Updated at 10:40 a.m.
The argument prosecutors, and sometimes judges, make is that few inmates have tested positive for COVID-19, so it’s safe to keep them incarcerated. Authorities, however, are not testing many inmates, so they don’t know how healthy they really are.
As a result, relatively few prisoners held in Erie County jails or the state’s 53 prisons who are deemed as infectious risks are being released.
Only five of Erie County’s 528 inmates have been tested, and only 52 have been released due to COVID-19 concerns.
“The standard line from the DA’s office is that ‘We don’t have any proof that the inmate population has been infected,’” said Sam Davis, a defense attorney. “To me it seems they don’t want to know.”
Meanwhile, in state prisons, only 646 of the approximately 42,000 inmates — or 1.5 percent — have been tested. Two-thirds have tested positive.
Only 162 have been released because of COVID-19 concerns. Additionally, 1,177 prison guards and other staff who interact with inmates have tested positive.
“This can be controlled or mitigated by a commitment by New York State to test everyone,” said Dr. Robert Cohen, a public health specialist whose expertise is health care in correctional institutions. “There is time to act and that time can make an enormous difference.”
The idea of mass testing people in custody in Erie County jails has not been discussed, according John Greenan, Chief of the Administrative Services Division with the Erie County Sheriff’s Office. That edict would have to come from state officials, as they supply COVID testing kits, he said.
“I am certain that we would test inmates should appropriate supplies be made available to the Sheriff’s Office,” Greenan wrote in an email. “We do currently have access to supplies to test inmates if they, in fact, meet the criteria established by the CDC for testing.”
The New York State Health Department and Centers for Disease Control and Prevention recommend testing only those who are symptomatic.
“I think it would be a bad precedent for the Sheriff’s Office to go against those state and federal guidelines while we continue to deal with testing shortage supplies,” he wrote.
Some states are moving to large-scale testing for inmates. One Ohio prison tested 2,300 prisoners and found 88 percent had contracted the virus, despite only 5 percent showing symptoms.
Inmates not being tested
In an April 27 letter, the Erie County Corrections Specialist Advisory Board, the independent oversight committee for county jails, called on the jail management division to release anyone in custody who is considered high risk.
“The county must begin this process in earnest now,” wrote Miles Gresham, chair of the advisory board. “The close proximity of inmates in the county’s jails have particular challenges to preventing disease transmission in normal circumstances, and even more so during a public health crisis.”
Three of the 53 inmates released because of COVID-19 concerns have been re-arrested, according to the Erie County District Attorney’s office.
Twenty-two were released when their remaining sentences for non-violent convictions fell below 45 days; 27 had their bail eliminated; and four technical parole violators were freed, per Gov. Andrew Cuomo’s order. In addition, 25 had their bail lowered, although it’s unclear how many have been subsequently released. Those numbers haven’t increased much in recent weeks.
Two of those re-arrested were free after their bail was dropped; one was released because their remaining sentence was less than 45 days.
Gresham, of the advisory board, said more testing of inmates is needed.
“The more mass testing that’s available, the safer everyone is — not just the inmates but the sheriff’s deputies and the other jail staff and the community when those individuals are released,” he told Investigative Post in an interview.
Neither state nor county officials are pressing for more tests, however, although County Executive Mark Poloncarz has said kits are now in ample supply.
Meanwhile, nine jail personnel have tested positive for the virus, as well as a Buffalo police lieutenant who works the day shift at central booking. An unknown number of inmates have been placed in quarantine.
The lack of reported infections has been used by judges and Erie County prosecutors to argue that jails remain safe.
Six defense attorneys told Investigative Post prosecutors have cited the lack of infections inside the jails in arguing against motions to reduce sentences or bail terms.
A lawyer who represents minors held in the county detention center on East Ferry said an assistant district attorney has used the same argument.
Supreme Court Justice Deborah Haendiges denied one lawyer’s attempt to get his client out of custody, saying the county jails are “as dangerous as Wegmans.”
Last month, in a conference with Davis, the defense attorney, Erie County Judge Maxwell Barnes said data suggested jail was safer than an East Side ZIP code she mistakenly assumed the defendant would be released to. The man, a resident of Cheektowaga, remained in jail.
“I wish they would act like it was their loved ones in there,” said Davis, the defense lawyer. “We don’t want to put the community in danger, but we don’t want people to face death if it could be avoided.”
Few releases from state prisons
To gain release from state prison because of COVID-19 concerns, Cuomo has said an inmate must be over 55 and be serving a sentence for a non-violent crime that has less than 90 days remaining. That’s resulted in the release of 154 inmates.
In addition, eight inmates who are pregnant or recently gave birth have been released.
The lack of testing and the large number of prison personnel who have tested positive for the virus are sources of concern.
“I feel all of my biggest fears are coming to fruition,” said Donna Robinson, a Buffalo woman whose daughter is serving time in Bedford Hills Correctional Facility in Westchester County. “She was sentenced 15 years to life; that doesn’t mean 15 years to death.”
At the maximum-security Bedford Hills, one inmate has died from COVID-1. Another 42 have tested positive; 35 have now recovered.
In Western New York, 27 Wende inmates have tested positive, 23 of whom have recovered. Two prisoners at the Attica prison have contracted the virus, as well.
The state tests only those inmates who have exhibited symptoms of COVID-19.
Prisoners have expressed fears about guards spreading the virus.
In an email obtained by Investigative Post, James Williams, a Wende inmate, discussed an encounter he had with a guard who wasn’t wearing a mask. The guard told Williams the state wasn’t providing masks to prison employees, according to the email.
The governor mandated on April 15th that all state prison workers wear masks. The Department of Corrections and Community Supervision told Investigative Post it will deliver masks to all state prisoners across the 52 facilities shortly.
Protective equipment for everyone inside the prisons is only one of the demands made by advocacy groups. Legislators, including Assembly Majority Leader Crystal Peoples-Stokes, have written Cuomo, urging the governor to release more people from custody.
While advocates continue pushing for more releases, polls show public sentiment is not on their side.
Fifty-two percent of New Yorkers polled (see question 32) by the Siena College Research Institute said they oppose the release of inmates who are over age 70 or have pre-existing conditions that make them susceptible to the virus.