Release

  • How can officials protect people in jails, prisons, and immigration detention facilities from COVID-19?
  • What are local, state, and federal leaders doing to reduce the population within correction and immigration detention facilities?
  • What are different ways in which individuals and/or people who care about them can advocate for avoiding incarceration or achieving their release?
  • Who is getting representation?

People who are confined in jails, prisons, and immigration detention centers are particularly vulnerable to the outbreak of the novel coronavirus. It is “nearly impossible” to prevent the spread of this virus in correctional and immigration detention facilities, as people in these facilities are crowded in close quarters and lack adequate  not access to sanitation products like hand sanitizer or even soap, or personal protective equipment, like CDC-recommended face coverings. Indeed, the infection rate on Rikers Island is currently seven times higher than the citywide rate of infection. Moreover, many incarcerated people are elderly and have chronic health conditions that put them at an increased risk of serious illness or death from COVID-19. Inadequate health care in jails and prisons compounds these risks even further. In an effort to protect this vulnerable population, public defender offices, prosecutors, and other legal service and advocacy groups have been pushing for the release of large numbers of incarcerated individuals, especially those who are older and have pre-existing medical conditions.

Below is a compilation of resources pertaining to efforts to release incarcerated people in New York City during this pandemic. Section A provides a list of recent reporting and data on the conditions and spread of the virus in facilities where New Yorkers may be incarcerated, and a brief overview of the responses government officials have taken thus far that affect New Yorkers. Section B compiles resources for individuals who are advocating for their own release, or the release of a loved one. Section C presents some advocacy opportunities in this area, both to push for urgent action and for longer-term policy changes.

The Current Conditions in Detention/Correctional Facilities in New York

Coronavirus has already started spreading through jails, prisons, and detention centers in New York, as documented by the following graph:

NYC Jails (Rikers) Infections

Source: The Legal Aid Society COVID-19 Infection Tracking in NYC Jails (as of April 8)

Below is some recent reporting on the conditions in these facilities. This reporting lays the foundation for immediate and drastic action, both at the individual and policy level; they provide detailed descriptions of the unsafe conditions in these institutions, and evidence as to why significant decarceration is really the only solution to flatten the curve.

 

Recent Reporting on the Conditions on Rikers Island

  1. Democracy Now!, Video Interview of José Diaz, released from Rikers Island on Saturday April 4th, on the conditions at the jail (April 6)
  2. Slate, “Coronavirus Cases are Spreading Rapidly on Rikers Island” (April 2)
  3. NY Mag, “‘We’re Going to All Start Dropping’: Rikers Inmates on Life as Prisoners of COVID-19” (April 1)
  4. The Marshall Project, “‘They Don’t Care:’ Families Of The Incarcerated Fear The Worst As Coronavirus Spreads” (March 26)
  5. The Appeal, “An Update on What’s Happening Inside Rikers Island as Coronavirus Spreads” (March 25)
  6. The New York, “'It's Spreads like Wildfire': The Coronavirus Comes to New York's Prisons” (March 24)
  7. NBC New York, “Rikers Island Doctor Slams DAs, Says Sick Inmates Will Need Hospitals, Ventilators” (March 23) 

 

Recent Reporting on Federal Facilities

  1. Forbes, “Bureau Of Prisons Underreporting COVID-19 Outbreaks In Prison” (April 1)
  2. For more reporting on COVID-19 in correctional facilities, see this bibliography.

 

Data Tracking the Virus Within New York City Prisons and Jails

  1. Legal Aid NYC has been tracking infections in New York City Jails.
  2. COVID-19 Correctional Policies & Responses <Host: UCLA Law> This resource links to a number of difference spreadsheets tracking confirmed deaths and cases within jails and prisons, releases from jails and prisons, requests for releases, and other policy changes and organizing efforts.
  3. The Vera Institute has a tool that tracks admissions Daily Jail Population in NYC. 
  4. For data on positive COVID-19 tests in federal correctional facilities, see the Federal Defenders of New York’s website.

Reducing Jail and Prison Admissions in New York

One way that officials can reduce the population in correctional and detention facilities is to reduce the number of people entering these facilities by suspending law enforcement protocols that place people in custody and stopping prosecution of low-level offenses. For some examples of jurisdictions adopting some of these recommended measures, see the Justice Collaborative’s compilation of different state and local policy shifts. In New York City, some law enforcement officials have adopted some of these recommended measures, while others have not announced any changes in law enforcement strategies and priorities.

  1. Prosecution Policies of New York City District Attorneys
    • Brooklyn and Manhattan: The District Attorneys in Brooklyn (Eric Gonzalez) and Manhattan (Cy Vance), have signed onto a letter urging officials to stop new jail admissions for people that do not pose a serious public safety risk (March 25). The Brooklyn DA has additionally announced that this office will stop prosecuting low-level crimes during the coronavirus outbreak. (March 17). 
    • Bronx: The Bronx DA, Darcel Clark has announced that while the office continues to prosecute violent offenses, it will “continue[] its policy of not prosecuting low-level, non-violent offenses” (March 20). As of March 20, the office has consented to the release of 28 people.
    • Queens: The Queens DA Melinda Katz, has announced no change in her office’s prosecution priorities. “The Office will continue to determine on a case by case basis whether to decline to prosecute low level offenses, as we have been doing since January 1st.” (March 20). The office is releasing some people detained pre-trial (see below).
    • Staten Island DA The DAs of Staten Island has not announced a shift in prosecution policies. (as of April 4). The DA has resisted consenting to the release of people detained pre-trial. (March 29).
  2. Immigration and Customs Enforcement (ICE) has announced that it will temporarily stop enforcement operations or use alternatives to detention for some individuals. ICE will continue enforcement operations for individuals who ICE deems pose a public safety risk and those that are subject to mandatory detention based on criminal grounds. Except in extraordinary circumstances, the agency will not make arrests near hospitals. (March 18). Immigrants Rights advocates have called for U.S. immigrations operations that are continuing to be conducted remotely. (March 23).

Releasing People Incarcerated in New York Jails and Prisons 

Advocates and public health experts are urging government officials to release large numbers of incarcerated people, especially those whose age and health conditions put them at-risk, through various early-release mechanisms like compassionate release and clemency. Federal officials have started directing the release of certain high-risk individuals and officials in New York and announced the release of some people detained in jail for low-level offenses or technical parole violations. Some judges have additionally granted sentencing reductions. However, the total numbers of people released thus far are still low compared to the number of people at risk, and the New York State budget, signed into law on April 3, could increase the number of people detained pre-trial. Moreover, some processes that could typically lead to someone’s release, like parole revocation hearings, have been severely delayed by the pandemic.

  1. Releases from Federal Detention and Correction Centers
    • Over 400 former DOJ leaders, attorneys, and federal judges issued a letter to President Trump asking him to reduce the population in federal detention and correctional centers to limit the spread of the novel coronavirus.
    • U.S. Attorney General William Bar directed the federal Bureau of Prisons to release some elderly and sick people and increase the use of “home confinement.” (March 26). 
    • A letter on behalf of Federal Public Defenders (April 1) documented that many in the federal prison population are at grave risk of severe illness or death, and expressed concern about the Attorney General’s “failure to take advantage of DOJ’s existing tools to transfer vulnerable and low-risk inmates quickly to home confinement.”  The letter documented that “approximately 10,000 individuals over the age of 60 presently in federal custody, and one third of all individuals in BOP custody have preexisting conditions,” and urged the Attorney General immediately “to reduce the number of people entering federal detention and aggressively transfer or release individuals who are already incarcerated into the community.” 
    • The Marshall Project notes that Barr’s plan could favor white people and exacerbate existing racial disparities in the criminal system. 
  2. Releases from New York State Prisons and Jails
    • Governor Cuomo
      1. The governor has ordered the release of 1,100 people who were in New York state jails or prisons due to a technical parole violation. 106 people who were detained on Rikers Island on technical parole violations have been released thus far. (March 27). 
      2. However, Cuomo proposed and pushed through legislation in the recent New York Budget which would expand pre-trial detention, rolling back a recent bail reform that ended cash bail in New York. (signed into law on April 3). New York public defenders fear this will increase the number of people in jails at a time when New York City jails are the epicenter of the pandemic. 
      3. While the Governor has power to grant clemency, he has not granted anyone clemency since the start of the pandemic. (April 6).
    • Mayor De Blasio
      1. De Blasio announced in a press briefing that as of March 30th, 900 people had been released from the New York jail system. He did not provide more information about those releases.
      2. On March 25, De Blaiso had announced a plan to release 300 people detained in New York City jails for misdemeanors and non-violent felonies.
    • New York City District Attorney’s offices 
      1. The New York City DAs offices have processed public defenders’ requests to release people from jail and between them have agreed to release 250 people. (March 25).
      2. Thirty Elected Prosecutors from across the country—including the DAs of Manhattan (New York County), Brooklyn (Kings County), Albany County, and Ulster County—signed a letter urging prosecutors, public health officials, and other leaders to dramatically decarcerate to protect people in prisons, jails, and immigration detention centers from COVID-19. (March 25).
      3. Brooklyn DA Eric Gonzalez has co-authored an op-ed in the New York Times calling for decarceration. (March 30).
      4. However, all of the New York City District Attorneys signed onto a letter to Mayor Bill de Blasio indicating concerns about a haphazard process that paid insufficient attention to risks of domestic and sexual violence. (March 30).
      5. The Staten Island DA in particular has resisted the release of people detained pre-trial. (March 29).
    • The Board of Correction additionally wrote a letter (March 21) to New York City  officials urging the immediate release of incarcerated people who are over the age of 55 and those with serious chronic health conditions and a decrease in the population of New York jails. The letter documented that 666 people in custody were being held solely for a technical violation of parole, 551 people in DOC custody were serving a City Sentence of under one year for low-level offenses. 
    • Parole Release
      1. Some other jurisdictions have been expediting and expanding parole release (e.g. Maine, Utah, Arkansas). New York had not done so thus far. (April 3).
      2. The New York Board of Parole automatically re-incarcerates people awaiting a hearing for alleged parole violations, a practice that has been challenged as discriminatory and unconstitutional by a class action lawsuit filed on April 3.  Under Governor Cuomo’s March 20th executive order suspending time limits for legal processes, parole revocation hearings have been effectively suspended, leaving persons incarcerated for alleged technical parole violations “in limbo in New York City jails—currently the most dangerous place in the world for contracting COVID-19.” As of April 3, no in-person or video parole revocations hearings were taking place.
    • Federal Immigration Detention
      1. A group of legal service and immigrants rights organizations called on Governors Cuomo and Murphy (NJ) to release all persons detained by ICE, and halt ICE enforcement operations. 
      2. A number of public defender organizations have additionally pressed for immediate release of persons in ICE custody. 
      3. On March 27, a federal judge in New York granted the release of ten immigrants detained by the Immigration and Customs Enforcement (ICE).
      4. Another New York federal judge granted the release of four more immigrants with underlying medical conditions in ICE detention.
      5. On March 30, another federal judge temporarily released ten more immigrants from ICE detention.
    • Leaders of nonprofit reentry organizations who have served on the Governor’s Reentry Council (New York State Council on Re-entry and Re-integration) have urged the Governor to release older and immune-compromised men and women who are incarcerated in New York’s state correctional facilities and who are at highest risk of contracting and spreading Covid-19. 
  3. Release from Juvenile Facilities
  4. Impact of Court Closures 

Legal Representation

Although the legal offices providing representation are physically closed, lawyers continue to represent clients remotely, appear in court for emergency proceedings, and receive calls and emails. 

  1. Right to Counsel. For a description of New Yorkers’ rights to Appellate and Post-Conviction Representation, see the NYS Office of Indigent Legal Services website.
  2. Finding a Lawyer. See the Jailhouse Lawyers’ Manual Chapter 4 for information about finding a lawyer.
  3. Public Defender Organizations in New York. While public defender offices are physically closed, public defenders in New York continue to represent their clients and advocate for their release during this time. Below are some key COVID-19 related updates from the office’s websites.
  4. Pro Bono Representation
    • Families Against Mandatory Minimums (FAMM) is recruiting pro bono attorneys to help incarcerated people in federal prison fight for compassionate release during this crisis.
      • If you or someone you care about is in federal prison and in need of an attorney to help you petition for compassionate release, fill out this questionnaire. 
      • FAMM will be unable to respond to everyone who submits a questionnaire, but will respond to you if they can find someone who can help.
    • Compassionate Release Clearinghouse—COVID-19 Project. This project is currently recruiting attorneys, social workers, and medical professionals to work on compassionate release motions for those incarcerated people that are most vulnerable to COVID-19. 
      • Those interested in assisting, can fill out a volunteer form here.
      • The clearinghouse has received over 400 requests for legal assistance from incarcerated persons. (April 6).
      • Over 300 lawyers have volunteered thus far. (April 6).
    • New York State Clemency Project. This program, established in 2017, recruits, trains, and provides resources to pro bono attorneys assisting those incarcerated in New York state prisons with petitions for sentence commutations.
      • If you are an attorney, register here.
      • Note: non-New York barred attorney can still register and work on the case with a New York barred attorney

 

Resources for those Advocating for their Own Release 

While a number of these guidance documents and sample motions are written primarily for attorneys, they may provide guidance and examples for those representing themselves or advocating for those they care about as well.

  1. For information on the current conditions and spread of the virus in prisons and jails where New Yorkers are incarcerated, see the section above. These reports provide both anecdotal evidence and more comprehensive data for those advocating for release.
  2. General Resources for People Representing Themselves 
    • A Jailhouse Lawyer’s Manual published by Columbia Law School
    • Beyond–Prisons has published a guide for supporting people who are incarcerated during this pandemic.
    • Federal Pro Se Legal Assistance Project provides free legal services to pro se litigants who cannot afford to hire an attorney and are representing themselves. However, this project is not able to assist incarcerated litigants.
      • To get help call: (212) 382 - 4729
  3. Information on Courts
    • Prisoners’ Legal Services of New York has compiled information for pro se (self-represented) litigants filing in New York State courts, based on the COVID-19 measures courts have taken.
    • Kramer Levin has compiled a list of COVID-19 measures in New York state and federal courts.
    • Paul Hastings has compiled a list of U.S. federal court closings, cancellations and other restrictions due to COVID-19. Law360 has a similar resource.
    • Coronavirus New York State Court Hotline: (833) 503-0447
      • When you call this number you will hear a recording about the restrictions in New York State Courts. The recording asks what area of information you are looking for (e.g., juror information, housing court, criminal court). For New York City criminal court information, press 3 when prompted.
    • If you have further questions about criminal court, you can call the New York City Criminal Court Information Center: (646) 386-4900
  1. Guidance Documents for Advocating for Release
  2. Bail Funds
  1. Statutory Frameworks for Release
    • There are a number of mechanisms through which individuals who are currently incarcerated or detained can be released. For example, an individual may make bail or a court may order pretrial release, a court may reduce an individual’s sentence, the Department of Correction and Community Supervision (DOCCS) can grant medical parole, an individual may be granted release on parole or community supervision by the board of parole, or the executive branch may grant an individual clemency (although as of April 7th, neither President Trump nor Governor Cuomo has granted anyone clemency because of COVID-19). Some resources for these different possible release mechanisms are listed below.
    • Pretrial Release. An individual who has not yet been convicted and sentenced can secure release by either paying bail or by filing a motion for urging the court to release them pretrial. 
    • Compassionate/Medical Release. Compassionate release laws, both at the federal and state level, provide the executive branch the authority to release incarcerated persons who are elderly, seriously ill, or incapacitated before they have completed their sentence.
  2. Contagious-Disease Related Release Statutes
    • Federal: the CARES Act (Coronavirus Aid, Relief, and Economic Security Act).
      •  The United States Attorney General has the authority, under the Coronavirus Aid, Relief, and Economic Security Act’’ or CARES Act, to allow the Bureau of Prisons “to transfer many more people to the relative safety of home confinement.”
      • The Sentencing Resource Counsel for the Federal Public & Community Defenders has prepared an informational chart about the CARES act and its provisions related to incarcerated persons.
      • See more information on the Bureau of Prisons webpage.
    • New York State:  
      • Outbreak-Related Release Power
        1. N.Y. Correct. Law § 141 provides the Commissioner of DOCCS with the authority to temporarily remove incarcerated persons from their place of confinement "[i]n case any pestilence or contagious disease shall break out among the inmates in any of the correctional facilities, or in the vicinity of such facilities”
  3. Clemency. The U.S. President and many state governors have constitutional authority to grant clemency to someone that has been convicted of a crime. There are several different kinds of clemency, including amnesty, reprieve, pardon, and commutation.
    • Federal Clemency: The President of the United States has the authority to grant clemency.
      • Advocacy Groups have written a letter urging President Trump to use his clemency power during this crisis.
    • State Clemency: In New York, Governor Cuomo has the power to grant clemency. 
      • The Constitution of the State of New York vests the governor with authority “to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons.” N.Y. Const. art. IV, § 4. 
      • See New York’s web page on clemency.
      • 150 Correctional Health Experts have called on Governor Cuomo to start using executive clemencies to release people at high risk. (April 2). Cuomo has yet to grant clemency to anyone during this pandemic. (April 7).
      • NYU Law Center for Administration of Criminal Law has compiled state-by-state research on using executive clemency to reduce the spread of COVID-19 in correctional facilities.
      • A State-by-State resource on how to use the pardon power, compiled by the Collateral Consequences of Criminal Conviction and Restoration of Rights.
  4. Federal Habeas Corpus
  5. Parole Release
  6. Other Statutory Release Powers
    • Temporary Releases. Under New York Correction Law §§ 851, 855, DOCCS has the authority to grant temporary release of incarcerated people. 
    • Professor Aaron Littman at UCLA Law has compiled a non-comprehensive spreadsheet of statutory release powers in each state. 
  7. Sample Motions and Petitions for Release

 

Resources for Institutional Actors and Advocacy Groups 

  1. Policy Briefs. The following policy briefs are geared primarily toward governmental policymakers to provide them with information about the best practices and policies they can institute to keep New Yorkers who are justice-involved safe. Advocates can use these briefs to pressure policymakers to implement better policies.
    • The Vera Institute Guidance Briefs has published guidance briefs for different institutions in the criminal legal system, such as law enforcement and police, prosecutors, immigration detention facilities, and correctional facilities. 
    • The Brennan Center has compiled policy briefs with recommendations for how officials in the criminal legal system should respond to COVID-19, including briefs on: reducing jail and prison populations, immigration detention, police responses, prosecutors responses, and easing the burden of fees and fines.
    • The Justice Collaborative has issued guidelines on decarceration and fact sheets on best practices for jails and prisons, prosecutors, law enforcement, and protecting immigrant communities, as well as practices to avoid in jails and prisons.
    • Coronavirus manual for state correctional facilities by the Legal Services for Prisoners with Children (LSPC) (includes sample petition for release).
  2. Policy Changes in Different Jurisdictions. Several different organizations have compiled the steps policymakers in different jurisdictions have taken to prevent the spread of coronavirus in prisons and jails.
    • The Vera Institute has compiled a list of the different approaches taken by police offices in different jurisdictions. 
    • The Justice Collaborative has compiled a breakdown of COVID-19-related policy changes at the federal, state, and local levels 
    • COVID-19 Correctional Policies & Responses <Host: UCLA Law> This resource links to a number of difference spreadsheets tracking confirmed deaths and cases within jails and prisons, releases from jails and prisons, requests for releases, and other policy changes and organizing efforts.
    • The Appeal is tracking state and local responses to the coronavirus.
    • The Prison Policy Initiative has provided summaries of the responses of different institutional actors in the criminal legal system in different jurisdictions.
    • The Justice Management Institute is tracking responses to COVID-19 by criminal justice systems at the state, city, and county level.
  3. Other Miscellaneous Resources

 

Immediate Action

There are many ways advocates can help mobilize to support those who need immediate help getting released from a correctional or immigration detention facility. Some immediate action examples include:

Longer Term Advocacy

Some government officials have been willing to consider and adopt certain measures to reduce prison and jail populations during this crisis. Advocates can push to sustain this movement and continue to urge for decarceration after this moment has passed. Examples of possible areas of continued decarceration include:

Click here to download the full report.