Tuberculosis patients belong in hospitals, not jails

Wisconsin jails and prisons are warehousing people with criminal convictions. Most of us accept this without questioning how we deal with human rights in our justice system. But when those people need medical care, the system routinely fails human rights.

Take the recent death of Marshall Wilburn in the Milwaukee County Jail. Wilburn had tuberculosis when he was arrested for a minor disorderly conduct charge. But instead of quarantining him in a hospital or another secure health care facility, Marshall was kept in jail by a City of Milwaukee court order. The order was based on an argument that Wilburn’s homelessness and refusal to get treatment for the TB made him a danger to himself and others.

“Untreated tuberculosis is a serious public health concern, but jails are designed to hold people accused of crime, not those who are homeless and need medical treatment,” said Larry Dupuis, the ACLU of Wisconsin’s legal director. “Criminal conduct may justify time in jail, but being homeless and noncompliance with medical treatment don’t.”

Based on media reports, it isn’t clear whether his disease was infectious when he was arrested, but he did agree to stay in jail and said he wanted to get well. If he cooperated with police, he might have cooperated with treatment in a hospital. But unless this option was on the table, the bottom line is that a jail isn’t a health care facility and isn’t made to have the resources to deal with this situation that ultimately led to Wilburn’s death in custody.

The state Supreme Court recently decided in the 2007 case, City of Milwaukee v. Washington, that a person with tuberculosis may not be put in jail for failing to comply with treatment, unless a jail is the “least restrictive place” the person can be safely and adequately treated. With adequate resources, there should almost always be less drastic ways to treat tuberculosis patients who do not follow doctors’ orders than putting them in jail.