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NY Supreme Court Rules Incarcerated People Must be Offered COVID Vaccine Immediately

Judge sides with public defenders and advocates in suit, says state’s exclusion of incarcerated people from vaccine eligibility is unconstitutional

March 29, 2021


Sam McCann, Neighborhood Defender Service of Harlem (smccann@ndsny.org)
Arianna Fishman, New York Civil Liberties Union (afishman@nyclu.org)
Redmond Haskins, The Legal Aid Society (rhaskins@legal-aid.org)
Ryan Karerat, The Bronx Defenders (rkarerat@bronxdefenders.org)
Daniel Ball, Brooklyn Defender Services (Dball@bds.org)

(New York, NY) – A judge in New York Supreme Court ruled today that Governor Cuomo violated the constitutional rights of incarcerated people in refusing to offer them a COVID-19 vaccine alongside other groups in congregate settings, and ordered that every incarcerated person in the state be made eligible for the vaccine immediately.

The court sided with a coalition of advocates – Neighborhood Defender Service of Harlem, The Bronx Defenders, The Legal Aid Society, the New York Civil Liberties Union, and Brooklyn Defender Services – who brought the suit on behalf of incarcerated people in New York City jails. The group argued that the Governor’s decision to exclude people held in jails and prisons was dangerous and discriminatory, and ignored public health guidance. The court agreed, ruling the state arbitrarily excluded incarcerated people, in violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution. Read the full decision here.

On January 11, Governor Cuomo initiated vaccination Phase 1b, which made groups living in congregate settings, such as  homeless shelters, as well as DOC staff, eligible for vaccination. But  incarcerated people, who are forced to live in the quintessentially congregate settings of jails and prisons, were generally ineligible for vaccination prior to todays’ decision, despite the extraordinary COVID-19 risks posed by those crowded environments.

Jail and prison populations are surging to pre-pandemic levels, and the infection rate is unsurprisingly spiking. As of March 18, there are 577 people currently in DOC custody with confirmed cases of COVID-19, up from 306 at the start of the year. Every day that passed without the vaccine endangered the lives of incarcerated people, as underlined by a recently-uncovered Board of Correction report on three Covid-related deaths on Rikers Island.

The exclusion of incarcerated New Yorkers from vaccination eligibility also conflicted with New York’s stated goal of ensuring equitable vaccine access for Black and brown communities, and across class lines. Poor people and Black and brown New Yorkers comprise the overwhelming majority of New York’s incarcerated population. The failure to vaccinate them compounds existing inequality.

In court on March 22nd, the coalition presented testimony from public health experts to back up its claims that the state’s decision to not vaccinate incarcerated people presented an imminent danger. The experts – as well as public health guidance –  explicitly advise that states vaccinate jail and prison staff and incarcerated people at the same time, and say the state’s action to date have been wholly inadequate. “[O]ffering vaccines only to staff and subsets of people in custody, such as those of a certain age or with underlying conditions that put them at higher risk of serious illness, is not an intervention sufficient to mitigate the inherent risk of congregate residential setting,” wrote Dr. Victoria Adewunmi in an affidavit.

The coalition also provided the court with statements from named petitioners who spoke about the persistent danger Covid-19 poses in jails and prisons. Their statements echoed the BOC report investigating deaths on Rikers last Spring.  “[Rikers Island] is very unsanitary and risky. It is impossible to stay six feet apart,” said Charles Holden in a statement. You eat together, you use the same showers. DOC does not supply masks within the housing area, so people are walking around without masks. I am simply asking to be treated fairly and with dignity.”

The court’s decision means that Governor Cuomo must make incarcerated people eligible for vaccination, and that jail and prison officials must offer the vaccine to those in custody immediately.

“Today’s decision provides a measure of overdue relief to our clients who fear for their lives and to our neighbors who lie awake at night worried about their loved ones’ safety while held in city and state custody. The state’s abdication of its responsibility to protect incarcerated people during the pandemic – culminating in its unconstitutional denial of the vaccine –  ranks as one of the cruelest and most horrifying actions I have seen in my years as a public defender,” said Alice Fontier, Managing Director of Neighborhood Defender Service of Harlem. “We are grateful that the court stepped in today to intervene in the Governor’s callous disregard of our clients’ humanity. The decision will make our jails and prisons much safer, but make no mistake: the situation remains incredibly dangerous and we urge officials to continue to reduce the jail and prison population immediately.”

“It is an affront to public health guidance and common decency that New York State had neglected to offer vaccines to all incarcerated New Yorkers in NYC DOC custody, and our legal action has now brought this cruel and discriminatory practice to its immediate end,” said Donna Lieberman, executive director at the New York Civil Liberties Union. “The NYCLU will not stop fighting for the safety and wellbeing of New Yorkers who are incarcerated, which helps keep all New Yorkers safe.”

“Governor Cuomo’s decision to withhold the vaccine from the people confined to dense,  congregate settings of jails and prisons always ignored the unambiguous public health guidance that called for priority vaccinations in this uniquely dangerous setting, and exacerbated the vastly disproportionate toll of this virus on Black and Latinx communities,” said Mary Lynne Werlwas, Director of The Legal Aid Society’s Prisoners’ Rights Project. “These New Yorkers should have had priority access to the vaccine, and this never should have required litigation.”

“The Court’s decision to expand vaccine access to all incarcerated people will bring much-needed relief to thousands of New Yorkers who badly need protection from this deadly virus. It is shameful that it took repeated legal action for the New York State government to ensure that incarcerated people have access to this critical immunization–a protection that has been accessible to people living and working in other congregate settings, including those working in prisons and jails, for over two months,” said Lisa Schreibersdorf Executive Director of Brooklyn Defender Services. “Moreover, while vaccine access is an important step towards dramatically reducing the risk of COVID-19, jails and prisons are intrinsically dehumanizing and dangerous. The best and most humane way to protect people’s health during a pandemic is to decarcerate.”

“Governor Cuomo’s ongoing, irrational, and punitive exclusion of incarcerated people from vaccine eligibility has needlessly put thousands of New Yorkers’ lives at risk,” said Justine Olderman, Executive Director of The Bronx Defenders.  “We are relieved that the court has acted today to right this terrible wrong so that each and every one of the people we represent who wants a vaccine can finally receive one.”




March 18, 2021 

Contact: Daniel Ball, dball@bds.org  




Criminal Bars Exclude Many Immigrants Who Have Had Contact with the Criminal Legal System 

(BROOKLYN, NEW YORK)Catherine Gonzalez, Senior Staff Attorney and Policy Counsel with Brooklyn Defender Services’ Immigration Practice released the following statement following the passage of the American Dream and Promise Act of 2021 (H.R. 6) in the House:

“The passage of the American Dream and Promise Act of 2021 (H.R. 6) by the House of Representatives today is a missed opportunity for the real change we need in this country’s immigration system. We appreciate that H.R. 6 brings overdue and much needed relief to many Dreamers, Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients. Still, we must highlight how its exclusions block many more from the pathway to citizenship. By excluding many immigrants who have had contact with the racist criminal legal system with criminalization bars, this legislation perpetuates the harms of past and current immigration policies.  

Brooklyn Defender Services, working at the intersections of the criminal and immigration legal systems, represents thousands of immigrant New Yorkers each year. Every day we witness the effects of the dangerous connection between these systems that target Black, Latinx, Asian, and other people of color. We are dismayed to see that not only does H.R. 6 retain the criminal bars from the existing Immigration and Nationality Act, but it also imposes new criminal bars to legalization and citizenship, largely excluding the communities who have been disproportionately and unjustly criminalized. These bars exacerbate the already discriminatory outcomes of the criminal legal system.  

We applaud Representatives Jesús G. “Chuy” García (IL), Ayanna Pressley (MA), Alexandria Ocasio-Cortez (NY), Mondaire Jones (NY,) and Pramila Jayapal (WA) and the 44 other Representatives for their efforts to remove some of the racist criminalization bars included in H.R. 6, such as the removal of the secondary review process and elimination of other grounds of criminalization.  

We urge Congress to commit to immigration legislation that ends the devastating consequences of deportation and criminalization—reform that keeps families and communities together and no longer relies on a racist and anti-poor criminal legal system to decide who is worthy of legal immigration status. Congress must reject criminalization and support a path to legalization and citizenship without excluding those communities most harmed by discriminatory and racist policing.”

Brooklyn Defender Services (BDS) is a non-profit public defense office in Brooklyn, New York. BDS provides multi-disciplinary and client-centered criminal defense, family defense, immigration and other civil legal services, and social work support to over 30,000 indigent Brooklyn residents every year. 






March 18, 2021


CONTACT: Daniel Ball, dball@bds.org



Defenders Laud Passage of Legislation to Limit Use of Solitary Confinement in New York Prisons and Jails 

(Brooklyn, NY) – Kelsey De Avila, Jail Services Project Director at Brooklyn Defender Services released the following statement calling for the enactment of the HALT Solitary Confinement Act (S. 2836/A.2277A) following the passage of the legislation in the New York State Senate earlier today and in the New York State Assembly on March 16th:

“For nearly a decade, survivors of solitary confinement and families who have lost their loved ones to solitary, joined by public defenders, social workers, mental health professionals, faith leaders, LGBTQIA+ leaders, and human rights and health advocates, have led a campaign calling for an end to the state-sponsored torture of solitary confinement in New York. This victory is a testament to their organizing, resolve, and dedication.

Today, the New York State Senate joined the Assembly in taking historic action to limit the use of solitary confinement in New York State’s prisons and jails, taking our state one step closer to addressing this ongoing human rights crisis and replacing solitary confinement with humane and effective alternatives. We thank Senator Julia Salazar and Assembly Member Jeffrion Aubry for championing this legislation, Majority Leader Andrea Stewart-Cousins and Speaker Carl Heastie for their leadership in advancing the bill, and we demand the Governor sign HALT into law immediately.”

Brooklyn Defender Services (BDS) is a public defender organization serving tens of thousands of Brooklyn residents each year since 1996. Our mission is to provide high-quality and client-centered criminal, family, immigration, and civil legal representation, as well as social work support and advocacy for people who cannot afford an attorney.




March 18, 2021

 CONTACT: Daniel Ball, dball@bds.org




Defenders Renew Call to Decarcerate and Expand Vaccine Access to Include All Incarcerated People

(Brooklyn, NY) – Kelsey De Avila, Jail Services Project Director at Brooklyn Defender Services released the following statement on the anniversary of the first reported COVID-19 case in New York City jails: 

“One year ago today, the first person incarcerated in a New York City jail tested positive for COVID-19.  In weeks preceding that milestone, we joined with advocates, incarcerated people, medical professionals, and elected officials, to warn of the grave risks that an outbreak of COVID-19 in jails and prisons poses to incarcerated people, staff, and all New Yorkers. Now, thousands of incarcerated people have contracted the virus and dozens have died. One year later, the situation is not any better. 

Each day, we hear from people incarcerated at Rikers, who report dangerous conditions. People are in units at maximum capacity where social distancing is impossible. Masks are scarce or not provided at all. Families have gone a year without hugging their loved ones in custody, only exacerbating the harms of isolation. People are missing family video visits, legal visits and video court appearances, which are a crucial opportunity to advocate for their freedom. People are wearing the same underwear for weeks, even months at a time because they are receiving only one pair, and given no opportunities to have their clothes washed. People are scared. People are isolated. People are not safe.   

The jail population is now increasing by about a hundred people each week. There are over 5,000 people incarcerated at Rikers, compared to 3,800 at the end of last April. Of those, 73% are being held pre-trial. Over half have Brad H. status, the designation given for people living with mental illness. Nearly 300 people are incarcerated in city jails on alleged technical parole violations, the highest number since last April. 

At two Board of Correction (the New York City jails oversight body) meetings this year, the Department of Correction Commissioner Cynthia Brann was asked what the DOC was doing to keep 50% capacity to ensure social distancing in jails. Her response is: ‘Though it’s ideal for social distancing, we cannot do that.’ The Commissioner has admitted that the DOC cannot protect people in its custody nor fulfill their basic responsibility to those in its care.  The Board of Corrections’ recent bombshell report on COVID deaths in NYC jails affirms that sentiment. 

Decarceration is the most effective way to keep people involved with the criminal legal system safe during the pandemic. Yet while health experts have called for releasing incarcerated people for their own safety since the beginning of the pandemic, the NYPD and its spokespeople have fear-mongered and spread lies about the dangers these lifesaving measures would pose to public safety—a stance contrary to both available data and the reality that incarcerated people are also members of the public whose fates are inextricably linked to the wellbeing of their communities, families, and loved ones. Repeatedly, and even as recently as Tuesday, the Police Commissioner and other members of the NYPD have spread disinformation about the impact of releasing people from jail on crime rates. Tragically, the City has largely opted to pander to the police and these falsehoods than to follow the science and all available evidence and to take actions mandated by compassion. The Mayor, the Governor, the District Attorneys, and the courts have not responded with the type of broad-scale decarceration that is required to keep people safe. 

We need urgent action from New York leaders.  Elected officials have begun touring New York’s prisons and jails to see firsthand how facilities are handling the pandemic and we encourage any and all to use their power to visit Rikers. Lawmakers should prioritize efforts to decarcerate, from fighting further rollbacks to bail reform to enacting legislation that reduces incarceration, like Elder Parole, Fair and Timely Parole, and the Less is More Act. District Attorneys and Judges should stop seeking bail and putting people at Rikers pre-trial. The State must expand vaccine access to incarcerated people, beyond those 60 and up. Every incarcerated person is at risk of COVID, no matter their age. 

In normal circumstances, incarceration is dehumanizing and deadly. The pandemic has laid this fact bare, and people in power must act.”





March 11, 2021


Alejandra Lopez, The Legal Aid Society, AILopez@legal-aid.org, 917-294-9348

Daniel Ball, Brooklyn Defender Services, dball@bds.org 

Ryan Karerat, The Bronx Defenders, rkarerat@bronxdefenders.org



The New York Immigrant Family Unity Project Demands Answers on Vaccination Plan for Detained Immigrants

(New York, NY) – The Legal Aid Society, Brooklyn Defender Services, and The Bronx Defenders – New York City’s defender organizations providing free legal representation to detained immigrants through the New York Immigrant Family Unity Project (NYIFUP), sent  letters demanding answers regarding plans for COVID-19 vaccine distribution to people in immigration detention. In separate letters to the U.S. Immigration and Customs Enforcement (ICE) New York field office, Bergen County Jail, and Orange County Correctional Facility, NYIFUP asked for details on how these facilities plan to ensure vaccine access for detained immigrants and people employed at the facilities, as well as plans to include educational and informational resources to ensure all people can make informed decisions about whether to take the vaccine. 

NYIFUP released the following statement:

“The need for COVID-19 vaccine access at jails, prisons, and immigration detention facilities, such as the Bergen County Jail and the Orange County Correctional Facility, is universally agreed upon by medical, public health, and corrections experts, as well as policymakers, advocates, and directly impacted people. The most basic precautions to prevent spread of COVID-19, such as social distancing and use of personal protective equipment, are nearly impossible to implement effectively in these facilities, and immigration detention centers have proven particularly vulnerable to virus outbreaks, with rates of infection 13.4 times higher than the general population. 

ICE has not published any vaccination plans, and it is not clear whether the agency has even begun to offer vaccinations to those detained in these county jails. Since the early days of this pandemic more than a year ago, ICE has consistently failed to protect people in its custody, leading to numerous deaths and unspeakable suffering, all of which were avoidable. Knowing for months that a vaccine would be available soon, ICE once again failed to take action. In light of the dangerous conditions at these facilities, ICE’s lack of transparency and failure to timely develop and implement a vaccination plan for those in immigration detention defies basic public health guidelines and underscores the agency’s disregard for human life. 

ICE puts the health and safety of everyone in immigrant detention at risk every day through their negligence and incompetence.  We call on ICE and the local facilities that hold ICE contracts to immediately provide comprehensive vaccine access to all people in custody, and to ensure that people have access to educational and informational resources they need to make informed decisions about their medical care. 

Immigration detention has never been just or safe, and our clients have long faced harmful conditions that threaten their health, safety, and lives. While access to the vaccine is an important step towards dramatically reducing the risk of COVID-19, ultimately, the best and most humane way to stop the spread of the virus is to decarcerate. To that end, we renew our demand that ICE free all immigrants from detention and halt enforcement.”

BACKGROUND: The New York Family Immigrant Unity Project (NYIFUP) is the nation’s first public defender system for immigrants facing deportation—defined as those in removal proceedings before an immigration judge. Funded by the New York City Council since July 2014, the program provides a free attorney to almost all detained indigent immigrants facing deportation at the Varick Street Immigration Court in New York City.