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LOUISVILLE, Ky. (WDRB) -- Inmates at a western Kentucky prison hit by a COVID-19 outbreak are asking judges to order their release, while some of their lawyers accuse the warden of “cruel and unusual punishment.”

Of the more than 900 prisoners at the Green River Correctional Complex, 43 have tested positive for the coronavirus-caused illness and two have died. In addition, 28 workers also have been sickened, according to Gov. Andy Beshear.

“I’ve committed to testing everybody in Green River,” Beshear said at a press briefing Monday. “It is a scary and dangerous situation.”

At least nine inmates who were sentenced in Louisville have filed motions with Jefferson County Circuit Court judges in recent weeks asking for their prison sentences to be set aside or modified to home incarceration instead.

In addition, attorneys for some inmates have filed lawsuits against Kevin Mazza, the Green River warden, asking judges to order their release as a result of “cruel and unusual punishment.”

At least one of the inmates who has filed a lawsuit against Green River claims to have tested positive for the virus. 

Kalvin Irvin, who is serving a sentence for firearm possession charges with an expected release date in 2022, tested positive on April 18 and was "returned to his cell" with a cellmate, where social distancing was impossible, according to the lawsuit. 

Several days later, he was taken to "the hole," which the attorneys say is used by prison officials for isolation. 

"Mr. Irvin and his wife are both concerned for his life at this time," according to the lawsuit filed on Tuesday in Jefferson Circuit Court. 

In the motions and lawsuits, the inmates say Green River is overrun with sick workers and inmates and social distancing is impossible because they are constantly put into group situations.

Some allege there is no soap and hand sanitizer and only the “severely ill” are being tested for COVID-19. Even those released from 14-day quarantine after having symptoms are not being tested before going back into the general population, according to the motions.

“This rapidly increasing rate of infection and spread in jails and prisons is undoubtedly due to the conditions that do not allow people to adhere to CDC guidelines,” defense attorney Rob Eggert wrote in some of the motions. “Persons in custody cannot social distance, they cannot wash their hands and persons adequately, and they cannot keep distance from people who are regularly coming in and out of the facility, either due to work shifts or arrest.”

Beshear has mentioned Green River several times in his daily briefings and said the facility has taken precautions to keep staff and inmates safe, such as putting inmates in isolation if they show symptoms, staggering recreational time to help with social distancing and encouraging everyone to wear masks.

In addition, Beshear said Green River has temporarily closed the gymnasium and stopped all in-person activities, such as sports, classes and chapel. His administration is also in constant contact with facility officials and medical staff to find solutions, he said.

On Wednesday, Beshear said he hoped to have all Green River inmates tested by Friday to determine the extent of the spread. So far, 250 inmates have already been tested, he said. 

Jefferson Circuit Court Judge Olu Stevens has already denied two of the motions to amend or alter sentences this week. The judge's written denials are only a few sentences long and don't explain the decisions, according to court records. 

One of the denials was for inmate Shawn Beason, who was convicted in 2018 of drug and gun charges and endangering the welfare of a minor. He had asked to serve the rest of his 17-year-sentence on home incarceration.

But Beason still has a lawsuit pending against Green River, where attorney Tricia Lister argues her client is being “unlawfully held” because the rate of infections at the prison have made confinement a “potential death sentence” and violation of his rights, according to the suit.

Holding Beason, and other inmates, is a violation of the 8th Amendment, Lister argues, which is the right to be free from “cruel and unusual punishment.”

Court records don't list a hearing date for the lawsuit, but the suit argues that “time is of the essence.”

The suit asks that Beason be released from Green River and “placed in alternate confinement where he can practice appropriate social distancing and hygiene until the threat of death or serious illness from COVID-19 has passed.”

In another suit against Green River, William Walker notes that not only does he have asthma and suffered from a gunshot wound to the stomach, he is at a "heightened risk" because he African American and black people in Kentucky are dying at a disproportionately high rate.

Walker is scheduled to be released in 2028 after being convicted of drug trafficking and firearm possession. 

Eggert, who is working with Lister, pointed out in motions that other prisons with similar COVID-19 outbreaks across the country have released inmates.

California released 3,500 persons early on and 1,000 inmates were released in New Jersey to curb the spread of the virus, he wrote.

Earlier this months, Kentucky officials announced he state plans to release more than 900 state prisoners because of the COVID-19 outbreak.

At the time, Beshear said the state had identified 743 inmates who are within six months of completing their sentences who would also be released.

A spokeswoman for the state Department of Corrections did not immediately comment on the lawsuits.

Jefferson Commonwealth’s Attorney Tom Wine said he would look into how prosecutors are responding to the motions to alter sentences.

Eggert and Lister also represent inmates asking for release from other Kentucky prisons, generally because they have health conditions that make them more susceptible to the coronavirus.

Allison Moseley, for example, has a hearing Wednesday in front of Jefferson Circuit Court Judge Judith McDonald Burkman requesting her 18-year sentence for 2nd degree manslaughter, DUI and wanton endangerment be suspended.

Moseley suffers from Cystic Fibrosis and is incarcerated at the Kentucky Correctional Institution for Women in Peewee Valley where there is a “substantial risk of serious complications from the virus, or death,” Eggert and Lister argue.

The attorneys point out that Beshear announced on April 2 that many “vulnerable” inmates were being released to ease overcrowding and that Moseley would “not present a danger to the community if released on home confinement.”

“Ms. Moseley was not given a death sentence by this court, yet her exposure to COVID-19 could likely lead to her death,” according to the motion.

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Digital Reporter

Jason Riley is a criminal justice reporter for WDRB.com. He joined WDRB News in 2013 after 14 years with The Courier-Journal. He graduated from Western Kentucky University. Jason can be reached at 502-585-0823 and jriley@wdrb.com.