In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According to one source, 32 prisoners have been hospitalized, including 16 requiring ventilators. Meanwhile, Respondents “have yet to come up with a good, sound criteria of how they are going to actually start the testing” of prisoners, much less a plan for social distancing, release, or transfer. Two weeks after the Attorney General exhorted Respondents to “immediately review” all prisoners with COVID-19 risk factors and “immediately transfer them” after quarantine, a mere six of the 2,400 prisoners at Elkton, or 0.25%, have been approved.
Elkton has become an epicenter of COVID-19, and continued confinement will mean a sentence of death, permanently damaged organs, or unnecessary suffering for more residents. Respondents’ lack of effective action constitutes deliberate indifference to serious medical need. This Court is empowered to provide a process for the necessary releases—the only means by which prisoners’ Eighth Amendment rights can be vindicated. The nature of that authority, under 28 U.S.C. § 2241 or alternatively 28 U.S.C. § 1331, is explained further in Section III below
