Statement of the New York City Bar Association Urging Immediate Steps to Reduce Prison and Jail Populations to Prevent Spread of the Covid-19 Virus

Accordingly, we call on all actors in the criminal justice system to (1) immediately remove all high-risk individuals from incarceration; (2) swiftly move to reduce the density at all New York area jails and prisons to prevent or slow the spread of the virus; (3) refrain from adding additional people to jails and prisons in New York; and (4) ensure that all facilities have plans in place to prevent the spread of the virus and remove stricken individuals to appropriate care facilities.

It is now clear that the COVID-19 virus is spreading at an exponential rate in New York City. The high-density environment of jails and prisons poses a grave threat to both those incarcerated and correctional workers.[4] We join the New York City Board of Correction, the Federal Defenders of New York, the Legal Aid Society, the district attorneys in Brooklyn and Manhattan and other organizations in calling on law enforcement and government to take bold action not only to prevent death among vulnerable populations, but to protect the health of corrections officers, prison administrators, prison health workers, law enforcement, attorneys, judges, court personnel and other essential actors in the corrections and criminal justice systems.

Accordingly, the City Bar asks that individuals over 50 years old or with compromised immune systems or underlying respiratory issues be immediately released, either through administrative means or via immediate, remotely-held bail hearings. Courts should help reduce density in the jails by releasing on bail low-level offenders. The Department of Corrections and Community Supervision (“DOCCS”) should heed the call of the Manhattan District Attorney’s Office and immediately release all state parole violators charged with “technical” violations. Voluntary surrender dates should be extended so no one is required to report to prison until the crisis has passed. Prosecutors should consent to such releases in all but the most unusual cases.

The City Bar calls on the Bureau of Prisons, DOCCS and the City Department of Correction to administratively release individuals approaching the ends of their terms of incarceration using whatever statutory authority is available. Likewise, any noncitizen who has completed a criminal sentence and is being held solely on immigration charges, or who is detained based solely on immigration violations, should be released from detention. In this respect, New York City, New York State, and the Bureau of Prisons should follow the lead of Los Angeles County and Cuyahoga County (Ohio), which have begun to release people to reduce the risk of a rapid spread of the virus within their jails.

While mindful of the public safety issues raised by such actions, the City Bar believes the risks can be effectively mitigated by the existing systems of supervised release and pretrial supervision available in both state and federal courts. We also believe that the imminent safety risk of allowing large numbers to remain incarcerated in dense conditions is greater than the risk posed by releasing incarcerated individuals wherever possible at this juncture. On a case-by-case basis, individuals should be released subject to home confinement and electronic monitoring that would ensure the safety of the community by reducing the risk of both criminal recidivism and viral transmission.

The City Bar also calls on law enforcement to reduce the number of new arrests and ensure that all arrestees are screened and tested before entering the jail population. To protect public safety, Immigration and Customs Enforcement (“ICE”) should not make new arrests based solely on immigration violations.[5]  We join U.S. Representatives Jerrold Nadler and Karen Bass in being particularly concerned that U.S. Attorneys Offices are continuing “business as usual” in making large-scale arrests, including an 11-defendant case on Wednesday that endangered dozens of defendants, lawyers and court personnel.[6]  All new arrests put law enforcement agents at risk of infection. Individual members of the New York City Police Department have already tested positive, prompting a “sick out” that reduces patrols and thereby jeopardizes public safety.[7]

We call on prosecutors not to authorize large-scale takedowns and on the police to reduce arrests for lower level crimes, as has been done in Philadelphia and Fort Worth and as District Attorney Gonzalez has already promised in Brooklyn.[8] If it is unsafe for the local jails to accommodate visits from lawyers – as has been the case for several weeks in the federal Metropolitan Correctional Center – it is similarly unsafe for law enforcement to introduce untested individuals into the high-density, unsanitary environment found in these facilities.

Finally, we join the New York City Board of Correction’s call for all local facilities to follow San Francisco’s lead and publish an action plan for responding to the COVID-19 crisis. Such a plan should include, at a minimum, provisions for health and safety within existing facilities and plans for swiftly evacuating incarcerated individuals who are sick without administrative delays that could prove deadly.

The City Bar is confident that in this time of dire emergency and uncertainty, people of goodwill can come together to protect the entire community, including the vulnerable, marginalized men and women currently housed in New York’s jails.