Jed S. Rakoff
We should be grateful for the passionate advocacy that public defenders like Mr. Morris bring to their calling. Over the past few months, Mr. Morris has been actively litigating in federal court in Brooklyn motions raising the same contentions regarding coronavirus and prison inmates referred to in his letter. And, without commenting on those motions (none of which are before me), I fully agree with Mr. Morris that the combination of Covid-19 and prison conditions poses a serious threat to prisoners. This, as I stated in my article, is because “social distancing is not practical, sanitary conditions are less than ideal, and medical assistance is limited.” And to this I added, “This is made all the worse by the scourge of mass incarceration.”
Mr. Morris’s letter, however, is more of an advocate’s brief than a balanced account. As of today (June 3), three months into the crisis, there has not been a single coronavirus death reported in the two federal jails in New York City (the center of the pandemic), where Mr. Morris practices. (See bop.gov/coronavirus.) And, without discounting the other perils of coronavirus, it is the risk of death that is, and must be, our primary focus.
Keeping this in mind, one can see that Mr. Morris’s statistics are misleading. As I stated in my article, “A few federal prisons have encountered significant numbers of Covid-19 cases, including fatalities, but the great majority have not.” This is still true today. Indeed, as of June 3, out of 121 federal prison facilities reported on the Bureau of Prisons website, 101 have reported no coronavirus deaths whatsoever. Furthermore, out of the 121 facilities, about 12 account for about 95 percent of the coronavirus cases (fatal and otherwise) on which Mr. Morris’s statistics rely. One should note, moreover, that according to Mr. Morris’s own statistics, “the death rate among prisoners is more than 1.3 times as many as among the general population [of the US].” Even assuming this relatively small difference is statistically significant, it hardly suggests that the lives of inmates are being threatened to the degree Mr. Morris proclaims.
Nor would we expect otherwise, for although prison conditions favor the spread of coronavirus, the relatively young age of much of the prison population makes it unlikely that those who contract the virus will suffer life-threatening consequences. Nonetheless, despite Mr. Morris’s claim that “a significant number of judges [are] oblivious” to the dangers inmates face, my colleagues have repeatedly told me that they are acutely aware that, as stated in my article, an erroneous failure to release can have “potentially fatal consequences.” Accordingly, my colleagues and I have not hesitated to release many federal inmates who, because of age and/or underlying health problems, are at very high risk and can otherwise satisfy the fairly strict legal requirements for such release. And the Bureau of Prisons, which has greater discretion in these matters, has released over three thousand such prisoners.
Most of my article was not, however, about prisoner release. The main point of my article was simply to note that, because of almost two decades of advance planning, the federal courts in New York have been able to remain open for business throughout the pandemic. A better argument Mr. Morris might have made, I respectfully suggest, is that the Bureau of Prisons appears to have done much less in the way of advance planning, thereby creating risks that might have been avoided. And while Mr. Morris views the pride I continue to take in my colleagues’ great work in keeping the federal courts running as simply a “selfcongratulatory account,” it is because of those efforts that advocates like Mr. Morris are having their motions for inmate release promptly heard and decided.