The day after Gov. Andrew Cuomo ordered New Yorkers to stay home and maintain 6 feet of distance from one another, corrections officers handcuffed 33-year-old Jose Diaz to another man by his wrist and ankle and put them on a bus headed to Rikers Island, where the coronavirus had already infected more than three dozen detainees and jail employees.
The pandemic has hit Rikers harder than the rest of New York City. At least 91 inmates for every 1,000 have tested positive for Covid-19, compared with 16 residents per 1,000 citywide. The top physician at the jail complex has called the situation a “public health disaster unfolding before our eyes” and urged the release of “as many vulnerable people as possible.” As another Rikers doctor put it, “The only meaningful intervention here would be to reduce the jail population.”
Public officials have responded tepidly. On March 27, Cuomo ordered the release of 1,100 people detained on parole violations statewide. As of mid-April, parole warrants had been lifted for 760 people, including 275 detained at Rikers, according to a spokesperson for the state Department of Corrections and Community Supervision, but not everyone covered by the order has actually been released. Ultimately, the spokesperson said, “it is the responsibility of the local jail to release the individual.”
The office of New York City Mayor Bill de Blasio says it is prioritizing the release of inmates who are over the age of 50 or have health conditions that make them vulnerable to Covid-19. The city has pointed to a 1,536-person decrease in the jail population since March 16, although that includes individuals who completed their sentences or were released on bail. The reductions are nowhere near what is required to make a significant health impact. Of the more than 4,000 people currently detained at Rikers, at least 365 have now tested positive for the virus, as have 783 Department of Correction staff and 130 medical workers. Two people have died of Covid-19 while in custody.
Thousands of people awaiting trial or held on low-level parole violations remain at severe risk of contracting the deadly illness. The experience of Diaz, who was sent to the virus-ravaged jail after being arrested on March 2 for a parole violation, is emblematic of the situation of many of the men and women incarcerated at Rikers over the course of the crisis. The only thing that distinguishes Diaz’s experience is that he got out.
“I Was Back There”
“I was never on any list to be released,” Diaz said over the phone from an apartment he shares with roommates in the Bushwick neighborhood of Brooklyn. “I’m a Category 1 parole offender, meaning I’m the last on the list to be released, if ever.”
What Diaz believes kept him off politicians’ Covid-19 release lists was a manslaughter conviction from when he was a teenage member of the Latin Kings gang. According to DOCCS, an individual’s original offense should not be considered in the review process for the governor’s release program. But defense attorneys say the process is opaque, and many eligible individuals have only been released after intense outside pressure.
Diaz served more than 11 years in prison for his crime. At Wallkill Correctional Facility in upstate New York, he started taking classes through New York University’s prison education program. “I eventually realized that education was something I could pour my soul into,” he said. He left prison, graduated, and began working for the NYU program while he completed his master’s degree in social and cultural analysis.
Around 55 percent of people released from state prisons are incarcerated again within five years, in part thanks to the strict conditions people like Diaz must agree to in order to be granted parole. The terms often include curfews, restrictions on out-of-state travel, and avoiding any police contact — and small mistakes can have dramatic consequences.
Diaz was 3 1/2 years out of prison and months away from finishing his master’s degree when he was pulled over. “I was visiting family, driving home at 2:30 in the morning — it was in Osceola County in Florida, really racist, really not good for people of color to be driving late at night,” Diaz said. “A cop alleged I was speeding and pulled me over. I had had a few drinks with my family before I left, so that’s what he arrested me for, but he never gave me a field sobriety test.” While the DUI charge remains pending, being out after 9 p.m. counted as a parole violation. He would be going back to jail.
“I was crushed. I just couldn’t believe it,” Diaz said. “I was back there. I forgot how it felt.” The timing couldn’t be worse, though Covid-19 was the last thing on Diaz’s mind in early March. Like many New York residents, he didn’t really think the virus would alter everyday life in the city.
Newly equipped with what he’d learned in academia, Diaz observed his situation with critical race theory swimming in his head. When corrections officers were rude to him, he thought, “Well, that’s you internalizing institutional racism in order to deal with working in this institution. But what I’m feeling is like, wow, this dude really thinks I’m a piece a shit. Wow, look at my hair. I can’t shave — I look like a fucking monster. The basic things that are denied to you allow you to become that negative thing.”
“You Just Get Sick”
As the coronavirus spread through New York City, Diaz was transferred repeatedly — before Rikers, he was held at the Manhattan Detention Complex and the floating jail in the Bronx known as the Boat. Information about the growing crisis blared from a TV shared by dozens of people at the Boat, where Diaz landed on March 12. But it wasn’t until visiting hours were canceled on March 18 that the pandemic began to feel real. Social workers stopped visiting, which was a big deal. With limited phone time, detainees often struggle to contact the public defenders who represent them, and social workers serve as a crucial resource for getting information about their cases.
Flyers went up around the facility advising inmates to wash their hands and maintain social distance. The message was clear: It was on them to avoid illness. Corrections officers encouraged inmates who were assigned cleaning tasks to do a thorough job, yet they did not provide new disinfectants or allow for sanitation between scheduled cleanings. The officers began wearing masks, Diaz said, but inmates only got them if they were sick.
The message was clear: It was on them to avoid illness.
And Diaz did fall ill. “What I experienced during my last time doing time is you just get sick,” he said. Diaz developed a sore throat and put his name on a list for medical care. Typically, an officer would come to the dorm once a day and yell “Sick call!” but no one showed up. When Diaz asked a corrections officer for help, he learned that sick call had been canceled due to the virus. The officer promised to follow up with him but never did.
Two days later, Diaz’s ears began to ache, and his throat hurt so badly that he couldn’t speak. Anxiety crept in. Diaz is a light smoker and was asthmatic as a child. He wondered what would happen if he got worse. Finally, a friend alerted an officer, and Diaz was taken in. Medical staff diagnosed him with laryngitis. He wasn’t tested for Covid-19.
Peter Thorne, deputy commissioner of public information for the Correction Department, told The Intercept that the sick call process had been temporarily modified to improve social distancing and that if any detainee complained about Covid-19 symptoms, an officer would notify the clinic. In Diaz’s case, it hadn’t been so simple. There is now a dedicated phone number posted in housing areas that can be used to contact medical staff, according to Thorne — a less-than-ideal solution when limited phone time has already become inmates’ only means of accessing family or legal support.
Diaz’s court hearing went ahead on March 19, but it was over video. He met his lawyer for the first time moments before the hearing began. “The proceeding is the speed of an auction,” he said. Diaz had collected letters of support from professors and his employer, which he’d normally be able to hand directly to his lawyer or the judge. But with no clear way to pass the documents along electronically, the hearing continued without evidence of his academic career or network of support.
The judge noted that normally they would consider placing Diaz in a 97-day alcohol treatment program at a facility called Willard, but because of coronavirus measures, that wasn’t an option. Instead, he offered Diaz a year of incarceration. Diaz declined. His next hearing was scheduled for April 23. In the meantime, he would be moved to Rikers.
Stacked on Top of Each Other
When Diaz arrived at the Otis Bantum Correctional Center on Rikers Island on March 23, he and another detainee were taken to a dormitory for people with parole violations. A pair of inmates met them at the entrance, speaking to Diaz in Spanish. “‘We already took one new person, and you’re not coming in,” he said they told him. “‘And if you do come in, whatever happens to you — it’s not on us.’”
Diaz was used to this kind of reaction where it came to gang affiliations. But this time, the men were threatening violence to protect themselves against a virus. “A security threat is the only thing that would keep us out. I was like, ‘I got you.’ I tell the CO, ‘I can’t go in there because it doesn’t look good — take me to the box if you want,’” a reference to solitary confinement. The annoyed officer escorted them to another dorm.
To Diaz, it was clear why the inmates had taken matters into their own hands. Despite the growing number of Covid-19 cases on Rikers, the precautions did not appear much different from those on the Boat. The Correction Department told The Intercept that common spaces are cleaned once each day, shower areas three times daily, and phones every two hours, and that inmates have access to sanitation solution when they’re outside their cells. Diaz, however, didn’t notice regular sanitation of the phone or food preparation areas, nor did he have access to sanitation solution. He said people used socks to protect themselves when making calls from the phone bank.
The crowded quarters made social distancing impossible and the spread of contagion inevitable. “It’s jail — it’s designed to stack people on top of each other,” Diaz said. With beds 3 feet apart, “I had more space in between me and my partner in a king size bed.” The Correction Department’s solution, according to a posted flyer, was to sleep head to feet. The department only advised 3 to 6 feet of distance, despite the Centers for Disease Control and Prevention advising 6. The agency spokesperson told The Intercept that city jails are now at 50 percent capacity, and that staff is attempting to place an empty bed in between people in custody.
The dormitories on the floor below Diaz were quarantined within a week — someone had gotten sick, and more would follow. The barbershop closed, the only place where inmates could use nail clippers, and access to the law library was limited. But measures meant to create social distancing seemed to be inconsistent. Diaz said he continued to run into people from quarantined parts of the building roaming the hallways without masks.
The tension translated into verbal abuse from corrections officers. “If they believed you’re dirty in the first place, now coronavirus allowed them to act on that,” Diaz said. Fights broke out more frequently between people in the dorm, especially over who got to use the phone. “Officers got geared up, got their sticks,” Diaz recalled. “Alarm after alarm after alarm.”
To make matters worse, “I got sick again,” he said. This time, it was respiratory issues — he was coughing and congested and could no longer smell anything. “I was never tested, and I was too scared to get tested. I’m hearing, ‘You might be released,’ and I didn’t want to risk that.”
His hopes for release did not come from his lawyer. Hearings were being postponed, and Diaz’s court date seemed increasingly unlikely. Nor did he believe the assurances of Cuomo or de Blasio when he saw no evidence on the inside that vulnerable people were being released. Instead, his dim hopes came from demands that his friends and colleagues at NYU were making on his behalf. It was clear to him that public officials would need a hard push to keep their promises.
Exception to the Rule
The men in Diaz’s dorm were fed up by the beginning of April. “They weren’t giving us stuff to clean with, and we were tired of taking the chance of being exposed during mealtime. We were like, ‘We’re not going to chow — fuck that.’” They refused to go to lunch and delivered a long list of complaints to a senior officer. “We don’t have adequate cleaning supplies. Can you find out about legal? Why aren’t you enforcing quarantine? We don’t have access to toenail clippers — and we need these things. They’re like, ‘We can’t do nothing about that.’”
The hunger strike was short-lived. “Guys lost resolve,” Diaz said. “These are low-level violators, so the stakes are a little different. They’re still hoping that the system is going to be benevolent.”
Diaz credits organizing on the outside for getting him released. “I’ve always been a critic of advocacy work until I actually saw it work. To see a group of 200 people get together and get my release? I’m like, Jesus, that’s something.” NYU President Andrew Hamilton wrote Diaz a letter of support, faculty members put pressure on decision-makers in the mayor’s office, and activists made repeated calls to government officials. Neither the mayor’s office nor the Correction Department provided information on what was behind the decision.
Officers finally discharged Diaz at 2:30 a.m. on April 4. According to the Mayor’s Office of Criminal Justice, individuals are screened for Covid-19 prior to release. But Diaz said he had no health check before he left, and no advice about how to navigate the changed world he entered. “I was transferred in a van shoulder-to-shoulder with two other men. Even when they were releasing us, they still stacked us on top of each other.”
The official tally of Covid-19 cases significantly underplays the number of inmates who have contracted the virus.
The tally of Covid-19 cases released by the Correction Department and Correctional Health Services significantly underplays the number of inmates who have contracted the virus. It only includes individuals who are currently incarcerated, leaving out those who were released or transferred after testing positive. Despite pressure from Legal Aid, the agencies have refused to release cumulative data.
The other two men discharged with Diaz were being released on bail. “That’s part of the work that people are doing now — they’re creating bail funds,” Diaz said. “The only way we know for a fact you can get people out is if you pay for their release.” Yet hours before Diaz left Rikers, the state legislature passed a budget that included major roll-backs of recent bail reforms, which had eliminated cash bail for most misdemeanors and nonviolent felonies. Cuomo’s new bail rules could increase the number of people incarcerated by tens of thousands every year.
In New York City jails, 305 people are still being held solely for parole violations, and another 650 are jailed for a parole violation in combination with new charges. The latter are not covered by Cuomo’s release scheme. In more than half those cases, the charges are low-level offenses that on their own, would not require pre-trial detention or would allow for release on bail.
Meanwhile, the city of New York has the power to order people serving city sentences of a year or less to do so at home. At least 309 people have been released under this authority, while 137 remain in jail. Judges decide the fate of the majority of Rikers prisoners, who are awaiting trial. Elected district attorneys hold significant influence over their decisions and can recommend detainees for release. However, it has largely fallen on defense attorneys to plead for individuals’ release petition by petition.
Diaz realizes that his case is an exception to the rule. “I’m in contact with a guy that was arrested for the same thing as me. I speak to his mother daily. He’s just sitting there, and he’s exposed to corona — in danger of contracting it. That just doesn’t make sense,” Diaz said.
The day that Diaz left, Raymond Rivera became the first person to die of Covid-19 on Rikers Island. He had been accused of violating the terms of his parole. He was ordered released six weeks before but got tangled in the jail system’s bureaucracy and caught Covid-19 instead. Since his warrant was finally lifted hours before he died, he is not included in the Correction Department’s official coronavirus death toll.
Michael Tyson, who was transferred to Rikers the same day as Diaz, also for a parole violation, became the second Covid-19 death on the island two days after Diaz’s release. He was 53 years old and had diabetes, a previous heart surgery, and high blood pressure. The Legal Aid Society said that due to the jail and court systems’ deepened dysfunction during the crisis, his lawyers were not even aware he was at Rikers until he was hospitalized.
“The death of anyone in our custody is deeply upsetting,” B. Colby Hamilton, the public affairs chief of the Mayor’s Office of Criminal Justice, told The Intercept. “We have worked since the beginning with our partners across the justice system to release as many people as we safely could.”
A spokesperson for DOCCS told The Intercept that it is investigating Rivera’s case, and that corrective action will be taken if necessary. In the view of the department, however, Tyson had a high risk of reoffending and wasn’t eligible for release under the governor’s directive.
For Diaz, the responses ring hollow. “They had technical violations — end up getting Covid. Had de Blasio followed up with releasing guys like he said he would, or Cuomo, they wouldn’t be dead,” Diaz said. “They need to stop taking praise and applause for not doing a job complete. Release half the population and make sure the people who are there get adequate access to resources.”