WN aL TRUE CONDITIONS AND PT TERY TET eae TR ANT Lt) STULL TREN TAT Ce2 Puerto Rico © 2023 Persistent Unconstitutional Conditions and Human Rights Violations: Voices of Puerto Rico's Prisoners Post-Morales Feliciano Class Action Lawsuit ACLU Web: : wuwaclu-prorg, Suggested reference: INVESTIGACION SOBRE LAS_ MUERTES DE CONFINADOS ENLA INSTITUCION CORRECCIONAL GUERRERO 20s y Recomendaciones Julio 201Acknowledgement This report represents the culmination of a collaborative endeavor that was interrupted by the passing through Puerto Rico of Hurricane Maria in 2017, later followed by the COVID-19 pandemic listancing protocols. This project was initiated by the ACLU of Puerto Rico Chapter's Prisoner's Rights Working Group, led by William Ramirez, Esq., Executive Director. Numerous individuals, over the years, generously dedicated their time and expertise to contribute significantly to the successful completion of this report. We extend our sincere gratitude to all those whose dedication and efforts were instrumental in shaping this document. We appreciate the collaboration of all, including the occasional availability of the Department of Corrections of Puerto Rico and its Cammissioners, Our foremost heartfelt appreciation goes out to the students at the City University of New York's John Jay College of Criminal Justice under the supervision of Associate Professor Dr. Jodie Roure, who, alongside ACLU-Puerto Rico personnel and interns, visited various prisons and communities across Puerto Rico. We are also grateful for the assistance provided by the undergraduate students from the Sacred Heart University in San Juan, Puerto Rico, who tabulated and categorized the countless number of complaints received from inmates over the years. This firsthand information forms the backbone of this report, and their active involvement in the drafting and final review was invaluable.4 We acknowledge the exceptional contributions of law professor Cynara Hermes and Attorney Shannon Sciaretta, who played a crucial role in verifying citations, confirming research, and enhancing the overall content of this report. Their expertise, unique perspectives, and dedication fostered a dynamic and productive working environment. Special recognition goes to Josué Gonzélez Ortiz, Esq., our researcher, and associate lawyer, who was also pivotal in verifying and drafting this document. He actively served as ACLU Puerto Rico's staff attorney for 13 years, during which time he participated in collecting, evaluating, and classifying the information used in this report. We appreciate the insights provided by Fermin Arraiza Navas, Esq., ACLU of Puerto Rico Legal Director, who also contributed to the investigation, Furthermore, we recognize the invaluable administrative assistance provided by Virgen Rivera- Serrano and Manuelita Gonzalez at every stage of this project. ‘Our acknowledgment also extends to the entire ACLU team in Puerto Rico for their collective contributions. We thank Kike Estrada and Rosa Mari, whose creative input enhanced the report's design, improving its readability and impact. This report is a testament to our dedicated team’s collaborative efforts and synergy. We erely thank all who played a role, no matter how small, in bringing this endeavor to fruition.ACLU of Puerto Rico RT ON HUMAN RIGHTS CONDITIONS IN PUERTO RICO PRISONS “Assuming the complaint’s facts are true, the Court laments the sad saga that Plaintiff was forced to endure as a prisoner whose Kafkaesque plight appeared to be repeatedly ignored by the DOC.” INTRODUCTION The American Civil Liberties Union ("ACLU") profit organization with headquarters in New York City and chapters throughout is a non-partisan, non-sectarian, non the United States and Puerta Rico with over 1.8 million members. The ACLU is composed of staff and volunteers, including attorneys, organizers, educators, and other professionals. The ACLU is dedicated to the defense of civil liberties and human, rights, as guaranteed by the Constitution of the United States, the Constitution of Puerto Rico, and international treaties. To achieve its organizational objectives, the ACLU employs strategies which include court litigation, community education, legislative lobbying, research, and dissemination of information on specific cases, and emerging issues, implicating civil and human rights violations, ‘One of the emerging areas of concern for the ACLU is the civil and human rights of incarcerated persons in the United States and its territories. The United States isThis report will explore the variety of factors that have rapidly led to deteriorating conditions in Puerto Rico's prisons. ‘one of the largest incarcerators in the world, which is due in part to the ineffective, discriminatory ‘war on drugs’ and the privatization of correctional facilities. These policies have disproportionately impacted minorities, most of whom are Black and Brown people that have historically been excluded from effective participation in mainstream society; and other vulnerable and marginalized populations.* The inception of this report was motivated by the years of continuing receipt of correspondence from inmates complaining to the ACLU of Puerto Rico about the dire conditions they endure in correctional facilities. This report explores the variety of factors that have rapidly led to deteriorating conditions in Puerto Rico's prisons and is the product of an exhaustive investigation conducted by the Prisoner Rights Working Group of the American Civil Liberties Union of Puerto Rico (hereinafter, the “ACLU of Puerto Rico’). It compiles the most prevalent and pressing constitutional and human rights violations discovered during our investigation and provides a platform for numerous voices representative of the incarcerated population in the custody of the Puerto Rico Department of Corrections and Rehabilitation (hereinafter, “Department of Corrections’) This report serves as a continuation of the ACLU of Puerto Rico's previous report, which exposed the deaths of 53 pretrial detainees at Guerrero Correctional Institution in the Municipality of Aguadilla (hereinafter, the “Guerrero Prison Report’)? The objective of the current report is two-fold: (1) to make public the conditions of correctional facilities in Puerto Rico, from the perspective of incarcerated inmates, and (2) to urge government officials and policymakers, at both local and federal levels, to take immediate action to correct the unlawful and inhumane institutional practices BE 6° he operation of the correctional system in Puerto Rico.The ACLU of Puerto Rico will continue to investigate and make public conditions at correctional institutions and expose human rights violations while it remains necessary to do so. The shockingly poor conditions of confinement in Puerto Rico precipitated direct judicial intervention at the U.S. federal level. Through the Morales Feliciano class action litigation, which spanned from 1979 to 2016, the US. District Court for the District of Puerto Rico oversaw the implementation of comprehensive prison reform, compelling the government of Puerto Rico to comply with minimum constitutional standards under U.S. federal law in the operation of Puerto Rico's correctional facilities and the treatment of its prisoners. Although these earlier court-ordered reforms brought about some progress, this report will present the profoundly problematic conditions of Puerto Rico's correctional facilities with a focus on the improper treatment of inmates, which amount to serious violations of constitutional and human rights.° The release of this investigation is both timely and of paramount importance since after the closing of the Morales Feliciano class action there is no effective mechanism of accountability regarding the operations of the Puerto Rico correctional system METHODOLOGY For over a decade, the ACLU of Puerto Rico has received hundreds of correspondences from current and formerly incarcerated persons and their relatives and loved ones, documenting an array of complaints of human and ci rights violations occurring in Puerto Rico's prisons. These complaints were separated based on content, into the following categ . Access to Healthcare Services refers to circumstances under which prisoners were provided inadequate health services, The shockingly poor conditions of confinement in the Puerto Rico correctional system precipitated direct judicial intervention at the U.S. federal level.Authorized by the Department of Corrections, between 2016 and 2018, the ACLU of Puerto Rico interviewed prisoners and correctional officials to assess conditions in Puerto Rico's prisons and better understand the organization and structure of Puerto Rico's Correctional System. 2. Abuse of Power/Excessive Force refers to unjustified and unlawful aggression against prisoners by correctional guards or abuse of authority by correctional officers 3. Protection of Integrity refers to any event(s) whereby the prisoner or prison population has been subject ta individual aggression(s) or threat(s) by ather prisoners. 4, Civil Rights and Liberties refers to any discriminatory event(s) by a correctional guard, official, or prisoner, motivated by either prejudice against another prisoner's, class or vulnerable status, indifference to the prisoners’ civil rights and liberties, or unlawful response to a prisoner attempt to assert a protected right 5. Prison Conditions refer to the institutional physical infrastructure and the environmental conditions of the living spaces within the correctional institution. 6. Programs and Services refer to access to programming and services designed to benefit incarcerated individuals, as an integral part of the right to rehabilitation to prompt their early release. 7. Access to Justice refers to access to administrative and judicial mechanisms available to prisoners whereby they can file a grievance, The ACLU of Puerto Rico reviewed decade's worth of Puerto Rico prison-related correspondence (along with the findings of the Guerrero Prison Report) and deemed. it necessary to enter the prisons and conduct interviews of members of the prison population. Authorized by the Department of Corrections, between 2016 and 2018, the ACLU of Puerto Rico interviewed prisoners and correctional officials to assess conditions in Puerto Rico's prisons and better understand the organization and structure of Puerto Rico's Correctional System. The prisoners interviewed provided their answers without intervention or suggestion by the interviewer. The seven categories outlined above were addressed in the interviews with prisoners and interviewers had access to some supporting documents.* EEE 84 012! of fifty (50) face-to-face interviews with prisoners housed through theBayamén Correctional Complex. Photo: Ricardo Alcaraz correctional facilities in Puerto Rico were conducted. Before each correctional facility visit, the ACLU of Puerto Rico formally requested, and the Department of Corrections officials granted, the authorization to conduct these in-person interviews with the prisoners. All interviews were conducted, despite occasions where correctional officials at various facilities limited the time of the interview and personal access to some of the prisoners ‘Additionally, twenty-one (21) interviews of formerly incarcerated persons and their family members were conducted in various communities throughout Puerto Rico and followed up with in-person and telephonic interviews. Each of the communities represented the most highly marginalized communities in Puerto Rico. Interviews were also conducted with the attorneys for the plaintiffs in the Morales Feliciano U.S. federal class action litigation.” After classifying the c J information, in December 2021, during the COVID-19The Constitution of the Commonwealth of Puerto Rico provides a clear mandate for the rehabilitation of persons incarcerated following acriminal conviction. EEE 10 pandemic onset, the ACLU of Puerto Rico coordinated an online interview with key officials of the Department of Corrections.“ A month later, in January 2022, the ACLU of Puerto Rico requested from the Department of Corrections the production of public information and documents related to the conditions of prisoner confinement and the operation of the correctional system of Puerto Rico. To date, this request for public information has only been partially answered? THE PUERTO RICO CORRECTIONAL SYSTEM ‘The Constitution of the Commonwealth of Puerto Rica provides a clear mandate for the rehabilitation of persons incarcerated following a criminal convictian.'° The Department of Corrections is the agency charged with executing this constitutionally protected mandate.‘ Accordingly, its operation is governed by the enabling Act, known as Plan de Reorganizacién del Departamento de Correccién y Rehabilitacién (Reorganization Plan of the Department of Corrections and Rehabilitation), hereinafter referred to as “Act”, which provides for effective, humane individualized treatment of its prisoners and fosters the rehabilitation of same.'? By March 2022, the Department of Corrections reported thatit houses approximately 7,174 adult prisoners, 229 (396) of which are women.'® During this period, it was reported that there are twenty-five (25) active correctional facilities throughout Puerto Rico, ranging from minimum to maximum security detention.“ Two of these facilities house female prisoners.** According to the Profile of Prisoners’ Population of 2019, (Perfil de la Poblacién Confinada 2019) more than half of the prisoner population reported yearly incomes of less than $20,000 before incarceration. Additionally, 10% reported no income whatsoever.° Moreover, 27% of prisoners reported being unemployed, and only 35% of the population had attained a high school diploma.”Overall, incarceration rates are more prevalent amongst the poor, persons with lower rates of educational attainment, and persons from historically marginalized and economically vulnerable communities."® More importantly, for purposes of this report, the profile from the Department of Corrections Annual Report is reflective of the profiles of the prisoners interviewed as part of the ACLU of Puerto Rico Prisoner Rights Project Report. HISTORICAL OVERVIEW OF CIVIL RIGHTS VIOLATIONS IN PUERTO RICO’S CORRECTIONAL FACILITIES ‘The Correctional System of Puerto Rico has a long history of civil and human rights violations. In the late 1970s, a group of prisoners, initially represented by the Puerto Rico Legal Services Corporation, filed a federal class action (the "Morales Feliciano litigation") against the Government of Puerto Rico, in which they alleged “dire shortcomings in virtually every aspect of prisoner confinement in the Puerto Rican correctional system." In the Morales Feliciano litigation, the District Court found an array of fundamental rights violations suffered by Puerto Rico's prison population, including, overcrowding, lack of proper medical services, deteriorating physical facilities, lack of rehabilitative services, unsanitary conditions, unlawful solitary confinement of young adults, and unlawful confinement of psychiatric patients without supervision or treatment.” The District Court explained: Psychotic madmen are kept for weeks and months, (some pretrial detainees) caged like animals, without clothes, without toilet facilities, without medicines, forced to eat with their hands, and in most cases without ever having been seen by a doctor. Others, presumably sane, seeking asylum from threats of death or serious injury in the general penal population, lose all their privileges, all programs for possible rehabilitation, all chance for parole, all recreation, while they are locked in dungeons called ‘calabozos." The Correctional System of Puerto Rico has along history of civil and human rights violations. 1Despite improvements jin some areas, according to the District Court, the delivery of medical and mental health care to prisoners “lagged behind”, as well as adequate shelter, sanitation and personal safety. 2 Accordingly, the District Court issued a preliminary injunction directing the defendants to correct the egregious conditions of prisoners in Puerto Rico.? However, in March 1986, the District Court found defendants had made little progress and appointed two monitors to oversee compliance with the District Court's orders.” In 1990, the District Court ordered the implementation of medical and mental healthcare plans, as recommended by the court-appointed monitor.* These plans transferred the primary responsibility for medical and mental health care in the correctional system from the Department of Corrections to the Secretary of Health of Puerto Rico.” The plans also required that the Secretary of Health appoint, for a minimum of three years, a Chief Health Care Coordinator (hereinafter, the “CHCC’) to bear responsibility for easing the transition and coordinating campliance.* Later, in 1997, the District Court enabled the creation of the Civil Action and Education Corporation ("CAEC’), a private non-profit organization funded by the fines imposed by the District Court against the Government of Puerto Rico for violations in the Morales Feliciano \itigation.2” CAEC staff and attorneys provided free legal representation for class members and established an effective mechanism of judicial accountability.2* Through CAEC, individual prisoners were able to report to the U.S. District Court their unlawful conditions of confinement and effectively obtain judicial and administrative remedies.” As a powerful tool of advocacy, the District Court authorized CAEC attorneys to have unrestricted access to Puerto Rico correctional facilities, seven days a week and twenty four (24) hours a day. Despite improvements in same areas, according to the District Court, the delivery of medical and mental health care to prisoners “lagged behind”, as well as adequate shelter, sanitation and personal safety.*' In 1998, the District Court accepted the parties’ proposal to organize a not-for-profit corporation to oversee healthcare in the prisons.* Initially, the administration of healthcare services was provided by the Correctional Health Services Corporation (CHSC), as the Responsible Health Authority (RHA) contracted by the Department of Corrections.° However, in 2004the District Court found that “pervasive and persistent constitutional violations” nonetheless, continued to “shackle the delivery of healthcare in Puerto Rico's correctional system.’®* The District Court concluded that the work of CHSC, "lagged far behind” the intended timetable.®* The District Court also detailed the specific ways the prison conditions violated the Eighth Amendment, including neglecting to fully screen incoming prisoners or to detect mental health problems, failing to provide a call system that ensures access to care that is capable of effectively handling medical emergencies, and failure ta take steps to minimize the risk of prisoner suicide, appropriate treatment for suicidal patients, and interfering with the prescribed treatment. Examples of deliberate indifference include the defendants’ failure to appropriately administer necessary medication, failure to provide transportation to scheduled specialist appointments and other therapy appointments, and failure to provide prescribed medical diets.°” In 2012, the District Court approved a Settlement Accord which incorporated past accords and “outline[d] the parties’ obligations in a single document.'** The Settlement Accord outlined standards in nine categories: (1) access to courts, (2) laundry services, (3) classification of prisoners based on type of offense, (4) medical services, (5) food sen 8, (6) admission cells, (7) recreation, (8) staffing and security, and (9) environmental conditions.” Accordingly, the District Court resolved all pending claims for prospective equitable relief directed to “transition the court away from its longstanding involvement in the day-to-day operation of Puerto Rico’s prisons." ACLU Guerrero Correctional Facility Report In the same year, 2012, the ACLU of Puerto Rico published a report detail 1g the findings of its exhaustive investigation into the deaths of pretrial detainees between 2002 and 2008 at the Guerrero Correctional Facility in Aguadilla, Puerto Rico.** During its six (6) year investigation, the ACLU of Puerto Rico obtained information 13The Guerrero Report found the Department of Correction did not fulfill its duty to investigate the prisoner's deaths, which constituted aviolation of the international human rights standard of the right to life. a 14 regarding fifty-three (53) pretrial detainees deaths at the facility. Most of these deaths occurred during the detainee's first days in the Guerrero Correctional Facility.*® The most extreme cases of death occurred during the first forty-eight (48) hours following admission.“ The deceased person’s body did not show signs of violence, thus their death did not appear to be related to any violent acts." Based on the high number of unexplained deaths reported, the ACLU of Puerto Rico began an independent investigation into the governmental response to these deaths ‘The Guerrero Report found the Department of Correction did not fulfil its duty to investigate the prisoners’ deaths, which constituted a violation of the international human rights standard of the right to life* Evidence compiled by the ACLU of Puerto Rico indicated that the prisoner deaths were not investigated by correctional authorities, that the population at the Guerrero Correctional Facility had the highest prisoner death rate within the entire Puerto Rican correctional system, and that no other jurisdiction's penal institutions within the United States had as many unexplained deaths.” Throughout the events at the Guerrero Correctional Facility, people were denied access to public information, and the Department of Corrections failed to abide by the rights of family members to be notified about their loved one’s death, as. required by international, national, and human rights standards. The Guerrero Report also found the Department of Corrections failed to provide adequate medical services to detainees in custody.” The evidence reviewed by the ACLU of Puerto Rico confirmed that the majority of prisoners who died while detained at the Guerrero Correctional Facility suffered from addiction to controlled substances.®° They were admitted to the facility's detoxification program but were not provided with timely and adequate medical attention.®* ‘TheACLU of Puerto Rico urged the Puerto Rico governmentto assumeits responsibility to safeguard the human rights of the prison population at the time, specifically calling on the government's duty to investigate without delay, all allegations of human rightslations perpetrated against persons under its custody.*? In the Guerrero Report, the ACLU of Puerto Rico stated that the duty to investigate does not lie solely with the administration of the correctional health system, or with the entity in charge of carrying out autopsies, but rather on all government agencies empowered to investigate, which have a duty to ensure that the death of any person in state custody be promptly investigated.-> The ACLU of Puerto Rico further urged the Puerto Rico government to ensure greater transparency and access to necessary information regarding the condition of confinement. Despite the recommendations, requests for updates, and investigative reports, the ACLU of Puerto Rico was never provided with any information to explain the causes for the deaths of the prisoners in the Guerrero Correctional Facility by any government official.6S Moreover, although there were clear indications of several egregious unlawful practices yet to be addressed within the Puerto Rico Correctional System, in 2016 the United States District Court entered judgment permanently disposing of Morales Feliciano.** With the closing of Morales Feliciano federal class action litigation, prisoners’ access to effective judicial aversight of the confinement conditions has been significantly reduced to their detriment. 1SEE 1¢ An Attrition Problem: Puerto Rico’s Secretary of Corrections’ High Turnover Rates From 1993 to 2015, there were seven (7) different appointed individuals who held the Secretary of Corrections position, and they were appointed by five different governors of Puerto Rico during their respective administrations.” From 2015 to 2022, this number increased to nine (9) different individuals having held the position of Puerto Rico's Secretary of Corrections appointed by five distinct governors, seven of whom occupied the position between 2015 and 2016 alone. Incidentally, these excessively high turnover rates in the position of the Secretary of Corrections occurred following the close of the federal judicial oversight that was implemented by ‘the Morales Feliciano class action litigation. It is reasonably inferable that the high rate of attrition at the highest echelon of decision making over the correctional system detrimentally affects the compliance and standardization of the implementation of the remedies mandated by the U.S. District Court in the class action litigation of Morales Feliciano. PROMESA Imposed Limitations Impeding Full Compliance with Morales Feliciano*® In 2016, US. Congress enacted and implemented the Puerto Rico Oversight, Management, and Economic Stability Act ((PROMESA’) signed by President Obama, intended to restructure and ensure the payment of Puerto Rico's billion dollars debt during the fiscal crisis.” This legislation included the imposition of a Fiscal Oversight and Management Board (FOMB), in charge of the aversight of the government's economic activity and use of public monies. A Harvard Law Review study of PROMESA concluded: “the Board can influence nearly any area of policy making in Puerto Rico“ The Board also undercut any autonomy Puerto Rico hadin respect to economic and social affairs.“ The extensive powers canferred on the | The Board are fundamentally incompatible with U.N. standards for self-government. | implementation The implementation of PROMESA is relevant to this report as it prompted dramatic | of PROMESA cuts in government expenditures curtailing basic public services, including areas of | is relevant to correctional operations and services that the Department of Correction: ‘obliged to | this report as provide in compliance with the Morales Feliciano Settlement Accord.“ In fact, in 2019 | it prompted former Secretary of Corrections, Erik Rolén, expressed that the budget reduction | dramatic cuts imposed by the Fiscal Control Board would adversely affect the operation of Puerto | in government Rico's correctional system, and would put at risk compliance of the Morales Feliciano | expenditures Settlement Accord.’* curtailing basic public services, Not only has the public policy implemented by PROMESA negatively impacted the including areas administration and management of important aspects of correctional operations, but 8 aggravated the already deteriorated operational infrastructure of the Department | Of correctional of Corrections, particularly affecting the services and programs destined for the | OPerations and correctional population It is under this scenario that the ACLU of Puerto Rico | Se'vices the conducted the interviews of the prisoners, revealing ongoing systemic flaws in key | Department of Corrections is areas of corrections operations detailed in the following sections of this document. : Sli i Furthermore, it is also evident that the inadequate access of correctional services | liged to provide in compliance with the and rehabilitation programs was exacerbated by the devastating effect of Hurricanes Irma and Maria (2017) which crippled Puerto Rico's infrastructure and ailing economy further, only to be compounded by the southern region earthquakes (2019 to | Morales Feliciano present), and the Covid pandemic (2020 to May 2023).°” iperuement Aecord COVID PANDEMIC AND INCARCERATED PERSONS IN PUERTO RICO ‘The impact of the Covid pandemic on the incarcerated population coupled with the Department of Corrections’ response to the crisis is cause for serious concern.“ The 17condition of confinement of prisoners around the world exposes them to a situation of vulnerability, creating cifficult challenges to the administration of any correctional system. To that effect, the World Health Organization’? (WHO) and the U.S. Center ofF Disease Control”: (CDC) have recommended the adoption af compelling measures in order to protect, not only the imprisoned population, but also the correctional officials, visitors and their families, which for long periods of time share the same enclosed environment. These measure: \clude effective planning and robust collaborative arrangement between the sectors inclusive of the health and justice system, training, elaboration of reporting protocols of suspected cases, and preventive measures.”® During the pandemic, the WHO and CDC highly recommended the cor jistent use of masks, disinfecting the enviranment, maintaining access to cleaning devices and products, monitoring and testing of COVID cases, ensuring personal hygiene, and maintaining physical distancing.” ‘An accurate depiction of the impact of COVID on the incarcerated population in Puerto Rico and its correctional system in general is yet to be fully understood. However, as of July 2020, one report found that in the United States incarcerated persons are infected by the coronavirus at a rate more than five times higher than the United States’ population overall rate.”* It was also reported that the death rate of prisoners due to COVID (39 deaths per 100,000) is also higher than the United States national rate (29 deaths per 100,000).’* The grim scenario that the Covid pandemic represents to the incarcerated population, and the correctional community generally, prompted the national ACLU to recommend immediate steps to all components of the justice system to coordinate efforts directed to protect the incarcerated population, their families, the correctional officers, law enforcement officials and attorneys.’ These proposed measures include the reduction of jail populations, non-prosecution of custodial arrests made for low- level charges and the release of anyone in state custody for non-violent infractions MEN 18 2° for inmates uniquely vulnerable to serious illness or death, and not to makecustodial arrests unless necessary to prevent an imminent and serious risk of bodily harm to another.” Accordingly, in May 2021 the ACLU of Puerto Rico expressed to the Puerto Rico legislature its recommendation to reduce the prison population of Puerto Rico in order to alleviate the impact of COVID on the entire Puerto Rico correctional community, including prisoners and their families.” ‘The early response of the correctional authorities of Puerto Rico to the imminent health crisis produced by the COVID pandemic shared with the press was vague and contained unclear information on mitigation plans.” The initial protocol issued by the Department of Corrections announced in March 2020 also excluded precise steps taken to reduce the spread of COVID infection amongst high risk population prisoners. prone to suffering serious consequences resulting from exposure or contraction of the coronavirus. Furthermore, the supply chain situation for hygiene and safety materials was not clearly detailed.®* At the early stages of the coronavirus pandemic, the official Department of Corrections response limited the rights of the prison population resulting from measures that had profound effects on the protection of constitutional and civil rights of the prison population.® These rights included access to justice, educational and rehabilitation programs, and impediments to the freedom of religion.® For example, attomey visits were suspended.** Religious freedoms were compromised given the suspension of chaplaincy visits.° Other services were also suspended, including recreational activities, temporary exit permits (pases), educational services, to name a few.® Imposition of lockdowns and strict movement restrictions were also implemented.°” There is no doubt that the COVID pandemic exacerbated the extremely poor and crumbling conditions of the correctional system in Puerto Rico which requires the adoption of compelling measures in every aspect of the operation of correctional facilities. At the early stages of the coronavirus pandemic, the official Department of Corrections response limited the rights of the prison population resulting from measures that had profound effects on the protection of constitutional and civil rights of the prison population 19id y ts of the Rico is inspired by the Universal Declaration of Human Rights n Declaration of D 3. TH rts of Puerto Rico use the UD! standards, as a of interpretation and to define th stitutionally recognized rights. Furthermore, the ro Rico is bound international human rights treatie rich the United States is a signatory, as is the case of the International Covenant on Civiland Political Rights (hereinafter the ICCPR), and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). The ICCPR, signed and ratified by the United States, is one of the most relevant treaties for the application of human rights for prisoners in the international Human Rights system, The ICCPR includes the right of due process of law, the prohibition of arbitrary detentions, the right to humane treatment and the absolute prohibition of the use of torture." The ICCPR creates the affirmative obligation of the signatory states to provide confinement conditions respectful of the life and dignity of the prisoners, including adequate medical services.” The CAT, also signed and ratified by the United States, provides that prison sentences are intended to attain the rehabilitation of the prisoner and that signatory states should prevent confinement conditions violative to the dignity of the human being,”? Furthermore, a series of special rules and standards have been created forthe effective protection of human rights of incarcerated persons in penitentiary centers or penal institutions, in order to provide governments with effective tools to ensure dignified and ethical treatment of people under their custody.” These rules and principles are considered part of the treaties, as they represent specific criteria inspired by the rights recognized in them. Examples of these are the United Nations Minimum Rules for the Treatment of Prisoners and the Set of Principles for the Protection of All Persons Subject to Any Form of Detention or Imprisonment and Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. ACCESS TO HEALTH SERVICES The Eighth Amendment to the United States Constitution protects prisoners from “cruel and unusual punishment. Although deprived of rights that are fundamental to liberty, prisoners retain the essence of human dignity inherent to all persons.” It is the respect for that dignity that rouses the Eighth Amendment protection.” Although deprived of rights that are fundamental to liberty, prisoners retain the essence of human dignity inherent to all persons. 2.Denial or delay in treatment or access to medical personnel also constitutes deliberate indifference to prisoner medical needs, even when the condition is not life- threatening. 22 Being incarcerated renders prisoners completely dependent on the State for basic sustenance, including adequate medical care.”” The State's failure to provide it, may in effect produce physical torture ora lingering death, “incompatible with the concept ofF human dignity and has no place in civilized society."” Therefore, incarcerated persons have the right to life-supporting treatment without interference.” The medical services should be provided on ‘a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards Denial or delay in treatment or access to medical personnel also constitutes deliberate indifference to prisoner medical needs, even when the condition is not life-threatening.*°* Ignoring obvious serious medical needs constitutes a “deliberate iference” prohibited by the Eighth Amendment. The right to the enjoyment of the highest attainable standard of physical and mental health is also a human right guaranteed under international law.!°° International human rights standards and guidelines require that proper medical examinations be offered to prisoners as soon as possible after being admitted to prison or place of detention, and that medical care and treatment thereafter should be provided whenever necessary, free of charge.'* In order to comply with the minimum constitutional standard, during the course of the Morales Feliciano litigation, in 2012 the Department of Corrections and the Responsible Health Authority (RHA) entered into a Comprehensive Management Agreement for the Provision of Health Care Services to the Correctional Population, setting forth the institutional obligations concerning the delivery of health care services." Also, RHA created a Medical and Mental Health Care Plan (MMHCP), led wit which regulates almost all areas of health services provi jin the correctional system.2% According to the MMHCP, the objectives of the correctional health system are as follows: (1) to integrate health care services in the correctional facilities throughout Puerto Rico;(2) to provide necessary health care services which meet contemporary standards of professional practice, emphasizing prevention services to the entire prisoner population; (3) to create a system that guarantees access to health care services for all prisoners; (4) to establish a health education program designed to improve the level of understanding of sound health; (5) to establish a program designed to monitor, diagnose and treat communicable diseases, including tuberculosis and sexually transmitted diseases, with special emphasis on HIV infection; and (6) to establish and maintain programs for the diagnosis and treatment of substance use disorders.” However, based on the testimony of prisoners interviewed, key aspects of these objectives are not being met. The ACLU of Puerto Rico documented several instances inwhich the correctional officials, with obvious disregard for prisoners’ health, failed to facilitate access to adequate health care and life-saving treatment, in violation of the Eighth Amendment.:* Too often prisoners complained that they were nat receiving the required medical attention and that their treatment was denied or interrupted without justification.” The lack of transportation and the absence of correctional officers in the institution seems to be one major cause for prisoners missing their appointments or for the interruption of their medically prescribed treatment. Also, following the enactment of PROMESA, the provision of adequate health services has been further deteriorated due to drastic budget cuts and, consequently, staff reduction to the Health Correctional Program, administered by Physician Correctional, the current company responsible for the management of Puerto Rico's correctional health systems.*** During the current administration's transition hearing of 2020, the former Secretary of Corrections, Eduardo Rivera Juanatey expressed that the budget restrictions could impact the parameters established by the U.S. federal government on the correctional operations in Puerto Rico." The ACLU of Puerto Rico documented several instances in which the correctional officials, with obvious disregard for prisoners’ health, failed to facilitate access to adequate health care and life-saving treatment, in violation of the Eighth Amendment. 23ee 24 Failure to provide adequate medical treatment: ‘One example of failure to provide adequate medical treatment to a prisoner and its consequences involves an HIV-positive prisoner who noticed a large mass growing in his neck area. Despite repeated requests for appropriate medical attention and lack of the correctional officials to coordinate a visit to a specialist, these requests were denied for prolonged periods of time by Department of Corrections officials.*2? ‘Over time, the tumor expanded in size, resulting in an obstruction of the prisoners’ ability to breathe adequately." It was not until five months after the prisoner's sick call requests and resulting breathing obstruction that correctional officers finally facilitated a visit to an oncologist who certified the condition had, at that point, metastasized to his lungs. "5 In another case, an elderly prisoner denounced the correctional officials’ failure to provide adequate treatment and diet for his diabetes and high blood pressure conditions.""* He sustains that the inadequate treatment during his incarceration has prompted the onset of sight loss in his right eye and kidney failure for which he now requires dialysis treatment.” He has also found several kidney donors but has been denied permission to receive the required organ transplant.‘ He has initiated litigation regarding this issue which, at the time of the interview, was pending.**? The issue regarding the denials of kidney transplants to prisoners is related to the lack of contract or agreement between the correctional health services contractors and the hospitals that provide this transplant surgery.’ In other cases, the Department of Corrections has refused to provide alternatives for organ transplants, citing the cost of the treatment, thereby jeopardizing the health and life of prisoners.’2 An elderly prisoner, who suffers from chronic kidney disease, reported that correctional personne'’s failure to timely coordinate her dialysis treatment caused the treatment to be interrupted for several days, requiring her hospitalization." One prisoner reported that during a lockdown, correctional guards assaulted and pepper-sprayed the prisoners." As a consequence he suffered injuries to his back and ear. He reported being pushed down the stairs by a correctional officer while he was in handcuffs and hit an open hand over his ear." Despite reporting it, and receiving initial medical attention, he continued to complain of pain and hearing loss.2° He was then taken to a private clinic where further medical studies were conducted.””” At the time of the interview by the ACLU of Puerto Rico (2017), he had not yet received any follow-up medical attention because allegedly the medical records were not available.'2° Failure to provide medical diet to patients with chronic and life-threatening conditions: Prisoners suffering from diabetes confront a huge challenge, considering that their treatment requires a constant and timely supply of medications, a specialized medical diet, and constant monitoring by a healthcare professional. In many cases, the appropriate diabetes treatment and medical diet were found to be absent amongst the prisoners interviewed." Many prisoners with diabetes receive the same diet as that of a person suffering from high blood pressure or gastrointestinal problems.!** This information is corroborated by Elba Lépez, nutritionist, who served as expert witness for the CAEC at different moments during the course of the Morales Feliciano class action litigation. Moreover, when family members request authorization to 2bring food to accommodate the medical diets, such requests are denied, leaving the prisoner no option but to consume the general diet provided by the Department of Corrections, contrary to medical recommendations.‘ One prisoner, suffering from diabetes, reports that for a time the Department of Corrections provided her a medically prescribed diet, consisting of high fiber and low carbohydrates. But soon after, the administration ignored the accommodation.:* A prisoner reported that the food meant to be for prisoners on special diets were actually given to correctional officers on night duty, as snacks.% Similar situations were faced by prisoners with kidney conditions who require a high protein intake on a daily basis as well as dialysis treatment. An elderly prisoner suffering from kidney failure reported not receiving the proper medically necessary diet, transportation, or dialysis treatment for her condition.**” She also reported being forced to sign a waiver of liability form by correctional officers after filing complaints documenting her inconsistent necessitated medical treatment. Inadequate response to medical requests and emergencies: During the course of the interviews, prisoners constantly denounced the institutional lack of appropriate response to their health care requests or sick-calls.” As explained wed, sick-call by the prisoners inten the mechanism available to prisoners to request medical attention in the event of a medical emergency.“ However, prisoners nored.* In ane facility it was interviewed reported that their sick-calls are ofter claimed that officers do nat respond to sick-calls after 5 p.m. There are claims that prisoners had actually died due to the lack of timely response from officials during the events of a medical emergency.“ Another accasion reported a prisoner was crying in pain during the late night." Correctional officials failed to respond for two (2) hours and it was later revealed that the prisoner died."** MEE «260 One prisoner reported that in June 2016, he suffered an asthma attack.“ His chesttightened and he felt suffocated due to the heat and lack of water in his cell.” He asked a fellow prisoner to call a correctional guard and supervisor to coordinate immediate medical attention."** The responding correction officer, who was not wearing a badge at the time, allegedly stated that the supervisor was “busy” and he would check on the prisoner “once he finished what he was doing” The officer agreed to let another prisoner out of his cell to bring him water. However, as the prisoner drank the water, he began to vomit.**° Upon noticing the seriousness of the prisoner's health condition, the officer finally called the supervisor to facilitate the corresponding medical attention."** Another prisoner reported that, upon noticing he was suffering a severe asthma attack, other prisoners called for help from the correctional officers.** After 30 minutes of outcry, a correctional officer went to his cell to investigate." The officer observed that the prisoner was sweating profusely and was unable to speak.'** At that point, the correctional official ordered that the inmate be taken to the hospital.1°° Failure to provide medical equipment It was reported that prisoners with special medical equipment needs are denied, or do not have, access to them.'® Some reported prescribed eyeglasses and hearing aid devices are not provided.” Wheelchair requests have been denied and canes confiscated.15* Failure to provide psychological or psychiatric treatment Access to psychological or psychiatric treatment for conditions such as depression, bipolar disorder, and drug addiction was a significant concern among some of the interviewed prisoners." They reported that the treatment provided for emotional conditions is inadequate or not provided. For example, one former prisoner, who Itwas reported that prisoners with special medical equipment needs are denied, or do not have, access ‘to them. 2728 experienced symptoms of depression and anxiety during his incarceration, reported that his requests for psychiatric evaluation and treatment were ignored entirely.** Another prisoner said they were prescribed Depakote for bipolar disorder; however, at the interview, the correctional facility had stopped providing them any medication despite their requests to that effect.” A complaint letter received by the ACLU of Puerto Rico sent by a relative of a prisoner narrates that their relative, a prisoner, suffers from multiple psychiatric and psychological conditions, including depression, bipolar disorder, and chronic anxiety.“ The relative alleges that despite the prisoner's condition which requires various prescribed medications and treatment, from 2016 to 2019, the prisoner did not receive treatment or medication for his psychological conditions from the correctional facility. Failure to provide drug addiction treatment Guerrero's Prison Report details and highlights that substance addiction within the prison population constitutes an enormous health and security problem within Puerto Rico's correctional system. Currently, the leading cause of unnatural deaths of prisoners continues to be caused by withdrawal from illegal ar controlled substance overuse." Far example, in the fiscal year 2019-2020 it was reported that of a total of 30 deaths in Puerto Rico's prisons classified as non-natural (muerte por causa no natural), 83% were attributed to drug abuse." Similarly, in fiscal year 2020-2021, it was reported that of a total of 80 documented deaths, 22 are attributed to drug abuse, and an additional 14 classified as “pending investigation’ are presumably drug, abuse related."In the course of the interviews, one prisoner reported there was little to no medical attention to address drug withdrawal symptoms." It was also reported that although he suffered from addiction to cocaine and heroin, he received no related treatment while incarcerated."*” He alleges that on one occasion, there were approximately 80 detainees experiencing drug withdrawal symptoms in the prison’s admissions cells.!”” He was vomiting and defecating on himself while other prisoners were forced to clean up the area.%”* Delays or obstructions in the delivery of prescribed medication In addition to not receiving adequate and timely medical treatment ar psychological attention while incarcerated, delays in receiving prescribed medication are a major documented complaint among the prisoners interviewed." It was reported that prescribed medicines for chronic conditions, including diabetes, gastritis, allergies, Hepatitis C, high blood pressure, asthma, epilepsy, and HIV, usually take several days, weeks, or months to be provided, if at all.1”° In many cases, prisoners reported receiving the wrong prescription or not receiving the medication.” For example, one prisoner said that for three months, the correctional official failed to provide treatment to control his high blood pressure via medication, as prescribed by his doctor, which unnecessarily compromised his health..”* Also, another prisoner alleged he spent three (3) months without being provided his epilepsy prescription.17* Prescribed medication not being supplied to prisoners with asthma was commonly reported by interviewees, causing severe health consequences.” One pi ner alleged that his asthma medication is only provided to him every three months instead of being provided every month as prescribed.*”* As per the inmate, correction officials told him the reason was the medication’s cost.” In summary, the most pressing health issues expressed by the prisoners interviewed are as follows: 29Prisoners reported being abusively battered and assaulted with batons, even while handcuffed. 1. The timely and proper respanse to medical emergencies. 2. Adequate access to medical exams, treatment, and follow-ups. 3. Appropriate provisions of required medical diet according to the prisoners’ specific health conditions. 4, Access to special medical equipment and devices. Suitable supply and timely delivery of prescribed medication. 6. Time-sensitive transportation to medical appointments and therapy. EXCESSIVE USE OF FORCE AND ABUSE OF POWER ‘Theunnecessary andwanton infliction of painconstitutescruelandunusualpunishment forbidden by the Eighth Amendment to the United States Constitution." Excessive force by correctional officers may amount to cruel and unusual punishment, absent a good faith effort to maintain or restore discipline, and maliciously and sadistically applied to cause harm.! This rule applies even when the prisoner does not suffer serious injury.‘*? Interviews during this investigation revealed several instances of wanton use of excessive force against prisoners.'® Some prisoners can trace back the abusive behavior from the time of their initial incarceration in juvenile facilities. “°* Physical assault against prisoners Prisoners reported being abusively battered and assaulted with batons, even while handcuffed."* They also reported that searches and cell inspections were conducted in an abusive manner and commonly in retaliation for prisoners having filed a complaint against a correctional officer. Some narrated that during riots, the display of wanton violence is prevalent.'*” Another prisoner reported that officers attempted to handcuff him fram behind despite his disability, which does not permit this type oF restraint; consequently, he was forcefully subdued while several guards stepped over him." Despite the prisoner's cries of pain, the guard insisted an handcuffing himfrom behind, and he was left to lie in that position, enduring hours of excruciating pain.!*” As a result of the injuries sustained, the prisoner currently has a permanent disability in his hand.1% ‘A complaint letter received in 2019, described that a correctional officer beat a prisoner severely during an apparent escape attempt from an institution in 2017. Consequently, the prisoner suffered fractured ribs and a perforated left lung. Purportedly, the prisoner was hospitalized for four months and currently requires the use of a wheelchair.1?" Abusive inspections and destruction of personal belongings Several prisoners interviewed denounced that, aside from the physical abuse endured during searches and inspections, correctional guards unlawfully seize or destroy their personal belongings.” It was reported that strip searches of prisoners are conducted abusively, with disregard for the privacy of the prisoners and with no other purpose but to humiliate them.*% Family members have also reported the unlawful use of strip searches during their prisoner visits..* In August 2019, the ACLU of Puerto Rico received a complaint letter from a prisoner who narrated that he had been subjected to abusive searches on several occasions.” ‘The prisoner alleged that, consequently, correctional guards filed false charges against him and other prisoners and imposed disciplinary measures, including collective punishment. He asked for a complaint form to denounce the abusive searches and to appeal the administrative sanctions imposed. He reported that correctional officials stated such decisions were unappealable."”” 31According to several of the prisoners interviewed, the display of violence often occurred in retaliation for prisoners asserting aright or for filing a complaint. Unlawful deployment of tear gas and pepper spray Particularly troublesome is the unlawful use of pepper spray and tear gas in correctional facilities."%* During these interviews, it was reported that correctional officers abusively deploy pepper spray against prisoners without justification during raids and searches.*” Or, as put by one ex-prisoner, “just to entertain themselves. (One prisoner reported that aftera cell inspection, the guards allegedly pepper-sprayed him without any justification. Although the prisoner could not breathe during the pepper spray incident, the correctional officer waited two hours before getting him the required medical care.” Another prisoner pointed out that after a riot was under control, correctional officers continued to throw tear gas at the prisoners even after they were confined in their cells.2°° Retaliation According to several of the prisoners interviewed, the display of violence often occurred in retaliation for prisoners asserting a right or for filing a complaint.2 Pursuant to federal law, while many rights and freedoms are necessarily curtailed during incarceration, *a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime." Thus, despite the general deference owed to the managerial decisions of prison officials, “retaliation against a prisoner's exercise of constitutional rights is actionable.”* To prevail on a retaliation claim, a prisoner must establish “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'°” Although the First Amendment protects the filing of administrative complaints against correctional officers, harassment, the threat of physical harm, or actual assault employed by correctional guards to dissuade and prevent prisoners from. SEEEEEEEE 32 filing complaints has been reported to occur. Some prisoners claim that they have