Lessons from Leading Sheriffs

 [DISCLAIMER: Nothing in this blog post should be construed as legal or medical advice. Be sure to follow all CDC, IDPH, and IDOC guidance regarding the current COVID-19 pandemic. HC&B is also available for consultation regarding risk management and litigation in this uncertain time.]

In Part 1 of our discussion, we examined some of the recent litigation against Cook County and IDOC regarding the current outbreak of COVID-19.  In this installment, we’d like to recognize some of the procedures being implemented by some of our clients in managing COVID-19 and the importance of those measures in managing the risk of future litigation.

COVID-19 is a pandemic of a scale not seen this century. Aggressive social distancing and limited contact guidelines collide head-on with the limited capacity of county jails. Careful and creative measures are required to avoid the type of acute crisis currently faced by the Cook County Adult Detention Center, which, as of Tuesday April 7, had 238 detainees test positive for COVID-19. Some County Sheriffs have been at the forefront of confronting this epidemic by instituting careful controls within their detention centers. The risk to county jails is particularly acute due to the Governor’s recent order limiting the transfer of convicted detainees to the custody of the Department of Corrections. The Sheriffs leading the charge against COVID-19 include Sheriffs Roger Scott and Patrick Hartshorn, each former presidents of the Illinois Sheriff’s Association.

In Kankakee County, Sheriff Michael Downey and Chief of Corrections Chad Kolitwenzew have implemented strict control measures including the limitation of in-person visitation within the jail, instituting temperature checks of employees and visitors to both the Public Safety Building and the Courthouse, limiting the amount of detainees in shared dayrooms, installing hand-sanitizer in housing units, having corrections personnel wear masks, limiting jail programs requiring third-party volunteers, and subjecting new detainees to stricter medical screenings at intake.

In DeKalb County, Sheriff Roger Scott, Chief of Corrections Joyce Klein, and Lieutenant Carolyn Parnow have implemented stricter medical screenings for incoming detainees since February, and introduced 14-day isolation and observation protocols for new detainees to prevent spread within the general population. Corrections officers are outfitted with protective gear, including eye protection and gloves with new detainees. They have introduced video court appearances and counseling sessions. All facility visitation has been restricted, and intra-facility programs have been canceled during the crisis. For qualifying offenses, custodial arrests have been replaced with notices-to-appear to reduce the intake at the facility.

In Kane County, Sheriff Ron Hain has outfitted his corrections staff with personal protective equipment, implemented medical screening protocols for incoming detainees, implemented strict cleaning regimens, provided hand sanitizer for detainees, educated detainees on frequent hand-washing, and implemented new intake procedures for strict observation for new detainees to prevent the virus from entering the general population.

In Vermilion County, Sheriff Patrick Hartshorn has implemented temperature checks for both detainees and staff within the jail, mandatory video court appearances for detainees, and corrections deputies are wearing protective masks. All in-person visitation has been restricted for the duration of the crisis, and new detainees are isolated for observation for 14 days.

We assess that the risk of litigation over COVID-19 to be significant to county jails. For most pre-trial detainees the Sheriff’s obligation is to provide reasonable responsive measures to the risk posed to its detained population. What amounts to a reasonable response to the current pandemic will be tested in the courts, but the litigation risk can be managed by following all applicable CDC, IDPH, and IDOC guidelines regarding reducing the spread of the virus. The following measures can be undertaken, and have been undertaken by the above-mentioned Sheriffs and can benefit your facility, personnel, and the public at-large:

• Carefully document the measures undertaken by your facility. Document any challenges to obtaining protective equipment or other needed supplies.
• Develop intake and screening procedures for new entrants to your jail.
• Restrict visitation and outside programs.
• Educate your detained population on hand-washing and social distancing. Reduce, to the extent practicable, gatherings within the common areas of the jail.
• Restrict outside programs.
• Educate staff and follow the CDC guidelines for correctional facilities.
• Discuss with your State’s Attorney the possibility of reducing custodial arrests with policy guidelines on issuing notices-to-appear.
• Protect your personnel with temperature checks and protective equipment.

Taking these proactive and preventative steps will create a record of responsiveness that will support the reasonableness of the response to the current crisis in the event of any litigation. Taking the threat of COVID-19 seriously will increase substantially the likelihood of prevailing in any future litigation. We here at HC&B have the experience and the capability to assist you and your county jail through this difficult time. The experienced attorneys at HC&B can assist in providing both legal and practical advice in managing the risks of the current pandemic, and preparing for and defending against anticipated litigation. We look forward to meeting the challenges presented by the current pandemic, and providing what assistance we can in keeping our first responders, corrections personnel, law enforcement and the public-at-large safe during this time of crisis. Please contact us if you have any concerns regarding the current pandemic, or questions regarding preparedness for the legal fallout from this unprecedented crisis.

Stay safe,

The Team at HC&B