How New York State Let Covid-19 Run Rampant in Prisons

First, the state failed to protect people in prison from the virus. Then, it obscured the full scope of the crisis, advocates charge.

Akash Mehta   ·   May 26, 2021
A guard tower and barbed wire fencing stand outside Sing Sing, in Ossining, N.Y. | Mark Lennihan / AP Photo / The Nation

This article was published in partnership with The Nation.

For six months last year, Tranelle Drake worked up to fifteen hours a day packaging hand sanitizer—filling, capping, labeling and boxing bottles—in Great Meadow Correctional Facility, a maximum-security prison in upstate New York. He had signed up last March, putting in for a double shift as soon as he heard that incarcerated people were being enlisted to produce hand sanitizer.

It wasn’t for the pay—the most he made was 38 cents an hour. He just wanted to be of use to the outside world at a time when it seemed to be falling apart. “I did wrong to get in here, I made a mistake,” said Drake, who is two years into a thirteen-year sentence for charges of robbery, in an interview over the phone. “But I felt that I could do something to push that away.” He was pleased to find out that the hand sanitizer was sent on to hospitals, day cares, schools, and stores. “I’m happy about that,” he said. “We did a big thing, a huge thing. You should be thankful that we did that.”

But if Drake did his part to keep the state safe and clean, the favor has not been reciprocated. Tens of thousands of incarcerated New Yorkers have spent the last year in a dangerously unsanitary prison system in which Covid-19 has run rampant. “It’s just disgusting,” Drake said of Great Meadow. “You have birds that fly around in here all day. Pee and feces all over the floors, and the radiators—the heat’s barely on while it’s freezing out. You got broken windows all through it. It’s filthy. The officers walk around without masks on, and when they do have them, it’s around their neck. They don’t give you the proper cleaning supplies to be able to clean your cell.”

Few New Yorkers have been left as unprotected against the virus as the tens of thousands of people caught within its prison system. As Covid-19 surged across the state throughout the last year, just around ten percent of the prison population was granted early release. The other ninety percent—more than 32,000 people—have remained incarcerated, packed in facilities where social distancing is effectively impossible and health conditions are extremely poor. Indeed, prison watchdogs and advocates of incarcerated people say they’ve watched in horror this past year as the state agency that administers the prison system—the Department of Corrections and Community Supervision, or DOCCS—failed to take the most basic protective measures, from reducing density to providing adequate PPE to offering widespread testing. Until late March, when a judge intervened, the governor even refused to provide most people in prison with vaccines.

“You show me a Covid best practice, and I’ll show you a place that DOCCS has failed,” said Alexander Horwitz, executive director of New Yorkers United for Justice, a coalition of New York criminal justice reform organizations. “There isn’t another area of life in New York where mass testing hasn’t been the standard. There is no other population that is in general poor health and confined to congregate settings that has not been prioritized for vaccines. There is no other type of congregate setting that we have not tried to thin out in terms of density, whether we’re talking about schools, care facilities, hospitals.”

Advocates, as well as those inside the prisons, believe these failures have translated directly into the prison system’s high Covid-19 case numbers. Since the beginning of the pandemic, DOCCS has recorded over 6500 positive coronavirus tests—a figure representing twice the positivity rate of the state at large—and 35 deaths. More people in prison have tested positive for the virus in 2021 than in the entirety of 2020, even as the rate of testing declined significantly from the fall.

Yet even these statistics don’t tell the full story, advocates say. Instead, they charge, prison administrators have obscured the toll the virus has taken on their watch and refused to release information that would invite scrutiny of their response. They allege that DOCCS has refused to share crucial data on the spread of the virus and has denied access to documents that would reveal what measures have or have not been taken to combat it. Perhaps most troubling of all, advocates say that the department’s tally of deaths of incarcerated people from the virus may undercount deaths.

To Tracie Gardner, a vice president at the Legal Action Center who served as a health official in the Cuomo administration, these scenarios echo with a distressing familiarity. Like many of the sources interviewed for this story, she noted a parallel to the situation with nursing homes in New York; while there were far fewer deaths in prisons than in nursing homes, she pointed out similarities in the Cuomo administration’s refusal to share information about the spread of the coronavirus in the two systems. “I suspect there will be a similar kind of finding,” Gardner said. “Just as negligent and politically motivated as they were around the nursing homes numbers, it’s going to be the same thing with prisons.” 

Asked about these charges, DOCCS defended its response to the pandemic. “Every facet of the state’s response to the COVID-19 outbreak has been guided by facts, scientific data, and the guidance of public health experts at [the state health department] and the CDC, and the work of DOCCS to protect the safety of New York’s incarcerated population is no different,” a spokesperson said in a statement. The spokesperson noted that the agency now conducts random testing in each facility each weekday, has suspended family visitation and intake from county jails, monitors and enforces staff compliance with the mask mandate, and conducts contact tracing, isolation and testing in response to positive cases.

“No test, no nothing”

To hear those inside New York’s prisons describe it, the problems with DOCCS’s Covid-19 response began immediately. Back in the spring of 2020, prisons prohibited incarcerated people from wearing masks and took disciplinary actions against those who used clothing as makeshift masks. It wasn’t until mid-April that DOCCS required staff to wear masks—and it wasn’t until mid-May that it gave all incarcerated people masks. (The CDC recommended that people wear masks in public on April 3rd.)

Masks are hard to come by in many prisons even today. A spokesperson for DOCCS said that every incarcerated person has been supplied with over a dozen masks to date, with new mask shipments arriving at facilities every four to five weeks, but many incarcerated people reported otherwise. Robert Adams, currently incarcerated at Sing Sing Correctional Facility, a maximum-security prison in Westchester County, said that masks are only given out there once every two months—and that if people lose them, correctional officers tell them to make replacements out of shirt sleeves or handkerchiefs.

“You’re supposed to be able to tell them, ‘I need a new one, give me one,’ but they don’t,” he said. “They say make one. Make one. It’s really callous.”

In a phone call in late January, Troy Hendrix, who was incarcerated at Marcy Correctional Facility, a prison in Oneida County, for most of the pandemic, said that correctional officers there would “get upset when you’d ask for masks. They’d tell you to rewash and that’s what you got. So, the mask that I have right now I’ve had since November.”

“I had to rig it, because it doesn’t fit,” Hendrix added.

Family members are barred from mailing masks to their loved ones. “Family members were asking if they could send masks,” said Soffiyah Elijah, executive director of the Alliance of Families of Justice, a group that works with New Yorkers with loved ones in prison. “And in fact, I believe I asked directly the [DOCCS] Commissioner or his right hand person, and the answer was ‘no.’” 

Asked why family members are not permitted to mail in masks, a DOCCS spokesperson explained that incarcerated individuals are only permitted to use DOCCS-issued masks. The agency continues to review this policy, the spokesperson added.

Testing has been similarly sparse. It took eight months of urging from advocates and public health experts for DOCCS to complete testing of the entire incarcerated population in November. The agency now conducts random testing in each facility each weekday, but advocates say the level of testing is too low to detect outbreaks in advance. (Asked about this critique, a DOCCS spokesperson said the agency developed the testing program in consultation with the state Department of Health and “is confident it is sufficient to monitor for potential outbreaks.”)

Dontie “Mfalme” Mitchell said he’d been transferred between prisons four times during the pandemic. He was never tested upon arrival or departure, he said; as of this article’s publication, he has only ever been tested twice. Both Mitchell and Hendrix said they weren’t tested even after they had symptoms of sickness that they worried might be the coronavirus. Hendrix said he’d told prison medical staff about his symptoms and had asked to be tested but was only offered aspirin. “No test, no nothing,” he said. Mitchell said that he had decided against reporting his symptoms—lightheadedness and a runny nose and sore throat—because he worried that he would be put in solitary confinement.

The fear was well-grounded. When the coronavirus hit Elmira Correctional Facility last October, Jacob Rouse, a 33-year-old man who has spent nearly half his life in the New York state prison system, spent almost a month in solitary confinement after testing positive for the virus.

He had been working in the prison’s infirmary for 25 cents an hour, taking care of patients at a prison where the virus rate would soon approach 40 percent of the incarcerated population. He and other infirmary staff had been assured that if they came down with the virus, they would be given infirmary beds themselves, Rouse said. Instead, he was quarantined in a solitary confinement unit—a standard response to positive tests in maximum-security prisons throughout the state.

“We only came out a half an hour every other day. It was actually worse than solitary,” Rouse recalled, as “normal” solitary confinement affords an hour a day outside. The thirty minutes were all he was given to shower, access technology, and make a phone call to his wife, Samantha, and their two sons and two-year old daughter. “On top of that,” he added, “the staff were unwilling to answer any questions, to tell you any medical information, on how to treat it.”

"They just neglect you"

To many incarcerated people, the experience of the Covid-19 crisis has been a source of horror but not shock. They say the lack of testing and medical care reflects a chronically understaffed prison health care system that routinely denies requests for medical treatment.

In 2017, for instance, in solitary confinement in Elmira Correctional Facility, Hendrix told prison officers that his toe was hurting. The physician inspected his foot and told him he had an ingrown toenail but declined to treat it and sent him back to his cell, he said.

“Fast forward days later, weeks later, when I kept complaining every day, it got so badly infected I had to get surgery done. And the long-term effects was, I had to get surgery done once again in 2020. So, it’s a lifelong injury due to a simple neglecting of an ingrown toenail that could have been treated,” Hendrix said.

“That’s just one story,” he continued. “There’s countless stories of how with medical care, they just neglect you. People get misdiagnosed all the time, they get overlooked. If you constantly complain, they just label you a crybaby and they don't give you no medical care at all.”

Gardner, of the Legal Action Center, said that Hendrix’s story was common. “The state prison system has its own health care system, which is 20 or 30 years behind the reforms and landscape of health outside of prison walls,” she said. “You have to be sick, sick, sick in order to even get attention.”

A key contributor to the problem, Gardner and other advocates argued, is that there is scant oversight of DOCCS’ health care system. In 2019, Governor Cuomo vetoed a bill that would have charged the state health department with overseeing prison policies regarding a host of health issues, including chronic health conditions, substance use disorders, women’s and transgender health, and care for elderly individuals.

This year, legislators managed to convince the governor to sign a bill providing for health department oversight of policies around Covid-19—but only after agreeing to narrow it from the version they had initially passed, which would have provided for oversight relating to all emerging infectious diseases. The health department’s press office did not answer repeated questions about whether it has begun to implement the bill.

The governor has fought other measures to increase oversight and public scrutiny of the prison system. In December, he signed a bill passed by the legislature giving the Correctional Association of New York, an independent prison monitor, the right to inspect prisons after giving three-days notice. But he insisted that a provision giving the organization access to DOCCS records, including health records and internal management reports, be removed from the bill.

“Access to records was a non-starter for the governor’s folks,” said Jennifer Scaife, the organization’s executive director. “If we wanted to salvage anything in the bill, that had to come out whole-cloth."

"Keeping us in the dark"

The resistance to public scrutiny has been particularly glaring during the pandemic, watchdogs say—and has left incarcerated people, their families and their advocates in the dark about the spread of the virus and what exactly is being done to protect against it. 

Many other correctional departments maintain online Covid-19 dashboards providing information on testing numbers, infection rates, and death counts over time among incarcerated people and prison staff. DOCCS provides a table most weekdays with the cumulative numbers of positive and negative tests conducted at each prison to date. But it does not report when those tests were conducted (and does not make available previous cumulative tallies, which could be used to deduce more recent figures)—meaning that it provides no indicator of current positivity rates.

“The incarcerating authority makes deciphering these numbers incredibly difficult on purpose,” said Evan Misshula, a data analyst at the Correctional Association. “You look at the way DOCCS reports numbers… and it would not be unreasonable to say that they don’t want the same analysis that goes on with New York City’s numbers and New York State’s numbers with what’s going on in the prisons.”

A spokesperson for the department did not answer questions on the data it provides, except to note that its table provides the number of tests with pending results, which “can be used to determine the number of tests conducted over time.” (This data shows how many tests have recently been conducted in a facility, but not the number or proportion of recent positive results; it cannot be used to assess the current spread of the virus.)

DOCCS has also refused to share facility-by-facility staff testing data or the total number of staff tests, claiming it would pose a security risk. (At least 28 other states share this information.) Because correctional staff are thought to be the primary vectors of the virus into prisons, advocates say the data is crucial to track which facilities are at greatest risk for outbreaks. The Legal Aid Society is currently engaged in litigation to obtain the staff testing information.

Another way DOCCS has obscured the extent of the virus is simply by limiting the number of tests, multiple advocates alleged. “Part of the problem with testing, from the state’s point of view, is that if you do a lot of testing, then you know exactly how big the problem is,” Scaife said, adding that the agency has asserted on conference calls that it has no need for additional tests.

Moreover, the agency has refused to make public a wide range of basic information about how it has responded to the virus. In July, for example, Legal Aid filed a Freedom of Information Law request for materials related to medical staffing capacity; protocols for treating individuals who test positive for coronavirus but are not hospitalized; cleaning, housing and social distancing protocols; and minutes and reports from the department’s Covid-19 task force. DOCCS did not begin to return records in response to the request until more than eight months later, in mid-April—and continues not to release much of the requested information.

One purpose of keeping DOCCS’ protocols private was to protect the agency against possible legal challenges to those protocols, suggested Robert Quackenbush, a staff attorney with Legal Aid’s Prisoners Rights Project. “It handcuffed us in preparing and advocating for our clients,” he said. “They had the information; we did not; we’re entitled to it; and they were intentionally keeping us in the dark in order to gain a litigation advantage, or in order to string this out until the pandemic is ‘over.’”

Still, perhaps most troubling is the question of Covid-19 fatalities and the belief by many advocates that DOCCS’ official tally may undercount deaths. “Although COVID infections are 58% higher in the incarcerated population than the rest of NYS, COVID deaths are curiously 64% lower than the rest of the state,” a Legal Aid report from December noted.

DOCCS receives autopsy reports from county medical examiners on all deaths of incarcerated people. But the department does not report the number of autopsy reports that listed Covid-19 as a likely cause of death. Instead, a spokesperson indicated, it only tallies individuals who tested positive at the time of their death—meaning it would miss anyone who died without being tested, including in the first six months of the pandemic, when testing was extremely rare.

Jullian Harris-Calvin, director of the Greater Justice New York program for the Vera Institute, noted that the department redacts the cause of death when it provides reports of death following Freedom of Information Law requests. “There’s never been a reason to believe their death rates. It’s our belief that there’s likely a large underreporting," Harris-Calvin said.

Asked over email, the spokesperson said the department is legally prohibited from sharing individuals’ causes of death and that the law “leaves it to coroners and medical examiners to determine if results will be released and to whom." The spokesperson did not say why the department could not provide aggregate data.

The prison system’s opacity has been especially grueling for incarcerated people and their families trying to evaluate their safety. “I don’t get much information on what’s going on with other prisoners other than the fact that I know they have a few guys downstairs from us quarantined,” Mitchell said earlier this year. “I don’t know if they’ve got Covid or not.”

"They're not going to protect you"

The horrors incarcerated people have faced in the last year have been profound and consuming but were not inevitable. The state could have released more people and provided better protection for the rest. It could have tested them more and ensured better access to PPE. It could have vaccinated people earlier and given them and their families more information. Its failure on each of these counts, incarcerated people said, is an extension of the routine negligence embodied in the prison system’s crumbling infrastructure, neglect of basic medical needs, abusive officers, and near-impenetrable opacity—all of which long predated the pandemic and will long outlive it.

As the pandemic slows, incarcerated people hope that the glimmers of care and concern that the wider world has expressed during the last year will not disappear as well. They hope that the public will continue to pay attention to the ongoing toll of Covid-19 in prisons and will press for a full accounting of how the virus raged, out of sight, behind walls and bars, for more than a year. And they hope that the world will open its eyes to the many other ways the prison system breaks the body and spirit—that they will pay attention to prison labor when it’s producing furniture rather than hand sanitizer, to the department’s opacity when it’s stonewalling inquiries about officer violence rather than Covid-19 positivity rates. The consequences are too many and too serious to ignore.

“This place alone is designed to break your spirits and destroy your mind,” Hendrix said. “You add on what’s going on with this pandemic and it’s like, we don’t know what to expect. You just have to find ways to protect yourself, because they’re not going to protect you.”

Akash Mehta co-founded New York Focus and is the organization’s editor-in-chief. He grew up in New York City, and in another life he was a member of his local community board and a policy fellow at the City Council.
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