Last week, U.S. District Judge Matthew Kennelly was faced with a critical question: How to ensure that authorities were properly protecting the thousands of pretrial detainees being held at Cook County Jail in the midst of the COVID-19 pandemic.
By April 8, as Judge Kennelly noted, 251 detainees and 150 jail employees had tested positive for the virus; one of the detainees had died. Since then, the number has jumped to over 300 confirmed cases and three deaths.
A group of civil rights attorneys, including the Chicago Community Bond Fund, the MacArthur Justice Center, the Civil Rights Corps, and the law firm Loevy and Loevy, turned to the district court, charging that Sheriff Tom Dart’s administration was failing to properly protect the detainees. The suit identified two separate classes of inmates who needed emergency relief: Those who were at “grave risk of harm” because of their age or previous medical condition; and those who were at risk because they were housed “on a tier where someone has already tested positive for the coronavirus.”
The lawsuit arises from local and nationwide movements that have brought attention not only to the pandemic’s disproportionate impact on communities of color, but also on the nation’s prisons and jails, which have been called “petri dishes” for the deadly virus.
The response in Chicago has been strong, led by forces that have demanded the end to cash bail before the crisis hit, and have been asking for widespread release of at risk detainees since it became clear that Cook County Jail, with its gross overcrowding, and inhumane living conditions, would become a center for infection. While men and women post signs pleading for help from their jail cell windows, demonstrators, standing six feet apart, and scores of cars in protest caravans, have brought this humanitarian crisis to the nation’s attention.
The Judge was asked to order Dart to take a series of steps to protect the detainees, including: To triage the medically vulnerable detainees; to ensure detainees had adequate supplies for sanitation and handwashing; to take steps to safely quarantine and isolate medically vulnerable detainees; to enable social distancing, and, where necessary, to relocate certain detainees to safe locations outside of the Jail.
As Judge Kennelly noted, the detainees were not seeking outright release from custody as part of the temporary restraining order they sought. “Rather, they seek changes in the Sheriff’s policies, including in how they are carried out, as well as, for one proposed subclass, a change in the locations where they are kept in custody.”
Nevertheless and all too predictably, the Sheriff and the City of Chicago opposed the lawsuit. The Sheriff pointed to the individual bond hearing reviews being conducted in the Cook County criminal courts. The City, in yet another tone deaf response to those victimized by mass incarceration, institutionalized racism and police violence, ignored the import of the humanitarian crisis at the jail and instead focused on the request for relocation, claiming that it would “divert critical police resources [in order] to respond to alleged crimes committed by released detainees” and had the potential for “infecting city residents as well as police officers.”
Kennelly is one of the fairest and most intelligent judges on the federal bench, and the issue before him was not simple. After acknowledging the obvious importance of the constitutional issues brought before him, Judge Kennelly also recognized that the Sheriff faced “an extraordinarily difficult task” in managing the largest Jail population in the country, a task exacerbated “by a crisis unlike any we have faced for decades, and perhaps generations.”
Over the past decades, courts around the country have issued rulings that have minimized the already highly circumscribed rights of prisoners and, to a somewhat lesser extent, pre-trial detainees.
While granting a temporary restraining order “considerably narrower” than what the detainees had sought, Judge Kennelly required the Sheriff to take immediate steps to protect those locked up under his charge.
Among other things, Kennelly ordered Dart:
- To promptly test detainees who develop symptoms and, to the extent feasible, test detainees exposed to others who tested positive or showed signs of the virus.
- To enforce social distancing during the new detainee intake process, and suspend the use of bullpens to hold new detainees awaiting intake.
- To provide sufficient soap and hand sanitizer to detainees, and to provide supplies to permit the sanitizing of areas used by more than one person. Dart also was ordered to establish a policy for making sure frequently touched surfaces and objects are regularly sanitized.
- To provide facemasks to all detainees who have been exposed to a detainee who is symptomatic even if not coronavirus-positive.
Kennelly declined to go further and impose requirements for additional medical staff, for segregating any vulnerable detainees who are asymptomatic, or to order the transfer of any detainees from the jail.
The attorneys for the detainees had a mixed response to the order. Alexa Van Brunt of the MacArthur Justice Center said, “We are grateful the Court concluded judicial intervention was necessary to implement overdue measures.” But Sharlyn Grace of the Bond Fund expressed disappointment that there “has been no order for releasing more detainees.”
“If the county does not decarcerate quickly, more people will die,” she wrote in a statement. “Nearly one thousand of these people are incarcerated only because they can’t afford to pay their bond. The size of someone’s bank account shouldn’t determine whether or not they survive this pandemic.”
Judge Kennelly is highly regarded for his concern for the constitutional rights of criminal defendants and incarcerated persons, but his narrow decision reflects the limits of the law as a vehicle for vindicating the fundamental constitutional–and human–rights of those behind bars.
But the case speaks to another all-important reality: the absolute necessity of activists movements, and lawyers like those at work here in Chicago, to continue to raise these issues, including those concerning bond, mass incarceration, and the systemic racism that infects the criminal justice system. Lawyers and advocates here have a long history of demanding–from the courtroom to the streets–structural change, including the abolition of cash bail, decarceration, and, ultimately, the abolition of prisons and jails. This work must continue. As Frederick Douglass said long ago, “power concedes nothing without a demand.”
Flint Taylor is a founding partner of the Peoples Law Office. The PLO has been representing men and women behind bars for the past 50 years.