The Oregon Department of Corrections Amid Covid-19 (Part Six)
An argument for “transitional leave” as a life-saving policy.
BY MICHAEL D. KELL
PART ONE (3/26)
PART TWO (4/15)
PART THREE (4/23)
PART FOUR (5/13)
PART FIVE (5/14)
PART SIX (5/26)
PART SEVEN (8/14)
PART EIGHT (9/29)
[Note: On May 21st, the Oregon State Penitentiary announced the first death of an adult in custody due to Covid-19.]
In a previous article I used the terminology “professional negligence,” “malfeasance in public office,” and “reckless endangerment” to describe the recent actions—or lack thereof—by public officials within the Oregon corrections system during this pandemic. I have also used the term “liability.” What I’ve not touched upon, hoping it would not come to this, is “wrongful death.” However, in the face of more than a quarter million deaths worldwide, it would be remiss of me to mask this issue.
I also previously mentioned that Washington Governor Jay Inslee released several prisoners due to the pandemic. What I did not go into is exactly why Governor Inslee made this decision. It appears that the Supreme Court in the State of Washington, and I’m sure the Office of the Attorney General, as well, advised the governor that it was necessary to make this move to prevent the state and its officials from incurring serious liability in the event anyone were to be seriously injured or killed within the prison system due to infection of Covid-19 and the inaction of the state to take all possible measures, both logistical and legal, to prevent such injury.
An administrator within the Oregon corrections system recently circulated a document that contained the following statement:
“As you are no doubt aware, there are areas where ‘social distancing’ is difficult to achieve in the institution.”
As a firsthand observer of the situation, I can personally attest to the fact that this is the understatement of the century. Not only is it difficult, but it seems utterly impossible for corrections officials to implement the mandates made by our governor to observe social distancing as well as all of the other guidelines governing the operation of public access facilities and essential workers. As state workers, corrections officers do not have the luxury of incurring a fine, or a slap on the wrist so to speak, for noncompliance with these mandates. As public officials said, noncompliance constitutes malfeasance and makes them, and their employers, personally liable. Governor Brown mandated, three weeks ago, that ALL essential workers wear protective face coverings at ALL times during work shifts. Three weeks before that she mandated that no food service organizations operate public access dining rooms and that all gyms, spas, and areas of operation of public access facilities allowing the congregation of more than ten people at once be closed. Only now, after an extensive outbreak here at the penitentiary, are the essential employees wearing protective face coverings. A dining room, a gym, and an indoor recreation area, each seating more than one hundred people, are still being operated regularly.
Governor Brown announced that she would not be issuing an executive order releasing prisoners due to the pandemic. Virtually every one of our state’s minimum custody correctional facilities utilizes congregate housing environments. These environments represent admitted impossibilities with regard to the mandates of our own governor to observe social distancing. Recently the Oregon Legislature gave our corrections system leave to initiate a new community corrections strategy known as “transitional leave.” This idea is not new to corrections in Oregon. An analog to this, observed back in the overcrowded system of the 1980s, was known as “terminal leave.” People with reduced custody deemed not to be a threat to the community at large were released into a post-prison supervision community corrections program prior to their parole in the interest of maintaining public safety within our corrections system. The determinate sentencing guidelines of Measure 11—gun possession enhancement, dangerous offender, and murder code—make up roughly 80% of the more than 14,000 incarcerated adults in Oregon today. Barring an executive order from our governor, none of these people who have not served their minimum term of confinement could be released.
Given the fact that Covid-19 is going to be an issue for quite some time, it seems that we must utilize all reasonable means possible to protect our incarcerated citizens. The obvious solution would be to place as many prisoners into the community corrections program known as transitional leave who qualify under the current guidelines. This should include all individuals who have or can legally be allowed minimum 1 custody. This action would not require an executive order from our governor.
Michael D. Kell is an inmate at Oregon State Penitentiary.
