By Jolie McCullough, Texas Tribune
A federal judge ordered the Texas prison system on Tuesday to provide more protective measures against the coronavirus, like hand sanitizer for prisoners who use wheelchairs, at a prison for geriatric inmates.
After a weekslong trial that started in July, U.S. District Judge Keith Ellison ruled that Texas Department of Criminal Justice officials acted with deliberate indifference toward the inmates’ medical needs and recklessly disregarded obvious health risks during the pandemic.
“The Court acknowledges that [TDCJ officials] have taken a number of steps to address the spread of COVID-19 … at the Pack Unit,” Ellison wrote in his ruling. “But the Court views these measures as the most basic steps that TDCJ could have taken to prevent mass death within the prison walls on an unimaginable scale. Designing a policy and implementing some of the measures therein does not automatically satisfy Defendants’ constitutional obligations, especially in the face of an unprecedented public health crisis.”
Jeremy Desel, a TDCJ spokesperson, said the department continues to take precautions to slow and stop the spread of the virus inside prisons.
“The agency strongly disagrees with the district court’s order and has appealed the decision to the Fifth Circuit Court of Appeals,” he said in a statement.
That federal appeals court previously halted Ellison’s pretrial, temporary ruling against the department, in part because it said TDCJ was already making efforts to contain the spread of the coronavirus.
Ellison, who slammed the state prison system in another lawsuit over heat conditions, said he was dubious that TDCJ was implementing many of the procedures and policies it claimed to be. He cited officials’ text messages that revealed a confusion about coronavirus reporting among officials, modifications made just before trial to make the unit “look more favorable” and staged visits to the prison as explanation for his skepticism.
The ruling follows a nearly four-week trial in a lawsuit filed in March by older inmates against TDCJ and the Pack Unit, a prison near College Station whose population mostly consists of inmates over 65.
Texas has had more inmate deaths related to the coronavirus than any other prison system in the nation. Its death toll of at least 162 inmates outranks every other state as well as the federal prison system. More than 20 Texas prison employees have also died with the virus.
Nearly 23,000 inmates and about 4,800 employees have tested positive for the virus since the pandemic was declared a Texas public health disaster in March, according to TDCJ reports.
At the Pack Unit, more than 500 inmates had tested positive for the virus by Aug. 2, and 20 had died with it, according to trial records. TDCJ’s public reports on inmate deaths include only 17 Pack Unit deaths as of Tuesday, the second most behind 20 reported deaths at the Duncan Unit in East Texas, another geriatric facility.
Ellison’s permanent injunction includes many requirements that TDCJ has long said it already implemented, like providing unrestricted access to soap and water, providing sufficient cleaning supplies, and requiring face masks for all staff and inmates. His injunction, however, also requires hand sanitizer to be provided to inmates who use a walker, a cane, crutches or a wheelchair. At trial, it was noted that inmates with unsanitized wheelchairs could infect their hands with germs instantly after leaving the sink.
TDCJ has long fought against providing hand sanitizer for inmates, arguing it could be used as a fire accelerant or inmates could drink it. Inmates’ attorneys said the concerns were “disingenuous,” as fires are not a problem on the unit and inmates have plenty of flammable material, like paper.
Inmates at the Pack Unit sued the prison system in March as the coronavirus began to spread across the state, arguing that its policies were “woefully inadequate” to protect the unit’s elderly and sick inmate population. The agencies’ actual practices, they said, were even worse and violated the constitutional protection against cruel and unusual punishment. They asked for more protective gear, cleaning supplies and social distancing.
In a temporary ruling in April before the case went to trial, Ellison sided with the inmates and ordered TDCJ to make a slew of policy changes like providing hand sanitizer and face masks and testing all inmates for the virus. Though many of the demands, like providing masks and mass testing, had since been enacted by the department, TDCJ appealed to the 5th U.S. Circuit Court of Appeals.
Judges on the appeals court agreed that TDCJ had already met many of the ordered requirements, though one of the judges urged Ellison to hold a trial in the case as soon as possible.
The trial included testimony from several inmates, TDCJ officials, and experts on health and prison conditions. During the weeks in the virtual courtroom, inmate janitors — some of whom use wheelchairs or have other disabilities — said they didn’t have enough cleaning supplies, contact tracing wasn’t properly done, and more and more people were getting sick and dying. John Keville, the inmates’ lead attorney, said in his closing arguments Aug. 6, that two more inmates had died during the trial.
The prison’s warden testified that he thought his unit had been doing “everything within reason” to combat the virus. He said he didn’t think security staff specifically asked inmates how they were feeling, noting that would be for medical teams, though the department’s deputy executive director said in a prerecorded deposition that officers are supposed to talk to inmates about their health.