Failure to decarcerate led to higher rates of COVID infections in NY jails and prisons, report finds

A new report from the Legal Aid Society claims that the city’s failures to decarcerate its jails led to an increased rate of COVID-19 infections during the first years of the pandemic. Photo via the Legal Aid Society

By Jacob Kaye

When the first case of COVID-19 came to Rikers Island nearly five years ago, Marcia Bryson’s son had already been incarcerated in the jail complex for around two years.

Being held on major felony charges, his case wasn’t expected to move too quickly to begin with. But no one expected it to slow down as much as it did.

Largely because of the pandemic, Bryson’s son’s case effectively came to a standstill. It would take nearly half a decade to resolve.

During that time, her son was kept on Rikers, where the pandemic had devastating effects. Not only did the detainee, who had a history of asthma and stress-induced seizures, have his own COVID-19 health scare, but he was also impacted by the pandemic’s assault on the jails’ operations. The detainee lost nearly all access to recreational time, laundry services, personal grooming appointments, visitations and medical appointments.

Bryson begged her son’s defense attorney to get the case moving, and made numerous calls to the Department of Correction, Correctional Health Services and local elected officials in an effort to keep her son safe as mounting crises began to boil over on Rikers during the first year of the pandemic.

“It was traumatic,” Bryson told the Eagle. “The charges were one thing, but what he went through every day – the anxiety we suffered as a family, wondering if he is going to live and make it to the next day…It was scary.”

In an interview in 2021, Bryson’s son, whose name is being withheld for fear of reprisal, said that the height of the pandemic in the jails felt “like being kidnapped.”

He was hardly alone.

A new report released by the Legal Aid Society this week and shared exclusively with the Eagle details the first two years of the pandemic both inside the city’s jails and throughout the state’s criminal justice system, and the failures of local and state governments to decarcerate its jails and prisons, where the pandemic raged.

The report, which comes five years after the U.S. government first declared COVID-19 as a public health emergency, found that despite warnings from health experts, lawmakers, advocates and others, New York did little to lower the population in its jails and prisons, where social distancing was nearly impossible to maintain.

“Despite this chorus, and despite the strong public health rationale for decarceration, New York City and State missed numerous opportunities to reduce incarcerated populations with the speed or at the scale the crisis demanded, resulting in avoidable illnesses and deaths,” the report read.

The Legal Aid Society’s report also includes well over a dozen recommendations to the city’s Department of Corrections, the state’s Department of Corrections and Community Supervision, the NYPD and various oversight bodies, in an effort to improve New York’s responses to infectious diseases behind bars if or when the next pandemic arrives.

“The point of this report is not really to look backward and point fingers – it's really more about doing better in the future,” Alex Lesman, a staff attorney in the Legal Aid Society’s Criminal Law Reform unit, told the Eagle. “A lot of people in official roles tried to spring into action when the pandemic hit, but it would have been so much better if we'd had a lot of protocols in place, and, frankly, better laws and rules in place that will allow for thinning incarcerated populations before a crisis hits.”

The first COVID case identified in the city’s jails came on March 18, 2020 and the calls to decarcerate shortly followed. In a social media post, the then-chief medical officer of New York City’s Correctional Health Services implored judges and prosecutors to refrain from sending vulnerable New Yorkers to the jails, and called on them to work to release those who were already behind bars. Several days later, the Board of Correction, the civilian watchdog group charged with oversight of the DOC, made a similar call to the city’s district attorneys and judges.

Pleas were made to then-Governor Andrew Cuomo to utilize his clemency power to release elderly New Yorkers from prison, and multiple medical researchers published papers finding that decarceration was one of the best ways to prevent COVID from spreading to detainees, guards and staffers in correctional facilities.

But even with the warnings, the city and state failed to take any meaningful action to decrease populations in the jails and prisons, which are “designed to house a lot of people in close quarters,” Lesman said.

From May 2020 until September 2021, the population in the city’s jails grew nearly every month. The state’s prison population also saw an increase during that time.

COVID began to thrive during that period. Less than a month into the pandemic, the percentage of people in custody on Rikers Island who were infected with the virus was eight times the infection rate in the city as a whole. The infection rate of DOC staff at that time was also higher than the city’s average.

State prisons saw similar spikes of infection and saw at least six COVID-related deaths a month into the pandemic.

Part of the population growth in jails in prisons came because the NYPD, whose officers were also infected with COVID-19 at a higher rate than the general population during the early days of the pandemic, continued enforcement of low-level offenses and made arrests in some cases where they could have otherwise issued a summons, the report claimed.

The report recommended that in the future, “crisis response plans should include directions to police to refrain from enforcement of lowlevel, non-jailable offenses, and require that, if police do initiate contact and decide to charge low-level offenses, they issue appearance tickets for arraignment at the point of contact, rather than putting people through custodial arrest, close-quarters transportation, and detention in precinct lockups.”

As the populations grew, those with the power to reduce them took few actions to do so, the report said.

While the state’s bail reforms that went into effect at the start of 2020 initially led to fewer people being held on pre-trial detention, judges began to increase the number of cases in which they set bail as the pandemic continued into the year.

Emergency release initiatives, like the city’s work release program known as 6-A, also began to slow as the year went on.

At the state level, an initiative by Cuomo to expedite releases stalled, the report found. Also, the Board of Parole released fewer people in 2021 than it did in pre-pandemic years, the report said.

While few parts of the criminal justice system meaningfully reduced the state’s incarcerated population during the heart of the pandemic, Lesman said it wasn’t necessarily because officials were averse to the idea.

“People in decision making roles knew that something had to be done, and I would give them the benefit of the doubt that they were not callous to the needs of the system,” Lesman said. “But there was really a lack of courage and a lack of will to follow public health best practices when it diverged so much from what officials had been so used to for so many years.”

That lack of action led to excess illness not just among the incarcerated population but among staff working in the jails and prisons, Lesman said.

“Decarceration during an infectious disease outbreak is not just for the good of the people who are accused of crimes or convicted of crimes, it's for the good of the staff and the good of the public, everyone surrounding that facility,” he said. “These are not impermeable bubbles.”

“This is not just about giving a break to people in the system who may not be so sympathetic to some members of the public, but this is really about public health,” Lesman added. “This is about stopping the spread for all of us.”