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 1) reducing the prison population by selectively releasing people, 2) increasing the amount and frequency of testing and 3) offering vaccinations to incarcerated individuals.
Eligibility for Early Release: DOCCS is currently continuing to consider 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 early 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 nonviolent 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.
As of February 26, DOCCS had granted early release from prison to 3,032 individuals.
Changes in DOCCS Operations Due to Rising Numbers of COVID-19 Cases
Visitation: Due to an increasing number of infections in the community and among DOCCS staff and the incarcerated population, on December 28 visitation was suspended. As of March 12, DOCCS had not lifted the suspension.
In light of the suspension of visits, DOCCS, in partnership with its phone and tablet vendor, is providing the following free services:
DOCCS is also providing each incarcerated individual with the equivalent of 2 free USPS one ounce postage stamps. Unused postage cannot be carried over to the next week.
The Impact of the Pandemic-Related Suspension of Programs: As of the end of February, 2021, DOCCS has resumed group programming at most facilities. As of March 12, a few prisons remain on pause due to local outbreaks of the virus. Where group programs are suspended, DOCCS presents some of its education, vocation and drug treatment programs by means of written materials, such as workbooks, and materials on the tablets.
To date, lawsuits challenging the impact of the suspension of programming that is required for release has been unsuccessful. See, e.g., Matter of Brandon Franz v. Anthony Annucci, 2021 WL 97607 (Sup. Ct. Albany Co. Jan. 21, 2021) (Court rejects challenge to denial of merit time that plaintiff argued was due the suspension of programs) and People ex rel. Dusten Rhodes v. William Fennessy, Index No. 2020-002262 (Sup. Ct. Oneida Co. Dec. 2, 2020) (finding that because there are no statutory deadlines for enrolling an individual in shock incarceration, DOCCS’ failure to enroll the petitioner until 5½ months after his Shock eligibility date was permissible.)
Transfers: On March 31, due to the reduction in COVID-19 cases in the community and within DOCCS facilities, transfers of individuals from the county jails to DOCCS will resume.
The rate of transfers from one prison to another which, due to rising numbers of infections, had been slowed and prioritized for medical emergencies and disciplinary confinement and releases, is expected to return to normal as well.
Vaccines: In late February, DOCCS began offering the COVID-19 vaccine to incarcerated individuals who are ages 65 and over. DOCCS is now offering the vaccine to individuals with co-morbidities regardless of age. Co-morbidities include severe obesity, Type 1 or 2 diabetes, sickle cell disease, liver disease, heart conditions, chronic kidney disease and pulmonary disease. See the PLS Vaccination Fact Sheet to learn about the safety and efficacy of the vaccinations.
Testing For COVID-19: In consultation with the NYS Department of Health, DOCCS developed an asymptomatic surveillance testing plan (ASTP). This plan calls for testing a number of incarcerated individuals from multiple housing units in each facility every weekday, in order to avert potential outbreaks and target resources to facilities and housing units identified as potential problems. The ASTP is in addition to testing individuals who display symptoms and those who have been exposed to an individual who tested positive. While tests are voluntary, as a precaution, DOCCS will place individuals who refuse the test in isolation for 14 days.
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 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 at PLS 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.
Due to the danger of widespread COVID-19 infection in prisons, there have been numerous lawsuits in state and federal courts throughout the United States seeking the release of prisoners serving sentences imposed by state court judges. To date in New York, the lawsuits have led to the release of only one New York State prisoner; the court granted bail pending appeal to an individual in DOCCS custody. The defendant has a medical condition that, if he is infected with COVID-19, is likely to cause his death. The decision in the case, People v. George Garcia, 70 Misc.3d 206 (Sup. Ct. N.Y. Co. Oct. 8, 2020), is reported in Pro Se, Vol. 31, No. 1.
The reasoning used by the courts to deny release varies, but is rooted generally in obstacles created by various procedural and substantive legal principles. 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.
In January 2021, incarcerated individuals at Adirondack C.F. and the group Release Aging Prisoners in Prison (RAPP) brought a class action lawsuit alleging, among other claims, that the defendants were violating the Eighth Amendment rights of incarcerated individuals at Adirondack to adequate medical care. Represented by the Prisoners’ Rights Project of the Legal Aid Society and lawyers from Relman Colfax, PLLC, the plaintiffs moved for a preliminary injunction with respect to conditions and practices that they claimed unnecessarily increased the risk that they would contract COVID-19. On March 1, 2021, the magistrate-judge before whom the motion was pending denied the plaintiff’s motion for a preliminary injunction in Harper v. Cuomo, 9:21-cv-00019 (N.D.N.Y. March 1, 2021), finding that 1) the plaintiffs were unlikely to succeed on the merits of their claims, 2) the plaintiffs would not suffer irreparable harm if preliminary relief were not granted, and 3) the plaintiffs had not shown a clear likelihood that they will succeed in establishing that the Adirondack officials were deliberately indifferent to the incarcerated population’s health or safety.
PLS has not ruled out bringing a lawsuit should there be significant legal and/or factual developments that change the current legal landscape. We continue to monitor the situation in the NYS prisons and are 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, to the greatest extent possible, the protection of the health and safety of the incarcerated population.
PLS Offices and the Facilities Served
ALBANY, 41 State Street, Suite M112, Albany, NY 12207
Bedford Hills, CNYPC, Coxsackie, Eastern, Edgecombe, Great Meadow, Greene, Hale Creek, Hudson, Marcy, Mid-State, Mohawk, Otisville, Queensboro, Shawangunk, Sing Sing, Sullivan, Taconic, Ulster, Wallkill, Walsh, Washington, Woodbourne.
BUFFALO, 14 Lafayette Square, Suite 510, Buffalo, NY 14203
Albion, Attica, Collins, Gowanda, Groveland, Lakeview, Orleans, Rochester, Wende, Wyoming.
ITHACA, 114 Prospect Street, Ithaca, NY 14850
Auburn, Cape Vincent, Cayuga, Elmira, Five Points, Southport, Watertown, Willard.
NEWBURGH, 10 Little Britain Road, Suite 204, Newburgh, NY 12550
Downstate, Fishkill, Green Haven.
PLATTSBURGH, 24 Margaret Street, Suite 9, Plattsburgh, NY 12901
Adirondack, Altona, Bare Hill, Clinton, Franklin, Gouverneur, Moriah Shock, Ogdensburg, Riverview, Upstate.
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Anatomy of A Riot (Click on image to view)
Posted 3/25/2020, Edited 3/12/2021. *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 March 12, 2021, 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.