Cynthia Grant Bowman is the Dorothea S. Clarke Professor of Law at Cornell Law School, in Ithaca.
The televised deaths of George Floyd and Rayshard Brooks have made the inherent racism in our criminal justice system painfully evident to Americans. This national epiphany led many to join street protests. Commentators and people with lived experiences have described how Black men and women are forced to live.
Eventually people will return to their homes; a few police will be fired and/or prosecuted; and some police policies changed. But the legacy of the past remains — slavery, lynching, Jim Crow and mass incarceration. Black men, many with excessive sentences, are incarcerated under appalling conditions. In the context of Covid-19, those conditions violate the Eighth Amendment’s prohibition of cruel and unusual punishment, turning time-limited sentences into potential death sentences.
Racism pervades not only police practices but also bail, adjudication, sentencing and parole. This has become apparent in New York state during Covid-19. All three branches of government have failed to respond to the plight of incarcerated persons of color, particularly those who are older and suffer from health problems that make becoming infected quite probably fatal.
Despite a stack of clemency petitions awaiting his attention, the governor has to date commuted the sentences of only 23 people. The Legislature has also failed to act by ignoring draft bills that would allow older incarcerated persons to seek parole. The judiciary, the branch particularly charged with protecting the civil rights of incarcerated people, has repeatedly turned a blind eye to legal motions and writs seeking the release of people at grave risk of contracting Covid-19. By contrast, courts in other states and the federal system have been releasing incarcerated persons at particular risk from Covid-19 or transferring them to home confinement. The media, religious leaders, law professors, civil rights organizations and community activists have urged New York courts to do the same.
Yet the trial judges of this state have denied these pleas, holding that they lack authority to release persons convicted in their own courts. One brave exception is Justice Stephen G. Schick in Sullivan County. On April 29, 2020, Justice Schick granted a writ of habeas corpus to Jalil Muntaqim, a 68-year-old Black man who has served almost 50 years of a 25-to-life sentence imposed when he was 19. His prison record is exemplary. He suffers from hypertension which caused a stroke. He has respiratory ailments and lung damage from tuberculosis. In other words, he is someone who is self-evidently vulnerable, someone for whom the state’s duty of care is particularly clear.
However, the state of New York, represented by Attorney General Letitia James, appealed Justice Schick’s ruling and moved to hold up Muntaqim’s release pending appeal, arguing that conditions in New York prisons are adequate and that the state is taking sufficient precautions to prevent spread of the virus. But in the crowded and antiquated conditions of prison, this is impossible, as many other state governors, public health officials, and corrections experts have recognized.
Proof of this impossibility was swift. Muntaqim was hospitalized with the virus before his appeal was even argued. The appellate court issued its decision one week later — a week during which the national conversation about racism dominated the streets and the airwaves. The court held that there was no evidence that correctional authorities had consciously disregarded a substantial risk of serious harm to Muntaqim. So while Paul Manafort and Michael Cohen are back in their luxurious apartments, the court ordered that Muntaqim should remain in a prison cell.
All three branches of New York state government should be ashamed of the institutional racism that pervades our criminal justice system and their collective failure to address it.
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