The staff of Prisoners’ Legal Services is concerned about the health and safety of everyone in DOCCS custody during this pandemic. To ensure that your health and safety are protected, PLS, other prisoners’ rights advocacy organizations and Legislators have been in regular contact with DOCCS, the Board of Parole and Governor Cuomo’s office about our concerns, particularly with respect to reducing the prison population by selectively releasing people.
Eligibility for Early Release: DOCCS is currently considering for early release non-violent felony offenders who have not been convicted of sex offenses and who are within 90 days of a release date. People who meet the eligibility criteria will be evaluated for release; they are not entitled to release. In addition to the requirement that individuals have a parole approved address, there are other factors that may result in denial of early release even if an individual otherwise meets the threshold eligibility requirements.
Consideration for early release is on a rolling basis. That means that as eligible individuals approach the 90-day mark, DOCCS will review the other factors to determine whether they will be released. If you believe you qualify for release consideration, we urge you to contact your ORC to make sure that your proposed release address will be approved.
DOCCS is also considering for early release pregnant and postpartum women who are non- violent felony offenders who have not been convicted of sex offenses and who would otherwise be released within 6 months. To be released, women who meet the criteria must have stable housing and health care.
In late October, PLS contacted the Governor’s and the DOCCS Commissioner’s offices about expanding the criteria with respect to whom DOCCS will consider for early release.
Visitation: Visiting resumed at all NYS prisons in early August. When visits were resumed, DOCCS permitted an embrace between individuals and their visitors at the beginning and end of the visit.
Effective October 30, 2020 at 3:00 p.m., due to the emergence of micro-clusters in different areas of the state and upticks in several facilities, DOCCS modified its procedures: DOCCS no longer allows an embrace at the beginning or end of a visit.
On October 21, due to the high rate of infection at Greene and Elmira Correctional Facilities, visitation at these two prisons was suspended until further notice.
On October 25, due to the high rate of COVID 19 infection in the community, visitation at Southport C.F. was temporarily suspended. It was reinstated on November 7. If an individual associated with Southport C.F. tests positive for COVID-19 and the COVID-19 zone in which the prison is located is orange, visiting will again be temporarily suspended.
Transfers: On October 21, due to the high rate of infection at Greene and Elmira Correctional Facilities, DOCCS suspended transfers into and out of these two facilities until further notice.
Testing For COVID-19: In August, DOCCS began offering testing to all incarcerated individuals at many prisons. While tests are voluntary, as a precaution, DOCCS will place individuals who refuse the test in isolation for 14-days. To date, testing of the population of each prison has been completed except for the following prisons: Auburn, Coxsackie, Otisville, Queensboro, Sing Sing, Sullivan, Ulster, Washington and Woodbourne.
On November 4, 345 incarcerated individuals were infected with COVID-19. (This number includes only people who tested positive and who had not recovered). Two hundred fifty-nine(259) of the infected individuals were at Elmira, 41 were at Greene and 14 were at Cayuga.
Deaths from COVID-19: Tragically, eighteen incarcerated New Yorkers have died from COVID-19. Sixteen of the deaths occurred before May 12. The most recent death of an individual in DOCCS custody from COVID-19 was reported in mid-October. Seventeen of the incarcerated New Yorkers who died were being treated in hospitals at the time of their deaths. According to DOCCS, the two most recent deaths were of individuals who were suffering from late stage cancer when they became infected.
Reducing the Spread of the Virus: Wearing masks is one of the most effective measures for reducing the spread of Covid-19. DOCCS reports that it has provided all incarcerated individuals with surgical-type masks as well as 4 washable cloth masks. Individuals can request replacement masks if the masks that they were given are damaged. DOCCS requires correction officers, parole officers and civilian staff to wear masks while on duty. Incarcerated individuals are encouraged to wear masks and are required to wear them during movement, visits, and programming.
We strongly encourage you to wear a mask. Medical science has demonstrated that masks are an important and effective measure for controlling the spread of the virus. Masks protect the person who wears the mask as well as those who come into contact with him or her.
Scientists have not determined that people who recover from COVID-19 are immune from getting the virus a second time. Several people have been infected twice and many people do not have antibodies to the virus after they recover. For this reason, even people who have recovered from COVID-19 should continue to wear masks and maintain 6 feet between themselves and others.
Lawsuits for Release Relating to COVID-19
Due to the danger of widespread COVID-19 infection in prisons, there have been numerous lawsuits in state and federal courts seeking the release of prisoners serving sentences imposed by state court judges. To date, the lawsuits have not led to the release of any state-sentenced prisoner. The reasoning used by the courts to deny relief varies, but is rooted generally in various procedural and substantive legal hurdles. Lawsuits seeking relief for people who are not in state prison, for example pre-trial detainees and people charged with technical parole violations, have been more successful.
PLS has not ruled out bringing a lawsuit should there be significant legal and/or factual developments that change the current legal landscape. We continually monitor the situation in the NYS prisons and closely watching what is happening in courts across the country. Our goal is to take whatever action we believe is the most likely to result in the protection of – to the greatest extent possible – the health and safety of the incarcerated population.
The Impact of the Pandemic-Related Suspension of Programs
Due to efforts to control the spread of COVID-19, between mid-March and mid-June, DOCCS suspended all programming. To limit the impact that the suspension would have on the
incarcerated population’s chances of merit, parole and conditional release, PLS urged DOCCS to credit the individuals who were enrolled in these programs during the suspension with the entire period that the programs were suspended. DOCCS agreed to credit individuals who were enrolled in ASAT, CASAT, and IDDT with the period 3/16/20 through 4/10/20. PLS continues to urge DOCCS to reconsider this issue.
Changes in the State Statutes of Limitation
Due to the COVID-19 pandemic, on March 7, 2020, Governor Andrew Cuomo issued Executive Order (EO) 202 declaring a state-wide disaster emergency. On March 20, Governor Cuomo issued EO 202.8 modifying the New York the state court filing deadlines, including statutes of limitations deadlines for commencing actions, during the COVID-19 state of emergency. EO 202.8 applies to any state statutes of limitation for commencing actions that are set by Criminal Procedure Law, the Family Court Act, the Civil Practice Law and Rules, the Court of Claims Act, the Surrogate’s Court Procedure Act, and the Uniform Court Acts and by any other statute, local law, ordinance, order, rule, or regulation.
The Governor extended the terms of this EO 202.8 on a monthly basis. The last extension was on October 4, extending the modifications to deadlines through November 3. As of November 4, the suspension of the SOLs was lifted.
The Effect of Changes to the State Statutes of Limitations
EO 202.8 stated that it “tolled” – stopped the clock running – for all state court filing deadlines, including state statutes of limitations. None of the subsequent executive orders extensions used the word “toll.” The executive orders extending EO 202.8 provided that all prior “modifications” are to be continued.
Recently some debate has arisen within the New York legal community as to the precise meaning of these executive orders upon state statutes of limitations (SOLs). A statute of limitation establishes a firm and final deadline for commencing a legal action in court. The legal community has noted that there is uncertainty as to whether the Governor has the authority to toll statutes of limitations. If the Governor does not have this authority, the statutes of limitations have only been suspended. They have not actually been tolled.
There is an important distinction between SOLs that are “tolled” and SOLs that are “suspended.” If the SOLs were tolled, then for the period of time during which these executive orders have been in effect – March 20 through November 3 (228 days) – the clock counting down to a SOL deadline stopped running. Further, on November 4, an additional 228 days would be added to a SOL period, thus extending the deadline by 228 days running from November 4.
However, if the SOLs were only suspended, the only SOLs that would have been affected by the executive orders are those that would have expired during the period of suspension. And for those claims, where the SOL would have expired during the suspension period, when the suspension was finally ended on November 3, the statute of limitations deadline will also expire on that date.
No court has yet ruled on this issue. However, given the unprecedented situation that these executive orders have created, case law involving other past interruptions of statutes of limitation, and the genuine uncertainty surrounding the effect of these executive orders and the Governor’s authority to toll SOLs, PLS strongly advises caution. Missing a statute of limitations means the affected claim is forever barred from ever being brought.
Accordingly, we strongly recommend the executive orders be treated as only suspending statutes of limitations for the duration of the orders instead of tolling those deadlines. This means that if you have a potential legal claim where the statute of limitations period would have expired under normal circumstances anytime during the COVID-19 emergency suspension period – March 20 through November 3 – you should have commenced in court any such action or claim on or before November 3.
If you did not commence such an action by now, you should do so as quickly as possible – and in any event, at least within the time that a tolled deadline would expire, as explained above. However, be prepared to fact the argument that you missed the deadline. If the defendant/respondent moves to dismiss because you missed the deadline for filing, you will need to argue that the Governor tolled the deadline, that he had the legal authority to do so and that therefore your claim was timely filed.
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Posted 3/25/2020, Edited 11/12/2020 *The coronavirus public health emergency and the actions undertaken in response to it are continually changing. The information in this message is current and accurate through November 4, 2020, and supersedes prior versions of this message.
Promoting justice, fair treatment and humane conditions since 1976.
For an overview of the reasons why PLS was created and insight into why an organization like PLS is vital to New York State's system of criminal and civil justice, take 15 minutes to watch the short film : Anatomy of a Riot.
Prisoners’ Legal Services of New York (PLS) is a non-profit legal services organization founded in 1976 to provide indigent incarcerated New Yorkers access to the courts.
There are over 51,000 individuals incarcerated in 54 prisons across New York State and PLS responds to more than 10,000 requests for assistance annually.
Our mission is to provide high quality, effective legal representation and assistance to indigent prisoners, to help them to secure their civil and human rights, and to advocate for humane prisons and for a more humane criminal justice system.