A federal judge will soon decide whether to order such measures as medical furloughs for medically vulnerable inmates or universal coronavirus testing in prison facilities after hearing preliminary arguments Tuesday in a lawsuit over the Maine Department of Corrections’ pandemic response.

Four inmates at the Maine Correctional Center in Windham tested positive in May. 2013 file photo by Gordon Chibroski/Staff Photographer

But the judge also urged the parties to consider mediation as a solution.

“It seems to me you have in this particular case a wider range of common ground in terms of goals than may be apparent when you start arguing the law,” U.S. District Judge John Woodcock said Tuesday. “It’s always my thought that it is very rare that a judge can do for the parties as well as the parties can do for themselves. And what I mean by that is you both have it within your authority to negotiate this.”

Woodcock heard oral arguments Tuesday during a virtual hearing on a motion for a temporary restraining order.

The plaintiffs are Joseph Denbow and Sean Ragsdale, who are both incarcerated at Mountain View Correctional Facility in Charleston. They are represented by the American Civil Liberties Union of Maine, which is seeking class-action status to represent hundreds of people who are incarcerated, particularly those who are medically vulnerable to the coronavirus. The lawsuit includes a May email from a corrections official, who wrote that 925 inmates have underlying medical conditions.

The adult prison population as of Tuesday was 1,867. One employee at Bolduc Correctional Facility in Warren tested positive for the disease in March, and four inmates at the Maine Correctional Center in Windham tested positive in May.

The plaintiffs have argued that the state is not doing enough to release incarcerated people who are at risk during the pandemic, and the prisons are unable to allow for physical distancing to prevent the spread of the virus. They have asked the judge to take certain immediate steps, like ordering the department to review all medically vulnerable inmates for furlough or instituting universal testing in certain prisons.

The state has argued that the Maine Department of Corrections is reviewing inmates for its home confinement program and taking other steps to prevent the spread of disease inside prisons. They have also said the inmates have other opportunities to pursue release outside of federal court.

Woodcock asked the attorneys a series of questions Tuesday. Many were procedural, but some touched at the central issues of the case. For example, the attorneys made different arguments about whether the coronavirus warranted medical furloughs, which have not been used to reduce the state’s prison population during the pandemic.

Assistant Attorney General Jill O’Brien said the department only grants medical furloughs for inmates to seek necessary treatments outside the facilities.

“Social distancing, like hand-washing and covering your cough, is not medical treatment,” she said.

Emma Bond, a staff attorney for the ACLU of Maine, disagreed.

“This is a disease that has no effective curative treatment,” Bond said. “There is no pharmaceutical treatment for COVID-19. … Prevention is crucial, but there is no vaccine for this disease. On an individual basis, physical distancing is medically necessary. It is medical treatment.”

The judge does not have a timetable to make his decision but said it would be soon.

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