The public health argument for keeping people out of jail

Legislative Gazette file photo
Bail reformers rally on the Million Dollar Staircase in the State Capitol earlier this session.

Bail reform is one of the most controversial topics this session. While this year’s budget is intended to be bare-bones in the wake of COVID-19, Gov. Andrew Cuomo announced that he would be including bail reform in the upcoming budget.

“Bail reform is something we’ve talked about until we’re blue in the face for two years. Bail reform — we have to get done,” Gov. Andrew Cuomo said at his daily press conference on March 30.

The new state budget unveiled Thursday evening makes adjustments to the 2019 bail reform law such as “enhancing” the options for judges, including mental health referrals and requirements to attend counseling.

The budget also adds several offenses that can be bail eligible, including sex trafficking offenses, money laundering in support of terrorism in the 3rd and 4th degree, child pornography offenses, repeat offenders, and those who commit crimes resulting in death.

But some say now is not the time to begin putting more people into jails and prisons.

There are more than 80,000 cases of COVID-19 in New York and the apex of New York cases could be just 7 – 14 days away, according to state health officials.

In light of how fast the virus is spreading in New York, 40 state legislators — five senators and 35 Assembly members — signed and sent a letter to Gov. Cuomo, Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins to advocate for New Yorkers to be kept out of jail during this public health crisis.

The letter calls rollbacks inhumane as thousands of defendants would be detained for short periods of time without a trial. This would enable the spread of COVID-19 to jails and endangering inmates with chronic health conditions and outside communities.

“Bail reform rollbacks were never the answer, but they are especially irresponsible at a time when they would exacerbate a public health crisis,” the letter reads. “Proposed changes to the bail reform law would increase the number of people unjustly in jail without a trial, particularly in Black and Brown communities. This is not only inhumane, but threatens to further spread coronavirus, as well as countless other adverse public health impacts that pre-date this pandemic, and will endure after we defeat it.

“[Because of bail reform] New Yorkers are able to shelter in place at home with their families, rather than spending time in jails where their own health and the health of others would be put at risk.”

The Board of Corrections in New York City requested that city and state jails reduce their incarcerated population for public health purposes– essentially the opposite of rolling back bail reform.

“Continuing to fill our jails with non-dangerous people who have not been convicted of any crime but are unable to post bail is not only inequitable, but in the age of a global pandemic, it’s a significant public health risk,” said Assemblywoman Linda Rosenthal.

Bail reform legislation passed last spring during the budget process and went into effect January 1, 2020. It eliminated pre-trial detention and cash bail for most misdemeanors and non-violent felonies. The legislation also eliminated discretion for judges to detain potentially dangerous individuals.

Bail reform has kept more people out of jail, which was the goal of the coalition behind the reforms. In February 2020, there were 6,800 fewer people incarcerated than in February 2019, according to the state Division of Criminal Justice Services.

Lowering the populations in jails across New York is vital to preventing COVID-19 from harming the incarcerated population and correctional facility workers, said the sitting chairs of the Senate and Assembly Health Committees two weeks ago

Since then, the spread of the virus has increased dramatically. And according to the union that represents corrections officers in state prisons, 56 guards and possibly 20 inmates have tested positive for COVID-19.  

“We’re trying to have people separated and [at] reasonable distances [from each other] and [we are also] not seeing any real increase in crime,” said Harvey Epstein, D-Lower East Side, said this week. “The idea that we’re going to roll back on bail is antithetical to what we’re trying to do across the state and across the country,”

This recommendation comes from experience — in the 1990s, tuberculosis spread rapidly through the inmate population.

“Tuberculosis spread quickly at that time, and [it was] deadly. In 1991, 13 people died from tuberculosis in New York state prisons,” said Dr. Barry Cohen, the former director of Rikers Island Health Services, during a virtual-conference call on March 18. “Immediately and substantially [changing] the population in the jails [will] slow the spread of Coronavirus within the jails and mitigate the spread of virus from inside to outside.”

Instead of tuberculosis or AIDS, jails across the state must now deal with COVID-19. 

According to the Queens Eagle, there are 167 people detained and 116 prison staff in New York City jails who tested positive for COVID-19. 

On Rikers Island, there are 39 cases of the virus of 5,400 people incarcerated there, reported a member of the Legal Aid Society of NY. And the infection rate is more than five times the rate of New York city. 

Mayor Bill DeBlasio released more than 20 inmates from New York city jails as of March 23 to stop the spread of COVID-19.

Late last week, the New York State Correctional Officers & Police Benevolent Association Union President Michael B. Powers, who regularly comes in contact with prison staff as well as inmates, tested positive for COVID-19.

Powers’ statement implored the state to take action to prevent the spread of COVID-19 cases in correctional facilities by increasing access to personal protective equipment and reducing exposure of COVID-19 to inmates or essential personnel.

Yesterday, Gov. Cuomo was unable to answer a reporter’s question about the number of COVID-19 cases in upstate prisons. Reports of the COVID-19 remain unreported but the New York state Division of Parole directed jails in New York state to release inmates on parole on March 27.

Assembly Health Chair Richard Gottfried points out that putting low-level criminals behind bars for a few hours, or a few days, and then letting them free after they make bail is a sure-fire way to spread the coronavirus in communities across New York.

“Protecting bail reform is an issue of racial justice and public health with or without COVID-19,” Gottfried said. “Rolling back this important policy now would worsen a public health crisis. And ramming it through as part of an ‘accelerated’ budget process is even more offensive.”