'Many jails still do not do any testing.' Advocates push for more focus on Michigan jails & COVID

Lawuits have been filed against Oakland and Wayne County jails
jail cell
Posted at 1:11 PM, Feb 12, 2021

Wayne County Chief Judge Timothy Kenny has been working to stop the spread of COVID-19. Through bond reductions and early releases, he's helped to send home over 400 inmates since last March.

"I didn’t want someone to get COVID and become very seriously ill and die because they were too poor to be able post whatever nominal bond there was," Kenny said in an interview last December.

"There are well over 100 people who are in the Wayne County Jail during this pandemic who are just charged with ordinance violations," he continued. "Simple misdemeanors like trespassing and being disorderly."

Close quarters, limited PPE, a high population due to mandatory sentencing guidelines and old buildings with poor ventilation have conspired to make correction facilities hotbeds for COVID-19. Michigan's prison system — the Michigan Department of Corrections — has gotten the most attention around this.

Since the start of the pandemic, more than 135 inmates within the MDOC have died from COVID-19. One in two of the department's inmates have tested positive since March.

But jails are battling many of the same issues.

"It’s absolutely impossible to protect yourself against COVID-19 when you’re behind bars," said Phil Mayor, an attorney with the ACLU who filed a lawsuit with a collection of civil rights law firms against the Oakland County Jail last spring.

"We filed a lawsuit against the Oakland County Jail alleging that their failure to keep the people incarcerated safe from COVID-19 violates the constitutional rights of the people who are incarcerated," Mayor said.

The case is currently pending litigation after Oakland County Jail appealed a decision in favor of the inmates. The jail maintains it is creating a constitutional environment for its inmates. According to Undersheriff Michael McCabe, there is only one inmate who is positive right now.

"We have a 2.0% positivity rate since March of 2020 when we started testing. The state of Michigan positivity rate, according to their data, is 5.8%. So statistically, you are safer in the Oakland County Jail than out in the general public," McCabe wrote in an email. Adding: "I would not recommend coming to the OCJ however as a potential safe haven."

Mayor, however, contends the stats must be taken in context, as positivity rates can vary depending on testing regimens, but also that given the transitory nature of jails — where many inmates can spend less than 24 hours — the number of positive cases can ebb and flow.

Macomb County Jail, for example, reported a quarter of its inmate population having COVID-19 in December. Currently, according to a spokesperson, there is also only one case. Mayor maintains a similar trend is happening with Oakland County Jail.

"Oakland County Jail has had two significant COVID outbreaks resulting in approximately 150 known COVID-19 cases (to say nothing of cases who may not have been identified, of which we have good reason to believe there are many)," Mayor wrote in an email, adding that he also believed the litigation was playing a role in these changes.

"Both outbreaks saw improvement only following the filing of court papers by us documenting the shortcomings of the Jail’s slow and plainly inadequate reactions to the outbreak, and following significant changes in the Jail’s conduct as a result of the litigation," Mayor wrote in an email.

This mindset is reiterated by Ashely Carter, an attorney with the Advancement Project, a DC-based civil-rights organization that is also part of the Oakland County Jail suit.

"The efforts to maintain a safe environment at best are inconsistent," said Carter, whose organization also filed against Wayne County Jail last spring.

"I know that a lot of people think that things are going great in the jail, but I do wonder how great they’d be if there wasn’t a lawsuit hanging over their heads," she said.

In the time since the lawsuit was filed, Wayne County Jail's COVID-19 protocols have been held up by the CDC as an exemplary model.

In addition to Judge Kenny — and others within the Third Circuit Court — pushing to release inmates, the jail has also ramped up its testing protocol, per Sheryl Kubiak, dean of Wayne State University's School of Social Work. Kubiak has worked with Chief of Jails Robert Dunlap to create a testing and contract tracing plan.

"When COVID hit and we knew that the jail was in such trouble — we made a call and said what can we do to help," said Kubiak, who explained that at the time, they were just learning that people could have no symptoms and still transmit COVID-19.

Working with Wayne State University's Medical School, they did a series of mass testing to find out what the prevalence rate was, decide who to isolate and make future plans.

Kubiak said the Wayne County Jail began testing every inmate as they were booked in June. They also adopted contact tracing, so that when individuals went home — given the high turnover rate in jails — those outside could also know if someone was positive.

"The jail is part of the community," said Kubiak, stressing that people need to view the situation holistically. "We felt, if we were really going to embrace the public safety aspect of jails — the purpose of the jails, —then it was important to protect the public from people who are positive coming out."

But Kubiak said not all jails are following suit.

"Many jails still do not do any testing," said the academic who is currently running presentations to spread awareness of some of the tactics being used within Wayne County Jail.

She said it's an important issue since jails are not only part of the community, but could ensnare any of us.

"I know I have an unpaid parking ticket out there somewhere that someone might nab me on," she said. "Any of us could get caught up into the situation and intercept with the jail and it’s really just an important catalyst for prevention in our communities."