PENDLETON — Gov. Kate Brown announced a second round of early releases for individuals incarcerated in Oregon prisons who are medically vulnerable to COVID-19 or within two months of release on Tuesday, Sept. 29, this time commuting the sentences of 66 people.

Brown has granted the release of 123 individuals from the state’s prisons since the start of the pandemic — less than 1% of the state’s prison population — after officials with the Oregon Department of Corrections said in April that up to 5,800 people would need to be released to allow for adequate social distancing.

For families with those incarcerated and the attorneys fighting for prisoner’s rights to not be exposed to a potentially deadly virus, the announcement was a disheartening show of political will from Brown and her administration.

“There is no explanation — other than political reasons — why there wouldn’t be consideration for people to be released so they do not die from the pandemic,” said Tara Herivel, an attorney representing prisoners across the state. “It seems like we’re waiting for a body count to do something about it.”

The Oregon Department of Corrections has reported a body count of nine deaths of prisoners who tested positive for COVID-19 and just under 1,000 total people have tested positive while incarcerated as of Wednesday, Sept. 30. That includes 297 cases and three deaths at Eastern Oregon Correctional Institution in Pendleton, and 81 cases at Two Rivers Correctional Institution in Umatilla.

In August, Brown asked the Oregon Department of Corrections to provide her with a list of up to 400 inmates who were either vulnerable to the virus or within two months of release and met a specific set of criteria.

Oregon Department of Corrections Director Colette Peters returned a letter to Brown on Sept. 21 that identified 69 individuals who fit all criteria, which Brown then trimmed to 66.

Herivel said, along with other attorneys she’s working with, attempted to provide Brown and her office with a list of up to 50 individuals who fit that very criteria, including the often challenging requirement of establishing a housing plan post-incarceration, but those attempts were dismissed without consideration.

In Washington and California, Democratic Govs. Jay Inslee and Gavin Newsom have released thousands of incarcerated individuals to mitigate risks of the pandemic. In Herivel’s eyes, Brown’s reluctance to release more prisoners is both dismissive of the risks for those inside and ineffective at providing any meaningful protections for them.

“While they certainly impact the individuals, which that’s incredibly important for them and their families, it will do absolutely nothing for social distancing in prisons,” Herivel said. “It will do nothing for people being exposed to the outbreaks now.”

Limited legal avenues

During the pandemic, Herivel and a group of attorneys have formed “The Oregon Habeas Taskforce” that is representing prisoners throughout the state in habeas corpus claims against the Oregon Department of Corrections.

“There’s a claim now that’s being raised across that state that the Department of Corrections has failed to protect people from the pandemic, and they’re doing that by failing to implement known measures, per the CDC, that will curb contraction of COVID,” Herivel said.

But when the department has implemented measures, those measures have directly inhibited the ability for prisoners to file these claims.

In an email from prison officials to the East Oregonian, the Oregon Department of Corrections confirmed it limited access to the law library in EOCI for nearly four months of the pandemic.

According to the email, the law library was closed from July 7-15 as an emergency protocol when COVID-19 was first identified in the facility, and then reopened with restrictions in place. From July 15 to Sept. 7, the email stated, inmates were only allowed access to the law library if they had a “deadline with the court system within 60 days of their request.”

“Limiting the number of (adults in custody) that could access the legal library was the only way to ensure social distancing,” the email stated. “A secondary consideration was the lack of available and trained (adults in custody) legal clerks that were quarantined.”

Without access to the law library unless they had an active court deadline, inmates were barred from filing new lawsuits like those represented by Herivel, who took notice of this potential obstruction when only a handful of cases were filed from the Eastern Oregon prison despite the facility reporting one of the largest workplace outbreaks in the entire state.

“I can’t say that they’re trying to block it but they certainly take actions that do block it without apparent concern for prisoner’s access to law,” Herivel said. “It’s the defendant who is stopping those cases, and that’s really nefarious.”

Those restrictions were lifted on Sept. 7, prison officials stated, and Herivel said there’s been additional cases filed from EOCI since.

Brown has directed the Oregon Department of Corrections to provide her with potential candidates for early release every two months moving forward, but for now Herivel and the others are seeking the only pathway they know of to protect incarcerated people from the risk of the virus inside.

“You can release people without creating the spectre of more crime,” Herivel said. “You can do it thoughtfully, you can do it with the right people and you can create social distancing for the people that remain. And there’s this complete refusal that I don’t understand on a real basic level.”