Kevin Keith is trapped

The intersection of the American prison system and the novel coronavirus outbreak is fraught with social inequity, panic, public responsibility, emergency litigation and the unavoidable threat of a global pandemic looming over every human’s head. It’s a dangerous time to be stuck in the custody of a state that has not built its prison facilities with inmate health in mind. I’ve been reading a great deal of terrific reporting on the prison system and how U.S. governors are (or, more to the point, aren’t) stepping up the plate to provide a meaningful level of safety. Each defendant has a story.

There are about 49,000 inmates held by the state of Ohio as of today. I’ve been following several cases, but the story of Kevin Keith is one that’s been close to my work for the past four years. I’ve written about his 1994 murder conviction here and here. Watch a trailer for a documentary project covering his case here. He’s being held at Marion Correctional Institution.

In late March, Keith, 56, filed an emergency motion for release, citing an “unprecedented health emergency” that casts a sudden, grim shadow over his previous 26 years of dubious incarceration. As a diabetic inmate in close quarters with a sprawling, vulnerable population (and years of civil litigation that raise at least a few questions about his being in there at all), the emergency motion requests that he be let out of prison under judicial release measures (ankle monitoring, etc.).

Here’s the case that Keith’s attorneys laid out:

“Kevin Keith was wrongfully convicted, and his case is pending before [the federal court in the Northern District of Ohio] for a full determination of whether he meets the [federal] standard. The Sixth Circuit has already determined that he has made a prima facie showing of his actual innocence. …

“The layout of the housing does not allow Keith to use social distancing. Recently, a staff member at Marion Correctional Institution tested positive for COVID-19. The media has reported that the infected staff member is a lieutenant, and that four other officers who had come into contact with the lieutenant are now experiencing symptoms of COVID-19.”

As of April 6, Ohio Gov. Mike DeWine has confirmed that five inmates at Marion have contracted COVID-19. Across the state, 27 prison system staffers have contracted COVID-19, “but most come from Marion,” DeWine said.

More from Keith’s attorneys:

“Keith’s tragic situation will be made much worse if he contracts COVID-19, as he is particularly vulnerable to severe illness due to his diabetes.”

“Keith recognizes that the complexity of the case has led to an extended consideration time, but because he is in the category of individuals who are particularly vulnerable to COVID-19, Keith moves this Court for an order permitting his release until the current health crisis subsides. In these unprecedented times, extreme measures are necessary and justified. He would, of course, consent to being electronically monitored at all times, and he would provide the Court with addresses and contact information for his mother, with whom he would be staying.”

The warden file an opposition on the same day, writing that the federal court lacks the jurisdiction to grant this request. (“Keith’s complaint—that he should be released because of fears of contracting COVID-19—are more akin to a complaint on the conditions of confinement, rather than the legality of his confinement,” warden Lyneal Wainwright wrote.”)

On April 2, federal judge James Knepp denied his request. Read the full order here.

Here’s Knepp:

“The Court is mindful that circumstances faced by this country in general, and [Keith] as well as other prisoners specifically, are certainly extraordinary. But Petitioner has not shown his particular circumstances to be ‘exceptional.’

“Although [Keith] points to his age and diabetic status as heightened risk factors for severe illness, these factors (and other risk factors) are surely shared by many inmates throughout the prison population, and indeed by other inmates at Marion Correctional Institution where [Keith] is incarcerated. Therefore, the undersigned finds that this is not the ‘very unusual case,’ where a habeas petitioner [like Keith] should be released pending a determination on the merits.”

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