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America’s Biggest City Was Hit Hard By COVID-19. Its Jails Are Filling Up Again

New York City’s jail population is close to reaching pre-pandemic levels. Advocates say dishonest fearmongering about bail reform—and the politicians who capitulated to it—have created a very real safety crisis.

A rally outside Rikers Island on June 19.Photo by Erik McGregor/LightRocket via Getty Images.

Like much of the country, New York City is facing a steadily rising number of COVID-19 cases as winter approaches. The city’s positivity rate was close to 4 percent as of Sunday, and officials are scrambling to keep children in school while trying to contain rapidly expanding microclusters.

The number of people in its jails—where social distancing is often impossible—is also soaring, with no signs of slowing down. 

The city’s jail population, now over 4,700, is largely the result of a growing number of people held awaiting trial. According to a recent report by the Center for Court Innovation, between the end of April, when the city took emergency COVID-related decarceration measures, and Nov. 1, the pretrial population incarcerated in city jails has increased by more than 28 percent.

That same report finds that the sharp rise in pretrial incarceration has been driven at least in part by the legislature’s decision to roll back landmark bail reform measures in the middle of the pandemic. In April, as New York City became a global coronavirus epicenter, the state legislature retreated on the law it passed last year and made more than a dozen charges once again bail-eligible, even as the city jails where pretrial detainees would be held became major COVID-19 hotspots.

The decision to undo certain bail reforms that took effect on Jan. 1 followed a coordinated campaign of fearmongering by police leadership, prosecutors, and conservative politicians who sensationalized individual stories and pushed false narratives. In one instance, tabloids, and even the Trump administration, seized on the story of a Black woman recently released from jail after being accused of slapping several Jewish women; the new law, however, likely would not have been a factor in her release.

Advocates condemned the rollbacks. One letter, signed by law professors in New York, called the fear-based tactics and false claims “Willie Horton-like.” Advocates instead called on state and city leaders to significantly decrease the number of people in jails and prisons. Other states, for example, suspended cash bail or took other measures to cut jail populations. 

However, New York City Mayor Bill de Blasio and Governor Andrew Cuomo lent their support to the rollbacks. “The bail reform law needs to be amended. I believe this strongly,” de Blasio said at the time, aligning himself with the state’s Republican and moderate Democrat lawmakers. Soon after, Cuomo signed the rollbacks into law.  

“It’s not a good look,” Public Advocate Jumaane Williams told Politico in January. “It seems whenever we try to make a real progressive step forward, if it gets a little hot, there seems to be an immediate retreat, and that’s very concerning.”

The rollbacks and their proponents have now helped create a real and broad safety risk to those who are incarcerated, those who work in jails, their families, and all New Yorkers. In just the first 100 days after the rollbacks took effect, the city’s pretrial population increased by 16 percent, according to an analysis by the Queens Daily Eagle. And city jails are already dangerously overcrowded, according to data recently released by the Legal Aid Society. 

One Rikers Island unit, which has a capacity for nearly 3,000 people, has had its dorm units operating at 85 percent capacity. A report this month by the city’s Board of Corrections, a jail oversight body, found that as of Oct. 31, 40 percent of people in city custody were held in a dorm where alternate spacing of beds was not available, and a third were held in a dorm that was above 75 percent capacity.

Those conditions may be causing an outbreak on Rikers Island, even while reported cases across the city are still relatively low. 

Like prisons, jails are especially dangerous virus incubators because they are typically overcrowded, unsanitary, and filled with people who are especially vulnerable to medical complications, often because of the detrimental health effects of incarceration itself. Jails, however, especially in large cities, experience a tremendous amount of turnover: The Prison Policy Initiative found that American jails have over 10 million admissions each year.

As winter approaches, the virus is continuing to surge in jails and prisons across the country, threatening the lives of incarcerated people as well as those in surrounding communities. And jails and prisons have consistently been among the most infectious hotspots and sites of uncontrolled COVID-19 outbreaks. Early in the pandemic, Marion Correctional Institute in Ohio had a sky-high infection rate that fueled a major outbreak in the surrounding community; at San Quentin State Prison in California, the virus has infected thousands and killed more than two dozen people, leading a state court to require the prison to cut its population in half to mitigate spread.

Bail reform afforded New York a head start in cutting its jail population ahead of the pandemic: The Center for Court Innovation found that the number of people held pretrial in New York City jails on cash bail dropped by 40 percent following the bill’s passage. This confirmed the predictions of an earlier report by the Vera Institute of Justice, which anticipated that the law could cut the pretrial jail population by exactly as much.

But those gains have effectively been undone. Another report published this month by the Center for Court Innovation found that pretrial detention is 7 to 11 percent higher than it would have been had the rollbacks not been implemented. And as jails across the state continue to fill with people awaiting trial and unable to afford bail, its authors say, that figure will only continue to grow.

Further, judges have been especially eager to set bail and detain New Yorkers pretrial however and whenever possible. According to The City, judges have exploited loopholes in the bail reform law to set exorbitantly high bail amounts. And city data provided to The Appeal shows that, since the rollbacks took effect, judges have been significantly more likely to require bail in all felony cases. Whereas judges required bail in 44.1 percent of violent felony cases in early March, by early November, that number was at 57.9 percent—even though bail eligibility in those cases was mostly unaffected by the initial bail reform law as well as its rollback.

“The fact still remains that bail is a fundamentally unjust system that allows those with financial privilege to walk free, while criminalizing New Yorkers living in poverty,” state Senator Alessandra Biaggi, a vocal supporter of bail reform, told The Appeal. “New York State should be doing everything in its power to safely reduce the jail population during the pandemic in compliance with basic public health principles. The decision to roll back bail reform achieves the complete opposite of that.”