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Lawmakers seek early release for some prisoners, investigation into COVID-19 protocols


Xerxes Wilson   | Delaware News Journal
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A group of Delaware lawmakers want to empower a special committee to call witnesses and subpoena documents relevant to how the state's Department of Correction has handled the COVID-19 pandemic. 

Legislators will introduce a resolution aimed at creating the special committee to "make findings and recommendations" regarding the quality of health care provided to inmates in Delaware prisons, said state Rep. Sean Lynn, D-Dover, the primary sponsor. 

The resolution — along with a separate bill aimed at allowing some prisoners early release and credit off their sentences due to the pandemic — represents the first legislative involvement of the Delaware General Assembly in COVID-19 outbreaks in local prisons, which have seen more than 1,750 prisoners infected and 12 die. 

In December, Delaware Online/The News Journal determined that of the 5,700 or so inmates who have spent at least three weeks in lockup since the virus was first detected in local prisons, some 1,428 had tested positive — a rate approaching 1 in every 4. 

Since then, more inmates have been infected, though correction officials say only a handful are symptomatic.

Since the pandemic began, Delaware Online/The News Journal has published a series of stories providing accounts of the department's response from those inside prisons. 

At first, people inside primarily complained about the decision not to provide prisoners with masks, a decision correction officials defended before reversing. 

More recently, prisoners have questioned whether decisions made by prison officials have exacerbated the spread of the virus, said vulnerable inmates who said they have not been protected sufficiently and that the pandemic response is slowing inmate efforts to earn time off their sentences.

In correspondence with reporters as well as litigation, they also claim medical needs outside of COVID-19 are not being addressed in a timely manner. The inmates have also disputed aspects of how prison officials say they are handling the outbreak. 

"Nobody in a leadership position can say they handled this well," said Charles Colburn, who is imprisoned at James T. Vaughn Correctional Center near Smyrna. "Nobody expected this." 

At each turn, Claire DeMatteis, commissioner of the Department of Correction, and prison leaders under her have disputed those opinions as "false narratives" and portrayed the situation as under control. 

On Wednesday, the Department of Correction, through a spokesman, said that its officials have been "actively and responsibly engaged with legislators, inmate families, and other stakeholders throughout the COVID-19 pandemic" and that won't change "with or without this resolution."

DIFFERENT STORY: Prisons, inmates and their families dispute Delaware's response to COVID-19 outbreak

Lynn said the resolution was spurred by him reading complaints from inmates.

Lynn, DeMatteis and Dover attorney Stephen Hampton, who frequently sues the state on behalf of inmates, sparred via email about the situation in prisons over the Christmas holiday, correspondence which was part of Lynn's motivation for seeking the legislative inquiry, he said.

Lynn specifically mentioned delays in non-pandemic related health issues, a frequent complaint by prisoners in recent months. 

An excerpt of that correspondence include DeMatteis' defense of how prison's have handled outbreaks can be found at the end of this story. 

Lynn said the "frequency and the scope and the sheer volume" of complaints dictates that "something needs to be done" to help both prisoners and officers working in the facilities. 

"If the Department of Correction was to be believed, everyone that is making those complaints is lying which stretches credulity," Lynn said. 

The resolution, if passed, would create a committee that has subpoena power to demand documents and testimony beyond the powers of existing legislative committees, Lynn said. The committee would have access to otherwise protected health care information for former and current inmates, according to a draft of the resolution. 

Lynn called "healthcare rights and issues" in prison a "cyclical issue," citing historical problems and a flood of lawsuits in recent years against the prison's former nonprofit health care provider. 

That provider, Connections Community Support Programs Inc., agreed last year to end its contract with the prison system early, before the pandemic took hold, and a new provider was later selected by officials for the contract that is worth more than $50 million annually. 

The early release from Connections' contract came after lawsuits filed by people like the family of Luis Cabrera, who died in pain of a perforated ulcer as the prison health care providers "negligently" failed to render aid, according to his lawsuit. 

Cabrera's family settled last year, but another federal lawsuit by an employee that tried to blow a whistle on the alleged negligence surrounding his death continues in the courts. 

Lynn said the focus of the committee will be on COVID-19 related issues, but prior issues may come up as "historical precedence." 

A final draft of the resolution circulated Tuesday night included sponsors from both parties.

RESOLUTION: Lawsuit over a son's cancer death in prison ends

At a press conference regarding the state's larger COVID-19 response, Gov. John Carney, who appointed DeMatteis as head of the state's correction system, stated that she has done a "really good job" managing the pandemic behind bars.

He added that it's "always difficult to sort out fact from fiction" regarding complaints by prisoners. 

"I get my facts from the commissioner and I know in any kind of inquiry legislators would get the facts from her as well," Carney said. 

He said he was not aware of the draft resolution when asked Tuesday. 

The resolution is one of two proposed laws relevant to COVID-19 and prisons filed ahead of the General Assembly's coming legislative session. 

The other, House Bill 37, would give early release to some inmates who have served time during the pandemic. 

That legislation would create a "public health emergency credit" for Delaware prisoners by providing six months of credit off their sentence for each month they've been imprisoned during the pandemic. The benefit would be capped at erasing one year.

Rep. Melissa Minor-Brown, D-New Castle, who is the legislation's primary sponsor, was not immediately available for comment. 

The synopsis on the legislation states that the credit would have the "practical effect" of moving forward release dates for inmates with less than a year remaining in prison thus reducing the prison population. This will relieve pressure on staff and create "better conditions for those that remain incarcerated to socially distance," the legislation states. 

Families and advocates like the local American Civil Liberties Union have been calling for such actions since the beginning of the pandemic. They argue that social distancing is impossible in the close quarters of prison. 

Correction officials said they are working to tally the number of inmates that would immediately benefit from the change. 

When asked what position Correction's leadership has taken on the proposal, a spokesperson said the department is "mindful that the lengths of prison sentences are set by the courts," not by correction officials. 

The statement stated that "significant sudden adjustments to court-ordered release dates for large numbers of inmates" may impact court-ordered treatment provided to prisoners and reentry planning. It would also "drive the need" for additional parole "resources." 

The statement did not indicate a specific position in favor or against the legislation.

DeMatteis has previously said such actions are "not justified" and that the state's prisons are not overcrowded.

Spokespersons for Carney did not reply to an email seeking his position on the legislation. Previously, he said he does not believe releasing prisoners is necessary. 

On Tuesday, he said the prison population is already down partially because the wheels of the court system have largely halted without the ability to call jurors during the pandemic.

"We are not detaining the number of inmates that they normally would," Carney said. "That is frankly creating some issues in some communities in my view with respect to the violence we are seeing on the streets." 

He did not elaborate on specific communities or instances of violence.

While the legislation would have the effect of releasing prisoners who have a year or less remaining, the bill's synopsis says it is also intended to recognize "that the conditions of confinement during a public health emergency like the current one can be considered significantly more punishing." 

Prison visitation has been on hold and opportunities for programming and reduction of a prisoner's sentence through work assignments have also been disrupted.

Colburn, the prisoner at Vaughn, said when he tested positive for COVID-19 last month, he was moved from Howard R. Young Correctional Institution in Wilmington to the Smyrna-area prison where he is housed in more restrictive conditions than the lockup he earned through good behavior and participation in prison programming. 

"It is unfair that we are being treated the way we are being treated," he said. 

He said some inmates, including himself, have been hesitant to admit they have symptoms fearing their housing assignment and work opportunities will be put to the side during a series of indefinite quarantines some feel amount to "punishment."    

He has a year left on his sentence and would benefit from the early release. 

"We are still human," he said in a phone interview Tuesday night. "No matter how you look at it, we are part of the human race." 

He said there are many prisoners who consider themselves rehabilitated, have completed prison programming, but are now serving what he referred to as "dead time" just waiting for the expiration of their sentence. 

"I have done a lot to reform myself and become a better person," Colburn said. "What is the difference of me getting out now or 12 months from now?"

The early-release legislation has been assigned to a committee, but it is unclear when it might move forward. 

If you are a prisoner in Delaware, you can contact reporter Xerxes Wilson by searching for xwilson@delawareonline.com in the Getting Out email app. Prison officers and staffers may contact reporter Xerxes Wilson by emailing the same address. Your identity will be protected. 

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter.

Read an excerpt of correspondence between Lynn, Hampton and DeMatteis below: 

This the final draft of a resolution seeking an investigative committee for COVID-19 in prison: