By Frank G. Runyeon

Law360, New York (April 10, 2020, 9:12 PM EDT ) Inconsistent testing of inmates for COVID-19 among New York prisons is frustrating defense attorneys and alarming health experts who say the patchwork system is creating a new "death penalty."

Contradictory correctional health guidance and piecemeal data about how the coronavirus is spreading behind bars has hampered efforts to protect inmates from a deadly viral threat that wardens are doing too little to mitigate, experts told Law360.

"There is no death penalty in New York. They weren't sent there to die — and they are going to die, because it's going to spread rapidly," said Dr. Robert L. Cohen, a member of the Board of Correction, which oversees New York City's jails. "These attorneys and the families of the men and women who are in these prisons and federal jails have a right to know what's going on."

"They have a right to know what the testing protocols are and how many people are tested and how many people are positive," Cohen said.

Three state inmates have already died after testing positive for coronavirus: one imprisoned in Sing Sing for a sex crimes conviction and another two jailed on Rikers Island for minor probation violations, according to official data and media reports.

The dearth of data comes in spite of White House COVID-19 expert Dr. Anthony Fauci telling Americans this week that increased testing is the key to reopening the country and Gov. Andrew Cuomo similarly extolling the virtues of expanding testing.

"It's all about testing, testing, testing," the governor tweeted on Tuesday morning. "We have done more testing than any state in the nation, but we need to do even more."

But in prisons, where the city, state or federal government is in near-total control of inmates' lives, there has been inconsistent testing of inmates, according to a survey of prisons in New York by Law360. Those tests are now the only way to confirm who is sick and who has been exposed to COVID-19 as detention facilities across all levels of government have banned visits and access to phone calls is severely restricted.

Depending on who holds the key, a New York prison may conceal which facilities have cases or choose not to test symptomatic inmates for COVID-19 in favor of isolating them. No prisons responded to Law360's inquiries about how many inmates have flu-like symptoms.

Without scientific data charting the virus' spread behind bars, advocates argue that courts are deprived of the evidence they need to determine if prisoners' civil rights are being violated by the alleged indifference of wardens to detainees' medical needs.

Prisons, particularly in New York City, are simply unable to follow Centers for Disease Control and Prevention guidelines about social distancing and hygiene, prison health experts say, and the only true remedy to safeguard inmates in this pandemic is to release as many people as possible.

But with some prison officials and prosecutors reluctant to let inmates out, testing data is crucial to convince judges of the threat posed to prisoners, advocates argue. If the virus spreads unreported in a prison, the consequences can be dire.

Cohen has seen an explosion of cases in the system he oversees.

By Friday, 304 inmates in city jails had contracted COVID-19, according to the Department of Corrections, but at least 2,500 others had been exposed to the virus and remain untested as of Thursday, Cohen said — or more than half of the city's approximately 4,400 inmates.

Dr. Ross MacDonald, the chief physician responsible for inmate health in the city jails, has repeatedly called for releasing more people as the only effective way to safeguard prison health. In a March 30 Twitter post, MacDonald called COVID-19 in city facilities a "public health disaster unfolding before our eyes."

While Cohen wants to know the number of tests being conducted in New York City jails, he said that the city's jail system has at least committed to testing inmates with symptoms of the virus. Upstate prisons told Law360 they test symptomatic inmates as well.

Federal facilities, also in New York City, follow different protocols that discourage testing inmates unless they are severely ill.

The Federal Bureau of Prisons told Law360 that it has no national COVID-19 testing protocol beyond the CDC's general guidance and relies on local health departments to say when or if testing should be done. Federal facilities in New York City would take their cues from the Department of Health and Mental Hygiene, a BOP spokesperson confirmed.

When asked what guidance it provides to federal prisons in New York City, the DOHMH pointed to its "COVID-19: Guidance for Congregate Settings," which says that "routine outpatient COVID-19 testing is not needed."

"Do not transfer a resident to the hospital for evaluation for mild or moderate illness for testing or treatment," the city health guidance says. "However, if severe symptoms occur, medical care should be sought as they can signal life-threatening illness."

The DOHMH testing guidance applies broadly to "homeless shelters, assisted living facilities, group homes, prisons, detention centers, schools and workplaces."

Three of the city's federal detention centers, which hold a mix of pretrial detainees and sentenced prisoners, do provide statistics on how many inmates have been tested, but only after a court order mandated they report on their COVID-19 testing and protocols twice a week.

Chief Judge Roslynn R. Mauskopf of the Eastern District of New York ordered the reports in order to provide judges facing a flurry of release petitions with reliable, timely data on prison conditions.

Since the order came down, Manhattan's 718-inmate Metropolitan Correctional Center, Brooklyn's 1,704-inmate Metropolitan Detention Center, and the privately-run 222-bed Queens Detention Facility have filed three reports each.

MCC and MDC's reports reveal sparse testing.

As of Thursday, five out of six inmates tested at the Manhattan facility were COVID-19 positive, while 12 staff members also had confirmed cases. Across the river, three out of 11 inmates at the Brooklyn facility tested positive, with nine staff members also testing positive.

The fact that nearly every inmate tested at MCC tested positive indicates the prison is likely only testing the most severely ill patients, Cohen told Law360.

That has frustrated defense lawyers and civil rights advocates.

An attorney for inmates seeking release from MDC was flabbergasted last week when she first learned that the facility had tested only two additional inmates after the first prisoner tested positive for COVID-19. Cohen provided an expert statement in support of the release.

Katie Rosenfeld of Emery Celli Brinckerhoff & Abady LLP called the lack of testing "extremely alarming," reasoning "that the number of people who likely have the coronavirus there is exponentially higher."

QDF, the private prison with federal inmates in Queens, publicly broke with the city's health medical advice in its second filing, repudiating the prison health care guidance in a footnote.

"On April 3, 2020, the New York City Department of Health (DOH) indicated that testing detainees, who demonstrated symptoms of COVID-19 at the Queens Private Detention Facility, was no longer necessary," QDF operator Geo Group said in the filing.

"Despite this NYC DOH guidance, GEO, upon the advice of its own medical personnel has decided to test all detainees who have symptoms of COVID-19," Geo Group said.

At the same time, reports in the Queens Daily Eagle had chronicled understaffed medical units and untested sick inmates, citing phone calls from inmates.

The private prison ramped up testing rapidly and found exponentially more had fallen ill, according to court filings. On April 3, one inmate of the four tested were positive. By Thursday, 16 out of 30 inmates tested positive for COVID-19. Including staff, there are a total of 24 positive cases.

Outside New York City, the state prison administrator refuses to identify where COVID-19 cases are in its 53-facility system, citing "security reasons." As of Friday, 209 inmates had been tested with 103 confirmed cases of COVID-19 of the total prison population of 43,000, according to the Department of Corrections and Community Supervision.

The agency says two COVID-19 positive inmates in upstate prisons have died but has not identified the facilities.

"Here in New York, we are extremely concerned about this because obviously the social distancing is not really available in these facilities," New York State Senate Majority Leader Andrea Stewart-Cousins told Law360. "Both the people in prison as well as the guards are equally exposed."

Stewart-Cousins noted that Democratic leaders are pursuing ways to reduce the prison population and test more inmates.

"We just don't have enough information as of yet, but we continue to push," she said.

--Editing by Emily Kokoll and Jay Jackson Jr.

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