What the woman we’ll call Maria most wants people to know is how very thankful she is, first to God, and then to all the people who worked to get her out of the Calhoun County Jail. Once that gratitude is expressed, though, the message she wants to send is one of alarm over the threat asylum seekers like her endure in county jails during a deadly pandemic. 

We’re not using Maria’s real name because she fears harsh reprisal from the Cuban government if her bid for asylum fails and she is forced to return to the country she fled last year. Her hope was to be reunited with her husband, who left Cuba in 2017 after government agents beat him and threatened to jail his entire family. Illness prevented Maria from leaving with him.  

Although health problems still plagued her, she finally summoned the strength to make the journey last year, traveling through Nicaragua, Honduras, Guatemala and then Mexico, where she crossed the border into Texas, where she hoped to be reunited with her husband. 

Once in the U.S., in accordance with the law, she told immigration officials that she was seeking asylum because of the threat to her safety if she remained in Cuba. Unfortunately for her, she sought refuge in America at a time when the presidency is in the hands of a man who has shown little regard for the law. Instead of being allowed to remain free while her asylum request worked its way through the legal process, Maria was taken into custody by U.S. Immigration and Customs Enforcement (ICE) and shipped to Michigan’s Calhoun County Correctional facility. 

Her situation, sadly, is far from unique. 

“The administration’s detention of asylum seekers is not only cruel and wasteful,” Michael Tan, senior staff attorney for the ACLU Immigrants’ Rights Project, wrote in a 2018 blog. “It violates the Constitution, breaks U.S. immigration laws and international law, and goes against the Department of Homeland Security’s written policy.” 

The arbitrary imprisonment of people like Maria is part of what Mr. Tan described as the “administration’s larger strategy of deterring immigrants from seeking refuge in the U.S. even though our laws permit them to. This same cruel and abusive deterrence strategy underlies tactics like brutally separating parents from their children…” 

Wrong under any circumstances, the unwarranted and illegal incarceration of asylum seekers like Maria was particularly cruel at a time when COVID-19 continues to wreak havoc and take lives. 

Now free with the help of lawyers from the ACLU of Michigan, the law firm Paul Weiss, the Michigan Immigrant Rights Center and others, Maria is living with family in Florida. She is still fighting a legal battle to remain in the U.S., but is grateful that she is no longer sitting in jail, fearful she might be facing a death sentence as the result of being locked up during the pandemic.  

Speaking by phone through an interpreter, Maria described the horrid conditions she experienced while being held for nearly 10 months in the Calhoun County jail, where more than 100 other immigrants are still locked up. 

“It is a horrible place,” she says. “No one seeking asylum should be treated so unjustly.” 

Maria reports that correctional staff did not wear masks or gloves, nor were detained individuals given access to masks or gloves. Soap was not consistently provided, so those detained sometimes needed to buy their own.  

Others in detention appeared to be ill. And the only information she received about COVID-19 was a single presentation by a nurse. However, the nurse presented in English and Maria speaks and understands only Spanish.  

No one in Calhoun can practice social distancing, says Maria, who shared a cell with five others. As a result, she was unable to maintain the six feet of distance between herself and others that the Center for Disease Control recommends. Different cellmates came and went frequently, greatly increasing the possibility that she would be infected by COVID-19.  

All of this created great duress because Maria suffers from a variety of medical problems. Prior to entering the United States, she had twice been admitted to a hospital intensive care unit due to acute pancreatitis and has suffered from kidney infections. She has also undergone both an appendectomy and gallbladder removal. She continues to suffer from hypertension, chronic gastritis, and a peptic ulcer.  

She takes daily medication for all these conditions. Although she had her blood pressure checked while in custody, the nurse doing the reading did not communicate the results. Maria says that either she was told her results in English or was not told at all.  

There is tragic irony to the fact that Maria fled Cuba in part because she feared being jailed, only to be jailed in the country she came to hoping to find sanctuary. 

“People trying to escape persecution and discrimination have a right to asylum,” she says. “They shouldn’t end up in jail when all they are trying to do is come to a country where they hope to find liberty and freedom.” 

The flip side of that, she said, is the kindness and generosity shown her when a judge ordered her release in May, just weeks after the first COVID-19 case was detected at the Calhoun County Jail. 

As a condition of her release, Maria was ordered to spend 14 days in quarantine once she was let out. But with no money or family in Michigan to rely on, she found the help she needed in the kindness of strangers who paid for her to stay in an Ann Arbor hotel as well as providing food and clothing. 

“People in that community provided me with so much help and hospitality,” she says. “I am so very, very thankful.” 

Her concerns now are twofold. One is her ongoing legal fight to remain in the United States. The other is for the immigrants who are still locked up, their lives still in danger. 

“People on the outside need to know how terrible things are on the inside,” she says when asked why she is willing to speak out about her experiences in the Calhoun County Jail. 

She is not alone in harboring that concern.  

"COVID-19 does not respect prison walls. The raging global pandemic outside of Calhoun County Correctional Facility and a confirmed case within the facility pose a serious risk to those inside," U.S. District Judge Judith E. Levy wrote in a May order that resulted in the release of two other immigrants from the facility. 

It is not only the Calhoun jail that is of concern. 

"The number of COVID-19 cases in detention facilities nationwide further highlights the stark reality that communal confinement, even with the precautions defendants have employed, creates a significant risk of COVID-19 infection," Levy wrote. 

As Eunice Cho, senior staff attorney for the ACLU’s National Prison Project, in a May article about the case in the Detroit Free Press urged: "Civil immigration detention should not be a death sentence.” 

Recognizing the extraordinary circumstances created by the COVID-19 crisis, U.S. District Judge Judith E. Levy, in response to a class action lawsuit brought by the ACLU of Michigan, issued an order in early August requiring that all medically vulnerable noncitizens detained by ICE at the Calhoun County Correctional Facility have the opportunity to request bail. 

As for Maria, the fear of deportation back to a country she fled in fear remains. She is greatly relieved to be free and overjoyed to finally reunited with her husband as they keep fighting to remain in America. But that relief and joy are tempered by the knowledge that others like her remain imprisoned as the pandemic continues taking its deadly toll. 

“I am fortunate and very grateful to be out of jail,” she says. “But I am very worried about the people who remain locked up.” 

For nearly two years, I served as a public defender in Berrien County, representing poor people accused of committing crimes. It was a job that brought me into daily contact with the racism that exists within the criminal legal system here and the human toll it takes. 

I say this all in the past tense because I recently resigned to return to the West Coast, where my wife is starting a new job and I have family. As I wrapped up my case load and packed for the move, a global pandemic continued its spread and protestors worldwide poured into the streets demanding racial justice in the wake of George Floyd’s brutal killing, and all that it has come to represent.  

It has been said that we are facing two pandemics: COVID-19 and the virulent racism that has been a part of America since its founding. I’m also not the first to note that one is bringing into high relief the other. Usually, though, that is in reference to the rate at which Black people are contracting and dying from the coronavirus. There are other ways, however, that COVID-19 is exposing racism.  

As a case in point, I recently looked at publicly available Berrien County Jail records to compare pre-pandemic numbers to May’s. The encouraging news is that incarceration is way down. Whether through deliberate efforts by the courts and sheriff, or simply a slowdown in arrests during a pandemic, Berrien County’s jail population fell by 50 percent since March.  

But the numbers regarding race are shocking. 

Even before the COVID-19 outbreak, Black people here were being disproportionately locked up at an alarming rate. In a county that is 14 percent Black, the jail population was more than 30 percent Black.

In May that number hit 55 percent. 

The data available to me didn’t reveal exactly why the percentage of Black people in the Berrien County Jail has reached a point of such indefensible disparity. There are a lot of factors involved. But based on my experience, which comports with what study after study shows is the case nationally, from the people being arrested, to the bail amounts being set, to the sentences judges hand down, Black people always fare far worse than their white counterparts.  

The bottom line is that, whatever the specific reasons are, the racism that plagues our criminal legal system is once again being revealed: as the jail population decreases, it is disproportionately white people going free, causing the already high percentage of Black people to skyrocket as they remain caged. 

I can also tell you this from experience: Some number of people still locked up and facing the possibility of a COVID-19 death sentence as a result, are there only because they are too poor to buy their way out —in some cases unable to come up with even a few hundred dollars to avoid being locked up until they are able to have their day in court.  

And if they can come up with the cash needed to get released on bail, they can’t afford the cost of the electronic monitors they are often required to use as a condition of release. The charge for these “tethers” ranges from $90 to nearly $150 a week, plus fees. Paying that much is impossible when your income is $400 a week or less, which is the case for almost all of my clients.   

They are people caught up in a system rife with racism and the injustice it generates, a system that reflects the differences that often exist between white and Black America. Here in Berrien County, we have a graphic example of that in the form of the two cities existing side-by-side, divided by the St. Joseph River as it flows into Lake Michigan. 

There is St. Joseph, which has a population 8,300 and is 85 percent white. With a median household income just above $60,000, fewer than 8 percent of the residents live below the poverty line. In Benton Harbor, which has a population of about 9,900, about 87 percent of the residents are Black. Their median household income is about $20,000, with more than 45 percent living in poverty.  

Let that last statistic sink in: Two similarly sized cities, adjacent to each other, on the shores of Lake Michigan, and in one the poverty rate is nearly six times higher than the other, with the only difference being the skin color of the residents.  

Given that level of poverty, is it any wonder that a vastly disproportionate number of Black people are sitting in jail because they are too poor to afford even small amounts of bail or the cost of a tether?  

Simply put, we have a criminal system that punishes people for being poor, especially if you are a person of color. The good news is that momentum to make fundamental, far-reaching changes to that system is building. In this state, a report from the Michigan Task Force on Jail and Pretrial Incarceration has provided a solid platform that should serve as a launch pad for major reforms.  

That Task Force—a diverse, nonpartisan group that included law enforcement, prosecutors, and judges as well as criminal defense attorneys and victims’ advocates—recommended changes that, if adopted, would go a long way toward keeping the people I represented in Berrien County out of jail.  

The task force highlighted the need to overhaul the current bail system, recommending that “all defendants shall be released on personal recognizance or unsecured bond … unless the court makes an individualized determination that the person poses a significant articulable risk of nonappearance, absconding, or causing bodily harm to another reasonably identifiable person or themselves.”  

The ultimate goal, according to the report, should be transitioning “to a pure detention-and-release system, similar to policy frameworks in New Jersey, New Mexico, the District of Columbia and the federal system, in which money bail may not be used to detain a person pretrial.”  

Mirroring what I saw during my time in Berrien County, the Task Force also found that many jurisdictions in Michigan “routinely impose requirements such as in-person check-ins, drug testing, electronic monitoring, and participation in programs and counseling, as standard conditions of pretrial release.”  

Because of the unfair burden such conditions place on poor people, the Task Force recommended requiring the government “to bear the costs of non-financial conditions of release ordered for indigent defendants and prohibiting detention due to a defendant’s inability to pay for release conditions” such as electronic monitoring and treatment programs.   

With the Michigan Legislature currently considering implementing these and other changes urged by the Task Force, reflected in 17 bills that were recently introduced, it is time for all of us to begin applying the political pressure necessary to ensure these bills become laws.   

These and other measures are just a start, but they are a good and necessary start. It is what we have to do if we are ever going to begin living up to the ideal of an America that truly provides justice for all.