New Yorkers United for Justice Principles for the Criminal Justice System in the time of COVID-19

July 15, 2020

New Yorkers United for Justice
Principles for the Criminal Justice System in the time of COVID-19

COVID-19 has upended the daily lives of all New Yorkers since March. As the state begins to look toward reopening, it is important to keep the health and safety of those going through the New York criminal justice system in mind. While the state may be in the position to begin reopening, the threat of the virus remains and the criminal justice system and its various actors must adopt policies to reflect this reality. Below are recommended principles that the state should adopt to minimize the risk of renewed outbreaks by relying on post COVID practices in policing, sentencing, incarceration, and supervision.

Policing

1. Law enforcement should, to the greatest extent possible, refrain from arresting individuals whose conduct does not pose an immediate risk to public safety. Police should instead rely on citations, warnings, and other non-custodial interventions. The most effective way to promote public safety is through civic education and leadership by example from state and local leaders.
2. Law enforcement should not make arrests for failures to adhere to social distancing guidelines or other public health orders related to COVID-19. Overreliance upon criminal prosecution to influence personal behavior is ineffective and exacerbates racial, ethnic, and economic disparity. New York has already seen disparate enforcement of public health rules, with several instances of the NYPD using extreme force on New Yorkers of color for failure to follow social distancing orders. Commendably, the NYPD has announced they will no longer make arrests for failures to wear a mask in public. This policy should be extended to all public health orders related to COVID-19 by law enforcement entities throughout the state.

Pretrial

1. Arrestees and people detained pretrial who do not pose an immediate risk of flight and who do not pose a serious risk to an identifiable person should be released on their own recognizance, with appropriate conditions as necessary.
2. Courts should review cases of individuals housed in jail pretrial every 30 days to determine whether their continued detention is necessary for the protection of public safety. This can be coordinated with prosecutors and the defendant’s attorney via email or on the phone.
3. As restrictions are lifted, the highest priority should be to release or provide a probable cause hearing for any individual arrested during the time when the applicable statutes were suspended.
4. Prosecutors should decline, defer, or postpone prosecution for offenses that do not pose an immediate risk to public safety, such as drug offenses and crimes without an identifiable victim. With the current inability to empanel juries and grand juries, New York will face a court backlog when normal operations resume. Declining, deferring, or postponing prosecution when possible will allow the court to move through this backlog without further delays to due process.

Courts

1. Courts should consider dismissing or issuing citations or fines for minor traffic-only cases and misdemeanor offenses that are not related to protecting public safety in order to ensure the system is prioritizing the most serious cases during this crisis.
2. Courts should suspend the practice of incarcerating or suspending the driver’s license of an individual who has failed to pay a fine or a fee. With over 2 million New Yorkers out of work due to COVID-19, they shouldn’t be further penalized for their inability to pay court debts.
3. Courts should work with prosecutors, law enforcement, criminal defense attorneys, and other stakeholders to continue to implement strategies to reduce pretrial jail populations, and criminal caseloads, especially as it relates to inmates over the age of 55, those diagnosed with various health conditions, and defendants charged with nonviolent offenses or technical violations.

Sentencing

1. Prosecutors should recommend and judges should impose non-incarceration sentences, such as probation, where authorized and where incarceration would be unnecessary for the protection of public safety.
2. Governor Cuomo should begin granting commutations to a wider swath of individuals whose incarceration is no longer necessary for the protection of public safety. The Governor has been provided with a list of over 120 eligible candidates for clemency from the NACDL/FAMM State Clemency Project. The Governor should begin granting these clemencies immediately to help reduce population density.
3. Dates for voluntary surrender for jail or prison sentences should be deferred and alternatives to incarceration should be employed to the maximum extent feasible. 

Prison

1. The New York Department of Corrections and Community Supervision should immediately conduct mass testing at all facilities. Currently, less than two percent of the prison population has received a COVID-19 test. The positive rate of these tests are over 65 percent, indicating a severe lack of testing and possibly a larger outbreak than has currently been identified. In order to ensure a successful reopening of the state, New York must have a clear understanding of the state of COVID-19 in its prisons. This cannot happen without adequate testing.
2. The New York Department of Corrections and Community Supervision should continue to provide masks, hand sanitizer, and soap at no cost to all incarcerated individuals until the COVID-19 crisis subsides.
3. The New York Department of Corrections and Community Supervision should provide incarcerated people with free phone calls and, where available, free video visitation and emails to their family members and support networks as long as in-person visitation remains suspended. The Department should also expand video visitation and email access to all facilities and incarcerated people. The Department should make plans to re-start in-person visitation and should not replace in-person visitation with video visitation once the COVID-19 crisis subsides.
4. Prisons should, wherever possible, utilize technology to allow for remote teaching of classes, therapy, and other rehabilitative programming, to allow for safe social distancing and continued rehabilitative efforts by those incarcerated.
5. The New York Department of Corrections and Community Supervision should ensure that all facilities have adequate and nutritious food supplies to provide all incarcerated people with three healthy meals each day, and should ensure that incarcerated people have safe access to an adequately-supplied commissary throughout the COVID-19 crisis.