Recent media coverage of a lawsuit on conditions inside a federal halfway house in Van Nuys, California reveal the challenges of abiding by state and municipal social distancing protocols during the Covid-19 pandemic in a confinement setting are practically insurmountable. In addition to concern about elderly and immune compromised inmates at such facilities it is important to reflect on the vast uncertainties surrounding the infectious nature of Covid-19 and its latent or manifest ramifications for the public health of the wider Los Angeles community. This writer is currently confined at Orion Residential Reentry Center in Van Nuys, California and is able to report on this issue first hand.
The routine of life in such an environment on the best of days can feel repetitive, demeaning and prison-like. For most of the inmates on the federal side, that's just what it is: an extension of prison designed to purportedly assist inmates in the last months of their sentence in readjustment to their community. Inmates who are federally confined to halfway houses are not free to come and go as they please, but do often engage with and enter the wider community within a 50 mile radius for employment, medical appointments and reestablishment of family ties. However, when this routine is impacted by the threat of catching or transmitting to that wider community a highly communicable virus that can have deadly consequences for everyone from children to the elderly, it becomes akin to living in a state of perpetual anxiety bordering on panic.
The conditions highlighted in a recently filed federal lawsuit by Orion resident Daniel Sweeney in federal district court are revealing of how a corporatist model for residential reentry centers, much like for-profit prisons, is simply incompatible with the expending of necessary resources, training and facilities management to mitigate infection, contamination and ultimately death in the time of an unprecedented pandemic.
But where does fault lie? It is impossible to assign blame to the on-site staff, who courageously work in and are subject to the same risks that the inmate residents face every day. Many staff at Orion are energetic young people with a strong commitment to social work and rehabilitative services. The policies and management style at such for-profit companies flows from the top down, namely the Federal Bureau of Prisons and its assigned regional officials that manage reentry affairs and the courts, who despite strong evidence that Covid-19 knows no barrier of discrimination as to who it infects or kills, resist releasing low risk inmates in such settings for reasons that are antithetical to the testimony of experts from the United Nations to Harvard who have established that such conditions are a "social distancing nightmare" and that "Covid-19 does not discriminate". (See: https://gsas.harvard.edu/student-life/harvard-reso... and https://www.unicef.org/press-releases/covid-19-doe...).
In a recent ruling denying the motion of a minimum risk Orion resident for release to end his remaining sentence early by less than 120 days such that he not be exposed to the toxic conditions there, Federal Judge Rya Zobel exhibited a kind of myopic thinking all too endemic to many in the judiciary about the threat of Covid-19 when she held:
"[he]has articulated no particular medical condition that places him at higher risk than any other resident. In addition, he points to no actual cases of the virus in the facility where he lives."
Had Judge Zobel referenced a filing by this resident from earlier the very same day she issued her ruling she would have been able to note a citation to the case of another Orion resident who is Covid-19 positive and is the one case of positive Covid identified at Orion House R.R.C by the government (See: bop.gov and Case 1:13-cr-10024-RWZ, Dkt. 506 at 3). In addition, Judge Zobel, despite being privy to many of the photo exhibits filed in the Sweeney lawsuit offering immutable proof that the conditions at Orion violated Federal, State and local social distancing regulations and the Eighth Amendment, held that: "Those conditions, even as he describes them, are not sufficiently bad to constitute cruel and unusual punishment", and summarily denied the motion.
The Eighth Amendment specifically mandates that persons who are confined shall not be subject to inadequacies and prejudices in communicable disease screening and treatment, both conditions that exist at Orion RRC. (See: Jolly v. Coughlin, 76 F.3d 468(2d Cir. 1996). It is difficult to fathom why the Zobel court did not find that the resident's constitutional right to be free from cruel and unusual punishment is not implicated by the lack of medical screening and distancing precautions at Orion House that were presented to her court.
The ruling leaves open the question of what "sufficiently bad", according to the court, might constitute. It also squarely places the wider community the resident lives and works in at great risk of cross-contamination given his access to the wider community. While Covid-19 caught most of the country unprepared for its insidious spread, the diligent and sometimes life-saving work of first responders and tireless public officials such as Governor's Newsom of California and Cuomo in New York to stop the transmission have mitigated what might have become an even more catastrophic impact on public health and mortality.
These commendable efforts, working in concert with a similarly committed global response calling for many of the same protocols and the incontestable importance of social distancing and slowing the spread, need to betaken notice of by courts, detention centers and the Federal Bureau of Prisons before "sufficiently bad" equates to a reality that is more dystopian than what we are currently experiencing now.
Mark Zimny is currently concluding his federal sentence at Orion House R.R.C. in Van Nuys, California. Zimny, a former faculty member at Harvard University, earned his Ph.D. from Yale in 2000 and was convicted of tax evasion and money laundering by a jury verdict in 2015. That case, United States v. Zimny Cr. No 1:13-cr-10024-RWZ, is pending appeal in the United States Court of Appeals for the First Circuit. You can reach Mr. Zimny at mjzimny@aya.yale.edu or on Twitter at @zimny_mark.
