Governor's lawyer: Why "single-out" jail population for COVID-19 testing?

Brian Abraham, general counsel for the governor

Charleston — While the governor and state coronavirus czar agreed Tuesday that West Virginia needs more COVID-19 testing at prisons and jails, which have been some of the hardest-hit sites across the country, a lawyer for the governor argued that mass testing is not needed.

In neighboring Ohio at the Marion Correctional Institution, officials detected 1,950 inmate cases, or 78 percent of the population had been infected, after the state began expansive testing of even asymptomatic inmates, according to the Marion Star. One guard has died, one prisoner has died, and 34 prisoners have been hospitalized.

Gov. Jim Justice said on April 17 that he was ordering mass testing at nursing homes. Nursing homes have also been among the hardest-hit locations in the country. West Virginia Department of Health and Human Resources Cabinet Secretary Bill Crouch said Tuesday that testing should conclude this week. 

During a virtual COVID–19 briefing Tuesday, Gov. Jim Justice said that moving forward from nursing homes, the state would target other congregate settings.

A reporter had asked about testing of the African-American population, which has thus far been more susceptible to worse outcomes when contracting the disease, and the prison population. 

"As far as pinpointing our testing, as we move forward beyond the nursing homes, all the things that you said, the African-American community, that's an area that we need to test," Justice said. "Our assisted living, our prisons, all the places that we have people that are in a confined-type area and everything.

"Just exactly what you said is exactly where we're moving as far as the testing in the next steps," Justice said.

Dr. Clay Marsh, the state's coronavirus czar, agreed.

"We are absolutely looking at prioritizing the congregate populations, as the governor said, as well as the highly-vulnerable populations," Marsh said.

Then, at the conclusion of the briefing, Brian Abraham, general counsel for the governor, jumped in.

"We are currently testing them," he said, referring to inmates. "We've demonstrated in court in recent weeks that we have proper procedures and plans in place to deal with the prisoners, given the limited testing that's out there available."

He asked, "Until we start testing everybody in the public, why would we single out our jail population and give everybody tests?"

Jordan Damron and Nathan Takitch, spokesmen for the governor, did not respond to emails. 

Jennifer Wagner, co-director of the law firm Mountain State Justice, noted people in jails are closely-quartered and less likely to be able to practice social distancing. 

"The largest outbreaks have been at nursing homes and jails across the country," she said. "And without substantial testing, we can't know whether there has been a large-scale outbreak and keep both the people who are living in those facilities safe, but also the people who are working in those facilities and then traveling out of those facilities and into communities throughout West Virginia."

She added that an outbreak in a prison would overwhelm the nearby hospital system, putting the entire community at risk. 

"The sort of general disregard for inmates, whether it's someone who's in for failing to meet with their parole officer or a more serious crime, is really troubling," she added.

Incarceration could turn into a "death sentence" for those people, she said. 

As of Tuesday afternoon, state officials had tested 90 inmates and residents at jails, prisons and juvenile facilities, as well as those in work-release programs, according to the state's website.

Lawrence Messina, spokesman for the West Virginia Department of Military Affairs and Public Safety, said Tuesday the population in those facilities was 9,863, so 90 would be .9 percent. Statewide, West Virginia has tested 2.28 percent of the general population, according to DHHR's website. 

Wagner said she is concerned that DMAPS isn't reporting staff testing numbers, noting that staff members may carry the disease to other community members.

On Friday, the West Virginia Department of Military Affairs and Public Safety reported a correctional officer at South Central Regional Jail in Charleston had been diagnosed with COVID-19. Wagner also said she worries that the correctional officer may have spread the virus to others who haven't been tested. 

Several inmates, represented by Mountain State Justice, filed an emergency motion for preliminary injunction in the United States District Court for the Southern District of West Virginia on March 25. They asked U.S. District Judge Robert Chambers to order the West Virginia Division of Corrections and Rehabilitation to develop immediately an appropriate plan for the prevention and management of COVID-19 in jails and prisons and order state officials to reduce the prison and jail population.

U.S. District Judge Robert Chambers rejected the motion, saying that the state had statutory authority to develop its plan.

State officials have repeatedly emphasized that the judge found the jails COVID–19 response plan adequate. 

Tuesday, Wagner noted that the judge dismissed the case "without prejudice," meaning the case can be taken back up. She said they can pursue further action if the plan isn't adequately implemented.  

The number of inmates in West Virginia has been declining as correctional facilities have been releasing some low-risk inmates. 

According to Messina, on March 16, the day the governor declared a State of Emergency, there were 5,202 people in state jails, 5,380 in prisons, 260 in juvenile facilities, and 572 in work release programs – a total of 11,414 people. Tuesday, there were 4,130 in jails, 5,006 in prisons, 241 in residential juvenile facilities, and 486 in work release programs – a total of 9,863, and a decline of 1,551 people. 

But Wagner said her firm has heard from inmates who can't reach their parole officers, as people stay home, in order to get permission to leave.

Some inmates have said newly-booked inmates are being mixed with the general population, cleaning supplies aren't widely available, and people are going without masks, she said. 

"We are concerned that once infection gets into the jails, that it's going to spread like wildfire," she said. 

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