STATE OF NORTH CAROLINA COUNTY OF WAKE IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION No. 20 CVS 500110 NORTH CAROLINA STATE CONFERENCE OF THE NAACP, DISABILITY RIGHTS NORTH CAROLINA, AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, KIM T. CALDWELL, JOHN E. STURDIVANT, SANDARA KAY DOWELL, and CHRISTINA RHODES, PLAINTIFFS’ SUBMISSION PURSUANT TO THE COURT’S MAY 1, 2020 ORDER FOR ADDITIONAL INFORMATION Plaintiffs-Petitioners, v. ROY COOPER, in his official capacity as Governor of North Carolina, ERIK A. HOOKS, in his official capacity as Secretary of the North Carolina Department of Public Safety,and BILL FOWLER, ERIC MONTGOMERY, ANGELA BRYANT, and GRAHAM ATKINSON, in their official capacities as Post-Release Supervision and Parole Commissioners, Defendants-Respondents. NOW COME Plaintiff-Petitioners (“Plaintiffs”), by and through counsel, and respectfully submit the following pursuant to the Court’s May 1, 2020 Order for Additional Information and in support of their Motion for Temporary Restraining Order and Preliminary Injunction, and in the alternative, Emergency Petition for Writ of Mandamus, in the above-captioned case. I. Organizations that Support Reentry As requested by the Court, Plaintiffs have created an illustrative and non- exhaustive list of local and non-profit organizations that provide services and support for reentry of formerly incarcerated people. Plaintiffs have attached that list to this submission as Attachment A. In addition to organizations that directly manage housing and residential services for formerly-incarcerated people, the list includes organizations that provide housing referrals, case management, or other reentry services that greatly assist a person’s successful reintegration to society. While best efforts were made to obtain, by phone, e-mail, and internet search the most current information regarding each organization’s capacity to provide various reentry services, comprehensive information of the kind requested by the Court in its Order was not available for every organization, and the list is therefore likely under-inclusive of the reentry resources and services available across the state. In addition to the services and programs offered by the organizations listed in Attachment A and others like it, many incarcerated people have loved ones who would offer them a safe place to stay upon release from DPS custody. Since the beginning of the pandemic, the undersigned organizations have received countless letters, emails, and phone calls from across the state from family and friends of incarcerated people pleading to have their incarcerated loved ones sent home where they will be safe during this crisis. The affidavits Plaintiffs have already submitted in this case are just a few of the many examples of incarcerated people who have family and community-based support for their release and reentry. 2 North Carolina is also among the states that have received approval from the Federal Emergency Management Agency (“FEMA”) to provide hotels, motels, dormitories, and other sheltering alternatives for people who have no other safe place to go who need to quarantine or isolate in response to COVID-19, or who are at high risk for severe illness from COVID-19. 1 The availability of these funds will provide additional support for incarcerated people who are released from prison. Moreover, under recently enacted COVID-19 response legislation, which took effect on May 4, 2020, DPS has access to additional state funds to cover, among other things, “costs of in-home monitoring for all nonviolent juvenile offenders and nonviolent, elderly, health-compromised, and near-release adult offenders.” N.C. Sess. L. 2020-4. Finally, the North Carolina Justice Center has dispersed $50,000 in the form of subgrants to support reentry efforts in North Carolina in light of the COVID-19 emergency, and secured $250,000 in additional funds to support these efforts. They have also applied for additional funding beyond the $250,000 in order to provide continued support for reentry during the pandemic. Glazier Aff. (Attachment B). II. Special Master Candidates As directed by the Court, the parties met by telephone to confer about potential special master candidates for the Court’s consideration on May 6, 2020, and again on May 7, 2020. The parties could not agree on a list of candidates, and N.C. Dep’t of Health & Human Servs., Non-Congregate Sheltering (May 8, 2020 1:53 PM), https://www.ncdhhs.gov/divisions/public-health/covid19/assistance/noncongregate-sheltering 1 3 have agreed to submit separate lists for the Court’s consideration. Plaintiffs have attached to this submission information regarding each of their proposed candidates, including information on their qualifications. Each candidate has expressed a willingness to serve if selected by the Court. The candidates are as follows: 1. Tom Maher & Brandon Garrett, Duke Center for Science and Justice, (Attachment C); 2. Emily Coward, University of North Carolina Chapel Hill School of Government, (Attachment D); 3. Noell Tin, Tin Fulton Walker & Owen PLLC, (Attachment E); 4. Asa L. Bell, Jr., The Law Offices of Asa L. Bell, Jr., P.A., (Attachment F). Plaintiffs’ proposed candidates are well-respected North Carolina practitioners who have expertise and knowledge specific to the North Carolina criminal legal system, who understand the challenges faced by incarcerated and formerly incarcerated people, and who, in many cases, bring to the task robust institutional resources, such as additional staff and data processing capabilities. III. Additional Information for the Court’s Consideration A. Supplemental Legal Authority Plaintiffs respectfully bring to the Court’s attention three additional court decisions in COVID-19-related litigation focused on detention facilities, which are relevant to the Court’s consideration of this case. In Wilson v. Williams, a federal district court ordered Elkton Federal Correctional Institution to immediately evaluate each medically vulnerable 4 incarcerated person “for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks.” Id., Case No. 4:20-cv00794-JG, ECF No. 22 at 20 (N.D. Ohio Apr. 22, 2020) (Attachment G). The court reasoned that “at this preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for showing that Respondents have been deliberately indifferent.” Id. at 16. In coming to that conclusion, the court specifically noted respondents’ failure to implement mass testing across the prison, which the court described as a “debacle,” as well as the fact that respondents had “altogether failed to separate its inmates at least six feet apart, despite clear CDC guidance for some time that such measures are necessary to stop the spread and save lives.” Id. In addition, in Gayle v. Meade, a federal district court ordered the immediate review for release of 34 civil immigration detainees held in Immigration and Customs Enforcement (“ICE”) custody across three different detention centers and further ordered ICE to submit a report to the court showing how it will reduce the population in those centers to 75 percent of their capacity within two weeks of the order. Case No. 1:20-cv-21553-MGC, ECF No. 76 at 10 (Apr. 30, 2020 S.D. Fla.) (Attachment H). The court found that petitioners were likely to succeed under deliberate indifference standard, explaining that in one facility “the bunk beds are a paltry 12 inches apart,” and that ICE had “failed to provide detainees in some detention centers with masks, soap, and other cleaning supplies, and failed to 5 ensure that all detainees housed at the three detention centers can practice social distancing.” Id. at 76-77. Likewise, in Alcantara v. Archambeault, a federal district court ordered the release of an entire class of medically vulnerable people (over the age of 60 or who have underlying medical conditions) held in ICE detention at the Otay Mesa Detention Center. Case No. 3:20-cv-00756-DMS-AHG, ECF No. 38 at 2-3 (Apr. 30, 2020 S.D. Cal.) (Attachment I). B. DPS’s additional resources and the dire need for expanded testing Plaintiffs would like to further notify the Court that recently-enacted COVID19 response legislation will provide DPS with additional resources, not only for reentry, as discussed above in Part I, but also to cover the cost of “personal protective equipment, COVID-19 testing, and hygienic supplies.” N.C. Sess. L. 20204. In addition, under the Communicable Disease Emergency Policy established by the Office of State Human Resources, DPS and other agencies have been granted additional flexibility in hiring and compensation during the COVID-19 emergency, including suspension of education and certification requirements. N.C. Sess. L. 2020-3. It is critical that Defendants make quick use of these additional resources to remedy the growing harm that Defendants’ inaction has already caused. For example, DPS has tested only 1,273 of the approximately 33,000 people in its 6 custody. 2 Alarmingly, with the exception of Neuse Correctional Institution and one housing unit at North Carolina Correctional Institution for Women where largescale outbreaks prompted broader testing, DPS’s policy continues to be to test only those incarcerated people and youth who are exhibiting symptoms. 3 Even assuming that this policy is implemented uniformly, such that all incarcerated people who exhibit symptoms are indeed immediately tested, such selective, limited testing creates the conditions for large-scale outbreaks to grow unnoticed and unmanaged, and exacerbates the crisis created by the inability of incarcerated people to remain socially distant while in DPS custody. Respectfully submitted this 8th day of May, 2020. /s/ Kristi L. Graunke . Kristi L. Graunke (NC Bar #51216) Leah J. Kang (NC Bar #51735) Daniel K. Siegel (NC Bar #46397) Irena Como (NC Bar #51812) ACLU of North Carolina Legal Foundation, Inc. P.O. Box 28004 Raleigh, NC 27611 (919) 354-5066 kgraunke@acluofnc.org Dawn N. Blagrove (NC Bar #36630) Elizabeth G. Simpson (NC Bar #41596) Emancipate NC P.O. Box 309 Durham, NC 27702 (919) 682-1149 dawn@emancipatenc.org elizabeth@emancipatenc.org N.C. Dep’t of Public Safety (“NC DPS”), Prisons Info on COVID-19: OffenderRelated COVID-19 Data (May 8, 2020 2:10 PM), https://www.ncdps.gov/ourorganization/adult-correction/prisons/prisons-info-covid-19 2 NC DPS, Prisons Info on COVID-19: Actions Taken (May 8, 2020, 2:11 PM), https://www.ncdps.gov/our-organization/adult-correction/prisons/prisons-info-covid19; see also Trevor Boyer, NC Youth Detention Workers Get COVID Tests, But No Widespread Plans to Test Juveniles, Juvenile Justice Information Exchange (May 6, 2020), https://jjie.org/2020/05/06/nc-youth-detention-workers-get-covid-tests-but-nowidespread-plans-to-test-juveniles/. 3 7 lkang@acluofnc.org dsiegel@acluofnc.org icomo@acluofnc.org Lisa Grafstein (NC Bar #22076) Luke Woollard (NC Bar #48179) Susan H. Pollitt (NC Bar #12648) Disability Rights North Carolina 3724 National Drive Suite 100 Raleigh, NC 27612 (919) 856-2195 lisa.grafstein@disabilityrightsnc.org luke.woollard@disabilityrightsnc.org susan.pollitt@disabilityrightsnc.org Daryl Atkinson (NC Bar #39030) Whitley Carpenter (NC Bar #49657) Forward Justice 400 W. Main St., Suite 203 Durham, NC 27701 (919) 323-3889 daryl@forwardjustice.org wcarpenter@forwardjustice.org K. Ricky Watson, Jr. (NC Bar #43889) National Juvenile Justice Network 1734 Connecticut Avenue, NW #1 Washington, DC 20009 (202) 878-6655 watson@njjn.org Irving Joyner (NC Bar #7830) P.O. Box 374 Cary, NC 27512 (919) 319-8353 ijoyner@nccu.edu Attorneys for Plaintiffs 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, May 8, 2020, a copy of the foregoing and all the listed attachments were electronically served on the following: Stephanie A. Brennan Tammera S. Hill North Carolina Department of Justice P.O. Box 629 Raleigh, NC 27602 Email: sbrennan@ncdoj.gov thill@ncdoj.gov This is the 8th day of May, 2020. /s/ Kristi L. Graunke Kristi L. Graunke Attorney for Plaintiffs