Of the approximately 220 young people incarcerated in Louisiana juvenile detention facilities, only 30 have been tested for COVID-19, the deadly viral disease that has proven especially contagious in jails and prisons around the world.
Twenty-eight of those tested had the virus, and since April 12, no children have been tested at all because facilities say no children are reporting symptoms.
Last month, the high rate of infections and low rate of testing among detained Louisiana youth helped spur O'Melveny & Myers LLP attorneys to launch a pro bono effort aimed at securing their release, especially those already set to go home within the next six months as well as those deemed "at-risk" based on Centers for Disease Control and Prevention guidelines.
In a proposed class action joined by the advocacy groups Juvenile Law Center and The Promise of Justice Initiative, the firm also contested a decision by the Louisiana Office of Juvenile Justice to postpone all furloughs, or extended stays with family, until further notice.
One parent, identified by the initials J.P. in an affidavit, said her son had been on furlough on March 16, when the OJJ required him to return to one of its facilities early due to the pandemic.
Since then, J.P. said her son has received just one mask and continues to share a dorm room with "at least eight other children."
"My son is not provided with any educational services or other programming," she added. "His dorm is regularly not permitted outside for 4 to 5 days at a time. Now when they go anywhere, it is to a dirty, poorly ventilated gym that is not cleaned between different dorms using it and has no air flow. I am worried about the risk of infection."
J.P. isn't the only one: Juvenile justice advocates from California to Pennsylvania have been arguing for weeks that purportedly "rehabilitative" juvenile detention facilities ought to prevent contagion by discharging young people, especially at a time when educational services have ground to a halt due to social distancing guidelines.
"Some facilities have implemented restrictions where children are in their dorm rooms for 23 hours per day," said Laura Aronsson, one of the O'Melveny lawyers on the Louisiana case. "There have been some efforts to circulate worksheets ... but education programming has been completely inadequate."
According to a June 24 tally by the Sentencing Project, more than 650 detained youth nationwide have tested positive for COVID-19 as of June 24, as well as more than 770 staff.
The organization estimates that roughly 70% of incarcerated youth are held on nonviolent offenses.
As both coronavirus cases and pressure from juvenile advocates have mounted, some governors and state officials in states like Colorado and Michigan have instructed detention facility administrators and judges to consider releasing youth that pose a low public safety risk and even halting new admissions to facilities.
As a result, the rate of young people entering detention facilities fell by more than half over the months of March and April, according to an Annie E. Casey Foundation survey of select facilities.
But while admissions have slowed, that same survey found that the rate of discharges has also slowed, dropping to below pre-COVID-19 levels in April.
"It is understandable and laudable that jurisdictions have focused so much of their energy on keeping youth out of detention," said Nate Balis, director of the Annie E. Casey Foundation's Juvenile Justice Strategy Group. "The next frontiers are getting youth out of detention more quickly and understanding and tackling the obstacles standing in the way."
One of the obstacles has been getting information about the goings-on inside facilities. In the Louisiana lawsuit, for example, attorneys for the confined children have complained that OJJ has "obstructed putative class members from contacting plaintiffs' counsel."
And Wednesday night, a Louisiana federal judge refused to order the youth released, finding that the OJJ was within its right to consider "the need to protect the youth and the community from the perils of the COVID-19 virus" as well "public safety and potential recidivism."
"The question is not whether plaintiffs can offer a better plan for the OJJ," U.S. District Judge John W. deGravelles wrote, denying a bid for a temporary restraining order. "The sole question is whether plaintiffs have demonstrated that OJJ's COVID-19 response is unconstitutional. They have not done so. OJJ's response has been reasonable."
A spokesperson for the OJJ declined to answer questions about the case, instead pointing to Wednesday's ruling. Counsel for the detained youth also declined to comment on the ruling or whether they will continue to see class certification in the case.
Hours before the ruling was issued, Marsha Levick, co-founder of the Juvenile Law Center, told Law360 that her organization's release efforts in Pennsylvania ended in a similarly disappointing fashion as the state's Supreme Court declined to order the immediate release of certain juvenile offenders.
"The immediate release of juveniles detained in various facilities, as sought by petitioners, fails to take into account the individual circumstances of each juvenile, including any danger to them or to others, as well as the diversity of situations present within individual institutions and communities," the justices wrote.
The order did direct judges to review groups of juveniles who could be safely released, and Levick noted that Pennsylvania's detained juvenile population has dropped 20% during the pandemic.
Only approximately 3% to 5% of those sent home have been rearrested, a recidivism rate that she said highlights how "we lock up too many people."
"COVID is forcing us to examine whether we need to be locking kids up to keep them safe," she said. "And what we're learning every day is that for many of these kids, we actually can send them home."
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--Editing by Katherine Rautenberg.