November 20, 2020—In April, we began representing pretrial detainees at the Philadelphia Federal Detention Center (FDC) in a class action lawsuit demanding protection from COVID-19. Since then, the facility has increased testing of inmates—a crucial step toward mitigation that was virtually non-existent when we filed the case. In recent weeks, that testing has uncovered a massive and rapidly spreading outbreak.
In the last three weeks, 171 detainees and 28 members of staff have tested positive for COVID-19, and these numbers continue to rise. This is more than 18 percent of all FDC inmates, and test positivity rates are north of 20 percent. The facility is currently locked down, with no attorney or social visits permitted, and communications are limited. Inmates are allowed out of their cells three times a week for 30 minutes to shower and make monitored calls. The FDC has refused to set up video conferencing to make it possible for detainees to speak confidentially with their attorneys.
Yesterday, District Court Judge Anita Brody issued an order in the case, directing the FDC to send a notice to every inmate in the facility, notifying them that they can request release to home confinement if they have medical conditions that places them at increased risk for severe complications from COVID-19. Individual requests for release would be reviewed by a judge. The order also establishes new procedures for attorneys to access their clients’ medical records and set up confidential calls.
This increased notice to pretrial detainees is welcome, but further action is necessary. To manage the outbreak, the FDC needs to take additional steps, including implementing regular testing of all inmates and staff, and improving healthcare within the facility. These steps are necessary to protect the health of inmates and staff, and to reduce the chance that the FDC outbreak will spread to the community beyond the jail’s walls or overwhelm local hospitals with gravely ill inmates.
Our clients contend that the current dangerous conditions within the FDC violate the 8th Amendment’s ban on cruel and unusual punishment and their 5th Amendment right to due process.
“We simply do not condemn people to suffer exposure to a deadly virus as part of a sentence, much less to punish them for being accused of committing a crime,” said Jim Davy. “Our clients are asserting a constitutional right to safety and health, and the FDC needs to uphold our shared constitutional values even—especially—under these circumstances.”