Modesto didn’t know why he was still in jail. He’d been arrested on October 31 and taken to Rikers Island charged with violating the conditions of his parole. He’d committed no crime — New York is not publishing details of his case at the request of his attorney — and argued in court that he was adhering to changes his parole officer had made to the conditions of his supervision just days earlier. A judge agreed. On March 19, after almost five months spent languishing in jail, Modesto got word that he could finally go home. But 11 days later, he was still stuck in the same Rikers dormitory trying to get off the island. “I don’t know what else to do,” the 43-year-old said on Friday in a phone call from jail. “Nobody’s telling me anything.”
Neither Modesto nor his lawyers could figure out why he was still locked up. “No one’s giving me any answers why he’s still being detained,” Mathew Finston, his attorney, said. “And it’s frustrating, because I’m his attorney and I’m supposed to know these answers.” The ordeal would’ve been infuriating on a normal day. But these days, it could also prove fatal. The novel coronavirus has descended on New York, transforming America’s most populous city into the national epicenter of a global pandemic. And if things are bad in New York — an entire new hospital had to be built at Javits Center just to handle the deluge of critical cases — then they have the makings of a humanitarian catastrophe at Rikers. The rate at which prisoners and employees at the jail complex have been infected by the coronavirus is seven times that of the city around it, which has the highest rate in the country with the world’s most confirmed cases.
“We’re at capacity, 50 men a dorm,” Modesto said. “We’re living 15 inches away from each other. You have people coughing, and my fear is that everyone that tested positive didn’t have symptoms. So how do I know if any of these people got anything?” Shiva, another Rikers prisoner, who’s been locked up since October 2 for a noncriminal parole violation and who’s being housed in a different facility, echoed Modesto’s fears. “It’s like The Walking Dead in here,” he said in a phone call on Friday. “We’re all trying to survive right now.” Things are so bad that a rare collegiality has materialized between prisoners and guards, stemming from a grim acceptance that their fates may be entwined. “The guards are being extremely nice to us. I can tell they’re terrified,” said Shiva. “Their body language is just like, ‘I’m one of you guys. Please, please just work with me.’” (At the request of their legal representatives, New York is only using the first names of the incarcerated people interviewed for this story.)
Much of this was predictable. Advocates have spent weeks warning officials that Rikers was a ticking time bomb should the coronavirus reach its shores. The consensus held by public-interest lawyers, medical practitioners, and the Board of Correction alike has been that the only way to keep the jail’s prisoners and staff safe is to get as many of them off the island as possible, as quickly as possible. Some countries and states have made accordant efforts: Iran has released 80,000 prisoners, some prisoners in Poland are being sent home to finish their sentences under electronic monitoring, and smatterings of prisoners are being released in New Jersey and New York. But more often in the U.S., that humane impulse has run up against the country’s exceptionally stiff “law and order” backlash politics; each of New York’s five district attorneys wrote this week to Mayor de Blasio to oppose any large-scale release. And short of freeing detainees from Rikers to protect them, the city has done a lackluster job of safeguarding those stuck on the island. The result is a mood of barely checked panic. Both men I interviewed described conditions that either fail to comply with, or only narrowly meet, the Department of Corrections’ standards for pandemic safety.
In an email last week, DOC Deputy Commissioner of Public Information Peter Thorne outlined several of the precautions that Rikers administrators are supposed to be taking. “All staff are advised to follow basic flu protocols such as covering nose/mouth when coughing or sneezing and washing hands frequently,” he wrote. “DOC continues to promote social distancing among people in custody, including precautions like refraining from sitting on others’ beds where possible.” Other measures include having prisoners sleep head-to-toe next to one another in dorms where, due to overcrowding, it’s not possible to keep an empty bed between them. Proper hygiene is being promoted on more than 15,000 “conspicuously posted” flyers throughout the complex. Prisoners who are either symptomatic or test positive for COVID-19 are supposed to be removed from their dorms or cells and quarantined together, sometimes in reopened facilities that had formerly been shut down. The rest are instructed to stay apart and wash their hands. “There are no places where people in custody are housed where they do not have access to sinks, soap, and water,” Thorne added.
But these standards aren’t being applied consistently, according to Rikers detainees and their attorneys. “The main thing is, we have no cleaning supplies,” Shiva said. “There’s no gloves. There’s no liquid soap. There’s no sanitizers. There’s no bleach.” Despite Thorne’s claims that “phones and all contact surfaces are sanitized every two hours by the work detail,” Shiva explained that most of the onus has been placed on non-detail prisoners. “We’re using shampoo and Irish Spring soap in a bucket and soaping it up, and we’re wiping everything down.” Daily life is confined to close quarters, with unsanitary eating areas and regular exposure to sick fellow detainees, whose symptoms can appear abruptly and flare dramatically. “Right now, as we were speaking [on the phone], you have 10 people that just walked by me, and there’s eight, right now, in a group over there,” Modesto said. “This morning, I went to throw something out in the garbage. You have about 100 gnats flying right there.” He described the mess hall, where meals are eaten, as “severely nasty.” “You have the people serving stuff, and they’re talking over your food and stuff like that,” he said. Nights are punctuated by the sounds of disease. “At night, I see a lot of people coughing,” Modesto said. Medical capabilities are already being stretched, forcing some prisoners to care for one another until doctors can perform tests and examinations. “One guy, he works in the clinic,” Shiva said, “he took a brand-new catheter tube and he hooked it up to a two-liter soda bottle. And he put the tube in a person’s throat [who was coughing up phlegm] and started pumping. Squeezing the soda bottle, squeezing it, and the other guy was able to cough up more phlegm. And that’s when the nurses came and tested the guy.”
“The situation is deteriorating,” said Cara Hoffman, a paralegal case handler with the Legal Aid Society of New York City’s Parole Revocation Defense Unit, who spends most of her workdays fielding phone calls from clients. “‘Morale is very, very low’ is the phrase that keeps being used.” It’s widely acknowledged that the jail’s medical system — like that in the surrounding city — is being rapidly overwhelmed with new cases in addition to being short on equipment. “It’s not a hospital,” said Dr. Robert L. Cohen, who sits on the Board of Correction and used to serve as director of the Montefiore Rikers Island Health Services, which provided medical care for Rikers prisoners for two decades into the late 1990s. “The [doctors] are overwhelmed right now. They say they cannot handle it. I was on the phone with three of them two days ago, and they were pleading for us to get people off [the island] as soon as possible. That’s the most important thing that they said could happen right now.”
“You’re asking people to sit in death cages right now, [often] for something that isn’t against the law,” added Hoffman. This new normal is so severe that it’s prompted some judges to reconsider locking people up to begin with. Hoffman told me about one she saw via teleconference order the release of a dozen Legal Aid parole clients, citing the coronavirus. “He kept saying, ‘I just can’t hold this guy right now.’ And he on a number of occasions said, ‘I hate to be releasing this person, I wouldn’t under normal circumstances.’ But he just, particularly for our really medically vulnerable guys, said, ‘I can’t hold him right now.’”
When I asked Thorne, the DOC spokesman, whether the agency and its officers shared the position that prisoners must be freed en masse to prevent widespread illness and death, he referred me to the mayor’s position. “We are looking to release the inmates that we think are appropriate to release,” Mayor Bill de Blasio has said, “that we think do not pose a threat to the community.” But this is a public health half-measure. It narrows significantly the number of Rikers detainees considered worthy of salvation, not to mention contradicting how the mayor has generally positioned himself regarding the jail complex’s fate. De Blasio has made it a point to tout reductions in the Rikers population, which he boasted is at its lowest level since 1949. Newly implemented reform measures have made this so; in pushing to eliminate cash bail for most misdemeanors and nonviolent offenses, advocates have gotten state legislators to effectively keep thousands of people out of Rikers this year who might otherwise be imperiled today.
But since the pandemic, the mayor has been hesitant to act further, wasting crucial days slow-walking the decarceration process during which the coronavirus has spread at a bracing clip. Though he has, at times, shown openness to advancing less punitive criminal justice measures, since in office, he’s largely shared Governor Cuomo’s reticence to openly buck retrograde “law and order” orthodoxy, including on the state’s recent cash bail law, which both men insist needs changes that give judges more discretion to lock people up. (Not that this program of appeasement has won him any support from cops, who openly loathe the mayor).
This deference to the NYPD, its union, and the city’s prosecutors hinders both the mayor and the governor’s decision-making today. Neither wants to look soft on crime, which would be politically perilous, so they’re using a fine-toothed comb to determine who gets out of custody instead, citing public safety as their rubric. The result is a slow trickle of amnesty that should be a flood. De Blasio said on Friday that he’d secured the release of 375 Rikers detainees, with 75 more set to be freed later that day — many of them serving terms of less than a year for nonviolent offenses. But Rikers still houses more than 4,500 prisoners. “I think it’s very important in this moment that we not let our elected officials talk about public health and safety and only mean some of us,” said Rena Karefa-Johnson, the New York Criminal Justice director for fwd.us, a reformist advocacy organization. “They have to mean all of us.”
More releases do appear to be imminent. Governor Cuomo on Friday committed to freeing 1,100 prisoners statewide who’d been locked up for noncriminal technical parole violations, such as failing to update their parole officers with changes to their address after moving. An estimated 400 of these cases reside in New York City jails, including Rikers Island. That same day, the Legal Aid Society won a petition to get 106 of their clients released from jails in Bronx County; it’s unclear how many of these will overlap with the group that Cuomo has committed to setting free. But as prisoners are being released piecemeal over the course of several days and even weeks, the vast majority at Rikers remain unaffected by the mayor’s and governor’s largesse. Many are getting sick. And they’re set to remain locked up for the pandemic’s duration — even as jails and prisons have been transformed from mere sites of torturous detention to life-threatening infection zones, a fate more akin to damnation than legal retribution.
For some observers, this bleak outcome culminates years of policy failures and misplaced priorities. New York’s elected officials “have forced issues of poverty and issues of public health and mental health into jails and prisons,” said Erin Leigh George, the Civil Rights Campaigns director for Citizen Action of New York, an advocacy organization. “A rational actor would recognize that and would want to advance efforts to strengthen the social safety net and decriminalize poverty, as opposed to investing in the failed experiment of incarceration. But we continue to see the mayor and the governor not act as rational actors when it comes to issues of incarceration.”
For his part, Modesto saw conditions at Rikers deteriorate for weeks while regarding himself as a “hostage.” Every coughing fit and wakeful night spent lying inches away from a potential COVID-19 case intensified his indignation at being stuck there and his desire to go home. “They’re torturing us in here, man,” he said. “Why wasn’t I let go when I’m supposed to be let go, regardless of all this that’s going on?” Then there was his mother, who’d been anxiously awaiting his release for nearly half a year — and whom he kept having to disappoint with news that he still didn’t know when, or if, it would actually occur. “I want to go out there to make sure my mother, she’s 70 years old, is okay,” he said on Friday. “I feel like I’m letting her down because I’m not being released.”
On Tuesday, Modesto finally left Rikers. A miscommunication along the chain of authority seemed to be the culprit for his prolonged stay — though he can’t be sure, because nobody’s told him. “Someone screwed up,” Finston, his attorney, told me in a text message. “That’s my interpretation.” What he saw on the island remains indelible. When March began, the sprawling jail complex was marked by a familiar churn of visitors and detainees coming and going. By month’s end, visits had been banned, admissions had slowed, and the mood had transformed to one of coiled terror and creeping sickness. “I don’t want to die in here,” Modesto said on Friday over the phone — and, barring the unforeseen, he seems to be among the lucky handful who won’t. Others, like Shiva, though, remain trapped behind bars awaiting their fate. “We’re going to all start dropping,” Shiva said over the phone. “Then what?”
