COVID-19 And Your Rights

In June 2021, the South Carolina legislature tacked a provision to the general appropriations bill that barred school districts from using state funds to require face masks in schools, and the state Department of Education subsequently directed school districts that they are prohibited from requiring students or employees to wear a mask in educational facilities.

We (with partners) filed a federal lawsuit challenging the law that bans South Carolina school districts from imposing mask mandates in schools. We represent parents (and disability rights groups) whose childrens’ disabilities, including underlying health conditions, make them particularly susceptible to severe illness from COVID-19. We argue that the ban on mask mandates effectively excludes these students from public schools, in violation of the Americans with Disabilities Act and the Rehabilitation Act.

COMPLAINT

MEMORANDUM IN SUPPORT OF MOTIONS FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Incarcerated people are housed in close quarters, are often in poor health, are unable to engage in social distancing practices recommended by the CDC, and thus are at heightened risk of becoming infected with and dying from COVID-19. Because of this severe threat and the potential for COVID-19 to rapidly spread throughout a correctional setting, public health experts have recommended the rapid release from custody of those who are most vulnerable. Over the past several weeks, we have called on officials across South Carolina to do everything in their power to protect people involved in the criminal justice system. 

On March 10, we issued a series of recommendations urging South Carolina prison and jail officials to immediately develop proactive plans grounded in public health for the prevention and management of COVID-19 in their facilities. Having appropriate, evidence-based plans in place can help prevent an outbreak and minimize its impact if one does occur. Not having one may cost lives.

On March 18, we sent a second letter, this time to more than 400 South Carolina criminal justice officials recommending that they heed public health experts’ advice and immediately release individuals in detention who are identified by the Centers for Disease Control and Prevention (CDC) as vulnerable, as well as people currently in pretrial detention, to prevent a public health crisis. By following the recommendations outlined in our letter, state and local officials can create a culture in which transparency, safety, and the health of all people is the paramount concern. 

On March 25, we launched covid19@aclusc.org, an email hotline designated to receive information about violations inside South Carolina correctional facilities related to the COVID-19 pandemic. Anyone with information about abuses in South Carolina prisons, jails, and detention centers should email the hotline. All messages will be reviewed by our staff members to determine trends, systemic problems and shortfalls, and, when possible, to provide advocacy and assistance in emergency situations. So that we can respond effectively and efficiently, please include the following information in your message:

• Your name
• Your contact information including phone number
• A brief description of your concern

On March 27, we issued a request to the South Carolina Department of Corrections, the South Carolina Department of Juvenile Justice, and Governor Henry McMaster to answer the following four questions daily on their public websites: 

1. Does your agency have test kits available to test incarcerated people or staff showing symptoms of COVID-19? If yes, how many test kits does your agency have?
2. Are there any confirmed cases of COVID-19 in your facilities?  If so, how many?  Which facilities?
3. Are there any suspected cases of COVID-19 in your facilities?  If so, how many?  Which facilities?
4. Is anyone in your facilities being quarantined?  If so, how many?  Which facilities? How/under what conditions?

On April 1, we called on the South Carolina Department of Probation, Parole and Pardon Services (DPPPS) to do their part to prevent the spread of COVID-19 in the criminal justice system.

On April 9, we partnered with a group of civil rights organizations led by the NAACP to call on southern state and local governments to do everything in their power to care for incarcearted people. Our letter asked for four things: 

1. Release of certain categories of incarcerated people;
2. Precautionary measures to protect the health of those who remain in custody;
3. Access to appropriate medical care in medically appropriate settings; and
4. Transparent, public disclosures about COVID-19 in all correctional facilities, including data about racial disparities.

On April 9, we sent a letter calling on Governor McMaster to immediately implement a prison reduction plan for people in custody of the South Carolina Department of Corrections (SCDC). Our letter recommends that presumption of immediate release be granted to any incarcerated person whose release would not jeopardize public safety and who has serious underlying medical issues, is age 50 or older, has serious mental health conditions, or who is within six months of their anticipated release date. Additionally, the letter calls on the governor to direct the Board of Pardons and Paroles to reconvene to execute online parole hearings and grant parole on an expedited basis to parole-eligible individuals who have been disciplinary free for the past year, who are in prison solely for technical violations of parole or probation, or who are serving indeterminate sentences who meet the expanded parameters for medical and geriatric release.

After nearly two weeks of no response from Governor McMaster, on April 21, we and our pro-bono partners at the international law firm Arnold & Porter filed a federal lawsuit challenging South Carolina’s failure to protect incarcerated people from risks associated with a COVID-19 outbreak in custodial settings. Protection and Advocacy for People with Disabilities, Inc. also joined the lawsuit as a plaintiff on behalf of incarcerated people with disabilities. Defendants named in the suit are Governor Henry McMaster, South Carolina Department of Corrections Director Bryan Stirling, and members of the South Carolina Board of Pardons and Paroles.

The lawsuit seeks immediate relief for incarcerated people who are at particular risk of serious harm or death from COVID-19, including those who have serious underlying medical conditions, developmental disabilities or mental conditions or who are 50 years of age or older. Additionally, the suit seeks further reduction in the prison population through release of people who are within six months of their anticipated release date, eligible for parole and disciplinary free for the past year, or in custody for technical violations of parole or probation.

While some judges, solicitors, and law enforcement leaders in South Carolina have recognized the need to reduce the number of incarcerated people in their jurisdictions due to COVID-19, Governor McMaster has responded by issuing a number of executive orders that could upend this progress. Additionally, he has expanded police powers to grant law enforcement officers the authority to arrest and incarcerate people who violate his Executive Orders. These enforcement provisions lack clear definition and have understandably raised serious concerns from vulnerable community members. We are working to protect against abuses of expanded police powers by asking South Carolina sheriffs and police chiefs to publicly commit to three things:

1. Refraining from any actions that could undermine community trust in law enforcement and increase tensions that already exist because of COVID-19;
2. Prohibiting the use of arrests as a method of enforcing Governor McMaster’s orders unless necessary to prevent imminent and serious bodily harm to another person and all non-incarceration alternatives have been exhausted; and
3. Guaranteeing that all enforcement will be carried out in a way that is non-discriminatory and fair. 

On April 3, we submitted a letter to law enforcement leaders across South Carolina asking for their support of these positions. 

On April 16, we launched a community organizing toolkit. This social distancing-friendly resource can serve as a guide for securing pledges from your sheriff and police chief. Safeguarding against the abuse of expanded police powers during COVID-19 requires teamwork, and we look forward to partnering with you to protect the safety and health of our communities.

VICTORY! On May 4, Charleston County Sheriff Al Cannon publicly pledged his commitment to prioritize the health, safety and civil liberties of all in his community during the COVID-19 pandemic by following our guidelines (listed above). 

COVID-19 is spreading through prisons and jails in South Carolina and beyond. At a time when our policymakers should be doing everything in their power to substantially reduce South Carolina’s prison and jail populations to safeguard the lives of those who work and live in jails and prisons, South Carolina continues to wage a devastating war on marijuana, needlessly putting people with marijuana charges in jails and prisons.

It is time for our communities to define and advance our vision for what a just, equitable, and safe South Carolina should look like. And, part of this vision should be the end of South Carolina’s war on marijuana.

On April 20, the ACLU released a new report that showed Black people are almost 3.5 times more likely than white people to be arrested for marijuana possession in South Carolina, despite comparable national marijuana usage rates. Additionally, the report showed that South Carolina has the second highest arrest rate for marijuana possession in the United States. Every 15 minutes somebody is arrested for possessing marijuana in South Carolina - a substance that is legal or decriminalized for personal use in 26 states and the District of Columbia. 

The report, A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform, details marijuana possession arrests from 2010 to 2018 and updates the ACLU's unprecedented national report published in 2013, The War on Marijuana in Black and White.

One thing is clear: it's time for South Carolina to change its marijuana laws. 

Stay tuned for updates about our work in this area and how you can get involved!

During the COVID-19 pandemic, everyone should have the right to vote by mail. Voting by mail is a common-sense solution to protect our health, which is why officials from both parties in a wide range of states — including Alabama, Indiana, New Hampshire, New York, and West Virginia — have expanded voting by mail to all voters in their states. 

With the pandemic ongoing, voters casting their ballots by mail shouldn’t face unnecessary requirements, like getting a witness signature. Everyone should have the right to assistance in returning their absentee ballots, including the appointment of a personal representative who may pick up, assist in marking and return an absentee ballot. And no one should have to pay for postage.

On April 22, we and our partners at the nationwide ACLU and NAACP Legal Defense Fund filed a federal lawsuit challenging South Carolina's failure to take action to ensure all eligible voters can vote by mail during the COVID-19 pandemic.  

Our lawsuit challenges a state requirement that forces people who vote absentee to have a third-party witness signature on their ballot envelope, as well as an "excuse" requirement that fails to provide an accommodation to allow all eligible voters to vote absentee during the pandemic.

No one should have to choose between their health and their right to vote.
 

Governor McMaster issued an executive order mandating that all non-essential state employees return to in-person work as early as Monday, March 15, 2021. The order ignores the continuing serious health risks posed by the COVID-19 pandemic and blatantly discriminates against people with disabilities, women, and caregivers. The mandate that all state employees return to work requires caregivers, who are disproportionately women, to shoulder the burden of scrambling to make alternative arrangements for childcare, in-home schooling, and other caregiving responsibilities or risk the threat of losing their job. This comes at a time when women are already disproportionately being pushed out of the workforce due to caregiving responsibilities amid the impact of the pandemic.

We, along with the national ACLU, issued a demand letter to Governor McMaster urging him to rescind this discriminatory return-to-in-person-work order or at minimum, delay the return date until the end of the school year when it will be easier for caregivers to find alternative arrangements and allow agencies to grant employees any and all individualized reasonable accommodations they need. We are considering filing litigation if the governor doesn’t heed the letter’s call. We also submitted Freedom of Information Act requests with the Governor’s Office and the Department of Administration for public records regarding the proposal and return to work plans. 

Take Action:
Letter Templates: 
Recommendations for Public Officials
Recommendations Regarding Conditions for Sheriffs, Jail Administrators, and Corrections Officials
Recommendations for All Criminal Justice System Actors
Recommendations for Data Transparency Regarding COVID-19 in Prisons
Recommendations for Probation, Parole and Pardon Executives
Recommendations to Protect Against Abuse of Expanded Police Powers
Recommendations for Prison Release
Recommendations for Renter Protections
Recommendations for Educational Equity

Coalition Letters:
Protecting Incarcerated Youth
Recommendations for Protecting Incarcerated People in the South

Toolkits:
Organizing Toolkit: Protecting Against Expanded Police Powers in the Age of Social Distancing 

Publications: 
"We The People" Means All of Us: A Blueprint for COVID-19 Relief in South Carolina
A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform

Get Help:
Partner Resources: 
Root and Rebound - The Second Chance Justice Collaborative is available to help deal with criminal justice system-related legal issues that may arise. They are available by phone (864-272-0681) and email (southcarolina@rootandrebound.org). Issues they can help with include: getting ID, voting rights, public benefits, housing, employment, court-ordered debt, education, parole and probation issues, referrals to other reentry services, and expungements and pardons. They also have a financial and employment counselor available to meet with individuals remotely, and all of their services are free.  In addition, they have set up an emergency fund to help justice-involved individuals with survival needs that may arise.  People may apply for that fund here.