As Texas inmates' lawsuit over coronavirus response winds through courts, infections among prisoners surge

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Dorm-style cubicles are the most common form of housing at the Pack Unit. Caleb Bryant Miller for The Texas Tribune

When two Texas inmates at a geriatric prison first sued the Texas Department of Criminal Justice over its handling of the coronavirus in late March, no inmates at the unit were confirmed to have been infected. In mid-April, when a federal district judge ordered TDCJ to implement a slew of protective policies, one infected inmate had died and no others were known to be sick.

But by the time the U.S. 5th Circuit Court of Appeals heard arguments in the lawsuit Thursday, after temporarily blocking the lower court's order, at least five inmates at the Pack Unit had died with the COVID-19 disease and nearly 200 more are confirmed to have the virus, according to the state's lawyer.

Due to the Pack Unit's recent surge in reported coronavirus cases, the federal appellate judges held Thursday's hearing a week earlier than it was originally scheduled. In their remote court hearing, they questioned both if state officials have done enough to protect high-risk inmates in a rapidly changing situation and whether the prisoners suing TDCJ followed the proper steps before heading to federal court.

The prisoners at the Pack Unit, a prison near College Station that has recently faced other federal litigation over stifling summer temperatures, have said TDCJ's policies are "woefully inadequate" to protect sick, older inmates. They also argue the agencies' actual practices are even worse and violate the constitutional protection against cruel and unusual punishment. In their lawsuit, they asked for more protective gear, cleaning supplies and social distancing.

TDCJ has so far successfully appealed the lower court's order to require more protective measures. But the agency has since enacted much of what the judge required in April anyway. That includes providing face masks and testing all the prison's inmates for the virus. One of the state's main arguments against the lower court's ruling is that the order restricts the agency's ability to adapt to the constantly shifting situation of a virus that health officials are still trying to understand. But inmates claim, and the district judge agreed, that court intervention was needed to protect them from the prison's apparent "deliberate indifference" to inmates' risk.

In Thursday’s hearing, Judge Eugene Davis asked the inmates’ lawyer to provide by Monday a list of new policies or procedures that might be needed — based on the evolved TDCJ response as well as the growing number of infections and deaths. The appellate judges weighed the evolving status of the case, and made critical remarks of both the prison system and the inmates.

Davis repeatedly raised questions of social distancing practices in the prison now that the infection has spread. Judge Stuart Duncan and Texas Solicitor General Kyle Hawkins countered that even the lower court judge’s ruling agreed social distancing is largely impossible in prisons and didn’t find the prisons were unconstitutionally withholding it.