A total of 52 prisoners died in custody of the Oregon Department of Corrections in 2021, setting the number for the deadliest year in recent history in Oregon prisons.
The corrections department was on pace to match or surpass the previous recent high of 50 deaths after an average of one prisoner died each week late in 2021, as previously reported by Street Roots in December 2021. According to the corrections department, 21 of the 52 prisoners died from COVID-19.
The previous recent high of 50 deaths was recorded in 2016 and 2020.
The corrections department faces multiple lawsuits regarding its handling of the COVID-19 pandemic, including a suit filed by a prisoner in March alleging prison staff at Two Rivers Correctional Institution failed to enforce the department’s own mask mandate. Prison staff allegedly retaliated against the prisoner who filed the suit.
The Oregon Justice Resource Center, a civil rights law nonprofit that provides legal representation for historically underserved communities, represents prisoners across Oregon in a different lawsuit against the corrections department. The OJRC initially filed suit in April 2020, seeking an injunction and temporary restraining order to force the corrections department to provide more protections for prisoners against COVID-19 transmission. The suit has evolved over time, now a class action lawsuit including three relief classes.
The civil rights law group is suing Gov. Kate Brown, Oregon Health Authority director Patrick Allen and various prison administrators across Oregon over their handling of the COVID-19 pandemic inside Oregon’s prisons. OJRC is suing on behalf of prisoners affected by COVID-19 as well as the estates of deceased prisoners.
The lawsuit includes testimony from prisoners describing living conditions and a lack of medical care preventing them from protecting themselves from contracting the virus early in the pandemic before vaccines were available.
“When I got sick in March, a bunch of other people on my unit also got really sick,” one Oregon prisoner said in a court declaration. “I self-quarantined because medical wasn’t doing anything for us. After 9 days of being sick, a nurse came and checked my temperature – it came back 103 degrees and then later that day 104 degrees. The nurse I saw gave me salt packets and told me to gargle with salt water.”
Another prisoner in Oregon alleged a lack of medical care for those experiencing symptoms in court filings.
“Currently people in my unit are coughing, running fevers, and displaying other COVID-19 symptoms,” the prisoner said. “Nobody is getting temperature checks and no medical staff are coming through the unit.”
OJRC lawsuit
The OJRC alleges the corrections department displayed negligence and deliberate indifference to the health and safety of adults in its custody, a violation of the Eighth Amendment, by failing to adequately protect them against COVID-19 infections.
The lawsuit seeks damages under three relief classes: for those infected with COVID-19 in corrections department custody, those who died from COVID-19 in corrections department custody and for failure to vaccinate prisoners quickly.
Juan Chavez, the director of the Oregon Justice Resource Center, says the civil rights law group faced numerous legal challenges so far while litigating this case. Among the first was a motion for partial summary judgment by the defendant’s lawyers filed Aug. 3, 2020 challenging the assertion the corrections department had a clearly established legal obligation to protect prisoners from heightened exposure to COVID-19.
“When they filed that motion, things were bad; they were also getting worse,” Chavez said. “More and more people are getting sick; more people are dying. There's outbreaks in every facility (at that time).”
Qualified immunity protects law enforcement and state officials from civil liability for violating a person’s rights while carrying out their official duties, except in cases where the plaintiff’s “clearly established” constitutional or statutory rights are violated.
The corrections department argued there was no clearly established precedent with COVID-19, and therefore the prison officials named in the suit were protected by qualified immunity. The judge disagreed, ruling the corrections department’s responsibility was clearly established.
“The court … finds that there exists a clearly established right for individuals in custody to be free from heightened exposure to a serious, easily communicable disease,” reads the decision allowing the lawsuit to proceed.
That wasn’t the end of the OJRC’s legal hurdles. In the winter of 2020, the conversation turned to the availability of vaccines for prisoners in Oregon’s prisons.
“We had gotten some assurances that they would be included in priority group one, being not the first line, but somewhere close,” Chavez said. “But it became apparent to us that they were going to drag their feet and delay the vaccine rollout for adults in custody.”
"We mourn with the 45 families who have lost loved ones and we are deeply concerned for the more than 5,300 people who contracted COVID while in prison, some of whom are still experiencing significant health impacts from this disease.”
— Oregon Justice Resource Center
In January 2021, Brown announced corrections officers and those living in long-term, non-correctional care facilities would be among the very first priority group to receive a COVID-19 vaccine, yet excluded prisoners.
“They even acknowledged that people in the same circumstances as prisoners were vaccine priority, but they weren't going to give them (prisoners) the vaccine,” Chavez said.
The OJRC sued over vaccine distribution to prisoners, initially including various prison administrators, Allen and Brown in the suit. On Feb. 2, 2021, a judge ordered the corrections department make vaccines available to all prisoners immediately.
This February, a judge dismissed the claims against prison officials for holding up vaccine distribution but allowed the claims against Brown and Allen to proceed, saying they held sole control over the distribution of vaccines to prisoners.
On April 1, a judge granted class-action status to the wrongful death and damages classes of the lawsuit against multiple prison officials, Brown and Allen.
The OJRC released a statement following the decision which says in part, “The fears we had in April 2020 about how incarcerated people would be affected by the pandemic have sadly come to pass. The impact of this disease and its mishandling by those in charge has been devastating to people in prison. We mourn with the 45 families who have lost loved ones and we are deeply concerned for the more than 5,300 people who contracted COVID while in prison, some of whom are still experiencing significant health impacts from this disease.”
Bigger questions
The lawsuit echoes a standing concern about an entrenched lack of transparency within Oregon’s prison system. Prisons are known for being tight-lipped, which often makes it hard for journalists, lawyers, advocates and the public to access information, in effect preventing outsiders from knowing what is happening to prisoners, making them particularly vulnerable to abuse and exploitation.
Tara Herivel, a criminal defense lawyer in Portland, said even accessing basic documents during court cases is usually problematic.
“I can't think of a case where I am not missing documents, and don't have to go back and say, ‘Okay, you didn't give me this entire swath of documents,’” Herivel said. “I know from my experience, but it's common in speaking with other attorneys who do work with prisons. It's a common complaint.”
While getting information from prisons is generally a challenge, Herivel said, the Oregon Department of Corrections is particularly difficult.
“The Oregon Department of Corrections ... is anything but transparent, particularly with issues like deaths or medical care or things of that nature that might be inflammatory to the public,” Herivel said. “A huge issue in all prisons is the lack of transparency or oversight. In my experience of doing prison work, Oregon's Department of Corrections is particularly resistant to transparency across the board. It's like pulling teeth to get information from them.”
In reporting this story, Street Roots reached out to the Oregon Department of Corrections to gather information about how the corrections department was handling the pandemic, and what measures they were taking to protect prisoners. Street Roots inquired about routine COVID-19 procedures, such as frequency of testing, where COVID-positive prisoners were housed, when and where vaccines were first offered to inmates, how facilities responded to outbreaks and whether any policies would be changed to mitigate further deaths. The DOC did not answer 13 of the 19 questions saying they could not answer because of ongoing litigation.
In addition to the unanswered questions about COVID-19 protocols, a Street Roots investigation found inconsistencies in corrections department COVID-19 data the department has yet to provide clarity on.
Information precedes accountability
While a challenge to public accountability, prisons are not required by law to share information like deaths, business operations and inmate oversight with the public.
“The DOC doesn't have a legal obligation to disclose deaths publicly,” Herivel said, though they are required to follow other procedures for documenting and notify family or next of kin.
Additionally, the corrections department isn’t required to publicly disclose other aspects of its operations, and it has many legal protections to fall back on, allowing it to keep information private.
While the corrections department regularly publishes tallies of deaths and infections in its prisons, how it’s operating during the COVID-19 pandemic is murky. Advocates argue more transparency may be warranted, especially during the pandemic.
The OJRC lawsuit comes alongside similar lawsuits zeroing in on prisons’ failure to protect prisoners during the pandemic. In Arkansas, prisoners sued a jail for giving them ivermectin without their consent in February 2021. Early in the pandemic, the ACLU filed a lawsuit against the Butner Federal Correctional Complex in North Carolina alleging the institution had been negligent in its efforts to protect prisoners from contracting COVID-19.
In Maryland, prisoners filed a class action lawsuit against the Chesapeake Detention Facility over claims that prison operators were negligent in protecting prisoners from contracting COVID-19. A settlement was reached in April 2021.
“There's then kind of this special circumstance of COVID,” Herivel said. “ As a community who's holding people in the most unsafe environment regarding COVID, in the congregate setting of prison, do they have a duty of transparency? I would ask their people, why do you publish certain deaths? Do you publish all deaths? What's the basis for doing so? It's always a need to know who's dying in custody.”