Why NYS is releasing so few inmates during the pandemic

Jul 27, 2020

Since the pandemic began, New York has released 1,400 people, all non-violent offenders. But thousands of elderly people in prison aren’t being considered for release because they’re in for a violent crime, even if they’ve served decades of their sentence and studies show they’re unlikely to reoffend. It turns out, that’s a stance even liberal politicians like Gov. Andrew Cuomo so far aren’t willing to take.

Public health experts say the best way for states to prevent a COVID-19 outbreak in prisons is to release people, to thin out the prison population. The top 10 coronavirus clusters nationwide are all in prisons.

Gov. Andrew Cuomo visiting a New York prison with Acting DOCCS Commissioner Anthony Annucci behind him.
Credit Office of the Governor

Who goes home and who gets left behind

Jose Saldaña says it’s a fluke that he’s the one who got out—that he gets to be the guy sitting at home with his wife, and going on runs in his neighborhood park.

Jose Saldaña with his wife Rosa. Saldaña went to prison for a violent crime when he was 28 and spent 38 years incarcerated.
Credit RAPP

“There are men just like me in there,” he says, referring to the prison where a lot of his friends and mentors are now hunkered down worrying about the coronavirus and have decades to go on their sentence. “They should have been walking out with me. But instead they’ll probably die in prison.” 

Saldaña was in for 38 years, up for parole and rejected four times. Then, the fifth time he saw the parole board, at age 66, something weird happened: instead of talking about Saldaña’s crime, the parole commissioner on duty that day asked him how he’d changed.

So Saldaña went home. That was a couple years ago. He spends most of his time now fighting for men and women still behind bars, leading an organization called Release Aging People in Prison. Since the pandemic hit he’s been all systems go.

“The elders, they had no protection. They are vulnerable to this virus, their bodies are not going to protect them. And all the health experts say that the elders are vulnerable to this virus.”

In response to the pandemic, Cuomo has released 1,404 people from prison so far - most of whom were a few months from their release and in for low-level offenses.

Disqualified from consideration: anyone serving time for a violent offense. That's the majority of people in prison. And leaving those people out, means leaving out many elderly, vulnerable people who Saldaña is most concerned about. And it’s not actually confronting the big problem, he says.

“If this is the criteria you use then we’re not addressing the injustices that were created by mass incarceration.”

Reforms exclude the majority of people behind bars

Saldaña’s referring to the Tough on Crime era of the ‘80s and ‘90s, when judges and prosecutors pushed really long sentences for people convicted of a violent offense. Those people who were arrested and sent away were disproportionately men and women of color. More than half of all the prison growth came from those sentences. And now, those men and women - many of whom committed their crime in their youth - are now elderly, still behind bars, living out those policies.

Sen. Joe Biden speaks at the signing of the 1994 Biden Crime Bill as Attorney General Janet Reno, President Bill Clinton and local law enforcement officials look on.

Meanwhile, politicians across the aisle agree on a need to scale back mass incarceration. But the narrative around who deserves that reform almost always leaves out people with violent offenses. And some policy experts and advocates like Wanda Bertram of the Prison Policy Initiative say it’s time for that to change, and that research bears it out.

“The framing of prisons as containing, on the one hand nonviolent offenders who shouldn't be there, and violent offenders who need to be kept away from society, can't be let out at any cost, has been an impediment to criminal justice reform for a long time.”

She points to studies that show people age out of crime and that the chances of someone reoffending plummet as they get older. 

Credit Prison Policy Initiative

And while Cuomo has called criminal justice reform, and decarceration a priority, he’s stayed far away from this issue. Bertram says being labelled soft on crime is a politician’s worst fear. Even during a pandemic. “The response from state governments has been, in our view, extremely cowardly," she says. "I understand that people have their careers to worry about, but it's unbelievable just how little states have done so far.” 

Fears of being called "soft on crime," and losing North Country prison jobs

This conversation around releasing people who are in for violent crimes - people who are now elderly, many of whom have spent decades improving themselves behind bars - tends to be pretty blunt-edged when politicians do have it.  

Conservative politicians often lead with the worst of the worst examples, rare cases of someone getting out and committing another crime. Like North Country State Sen. Joe Griffo talking about a 2014 bill to keep violent offenders in for longer.

NYS DOCCS Acting Commissioner Anthony J. Annucci says the conversation around "violent felony offenders" needs to be more nuanced.
Credit NYS DOCCS

“This individual, this serial rapist, murderer, who was released, who said he was a menace to society, should never have been released...” 

And truly confronting this question of how long a person needs to stay behind bars could mean a much more dramatic drop in the prison population than we’ve seen already. In 2018, inmates 50 and older made up a fifth of the population. Corrections officers and their legislators call that a threat to their livelihood, like North Country State Sen. Jim Tedisco speaking a rally for the state corrections union: 

“We want to create jobs and keep jobs but we want to keep our constituents safe. It makes absolutely no sense to take your jobs away and make them less safer and we are not going to let that happen.” 

But even Acting Commissioner of the Department of Corrections Anthony Annucci has said the conversation about “violent offenders” needs to be more nuanced. Responding to a state senator from Rochester a few years ago who was pushing to get rid of "good time" for anyone in on a violent crime, Annucci replied, “I think part of our problem is we use the term violent felony offender and we use a very broad brush.” 

Is this Cuomo's moment to follow through on criminal justice reform promises? Is he missing it?

So here we are in 2020: 1,300 prison staff and 600 inmates have tested positive, thousands more are aging and dying behind bars, and their families are pleading with the state to let their incarcerated loved ones out. 

Attorney Steve Zeidman has become one of the guys in New York who people go to with those pleas. Their best avenue for getting people out is Cuomo.

“The governor has the absolute power to say 'You know what? You got 50 to life; you've been in 30 years. I’m commuting your sentence; you can go home tomorrow,’” said Zeidman.

A lot of Zeidman’s clients have been in since they were practically kids. He says it’s important to understand something about the sentences these people were handed; New York is a ‘truth in sentencing’ state.

“So when you get 75 to life, you have to do the 75 years,” Zeidman explains. “You get 50 to life, you have to do the 50. And I say that because so many people across the country - hell, even in my family - that here's someone's doing 25 to life, and they say, ‘Oh, so what, they'll get out in 10 or 11 years.’ Not in New York, you must do the minimum.”

Zeidman says for the nearly 9000 people in New York doing life sentences, that basically translates to death by incarceration.

Do we believe "corrections" are actually possible? 

A national survey of crime victims shows the majority of victims say rehabilitation is more important to them than incarceration.

Zeidman says his job is not to downplay the seriousness of crimes. It’s to show that his clients really used their time behind bars to improve themselves - that those decades in the corrections system really were corrective.

Benjamin Smalls with his daughter. Smalls died while incarcerated from the coronavirus in March, after filing and being rejected for medical parole. He was 72.

Yet for those hundreds of clemency requests his clients put in, he response is almost always radio silence. 

“There are these just remarkable applications and people are saying, ‘How come I never even got an acknowledgement from the governor? I don't even know that my application was even received,’ and we write to the governor's office and we don't get an answer either. So everybody's like in purgatory, in limbo.”

This year, Cuomo commuted the sentences of three people in state prisons. None of them were in for violent crime. Since the virus hit, the Department of Corrections has granted nine people medical parole.

The cost of keeping elders locked up

Advocates and legal experts argue that the state’s unwillingness to release aging and dying violent offenders isn’t just risking a public health emergency, it’s expensive - billions of dollars expensive - $69,000 per inmate per year according to the Vera Institute. And older people, with more medical needs, cost even more to incarcerate, according to the New York State Comptroller's office.

And the main point Jose Saldaña wishes people would consider, is that these are elders missing from their communities - disproportionately Black and Latinx men and women whose neighborhoods were ripped apart by the policies of the tough on crime era.

“They could have safely been returned back to their families to their communities, and would have been an asset to revitalize these communities that need help,” Saldaña says.

The state's answer: a prison nursing home

But instead, New York did something different: It took a lot of the people that Saldaña’s talking about out of the prisons they were in and put them all together in a prison here in the North Country, Adirondack Correctional.

The department called it a therapeutic community setting; advocates like Jose Saldaña saw their worst nightmare coming true. 

“I mean, we all just finished reading and seeing on the news what happens in nursing homes. That’s real! And for the governor to just take 65-year-old men with underlying health conditions and put them in a prison, without even testing them before they left the prison? That’s insane.”

So far the Department of Corrections has confirmed two positive cases of coronavirus at Adirondack Correctional. And the Department of Corrections and Community Supervision confirmed today that a 17th person died from COVID-19 in the New York State prison system.

Hope for advocates waits in the legislature

But Jose Saldãna holds on to hope for those men. The best solution he says is a piece of legislation pending in Albany, called the Elder Parole Bill. It would give inmates who are 55 or older and have done at least 15 years of their sentence the chance for a second look.

“The Elder Parole Bill is really the only hope of ever having the opportunity to return back to the family,” Saldaña says. 

Half of the men currently at Adirondack Correctional would be eligible under the bill. And while it’s supported by Democratic lawmakers who represent the communities most of those incarcerated men call home, the bill is already seeing major push-back from Republican lawmakers with prisons in their districts.