Our Strategy for COVID-19 Immediate Inmate Release through Habeas Corpus

Every one of the over 50,000 people incarcerated New York State’s prisons and jails (not including federal and private prisons located in New York) is susceptible to dying from COVID-19 (the pandemic caused by the “novel” coronavirus discovered in 2019) in the extremely tight conditions in which they are forced to live.

Although the inmates most likely to die are the elderly and inmates with weakened immune systems, respiratory ailments and chronic health conditions, we have learned that anyone can die of the virus including young people with no known health problems.

The death toll for the incarcerated will be many times that of the general population.  This firm lost a client on Friday to coronavirus.  He was not an inmate.  He was a pharmacist with good health insurance who died despite being hospitalized early and receiving competent medical care, with no shortage of equipment, staff or supplies.

Prisoners in New York State (and elsewhere) have little to no access to health care in the best of times.  The Departments of Correction of New York City and New York State are completely unequipped to handle the massive coronavirus outbreak that is happening in New York’s prisons.  No politician who wants to remain in office will recommend diverting scarce ventilators and personal protective equipment from hospitals to prisons.

Rikers Island reported the first death of an inmate due to coronavirus yesterday.  Rikers has been repeatedly described by health experts as a “petri dish” (perfect laboratory conditions) for coronavirus infections.  Due to suspension of visitation, lack of testing and lack of transparency, the apex (peak) of new infections, and deaths reported as being due to coronavirus, will occur later inside prisons than for the general population.  But when the apex comes to the prisons, it will be many times as devastating due to lack of social distancing and inadequate to nonexistent medical care.

A sentence of months or years should not become a death sentence because the prison system is unable to provide adequate healthcare or social distancing during a pandemic.  It would be unjust and unconstitutional — for many reasons discussed on this website.  It is even more unjust to fail to protect the life and safety of inmates who are waiting for trial because they could not afford to pay bail or were denied bail by a judge.  None of these people have been convicted of the crimes charged and are presumed innocent under the United States Constitution.  It is unjust and unconstitutional to subject them to the deadly conditions in New York prisons created by the coronavirus.

Our goal is to get as many people accused or convicted of crimes out of this state’s prisons as possible without endangering the public.  The prisoners who are freed will decrease population density in the prisons, permitting some semblance of social distancing.  This will help the prisoners who are left behind survive the pandemic.

The procedure used to obtain the IMMEDIATE RELEASE of inmates who are being “illegally detained” by commencing a legal action in a civil court (not a criminal court) is called “habeas corpus”.  The right to a habeas corpus proceeding is guaranteed by the United States Constitution.  The procedures for a habeas corpus proceeding are contained in Article 70 of the New York Civil Practice Law and Rules (CPLR).

A habeas corpus proceeding under Article 70 of the CPLR is handled in a civil court, not a criminal court.  A proceeding under Article 70 of the CPLR can be used for three purposes:

  1. To obtain the IMMEDIATE RELEASE of an inmate who has been illegally incarcerated, in violation of constitutional protections discussed on this site..
  2. To reduce the bail set at arraignment to an amount that an inmate awaiting trial can afford to pay and be IMMEDIATELY RELEASED
  3. To obtain affordable bail for an inmate awaiting trial who was denied bail at arraignment, so that the inmate can be IMMEDIATELY RELEASED after paying the bail.

An Article 70 proceeding is a “summary proceeding” which means that it happens very quickly, even now when most of the New York State court system is shut down.  It would be pointless to sue the Department of Corrections to have an inmate immediately released due to COVID-19 vulnerability if the judge takes weeks or months to make a decision and the inmate is infected in the meantime.

We are currently offering free initial telephone consultations to help as many incarcerated people as possible.  If you are concerned about an inmate’s susceptibility to COVID-19, we encourage you to contact the LeNoir Law Firm right away to assert your rights before the courts become clogged with emergency requests for the release of prisoners.

2585 Broadway, Suite 251
New York, NY 10025
Office:  212-531-0284
Email:  info@habeaslawyers.com