Should N.Y. Be Jailing Parolees for Minor Lapses During a Pandemic?

In December, before most of us had directed our attention to the looming terrors of the coronavirus, Earl Russell was already getting apprehensive. At 42, he struggled with high blood pressure and was living in a men’s shelter in Brooklyn. Most people in shelters are there because all their other housing options have run dry, but Mr. Russell had somewhere to go — an apartment in the Rockaways where his girlfriend lived with their 6-year-old daughter, both of whom wanted him home.

The bizarre vagaries of New York state’s parole system were making it impossible for him to join them, however. Returning to his family would have been a violation of the terms of his prison release — an action punishable with jail time.

When Mr. Russell was paroled in 2018, after two years in prison on a weapons-possession charge in the second degree, he was remanded to the shelter system, where he was to remain until the fall of 2021, even though he would be needlessly taking up space in the midst of the city’s ongoing and epic housing emergencies.

At the end of March, in an effort to curtail the spread of Covid-19 among the incarcerated, Gov. Andrew M. Cuomo announced plans to release 1,100 people from jails around the state, who were being held for technical violations of their parole. These infractions are not crimes; they include missing curfew, failing to contact parole officers at designated times, testing positive for alcohol and living at addresses other than the ones compelled, among others.

Two months later, 379 of these technical parole violators had been released from jails in New York City. But their ranks were soon replaced. Mr. Russell was among those who found themselves at Rikers, detained for what logic would concede were minor infractions..

Since March 27, according to new admissions data from the Vera Institute of Justice, 295 people have returned to city jails because of low-level parole transgressions. The first two people to die of Covid-19 on Rikers were there precisely for these reasons: missing parole appointments and failing a drug program. One of them, a man named Raymond Rivera, had waited months for a final decision on his release and died the day after it was rendered.

Already, by the end of May, 160 people had been newly sent to Rikers on technicalities, leading Vincent Schiraldi, a director of Columbia University’s Justice Lab and the city’s former probation commissioner, to correctly predict that some of the gains made by the governor’s edict would essentially be erased by the middle of the summer.

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Updated 2020-08-02T12:03:05.101Z

“It was bad policy to be incarcerating so many people for noncriminal violations even before the pandemic,” Mr. Schiraldi told me. “It’s absolutely ridiculous and dangerous now.”

The policy has been in place for decades. When asked for the rationale behind it, the State Department of Corrections did not respond for comment. In the spring, as the decision was made to refrain from issuing arrest warrants for those who had broken the less egregious rules of parole, certain exceptions were carved out for those considered at high risk for offending behaviors.

Given that incidents of domestic violence were sure to rise during the pandemic, anyone who made contact with a partner he or she had abused in the past was eligible for re-arrest, an official in the Cuomo administration explained. So too, was a sex offender who made contact with a minor.

The modern parole system began in New York State in the 19th century as a means of helping ex-convicts adjust to society. Parole officers were volunteers; the whole idea was rooted in a benevolent paternalism.

But in the 1970s, as crime escalated, the system became more punitive .tThe faith that people who did bad things could transform began to wane, and the goal shifted to preventing recidivism. While the state has succeeded in detaining far fewer people on technicalities in recent years, the policy, exercised at the discretion of corrections officials, nevertheless remains.

In a speech two years ago, Governor Cuomo acknowledged the problems inherent in it. “Jails and prisons should not be filled with people who may have violated the conditions of their parole but present no danger to our communities,” he said. New York State spends hundreds of millions of dollars each year enforcing these violations. “Cops troll hospitals looking for violators,’’ Mr. Schiraldi said. “While the guy is dying, they slap a technical on him. At a certain point you routinize the deprivation of people’s liberties so much, you’re just checking a box.”

That routinization comes with all the predictable disparities. In New York City, Black people re-enter the jail system on these technicalities at a rate more than 12 times that of whites.

Before Christmas, Mr. Russell, who had already violated his parole on other occasions by leaving the shelter and going home to his family, sent a text to his parole officer explaining that he could not tolerate his circumstance any longer and might as well be in jail. “With this being said,” he wrote her, “send me back if that’s what you want to do because I’m not returning to the shelter.’’ He helpfully provided his home address.

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The logic behind sending him to a shelter to serve out his parole, in the first place, involved a single domestic-violence charge that had been filed against him years earlier. One evening in 2013, Mr. Russell and his current girlfriend were drinking on their stoop and began to argue. According to his recollection, the fight did not get physical, but a neighbor called the police and once officers arrived, he became “unruly’’ with them, he said.

As a matter of precaution, it is common for the state’s corrections department to send parolees with any history of domestic incidents to shelters rather than allow them to go home. In Mr. Russell’s case, it did not seem to matter that he had received mandated counseling. The system demands rehabilitation and then all too often denies redemption. In March of last year, his girlfriend wrote to parole officials asking them to let Mr. Russell come home. The request was denied.

In mid-June he was taken into custody and spent the subsequent few weeks in Rikers.

“It was scary. A lot of the corrections officers aren’t wearing masks,” Mr. Russell told me. “Ninety percent of inmates weren’t wearing masks. Then you’re shackled next to people when you are transferred,’’ he said. “Beds were less than a pinkie apart. Sleeping, the guy beneath me, my foot could have kicked his head.”

The Legal Aid Society eventually got him out. Mr. Russell works as a porter in a condominium building in the Ozone Park section of Queens, and his bosses wrote a letter on his behalf explaining that they would welcome him back if he were released.

When he left Rikers, though, he was sent back to a shelter — a hotel in Williamsburg, Brooklyn, far from his job and his family. Making it back in time for curfew made it almost impossible to see his partner for dinner or put his daughter to bed. Because parolees are not allowed to drive, he is left incurring the risks and lags of public transportation.

A bill currently before the New York State Legislature would loosen many of the restrictions around parole, making it easier for people exiting the prison system to reintegrate into the real world. Many prosecutors across the state support the bill.

Inevitably, there will be those in and out of government fearful of reform at a moment of rising violence. But diverting technical violators from the jail system could protect public health without endangering public safety. Of the 791 parole violators who had their warrants lifted since the end of March, not one was rearrested for a gun-related crime.

The convergence of the pandemic with a powerful movement to rectify the racial injustices of the past would seem to provide the ideal moment for rethinking the ways we manage people coming out of prison. If it cannot happen now, it seems unlikely that it ever could.

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