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Wisconsin Supreme Court rejects lawsuit asking for prisoner release

The Wisconsin Supreme Court has rejected a lawsuit seeking the release of inmates from state prisons to reduce their risk of contracting COVID-19.

The American Civil Liberties Union of Wisconsin’s lawsuit asks the state Supreme Court to order Gov. Tony Evers and Department of Corrections officials to reduce the prison population to a number at which social distancing is possible. It also requested the appointment of a special master to order and oversee the reduction of Wisconsin’s prison population.

In an order issued on Friday, the court said it was mindful of the seriousness of the issues presented in the petition and had carefully considered the state’s ongoing COVID-19 response at correctional centers but ultimately decided to deny the petition to take jurisdiction of original action.

“The court is not persuaded that the relief requested, namely this court’s appointment of a special master to order and oversee the expedited reduction of a substantial population of Wisconsin’s correctional facilities is, in view of the myriad factual determinations this relief would entail, either within the scope of this court’s powers of mandamus or proper for an original action,” the order said.

Lawsuit’s beginnings

At the center of the lawsuit was a message that’s become familiar: People are safer at home.

The ACLU of Wisconsin filed an emergency petition with the Wisconsin Supreme Court on April 10 asking for a writ of mandamus or an injunction under 28 U.S.C. § 1983, said R. Timothy Muth, staff attorney at the ACLU of Wisconsin. He argued some Wisconsin governmental officers were not fulfilling their plain legal duty to protect people in their custody from COVID-19.

“All of the public health evidence (shows) the only effective way to avoid transmission of the disease is through social distancing, which is categorically impossible with the current population levels in the Wisconsin prison system,” Muth said.

Muth said this means prisons would have to release enough people to prevent inmates from having to share their cells and to allow for social distancing in shared spaces. By early April, there were more than 23,000 adult inmates in the Wisconsin prison system, a figure that’s more than 5,000 above the design capacity, according to the Department of Corrections.

The state, meanwhile, asked the high court to deny the petition, arguing the case wasn’t appropriate for resolution in any court because it sought relief on the behalf of every incarcerated person in Wisconsin.

“As pleaded, the case is unmanageable because it will require the Court to examine the conditions at every prison and county jail in the state as applied to every incarcerated person,” the response said. “That is neither possible nor appropriate for the courts.”

A response to the petition from April 17 lists various actions the Department of Corrections is taking to ensure the safety of inmates. They include instituting stricter social-distancing practices and taking steps to reduce the prison population.

“(C)ourt intervention is especially inappropriate because the respondents already are working on this issue and taking various steps to mitigate risks,” the response said. “There are difficult circumstances with many variables to consider, which the respondents are actively addressing and weighing.”

Preventing outbreaks

The lawsuit didn’t ask for the release of a specific number of inmates. It instead sought the appointment of a special master who would oversee state officials’ attempts to reduce the prison population to a number that allows for social distancing and prevents prisoners from having to share their cells.

Muth said inmates who are at the highest risk of dying from COVID-19, such as the roughly 4,800 prisoners in Wisconsin who are older than 50 and those with underlying conditions, would have been the first to be released. The named plaintiffs in the lawsuit, Craig Sussek and Raymond Ninnemann, both have conditions that put them at risk.

Sussek, 41, who was sentenced to 80 years in prison in 1996 after being found guilty of attempted first-degree homicide, is now up for parole. Ninneman, for his part, was sentenced to two years in prison in December for a fifth drunken-driving offense. Muth said Ninneman has heart troubles and was scheduled to undergo surgery in February but later saw the procedure canceled.

“He’s petrified of the possibility of being infected in prison,” Muth said.

The Department of Corrections reports 105 tests for COVID-19 were administered at adult correctional centers by April 17 and that 10 positive cases were discovered. In county jails in Wisconsin, meanwhile, nine inmates and at least five employees have tested positive.

Although the numbers are certainly much lower than the total figures for positive cases in Wisconsin, Muth said outbreaks in other parts of the country have shown just how fast the virus can spread once it’s in a jail or prison. At Rikers Island in New York, for instance, it took less than two weeks’ time for the infection count to go from just one case to nearly 200.

Margaret Egan, executive director of the New York Board of Corrections, said her office is drawing on previous, pre-pandemic attempts to reduce the population at Rikers Island. Among its many benefits, this work will allow for greater social distancing among the inmates who have to remain behind bars.

During an American Bar Association webinar held in April, Egan said the New York Board of Corrections has been working on a population-reduction plan both with the city and various advocacy groups.

“It strikes me that that structure for compassionate release is woefully inadequate in this time and in any other time,” Egan said. “Does it make sense to incarcerate people over 50 who are at high risk of this infection or any other infection? I think it’s a moment to ask those hard questions.”

Like the ACLU of Wisconsin, several states have filed lawsuits seeking the release of inmates who are most susceptible to the virus. Merf Ehman, executive legal director of Columbia Legal Services in Seattle, said the organization is concerned the Washington Department of Corrections isn’t acting quickly enough and has now decided to use its own resources to get prisoners released.

“Our value as lawyers is justice for all, and we have to mean that in this crisis,” Ehman said. “We have to treat folks in prison the same way we treat everyone else. This is a moment when we can change the conversation again. We can save lives if we act.”

State response

In their response, state officials said they believed, “the Department of Corrections is moving quickly enough and taking the appropriate action to keep inmates safe. Appointing an outside special master would only entangle the state Supreme Court in ‘the difficult task of prison administration.’”

In March, Evers called a halt to both to new admissions at state prisons and to the transfer of inmates from other holding centers, including county jails. He also suspended visitations and stopped work releases.

The Department of Corrections, for its part, has been releasing people since the governor issued his emergency declaration in March, according to the response. This work is showing signs of success.

Between March 13 and April 10, the department managed to reduce the prison population by 631 people. It had also released another 1,900 people who were in custody for a probation or parole hold or serving a short-term sanction. Meanwhile, at the Milwaukee Secure Detention Facility, another 177 offenders have been released.

For the inmates who remain, the Department of Corrections is tightening up its cleaning and social distancing practices and putting in place contingency plans take effect when known exposure to COVID-19 or infections occur.

Department officials said inmates who are experiencing symptoms are evaluated by medical staff and tested for the virus. They are quarantined while awaiting their results and then isolated if they test positive. A contact investigation will then be conducted to learn of anyone whom the infected person might have been around. Exposed inmates may be quarantined as well.

Any site with a confirmed positive case will be told to suspend its administrative rules to limit movement and reduce the risk of spreading the virus.

“The respondents have taken the COVID-19 pandemic very seriously and instituted responses to try to minimize harm to those in Wisconsin’s prisons,” the response said.

Other options

Muth said Evers and Department of Corrections Secretary Kevin Carr will still be able to release prisoners without the state Supreme Court taking action. Muth said that’s another point the lawsuit was trying to make.

Muth noted that Evers has shown reluctance to use his power of reprieve to have people released from prison even as his counterparts in Pennsylvania and New Jersey have taken such a step.

“The governor has not even acknowledged that he has that power,” Muth said. “His fellow governors in other states are taking advantage of that power and acting in these emergency situations.”

Muth said state statute allows Carr to declare an emergency and remove inmates under whatever conditions he deems part of an appropriate response. But Muth said Carr has denied publicly that he has that ability.

“Even someone as law-and-order focused as William Barr, the attorney general of the United States, is doing just that in the federal prison system,” Muth said. “He has ordered the Federal Bureau of Prisons to be identifying elderly and other at risk inmates and sending them to home confinement to get them out of the prison system.”

The state, for its part, argued Evers’ and Carr’s powers are not appropriate for a writ of mandamus. It further contended the state Supreme Court can’t grant a writ of mandamus because the petitioners have no legal right to the sort of relief they are seeking.

“In short, while inmates have an Eighth Amendment right to be free from cruel and unusual punishment, it is a large leap to assert that right is being violated for every prisoner in the context of the COVID-19 pandemic,” the response said.

Obstacles to release

In a declaration filed with the state’s response, Makda Fessahaye, administrator of the Division of Adult Institutions at Department of Corrections, noted that people who are released from prison are likely to be faced with a slew of hardships. She said already existing obstacles related to housing, employment, programming and services have been made more insurmountable by COVID-19.

“Before any inmate is released from our care, DOC must consider the individual’s circumstances to ensure that he can safely be released to the community,” Fessahaye wrote.

She said most prisoners who are released end up being placed on some sort of supervision. She said the department is working to discharge people now on supervision to free up agents to monitor new releases.

John Tate II, chairperson-designee of the Wisconsin Parole Commission, said he’s been working with the department to develop an expedited review process to help reduce the prison population. He said he has drawn up a list of about 270 people who may be well-suited for expedited release because of their age, medical condition and progress in the parole process.

Even with such a list in place, though, individual circumstances have to be taken into account.

“While I understand the gravity and urgency of the COVID-19 pandemic as it relates to Wisconsin prisons, I cannot release persons-in-custody on a mass-scale,” Tate wrote in a declaration.

Muth understood how complicated mass release would be, but he views it as a move that will help protect public health.

He said that although some people may be concerned about releasing criminals, they should take some solace in knowing that statistical research has shown that elderly prisoners – who will probably figure in large numbers among those released – are very unlikely to recommit crimes.

“We think that if there is a silver lining, this exercise will illustrate that Wisconsin doesn’t need remotely the level of incarceration it currently has to have good outcomes for public safety,” Muth said.


About Michaela Paukner, [email protected]

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at [email protected]

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