U.S. District Judge Jesse Furman. Photo: Rick Kopstein

A Manhattan federal judge on Tuesday implored Congress and the Trump administration to take "swift" and "systemic" action to protect inmates against the growing threat of the novel coronavirus in the nation's jails.

In a striking ruling, U.S. District Judge Jesse M. Furman of the Southern District of New York said he was "powerless" under federal law to order the release of a 67-year-old former doctor from the Metropolitan Detention Center in Brooklyn, where at least one inmate has contracted COVID-19, the potentially deadly illness caused by the virus.

The decision decried a case-by-case approach to emergency bail applications, which critics have lambasted in recent weeks for failing to adequately address the enormity of the coronavirus crisis, and it called for "more systemic action than a judge can grant in any one case."

"Realistically, the best—perhaps the only—way to mitigate the damage and reduce the death toll is to decrease the jail and prison population by releasing as many people as possible," Furman wrote in a 10-page opinion published Tuesday afternoon.

"There are many cases where temporary release of an inmate would be the rational and just course of action, but the law does not give a judge the authority to take it. This is one such case, and it underscores the need for a swift congressional and executive response," he said.

The ruling came in the case of Nkanga Nkanga, a former Staten Island physician who was sentenced March 12 to three years in prison for illegally prescribing oxycodone and other drugs in exchange for cash payments. Nkanga, who suffers from asthma and complications from a 2008 stroke, has not been designated to a federal prison and has since been assigned to MDC.

Nkanga, who has no prior criminal record, is not a threat to public safety and posed no risk of flight, the judge said.

At the time of Nkanga's sentencing, Furman said COVID-19 had already reached New York City, but the implications of the pandemic had not yet been widely felt within the broader community. Had he "fully anticipated" the public health crisis now gripping large parts of the U.S., Furman said he would have adjourned the sentencing and ordered Nkanga's temporary release based on the "exceptional" circumstances presented by the virus.

Federal law, however, prevents federal judges from granting bail on the "imposition or execution" of a sentence, and other other forms of statutory relief were not available in Nkanga's case, according to the ruling.

"In short, although the rational and right result is for Dr. Nkanga to be temporarily released from custody until circumstances improve, the court is powerless at this point to bring about that result," Furman said. "The tragedy is that this would not have been the case had Dr. Nkanga pleaded guilty today, instead of last fall, as the court would plainly have authority to grant him release—and would have granted him release."

The Federal Defenders of New York, among other groups, for weeks have raised the alarm that federal jails such as the MDC were ill-equipped to handle a major outbreak within their walls, and argued for the temporary release of older and immune-compromised inmates who are particularly susceptible to the disease.

The Manhattan U.S. Attorney's Office, meanwhile, has opposed most, if not all, emergency bail motions and resisted pleas for a comprehensive system to help speed the release of vulnerable inmates, David Patton, executive director of the Federal Defenders, previously told the Law Journal.

In at least one court filing over the weekend, prosecutors argued that the Bureau of Prisons had taken appropriate steps to mitigate the crisis, and there was "no reason to believe" that defendants were at "materially greater" risk of contracting COVID-19 in federal custody than they would be if released to home confinement.

The U.S. Attorney's Office has repeatedly declined to comment on its response.

MDC's warden, who is now the target of a class-action lawsuit seeking the release of the jail's nearly 540 "vulnerable" inmates, has been unable to isolate its at-risk populations due to a lack of space, and as late as March 18 had allowed inmates to move about the common areas.

According to the lawsuit, filed March 27 in Brooklyn federal court, the inmate who tested positive for the virus had been housed for a week in MDC's "intake" unit, where he had contact with "many inmates and staff" before receiving his test results.

In his opinion, Furman said that while MDC was "no place for someone considered to be high risk for COVID-19," Nkanga now faced "weeks, if not months, in purgatory—or worse—at the MDC before he can be transferred to a medical facility that is more appropriate for his conditions."

"Dr. Nkanga's case is a vivid illustration of why the dangers posed by COVID-19 to the imprisoned population cry out for action by Congress and the executive branch," Furman wrote.

"Only the political branches can do what this moment requires. The question is whether they will do so—and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him," he said.

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