On Wednesday, the first positive coronavirus test came in from a person in New York City’s custody at its Rikers Island jail complex, following weeks of warnings from doctors and advocates about the devastation the disease could wreak in the filthy, crumbling jails. The ensuing days would be marked by a stark dichotomy: the thing that did not happen, and the thing that did. What did not happen was any kind of urgent official response; the people with the power to significantly reduce the number of sick and elderly people packed into unhygienic jail dorms didn’t do it. What did happen was equally predictable: The virus began infecting jailed people at a furious rate. What had been one case on Thursday had by Sunday evening ballooned to at least 29.
We learned of the rising infections not because the city’s Department of Correction announced them; the agency is still notoriously opaque and allergic to public communication, despite the urging of watchdogs and public health officials to do better in light of the health crisis. The scale of the disease’s spread became clear Saturday only because the Board of Correction, a civilian oversight body, published the number of cases in a letter it sent Saturday reiterating the urgent need to drastically reduce the number of people trapped in the city’s jails, where fundamental sanitation remains lacking and social distancing impossible. Only a day later did the Department of Correction come forward with an updated number.
“These are the people who have the power and the responsibility to make sure that what happens in the next few weeks is not a large-scale humanitarian crisis or widespread devastation and death.”
As the dire predictions of widespread transmission on Rikers lurch inexorably toward realization, the likelihood that many people could die because they were not released becomes clearer. If that comes to pass, the list of people directly responsible for those deaths — the people who knew the jails of Rikers Island were a death trap, who had the power to let people out and chose not to — will be very short.
That list includes New York Gov. Andrew Cuomo; New York City Mayor Bill de Blasio; the five district attorneys of New York City; and Chief Judge for the State of New York Janet DiFiore.
“All of the evidence that people need to take bold and decisive action has been right in front of us,” Justine Olderman, director of the Bronx Defenders, a public defense organization, told The Intercept. “These are the people who have the power and the responsibility to make sure that what happens in the next few weeks is not a large-scale humanitarian crisis or widespread devastation and death.”
Let’s begin with Cuomo. According to the Board of Correction, 666 people are being held in New York City jails on technical parole violations, such as missing a curfew, failing a drug test, or failing to notify their parole officer of a change of address. Cuomo could tell the Board of Parole that these issues are better taken up after the mortal danger of confinement in the septic cages of Rikers Island during a plague has passed. Cuomo hasn’t done it.
Another 811 people are in city jails because they were arrested while on parole. Their release would depend on the agreement of Cuomo’s parole board, the district attorney on the case, and the judge responsible that, even for people who have been convicted of crimes in the past, arrest without trial should not warrant a sentence to death by disease contracted in a crowded jail dorm.
City jails house 551 people convicted of minor crimes that carry sentences of a year or less. Medical professionals and public defenders have spent weeks calling for de Blasio to release these people using his executive power. In response, the mayor has insisted on moving very slowly, evaluating each case individually with the New York Police Department. Why the police, of all agencies, should be involved in determining who receives a medical release from jail remains unexplained. But de Blasio and the cops are determining who among these people convicted of minor crimes is worthy of removal from conditions where they cannot protect themselves from fatal disease.
As coronavirus speeds through Rikers, de Blasio is inching his way forward. Late last week, he announced that, after thorough review, he had identified all of 40 people who might be considered for release should prosecutors approve. At a press conference Sunday, he added that he would soon begin reviewing a new tranche of 200 candidates for release. “We’re all trying to make sense of a very challenging situation in an appropriate way,” he said. “We are looking at each individual case. Some of the portrayals of the situation have left out some of the complexity.”
It’s actually not that complicated, Rory Lancman, a New York City council member, said in an interview: State law explicitly gives the mayor’s correction commissioner power to relocate people serving short sentences in city jails for a “compelling reason consistent with the public interest.”
The problem isn’t the complexity of the situation, Lancman said, it’s de Blasio: “You combine the mayor’s longstanding extreme reluctance to meaningfully reform the criminal justice system with his extreme reluctance to act decisively in the Covid-19 crisis generally,” Lancman told The Intercept, “and you end up with hundreds of people sitting on Rikers Island effectively creating a time bomb.”
The largest category of people in city jails are those awaiting trial — people who have not been charged but not convicted. In the ordinary course of events, getting someone in this position out of jail requires an application made in court before a judge.
DiFiore, the chief judge in charge of New York state courts, has mothballed most court operations in recognition of the coronavirus’s public health risk. On the public health risks of crowded dormitory detention without so much as a bar of soap, however, she has been mum. Her office has issued no directive or guidance to judges to encourage them to facilitate the speedy processing of these applications.
Judges have the ultimate power to decide on defendants’ applications to be allowed to weather coronavirus at home — allowing them to properly wash themselves and maintain social distancing and then return to court when their trials proceed after courts reopen. But whether or not prosecutors support the applications also matters a great deal to their success.
Here, too, the degree of disregard is sometimes striking. Manhattan District Attorney Cy Vance had approved the release of 189 people as of Sunday, Gothamist reported. But the numbers were slimmer for Brooklyn District Attorney Eric Gonzales, who has signaled his willingness to cooperate with some of these applications. So has Bronx District Attorney Darcel Clark. The latter two are relying on public defenders to bring them cases one by one, the equivalent of evacuating the Titanic with a handful of one-man lifeboats. Still, it’s more than district attorneys in Queens, which has only released six people, and Staten Island, where the DA simply won’t answer questions, are doing.
It remains possible that the blooming epidemic on Rikers Island will not turn into a catastrophe of mass fatalities. Medical teams are working hard in city jails and, with any luck, they will be able to save lives. If people do die on Rikers, however, it won’t be because the public officials with the power to save them were not warned.
“It’s a handful of people: the mayor, the governor, judges, the city DAs,” said Olderman, of the Bronx Defenders. “They could do it if they wanted to. And they’re making a choice. The death of incarcerated people that is sure to follow is going to be on their hands.”
Update: March 24, 2020
This story has been updated with additional information about the Manhattan district attorney’s efforts to release people from custody.