In this March 16, 2011, file photo, a security fence surrounds inmate housing on the Rikers Island correctional facility in New York. As of Wednesday, May 6, 2020, more than 20,000 inmates have been infected by the COVID-19 coronavirus and 295 have died nationwide, at Rikers Island and at state and federal lockups in cities and towns coast to coast, according to an unofficial tally kept by the COVID-19 Behind Bars Data Project run by UCLA Law. Credit: Bebeto Matthews | AP

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Two prisoners with medical conditions that make them vulnerable to the coronavirus are suing Maine’s Department of Corrections for not granting them furlough or providing them with the means to protect themselves during the pandemic, actions they say violate their constitutional rights and federal disability laws.

Joseph Denbow, 54, and Sean Ragsdale, 56, inmates at the Mountain View Correctional Facility in Charleston, both applied for medical furlough as a result of their ongoing medical issues. The suit was filed days before the Maine Department of Corrections confirmed its first positive case of the virus in the Maine Correctional Center in Windham on Tuesday.

[Our COVID-19 tracker contains the most recent information on Maine cases by county]

They are among 925 inmates under Department of Corrections supervision who fit the U.S. Centers for Disease Control and Prevention’s definition of being particularly at risk if they get sick from the virus, Ben Beal, the department’s director of classifications, wrote in a May 7 email to a lawyer representing one of the men that is included with the lawsuit. That’s almost half of the state’s prison population.

The 925 include those who are over the age of 65, inmates with compromised immune systems, and those with chronic health issues such as lung disease, severe asthma, heart disease and diabetes.

But the Department of Corrections “is not utilizing the medical furlough to release clients during the COVID19 pandemic,” Beal wrote in an April 30 email to the lawyer, because the program is used for inmates whose medical needs cannot be met while incarcerated. Both men also applied for home confinement, but Denbow was denied, according to court documents. Ragsdale’s request for home confinement has not been resolved.

The men say that the denials violate the Americans With Disabilities Act and place the men at “heightened risk of severe illness and death,” according to a class-action petition filed last Friday in U.S. District Court in Bangor. Further, they claim the state does not have the ability to protect prisoners in the event of an outbreak, which would violate their right to adequate medical care under the Eighth Amendment.

The Department of Corrections isn’t protecting prisoners because inmates can’t socially distance in tight quarters, they’re not being allowed the use of hand sanitizer, and mask use by prisoners and correctional staff alike isn’t being enforced, the petition says. The only hand hygiene the men have access to is a bathroom sink used by 50 other individuals, according to the petition.

“Despite encouraging and even requiring these mitigation factors for the vast majority of people, the State of Maine fails to ensure that such preventative treatment is available to prisoners, and, to the contrary, prevents most prisoners from social distancing,” the petition reads.

Corrections Commissioner Randall Liberty and the Maine attorney general’s office, which would represent the state in court, did not immediately respond to requests for comment.

Maine had tested only 27 of the 1,909 people incarcerated as of Tuesday, according to the Department of Corrections. Of those, 25 have tested negative and test results are pending for two. That information was prior to the state confirming its first virus case. One corrections employee, a staff member at the Bolduc Correctional Facility in Warren, tested positive in March.

It was only a matter of time before the virus entered the state’s correctional facilities, despite department efforts such as suspending visitation and suspending movement of staff between facilities, said Emma Bond, an attorney with the American Civil Liberties Union of Maine, which is representing Denbow and Ragsdale.

“These men are going to be released in three months regardless, but the Department of Corrections is unwilling to use the tools it has to make sure they can be safely released without potentially getting COVID-19 and dying,” she said.

Those tools should include expanded testing for asymptomatic inmates, Bond said.

“We simply cannot take a ‘wait and see’ approach to this virus,” she said.

Denbow and Ragsdale are asking the court to declare it unlawful for the state to deny prisoners access to medical furlough during the pandemic. They are asking the state to identify all medically vulnerable and disabled inmates, as well as those whose release dates are approaching, and determine who can be released via furlough or home confinement.

Denbow is serving a two-year sentence for driving without a license and aggravated forgery, and suffers from asthma and lung disease. He is also in remission from cancer, and his earliest release date would be in August, according to the petition.

Ragsdale is serving time for two aggravated drug trafficking charges and is expected to be released in July. He suffers from a long-term chest infection, diabetes and Hepatitis C, according to court documents.

The suit exemplifies the growing push to reduce prison and jail populations during the pandemic. Facilities across the country have seen outbreaks due to the virus’ highly contagious nature and the close confinement of inmates.

In Maine, advocates have pressed the state to commute more sentences or expand the use of furlough or supervised community confinement, as other states have done. The state’s prison and jail populations have dropped during the pandemic, with the biggest decrease happening in the state’s overcrowded county jails.

That decrease has stemmed from law enforcement officers issuing more summonses rather than placing suspects under arrest and allowing individuals to post bail at a police station rather than taking them to county jails. Criminal justice officials have also released more prisoners who didn’t pose a risk to the public.

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