Indiana Attorney General Curtis Hill is asking the Indiana Supreme Court to decline a request to use its rulemaking authority to order the release of inmates vulnerable to the novel coronavirus.
Hill’s Monday filing comes a week after the American Civil Liberties Union of Indiana petitioned the justices to use emergency rulemaking to “request” a Department of Correction review of inmates who are at higher risk for contracting COVID-19 or are within six months of their release dates. Then, the ACLU says the justices should order trial courts to use that information to determine if release is appropriate to allow certain inmates to shelter at home.
Additionally, leaders from all three branches of state government – including Indiana Chief Justice Loretta Rush – last week issued a letter likewise urging the DOC and local jails and juvenile detention facilities to release low-risk offenders to stem the spread of the virus.
Hill used the state leaders’ letter to support the argument that Supreme Court intervention into DOC operations is neither appropriate nor necessary.
“Indeed, as the leaders of the three branches of state government acknowledged just a few days ago, the potential threat of the spread of COVID-19 ‘can be mitigated and reduced through implementation of aggressive proactive measures such as those taken at state correctional facilities,’” Hill wrote in a memorandum opposing the ACLU’s petition. “… IDOC has taken what the court has recognized as ‘aggressive proactive measures’ at state correctional facilities. Particularly given existing procedures to address individual cases, the Court has no urgent need to take action that may destabilize these undertakings.”
In its opposition to the ACLU, the Office of the Attorney General first said the Supreme Court would be violating Indiana’s separation of powers doctrine – Article 3, Section 1 of the Indiana Constitution – if it exercised administrative authority over the DOC. That authority, Hill argued, lies with the executive branch, which is politically accountable.
The OAG also rejected the notion that requiring inmates to remain incarcerated during the pandemic – in conditions that, according to the ACLU, are “ripe for a widespread outbreak” – would violate offenders’ constitutional rights.
The ACLU had alleged possible violations of the 14th Amendment, but Hill’s office did not address that argument. Instead, it argued continued incarceration in light of the coronavirus would not violate the Eighth Amendment or its Indiana Constitution equivalents.
“To the extent the ACLU insinuates that incarceration of some inmates during the COVID-19 pandemic may implicate Eighth Amendment rights against cruel and unusual punishments, it has no grounds to suggest IDOC’s treatment of prisoners is either contrary to contemporary standards of decency or amounts to deliberate indifference to the healthy and safety of inmates,” the OAG wrote.
Rather, the DOC is operating in compliance with recommendations from the Centers for Disease Control and Prevention and is holding regular meetings with state officials to determine how to best adjust its operations, Hill wrote. His memorandum in opposition included a declaration from Dr. Kristen Dauss, the chief medical officer for the DOC.
Dauss listed numerous steps the department has taken to protect inmates and control the spread of COVID-19, which so far has been confirmed in six inmates located at the Indiana Women’s Prison, the Edinburgh Correctional Facility and the Plainfield Correctional Facility. None of those inmates have had to be hospitalized, Dauss said.
Among the steps the DOC has taken, she said, was to isolate the infected inmates and those who are known to have been exposed to the virus. Others include rationing supplies such as masks and sanitizer; sanitizing DOC facilities, including often-overlooked items such as radios and keys; keeping critical inmate workers, such as those who work in food service or key maintenance, separated so that several will not be out of service at once if one inmate is infected; developing “if/then” decision trees to respond to inmate infection or symptoms; and suspending in-person visitation while increasing access to video visitation, among other steps.
What’s more, Hill argued, there are already procedures in place for trial courts to follow when considering a sentence modification.
“Certainly, a trial court could, within its broad discretion, consider the health of the offender and the potential risks that a particular offender may face in light of COVID-19,” he wrote. “… This existing statutory framework sufficiently allows trial courts to consider modifying sentences of particular offenders, including early release or suspension, without broad-based intervention by this Court.”
Local law enforcement agencies are also reviewing their policies and considering the use of pretrial and other early release tools to cut down on possible exposure to COVID-19 in county jails.
“The ACLU’s unprecedented request for the court to assume the power to manage prisons and jails is constitutionally and procedurally improper,” Hill said in a statement. “Administration of the Indiana Department of Correction and Indiana’s prisons belongs in the executive branch of state government.”
Meanwhile, Indiana Public Defender Amy Karozos and the Indiana Public Defender Council have filed briefs in support of the ACLU petition. The Indiana Prosecuting Attorneys Council filed a brief in opposition, and the Indiana Sheriffs Association argued the measures already taken by the court obviate the need for further Supreme Court intervention.
The case is In the Matter of: Petition Requesting the Indiana Supreme Court to Engage in Emergency Rulemaking to Address the Issue of Imprisoned Persons and the COVID-19 Crisis, 20S-MS-234.