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There was a time, as the pandemic was taking hold last spring, when New York’s criminal-defense lawyers were actually feeling hopeful. Libby Fischer, managing attorney of the criminal-defense practice at the Neighborhood Defender Service of Harlem, hasn’t forgotten those days.
“There were judges—not all of them, but many—who were receptive to our arguments that our clients were facing a death sentence, potentially,” Fischer said. Those judges seemed a little more open to early release for lesser offenders. Some bail conditions were eased. New York’s jails and prisons, dangerous on a good day, were even more so with a deadly virus flying around. Or so the argument went.
“Now,” Fisher said, “it feels like those arguments are falling on deaf ears.”
And it isn’t only the judges. Despite the pleas of New York defense lawyers, Gov. Andrew Cuomo has refused to declare the state’s correctional facilities a vaccine priority, even as clients of nursing homes, homeless shelters, mental-health facilities, drug-treatment programs and other “congregate settings” are all rolling up their sleeves for the Pfizer PFE, +0.03% and Moderna MRNA, +1.51% shots.
“We’ve seen people we care about get incredibly ill,” Fischer said. “We’ve seen people die. COVID-19 is out of control on Rikers Island and in every other jail and prison in New York state. It seemed logical to us that, as soon as a vaccine was available, it would go to these people who are at so much risk and have suffered so much.”
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On Thursday, Fischer’s organization, joined by the Legal Aid Society, the New York Civil Liberties Union, the Bronx Defenders and Brooklyn Defender Services, filed a lawsuit at the state Supreme Court in the Bronx, demanding that vaccines be provided immediately to everyone behind bars. “Beyond politics and an animus toward incarcerated people,” Fischer said, “there’s really no other reason not to include them in the priority vaccination phases with other people in similar settings.”
The suit was filed in the names of two Rikers Island detainees, Alberto Frias and Charles Holden. “The past year has been the scariest of my life,” said Frias, 24. “I have asthma. And every day that passes without being vaccinated leaves me anxious that I might be the next person to get sick or that I might pass COVID along.”
“My dorm is nearly full,” said Holden, 52. “We sleep in beds that are inches apart and people are unable to wear masks.”
Hours after the lawsuit was filed, Cuomo and state Health Commissioner Howard Zucker seemed to make a small concession, ordering vaccines for inmates over 65, who would already be eligible if they weren’t locked up. State-run facilities are holding 1,075 people in that age group, about 2% of the state-prison population, according to the Department of Corrections and Community Supervision. The department just registered its 5,000th positive coronavirus test result and 30th COVID death since the pandemic began.
But so far at least, there’s no move toward widespread vaccination for state and city prisoners—and none appeared imminent at week’s end. The U.S. Centers for Disease Control and Prevention has come out in favor of vaccines for federal prisoners but has no position regarding state and local jails.
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The politics of this are obviously dicey. Many free people haven’t been vaccinated yet. Supplies are still tight. Prison inmates are not an especially popular subset of society. But some of that misses the point, the lawyers say. The state has a duty to protect the people it incarcerates, and anything that happens inside a jail or a prison will swiftly find its way to the street. No wall is tall enough to contain a highly infectious disease, not with staff and inmates coming in and out of a perfect incubator every day.
“You are sleeping with 35, 40, up to 50 strangers every night,” said Mary Lynne Werlwas, who directs the Prisoners’ Rights Project of the Legal Aid Society. “You’re on beds a few feet apart. You’re sharing bathrooms. You’re sharing toilets. You have to line up together and eat all your meals together. There’s nothing in the free world that is anywhere analogous to that.”
Staying safe from COVID-19 is tough enough on the outside, the prisoner-rights attorney said. Behind bars? Good luck.
“Right now,” Werlwas said, “we’re all wearing masks and trying to stay six-feet away from a chance encounter in the grocery store. And if someone comes close to us and is doing something that we think is risky, we can move away. In prison, your every movement is at the direction of the corrections staff. You don’t have a choice of which bed you sleep in or whether the person whose air you’re breathing 24 hours a day has symptoms or won’t wear a mask. You can’t put yourself out of harm’s way.”
Ellis Henican is an author based in New York City and a former newspaper columnist.
