Washington, DC (Dec. 23, 2021) – Two days ago, the Commissioner of New York’s Department of Corrections issued an unprecedented statement regarding the COVID crisis for individuals housed in Rikers Island. In his Statement, Commissioner Vincent Schiraldi reported that "the risks to the human beings in our custody are at a crisis level." He bases this alarm on the fact that "[u]ntil ten days ago, for the past several months our COVID positivity rate was consistently hovering at approximately 1%. Yesterday it was 9.5%. Today it is over 17%." Commissioner Schiraldi then urged criminal defense lawyers to "consider every available option to reduce the number of individuals in our jail."
This public health crisis within Rikers reflects a public health crisis in jails and prisons across the country – a crisis with impact beyond the walls of each institution given that officers, family members, and workers move in and out of these jails and prisons and that individuals housed in these facilities are released into the community sooner or later.
NACDL President Martín Antonio Sabelli issued the following statement:
"As most Americans now recognize, our criminal legal system has abused pre-trial detention for decades. The continued abuse of pre-trial detention during a public health crisis not only exacerbates this injustice but also accelerates the spread of COVID within and beyond the walls of our jails and prisons. Please keep in mind that our jails house people who are presumed innocent and could be released without any impact on public safety. We must reduce the population of our jails and prisons to protect people in custody as well as in our communities.
More guilty pleas, however, is not the answer. Fair, humane, and rational use of pre-trial release, compassionate release, and reversing overcriminalization are fundamental aspects of the answer. Defense counsel should not be asked to plead out our clients to ameliorate a crisis caused by overcriminalization and abuse of pre-trial detention especially for people of color and the indigent. Defense counsel cannot tolerate, let alone participate in, coercing guilty pleas from detained people who would rather plead guilty than risk their lives in detention.
We must use our common sense and humanity to survive the public health crisis. To do so, policymakers must commit to the principles embraced in 2020 by NACDL and a broad spectrum of policy leaders. Rather than coerce pleas through fear of being trapped in a COVID-ridden jail with poor health care, we must release individuals based on set criteria and public health recommendations; limit arrests that result in new admissions; address violations of COVID-19-related directives and orders through public health departments rather than the criminal system; develop alternatives to incarceration or re-entry that integrate public health priorities; and build and maintain connections among public health organizations, researchers, and criminal justice stakeholders. Together these recommendations reflect a public health and safety approach rather than a punitive approach which has failed us for decades and, in the context of the pandemic, is taking lives in both sides of the wall."