Legal Aid, Kasowitz Sue For Release Of At-Risk NY Prisoners

By Jack Queen
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Law360 (April 17, 2020, 5:56 PM EDT) -- Legal Aid Society attorneys and a pro bono team at Kasowitz Benson Torres LLP have sued New York prison officials in state court for the immediate release of prisoners vulnerable to severe cases of COVID-19, saying their confinement is cruel and unusual in light of the coronavirus pandemic.

The petition for writ of habeas corpus filed Thursday on behalf of nine inmates said conditions at state prisons are ideal for the spread of the novel coronavirus, noting hundreds of prisoners and staffers have already tested positive. Keeping the elderly and sick locked up in those facilities violates their Eighth Amendment rights, the petition argued. 

The lawsuit is the latest escalation in a fight by attorneys and prison reform advocates to win the release of vulnerable inmates as the coronavirus roars through prisons and jails across the country. Five inmates and one staffer at New York prisons have so far succumbed to the disease, according to the latest official tally.  

"The closed nature of prisons fosters a uniquely intimate form of human contact," the prisoners said. "Incarcerated people and staff members occupy the same tight quarters where they breathe the same poorly ventilated air. Housing blocks and communal spaces are often filthy, with cleaning supplies and hygiene products frequently unavailable."

More than 700 prison staffers and 190 New York prison inmates have so far tested positive for COVID-19, according to the latest data from the New York Department of Corrections and Community Supervision. The lawsuit names DOCCS and three prison superintendents. 

Most of the prisoners named in the petition are approaching their release date. Eight have serious health conditions identified by public health officials as carrying greater risk of developing a fatal case of COVID-19, according to the petition. 

"The medically vulnerable and aging in each of these prisons, along with staff members, their families, and the communities to which they return on a daily basis, are all particularly imperiled by the continued spread of this deadly pathogen," the prisoners said. "Every day that the state fails to act, the risk mounts."

The prisoners are held in the Sing Sing, Bedford Hills and Taconic correctional facilities, all located in Westchester County. They suffer from diseases including HIV, diabetes and heart failure. All have family members ready to take them in upon their release, according to the petition.

The nearly 60-page filing highlights alleged failures by DOCCS to adequately protect prisoners from infections, claiming the agency's screening, testing and social distancing measures are contrary to public health guidelines. The state's prisons also lack adequate personal protective equipment and cleaning supplies, according to the petition.

DOCCS declined to comment on pending litigation. The agency said it is working to identify and possibly release incarcerated people who are 55 years of age or older, within 90 days or release and do not pose a risk to public safety.

"New York abolished the death penalty more than a decade ago, but many New Yorkers incarcerated at these facilities now essentially face a death sentencing as COVID-19 spreads and continues to claim lives," Legal Aid attorney Tina Luongo said in a statement Thursday.

The lawsuit comes a week after Legal Aid sent a letter to DOCCS and Gov. Andrew Cuomo demanding the immediate release of more than 100 incarcerated Legal Aid clients deemed uniquely vulnerable to COVID-19. Legal Aid said it has not received a response.

The 105 prisoners identified in the letter suffer from serious medical conditions, are at least 50 years old or have upcoming release dates, Legal Aid said. The group called on Gov. Cuomo to expedite the review of backlogged clemency applications and direct the state parole board to prioritize hearings, which have been postponed at many facilities amid the pandemic.

"The window of opportunity is shrinking and Albany must act now," Luongo said in a statement on April 7. 

New York attorneys and advocates have in recent weeks mounted a full-court press to reduce inmate populations through petitions, lawsuits and public pressure campaigns. The effort has met with mixed results, facing opposition from prosecutors and a patchwork of varied decisions from judges.

Last month, state court judges released 122 inmates detained in New York City jails, finding it was a violation of those vulnerable individuals' rights to lock them up during the coronavirus outbreak.

The petitioners are represented by Stefen R. Short, Dori A. Lewis, Robert M. Quackenbush, Sophia Gebreselassie, Mary Lynne Werlwas, Elizabeth L. Isaacs, Andrea Yacka-Bible and David E. Loftis of the Legal Aid Society and David J. Abrams, Jill L. Forster, Jeffrey E. Intravatola and Ann M. St. Peter-Griffith of Kasowitz Benson Torres LLP.

Counsel information for DOCCS was not available Friday.

The case is The People of the State of New York ex rel. v. Michael Capra et al. in the Supreme Court of the State of New York, County of Westchester. The case number was not available.

--Additional reporting by Frank G. Runyeon and Stewart Bishop. Editing by Janice Carter Brown.

Update: This story has been updated with a statement from DOCCS and additional counsel information. 

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