Montana State Prison's Locked Housing Unit. Credit: Wes Overvold / Outlaw Partners

Disability Rights Montana filed a lawsuit in the Montana Supreme Court Wednesday, April 1, asking justices to compel prisons and jails to “mitigate the mortal harm that the COVID-19 pandemic will inflict upon incarcerated people with disabilities.” The lawsuit asks the court to “immediately reduce the numbers of people” in or entering correctional facilities in Montana. The group believes prisoners with disabilities will be disproportionately affected by the anticipated wave of infections and are likely to be a low priority for treatment if they do become ill, as is a concern in other states that have filed lawsuits against the U.S. Department of Health and Human Services.

In a 5-2 decision the same day, the Supreme Court ordered Montana’s attorney general as counsel for the DOC to file a response to the lawsuit within five days, saying that “given the rapidly evolving circumstances of the COVID-19 situation, the Court deems it advisable to obtain expedited response.” Justice Dirk M. Sandefur, in his dissent, wrote that the lawsuit fails to prove DOC or other criminal justice entities are “proceeding in deliberate disregard of the indisputable COVID-19 risk to our inmate populations.” He continued that the suit “nakedly asserts” that failure to act on the suit’s specific requests “constitutes deliberate indifference.” Justice Jim Rice joined Sandefur in dissenting.

Gov. Steve Bullock issued a directive Wednesday afternoon ordering the state Department of Corrections to suspend most new prison transfers, screen all people arriving at facilities, and restrict in-person visitation while providing access to non-contact visitation. The DOC was ordered to provide one free video visit and one phone call weekly for prisoners and unmonitored call lines to protect attorney-client privilege. Under Bullock’s order, the DOC will reduce in-person contact for pretrial defendants and those under community supervision. The governor authorized the DOC to purchase equipment to promote remote supervision. Bullock also directed the Board of Pardons and Parole to consider early release for older prisoners, those who are vulnerable due to medical conditions or are pregnant, and those with impending release dates if their release does not pose a threat to public safety.

Alex Rate, legal director for the American Civil Liberties Union of Montana and Justin Stalpes of the Bozeman law firm Beck, Amsden & Stalpes are representing the disability watchdog group that filed the suit against the state’s courts, the Department of Corrections, and the Board of Pardons and Parole.

In a statement released late Wednesday, the ACLU said Bullock’s directive is too little and too late to curb the threat of a COVID-19 outbreak in the state’s correctional facilities.

“Unfortunately, Governor Bullock’s directive regarding state correctional facilities lacks a sense of urgency,” it said, noting that the directive contains no provisions for expedited release of people with disabilities and other vulnerable people, that guidance provided to the Board of Pardons and Parole is “vague and undefined,” and that the directive doesn’t address court costs.

The lawsuit follows two letters the ACLU sent last month to Bullock and DOC Director Reginald Michael urging them to “immediately develop evidence-based and proactive plans” to prevent the spread of COVID-19 in correctional facilities throughout the state. 

Among the issues the ACLU’s first letter, dated March 12, said need to be addressed are staffing, educational, and hygiene provisions; coronavirus screening and testing; quarantine capability and treatment for exposed prisoners without “prolonged, widespread lock-downs”; and additional precautions for high-risk inmates such as pregnant women and prisoners with underlying medical conditions, including those with disabilities. 

On March 18, the ACLU sent a second letter to Bullock, the DOC, and other justice system stakeholders offering the organization’s support and “added capacity for problem solving.” The letter suggests that courts evaluate every person in custody statewide for potential release in order to limit virus transmission and alleviate staffing demands.

In an emailed statement on Wednesday, the DOC said it has been working closely with the ACLU and has been allowing low-risk offenders to serve sentences in community settings when appropriate.

“The offenders currently in prison remain there because they are higher risk, serving sentences for sexual or violent offenses, or cannot have their often-extensive needs met in communities,” DOC Communications Director Carolynn Bright said in the statement. She added that if released, most would not have access to adequate housing, employment, medical and treatment services, or transportation.

“The effect of the litigation, if successful, could be a mass release of offenders into homelessness during a time in which our health care system and other social services are already strained due to COVID-19,” Bright said in the statement.

The lawsuit lauds Montana Supreme Court Chief Justice Mike McGrath for steps he’s already taken to provide guidance to corrections officials. Last month McGrath asked jails to review their rosters and release inmates who do not pose a threat to the public.

“Unfortunately, there has not been a uniform response across the state,” the lawsuit says. Some counties have refused to release inmates, and though the DOC has implemented some measures, none “included a review of individuals that could potentially be released.” The aggressive spread of COVID-19 across Montana “requires a uniform, coordinated response,” it says, quoting the chief justice’s order filed March 27. “The only body vested with the authority to order a uniform response across all correctional facilities is this Court.”

“This is a dire emergency,” attorney Stalpes said in a statement released Wednesday. “The response cannot be patchwork — the only thing that will stop, or at least slow, the risk of a COVID-19 outbreak in correctional facilities and communities is a swift and uniform state-wide response. Lives are at stake — we cannot afford to wait another minute.”

DOC Communications Director Bright said the situation is difficult.

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“These are not easy decisions and it is disappointing to see the ACLU resort to litigation rather than working toward a solution that ensures the safety of all Montanans, including Montanans who are incarcerated,” she said.

The lawsuit claims subjecting non-dangerous prisoners with disabilities to a possible outbreak of COVID-19 violates their rights to freedom from cruel and unusual punishment, to individual dignity, and to due process. It asks the court to order a rapid reduction in and limitation of incarcerated people and pretrial detentions, and to issue guidance for lower courts.

Jodi Hausen is a Bozeman-based freelance writer and photographer whose award-winning work has appeared in national and regional publications. She is currently working on several book projects, including one about people with so-called disabilities. Her website is PotentPortrayals.com.