COVID-19 & Justice

Sixth Circuit Affirms Order for the BOP to Start Releasing Vulnerable People From Elkton, Ohio Prison

Celeste Fremon
Written by Celeste Fremon

On April 3, Attorney General William Barr sent his now-well known memorandum to Bureau of Prisons Director Michael Carvajal, directing Carvajal to move as many minimum-security inmates out of prison and into home confinement, or a similar situation, as was possible during the COVID-19 emergency in order to “combat the dangers” the virus posed to our most vulnerable inmates “while ensuring we successfully discharge our duty to protect the public.”

Of the approximately 177,000 people residing in BOP facilities, around 27,600 are classified as minimum-security.

In this memo, Barr called out three of the prisons that he noted were already experiencing “significant levels of infection,” and ordered Carvajal to “immediately review” all inmates “with COVID-19 risk factors,” starting with the three prisons he’d mentioned.  One of those prisons was Elkton FCI, located in Ohio.

Yet, in the weeks since the Barr memorandum was made-public, very little appears to have happened in the way of releases, including at the facilities about which the AG particularly expressed concern.

Hoping to speed things along,  on April 13, the ACLU of Ohio and the Ohio Justice and Policy Center brought a class-action lawsuit on behalf of people locked up in Ohio’s FCI Elkton.

The emergency legal filing asked for the release of Elkton’s most vulnerable inmates to home confinement, parole, or via furlough to half-way houses, or similar facilities, where they would serve their sentences in a safer environment until the risk of the virus had abated.

U.S. District Judge James S. Gwin agreed with the ACLU, et al, and took Elkton to task with a tersely worded order.

“With the shockingly limited available testing and the inability to distance inmates, COVID-19 is going to continue to spread, not only among the inmate population, but also among the staff,” Judge Gwin wrote.

(At the time, Elkton reportedly had received only 50 COVID-19 swab tests, and one Abbott Rapid testing machine with 25 rapids tests.  Most of the swab tests were used and showed a worrisome percentage of positives, while the Abbott tests were reportedly back-ordered and would not arrive until July or August.)

Gwin told Elkton to submit to the court a list of “Medically-Vulnerable Subclass Members,” and to release or transfer or furlough all of those people within 25 hours, specifying that such releases or furloughs and the like did not necessarily mean release from custody.

Although the order seemed to follow the lead of Barr’s memo, the BOP fought back and appealed Judge Gwin’s order to the Sixth Circuit Court of Appeals, claiming that all kinds of terrible and damaging things would happen if the order was followed—or general words to that effect.

On May 4, however, a three-judge panel from the Sixth Circuit slapped down the Bureau of Prisons’ appeal unanimously, refusing to stay the enforcement of the district court’s order to begin transfer and release of what turned out to be 837 medically-vulnerable prisoners from Elkton FCI.

“The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing,” wrote the three judges in their directive.  “The COVID-19 virus, now a pandemic, is highly contagious and can be transmitted by asymptomatic but infected individuals.”

The Sixth Circuit trio noted that Elkton already has higher occurrences of infection than most other federal prisons. And, as Judge Gwin had already pointed out, “respondents lack adequate tests to determine if inmates have COVID-19.”

David Carey, Senior Staff Attorney for the ACLU of Ohio praised the appellate court’s decision, which he said, “confirms the urgent need to respond to the crisis unfolding at Elkton. Lives of prisoners, prison staff, and the community depend on swift action to move the most vulnerable people away from the COVID-19 outbreak before it is too late,” Carey said.

David Singleton, Executive Director of the Ohio Justice & Policy Center, was similarly thrilled with the Sixth Circuit’s decision. “The court’s ruling is grounded in precedent and allows this litigation to proceed with the urgency that this life-and-death situation demands.”

Meanwhile, today, Wednesday, May 6, the BOP reported that an eighth person at FCI Elkton has died of COVID-19.  His name was James Druggan, and he was 70-years old.

And closer to home, at the Federal Correctional Institution (FCI) Terminal Island, as Rebecca Weiker reported for WitnessLA earlier this week, 623 of the Terminal Island residents and 15 staff members have tested positive for the virus.

Six residents have died due to COVID-19.

7 Comments

  • Nice article. This weekend May 3, they began testing many of the Elkton inmates for COVID19. Hopefully with an eye toward moving many of them.
    Elkton is a level 2 medical facility for the Northeast region so would have vulnerable population.
    Parole was eliminated in the BOP under Reagan in 1987. Only the rare person still grandfathered under this would qualify. Most leaving would go to halfway house / home confinement to finish sentence and then into post conviction supervised release .

  • This is a very good article. I was recently incarcerated at FCI Elkton and I can tell you from personal experience how poor some of the treatment is there. Its a sad reality, that the entire prison system operates very poorly, and they quite simply cant and dont have the experience to deal with something of this magnitude efficiently. Its a great thing that judges, senators, and other government higher ups are really starting to see how poorly these things are managed. I wish the best to everyone who is or who has family that is incarcerated and hopefully this will be the stepping stone we need to make sure there is better care of our government facilities and its inmates in the future!

    • I am So glad you are no longer at Elkton during this nightmare! My son is there and he is one of the 837 medically-vulnerable. It scares me so bad. I understand people who have done wrong, have to be punished for their crimes. But, my son did not go there to die!! I know You can’t do anything about it. It’s just frustrating and sometimes a Momma needs to vent! So, I apologize I hope You are Blessed!!!

  • I really would like to know when are they going to start doing so, and seen that Warden Mark Williams is not going to release anyone. He has been changing inmates status, and pencil pushing records. I have spoken to plenty of inmates and everyone in different parts of the facility state the same. Today I heard from an inmate how he was obligated to signed paperwork, and was threatened if he didn’t signed he will be sent to the SHU. Explain to me how humane this is, further more this inmate is among the 837 inmates that are at High Risk at Elkton. Another Inmate said that the medical staff are as bad as the Warden. The DO goes into the facility under the influence of alcohol. This is despicable I have been in the medical field for more than 20 yrs and is embarrassing and enraging.. How they break the law and get away with it. Yes they’re inmates, yes they broke the law, but none of them were sentenced with the DEATH PENALTY, and this WARDEN has taken it upon himself to play GOD. And there is some decent staff, and some that are rotten like the WARDEN but still I would not wish on them what we go thru with our love ones.

  • My son is at FSL Elkton. He has been there for about 15 months. He was diagnosed with ADHD and was taking meds since he was about 7. We were told he would continue to receive his meds there but since the day he walked thru those gates he has never received his meds. He said medical told him he could not have them because he was never diagnosed as an adult with ADHD. He was assigned a top bunk in a 3 man cubicle. He started having major knee issues and having to climb the ladder up and down was not helping. Medical would do nothing. He was finally allowed a lower bunk then Covid-19 hit. He was moved from his unit to another unit so they could use the area for isolation. Back to an upper bunk. He was there for about 2 weeks then moved again. This time so they could have all the kitchen staff in one unit. He was given 2 cloth masks. He got tested on Monday morning and the rapid test came back positive. He was moved to isolation and tested again. Again it read positive. He is showing no symptoms. They are only allowed outside about 15 minutes a day while they go thru and spray the unit. Food is awful as well. He has said the only good thing about being in isolation is he has a cubicle to himself. I hope they can do something to get people out of there. Sadly he still has 3 more years and has no health issues that would allow him to get out of there.

  • My husband is in Elkton, Ohio fbop He was tested positive for the Coronavirus on April 3 after being taken to the hospital. I called the prison for a month before someone finally answered the phone so that I could find out his condition. I also sent an email the day I found out he went to the hospital. I got a call three weeks later telling me he was in the hospital and tested positive. 3 weeks, really? I sent email #2 for update on his condition because I couldn’t get through on the phone. I called back the next day and couldn’t believe someone finally answered the phone. I was transferred to the chaplain and he told me that my husband was tested again results are negative but he’s on dialysis now and got approved for a transfer and now they don’t know which medical facility he will be transferred to. If they are planning on releasing inmates there my husband should have been one of them so that he can get the medical attention that he needs here at home instead of trying to transfer him somewhere else after all of what he has been through and still going through being in the hospital 5 weeks now

  • I have a family member in Elkton Low at the bottom of the hill — and he’s on the list to be released but just last week another inmate passed away and he is freaking out. Writes me everyday asking what we are going to do to get him out of there before it’s too late and I’ve called everyone I can find in the yellow pages . But cannot get anyone to call me back so I’m posting here .. if anyone knows an attorney who can write to the judge in the southern district to ask for a compassionate release based on the 4 judgements .. apparently we are being told that people are leaving everyday but not our family member and cannot figure out why. If someone can contact me at 213-290-6722 would be very helpful. Tom

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