July 15, 2020

Contact: Jessica Floyd | JFloyd@Skdknick.com |


Latest Data Shows Data Shows New York’s prison testing rate (10.56%) is far below other states

NYUJ to Cuomo: Test Every Individual In The Prison System and Reduce the Existing Prison Population While Limiting Incoming Detainees 

NEW YORK – New Yorkers United for Justice (NYUJ) today called on New York State to implement new COVID-19 principles to safeguard the state’s criminal justice system during the pandemic. In the state comparison data collected by NYUJ, New York is testing the incarcerated population at limited rates (10.56%) falling well short of states like Ohio, Michigan, California, Texas, New Jersey, Wisconsin, and Missouri. The alarming data details an underwhelming approach to prison safety during this global pandemic.

COVID-19 cannot be contained within state prisons; the spread of the virus behind bars threatens all communities. The lack of routine and consistent testing in New York state prisons remains a large blind spot that not only puts those who are incarcerated or work in correction in danger –it threatens the success of New York’s reopening.

“Put simply, addressing the spread of COVID-19 throughout the prison system is New York’s biggest oversight as the state  continues to reopen regions” said Khalil A. Cumberbatch, Chief Strategist at New Yorkers United for Justice. “The enclosed spaces of prisons makes incarcerated New Yorkers and prison staff disproportionately susceptible to COVID-19. The Governor needs to implement COVID principles for all who interact with the state’s criminal justice system. This is the only way to ensure the state’s safety as we reopen and prepare for the fall season.”

Furthermore, as New York lays out precautions for safely returning to restaurants, shops, and businesses throughout the state – we must be sure that the same precautions are taken in our entire criminal justice system to mitigate the spread of this deadly virus. Crowded courtrooms can contribute to virus transmission and can present enormous risks for all court personnel, lawyers, witnesses, accused persons, and the general public. The reopening of courts should be guided by independent medical advice. Below are recommended principles that NYUJ is urging the state to adopt to minimize the risk of renewed outbreaks by relying on post COVID practices in policing, sentencing, incarceration, and supervision.


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.  

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. 


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.  

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. 

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. 

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 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. 

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.   

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.  


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.  

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.  

Dates for voluntary surrender for jail or prison sentences should be deferred and alternatives to incarceration should be employed to the maximum extent feasible.  


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.  

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. 

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. 

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. 

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. 


About New Yorker United for Justice (NYUJ):

New Yorkers United for Justice is a statewide coalition comprised of local and national non-profit organizations committed to supporting a movement that will bring much-needed criminal justice reform to New York State and ensure that policies promote safety and fairness. NYUJ aims for legislative urgency to fix a broken criminal justice system that punishes the poor and communities of color, tears families apart, and makes New Yorkers less safe. NYUJ believes that a system that ensures equal access to justice for anyone accused in New York State, regardless of age, race, ethnicity or social economic status, disability, veteran status, sexual orientation, gender identity or expression, national origin or religion, must be the standard.