Nearly two dozen inmates and three staff members at the Cumberland County Jail are infected with COVID-19 in the second wave of an outbreak at the jail that began in September.

Sheriff Kevin Joyce said 22 inmates had active infections as of Monday and 43 others have recovered from the disease.

The staff members who tested positive were not tested at the jail and are staying home while they recover, Joyce wrote in an email.

Regular testing of staff and inmates will continue, he wrote.

Joyce also addressed an unusual liability waiver recently presented to some inmates that he said was not authorized by his office and has since been rescinded.

The waiver asked inmates to sign that they voluntarily chose to be housed among COVID-positive inmates and voluntarily accepted the associated risks, releasing the county from responsibility for “any issues, past, present or future that may result from this decision.”

It also asked inmates with work responsibilities, who are known as trustees, to sign that they released the county and the jail from liability from any risks associated with performing assigned duties such as landscaping, cleaning and kitchen work. That portion of the document did not mention COVID-19.

In a Nov. 22 email, Joyce said the waiver, which was printed on Cumberland County Sheriff’s Office letterhead, was “a document that a well-intentioned corrections officer and a midlevel commander thought was appropriate for inmates who refused to move to another cell or pod when we experienced a COVID outbreak that occurred in a particular pod.”

After the first positive cases of the recent surge in November, Joyce said, staff separated those who tested positive from those who tested negative. He did not say whether anyone refused to move to a new cell at that time.

“All inmates who tested negative were moved to a new pod that was opened to house them, as they are considered close contact with known positives,” Joyce wrote before Thanksgiving.

In a response to follow-up questions on Tuesday, Joyce gave a different rationale for the waiver:

“Our Inmate Trustee Coordinator was concerned about negligent transmission among the inmate trustees who were going to be working throughout the jail and likely inside of some of the pods that were considered COVID hotspots.”

The 42 inmates who were presented with the document were all trustees, Joyce said in the second message. Only one, David Phillips, refused to sign the waiver. Phillips was briefly denied work privileges but did not lose good time or other privileges as he had alleged, Joyce said. No one lost pay or good time, he said, referring to the program by which good behavior can shave days off an inmate’s sentence.

The jail’s administrator later met with the inmates who signed the waiver and explained it was void, the sheriff said. He did not answer questions about his differing explanations, saying he had been “very clear” about the issue, and he did not respond to further questions.

Saying that the issue is now a personnel matter, Joyce would not identify the waiver’s author or confirm if someone had approved it. But the document bears the name of Mark Renna, with the title of facilitator.

Joyce said he is reviewing procedures inside the jail to ensure such errors do not reoccur, as well as reviewing best practices for inmate-workers.

“The inmates cannot take on liability that ultimately is the responsibility of the Sheriff and Cumberland County, due to their incarceration,” Joyce wrote in a response to questions. “None of the inmates lost good time or pay as a result of the document.”

Tina Nadeau, executive director of the Maine Association of Criminal Defense Attorneys, said she was relieved to hear that the sheriff had walked back the waiver, which she called unenforceable and appalling.

“The jail has an obligation to provide for the health and safety of every person in their custody, and they cannot wriggle out of that,” said Nadeau, who has been advocating  for a broad reduction in the jail population during the pandemic and has argued for reforms to Maine’s bail code to keep more pre-trial defendants free while they await court dates.

The most recent outbreak at the jail began in September. In October, longstanding staff shortages collided with a string of absences of short-term corrections officers, all but crippling the facility’s ability to operate and nearly shutting it down. The county declared a state of emergency and the jail stopped taking in people who were arrested. But the jail reopened in the third week of October after the staffing situation stabilized.

During the state of emergency, some inmates were locked down for 23 hours a day in conditions akin to solitary confinement.

New infections emerged Nov. 7, and nearly two weeks later, 34 inmates and one staffer tested positive.

People with the virus and those who are believed to have close exposure are held separately and away from the general population, Joyce said.

Cumberland County is not the only jail in the state fighting an outbreak. The Kennebec County Jail in Augusta has fewer than 10 cases of COVID-19 among staff and inmates, but still enough to be classified as an outbreak by the Maine Center for Disease Control and Prevention.

The Augusta jail houses about 140 inmates and has a staff of about 50. Kennebec County Sheriff Ken Mason said this week that he plans to isolate those infected as testing continues.


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