By Frank G. Runyeon

Law360 (April 20, 2020, 6:50 PM EDT ) A Manhattan federal judge denied an injunction seeking to free a proposed class of more than 1,000 inmates detained for alleged parole violations in New York state prisons during the COVID-19 pandemic, ruling that this was a job for state legislators and marking the arguments "to the attention of Albany."

Chief U.S. District Judge Colleen McMahon ruled that state officials appeared better poised to win the suit and that COVID-19 had no bearing on the constitutionality of the state's long-standing practice of jailing parolees accused of violating the terms of their release before pointedly noting that the virus may prompt lawmakers to enact reforms making the case moot.

"A legislative solution would be best for all concerned. It may even be that the COVID disaster will cause the Legislature to view the issue of mandatory detention for all alleged parole violators in a new light, one more favorable to alleged parole violators," Judge McMahon ruled, noting that a bill was pending before New York's state lawmakers.

"This case is not about the wisdom of the mandatory detention regulation that has been in force in New York for over 40 years," the judge added. "The wisdom of policy decisions is for lawmakers and regulators to debate. The only issue before this court is constitutionality."

The judge characterized much of the civil rights attorneys' argument as "window dressing." Judge McMahon said the lawsuit was not about the COVID-19 pandemic, the health risks for inmates on Rikers Island, the wisdom of mandatory detention for parole violators, the sufficiency of pandemic-era release programs or even whether New York follows its own parole regulations.

The lawsuit is solely about inmates' arguments that "due process requires that an alleged parole violator be offered the opportunity to establish an entitlement to something that looks and sounds very much like bail," until a judge rules on whether they actually violated their parole, the judge reasoned.

"That is all this case is about," Judge McMahon said.

The New York Civil Liberties Union and the Legal Aid Society filed suit in early April against Gov. Andrew Cuomo and state Board of Parole Chair Tina Stanford, claiming that the "mandatory jailing" of people for parole violations is unconstitutional to begin with, but that holding people indefinitely as the coronavirus "spreads uncontrollably in New York City jails" compounds those due process violations.

Because of the coronavirus pandemic, the courts have largely suspended hearings that allow defendants to contest the parole violation allegations, leaving "more than a thousand people merely alleged to have violated parole ... trapped in New York City jails with no clear avenue of escape from COVID-19," the inmates' counsel wrote in the complaint. The inmates in the proposed class are also disproportionately people of color, the advocates said.

The judge disposed with arguments from the government as well as the civil rights advocates throughout her 36-page order.

"Both sides are wrong," Judge McMahon said in discussing the likelihood that the inmates would prevail on their claim that New York's parolee detention practices violated the U.S. Constitution.

While the case law cited by the New York Civil Liberties Union did not show "binding authority striking down" the state's parolee detention scheme, neither did the government's case law show it to be constitutional, she found.

"But plaintiffs assuredly have not demonstrated that they have a clear and substantial likelihood of success on the merits. Indeed, defendants may well have the better of the argument," the judge reasoned, siding with the government.

Judge McMahon nevertheless called the government's arguments that the inmates had failed to allege irreparable harm to their civil rights as "silly" and "too clever by half."

"The fact that New York's mandatory detention scheme for alleged parole violators has gone unchallenged for decades by generations of other parole violators does not undercut the irreparable harm argument made by today's imprisoned parole violators," the judge said, before musing that "what 40 years of failure to challenge the constitutionality of this procedure suggests about the merits of plaintiffs' lawsuit is another matter altogether."

Judge McMahon noted that both the named plaintiffs had already been released by other methods, but the remaining inmates in the proposed class would sustain the case going forward.

The judge suggested a new claim for the inmates to bring — challenging "a consistent, nonrandom failure by the state to hold parole revocation hearings in a timely manner," as required by the minimum standards of due process established by the U.S. Supreme Court.

"Perhaps plaintiffs will wish to amend their complaint to add additional claims for relief — although it is not clear to the court that a class action ... is the proper vehicle for raising those issues," Judge McMahon suggested, drawing up a schedule to deal with a series of anticipated disagreements between the inmates and government counsel.

"Of course, the legislature may well take the matter out of the hands of the courts," the judge wrote.

Counsel for the inmates did not respond to a request for comment on Monday afternoon. The New York state Senate majority leader did not immediately respond to a request for comment on Monday.

The inmates in the federal proposed class action are represented by Philip Desgranges, Grace Y. Li, Molly Biklen and Christopher T. Dunn of the New York Civil Liberties Union Foundation and Corey Stoughton of the Legal Aid Society.

The government is represented by Andrew Amer and Amanda Yoon of the Office of the New York State Attorney General.

The case is Bergamaschi et al. v. Cuomo et al., case number 1:20-cv-02817, in the U.S. District Court for the Southern District of New York.

--Editing by Alanna Weissman.

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