This past week, federal and state correctional facilities across the country have confirmed outbreaks of COVID-19 infections among inmates and staff. New York City’s primary jail, Riker’s Island, currently has the most confirmed cases, with 52 inmates and 30 employees testing positive. As this blog and other outlets have reported, crowded conditions, limited access to healthcare, and a high-risk population mean those incarcerated are particularly vulnerable to the disease.
State and federal facilities have implemented several measures to protect the population. Among other measures, prisons across the country have halted the transfer of inmates, instituted quarantines, and suspended visitation rights, including legal visits. The suspension of legal visits, in particular, raises serious concerns about the impact COVID-19 is having on the constitutional rights of incarcerated individuals. On March 20, 2020, Judge Margo K. Brodie of the United States District Court for the Eastern District of New York appointed former United States Attorney General Loretta Lynch to mediate a dispute between the Federal Defenders and the Bureau of Prisons over access to incarcerated clients. The stress on the inmate population caused by the suspension of visitation cannot be overstated (e.g., in Italy, the suspension of visitation rights led to prison riots). To help alleviate the hardship, the federal Bureau of Prisons has increased the inmate’s phone minute allotment from 300 to 500 minutes.
In apparent recognition of the danger posed to inmates by COVID-19, and the likely inability to halt the spread of infection, some jurisdictions have begun releasing pre-trial detainees and non-violent offenders. The City of Los Angeles, which houses the largest jail population in the country, reduced its inmate count 1,700, or 10%, over the past three weeks. New York City, with the second largest population, released 63 detainees, and has announced plans to release another 300 inmates convicted of non-violent misdemeanor offenses. Mayor Bill de Blasio further announced that New York City will work with prosecutors and the State to release additional inmates over the age of 70, or with pre-existing health conditions. In a March 22, 2020, press conference, President Trump announced that the White House is also considering an executive order for the release of “elderly, non-violent offenders” across the federal government’s 122 facilities. Several high-profile inmates, including Bernard Madoff and Michael Cohen, have moved for release because of the coronavirus outbreak.
COVID-19 remains a serious threat to the prison population in the United States, and the spread of the virus in the prisons poses a potentially disastrous health crisis. Although less immediate, the constitutional crisis concerning access to the courts and speedy trial issues arising from backlogged dockets will have significant long-term consequences on the justice system. Both problems should be on the minds and the agenda of all attorneys with clients incarcerated in correctional facilities across the country.