Part 1: Recent COVID-19 Prison Litigation

Money, et al. v. Pritzker, et al.; Mays, et al. v. Dart, et al.

COVID-19 has upended the normal functioning of everyday life for most people. The federal government and the State of Illinois have recommended wearing protective facial coverings, recommended social distancing measures, and required non-essential personnel to stay home from work. The current pandemic has reached every part of society – jails and prisons are no exception. On April 2, a group of civil rights attorneys, including the Northwestern University Civil Rights Clinic and the Illinois Justice Center, on behalf of several incarcerated plaintiffs, filed a pair of class action lawsuits against the Governor and Director of the Illinois Department of Corrections (“IDOC”) over perceived inadequacies in IDOC’s handling of the current novel coronavirus outbreak.

The first lawsuit, Money, et al. v. Pritzker, et al., Case No. 20-cv-02093 (N.D. Ill. Apr. 2, 2020), alleges an Eighth Amendment claim under 42 U.S.C. § 1983, arguing that IDOC is acting with deliberate indifference to the medical needs of the incarcerated population due to the risks posed by the virus to those held in close quarters. The lawsuit alleges that, by not releasing, placing on home confinement, or furloughing prisoners, IDOC has exposed them to a greater risk of contracting COVID-19. The complaint also alleges that IDOC has failed to establish a process for those eligible for transfer out of IDOC facilities in violation of their Due Process rights under the Fourteenth Amendment. The complaint also alleges that the State’s failure to adequately safeguard prisoners with mental and physical medical conditions that may carry a greater risk of contracting COVID-19 constitutes a violation of the Americans with Disabilities Act (“ADA”). The complaint also seeks an award of attorney’s fees and costs. The second lawsuit, Money, et al. v. Jeffreys, et al., Case No. 20-cv-02094 (N.D. Ill. Apr. 2, 2020), seeks identical relief under the auspices of federal habeas corpus pursuant to 28 U.S.C. § 2254.

The Plaintiffs have sought relief for six (6) sub-classes of prisoners: (1) immediate furlough for those with “serious health conditions” eligible for furlough under the medical furlough provision of the Code of Corrections (730 ILCS 5/3-11-1); (2) immediate furlough for prisoners aged 55 or older and otherwise eligible for medical furlough under the statute; (3) immediate transfer to home detention for those prisoners aged 55 and older with less than one year remaining on their sentence and otherwise eligible for home detention under the Code of Corrections; (4) immediate transfer to home confinement for those eligible prisoners convicted of Class 2, 3, and 4 felonies; (5) immediate transfer to home confinement for eligible Class 1 and Class X offenders with less than 90 days remaining on their sentence; and an immediate award of 180 days sentencing credit to those offenders who have 180 days or less remaining on their sentence and are eligible for sentencing credit under the Code of Corrections.

The cases have been functionally consolidated in front of the Honorable Steven C. Seeger, and an expedited briefing schedule on the temporary restraining order was entered. On April 6, the State responded to the Plaintiffs’ motion for a temporary restraining order, making several procedural arguments and merits-based arguments. On the merits, the State touts its efforts to combat the COVID-19 pandemic, including the Governor’s emergency proclamation and executive orders regarding the pandemic, his activation of the National Guard, his limited suspension of transfer of inmates from county jails to IDOC, and various other measures undertaken by IDOC to reduce the population of the State’s vulnerable prison population.

These measures, argue the State, show that they have not been deliberately indifferent to the prison population, and instead has been responsive to the public health crisis, and the Plaintiffs cannot show that the State’s alleged conduct reaches the high bar of acting with a “criminal recklessness” with respect to the care afforded the prisoners. The State further argues that the relief sought – the wholesale release of thousands of prisoners – is not warranted given the mere risk of contracting COVID-19. The State argues that the State and the public-at-large are harmed by the early release of convicted prisoners, and that the equities cannot be balanced in the prisoner’s favor where there is no evidence of the likelihood of prisoners contracting COVID-19, rather than the mere possibility of contracting the disease in prison.

The following day, on April 3, the same group of lawyers filed a class action lawsuit against Cook County Sheriff Tom Dart. The assigned judge is the Honorable Matthew Kennelly. The lawsuit seeks relief for two classes of detainees. The first class are detainees over age 55 or those who have a pre-existing medical condition. The second class of detainees are those that are housed in a tier with another detainee that has already tested positive for COVID-19. The lawsuit makes a Fourteenth Amendment claim for a failure to provide reasonably safe living conditions and seeks a writ of habeas corpus. The lawsuit decries the conditions of Cook County, including, dozens of staff members and greater than 100 detainees testing positive for COVID-19 and alleges that the Jail does not have adequate training of its staff on preventing the spread of the disease and that the County’s policies are not sufficiently preventing the spread of the disease. The lawsuit seeks immediate release of all detainees under the first subclass, and seeks immediate transfer to another facility or another form of custody for the detainees in the second sub-class. Additionally, the lawsuit seeks the implementation of new policies to manage the spread of the virus within the jail, and attorney’s fees and costs.

The County responded on April 6, arguing that they had voluntarily and in anticipation of the epidemic, identified certain detainees that would be candidates for release from confinement and shared this list of detainees with the State’s Attorney’s Office and the Public Defender’s Office. Notably, the Public Defender’s Office had attempted a similar motion for release of detainees en masse in March, but was denied because the state court lacked such authority given the statutory bond scheme requiring individual assessments related to each offender. Additionally, the Sheriff touts its measures taken in accordance with CDC guidelines, including the use of personal protective equipment (PPE) for staff, and the creation of additional isolation measures for COVID-19 positive detainees.  The response further argues that the Sheriff lacks unilateral authority to release detainees on home confinement, or reduce their bail. The Sheriff argues that there are procedural hurdles to Plaintiffs’ claims, including the fact that the detainees can petition the judge in their individual criminal cases for a reduction of their bail or for a modification of their pre-trial release conditions. Finally, similarly to the IDOC cases, the Sheriff argues that the harms of releasing detainees without individual determinations regarding their suitability for release and the danger the detainees pose to the community outweighs the detainees’ risk of infection.

We at HC&B are closely watching this litigation and its likely downstream effects on county jails and their populations. Plaintiffs’ reply brief in the IDOC cases is currently due on April 8, by 5:00 p.m. If there is oral argument requested by the Court, the hearing will take place on April 10. A hearing was held on the Cook County case on April 7. Judge Kennelly ordered supplemental briefing and has not indicated when he will rule on the Plaintiffs’ temporary restraining order. We anticipate that there may be efforts by similar groups of attorneys to seek the early release of pre-trial detainees and convicted offenders serving time in our clients’ jails. We will update this blog when the Court rules on the temporary restraining orders, and report on any other crucial developments in the cases. There are some important lessons to be taken from the State and the Sheriff’s responses to the lawsuits.

• Be visible and communicative to the public about the steps being taken within your facilities to manage the risks of COVID-19. In the event that any action is brought against the facility or its staff, you can point to concrete actions taken to reduce the risk of an outbreak in the jail.
• Communicate with your local State’s Attorney regarding the measures taken within your jails so that the Assistant State’s Attorneys are prepared to make arguments on individual bail hearings.
• Be proactive. Take actions to reduce the likelihood of an infection spreading in the jail prior to having any confirmed cases of COVID-19. Remember that COVID-19 can present asymptomatically, or with mild symptoms, so even if it seems like there can’t be an outbreak at your facility, this is not guaranteed.
• Remember, that protecting the detainees is as much about protecting them as it is about protecting your corrections staff and the public at large.
• Stay up-to-date on CDC guidelines, the Illinois Department of Public Health guidance, and the Governor’s executive orders regarding the outbreak. We here at HC&B have greater than 30 years’ experience in defense of corrections officials and are constantly updating our resources for our clients so that they can be responsive to the COVID-19 outbreak. We would be happy to provide you with the legal and practical advice needed to weather this pandemic.

In Part 2, we will highlight the challenges facing County Jails specifically, and some of the measures undertaken by our clients in light of the pandemic, and the lessons to be taken from proactive risk management in this time of crisis.

Stay safe,

The Team at HC&B