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Letter to Gov. Cuomo Supporting the Release of Incarcerated New Yorkers at Risk of Covid-19 Infection

The Brennan Center submitted a letter to Governor Andrew Cuomo urging him to use his full authority as Governor to release as many individuals as possible from incarceration for the duration of the Covid-19 pandemic.

Published: March 30, 2020

Re: Further Release of New York State Incarcerated Population at Risk of Coronavirus Infection

March 30, 2020

Dear Governor Cuomo:

The novel coronavirus repres­ents an unpre­ced­en­ted crisis for the State of New York. We write today to urge you to use your full author­ity as Governor to release as many people as possible from incar­cer­a­tion for the dura­tion of the pandemic, focus­ing on people who are espe­cially vulner­able to infec­tion. Specific­ally, we recom­mend you take the follow­ing steps, which we explain in depth below:

  • Use your clem­ency author­ity to commute the sentences of vulner­able people to time served, allow­ing their imme­di­ate release, or fash­ion other appro­pri­ate relief;
  • Expand the State’s “Merit Time Program” to reduce over­all incar­cer­a­tion; and,
  • Work with state prosec­utors to keep people who have been convicted of crimes, but not yet sentenced, out of prison for the dura­tion of the crisis.

With nearly 60,000 New York­ers already test­ing posit­ive for COVID-19, and likely tens of thou­sands of addi­tional New York­ers sick from the virus, the scope of this pandemic presents extraordin­ary chal­lenges to state and local offi­cials, includ­ing prison offi­cials, law enforce­ment, and those respons­ible for our systems of justice. foot­note1_ae4u6dj 1  New York State, “County by County Break­down of Posit­ive Cases,” last modi­fied March 28, 2020,­down-posit­ive-cases; World Health Organ­iz­a­tion, Coronavirus disease 2019 (COVID-19) Situ­ation Report – 68­use/situ­ation-reports/20200328-sitrep-68-covid-19.pdf?sfvrsn=384b­c74c_2. We are grate­ful for your efforts to keep all New York­ers safe during this pandemic.

We also applaud your Friday, March 28 order announ­cing the release of 1,100 people being held on parole viol­a­tions from jails and pris­ons across the state, 600 of whom were held in New York City jails. This is an import­ant first step toward ensur­ing that some of those who are in our state’s jails and pris­ons can remove them­selves from the close quar­ters and often unhygienic condi­tions in our correc­tional facil­it­ies. As you are aware, pris­ons and jails are places where commu­nic­able diseases spread rapidly. This is because incar­cer­ated people often live in the same cells, are double-bunked, and have to share toilets, sinks, and soap (if they are lucky enough to have access to it). foot­note2_syk52w9 2 See Lauren-Brooke Eisen, “How Coronavirus Could Affect U.S. Jails and Pris­ons,” Bren­nan Center for Justice, March 13, 2020, https://www.bren­nan­cen­­ion/how-coronavirus-could-affect-us-jails-and-pris­ons; Nath­alie Baptiste, “Correc­tional Facil­it­ies Are the Perfect Incub­at­ors for the Coronavirus,” Mother Jones, March 6, 2020, https://www.mother­­ics/2020/03/correc­tional-facil­it­ies-are-the-perfect-incub­at­ors-for-the-coronavirus/. Cramped in close quar­ters, our nation’s correc­tional facil­it­ies — includ­ing those in New York State hold­ing over 40,000 people — are essen­tially petri dishes for disease trans­mis­sion.

Even after Friday’s release order, however, vulner­able people remain in our state pris­ons, many of whom suffer from seri­ous under­ly­ing health condi­tions that put them at increased risk of contract­ing COVID-19. Specific­ally, more than 10,000 people in New York’s prison system are over the age of 50 and could be at seri­ous risk of major health complic­a­tions related to COVID-19. foot­note3_8urqwxm 3 Releas­ing Aging People in Prison, Releas­ing New York­ers From Prison is the Only Way to Save Lives in the Wake of COVID-19, 2020, 1, https://4411e058–27c0–4b13–9697–267baceaaea3.file­­d121e2af7c0.pdf. Already, 103 people have tested posit­ive for COVID-19 within New York City jails, up from just a single case on March 20th, making the rate of infec­tion within correc­tional walls almost 90 times faster than the national rate. foot­note4_rctfpjp 4 Samantha Michaels, “‘This Feels Like a Death Sentence’: Rikers Jail Inmates Speak Out As Coronavirus Cases Spread,” Mother Jones, March 27, 2020, https://www.mother­ As Dr. Homer Venters, phys­i­cian, epidemi­olo­gist, and the former chief medical officer of the NYC Correc­tional Health Services recently noted: “We espe­cially need to be concerned about every­body in a correc­tional setting with a chronic medical prob­lem who is older than age 50 or 55. It is import­ant to think about their path out of jail and prison.” foot­note5_cp5w9qf 5 Eisen, “How Coronavirus Could Affect U.S. Jails and Pris­ons.”

We write now to strongly encour­age you to use your author­ity as Governor to grant clem­ency to those in our prison system who are elderly or suffer from seri­ous medical condi­tions. As Governor, you possess the nearly unlim­ited power to grant clem­ency to people convicted and incar­cer­ated under the laws of New York State. foot­note6_w8dodpg 6 See N.Y. Const., art. IV, § 4; see also Boyd v. Pataki, 52 A.D.3d 1128, 1129–30 (3d Dep’t 2008) (“‘[T]he power to grant reprieves, commut­a­tions, and pardons is conferred upon the governor to grand upon such condi­tions and with such restric­tions and limit­a­tions, as he may think proper,’ and the exer­cise of such discre­tion and power, ‘unless illegal or impossible condi­tions are attached, is not subject to judi­cial review.’”) (internal cita­tions omit­ted). This author­ity is extraordin­ar­ily flex­ible, allow­ing you to delay punish­ment, cut a prison sentence short, or even pardon an offense outright. Further­more, the law allows you to set condi­tions on any grant of clem­ency: an order of commut­a­tion can, for example, direct people whose sentences are shortened to remain subject to super­vis­ory author­it­ies. foot­note7_5omeqr2 7 See, e.g., Vanilla v. Moran, 272 A.D. 859, 859 (3d Dep’t 1947), aff’d 298 N.Y. 796 (1949) (reject­ing perfunc­tor­ily clem­ency recip­i­ent’s claim that a condi­tion of his commut­a­tion, requir­ing him to be subject to the Parole Board, was illegal) (cited in Boyd, 52 A.D.3d at 1130); see also gener­ally Paul J. Larkin, Revital­iz­ing the Clem­ency Process, 39 Harv. J. L. & Pub. Pol’y 833, 846–48 (2016) (discuss­ing forms of clem­ency relief, gener­ally). Work­ing with State correc­tional offi­cials, your office could rapidly identify people vulner­able to the novel coronavirus and develop appro­pri­ate condi­tions for their early release. Ideally, people who are older, medic­ally comprom­ised, or near­ing the end of their prison terms could have their sentences commuted to time served and be released outright. We urge you to grant the broad­est relief to the largest group of people possible, but should this prove imprac­tic­able, we urge you to consider clem­ency relief in other forms.

The clem­ency power was created to extend mercy to those convicted of crimes. The public health epidemic we currently face in New York calls for the kind of rapid relief that only clem­ency can offer. Writ­ing in the Feder­al­ist Papers, Alex­an­der Hamilton, himself a New Yorker, drew on colo­nial law and English preced­ent to argue that the federal clem­ency power should be “as little fettered or embar­rassed,” and used proact­ively in “crit­ical moments” to defuse tension. foot­note8_qkom3yp 8 See The Feder­al­ist No. 74 (refer­en­cing, specific­ally, “seasons of insur­rec­tion or rebel­lion”); Larkin, Revital­iz­ing the Clem­ency Process, 844–48 (detail­ing the history of clem­ency in the Amer­ican system). COVID-19 has already star­ted to spread in our state’s prison system, neces­sit­at­ing quick action, and the clem­ency power gives you the author­ity to respond humanely.

There is no reason to believe that extend­ing clem­ency to espe­cially vulner­able people behind bars would jeop­ard­ize public safety. Our own research has shown that state prison sentences are often too long to begin with, and that roughly 14 percent of imprisoned people have “served suffi­ciently long prison terms and could likely be released within the next year with little risk to public safety.” foot­note9_3aat3tx 9 Lauren-Brooke Eisen et al, Bren­nan Ctr. for Justice, How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated? 8, 35–41 (2016), https://www.bren­nan­cen­­ic­ans-are-unne­ces­sar­ily-incar­cer­ated. Moreover, research­ers have shown, time and time again, that the like­li­hood of recidiv­ism plum­mets as people age. One seminal study by the U.S. Senten­cing Commis­sion found that “offend­ers over sixty years old at the time of release had a recidiv­ism rate of 16.0 percent” — roughly a quarter the rate of people released before age 21. foot­note10_ab0lou5 10 U.S. Senten­cing Comm’n, Recidiv­ism Among Federal Offend­ers: A Compre­hens­ive Over­view 5, 23 & n.56 (2016),­ism-among-federal-offend­ers-compre­hens­ive-over­view; see also Mariel Alper et al., Bureau of Justice Stat­ist­ics, 2018 Update on Pris­oner Recidiv­ism: A 9-Year Follow-Up Period (2005–2014) 8–9 & tbl.5 (2018),­tail&iid=6266. Redu­cing the incar­cer­ated popu­la­tion is a public safety imper­at­ive. Start­ing with older indi­vidu­als, people who are medic­ally comprom­ised, and people who are close to complet­ing their sentences makes sense from both a public health and crim­in­o­lo­gical perspect­ive.

We also encour­age you to use your other unique exec­ut­ive powers to shrink the prison popu­la­tion as much as possible at this crit­ical time. Specific­ally, we encour­age you to issue an exec­ut­ive order expand­ing the criteria for sentence reduc­tions under New York State’s “Merit Time” Program. foot­note11_92wckde 11 See N.Y. Correct. L. § 803(1)(d). New York State util­izes merit-time cred­its to incentiv­ize incar­cer­ated indi­vidu­als to parti­cip­ate in program­ming and avoid discip­lin­ary actions while behind bars. This “Merit Time” program provides cred­its against sentences, ulti­mately short­en­ing the length of an indi­vidu­al’s time behind bars. Given today’s public health crisis, you can — through an exec­ut­ive order — expand the New York State Depart­ment of Correc­tions and Community Super­vi­sion’s discre­tion to make addi­tional awards by loosen­ing or suspend­ing the criteria needed to award “Merit Time” cred­its. Simil­arly, Color­ado’s Governor Jared Polis recently issued an exec­ut­ive order suspend­ing the criteria for issu­ance of earned time cred­its and the caps on earn­ing them, direct­ing the Color­ado Depart­ment of Correc­tions “to make awards of earned time cred­its as it deems neces­sary and appro­pri­ate to safely facil­it­ate the reduc­tion of the popu­la­tion of incar­cer­ated persons and parolees to prevent an outbreak in pris­ons.” foot­note12_dln64cq 12 Governor Jared Polis, Exec. Order No. D 2020 016 (March 25, 2020),­WHzZle­HJ87h­m­gLuB­mX­wp­M8R74Q5x/view. A paral­lel action in New York could like­wise be used to safely reduce the size of our incar­cer­ated popu­la­tion.

Lastly, we urge you to confer with the state’s district attor­neys and encour­age them — in consulta­tion with the defense bar, judi­ciary, and appro­pri­ate public health offi­cials — to delay senten­cing for people who have been convicted of crimes but not yet remanded to prison. foot­note13_zlmmc34 13 Delay­ing senten­cing will, neces­sar­ily, delay the process of commit­ting people to prison or jail. See N.Y. Crim. Proc. L. § 430.20(1) (requir­ing commit­ment to correc­tional author­it­ies after impos­i­tion of sentence). Where people are being held in jail pending senten­cing, their contin­ued deten­tion should also be recon­sidered, and new, more leni­ent condi­tions for release set if possible. foot­note14_52qz­jon 14 See, e.g., N.Y. Crim Proc. L. § 530.45(1) (permit­ting judges to, upon applic­a­tion of the defend­ant, set less restrict­ive release condi­tions “before senten­cing” in certain cases and for certain offenses). Post­pon­ing the impos­i­tion of sentence, and releas­ing people while they await senten­cing, will ensure that justice is served while also keep­ing people out of prison and jail for the dura­tion of the crisis.

Thank you, Governor Cuomo, for your dogged­ness thus far in work­ing to protect the most vulner­able among us in addi­tion to all those who live and work in New York State. Yet as an organ­iz­a­tion based in New York state, and one that seeks to drastic­ally reduce the scale of mass incar­cer­a­tion, we urge you to take these further steps to safe­guard the lives of other New York­ers who are at grave risk of seri­ous illness or death.

End Notes