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A COVID Outbreak Prompts Scrutiny of Vermont’s Private Prison Contract

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CoreCivic's prison in Tutwiler, Miss., in 2018 - AP PHOTO/ROGELIO V. SOLIS
  • Ap Photo/rogelio V. Solis
  • CoreCivic's prison in Tutwiler, Miss., in 2018

Vermont Department of Corrections officials have had plenty to say in recent weeks about the coronavirus outbreak that has infected 146 of their inmates at a for-profit prison in Mississippi.

They say they've lost trust in CoreCivic, the private company that runs the maximum-security Tallahatchie County Correctional Facility.

They say all inmates need to be tested — not just those in the units that house 219 Vermonters — whether they are symptomatic or not.

And they say they owe it to the Vermont inmates and their families to ensure that they receive the same level of medical care as those serving sentences in-state.

But one thing Corrections officials can't say is that they weren't warned.

Brian Butler made sure of that. The 62-year-old Springfield man raised the alarm early in the pandemic that CoreCivic wasn't doing much to keep the virus out of the Mississippi prison.

Butler, who is serving a sentence of 28 years to life for trying to kill his girlfriend with a hunting knife, observed no additional cleaning measures at the prison in Tutwiler, a small town in the rural northwest corner of Mississippi. He and other inmates weren't provided alcohol-based hand sanitizer or disinfectant wipes or gloves. There was no social distancing, according to the lawsuit filed on Butler's behalf in April by the Vermont Prisoners' Rights Office.

And even though at least one staff member tested positive for the virus on March 23, life for inmates was "business as usual," the suit claimed.

The lawsuit asked a Vermont judge to issue an emergency injunction ordering the state to require protective measures at the Mississippi prison. The case received scant news coverage this spring, in part because it was dismissed in May after the State of Vermont agreed to a number of Butler's requests.

The suit has taken on new import in recent days because the Mississippi COVID-19 outbreak would seem to confirm Butler's 4-month-old allegations that Vermont's inmates there were receiving less protection from the virus than those serving their sentences back at home.

Despite the adoption of some additional safety measures, including daily temperature checks and training in the use of personal protective equipment, inmates in Mississippi were only tested if they showed COVID-19 symptoms, Vermont officials have acknowledged.

By contrast, every single inmate in Vermont has been tested on a rotating basis every few weeks. The practice, adopted after an early April outbreak at the Northwest State Correctional Facility in St. Albans, is something Corrections officials consider key to their success in keeping in-state prisons free of the virus.

Vermont also tests inmates when they arrive at an in-state prison. When six inmates in Mississippi were transferred to Vermont on July 28 and tested positive, they were kept apart from other inmates. The Department of Corrections subsequently ordered that all of its prisoners in Mississippi be tested; two-thirds were found to be infected.

The disparate treatment of the two prisoner populations stems from an out-of-sight, out-of-mind mentality at the Department of Corrections, said Butler's attorney, Annie Manhardt.

"One of the dangers of sending people 1,000 miles away is that it's hard to continue to make them a priority," Manhardt said.

The crisis has renewed calls by lawmakers and candidates to return all prisoners being held out of state. Rep. Mary Hooper (D-Montpelier) made it clear at a recent Joint Legislative Justice Oversight Committee meeting last week that she wanted to see action toward that goal soon.

"I think we need to have a really hard conversation about how we cease using out-of-state facilities and what it's going to take to bring people back home," Hooper said. "Not in five years, after we've built a new facility, but what we are going to do today?"

Interim Corrections Commissioner Jim Baker said he understood the goal but highlighted several challenges.

"Sound bites about bringing people back sound good, but it's not as simple as that," Baker said.

As of last week, there were 115 open beds for men in Vermont prisons and 46 for women, Baker said, but those beds are needed in case prisoners must be quarantined after a positive test. Bringing inmates back now would erode the department's ability to control outbreaks.

In mid-January, 1,414 inmates were housed in the state. That total dropped to 1,146 in April as the state worked to thin the population behind bars during the pandemic. But the prison population had bumped back up to 1,203 by July, after courts resumed a more normal caseload.

Baker further warned that Corrections staff has been "drained" by the enormous additional COVID-19 workload.

"What we've got to be careful of is that we don't start affecting our ability to manage the virus here in Vermont," Baker said.

Sen. Dick Sears (D-Bennington), who chairs the Senate Judiciary Committee, noted that the out-of-state population is a third of what it once was. He also accepts the need to preserve space to enable in-state prisons to safely handle any surge in infections.

Still, the overall drop in the number of prisoners presents an opportunity to return some inmates, he said.

"We can do better," Sears said. "I think we could probably bring 70 to 75 back now."

He added that there may be no need to send any prisoners out of state if cost savings from recent steps to lower the overall prison population are reinvested in programs aimed at keeping people out of jail in the first place.

A law adopted this year enhances parole programs and reinstitutes credit for good behavior. It also reforms furlough programs to reduce the number of nonviolent offenders returning to prison for lower-level violations of the terms of their release.

"I know some people become a pain in the neck, but a lot of people, in order to make progress, need to make two steps forward and one step back, and we can't lock 'em up on the one step back," Sears said.

Space aside, Baker said inmates could return from Mississippi under several scenarios, though none would be easy.

"We have to ... take a look at the individuals and their vulnerabilities, figure out a plan to keep them as safe as we possibly can, and that may or may not involve bringing folks back," he said.

Baker sent Scott Strenio, his department's part-time medical director, and Bob Arnell, its facilities operations manager, to the Mississippi prison last week. Strenio found that medical care at the facility appeared good and area hospitals seemed to have sufficient capacity. Baker said he was "feeling better" after receiving that report.

Gov. Phil Scott has acknowledged that failing to require proactive testing in Mississippi was "a shortcoming on our part," but where the breakdown occurred remains murky.

Baker said someone in his department shared the state's protocols with someone at CoreCivic, but he has yet to provide details to Seven Days.

"I'm still not in the position to figure out yet why we are where we are," he said.

Manhardt, Butler's attorney in the April lawsuit, said the state's answer to the suit was essentially that there wasn't much Vermont could do about conditions in Mississippi.

In a 34-page response to her injunction request, Geoffrey Vitt, a private attorney in Norwich representing the Department of Corrections, claimed that it "lacks authority to unilaterally implement facility-wide policies and procedures" at the Mississippi prison.

"Nor can it order that [the prison] adopt specific policies and procedures aside from those Vermont DOC policies CoreCivic is required to adopt per the [contract] terms," Vitt wrote.

The Corrections department "does not monitor or direct day-to-day operations" nor is it responsible for training Mississippi staff, Vitt added.

Despite the legal response, Department of Corrections staff did ask CoreCivic staff to wear masks around the Vermont prisoners — 30 minutes after Manhardt filed the lawsuit.

Vermont's legal position "alarmed" Manhardt because it seemed contrary to one of the key reasons the state selected a private prison in the first place.

Vermont had cut short its previous contract with the Pennsylvania prison system after concerns arose about the medical care prisoners were receiving at the Camp Hill State Correctional Institution. In selecting CoreCivic, the Corrections department noted a selling point in a September 2018 news release: "The contract with CoreCivic allowed for Vermont to include adherence to our laws, rules and policies as part of the agreement."

The department's initial legal strategy rang hollow, Manhardt said: "For the DOC to have the defense be that they can't do anything about it, it just seemed contrary to what they were saying before."

The original print version of this article was headlined "What Happens in Mississippi | A COVID-19 outbreak prompts scrutiny of Vermont's private prison contract"