In a filing based on new evidence, the ACLU of Massachusetts, together with Fick & Marx LLP, are urging a federal judge to order the Bureau of Prisons (BOP) to reduce the population of Federal Medical Center (FMC) Devens to protect the many elderly, medically vulnerable men imprisoned there from COVID-19.
In April, the ACLU of Massachusetts and Fick & Marx filed the class action lawsuit to protect the safety of people incarcerated at FMC Devens and improve public health. The lawsuit asks for the immediate release of a sufficient number of people to ensure that the remaining FMC Devens prisoners and staff can practice effective physical distancing in compliance with CDC guidelines. On May 8, the court denied the requested emergency relief, relying on steps supposedly taken by the BOP as evidence that the prison had likely not been “deliberately indifferent to the health risks of inmates.”
Now, attorneys are asking the court to reconsider the request for emergency relief. Since the court’s initial decision, FMC Devens Warden Stephen Spaulding has admitted under oath that the BOP is deliberately disregarding health risks to incarcerated people. Contrary to U.S. Attorney General William Barr’s urgent directive to reduce prison populations to address COVID-19, Warden Spaulding testified that BOP policy prohibits considering a prisoner’s COVID-19 vulnerability when evaluating whether the person should be granted compassionate release during the pandemic. He also testified that BOP policy prohibits transferring prisoners to home confinement during the COVID-19 pandemic, regardless of their vulnerability, until they have served at least 50 percent of their sentences or 25 percent of their sentences with 18 months or less remaining.
“Public health experts have warned that prisons and jails can become vectors for the rapid spread of COVID-19 inside facilities and in the surrounding communities,” said Carol Rose, executive director of the ACLU of Massachusetts. “It is clear that the Bureau of Prisons and FMC Devens are not taking necessary steps to keep incarcerated people—and by extension, the general public—safe. We urge the court to intervene and issue an order that will save lives.”
Warden Spaulding admitted that everyone—including prisoners, staff, and the local community—would be safer if the FMC Devens population were reduced to create greater social distancing. He also agreed that, thus far, FMC Devens has “been both fortunate and somewhat lucky” to have escaped a more serious outbreak. The prison now, however, has 24 confirmed cases among incarcerated people, 2 among staff, and 1 death.
“The Bureau of Prisons’ intransigence is irrational and deadly,” said William Fick of Fick & Marx. “Attorney General Barr told them: ‘time is of the essence.’ The Warden knows the prisoners in his care, some of the most vulnerable in the country, are at grave risk. And yet the BOP has tied its own hands with red tape. We are asking the court to take action before more people die.”
The lawsuit builds on the ACLU’s litigation efforts to save the most vulnerable from the COVID-19 pandemic. Since the pandemic’s start, the ACLU of Massachusetts has filed several legal actions related to detention centers, prisons, and jails, and has urged government officials ensure a response plan that protects the health, safety, and civil liberties of all people.
