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In blow to DOJ, Supreme Court won't block order to move prisoners over coronavirus concerns

The Bureau of Prisons said more than 160 inmates and seven staff members at the Ohio prison have tested positive for COVID-19.
Image:The Supreme Court building in Washington
The Supreme Court building in Washington.Jonathan Ernst / Reuters

WASHINGTON — The Supreme Court declined Tuesday to block, for now, a federal judge's order requiring the government to consider moving more than 800 inmates from an Ohio prison who are at risk of catching COVID-19.

Over the dissents of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, the court said it would not issue a stay of an April 22 order requiring the federal Bureau of Prisons to begin the process of releasing vulnerable inmates from the low-security Elkton Federal Correctional Institution near Canton. It holds roughly 2,400 inmates, and nine have died from the coronavirus.

But the Supreme Court's brief order said the Justice Department opposed only the April order and not a new one the judge issued in May. So the justices left the door open for the government to come back and seek another stay. In the meantime, the judge's order remains in effect.

Represented by the American Civil Liberties Union, four Elkton inmates said the facility simply has no ability to impose the kind of social distancing required by the Bureau of Prisons. Inmates are housed in dormitory-style rooms of about 150 prisoners apiece. The result, the ACLU said, has been a severe outbreak of the virus. The Bureau of Prisons said Tuesday that 162 inmates and seven staff members have tested positive for COVID-19.

In April, the judge ordered the prison to identify the most medically vulnerable prisoners and evaluate their eligibility for home confinement, compassionate release, furlough or transfer to safer prisons. But the ACLU said no prisoner has received any such relief, "though the infections and deaths continue to mount." As a result, U.S. District Judge James Gwin, based in Cleveland, issued a new order May 19 to enforce compliance.

The Justice Department's solicitor general, Noel Francisco, urged the court to issue a stay.

"A judicial order peremptorily requiring the removal of over 800 inmates from a federal prison based on an alleged Eighth Amendment violation — in the midst of a pandemic — presents extraordinarily significant questions and should not be imposed without this court's review," Francisco said.