COVID-19 Summary: This entry has two parts. First, it describes litigation dating from the 1970s in which Wayne County Jail detainees sought better living conditions. Second, it describes how that historical case became a vehicle to require the Jail to combat the spread of COVID-19 in the Jail. So far, the detainees have secured amendments to the longstanding consent decree that require the Jail to combat COVID-19, but the detainees' efforts to obtain a temporary restraining order as well have failed.

The Historical Case

This case arose amid a backdrop of increasing public opposition to poor conditions at the Wayne County Jail. In the 1960s, Detroit implemented tough-on-crime measures including a stop-and-frisk ordinance and aggressive enforcement of loitering and disorderly conduct laws. Around the same time, local judges began to set drastically higher bail rates. For example, the Detroit Traffic Court raised bail for speeding from $35 in March 1970 to $333 in November 1971. As a result, the Wayne County Jail's population skyrocketed from an average of 555 per day in 1955 to about 1,129 per day in 1967, most of whom were detained because they could not afford bail. Conditions deteriorated sharply. A 1968 report from the National Council on Crime and Delinquency documented inhumane conditions that harmed detainees' physical and mental health, and local newspapers began to organize opposition to poor conditions in the Jail. For example, the Inner-City Voice compared the Jail's cells to "tiger cages" used to hold prisoners in the Vietnam War. Eventually, detainees turned to the courts. For more information on the facts leading to and informing the litigation, see here.

In 1971, detainees in the Wayne County Jail filed this class action lawsuit in the Wayne County Circuit Court under 42 U.S.C. § 1983 against the Wayne County Sheriff. Represented by Legal Services of Michigan, the plaintiffs alleged violations of the U.S. Constitution and the Michigan Constitution, as well as state law. Specifically, the plaintiffs alleged overcrowded, unsanitary, and unsafe cell conditions, improper isolation cells, insufficient mental health wards, a lack of due process in jail discipline, especially when sending detainees to maximum security areas, a lack of recreational, educational, and training facilities, poor medical facilities and care, inadequate food services, and unconstitutional censorship. They also alleged that the Jail's failure to comply with Michigan building code, safety, and sanitation laws violated their substantive due process rights. The plaintiffs sought relief on behalf of a class of all those who had been, were, or would be detained in the Wayne County Jail.

The plaintiffs pointed to specific examples to illustrate the Jail's poor conditions. These included:

• A pregnant detainee suffering from shotgun wounds was assigned a top bunk that she could not safely climb to, denied medical treatment when she fell, confined in a "hole" with no mattress, blanket, or water as punishment for setting a fire, and given only tranquilizers after she miscarried in the hole; and
• A detainee with a prosthetic leg that broke was denied medical attention and forced to repair it herself.

The defendants, while not disputing the trial court's findings, argued that the trial court had exceeded its authority because the order violated the principle of the separation of powers. In 1974, the Michigan Supreme Court (Justice Thomas G. Kavanagh) found that the trial court was authorized to enact such a specific order once it had been shown that the defendants had failed to meet their statutory duties. The court also held that the appointment of a monitor and the court's sua sponte joinder of additional defendants were appropriate. 216 N.W.2d 910.

In 1988, after 15 years of monitoring and noncompliance, the Wayne County Circuit Court appointed the Wayne County Executive as the receiver of the jail, removing the Sheriff's control. The Sheriff moved for disqualification of the judge and the entire Wayne County Circuit Court bench, but that motion was denied. The Sheriff appealed.

On July 26, 1989, the Michigan Court of Appeals (Judge Walter Cynar) found that the Circuit Court had the authority to appoint a receiver, that such appointment was appropriate, and that the judges did not err by not disqualifying themselves. 444 N.W.2d 549.

Eventually, the County addressed some of the overcrowding problems by opening a new jail. By 1991, the jail population had risen to 1,800 even though Detroit's population had fallen by 500,000 since the lawsuit began. But conditions remained poor. In 2015, the Sheriff acknowledged that the County had stopped performing maintenance on the jail in 2011, and eight detainees committed suicide over a 13-month period between 2016 and 2017.

COVID Litigation

On May 4, 2020 six detainees in the Wayne County Jail filed a new class-action lawsuit in the U.S. District Court for the Eastern District of Michigan, found here in the Clearinghouse. They alleged that their continued confinement in the Jail exposed them to a serious risk of contracting COVID-19 in violation of their Eighth and Fourteenth Amendment rights. They sought a TRO, injunctive relief, and a writ of habeas corpus requiring the defendants to immediately release or transfer to home confinement all medically vulnerable detainees. The federal court suggested that the parties discuss whether relief could be sought in this state court litigation, since the defendants were already parties to the consent decree in this case. That led the parties to shift their litigation focus to this case; the federal case was stayed.

On May 28, 2020, the plaintiffs filed a motion for a temporary restraining order (TRO) and preliminary injunction. They alleged that, as of May 11, 25% of the detainees were either infected or had previously been infected with the virus, and that the Wayne County Jail continually failed to mitigate the spread of COVID-19. Specifically, they stated that conditions such as double-bunking, lack of quarantine for sick individuals, insufficient protective equipment, lack of access to medical care, and failure to facilitate social distancing led to high infection rates.

The defendants responded by stating that they had taken measures to mitigate the spread of COVID-19, including reducing the Jail's population from 1,411 to 779, a 44.79% reduction, between March and June 2020.

On May 15, 2020 the court entered a stipulated temporary (30-day) amendment to the July 20, 2018 consent order that required all detainees to be tested for COVID-19.

Then on May 18, 2020, the court entered a second stipulated amendment that required the defendants to:

• Have the Jail inspected to evaluate its COVID-19 response;
• Ensure that all detainees received soap, hand towels, and disinfectant free of charge;
• Provide access to showers;
• Ensure jail staff wear personal protective equipment and wash their hands or use hand sanitizer before touching any person or surface in the jail;
• Make COVID-19 testing available to all detainees displaying symptoms or who are known to have been in proximity with someone who had COVID-19;
• Provide adequate spacing to allow for social distancing; and
• Quarantine those with COVID-19 symptoms.

The court entered an order on June 17, 2020 that extended the stipulated temporary amendment provisions until September 30, 2020.

On June 19, 2020, the court denied the plaintiffs' motion for a TRO and preliminary injunction. The court (Chief Judge Timothy M. Kenny) found that the plaintiffs were unlikely to succeed on the merits of their constitutional claims because the jail had significantly reduced its population and its COVID policies were reasonable.

The plaintiffs sought an immediate appeal to the Michigan Supreme Court with the support of several amici (criminal justice organizations in Michigan and infectious disease and correctional health experts). But on July 15, 2020, the Supreme Court denied a "bypass" (an immediate appeal). The Michigan Court of Appeals then denied the plaintiffs' application for leave to appeal on July 24. The plaintiffs appealed yet again to the Michigan Supreme Court, which denied their application to appeal on August 28. Justice Megan K. Cavanagh (joined by Chief Justice Bridget M. McCormack) noted in a concurrence that the the trial court had already incorporated COVID-mitigation measures into the consent decree and explained that filing a show-cause motion in the circuit court was the proper way to remedy violations of a consent decree. 947 N.W.2d 431.

The case is ongoing as of October 2020.