Brandi Jefferson calls her brother and daughter every day from Broward County Jail in Fort Lauderdale, Florida, where she's been held since March 2020. As her 16-year-old daughter's primary caretaker, Jefferson worries about their long separation and asks how she’s doing while living with extended family. It had been just the two of them for a while, and she’s concerned with missing so many moments, including two of her daughter’s birthdays, amid a global health crisis.
Jefferson, 37, also asks her brother about how the wider world is responding to the pandemic that unfolded while she was in a cell, as she lives in constant fear of getting sick within the close confines of jail. She explained that she keeps meeting symptomatic people new to the jail, and she’s afraid to just assume they just have a cold. Every cough is cause for worry because she has no room to distance herself from the new, potentially sick incarcerated people. And without access to regular Covid-19 testing, she started making extra masks out of socks or scraps of cloth to protect herself.
"When a new person comes in, I ask the guards, 'When are we going to get tested? When are we going to get tested?'" Jefferson said. "And they say, 'Wednesday,' then they say they're going to push it to Thursday."
Jefferson said she has only been tested twice in about 18 months of incarceration.
Enclosed spaces and a transient population of incarcerated people and guards make jails particularly susceptible to Covid-19 spread, a virus transmitted through air particles.
Broward County Jail's positive Covid-19 cases soared as the more contagious delta variant continued to spread, going from one positive case in July to 129 in September while the facility struggled to comply with Covid-19 testing requirements — a problem since the beginning of the pandemic.
The American Civil Liberties Union, the ACLU of Florida and Disability Rights Florida sued the Broward County Sheriff's Office in June 2020, alleging conditions that could contribute to the spread of Covid-19, including a lack of comprehensive testing for those who enter the jail and those already in the jail.
“They're not doing comprehensive testing at the jail when that's really the only way to know who's coming into the facility with Covid, and that's the only way to treat people appropriately medically,” said Nancy Rosenbloom, a senior litigation adviser at the ACLU. “It's impossible to do social distancing and all the other things in a crowded building where people aren't allowed to leave.”
The class of incarcerated people and the Broward sheriff's office reached a settlement agreement in November, and a federal court approved it in May. The settlement included directives on testing incarcerated people at intake and quarantining people who test positive.
But the jail did not initially follow the conditions of the settlement, the ACLU said. According to data Broward County Jail sent the ACLU, during one week in August, the jail only tested 173 of the 499 people who had entered the facility, or roughly 34 percent.
A representative of the Broward sheriff’s office said the jail “is meeting or exceeding its obligations under the settlement agreement and was doing so even prior to the filing of the lawsuit." But data from the jail, sent to the ACLU as a condition of the settlement, shows it only recently started performing more comprehensive intake testing. A court hearing to enforce the settlement conditions has been set for Oct. 21.
Rosenbloom's co-counsel Benjamin Stevenson, a lawyer with ACLU of Florida, said the upcoming hearing is necessary despite recent testing efforts at intake because the response to the pandemic should have been immediate and ongoing.
"The Covid pandemic has affected us all, and we all try to take necessary steps to mitigate the spread, and unfortunately for people who are in jail or prison, they have to rely on their wardens, their custodians, to provide that care and access," Stevenson said.
Being at the mercy of someone else for protection and health care access has been an ongoing battle for Strajah Hightower, who said it took more than seven days to get a Covid-19 test when a woman in the cell next to hers tested positive for the virus.
"We all use the same bathroom; we all use the same shower," Hightower said. "So basically, we come in contact with that person that has Covid."
Hightower, 26, has been in Broward County Jail since November 2018, awaiting trial. Like Jefferson, she has experienced the pandemic within the walls of Broward County Jail with limited power over how safe she is.
She said waiting for a Covid-19 test for more than seven days after exposure led to bouts of anxiety and panic. Hightower would ask the guards repeatedly for a test and to perhaps quarantine her, and she said they would tell her it would happen soon. But she said she fears that seven days without a test and being in contact with people in close quarters was too long to risk.
"It's really a doomsday scenario when you introduce the delta variant and start a chain of spread," said Dr. Alan Bulbin, director of infectious diseases at New York's St. Francis Hospital.
Even though jails have long been recognized as "hotbeds of infection," there is little recourse when it comes to protecting incarcerated people from illness, said Aaron Littman, a clinical teaching fellow at UCLA School of Law and the deputy director of UCLA's Covid Behind Bars Data Project.
There have been concerns about flu outbreaks and the spread of other diseases before Covid-19, but most jails are county-run and health care protocols vary widely with limited state regulation. As a result, jails are often unregulated in health care protocol, resulting in delayed testing and other measures.
As the Broward sheriff's office and the ACLU prepare for their Oct. 21 court date, Littman, who has been looking into Covid-19 jail and prison deaths, emphasized that Broward County Jail is not unique. What is notable is bringing this county jail, regulated by itself, to a place where the public and the court can see the impact of struggling to test within the jail.
"We really don't know a lot about what's happening in jails in general because they're all their own little fiefdom," Littman said. "These are places where we just don't really know much of anything about, other than potentially through litigation."