The U.S. Constitution Requires IMMEDIATE RELEASE Of Inmates Susceptible To Death From Coronavirus

Unlike the federal government, New York State lacks a compassionate early release law to require the release of inmates with high vulnerability to death from COVID-19, such as the elderly and inmates with respiratory ailments and chronic medical conditions.  Approximately 1200 federal inmates have been released under this law due to concerns about death from coronavirus.

In New York State, the primary way of securing the release of an inmate who has been convicted of a crime and sentenced (not someone waiting for trial) with high vulnerability to death from COVID-19 is through a “habeas corpus” proceeding based upon “illegal detention”.

There is no law on the books in New York (or anywhere else to our knowledge) saying that refusing to release an inmate who is particularly susceptible to death from coronavirus is “illegal”.

Instead, we must turn to the source of all law in this country:  the United States Constitution.

Clearly, failing to release a prisoner with heightened susceptibility to death from COVID-19 (who does not pose an unreasonable threat to society) violates two provisions of the U.S. Constitution:

1. The Fifth Amendment to the U.S. Constitution states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

All inmates have (theoretically) received due process of law in the taking of their liberty through imprisonment.  Either (1) they have been convicted of a crime and received a prison sentence, or (2) they have been arrested and are in custody waiting for trial after an arraignment (due process through a hearing before a judge) at which the judge set bail too high for the inmate to afford or denied bail completely.

However, the Fifth Amendment to the U.S. Constitution also prohibits the government from taking anyone’s LIFE without due process of law.   In a habeas corpus proceeding, the inmate’s attorney can argue that detention of an inmate with heightened susceptibility to death from COVID-19 is illegal, because it poses such an extraordinarily high risk of death that it is a “deprivation of life” without due process of law in violation of the Fifth Amendment.

2. The Eighth Amendment to the U.S. Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Even if an inmate with heightened susceptibility to coronavirus does not end up dying from it, being forced to live in an environment in which you are likely from exposure to a lethal virus is clearly cruel and unusual punishment that violates the U.S. Constitution.

Courts have acknowledged that “deliberate indifference” of a prison official can violate the Eighth Amendment. The failure to provide needed medical care to an inmate, for example, can constitute cruel and unusual punishment where it results in harm to that person.

In these types of cases, the inmate’s attorney would need to show that:

(1) Prison officials were aware of some danger or risk of harm;

(2) The prison chose not to take any steps to remedy the problem;

(3) The failure to take action resulted in harm to the inmate.

At this point in the global pandemic, prison officials have a duty not to be indifferent (to be aware) of whether an inmate has heightened susceptibility to death from coronavirus, and to release or provide a safe environment for inmates with heightened susceptibility that will ensure against infection.

Providing such a safe environment in a New York State prison is nearly impossible to achieve, particularly since a large percentage of the prison population has chronic health problems due to poverty and inadequate medical care before they ever entered prison.  It is no secret that medical care in New York State’s prisons is inadequate to nonexistent. It is impossible for a prison to provide a safe environment and adequate medical care to all of the inmates with heightened susceptibility to death from COVID-19.

Even if an inmate with heightened susceptibility does not develop COVID-19 and die (which would make the Eighth Amendment moot), detention of a highly susceptible inmate will clearly result in harm to the inmate.

Inmates who have not been sentenced to death should not be made to live on “death row” waiting to die from a COVID-19 infection. Such confinement is psychological torture, and it is every bit as “cruel and unusual” as physical torture.  It certainly causes harm to the inmate in violation of the Eighth Amendment.

The Fifth and Eighth Amendments to the U.S. Constitution combined with New York’s habeas corpus law require the IMMEDIATE RELEASE of nonviolent inmates with heightened susceptibility to death from COVID-19.

New York State has already released large numbers of inmates with heightened susceptibility to death from COVID-19, but there are still many more left behind.  We think that many New York judges will accept these constitutional arguments as to why detention of someone with heightened susceptibility to COVID-19 is unconstitutional, and therefore the inmate must be IMMEDIATELY RELEASED. Hopefully, we will have an appellate decision soon that will force judges to accept these rock solid constitutional arguments.

For more information on habeas corpus proceedings, as well as proceedings to reduce bail or set bail when bail has been denied, please contact LeNoir Law Firm to speak with an experienced attorney about your particular situation. Thank you.

S. John LeNoir, Esq.

2585 Broadway, Suite 251
New York, NY 10025
Tel:  212-531-0284