcare Research and Quality. Research in Action, Issue 14.

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poor patient outcomes in our review of health care provided to IDOC prisoners. The use of overtime does not change our opinion that a staffing analysis is needed or that there is lack of adequate staffing.
The Wexford component of staffing is memorialized in a contract document called a Schedule E. Based on interviews with senior leadership of Wexford and IDOC, we could not determine who is responsible for developing staffing levels found in the Schedule E. The Wexford Vice President of Operations told us that the Schedule E staffing is the recommended staffing of the IDOC to which the vendor can make suggestions. Mr. Brunk, the Chief Financial Officer, told us that the Schedule E is developed by the Wexford Regional Manager and reviewed by the IDOC Office of Health Services. The Agency Medical Director told us that he had input into the Schedule E for new facilities but otherwise had no input into the Schedule E, and that Mr. Brunk or Wexford developed the Schedule E, which the Office of Health Services approved. The Chief of Programs and Support Services, who is the health authority, told us that the Agency Medical Director was responsible for development of the Schedule E. Development of the Schedule E is not in the job description of the Agency Medical Director. The lack of a central health authority, we believe, contributes to this confusion. Furthermore, the Schedule E as represented in the current contract does not include input from HCUAs, Regional Coordinators, or even the Agency Medical Director in addressing clinical needs in their facilities. Given these responses, it is our opinion that the Schedule E does not reflect actual staffing need, as it does not appear based on any staffing analysis we could identify after discussions with health leadership who we thought would be responsible for this document.
No one we spoke with has responsibility for determining if total staff (state and Wexford) is adequate. The IDOC Agency Medical Director and the Agency Medical Coordinator told us that an Assistant Warden of Programs (AWP) from Sheridan, who also was a nurse, was engaged in analyzing staffing at various sites, but the extent of this analysis was not known to the Agency Medical Director. The Illinois Nursing Association (INA) is the union for the registered nurses in the IDOC. The Agency Medical Coordinator participates on an INA standing committee that meets monthly to discuss INA related nursing issues. The INA has raised issues with respect to staffing at certain facilities. When this occurs, the AWP from Sheridan performs a staffing analysis, brings it to the standing committee, which then considers staffing recommendations, and forwards them the Agency Medical Director for review. Other than this effort, we could identify no analysis of staffing need state wide.
Based on conversations with senior IDOC leadership, staffing increases at NRC and SCC were a result of union negotiations. Senior IDOC Office of Health Services staff were not involved in this decision,68 although a Regional Coordinator gave recommendations on how many nurses were needed. These increases were not based on a thorough staffing analysis, as relief factors were not used and because no positions other than RN positions were considered. At no facility has there been an analysis of staffing need based on adherence to the Administrative Directives. This creates a gap between clinical need and staffing levels that affects all facilities.

68 See pages 14-16 of deposition of Kim Hugo, Agency Medical Coordinator, April 11, 2018.

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the Warden. This appears to have resulted in procedures that accommodate custody needs even when it results in medication administration practices that violate nursing practice standards.
Further, we observed nurses floating medication well in advance of administration, which alters the medication’s properties, and crushing medication that was put in the reused envelopes, which contaminates other medications put into the envelope. These practices put inmates at risk of receiving ineffective treatment and adverse drug reaction.
Medication Continuity Chronic disease patients are not monitored to ensure continuity in treatment nor is their compliance with prescribed treatment assessed. Chronic disease medications are provided to patients either as “Keep on Person” (KOP) or each dose is administered by a nurse. We found many examples of patients whose ordered medications were never provided, were delayed starting, and were stopped because the patient had not been seen by a provider to renew medication. Record reviews indicated that appointments for chronic care are not scheduled to take place prior to expiration of chronic disease medication orders. As a result, providers often reorder medications without seeing the patient to conduct a clinical evaluation to determine whether the treatment plan should be continued or changed, based upon the how well the patient’s chronic disease is controlled.
Facility policy and procedures162 direct that the MAR be available with the medical record at the time of a chronic care provider visit. However, we saw no evidence that current MARs were available at the time a patient saw a provider. We also saw no evidence that providers review the MAR and discuss the patient’s adherence as part of chronic care appointments. Facility policy and procedures163 also instruct nurses to refer patients to a provider for evaluation and possible change in treatment if they refuse to take prescribed medication. In the records we reviewed, there were multiple examples of patients not taking medication as prescribed who were not referred for provider evaluation.
Monitoring Performance Pharmacy audits and inspections, which are done routinely, document the problems described above. These reports are reviewed and included in the institution CQI meetings. They document ongoing problems system wide with medication, including: use of the envelope rather than MAR to prepare medication; failure to document medication given on the MAR; failure to transcribe orders onto the MAR; administering medication for which there was no order, or when the inmate was not present at the facility; administering medications that differ from the order; documenting in advance that medication was administered; and the presence of open, undated, multi-use containers of medication. There has been some coaching and
162 LCC, SCC, and DCC Operations Policy and Procedure P. 107 Management of Chronic Disease and MCC Policy and Procedure V3-12 Medical management of offenders with a chronic condition. No policies and procedures were provided for NRC. 163 LCC, SCC, and DCC Operations Policy and Procedure P. 128 Medication Services and MCC Policy and Procedure V 4-1 Pharmacy Services. No policies and procedures were provided for NRC.

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counseling of individuals, but there has been no review or analysis done to identify root causes for these persistent failures, and no effort made to eliminate systemic causes of failure or improve performance through corrective action planning. In the meantime, inmates are subjected to delays and interruptions of treatment, unsanitary conditions, and medication errors.
We note that some of the root cause problems appear to be related to custody control of medical processes within the institution and the apparent reluctance of health staff to openly discuss with custody the need for their cooperation in the process of medication administration. The governing bodies of CQI committees at several facilities were mostly custody-trained staff. This is an impediment to effective monitoring of clinical processes, such as medication treatment. Participation and support of custody staff in CQI is very important; however, medical staff must direct and control the monitoring of health care and be able to drive necessary performance improvements.

Infection Control
Infection control is an essential element of an adequate health care system. The inmate population has a high prevalence of communicable and infectious diseases. Because of the high prevalence of communicable diseases, a highly functioning infection control program must be in place to identify, track, and assist in management of these illnesses.
Approximately 4-6% of TB cases reported in the United States occur among people incarcerated at the time of diagnosis. The incarcerated population contains a high proportion of people at greater risk of TB than the overall population.164 In 2013, there were 36,064 persons with HIV infection in the civilian population of Illinois, with a population over 18 years old of 9.7 million or 0.4% of the population. In 2010-2015, IDOC had 686 inmates with HIV infection or 1.5% of its population.165 The IDOC HIV prevalence was almost four times as high as the civilian HIV prevalence. It is estimated that approximately 160,000 persons in Illinois have hepatitis C or about 1.6% of the Illinois population, as opposed to 5.6% known cases in IDOC and an estimated 10% overall estimated prevalence. The IDOC had at least 3.5-6.25 times the rate of hepatitis C infection of the civilian population. The burden of sexually transmitted disease, MRSA, and scabies are also typically higher in prison systems.
Conditions of confinement promote the spread of disease because of environmental conditions within the prisons. Inmates are housed in close quarters. In our IDOC Prison Overview section we spoke about how crowded the IDOC prisons are. The overcrowded conditions, particularly in antiquated facilities, promote transmission of multiple types of infections and contagious diseases. Individuals have no control over the quality of air they breathe via the facility ventilation system; they live in cells or dormitories that have been occupied by others and are
164 TB in Correctional Facilities in the United States, Centers for Disease Control and Prevention as found at https://www.cdc.gov/tb/topic/populations/correctional/default.htm. 165 HIV in Prisons, 2015 – Statistical Tables , Laura Maruschak and Jennifer Bronson, Ph.D., BJS Statisticians; August 2017, NCJ 250641, US, Department of Justice Bureau of Justice Statistics.

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expected to clean their living area with supplies that are available; they are provided food prepared by inmate workers to eat with silverware and plates cleaned by inmate workers; they are provided linens and clothing that are washed by inmate workers or wash linens themselves with laundry soap that is available; they use toilets, sinks, and showers that are used by many others. Every one of these activities of daily living carries multiple opportunities for communicable or infectious disease transmission and illness for both staff and inmates. Infection control programs in the correctional setting establish and monitor procedures to prevent exposure to diseases that can be transmitted in the correctional setting. Infection control programs also identify sources of infection through screening and take steps to prevent or mitigate infection of others, to treat persons with infectious diseases, and improve the health and safety of staff and inmates by providing information on prevention, education on self-care, and immunizations.166 These efforts require surveillance of disease by accurate statistical means, both for required reporting purposes and so that the IDOC medical program can understand how to study, plan, and prepare for the care they will need to provide. The infection control program is usually coordinated by a registered nurse with consultation from a designated provider with expertise in infectious diseases,167 and supported by data collection methods that can reasonably track diseases within the prison system.
First Court Expert Findings The First Court Expert found IDOC’s infection control program was a moving target across the system, with some facilities having well developed infection control programs and other facilities having programs described as being in their infancy. Facility health care staff had been provided with an exposure control manual, but IDOC provided no oversight of infection control. At some facilities, no one was clearly designated with responsibilities for infection control, and the duties were simply added to those of the HCUA or DON. Other facilities had identified a specific nurse responsible for infection control, but the duties of the position had not been defined. In addition, no training in how to operate an effective infection control program had been provided to those individuals who had been assigned responsibility for infection control.
Examples of systemic issues described by the First Court Expert which occurred as a result of the disarray in infection control monitoring and lack of oversight from IDOC included the failure to launder bed linens of infirmary patients in water temperatures hot enough to destroy pathogens transmitted by blood and body fluids; negative pressure rooms that were not functional and not monitored to ensure that negative pressure was maintained to prevent transmission of airborne illnesses; lack of proper sanitation of medical equipment; and lack of disinfection procedures to provide clean surfaces when examining patients.
Current Findings The systemic issues described in the First Court Expert Report still occur today. While there has been some improvement in the use of paper barriers on examination tables, little else has
166Bick, J. (2006) Infection Control in the Correctional Setting. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 230-231. 167 Lane, M. (2006) The infection control program. In M. Puisis, (Ed.) Clinical practice of Correctional Medicine. (2nd ed.) Philadelphia: Mosby Elsevier. 460-461.

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changed with regard to the infection control program. The following summary of our findings reinforces the findings of the First Court Expert. We had multiple additional findings that give us concern.
The IDOC has had numerous recent outbreaks of contagious and infectious diseases. Since 2008, there have been several outbreaks of scabies in Illinois prisons. The latest was in Taylorville in 2016, in which the prison was locked down and 214 inmates were treated.168 In 2012, a norovirus outbreak sickened 140 inmates at SCC.169 The numbers of inmates affected in these outbreaks reflects poorly on the surveillance and typical preventative measures enacted by infection control procedures to abort the contagion earlier and prevent the widespread infections that occurred at these facilities. An inmate at SCC also contracted Legionnaire’s disease in 2015.170 At the Danville Correctional Center, 78 persons were affected by histoplasmosis in 2013, likely from soil disruption. This outbreak was initially thought to be adenovirus, but required investigation by the federal Centers for Disease Control and Prevention and was found to be histoplasmosis.171, 172
Typically, outbreaks such as these are monitored and sometimes managed by the infection control program. Yet in the IDOC, there was no designated individual responsible for infection control at four of five facilities we visited, including at SCC, where one of the outbreaks described above occurred, as well as the isolated case of Legionnaire’s disease. At SCC, infection control duties were dispersed amongst several staff nurses, the DON, and the HCUA, and the program was not effective. The norovirus outbreak at SCC was large, and typically early infection control measures would be expected to reduce the size of such an outbreak. At the same four facilities there were no schedules for routine sanitation and disinfection of health care areas. Basic maintenance of rooms was lacking. MCC has an extensive collection of policies and procedures that detail cleaning and sanitation of every room in the health care building.
At MCC, responsibility for infection control resides with one of the nursing supervisors. Her responsibilities are managing TB surveillance, performing sanitation inspections, ensuring food handlers are cleared for work, monitoring skin infections, interface with the Illinois Department of Public Health, monitoring negative pressure rooms, and monitoring hygiene in clinical spaces. In addition, she manages HIV and hepatitis C clinics, coordinates follow-up of patients treated for TB infection, and provides supervision of inmate peer educators. It is our opinion that the infection control nurse is an essential component of the health care program at IDOC facilities and is a full-time position.

168 Scabies Outbreak Causes Temporary Lockdown of Taylorville Prison, Doug Finke, The State Journal Register, September 19, 2016. 169 Norovirus Outbreak Hits Illinois Prison; Food Safety News December 29, 2012. 170 Stateville Inmate Diagnosed with Legionnaire’s Disease, Dawn Rhodes, Chicago Tribune August 12, 2015. 171 New details regarding illness among inmates at Danville Correctional Center. Found at https://www2.illinois.gov/idoc/news/2013/pages/danvilleccillness.aspx. 172 Centers for Disease Control and Prevention website Outbreaks and Investigations lists Histoplasmosis in an Illinois Prison. Details given were that this occurred in August-September 2013 with 78 cases and likely related to disruption of soil containing bird droppings. Found at https://www.cdc.gov/fungal/outbreaks/index.html.

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We observed significant challenges to safety and sanitation at every facility visited. For example, at SCC we observed cockroaches, gnats, and flies in the infirmary; the room used for hemodialysis (considered a sterile procedure) had peeling paint on the walls, there was standing water on the floor, and the garbage can was not covered. The kitchen/dining area was occupied by birds, and their droppings were evident on the walls and floors. At Dixon, all three floors of the medical building had missing floor tiles, which is a sanitation issue in an area dedicated to the delivery of health care.
NRC is the only facility among the five we visited that does not conduct monthly safety and sanitation inspections. At the other facilities, safety and sanitation inspections do not adequately identify problems requiring remediation. For example, we found faulty negative pressure isolation rooms and nonfunctional dental equipment that were not identified because they are not included in the safety and sanitation inspections. We also found furniture, equipment, and hard surfaces (floors, ceilings, sinks, cabinetry) were rusted, broken, or deteriorated in health care areas at all facilities, which had not been documented as issues needing repair on safety and sanitation rounds.
Moreover, review of safety and sanitation findings in the minutes of CQI meetings document the persistent failure or lengthy delay in remedying identified problems. Safety and sanitation inspections should inspect or monitor the condition, function, and annual certification of clinical equipment, functionality of the negative pressure rooms, integrity of bed and chair upholstery, completeness of medical cart and emergency response bag logs, the training of health care unit porters, and other health care issues.
The TB prevention and control program in IDOC is not effective. The hallmarks of an effective TB program in correctional facilities are: initial and periodic TB screening, successful treatment of TB disease and infection, appropriate use of airborne precautions, comprehensive discharge planning, and thorough and efficient contact investigation when a case of TB disease is identified.173
At IDOC, TB screening is improperly performed, treatment of infection is delayed, and negative pressure rooms (an airborne precaution) often are not functional or monitored. We did not evaluate TB discharge planning or contact investigation, although in the absence of an individual assigned responsibility for infection control, these interventions are most likely sporadic and haphazard as well. At NRC, nurses do not read tuberculin skin tests properly and only document results in the health record when they have time. Instead of inmates being escorted to the medical clinic for nurses to read their tuberculin skin tests, nurses must go cell to cell. In addition, NRC officers do not open the food port for inmates to extend their arm for nurses to palpate and measure the results of the test. Instead, nurses read the test by looking through the glass window of the cell door, which is inappropriate technique.174 There was
173 TB in Correctional Facilities at https://www.cdc.gov/tb/topic/populations/correctional/, Epidemiology of Tuberculosis in Correctional Facilities 1993-2014 at https://www.cdc.gov/tb/publications/slidesets/correctionalfacilities/default.htm. 174 A tuberculin skin test is read by manually palpating the size of induration of the test site with good overhead lighting. To read a tuberculin skin test through a glass window is inappropriate.

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evidence in the review of records that other sites distrust TB screening performed at reception centers and rescreen inmates upon arrival at their parent facility. We also observed that nurses at Dixon merely look at the skin test site through the cell door rather than palpating and measuring induration in a well-lit area. We did not observe nurses reading tuberculin skin tests at all facilities, but based upon the two sites where we observed poor practices, we conclude that TB screening at IDOC is not adequate.
We reviewed the records of four patients who had completed treatment for latent TB infection. In three cases, the patient was subjected to multiple skin tests (which were positive) and multiple chest radiographs, which were unnecessary, before treatment was finally initiated. In the other case, treatment was initiated even though skin testing was ordered but never completed, based upon a history of a positive skin test reported by the inmate when he requested treatment initiation. Initiation of treatment for latent infection was haphazard and delayed.
Negative pressure isolation rooms were either not functional or the monitor was not working at three of the five sites we visited. At NRC, the monitor in one room was not working and in the other room the vent was taped shut, disabling the negative pressure. At SCC, neither room was functional and the equipment had not been serviced for years. At LCC, two of three rooms were not functional. Negative pressure rooms need to be maintained and ready for use; this is not the case in the IDOC, and places patients and staff at risk of airborne infection.
The UIC provides treatment of inmates with HIV and hepatitis C via telemedicine. For hepatitis C, UIC has no role in managing hepatitis C patients before referral and after antiviral treatment and has no role in screening for these diseases. UIC provides no assistance in managing other complications of hepatitis C including cirrhosis, varices, or ascites as examples. IDOC facility providers are responsible for that care but do not appear to know how to provide it. One or more nurses are designated at each site to coordinate these clinics and the care of these patients. The quality is highly dependent upon the interest and capability of each nurse assigned these responsibilities. There is no one identified to monitor or oversee the work of the clinic coordinators, who must negotiate with all the other users of the telemedicine space to schedule clinics timely. Coordination between the UIC infectious disease specialists and primary care providers is problematic, as evidenced in the example of one patient with HIV; the specialist recommended lowering the patient’s dose of metformin (a medication used to treat diabetes) because of an interaction with one of the HIV medications prescribed.175 The primary care provider at the facility responsible for the patient’s diabetic care never acted on the recommendation. The HIV specialist reduced the dose of metformin at the next visit. The patient was at risk of clinical deterioration because of the primary care provider’s omission for five months.
IDOC has adopted what it describes as opt-out HIV testing at intake, but policy and practice are not consistent with the use of this term. Opt-out testing is recommended by the Centers for

175 Dixon Infection Control Patient #3.

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Disease Control because it supports early identification and treatment.176 The IDOC Administrative Directive still requires that consent be obtained before drawing blood for HIV, and in practice this consent is still obtained.177 The practical effect is that fewer newly arriving inmates are screened for HIV as compared to hepatitis C. The IDOC should revise the Administrative Directive to eliminate the requirement for written consent and initiate opt-out HIV testing.
We also question the effectiveness of periodic screening programs for HIV and hepatitis C infections. We noted on one death review178 a man who was not known to be HIV infected and was not offered HIV screening at two annual health evaluations we reviewed, despite having a history of multiple sexual partners, prior blood transfusions, and a history of sexually transmitted disease all of which were risk factors for HIV infection. He ultimately developed severe HIV disease, which was unrecognized for several years until he was finally admitted to a hospital, where he died of severe complications of his undiagnosed and untreated HIV disease. Sentinel cases such as these should prompt an investigation into why the system failed to timely screen, diagnose, and treat this patient, whose death was preventable. The infection control nurse should monitor results of HIV and HCV screening to verify that policies to screen for communicable diseases are effective.
All five of the facilities visited report cases of culture positive Methicillin-resistant Staphylococcus Aureus (MRSA) as is required by IDOC. However, only MCC tracks all skin and soft tissue infections (independent of whether a culture is performed) as recommended by the First Court Expert. In addition, tracking should include culture and sensitivity results to ensure correct antibiotic selection and housing location of the patient. Infection control nurses should review tracking results to identify clusters of infections by housing unit, perform additional case-finding, and identify environmental factors that may be promoting infection. Factors in correctional settings found to contribute to skin and soft tissue infections include sharing towels and soap, ineffective laundry practices, poor sanitation of exercise equipment and showering facilities, poor hygiene practices, unnoticed infections that leak pus, and poor access to medical care.179 Tracking enables sources of infection to be identified and steps taken to eliminate factors associated with disease transmission. For example, at MCC one of two cases of skin infection reviewed was a patient who developed infection six days after hernia surgery and having been returned immediately to general population at the facility.180 This case of soft tissue skin infection raises questions about the ability of the patient to adhere to wound care instructions and suggests consideration of a policy of admitting inmates to the infirmary only after it is determined that the patient is stable and able to adhere to wound care instructions.

176 Opt-out testing means that testing will be performed unless the patient refuses the test. Opt-in testing means that the patient is offered testing and it is performed only upon patient consent. The IDOC has large rates of refusal of HIV testing, unlike other similar correctional centers that offer opt-out testing. Opt-out testing generally raises the rates of screening. 177 Administrative Directive 04.03.11 Section5 II. F. 5. d. 178 Mortality Review Patient #22. 179 Smith, S. (2013) Infectious Diseases. In L. Schoenly and C. Knox (Eds.) Essentials of Correctional Nursing. New York: Springer. P. 189. 180 MCC Infection Control Patient #7.

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The IDOC requires a monthly report of communicable diseases and infection control data. This report includes items such as the number of MRSA cases, HIV and HCV tests performed, the number of tuberculin skin tests administered, the use of negative pressure rooms, etc. We found that these reports are submitted to the Quality Improvement Committee (QIC) and included in the monthly minutes. However, there is no trending or analysis of infection control data. There is no discussion in the infection control report or CQI minutes of, for example, why only half of incoming inmates are tested for HIV, given the statewide opt-out policy. A more notable example of the lack of introspection about communicable and infectious disease are three needle stick injuries which occurred in 2017 at Dixon, and the fact that there has been no focused review of these injuries to determine what measures would increase worker safety.
We found numerous examples of poor infection control practices on the part of health care professionals. At all facilities, inmates are not routinely provided eye protection during dental procedures. At NRC, the dentist examined patients without changing gloves between patients and reached into a bag of sterile mirrors to select one for use, contaminating all the other mirrors which were then used on subsequent patients. At SCC, the hemodialysis unit does not have a dedicated chair and technician for dialysis of patients who have hepatitis B, thereby exposing other dialysis patients to this blood borne infection. At NRC and SCC, paper barriers are not available to use on any of the examination tables and they are not cleaned between patients. Finally, the order in which instruments were sterilized was incorrect in four of five facilities we visited. The placement of sterilization equipment and procedures should proceed from dirty to sterilized. At four of five facilities we visited, the placement of the ultrasonic cleaner required clean instruments to pass over the dirty area, thus contaminating their sterilization. At SCC, sterilized instruments were removed from their packages and put in an open bin in the trauma room, making them clean, rather than sterile, instruments. The nursing supervisor could not explain why these instruments were clean rather than sterile.
Inmate porters are assigned to work in the health care areas of each of the five facilities we visited. At only two of the facilities had the inmate porters received training in how to clean and sanitize patient care areas, and how to take personal protective measures before working in the health care area. Only two facilities had vaccinated the inmate porters for viral hepatitis. The assignment of untrained and unvaccinated inmates to clean and sanitize health care areas exposes these inmates as well as patients receiving care to several infectious diseases with potentially serious health consequences, and is deliberately reckless.
Infirmary linens are still laundered in residential style washers and dryers at all the facilities we visited, except NRC. At NRC, a log provided by the institution showed water temperatures were less than the 165°F required by AD 05.02.180 about 30% of the days reviewed. Water temperatures were not hot enough to effectively sanitize laundry from the infirmary at any facility we visited. We also observed furniture and equipment throughout each of the health care areas at every facility we visited that was torn, frayed, rusted, and corroded. These objects, including stretchers, exam tables, stools, cabinets, and work surfaces cannot be properly sanitized and are sources of communicable disease in a setting that treats and cares for patients who are ill, medically fragile, and immunocompromised. While some have been

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Case: 1:20-cv-02094 Document #: 1-9 Filed: 04/02/20 Page 1 of 5 PageID #:133
EXHIBIT 9

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Lippert V Jeffreys Consent Decree First Report of the Monitor November 24, 2019
Prepared by: John M. Raba, MD
Monitor
1

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Table of Contents
I. Overview ………………………………………….Page 2-3 II. Executive Summary……………………................Pages 3-11 III. Provisions of Consent Decree…………………….Pages 11-48
1. Health Care General Provisions………………Pages 11-22 2. Health Care Specific Provisions………………Pages 22-47 3. Staffing Analysis and Implementation Plan….Pages 47-49
I. Overview
The “Lippert v Jeffreys” Consent Decree was approved and signed by Judge Jorge L Alonso on May 9, 2019. John M. Raba, MD was selected as Monitor for the Consent Decree on March 29, 2019 with his IDOC contract being finalized on April 26, 2019. Provision V.G. of the consent decree states that “Every six months for the first two years and yearly thereafter, Defendants shall provide the Monitor and Plaintiffs with a detailed report containing data and information sufficient to evaluate Defendants’ compliance with the Decree and Defendant’s progress towards achieving compliance, with the Parties and Monitor agreeing in advance of the first report on the data and information that must be included in such report.” From May 20, 2019 through October 18, 2019, the monitor submitted requests on twenty separate dates for forty-three individual reports or categories of documents, data and information. The IDOC attorneys and clinical leadership have supplied the monitor with the majority of the requests with only few requests not yet fully received. On November 2, 2019, the monitor also submitted to the IDOC a more detailed comprehensive request for data and information for each and every provision of the consent decree. This comprehensive request will require a notable commitment of time and resources to compile; this additional data and information will provide a basis for the monitor’s second report that will be due in the Spring of 2020.
Since his appointment, the monitor has had regular meetings with IDOC Chief of Health Services (Agency Medical Director) and Deputy Chiefs of Health Services (Deputy Medical Directors) and regular communications with both the Plaintiffs’ and Defendants’ attorneys. The monitor interviewed the IDOC Director, the IDOC Deputy Director of Program & Support Services, the IDOC Electronic Health Record project manager, clinical and administrative leadership of medical/dental care vendor (Wexford Correctional Health Services), and the Rasho Consent Decree monitor.
2

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concerned that the Collegial Review process presents a barrier to the access to offsite specialty consultation and tests, delays needed consultations, procedures, and testing, potentially puts patient-inmates’ health at risk, and consumes an significant amount of physician, HCUA, medical records staff, Regional Health Coordinator, Agency Medical Director, and Deputy Chief resources. It is the preliminary opinion of the monitor that the Collegial Review should be eliminated and replaced by a selective utilization review process.
The Consent Decree (III.A.3) states that physicians who are not Board Certified (BC) in Internal Medicine, Family Medicine and Emergency Medicine or have not successfully completed a three residency (Board Eligible) in these three clinical fields shall be reviewed to determine whether they are providing a level of care that is consistent with competent BC and BE physicians. The physician credentials spread sheet provided to the monitor on October 14, 2019 revealed that twelve (34%) of the 35 physicians providing primary care in IDOC facilities had not completed a residency in Internal Medicine or Family Medicine (or Emergency Medicine). Seven of these twelve had been trained in non-primary care fields including Anesthesia, General Surgery, Nuclear Medicine/Radiation Therapy, Pediatrics/Neonatology, Surgery, Pathology, and Radiology. Three had only completed rotating general internships and two had not successfully completed their internal medicine residency programs. Methodology is being developed that would objectively determine whether the quality of care provided by these twelve non-Board Certified or non-Board Eligible physicians is safe and clinically appropriate. It is the opinion of the monitor that it is in the best interest of the IDOC patient population that all physicians providing primary care services in the IDOC should have successfully completed residency training programs in adult primary care fields. The only physician hired since the Consent Decree was approved had successfully completed a residency in Internal Medicine. The monitor is very supportive of the Office of Health Services efforts to establish relationships with the primary care training programs at University of Illinois at Chicago Medical Center and the Southern Illinois University School of Medicine that could assist IDOC with delivery of primary care and with future recruitment and retention of physicians with Board Certification or Board Eligibility in Internal Medicine or Family Medicine.
Data sheets provided to the monitor on August 6, 2019 documented that 7,265, nineteen percent (19%) of the IDOC were fifty years of age or older, nearly one thousand (2.6%) were between 65 and 79 years old and 61 were older than eighty years of age. The aging population in the IDOC is placing an increasing burden on the functioning of the correctional facilities and on the correctional health care
9

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system. Men and women with various types of dementia, cerebrovascular accidents (CVA), advanced cancers, cardiovascular disease, and increasing fragility with risk of falls are housed in many of the IDOC facilities. The infirmaries are becoming filled with patient-inmates who are confused, incontinent, and require assistance with the basic activities of daily living including dressing, feeding, bathing, and toileting. The final staffing analysis will include significant augmentation in nursing personnel and support staff; many of whom will be assigned to infirmaries and geriatric units. The health care and correctional resources including staff, physical space, equipment, onsite support services and offsite specialty consultation, diagnostic testing, and hospitalization required to meet the needs of this aging population is staggering and will only increase if there is not a concerted and strategic effort to comprehensively address this situation. It is the position of the monitor that in the short term additional IDOC resources must be directed to properly house and care for this population but in the near future the IDOC must take the lead to create a pathway to discharge those men and women whose mental and medical conditions make them no longer a risk to society to appropriate settings in the community. This effort will need to include the judicial system, parole boards, influential advocacy groups, state legislatures, the governor’s office, and other entities. It is also the monitor’s position that the IDOC should not attempt to construct large long-length-of-stay skilled nursing or nursing home correctional facilities which would present notable difficulties to meet and maintain state certification standards.
The monitor will be asking the Plaintiffs’ and the Defendants’ legal counsel to modify three sections of the Consent Decree.
1) Provision III.M.2.b: “Federal Bureau of Prisons” should be replaced with “Center for Disease Control Adult Immunization Guidelines”. The Federal Bureau of Prisons’ (FBOP) immunization guidelines are generally aligned with the Center for Disease Control (CDC) guidelines but the FBOP policies are only changed at some length of time after the CDC updates its recommendations. 2) Provision III M. 2.c: The language on the Prostate Specific Antigen (PSA) testing is no longer consistent with the national guidelines and needs to be modified to be in alignment with the recommendations of the United States Preventive Services Task Force (USPSTF) which now recommends that men between the ages of 55 and 69 years be informed of the potential harms and benefits of the PSA testing and allowed to make an individual decision about their preference. Men should not be screened who do not express a preference for PSA screening. Give that national recommendations will invariably change as more research is performed, it
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ILND 44

Case:
(Rev. 09/07/18)

1:20-cv-02094

DocuCmIeVnItL#:C1-O11VFEiRledS: H04E/0E2T/20

Page

1

of

2

PageID #:141

The ILND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (See instructions on next page of this form.)

I. (a) PLAINTIFFS

DEFENDANTS

James Money et. al.

Rob Jeffreys, in his official capacities as Director of the Illinois Department of Corrections

(b) County of Residence of First Listed Plaintiff Cook
(Except in U.S. plaintiff cases)

County of Residence of First Listed Defendant
(In U.S. plaintiff cases only) Note: In land condemnation cases, use the location of the tract of land involved.

(c) Attorneys (firm name, address, and telephone number)

Attorneys (if known)

II. BASIS OF JURISDICTION (Check one box, only.)

1 U.S. Government Plaintiff

s 3 Federal Question (U.S. Government not a party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (For Diversity Cases Only.)

(Check one box, only for plaintiff and one box for defendant.)

PTF

DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business in This State

2 U.S. Government Defendant

4 Diversity (Indicate citizenship of parties in Item III.)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business in Another State

5

5

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT (Check one box, only.)

CONTRACT

TORTS

PRISONER PETITIONS

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student
Loans (Excludes Veterans) 153 Recovery of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice

PERSONAL INJURY

530 General

367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

s

368 Asbestos Personal Injury

Product Liability

510 Motions to Vacate Sentence 530 General 535 Death Penalty Habeas Corpus: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee – Conditions of Confinement

PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal
Property Damage 385 Property Damage
Product Liability

3

3 Foreign Nation

LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
PROPERTY RIGHTS 820 Copyrights 830 Patent 835 Patent – Abbreviated
New Drug Application 840 Trademark

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities -
Employment 446 Amer. w/Disabilities -
Other 448 Education

BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157
IMMIGRATION 462 Naturalization
Application 463 Habeas Corpus - Alien
Detainee (Prisoner Petition) 465 Other Immigration
Actions

FORFEITURE/PENALTY 625 Drug Related Seizure
of Property 21 USC 881 690 Other

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAXES 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party
26 USC 7609

6

6

OTHER STATUTES
375 False Claims Act 376 Qui Tam (31 USC 3729 (a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 485 Telephone Consumer
Protection Act (TCPA) 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

V. ORIGIN (Check one box, only.)

1 Original

2 Removed from

Proceeding

State Court

3 Remanded from Appellate Court

VI. CAUSE OF ACTION (Enter U.S. Civil Statute under which you are filing and
write a brief statement of cause.)
Pursuant to 28 U.S.C 2254

4 Reinstated or Reopened

5 Transferred from Another District
(specify)

6 Multidistrict Litigation

8 Multidistrict Litigation Direct File

VII. PREVIOUS BANKRUPTCY MATTERS (For nature of suit 422 and 423, enter the
case number and judge for any associated bankruptcy matter previously adjudicated by a judge of this Court. Use a separate attachment if necessary.)

VIII. REQUESTED IN COMPLAINT:
IX. RELATED CASE(S) IF ANY

Check if this is a class action Under rule 23, Demand $ F.R.CV.P.
(See instructions)
Judge

Check Yes only if demanded in complaint.

Jury Demand:

Yes

No

Case Number

X. Is this a previously dismissed or remanded case? Yes

No If yes, Case #

Date

Signature of attorney of record

4/2/2020

/s/ Vanessa del Valle

Name of Judge

Case: 1:2IN0S-TcRvU-0CT2I0O9N4S FDOoRcAuTmTOeRnNtE#Y:S1C-O1M1PFLEilTeIdN:G0C4IV/0IL2C/2O0VEPRaSgHeEE2ToFfO2RMPJaSg4e4 ID #:142
Authority for Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the

full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both

name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)".

II.

Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of

the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.)

III.

Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section

for each principal party.

IV.

Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient

to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the

most definitive.

V.

Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above.

VI.

Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes

unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Previous Bankruptcy Matters For nature of suit 422 and 423 enter the case number and judge for any associated bankruptcy matter previously adjudicated by a judge of this court. Use a separate attachment if necessary.

VIII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

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this case is not being refiled or has not been remanded, place an “X” in the No box.

Date and Attorney Signature. Date and sign the civil cover sheet.

Rev. 09/07/2018

 
 Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 1 of 54 PageID #:203

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES MONEY, WILLIAM RICHARD, GERALD REED, AMBER WATTERS, TEWKUNZI GREEN, DANNY LABOSETTE, CARL REED, CARL “TAY TAY” TATE, PATRICE DANIELS, and ANTHONY RODESKY, on behalf of themselves and all similarly situated individuals,
Petitioners,
v.
ROB JEFFREYS, Director, Illinois Department of Corrections,
Respondent.

) ) ) ) ) ) ) ) ) ) ) ) No. 20 C 2094 ) (also filed in 20 C 1792) ) ) The Honorable ) John F. Kness, ) Judge Presiding.

RESPONSE TO EMERGENCY PETITION FOR WRITS OF HABEAS CORPUS

Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 2 of 54 PageID #:204
TABLE OF CONTENTS I. Background....................................................................................................... 3 II. IDOC Has Responded and Continues to Respond Quickly and
Expeditiously to Protect Prisoners from the Spread of COVID-19 ...... 6 III. Petitioners Are Not Entitled to Relief Under 28 U.S.C. § 2254 .............. 9
A. Habeas is not the appropriate vehicle for petitioners’ claims ... 9 1. Eighth Amendment “deliberate indifference” claims may not be litigated in habeas proceedings ........................ 9 2. Petitioners’ claim that IDOC has failed to provide procedures for seeking home detention does not state a claim for habeas relief ............................................................ 11
B. Even if habeas is the proper vehicle, relief is unwarranted ..... 13 1. Petitioners cannot proceed by way of a class action ....... 14 a. The restrictions imposed by § 2254 preclude the use of class action procedures.................................... 14 b. Petitioners’ proposed classes do not satisfy the criteria for class treatment ......................................... 17 2. Petitioners have not attempted to exhaust their administrative and state court remedies, and there is no basis to excuse exhaustion where remedies are available ..................................................................................... 20 a. Petitioners must exhaust available state court remedies before seeking § 2254 relief ....................... 20 b. Petitioners fail to establish that they may excuse exhaustion....................................................................... 22
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3. Exhaustion aside, petitioners’ claims are meritless ........ 26 a. Petitioners’ Eighth Amendment claim fails because they cannot establish that IDOC is recklessly disregarding the risk to petitioners’ health posed by COVID-19 ................................................................... 26 b. Petitioners’ procedural due process claim fails because they have no liberty or property interest in home detention and even if they did, IDOC is in the process of releasing prisoners to home detention ......................................................................... 30
4. Petitioners are not entitled to the remedy they request even if this Court finds a constitutional violation ........... 33 a. If petitioners’ claims were both cognizable in habeas and meritorious, they are subject to the requirements for relief in 18 U.S.C. § 3626, which precludes immediate release of tens of thousands of prisoners, as petitioners request ............................... 35
b. Petitioners’ request for immediate changes in their custody status disregards mandatory state statutory and administrative procedures to determine eligibility on an individualized basis consistent with public safety ...................................... 37
c. IDOC is already reviewing prisoners for release and transfer to the identified custodial programs ......................................................................... 43
CONCLUSION ........................................................................................................... 45
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TABLE OF CASES
Bell v. Robert, 402 F. Supp. 2d 938 (N.D. Ill. 2005) ................................................... 26 Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998).................................................... 36 Bd. of Educ. of Nippersink Sch. Dist. 2 v. Koch, 976 N.E.2d 1150
(Ill. App. Ct. 2012) ..................................................................................................... 24 Bd. of Pardons v. Allen, 482 U.S. 369 (1987).............................................................. 13 Brown v. Plata, 563 U.S. 493 (2011) .......................................................................... 35 Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005) ......................................................... 22 Bush v. Pitzer, 133 F.3d 455 (7th Cir. 1997)............................................................... 12 Calderon v. Ashmus, 523 U.S. 740 (1998)................................................................... 14 Castille v. Peoples, 489 U.S. 346 (1989) ...................................................................... 23 Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003).................................................... 28 Crites v. Madison Cnty. Jail, No. 18-CV-611-DRH, 2018 WL 1832919
(S.D. Ill. Apr. 17, 2018) ............................................................................................. 11 Crown, Cork & Seal, Co. v. Parker, 462 U.S. 345 (1983) ...................................... 14-15 Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) ............................................................... 25 Duckworth v. Serrano, 454 U.S. 1 (1981).................................................................... 21 Estelle v. Gamble, 429 U.S. 97 (1976) ................................................. 10, 23, 25, 27, 29 Evans v. Chavis, 546 U.S. 189 (2006) ......................................................................... 17 Farmer v. Brennan, 511 U.S. 825 (1994) ........................................................ 10, 27, 28 Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992) ........................................................... 13 Fontana v. Elrod, 826 F.2d 729 (7th Cir. 1987).......................................................... 16 French v. Owens, 777 F.2d 1250 (7th Cir. 1985) ........................................................ 10
iii

Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 5 of 54 PageID #:207
Fryer v. Cross, No. 14-cv-79-DRH, 2014 WL 1632104 (S.D. Ill. Apr. 23, 2014) ........ 12 Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005) ............................................. 9, 10, 11 Graham v. Broglin, 922 F.2d 379 (7th Cir. 1991)....................................................... 12 Greenholtz v. Inmates of Neb., 442 U.S. 1 (1979) ....................................................... 13 Grennier v. Frank, 453 F.3d 442 (7th Cir. 2006) .................................................. 30, 31 Hadley v. Holmes, 341 F.3d 661 (7th Cir. 2003) ....................................... 12, 29, 33, 34 Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1991)..................................................... 25 Helling v. McKinney, 509 U.S. 25 (1993) .................................................................... 10 Jabbar v. Fischer, 683 F.3d 54 (2d Cir. 2012) ............................................................ 10 Jenkins v. Gramley, 8 F.3d 505 (7th Cir. 1993) .......................................................... 25 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ............................................................. 10 Jones v. Cross, 637 F.3d 841 (7th Cir. 2011) .............................................................. 13 Ky. Dept. of Corrections v. Thompson, 490 U.S. 454 (1989) ........................... 13, 30, 31 Lambert v. Davis, 449 F.3d 774 (7th Cir. 2006) ......................................................... 16 Lee v. Young, 533 F.3d 505 (7th Cir. 2008)................................................................. 27 Lindh v. Murphy, 521 U.S. 320 (1997)........................................................................ 36 Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981) ........................................................ 25 McAtee v. Cowan, 250 F.3d 506 (7th Cir. 2010).......................................................... 23 McCaster v. Darden Restaurants, Inc., 845 F.3d 794 (7th Cir. 2017)........................ 17 McKune v. Lile, 536 U.S. 24 (2002) ............................................................................. 42 Messner v. Northshore Univ. Health Sys., 669 F.3d 802 (7th Cir. 2012)................... 17 Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001)....................................... 13, 31
iv

Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 6 of 54 PageID #:208
Moore v. Olson, 368 F.3d 757 (7th Cir. 2004) ............................................................. 15 Murphy v. Raoul, 380 F. Supp. 3d 731 (N.D. Ill. 2019) ........................................ 12, 39 O’Sullivan v. Boerckel, 526 U.S. 838 (1999) ......................................................... 21, 23 Oden v. True, No. 19-cv-10009-SMY, 2019 WL 6117740
(S.D. Ill. Nov. 18, 2019).............................................................................................. 12 Olim v. Wakinekona, 461 U.S. 238, 250 (1983) .......................................................... 31 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) .......................................................... 18 Peate v. McCann, 294 F.3d 879 (7th Cir. 2002) .......................................................... 28 Peterson v. Diaz, No. 2:19-cv-01480, 2020 WL 1640008
(E.D. Cal. Apr. 2, 2020)........................................................................................ 11, 42 Petry-Blanchard v. Louis, et al., No. 4:20-CV-P49-JHM, 2020 WL 1609493
(W.D. Ky. Apr. 3, 2020).............................................................................................. 24 Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) ........................................................... 27 Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002) ........................................................ 10 Preiser v. Rodriguez, 411 U.S. 411 (1973)....................................................... 11, 21, 23 Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996) ................................................................. 36 Rosario v. Brawn, 670 F.3d 816 (7th Cir. 2012) ......................................................... 28 Rose v. Lundy, 455 U.S. 509 (1982)............................................................................. 21 Rumsfeld v. Padilla, 542 U.S. 426 (2004) ................................................................... 15 Salcido ex rel. Gilliland v. Woodbury Cnty., Iowa, 119 F. Supp. 2d 900
(N.D. Iowa 2000) ........................................................................................................ 13 Sandin v. Conner, 515 U.S. 472 (1995) ....................................................................... 13 Santana v. United States, 98 F.3d 752 (3d Cir. 1996)................................................ 35 Sceifers v. Trigg, 46 F.3d 701 (7th Cir. 1995) ............................................................. 26
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Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 7 of 54 PageID #:209
Stewart v. Winter, 669 F.2d 328 (5th Cir. 1982) ......................................................... 18 Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828 (7th Cir. 2012) ........... 31 Swarthout v. Cooke, 562 U.S. 216 (2011).................................................................... 13 Taylor v. Edgar, 52 F. App’x 825 (7th Cir. 2002) ............................... 13, 29, 30, 31, 32 U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974)........................................... 14 United States v. Clark, Crim. No. 17-85-SDD-RLB, 2020 WL 1557397
(M.D. La. Apr. 1, 2020) .............................................................................................. 38 United States v. Clark, No 19-40068-01-HLT, 2020 WL 1446895
(D. Kan. Mar. 25, 2020) ............................................................................................. 38 United States v. Credidio, No. 19 Cr. 111, 2020 WL 1644010
(S.D.N.Y. Apr. 2, 2020) ........................................................................................ 29, 44 United States v. Eberhart, No 13-cr-003130PJH-1, 2020 WL 1450745
(N.D. Cal. Mar. 25, 2020)........................................................................................... 38 United States v. Garza, No. 18-CR-1745-BAS, 2020 WL 1485782
(S.D. Cal. Mar. 27, 2020) ........................................................................................... 42 United States v. Gordon, 130 F. App’x 24 (7th Cir. 2005) .......................................... 15 United States v. Raia, __ F.3d __, 2020 WL 1647922 (3d Cir. Apr. 3, 2020) . 22, 38, 44 United States v. Zywotko, No. 2:19-cr-113-FtM-60NPM, 2020 WL 1492900
(M.D. Fla. Mar. 27, 2020) .......................................................................................... 38 Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000)......................................................... 35 Whiting v. Wexford Health Sources, Inc., 839 F.3d 658 (7th Cir. 2016) .................... 27 Wilborn v. Ealey, 881 F.3d 998 (7th Cir. 2018) .......................................................... 22 Williams v. Lane, 851 F.2d 867 (7th Cir. 1988) .......................................................... 13 Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................... 13
vi

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Pursuant to this Court’s April 2, 2020, order, Doc. 12, respondent Rob Jeffreys, Director of the Illinois Department of Corrections (IDOC), responds to petitioners’ emergency petition for writs of habeas corpus and class certification and requests that they be denied.
Even before COVID-19 was declared a pandemic, Illinois officials, including respondent, recognized the risks it posed to prisoners and took steps to implement social distancing and otherwise reduce the risk of infection within IDOC facilities. At the same time, IDOC also began expeditious reviews to determine whether eligible prisoners could be released on home detention or upon an award of discretionary sentencing credit. And to further facilitate social distancing and the release of additional prisoners, the Governor has issued an Executive Order (effective 5:00 p.m. on April 6, 2020) that permits discretionary furloughs for medical, psychiatric or psychological services for the duration of the Gubernatorial Disaster Proclamation (which currently extends through April 30, 2020). In sum, IDOC is expeditiously considering prisoners for status changes in light of COVID19. See infra, Part II.
In this 28 U.S.C. § 2254 habeas petition, petitioners propose to proceed as a class and ask that individuals in six subclasses be released on medical furlough, home detention, or following a discretionary award of good conduct credit (GCC). But as explained below, the petition should be denied for several independent reasons. At the threshold, petitioners’ deliberate indifference and due process
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claims are not cognizable in habeas corpus. See infra, Part III.A. But even if habeas corpus were an appropriate vehicle for petitioners’ claims, they may not proceed by way of class action here. See infra, Part III.B.1. Further, petitioners’ conceded failure to exhaust available administrative and state-court remedies bars relief. See infra, Part III.B.2.
Even setting aside these procedural bars, petitioners’ claims would fail on the merits: the deliberate indifference claim fails because petitioners cannot establish that IDOC is disregarding the risk to petitioners’ health posed by COVID-19, and the due process claim fails because, as matter of law, petitioners have no liberty or property interest in the remedy they seek. See infra, Part III.B.3. Moreover, even if petitioners’ claims were cognizable in habeas and meritorious, their request for immediate changes in the custody status of tens of thousands of prisoners is precluded by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1987e; 18 U.S.C. § 3626. See infra, Part III.B.4. And their desired remedies both disregard the state statutory and administrative procedures that IDOC must and should apply to determine eligibility on an individualized basis and consistent with public safety, and overlook that courts considering similar claims in response to the COVID-19 pandemic have held that such release decisions are better left to correctional authorities and their institutional expertise. See id.
Accordingly, this Court should deny petitioners’ petition for writs of habeas corpus.
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I. Background Ten prisoners in the custody of the Illinois Department of Corrections (IDOC)
have filed this “emergency petition for writs of habeas corpus” pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioners simultaneously filed a complaint alleging violations of their civil rights under 42 U.S.C. § 1983 and an accompanying motion for temporary restraining order (TRO). See Dist. Ct. No. 20 C 2093, Docs. 1 & 9. Both lawsuits note the danger posed by COVID-19 and assert that IDOC officials have done too little to expedite the release of incarcerated prisoners to reduce the dangers posed by the virus. This Court docketed petitioners’ TRO for consideration on the emergency docket and granted petitioners’ request to expedite briefing of the habeas petition. Doc. 12.
The ten petitioners are housed at various IDOC facilities and are serving sentences for convictions ranging from drug crimes to first degree murder:
1. James Money (S11097), age 28, is housed at Illinois River Correctional Center, serving 12- and three-year sentences for Adams County residential burglary and theft convictions.
2. William Richard (M52774), age 66, is housed at Dixon Correctional Center, serving a five-year-sentence for a Cook County armed habitual criminal conviction.
3. Gerald Reed (N23920), age 57, is currently being processed at the Northern Reception Center of Stateville Correctional Center, serving a life sentence for a Cook County murder conviction.
4. Amber Watters (Y39454), age 39, is housed at Logan Correctional Center, serving a three-year sentence for Livingston County drug convictions.
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5. Tewkunzi Green (R84568), age 38, is housed at the Logan Correctional Center serving a 34-year sentence for a Peoria County murder conviction. 6. Danny Labosette (B23629), age 56, is housed at the Robinson Correctional Center, serving a 50-year sentence for a Morgan County murder conviction. 7. Carl Reed (R48993), age 59, is housed at Graham Correctional Center, serving a 27-year sentence for a Cook County murder conviction. 8. Carl Tate (R12529), age 40, is housed at Danville Correctional Center, serving a 40-year sentence for a Cook County murder conviction. 9. Patrice Daniels (B70662), age 45, is presently at the Joliet Treatment Center, serving a life sentence for a Cook County murder conviction. 10. Anthony Rodesky (R47057), age 49, is housed at Pontiac Correctional Center, serving a 30-year sentence for a New Jersey murder conviction. See Doc. 1 at 3-5; see also Resp. Exh. A, Illinois Department of Corrections Inmate Status Sheets for named petitioners; Resp. Exh. B, Data sheet as to Anthony Rodesky. Excepting Daniels and Rodesky, petitioners claim an entitlement to release from IDOC custody in the form of medical furloughs, release on home detention, or early release based on the award of discretionary GCC. Money claims that he qualifies for all three remedies. Richard, Watters, and Labosette claim that they are entitled to be released on home detention. Gerald Reed, Carl Reed, and Green claim that they qualify for medical furloughs.
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Petitioners allege that they are entitled to habeas relief for violations of the Eighth and Fourteenth Amendments. Doc. 1 at 49-55. First, petitioners claim that IDOC officials are acting with deliberate indifference to the risk of harm posed by COVID-19 and imprisoning them under conditions that insufficiently mitigate the risk of transmission of infectious disease. Id. at 49-52. Second, petitioners claim that IDOC officials have violated due process by failing to implement procedures for transferring prisoners to home detention. Id. at 52-55. These claims are repeated in petitioners’ § 1983 complaint. See Dist. Ct. No. 20 C 2093, Doc. 1 at 43-45.
Petitioners seek to certify “classes” of habeas petitioners. They propose an overall class “consisting of all people who are currently or will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic.” Doc. 1 at 44-45. Within that class, they propose defining and “releas[ing] from physical custody” six subclasses, based on members’ eligibility for various forms of relief. Id. at 45. The first two subclasses consist of people “eligible for medical furlough under 730 ILCS 5/3-11-1”: subclass one consists of eligible people with “serious underlying medical conditions” and subclass two consists of eligible people who “are 55 years of age or older.” Id. Three of the proposed subclasses consist of people “eligible for home detention” pursuant to provisions in 730 ILCS 5/5-8A-3. Id. at 45-46. The three groups are defined, respectively, as “[p]eople who are 55 years of age or older with less than one year remaining on their sentence”; people who are “currently in custody for Class 2, 3, or 4 offenses”; and people who are “currently in custody for
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Class 1 or Class X offenses with less than 90 days remaining on their sentence.” Id. And the final proposed subclass consists of people “scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210.” Id. at 46.
For reasons that follow, petitioners’ requests for class certification and for habeas relief should be denied. II. IDOC Has Responded and Continues to Respond as Quickly as
Possible to Protect Prisoners from the Spread of COVID-19. The threat posed by COVID-19 and its potential to spread throughout Illinois correctional facilities is a serious concern. Respondent and the IDOC understand the importance of social distancing to slow its spread, yet face unique challenges in implementing social distancing protocols, given its prisoner population and limited housing capacity. Accordingly, respondent and IDOC have been working tirelessly toward their goal of drastically reducing the prison population. To that end, and over the past several weeks, IDOC has taken unprecedented and extraordinary measures to mitigate the risk of exposure in their facilities. For example, Illinois has: • Released approximately 500 inmates through various forms of sentence
credit, restoration of credit, and electronic detention. • Provided an additional 65 furloughs since the creation of the population
management task force.
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• Between March 2 and April 4, 2020, reduced its inmate population by roughly 1,075.
• Suspended admissions from all Illinois county jails, with limited exceptions at the sole discretion of the Director. Executive Order 2020-13 (Mar. 26, 2020); see also Executive Order 2020-18 (Apr. 1, 2020) (extending Executive Order 2020-13 through April 30, 2020).
• Suspended the required 14-day notification to the State’s Attorney for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11 (Mar. 23, 2020); see also Executive Order 2020-18 (Apr. 1, 2020) (extending Executive Order 2020-11 through April 30, 2020).
• Awarded up to 180 days of Earned Discretionary Sentencing Credit for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3). Such sentencing credit is within the sole discretion of the Director, but must be based on the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender’s behavior and disciplinary history, and the prisoner’s commitment to rehabilitation, including participation in programing. Id. The Director may not award discretionary sentencing credit unless the inmate has served a minimum of 60 days. Id.
• Identified offenders within nine months of their release date and conducted individualized reviews to determine whether they are eligible for early release. The review requires staff to examine an offender’s disciplinary history, commitment to rehabilitation, and criminal history. Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, or outstanding warrants are not approved for the sentencing credit. Each week, IDOC generates a list of potentially eligible offenders, and staff conduct daily reviews of their files.
• Reviewed prior revocations of GCC and restored sentence credit where appropriate.
• Placed offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/5-8A-3. IDOC has placed many pregnant and postpartum offenders on home detention, and is now concentrating its efforts on those who are 55 years or older, have served 25% of the sentence, and are within 12 months of release. For qualifying offenders, IDOC must conduct 7

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individual assessments to ensure that placement outside of a secure facility is appropriate.
• Illinois’s Prisoner Review Board (PRB) continues to conduct daily hearings by telephone and video conference to set the conditions of mandatory supervised release for all individuals pending release.
• The PRB has notified persons affected by the cancellation of the April 2020 clemency docket, and new dates are being secured. The PRB has also notified affected parties that they can request a non-public hearing, which may be heard based upon the paper submissions, if all affected parties agree. In addition, the PRB continues its customary practice of conducting informational interviews of incarcerated petitioners by videoconference, and the July docket is scheduled to proceed as planned at this time.
• The PRB continues to conduct release revocation hearings. As always, cases are reviewed on an individual basis, with consideration of the facts and circumstances of each alleged violation or set of violations. The PRB is also taking into account the extraordinary circumstances presented by COVID-19, while recognizing that each decision must be made with the goals of protecting public safety and restoring releasees to productive lives.
In tandem with its efforts to reduce the prison population, IDOC has taken
measures to reduce the risk of exposure and infection within its facilities. For
example,
• Effective March 14, 2020, all correctional facilities, impact incarceration programs, and work camps are under administrative quarantine with no visitors permitted (phone and video visit privileges continue as normal).
• Facilities with confirmed COVID-19 cases are placed on lockdown, which means there is no movement around the facility except for medical care.
• Staff who work with individuals in isolation and quarantine, as well as in healthcare units, are wearing full personal protective equipment (PPE)
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Case: 1:20-cv-02094 Document #: 18 Filed: 04/06/20 Page 16 of 54 PageID #:218
and all staff are wearing some PPE. Staff temperatures are checked daily as they enter the facility. • IDOC has also (1) educated staff on infection control, (2) promoted good health habits that interrupt transmission, (3) conducted frequent environmental cleaning of high touch surfaces and high volume locations, (4) made efforts to separate the sick from the well and employ social distancing, ongoing infection control education to prisoners. and (5) provided ongoing infection control education to prisoners. IDOC’s website provides additional detail about its evolving “Covid-19 Response,” including a list of confirmed cases (in employees and prisoners) and the affiliated correctional facility. See https://www2.illinois.gov/idoc/facilities/ Pages/Covid19Response.aspx. That chart presently reflects that inmates have tested positive in only two IDOC facilities, with the lion’s share of confirmed prisoner cases — 56 out of 60 — occurring at the Stateville Correctional Center. In sum, Illinois officials have quickly taken aggressive action to protect the health and safety of incarcerated individuals, IDOC employees, and the public. They continue to monitor these efforts and make necessary changes to IDOC’s pandemic plan as the rapidly-changing situation evolves, and are continually reviewing eligible offenders for early release.
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III. Petitioners Are Not Entitled to Relief Under 28 U.S.C. § 2254.
A. Habeas is not the appropriate vehicle for petitioners’ claims.
1. Eighth Amendment “deliberate indifference” claims may not be litigated in habeas proceedings.
Ground 1 — alleging that “all or some of the class members” should be “release[ed]” from prison because respondent has violated the Eighth Amendment by acting with “deliberate indifference” to the risks posed by COVID-19, Doc. 1 at 49-52 — is not a cognizable habeas claim. See, e.g., Glaus v. Anderson, 408 F.3d 382, 387-88 (7th Cir. 2005) (cited at Doc. 1 at 49). In Glaus, the petitioner alleged that prison officials were “deliberately indifferent” to his potentially fatal medical problems and sought either release or transfer to another facility. Id. at 384. The Seventh Circuit affirmed the denial of his habeas petition, explaining that
Glaus’s habeas corpus petition would be proper if release were among the possible remedies for an Eighth Amendment deliberate indifference claim. Unfortunately for Glaus, it is not. If an inmate established that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option. . . . [Glaus’s claim] must be brought as either a civil rights claim or possibly a Federal Tort Claims Act claim against the United States or an Administrative Procedures Act challenge[.] Id. at 387 (collecting cases). Notably, petitioners fail to cite any authority either holding that a deliberate indifference claim may be brought in a habeas petition or considering such a claim
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in the context of a § 2254 petition. See Doc. 1 at 48-52. Instead, petitioners cite only cases that address deliberate indifference claims raised in other civil actions.1 Moreover, petitioners’ observation that the Supreme Court has left open “the possibility” that § 2254 could be used to challenge the conditions of confinement does not save Ground 1. See id. at 48-49 (citing Preiser v. Rodriguez, 411 U.S. 411, 499 (1973)). As Glaus held,
While the Supreme Court [in Preiser] left the door open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified. . . . Since release is unavailable to Glaus [because release is not an available remedy for deliberate indifference claims], his challenge can only concern the conditions of his confinement or the administrative rules the [Bureau of Prisons (BOP)] is using, not the fact of his confinement. As such, he may not proceed with a habeas corpus petition. Glaus, 408 F.3d at 387-88; see also Crites v. Madison Cnty. Jail, No. 18-CV-611DRH, 2018 WL 1832919, at *2 (S.D. Ill. Apr. 17, 2018) (dismissing habeas petition on preliminary review because deliberate indifference claim was non-cognizable); Peterson v. Diaz, No. 2:19-cv-01480, 2020 WL 1640008, *1 (E.D. Cal. Apr. 2, 2020) (holding that habeas proceedings are not appropriate vehicle to raise Eighth
1 Citing Brown v. Plata, 563 U.S. 493 (2011); Farmer v. Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25 (1993); Estelle v. Gamble, 429 U.S. 97 (1976); Jabbar v. Fischer, 683 F.3d 54 (2d Cir. 2012); Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002); Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996); French v. Owens, 777 F.2d 1250 (7th Cir. 1985).
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Amendment claim seeking release due to COVID-19 pandemic). Accordingly, this Court should deny habeas relief on Ground 1.
2. Petitioners’ claim that IDOC has failed to provide procedures for seeking home detention does not state a claim for habeas relief.
Ground 2 — alleging that subclasses 3, 4, and 5 are entitled to “immediate transfer to home detention” under the Due Process Clause because respondent purportedly failed to create a “mechanism” to allow prisoners to request home detention as required by state law, Doc. 1 at 52-55 — also fails to allege a cognizable habeas claim. Petitioners cite no authority — nor is respondent aware of any — holding that a prison’s alleged failure to enact a “mechanism” required by state statute, permits a federal habeas court to order the transfer of prisoners to home detention. Rather, a habeas petitioner “must demonstrate that the custody is unlawful, and not just that an administrative official made a mistake in the implementation of a statute or regulation.” Bush v. Pitzer, 133 F.3d 455, 456-57 (7th Cir. 1997); see Hadley v. Holmes, 341 F.3d 661, 665 (7th Cir. 2003) (claim challenging procedures for awarding discretionary GCC has potential to affect duration of confinement, but is not a § 2254 claim).
Indeed, as petitioners’ authority shows, the proper vehicle to pursue Ground 2 is a suit under 42 U.S.C. § 1983 or another statute authorizing damages or injunctions, not a habeas petition. See Murphy v. Raoul, 380 F. Supp. 3d 731, 75051 (N.D. Ill. 2019) (civil rights action, not habeas petition, is appropriate vehicle to
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raise claim of “entitlement to a constitutional process in determining whether [prisoners] will be released on [mandatory supervised release]”) (cited at Doc. 1 at 52); see also Oden v. True, No. 19-cv-10009-SMY, 2019 WL 6117740, at *3 (S.D. Ill. Nov. 18, 2019) (claim that inmate was entitled to spend “his remaining custody time in [a residential reentry center] rather than in prison” and that prison officials did not properly review his request “fall[] outside the realm of available habeas relief”); Fryer v. Cross, No. 14-cv-79-DRH, 2014 WL 1632104, at *2 (S.D. Ill. Apr. 23, 2014) (habeas not appropriate vehicle for claim seeking review of procedures used to deny request for home detention); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (habeas not proper vehicle to seek work release because “if [an prisoner] is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law”). And, in fact, petitioners are pursuing this procedural due process claim in their pending § 1983 action, see Petr. § 1983 Action, Doc. 1 at 44-45.
Tellingly, all but three of the remaining twelve cases that petitioners cite in support of Ground 2 involve civil lawsuits or administrative actions, not habeas petitions. Doc. 1 at 52-55.2 And the habeas cases petitioners cite are inapposite and
2 Citing Sandin v. Conner, 515 U.S. 472 (1995); Ky. Dept. of Corrections v. Thompson, 490 U.S. 454 (1989); Bd. of Pardons v. Allen, 482 U.S. 369 (1987); Greenholtz v. Inmates of Neb., 442 U.S. 1 (1979); Wolff v. McDonnell, 418 U.S. 539 (1974); Taylor v. Edgar, 52 F. App’x 825 (7th Cir. 2002); Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992); Williams v. Lane, 851 F.2d 867 (7th Cir. 1988); Salcido ex rel. Gilliland v. Woodbury Cnty., Iowa, 119 F. Supp. 2d 900 (N.D. Iowa 2000).
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do not otherwise show that habeas relief is available on Ground 2. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (affirming denial of habeas petition challenging denial of parole); Jones v. Cross, 637 F.3d 841, 846 (7th Cir. 2011) (affirming denial of habeas petition challenging loss of GCC); Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001) (affirming denial of habeas petition challenging reduction of ability to earn GCC). In sum, Ground 2 fails to state a claim for relief under § 2254.
B. Even if habeas is the proper vehicle, relief is unwarranted. 1. Petitioners cannot proceed by way of a class action.
Petitioners ask this Court to certify various subclasses of “similarly situated” prisoners to collectively pursue their requested habeas relief. Doc. 1 at 3. But habeas petitioners seeking relief under 28 U.S.C. § 2254 cannot proceed as a class. Moreover, even if they could do so, these petitioners do not satisfy the criteria for certifying their exceptionally broad classes of prisoners.
a. The restrictions imposed by § 2254 preclude the use of class action procedures.
A habeas petition under § 2254 is not an appropriate vehicle for pursuing a class action. Historically, the class action procedures set forth in Federal Rule of Civil Procedure 23 have not applied to habeas actions. See U.S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-27 (2d Cir. 1974). Indeed, petitioners concede that general class action procedures do not apply. Doc. 1 at 46. And habeas cases are ill-
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suited to the form of “representative action” that petitioners seek, see id., as the Supreme Court has cautioned, see Calderon v. Ashmus, 523 U.S. 740, 742 (1998).
The procedural requirements imposed on habeas petitioners make them illsuited for class treatment: each class member would need to be screened for compliance with pertinent procedural rules, undermining any efficiency that might otherwise be gained by proceeding as a class. See generally Crown, Cork & Seal, Co. v. Parker, 462 U.S. 345, 349 (1983) (noting that “[t]he principal purposes of the class action procedure” are “promotion of efficiency and economy of litigation”).
First, the venue (or territorial jurisdiction) requirement precludes class treatment of the named petitioners. “District courts are limited to granting habeas relief ‘within their respective jurisdictions.’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting 28 U.S.C. § 2241(a)). A state prisoner must file his federal petition in the district court with jurisdiction over the county in which he was convicted or the county in which he resides. 28 U.S.C. § 2241(d). “[T]hese requirements are not jurisdictional, but they are nonetheless grounds for dismissal.” United States v. Gordon, 130 F. App’x 24, 25 (7th Cir. 2005) (nonprecedential) (citing Moore v. Olson, 368 F.3d 757, 759-60 (7th Cir. 2004) (remaining citations omitted)).
Here, for at least three of the named petitioners, the Central District is the only appropriate venue: Money was convicted in Adams County and resides in Fulton County; Watters was convicted in Livingston County and resides in Logan County; and Green was convicted in Peoria County and resides in Logan County.
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They may not properly pursue a habeas action in this Court on the theory that “a substantial part of the events and omissions giving rise to these claims” occurred here, Doc. 1 at 6, because 28 U.S.C. § 1391 does not govern a habeas case.
Second, class treatment is inappropriate because a state prisoner may file only one federal habeas petition. 28 U.S.C. § 2244(a). To file a successive petition, a petitioner must obtain preauthorization from the court of appeals upon meeting stringent criteria. See 28 U.S.C. §§ 2244(b)(3)(A) &(C). Absent such preauthorization, a district court lacks jurisdiction over a successive petition. Lambert v. Davis, 449 F.3d 774, 777 (7th Cir. 2006). The bar on successive petitions complicates class treatment in two ways. Members of the proposed class who have already filed habeas petitions are barred from proceeding. And members of the proposed class who have not yet filed habeas petitions would be barred from filing future habeas petitions.
Indeed, class action procedures could bar members of the class from filing future habeas petitions even if they do not wish to join the present petition. Petitioners propose no method for ascertaining whether prisoners who satisfy the proposed class criteria wish to join this action; in fact, they have suggested no procedure for providing notice and an opportunity to opt out. And under traditional class action procedures seeking injunctive relief (i.e., a 23(b)(2) class), there is no requirement that every class member receive actual notice of a class action before being bound by the judgment. See Fontana v. Elrod, 826 F.2d 729, 732 (7th Cir.
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1987). Thus, permitting petitioners to proceed on behalf of a broad class may prejudice the interests of other class members. The risk of adverse consequences for absent class members is especially acute, given that petitioners seek to define an exceptionally broad class consisting of every prisoner in IDOC custody, as well as broad subclasses based on age, the classification of the crimes of conviction, and/or medical history.
Third, the habeas statute imposes a strict one-year limitations period for filing a federal petition. See 28 U.S.C. § 2244(d)(1); Evans v. Chavis, 546 U.S. 189 (2006). Theoretically, each potential class member would need to be screened to determine whether the current habeas petition is timely, turning on each person’s state court litigation history.
In sum, potential habeas class members would need to satisfy several procedural hurdles before joining the class, showing that (1) this case was filed in an appropriate venue; (2) the class member has not previously filed a federal habeas petition; and (3) the member’s petition is not time-barred. These limitations make habeas petitioners ill-suited to proceeding as a class generally, and this Court should deny petitioners’ request.
b. Petitioners’ proposed classes do not satisfy the criteria for class treatment.
Even setting aside the complications that arise in habeas class actions generally, petitioners’ proposed classes do not satisfy the criteria for certification.
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Petitioner’s proposed classes are defined by class members’ entitlement to the requested remedy, which is not a proper basis for defining a class. See, e.g., McCaster v. Darden Restaurants, Inc., 845 F.3d 794, 799 (7th Cir. 2017) (class cannot be defined such that “‘whether a person qualifies as a member depends on whether the person has a valid claim’”) (quoting Messner v. Northshore Univ. Health Sys., 669 F.3d 802, 825 (7th Cir. 2012)). If entitlement to the requested remedy sought had to be litigated to establish class membership, little efficiency would be gained by certifying the classes petitioner has framed.
Petitioners also fail to meet additional criteria for class certification. Under the civil rule governing class actions, a class may be certified on considering whether (1) the class is numerous; (2) “legal or factual questions are common to the class”; (3) “representative plaintiffs’ claims are typical of the class”; and (4) “representative plaintiffs will adequately protect the class’s interests.” Fed. R. Civ. P. 23(a); Ortiz v. Fibreboard Corp., 527 U.S. 815, 828 n.6 (1999). Petitioners assert that they satisfy the numerosity requirement because their proposed classes each consist of thousands of people. See Doc. 1 at 47. But assuming that those numbers satisfy the numerosity requirement, the breadth of the proposed classes fatally dilutes the extent to which proposed members share common “legal and factual questions” that can be adequately litigated by the named class members.
For one thing, petitioners seek to certify classes covering prisoners at every IDOC correctional institution. But those institutions vary in critical respects that
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preclude uniform treatment, both with respect to the merits of the petitioners’ claims and the availability of the requested remedy. See Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982) (affirming denial of class certification where conditions at 82 different county jails were challenged, given the facilities’ divergent “physical and environmental conditions”).
On the merits, the urgency of the risk posed by COVID-19 at each institution varies, turning on such factors as whether a confirmed case has been found within the facility, the extent to which physical conditions permit separation of prisoners, and the efficacy of the many measures already implemented to reduce the risk of transmission. These differences in the circumstances of each facility belie petitioners’ claim that their proposed classes present “common questions” as to the substantiality of the risk, the availability of remedial measures, and the extent to which measures have already been implemented. See Doc. 1 at 47. Accordingly, this Court should decline to certify the proposed classes covering petitioners at distinctly different institutions.
In particular, differences among the medical facilities at the various institutions should preclude class treatment of petitioners seeking medical furloughs. To qualify for a medical furlough, a petitioner must show that he cannot otherwise receive adequate medical services. See 730 ILCS 5/3-11-1(a)(2). Although petitioners opine that “many correctional facilities lack an adequate medical care infrastructure,” Doc. 1 at 17, the institutions necessarily vary in the medical
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facilities that they provide. Thus, prisoners at each facility are differently situated for purposes of evaluating requests for medical furlough.
Differences in the personal characteristics of the petitioners within each proposed subclass also militate against class treatment. For those seeking medical furloughs, class members are defined solely on the basis of age and medical condition. Accordingly, class members vary extensively in their criminal backgrounds. Several of the named petitioners seeking release on medical furlough are serving sentences for murder, and the risks posed by the release of violent offenders must be considered in granting and setting the conditions for medical furloughs. See also infra, Part III.B.4 (describing individualized determinations required when granting medical furloughs to prisoners).
The individualized determinations required for the remaining two requested remedies — home detention and the award of good-credit credits — similarly turn on personal characteristics that are unsuitable for class treatment. See id. (describing individualized determinations required when granting home detention and awarding discretionary GCC to prisoners).
In sum, because every request for release requires an individualized determination that turns on the characteristics of the offender and the propriety of the remedy under his or her unique circumstances, these issues are not properly litigated as a class action.
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2. Petitioners have not attempted to properly exhaust their administrative and state court remedies, and there is no basis to excuse exhaustion where remedies are available. a. Petitioners must exhaust available state court remedies before seeking § 2254 relief.
Although this Court may deny the petition, see 28 U.S.C. § 2254(b)(2), it may not grant habeas relief because petitioners have failed to exhaust available administrative and state court remedies. See 28 U.S.C. § 2254(b)(1);3 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.”).
The exhaustion requirement both “serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam), and, “[e]qually as important,” helps to ensure that claims are “accompanied by a complete factual record to aid the federal courts in their review,” Rose v. Lundy, 455 U.S. 509, 519 (1982).
These concerns are at their zenith in cases involving “internal problems of state prisons.” Preiser, 411 U.S. at 492. As the Supreme Court emphasized, “[i]t is
3 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that – (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”
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difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.” Id. at 491-92. Because most prisoner litigation “is most efficiently and properly handled by the state administrative bodies and state courts,” “[t]he strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” Id. at 492.
Petitioners concede their failure to exhaust to exhaust any available administrative or state court remedy for their claims. That concession alone provides a sufficient basis to dismiss the petition.
b. Petitioners fail to establish that they may excuse exhaustion.
Petitioners provide no explanation for why they could not exhaust available administrative remedies for their claims, see Wilborn v. Ealey, 881 F.3d 998, 1004-06 (7th Cir. 2018) (describing in context of civil rights action the Illinois administrative remedies for Eighth Amendment deliberate-indifference claims); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005) (same), and there is no merit to their contention that they “are excused from exhausting state court remedies because Illinois courts are functionally unavailable to hear their petition for urgent release,” Doc. 1 at 6. See United States v. Raia, __ F.3d __, 2020 WL 1647922, at *1-
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2 (3d Cir. Apr. 3, 2020) (federal defendant seeking compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i), must exhaust administrative remedies before seeking
relief in sentencing court).
At the threshold, petitioners cannot invoke section 2254(b)(1)(B)(i) —
permitting a court to excuse exhaustion in the “absence of available State corrective
process” — because they concede that Illinois provides an available corrective
process. Doc. 1 at 7 (“mandamus is the only state process ostensibly available to
petitioners to raise their claims”); 28 U.S.C. § 2254(c) (petitioner does not exhaust
state remedies if “he has the right under the law of the state to raise, by any
available procedure, the question presented”).4 And petitioners cite no support for
their generalized contention that this available state corrective process is
unavailable, see Doc. 1 at 7 (mandamus remedy should be considered unavailable
4 On April 2, 2020, petitioners filed a motion for leave to file an original mandamus complaint in the Illinois Supreme Court. Doc. 1 at 7. Unless leave is granted and the merits are reviewed, however, the motion is insufficient to exhaust. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (unsuccessful request for discretionary leave to file original action in state supreme court does not properly exhaust claim unless court expressly reviews merits). That is why, following exhaustion of administrative remedies, Illinois prisoners must first seek mandamus relief in an Illinois circuit court and then “invoke one complete round of the normal appellate process, including seeking discretionary review before the state supreme court.” McAtee v. Cowan, 250 F.3d 506, 508-09 (7th Cir. 2010) (citing Boerckel, 526 U.S. at 845-48). Moreover, there is no reason to believe that, like this Court, Illinois circuit courts would not also expedite the state corrective process, if petitioners sought the appropriate relief there. See Preiser, 411 U.S. at 494-95 (“there is no reason to assume that state prison administrators or state courts will not act expeditiously”).
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due to “current circuit court closures”), for despite certain operational changes, like this Court, the state circuit courts are not “closed.” See COVID-19 Information and Updates, www.illinoiscourts.gov/Administrative/covid-19.asp (compiling information on Illinois judiciary’s response to COVID-19, including orders showing that circuit courts have adopted procedures for emergency matters); www.cook countycourt.org/HOME/INFORMATIONREGARDINGCORONAVIRUS.aspx (Circuit Court of Cook County using video conferencing to conduct emergency matters; “any emergency matters heard during this time will be conducted via video systemwide no later than April 16”); Petry-Blanchard v. Louis, et al., No. 4:20-CVP49-JHM, 2020 WL 1609493, slip op. at 3-4 (W.D. Ky. Apr. 3, 2020) (rejecting petitioner’s argument that COVID-19 pandemic rendered state corrective process unavailable).
Similarly, petitioners fail to demonstrate that “circumstances exist that render [the available state corrective] process ineffective to protect the[ir] rights.” 28 U.S.C. § 2254(b)(1)(B)(ii). Petitioners’ chief contention — that “most civil and criminal matters in Cook County will not be heard until at least May 18, 2020,” Doc. 1 at 8 — overlooks that the Cook County Circuit Court has adopted procedures for hearing emergency matters and a schedule to hear them “no later than April 16.” Moreover, as discussed, Cook County is not the county of incarceration for any of the named petitioners; thus, any alleged delays in that court are immaterial because petitioners likely must exhaust their claims in state circuit courts other
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than the Cook County Circuit Court. See, e.g., 735 ILCS 5/2-101, et seq. (venue); Bd. of Educ. of Nippersink Sch. Dist. 2 v. Koch, 976 N.E.2d 1150, 1154-60 (Ill. App. Ct. 2012) (relevant factors bearing on proper venue in mandamus action include “location of those persons who will particularly be affected by the governmental action sought via mandamus,” “where the cause of action sprang into existence,” and “place where the order or rule [i]s to be put into effect”).
Moreover, petitioners’ cited cases, Doc. 1 at 8, do not support their claim of inordinate delay. In three of the four cited cases, the petitioners invoked the available state corrective process, only to later complain of inordinate delay in those proceedings. Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970) (17-month delay of direct appeal warranted district court investigation into cause of delay); Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981) (three-and-one-half-year delay in ongoing proceeding inordinate and triggered federal court hearing); Hankins v. Fulcomer, 941 F.2d 246, 252 (3d Cir. 1991) (11-year delay in pending state postconviction proceedings not attributable to petitioner excuses exhaustion). And the fourth case, Jenkins v. Gramley, 8 F.3d 505 (7th Cir. 1993) (cited Doc. 1 at 8), defeats petitioner’s allegation: “Undue delay . . . might show that available state court remedies have been exhausted, permitting the federal court to proceed even while the state appeal was pending. It does not, however, permit a prisoner to ignore a remedy that, for all we can tell, would have been speedy and effective.” Id. at 508
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(emphasis added).5 Petitioners have not even attempted to invoke the appropriate and available state corrective process. Accordingly, even if under the circumstances some lesser period of delay could be considered “inordinate,” see Doc. 1 at 8; petitioners cannot complain of inordinate delay here. See generally Bell v. Robert, 402 F. Supp. 2d 938, 948 (N.D. Ill. 2005) (noting that “seventeen months is shortest period of time that [Seventh Circuit] has . . . deemed potentially “inordinate” such that a hearing was required to see if delay was undue and federal intervention potentially appropriate”).
Finally, even if petitioners could establish inordinate delay, they cite no support for their bare contention that delays — actual or anticipated — caused by a global pandemic (rather than, as in their cited cases, some inefficiency in the state court system itself) are unjustified, and therefore should be attributed to the State. See, e.g., Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995) (delay must be both inordinate and unjustified).
5 Indeed, Jenkins cautioned, “State courts are not some nuisance clogging access to federal courts; in state criminal prosecutions they are the principal vindicators of both state and federal rights, and a complex of doctrines—including both forfeiture rules and the requirement that a prisoner exhaust all available state remedies—is designed to ensure that state courts retain that role. Problems that can be rectified in state court must be dealt with there.” Id. at 508.
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In sum, because petitioners have failed to exhaust their available administrative and state court remedies and provide no basis for excusing that failure, this Court may not grant habeas corpus relief. 28 U.S.C. § 2254(b)(1).
3. Exhaustion aside, petitioners’ claims are meritless. a. Petitioners’ Eighth Amendment claim fails because they cannot establish that IDOC is recklessly disregarding the risk to petitioners’ health posed by COVID-19.
Ground 1 fails because petitioners fail to show that respondent is acting with “deliberate indifference” to a recognized risk that petitioners face substantial harm. As discussed supra, Part II, respondent recognizes the risk of harm to prisoners from COVID-19, and petitioners fail to allege the kind of subjective indifference — amounting to criminal recklessness — necessary to sustain a claim under the Eighth Amendment.
The Eighth Amendment prohibits the “unnecessary and wanton” infliction of suffering caused by an official’s deliberate indifference to a prisoner’s serious medical needs. Estelle, 429 U.S. at 103-04. To establish deliberate indifference, prisoners must prove that the prison official both knew of and disregarded an excessive risk to their health or safety. Farmer, 511 U.S. at 837. Courts therefore perform a two-step analysis: “first examining whether a plaintiff suffered from an objectively serious medical condition, and then determining whether the individual
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defendant was deliberately indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (en banc).
Deliberate indifference “describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835; accord Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016) (“evidence of medical negligence is not enough to prove deliberate indifference”). To establish a constitutional violation, the prisoner must show that the response was so deficient that it constituted criminal recklessness. Farmer, 511 U.S. at 839-40; see Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008) (“negligence or even gross negligence is not enough; the conduct must be reckless in the criminal sense”). The deliberate indifference standard imposes a “high hurdle” and requires a showing “approaching a total unconcern for the prisoner’s welfare.” Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted).
An official’s response to a risk of harm can defeat an allegation of deliberate indifference even if the risk is not ultimately averted. Farmer, 511 U.S. at 844. Accordingly, a defendant is “not required to take perfect action or even reasonable action.” Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003). This standard ensures that “the mere failure . . . to choose the best course of action does not amount to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
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Respondent does not dispute his awareness that COVID-19 poses serious risks to prisoners and prison staff, but petitioners have not plausibly alleged that respondent has been deliberately indifferent to that risk generally, let alone to any specific risk to any named petitioner. Indeed, petitioners do not allege that any of them has COVID-19 or has been deprived of any necessary care based on his or her particular medical conditions.
To the contrary, petitioners disregard the applicable authority and predicate their claim on a mere disagreement as to what they believe to be the preferred course of action to protect them and other prisoners from possible exposure to COVID-19. Petitioners acknowledge that IDOC had released at least 300 prisoners at the time they filed their petition, Doc. 1 at 36, but complain that respondent has not acted with more “urgency or decisiveness” to release “substantially” more, id. at 33, and has “failed to take reasonable measures” to secure more early releases through various means, id. at 3. But in grounding their claim on their view of what constitutes a reasonable course of conduct, petitioners improperly equate their deliberate indifference claim with malpractice, contrary to Estelle. See 429 U.S. at 106 (“malpractice does not become a constitutional violation merely because the victim is a prisoner”).
In short, petitioners’ focus on the reasonableness of respondent’s actions is insufficient to show that respondent has been, or continues to be, subjectively and recklessly indifferent to the risks posed by COVID-19. And although the Court can
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and should deny the petition based solely on defects in its allegations, the Court should also take judicial notice of the public actions taken by the Governor and IDOC to combat COVID-19 within the State of Illinois generally, and within IDOC specifically. Those actions, summarized above in Part II, refute petitioners’ allegation that respondent’s responses to COVID-19 could be fairly or plausibly characterized as being so deficient to constitute criminal recklessness. See United States v. Credidio, No. 19 Cr. 111, 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020) (BOP not deliberately indifferent to “high risk” 72-year-old prisoner’s “needs, in light of the numerous and significant plans and protocols recently implemented by BOP to protect prisoners”).
b. Petitioners’ procedural due process claim fails because they have no liberty or property interest in home detention and even if they did, IDOC is in the process of releasing prisoners to home detention.
Ground 2 — alleging that respondent has violated procedural due process by failing to create a constitutionally sufficient “mechanism” for prisoners to request home detention — is meritless as a matter of law because petitioners lack any liberty or property interest in home detention. See Doc. 1 at 52-55. As petitioners correctly note, to succeed on a procedural due process claim they must prove, among other things, that they have a “liberty or property interest” in home detention. Id. at 52 (citing Thompson, 490 U.S. at 460).
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But courts have consistently held that a statute providing for release from prison to a less restrictive form of custody (such as parole or, here, home detention) does not create a liberty or property interest unless the statute contains “‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.” Thompson, 490 U.S. at 463 (emphasis added); see also Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (“It takes mandatory language (and thus an entitlement contingent on facts that could be established at a hearing) to create a liberty or property interest in an opportunity to be released on parole.”). For example, the statute at issue in Grennier provided that the parole board “may parole an inmate serving a life term when he or she has served 20 years.” Wis. Stat. § 304.06(1)(b) (2014) (emphasis added). As the Seventh Circuit observed, prisoners with life sentences were “not even eligible [for parole] until they ha[d] served 20 years, and from that point forward the system [wa]s wholly discretionary.” Grennier, 453 F.3d at 444. The Court thus concluded that it was “straightforward,” given this discretionary scheme, that the plaintiff lacked a liberty or property interest in release on parole. Id.
Similarly, the Illinois home detention statute is discretionary, as it provides that a prisoner “may” be placed on home detention at IDOC’s discretion. 730 ILCS 5/5-8A-3. Therefore, petitioners have no liberty or property interest in home
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detention, and Ground 2 is meritless. See, e.g., Thompson, 490 U.S. at 463; Grennier, 453 F.3d at 444.
Petitioners’ cited authorities defeat their argument that “[i]f the language and structure of the statutes in question create an expectancy of release, they create a liberty interest.” See Doc. 1 at 52 (citing Montgomery, 262 F.3d at 644; Taylor, 52 F. App’x at 826-27). Montgomery holds that opportunities for release from prison constitute a liberty interest “only if the state has made a promise. Unilateral expectations and hopes for early release” are insufficient and “[g]ood-time credits are statutory liberty interests once they have been awarded, just as parole is a form of statutory liberty once the prisoner has been released.” Montgomery, 262 F.3d at 644. Taylor similarly holds that it “is well established that in the absence of a state rule creating a specific entitlement, prisoners have no liberty interest” in release to less restrictive forms of custody; thus, the petitioner lacked a liberty interest in release to less restrictive custody where state laws “establish[ed] no more than eligibility for such placement.” Taylor, 52 F. App’x at 826.
Petitioners cite no authority for their remaining argument that the Illinois legislature “created an enforceable liberty interest in the Home Detention Law” by directing the Department to create a mechanism to evaluate requests for home detention. Doc. 1 at 53. And the argument fails as a matter of law, for it is wellsettled that “[p]rocess is not an end in itself”; thus, “[t]he State may choose to require procedures for reasons other than protection against deprivation of
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substantive rights, . . . but in making that choice the State does not create an independent substantive right.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (that prison was required by state rules to conduct hearing before transferring prisoners out of state did not create protected liberty interest); see also Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 832 (7th Cir. 2012) (“The Supreme Court has emphasized that the federal Constitution’s due process clause does not protect an interest in other process’’; plaintiff’s claim failed because “she is not asserting an interest in continuing her graduate education. Instead, she asserts an interest in her allegedly contractually-guaranteed rights to university process prior to being dismissed[.]”).
In sum, given the discretionary terms of Illinois’s home detention statute, petitioners lack any liberty or property interest in home detention and Ground 2 fails as a matter of law. See, e.g., Thompson, 490 U.S. at 460 (where plaintiffs lack liberty interest in request relief, procedural due process claim is meritless).6
Lastly, as petitioners note, even if they had a protected liberty interest in home detention (they do not), they would still have to prove that respondent
6 To the extent petitioners’ request for discretionary GCC could be construed as alleging a procedural due process claim, it fails for the same reasons: petitioners have no liberty or property interest in discretionary GCC. See Hadley, 341 F.3d at 665 (no protected interest in discretionary GCC under 730 ILCS 5/3-6-3(a)(3), and “the [S]tate need not afford [petitioner] due process before declining to award him the credit”); 20 Ill. Admin. Code 107.210 (regulations for awarding discretionary GCC under 730 ILCS 5/3-6-3(a)(3)).
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employs constitutionally insufficient procedures when administering the home detention program. Doc. 1 at 54. But petitioners’ sole argument about the procedures — i.e., that no procedure exists, id. — is contradicted by the record, which shows that IDOC has been working diligently to evaluate offenders who may be eligible for home detention, and has released approximately 500 prisoners through various forms of sentencing credit, restoration of civil credit and electronic home detention, supra, Part II. Accordingly, Ground 2 fails for this additional reason.
4. Petitioners are not entitled to the remedy they request even if this Court finds a constitutional violation.
Petitioners seek “[i]mmediate” transfer to medical furlough or home detention, or release after an “immediate awar[d]” of 180 days of discretionary GCC against their sentences, arguing that IDOC has taken no steps, or insufficient steps, to reduce the prison population to prevent the spread of COVID-19 within its facilities. Doc. 1 at 33-34, 51, 54-56.7 If petitioners’ claims challenging their conditions of confinement were cognizable in habeas, then the PLRA, 42 U.S.C. § 1997e, applies to preclude petitioners’ requested remedy; no prior order for less
7 By their own admission, petitioners Daniels and Rodesky are ineligible for (and, thus, do not seek) release from prison. Doc. 1 at 43-44. These named petitioners therefore cannot receive habeas relief, even if their claims were cognizable and meritorious. See Hadley, 341 F.3d at 665 (habeas not appropriate vehicle to raise claim that did not directly shorten duration of petitioner’s custody).
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intrusive relief has been entered and petitioners have not requested such relief from a three-judge panel, see 18 U.S.C. § 3626(a)(3).
Moreover, petitioners’ requested remedy is practically impossible, and particularly inappropriate because less intrusive measures consistent with IDOC’s statutory obligations are available to remedy the alleged constitutional violation. IDOC has been reviewing, and will continue to review, on an individualized and prison-by-prison basis, eligibility for transition to home detention and earlier release through award of discretionary GCC credit. Petitioners ignore the individualized determinations necessary for assessing eligibility for all forms of release under state law, rendering their request for “immediate” changes in custodial status impossible. Accordingly, if the Court finds a constitutional violation, then other less intrusive remedies consistent with IDOC’s statutory obligations would be warranted.
a. If petitioners’ claims were both cognizable in habeas and meritorious, they are subject to the requirements for relief in 18 U.S.C. § 3626, which precludes immediate release of tens of thousands of prisoners, as petitioners request.
As discussed in Part III.A, supra, § 2254 is not the proper vehicle for petitioners’ claims, which challenge their conditions of confinement. Such claims are typically litigated under the PLRA, 42 U.S.C. § 1997e. But the PLRA generally does not apply to § 2254 cases. See Walker v. O’Brien, 216 F.3d 626, 633-34 (7th Cir. 2000).
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If, however, § 2254 is available for petitioners’ claim that they are entitled to various forms of release due to their conditions of confinement, then the PLRA’s requirements for prisoner release orders, see 18 U.S.C. § 3626(a)(3); Brown v. Plata, 563 U.S. 493, 514 (2011), must apply.8 This is so because petitioners’ § 2254 claims are “‘analogous to the typical suits brought under 42 U.S.C. § 1983 complaining about prison conditions.’” Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996) (“the PLRA applies to special proceedings like habeas corpus” where claims are analogous to typical suits brought under § 1983) (agreeing with Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997)); see also Blair-Bey v. Quick, 151 F.3d 1036, 1040-42 (D.C. Cir. 1998) (where challenges to prison conditions “are permissibly brought in habeas corpus,” they would be subject to the PLRA, “as they are precisely the sort of actions that the PLRA sought to address”), modified on other grounds by reh’g, 151 F.3d 1036 (D.C. Cir. 1998). Otherwise, petitioners could evade the PLRA’s requirements by merely requesting a habeas remedy for alleged prison condition violations, contrary to Congress’s clear intent that challenges to prison conditions be litigated
8 In their supplemental brief, petitioners assert that they are not seeking “prisoner release orders.” Doc. 17. But as a three-judge in California recently held in a COVID-19 related case, even orders of release that require supervision fall within the PLRA. See Coleman & Plata v. Newsom et al., Nos. 2:90-cv-0520 KJM DB P & 01-cv-01351-JST, at 1, 5, 9, 12-13 (E.D. Cal. & N.D. Cal. Apr. 4, 2020) (three-judge court pursuant to 28 U.S.C. § 2248) (available at: https://courtlistener.com/recap/ gov.uscourts.cand.76/gov.uscourts.cand.76.3261.0.pdf).
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and remedied under the PLRA. See Blair-Bey, 151 F.3d at 1042 (“‘[I]t would defeat the purpose of the PLRA if a prisoner could evade its requirements by simply . . . joining it with a petition for habeas corpus.’”).
Under § 3626(a)(3)(A), a federal court may not enter a prisoner release order unless there has been a prior order “for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prison release order,” and respondent “has had a reasonable amount of time to comply with the previous court order[].” Moreover, under § 3626(3), a three-judge court may enter a prison release order after a prisoner files an appropriate request, and it may enter such an order “only if the court finds by clear and convincing evidence that—(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 18 U.S.C. § 3626(3)(B), (C), & (E). Petitioners have not satisfied any of these requirements. See, e.g., Coleman & Plata, Nos. 2:90-cv-0520 KJM DB P & 01-cv-01351-JST, at 1, 12-13 (three-judge court pursuant to 28 U.S.C. § 2248) (denying emergency motion to modify population reduction order due to COVID-19, noting that (1) prisoners must first go to single federal judge who, if finding constitutional violation, “may order [prison authorities] to take steps short of release necessary to remedy that violation; and (2) if lesser remedy “proves inadequate,” [petitioners] may return to convened three-judge panel to determine whether release order is appropriate under 18 U.S.C. § 3626(a)(3)) (available at: https://courtlistener.com/recap/gov.
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uscourts.cand.76/gov.uscourts.cand.76.3261.0.pdf). Accordingly, the PLRA forecloses petitioners’ request for immediate prison release orders.
b. Petitioners’ request for immediate changes in their custody status disregards mandatory state statutory and administrative procedures to determine eligibility on an individualized basis consistent with public safety.
Petitioners’ requested remedy is practically impossible, and particularly inappropriate because less intrusive measures consistent with IDOC’s statutory obligations are available to remedy the alleged constitutional violation. Even upon finding a constitutional violation, federal courts defer to prison authorities to remediate the violation rather than order immediate custodial changes that release a prisoner into the community. Moreover, IDOC cannot “immediately” make such determinations for the tens of thousands of prisoners in petitioners’ proposed subclasses given the eligibility determinations that require analysis of each prisoner’s individual circumstances, public safety issues, and limitations on supervisory personnel and equipment. Instead, as detailed in Part II, supra, IDOC is expeditiously considering prisoners for status changes in light of COVID-19.
Indeed, even in the wake of the COVID-19 pandemic, courts have reiterated that they cannot order prison authorities to change prisoners’ custodial status upon short circuiting such eligibility and feasibility analysis, and that prison authorities are better equipped to make such determinations, expeditiously but in due course.
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See, e.g., Raia, 2020 WL 1647922, at *2 (COVID-19 risk alone “cannot independently justify” release especially in light of BOP’s “statutory role”); Order, Committee for Public Counsel Services v. Chief Justice of the Trial Court, No. SJC12926, at 26 (Mass. Apr. 3, 2020) (agreeing that process of jail population reduction “requires individualized determinations” that should focus first on non-violent offenders) (available at: https://www.mass.gov/files/documents/2020/04/03/ 12926.pdf); see also United States v. Clark, Crim. No. 17-85-SDD-RLB, 2020 WL 1557397 (M.D. La. Apr. 1, 2020); United States v. Zywotko, No. 2:19-cr-113-FtM60NPM (M.D. Fla. Mar. 27, 2020); United States v. Clark, No 19-40068-01-HLT, 2020 WL 1446895 (D. Kan. Mar. 25, 2020); United States v. Eberhart, No 13-cr003130PJH-1 (N.D. Cal. Mar. 25, 2020).
Moreover, as petitioners appear to recognize, Doc. 1 at 52 (citing Murphy v. Raoul), this Court has been careful to hold that it had “no warrant to dictate” to IDOC a particular method for correcting an identified constitutional violation because that was “entirely within [IDOC’s] province.” 380 F. Supp. 3d at 738, 750, 759. The Murphy court explained that “IDOC [wa]s free to develop whatever additional practices it want[ed] to avoid the” constitutional violation, and “caution[ed] that nothing in [its] opinion should be construed to entitle the plaintiffs to release — immediate or otherwise.” Id. at 759; see also id. at 765-66.
And as detailed here, petitioners’ proposed three changes in custodial status that result in their release involve individualized eligibility determinations and
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consideration of resources for their implementation. Home detention is governed by the Electronic Monitoring and Home Detention Law, 730 ILCS 5/5-8A-1, et seq. Petitioners’ request for immediate transfer to home detention for proposed subclasses 3, 4, and 5, Doc. 1 at 56, would implicate over 12,000 IDOC prisoners, id. at 47. And each of the three proposed subclasses implicates different eligibility criteria. 730 ILCS 5/5-8A-3(d). Additionally, the statute contemplates that officials will consider whether the individual prisoner’s personal, behavioral, or criminal history weighs against transfer to home detention. See, e.g., 730 ILCS 5/5-8A3(d)(iv) & (e). Relatedly, when IDOC uses electronic monitoring for home detention, triggering additional rules and requirements, including ensuring that (1) the residence has the necessary conditions to facilitate electronic monitoring, (2) an electronic monitoring device is available, and (3) agents are available to verify compliance. 730 ILCS 5/5-8A-4. These individualized considerations attendant to any home detention decision render impossible petitioners’ request for immediate change in status for over 12,000 prisoners.
The award of 180 days of discretionary GCC is governed by 20 Ill. Admin. Code 107.210 and 730 ILCS 5/3-6-3(a)(3), and, like the other state law provisions, requires case-by-case eligibility consideration. Petitioners estimate that their request for immediate award of 180 days of discretionary GCC for subclass 6, Doc. 1 at 56, would apply to over 5,000 IDOC inmates, id. at 47. Like home detention, the award of such GCC requires officials to apply the statutory eligibility criteria based
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on the facts of the underlying offense(s) and sentence(s), and discretionary consideration of the inmate’s personal, behavioral, and/or criminal history. See 20 Ill. Admin. Code 107.210(a), (b)(1), (d), (e), (f), (g) & 730 ILCS 5/3-6-3(a)(3) (conviction and sentence); 20 Ill. Admin. Code 107.210(b)(2), (c) & 730 ILCS 5/3-63(a)(3) (discretionary consideration). It is simply impracticable to require IDOC to make these individualized determinations for 5,000 prisoners “immediately” and in a manner consistent with public safety.
Finally, medical furloughs are governed by 730 ILCS 5/3-11-1.9 Petitioners estimate that their request for immediate medical furlough for proposed subclasses 1 and 2, Doc. 1 at 55-56, would implicate over 16,000 prisoners, id. at 47. Yet by statute, IDOC may assign an agent to accompany the prisoner on furlough (and may impose appropriate charges for related necessary expenses). 730 ILCS 5/3-111(a). And by administrative rule, “[c]ontinuous supervision shall be required by a correctional facility employee except in cases where the committed person is classified as minimum security without supervision,” 20 Ill. Admin. Code 530.40(b)
9 By statute, medical furloughs are limited to 14 days and must be for the purpose of “obtain[ing] medical, psychiatric or psychological services when adequate services are not otherwise available.” 730 ILCS 5/3-11-1(a) & (a)(2). Such limitations are inconsistent with petitioners’ request for furloughs indefinite in length and not for the purpose of obtaining medical services. Doc. 1 at 16, 45, 49, 55-56. However, Governor Pritzker’s recently adopted Executive Order 2020-21 in response to COVID-19, suspends these limits on medical furloughs and gives the IDOC Director discretion to allow them. That order is effective on April 6, 2020 at 5:00 p.m. and for the remainder of the Gubernatorial Disaster Proclamation, which currently extends through April 30, 2020.
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(emphasis added), posing an additional obstacle to mass releases on medical furlough. Indeed, based on the characteristics of the proposed class representatives, it appears that IDOC supervision may be required for some prisoners in subclasses 1 and 2, including Gerald Reed (who is serving a life sentence for first degree murder, aggravated kidnapping, and attempted armed robbery, see Resp. Exh. A); similarly, petitioners Tewkunzi Green, Carl Reed, Carl Tate, and Patrice Daniels have also been convicted of first degree murder, see Doc. 1 at 4-5; see also Resp. Exh. A; and petitioner Anthony Rodesky was also convicted of murder, see Resp. Exh. B.
In sum, IDOC cannot, consistent with state law or public safety, simply release or transfer tens of thousands of IDOC prisoners “immediately,” as petitioners urge.10 “It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S. 24, 39 (2002); see also Peterson, 2020 WL 1640008, at *2 (in § 2254 case, denying emergency request for interim release due to COVID-19 risk; petitioner had not shown prison’s response measures were inadequate and observing that “prison and state officials are more likely to know who may be best” candidates for release under state laws); Coleman & Plata, Nos. 2:90-cv-0520 KJM DB P & 01-cv-01351JST, at *13 (recognizing that deference must be given to prison authorities to allow
10 Petitioners’ draft proposed remedial plan suggests that these decisions be made within three or seven days. Doc. 17-1. Petitioners neither identify the source of that time frame nor grapple with their feasibility.
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them to determine what steps must be taken to respond to COVID-19); United States v. Garza, No. 18-CR-1745-BAS, 2020 WL 1485782 (S.D. Cal. Mar. 27, 2020) (“decisions as to which prisoners should be released because of the COVID-19 pandemic are better left to the Bureau of Prisons and its institutional expertise”). In addition to considering the needs of prisoners, IDOC must adhere to Illinois statutory requirements and ensure public safety; IDOC has the institutional expertise to best determine each prisoner’s individual eligibility for a change in custodial status, weigh public safety concerns, and account for resource and personnel limitations in implementing any change. Petitioners have provided neither justification nor authority to short circuit these established procedures and immediately release such a vast number of prisoners.
c. IDOC is already reviewing prisoners for release and transfer to the identified custodial programs.
As discussed supra, Part II, IDOC is already expeditiously considering prisoners for discretionary GCC or transfer into custodial programs outside of prison.
Petitioners’ unsubstantiated allegations that IDOC is taking no action are insufficient to warrant the far-reaching remedy they seek. Doc. 1 at 51 (citing respondent’s “failure to take meaningful and accessible steps to reduce the prison population); id. at 54-55 (claiming that respondent “has taken no steps to implement the Home Detention Law” and that “there is simply no procedure in
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place”). And no factual development has been made on this point because petitioners have not pursued administrative or state court review of their claims. See supra Part III.C (noting petitioners’ failure to exhaust).
Ultimately, IDOC is taking steps to mitigate the danger posed by COVID-19 within the prison setting. Additionally, IDOC is already undertaking expeditious reviews of prisoner eligibility for the GCC and release on home detention that petitioners seek, see supra Part II, and has just been granted broader discretion to consider granting medical furloughs. Indeed, in the less than five days since petitioners filed their petition, 200 more prisoners have been released in some way. See supra, Part II; Doc. 1 at 36.
In sum, if petitioners’ challenges to their conditions of confinement were cognizable in habeas and this Court finds a constitutional violation, then the PLRA applies to preclude petitioners’ requested remedy for immediate release orders. Other less intrusive remedies consistent with IDOC’s statutory obligations would be warranted were this Court to find a constitutional violation. But petitioners’ request that these determinations and transfers happen immediately is not feasible on the scale that they request; and the requested relief is already in the process of being implemented. Thus, this Court, at most, should encourage IDOC to continue undertaking such expeditious reviews. See, e.g., Raia, 2020 WL 1647922, at *2 (complimenting U.S. Attorney General’s directive that BOP prioritize use of its statutory options for transfer to home confinement); Coleman & Plata, Nos. 2:90-cv-
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0520 KJM DB P & 01-cv-01351-JST, at 13 (urging officials to “leave no stone unturned” in taking “voluntary” steps to mitigate the spread of COVID-19 in California prisons); Order, Committee for Public Counsel Services, No. SJC-12926, at 8 (acknowledging COVID-19 risk but noting limited power over those currently incarcerated, “urg[ing] the DOC and the parole board” “to expedite parole hearings” and to identify prisoners who could be released early) (https://www.mass.gov/files/ documents/2020/04/03/12926.pdf); Credidio, 2020 WL 1644010, at *2-3 (noting lack of authority to modify prisoner’s custodial status but directing counsel to serve the order on warden and corrections counsel to “assure that BOP treats this matter with the urgency it deserves”).
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CONCLUSION

This Court should deny petitioners’ emergency petition for writs of habeas

corpus.

April 6, 2020

Respectfully submitted,

KWAME RAOUL
Attorney General of Illinois
JANE ELINOR NOTZ Solicitor General
MICHAEL M. GLICK Criminal Appeals Division Chief
LEAH M. BENDIK MICHAEL L. CEBULA KATHERINE M. DOERSCH ERIN M. O’CONNELL Assistant Attorneys General
s/ Gopi Kashyap GOPI KASHYAP, BAR NO. 6289886 Assistant Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601-3218 PHONE: (312) 814-4684 FAX: (312) 814-2253 EMAIL: gkashyap@atg.state.il.us
Counsel for Respondent

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CERTIFICATE OF SERVICE I certify that on April 6, 2020, I electronically filed the foregoing Response to Emergency Petition for Writs of Habeas Corpus with the Clerk of the United States District Court for the Northern District of Illinois, Eastern Division, using the CM/ECF system, which provided notice to petitioners’ counsel, who are registered CM/ECF users.
s/ Gopi Kashyap GOPI KASHYAP, BAR NO. 6289886 Assistant Attorney General 100 West Randolph Street, 12th Floor Chicago, Illinois 60601-3218 PHONE: (312) 814-4684 FAX: (312) 814-2253 EMAIL: gkashyap@atg.state.il.us

 
 Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 1 of 19 PageID #:163

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

MONEY, et al.,

)

)

Plaintiffs,

)

No. 20 cv 2093

v.

)

)

PRITZKER, et al.,

)

)

Defendants.

)

______________________________________________________________________________

MONEY, et al.,
Petitioners, v.
JEFFREYS,
Respondent.

)

)

)

No. 20 cv 2094

)

)

)

)

)

PLAINTIFFS’ SUBMISSION ON THE APPLICABILITY AND EFFECT OF 18 U.S.C. § 3626

Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 2 of 19 PageID #:164
The COVID-19 pandemic presents an unprecedented—and hopefully never to be repeated—threat to the lives of people worldwide. Those of us who live outside of prisons have turned our lives upside down to protect ourselves, our families, and our communities from this dangerous threat. People who live inside of prisons, however, cannot do the same. COVID-19 has made its way into Illinois’ prisons, is already wreaking deadly havoc inside Stateville Correctional Center, and is just getting through the door at major downstate facilities like Logan, Menard, Danville, Sheridan, and Graham Correctional Centers. These prisons can be analogized to buildings on fire: the fire is sure to spread, and certain people within these facilities are especially susceptible to getting burned. These people need this Court’s urgent intervention to get them out—even if just on a temporary basis—so that they can survive this crisis.
Procedural Background On April 2, 2020, Plaintiffs James Money, et al., filed two separate actions concerning the COVID-19 crisis in the Illinois Department of Corrections (IDOC). Money et al. v. Pritzer et al, No. 20 cv 2093, is a Section 1983 action that seeks certification of six separate subclasses with different relief sought for each class. Broadly speaking, Subclasses 1 and 2 consist of medically vulnerable prisoners who seek furlough pursuant to the Illinois prisoner furlough statute so that they can follow guidelines issued by the Centers for Disease Control (“CDC”) during the COVID-19 crisis, which they cannot do inside of IDOC prison walls. Subclasses 3-5 seek transfer to home confinement during the COVID-19 crisis pursuant to various Illinois statutes that allow home confinement for certain groups of prisoners. Subclass 6 seeks an award of 180 days sentencing credit, allowed under Illinois law, for prisoners within 180 days of release. Money et al. v. Jeffreys, No. 20 cv 2094, is an emergency petition for writs of habeas corpus that seeks relief parallel to that sought in the Section 1983 matter.
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The same day, Plaintiffs also filed an emergency motion for a TRO/PI in the Section 1983 matter. See Money v. Pritzker, No. 20 cv 2093, Doc. 9. That motion seeks preliminary certification of Plaintiffs’ Subclasses 1 and 2 and an order transferring those individuals to their homes or other approved placement to self-isolate via temporary medical furlough while remaining in the custody and control of IDOC. Id. The filed TRO/PI does not include, at this stage, relief for Subclasses 3-6.
On April 4, 2020, the Court directed Plaintiffs to supplement their TRO/PI motion to “provide their position regarding the applicability and effect of 18 U.S.C. § 3626 to their lawsuit and, in particular, to the relief they are requesting in the TRO/PI motion.” Money v. Pritzker, No. 20 cv 2093, Doc. 22.
As Plaintiffs describe in further detail below, 18 U.S.C. § 3626 applies to their Section 1983 suit, but it has no application to the habeas action. Furthermore, the relief that Plaintiffs seek in the Section 1983 TRO/PI motion—placement of Subclasses 1 and 2 on medical furlough—does not implicate § 3626(a)(3) because it does not seek a prisoner release order. Plaintiffs request for relief also satisfies § 3626(1) and (2) because it is narrowly tailored to correct violations of federal rights.
I. The Relevant Provisions of 18 U.S.C. § 3626 Requests for relief under 18 U.S.C § 3626 are governed by Subsection (a) of that statute,
which contains three core provisions: Subsection (1) governs all prospective relief, Subsection (2) governs preliminary injunctions and temporary restraining orders, and Subsection (3) governs “prisoner release order[s].”
Subsection (1) requires that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a
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particular plaintiff or plaintiffs,” id. at (a)(1)(A), and instructs courts to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief” when considering whether “such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id. Further, the section prohibits courts from ordering a state official to exceed her authority under state law unless doing so is required by federal law to protect a federal right and no other relief will do so. Id. at (a)(1)(B). Courts refer to these requirements as the “needs-narrowness-intrusiveness” test. E.g., Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011).
Subsection (2) applies the narrow-tailoring requirements of Subsection (1) to requests for preliminary injunctions and temporary restraining orders, and further requires that all such relief “shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required under subsection (a)(1) [that the relief be narrowly tailored and minimally intrusive] . . . and makes the order final before the expiration of the 90-day period.” Id. at (a)(2).
Finally, Subsection (3) governs “prisoner release order[s].” A “prisoner release order” is defined as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. at (g)(4). Subsection (3) imposes substantive and procedural requirements on prisoner release orders, including the appointment of a three-judge district court for any release order that involve remedies for overcrowding. II. Plaintiffs’ TRO/PI Motion Does Not Seek a “Prisoner Release Order” Under 18
U.S.C. § 3626(a)(3) Plaintiffs’ TRO/PI motion seeks specific, narrowly tailored relief that does not implicate the release order provisions of the PLRA. The motion seeks relief for Subclasses 1 and 2 only:
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 5 of 19 PageID #:167
medically vulnerable and over-55 people in IDOC custody who can be furloughed under 730 ILCS 5/3-11-1. In more concrete terms, Plaintiffs propose a remedial plan requiring the IDOC to: (1) identify eligible subclass members; (2) evaluate whether their transfer to medical furlough (or home detention, if IDOC prefers) would implicate public safety concerns and thus render them ineligible for furlough or detention; and (3) medically furlough (or transfer to home detention, if IDOC prefers) all eligible subclass members. See e.g., Ex. A, Plaintiffs’ Draft Remedial Plan.
Plaintiffs’ requested relief is not a “prisoner release order” within the meaning of § 3626(a)(3) for three independent reasons. First, as discussed in Subsection A below, Plaintiffs do not request that IDOC release them from custody, but rather that IDOC act with urgency to identify, evaluate, and relocate appropriate and eligible class members. Individuals transferred to medical furlough or home detention as a result of IDOC’s evaluations and determinations would remain in the custody and control of the IDOC and the IDOC would be free to impose restrictions pursuant to 730 ILCS 5/3-11-1 or 730 ILCS 5/5-8A-3. Second, as discussed in Subsection B below, the PLRA limits release orders by federal courts to remedy overcrowding. That provision is not implicated in this case, which does not relate to overcrowding but rather to the unique circumstance of a highly contagious virus that puts the lives of class members at increased risk so long as they are held in a prison setting. Third, as explained in Subsection C, even if there were ambiguity about whether § 3626(a)(3) reaches Plaintiffs’ circumstances, the constitutional avoidance doctrine would require this Court to resolve the ambiguity in Plaintiffs’ favor. To the extent that § 3626(a)(3) would deny relief, it would be unconstitutional as applied.1
1 Plaintiffs’ other proposed subclasses likewise do not seek a PLRA “prisoner release order.” Just as medical furlough does not implicate § 3626(a)(1)(3), neither does transfer to home confinement. Plaintiffs can further address the applicability of § 3626(a)(1)(3) to Subclasses 3-6 at a later stage. The currently-pending TRO/PI motion does not seek relief for these subclasses.
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 6 of 19 PageID #:168
A. Plaintiffs Do Not Seek a Release Order, But Rather a Process to Mitigate the Threat of COVID-19 for Medically Vulnerable Prisoners, Evaluate Their Suitability for Medical Furlough, and Transfer Eligible Prisoners
By its very terms, 18 U.S.C. § 3626(a)(3) applies only to an order “that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” § 3626(g)(4). Plaintiffs do not seek either of these things. Rather, they seek a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.
The plain language of Illinois’ prison furlough statute defines a furlough not as release from confinement or custody, but as an extension of “the limits of the place of confinement of a committed person under prescribed conditions.” 730 ILCS 5/3-11-1. Consistent with this concept, the Illinois Administrative Code treats prisoners on medical furlough as “committed persons,” governed by the Code’s “Authorized Absence” provisions. See 20 Ill. Admin. Code § 530.40. Prisoners on furlough are considered to remain under confinement for a variety of purposes, including election law and public benefits law. See 10 ILCS 5/3-5 (“Confinement . . . shall include any person convicted and imprisoned but granted a furlough as provided by Section 3-11-1 of the Unified Code of Corrections . . .”); Social Security Administration (SSA) Program Operations Manual System (POMS) PR 06805.016 Illinois (“a prisoner is considered ‘confined’ [] or ‘a resident of a public institution’ [] even if he is granted and/or released on a furlough, for purposes of suspension of benefits to prisoners”).
When transferred, these Plaintiffs will still remain in IDOC custody, though their location will have changed. By way of illustration, all of the IDOC prisoners who have COVID-19 and are on ventilators at outside hospitals are on “medical furlough” status. Although not inside of a
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 7 of 19 PageID #:169
specific correctional center, these people are still indisputably still in IDOC custody, as is clear from the IDOC profile of one these men, below:

K77218 - WILSON, JOSEPH

Parent Institution: Offender Status: Location:

STATEVILLE CORRECTIONAL CENTER MEDICAL FURLOUGH FURLOUGH

IDOC still considers furloughed or transferred prisoners as being within the IDOC

population, just as it would for someone who resides in the community on electronic monitoring

or who resides behind prison walls. Recent data shows that IDOC has approximately 1500-1700

prisoners on medical furlough status at any given time. See Ex. B, IDOC, Operations and

Management Report (OMR) Key Variables Fiscal Year 2020, 1.

The custodial status of furloughed prisoners is set forth in the nature and duration of

furloughs: the statute contemplates temporary relocation to “(2) to obtain medical, psychiatric or

psychological services when adequate services are not otherwise available.” 730 ILCS 5/3-11-

1(a)(2). Given the unique threat posed by COVID-19, furlough to a home setting—where social

distancing, the only established approved mechanism to avoid infection, can be practiced—falls

within the scope of the furlough statute. Once the threat posed by COVID-19 has been contained

or mitigated, IDOC can recall these individuals back to correctional centers. Indeed, the medical

furloughs Plaintiffs seek are necessarily temporary. 730 ILCS 5/3-11-1(a)(2) (authorizing IDOC

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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 8 of 19 PageID #:170
to furlough a prisoner for a limited period of time for medical reasons). Plaintiffs do not seek a release from custody, and § 3626(a)(3) does not apply.
B. The PLRA’s Release Order Requirements for Mass Prisoner Releases and Population Caps Are Inapplicable Here
Although Plaintiffs do not seek a prisoner release order within the meaning of the PLRA, even if they did, because they do not seek a remedy for overcrowding, the circumstances of today’s pandemic are outside the scope of § 3626(a)(3). Both the plain language of the statute as a whole and the legislative history demonstrate that this provision is specific to federal court orders remedying violations primarily caused by overcrowding. See 18 U.S.C. § 3626(a)(3)(e) (limiting release orders to where “crowding is the primary cause of the violation of a Federal right”). The House Report accompanying the PLRA explained that it was intended to govern court imposed “prison caps.” H.R. Rep. No. 104-21, p.25 (1995).
Nothing in the PLRA displaces district courts’ “broad equitable powers to order the transfer of inmates to facilities better equipped to provide for their medical needs.” Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195, 209-10 (D. Mass. 2019) (citing Johnson v. Harris, 479 F. Supp. 333, 337-38 (S.D.N.Y. 1979) (ordering prison to either transfer prisoner to facility equipped to provide for his medical needs or to ensure he is provided with adequate care as remedy for prison’s deliberate indifference to his serious medical needs); see also United States v. Wallen, 177 F. Supp. 2d 455, 458 (D. Md. 2001) (ordering transfer of pretrial detainee to a hospital since “the Marshal’s Service cannot assure this Court that it will provide the medical care that the Constitution mandates so long as he is held at MCAC”); see also ABA Standards for Criminal Justice, 23-6.2 (3d ed. 2011) (“A prisoner who requires care not available in the correctional facility should be transferred to a hospital or other appropriate place for care.”); cf. Murphy v. Lane, 833 F.2d 106 (7th Cir. 1987) (allowing plaintiff’s claim for retaliatory transfer
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 9 of 19 PageID #:171
to go forward based on prison officials’ transfer of plaintiff to prison more poorly-equipped to handle his psychiatric needs).
For more than two decades, district courts have found that § 3626(a)(3) does not apply to orders remedying violations of federal rights other than overcrowding, even where that order requires prisoners to be moved out of their current facilities. In Doe v. Younger, No. 91-187 (E.D. Ky. Sept. 4, 1996), Op. and Order (attached as Ex. C) at 10-12, the district court banned the housing of juveniles for more than 15 days in jail, where conditions were unacceptable for children. The court held that this was not a prisoner release order under the PLRA, even where it had the effect of reducing the number of children in the facility: “[T]he court’s order does not direct the release of any child. It is undisputed that counties . . . often house juveniles in need of a secure facility in other counties. In fact, such transfers from facilities in one county to facilities in another county or even another state are extremely common. Indeed, the Kentucky Juvenile Code specifically contemplates such transfers.”
In a case directly on point to the present situation, Plata v. Brown, No. C01-1351, 2013 WL 3200587, at *9 (N.D. Cal. June 24, 2013), the court was faced with the sweeping transmission of coccidioidomycosis, or Valley Fever, “an infectious disease caused by inhalation of a fungus,” in certain prisons within the California state prison system. Plata, at *2. The court granted an exclusionary order for medically vulnerable prisoners, rejecting the defendants’ argument that the PLRA barred the requested relief unless issued by a three-judge court:
Here, looking at the [PLRA] statute as a whole requires reading the definition of “prisoner release order” in conjunction with the requirements for entering one. One such requirement is that a three judge court must determine, by clear and convincing evidence, that “crowding is the primary cause of the violation of a Federal right,” before it can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(E)(i). Consequently, adopting Defendants’ interpretation of “prisoner release order” would mean that a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation of those prisoners’ rights, and not if any other reason were
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 10 of 19 PageID #:172
causing the violation. Defendants have failed to point to anything in the legislative history that indicates an intent to limit the protection of inmates’ constitutional rights in this manner . . . . Id. at *9. In the context of the relief requested here, the PLRA’s legislative history review is not an academic exercise, but an imperative affirmation of this court’s broad equitable authority to order relief for Subclasses One and Two. “‘A statute should not be construed to displace courts’ traditional equitable powers ‘[a]bsent the clearest command to the contrary.’” Plata, 2013 WL 3200587, at * 9 (citing Gilmore v. California, 220 F.3d 987, 997 n.12 (9th Cir. 2000), and Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982)) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” (quotation marks and citations omitted)). As the PLRA’s legislative history demonstrates, Congress did not intend to limit courts’ ability to move or transfer prisoners as a result of other (non-crowding) constitutional violations—including those presented here. See Reaves, 404 F. Supp. 3d at 523 (“Accepting Defendants’ argument would mean that the only way a district court can order the release of a prisoner is for a violation of his constitutional rights where overcrowding caused the violation, but not if any other reason caused the violation. Defendants have failed to present anything in the legislative history which evidences Congressional intent to limit the protection of inmates’ constitutional rights in this way—presumably because there is no such history.”). As both the Doe and Plata courts concluded, the PLRA does not preclude court orders to transfer medically vulnerable prisoners, which is the relief Plaintiffs seek here. See, e.g., Plata, 2013 WL 3200587, at *9 (“Sponsors of the PLRA were especially concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administrators’
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 11 of 19 PageID #:173
failure to comply with the terms of consent decrees designed to eliminate overcrowding.”) (citing Gilmore, 220 F.3d at 998 n.14); Doe v. Younger, attached as Ex. C, at 11 (“After reviewing the substantive provisions concerning prisoner release orders and the legislative history underlying this provision of the PLRA, it is clear that the prisoner release order provisions are directed at prison caps, i.e., orders directing the release of inmates housed in a particular institution once that institution houses more than a specific number of persons. This is not that kind of case.”). Senators who supported § 3626’s restrictions did so explicitly in response to federal courts that were “dictat[ing] prison population size and order[ing] excess prisoners released.” 142 Cong. Rec. S10576-02, 1996 WL 522797 (remarks of Sen. Abraham). The record evinces the overriding intent to limit the capacity of federal judges to impose “prison population cap[s].” 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (“Perhaps the most pernicious form of micromanagement is the so-called prison population cap . . . . By establishing tough new conditions that a Federal court must meet before issuing a prison cap order, this bill will slam-shut the revolving prison door.”); see also 142 Cong. Rec. S3703-01, 1996 WL 188576 (remarks of Sen. Abraham) (the purpose of the PLRA was to end such judicial orders as “a program of wholesale releases of up to 600 criminal defendants per week to keep the prison population down to what the judge considers an appropriate level”); Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of Confinement, 6 U. Miami Race & Soc. Just. L. Rev. 1, 27-28 (2016) (collecting congressional testimonies and reports identifying federal court-imposed prison population caps as the target of the PLRA).
Plaintiffs do not seek such mass release orders or population caps. Instead, Plaintiffs seek an expedited, individualized review and re-location of those people who are medically vulnerable and more likely to have serious complications or to die if they contract COVID-19.
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The purpose of this expedited review is to evaluate their suitability for medical furlough or home detention—not release from IDOC custody. No court has ever held that relief of such deferential nature is in conflict with § 3626(a)(3).
C. The Doctrine of Constitutional Avoidance Requires the Court to Interpret § 3626 Consistently With the Relief Sought by Plaintiffs
Even if there were ambiguity about whether § 3626(a)(3) applies to the relief Plaintiffs seek, the doctrine of constitutional avoidance requires resolving that ambiguity in Plaintiffs’ favor. If § 3626(a)(3) is interpreted to preclude, or even to delay, relief sought by Plaintiffs in the face of an undisputed imminent risk of serious illness or death arising from a deadly virus, this provision would be unconstitutional as applied. Such an interpretation would unlawfully prevent courts from ordering relief urgently needed to protect prisoners’ lives and federal rights in the face of an unprecedented pandemic, and must be avoided. See Jones v. United States, 529 U.S. 848, 857 (2000) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366 (1909)) (“where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.”); Gilmore v. California, 220 F.3d 987, 998 (9th Cir. 2000) (“The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.”) (citing DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979) (“[A]n Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available.”).
In the unique circumstances of the COVID-19 pandemic, requiring the § 3626(a)(3) procedures and precluding relief because Plaintiffs’ have not alleged that their rights are violated due to overcrowding, would be unconstitutional. Defendants here are well aware of the
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 13 of 19 PageID #:175
immediate risks to Plaintiffs’ lives and health from remaining in the congregate setting of prisons. See ECF No. 1, Complaint, ¶¶ 43-44. Every day of delay does not merely delay relief but increases the risk. At least two prisoners have already died. Reading the PLRA to prevent the courts from acting here would be unconstitutional, or at a minimum, raises serious constitutional concerns. Jones, 529 U.S. at 857 (courts should avoid statutory constructions that raise “grave and doubtful constitutional questions”) (internal quotation marks and citation omitted). III. The Relief Plaintiffs Seek in the Section 1983 Matter Satisfies the “Needs-
Narrowness-Intrusiveness” Requirements of § 3626(a)(1) & (a)(2) The urgency of the risk posed to medically vulnerable Plaintiffs by COVID-19 cannot be overstated. Continued incarceration of Plaintiffs in Subclasses 1 and 2 puts them at substantial risk of imminent contraction of and death from COVID-19, in violation of the Eighth Amendment and the Americans with Disabilities Act. Under the PLRA, any injunctive remedy must satisfy the “needs-narrownessintrusiveness requirement.” See Fields v. Smith, 653 F.3d 550, 558 (7th Cir. 2011). That means that a district court issuing a preliminary injunction must find that the relief (1) is narrowly drawn, (2) extends no further than necessary to correct the harm requiring preliminary relief, and (3) is the least intrusive means necessary to correct that harm. 18 U.S.C. § 3626(a)(2). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.” Id. The “needs-narrownessintrusiveness” requirement is case-specific and “must be undertaken in light of both the magnitude of existing constitutional violations and the available alternative remedies.” Morales Feliciano v. Rullan, 378 F.3d 42, 54 (1st Cir. 2004); see also Brown v. Plata, 563 U.S. 493, 531 (2011) (“Narrow tailoring requires a fit between the remedy’s ends and the means chosen to accomplish those ends . . . . The scope of the remedy must be proportional to the scope of the
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 14 of 19 PageID #:176
violation, and the order must extend no further than necessary to remedy the violation.”). The unique circumstances of the COVID-19 pandemic, and the particular risks it poses for the medically vulnerable, requires immediate furlough or transfer for Subclasses 1 and 2.
Accordingly, this Court must order IDOC to implement a process similar to one included in Sections 1 and 2 of in the Plaintiffs’ proposed Draft Remedial Plan, so that subclass members who pose no risk to public safety are transferred from facilities where the chances of contracting COVID-19 are incredibly high, to community placements where they can safely quarantine while remaining in IDOC custody. Cf. Farmer v. Brennan, 511 U.S. 825, 847 (1994) (prison official can be liable “for denying humane conditions of confinement” where “he knows inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”); Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (“If a risk from a particular course of medical treatment (or lack thereof) is obvious enough, a factfinder can infer that a prison official knew about it and disregarded it.” (citations omitted).
A. Relief Sought by Plaintiffs is Narrowly Drawn The relief proposed in Plaintiffs’ Draft Remedial Plan is narrowly drawn both in scope and in substance. While Plaintiffs’ Section 1983 action is brought on behalf of all prisoners in the IDOC and six cognizable subclasses, they see preliminary relief for two subclasses only: those who are medically vulnerable due to age, and those who are vulnerable due to preexisting medical conditions. Urgent action is required to protect the lives of these prisoners by preemptively removing them from prison facilities before they contract COVID-19. The relief itself is also narrowly tailored to meet the particular characteristics and circumstances of the COVID-19 pandemic. As detailed more fully in Plaintiffs’ complaint, standards from the CDC and other public health experts indicate that all individuals, but
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 15 of 19 PageID #:177
particularly those who are medically vulnerable, should avoid close contact with people who are sick or who are or may be contagious even if asymptomatic. See ECF No. 1, Complaint, ¶¶ 3133. In Illinois prisons, Defendants have admitted that all aspects of daily life take place in a congregate setting making social distancing impossible. See id. ¶¶ 43-44. The only way for Defendants to ensure that medically vulnerable prisoners can keep their distance from others is by transferring them to a different environment.
B. Relief Sought by Plaintiffs Does Not Extend Further Than Necessary to Correct the Violation of their Federal Rights
The preliminary injunctive relief sought by Plaintiffs does not extend further than necessary to correct the constitutional violation at issue, given the nature of the violations of federal law and IDOC’s inability to remedy the serious risk of harm in any other way. While the court’s order for relief must be deliberately narrow to minimize intrusion into correctional operations, the relief ordered must also be sufficient to fulfill its function of remedying the violations at hand. See Brown, 563 U.S. at 511 (“Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”). Here, the violations at hand include imminent risk of contracting COVID-19, which could lead to serious medical complications and death. The only adequate remedy for medically vulnerable prisoners is medical furlough or transfer.
The very nature of Illinois prisons renders IDOC incapable of protecting the medically vulnerable subclasses from COVID-19’s spread if they remain within IDOC facilities. Illinois’ Director of Public Health has admitted that IDOC facilities do not have enough individual cells to isolate prisoners with confirmed cases of the virus, and that prisons “pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there.” See ECF No. 1, Complaint, ¶ 43. If confirmed cases cannot be successfully quarantined within
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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 16 of 19 PageID #:178
IDOC facilities, the only way the IDOC can protect the lives of these vulnerable individuals is by immediately furloughing or transferring them to a site outside the prison.
This Court cannot not wait for the virus to spread to each IDOC facility before identifying eligible class members and granting them medical furlough. Cf. Skinner v. Uphoff, 234 F. Supp. 2d 1208, 1218 (D. Wyo. 2002) (“Of course, the remedy ordered by this Court shall extend no further than necessary to correct the violation of the Federal right, but if it is necessary to enact systemic and prophylactic measures in order to correct the violations found to exist in this instance, the Court may do so.”). Once this dangerous virus enters the prison, it will spread rapidly from prisoner to prisoner and among staff. Catastrophe already has struck at Stateville, where the number of confirmed COVID-19 cases has grown exponentially in just a matter of days, sickening dozens of prisoners and staff and killing at least two prisoners. COVID-19 cases have now been confirmed among staff or prisoners at Stateville NRC, Menard, Logan, Danville, Sheridan, Graham, Joliet Treatment Center, and Kewanee. Action must be taken now to prevent devastation throughout prisons and prison communities across the state.
C. The Relief Sought is the Least Intrusive Means to Remedy the Violation Plaintiffs’ proposed relief wholly respects the discretion of the IDOC and requires relocation only for those individuals who have medical vulnerabilities to COVID-19 and pose no threat to public safety. This relief is authorized by state law and is the least intrusive means to protect the life and rights of the medically vulnerable Plaintiff subclasses. The Illinois legislature created medical furlough as a mechanism to allow for temporary change in confinement under special circumstances, and one would be hard pressed to find a more dire special circumstance than the current global pandemic. Under Illinois’ medical furlough statute, the IDOC is authorized to “extend the limits of the place of confinement of a
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committed person under prescribed conditions, so that he may leave such place on a furlough.” 730 ILCS 5/3-11-1(a). The COVID-19 pandemic has already claimed the lives of at least two Illinois prisoners and sent more than a dozen to a hospital intensive care unit. Medical furlough is an appropriately tailored remedy to protect the lives of prisoners who are most at risk of death from COVID-19 due to their age and preexisting medical conditions. IV. PLRA Has No Application to Petitions for Writs of Habeas Corpus
Petitioners request emergency action in their request for writs of habeas corpus; as in the Section 1983 suit, Petitioners seek immediate furlough or transfer of Subclasses 1 and 2. The PLRA has no application to a habeas petition. Walker v. O’Brien, 216 F.3d 626, 634 (7th Cir. 2000) (“[W]e conclude that cases properly brought under §§ 2241 or 2254 as habeas corpus petitions are not subject to the PLRA. In so doing, we bring this circuit into line with all of our sister circuits who have ruled on the matter.”) (citing Davis v. Fechtel, 150 F.3d 486, 488-90 (5th Cir. 1998); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997); Blair-Bey v. Quick, 151 F.3d 1036, 1039-41 (D.C. Cir. 1998)); see also Greyer v. Ill. Dep’t of Corr., 933 F.3d 871, 878 (7th Cir. 2019) (observing that “habeas corpus petitions do not give rise to a strike under the PLRA”). This conclusion is fully supported by the two separate statutory schemes enacted by Congress to govern § 1983 actions (the PLRA) and habeas petitions (the AntiTerrorism and Effective Death Penalty Act). See Blair-Bey, 151 F.3d at 1041 (noting that the PLRA and AEDPA were enacted two days apart, “strongly suggest[ing] that Congress intended to make its changes to habeas proceedings via the AEDPA, and to alter procedure in prisoner civil rights litigation in the PLRA”).
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Dated: April 6, 2020

Respectfully submitted,
/s/Elizabeth Mazur One of the Attorneys for the Plaintiffs

Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Avenue, Suite 300 Chicago, IL 60602 (312) 241-0020
Sarah Grady Steve Weil Loevy & Loevy 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411

Counsel for Plaintiffs

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Case: 1:20-cv-02094 Document #: 17 Filed: 04/06/20 Page 19 of 19 PageID #:181 CERTIFICATE OF SERVICE
I, Elizabeth Mazur, an attorney, certify that I served this pleading on all counsel of record by filing it through CMECF system.
/s/Elizabeth Mazur
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Case: 1:20-cv-02094 Document #: 17-1 Filed: 04/06/20 Page 1 of 3 PageID #:182
PLAINTIFF’S DRAFT PROPOSED REMEDIAL PLAN RELATED TO THEIR REQUEST FOR A TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION
1. IDENTIFICATION OF INDIVIDUALS ELIGIBLE FOR IMMEDIATE TRANSFER TO FURLOUGH OR HOME DETENTION: Within three days of the date of the order, the Illinois Department of Corrections will identify all people in the physical custody of IDOC and who are vulnerable due to underlying medical condition or age, within these categories: i. People who have a pre-existing condition and have an increased risk of serious harm or death from COVID-19 as result of that condition. Pre-existing conditions include but are not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19, and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. ii. People who are medically vulnerable and have an increased risk of serious harm or death from COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
Within three days of identifying individuals eligible for furlough, or transfer, IDOC shall collect information from each individual for identifying potential host sites.
2. Within 7 days of the date of this order, the IDOC will use its discretion to transfer individuals identified pursuant to the above to medical furlough or home detention:
Every person identified pursuant to paragraph 1 of this order with an available host site will be removed from the correctional center via the mechanism determined by IDOC as most appropriate (such as medical furlough or transfer to home detention) unless the IDOC determines, with the approval of the special master, that an individual’s furlough or transfer would pose a substantial danger to the physical safety of an identifiable person or persons that outweighs the threat to the individual’s health and the public health threat posed by their continued incarceration. Assessment of the safety risk must be based on an

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individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer mechanisms under the law). In the event that the IDOC rejects a furlough or transfer to home detention to any person identified in Paragraph 1, IDOC will document their justification with specific and individualized concerns including those related to the individual’s institutional history and background.
3. FORMATION OF THE COVID-19 EMERGENCY RECORD REVIEW TASK FORCE. Class Counsel will, at IDOC’s request, form a Task Force comprised of up to 150 pro-bono attorneys, legal assistants, social workers, law students and other qualified individuals, who report to the Special Master. The purpose of the Task Force is to assist the IDOC in conducting the record review necessary to effectuate the terms of this Order. The Task Force will function as follows: a. Class Counsel will work with the IDOC to recruit qualified Task Force Members, who have demonstrated high ethical standards and the requisite skills needed to contribute to the Task Force; b. IDOC will execute the required agreements to allow the Task Force to access and review the relevant records. This may include, but is not limited to, submitting an Agreed Order to this Court that will permit Task Force Members to review protected health information as permitted by the Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (1996) (“HIPPA”). Task Force Members shall work under the supervision and control of the Special Master and shall be required to execute requisite confidentiality agreements; c. Task Force members shall prepare one to two page summaries of the files of each individual reviewed regarding the individual’s medical condition, current disability, institutional record, relevant history and background. These summaries will be based on a form developed jointly by Class Counsel and the IDOC; d. The Class Counsel and the IDOC shall collaborate on the form and content of Task Force member training. No Task Force member shall begin their record review without first completing this training; e. IDOC will rely on the Task Force summaries to review each individual and make the decision required pursuant to ¶ 2. Nothing in this Agreed Order limits the IDOC’s authority to order furlough, transfer to home detention and/or release prior to the completion of any task force summary or separate from the process required by this Order.
4. Appointment of a Special Master. The Parties agree to the appointment of a Special Master, to be jointly selected by the parties. The Special Master shall have extensive experience in management and a general familiarity with corrections and/or the justice system and/or the public health system. The Special Master shall have the discretion to consult with individuals with expertise in corrections, public safety and public health, as needed. The Special Master shall have the following responsibilities:

Case: 1:20-cv-02094 Document #: 17-1 Filed: 04/06/20 Page 3 of 3 PageID #:184
a. Reviewing IDOC’s denial of medical furlough to any medically vulnerable person on the basis of public safety concerns. If the special master disagrees with the IDOC’s determination, the IDOC shall grant the individual medical furlough;
b. At the request of the IDOC, making recommendations about transfer, or furlough decision for any individual or groups of individuals;
c. Managing and overseeing the work of the Task Force, to include but not limited to establishing strict timelines and instituting quality control procedures;
d. Collaborating with Class Counsel to develop and distribute resources related to housing and public benefits for those who are furloughed pursuant to the terms of this Order and to deploy any resources and or/knowledge Class Counsel can offer to mitigate practical and logistical barriers.
e. Managing the IDOC host site approval process for all class members and ensuring that the process is efficient, fair and comports to the requirements of this Order.
5. CLASS COUNSEL ACCESS AND REPORTING. The IDOC shall provide to Class Counsel the names, IDOC numbers and facilities of every person in IDOC custody who is eligible for release, transfer and medical furlough under the terms of this Order, and shall provide Class Counsel with the names of any such person who it deems not eligible for relief under Paragraph 2 for any reason, including lack of a host site. The IDOC will further provide Class Counsel with the names and prisoner IDOC numbers of all people medically furloughed and/or transferred to home detention pursuant to this Order every 48 hours. The IDOC and Class Counsel will collaborate to seek and necessary HIPPA related orders from the Court to facilitate information sharing.

Case: 1:20-cv-02094 Document #: 17-2 Filed: 04/06/20 Page 1 of 2 PageID #:185

ILLINOIS DEPARTMENT OF CORRECTIONS

Operations and Management Report (OMR) Key Variables

Fiscal Year 2020

OMR Key Variable

JUL 2019 AUG 2019 SEPT 2019

Total Use of Chemical Agents

84

79

79

Use of Chemical Agent

65

55

62

Use of Chemical Agent - Offender Self Harm

19

24

17

Cell Extractions

41

29

23

Activation of Tactical Teams

118

57

79

Total Vehicle Searches

3,322

2,817

2,849

Total Non Staff Vehicle Searches

2,579

2,164

2,105

Total Staff Vehicle Searches

743

653

744

Vehicle Searches Resulting in Arrests

0

1

0

Visitor Restrictions

11

15

6

Total Lockdown Days

65

45

68

Incident Based Lockdown Days

48

36

62

Administrative Based Lockdown Days

17

9

6

Segregation Sentences: Reductions / Cuts - Number of Offenders

189

175

159

Segregation Sentences: Reductions / Cuts - Number of Days

5,522

5,849

5,346

Temporary Confinement Placements

787

790

694

Temporary Confinement End-of-Month Count

216

267

272

Investigative Status Placements

388

401

381

Investigative Status End-of-Month Count

127

136

127

Disciplinary Segregation Placements

645

573

590

Disciplinary Segregation Status End-of-Month Count

903

904

900

Administrative Segregation Placements

14

3

8

Administrative Segregation Status End-of-Month Count

134

111

109

Double-Celling Denials Issued by the Warden

72

51

80

Vulnerables

336

348

350

Predators

230

242

246

Vulnerable and Predator

79

83

81

Disciplinary Transfers of Inmates

153

111

151

Total Deaths

10

2

11

Expected Deaths

8

2

8

Unexpected Deaths

2

0

3

Offender Sick Calls

49,343

47,556

49,257

Hunger Strikes

160

141

114

Total Off-Site Emergency Room Visits

231

195

212

Total Off-Site Medical Furloughs

1,763

1,736

1,557

Number of Offenders Housed in Outside Hospitals

110

127

141

OCT 2019 68 57 11 25 88
3,003 2,087
916 0
12 40 40
0 180 13,037 876 308 411 145 642 913
8 102
97 339 238
78 106
13 8 5
48,709 129 185
1,788 127

NOV 2019 72 54 18 14 32
2,952 2,032
920 0
11 23 17
6 136 3,432 778 273 356 115 610 876
12 110
70 358 248
78 98
6 3 3 43,077 143 190 1,671 105

DEC 2019 73 53 20 15 91
3,030 2,032
998 0 5
46 17 29 143 7,044 786 272 370 136 603 792 24 120 51 347 227 75 65 13
7 6 41,976 122 205 1,721 131

Prepared by Planning and Research

Case: 1:20-cv-02094 Document #: 17-2 Filed: 04/06/20 Page 2 of 2 PageID #:186

Number of Days Housed in Outside Hospitals Physical Health - Average Daily Censes for Infirmary Services Infirmary Average Daily Census - Acute Infirmary Average Daily Census - Chronic Total Number of Admissions to the Infirmary Infirmary - End-of-Month Count in Permanent Housing Pregnancies Births Mental Health - Caseload Seriously Mentally Ill Caseload Total Crisis Watch Observations Crisis Watch - Continuous Watch Status Crisis Watch - Suicide Watch Status Crisis Watch - Offenders on Close Supervision Status Crisis Watch - Offenders on Periodic Check Status Suicide Ideation Suicide Attempt Inmate Self Harm Suicides Total Staff Total Staff Security Total Staff Non Security Total Staff Non DOC

387 260 174 167 370 136
11 1
12,020 4,931 742 72 341 159 170 415 22 156 0
11,604 8,863 2,741 1,683

498 266 186 183 393 135
13 2
12,071 4,888 693 89 302 153 149 386 33 85 0
11,635 8,868 2,767 1,460

603 273 182 187 390 151
12 1
12,372 4,973 648 69 285 163 131 382 27 82 0
11,861 9,018 2,843 1,643

END OF MONTH POPULATION/ADULT FACILITIES ONLY Note: The OMR is in Draft and Confidential status; they sometimes change after administrative review. Source: Operations and Management Report

38,238

38,244

38,135

Non-DOC Staff refers to the number of non-DOC (non-GRF) staff at the end of the month assigned to work at the facility, including contractors, Office of Adult Education, and ICI funded staff. Also includes drug treatment staff (TASC or similar), Educators and Vocational Instructors (through local Colleges or Office of Adult Education), regular Health Service providers (not those on PRN status only), etc. Does not include volunteers or vendors performing routine maintenance or service contracts (fire marshal, elevator inspectors, vending machine service persons, etc.).

610 271 186 196 394 149
7 5 12,706 4,887 567 44 248 131 147 290 23 81 1 11,765 8,962 2,803 1,591
38,003

563 280 180 195 348 165
8 1 12,694 4,841 566 43 233 138 152 297 27 73 1 11,874 9,064 2,810 1,643
37,798

598 286 116 204 339 159
6 1 12,887 4,756 628 50 303 140 135 345 25 62 1 11,355 8,621 2,734 1,566
37,291

Prepared by Planning and Research

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 1 of 16 PageID #:187

tnn'rED STATES DISTRICT COURT
EASTERN DISTRICT OP KENTUCKY AT COVINGTON

CIVXL ACTION NO. 91-187

JOBN DOB, BT AL
vs.

OPDllON AND ORDBR

DOH YOlJNGD, BT AL

EASTERN DISTRICT of KENTUCKY
FILED
SEP,~.. i996
AT COVINGTON LESLIE G. WHITMER ~LERK, U. S. DISTRICT COURT.
PLAINTIFFS
DEFENDANTS

This matter is before the court on defendant Kenton County's motion to alter, amend and vacate this court's July 26, 1996 judgment and to stay the execution of that judgment (doc. #450}, the motion of defendants Paul Patton and Doug Sapp to alter or amend the court's July 26, 1996 judgment (doc. #459}, and the stipulated motion for an extension of time to file a petition for attorneys' fees (doc. #459). A telephonic hearing was held on these motions on August 29, 1996. For the reasons set forth below, Kenton County's motion to alter or amend is granted as to which juveniles are exempt from the 15 day limitation on length of stay, but the remainder of Kenton County's motion is denied. The motion of defendants Governor Paul Patton and Doug Sapp is denied in its entirety, and the stipulated motion for an extension of time to file a petition for attorneys' fees is granted.
I
Plaintiffs initiated this civil rights .class action pursuant
to 42 u.s.c. §1983. They challenge the constitutionality of the
conditions of their confinement at the Kenton County Detention Center (KCDC) in Covington, Kentucky. After considering all
1

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 2 of 16 PageID #:188

evidence presented during a three day trial to the bench and considering all arguments made in post-trial briefs filed by the parties , the court entered its findings of fact and conclusions of law as well as an amended judgment on July 26, 1996. The parties seek alteration of portions of these documents.

TBB FINDINGS OP FACT AND CONCLUSIONS OF LAW WILL BE AMENDED
CONCBR.Nl:NG THE EXEMPTION FROM THE 15 DAY LIMJ:TATION ON LENGTH OF STAY
This case requires the court to balance significant conflicting interests -- the due process rights of incarcerated juveniles, the public's right to have juvenile crime and misbehavior addressed, and the separation of federal and state powers. As explained in the court's findings of fact and conclusions of law, the Kenton County Detention Center is clearly substandard in many respects. However, in the view of the court the conditions at the KCDC become unconstitutional and thus justify court intervention only when a juvenile is subjected to those substandard conditions for an extended period of time. To that end, the court imposed a time limit on the length of incarceration in this facility for juveniles who do not have the benefit of adult

procedural protections, stating:

Plaintiffs ask the court to close this

~ci institution. After careful reflection, the
court has concluded.that such an ~fxt~e~~

ld violate the principles o JU 1.c1a

wo~traint and federalism. But the court has

~!so concluded that confining a juvenile_ there

or an extended period -.- more than fifteen

~lS) days unless there is probable cause to

believe that the juvenil~ can be ~reate~ as an

adult

c

h

d arge

with

a

crime -1

is punishment What one can

without due process of the aw.

2

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 3 of 16 PageID #:189

bear for a short period can be intolerable if
prolonged.

Doc. #447 at 2. The court's amended judgment provides, "That,

effective August 15, 1°0 6 ;7 ;7 ,

no J· uveni· 1e not i·ndicted for or

convicted of a crime as an adult shall be held in the present

Kenton County Detention Center for more than fifteen (15) days."
Doc. #449 at 1.

In its motion to alter or amend the judgment, Kenton County

states, for the first time, that, given the procedures prescribed

by the Kentucky Revised Code concerning youthful offenders, it is impossible to judicially determine whether a juvenile will be treated as an adult charged with a crime within fifteen days of the

juvenile's initial incarceration at the KCDC. For this reason,

Kenton County asks the court to revise its language concerning

which juveniles are exempt from the fifteen day limit on length of

incarceration at the KCDC. In making its motion, Kenton County repeatedly sarcastically
states that the court was "simply wrong" in concluding that juveniles who have not been charged with a crime and who have not been afforded the rights of those who are so charged are being held for lengthy periods in the KCDC. This statement is itself not only "simply wrong" but demonstrates a profound ignorance of the law of this case. 1
It is fundamental that proceedings against juveniles, even

1 The court suggests that if one is going to be disrespectful, one ought to at least do his homework.
3

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 4 of 16 PageID #:190

juveniles who have allegedly been in contempt

criminal proceedings.

of court, a r e not

See,~, In re Gault, 387 U.S. 1 (1967) ;

Kent v. United States, 383 u.s. 54 1 (

S. W.2d 195

1966); Young v. Knight. 329

{Ky. 1959); Alexander S. v. Boyd, 876 F. Supp. 773

(D.s.c. 1995). As the Supreme Court explained:

The theory of the District's Juvenile Court

Act, li~e tha~ of other jurisdictions, is

rooted in social welfare philosophy rather

than in the corpus juris. Its proceedings are

designated as civil rather than criminal. The

Juvenile Court is theoretically engaged in

determining the needs of the child and of

society rather than adjudicating criminal

conduct.

The objectives are to provide

measures of guidance and rehabilitation for

the child and protection for society, not to
fix criminal responsibility. guilt and
punishment.

Kent. 383 U. s. at 544 (emphasis added) . More recently, the
Kentucky Supreme Court has echoed those views, stating:

It has been a principle theory of juv?nile_law

that an individual should not be st1gma~1zed

with a criminal record for acts committed

during minority. By providing young people

"th treatment oriented facilities rather than

=~mple punishment, antisocial behavior can be

modified and the offenders will develop as law

dtarboa1e· dds iint1igi·om1n·.catiltltihyzee

ns. However, constitutional
provided for a

S)=lch treatment
druilgthtos£tfhenadt earsre.

. 1 offenders are not afforded all the

Juven7t e tional rights that adult of~enders

cons~i u

are afforded only the right.to

rfeacier ivtree. atmTheenyt. • · · J. usti.ce systern reflects

Tthhei.sKpehnti.u1coksyophjuyv. eni~e

County pepart ment f- or HumaneSrv...;.ces v . carter, 795

Jefferson

and citations omitted) (emphasis

S.W.2d 59, 61 (Ky. 1990) (footnote

added).
Even so basic a work as American Jurisprudenc2ed, a primer of

4

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 5 of 16 PageID #:191

American law, in the very first section of its article on Juvenile Courts notes the following basic principles :

.

The pu~ose of juvenile court legi slation

1.s to provide for the disposition of deli n-

qu7nt, dependent, neglected, and abandoned

ch1.ldren by providing a complete scheme for

~reat~ent thereof including the creation of a

Juvenile court which will investigate and try

to rehabilitate minors.

With respect to the delinquent child the
philosophy of juvenile court laws is that the
juvenile is to be considered and treated not
as a c~iminal. but as a person requiring care,
education, and protection . A fundamental aim
of juvenile court laws is the prevention of
delinquency of children. Consequently, such
laws are not punitive, but are corrective and protective in that their purpose is to make
good citizens of potentially bad ones. In other words, the welfare of the child lies at the very foundation of the statutory scheme.

4 7 Am. Jur. 2d Juvenile Courts and Delinguent and Dependent

Children§ 1 (1995) (emphasis added}.

As the above authorities and many others make abundantly

clear, it is a trade-off. Juveniles may be deprived of some constitutional rights, such as the right to a jury trial and a

speedy and public trial, because they are not being punished but

treated. Therefore, all juveniles, except those being proceeded

against as adults, have not even been accused of crimes. Again,

this is 80 basic that one doubts if contrary assertions_are made in

good faith.~

2 Certainl denial of these basics would not be "warranted by exi~~ law or by a

.

y,

t r.or the extension modification or reversal of eXJstmg law or the

nonfrivolous argumen 1•

• '

establishment of new law." Fed. R C1v. P. ll(b)(2).

5

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 6 of 16 PageID #:192

The gravamen of this court's opinion is that detention at the KCDC for more than fifteen {15) days is punishment. Therefore, no juvenile may be so punished except those being proceeded against as adults.

Thus, in determining whether juveniles could constitutionally

be housed in the substandard KCDC f aci li ty, the court protected

those children who are not afforded the additional procedural

rights available to adults. In keeping with the notion that

federal courts have the authority only to require the

constitutional minimum- -not to impose their views of an ideal

facility, the court elected to limit the length that any juvenile

not ultimately protected by adult procedural rules may be

incarcerated in the KCDC.
In Kentucky, a juvenile is protected by adult procedural requ1·.rement s only 1·f he is proceeded against as a "youthful offender.,, A "youthful offender" is a person who is transferred to

Circuit Court to be indicted, tried and sentenced as an adult

pursuant to KRS Chapter 640 and who is subsequently convicted in KRS 600.020(52). To be eligible for treatment as
Circuit Court. a youthful offender, a juvenile must be accused of committing

•

3

certain serious crimes.

6

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 7 of 16 PageID #:193

The procedures by which it is determi'ned that

proceeded against as a youthful ff d

a ch• ild will be

o en er are contained in the

Kentucky Unified Juvenile Code. To initiate these procedures, the

county attorney must make a motion before the District court to

transfer the child to Circuit Court for treatment as a youthful offender.
KRS 635.020 and KRS 640.010(2).' The District Court
then conducts a transfer hearing pursuant to KRS 640. 010. At that

hearing, the District Court determines whether there is probable

cause to believe that the child committed an offense and whether

all age or other requirements for treatment as a youthful offender

have been satisfied. KRS 640.010(2) (a). The District Court then

considers a number of other factors concerning the circumstances

surrounding the offense, the child, and the public and determines

whether the child should be transferred to Circuit Court for treatment as a youthful offender. KRS 640. 010 (2) (b) .

felony offenses on two_s~par;telonoycciansiownhsich(KaRSfi6r3ea5r.0m20w(a3s))u; sed in
(c) a child charged wi~f a ewho was at least fourteen years old atht ethceomtmimisesioonf othfe thaelleoge~n~~mmission of the offense (KRS

:r 635.020(4));

d 'th a felony who previously had been

(d) a child charge wi

d (KRS 635.020(5)); and

convicted as a youthful offen hteen years old and is charged

w(ei)th aa pfeelrosnoyn wthhao t isocacut rlree~sptrio~ to his eighteenth birthday (KRS

635.020(7)).

4In

the

case

of

a

c hi'ld.

c

h

at r'

gleeda

swti'

th a four

felo teen

ny ye

in ars

wohldicha

t a

the

firearm was

used

and dowffheonsise, a KRS

0(4) 635.02

pHroovwiedveesr, foitr appears

time of the alleget as a youthful offender. that the county

~I!e automatic treatmenof KRS 640.010(1) and~~) child to Circuit
afrtotmorrtntheinye omlarundsgeurt to trai.gmgoetrionthetohteraar~isngfe~hateresults in the

~~~omatic transfer.

7

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 8 of 16 PageID #:194

Due to the serious consequences associated with treatment as
a youthful offender, it is common for the child's attorney to seek
additional time for investigation and preparation prior to the

trans£er hearing. At the telephonic hearing, the County Attorney,

Garry Edmondson, personally orally certified to this court that all

motions for transfer to the Circuit Court for treatment as a

youthful off~nder are and will be made in the good faith belief

that the facts support such a transfer. He also said he could make

the necessary good faith determination within the 15 days.

Based upon the County Attorney's representation and the fact

that it is impossible to ensure that a transfer hearing will commence within 15 days of incarceration without infringing the juvenile's right to adequate preparation and investigation, the

court concludes that its July 26, 1996 findings of fact and conclusions of law and amended judgment should be modified to

state:

confining a juvenile in th~ Kenton _county

Detention Center for an extended period of

time -- more than fifteen (15) days unless ~he

prosecutor has, in go~ faith~ fi~ed a motion

to transfer the juvenile to Circuit Court for

treatment as a youthful offender

is

punishment without due process of law.

Any statements contained l·.n the court's July 26, 1996 findings of fact and conclusions o f law or in the court ' s amended judgment filed that same day that are i~consistent with this statement shall

be vacated.
mos OP PACT AND CONCLUSIONS OF LAW ~LL
THBB:~BD TO TRACK LANGUAGE REQUIRED BY PRXSON LXTXGATION R.BPORM ACT OF 1995
8

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 9 of 16 PageID #:195

In its moti· on to alter or amend

the court did

, Kenton County contends that

ena t

not make specific findings required by the recently

c ed Prison Litigation Reform Act of 1995 and, therefore ,

Kenton

County

is

enti. tled

to

immediate

release

' from

the

prospective

relief provided by this court's July 26, 1996 amended J'ud

Kenton County' s argument is without merit.

gment.

The Prison Li·ti·gation Reform Act of 1995 provides, in part:

pTrhoe spceocutirvt e srhealilel f nuont le~r~: or app7ove any

such relief is narrowi8 e court finds that

f v l

uei. oartslhateti3r·:o-nnt rtuhosafi·nvethmeneeacFneessdsneaerracYyle

drtaown, coerxrtent ds ssrai.gryh tt,o acnodercre1.c.st

nh o ttthheee

violation of the Federal right.

1a u.s.c.A. §3626 Ca) (l.) (A) (1996). The Act further provides for

termination of prospective relief if the court fails to make such

findings. 18 u.s.c. §3626(b) (2).
The court fully complied with the PLRA in its July 26, 1996

findings of fact and conclusions of law by paraphrasing the

required findings. However, in an abundance of caution and in an

effort to avoid any misunderstanding, the court hereby amends its

July 26, 1996 findings of fact and conclusions of law to

specifically state: This court finds that the prospective relief
ordered in this case is narrowly dra~, extends no further than necessary to correct the current and ongoing violat~on _of the
1 . tiffs, Federal constitutional right to

th:ind~e process o:celsa;.; anio i~o:::ctle~:~

intrusive meansat nFederafYright. The court

violat:ion of bt~ ntial weight to any. adverse

has 91ven au.but', a safety or the oper~tion ~f a

impact on P ic

d by this relief•

criminal justiice sy~te~~a~~~ordance with the

This finding s ma e

9

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 10 of 16 PageID #:196

Prison
U.s.c.

Litigati.'on
§3626 (a} (1).

Reform

Act

of

1995,

18

THE

C O U R TO' SRDAME,, NDED

JUD~-
'-7£·~-.,1,,

IS

NOT

A

"PRISONER

RELEASE

BR WITHIN THE MEANING OF THE PLRA

Kenton County's final contention is that the court's July 26, 1996 amended judgment constitutes a ~prisoner release order" as

used in the PLRA, 18 U.S.C. §3626(a) (3). Therefore, according to

Kenton County, the order in question can be entered only by a

three-judge panel and only after a previously entered order for

less intrusive relief has failed to remedy the constitutional

deprivation. This contention is without merit.

The PLRA defines "prisoner release order" as nany order,

including a temporary restraining order or preliminary injunctive

relief, that has the purpose or effect of reducing or limiting the

prison population, or that directs the release from or nonadmission

of prisoners to a prison." 18 U.S.C.A. §3626(g) (4) (1996). This

definition must be read in conjunction with the substantive

provisions concerning prisoner release orders and in view of the

legislative history underlying those provisions. To enter a prisoner release order, under the PLRA, a three-

judge panel must find by clear and convincing evidence that: "(i)

crowding is the primary cause of the violation of a Fe~eral right;
and (ii) no other relief will ,remedy the vi~lation of the Federal right." 18 u.s.c.A. §3626(a) (3) {E) (1996). In addition, the House Judiciary committee's report provides:
subsection (a) {2): Prison population reduction relief

10

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 11 of 16 PageID #:197

To fh ilsa ss tu br s e c

t· ion

makes

prison

only if t~:ort,. permitting a c:;pto ~he. remedy

i s•

the

"pP;t'l.soner proves. 1) thate imposed

rimary" c

•

crowding

vio1 ation; and 2} tha:use of the federal

<;ure the violatio

no other remedy will

imposed in recogn!t·. These requirements are

ef;ects prisoner

of prison releases

r

~1~~nsdofantdhet

severe, he acco

adverse mpanying

e*i; *on to meet the caps .

i:a By requiring that a 1 . . .
actual violation of b·aint1ff.1nm~te prove an based on the alle const1.tut1.o~al rights

subsection will end lh overcrowding, this

imposing p ·

e current practice of

complained :;;on caps. when inmates have . d. . ut the prison conditions but the

p~esi ing ~udgE; has made absolutely no finding

o~~

unconstitutionality or even held the allegations. In ordering or

any t. 1 appro!f~g

ese caps, some judges now oversee hu

program, of releases to keep the p r ~

12opulat1.on down to whatever that · a

considers an appropriate level.

JU ge

House Committee on the Judiciary, Violent Criminal Incarceration Act of 1995, H.R. Rep. No. 21, 104th Congress, 1st session, p. 25

(1995) (emphasis added). After reviewing the substantive provisions concerning prisoner
release orders and the legislative history underlying this provision of the PLRA, it is clear that the prisoner release order provisions are directed at prison caps, i.e., orders directing the release of inmates housed in a particular institution once that institution houses more than a specific number of persons. This is

not that kind of case. In the case a t bar, the court ordered that children-- other

than those for whom the county attorney has filed a motion for

as a youthful offender--not be

transfer to Circuit Court incarcerated in t he barren KCDC for more than 15 days.

The court's

11

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 12 of 16 PageID #:198

order does not impose a cap on
the number of children incarcerated
at the KCDC- -it limits only
the amount of time in which any
particular child may be held under the substandard conditions
present in the KCDC.

In addition, the court's order does not direct the release of any child. It is undisputed that counties, including Kenton
County, often house juveniles in need of a secure facility in other

counties. In fact, such transfers from facilities in one county to

facilities in another county or even another state are extremely

common.

Indeed, the Kentucky Juvenile Code specifically

contemplates such transfers. See, ~ . KRS 605.090 and KRS

615.030. Kenton County remains free to transfer juveniles in

danger of exceeding the fifteen day limit from the KCDC to any other juvenile facility that is appropriate. Accordingly, the

court's order does not come within the prisoner release order

provision of the PLRA.

THE COMMONWEALTH DBPBNDANTS' MOTION TO ALTER OR AMEND JUDGMENT IS DENIED

Defendants Paul Patton, Governor of the Commonwealth of

Kentucky and Doug Sapp, Commissioner of the Kentucky Department of

corrections (collectively "the Commonwealth defendants#) raise

three contentions in their motion to alter or amend the court's

I
July 26 , l996 findings of fact and conclusions of law.

First, the commonwealth defendants object to the court's referring to "state" officials, contending that the County

officials

have

Prima,.,, •.z

authority

to

operate

the

detention

center.

12

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 13 of 16 PageID #:199
For purposes of cl · f • ari. ication, the court notes that "state" is used
in the section 1983 sense of off1.·c1'als acting under color of state
law and this included the Commonwealth defendants and the County
defendants. In addition, the Commonwealth defendants' objection does not affect the court's judgment in this case.
Second, the Commonwealth defendants contend that the Commissioner of the Kentucky Department of Corrections does not ~supervisen the KCDC, but they admit that the Commissioner has the authority to -monitorw and •inspectn the KCDC. This objection seems to be a simple matter of semantics and does not require any action on the part of the court. During the telephone conference concerning the motions to alter or amend judgment, counsel for the Commonwealth defendants indicated that she was concerned about the use of the word •supervise" because such supervision may have an effect on liability for the plaintiffs' attorneys' fees. As the court stated during the telephone conference, nothing in the findings of fact and conclusions of law is intended to imply a ruling concerning an attorneys' fee petition.
Finally, the Commonwealth defendants take issue with the court, s statement that the defendants have not "produced any documentary evidence that these alternatives [to complete sprinkler suppression] were considered under the Codes FSES system or that
they were ever approved by the· state fire marshal.n ~ doc. #447
at 28 . As the court specifically reserved ruling on the fire saf ety i ssue unt 1• 1 a court-appointed fire expert could be retained,
13

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 14 of 16 PageID #:200

there is no need to revisit

safety issue at this time.

the evidence surrounding the fire

Therefore I

the court bei'ng a dv.ised,

1:T IS HEREBY ORDERED as follows:

1.
judgment

That Kenton County's motion to alter, amend and vacate

(do #4s

c.

0-1) be, and it is, hereby granted as to the

determination of what juveniles are exempt from the fifteen day
limitation period. The court's July 26, 1996 findings of fact and

conclusions of law and amended judgment are hereby modified to
state:

Confining a juvenile in the Kenton County

Detention Center for an extended period of

time -- more than fifteen (15) days unless the

prosecutor has, in good faith, filed a motion

to transfer the juvenile to Circuit Court for

treatment as a youthful offender

is

punishment without due process of law.

Any statements contained in the court's July 26, 1996 findings of fact and conclusions of law or in the court's amended judgment filed that same day that are inconsistent with this statement are hereby vacated;

2. That the court's July 26, 1996 findings of fact and
conclusions of law are hereby amended to specifically state:
This court finds that the prospective relief ordered in this case is narrowly draW1!, extends no further than necessary to correct the current and ongoing violation of the plaintiffs' Federal constitutional right to the due process of law, and is the least intrusive means necessary to correct the violation of that Federal right. The court has given substantial weight to any. adverse impact on public safety or the oper~tion ~fa criminal justice system caused by this !elief. This finding is made in accordance with the
14

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 15 of 16 PageID #:201

UPr.sis.ocn.

Litigati'on §3626 (a) (1);

Reform

Act

of

1995,

18

3 · That the remainder of Kenton County's motion to alter,

amend and vacate J'udgment (d

#

oc, 450-1) be, and it is, hereby

denied;

4 • That Kenton County's motion for stay of execution of judgment (doc. #450-2) be, and it is, hereby denied as moot;
5. That the motion of defendants Governor Paul Patton and Doug Sapp to alter or amend judgment (doc. #459) be, and it is, hereby denied; and
6. That the stipulated motion for an extension of time in which to file a petition for attorneys' fees until October 15, 1996 (doc. #456) be, and it is, hereby granted.
This l{?fi: day of September, 1996.
~d)N&o-~
WLIAMO. BERTELSMAN, CHIEF JUDGE

15

Case: 1:20-cv-02094 Document #: 17-3 Filed: 04/06/20 Page 16 of 16 PageID #:202
F I L E COPY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
September 4, 1996

Case Number: 2:91-cv-00187

Barbara w. Jones

Keith D. Hardison

R. Thaddeus Keal

James M. Burd
Garry L. Edmondson

Shannon Wilber

James Bell Kimberly A. Brooks

Mark I. Soler
Joseph u. Meyer
John Jay Fossett

E. D. Klatte

Barbara D. aonar

D certificate of Mailing by

II,\~

 
 Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 1 of 47 PageID #:281

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JAMES MONEY, WILLIAM RICHARD GERALD REED, AMBER WATTERS, TEWKUNZI GREEN, DANNY LABOSETTE, CARL REED, CARL “TAY TAY” TATE, PATRICE DANIELS, and ANTHONY RODESKY, on behalf of Themselves and all similarly situated Individuals,
Petitioners, v.
ROBERT JEFFREYS,
Respondent.

)

)

)

)

)

)

)

)

)

)

No. 20 cv 2094

)

)

)

)

)

PETITIONERS’ REPLY IN SUPPORT OF THEIR PETITION FOR WRITS OF HABEAS CORPUS

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 2 of 47 PageID #:282
TABLE OF CONTENTS
Table of Authorities.........................................................................................................................3 Introduction .....................................................................................................................................7 I. Medically Vulnerable Petitioners in Subclasses 1 and 2 Require
Urgent Relief. ...........................................................................................................................8 A. Respondent’s List of Steps He Is Taking In Response to COVID-19
Demonstrates Why Petitioners Need Relief From This Court. ...........................................9 B. This Court Can and Should Order Enlargement of Custody for
Subclasses 1 and 2. ............................................................................................................12 II. Petitioners’ Eighth Amendment Claims Are Cognizable and Meritorious............................14
A. Petitioners’ Eighth Amendment Claims Are Cognizable...................................................14 B. Petitioners’ Eighth Amendment Claims Are Meritorious. .................................................17
1. Deliberate Indifference Does Not Require Petitioners To Prove Respondent Subjectively Intends to Harm Them. ..........................................................17
2. The Continued Placement of Medically Vulnerable Petitioners in Highly Dangerous Settings Where Safety and Health Standards Cannot Be Achieved Meets the Deliberate Indifference Standard .................................18
III. Petitioners’ Due Process Claims are Cognizable and Meritorious.....................................21 A. Petitioners’ Due Process Claims are Cognizable in Habeas...............................................22 B. Petitioners Have a Liberty Interest in Home Detention and Respondent has failed to Protect Petitioners’ Liberty Interests.............................................................23
IV. Representative Action is Both Permissible and Appropriate. ............................................25 A. Representative Action is Appropriate in Light of the Emergent Threat Posed by COVID-19..........................................................................................................25 B. Petitioners’ Proposed Classes Satisfy Criteria for Class Treatment...................................27 1. Petitioners Have Proffered Sufficient Evidence To Satisfy the Spirit of Rule 23. ........................................................................................................................27 2. Petitioners Meet the Commonality and Typicality Requirements of Rule 23...............................................................................................................................29 C. No Other Procedural Barrier Bars Relief for Class. .......................................................32 1. Petitioners’ Claims Are Not Successive Within the Meaning of § 2244, nor Do They Count as “First” Petitions...............................................................32
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Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 3 of 47 PageID #:283
2. Petitioners’ Request for Habeas Corpus is Timely. ........................................................34 3. This Court has Jurisdiction over Petitioners’ Claims. ....................................................35 D. Any Failure by Petitioners to Exhaust their Claims does not
Preclude Review. ...............................................................................................................36 1. Exhaustion should be Waived in Light of the Unique Threat
Posed by COVID-19 .......................................................................................................36 2. State Court Remedies Continue to be Unavailable to Petitioners...................................39 3. No other state corrective process is available to Petitioners...........................................40 4. Continued Incarceration is Tantamount to a Death Sentence, and Precluding review would be a Miscarriage of Justice. .........................................................................................41 V. Respondent’s Interpretation of the PLRA and AEDPA to Preclude Federal Review of Petitioners’ Claims Would Violate the Constitution. ............................42 A. PLRA does not apply to habeas proceedings .....................................................................43 B. Foreclosure of Federal Habeas Review Violates the Suspension Clause...........................44
2

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 4 of 47 PageID #:284
TABLE OF AUTHORITIES
28 U.S.C. § 2243 .........................................................................................................................4, 9 28 U.S.C. § 2244 ...........................................................................................................................30 28 U.S.C. § 2254 ...........................................................................................................................28 730 ILCS 5/5-8A-3........................................................................................................................20 75 ILCS 5/3-11-1...........................................................................................................................24 Aamer v. Obama, 742 F.3d 1023, (D.C. Cir. 2014) ......................................................................11 Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011) .......................................................................11 Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972)..............................................................23 Ali v. Ashcroft, 346 F.3d 873 (9th Cir 2003) .................................................................................22 Ali v. Ashcroft, 46 F.3d 873 (9th Cir. 2003) ..................................................................................32 Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978) ...................................................................................11 Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005)...............................................................................23 Bijeol v. Benson, 513 F.2d 965 (7th Cir. 1975) .............................................................................22 Billman v. Ind. Dep’t of Corr., 56 F.3d 785 (7th Cir. 1995) .........................................................14 Boumediene v. Bush, 553 U.S. 723 (2008)..............................................................................22, 40 Bousley v. United States, 523 U.S. 614 (1998)..............................................................................38 Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) ....................................31 Calderon v. Thompson, 523 U.S. 538 (1998)................................................................................38 Calley v. Callaway, 496 F.2d 701 (5th Cir. 1974)...........................................................................9 Castille v. Peoples, 489 U.S. 346 (1989).......................................................................................36 Cherek v. United States, 767 F.2d 335 (7th Cir. 1985) ...................................................................9 Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944)..........................................................................12 Cohens v. Virginia, 19 U.S. 264 (1821). .........................................................................................4 Coleman v. Thompson, 501 U.S. 722 (1991).................................................................................38 Connecticut Board of Pardons v. Dumschat, 452 U.S. 458 (1981) ..............................................20 Cook v. Rockwell Int’l Corp., 151 F.R.D. 378 (D. Colo. 1993) ....................................................27 Crowell v. Benson, 285 U.S. 22, 62 (1932) ...................................................................................40 Dixon v. County of Cook, 819 F.3d 343 (7th Cir. 2016) ...............................................................14
3

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 5 of 47 PageID #:285
DL v. D.C., 860 F.3d 713, 726 (D.C. Cir. 2017) ...........................................................................26 Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970).................................................................................34 Durbin v. Gilmore, 718 N.E.2d 292 (1999)...................................................................................35 Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ....................................................................26 Fed. R. Evid. 201 ...........................................................................................................................24 Fed. R. App. Pro. 23 ........................................................................................................................8 Felce v. Fielder, 974 F.2d 1464 (7th Cir. 1992)............................................................................19 Franco-Gonzales v. Napolitano, No. CV 10-02211 (C.D. Cal. Nov. 21, 2011) ...........................26 Geraghty v. U.S. Parole Commission, 429 F. Supp. 737 (M.D. Pa. 1977) ...................................23 Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005) .........................................................................12 Graham v. Broglin, 922 F.2d 379 (7th Cir. 1995).........................................................................19 Granberry v. Greer, 481 U.S. 129 (1987) .....................................................................................34 Gray v. Hardy, 826 F.3d 1000, (7th Cir. 2016).......................................................................14, 15 Gray-Bey v. United States, 209 F.3d 986 (7th Cir. 2000) .............................................................30 Greeno v. Daley, 414 F. 3d 645 (7th Cir. 2005 .......................................................................14, 16 Grennier v. Frank, 453 F.3d 442 (7th Cir. 2006)..........................................................................21 Hadix v. Johnson, No. 4:92-CV-110 (W.D. Mich. Oct. 29, 2002)................................................34 Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1992).......................................................................36 Harris v. Nelson, 394 U.S. 286 (1969)..........................................................................................40 Helling v. McKinney, 509 U.S. 25 (1993.......................................................................................17 In Re Bonner, 151 U.S. 242 (1894) ...............................................................................................12 In re Cain, 137 F.3d 234 (5th Cir.1998)........................................................................................29 In re Yahoo Mail Litig., 308 F.R.D. 577 (N.D. Cal. 2015) ...........................................................26 Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894 (7th Cir. 1999) ......................................................26 Jenkins v. Gramley, 8 F.3d 505 (7th Cir. 1993). .....................................................................32, 36 Kahane v. Carlson, 527 F.2d 492, 498 (2d Cir. 1975) ..................................................................12 Keeney v. Tamayo–Reyes, 504 U.S. 1 (1992)................................................................................38 Kuhlmann v. Wilson, 477 U.S. 436 (1986)....................................................................................38 Landano v. Rafferty, 970 F.2d 1230 (3d Cir. 1992) ........................................................................9 Lane v. Richards, 957 F.2d 363 (7th Cir. 1992)............................................................................36 Lippert v. Jeffreys, 1:10 CV 04603 (N.D. Ill. Nov. 14, 2018).......................................................35
4

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 6 of 47 PageID #:286
Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981)..........................................................................34 Luna v. Holder, 637 F.3d 85 (2d Cir. 2011)..................................................................................41 Magwood v. Patterson, 561 U.S. 320 (2010). ...............................................................................28 Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)....................................................................................9 McCleskey v. Zant, 499 U.S. 467 (1991).......................................................................................38 McQuiggins v. Perkins, 569 U.S. 383 (2013)................................................................................38 Montgomery v. Anderson, 262 F.3d 641 (7th Cir. 2001)...............................................................19 Moran v. Sondalle, 218 F.3d 647 (7th Cir. 2000) .........................................................................40 Murphy v. Raoul, 380 F.Supp.3d 731 (N.D. Ill. 2019) .................................................................19 Nelson v. Campbell, 541 U.S. 637 (2004) .......................................................................................4 Oden v. True, No. 19-cv-10009, 2019 WL 6117740 (S.D. Ill. Nov. 18, 2019). ...........................19 Olim v. Wakinekona, 461 U.S. 238 (1983)....................................................................................19 O'Neal v. McAninch, 513 U.S. 432 (1995)....................................................................................40 Oshana v. Coca-Cola, Co., 472 F.3d 506, 514 (7th Cir. 2006).....................................................27 People ex rel. Alvarez v. Howard, 72 N.E.3d 346 (Ill. 2017) .......................................................35 People ex rel. Birkett v. Konetski, 233 Ill. 2d 185 (2009) .............................................................35 People ex rel. Senko v. Meersman, 980 N.E.2d 1115 (Ill. 2012) ..................................................35 Petties v. Carter, 836 F.3d 722 (7th Cir. 2016).............................................................................15 Phipps v. Sheriff of Cook Ctny., 249 FRD 298 (N.D. Ill. 2008)....................................................27 Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) ....................................................................passim Rench v. TD Bank, N.A., 2018 WL 264121 (S.D. Ill. Jan. 2, 2018) ..............................................26 Reno v. Flores, 507 U.S. 292 (1993) .............................................................................................22 Robert L. Meinders D.C., Ltd v. Emery Wilson Corp., 2016 WL 3402621 (S.D. Ill. June 21,
2016) ..........................................................................................................................................26 Robinson v. Sherrod, 631 F.3d 839 (7th Cir. 2011) ........................................................................4 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010)......................................................................26 Sawyer v. Whitley, 505 U.S. 333 (1992)........................................................................................37 Sceifers v. Trigg, 46 F.3d 701(7th Cir. 1995)................................................................................36 Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994)..........................................................................16 Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000), ..........................................................................16 Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003).......................................................................29
5

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 7 of 47 PageID #:287
Spano v. The Boeing Co., 633 F.3d 574 (7th Cir. 2011) ...............................................................26 Taylor v. Edgar, 52 F. App'x 825, (7th Cir. 2002). .......................................................................19 Thompson v. Choinski, 525 F.3d 205 (2d. Cir. 2008)....................................................................11 U.S. ex rel. Green v. Peters, 153 F.R.D. 615 (N.D. Ill. 1994).......................................................22 U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218 (7th Cir. 1976); .................................................22, 32 United States v. DeLeon, 444 F.3d 41 (1st Cir. 2006)...................................................................11 Valona v. U.S., 138 F.3d 693 (7th Cir. 1998)................................................................................29 Vance v. Peters, 97 F.3d 987 (7th Cir. 1996) ................................................................................14 Vitek v. Jones, 445 U.S. 480 (1980) ..............................................................................................20 Wales v. Whitney, 114 U.S. 564 (1885).........................................................................................31 Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000)..........................................................................29 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)...................................................................26 Williams v. Lane, 851 F.2d 867 (7th Cir. 1988) ............................................................................19 Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) ...........................................11 Young v. Cnty of Cook, No. 06 C 552 (N.D. Ill. Apr. 25, 2007) ...................................................27
6

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 8 of 47 PageID #:288
I. Introduction
While over 36,000 people sit trapped in concrete cells, completely at the mercy of a deadly and contagious virus that medical science is powerless to stop, Respondent obfuscates, deflects, and otherwise dodges his constitutional responsibility to address the unprecedented threat posed by COVID-19 to incarcerated peoples. While states around the country and countries around the globe empty their prisons to help reduce the pace and severity of the COVID-19 outbreak, Respondent attempts to block every possible avenue available or Illinois’ prisoners to challenge their continued incarceration as creating an undue risk of harm. But Respondent’s arguments are not even internally coherent: Respondent argues that Petitioners’ Eighth Amendment claim for release under the is “not a cognizable habeas claim,” (Doc. 18, Response, at 17), while simultaneously arguing that “habeas is the proper remedy” for prisoners who seek “a quantum change in the level of custody.” Money v. Pritzker, 20 C 2093, Doc. 26, at 19. Respondent cannot have it both ways—habeas is either a proper vehicle for release claims or it is not.
More fundamentally, Petitioners’ legal claims are not an either-or proposition; the Supreme Court has repeatedly recognized that in limited circumstances, claims for relief can be cognizable in both habeas and in Section 1983. Nelson v. Campbell, 541 U.S. 637, 638 (2004) (observing that some “civil rights damages actions . . . fall at the margins of habeas,” so some civil rights actions and writs of habeas corpus may be coextensive)); see also Robinson v. Sherrod, 631 F.3d 839, 840 (7th Cir. 2011) (“We noted in Glaus that the Supreme Court had ‘left the door open a crack’ for prisoners to use habeas corpus to challenge a condition of confinement.’”); see also Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000) (observing of the
7

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 9 of 47 PageID #:289
distinction between Section 1983 and habeas claims, that “[l]egal rules cause diffraction at the edges.”). As discussed at greater length in Section V, Respondent’s converse arguments—that AEDPA and the PLRA effectively preclude this Court from reaching the merits of Petitioner's claims in either a habeas or civil action—would amount to an unconstitutional suspension of the writ.
This Court must act expeditiously. Congress has explicitly given federal judges jurisdiction: the habeas statute authorizes federal courts to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243. Federal courts have “no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. 264, 404 (1821). In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law. Never before has there been such an urgent need for this Court to exercise its equitable powers; COVID-19 poses a threat utterly unparalleled in the modern era. It has shut down entire countries, has brought the greatest economies in the world to their knees, and spreads rapidly and silently.
I. Medically Vulnerable Petitioners in Subclasses 1 and 2 Require Urgent Relief. Respondent argues that it has taken steps to both release and protect prisoners in Illinois’s
Department of Corrections, including prisoners who are especially vulnerable to COVID-19 due to underlying medical condition or age. Respondent’s efforts have done nothing whatsoever to protect thousands of people within Subclasses 1 and 2, underscoring the need for relief from this Court.
8

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 10 of 47 PageID #:290
A. Respondent’s List of Steps He Is Taking In Response to COVID-19 Demonstrates Why Petitioners Need Relief From This Court.
Respondent asks the Court to take judicial notice of a long series of bullet points which he claims demonstrate that IDOC is acting “quickly and aggressively to combat COVID-19.” Doc. 18, Response, at 6-9. While Petitioners acknowledge that Respondent is taking many of the actions listed, Respondents are simply not moving quickly or broadly enough to protect Petitioners from the high risk of serious (and possibly fatal) harm they face as COVID-19 spreads through the prison system. The fact is that—by his own admission— Respondent has only transferred a grand total of 515 prisoners1 using all of the tools he has available. This represents less than 2% of the prison population.
In the meantime, the number of confirmed COVID-19 cases among IDOC prisoners has mushroomed from zero cases on March 25 to 101 cases on April 6, 2020, and the rate of increase continues to climb; the very day Respondents filed their brief, the number of confirmed cases among prisoners skyrocketed from 62 to 101, by far the largest increase to date. None of this is surprising, as defendants themselves have acknowledged. At this rate, by next week, the number of new confirmed COVID-19 cases will outpace the number of releases. What the Respondent’s list of “actions” demonstrates is not that he is acting expeditiously to protect Petitioners, but rather that the intervention of this Court is necessary to prod Respondent to act more quickly, to prevent a looming humanitarian disaster in our prisons of unprecedented proportions. The graph
1 Respondent also suggests that IDOC has released ,075 people as a result of COVID-19, but that is misleading. Respondent bases this figure on the drop in the total prison population from March 2 through April 6 (Doc. 18 at 7). But most of this drop reflects the natural fluctuation in prison population as new prisoners arrive and old prisoners are released in the ordinary course. This natural fluctuation has resulted in a steady drop in the prison population from 37,563 in early January to 36,384 in early April. This drop had nothing to do with Respondent’s actions. Rather, it reflects fewer arrests by police, prosecutions by States Attorneys, and sentences imposed by judges statewide.
9

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 11 of 47 PageID #:291 below reflects IDOC’s reported cases from Stateville alone over the past several days, portending a bleak future.
According to the New York Times, the Cook County Jail stands out as the number one largest known cluster of COVID-19 cases in the entire United States, with Stateville Correctional Center coming in at number 12 on the list. See Ex. A (Coronavirus in the US: Latest Map and Case Count, New York Times, visited April 8, 2020).
Many of Respondent’s assertions about the efforts being taken to address the risk posed by COVID-19 are vague, misleading, or overstated, and certainly not susceptible to being judicially noticed. The most glaring example is Respondent’s assertion that the Prisoner Review Board continues to hold hearings on alleged parole violations (Doc. 18 at 15). In fact, the PRB canceled its parole revocation hearings at Stateville last week and has provided no information about whether those hearings will be rescheduled. See Ex. B (Adam Kaney declaration). Stateville is where the vast majority of parolees are held pending their hearings. This
10

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 12 of 47 PageID #:292
cancellation meant that scores of parolees are confined to IDOC based solely on allegations, without any determination of whether those allegations are true, and even if true, whether the violations are sufficiently serious to warrant revocation of parole. These individuals now face a serious risk of harm solely because the IDOC chose not to provide them with a hearing. This is exactly what deliberate indifference looks like.
More generally, Respondent fails to provide the Court with adequate details regarding his alleged efforts to protect the Petitioners stuck inside IDOC’s prisons. Respondent provides no detail as to how many people have been released using each of the mechanisms he discusses, what criteria he is applying, how many people are reviewing prisoners, how many prisoners are in the pool of people they are reviewing, how that pool was selected, or how long they expect the process to take and whether there is any prospect that the rate of release will increase over the next few days. He also provides no explanation for why people like named Petitioner William Richard are still in IDOC custody—an extremely medically vulnerable person, very near the end of his sentence, with a safe home waiting for him in the community. Without these details, Respondent’s list amounts to a collection of the mechanisms he could use to protect members of the putative class from harm, rather than evidence that he actually is protecting them.
Respondent has legal tools at his disposal to protect Petitioners from serious risk of harm. But his laundry list of tools, coupled with the paucity of results, demonstrates a desperate need for the Court to intervene here and require the Respondent to actually use these tools to protect as many Petitioners as possible—and particularly the members of Subclasses 1 and 2—before it is too late.
11

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 13 of 47 PageID #:293
B. This Court Can and Should Order Enlargement of Custody for Subclasses 1 and 2.
Petitioners need emergency relief now, not after full briefing and argument on the merits. The rapid spread of COVID-19 within Illinois prisons means that medically vulnerable prisoners in all IDOC facilities are facing imminent risk of death or serious injury. The COVID-19 crisis is incompatible with generous briefing deadlines or the reasoned and deliberate consideration that Petitioners’ claims would traditionally warrant. Given the emergency nature of Petitioners’ request, and the deadly and imminent threat posed by COVID-19, it is appropriate for this Court to use “enlargement” to extend the custody of these Subclasses 1 and 2 to home confinement while this Court considers the merits of Petitioners’ claims.
Analogous to a preliminary injunction, enlargement allows this Court to provide appropriate interim relief while the case progresses. Enlargement is a provisional remedy, akin to bail, that judges may order in the context of a pending habeas petition. Ex. C, Declaration of Prof. Judith Resnik. at ¶ 31. Federal Rule of Appellate Procedure 23 provides that, “[w]hile a decision not to release a prisoner is under review,” the district court judge rendering the decision (or the appellate court) may order that the prisoner be “detained in other appropriate custody” or “released on personal recognizance, with or without surety.” FRAP 23. The habeas statute also authorizes such a use of power by permitting judges to decide “as law and justice requires.” 28 U.S.C. § 2243. Enlargement allows for the release or transfer of prisoners to lesser forms of custody during the pendency of their petitions, but it does not require the district court to issue a release order that is subject to the strictures of the PLRA. Resnik Decl. at ¶¶ 31-33.
Where, as here, Petitioners have a high likelihood of success on the merits, enlargement of custody is appropriate where “necessary to make the habeas remedy effective.” See Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (quoting Calley v. Callaway, 496 F.2d 701, 702
12

Case: 1:20-cv-02094 Document #: 24 Filed: 04/08/20 Page 14 of 47 PageID #:294
(5th Cir. 1974)). The Seventh Circuit has explicitly condoned the use of enlargement. See Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985) (noting that there “there is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their cases”).
Petitioners seeking enlargement of custody must show “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Here, there can be no doubt that COVID-19 presents an “extraordinary circumstance”—never before have Illinois prisons faced such a pandemic, or the possibility of such serious and widespread illness and death within their walls. Likewise, Petitioners’ Eighth Amendment claim based on this serious risk of harm is substantial. And for medically vulnerable Petitioners in Subclasses 1 and 2, temporary transfer to home or other location outside of the prison walls is the only remedy sufficient to protect them from potential death from COVID-19.
Given the nature of this pandemic, every minute, hour, and day of inaction can have profound consequences. See, e.g., J. David Goodman, How Delays and Unheeded Warnings Hindered New York’s Virus Flight, N.Y. Times (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/nyregion/new-york-coronavirus-response-delays.html (indicating that by delaying public health responses by a week or two, New York officials may have increased the COVID-19 death toll by “50 to 80%”). Given the complexity of the legal issues raised in the hundreds of pages of briefing already filed in these actions, Petitioners urge this court to consider provisional remedies, including enlargement of custody for medically vulnerable Petitioners, to assure the safety of these individuals as soon as possible. Even if this Court is not prepared to immediately reach the merits of their claims, Petitioners ask the court to
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allow medically vulnerable prisoners to safely quarantine at home or in another setting outside of Illinois prisons until the threat of COVID-19 has passed.
II. Petitioners’ Eighth Amendment Claims Are Cognizable and Meritorious.
Based on an incorrect interpretation of Seventh Circuit and Supreme Court law, the Respondent argues that Petitioners’ urgent Eighth Amendment claims are neither cognizable nor meritorious. Both arguments are without merit and should be rejected.
A. Petitioners’ Eighth Amendment Claims Are Cognizable.
Petitioners’ Eighth Amendment claims are cognizable habeas claims. Respondent’s disingenuous arguments to the contrary notwithstanding, the Supreme Court has recognized that, in limited circumstances, writs of habeas corpus may be used to challenge conditions of confinement that violate the Eighth Amendment. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (noting that cognizability under Section 1983 does not preclude habeas corpus relief). In Preiser, the Supreme Court made a distinction between claims that challenge the fact of confinement (or duration of confinement) and those that do not, noting that claims that “seek[] immediate release or a speedier release from that confinement [are] the heart of habeas corpus.” Id. at 498. The Preiser court recognized that although challenges to the conditions of confinement are generally actionable under a civil rights lawsuit, they may also give rise to a habeas claim “[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody.” Id. at 499.
Here, Petitioners do not seek damages or an interim remedy to unconstitutional conditions; rather, they challenge the fact and duration of their confinement—only immediate
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placement out of the correctional setting is sufficient to keep them safe and satisfy the Eighth Amendment’s prohibition on cruel and unusual punishment. Federal courts have repeatedly read Preiser as allowing such challenges to sound in habeas. See Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (petitioners could challenge conditions of confinement in habeas, noting that “[h]abeas is not a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose.”) (quotations omitted); see also Adams v. Bradshaw, 644 F.3d 481, 482–83 (6th Cir. 2011) (holding that a state prisoner's Eighth Amendment challenge to the state of Ohio's lethal injection procedures could be brought in habeas); Thompson v. Choinski, 525 F.3d 205, 209 (2d. Cir. 2008) (“This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as the ... type of detention and prison conditions.”) (internal quotation marks omitted); United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”); Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 242 & n. 5 (3d Cir. 2005) (holding that prisoner’s challenge to regulations limiting opportunity for placement in community confinement could proceed by way of habeas corpus “even if what is at issue…is ‘conditions of confinement’”); Ali v. Gibson, 572 F.2d 971, 975 n.8 (3d Cir. 1978) (“At most [petitioner's] claims rise to a possible habeas attack on the conditions of confinement, cognizable in a federal habeas action only in extreme cases.”); Kahane v. Carlson, 527 F.2d 492, 498 (2d Cir. 1975) (Friendly, J., concurring) (contending that section 2241 would furnish “a wholly adequate remedy” for a federal prisoner who sought orders requiring prison officials to accommodate his First Amendment right to free exercise of religion); Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944) (citing In Re Bonner, 151 U.S. 242 (1894)) (“Any unlawful restraint of personal liberty may be inquired into on habeas corpus.”).
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Even the Seventh Circuit’s reading of Preiser, which is narrower than that of other circuits, recognizes that an Eighth Amendment claim can be cognizable in habeas. Here, uniquely, Petitioners’ Eighth Amendment claims can only be remedied through release from confinement. As the Respondent acknowledges in their response to Petitioners’ related Section 1983 action, “[t]here is no question that COVID-19 poses unprecedented risks to the health of all citizens, including prisoners,” Deft. Opp. 1983, at 8, and that socially distancing is the only known mechanism for reducing infection. In Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005), the Seventh Circuit has explicitly recognized that the Eighth Amendment can give rise to a habeas claim when the only way to remedy a constitutional isolation is release, such as when a public health catastrophe makes social distancing the only mechanism to protect life. Id. at 387 (recognizing that the Presier Court “left open the possibility that litigants could use writs of habeas corpus” to challenge unconstitutional prison conditions) (citing Preiser, 411 U.S. at 499). Although the Glaus court found that no such circumstance had yet occured to warrant release as a remedy for an Eighth Amendment violation, “because COVID19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement.” See Resnik Decl. at ¶26. For that reason, “COVID-19 claims collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished. Therefore COVID-19 claims ought to be cognizable under both provisions.” Resnik Decl. at ¶26.
Rather than precluding habeas relief for Eighth Amendment claims outright, the Seventh Circuit’s Preiser jurisprudence merely recognizes the narrowness of that relief; habeas relief is only available when petitioners “challeng[e] the fact or duration of his physical confinement itself, and…seek[] immediate release or a speedier release from that confinement—the heart of
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habeas corpus.” Preiser, 411 U.S. at 498. If a petitioner is “put under additional and unconstitutional restraints during his lawful custody,” such as irremediable threat of exposure to a deadly and highly contagious pathogen, “habeas corpus will lie to remove the restraints making the custody illegal.” Id. at 499. Petitioners’ narrow challenges to conditions of confinement, which explicitly seek release from the correctional setting, is precisely the exceptional case envisioned by Glaus. All parties agree that the threat posed by COVID-19 in the congregate prison setting is unique, unlike any threat faced by correctional officials in the modern era, and that release is the only way to meaningfully protect medically vulnerable Petitioners from the substantial risk of deadly infection through other means. Petitioners’ request for relief—-release as the only mechanism to redress an ongoing and unfixable constitutional violation—-is not only cognizable, but it goes to the heart of habeas corpus.
B. Petitioners’ Eighth Amendment Claims Are Meritorious.
Respondent argues that Petitioners’ Eighth Amendment claims are neither cognizable nor meritorious. Respondent’s arguments are without merit and should be rejected.
1. Deliberate Indifference Does Not Require Petitioners to Prove Respondent Subjectively Intends to Harm Them.
Petitioners’ confinement violates the Eighth Amendment when it creates an objectively serious risk of harm and prison officials act with deliberate indifference to that risk. Greeno v. Daley, 414 F. 3d 645, 653 (7th Cir. 2005); see also Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016). There is no dispute in this case about the objectively serious risks posed by COVID-19 to those in custody—particularly Subclasses 1 and 2 who are medically vulnerable due to age or medical condition. Likewise, there is no dispute as to Respondent's awareness of that risk.
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Respondent instead contends that Petitioners claim amounts to a “mere disagreement” about the appropriate response. Doc. 18, Response, at 36. But there is virtually no disagreement about the appropriate action here: those who are medically vulnerable must be transferred to a place where they can self-isolate. The Governor’s April 6 Executive Order demonstrates his awareness of—and agreement with—this fact. Ex. D, Executive Order 2020-19. Leaving prisoners locked in small cells, often with cellmates, in congregate settings where they cannot engage in social distancing and must rely on staff for all aspects of daily life is, in the era of COVID-19, akin to leaving them in a cell with a cobra. As the Seventh Circuit has stated, if prison officials place a prisoner in a cell when “they know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate indifference.” Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995).
Notably, deliberate indifference in the § 1983 context does not require plaintiffs to prove that Respondent intends them harm, or even know that harm is a certain result. Dixon v. County of Cook, 819 F.3d 343, 350 (7th Cir. 2016); Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) . The test instead requires a showing that the Respondent is actually aware of and disregarded an obvious risk to the Petitioner’s health or safety. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016).
2. The Continued Placement of Medically Vulnerable Petitioners in Highly Dangerous Settings Where Safety and Health Standards Cannot Be Achieved Meets the Deliberate Indifference Standard
Respondent argues that he cannot possibly be deliberately indifferent to Petitioners’ risk of harm from COVID-19—the subjective component of the deliberate indifference analysis— because the Department has begun to review and furlough or transfer a very small number of prisoners. Doc. 18, Def’s Response, at 6, 34 (citing release of less than 2% of prison population).
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But Respondent’s contention that IDOC is taking some small action does not defeat Petitioners’ claims of deliberate indifference when, by IDOC’s own admission, such action has not meaningfully reduced the number of prisoners who in Subclasses 1 and 2 who remain incarcerated, at great risk to their lives and safety, because of the IDOC’s inability to implement CDC Guidance. See Gray v. Hardy, 826 F.3d 1000, 1009 (7th Cir. 2016) (“[k]nowingly persisting in an approach that does not make a dent in the problem is evidence from which a jury could infer deliberate indifference”).
Indeed, the Director of the Illinois Department of Public Health admitted that congregate settings, including Illinois prisons, “pose unique challenges in stopping the spread of disease and protecting the health of individuals who live and work there. Those who are incarcerated obviously live and work and eat and study and recreate all within that same environment, heightening the potential for COVID-19 to spread really quickly once it’s introduced.” Dr. Ngozi Ezike, IDPH, COVID-19 Press Update, (Mar. 30, 2020), available at http://www.dph.illinois.gov/topics-services/diseases-and-conditions/diseases-a-zlist/coronavirus/media-publications/daily-press-briefings. Not only that, but Illinois prisons do not have the celling capability to quarantine sick individuals or isolate vulnerable ones. Id. The Governor’s own order expanding the use of Medical Furlough demonstrates his understanding that reducing the prison population is the only reasonable action to reduce the risk of harm to Petitioners. And, yet, Respondent has re-located only a small percentage of class members, leaving thousands more in need of an urgent response.
Petitioners are essentially “sitting ducks,” with terms of incarcerations that risk becoming unlawful death sentences if Respondent does not change course to expedite and substantially increase the relocation processes. By doing so, Respondent is “persist[ing] in a course of
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treatment known to be ineffective.” Petties, 836 F.3d at 730. See also Gray, 826 F.3d at 1009; Sellers v. Henman, 41 F.3d 1100, 1103 (7th Cir. 1994) (“The more negligent acts they commit in a circumscribed interval, the likelier it is that they know they are creating some risk, and if the negligence is sufficiently widespread relative to the prison population the cumulative risk to an individual prisoner may be excessive”).
The fact that Respondent is handing out more soap than before and has released a small number of people—but not the Petitioners here (or the many more who are similarly in high risk groups)—does not absolve the Department. These actions are simply insufficient to quell the threat of substantial harm and are akin to continuing ineffective course of medical treatment. Petties, 836 F.3d at 729-30. Continuation of these inadequate efforts is analogous to giving aspirin to the patient at risk of appendicitis and returning him to his cell, Sherrod v. Lingle, 223 F.3d 605, 612 (7th Cir. 2000), or continuing to treat severe vomiting with antacids over three years, Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005). Petties, 836 F.3d at 730.
3. The Court Need Not, and Cannot, Wait for the Named Plaintiffs to Test Positive for COVID-19 to Act.
The named Petitioners do not need to wait until one of them contracts COVID-19 to state a claim under the Eighth Amendment. Petitioners’ age and pre-existing medical conditions put them at risk of death or serious injury if they contract COVID-19. Petitioner William Richard is 66 years old and has COPD, emphysema, and heart disease. Amber Watters has neurological impairments from a back injury. Gerald Reed is 57, has heart failure and hypertension, and is pre-diabetic. Tewkunzi Green has asthma and severe hypertension. Danny Labosette is 56 years old, a double amputee, and has untreated Hepatitis C. Carl “Tay Tay” Tate has hypertension and severe anxiety that is exacerbated by the current pandemic. Indeed, waiting until these Petitioners already are infected would be too late to avoid death or serious injury to them. See
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Thakker v. Doll, 20 C 0480, Doc. 47 at *5-6 (M.D.P.A. Mar. 31, 2020) (rejecting argument that medically vulnerable prisoners lacked standing because they had not yet contracted COVID-19).
It is well established that an Eight Amendment claim can be founded upon risk of future harm, especially where the harm is certain and imminent. In Helling, a plaintiff alleged that he was assigned to a cell with another inmate who smoked five packs of cigarettes per day. Helling v. McKinney, 509 U.S. 25, 28 (1993). At issue was whether this exposure to environmental tobacco smoke (ETS) could constitute a valid claim under the Eighth Amendment, even though the plaintiff had not yet suffered harm. Id. at 30. The Supreme Court upheld the decision of the Court of Appeals, finding that the plaintiff stated “a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.” Id. at 35.
It is widely understood that COVID-19 is a highly contagious disease that spreads rapidly in congregate settings—indeed it is the entire basis for the Governor’s currently-pending shelterin-place order. The fact that the individual named plaintiffs do not yet have COVID-19 does mean they are not at imminent risk of serious harm, and therefore does not defeat their Eighth Amendment claim. III. Petitioners’ Due Process Claims are Cognizable and Meritorious.
Next, Respondent argues that Petitioners’ due process claims are neither cognizable nor meritorious. Respondent’s arguments are without merit, and should be rejected.
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A. Petitioners’ Due Process Claims are Cognizable in Habeas.
Petitioners’ due process claim goes to the duration of their confinement, an issue that is at the core of habeas corpus. Preiser, 411 U.S. at 487-88 (challenge to the procedures for awarding good time credit went to the duration of confinement, at the core of habeas proceedings).
First, Respondent argues that Petitioners’ claims are not cognizable because home detention does not amount to release for purposes of habeas. Their argument—that home detention does not amount to a significant enough change in confinement to give rise to a habeas claims—flies in the face of arguments Respondents make throughout their Opposition to the TRO in Petitioners’ related § 1983 suit. See Money v. Pritzker, 20 C 2093, Doc. 26, at 7, 8, 22 (arguing that “[b]y seeking immediate release from prison, plaintiffs are seeking the kind of quantum change that is not allowed [in a § 1983 action]”; arguing that “the Court’s order would qualify as a prisoner release order” and is therefore barred by the PLRA; and arguing that by seeking “immediate release from prison, whether through medical furlough, home detention, or a shortening of their sentences”, “[p]laintiffs are therefore challenging the fact of their confinement, rather than any conditions that have been imposed, and such claims are not cognizable under § 1983.” (emphasis added)).
There is no question that home detention represents a “quantum change in the level of custody” making habeas corpus a proper vehicle for pursuing this relief. See Graham v. Broglin, 922 F.2d 379, at 381 (7th Cir. 1995). In Graham, the Seventh Circuit ruled that an action is cognizable in habeas if the prisoner seeks a “quantum change in the level of custody—whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation.” Id. By contrast, claims in which the prisoner is merely “seeking a different program or location or environment,” such as work release, did not represent a quantum change
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in custody because “[t]he prisoner remains confined, but instead of spending the daytime hours working in a prison factory, he works in a factory outside the prison.” Id; see e.g., Oden v. True, No. 19-cv-10009-SMY, 2019 WL 6117740, at *5-6 (S.D. Ill. Nov. 18, 2019). Graham does not control here, where Petitioners seek an order removing them from the correctional setting entirely.
B. Petitioners Have a Liberty Interest in Home Detention and Respondent has failed to Protect Petitioners’ Liberty Interests
Next, Respondent incorrectly argues that Petitioners do not have a liberty interest in Illinois’ Home Detention Law. The courts have long recognized that “a cognizable liberty interest may arise from the Constitution, statutes, or regulations.” See., e.g., Murphy v. Raoul, 380 F.Supp.3d 731, 760 (N.D. Ill. 2019) (citing Felce v. Fielder, 974 F.2d 1464, 1488 (7th Cir. 1992) (citations omitted); Williams v. Lane, 851 F.2d 867, 879-80 (7th Cir. 1988) (collecting cases)). If the language and structure of the statutes in question create an expectancy of release, they create a liberty interest. See Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001); Taylor v. Edgar, 52 F. App'x 825, 826–27 (7th Cir. 2002). Moreover, here, Illinois created a protected liberty interest by placing substantive limitations on official discretion. Olim v. Wakinekona, 461 U.S. 238, 249 (1983). To demonstrate a protected liberty interest, Petitioners must show “that particularized standards or criteria guide the State’s decisionmakers.” Id. (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J., concurring). No liberty interest is created if the State “can deny the requested relief for any constitutionally permissible reason or for no reason at all.” Connecticut Board of Pardons, 452 U.S. at 466–467. But Petitioners do have a liberty interest if the State is “required to base its decisions on objective and defined criteria.” Id.; see also Vitek v. Jones, 445 U.S. 480, at 488– 491 (1980) (summarizing cases).
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Here, there is no question that the Home Detention Law creates a constitutionally protected liberty interest, one that sets forth particularized standards or criteria to guide the State's decision-makers. The Home Detention Law orders the Department of Corrections to issue administrative directives. 730 ILCS 5/5-8A-3(e) (“A person serving a sentence for conviction of a Class 2, 3, or 4 felony offense which is not an excluded offense may be placed in an electronic monitoring or home detention program pursuant to Department administrative directives.”). It requires that those directives reward specific criteria, including good behavior and program participation. Id. (“These directives shall encourage inmates to apply for electronic detention to incentivize positive behavior and program participation prior to and following their return to the community.” (emphasis added)). The law prohibits Respondents from denying application for home detention based solely on specific factors like prior criminal history. Id. These directives shall not prohibit application solely for prior mandatory supervised release violation history, outstanding municipal warrants, current security classification, and prior criminal history” (emphasis added)).
Illinois’s Home Detention Law stands in stark contrast to the law at issue in Olim, where no liberty interest did attach to Hawaii’s rules—or lack thereof—governing transfers between facilities. There, unlike here, “the prison administrator's discretion to transfer an inmate is completely unfettered. No standards govern or restrict the administrator's determination.” Olim, 261 U.S. at 249. The other cases cited by Respondent are inapposite. See e.g., Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006) (recognizing liberty interest in prisoner’s “presumptive” entitlement to parole after two-thirds of their sentences). Here, because the legislature created a mandatory statutory scheme, the question before this Court is whether Respondent has implemented a constitutionally sufficient process to protect that liberty interest
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has been created. See Murphy, 380 F.Supp.3d at 760 (“The procedural due process inquiry typically entails two steps: (1) whether the person has a protected life, liberty, or property interest; and (2) if so, what process is then due.”).
There is no question that Respondents have not taken steps to protect Petitioners’ liberty interest. Respondent has deprived Petitioners of home detention arbitrarily, having articulated none of the administrative directives required by statute. Respondent does not identify a single step he has taken to protect Petitioners’ liberty interest in this case. Respondent argues that Petitioners’ due process argument must fail because Respondent “has released approximately 500 prisoners through various forms of sentencing credit, restoration of civil credit and electronic home detention.” Doc. 18, Response, at 34. That Respondent has released some people via unrelated mechanisms does nothing to satisfy Petitioners’ Due Process rights here. Pursuant to 730 ILCS 5/5-8A-3, eligible petitioners are entitled to release on home detention.
IV. Representative Action is Both Permissible and Appropriate.
Next, Respondent argues that a representative petition is not an appropriate vehicle for a habeas claim, and that such a vehicle raises timeliness and jurisdictional concerns. Respondent’s arguments are without merit.
A. Representative Action is Appropriate in Light of the Emergent Threat Posed by COVID-19.
Representative habeas claims are well established and have been the vehicle for some of the most important cases in modern habeas doctrine. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008) (federal habeas class action on behalf of Guantanamo detainees); Rasul v. Bush, 542 U.S. 466 (2004) (same). More recently, representative habeas petitions have been brought successfully on behalf of classes of incarcerated petitioners to challenge similar circumstances
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created by the COVID-19 pandemic. See Thakker v. Doll, 20 C 0480, Doc. 47 (M.D.P.A. Mar. 31, 2020 ) at 5-6 (finding that habeas corpus petition was the proper vehicle for class of detainees to challenge risk of harm posed by COVID-19 on behalf of themselves and other detainees similarly situated); Basank v. Decker, 20 C 2518, Doc. 11 (S.D.N.Y. Mar. 26, 2020) at 11-12 (finding that medically vulnerable immigration detainees were likely to succeed on the merits of their class petition for habeas corpus requesting immediate release from ICE custody due to COVID-19 threat under Section 2241).
Even before the COVID-19 pandemic, class action habeas petitions have been authorized where principles of judicial economy favored resolution of the legal claims in one legal action rather than hundreds or thousands of individual petitions. See Bijeol v. Benson, 513 F.2d 965, 967 (7th Cir. 1975); see also Reno v. Flores, 507 U.S. 292 (1993) (class action seeking relief pursuant to 28 U.S.C. § 2241); U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Cir. 1976); Ali v. Ashcroft, 346 F.3d 873, 889-91 (9th Cir 2003) (holding that the district court did not exceed its habeas jurisdiction in certifying a nationwide habeas class), withdrawn and amended on other grounds on reh'g; Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005). See also Geraghty v. U.S. Parole Commission, 429 F. Supp. 737, 740 (M.D. Pa. 1977) (noting that “procedures analogous to a class action have been fashioned in habeas corpus actions where necessary and appropriate”); U.S. ex rel. Green v. Peters, 153 F.R.D. 615, 617 (N.D. Ill. 1994) (granting class certification in habeas context, noting that “the obvious undesirability of a large number of individual petitioners clamoring for preference in the allocation of scarce resources... counsels strongly in favor of certification”); Adderly v. Wainwright, 58 F.R.D. 389, 400 (M.D. Fla. 1972) (finding that class certification in state prisoners’ habeas action was appropriate to
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ensure that the writ was “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected”) (internal citations omitted).
Although Petitioners right to bring a representative habeas claim is well established, it bears emphasizing the efficiencies of such a measure. Here, the sheer urgency of the COVID-19 pandemic makes it impossible for each individual petitioner to file their own habeas corpus petition to vindicate their federal and constitutional rights and protect their own lives.
B. Petitioners’ Proposed Classes Satisfy Criteria for Class Treatment.
While Rule 23 does not strictly apply to class habeas petitions, courts look to Rule 23 requirements as common sense guidelines to determine whether a representative class is appropriate. U.S. ex rel. Green, 153 F.R.D. at 618. That said, a petition “need not comply precisely with Rule 23 prerequisites in order to be found appropriate for such certification.” Id. For the reasons already articulated in Petitioners’ opening brief, the proposed Petitioner subclasses easily satisfy Rule 23’s guidelines requiring numerosity, common questions of law or fact, typicality of claims or defenses, and adequacy of representation.
1. Petitioners Have Proffered Sufficient Evidence To Satisfy the Spirit of Rule 23.
Subclass 1 is defined as “people who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19, including but not limited to people with respiratory conditions including chronic lung disease or moderate to severe asthma; people with heart disease or other heart conditions; people who are immunocompromised as a result of cancer, HIV/AIDS, or any other condition or related to treatment for a medical condition; people with chronic liver or kidney disease or renal failure (including hepatitis and
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dialysis patients); people with diabetes, epilepsy, hypertension, blood disorders (including sickle cell disease), inherited metabolic disorders; people who have had or are at risk of stroke; and people with any other condition specifically identified by CDC either now or in the future as being a particular risk for severe illness and/or death caused by COVID-19, and who are eligible for medical furlough pursuant to 75 ILCS 5/3-11-1.” Subclass 2 is comprised of people who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 75 ILCS 5/3-11-1.
In support of their request to proceed through a representative action, Petitioners request that the Court take judicial notice of a number of well-established facts, specifically: (1) World Health Organization data demonstrating people in these subclasses have a significantly increased chance of dying if they contract COVID-19; (2) United States Department of Justice data regarding the increased prevalence of medical vulnerabilities among people in prison; and (3) the IDOC’s own data establishing that there are 4,807 people in its custody who are 55 or older. See Fed. R. Evid. 201 (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”).
Declarations from families of putative class members are attached to this filing describing the the health conditions of named class members, including cancer, diabetes, Hepatitis C, asthma, and hypertension and a host of other conditions that make them vulnerable to serious medical complications and death from COVID-19; the frightening prevalence of people in prison exhibiting symptoms of COVID 19; and the inability to socially distance in prison. Each family member declarant affirms that they have a space in their homes for their currently incarcerated
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loved one to safely quarantine upon release and that they will support their loved one in complying with IDOC supervision requirements and obtaining medical care. See Ex. D.
2. Petitioners Meet the Commonality and Typicality Requirements of Rule 23.
Respondent argues that factual variances between members of the subclasses undermine the Petitioners’ assertion that their claims share a common question. These arguments hinge on Respondent’s mischaracterization of Petitioners’ position. As noted repeatedly, Petitioners do not seek a blanket release order. Rather, Petitioners seek varying forms of release based on their individual needs.
In an attempt to defeat commonality, Respondent describes a list of individualized factors that IDOC should consider prior to making a decision about a class member’s eligibility for medical furlough. Doc. 18, Response, at 18-19. Petitioners agree that some evaluation regarding individuals’ health and safety balanced with public safety concerns must occur prior to any determination regarding medical furlough. However, the fact that, after an evaluation, some class members may be suitable for furlough while others may have to remain in IDOC’s physical custody does not destroy commonality. The commonality requirement does not require perfect uniformity. See e.g., Robert L. Meinders D.C., Ltd v. Emery Wilson Corp., 2016 WL 3402621, at *4 (S.D. Ill. June 21, 2016) (“‘Rule 23(a)(2) does not demand that every member of the class have an identical claim,’ and some degree of factual variation will not defeat commonality”) (quoting Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir. 2011)); Rench v. TD Bank, N.A., 2018 WL 264121, at *3 (S.D. Ill. Jan. 2, 2018) (same); Braggs v. Dunn, 317 F.R.D. 634, 656 (M.D. Ala. 2016). Further, the individualized nature of the relief Petitioners seek is entirely consistent with Rule 23. See, e.g., DL v. D.C., 860 F.3d 713, 726 (D.C. Cir. 2017) (quoting Wal-
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Mart Stores, Inc. v. Dukes, 564 US. 338, 3360 (2011) (certifying a subclass of special education students under Rule 23(b)(2) when they sued for individualized assessments and educational programming to meet their specific needs because a single injunction was suitable to “provide relief to each member of the class”); Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) (approving certification for a class of individuals detained without bond hearings and seeking injunctive relief in the form of individual bond hearings even though some members of the class may not have been entitled to this relief and may not have suffered an actually cognizable injury); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 896 (7th Cir. 1999) (approving class certification in race discrimination case where plaintiffs sought individualized relief in the form of back pay); Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) (approving the certification of a Title VII class action for plaintiffs seeking individualized monetary relief in the form of back pay and front pay); In re Yahoo Mail Litig., 308 F.R.D. 577, 601 (N.D. Cal. 2015) (finding certification of an injunctive and declaratory relief class under Rule 23(b)(2) proper even though relief “might differ from individual to individual” because the class sought a “uniform relief from a common policy that… applies to all class members”); Franco-Gonzales v. Napolitano, No. CV 10-02211, 2011 WL 11705815, at *14-15 (C.D. Cal. Nov. 21, 2011) (certifying a class of individuals in Department of Homeland Security custody alleging inadequate procedures in place to assess the mental competence of aliens in custody and provide them with safeguards even though relief would “vary based on the circumstances” of each case); Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 388 (D. Colo. 1993) (certifying a “medical monitoring class” seeking relief for damages from radioactive and nonradioactive substances when relief would be based on “the individualized nature of each individual’s claim”).
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The claims of the named Petitioners are also typical of the subclasses they seek to represent. Named Petitioners and the members of the putative class meet the typicality requirement because they have all suffered from the same violations of their constitutional rights. See Rule 23(a)(3). Each named Petitioner here has a heighted chance of becoming critically ill or dying if they contract COVID-19 and each is currently subjected to a substantial risk of harm because of the IDOC’s failure to act with urgency regarding the medical furlough and home transfer related evaluations and determinations. This is sufficient to satisfy typicality. See Oshana v. Coca-Cola, Co., 472 F.3d 506, 514 (7th Cir. 2006) (internal quotes omitted) (typicality is “meant to ensure that the named representative’s claims have the same essential characteristics as the claims of the class at large”). Certain factual distinctions between named Petitioners and the class members do not defeat typicality. See Young v. Cnty of Cook, No. 06 C 552, 2007 WL 1238920, at *6 (N.D. Ill. Apr. 25, 2007) (“The likelihood of some range of variations in how different groups of new detainees were treated does not undermine the fact that the claims of each class share common factual basis and legal theories.”); Phipps v. Sheriff of Cook Ctny., 249 FRD 298, 301 (N.D. Ill. 2008) (“That the particular conditions may differ slightly from one cell block to the next, or that there are factual distinctions between the actual injuries suffered by the [the named plaintiff] and the class members, does not defeat typicality under Rule 23(a)(3).”).
Petitioners have demonstrated that their representative claims present common questions susceptible to class-wide resolution, that those common questions predominate over individualized ones, and that the experience of the named Petitioners is typical of the class.
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C. No Other Procedural Barrier Bars Relief for Class.
Respondents argue that a host of other procedural barriers prevent this Court from reaching the merits here. These arguments should be rejected.
1. Petitioners’ Claims Are Not Successive Within the Meaning of § 2244, nor Do They Count as “First” Petitions.
Respondent incorrectly argues that a representative action is inappropriate here because Petitioners’ claims could either be construed as a successive habeas petition, requiring authorization from the Seventh Circuit, or could be treated as a first petition under 28 U.S.C. § 2254, thereby prohibiting a later constitutional challenge to an individual prisoner’s conviction or sentence. Respondent’s argument evinces a fundamental misunderstanding of Petitioners’ claims and federal habeas law.
Section 2244’s limitations on the filing of “second or successive” habeas petitions do not apply to Petitioners’ application for relief. As the Supreme Court has held, “second or successive” is a term of art—it “does not simply refer to all § 2254 applications filed second or successively in time.” Magwood v. Patterson, 561 U.S. 320, 332 (2010). Rather, the term “second or successive” applies only to consecutive applications that challenge the same state court judgment as a prior application. Id., at 331; see also Valona v. U.S., 138 F.3d 693, 694 (7th Cir. 1998) (“Not all multiple collateral attacks are ‘second or successive.’”). Here, Petitioners do not challenge their state court convictions, nor do they raise claims that could have been brought in any previous petitions. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (holding that “a habeas petition raising a claim that had not arisen at the time of a previous petition is not barred by § 2244(b) [as a second or successive petition] or as an abuse of the writ”); In re Cain, 137 F.3d 234, 236–37 (5th Cir.1998) (same).
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Rather, Petitioners in this case challenge their continued confinement as unconstitutional given the unprecedented risk to their lives posed by COVID-19. As advocates in Louisiana recently analogized, incarceration during this pandemic is as if “someone sick with COVID-19 came into your home and sealed the doors and windows behind them. … [the] outbreak is rampant, social distancing is impossible, and no one detained can leave.” Livas v. Meyers, 1:20cv-00422, DE 1 at 1 (Apr. 6, 2020).
Here although Petitioners' claims are filed pursuant to 28 U.S.C. § 2254, they bring challenges traditionally contemplated by 28 U.S.C. § 2241. State prisoners may bring claims under § 2254 that focus “on the fact of custody,” and “not necessarily on the flaws in the underlying judgment or sentence that brought the person there.” Walker v. O’Brien, 216 F.3d 626, 632-33 (7th Cir. 2000). While § 2254 is the habeas remedy for a state prisoner, that statute “in effect implements the general grant of habeas corpus authority found in § 2241, as long as the person is in custody pursuant to the judgment of a state court.” White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2006); see also Singleton, 319 F.3d at 1023 (“The focus of § 2254 is on the petitioner’s custody, not, as in § 2255, on the flaws in the underlying judgment or sentence.”).
Indeed, if Section § 2244’s limitations applied universally to any subsequent habeas application by a state prisoner, state prisoners would rarely, if ever, be permitted to bring habeas petitions other than those challenging the validity of their conviction. But the plain text of § 2254 is not so narrow, and this court’s authority extends to habeas claims that go to the fact or duration of confinement as distinct from the sentence or conviction itself. To wit, the Seventh Circuit has explicitly held that the “prior-appellate-approval” mechanism in § 2244 does not apply to habeas petitions based on “the execution of but not the validity of the conviction and sentence.” Valona, 138 F.3d at 694; see also Gray-Bey v. United States, 209 F.3d 986, 990 (7th
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Cir. 2000) (petitioner does not need appellate court approval to file as petition under 28 U.S.C. § 2241, even if he has filed a prior claim for relief under 28 U.S.C. § 2255).
Here, Petitioners do not seek to invalidate their underlying state-court convictions, nor do they challenge their sentence as initially imposed. Rather, Petitioners’' claims—-the sort traditionally addressed through § 2241—-challenge the constitutionality of their continued confinement during the COVID-19 pandemic. See Valona, 138 F.3d at 694 (recognizing a distinction between habeas claims that attack the validity of the conviction or sentence, and those concerning the execution of the sentence). As such, Petitioners’ claims do not challenge their underlying convictions or sentences, making application of 2244’s “second or successive” petition absurd. Furthermore, treating Petitioners’ claims as successive would render habeas relief entirely unavailable to them, amounting to an unconstitutional suspension of the writ of habeas corpus.
2. Petitioners’ Request for Habeas Corpus is Timely.
Petitioners’ challenge to the unconstitutional risk of harm posed to Petitioners by COVID-19 while incarcerated by the IDOC is timely. Under 28 U.S.C. § 2244(d)(1), the oneyear statute of limitations period for petitions under § 2254 runs from the latest of four different dates, only one of which is applicable here: “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The “factual predicate” of Petitioners’ claim is the introduction of the rapidly spreading COVID-19 virus into the Illinois Department of Corrections, which began only weeks ago. Even assuming that the limitation period of § 2244 applies, Petitioners are well within the one-year statute of limitations.
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3. This Court has Jurisdiction over Petitioners’ Claims.
Next, Respondent argues that this Court does not have jurisdiction to consider Petitioners' claims. In representative habeas claims, as is the case in their civil analogs, the court issuing the writ need only have jurisdiction over the custodian and at least one representative petitioner.. In Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494–95 (1973), the Supreme Court emphasized that “the writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody.” Id. at 484 (citing Wales v. Whitney, 114 U.S. 564, 574 (1885)). This flexible interpretation is consistent with what the Court has described as a “classic” statement about the writ:
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent.’ Braden, 410 U.S. at 495 (quoting In the Matter of Jackson, 15 Mich. 417, 439—440 (1867); see also Ahrens v. Clark, 335 U.S. 188, 196-197 (1948). (Rutledge, J., dissenting). The Braden Court went on to reason that:
Read literally, the language of s 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction. Braden, 410 U.S. at 495. For this reason, courts have jurisdiction in national representative actions in habeas proceedings, as that in civil proceedings, provided that the court has personal jurisdiction over the custodian. See id. at 494–95 (stating that the writ of habeas corpus acts not
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upon “the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody”); Ali v. Ashcroft, 46 F.3d 873, 889 (9th Cir. 2003), reversed on other grounds by 421 F.3d 795 (9th Cir. 2005), as amended on rehearing (Oct 20, 2005 ); Roman, 162 F.Supp. 2d at 761 (reasoning that “[o]nce a court takes the step of approving the Attorney General as a proper respondent [to a habeas petition], there would appear to be no jurisdictional reason why the petition could not be heard in any district in which the Attorney General was subject to service of process”).
D. Any Failure by Petitioners to Exhaust their Claims does not Preclude Review.
Next, Respondent argues that Petitioners’ claims should be dismissed for failing to exhaust in state court. Federal habeas corpus exhaustion requirements are waived when “(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §§ 2254(b)(1)(B)(i)-(ii). Petitioners need not exhaust state court remedies that are not available at the time their petition is filed. See U.S. ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976). Even where state remedies are available, failure to exhaust may be excused where there has been undue delay in the process. See Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993).
1. Exhaustion should be Waived in Light of the Unique Threat Posed by COVID-19
This court should employ its broad equitable powers to excuse any exhaustion idiosyncrasies by Petitioners. The rapidly developing and deadly threat posed by COVID-19 means that any delay—of weeks, of day, or even of hours—could be the difference between life and death for Petitioners, especially the medically vulnerable members of Subclasses 1 and 2. “The concern is that day by day, the risk of illness increases for prisoners and staff, and that their
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illnesses endanger others as well as stretch health care resources.” See Renick Decl. at ¶ 27. To be blunt, exhaustion will be “futile” if additional delay results in Petitioners’ infection, or death.2 Dozens of Petitioners are already sick; many more will become sick, and some will assuredly die. Any delay simply cannot be tolerated by the Constitution. See Preiser, 411 U.S. at 497 (“If the prisoner could make out a showing that, because of the time factor, his otherwise adequate state remedy would be inadequate, a federal court might entertain his habeas corpus application immediately, under s 2254(b)‘s language relating to ‘the existence of circumstances rendering such (state) process ineffective to protect the rights of the prisoner.’”).
The devastation wrought by COVID-19 is so enormous that it has suspended the normal functioning of state courts across the state. Simply put, there is no time for the thousands of vulnerable prisoners who make up the putative class to file state court petitions for relief. At any moment, COVID-19 may enter and rapidly spread through Petitioner’s respective prisons, rendering any delay in relief unjustifiable. See Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981); Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970). Such unjustifiable delay would render state corrective processes ineffective to protect the rights - and the very lives - of Petitioners and the similarly situated prisoners they represent. § 2254(b)(1)(B)(ii).
Federal courts have excused exhaustion requirements when pursuit of state court procedure would be tantamount to a death sentence. In Puerta v. Overton, 272 F. Supp. 2d 621
2 “If [prisoners] are proceeding under either habeas, §1983, or both, courts also need to address how COVID-19 fits with conventional rules on exhaustion of judicial remedies for state court prisoners and the parameters of the PLRA. Again, new problems have emerged. For example, in terms of exhaustion of state judicial remedies, whatever the viability of state courts responding quickly, the concern is that day by day, the risk of illness increases for prisoners and staff. Those illnesses endanger others as well as stretch health care resources. Exhaustion would be “futile,” not only if state courts cannot respond, but also if people become sick, risks skyrocket, and deaths occur.” Resnik Decl. at ¶ 27.
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(E.D. Mich. 2003), a federal district court waived the exhaustion requirement for a 76-year-old prisoner with coronary artery disease and bladder cancer that had recently gone into remission, releasing him on bond pending a decision on his petition for a writ of habeas corpus. Id. at 628. In reaching the conclusion to waive the exhaustion requirement, the court found that the petitioner’s “age, ill health, and dire need for continued medical treatment” warranted special consideration. Id. The court considered a prior prison conditions lawsuit, in which a judge made findings about the Michigan Department of Corrections inability to “provide reliable and timely access to care for prisoners with urgent and emergent symptoms.” Id. at 629 (quoting Hadix v. Johnson, 2002 U.S. Dist. LEXIS 21283, No. 4:92-CV-110 (W.D. Mich. Oct. 29, 2002)). For these reasons, the court determined that “the interests of comity and federalism” would be better served by addressing the merits of the petition rather than allowing the petitioner to risk death in prison while awaiting adjudication in state court. Id. at 627-29 (quoting Granberry v. Greer, 481 U.S. 129, 131 (1987)).
Although Respondent and this Court are extremely familiar with the challenges already facing medically vulnerable people in Respondent’s custody, they bear repeating here in light of the unprecedented dangers posed by COVID-19. The Illinois Department of Corrections is already subject to a federal consent decree because of Respondent’s constitutionally inadequate healthcare system. See Lippert v. Jeffreys, 1:10 CV 04603 (N.D. Il). Of particular relevance, the Second Court Appointed Expert in that case noted that:
There is no active infection control program. Infection control practices lack guidance from a physician with expertise in infection control practices. This is evident in HIV testing, TB screening, and analysis of surveillance practices. Report of Second Court Appointed Expert, DE 767, at 11, Lippert v. Jeffreys, 1:10 CV 04603 (N.D. Il,, Nov. 14, 2018), Moreover, as admitted in Executive Order 2020-21, “the vast majority of [IDOC prisoners], because of their close proximity and contact with each other in housing
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units and dining halls, are especially vulnerable to contracting and spreading COVID-19.” Report of Second Court Appointed Expert at 15. Clearly, given this reality and the rapid pace at which COVID-19 spreads, it is “in the interests of comity and federalism,” Granberry, 481 U.S. at 131, to waive the exhaustion requirement for Petitioners before it is too late.
2. State Court Remedies Continue to be Unavailable to Petitioners. While Petitioners did file a parallel petition before the Supreme Court of Illinois requesting a writ of mandamus, mandamus is an “extraordinary state remedy,” Hankins, 941 F.2d at 249, that need not be exhausted. The Supreme Court of Illinois has repeatedly acknowledged that mandamus is an “extraordinary remedy.” See, e.g. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93 (2009); People ex rel. Senko v. Meersman, 980 N.E.2d 1115 (Ill. 2012); People ex rel. Alvarez v. Howard, 72 N.E.3d 346 (Ill. 2018). Moreover, mandamus relief is discretionary in nature; even if Petitioners have a legally meritorious claim, mandamus guarantees no relief. Durbin v. Gilmore, 718 N.E.2d 292, 294 (1999) (“The issuance of a writ of mandamus is an extraordinary remedy, discretionary in nature, and it is appropriate only when there is a clear right to the requested relief, a clear duty of the defendants to act, and clear authority in the defendants to comply with the writ”).
The exhaustion requirement does not “bar from federal habeas prisoners in states whose post-conviction procedures are technically inexhaustible.” Castille v. Peoples, 489 U.S. 346, 350 (1989). This has been interpreted to mean that exhaustion does not require “the pursuit of extraordinary state remedies.” Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir. 1992) ; accord Sceifers v. Trigg, 46 F.3d 701, 703 (7th Cir. 1995); Jenkins v. Gramley, 8 F.3d 505, 508 (7th Cir. 1993); Lane v. Richards, 957 F.2d 363, 365 (7th Cir. 1992). As such, 28 U.S.C. § 2254(c) does not require Petitioners to exhaust the remedy of mandamus. See Castille, 489 U.S. at 350.
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Respondent also wrongly suggests that, despite state court closures, the remedy of mandamus is actually available to Petitioners. Citing Preiser v. Rodriguez, 411 U.S. 475, 494-95 (7th Cir. 1973), Respondent claims “there is no reason to assume that . . . state courts will not act expeditiously.” To the contrary, Petitioners have every reason to make that assumption and to contemporaneously pursue remedy in federal court. If Petitioners were to assume that state courts would move rapidly and forego federal remedies, the cost of being incorrect could quite literally amount to the lives of thousands of putative class members. In fact, while the federal courts have responded expeditiously to Petitioners’ request for an expedited hearing on this emergency habeas petition—scheduling briefing by the parties to be completed within just days of the Petitioners’ initial filing—the Illinois Supreme Court has taken no action on Petitioners’ mandamus petition in nearly a week. During that time, at least two IDOC prisoners have died of COVID-19, and the number of confirmed COVID-19 cases among prisoners has more than doubled.
3. No other state corrective process is available to Petitioners.
Respondent does not even identify which state remedies Petitioners purportedly should have sought in state court. State postconviction remedies are not available under these circumstances, and even if they were, courts throughout the state are closed and operating on reduced dockets. As already stated, delays of days or weeks will deprive Petitioners’ any meaningful remedy. Indeed, it may cost them their lives. Petitioners were not required to seek remedy through the circuit courts because this remedy was unavailable due to the circuit court closures highlighted in the Petition. See U.S. ex rel. Morgan v. Sielaff, 546 F.2d at 222; Doc. 1 at 6. Respondent correctly notes that Petitioners have not cited any cases regarding “delays—actual or anticipated—caused by a global pandemic.” Doc. 18, Response, at 26. Rather than prove
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Petitioner’s point, this absence merely highlights the unprecedented nature of the crisis facing the judicial system.
4. Continued Incarceration is Tantamount to a Death Sentence, and Precluding review would be a Miscarriage of Justice.
Even if this court determines that Petitioners had access to a corrective process that could adequately protect their rights, this Court should still reach the merits of Petitioners’ claims, because to do otherwise would be a miscarriage of justice. Here, exposing Petitioners to COVID-19 is tantamount to a death sentence, a fundamental miscarriage of justice beasue Petitieorns are actually innocent of any factor that would make them eligible for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (petitioner can be actually innocent of being eligible for the death penalty). It is well settled that a sentence imposed despite actual innocence gives rise to a miscarriage of justice.
The Supreme Court has expressly applied the miscarriage of justice exception to overcome various procedural bars, incluidng include “successive ” petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion);“abusive” petitions asserting in a second petition claims that could have been raised in a first petition, see McCleskey v. Zant, 499 U.S. 467, 494–495 (1991); failure to develop facts in state court, see Keeney v. Tamayo–Reyes, 504 U.S. 1, 11–12 (1992); and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U.S. 722, 750 (1991). Nothing about AEDPA has restricted the miscarraige of justice exception, which continues to thrive. See McQuiggins v. Perkins, 569 U.S. 383 (2013) (applying exception to allow federal court to review petitioner’s procedurally defaulted claims); Calderon v. Thompson, 523 U.S. 538 (1998) (holding that a federal court may, consistent with AEDPA, recall its mandate in order to revisit
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the merits of a decision); Bousley v. United States, 523 U.S. 614, 622 (1998) (miscarriage of justice may overcome a prisoner's failure to raise a constitutional objection on direct review): House, 547 U.S., at 537–538, 126 S.Ct. 2064. (miscarriage of justice may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error).
Significantly, AEDPA and its procedural bars were designed to streamline, not foreclose habeas review.
AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law.... When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights.”
Holland v. Florida, 560 U.S. 631, 648-39 (2010) (citations omitted). “[E]quitable principles have traditionally governed the substantive law of habeas corpus,” before affirming that “we will not construe a statute to displace courts' traditional equitable authority absent the clearest command.” Id. at 646 (internal quotation marks omitted). Nothing within Section 2254’s procedural restrictions undermine the federal court’s equitable authority to invoke the miscarriage of justice exception to overcome exhaustion requirements. See McQuiggins, at 398 (relying on courts' equitable authority to invoke the miscarriage of justice exception to overcome statute of limitations).
V. Respondent’s Interpretation of the PLRA and AEDPA to Preclude Federal Review of Petitioners’ Claims Would Violate the Constitution. Respondent urges this Court to avoid the merits of Petitioners’ claims in both this action
and the related Section 1983, invoking a series of procedural bars purported procedural barriers from Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), § 106, 110
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Stat. 1220, and the Prisoner Litigation Reform Act that they argue foreclose consideration on the merits in either action.
A. PLRA does not apply to habeas proceedings
Respondents argue that even if Petitioners have brought cognizable claims for relief, which they are, they would still not be entitled to release because they would not have satisfied the provisions of the Prisoner Litigation Reform Act. This disingenuous argument has been squarely rejected by the Seventh Circuit, which Respondents acknowledge. Resp.’s Opp. to Writ, at 35 “[T]he PLRA generally does not apply to § 2254 cases.” (citing Walker v. O’Brien, 216 F.3d 626, 633-34 (7th Cir. 2000)). Respondent’s arguments are foreclosed by Seventh Circuit law.
“By its terms, the PLRA only applies when “a prisoner brings a civil action or files an appeal in forma pauperis.” Blair-Bey v. Quick, 151 F.3d 1036,1040 (D.C. Cir. 1998) (citing 28 U.S.C. § 1915(b)(1)). Although habeas corpus proceedings are often characterized as civil in other contexts, “the label is gross and inexact. Essentially, the proceeding is unique.” Harris v. Nelson, 394 U.S. 286, 293–94 (1969); see also O'Neal v. McAninch, 513 U.S. 432, 440 (1995) (rejecting the application of civil standard for reviewing error because “although habeas is a civil proceeding, someone's custody, rather than mere civil liability, is at stake.”). Habeas corpus actions are distinct from “civil actions,” and courts have found them to be not civil in nature for the purposes of the PLRA. Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000) (noting Seventh Circuit law that a petition for a writ of habeas corpus is not “civil action” for purposes of § 1915(b)).
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B. Foreclosure of Federal Habeas Review Violates the Suspension Clause.
Although Respondent’s arguments are wrong on the merits, as discussed infra, their argument that there is no avenue for federal review or relief for ongoing constitutional violations would result in an unconstitutional suspension of the writ. See Boumediene v. Bush, 553 U.S. 723, 787 (2008) (“We are obligated to construe the statute to avoid [constitutional] problems” if it is “ ‘fairly possible’ ” to do so.” (quoting St. Cyr, 533 U.S., at 299–300, 121 S.Ct. 2271, and Crowell v. Benson, 285 U.S. 22, 62 (1932))).
Writs of habeas corpus are such a central tool for the protection of individual liberty that grounds for its suspension are constitutionally limited: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, § 9, cl. 2. The Suspension Clause prohibits, except under the most extreme circumstances, measures that preclude judicial review of detention. Boumediene v. Bush, 553 U.S. 723, 745 (2008) (“The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account.”). Deeply rooted in the separations of powers doctrine, legislative measures that create or act in concert to create a complete bar on judicial review of detention violate the Clause. Luna v. Holder, 637 F.3d 85, 87 (2d Cir. 2011) (procedural bars that leave petitioners “no forum in which to raise plausible claims of constitutional violations” raise Suspension Clause concerns).
It is “uncontroversial …that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 778 (quoting St. Cyr, 533 U.S., at 302). Fundamental to the writ is the habeas court’s “power to order the conditional
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release of an individual unlawfully detained. Id. at 779 (citing Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court “can only direct [the prisoner] to be discharged”). Unlike traditional avenues of relief, Habeas corpus is a collateral process that exists, in Justice Holmes' words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Boumediene, 553 U.S. at 785 (citing Frank v. Mangum, 237 U.S. 309, 346 (1915).
Crucially, to avoid suspension of the writ, “the court that conducts the habeas proceeding must have the means to correct errors.” Boumediene, 553 U.S. at 786. Although Respondent’s procedural and substantive arguments are incorrect, they must be rejected, for they leave no avenue for meaningful and expedited review by a federal court review. In this context, where a day’s delay in the difference between life and death, a narrow interpretation of this Court’s authority violates the Suspension Clause. In effect, Respondents argue that, despite the clearly urgent nature for expeditious action to save hundreds if not thousands of lives among Illinois’s incarcerate population and the larger communities in which they sit, Petitioners’ claims for release from unconditional custody are not actionable in habeas through a civil suit.

Dated: April 8, 2020

Respectfully submitted, /s/ One of the Attorneys for the Plaintiffs
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Sheila A. Bedi Luke Fernbach* Emily M. Grant* Terah Tollner* Community Justice Civil Rights Clinic Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-2492 *Law student licensed pursuant to Illinois Supreme Court Rule 711
Vanessa del Valle Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-5932
Jennifer Soble Illinois Prison Project 53 W. Jackson, Suite 1056 Chicago, IL 60616 (312) 324-4465

Amanda Antholt Samantha Reed Equip for Equality 20 N. Michigan Avenue, Suite 300 Chicago, IL 60602 (312) 241-0020
Sarah Grady Steve Weil Loevy & Loevy 311 N. Aberdeen Street, 3rd Floor Chicago, IL 60607 (312) 243-5900
Alan Mills Elizabeth Mazur Uptown People’s Law Center 4413 N. Sheridan Chicago, IL 60640 (773) 769-1411

Counsel for Petitioners

CERTIFICATE OF SERVICE I, Jennifer Soble, an attorney, certify that I served this pleading on all counsel of record by filing it through CMECF system.
/s/Jennifer Soble

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 Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 1 of 45 PageID #:346 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JAMES MONEY, WILLIAM RICHARD,

)

GERALD REED, AMBER WATTERS,

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TEWKUNZI GREEN, DANNY

)

LABOSETTE, CARL REED, CARL “TAY

)

TAY” TATE, PATRICE DANIELS, and

)

ANTHONY RODESKY, on behalf of

)

Themselves and all similarly situated )

Individuals,

)

)

Petitioners,

)

)

v.

)

)

JEFFREYS, ROB,

)

)

Respondent.

)

No. 20 cv 2094

DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING PROVISIONAL REMEDIES FOR DETAINED INDIVIDUALS

I have been asked to provide a declaration explaining my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. I declare that the following is a true and accurate account of what I believe are the pertinent legal principles and how they can apply in this unprecedented context. My views are based on my knowledge of the law and my experiences in cases. This opinion is mine and is not that of the institutions with which I am affiliated.

MY BACKGROUND
1. I am the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state courts; procedure; large-scale litigation; federalism; and incarceration. Below, I provide a brief overview of my background; more details are in my resume, attached as Exhibit A to this Declaration.
2. Prior to joining the faculty of Yale Law School in 1997, I was the Orrin B. Evans Professor of Law at the University of Southern California (U.S.C.). During the decades before taking my current position, I was also a visiting professor at the law

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schools of the University of Chicago, Harvard University, Yale University, and New York University.
3. At the beginning of my legal career, after I obtained a B.A. from Bryn Mawr College and a J.D. from N.Y.U. Law School where I was an Arthur Garfield Hays Fellow, I was a law clerk for the Honorable Charles E. Stewart in the United States District Court Southern District of New York.
4. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at U.S.C. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation.
5. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. Of particular relevance to this declaration is that I regularly teach the class, Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation, including 42 U.S.C. §1983.
6. I have been recognized for my scholarship and other work, and I have received awards from various organizations.
7. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. In that year, I also was awarded an honorary doctorate from University College London.
8. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.
9. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop

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a series of reports that provide information nation-wide on the use of solitary confinement.
10. I regularly speak at conferences, and topics have included the federal courts, remedies, habeas corpus, civil rights, and prison litigation.
11. Recent publications include essays on the challenges of access to courts for people with limited resources. See Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020). I have also written on the law and practices of solitary confinement. See, e.g., Not Isolating Isolation, in Solitary Confinement: Effects, Practices, and Pathways toward Reform 89-116 (Jules Lobel and Peter Scharff Smith, eds., Oxford University Press, 2020). In addition, I have addressed the boundaries of legal punishment. See (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020).
12. I have testified before the United States Congress, in hearings of subcommittees of the U.S. Judicial Conference addressing federal rules, and I serve as a court-appointed expert and trustee. I have given workshops and lectures to groups of federal judges, including at the request of the Federal Judicial Center and at the conferences of some federal circuits.
13. In February of 2019, I testified before the U.S. Commission on Civil Rights at its hearing on women in prison and co-authored a statement related to the isolation of many facilities for women, their needs for education and work training, and the discipline to which they are subjected. See Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019. The report, citing the contributions of many includes reference to this testimony. See U.S. Commission on Civil Rights, Women in Prison: Seeking Justice Behind Bars (February 2020), available at https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.
Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
14. In light of my knowledge of the federal law of habeas corpus, Section 1983, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available

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to judges presiding in cases that raise claims related to COVID19.
15. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
16. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
17. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19it has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
18. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation - a constitutional-when-sentenced but unconstitutional-now sentence. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In normal times, using Montgomery v. Louisiana as a guide, federal judges could remit eligible individuals to state courts and parole boards. But in these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and dedensifying for others) are necessary.

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19. As is familiar, the classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. Courts’ jurisdiction and remedial authority under habeas is constitutionally enshrined, has a substantial common law history, and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Leibman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
20. By way of a brief overview, in federal courts, petitioners file under 28 U.S.C. §2254 (state prisoners), §2255 (federal post-conviction prisoners), as well as under §2241 (the general habeas statute).1 In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings.
21. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
22. As is familiar, Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection
1 In terms of the potential for concurrent bases for federal court jurisdiction, I will discuss the overlap with civil rights claims filed under 42 U.S.C. § 1983, on which a substantial amount of case law exists. In addition, habeas jurisdiction overlaps with other jurisdictional bases. For example, when I worked at Yale Law School in its clinical program, I filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well (in appropriate situations) as 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus). Some of these cases, invoking both habeas and other jurisdictional provisions, were filed as class actions.

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of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
23. A good deal of case law in the Supreme Court and in the circuits addresses when §1983 (with jurisdiction based on 28 U.S.C. §1343) is the appropriate mode for prisoners to use, as contrasted with habeas corpus. Given the ability to plead in the alternative, proceeding under both would be possible as a matter of federal procedural rules. Yet because state prisoners who rely on 28 U.S.C. §2254 have to exhaust state judicial remedies, they may seek to use §1983, to which that requirement does not apply. And, because the PLRA affects §1983 litigants, prisoners may hope to avoid its strictures by filing under habeas.
24. In response, the Supreme Court has set forth distinctions to channel claims. The shorthand that reflects much of the case law is that, when the fact or duration of confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are challenging conditions of confinement, §1983 is the method. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994).
25. Yet the distinctions have been complex to apply in practice. Line-drawing has prompted many opinions that parse situations that entail overlaps, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
26. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk. Thus, because COVID19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished. Therefore COVID-19 claims ought to be cognizable under both provisions.

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27. Recognizing the availability of both forms of jurisdiction is only the beginning of a series of questions that courts have to address. If c cases proceed under habeas, §1983, or both, courts need to consider how COVID-19 fits (or not) with conventional rules on exhaustion of judicial remedies for state court prisoners, many provisions of AEDPA, and the parameters of the PLRA. Again, new problems have emerged. For example, in terms of exhaustion of state judicial remedies, whatever the viability of state courts responding quickly, the concern is that day by day, the risk of illness increases for prisoners and staff. Those illnesses endanger others as well as stretch health care resources. Exhaustion would be “futile,” not only if state courts cannot act quickly but also if people become sick, risks skyrocket, and deaths occur. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
28. Many other legal issues exist, in addition to the relationship of habeas and §1983 and exhaustion. Courts will need to consider when class actions are appropriate and when the criteria of Rule 23 is met; many facets of AEDPA including questions of successive petitions and deference to state court rulings; and the merits of arguments about unconstitutional sentences and conditions; and the range of remedies.
The Availability of Provisional Remedies
29. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
30. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Because COVID-19 cases may be predicated both on habeas corpus petitions and on §1983, courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.

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31. Another option is an aspect of federal judicial power that is less well-known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some decision that “enlarge” petitioners use those words rather than enlargement).
32. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is thus, a provisional remedy that modifies custody by expanding the site in which it takes place. In some ways, enlargement resembles a prison furlough.
33. Enlargement has special relevance in cases in which jurisdiction is based both on habeas and §1983, to which the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that this brief mention. – The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
34. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. This provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:

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While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail, and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
36. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
37. In the last weeks, the saliency of enlargement has prompted me to review the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
38. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
39. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority

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to order release. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
40. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).2
41. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.’”
42. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability
2 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).

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of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
43. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
44. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
45. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior

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convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
46. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government’s errors in drafting the petitioner’s service agreement. Id. at *6.
47. As of this writing, I have located two reported cases on COVID. (Given the pace of litigation, I assume that more may have been filed and some may have been decided.) On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020). The other case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID19. No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). A class action seeking state-wide population reductions was pending at the time the district court ruled. The Peterson decision viewed the issue as one about conditions, to be litigated as a civil rights claim; the court also ruled that the petitioner had not shown he met the test for granting release. Id. at *2. Soon thereafter, the Coleman/Plata three-judge court held that the

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issue was not for it to decide. See Plata, et al. v. Newsom, No. C01-1351-JST (N.D. Cal. Apr. 4, 2020) (Dckt. 3261); Coleman, et al., v. Newsom, No. No. 2:90-cv-0520 KJM DB P (N.D. Cal. Apr. 4, 2020) (Dckt. 3261). On April 6, Judge Mueller issued his order calling for immediate information on the constitutional implications of requirements for social distancing. Coleman, et al., v. Newsome, et al., No. 2:90-cv-0520 KJM DB P (N.D. Cal. Apr. 6, 2020) (Dckt. 6580).
48. The pro se Peterson case brings me back to the question of the relationship of habeas petitions based on COVID to civil rights claims based on conditions in a prison. As I discussed above, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether the government-mandated protection for the disease means that sentences (that had been lawful when they were imposed and that remain lawful until sometime in February or March of 2020) cannot lawfully be served in settings of extreme risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation. Further, as I have discussed, §1983 claims may also be appropriate, given that the distinction between conditions and duration becomes less plausible when confinement poses a risk of death, and thereby horribly altering the “fact” and “duration” of confinement. Class treatment of claims joined under habeas and §1983 enable layers of remedies, including the release of some individuals that will de-densify facilities to improve the safety for prisoners who remain the staff who work there.
49. By way of conclusion, I need to remind the Court that the Supreme Court has, in recent years, raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or contracts, debates have occurred within the Court about the authority of federal judges.

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50. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not debilitated by serious illness. Moreover, Supreme Court opinions have not focused on the relevance of remedial debates to the situation were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law.
Dated: April 8, 2020
__________________________ Judith Resnik

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EXHIBIT A

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Judith Resnik

Address Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215

Tel: (203) 432-1447 Fax: (203) 432-1719 Email: judith.resnik@yale.edu

Employment Arthur Liman Professor of Law, Yale Law School, 1997-present Founding Director, Arthur Liman Center for Public Interest Law Honorary Visiting Professor, University College London Faculty of Law, 2009-2021 Visiting Professor, Dauphine Université Paris, March 2016 Visiting Professor, Université Panthéon-Assas Paris II, May 2015 Convening Professor, Constituting Federalism, a seminar for the Institute for Constitutional History in conjunction with the New York Historical Society, February 2014 Scholar in Residence, Columbia Law School, Spring 2011; 2012 Distinguished Visiting Professor, University of Toronto School of Law, 2005 Parsons Visitor, Sydney University School of Law, 2004
Visiting Professor, New York University School of Law, 1996-1997 Visiting Professor, Harvard Law School, Fall 1989 Visiting Professor, Yale Law School, Spring 1989 Visiting Professor, University of Chicago Law School, Fall 1988
Orrin B. Evans Professor of Law, University of Southern California, 1989-1997; Professor of Law: 1985-1989; Associate Professor: 1982-1985; Assistant Professor: 1980-1982 Member, Faculty, The Salzburg Seminar on U.S. Legal Institutions, July 1988
Acting Director, Daniel and Florence Guggenheim Program in Criminal Justice, Yale Law School, 1979-1980
Lecturer in Law and Supervising Attorney, Yale Law School, 1977-1979
Instructor, New York University School of Law, 1976-1977
Law Clerk, Honorable Charles E. Stewart, United States District Court, Southern District of New York, 1975-1976

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Selected Professional Activities Chair of Fellows Selection Committee and Founding Director, Arthur Liman Center for Public Interest Law, Yale Law School, 1997-present Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges, 2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools; 2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland, 2009-present Advisor, European Law Institute and International Institute for the Unification of Private Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights
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Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online)
Member, Advisory Board, Women’s Studies Quarterly
Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985
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Publications Books and Monographs
Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)
Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647
Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350
Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)
Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674
Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)
Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)
Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492
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Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)
Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627
The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)
The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)
Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)
Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)
Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861
Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)
Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)
Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)
The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)
Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)
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The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)
Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)
The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)
Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)
Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)
The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)
Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)
On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)
Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)
Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)
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Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)
Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)
Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)
Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)
“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)
Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)
Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar
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G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)
Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)
Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)
The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)
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Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)
The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)
Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)
Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)
Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)
Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)
Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)
Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)
Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)
Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)
From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)
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Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)
Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)
Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)
The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)
Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)
Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)
Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)
Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)
Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)
Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)
Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)
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Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)
Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)
A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)
Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)
“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)
Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)
Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)
“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)
Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)
Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration
The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))
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Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)
The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)
Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)
Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)
The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)
Globalization(s), privatization(s), constitutionalization and statization: Icons and experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (I·CON) 162 (2013)
Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal Online 243 (2013)
Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)
Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)
Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production, 10 International Journal of Constitutional Law (I·CON) 531 (2012)
Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)
Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)
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Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)
The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)
Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)
Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)
Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)
Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)
Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)
The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)
Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)
Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)
Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)
Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)
Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (I·CON) 33 (2008)
Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)
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Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)
Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)
No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)
Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)
Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)
Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)
Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)
Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)
Procedure as Contract, 80 Notre Dame Law Review 593 (2005)
Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)
Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)
Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)
Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)
The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)
For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)
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A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)
Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)
Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)
Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)
Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)
Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)
Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)
“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)
Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia,
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Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 31 of 45 PageID #:376 16
Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the Humanities 413 (1998)
Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)
Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)
Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)
Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)
Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)
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Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 32 of 45 PageID #:377 17
Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)
Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)
History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)
Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)
Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)
Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)
Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)
Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)
Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).
National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)
Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)
The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)
Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)
Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)
Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)
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Hearing Women, 65 Southern California Law Review 1333 (1992) “Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York
University Law Review 1682 (1991) Visible on Women’s Issues, 77 Iowa Law Review 41 (1991) From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991);
also published by RAND, Institute for Civil Justice (1991)
Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)
In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)
Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990) Changing Criteria for Judging Judges, 84 Northwestern University Law
Review 889 (1990) Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law
Journal 1913 (1990) Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990) Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of
Chicago Law Review 671 (1989) Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989) The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989) On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern
California Law Review 1877 (1988) The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987) Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty
and Justice, 39 University of Florida Law Review 405 (1987)
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Judging Consent, University of Chicago Legal Forum 43 (1987) Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987) Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review
494 (1986); also published by RAND, Institute for Civil Justice (1986) The Declining Faith in the Adversary System, 13 Litigation 3 (1986) The Mythic Meaning of Article III Courts, 56 University of Colorado Law
Review 581 (1985) Precluding Appeals, 70 Cornell Law Review 603 (1985) Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs,
45 Public Administration Review 686 (Special Issue, November 1985) Tiers, 57 Southern California Law Review 837 (1984) Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984) The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984) Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8
(Winter 1984) Book Review of The Brandeis/Frankfurter Connection, 71 California Law
Review 776 (1983) Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND,
Institute for Civil Justice (1982) Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974
Annual Survey of American Law 87 Selected Commentary in Newspapers, Magazines, and Journals
Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must
Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html
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This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html
The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s
To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r
Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502
With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/
No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001
Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013;
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http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik
Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
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Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 37 of 45 PageID #:382 22
Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202
Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)
When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/
Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006
Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html
So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)
One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005
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Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)
The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)
Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php
At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004
Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)
Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003
Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019
Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018
Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017
Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015
Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014
The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014;
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http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf
Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_
Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012
Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010
Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010
Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007
Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005
Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004
Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002
Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on
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Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)
Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996
Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994
Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991
Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990
Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990
Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987
Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
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Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 41 of 45 PageID #:386 26
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978
Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018 Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th
anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012 Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012 Recipient, The Order of the Coif Biennial Book Award, January 2014
New York University Alumna of the Month Award, June 2012, http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune
Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher Education in the Fields of Psychology or Law, Columbia University, March 2011
Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2011
Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar Foundation
Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association Commission on Women in the Profession, deposited in the Library of Congress, 2009
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Convocation Speaker, Bryn Mawr College Commencement, May 2006
Member, American Philosophical Society, elected Spring 2002
Fellow, American Academy of Arts and Sciences, elected Spring 2001
Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998
Recipient, NYU School of Law, Legal Teaching Award, Spring 1995
Recipient, USC Associates Award for Creativity in Research, Spring 1994
Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993
Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992
Member, Phi Kappa Phi, elected by the USC Chapter, 1991
University Scholar, University of Southern California, 1982-1983
Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983
Arthur Garfield Hays Fellow, 1974-1975, New York University
Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975
Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court
Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)
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Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)
Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)
Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)
Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)
Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)
Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)
Resnik, Judith resume April 7, 2020

Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 44 of 45 PageID #:389 29
Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)
United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)
Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)
Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997) (on awards of fees and costs in a mass tort multi-district litigation)
In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)
In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)
United States District Court Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick
Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20-
Resnik, Judith resume April 7, 2020

Case: 1:20-cv-02094 Document #: 24-3 Filed: 04/08/20 Page 45 of 45 PageID #:390 30
cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information) Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information) Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”) Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action) Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September – December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis) Selected Media Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5 Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010
Resnik, Judith resume April 7, 2020

 
 Case: 1:20-cv-02094 Document #: 29-1 Filed: 04/10/20 Page 1 of 48 PageID #:461

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES MONEY, et al. Plaintiffs,
v. J.B. PRITZKER, et al.
Defendants.

)

)

)

Case No. 20-cv-2093

)

)

Judge Steven C. Seeger, assigned

)

)

Judge Robert M. Dow, Jr., emergency

)

)

JAMES MONEY, et al.

)

)

Petitioners,

)

)

v.

)

)

ROB JEFFREYS, in his official capacity )

as DIRECTOR OF THE ILLINOIS

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DEPARTMENT OF CORRECTIONS, )

)

Respondent.

)

)

Case No. 20-cv-2094 Judge John F. Kness, assigned Judge Robert M. Dow, Jr., emergency

MEMORANDUM OPINION AND ORDER1 In these two cases, Plaintiffs have raised issues of great importance concerning the safety and well-being of inmates in the custody of the Illinois Department of Corrections during the current national crisis occasioned by the COVID-19 pandemic. As myriad citations in both sides’ briefs confirm, this issue has occupied all three branches of government in both the federal and state governments in recent weeks. News reports are replete with actions taken by Governors,

1 Judge Dow is addressing this matter as emergency judge pursuant to paragraph 5 of Second Amended General Order 20-0012.

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Attorneys General, state Supreme Courts, and individual trial judges to accelerate the release of inmates and detainees where consistent with overall public safety and to protect those who remain in custodial settings. And rightly so, for the stakes are incredibly high for Plaintiffs, their families, and the public at large. As emphasized by the medical experts whose appearances at daily press briefings rivet the nation, nobody is immune from this virus. However, due to the way in which the virus spreads, individuals living in congregate settings—such as nursing homes and prisons— are especially vulnerable because of difficulty of observing social distancing and recommended hygiene practices in close quarters.
At the outset, it is worth mentioning that Plaintiffs do not ask this Court to order the Illinois Department of Corrections to improve the conditions of confinement. That is, Plaintiffs do not ask to improve the cleanliness of the prisons, or increase the amount of space between inmates at each facility, and so on. Instead, Plaintiffs ask this Court to force the state executive branch to start a process for the potential release of thousands of inmates, through medical furlough or home detention under state law, and do so within one week. The scope of the potential release is sweeping. By their own admission, Plaintiffs want a process to potentially release at least 12,000 inmates, almost one-third of the prison population in Illinois. Defendants submit that they have a process and already are doing most of what Plaintiffs are requesting in their proposed remedial plan—albeit not at the pace Plaintiffs would like to see.
The immediate question before the Court is whether Plaintiffs are entitled to some form of immediate relief—in the form of a temporary restraining order, a preliminary injunction, or writs of habeas corpus—imposed by a federal court on state officials. For several reasons explained below, the Court answers that question in the negative and denies the requested relief. Plaintiffs are correct in asserting that the issue of inmate health and safety is deserving of the highest degree
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of attention. And the record here shows that the authorities in this state are doing just that, with constantly evolving procedures increasing the number of inmates released on a daily basis. But the release of inmates requires a process that gives close attention to detail, for the safety of each inmate, his or her family, and the community at large demands a sensible and individualized release plan—especially during a pandemic. Even if the steps Illinois has taken and the pace with which they are proceeding is not exactly what Plaintiffs want, those steps and that pace plainly pass constitutional muster. Plaintiffs have provided no convincing reason for a federal court to intrude here and now—either to issue a blanket order for the release of thousands of inmates or to superimpose a court-mandated and court-superintended process on the mechanisms currently in place to determine which IDOC inmates can and should be safely removed from prison facilities at this time.
The care of state inmates is entrusted, in the first instance, to state officials, unless the conditions rise to the level of constitutional violations. And state law empowers state officials with the discretion to release individual inmates for medical furlough or home detention, if they deem it appropriate. This Court concludes that Plaintiffs have no likelihood of success on their constitutional claims because the record does not support the notion that the Defendants are showing deliberate indifference to the inmates’ plight or discriminating against inmates with disabilities. Even if they had a colorable claim, Plaintiffs’ request for release is untenable on a class-wide basis because the possibility of release is an inherently inmate-specific inquiry. Other considerations – such as the public interest from the potential release of thousands of inmates – weigh heavily in the analysis, too. In the end, this Court concludes that Plaintiffs are not entitled to their request for extraordinary relief, even in these extraordinary times.
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I. Background2 The named Plaintiffs are ten individuals convicted of a range of felonies, including murder,
aggravated kidnapping, and attempted robbery. See Money v. Pritzker, 20-cv-2093 (hereinafter “Pritzker”), [26 at ¶¶ 93-102]. They are currently serving sentences in various Illinois Department of Corrections (“IDOC”) facilities, none of which are in Cook County. See [id. at ¶¶ 8-17.] IDOC operates 28 adult correctional facilities throughout the State of Illinois, houses around 37,000 individuals, and has 11,600 employees. [Id. at ¶ 69.] Plaintiffs have brought two purported class action lawsuits—Pritzker and Money v. Jeffreys (hereinafter “Jeffreys”), 20-cv-2094—seeking release of prisoners from IDOC facilities in light of the COVID-19 pandemic.
Money v. Pritzker, 20-cv-2093, contains three counts, of which the first two are brought under 42 U.S.C. § 1983. Count I asserts that Defendants are violating the Eighth Amendment through deliberate indifference to a serious risk of harm, while Count II asserts a violation of Plaintiffs’ right to due process under the Fourteenth Amendment. Count III asserts violations of the Americans with Disabilities Act (“ADA”). The complaint names as defendants J.B. Pritzker, Governor of Illinois, and Rob Jeffreys, Director of the Illinois Department of Corrections. Money v. Jeffreys, 20-cv-2094, is a petition for writs of habeas corpus under 28 U.S.C. § 2254 for relief from custody in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. It names Rob Jeffreys as the respondent. Both suits are purportedly brought on behalf of the named plaintiffs and all similarly situated individuals.
2 The facts are taken from the plaintiffs’ complaints and from materials cited by the parties that are the proper subject of judicial notice. The Court may take judicial notice of material whose contents are “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned,” Driebel v. City of Milwaukee, 298 F.3d 622, 622 n.2 (7th Cir. 2002) (quoting Fed. R. Evid. 201(b)), and documents incorporated in a complaint, Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th Cir. 2002).
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The foundation of each suit is essentially the same: Plaintiffs argue that the prison setting makes them (and other purported class members) especially vulnerable to COVID-19, that the state government’s responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.
A. Factual Background COVID-19 is a disease caused by a novel coronavirus that began infecting humans in late 2019. Symptoms include fever, cough, shortness of breath, congestion, sneezing, fatigue, and diarrhea. Pritzker, [1 at ¶ 25.]3 While some cases are mild, others require medical intervention, including hospitalization and intensive care. [Id.] The virus spreads from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects. [Id.] It is highly contagious. Currently, there is no vaccine to protect against infection by COVID-19. To prevent infection and mitigate the spread of the virus, the Center for Disease Control (“CDC”) and other public health agencies have universally prescribed social distancing—every person should remain at a distance of at least six feet from every other person—and rigorous hygiene—including regular and thorough hand washing with soap and water, the use of alcohol-based hand sanitizer, proper sneeze and cough etiquette, and frequent cleaning of all surfaces. [1. at ¶ 31.] The CDC recommends avoiding gatherings of more than 10 people. [Id. at ¶ 32.] Individuals in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of contracting COVID-19, as demonstrated by the rapid spread of the virus through cruise ships and nursing homes. [Id.]
3 The complaints in the Pritzker Section 1983 action and the Jeffreys habeas action are quite similar, and in some places identical. For simplicity and to avoid duplication, where a fact applies to both matters and is cited in both complaints, the Court cites to the Pritzker complaint, as it was filed first.
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Despite social distancing recommendations, the disease has continued to spread. The World Health Organization has declared COVID-19 to be a global pandemic. [1 at ¶ 20.] On March 9, 2020, Illinois Governor J.B. Pritzker issued a proclamation declaring a disaster in the State of Illinois. [Id.] On March 13, 2020, President Trump declared a national emergency. [Id.] In the United States alone, as of April 1, 2020, there were over 186,000 confirmed cases and over 3,600 deaths. In Illinois, there were over 6,900 confirmed cases and 141 deaths. [Id. at ¶ 21.] On the same date, 52 prisoners in IDOC facilities in two different correctional centers (Stateville and North Lawndale ATC) had confirmed cases of COVID-19, and 25 staff in seven different correctional centers (Stateville NRC, Stateville, Sheridan, North Lawndale ATC, Menard, Joliet Treatment Center, and Crossroads ATC) had confirmed cases. [Id. at ¶ 71.] St. Joseph Hospital in Joliet, Illinois was, at the time the parties filed briefs in these matters, caring for 17 prisoners from Stateville, 9 of whom are in intensive care on ventilators. [Id. at ¶ 44.] On March 30, 2020, health officials announced that a prisoner in his 50s housed at Stateville Correctional Center had died from COVID-19. [Id. at ¶ 72.]4
As things stand, the coronavirus continues to spread. According to the Coronavirus Resource Center of Johns Hopkins University, the United States has reported 461,437 cases, and 16,478 deaths, as of yesterday evening. See https://coronavirus.jhu.edu/data/new-cases (last visited April 10, 2020). According to the Illinois Department of Health, there are 16,422 confirmed cases in Illinois, including 528 deaths. See https://coronavirus.illinois.gov (last visited April 10, 2020).
4 As of today, IDOC reports 134 confirmed cases of COVID-19 among the population of incarcerated individuals in all of its facilities [see 36, at 3]. 118 of those cases involve inmates at Stateville, with the remaining 16 spread out among a handful of the 27 other facilities in the IDOC system. See https://www2.illinois.gov/idoc/facilities/Pages/Covid19Response.aspx (last visited April 10, 2020).
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Plaintiffs attached to both complaints a series of affidavits from medical professionals describing the seriousness of COVID-19 in a prison context and the limits of correctional facilities’ ability to prevent or mitigate the spread of the disease. See Pritzker, [2]; Jeffreys, [1-1 through 110]. Among the primary points of those declarations are the following. Plaintiffs allege that none of the recommended measures for mitigating the spread of COVID-19 are available for persons confined in correctional facilities and for those who must interact with them. Correctional facilities are congregate environments, where large groups of people live, eat, and sleep in close contact with one another, making social distancing impossible. Pritzker, [1 at ¶ 36.] People share toilets, sinks, and showers, and often have limited access to soap, hand sanitizer, hot water, and other necessary hygiene items. Surfaces are infrequently washed, if at all, and cleaning supplies are limited. [Id. at ¶ 37.]
B. Responses by the State of Illinois to the COVID-19 Crisis The State of Illinois has taken a variety of actions in response to the COVID-19 crisis, including Governor Pritzker’s March 20, 2020 “stay at home” order directing all non-essential business operations to cease and all residents to stay in their homes except for essential activities. [1 at ¶ 33.] The order is currently in place through April 30, 2020. [Id.] IDOC has enacted measures consistent with CDC guidelines to protect those who are housed and work in Illinois prisons, including a pandemic response plan (including a plan specific to Stateville), enhanced screening and testing for COVID-19, increased hygiene and sanitation, new limits (and now a prohibition) on outside visitors, and increased separation of prisoners through an administrative quarantine. Pritzker, [26, at 2.] Governor Pritzker and IDOC have taken a number of actions to address COVID-19 in Illinois’ prisons, the most relevant of which are listed below. See [id. at 4-6].
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• Governor Pritzker suspended admissions of new prisoners from all Illinois county jails, with limited exceptions (Executive Order 2020-13; see also Executive Order 2020-18 (extending Executive Order 2020-13 through April 30, 2020).
• Governor Pritzker activated the Illinois National Guard to provide additional medical support at Stateville. Pritzker, [1 at ¶ 91], [9 at 48].
• Governor Pritzker continues to review and grant commutation petitions.
• To allow for faster releases of prisoners, Governor Pritzker suspended the required 14-day notification to State’s Attorneys for inmates released early as a result of earned sentence credit for good conduct. Executive Order 2020-11; see also Executive Order 2020-18 (extending Executive Order 2020-11 through April 30, 2020).
• On April 6, 2020, Governor Pritzker suspended the 14-day limit for medical furloughs and allowed furloughs for medical purposes at the Director’s discretion and consistent with the guidance of IDOC’s medical director. Executive Order 2020-21.
• IDOC created a population management task force for the purpose of prioritizing the review of individuals for possible release through statutorily permissible means.
• IDOC, as of April 6, 2020, had released approximately 450 prisoners through various forms of sentence credit, restoration of credit and electronic detention and had provided an additional 65 furloughs.
• Between March 2 and April 6, 2020, IDOC reduced its population by more than 1,000 prisoners.
• IDOC continues to award up to 180 days of Earned Discretionary Sentencing Credit (EDSC) for eligible offenders pursuant to 730 ILCS 5/3-6-3(a)(3).5
• On a daily basis, IDOC identifies offenders within nine months of their release date and conducts individualized reviews to determine whether they are eligible for early release. This process requires examining an offender’s file for disciplinary history, commitment to rehabilitation, and criminal history.6
5 The sentencing credit is within the sole discretion of the Director, but must be based on the results of a risk or needs assessment, circumstances of the crime, any history of conviction for a forcible felony, the offender’s behavior and disciplinary history, and the inmate’s commitment to rehabilitation, including participation in programming. 730 ILCS 5/3-6-3(a)(3). The Director is prohibited from awarding discretionary sentencing credit to any inmate unless the inmate has served a minimum of 60 days. Id.
6 Offenders with forcible felonies, violent criminal histories, significant disciplinary issues, and outstanding warrants are not approved for the sentencing credit.
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• IDOC continues to place offenders on electronic monitoring or home detention pursuant to 730 ILCS 5/5-8A-3, including 16 of 21 pregnant and postpartum offenders on home detention. IDOC is now concentrating on inmates who are 55 years or older, have served at least 25% of their sentence and are within 12 months of release. This process also requires individual assessments to determine whether placement outside of a secure facility is appropriate.
• The Prison Review Board (“PRB”) continues to conduct release revocation hearings and make individualized assessments that include the alleged violations, the safety of those in custody, and overall public health concerns.
• The Governor’s Office is working with outside groups such as the SAFER Foundation7 and TASC8 to identify and secure safe host sites and provide wraparound services to support potential releasees.
• Lt. Governor Juliana Stratton, along with the SAFER Foundation, developed the Prison Emergency Early Release Response (PEERR) team, which is creating a referral network of human services, healthcare, housing, and reentry providers that are open, whether in person or remotely, and can deliver services to people being released from IDOC custody.
• Effective March 14, 2020, all correctional facilities, impact incarceration programs, and work camps are under administrative quarantine with no visitors permitted.
• Facilities with confirmed COVID-19 cases are placed on lockdown, which means there is no movement around the facility except for medical care.
• Staff who work with individuals in isolation and quarantine, as well as in healthcare units, are wearing full personal protective equipment (PPE) and all staff are wearing some PPE.
• Staff members’ temperatures are checked daily as they enter the facility.
• IDOC has (1) educated staff on infection control, (2) promoted good health habits that interrupt transmission, (3) conducted frequent environmental cleaning of high touch surfaces and high volume locations, (4) made efforts to separate the sick from the well and employ social distancing and (5) provided ongoing infection control education to prisoners.
7 The SAFER Foundation is a nonprofit social impact organization that focuses on human capital development for people with criminal records.
8 TASC is a nonprofit organization that provides direct services and performs advocacy and consulting work for individuals and families affected by substance abuse and mental health issues.
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It also bears mentioning that as of today at noon, 644 inmates have been released from IDOC custody using all of the methods available and the total IDOC inmate population has been reduced by 1,441 since March 2, 2020. [See 36, at 2.] Included within these totals are the commutations of two of the named Plaintiffs, James Money and Carl Reed, announced by Governor Pritzker on April 8, 2020. [34, at 4.]
Plaintiffs assert that reducing the prison population is the only meaningful way to prevent the harms posed by COVID-19 in the prison setting, writing:
Public health experts with experience in correctional settings have similarly recommended the release from custody of people most vulnerable to COVID-19 to protect the communities inside and outside the prisons, and to slow the spread of the COVID-19 infection. Population reduction protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a correctional facility. Because prisons are often located in small rural communities, removing the most vulnerable people from custody also reduces the burden on those region’s limited health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and require hospitalization in these small communities. Pritzker, [1 at ¶46] (emphasis added). C. Procedural Background On April 2, 2020, plaintiffs filed a purported class action complaint under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment and the due process clause of the Fourteenth Amendment, as well as violations of the ADA. Pritzker, [1]. Plaintiffs also filed a motion for class certification, Pritzker, [8], seeking to certify a class of “all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic,” [id. at 5-6], with the following subclasses: Subclass 1: People who have serious underlying medical conditions that put them at particular risk of serious harm or death from COVID-19 * * * and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1.
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Subclass 2: People who are medically vulnerable to COVID-19 because they are 55 years of age and older and who are eligible for medical furlough pursuant to 730 ILCS 5/3-11-1. Subclass 3: People who are 55 years of age and older with less than one year remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(d). Subclass 4: People who are currently in custody for Class 2, 3, or 4 offenses and who are eligible for home detention pursuant to 730 ILCS 5/5-8A-3(e). Subclass 5: People who are currently in custody for Class 1 or Class X offenses with less than 90 days remaining on their sentence and eligible for home detention pursuant to 730 ILCS 5/5-8A-3(b) and (c). Subclass 6: People who are scheduled to be released within 180 days and eligible to receive sentencing credit pursuant to 20 Ill. Admin. Code 107.210. [Id. at 6-7]. Subclass 1 contains approximately 12,000 individuals, and subclass 2 contains approximately 4,800 individuals. Pritzker, [1 at ¶105]. Plaintiffs also filed a motion for a temporary restraining order (“TRO”) or a preliminary injunction. Pritzker, [9]. That motion asks the Court to preliminarily certify Plaintiffs’ proposed subclasses 1 and 2 and to order Defendants to transfer members of subclasses 1 and 2 to their homes to self-isolate via a temporary medical furlough. [Id. at 70-71]. On the same day that the Section 1983 complaint was filed, Plaintiffs also filed a petition for writs of habeas corpus, Jeffreys, [1], purportedly on behalf of themselves and all other similarly situated individuals. They seek to represent a class consisting of “all people who are currently or who will in the future be housed in an IDOC prison during the duration of the COVID-19 pandemic.” [Id. at ¶ 111.] Plaintiffs (or Petitioners in habeas parlance) articulate the same six subclasses they claim to represent as are laid out in the Section 1983 complaint. See [id.]. The petition seeks immediate medical furlough for individuals in subclasses 1 and 2, immediate transfer to home detention of members of subclasses 3, 4, and 5, and immediate award of 180 days
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of sentencing credit to members of subclass 6. [Id.] With the petition, Plaintiffs filed a motion for an expedited hearing. Jeffreys, [3]. II. Legal Standard
Preliminary injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original) (quotation marks and citation omitted); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same). The Seventh Circuit uses a two-step analysis to assess whether preliminary injunctive relief is warranted. See Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1085–86 (7th Cir. 2008). This analysis is the same one that is used to determine if a TRO is warranted. Gray v. Orr, 4 F. Supp. 3d 984, 989 n.2 (N.D. Ill. 2013). “In the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Turnell v. CentiMark Corp., 796 F.3d 656, 661–62 (7th Cir. 2015). If the movant makes the required threshold showing, then the court moves on to the second stage and considers: “(4) the irreparable harm the moving party will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties,” i.e., the public interest. Id. at 662. The court must pay “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). The Court balances the potential harms on a sliding scale against the movant’s likelihood of success. The greater the movant’s likelihood of success, “the less strong
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a showing” the movant “must make that the balance of harm is in its favor.” Foodcomm Int’l v. Barry, 328 F.3d 300, 303 (7th Cir. 2003).
Plaintiffs seek a mandatory preliminary injunction—that is, an injunction requiring an affirmative act by the defendant. Because a mandatory injunction requires the court to command the defendant to take a particular action, it is “cautiously viewed and sparingly issued.” Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)); see also W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (“mandatory injunctions are rarely issued and interlocutory mandatory injunctions are even more rarely issued, and neither except upon the clearest equitable grounds” (quotation marks and citation omitted)); ChoiceParts, LLC v. Gen. Motors Corp., 203 F. Supp. 2d 905, 914 (N.D. Ill. 2002) (same).
The preliminary injunction, or even TRO, that Plaintiffs seek would give them much of the relief the Pritzker action requests, and likely all of the relief that subclasses 1 and 2 request. This type of request, which “give[s] the movant substantially all the relief he seeks,” “is disfavored, and courts have imposed a higher burden on a movant in such cases.” Boucher, 134 F.3d at 827 (citing Selchow & Righter Co. v. Western Printing and Lithographing Co., 112 F.2d 430, 431 (7th Cir. 1940); Phillip v. Fairfield University, 118 F.3d 131, 133 (2d Cir.1997); SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098–99 (10th Cir. 1991); Dakota Indus., Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991); and Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808 (9th Cir. 1963)); see also W.A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”); Hanover Ins. Grp. v. Singles Roofing Co., 2012 WL 2368328, at *11 (N.D. Ill. June 21, 2012) (because the plaintiff amended the complaint to seek
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both preliminary and permanent relief, granting a TRO or preliminary injunction would not give the plaintiff “the actual advantage which would be obtained in the final decree” (quoting W.A. Mack, 260 F.2d at 890)); Harlem Algonquin LLC v. Canadian Funding Corp., 742 F. Supp. 2d 957, 962 (N.D. Ill. 2010) (“‘[i]t is one thing for a court to preserve its power to grant effectual relief by preventing parties from making unilateral and irremediable changes during the course of litigation, and quite another for a court to force the parties to make significant alterations in their practices’ before a trial on the merits. So much more so if the alteration would amount to irreversible final relief.” (citation omitted)). III. Discussion
A. Section 1983, Habeas, or Both? Since the initiation of this litigation the question of why Plaintiffs filed two separate lawsuits advancing essentially the same allegations and requesting essentially the same relief has perplexed the Court. It appears to have challenged the parties as well. In their reply brief, Plaintiffs complain that “Respondent cannot have it both ways.” [24, at 8.] Indeed, a careful review of the briefs shows that both sides are guilty of taking somewhat inconsistent positions across the two cases. This observation is not surprising, nor is it meant disparagingly, for the briefs were remarkable both in their quantity and quality—and all the more so in the time frame given to accommodate the exigent circumstances. But the question remains, is it even proper to bring a Section 1983 action and a petition for writ of habeas corpus at the same time on the same facts seeking the same remedy? As explained below, the answer (though not without doubt) seems to be yes. It is an accepted practice to plead alternative—and even inconsistent—theories of relief, but ordinarily this takes place within a single action. Nonetheless, as the declaration of Professor
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Resnik filed with Plaintiffs’ reply brief explains, “the intersection of habeas and civil rights claims brought under 42 U.S.C. § 1983” constitutes “a dense area of law and doctrine that can be daunting for litigants and jurists alike.”9 [24-3 at 5-6.] As Professor Resnik notes, the “shorthand” version of the divide between habeas and Section 1983 goes like this: “when the fact or duration of confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are challenging conditions of confinement, § 1983 is the method.” [Id. at 6.] This shorthand is a bit too simple, however, because a habeas petitioner seeks release from custody. See 28 U.S.C. § 2254(a) (habeas statute allows challenges to “custody in violation of the Constitution or laws or treaties of the United States”). This is an important point, because Plaintiffs here stress that “they do not seek relief from the underlying criminal judgments * * * [n]or do they seek speedier release from custody.” [28, at 9.] See Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (explaining that a claim seeking to reinstate “work release” with “less confinement than ordinary imprisonment” was a Section 1983 claim because it did not challenge the inmate’s custodial status). Instead, they are asking to be released from prison temporarily, “while remaining in the custody and control of IDOC.” [24, at 2.] They also emphasize that they “challenge only the conditions of their confinement.” [28, at 9.] Those concessions support the proposition that Section 1983 provides a proper rubric for analysis. Yet, Plaintiffs do seek as a remedy at least temporary release from the physical confines of not only their cells, but the entire prison environment, which they contend is unsafe because (in Professor Resnik’s words) “density puts people at medical risk.” [24-3 at 6.]
9 Professor Resnik’s work is well-known to the Court. She is unquestionably one of the nation’s leading experts in civil procedure and prison litigation, both as an academic and as a practitioner on behalf of plaintiffs. Her succinct discussion of the “legal thicket” in which the parties find themselves in these two cases has provided the equivalent of an amicus brief for which the Court is most appreciative.
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This conundrum is not simply an academic exercise, for “Congress has channeled and circumscribed some of federal judicial authority” in this area, through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Prison Litigation Reform Act (PLRA) of 1996, and the Supreme Court too has provided guidance in this area. [24-3 at 5.] The case law clearly holds that the PLRA applies in Section 1983 suits, but not to habeas petitions. See, e.g., Jones v. Bock, 549 U.S. 199, 200 (2007) (“PLRA claims are typically brought under 42 U.S.C. § 1983[.]”); Walker v. O'Brien, 216 F.3d 626, 639 (7th Cir. 2000) (“the requirements of the PLRA do not apply to properly characterized habeas corpus actions”). And it expressly reflects the traditional shorthand understanding of the differences between the two types of actions, as its provisions apply to civil actions “arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison,” but expressly exclude “habeas proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2).
Together, the statutes and case law weave a thick and tangled web. As Professor Resnik further explains, “because state prisoners who rely on 28 U.S.C. § 2254 have to exhaust state judicial remedies, they may seek to use § 1983, to which that requirement does not apply. And, because the PLRA affects § 1983 litigants, prisoners may hope to avoid its strictures by filing under habeas.” [24-3 at 6.] Those two sentences identify the precise dilemma that faced counsel for Plaintiffs as they contemplated their legal options in the present circumstances. On the one hand, many cases view Eighth Amendment claims like those asserted here “to be appropriate for § 1983 because they relate to conditions.” [Id.] On the other hand, the unique context in which litigation over COVID-19 arises may cast some doubt on that seemingly obvious proposition because the sudden threat to mortality from the spread of the virus in a congregate setting may
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affect the fact or duration of confinement. These unprecedented circumstances, Professor Resnik posits, “collapse the utility and purpose of drawing distinctions between what once could be coherently distinguished” and lead to the conclusion that “COVID-19 claims ought to be cognizable under both provisions.” [Id.]
The upshot of the foregoing analysis is that it is abundantly clear that Plaintiffs may proceed on their claims under Section 1983 and at least plausible—though far less certain—that they also have a right to seek habeas relief as well. To test the latter proposition, the Court looks to the controlling decisions of the Supreme Court and the Seventh Circuit. Those cases reveal neither a ringing endorsement nor an outright prohibition. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (U.S. 2017) (“we have left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus”); Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979) (“we leave to another day the question off the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the constraints making custody illegal”); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (“While the Supreme Court left the door open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified”). As Petitioners recognize [24, at 17], the Seventh Circuit’s reading of Preiser “is narrower than that of other circuits.” Still, given (1) Ziglar’s continued recognition that the question remains open and (2) the exigent circumstances present in this litigation, the Court will consider Petitioners’ habeas claim after assessing Plaintiffs’ request for the same relief under Section 1983.
B. Direct Release or a “Process”?
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There is a second threshold issue to note at the outset. In their complaint—and likewise in the habeas action—Plaintiffs requested immediate medical furloughs for subclasses 1 and 2, immediate transfers to home detention for subclasses 3, 4, and 5, and an immediate award of good time credit for subclass 6, along with the appointment of a special master. Their opening brief in support of emergency injunctive relief on behalf of subclasses 1 and 2 likewise sought a direct transfer order [see 9, at 55.] In their reply, Plaintiffs complain that Defendants have “mischaracterize[d] the relief plaintiffs are seeking, suggesting that plaintiffs seek to unleash a tsunami of dangerous ‘felons’ on unwitting communities, when in reality no such thing is true.” [28, at 1.] Perhaps that is not what Plaintiffs intended by initiating this lawsuit, but one can hardly blame Defendants for drawing that conclusion based on how Plaintiffs’ request for relief was framed at the start of this litigation.
In an ordinary case, a significant transformation in how the plaintiff frames the object of the case often is dealt with by the filing of an amended complaint that puts Defendants on notice that the game has changed. Needless to say, this is no ordinary case and allowance must be made for adjustments on the fly. As of this Monday, Plaintiffs had provided a clear indication of such a change in direction, explaining that they do not assert a right to an order directly commanding an immediate furlough—as the complaint stated—but instead “seek a process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly” [24, at 6.] Plaintiffs have further proposed a “remedial plan” pursuant to which this court-ordered and court-supervised process would unfold. [Id. at 5.] Given the disconnect between Plaintiffs’ initial filings last week and their briefs filed this week, one cannot fault Defendants for characterizing Plaintiffs’ revised position as “backpedaling” [26, at 16] or for seeking leave to file a sur-reply [32], which the Court
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has accepted. Nor can one cast aspersions on Plaintiffs for crafting an evolving proposal to deal with an evolving situation on the ground. The important thing for purposes of the litigation is that the parties have had an adequate opportunity to understand the claims as they exist today and to state their positions in advance of a ruling. The extensive briefs reflect a fair—indeed, an extensive—exposition of the issues, both as presented in the complaint and initial brief and as modified in the later briefs. In the interest of completeness, the Court will address both iterations of Plaintiffs’ claims.
C. Section 1983 Claim 1. The PLRA
Turning first to Plaintiffs’ Section 1983 claims, the Court must confront yet another threshold issue which the parties have briefed extensively—namely, the application of the PLRA to Plaintiffs’ claims. As noted above, through the PLRA, Congress “channeled and circumscribed some of federal judicial authority” in ways that “affect[] § 1983 litigants.” [24-3 at 5.] Although the PLRA is codified at 42 U.S.C. § 1997e, it encompasses the provisions of 18 U.S.C. § 3626, which is titled “appropriate remedies with respect to prison conditions.” Section 3626 begins by stating that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). It also directs courts to “give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief.” Id. The term “civil action with respect to prison conditions” is defined broadly to include “any civil proceeding arising under Federal law with respect to the conditions of confinement and the effects of actions by government officials on the lives of persons confined in prison,” but explicitly “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.”
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18 U.S.C. § 3626(g)(2). The statute specifically addresses preliminary injunctive relief, mandating that any such relief in a case involving prison conditions “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2).
The application of the provisions discussed in the preceding paragraph is not disputed between the parties. The parties part ways, however, in regard to whether the relief requested falls within the meaning of the PLRA’s special procedures for consideration of a “prisoner release order.” 18 U.S.C. § 3626(a)(3). The statute defines that term to “include[] any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). No court may enter a prisoner release order unless it “has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(1)-(2). If those strictures have been satisfied, only a three-judge court can actually consider and issue a prisoner release order—and even then only if it finds by clear and convincing evidence that “crowding is the primary cause of the violation of a Federal right” and “no other relief will remedy the violation.” 18 U.S.C. § 3626(a)(3)(E)(i)-(ii).
2. Prisoner Release Orders Under the PLRA In looking for guidance on how to address the parties’ dispute concerning the reach of the PLRA’s limitations on “prisoner release orders,” the Court has endeavored to locate prior decisions in which a federal court has been asked to get involved in the potential transfer of thousands of state inmates out of state prisons through any available vehicle on the basis of their conditions of
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confinement. The Court has found—and the parties have cited—just two, which went together from the federal district courts in California all the way to the Supreme Court and then back again, and still remain open today, though in a largely dormant phase. See Coleman v. Newsom, Case No. 2:90-cv-0520 KJM DB P (E.D. Cal.) & Plata v. Newsom, Case No. 4:01-cv-01351-JST (N.D. Cal.), --- F. Supp. 3d. ---, 2020 WL 1675775, at *3 (Three-Judge Court April 4, 2020) (explaining that since 2015, the three-judge court has “largely stepped back as the individual Coleman and Plata courts have continued to work” on the compliance phase of the cases). Because of the uniqueness of the relief requested here, a discussion of the most analogous cases appears in order.
In Brown v. Plata, 563 U.S. 493 (2011), the Supreme Court upheld an order of a threejudge district court requiring California to reduce its prison population to 137.5 percent of design capacity within two years. In that case, two lawsuits were brought by California prisoners with serious mental disorders challenging prison crowding and inadequate mental health care as Eighth Amendment violations. In one of the cases, a special master was appointed to oversee development and implementation of a remedial plan. In the other case, the state stipulated to a remedial injunction, but failed to comply with the injunction, after which the district court appointed a receiver to oversee remedial efforts. The plaintiffs in both cases requested that a threejudge panel of the district court be convened pursuant to the PLRA, 18 U.S.C. § 3626(a)(3). Both district courts granted the motions and the cases were consolidated before a three-judge panel. The three-judge court, after determining that plaintiffs suffered from constitutional violations that were caused primarily by overcrowding, entered a remedial order requiring the State of California to reduce its prison population to 137.5 percent of design capacity within two years.
The Governor appealed and the Supreme Court affirmed. The Court determined that the PLRA's requirement of allowing the state a reasonable amount of time to comply with previous
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court orders was satisfied where, when the three-judge district court was convened, 12 years had passed since the appointment of a special master to oversee development and implementation of a remedial plan and the basic plan to solve the crisis through construction, hiring, and procedural reforms had remained unchanged for years. Plata, 563 U.S. at 514-15. The Court also held that the evidence supported the three-judge court’s determination that crowding was the primary cause of the Eighth Amendment violations and that no other relief would remedy the violations. The evidence showed that there were severe, months-long delays and backlogs for prisoners needing urgent mental health and physical care, as well as unsafe and unsanitary living conditions caused by crowding. Id. at 519-20. Further, the Court determined that the three-judge court properly gave substantial weight to public safety, finding various available methods of reducing overcrowding that would have little or no impact on public safety, such as expansion of good-time credits and diversion of low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring. The Court noted that the three-judge court’s order “took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding.” Id. at 537. Finally, the Court concluded that the cap of 137.5 percent capacity was supported by evidence in the record, including expert witnesses who recommended a 130 percent population limit and the federal BOP’s own long-term goal of 130 percent. Id. at 539-40.
As the foregoing illustrates, the only instance of which the Court is aware that a federal court has been involved in ordering the release of thousands of state prisoners took place in radically different circumstances—after the passage of 12 years, the development of a full record, the input of both a special master and a receiver, and a trial lasting almost three weeks. Clearly there is no time for even a fraction of that attention, so the Coleman/Plata experience may have
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little to offer in the way of guidance, except in its application of the order of operations under the PLRA—the preliminary requirements for issuing a less intrusive order, the reasonable opportunity to comply, and what type of claim requires the appointment of a three-judge court. But there is a recent postscript that may offer greater insight on how the PLRA should apply in this case.
Less than a week ago, the same three-judge panel in California whose work was reviewed by the Supreme Court in Plata issued an order denying an emergency motion seeking release of “an unspecified, but significant, number of prisoners so that the prison population can be reduced to a level sufficient to allow physical distancing to prevent the spread of COVID-19.” Coleman & Plata, 2020 WL 1675775, at *1. As in this case, the plaintiffs there sought an order directing the Governor of California and other state officials “to release to parole or post-release community supervision” certain categories of inmates who were low risk, non-violent, and/or close to their release dates and “to release or relocate inmates who, because of their age or other medical conditions, are at a high risk of developing a severe form of COVID-19.” Id. at *3. Although the plaintiffs did not specify a number of inmates who fall within those categories, they argued that the number should be sufficient “to allow all remaining inmates to practice physical distancing, especially those who reside in crowded dorm housing.” Id. They requested that specific relief based on the CDC’s guidance that “[t]hus far, the only way to stop [COVID-19’s] spread is through preventive measures—principal among them maintaining *** physical distancing sufficient to hinder airborne person-to-person transmission,” which is “uniquely difficult in a congregate environment like a prison.” Id. at *5 (citing CDC guidance).
The panel determined that it lacked authority to consider the request because it was “not actually a modification of the 2009 order but rather new relief based on the new threat of harm posed by COVID-19.” Coleman & Plata, 2020 WL 1675775, at *4. But perhaps significantly for
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present purposes, the panel gave every indication that all phases of the PLRA’s remedial scheme— including the appointment of a new three-judge court—could apply to the type of relief sought by the Plaintiffs in California, which closely mirrors the relief sought for subclasses 1 and 2 in the complaint here—especially in regard to the request to “release or relocate” older inmates and those who are especially vulnerable due to medical conditions. To begin, the panel noted that as of the time of its ruling the Plaintiffs “likely cannot satisfy the [PLRA’s] prior order requirement because there have not yet been any orders requiring Defendants to take measures short of release to address the threat of the virus; nor have Defendants had a reasonable time in which to comply.” Id. at *4.10 The panel further observed that the plaintiffs retained the option to “go before a single judge to press their claim that Defendants’ response to the COVID-19 epidemic is constitutionally inadequate.” Id. at *7. It added that “[i]f a single-judge court finds a constitutional violation, it may order Defendants to take steps short of release necessary to remedy that violation.” Id. However, “if that less intrusive process proves inadequate,” the Court concluded, “Plaintiffs may request, or the district court may order sua sponte, the convening of a three-judge court to determine whether a release order is appropriate.” Id. In this Court’s view, the clear impression to be drawn from the California panel’s opinion is that, in its view, claims seeking an order to “release or relocate” inmates on account of the COVID-19 pandemic may implicate every aspect of the PLRA’s remedial scheme, including the appointment of a three-judge court.
3. Are Plaintiffs Requesting a “Prisoner Release Order”? With that discussion as prelude, the next question is whether Plaintiffs seek a “prisoner release order” within the meaning of Section 3626(a)(3) and (g)(4). If one focuses on Plaintiffs’ complaint and initial brief, this is obvious. Plaintiffs devote pages to describing the congregate
10 The panel recognized, as does this Court, “that what is reasonable in ordinary times may be quite different from what is reasonable in these extraordinary times.” Id. n.9.
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conditions in IDOC facilities in support of the proposition that crowded conditions inherent in living arrangements in a prison setting are unsafe during a pandemic. They then offer the opinions of numerous affiants who universally advance one message: the only solution is the immediate release of inmates in large numbers. A fair summary of the bulk of the complaint and brief in support of immediate injunctive relief is that the crowded conditions of IDOC facilities require the Court to issue an order immediately reducing the prison population in Illinois by ordering the members of proposed subclasses 1 and 2 to medical furloughs. In the Court’s view, if that were the relief Plaintiffs seek in this litigation, it unquestionably could be awarded only by a three-judge court under the PLRA.
As noted above, in their more recent filings, Plaintiffs submit that are not seeking a “mass release order.” Instead, Plaintiffs seek a “process through which subclass members eligible for medical furlough will be identified and evaluated based on a balancing of public safety and public health needs, and transferred accordingly.” [24, at 5.] All of Defendants’ briefs in this matter contend that such a process already is in place. But Plaintiffs find Defendants’ efforts wanting, and thus they request the Court’s involvement in the creation and oversight of a remedial plan that would result in “an expedited, individualized review and relocation” of inmates who qualify. [Id. at 10.] The order that the Court would issue to set that process in motion, Plaintiffs say, is not a “prisoner release order” within the meaning of the PLRA. Such orders, they argue, involve mass prisoner releases or population caps and issue only to remedy violations primarily caused by overcrowding. [See 24, at 7.] And that is not the kind of order they want.
The Court must look to the language of the PLRA, which speaks in detail and uses broad and categorical language in defining its scope. It does not speak of “mass” releases, “population caps,” or even “overcrowding”—though it does refer to “crowding,” which must be the “primary
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cause of the violation of a Federal right” to serve as the predicate for a release order under the statute. 18 U.S.C. § 3626(a)(3)(E). What it does say is that any order “that has the purpose or effect of reducing or limiting a prison population, or that directs the release from or nonadmission of prisoners to a prison” lies exclusively within the province of three-judge courts. 18 U.S.C. § 3626(g)(4). The reference to “crowding” may have the effect of removing single-plaintiff cases from within the ambit of Section 3626(a)(3), because an order involving only one inmate might not be viewed as reducing a prison population in any meaningful way.11
Plaintiffs stress that the transfers they hope to accomplish would not release any class members from custody; they would simply effectuate changes in the inmates’ physical locations, and the changes would be of a limited duration. Plaintiffs rely on Illinois statutes to show that they would remain in custody within the meaning of state law. But the PLRA does not focus on custodial status under state law, nor does it say anything about whether the reduction of population is temporary or permanent. The question is not whether Plaintiffs would remain in custody under state law. The question is whether the requested relief would have the “purpose” or the “effect” of “reducing or limiting the prison population,” or whether it would “direct[] the release from * * * a prison.” 18 U.S.C. § 3626(g)(4). There is no doubt that Plaintiffs’ request – even if couched in terms of a process – would have the purpose and the effect of reducing the population in Illinois prisons.
11 A single judge in California did order an “exclusionary order for medically vulnerable prisoners” during a “Valley Fever” epidemic several years ago. Plata v. Brown, 2013 WL 3200587, at *9 (N.D. Cal. June 24, 2013). In so doing, the judge rejected the notion that “a court could only order that prisoners be transferred from one prison to another if overcrowding were the primary cause of the violation.” Id. That seems correct and consistent with the orders entered not infrequently in cases involving inmate medical problems that may require hospitalization. [See 24, at 10]. But it does not help Plaintiffs, because there was no crowding issue at all raised in that instance.
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Plaintiffs also suggest that they do not seek a remedy for crowding (as the statute frames the issue) or overcrowding (as Plaintiffs frame it). But that contradicts the allegations of their complaint and their entire theory of the case. One of the central allegations in the complaint is that inmates are particularly vulnerable because they live in “congregate settings” in “close quarters” with each other. See Cmplt. at ¶ 1 (alleging that “[n]early 37,000 people are incarcerated in Illinois, living in close quarters”); id. (“social distancing guidelines can never be fully or effectively implemented in prison”); id. at ¶ 32 (alleging that “[p]eople in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19.”); id. at ¶ 36 (“Correctional facilities are inherently congregate environments, where large groups of people live, eat, and sleep in close contact with one another.”); id. at ¶¶ 37-38 (alleging that inmates are “all congregated together” and cannot “adequately distance themselves”); id. at ¶ 43 (alleging the “heightened risk posed by correctional settings” because of the close proximity); id. at ¶ 45 (alleging that there is a need to “eliminat[e] close contact in congregate environments”).
In addition, as the ultimate aim of these lawsuits Plaintiffs unmistakably seek to reduce the prison population. Reducing the prison population is not just a side effect of the case – it is the whole point. They want to remove inmates from prison because they are vulnerable in those facilities. See Cmplt. at ¶ 1 (alleging that the Governor and the IDOC need to “drastically reduce Illinois’s prison population”); id. at ¶ 3 (“[T]he state must take urgent steps to reduce, furlough, or transfer to home detention all that qualify.”); id. at ¶ 4 (alleging that the IDOC is “refusing to reduce the number of people living in IDOC”); id. at ¶ 5 (“Class members . . . must be released now.”); id. at ¶ 103 (discussing “Plaintiffs’ request for release from physical custody”). The Complaint cites declarations from five public health and correctional experts, all of whom
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“recommend[] the release from custody” of certain individuals. Id. at ¶ 46; see also id. at ¶ 47 (Dr. Robert Greifinger discussing the “release of individuals”); id. at ¶ 49 (Dr. Craig Haney discussing that “adult prisons must reduce their populations”); id. at ¶ 50 (Prof. Chris Breyer discussing the need to “reduce the number of persons in detention as quickly as possible”); id. at ¶ 51 (Dr. Jaimie Meyer discussing “[r]educing the size of the population in jails”); id. at ¶ 52 (Dan Pacholke discussing the need to “reduce the prison population”).
Moreover, the impetus for Plaintiffs’ claims is the living conditions inherent in a congregate setting during the COVID-19 epidemic. They do not distinguish in any respect among the 28 facilities and the myriad living arrangements within those facilities. All prison facilities, by definition, have living conditions that prevent inmates from practicing the social distancing required by current guidance from the CDC and our state government. As Plaintiffs write in their reply brief, there is “no way to make conditions safe within the congregate prison setting.” [24, at 11.] Defendants do not contest these allegations; in fact, they have repeated them publicly. But in asking that inmates be physically transferred from inside the prison to outside of it on the basis of these conditions, Plaintiffs plainly are implicating “crowding” as the primary cause of their concern. If prisons could be reconfigured to permit social distancing and observance of the CDC’s hygiene recommendations, Plaintiffs would have no claim.
Finally, shifting the focus from an order directly releasing subclasses 1 and 2 (as the complaint requested) to an order imposing a court-ordered and court-managed “process” for determining who should be released (as the briefs request) does not place this case outside of Section 3626(a)(3). Although there is a dispute over the exact number of inmates within proposed subclasses 1 and 2—because some inmates are members of both subclasses—the minimum number of inmates who would be subject to the procedures in any remedial plan is approximately
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12,000. See Cmplt. at ¶ 105 (“Plaintiffs estimate that Subclass 1 contains approximately 12,000” inmates).12 Plaintiffs insist that Defendants must act faster to move as many of those individuals to medical furlough as possible. The “purpose” of any order compelling the State to engage in that process would be to reduce the prison population, and the “effect” of its successful implementation would be the same, albeit indirectly. As Plaintiffs’ acknowledge, Defendants already have in place several mechanisms to reduce the IDOC census and hundreds of inmates have already been released. An order granting the requested relief would simply accelerate that process, placing the request squarely within Section 3626(a)(3)—which forbids this Court from granting it.
The upshot is that the PLRA prevents this Court from granting the temporary restraining order on the Section 1983 claim, for a number of reasons. First, the statute provides that “no court shall enter a prisoner release order unless * * * a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right,” and the defendants have “had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i), (ii). Here, there is no such “previous court order[].” Id. Second, the statute provides that “only” a “three-judge court” can enter a prisoner release order. 18 U.S.C. § 3626(a)(3)(B). So, this Court, standing alone, lacks the authority to issue any order that has the “purpose or effect of reducing or limiting the prison population.” Id.; 18 U.S.C. § 3626(g)(4). Third, the statute provides that “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Plaintiffs’ proposed
12 That figure is the floor, assuming that subclass 1 contains all of the inmates in subclasses 2-6. In reality, the number of eligible inmates covered by Plaintiffs’ plan is probably much higher. Subclass 1 contains 12,000 inmates. See Cmplt. at ¶ 105. Subclass 2 contains 4,807 inmates. Id. Subclass 3 contains 700 inmates. Id. Subclass 4 contains over 9,000 inmates. Id. Subclass 5 contains 2,401 inmates. Id. Subclass 6 contains 5,308 inmates. Id.
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plan does the opposite. Instead of proposing interim steps, Plaintiffs seek the most sweeping form of relief – a process to potentially release 12,000 inmates – right off the bat.
4. Provisional Class Certification Even if the Court were incorrect in its conclusion that all of the relief that Plaintiffs request falls within the scope of Section 3626(a)(3), and thus only could be granted by a three-judge court (after Plaintiffs obtain a less intrusive order and Defendants have a reasonable amount of time to comply), Plaintiffs would need to clear other serious obstacles before the Court could even reach the merits of their claims. One is Plaintiffs’ request that the Court consider granting conditional relief on a classwide basis. Federal Rule of Civil Procedure 23 governs class actions. The basic requirements are wellknown and simply stated: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. There are other requirements for money damages classes, but those do not apply here because the relief sought is injunctive only. See FRCP 23(a)(2). The first and fourth factors are essentially uncontested; the putative class numbers more than 10,000 individuals, the named Plaintiffs are appropriate, and class counsel are extremely well qualified for this type of litigation. Typicality is satisfied if the named plaintiff’s claims “arise from the same event or practice or course of conduct that gives rise to the claims of the other class members and [are] based on the same legal theory.” Lacy v. Cook County, 897 F.3d 847, 866 (7th Cir. 2018). Plaintiffs have made enough of a showing to clear that hurdle, too, at least for conditional certification on a motion for preliminary relief. That leaves the second element, commonality. Commonality requires at least one question common to all of the class members, the answer to which is “apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc.v. Dukes, 564 U.S. 338, 350 (2011). For present purposes, the quoted language is key. There are many questions
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common to the putative class members that bear on the subject of this litigation. Consideration of those questions undoubtedly drove the decisions of counsel in sorting Plaintiffs into six subclasses with particular characteristics held in common. But none of those questions is likely to drive the resolution of the case. The central dispute is not whether aged, infirm, and vulnerable inmates as a group should be given consideration for transfer or release. Defendants agree and by Plaintiffs’ own admission “are taking many actions on the list” of mechanisms available under state law for moving inmates out of IDOC facilities. [24, at 1.] Plaintiffs simply want the Court to “prod the defendants to act more quickly.” [Id. at 2.] And they acknowledge that any plan to do just that would require “individualized safety assessments” and “approve[d] home sites.” [28 at 5.]
The Court agrees. Indeed, the public interest—which must be taken into account when considering a TRO or preliminary injunction—mandates individualized consideration of any inmate’s suitability for release and on what conditions, for the safety of the inmate, the inmate’s family, and the public at large. From the inmate’s perspective, his or her own health status at the relevant time is paramount. Any inmate who is exhibiting symptoms of infection may be more suitable for quarantine or even transfer to a hospital. From the family perspective, an inmate who has been exposed to someone (inmate or IDOC personnel) who has tested positive may not be suitable for furlough, particularly if the inmate’s proposed destination is a residence already occupied by someone equally or more vulnerable. And from the public’s perspective, it is important to bear in mind that some portion of the incarcerated population has been convicted of the most serious crimes—murder, rape, domestic battery, and so on. Seven of the ten named Plaintiffs in fact are serving time for murder. As Plaintiffs rightly acknowledge, some release orders would be appropriate only with conditions, such as home detention or lesser forms of supervision. And those conditions can only be imposed with resources (e.g., electronic monitors)
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and personnel, who are both limited in supply and also subject to the same social distancing imperatives as everyone else.
The imperative of individualized determinations, recognized by both sides in this case, makes this case inappropriate for class treatment. Each putative class member comes with a unique situation—different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community. As Plaintiffs point out, commonality “does not require perfect uniformity.” [28, at 46 (citing cases).] But it does require more uniformity that these Plaintiffs would have on the only matter “apt to drive the resolution of the litigation” (Wal-Mart, 564 U.S. at 350)—namely, which class members should actually be given a furlough? And any attempt to use the class device even to formulate standards is destined to fail, because those standards largely are governed by the various state statutes authorizing different forms of release, which then are subject to wide discretion in their application.
Plaintiffs’ own plan underscores that they are seeking a highly individualized, inmate-byinmate form of relief. See Plaintiffs’ Draft Proposed Remedial Plan Related to their Request for a Temporary Restraining Order/Preliminary Injunction [24-1]. Plaintiffs want the IDOC to identify, “[w]ithin three days of the date of the order,” all inmates who fall within the broad parameters of a list of medical conditions. Id. So, the IDOC would need to identify which of the 37,000 inmates have a medical condition that qualifies. Then, “[w]ithin 7 days of the date of this order,” the IDOC “will use its discretion to transfer inmates” to medical furlough or home detention, unless the IDOC determines that it would poses a substantial danger to an identified person that outweighs the threat to the inmate’s health from incarceration. Id. As Plaintiffs acknowledge, an “[a]ssessment of the
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safety risk must be based on an individualized analysis, and not categorical exclusions (except those excluded offenses for furlough or transfer under the law).” By its very nature, the process would entail a highly individualized inquiry that is ill-suited to class treatment. Simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry.
Although the press of time does not permit deep reflection on the point, the Court can imagine that the analysis might be different if this were a more typical case. Class treatment might be appropriate where the Court has months or years to make decisions on individual aspects of a case—for example, an action arising out a common occurrence where liability would be established on a classwide basis, followed by individual damages assessments—or if the number of permutations were confined in some reasonable manner. But the permutations here are endless, as rarely, if ever, will any two plaintiffs be alike on the factors that matter at the point of decision. These differences are so vast and fundamental that class treatment, especially in the compressed time frame that would allow for effective relief at the height of the pandemic in Illinois, is completely unworkable.
5. Federalism and Separation of Powers Concerns Plaintiffs’ motion also raises serious concerns under core principles of federalism and the separation of powers, especially given their request for sweeping relief in the form of a mandatory injunction. See Missouri v. Jenkins, 495 U.S. 33, 51 (1990) (“[O]ne of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.”). The Supreme Court repeatedly has cautioned that federal courts must tread lightly when it comes to questions of managing prisons, particularly state prisons. The Court has gone so far as to opine that “[i]t is difficult to imagine an activity in which
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a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of prisons.” Preiser, 411 U.S. at 492-92; see also Turner v. Safley, 482 U.S. 78, 85 (1987) (“[W]here a state penal system is involved, federal courts have * * * additional reason to accord deference to the appropriate prison authorities.”); Meachum v. Fano, 427 U.S. 215, 229 (1976) (“Federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the States.”).
There are serious separation of powers concerns, too, because running and overseeing prisons is traditionally the province of the executive and legislative branches. See Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”). The judiciary is ill-equipped to manage decisions about how best to manage any inmate population—let alone a statewide population of tens of thousands of people scattered across more than a dozen facilities. And the concern about institutional competence is especially great where, as here, there is an ongoing, fast-moving public health emergency.
It is no accident that the federal judiciary only rarely intrudes into the management of state prisons, and only once in history has actually ordered the release of prisoners on a scale anywhere near what Plaintiffs hope to accomplish through this litigation. And in that instance, inmates were released only after a painstakingly long process, informed by voluminous expert testimony and a weeks-long trial. This is why the Supreme Court too has noted how “ill equipped” the courts are to deal with the “complex and intractable” problems of prisons and remarked that “[j]udicial
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recognition of that fact reflects no more than a healthy sense of realism.” Rhodes v. Chapman, 101 S. Ct. 2392, 2401 n.16 (1981).
Plaintiffs insist that they “do not seek to place IDOC under the supervision of this Court.” [24, at 12.] But they do intend to place the Court squarely in the middle of refereeing whose plan can best ensure release of inmates and on what conditions. As Plaintiffs note, if their proposal is not agreeable to Defendants, they “are free to proffer other plans to the Court.” [Id. at 13.] In saying that the Court should hesitate before venturing into such an arrangement, the Court does not mean to say it never is appropriate. Plata holds otherwise. But here, and now, even if Plaintiffs could establish a right to the relief they want—and they cannot for reasons stated above (Section 3626(a)(3)) and below (the absence of a likelihood of success on the merits)—any effort for the Court to insert itself into this process likely would be ineffectual in dealing with the actual situation at hand. The statistical experts on whose work both the federal and state governments have relied in shaping their expectations estimate that the peak for the current wave of COVID-19 will hit in Illinois within the next few days, and that the number of deaths and the need for invasive medical equipment will decline rapidly in the weeks that follow. See Institute for Health Metrics and Evaluation, University of Washington Medicine, “COVID-19 projections assuming full social distancing through May 2020,” available at https://covid19.healthdata.org/united-states-ofamerica/illinois (last visited Apr. 10, 2020). To be sure, for the reasons acknowledged above, the prison environment presents special challenges and may not bend to the same curve as the rest of the state collectively. Yet today’s information shows that only one IDOC facility has more that ten confirmed cases, and IDOC has in place measures to deal with suspected and confirmed cases within its facilities and to limit the chance of the virus being brought into the facility by outsiders.
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By the time the Court could develop even a partially-informed plan for dealing with an infectious disease in the prison system, the current wave likely will have passed.13
Finally, there are potential separation of powers problems, too, with forcing the executive branch to exercise its discretion in a particular way. Here, Plaintiffs want this Court to direct—or, at a minimum, strongly influence—the Governor and an administrative agency to make discretionary decisions under state law to grant a medical furlough or a home detention. See 730 ILCS 5/3-11-1(a)(2) (providing that the IDOC “may” grant a 14-day medical furlough); 730 ILCS 5/5-8A-3(d) (providing that certain inmates “may” be placed in home detention under certain conditions); 730 ILCS 5/5-8A-3(e) (same). Just as the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case,” United States v. Nixon, 418 U.S. 683, 693 (1974), so too the executive branch has the discretion to decide whether to end incarceration early.
6. The Merits In the interest of completeness—and in the event that any or all of the foregoing analysis is incorrect—the Court now turns to the applicable factors for considering a request for preliminary injunctive relief on the merits. As noted at the outset, “[i]n the first phase, the party seeking a preliminary injunction must make a threshold showing that: (1) absent preliminary injunctive relief, he will suffer irreparable harm in the interim prior to a final resolution; (2) there is no adequate remedy at law; and (3) he has a reasonable likelihood of success on the merits.” Turnell, 796 F.3d at 661-62. If the movant makes the required threshold showing, then the court moves on to the second stage and considers: “(4) the irreparable harm the moving party will endure if the
13 The Court is aware that experts have warned of a possible second (or third) wave, perhaps in the late fall or early winter when the normal flu season arrives. Nothing in today’s ruling forecloses a later request for relief based on future circumstances.
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preliminary injunction is wrongfully denied versus the irreparable harm to the nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of the preliminary injunction would have on nonparties,” i.e., the public interest. Id. at 662. The court must pay “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24.
As a concession to the press of time, the Court will move directly to the third part of the first phase analysis, for it is sufficient to end the inquiry. As explained below, Plaintiffs cannot show a reasonable likelihood of success on the merits on either of their substantive claims.
a. Likelihood of success on the merits To state a claim under § 1983, a plaintiff must show: (1) his constitutional rights were violated (2) by a person acting under color of state law. Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007). Plaintiffs advance two claims under the Eighth Amendment and the ADA. Defendants plainly are state actors, so the only question on the table is whether Plaintiffs’ constitutional rights have been violated—or, more precisely, whether Plaintiffs have a reasonable chance of showing that they have been.
i. Eighth Amendment claim In cases involving the conditions of confinement in a prison, two elements are required to establish a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment: “first, an objective showing that the conditions are sufficiently serious—i.e., that they deny the inmate the minimal civilized measure of life’s necessities creating an excessive risk to the inmate’s health and safety—and second, a subjective showing of a defendant’s culpable state of mind.” Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (internal citations and quotation marks omitted). The culpable mental state required to state a claim under the Eighth Amendment is “one of deliberate
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indifference to inmate health and safety.” Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018) (quoting Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016)) (internal quotation marks omitted).
Again, the analysis can be truncated, because nobody contests the serious risk that COVID19 poses to all inmates and prison staff, and even more so to the most vulnerable inmates like those who comprise the two subclasses encompassed within the instant motion. Likewise, nobody contests Defendants’ knowledge of this grave situation. The lead Defendant, Governor Pritzker, has repeatedly made reference to the unique risks faced by incarcerated individuals in his daily press briefings. So, deliberate indifference is the whole ball game on the merits of Plaintiffs’ Eighth Amendment claim.
Deliberate indifference, as the Seventh Circuit has explained, imposes a “high hurdle,” for it requires a showing “approaching total unconcern for the prisoner’s welfare.” Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012) (internal quotations and citation omitted). Neither “negligence [n]or even gross negligence is enough; the conduct must be reckless in the criminal sense.” Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). And, given the constantly shifting parameters and guidance regarding how to combat a previously little known virus, it is worth pointing out that “the mere failure * * * to choose the best course of action does not amount to a constitutional violation.” Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002).
Under this standard, Plaintiffs have no chance of success. Defendants have come forward with a lengthy list of the actions they have taken to protect IDOC inmates. Some are designed to protect inmates in the prison environment; others to consider release under several different programs. On an almost daily basis, the Governor and/or the Department have expanded or modified their procedures, including earlier this week through an executive order making it easier
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for the Director to approve furloughs. Plaintiffs acknowledge that Defendants “are taking many actions on the list.” [24, at 1.] And the numbers prove it—as 644 inmates have been released since March 2. [36, at 2.]
Plaintiffs’ complaint is that Defendants “are simply not moving quickly or broadly enough,” and that “the Court’s intervention is necessary to prod the defendants to act more quickly.” [24, at 1-2.] Setting aside the concerns raised above whether judicial intervention would be effective—probably not in the short term; perhaps in the long term—objections about the speed or scope of action and suggestions for altering it through a “prod” do not support either half of the phrase “deliberate indifference.” Clearly Defendants are trying, very hard, to protect inmates against the virus and to treat those who have contracted it. The record simply does not support any suggestion that Defendants have turned the kind of blind eye and deaf ear to a known problem that would indicate “total unconcern” for the inmates’ welfare. Rosario, 670 F.3d at 821. Nor would the record support any claim that Defendants lack a plan for implementing exactly what Plaintiffs have requested—individualized decisions on release through a panoply of vehicles guided by administrative discretion. It may not be the plan that Plaintiffs think best; it may not even be the plan that the Court would choose, if it were sufficiently informed to offer an opinion on the subject. But the Eighth Amendment does not afford litigants and courts an avenue for de novo review of the decisions of prison officials, and the actions of Defendants here in the face of the COVID-19 outbreak easily pass constitutional muster.
ii. ADA claim Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities by depriving them of opportunity to participate in the services, programs, or activities of the public entity because of their disabilities. 42 U.S.C. § 12132. Title
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II of the ADA applies to prisons, as “[s]tate prisons fall squarely within the statutory definition of “public entity” under the ADA. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). To make out a claim under Title II of the ADA, Plaintiffs must show that: (1) each Plaintiff is a “qualified individual with a disability;” (2) Defendants denied Plaintiffs “the benefits of the services, programs, or activities of a public entity;” and (3) Plaintiffs were discriminated against “by reason of” their disabilities. Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (quoting 42 U.S.C. § 12132). Plaintiffs may establish discrimination in one of three ways: “(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally impacts disabled people.” Washington v. Ind. High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 847 (7th Cir. 1999).
Here, there is no allegation of intentional discrimination on the basis of disability—i.e., that Defendants have singled out disabled inmates and excluded them from consideration for release. And nothing on the face of the many vehicles identified in Defendants’ brief for effectuating release even mentions disabilities, much less bars disabled inmates from accessing them. As Plaintiffs recognize, all decisions on release—under the furlough program that is the focus for subclasses 1 and 2 and otherwise—must be made on an individualized basis and subject to the exercise of discretion. Nothing in the record supports the notion that any member of the proposed class, including one who is a qualified individual with a disability, has been denied the reasonable modification of consideration for release—which Plaintiffs now concede is the most they can ask for. Nor is there any basis for concluding that the discretionary decisions on whom to release (and not to release) have a disproportionate impact on disabled inmates, especially when one considers the large number of non-disabled inmates who also may have strong claims to priority for release on account of their susceptibility to COVID-19, such as elderly inmates. In
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short, Plaintiffs do not have a reasonable likelihood of success under any of the three ways of establishing an ADA discrimination claim.14
b. Second stage factors Having concluded that Plaintiffs do not have a reasonable likelihood of success on either of their Section 1983 claims, the Court need not move on to the “second stage” of the TRO/preliminary injunction analysis. Nevertheless—and very briefly—the answer to the question “to release or not to release” is by no means obvious. Setting aside Stateville, the current rate of incidence of COVID-19 infection inside the IDOC is mercifully low, and the counties in which the facilities housing the named Plaintiffs (apart from Will) are far less densely populated than the urban areas in which the virus is more prevalent. To the extent that members of the subclasses would be released to homes in those areas, they may have a similar risk of contracting the virus whether they remain in custody or are released in the near future. The final factor in the “second stage,” the public interest, also cuts both ways. As Plaintiffs stress, the public interest surely is served by avoiding widespread outbreaks of COVID-19 infection, and prison environments present a heightened risk of such outbreaks occurring, as evidenced at Stateville and the Cook County Jail. These are good reasons for Defendants to work hard to reduce the prison population, and especially to remove the highest-risk inmates, either though outright release or transfer to some other location while still in custody, provided that doing
14 Plaintiffs also have no plausible allegations that ADA-qualified inmates have been discriminated against because of their disabilities. As noted above, review of the numerous vehicles that Defendants have identified and/or that are authorized by statute reveals none that singles out disabled persons for discrimination. To the contrary, it is likely that the programs in place will have a disparate impact in their favor, as disabled individuals are more likely to be able to demonstrate a need for the services that justify a medical furlough. The fact that disabled persons may be more susceptible to contract or suffer serious consequences from COVID-19 is not disputed, but that disparate impact is not a consequence of “Defendant’s rule” or any action by Defendants. As explained above, the “rule” is individual, discretionary decisions on eligibility for release.
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so is consistent with the public interest. But every release order carries with it some risk to the rest of the community. Has the inmate been exposed to the virus while in custody? Does another vulnerable person—perhaps an 80-year old mother with emphysema—live at the residence where the inmate will be released? Does the inmate have a history of mental instability or domestic violence? Are there adequate safeguards—monitoring or supervision—for releasees who are both vulnerable and dangerous? How does the increased activity associated with release orders in the quantities sought by Plaintiffs comport with the mandate for social distancing? Finally, as alluded to above, the public interest also commands respect for federalism and comity, which means that courts must approach the entire enterprise of federal judicial intrusion into the core activities of the state cautiously and with humility. This is not to say that intrusion would not be justified if the state government sat silently during a pandemic; if that were the case, the Court would be prepared to request sua sponte the formation of a three-judge court to take up Plaintiffs’ complaint. But the absence of a plausible case on the merits and doubts about the balancing of the harms and public interest reinforce the decision to deny injunctive relief at this time.
Other compelling public interest considerations come into play too. Plaintiffs seek a process that could result in the release of at least 12,000 inmates. That is almost one-third of the prison population in Illinois. See Cmplt. at ¶¶ 1, 105. All of them are incarcerated because a jury convicted them of committing crimes, including some of the most serious crimes against our community. Many of them are violent offenders. Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare. The risk of recidivism comes into play, as do concerns about victims’ rights. The question is not simply what is best for the inmates – the public has vital interests at stake, too. See Brief of Amicus
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Curiae City of Chicago in Mays v. Dart, Case No. 20-cv-2134, Docket Entry [45-1], at 2 (submitted on April 9, 2020).
D. Petition for Writs of Habeas Corpus As referenced above, Plaintiffs (or, in this context, Petitioners) also have brought a habeas petition under 28 U.S.C. § 2254 arguing that Respondent is “violating Petitioners’ Eighth Amendment rights by continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable condition and/or age.” Jeffreys, [1, at ¶ 124]. Prior to filing a habeas petition in federal court, a petitioner seeking relief from state custody must exhaust available state remedies, which means that the petitioner has “fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge.” Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005); see also 28 U.S.C. § 2254(b), (c); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement “serves an interest in federalstate comity by giving state courts the first opportunity to address and correct potential violations of a prisoner’s federal rights.” Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir .2004) (citing Picard v. Connor, 404 U.S. 270, 275 (1972)). It requires the petitioner to assert each of his or her federal claims through one complete round of state-court review, either on direct appeal of his or her conviction or in post-conviction proceedings, before proceeding to federal court. See O’Sullivan, 526 U.S. at 845; see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). This includes presentation of the claims to appellate courts where review is discretionary and such review is part of the ordinary appellate procedure in the State. O’Sullivan, 526 U.S. at 847
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(requiring a petitioner to present his claims to the Illinois Supreme Court in a petition for leave to file an appeal even though that Court’s review was discretionary).
To fairly present a claim in state court, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and must also alert the state court that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). If the federal court reviewing the habeas petition is not satisfied that the petitioner gave the state courts “a meaningful opportunity to pass upon the substance of the claims [ ] presented in federal court,” the Court cannot reach the merits. Chambers, 264 F.3d at 737; see also Sweeney, 361 F.3d at 332.
“Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim(s) to the state courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim: although a federal court now has the option of denying the claim on its merits, 28 U.S.C. § 2254(d) (2), it must otherwise dismiss his habeas petition without prejudice so that the petitioner may return to state court in order to litigate the claim(s).” Perruquet, 390 F.3d at 514 (citing Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522 (1982)); see also 28 U.S.C. § 2254(b)(1) (A); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir. 2001). However, where a petitioner already has pursued state court remedies (but without presenting the federal claims in state court) and there is no longer any state corrective process available to him or her, “it is not the exhaustion doctrine that stands in the path of habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the separate but related doctrine of procedural default.” Perruquet, 390 F.3d at 514.
It is undisputed that Petitioners have not complied with the exhaustion requirement. They did institute a direct action in the Illinois Supreme Court. Had that Court exercised its authority
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to take action on these matters, various abstention doctrines would have come into play and might have compelled (or at least counseled) this Court to stand down. The Court is not aware of any action that the Illinois Supreme Court has taken. Petitioners do not contend that the filing of their direct action to the state High Court satisfies the exhaustion doctrine. Rather, they submit that exhaustion should be excused because of the unavailability of the Circuit Court of Cook County, where Petitioners apparently would have preferred to file within the state court system.
As an initial matter, that may not have been a valid choice in any event, for none of the Petitioners is housed in a facility within Cook County. In general, a habeas petitioner must bring suit against the warden of the facility in which he is detained. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004). As the Supreme Court has explained, “[t]he federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has custody over [the petitioner]’” and “[t]he consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner’s habeas petition.” Id. (citing 28 U.S.C. § 2242); see also W.S.R. v. Sessions, 318 F. Supp. 3d 1116, 1123 (N.D. Ill. 2018) (“the typical habeas petition requires that the warden of the custodial facility, rather than supervisory government officials, be named as the respondents”); Payne v. Illinois, 485 F. Supp. 2d 952, 952 (N.D. Ill. 2007) (“the proper habeas respondent is neither a disembodied governmental unit nor the “people” who are collectively the constituents of that unit, but rather the person who has custody over the habeas petitioner”). The presence of multiple petitioners may have afforded a choice in selecting a proper respondent, but it is doubtful that someone other than a warden of a facility housing a petitioner should have been named, for the general rule is that a petitioner may not sue the director of the jail system. See, e.g., Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005). Petitioners apparently sued Respondent
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Jeffreys, the IDOC Director, because they are proceeding on a representative theory, for which there is some support in Supreme Court and Seventh Circuit law. Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (although Rule 23 “does not apply to habeas corpus proceedings,” “a representative procedure analogous to the class action provided for in Rule 23 may be appropriate in a habeas corpus action under some circumstances) (citing Fed. R. Civ. P. 23); compare Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (U.S. 2018) (Thomas, J., concurring in part) (“This Court has never addressed whether habeas relief can be pursued in a class action.” (citing Schall v. Martin, 467 U.S. 253, 261, n. 10 (1984) (reserving this question)).15
There is no need to resolve the question of the proper respondent, because Plaintiffs have not made a satisfactory showing that the state court system was not every bit as available as the federal courts, if not more so. Assuming that filing in Cook County would have been proper, “Cook County’s courts are still available for emergency matters,” as Judge Kennelly found earlier this week. Mays v. Dart, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020). Petitioners have made no effort to establish that the trial courts in the numerous other counties where they are housed are unavailable and were so last week when this action was filed. Stateville Correctional Center, where the COVID-19 crisis was most acute within the IDOC system, is located less than five miles from the Will County Courthouse in Joliet, where the Circuit Court for the Twelfth Judicial Circuit sits. Under that court’s operative Administrative Order No. 2020-08, effective from March 18, 2020 through April 30, 2020, “[w]ith the exception of Branch Courts, all court facilities will be open normal business hours.” Administrative Order No. 2020-08, available at
15 Although the Court denies habeas relief based on Petitioners’ failure to exhaust their available state remedies, it adds that for all of the reasons stated above (see 30-33, supra), this habeas action would be no more suitable for representative or class treatment than the Section 1983 lawsuit is, as release determinations must be made on an individual basis regardless of the vehicle for considering and effectuating them.
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https://www.circuitclerkofwillcounty.com/Portals/0/Covid%20AO%2020-08.pdf (last checked Apr. 10, 2020). Within the Civil Division, where this matter likely would have been assigned, the General Order provides that “[m]atters determined by the Court to be of an emergency nature will be heard in-person, by telephone conference, or by videoconference if possible.” Id. ¶ 6A.
To be sure, exhaustion requirements can (and should) be waived when relief is truly unavailable. But waiving them here—when state courts clearly were available at least in the two counties identified above and for all Petitioners have shown, every other county and circuit as well—would turn the habeas system upside down. Accordingly, the Court denies Petitioners’ request for expedited release pursuant to the issuance of writs of habeas corpus.16
* * * * * In closing, the Court can do no better than to quote the three-judge panel from California before whom a group of plaintiffs in a similarly hard-hit state presented a claim seeking release (or relocation) due to the inability to observe social distancing during the COVID-19 pandemic: “We emphasize that Defendants have broad authority to voluntarily take steps that may prevent the life-threatening spread of COVID-19 within their prisons, and we recognize the deference that is due to prison authorities to determine which additional measures must be taken to avoid catastrophic results. * * * Defendants have represented to us that they are continuously evaluating what more they can do to protect the inmates within their prisons, and we urge them to leave no stone unturned. It is likely that only through significant effort will California’s prisons be able to
16 Because Petitioners asked for expedition, which was justified in the circumstances, the Court is reluctant to dismiss the Petition altogether without allowing Petitioners time for reflection on the ruling and the basis for it. However, following Judge Kennelly’s approach in Mays, 2020 WL 1812381, at *6 n.5, the Court is willing to consider entering a final order of dismissal (or any other viable approach of allowing Petitioners to seek further review) upon the filing of a motion requesting such relief. Any such motion should be presented to the undersigned judge in his capacity as emergency judge, although the motion may be referred to the assigned judge after filing.
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minimize the spread of COVID-19.” Coleman & Plata, 2020 WL 1675775, at *8. So, too, here in Illinois. IV. Conclusion
For the reasons set forth above, Plaintiffs’ motion for temporary restraining order and preliminary injunction in Money v. Pritzker, Case No. 20-cv-2093 [9] is denied. Plaintiffs’ motions for leave to file oversized brief [5] and for expedited treatment [12] in that same case are granted. Defendants’ motion for leave to file sur-reply in that case [32] is granted. Petitioners’ motion for expedited treatment in Money v. Jeffreys, Case No. 20-cv-2094 [3] is granted, but the Court denies Petitioners’ request for expedited release. The petition [1] remains open on the docket, subject to further action by the parties and the judges, both assigned and emergency (see above). No further status hearings will be set at this time by the emergency judge.

Dated: April 10, 2020

____________________________ Robert M. Dow, Jr. United States District Judge

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