The number of people in New York City jails has increased in recent months, reversing progress made earlier in the pandemic to reduce the jail population—and heightening advocates’ concerns about how both the city and state are managing the threat in its correctional facilities.

The number of people in New York City jails has increased in recent months, reversing progress made earlier in the pandemic to reduce the jail population—and heightening advocates’ concerns about how both the city and state are managing the threat behind bars, especially as COVID-19 cases and hospitalizations rise again citywide. 

Amid some of the deadliest days of New York’s outbreak earlier this year, and under pressure from advocates to address the threat of COVID-19 in jails and prisons, officials worked to reduce the number of people in city jails, leading to a 30 percent drop in the population over the course of six weeks, from 5,419 on March 18 to a low of 3,809 on April 29. According to an analysis by the Center for Court Innovation published last month, 630 people were released in just five days alone (March 24 to 29), some as a result of a successful lawsuit by the Legal Aid Society.

However, the jail population has been steadily rising again since the beginning of summer: There are now 4,771 people being held in city jails, according to NYC Department of Correction data as of Dec. 1. That uptick, along with the alarming rise in infection rates across New York more generally, has drawn alarm from groups like Vera Institute of Justice and the Legal Aid Society, who are urging city and state officials once again to take all actions possible to reduce the number of people in correctional facilities.

Unlike city jails, the number of people in New York State’s prisons has continued to decline this summer and fall, but the system is still grappling to contain infections, including an outbreak at Elmira Correctional Facility that sickened hundreds in October. The number of positive cases across all state facilities surpassed 2,000 this week, with 14 different prisons seeing “a significant increase” in positive cases between Dec. 3 to 11 alone, a Legal Aid analysis found.

From the start of the pandemic, advocates feared how the virus would impact jails and prisons, especially without major reductions to the number of people held there. Correctional facilities are congregate environments where people do not have the option of leaving, where it’s difficult to take control of one’s own health, and where many tend to be at higher risk of serious illness due to their age or existing health conditions.

“To neglect the most vulnerable people in the unhealthiest location where they have the least agency to protect themselves is not just a constitutional wrong,” says Jullian Harris-Calvin, Vera Institute’s program director for criminal justice reform who has also served a public defender. “It’s truly a moral and ethical failure.”

Crowding and capacity 

The Board of Correction, New York City’s independent oversight agency for jails, has also expressed concern about the population rise. The Board’s most recent weekly report on the city’s jail facilities, covering Nov. 28 to Dec. 4, reveals that a significant share of housing areas were at between 76 and 100 percent capacity. 

Crowding is of particular concern for facilities with dorm-style beds, where it’s even harder to physically distance compared to a cell-block arrangement. The Vernon C. Bain Correctional Center, for example, a barge anchored near Hunts Point in the Bronx, has 16 dormitories and 100 cells, where open housing areas were at 75 percent capacity for most of that week.

Board of Correction Chair Jennifer Jones Austin says that the Board is “seriously concerned about the recent increase in COVID cases, and the potential for spread of the virus in the jails if all preventive measures aren’t taken.” Austin wrote, in a statement to City Limits, that the Board is “calling on the City and State to take all actions possible to reduce the jail population, as was done in the spring, as a primary prevention measure.”

In state prison facilities, New York’s Department of Corrections and Community Supervision (DOCCS) says it has recently been able to eliminate double bunks in all dorms. But “people still eat in large groups in the mess hall,” notes Jennifer Scaife, the executive director of the Correctional Association of New York, an oversight organization for the state’s prisons.

 “They stand in line in the hallways on their way from programs or meals or the recreation yard– they’re in close proximity and they’re in physical spaces where ventilation is poor,” she added. 

In response to an inquiry from City Limits, an official at DOCCS wrote in a statement that the agency “is currently following all NYS DOH guidelines regarding congregate settings at each of its facilities.”

Mechanisms to limit population behind bars

The biggest driver of the city’s jail population increase has been pretrial detention, meaning people held in jail awaiting trial. As of Dec. 13, 75.6 percent of those in city jails fit this description, according to the Vera Institute’s daily snapshot from NYC Open Data. Most of these people are held on bail. 

Experts say more people have become eligible for bail in recent months due to rollbacks made in July to bail reforms that the state enacted earlier in the year, on Jan. 1. Those initial reforms were intended to eliminate the use of cash bail in a majority of arrest cases, a longtime goal of criminal justice advocates who say the practice leaves low-income New Yorkers stuck behind bars as they await trial because they can’t afford to pay. 

The reforms became a hot-button issue, drawing criticism from law enforcement stakeholders who succeeded in getting parts of the law rolled back this summer. 

“Since [the rollbacks] you can see a marked increase in the number of people who are eligible for bail. And then you can watch as prosecutors ask for bail for those people and judges set bail for those people,” says Kayla Simpson, a staff attorney at the Legal Aid Society. “I think that’s a major contributor to the rise of the pretrial population.”

Given this, Simpson argues that reducing the jail population in the courts, through the actions of judges and prosecutors directly, is crucial. One of the major mechanisms to do this is for prosecutors not to ask for bail and for judges not to set bail, she says. 

In addition to what happens in the courtroom, Simpson notes that the mayor has a mechanism to limit the number of people in jails, albeit a more limited one: Under a particular statute (Article 6-A), the city has the power to allow individuals serving a jail sentence of a year or less to serve the remainder of their time outside of a correctional facility. But the statute’s potential scope is somewhat narrow, since most people in city jails are there for reasons other than serving a city sentence: just 2.6 percent of the population, or 128 people, met that criteria as of Dec. 13. 

The governor also has the power to release people from custody who are being held on technical parole holds — meaning they were on parole and committed some kind of parole violation, such as missing a check-in meeting or failing a drug test.

“They didn’t commit any real new crime, they just violated a condition of their release, and so they’re held in jail,” says Harris-Calvin. On Dec. 13, Vera Institute’s daily snapshot showed there were 189 people detained for technical parole violations, or 3.9 percent of people in city jails.

“That is a pretty decent segment of our city jail population, so if we got rid of that number of folks that would put a big dent in it,” Harris-Calvin adds. 

On the state level, experts attribute the declining prison population numbers in recent months—43,811 people on Feb. 1 to 35,983 on Nov. 1, per data from DOCCS—to falling crime rates and the halted intake from county jails during the first months of the pandemic. While the governor did authorize some people to be released early under state law, it was with very specific criteria, and he has issued clemencies on an extremely limited basis, according to Scaife. 

The Legal Aid Society says there are hundreds of “medically vulnerable” people still stuck behind bars who quality for early release under the state’s pandemic criteria—those within 90 days of their release date serving sentences for non-violent, non-sex offenses.  

“The State’s failure to competently administer its early release initiative has trapped hundreds of medically vulnerable people in a prison system overrun with a deadly pathogen,” the organization said in a statement earlier this week. 

Testing, testing, testing

In addition to expanding the criteria for early release, advocates have renewed calls for more routine testing in both city jails and state prisons amid New York’s second wave — an area of concern since the start of the Coronavirus crisis, as City Limits previously reported.

“We’ve been recommending since the beginning of the pandemic that they need to implement a comprehensive and sustained testing regime,” says Scaife.

In state prisons, the DOCCS website states that incarcerated individuals are tested “when exhibiting symptoms and after a medical evaluation is conducted.” In city jails, Correctional Health Services (CHS) says it offers tests to all new admissions, regardless of symptoms, others who are incarcerated based on contact tracing, surveillance testing, based on symptoms or on request. 

Advocates note that the unique conditions of jails and prisons put people there at increased risk, and argue that testing should match the level of that heightened risk. Legal Aid has called on the state to test all people incarcerated at facilities that are experiencing outbreaks, “but then to broaden that testing regimen to encompass all people who are incarcerated in state prisons,” says attorney Stefen Short. 

In a statement, DOCCS said a more regular testing program is being planned in consultation with the state’s Health Department. The so-called “asymptomatic surveillance testing plan” is expected to be implemented no later than Dec. 21, and “will allow for a number of incarcerated individuals from each facility to be tested every weekday,” according to DOCCS. It will not include staff, and DOCCS did not say how many individuals would be tested regularly through the program.

There is also currently no mandatory testing for the city’s DOC staff, something Simpson says, “is a major concern.” She says infection data for city facilities is reported on a significant delay, making it difficult to glean trends until they’ve become more dangerous. 

“In a situation like a pandemic, you need much more regularly reported, current information … We need to be able to go to prosecutors and judges and explain if conditions are trending in the wrong direction,” Simpson says. “Lack of transparency has a cost.”

DOC says that the department cannot require staff testing, but did not explain why. CHS, which is in charge of contact tracing within city jails, told City Limits that, “To date, the virus still appears to be introduced into the jails by individuals newly admitted to the system or by staff.”

Peter Thorne, deputy commissioner for public information at DOC, said in a statement to City Limits that the agency is “committed to ensuring that those who work and live in our facilities are as safe as possible, and we have implemented a successful and extensive COVID Plan which includes comprehensive testing by Correctional Health Services.”

Those precautions include temperature screenings before entering any DOC facility, and staff have to answer questions about symptoms and whether they’ve potentially been exposed to COVID-19. Staff are sent home if they answer yes to any of the screening questions or if they have a fever of more than 100.4 degrees. 

Of course, these policies are less effective in preventing asymptomatic spread of the virus, and advocates say it’s just one example of how both the city and state are not doing enough to curb the spread of infection behind bars.

“One of our biggest criticisms of DOCCS and the city is how reactive they’ve been when they don’t need to be reactive, when they could be proactive, when they could be responding to the evolving understanding of how to manage the crisis,” says Simpson.

“It is incredibly frustrating, and heartbreaking, especially for people who have loved ones in custody, to watch mistakes being made when they do not need to be made, to watch deaths happen when they are preventable.”