Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.
The case before the court was filed in April by inmates at a low-security federal prison in Elkton, Ohio, who argued that they face a high risk of being infected with COVID-19 because they live in such close quarters that it is impossible to practice social distancing. One in five prisoners, the inmates note, currently have COVID-19. On April 22, the district court ordered the Bureau of Prisons to evaluate elderly and high-risk inmates for transfer out of the Elkton facility, either through some form of early release (such as home confinement) or by moving them to another facility.
A few weeks later, the inmates asked the district court to enforce the order, telling the court that none of the 837 inmates identified as elderly or high-risk had been released or moved yet. On May 19, the district court issued a new order. Concluding that prison officials had been “thumbing their nose at their authority to authorize home confinement,” the district court instructed prison officials to “make full use of the home confinement authority” and to reevaluate whether inmates were eligible for home confinement without using certain criteria – such as the length of time remaining on an inmate’s sentence – as a categorical bar.
The government came to the Supreme Court on May 20, asking the justices to freeze the district court’s April 22 order while it appealed to the U.S. Court of Appeals for the 6th Circuit. But in a one-page order on May 26, the justices turned the government down. The court emphasized that the government had only asked it to stay the district court’s April 22 order, even though the May 19 order enforced the April 22 order and put “additional measures” in place. However, the court indicated, the government could return to seek a new stay “if circumstances warrant.” Three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – noted that they would have granted the government’s request.
On Monday the government filed a new request, this time asking the justices to block both the April 22 and the May 19 orders while it appeals to the 6th Circuit and, if necessary, the Supreme Court. Citing its “extensive efforts to combat COVID-19 at Elkton” and stressing that courts should not second-guess those efforts, the federal government explained that the BOP had approved 51 more inmates for home confinement, as well as one more inmate for compassionate release; the other at-risk inmates will be transferred to other federal facilities after they have been quarantined for 14 days. The “wide-scale inmate transfers ordered by the district court as a means to combat the COVID-19 pandemic are highly disruptive of sound prison administration,” the government argued, while the court’s requirement that the BOP reevaluate inmates’ eligibility for home confinement “imposes additional harms to public safety” by creating “a substantial risk that inmates might be released into home confinement only to offend again.” Unless the Supreme Court puts the district court’s orders on hold, the government warned, “irreparable” harm will result – and that harm is unnecessary, because the situation at Elkton is rapidly improving.
The inmates urged the justices to stay out of the dispute again. The district court’s orders, the inmates told the court, give the BOP substantial discretion to decide whether an at-risk inmate should be released or instead transferred to another facility. But that discretion, the inmates emphasized, “does not extend to violating the Constitution, or slow walking a remedy.” The district court simply responded to this “fact-bound dispute, specific to a single prison afflicted by one of the nation’s worst COVID-19 prison outbreaks,” with “an appropriate balance of speed and thoughtfulness.” The government’s request to put the district court’s rulings on hold, the inmates protested, boils down to an appeal from the government “to place its own administrative burdens over the lives and health of those it concedes are medically vulnerable to a deadly disease.”
In a reply brief filed earlier today, the government told the justices that it expected to begin transferring the first group of 128 inmates to other facilities tomorrow, even before oral argument in the U.S. Court of Appeals for the 6th Circuit, which is also scheduled for tomorrow. So although the court of appeals “has stated that it expects to issue a decision soon after” tomorrow’s oral argument, the government urged the court to stay the district court’s ruling until its appeals in the 6th Circuit “and, if necessary,” proceedings in the Supreme Court have been resolved.
In a short order signed only by Sotomayor tonight, the April 22 and May 19 orders were put on hold “pending the disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.” The order means that the 6th Circuit’s ruling, standing alone, will not change anything; the stay will be lifted – and the district court’s orders reinstated – only if and when either Sotomayor or the full court says so.