Jalil-Muntaqim-Flat

When the state of New York appealed a judge’s order to let Jalil Muntaqim out of prison due to the pandemic, it delayed his release. The elderly man was recently hospitalized with a coronavirus infection he got behind bars.

Photo: Courtesy of Bryan Shih, from the book "The Black Panthers: Portraits from an Unfinished Revolution"

At the end of April, the New York State Supreme Court ordered the temporary release of Jalil Muntaqim from prison. Muntaqim is 68 years old and has spent the last half-century behind bars. He has hypertension alongside a series of chronic respiratory conditions; he has heart disease and scarred lungs. Long-term prison sentences, studies have shown, tend to age already aging bodies by a decade.

When the Legal Aid Society, a New York public defense organization, filed a petition for Muntaqim’s release on constitutional grounds in early April, it was with risk in mind. His age and physical condition put the former Black Panther squarely in the highest risk categories for grave complications related to Covid-19. At the same time, as an elderly prisoner with an exemplary record of accomplishments during his incarcerated years, he poses the very lowest risk of recidivism. The coronavirus’s spread through New York’s prison populations, meanwhile, was not a risk but an inevitability. Sullivan County Supreme Court Judge Stephan Schick recognized these intersecting probabilities when, during his ruling, he said, “Mr. Muntaqim may have gotten a 25-to-life sentence, but it was not a death sentence.” Schick granted Muntaqim’s release.

That was a month ago, but Muntaqim has not been released.

Instead — as his lawyers and loved ones had feared — Muntaqim contracted Covid-19, the disease caused by the coronavirus. On Monday, he was transported from Sullivan Correctional Facility to hospital after his fever spiked and his blood oxygen level dropped to a dangerous 81 percent.

“The fact that Jalil is now hospitalized with Covid-19 is infuriating because it was entirely preventable.”

Had the judge’s April ruling been permitted to stand, Muntaqim could well have been saved this fate. His petition for release, which cited violations of the Eighth Amendment against cruel and unusual punishment, was the first writ of habeas corpus in the coronavirus era to be granted by a New York court. But the Department of Corrections and Community Supervision, represented by the office of New York Attorney General Letitia James, appealed Schick’s decision. Muntaqim’s release was stayed and, as he awaited a hearing on the appeal scheduled for Thursday, he fell gravely and predictably ill.

“The fact that Jalil is now hospitalized with Covid-19 is infuriating because it was entirely preventable,” Nora Carroll, the Legal Aid attorney representing Muntaqim, told me by email.

She said that the petition to free her client on a lifesaving and temporary basis was filed before there had been any coronavirus cases in his facility, but with the knowledge that prisons like Sullivan Correctional Facility are simply unable to prevent outbreaks of the virus. “The Sullivan County judge agreed and ordered him released to a safe place where he could quarantine,” Carroll said. “Yet he is still incarcerated because the Attorney General, representing the prison system, appealed that decision and obtained a stay pending appeal. Now he is infected, just as we said he would be.”

Carroll added that “people in prison are being left to die and this case is an apt illustration.”

As of this week, according to New York’s Department of Corrections and Community Supervision data, 492 people incarcerated in the New York State system have tested positive for Covid-19; 408 of those individuals have reportedly recovered, but 16 have died. Aligning with the vast overrepresentation of people of color in the New York prison population, 81 percent of prisoners who have died from coronavirus complications are people of color.

Muntaqim, like so many thousands of other incarcerated people, poses no risk to public safety. He has served his minimum sentence for the killing of two New York Police Department officers in 1971, and he is eligible for parole; his co-defendant was rightfully freed on parole two years ago. (Since 2000, eight former Black Panther Party members have died while incarcerated, all aged between 39 and 71; most were in their 50s and 60s.)

Those invested in social justice and the black liberation struggle have long argued for Muntaqim’s freedom. But it is not a question of political allegiance as to whether a person facing physical peril should be released during the pandemic; the release of elderly and medically vulnerable people is a public health imperative.

Medical experts and justice advocates have already expressed dismay at state leaders and officials’ inadequate response to the pandemic in prisons, including the pitifully small release numbers for incarcerated elder people. “To date, the Department has transitioned 172 individuals who are aged 55 years or older, were not committed on a violent or sex offense, and were within 90 days of release to the community in response to the COVID-19 public health emergency,” said a Department of Corrections and Community Supervision spokesperson responding to an inquiry from The Intercept. Over 350 people in total have been released under the state prisons’ pandemic-related release initiatives. (The spokesperson said the department could not comment on ongoing litigation or individuals’ medical conditions in response to inquiries about Muntaqim’s case.)

“There are all these ways people can be released, and none of them is functioning.”

Given that nearly a quarter of the 40,500 people incarcerated in New York state prisons are older adults, many with preexisting health conditions, the release figures are vanishingly small.

“There are all these ways people can be released, and none of them is functioning,” said Laura Whitehorn of the Release Aging People from Prison advocacy group. Whitehorn told me that efforts from the New York Legislature have “had no teeth whatsoever.” Attempts by prisoners to seek medical parole — sometimes granted to people with the most extreme illnesses — have mostly come to naught, she said.

Meanwhile, Gov. Andrew Cuomo has shown negligence at best and disdain for life at worst in his dismissal of questions about granting clemencies.

The government’s decision to actively pursue an appeal in Muntaqim’s case — to spend resources and time to halt the release of a man who has been incarcerated since he was 19 years old, who could be released safely into a welcoming community committed to his care — is a most vile betrayal of justice in favor of a carceral ideology.

Any reasonable effort to bar “cruel and unusual” punishment should mean emptying all prisons. But, at a time of unprecedented health risks, a failure to dramatically depopulate prisons makes a farce of the notion that “cruel and unusual punishment” is prohibited. Instead of letting an aged and infirm man go, the government is fighting to keep Muntaqim behind bars, exposed to a potentially deadly virus.

In the Department of Corrections and Community Supervision appeal, the attorney general argued that Muntaqim’s petition had failed to establish that “officials have been deliberately indifferent to a substantial risk of serious harm to his health or safety,” as is necessary to constitute an Eighth Amendment violation. The government cited numerous efforts prison facilities, including Sullivan, have made to contain the spread of the virus, such as quarantines and readily available medical care. And the state is no doubt nervous of seeing case law established that holds prison conditions to be possible constitutional violations, for which the only remedy is a person’s release.

Yet this is the threat of the pandemic atop the ongoing violence of incarceration. The fact that Muntaqim did in fact contract the virus should be proof of the insufficiency of the prison’s safety practices. Indeed, the claim at the very heart of Muntaqim’s case is that nothing, save for release from prison, can ensure the physical safety of someone in his condition during this pandemic. His current illness should be dispositive on this matter and the legal precedent should be cemented so that others can attain release on the same grounds. In the great hope that he recovers, Muntaqim himself should be released, rather than returned to prison.

“It’s time for him to come home,” Muntaqim’s 86-year-old mother, Billie Brown, told me as she held back tears on a phone call from her Georgia home. “He has a safe home to go to, where he has his own bedroom and bathroom, with friends in Rochester,” she said. “I’m just devastated, it’s such an injustice.”

The attorney general’s office has taken a different lesson from the longtime prisoner falling ill. In a brief filed prior to Thursday’s court hearing, the attorney general argued that Muntaqim’s sickness is no proof of unconstitutional treatment, nor evidence that he needs to be released.

Rather, the brief asks that the judge’s original decision to release Muntaqim now be vacated, since the circumstances of his petition have changed. He was originally granted release based on fears of contracting this potentially deadly virus, but now those fears have been realized, the brief argues that the concerns of the original petition are no longer valid.

It is hard to overstate the cynicism in such logic. And it is impossible to ignore the priorities of those in political and judicial leadership who, in the face of this health care emergency, argue that there is justice in keeping an aging and infirm man behind bars.