During a pandemic, does a state’s refusal to release medically vulnerable people from prison constitute deliberate indifference and a violation of the Eighth Amendment?
On Thursday, a New York appellate court decided that it did not. Its ruling reversed an earlier decision that would have allowed for the temporary release of 68-year-old Jalil Muntaqim, a former Black Panther who has been incarcerated since 1971. As of June 3, Sullivan Correctional Facility, where Muntaqim is incarcerated, had 22 confirmed cases of COVID-19 with one test still pending. Across the state’s 52 prisons, 511 people have tested positive and 16 have died.
On April 13, as COVID-19 was spreading throughout prisons in New York State and across the nation, Muntaqim had filed a writ of habeas corpus requesting relief in the form of immediate release. In his petition, he argued that his age, race, and serious health conditions heighten his vulnerability to the virus. During his nearly half-century behind bars, Muntaqim has developed high blood pressure, which led to a stroke, chronic bronchitis, sinusitis, and lung scarring. Furthermore, 81 percent of deaths in New York prisons since the start of COVID-19 have been people of color; 59 percent have been African American.
Two weeks later, on April 29, Sullivan County Supreme Court Judge Stephan Schick ordered Muntaqim’s temporary release, ruling that the Department of Corrections and Community Supervision was not in a position to address the health risks posed to him by his continued incarceration during the pandemic. The judge ordered Muntaqim’s temporary release, though he would continue serving his sentence under DOCCS supervision.
Attorney General Letitia James, representing DOCCS, appealed, blocking his release. James’s office argued that Muntaqim had failed to show that prison officials had been “deliberately indifferent to Muntaqim’s substantial risk of serious harm.” Her office also argued that habeas corpus—and a request for temporary release—was the wrong mechanism to address Muntaqim’s “claim of unconstitutional punishment based on prison conditions.”
Since then, Muntaqim has been hospitalized with COVID-19. Three days after his hospitalization on May 28, attorneys for both sides presented their arguments in a virtual appeals court.
Frank Brady, representing the attorney general, argued that Muntaqim never established that prison officials were deliberately indifferent to his health. He also argued that the facts of the case had changed dramatically—that Muntaqim’s petition had hinged on his vulnerability to COVID-19 and that he has since contracted the virus. Furthermore, he repeatedly stated that a habeas petition for release was not the appropriate method to challenge prison conditions or unconstitutional medical care.
Nora Carroll, Muntaqim’s attorney, disagreed. A habeas request for release is “absolutely appropriate in these circumstances,” she argued, noting that conditions of confinement during this pandemic are unconstitutional, and the only appropriate remedy is release from these conditions. Noting that social distancing is impossible in a prison setting, she stated that Muntaqim is housed in a cellblock with 50 other individuals, some of whom had contracted the coronavirus. Although he had a cell to himself, and, according to Carroll, “tried to stay to himself and wear a mask every time he left his cell,” he still had to share telephones, showers, and meals with others. These measures had not prevented him from contracting the virus.
She added that researchers don’t know whether a person develops immunity after recovering from COVID-19. “If he does recover and is sent back, it seems very likely that he’ll be put in the exact same position. We don’t know if he can catch it again. It’s not all over because he got COVID,” she told The Appeal.
Carroll argued that the state has a responsibility to care for the people whom it incarcerates, and that it didn’t fulfill that responsibility when it failed to identify and release medically vulnerable people during the pandemic. “They’re creating a hotbed of viral spread,” she stated in court, noting that the 162 people released at that point represent less than half of one percent of its state prison population.
In his rebuttal, Brady presented another argument: By releasing Muntaqim, the court was setting itself up for granting parole. He noted that a court may choose to annul a decision by the parole board, but does not order a person’s release. Instead, the court orders that the parole board conduct another hearing.
“This is not parole,” Carroll told The Appeal. “This is merely a temporary release to alleviate an unconstitutional situation inside of the prison.” She noted that Judge Schick carefully worded his decision to specify a temporary release while under DOCCS supervision and that others, such as Trump aides Paul Manafort and Michael Cohen, have been released from prison to serve their sentences under home confinement during the pandemic.
Law enforcement opposition to Muntaqim’s release is nothing new. In 1971, Muntaqim, then 19 years old and a member of the Black Panther Party, was arrested with two other Panthers for the fatal shootings of two police officers. In 1975, he was convicted and sentenced to 25 years to life.
Now 68, Muntaqim is the last of the three in prison. In 2000, his co-defendant Albert Nuh Washington died in prison. In March 2018, his other co-defendant, Herman Bell, was granted parole. Despite opposition, including a court challenge from the Policemen’s Benevolent Association, Bell was released from prison in April.
Muntaqim became eligible for parole in 2002 and has appeared before the board 12 times. Each time, the PBA has deluged the parole board with letters opposing his parole. Each time, Muntaqim was denied parole. Jose Saldana, now the director of Release Aging People in Prison, has served time with Muntaqim and has witnessed Muntaqim act as a teacher and a mentor to others in prison. Muntaqim also established several prison programs, including a therapeutic group, an African American studies program, and classes in computer literacy, poetry, and sociology.
But, adds Saldana, the issue is less whether Muntaqim has transformed from a reckless 19-year-old than whether the parole board “has the integrity to free a man who should have been freed a long time ago and whether they will continue to allow the PBA to dictate and influence their decision-making process.” Muntaqim’s next parole hearing is in September.
DOCCS has also deemed Muntaqim ineligible for medical parole. He has been returned to Sullivan, where he is now in the infirmary with COVID-19.
In its decision, the Appellate Court found that Muntaqim failed to demonstrate prison officials’ deliberate indifference. Instead, the appellate decision noted that the prison superintendent had submitted an affidavit listing the steps taken to prevent COVID-19 spread, including stopping visits, halting new intakes and transfers between prisons, and requiring staff and incarcerated kitchen workers to wear masks. The court chose not to comment on whether a habeas petition was the appropriate remedy.
“We are devastated at the Third Department’s decision in Mr. Muntaqim’s case,” Carroll stated. “This ruling is a particularly terrible blow because it comes at a time when people are taking to the streets en masse to protest state violence against Black people. Yet this and other pleas to protect Black lives in New York State prisons are being turned away. All we can do now is hope Mr. Muntaqim recovers, as he is still in the hospital.”