Acknowledging that “these are not normal circumstances,” a federal judge Thursday denied a push by Cook County Jail detainees for release or transfer amid the coronavirus, but ordered Sheriff Thomas J. Dart to enact new policies to limit the spread of the virus behind bars.
U.S. District Judge Matthew F. Kennelly approved a temporary restraining order that gives Dart through the end of the weekend to carry out a range of virus-prevention practices, but did not order him to move detainees to other forms of custody.
By tomorrow, Dart must provide “soap and/or hand sanitizer to all detainees in quantities sufficient to permit them to frequently clean their hands” and provide “adequate sanitation supplies to enable all staff and detainees to regularly sanitize surfaces and objects on which the virus could be present.”
By Saturday, Dart must begin prompt testing of detainees who show symptoms of COVID-19 and also of detainees exposed to those testing positive or showing symptoms.
Kennelly also ordered Dart to enforce social-distancing protocols during the new detainee intake process, including suspending the use of bullpens as detainees come into the facility.
And by Sunday, detainees under quarantine must have face masks, Kennelly said.
Stephen H. Weil, one of the attorneys representing the detainees, said in an interview that Kennelly recognized there was a serious problem at the jail and stepped in to solve it.
”This is an important first step in ensuring the safety of the detainees.” Weil, of Loevy & Loevy, said. “We don’t know if it will be enough, but we will make sure that the sheriff complies with the orders.”
As of Thursday afternoon, the jail population is holding 4,463 inmates — down by more than 1,200 from last month’s headcount. Officials on Wednesday reported that 251 detainees and 150 sheriff’s office employees have tested positive for the virus.
Under normal circumstances, operating a jail is “a very challenging task,” Kennelly wrote in his 37-page opinion. But, “these are not normal circumstances.”
“Fashioning a public policy and public health response to the coronavirus pandemic has challenged government officials across our country and throughout the world, who are facing a crisis unlike any we have faced for decades, and perhaps generations,” Kennelly wrote. “The task is no less difficult, and no less unfamiliar, for administrators of jails.”
Yet, Kennelly said, that does not mean that “constitutional protections fall by the wayside” or that detainees “shed their constitutional rights at the jailhouse door.”
Because the government locks up detainees while they wait for trial, the government “takes on an obligation to protect their health and safety,” Kennelly wrote. But, detainees showed that “intentional actions of the [s]heriff enable the spread of coronavirus and significantly heighten detainees’ risk of contracting the virus.”
Those actions include “being housed under conditions that make social distancing impossible” and not being provided “adequate supplies of soap, with cleaning supplies, or with [personal protective equipment] such as facemasks.”
Kennelly’s ruling came two days after an emergency hearing by telephone between Dart’s legal team and lawyers for the detainees. Kennelly did not rule on Tuesday, asking instead for new briefs in the suit.
Dart argued in his response that the detainees “cannot establish their state court remedies have not been exhausted” because Cook County Chief Circuit Judge Timothy C. Evans and Circuit Judge LeRoy K. Martin Jr., the presiding judge of the court’s Criminal Division, issued separate orders last month authorizing expedited bond hearings and emergency bond reviews.
Attorneys for the city of Chicago echoed that argument in an amicus brief filed Wednesday.
In a footnote to their response filings, attorneys for the detainees contended the named plaintiffs were arrested after Martin’s special en masse bond proceedings last month, meaning “they would not have had this remedy to pursue, or otherwise had their bond review denied in those proceedings.”
Exhausting the bond-review process or completing one round of the state’s appellate review process, they added, would take “at least weeks, if not months,” or “in time to prevent irreparable harm to [p]laintiffs’ health and lives.”
Kennelly disagreed, finding the detainees did not show they exhausted paths for appeal in state court and assumed a detainee would lose at every stage of appeal all the way to the Illinois Supreme Court.
“Thus although a court may excuse exhaustion in unusual circumstances if it would cause an unreasonable delay … The plaintiffs have not made the necessary showing,” Kennelly wrote. “And to the extent they contend that the requirement of exhaustion should be excused due to the nature of the constitutional questions they raise, they have made no showing that the state courts cannot remedy these claimed violations.”
“In the [c]ourt’s view, it is rather incongruous to call an otherwise available process unnecessarily time-consuming or futile when one has made no effort to initiate it,” Kennelly wrote.
Dart was represented by Robert T. Shannon, James M. Lydon, Gretchen Harris Sperry, Adam R. Vaught and Lari Dierks of Hinshaw & Culbertson LLP.
They could not be reached for comment. A spokesperson for the sheriff’s office did not return requests for comment.
Attorneys and advocates representing the detainees include Stephen H. Weil and Sarah C. Grady of Loevy & Loevy; Locke E. Bowman and Alexa A. Van Brunt of the Roderick and Solange MacArthur Justice Center; and Charles Gerstein and Alex Karakatsanis of Civil Rights Corps in Washington, D.C.
This case is Anthony Mays et al. v. Thomas Dart, 20 C 2134.