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Judge orders Oakland Co. Jail to submit list of inmates for release consideration

Pontiac — A federal judge is requiring the Oakland County Jail to provide a list of its medically vulnerable inmates so the court can consider their release as the coronavirus crisis continues in Michigan.

More:Judge issues restraining order against Oakland County Jail in COVID-19 suit

Judge Linda Parker's order requires the jail, within three business days, to furnish the names of such inmates, their health vulnerabilities and criminal histories.

Parker's order recognizes a "jail class" as present and future inmates, and separates them into three subclasses: people being held before trial; people who have been convicted and are serving a sentence; and the medically vulnerable, from obese inmates to those who are pregnant, elderly or suffering chronic conditions.

"The purpose of this order is to enable the court to implement a system for considering the release on bond or other alternatives to detention in the jail for each subclass member," the order reads.

The court will review the list and provide the sheriff's office with a schedule for offering the sheriff's position on whether a person should be released on bond; an explanation why not, if the answer is no; and on what conditions it believes release should be granted, if the answer is yes. 

The court will determine if someone should be released, and on what terms. 

"In extraordinary cases like this, federal judges have the authority to release detainees on bail while their habeas petitions are pending," Parker's order read.

Beyond that, within three business days the jail must provide the court and the plaintiffs in the suit "a detailed plan to continue testing all inmates for COVID19, prioritizing members of the medically vulnerable subclass, as well as a plan to test all individuals (i) who have access to the housing units or (ii) interact with inmates or individuals who have access to the housing units."

The jail began testing in late-March, and through May 1 it was reserved for people who showed symptoms, according to the opinion. After a batch of 1,000 tests arrived May 1, the jail tested more than 350 people in the first week. Now the jail must make a plan to test all inmates.

Steven M. Potter, an attorney for the jail, said the county filed an appeal of the ruling Thursday with the 6th Circuit Court of Appeals in Cincinnati and requested a stay on the release of any inmates. 

While Parker's opinion dismisses Sheriff Michael Bouchard and jail Capt. Curtis Childs from the case, the law enforcement community is gravely concerned by her decision, according to a statement from Bouchard's office.

"The potential effect of ... Judge Parker’s Opinion infers all medically vulnerable inmates currently incarcerated in any jail or prison in the United States must either be placed in home confinement or released, irrespective of the inmate’s violent history and irrespective of the proactive response efforts taken by the facility," the statement reads.

Attorneys for the inmates said they were pleased with the ruling.

Cary McGehee, a partner at Royal Oak-based Pitt McGehee Palmer Bonnanni and Rivers law firm, said the order was "very thoughtful," adding that the ruling "recognized the unique needs of the medically-vulnerable inmates and the inadequacy of the Oakland County Jail's policies to protect them from being infected with the COVID-19 virus."

She said at least 200 inmates at the jail are medically vulnerable. As of Thursday, the Oakland County Jail population was 630 inmates, 29 of whom are scheduled to be transferred to state prisons. A total of six inmates have tested positive for COVID19.

"(Parker) got it right, and it's an excellent model for courts all over the country to follow," McGeheee said. 

“This is a huge deal, not only for families that will soon welcome home their loved ones, but for all those fighting around the country for our medically vulnerable community members who are in jails and need to be in a safe environment to social distance,” said Krithika Santhanam, an attorney with the Advancement Project.

Undersheriff Mike McCabe told The News previously that the jail was already doing much of what has been ordered by the court, in terms of keeping the facility clean, and that soap and water be provided regularly. 

There have been similar orders issued previously in the case, but the updated list, released Thursday, includes a requirement that masks be provided all inmates and staff. If the masks are cloth, they must be washed regularly, and "users must be instructed on how to use the mask and the reasons for its use."

Masks have been provided at the jail since April, according to Parker's 71-page opinion. But now the jail is required to provide them.

For the remainder of the pandemic, the jail cannot charge people co-pays for medical care.

And within five days, the jail must "establish and put into effect a policy suspending, to the extent possible, the use of multi-person cells" with more than two inmates, with few exceptions.

"If dormitory-style housing must be utilized, those areas shall be reconfigured to allow six feet between inmate beds to the maximum extent possible," the order reads. 

Parker's opinion notes that the main Oakland County Jail facility has six holding tanks, which can hold between 13 and 37 inmates each, and "several" blocks that hold between eight and 10 inmates.

"In some housing areas, inmates sleep a foot apart or less and, in others, inmates may have to sleep side-by-side in the middle of the floor," the opinion reads. "Some bunks adjoin toilets ... Toilets have no lids and fecal matter can disperse when toilets are flushed."

The communal nature of the jail setting, activists and experts have said, is a bad match for a virus that feeds on crowds packed into tight, communal spaces. There is limited opportunity for social distancing in the jail setting. Even the part of Parker's order requiring that "adequate space" be provided for social distancing only requires it "to the maximum extent possible."

More:Jail populations plunge in Metro Detroit as coronavirus spreads

The terms of Parker's order are in effect for 45 days, at which point they will be reviewed and a determination made on whether to extend them.

The jail has defended the cleanliness of the facility and pushed back against allegations it is unsafe.

More:Oakland County Jail details efforts to address COVID-19

Parker wrote, near the end of her opinion, that "in this case, plaintiffs have shown a substantial likelihood that defendants are being deliberately indifferent to the risk that COVID-19 poses to jail inmates, particularly medically vulnerable inmates. Without injunctive relief, plaintiffs will suffer immediate irreparable injury for which there is no adequate remedy at law, in that they will face a high risk of serious illness or death from exposure to coronavirus."

In its statement, the sheriff's office expressed concern that Parker's ruling "could prohibit the incarceration of any new arrestee, regardless of their crime, simply because they may be classified as medically vulnerable."

The statement also said, "Significantly, Judge Parker’s decision is contrary to every reported case across the country which has dealt with the prisoner release issue related to the COVID-19 pandemic."

The statement said Parker’s decision "fails to disclose that as of today, the Jail has only six inmates who are currently positive for COVID-19. This reduction has occurred as a direct result of the Oakland County Jail’s response to the COVID-19 pandemic. Those six inmates remain in quarantine. Additionally, no inmate at the Oakland County Jail has required hospitalization nor died because of COVID-19."

Bouchard's office has sent several lists of nonviolent and medically vulnerable inmates to the courts for review. It has not recommended the release of anyone who has a violent criminal history.

jdickson@detroitnews.com

Twitter: @downi75