Pleas Mounting for Release of Inmates at Risk of COVID-19

Broad and increasing calls for the release of federal and state inmates especially vulnerable to the rapid-fire COVID-19 outbreaks happening inside jails and prisons continued Tuesday, with three former federal prosecutors calling on President Donald Trump to take “bold” executive federal action “now,” and New York’s Legal Aid Society reaffirming its call for more measures.

In a New York Daily News column written by three former U.S. Department of Justice high-level prosecutors, the authors wrote that “thousands of Americans who live and work in our federal prisons are at grave risk from COVID-19, and their [federal] government is not moving quickly enough to protect them.”

“The body count has begun,” wrote co-authors Roy L. Austin Jr., Vanita Gupta and Miriam Aroni Krinsky. They added that “the first cases of COVID-19 in federal prisons were confirmed nearly four weeks ago,” and since then “the virus has spread rapidly and at least 10 people have now died, with hundreds testing positive or showing symptoms.”

Later in the detailed column, the authors specifically complained that “more proactive steps” are needed besides U.S. Attorney General William Barr’s March 26 and April 3 memoranda.

In the author’s view, “Barr suggests a complex process for considering home confinement for a small category of individuals—to be identified through an assessment tool many view as problematic and likely to perpetuate racial disparities.” Moreover, they say, Barr “categorically excluded almost half of those over age 60 and delineates numerous hurdles with little guidance on who should go home and how fast.”

The column’s authors did note that “while Barr subsequently expanded potential release to individuals with COVID-19 risk factors, he did so only at facilities where COVID-19 is already ‘materially impacting operations,’” As a result, they argued, “by the time a facility has an outbreak, it will be too late to save the most vulnerable individuals.”

Wyn Hornbuckle, a Justice Department spokesman, said in response to the authors’ commentary that “as the Attorney General [Barr] has stated, we have a duty to protect people in federal custody, and we also have an obligation to protect the public. In deciding to expand home confinement, the department is taking a proactive, but lawful and safe approach.  Proposals for the indiscriminate, wholesale release of prisoners could endanger both the rule of law and law-abiding members of the public.”

He also referred to an @OfficialFBOP tweet that said “over 40 percent of BOP’s [the Federal Bureau of Prison's] 60+ [age] population have been convicted of violent crimes or sex offenses.  BOP is moving quickly and responsibly to transfer appropriate inmates into home confinement, balancing public safety and public health.”

Austin Jr., one of the Daily News column’s authors, is now a partner at Harris, Wiltshire & Grannis and a former deputy assistant attorney general, assistant U.S. attorney and DOJ trial attorney. Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights and the former head of the DOJ’s Civil Rights Division. Krinsky is a former assistant U.S. attorney, former executive director of the Los Angeles Citizens’ Commission on Jail Violence, and the executive director of Fair and Just Prosecution.

The three authors wrote that “this inevitable tragedy” of additional deaths in federal prisons “is why we joined over 400 former DOJ officials, lawyers and federal judges—including 35 U.S. attorneys—who wrote President Trump [in March] urging him to commute sentences of elderly, medically vulnerable, or people near the end of their sentence, posing no serious safety risk.”

“This would be the best way to address dangers posed by dense, unsanitary living conditions for the 175,000 people in federal custody. We know the crisis on the horizon; that’s why we urged the president to act now to prevent more deaths,” they added.

The Legal Aid Society, in a news release Tuesday, wrote that it was “demanding” the “immediate release” of more incarcerated New Yorkers—it and other advocacy groups have won the release of some through litigation—and said that its call was underscored by the death of Walter Ance, a client who passed away Saturday from COVID-19.

“We are heartbroken over the loss of Walter Ance, our client who was held pretrial at Rikers Island for roughly 13 months. Mr. Ance suffered from a litany of health issues, but despite these conditions and warnings from the city, the Queens County District Attorney’s Office refused to consent to his release,” said Tina Luongo, attorney-in-charge of Legal Aid’s criminal defense practice. ”Our continuing efforts were entirely ignored, and as a result, Mr. Ance died handcuffed to a bed.”

Legal Aid also said that “demonstrating the rapid pace at which the virus spreads within carceral settings, in New York City, as of April 13, 2020, 323 incarcerated New Yorkers had tested positive for COVID-19.”

The group said that “already, 7.8 percent of people incarcerated in City jails have contracted COVID-19, a percentage almost 6 times higher than New York City, 7.8 times higher than New York State, and 44.2 times higher than the rest of the country.