Metropolitan Correctional Center in Manhattan. Photo: Mark Lennihan/AP

Federal defenders are expressing increasing frustration over what they see as a failure to adequately address the spread of the novel coronavirus in jails, even as federal lockups in Manhattan and Brooklyn reported their first confirmed cases among inmates.

The federal criminal dockets in recent days have seen an influx of filings from criminal defense attorneys, who argued that crowded and unsanitary conditions at the jails have put their clients at a heightened risk of contracting COVID-19, the potentially deadly respiratory illness caused by the new virus.

The situation, they said, is particularly dangerous for older inmates and those with preexisting health conditions, but also threatened corrections staff and prison health workers, who could contract the coronavirus and spread it to the larger community. Emergency bail applications, however, have been considered on a case-by-case basis, with prosecutors from the Manhattan U.S. Attorney's Office opposing most, if not all, of the requests.

Groups like the Federal Defenders of New York, meanwhile, have been lobbying for a more comprehensive approach to help speed the release of vulnerable inmates, but so far to little effect.

Among the steps floated were the implementation of a system to identify categories of inmates that could be eligible for temporary release based on the nature of their alleged offenses and risk factors, such as age and preexisting medical conditions, as well as a committee of representatives from the courts, the defense bar and U.S. Attorney's Office to more efficiently process requests.

"We're going 150 miles per hour here, but we're meeting a lot of resistance," David Patton, executive director of the Federal Defenders said when contacted by phone Tuesday. "It's slow going, and we're slogging through case by case."

A spokesman for the Manhattan U.S. Attorney's Office on Wednesday declined to comment on its position with regard to bail requests.

Patton, in previous public statements, has described federal jails as "ticking time bombs" that are ill-equipped to handle an outbreak within their walls.

But the situation became more dire Tuesday, as New York Gov. Andrew Cuomo reported that the virus was spreading more quickly than earlier projections had indicated. The outbreak  was expected to peak in New York state within 14 to 21 days, he said, rather than in early May, as previously thought.

As of Wednesday, both the Metropolitan Correctional Center in Manhattan and the Metropolitan Detention Center in Brooklyn reported that inmates had tested for the coronavirus.

The federal Bureau of Prisons, for its part, has suspended social and legal visits at jails and implemented screening protocols for inmates and staff. But attorneys have argued those measures had severely restricted access to their clients and did not go far enough to protect vulnerable inmates.

Some judges, however, have cited the COVID-19 outbreak in written decisions granting inmate's release.

Before MCC had reported its first positive test, U.S. District Judge Alison Nathan of the Southern District of New York on March 19 reversed an earlier decision denying bail to defendant Dante Stephens, who was arrested for possessing a gun while still under supervised release for dealing drugs, saying the "unprecedented and extraordinarily dangerous nature" of the pandemic had already become apparent.

"Although there is not yet a known outbreak among the jail and prison populations, inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop," Nathan wrote.

U.S. District Judge Paul Engelmayer of the Southern District on the same day stopped short of declaring the jails unsafe for pretrial detention, but did grant bail to another defendant who suffered from a progressive lung disease saying that and other medical conditions placed him at a "substantially heightened risk of dangerous complications should he contract COVID-19 as compared to most other individuals."

Still, many judges in the Southern District have refused granting bail to inmates with a history of violent offense, who may pose a flight risk or threat to public safety.

U.S. District Judge P. Kevin Castle of the Southern District of New York on Wednesday rejected claims from one inmate who claimed his long history of whooping cough exposed him to an increased risk of contracting COVID-19. The defendant, Deejay White, was charged in connection with a violent robbery and faced a 17-year mandatory minimum sentence if convicted.

"The court finds that there is no basis to change the initial determination," he said following a one-hour telephonic hearing.

U.S. District Judge Naomi Reice Buchwald of the Southern District of New York, in a decision refusing a separate bail application Wednesday, cautioned against granting requests based on overly "general" concerns about the pandemic, saying that "would logically result in the wholesale release of inmates."

"The court does not accept the proposition that such a result is either better for the inmate or for society more broadly," she wrote.

 

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