The American Civil Liberties Union of Illinois has filed a lawsuit on behalf of two men held in ICE custody at the McHenry County Jail seeking their immediate, temporary release because of what they say is a threat to their health and lives posed by conditions in the jail that promote the spread of COVID-19.
The lawsuit was filed Friday in federal district court by the ACLU of Illinois, American Civil Liberties Union and Faegre Drinker Biddle and Reath LLP on behalf of Souleymane Dembele and Muhammad Taufiq Butt, against U.S. Immigration and Customs Enforcement and McHenry County officials.
McHenry County Sheriff Bill Prim and Dan Sitkie, chief of corrections at the McHenry County Jail in Woodstock, are both named in the lawsuit.
Through an agreement with the U.S. Marshals Service, McHenry County earns $95 a day for each ICE detainee housed at the jail.
Sgt. Aimee Knop, spokeswoman for the McHenry County Sheriff’s Office, said it had not seen the lawsuit and cannot comment on it at this time. Sitkie could not be reached for comment.
Nusrat Choudhury, legal director for ACLU Illinois, said both plaintiffs in the case are being held on alleged civil immigration violations.
A temporary release would let them protect themselves, by allowing them to live at home during the COVID-19 pandemic, just as everyone else is, Choudhury said, while immigration courts process their cases.
“At this point, immigration courts are, like other public entities, slowing down; they’re not able to do as much during the COVID-19 crisis, and it could take a long time for the immigration courts to rule,” Choudhury said.
The plaintiffs in this case have no criminal history, Choudhury said, adding that there would be “absolutely no threat to the public” if they were temporarily released.
“There’s nothing to indicate that they wouldn’t appear for immigration court proceedings necessary or even for their eventual deportation,” Choudhury said. “They have cooperated with immigration officials throughout their entire lives in the United States.”
Dembele has lived in the U.S. for almost a decade. The ACLU of Illinois said he “lives in fear for his life” while being detained on civil immigration charges at the McHenry County Correctional Facility.
Dembele, in a statement, called being in the jail during the COVID-19 crisis “a nightmare.”
“I have not been able to sleep or care for myself because I am constantly afraid of being exposed to the virus,” Dembele said. “The conditions are not sanitary, and more than 60 people are regularly crammed into a common area, sharing tables and chairs. There is truly no social distancing.”
Both Dembele and Butt have diabetes, hypertension and hyperlipidemia. Butt is 65 years old. According to the lawsuit, those who are more than
50 years old, or who have pre-existing health and medical conditions, are at the highest risk of serious illness and death from COVID-19.
Dembele said the jail offers little guidance and help about how to avoid infection.
“It also is troubling that we are not being provided with appropriate information or equipment about how to protect ourselves from infection. We are not provided masks or gloves, even though we are not able to engage in social distancing,” Dembele said. “No one should be forced to live like this.”
The lawsuit claims that the McHenry County Jail is not following the Centers for Disease Control and Prevention’s guidance concerning social distancing in detention facilities.
As previously reported in the Northwest Herald, corrections officers have echoed these concerns, saying that not enough sanitation is going on inside the jail, there is little screening of new inmates who come in and social distancing guidelines are not being followed.
In the lawsuit, petitioners said they are in “crowded pods,” and use the same tables and equipment as dozens of other detainees. They say they must stand in line, close to other people, to get food and medicine. In addition, they said that high-touch surfaces such as cells and common spaces, “are not sanitized or replaced routinely.”
“They eat sitting right next to other detainees during meals served in unsanitary conditions. Petitioners sleep in bunkbeds in cells that are so small that they can touch their cellmate’s beds while lying on their own and must get close to their cellmates when walking to the toilet or sink or when entering or leaving the cell,” according to the lawsuit.
Butt shares what, according to the lawsuit, is a “tiny cell” with a man who coughs all night.
“Petitioners’ experts testify that the conditions greatly heighten likelihood of contagion, putting petitioners at grave risk of serious illness and death,” according to the lawsuit. “The only viable public health strategy available, given the lack of a vaccine for prevention or effective treatment at this stage of the pandemic, is to release individuals who can be considered at high risk of severe disease if infected with COVID-19.”
At one point, according to the lawsuit, Dembele and his roommate were forced to spend the night in a “filthy” cell, with no opportunity to clean it until morning, while they were being transferred to a new pod.
“The most Mr. Dembele could do was wet some toilet paper to wipe his mattress before putting the blanket down,” according to the lawsuit.
Food preparation and service are handled without a screening protocol to make sure that people who serve meals and clean the area are not sick or symptomatic, and are wearing appropriate personal protective equipment to ensure they do not transmit infection, according to the lawsuit.
Citing the four confirmed cases of COVID-19 at the Pulaski County Detention Center in Ullin, which also houses ICE detainees, the lawsuit says it is only a matter of time before there are cases of COVID-19 in the McHenry County Jail as well.
“The problem here is that the conditions in the McHenry County Jail make it impossible for people to protect themselves, including the medically vulnerable people ... they are at serious risk of death or significant illness if they get infected,” Choudhury said. “The federal court could set a temporary release timeline that makes sense in light of the developing information about COVID and the ability or inability to protect people.”
A spokesman for the McHenry County Sheriff’s Office has previously said that the office has taken precautions, such as cleaning surfaces more often than normal, and that social distancing is being practiced as much as possible in the jail.
McHenry County jail has policies and procedures in place developed with the help of the McHenry County Department of Health, its accreditation partners, the CDC, the jail’s medical staff, the Illinois Sheriff’s Association and others, the spokesman told the Northwest Herald via email.
These issues have not just popped up in McHenry County.
“This is a nationwide problem,” Choudhury said. “Detention facilities are not protecting people.”
Courts around the country, such as in Michigan, New Jersey and California, have released medically vulnerable people from detention, Choudhury said.
Included in Friday’s filing is a declaration from Dr. Homer Venters, talking about the health risks and the fact that prior medical conditions place people at risk of serious illness or death from COVID-19.
The national American Civil Liberties Union wrote a letter to the U.S. Department of Homeland Security on April 3 asking them to temporarily suspend ICE civil immigration enforcement activities. In the letter, they also asked for the release of all people currently in ICE custody for the duration of the COVID-19 pandemic.
“These steps are necessary to ensure that individuals are not afraid to access testing and care, to reduce the spread of COVID-19, and to save lives – protecting staff and officers, their communities, detained people, and the general public,” the ACLU wrote. “Based upon the rapid spread of – and increasing fatalities from – COVID-19, all government agencies, including ICE, must take vital steps to combat the pandemic and save lives.”