Judge denies release of detainees
Says jail’s ‘health lapses’ can be ‘cured’
In a class-action lawsuit representing detainees at high-risk of contracting severe coronavirus cases, Federal Court Judge Sheryl H. Lipman denied the release of “medically vulnerable” people awaiting trial inside the Shelby County jail at 201 Poplar.
Lipman’s ruling recognized persistent “grave areas of concern,” including “the lack of testing, social distancing, and isolation and quarantine measures at the Jail, not to mention the persistent failure to consider detainees’ medical conditions when making bond decisions.”
But the judge determined that the jail’s “public health lapses,” in its methods of detaining medically vulnerable detainees during the coronavirus pandemic, could be “cured” through means that would protect the rights detainees said their confinement violated.
Based on her finding that any violations of the Constitution or Americans with Disabilities Act could be remedied, Lipman declined to rule on whether detainees’ rights have been violated by the county.
“Defendants have made significant strides in its practices at the Jail,” Lipman said of Shelby County, “Yet doubts persist as to whether the conditions at the Jail are legally sufficient.”
Of particular concern, Lipman said, is the lack of consideration of detainees’ medical risks when determining bond. The judge also raised the possibility of
alternatives to pre-trial detention in the jail.
“The reasons offered for continued detention focus on repeat offenses in the past, not safety or flight risks in the present,” she wrote.
Although it remains unclear whether changes put in motion at the jail following an independent inspection will be sufficient, Lipman said, “They are significant steps in the right direction and indicate that the issue is capable of being addressed successfully.”
“We’ll continue to do whatever it takes to protect our staff and our detainee population,” said Capt. Anthony Buckner, spokesperson for the Shelby County Sheriff’s Office. According to state reports, court filings and the most recent figures SCSO has made available as of Aug. 7:
• A total of 225 detainees have tested positive for COVID-19; 3 of whom are isolated
• SCSO reported 138 total employees have tested positive; a fatality is among the 100 employee cases in the Sheriff’s Corrections division
• The current jail population is 1,904 people
• That included an estimated 300 medically vulnerable people as of the inspectors report filed June 30
• As of that date, the vast majority of people in jail, 83%, had yet to be convicted of their charges, according to a State of Tennessee report
Lipman’s ruling is among the first by a federal court judge to decide the fate of pre-trial detainees not held on immigration charges. It comes after an independent inspection of the jail and multiple attempts by the county to dismiss the detainees’ suit.
The class-action suit
All detainees over 55 and those with chronic conditions were certified as a class by Lipman after an assortment of lawyers filed the suit in May on behalf of two detainees. The American Civil Liberties Union; New York-based law firm Paul, Weis; Memphis advocacy group Just City; and local attorneys Steve Mulroy and Brice Moffatt Timmons represented the class.
Stella Yarbrough, ACLU of Tennessee staff attorney, said that although their clients’ release was denied, the ruling doesn’t change the risk they’ll continue to face. Public health officials consider jail settings “hotbeds for infection,” she said, which can readily spread into surrounding communities.
“While this decision falls short of our goal of releasing those most vulnerable to injury or death, it does acknowledge that there are still serious areas of concern within the jail and encourages the jail to continue addressing them,” Yarbrough said.
By not protecting “medically vulnerable” people from COVID-19 exposure as they await trial, the lawsuit asserts the sheriff ’s office is punishing people prior to conviction — in violation of their constitutional and federal statutory rights under the Americans with Disabilities Act.
“They cannot be housed safely at the Jail because it is impossible to practice social distancing, which is compounded by inadequate testing for COVID-19...AND because it is impossible to practice vigilant hygiene within the Jail,” the detainees’ initial petition states.
To prevent the spread of the coronavirus, the suit states that a group of quarantined detainees at one point refused to reintegrate with the general population.
“As one person in quarantined housing put it, ‘All we’re looking for is to be re-tested before we are reclassified and re-housed ... (I feel) a moral obligation not to pass the virus to anyone else,’” the suit states. The Shelby County Sheriff’s Office’s said guards used a chemical agent to force their removal.
Andrea Woods, who works with Yarbrough as an ACLU staff attorney, said the organization will continue its fight. “This ruling acknowledges the cruelty of Shelby County’s treatment of incarcerated people, and we will continue to press so such grave misconduct does not reoccur with impunity,” she said.
Regarding the range of jail practices under scrutiny, the county said its response to the pandemic is evolving.
“Our focus from Day 1 has been trying to protect our staff and detainees and we’ll just continue listening to our public health officials, locally, state and federal. And we’ll make adjustments as we are able to do so as time goes on,” said Buckner.
The duration of time in which detainees will be awaiting trial was recently made indefinite. Shelby County Criminal Court judges entered an order July 30 suspending jury trials indefinitely.
By not protecting “medically vulnerable” people from COVID-19 exposure as they await trial, the lawsuit asserts the sheriff’s office is punishing people prior to conviction — in violation of their constitutional and federal statutory rights under the Americans with Disabilities Act.
Inadequate protection
In June, court-appointed inspector Michael Brady said procedures at the jail were “inadequate to protect the vulnerable inmates.”
He submitted 11 recommendations to the court to improve social distancing among both detainees and “over familiar” jail staff he observed congregating without masks; medical isolation and quarantine procedures; and hygiene, noting a lack of cleaning in living areas, soap to which detainees are entitled provided and the need to discipline non-compliant officers.
“No jail will ever be perfect in performing its duties,” Brady wrote, “but the Shelby County jail must embrace the necessary changes to its Covid-19 response strategy or risk losing control of its jail to a plethora of class action lawsuits, restraining orders, and/or population caps.”
Social distancing ‘impossible’
Joseph Nelson and Russell Leaks are among the medically vulnerable detainees awaiting trial. Their lawyers filed sworn statements in June on their experiences.
Nelson, a 51-year-old man with diabetes and hypertension, has been locked up since November 2017, without bond, on marijuana and gun charges, according to his lawyer Wesley Dozier.
“Mr. Nelson has noticed about three or four people displaying symptoms of COVID-19 in his pod, primarily coughing, but no one has ever been removed,” Dozier wrote in his statement, which said social distancing is “impossible” in communal eating areas, at the phones and in Nelson’s pod of 22 people.
“The beds are so close that he can reach out and touch the person next to him while lying in his own bed,” Dozier said.
Nelson requested a test but did not get one and neither had anyone in his pod, Dozier said.
Russell Leaks, 65, has been held at the jail without bond since December for an alleged parole violation. He suffers from chronic liver disease and high blood pressure, according to Josh Spickler, attorney and executive director of Just City.
When he has court dates, Leaks is transferred to a cell meant to hold fewer than 20 people, according to a statement Spickler filed with the court.
“But they routinely have 50-60 people,” he said.
Present medical status to court, consider alternatives to detention, Judge says
Ahead of Lipman’s final ruling, the judge denied the jail’s motion to dismiss the suit, a move supported by Tennessee Attorney General Herbert Slatery III.
Slatery submitted a brief arguing that detainees have “state-court remedies readily available” to make claims regarding their constitutional rights and to request release.
Whether state-level options exist has “no bearing” on whether detainees are “being punished or confined unconstitutionally in violation of their federal statutory rights,” the detainees’ lawyers responded.
With their release now denied by federal court, a county agency, not previously discussed in the suit may be the means by which medically vulnerable detainees are granted relief.
In the judge’s ruling, Lipman raised the possibility of “alternatives to pretrial detention” which she said neither party addressed in the course of the case.
Shelby County’s Pre-trial Services division manages detainees deemed good candidates for release “if provided an increased level of supervision,” according to the county’s site. “These plans could entail, but are not limited to, halfway house residential placement, Global Positioning System (GPS) tracking, drug treatment, and other similar actions,” the department’s site states.
Lipman underlined the findings of Brady’s independent inspection multiple times and argued that the lack of consideration granted medically vulnerable detainees in efforts to reduce the jail population should change.
Requests for comment from a spokesperson for Shelby County Pre-trial Services and the County Attorney did not receive an immediate response Friday.
“The Jail’s own Medical Director testified that she has not made any recommendations for potential release to the expediter based on the medically-vulnerable status of any detainee because she believes all detainees ‘are well cared for,’” Lipman wrote.
“This testimony supports the Independent Inspector’s finding that ‘there is no concentrated and coordinated effort to assemble and present information to the courts regarding an inmate’s medical conditions that may make him vulnerable to serious illness or death while housed in the jail,’” she said.
Attorney Steve Mulroy who also represented the detainees in the suit, said the ruling confirmed what he considers to be the most important assertion raised. “Much more still can and should be done to eliminate unnecessary pandemic risks at the jail. We call upon the county to heed the judge’s suggestions to promptly correct the serious problems there,” he said. Micaela Watts contributed to this report.
Sarah Macaraeg is an award-winning journalist who writes investigations, features and the occasional news story for The Commercial Appeal. She can be reached at sarah.macaraeg@commercialappeal.com or on Twitter @seramak.