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Brian Lehrer: Brian Lehrer on WNYC and this just in from my education reporter Jessica Gold. She says, "New York City schools now have a reopening deal." Remember there was a strike threat on the table by the teachers union unless certain things happened. School was supposed to start on Thursday, September 10th in New York City and now Jess reports there's a delay for teachers to prepare with remote learning starting on September 16th, and then the buildings opening on Monday, September 21st, and also for some kind of ongoing testing. She's waiting for additional details on what the ongoing testing is going to be.

One of the big demands from the union I know was to have universal testing. I believe they wanted every student, every teacher, every staff member to be tested before the beginning of the school year, certainly some kind of ongoing. The word Jess is using is ongoing and that would be even better, having people tested periodically. Like in any workplace, that would be ideal going forward or any place where people are congregating on a regular basis. We'll find out in a little while the details of that ongoing testing agreement, but there is delay in reopening.

Parents, get your childcare ready because they don't have to start for a few more extra days or they have to come to your home, whatever, because school isn't opening yet. Schools reopening for remote learning starting September 16th, buildings opening September 21st. That is the breaking news. America crossed a sad threshold this month. There have now been a thousand COVID-19 deaths across the state in federal prison systems. Over 170,000 positive cases behind bars and now a thousand COVID-19 deaths of people in prison who presumably, because they're being guarded so closely, should be protected.

The true death count may well be even higher because testing and isolation techniques remain inconsistent in correctional settings. We know that facilities like nursing homes, prisons, factories, and schools have their own special COVID-related risks because there isn't always an option to social distance. For older individuals, the risk is even greater, but there are things public officials can do to ensure the virus doesn't spread. Robust testing, contact tracing, and even releasing the most at-risk individuals.

Early on in the pandemic, activists and families pleaded with Governor Cuomo to grant clemency to aging prisoners with health risks, but the governor chose a different path ordering a hundred older more vulnerable prisoners to a separate facility upstate. While there's currently no apparent COVID outbreak there, older men at the Adirondack Correctional Facility say they are not receiving care for other age-related medical issues and are falling between the cracks. They also fear a COVID case and thereby, an outbreak could emerge. Meanwhile, COVID does exist in prisons downstate. New York has now seen 755 positive cases and 17 deaths in the prison system in New York State alone.

With me now to talk about how the pandemic has affected people of all ages incarcerated in New York is Jose Saldana, director of Release Aging People in Prisons, and Stefen Short, a lawyer with the Prisoners Rights Project at the Legal Aid Society. Welcome both of you to WNYC. Thank you for coming on today.

Stefen Short: Thanks so much.

Jose Saldana: Thank you for inviting me.

Brian: New York has now seen 755 positive cases and 17 deaths in the prison system. Stefen, what do we know about the individuals who have succumbed to the virus?

Stefen: We know that, unfortunately, deaths range throughout the state. That there have been deaths in several facilities upstate and we know that some of these people were medically vulnerable. Some of these people are at an advanced stage. These are people who, in some cases, we identified for the governor and for the Department of Corrections as people who should be considered for either clemency or some form of release. These are the people who were most vulnerable, most susceptible to serious complications or death as a result of this virus, and sure enough, that has occurred for some of these people.

These are cases that encapsulate the dire situation upstate, and they're cases that encapsulate the governor and the department's failure to meet the moment and to release sufficient numbers of people to prevent deaths and prevent spread, and to enable social distancing and other preventative measures upstate.

Brian: Last month I saw the legal aid society, your group condemned the New York State Department of Corrections for refusing to follow recently released testing protocols by the centers for disease control specific to correctional settings. Could you walk us through the guidelines and what aspects are not being followed?

Stefen: Absolutely. The CDC released guidance recently calling on departments of correction throughout the country to test, at regular intervals, all people who are incarcerated in their systems. Obviously, there's no way to reliably determine spread in these congregate environments, and no way to reliably determine the preventative measures that need to be taken and the responsive measures that need to be taken without adequate testing data. The department of corrections upstate is still refusing to implement that guidance.

So the numbers that we see coming out of the department of corrections and community supervision, the numbers that are being publicly posted are unreliable as a result of failures to regularly test books. The department is representing that it tests individuals who are symptomatic and that it tests individuals who it knows who have had contact with individuals who've either tested positive or reported symptoms. That's not sufficient. That's not what the CDC is calling for. We're going to continue to call on the state to follow the CDC guidelines. We don't think that there's any way to reliably address the spread of this virus and to reliably prevent continued spread without following those guidelines.

Brian: Jose, a little about you. I've learned from your bio, you were released from prison in January 2018. I see after 38 years and four parole board denials. You now advocate for the release of older inmates. What kind of action was your group asking for from the governor at the start of the pandemic?

Jose: We were calling on the governor to exercise his absolute authority to grant clemency. We were asking him to grant mass clemency to the most vulnerable population in custody, that's it. The elder incarcerated people who have underlying health conditions. Now, it's my experience over three decades of incarceration that the Department of Corrections has a history of responding to health crises in the most punitive focused manner that ignores established medical protocol, and ignores the humanity of those who are incarcerated.

We foresaw, we envisioned very bad catastrophic fatalities in the New York state prison system, and we were trying to protect the most vulnerable by demanding that he, at least, exercise some decency in giving them this opportunity to return back to their families and community.

Brian: Did he to the appropriate degree, in your opinion?

Jose: He ignore our pleas, he ignore our calls, he ignore just about everything. Instead, as you know, his solution was to create a prison nursing home in North Country at around that correctional facility. We foresaw that this may very well result in the same catastrophic loss of lives that has happened in nursing homes across the city in the State of New York. We, again, demanded in a louder voice, we organized North Country residents as well as North Country activators, we tried to push them a little bit to hear our plea and our cries for clemency to the elderly.

Brian: Since there has been no COVID outbreak at Adirondack Facility, why shouldn't someone conclude that what the governor did was effective in protecting these older prisoners who would, of course, be vulnerable to the worst effects of COVID protecting them from that while keeping the other issues separate?

Jose: Let me say that I don't think we could credit these results to his actions or inactions. Understand that elderly people face the health crisis every day of their lives for years and decades. Substandard healthcare has created a health crisis for the elderly people. I know this from experience. I've seen men in their mid to late 50s just pass away from conditions that could have been prevented. He does not get credit for this because he does not address or correct the health crisis that had already exist before COVID-19. Now when COVID-19 started spreading among the prison population, what he did or failed to do was deprive those who were incarcerated of hand sanitizers that they were making.

He deprived them of masks. They were making masks out of handkerchiefs and being punished for making the masks, being punished for wearing the masks. It wasn't until the activists brought light to this injustice of subjecting people to this health crisis without any kind of protection that he succumb to our demands and started allowing incarcerated men and women to have these hand sanitizers they were making, and also were issued masks, but they were not issued masks on a regular basis. Right now, we're getting reports that men and women have to wear the same mask for weeks.

Brian: Listeners, we invite you in on this. Anybody listening right now have a loved one currently serving time in prison, how much is COVID a worry for you or for them? What kind of testing are they receiving or any other preventative measures to mitigate spread, or do you have a loved one in prison who's over 55 or with preexisting conditions that might make them more susceptible to the harsher effects of COVID and are they receiving any special care? 646-435-7280 if anyone has any personal connection to this issue or any question for our guests, 646-435-7280, 646-435-7280.

We sometimes do get calls from inside prisons and jails, so if you are inside a prison or a jail in our listening area and you have access to your phone rights right at this time and you would like to add your voice, feel free. We'll give you first priority in fact, 646-435-7280, 646-435-7280 for Stefen Short, a lawyer with the Prisoners Rights Project at the Legal Aid Society, and Jose Saldana, director of the group Release Aging People in Prisons. 646-435-7280. Stefen, if someone was sentenced to 50 years to life, let's say, should they be released just because they're old?

I actually happened to have a neighbor who tells me that his mother was raped and murdered in the 1970s and the person who was considered the ringleader of that was recently paroled by Governor Cuomo, or by the parole board, I should say. I don't know anything else about the case, but presumably, there was somebody who committed about the worst crime you could commit, it sounds like, against another individual. It was back in the 1970s, so this person would be elderly now. What should the standard be?

Stefen: I think there are two ways to look at a question like that and both of them are important. The first is to look at it through the lens of public health. The second is to look at it through the lens of the professed purpose of the criminal justice system. First and foremost, we're talking about COVID-19 prevention here, and we know that the only way to prevent serious spread in prisons and to beget further spread in the community is to sufficiently thin out the prison population to allow for social distancing, to allow for cleaning and hygiene, and to allow for the other measures that public health entities have identified as the only means to stop the spread.

Again, the only way to do that is to thin the prison population out. We're talking about between 38,000 and 43,000 individuals incarcerated in state prisons throughout the state. There's no room, there's no infrastructure to allow for social distancing without sufficient releases. As a public health necessity, the governor and the Department of Corrections and Community Supervision have to release a critical mass of people who are incarcerated in state prisons, but to the question of people who've served extended prison sentences, so the question of people who are serving time for what are considered violent offenses, the professed purpose of the criminal legal system is to rehabilitate.

The professed purpose of the criminal legal system is to afford people an opportunity to improve, to attain programs, train and educational outcomes, and to return to their community and be productive members of society. In the case of an individual whose been paroled, the parole board had made a determination that that individual can be a productive member of society. That person should be afforded that right. This is about second chances, this is about rehabilitation, this is about what we say our criminal legal system is designed to do.

The second thing that I'll say is that there are thousands upon thousands of people who are incarcerated in state prisons who have not been afforded the opportunity to engage in rehabilitative programming, the opportunity they deserve to reenter their community that they should be afforded. That's what Release Aging People in Prison is about. That's what Jose's work it. There are so many other grassroots organizations in the community that are focused on making the promise of the criminal legal system a reality.

I think what we're seeing and it's connected with what Senator Murphy said earlier, we're seeing institutions of state violence, like our prison system, that are so predisposed to keeping people locked up, and so predisposed to not giving people an opportunity that even in the face of a public health epidemic, even in the face of a public health crisis, these systems continue to perpetuate that violence. They continue to keep people locked up without an opportunity to protect their own health and to reintegrate into their community. We would say that that's inappropriate.

We're calling on releases and measures that are designed to meet the public health moment and make real the professed promise of the criminal legal system.

Brian: Jose from Release Aging people in Prisons, I know you were trying to get in on that answer too, but would you also address the instances of these worst-case crimes like rape and murder that I was referencing? Does aging provide enough of a rationale to let those people out or if they're not considered an ongoing threat?

Jose: I think this embarks a greater discussion. Who defines what punishment is, who defines when there's enough punishment, who defines what justice is? I think we can all agree that the New York State criminal legal system, as well as the legal system across the country, are dominated by a racist agenda. Are we allowing people who had a vested interest in maintaining this racism in the criminal justice system from policing, prosecution, courts onto incarceration to define justice as revenge? If this is what it's about, then let us call it for what it is. We're defining justice, the real justice, and that justice must include the value of human beings' ability to transform their lives, and we have to.

If we don't do that, then we are just living in a barbaric society. We have to acknowledge that human beings, no matter what crime or conviction, have that mass ability to transform they live and be the most productive citizens in our community. I'm a perfect example. There are dozens of men just like me who committed violent crimes, and today are the most civic-minded human beings in their communities. Are we going to deprive our communities of men and women like this? For who? Whose agenda is served? What purpose is really served by depriving our communities who need this type of grassroot leadership?

Because we are the only ones that can address some of this violence in our community? Why deprive our community of some of the valuable resources that we have for the purpose of pure vengeance?

Brian: That's how you would characterize it even for someone who committed murder and rape?

Jose: This is what it is. I'm not categorizing, I'm looking at what is the purpose. Who defines? Who defines on when there is enough punishment? Are our communities involved in this searching for equitable or definition of what criminal justice should really look like minus the racist agenda? Let us be a part of this conversation.

Brian: This is WNYC-FM HD in AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcom, and WNGO 90.3 Toms River. We are a New York and New Jersey public radio. We're getting some phone calls from people with loved ones in prison. I want to take a couple of those phone calls right now and hear people's stories and questions. Joleen in Upstate, New York, you're on WNYC. Jolene, thank you so much for calling in.

Jolene: Hi, there. Good morning. Thanks for having me. I called in when I had heard Jose mentioning that people in prisons currently aren't receiving masks. My husband's been in prison 20 years, and he has one mask he received about three weeks ago. He's asked for more and he hasn't received them. What he says has validity. Also, Stefen had mentioned that pre-COVID, there was thousands, to be specific, 6,500 clemency applications on the governor's desk waiting for his clemency bureau's assessment and his signature.

After COVID, we worked with RAPP and so many other groups to put clemency petitions together, to put compassionate, release petitions together, to have people released during COVID to alleviate the problems of density inside the prisons, and things of that nature weren't done. My last comment that I'd like to make is about the comment that you made about the worst-case scenario when a person is released, they come back out. That case is decades old and to have to reach that far back into history to pull out something to keep people still in prison by fear, it's just bad media in general. In that worst-case scenario, that's the exception to the rule.

There are, again, thousands of people inside prison whose rehabilitation is not being valued. There's all these acts that we are trying to put together, the Fair and Timely Bill, the Elder Parole Act clemency. These are all things that value a person as they are today, not who they were on the worst day of their life. That is what we need to be looking at, who we're keeping in prison still. There's a generation of people in prison that could be out here reforming and contributing to the conversations that are going on now that it would be vital, vital to our future to have these people in the conversation.

Moderator: Jolene, thank you so much. Jacklyn in Brooklyn, you're on WNYC. Hi, Jacklyn. Do we have Jacklyn?

Jacklyn: Hi, thanks so much.

Moderator: Sure. Hi.

Jacklyn: Yes, I’m here. Hi.

Brian: Go ahead.

Jacklyn: Thanks so much for having me on. I definitely wanted to echo everything that Mr. Saldana said, this is a racist system. We have a chronic racist in the White House and he's not incarcerated. Obviously, the prison system has nothing to do with justice for anyone really. I have a number of loved ones, a cousin in federal prison, a sister-in-law in women's facility, and another in-law upstate, in Otisville Federal. It's not just unfortunate that people are being neglected, it's that they're actively being exposed to the virus. A lot of it is coming in through corrections officers who are not wearing PPE.

As the last caller said and as Mr. Saldana said, people are being provided one mask, from what I understand, for the entire course of the pandemic, and being forced to wear it every day with threat of going into solitary confinement. The other thing I mentioned to the screener is that a lot of things that I've heard from loved ones are that people are afraid to report that they have any symptoms because they hear from people who report their symptoms that then they're put in solitary confinement and not receiving any treatment.

People would rather try to deal with the virus in general population where they're not isolated from their loved ones and from people that they know, and isolated from the scrutiny of the public by being in solitary. People aren't even reporting if they have symptoms, and we really can't blame them for that. The last thing that I wanted to say is a lot of this is being documented by an inside prison journalism project called Prisons Kill. If you go to Twitter, it's @prisonkill. Right now, we've been documenting a lot of people directly from inside journalism about what the conditions are.

People who have any doubts about how racist and how unhealthy and deadly the system is and they want to hear more from people inside, they can go right there and there’s interviews that you could hear that's audio. I just want to say thank you to RAPP because I know the work that RAPP does and it's really important for the community.

Brian: Thank you so much. As we've run out of time, let me get a last comment from each of you, Stefen and Jose, and set it up this way. There was a story in Gothamist by our reporter, Gwynne Hogan, who revealed stories of inmates not receiving medical care for conditions other than COVID. Some of the stories, an 80-year-old man suffering from osteoporosis ordered to do manual labor, a 63-year-old with AIDS deprived of a routine blood test, a 64-year-old with chronic lung disease unable to see a doctor, and it goes on from there. This issue goes well beyond COVID, though, I think it's been brought more into view for more of the public because of COVID.

What are the next steps in this campaign to get, at very least, decent treatment for older people in prison, and then to the campaign to release older people that both of you are engaged in? Stefan, you want to go first?

Stefan: Sure. Just commenting on the medical treatment issues, and we've been litigating medical treatment issues against the Department of Corrections and Community Supervision since the '70s. As you say, these are issues that are endemic to our prison system. The medical care is atrocious, people are routinely neglected, the most serious medical needs go untreated, and as you say, that is also playing out with the department of COVID response.

There are individuals who report symptoms and aren't getting tests, there are individuals who report a serious need for cleaning and hygiene supplies and aren't being delivered those supplies, and what we also see is a serious policy practice dichotomy, so even where the department has decent policies on some of these COVID related things and on medical treatment more generally, those policies are not followed on the ground in correctional facilities. I think what we're dealing with are intractable problems and a prison system that is completely indifferent to the needs of the people in incarceration and indifferent to the community's needs.

I think the next steps in terms of COVID and the next steps in terms of medical care generally, we're going to continue to litigate against the department to have the most medically vulnerable and most advanced age individuals released from custody. We're going to continue to push state legislators, we're going to continue to work with grassroots organizations to force the governor and force the department to meet the moments. Not only provide the supplies and the response as needed inside prisons, but use the constitutional clemency power, use the statutory powers of releases and medical parole to finally take this pandemic seriously, and this is a fight that's a long fight.

This is not just about COVID, it's about medical treatment, it's about the criminal legal system's complete and total indifference in racism. Those are the next steps, is just continuing this fight and forcing state officials to do their job.

Brian: Jose, you can get the last word.

Jose: Yes, well, RAPP takes the position that you cannot reform the legacy of racism and this criminal legal system is predominately a racist system that cannot be reformed. You have to uproot the entire tree. We advocate for two legislative initiatives that will be a transformative attempt to change this system toward a humane system that will ultimately lead to decarceration on a mass scale. The Elder Parole Bill will correct some of the injustices of this racist legal system of having men and women languish in prison for decades beyond the minimum that was set by the court. I mean literally decades.

It will correct that by allowing these men and women to appear before the parole board, a parole board that is fair-minded, a parole board where all the commissioners believe that a human being can transform their lives. The Fair and Timely Parole Bill will stop the perpetual punishment by the parole board of adding layers and layers of punishment, sometimes years to decades of parole denials. They will stop that and actually provide that the parole board is to make a determination on who this person is today. These two legislative initiatives as well as the administrative ones of changing the New York State Parole Board from one that is bent on punishment to one that values transformation.

These will go a long way towards decarceration and correcting some of the evils that mass incarceration has created and has inflicted, not only on those who are incarcerated but tens of thousands of family members who have suffered for generations as a result of these racist policies.

Brian: Jose Saldana, director of Release Aging People in Prisons or RAPP, and Stefen Short, a lawyer with the Prisoners Rights Project at the Legal Aid Society. Thank you both.

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