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

Federal officials on Friday reported minimal levels of coronavirus testing in New York City jails, as criminal defense attorneys pushed for increased accountability over conditions that they said made it nearly impossible to communicate with their clients.

As of Friday, the Metropolitan Correctional Center in Manhattan had tested only seven inmates for COVID-19, the potentially deadly respiratory disease caused by the novel coronavirus, while Brooklyn's Metropolitan Detention Center had conducted just five such tests, the jails' wardens said in a court filing.

Of the inmates tested at MCC, two had reportedly contracted the virus. Across the East River, meanwhile, four had tested positive for COVID-19, according to the filing. Five staff at MCC and seven at MDC had also tested positive, the wardens said.

The disclosures were part of an initial status report from Wardens Marti Licon-Vitale and Derek Edge, updating Chief Judge Roslynn Mauskopf of the Eastern District of New York on conditions inside their jails. 

Mauskopf on Thursday had ordered twice-weekly reports to provide judges and attorneys with "current, consistent, and accurate information," as they continue to address an influx of emergency bail applications and other coronavirus-related petitions amid the deepening coronavirus pandemic.

The Federal Defenders of New York, for weeks, has decried a lack of coronavirus testing in the two jails, where many inmates are forced to share close quarters and little can be done to follow federal guidance on hygiene and social-distancing measures, while they await trials that have now been delayed for months.

To make matters worse, the Federal Defenders said, defense attorneys have struggled to reach their clients using the jails' regular phone systems and the one videoconferencing portal available at each facility.

A year-old lawsuit filed by the Federal Defenders against the federal Bureau of Prisons, which alleged an ongoing "humanitarian crisis" at MDC, has since been expanded to include concerns about inmates' welfare amid the pandemic.

In a telephone status conference before U.S. District Judge Margo Brodie, representatives from the jails acknowledged that only about 15 to 20 legal calls were available to inmates at MDC and MCC each day, a number that fell well short of meeting the average of 40 daily requests from inmates.

Sean Hecker of Kaplan Hecker & Fink said attorneys were "frantic" to contact clients in order to assess their health issue for arranging bail motions, and pleaded for an order requiring officials to schedule calls within 48 hours of receiving the requests. If the BOP was unable to meet the demand, Hecker said, officials should have to explain to the court the reasons behind the delay.

"Folks are at a point where they're making bail applications without talking to the client precisely because they can't talk to the client," Hecker said.

"I do not believe that the BOP, as an institution from the wardens on down, has made this a priority," he said. "We literally can't have cases move forward if someone can't talk to a lawyer within two to three days."

Brodie declined to enter an order Friday mandating an increase in legal calls, but she directed the BOP to file a letter by Monday explaining why so few calls were happening. If the problem persisted into next week, Brodie said, she would be forced to grant Hecker's request.

"No one's getting access, and there has to be some accountability by BOP," Brodie said. "That should not be such a challenging thing to do. You have to do better than that."

Licon-Vitale and Edge said on Friday that "every staff member" was being screened for COVID-19 symptoms, and medical workers were evaluating new arrivals for fevers. All new inmates, they said, were being placed in quarantine for 14 days as a "precautionary measure," and those registering body temperatures of 100.4 degrees or higher would be placed in isolation.

"The inmates [in] medical isolation will be evaluated by medical staff at least twice a day, and the inmates on a medically quarantined unit will have their temperature checked twice a day," the wardens said in Friday's court filing.

Under the BOP's national 14-day "action plan," inmates are released from their cells once every three days, in small groups, to shower and use the phones.

"The national action plan will not, however, affect the provision of legal phone calls," the filing said. "Inmates will still be taken out of their cells for legal phone calls."

On Friday, federal courts in Manhattan and Brooklyn continued to hear emergency bail applications on a case-by-case basis.

David Patton, executive director of the Federal Defenders, told the Law Journal that prosecutors in the Southern District of New York continued to oppose most, if not all, motions, and the U.S. Attorney's Office has so far resisted the group's calls for a more comprehensive approach to determining the risk level for inmates inside the federal jails.

A spokesman for the office has repeatedly declined to comment on the situation.

U.S. District Judge Jesse M. Furman on Tuesday called on Congress and the Trump administration to protect inmates, saying "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."

Another case in the Eastern District, a proposed class action suit on behalf of medically vulnerable inmates seeking release from the MDC, was filed by Emery Celli Brinckerhoff & Abady and the Benjamin Cardozo School of Law's Civil Rights Clinic on March 27. Settlement talks were ongoing Friday, according to court papers.

 

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