HELENA — In a unanimous opinion issued Tuesday, April 14, the Montana Supreme Court denied a disability rights organization’s petition to provide oversight of all the state’s correctional facilities in the face of the COVID-19 pandemic. The American Civil Liberties Union of Montana filed the lawsuit April 1 on behalf of Disability Rights Montana asking the high court to compel prisons and jails to mitigate the effects of the highly contagious illness.

Montana Department of Corrections Director Reginald D. Michael said he was pleased with the court’s decision. “The justices recognized the extensive effort the state and department staff have invested in implementing and following CDC guidelines for COVID-19 at our secure facilities,” he wrote in a prepared statement Tuesday. “It’s clear the DOC is committed to ensuring the health and safety of our employees and the inmates we supervise throughout this pandemic.”

Speaking from her home on Tuesday, DRM’s Executive Director Bernadette Franks-Ongoy said she was disappointed. 

“While DRM may have a ‘policy disagreement’ with [the state], as DOC describes it, DRM has not proven the existence of a clear legal duty to reduce the prison population.”

—Montana Supreme Court

“A uniformed response with a special master overseeing the process, I think, would have been the appropriate step to take to protect people with disabilities and assure that they got every opportunity to be safe in the correctional facilities or to be released,” she said.

Caitlin Borgmann, executive director of ACLU Montana, said in an email that the state’s efforts have been insufficient to “prevent illnesses, and likely death, among incarcerated people and those who work in Montana’s correctional facilities … Jails and prisons are epicenters of COVID-19 outbreaks and prevention is critical. Once an outbreak occurs, it will likely be too late. We are deeply concerned to see the state gamble with people’s lives.”

In their decision, justices wrote that DRM “either completely ignored or misrepresented” facts that demonstrate that the DOC and governor’s office “implemented appropriate and detailed measures” for correctional facilities to address health concerns in light of the pandemic. Though justices acknowledged the state’s responsibility to “provide for the ‘general well-being’ and ‘basic human needs’ of incarcerated persons,” they denied that inmate health care is inadequate. Furthermore, they wrote, the watchdog group failed to prove prison officials “acted with deliberate indifference to the health and safety of disabled inmates” or that inmates’ and prisoners’ rights to protection from cruel and unusual punishment and to due process were violated. 

“While DRM may have a ‘policy disagreement’ with [the state], as DOC describes it, DRM has not proven the existence of a clear legal duty to reduce the prison population,” the decision also states.

Although not completely satisfied, Franks-Ongoy acknowledged the measures that have been taken to protect inmates. “I do appreciate the leadership that the governor has brought with regards to his directive. And I do appreciate the efforts that all of the detention and correctional facilities are making on behalf of people with disabilities and prisoners with disabilities,” she said. “These are extraordinary times, and we’re asking people to dig really deep, and I think that people are digging deep. We thought we came up with a recommendation through this petition that I think could have provided more uniformity.”

The court was clearly concerned for the safety of incarcerated people prior to the lawsuit being brought. Chief Justice Mike McGrath issued a letter in March asking detention facilities to review their rosters and release inmates who are not a threat to public safety, among other measures. On the same day the suit was filed, justices issued, in a 5-2 decision, an order for the state attorney general, as the Department of Corrections’ legal counsel, to file a response within five days, citing the emergent situation.

Gov. Steve Bullock also filed a directive the following day with specific guidelines for the DOC addressing some of DRM’s concerns. But the ACLU’s Borgmann said in Tuesday’s statement that Bullock’s executive order “lacked a sense of urgency.”

“We are not giving up,” she said. “We continue to urge the Governor to use his leadership and power to help prevent the virus from spreading in Montana’s prisons, jails and communities.”

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.