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'Prisons are tinderboxes for the virus': Lawyers call for release of at-risk prisoners

Karen Murtagh says her clients are sitting ducks and their fates a life-and-death matter.

Unlike most people in Western New York, Vernon Jones, Lyxon Chery and the others Murtaugh represents can't practice social distancing.

For them, sheltering where they live, at least in their eyes, puts them at a greater, not lesser, risk of contracting Covid-19.

They're detainees at the Federal Detention Center in Batavia.

"Prisons are tinder boxes for this virus," said Murtagh, executive director of Prisoners' Legal Services of New York. "They act as incubators, some people say petri dishes."

Jones, Chery and 21 other detainees at Batavia are seeking emergency release from the immigration facility and, in a recent lawsuit, claim their age and health put them at risk of dying if they contract the virus.

Filed in Buffalo federal court, the lawsuit is one of many developments here and across the country as federal, state and local prisons attempt to deal with Covid-19's arrival.

In New Jersey, the state's chief justice pointed to the inherent risks in prisons and ordered the release of 1,000 inmates. California followed suit a week later, granting early release to 3,500 prisoners.

Here in New York, the push for prisoner release resulted in Gov. Andrew Cuomo ordering the release of 1,100 parole violators.

The examples of local jails and state prisons releasing low-level criminals, many of them older and in poor health, grow by the day.

At Batavia, there have been no releases and judges in the immigration court there continue to hear cases, a practice the judges claim is putting them and others at risk.

In a statement last week, the National Association of Immigration Judges criticized the Department of Justice's decision to keep the courts open and suggested the government has treated "captured Taliban and ISIS with more humanity."

"Everyone agrees we're in the midst of a once-in-a-lifetime pandemic and conditions in local jails and correctional facilities provide a perfect storm," said Timothy W. Hoover, a Buffalo attorney and president of the New York State Association of Criminal Defense Lawyers.

Hoover sent Cuomo a letter in late March urging him to release inmates who might die because of the virus. He specifically mentioned prisoners who are age 55 or over and prisoners who are eligible for parole or within two years of being eligible.

His letter also recommended release for inmates with underlying conditions such as cancer, heart and lung disease and diabetes.

There have been confirmed cases of Covid-19 at local jails and prisons, including two Erie County sheriff's deputies working at the downtown Holding Center and two inmates at Wende Correctional Facility in Alden.

Elsewhere, the impact has been even more dramatic. There have been numerous cases, including five deaths, at federal prisons across the country.

"It's been judges, it's been lawyers, it's been detainees," said Robert M. Elardo, executive director of the Erie County Bar Association's Volunteers Lawyers Project.

At the immigration facility in Batavia, there have been no confirmed cases, according to Immigration and Customs Enforcement, which runs the center.

ICE would not comment on the lawsuit or the 23 detainees seeking release but provided a detailed account of what the agency is doing to protect detainees and staff.

The agency is abiding by Centers for Disease Control and Prevention guidelines on everything from when to use protective equipment and ventilators to who gets tested for the virus, according to a statement.

"Detainees who meet CDC criteria for epidemiologic risk of exposure to Covid-19 are housed separately from the general population," the agency said. "ICE places detainees with fever or respiratory symptoms in a single medical housing room, or in a medical airborne infection isolation room specifically designed to contain biological agents, such as Covid-19."

Detainees with moderate to severe symptoms are transported to local hospitals, according to ICE.

In the eyes of detainees, that's not enough.

Late last week, the federal judge overseeing the Batavia case stopped short of issuing a temporary restraining order but ordered ICE to show how it will provide detainees who are "vulnerable individuals" – as defined by the CDC – with living arrangements that allow for social distancing.

U.S. District Judge Lawrence J. Vilardo gave the government until Friday to respond to his order and until Monday to show what steps it took to carry it out. He also wants to know why, in ICE's view, certain detainees don't meet the CDC's high-risk criteria.

For legal aid lawyers who represent detainees, the government's decision to keep Batavia and other immigration courts open has come with serious challenges and risks.

The Volunteer Lawyers Project currently represents about 80 detainees at Batavia, and Elardo said that the immigration court there should shut down and at-risk detainees released.

The crisis, he said, has made it impossible for lawyers to represent their clients in a meaningful way and, yet, the court continues to hear cases.

"It's not only unsafe, it's made due process a joke," he said.

ICE claims no one at Batavia, staff or detainees, has tested positive. The facility, which has a capacity for 650 people, is also half empty, allowing for some form of social distancing.

Is it enough?

One of the lawyers for the 23 detainees suing ICE said his clients have "immune deficiency problems, some of them very serious," that put them at risk of dying if they contract the virus.

"Their families are very concerned about their well being," said Buffalo attorney Robert Graziano.

For now, detainees remain at Batavia and dozens of other jails and prisons across the region, and many of them continue to need legal advice.

Two weeks ago, the state declared New York's criminal defense lawyers, at their request, essential personnel.

"The courts are still open," Hoover said, "and people are still being charged and in need of representation."

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