Chesa Boudin, the District Attorney of San Francisco, last spoke to his father on the phone a few days ago, and, like everyone these days, they talked about COVID-19. His father, David Gilbert, is seventy-five, but the risks he faces if infected by the virus are far more serious than those confronting many other septuagenarians. Gilbert is confined at Shawangunk Correctional Facility, some seventy miles north of New York City. Should he get sick, he will have to rely on the prison’s staff to help him. “Using the phones or even going to the mess hall is a real risk for him at this point,” Boudin said. “They use very old-school phones that are shared by a large number of inmates, and they don’t work very well. And, so, to have a conversation, you have to get your mouth right up into the mouthpiece that is being used by many, many hundreds of other people.”
Gilbert is among the oldest people in the New York State prison system. In 1981, he and Chesa’s mother, Kathy Boudin, who were both members of the Weather Underground, were involved in the robbery of a Brink’s armored truck, in Rockland County, that resulted in the deaths of one of the company’s guards and two police officers. Kathy, who was sentenced to twenty years to life, was released on parole in 2003; Gilbert is serving a sentence of seventy-five years to life. About his most recent call with his father, Boudin said, “We said goodbye at the end, as we do at the end of every phone call, but this one felt different. It felt heavier and more ominous because I know—and he knows—that there’s a very high likelihood that his prison will go on lockdown, or that he’ll be unable to get back to the phones. And because we know that the reason for that is a disease that very seriously threatens his life.”
There are fifty-two state prisons in New York, and in at least ten of them, including Shawangunk, employees or incarcerated people have tested positive for COVID-19. The state’s Department of Corrections and Community Supervision said, on Wednesday, that thirty-three employees and three incarcerated people have been infected. (These include Harvey Weinstein, who is at Wende, a maximum-security prison east of Buffalo.) Doctors at New York City’s jail complex on Rikers Island have warned about the threat of COVID-19 to their patients, but the situation in the state’s prisons has the potential to be even more disastrous. New York City’s jails are all located not far from hospitals, but New York’s state prisons, like those of other states, are typically situated in remote, rural towns. The state’s prisons currently hold some forty-three thousand people, nearly three thousand of whom are at least sixty years old. Homer Venters, the former chief medical officer for Rikers Island, told me, “I think what we’re going to find out is that the way we’ve set up our state prisons all over the country—concomitant with the fact that we have closed a lot of rural hospitals—creates a very horrible circumstance. As lots of patients get sick in rural detention settings, there is very little way for them to get into hospital-level care, which will, I think, contribute to a lot of preventable deaths.” He added, “It’s terrifying to think what it looks like when you’re incarcerated in a rural, far-flung place and have respiratory distress.”
Steven Zeidman, a professor at the City University of New York School of Law, runs a clinic that assists incarcerated people with applications for clemency. In early March, Zeidman made a list of ten of his clients and sent it to Governor Andrew Cuomo’s office, urging officials to release the men. “With COVID-19 entering the state’s prisons, it’s imperative that the governor’s clemency bureau begins taking a hard look at people, particularly those who are deemed to be most at risk. Here’s a list of people, all with exemplary records inside, who are over sixty and have profound evidence of transformation and rehabilitation,” he recalled writing. Among them was Gilbert, who, in the late nineteen-eighties, helped create an organization that used peer counselling to educate incarcerated men about the AIDS epidemic.
Zeidman’s list also includes Ulysses Boyd, who is sixty-five and, according to Zeidman, has a history of pneumonia and blood clots in his lungs. Another man on his list is sixty-six, with “lung cancer, prostate cancer, in and out of hospital as of today,” Zeidman wrote in a follow-up e-mail to Cuomo’s office. Another, who is sixty-three, “was found unconscious in his cell on 9/6/19” and “had a ‘loop recorder’ implanted so doctors could monitor his heart.” Meanwhile, an advocacy group called Release Aging People in Prison has been pressing Cuomo to release incarcerated people who are especially vulnerable to COVID-19. So far, Cuomo has not announced plans to do so, although, at a press briefing on Monday, he told a reporter that granting clemencies to elderly people who are in prison is “something we’re looking at.”
This week, Mayor Bill de Blasio promised to release a few hundred people from New York City’s jails. New Jersey’s Attorney General has agreed to free about a thousand people from the state’s county jails. Officials in many other states are taking similar actions, including Boudin, who asked his staff at the San Francisco District Attorney’s office to examine the cases of people held in the city’s jails, in order to figure out whom they could release. “The health-department officials that run our jail medical team are very anxious,” Boudin said. “I mean, I get messages from them repeatedly throughout the day about the jail count, about particular people that they are concerned with that have vulnerabilities, people who are elderly like my father is, who they want me to find ways to get out if it is within my power to do so.”
As COVID-19 has been spreading throughout the country, Boudin has been outspoken in urging criminal-justice leaders to reduce their jail and prison populations. But he also acknowledges the difficulty of doing so. “The decision about whether or not to release a particular individual from custody is often a challenging one,” Boudin told me. “As a law-enforcement official, as a politician, you are always going to have in the back of your mind the fear that someone you release will end up committing another crime, potentially a serious crime, during a period when they otherwise would have been incarcerated. And that fear has driven decision-making for decades in the criminal-justice arena. That fear of a Willie Horton moment has driven decision-making, legislation, executive action around criminal justice.” But “crises like this force us all,” he said, “to look in the mirror and make difficult decisions, ask difficult questions about what our priorities are.”
I asked Boudin if he had a message for Cuomo, and he said, “I think Governor Cuomo has been playing a phenomenal leadership role in the face of this crisis.” He went on, “I saw a tweet that he posted today where he said something to the effect of, ‘We’re not willing to sacrifice one to two per cent of New Yorkers. This is not who we are. We will fight to save every life we can. I’m not giving up.’ And it’s that kind of inspiration, that kind of leadership, that is leading people to put his name forward as a Presidential candidate at this late date. I would just urge him not to forget about people who are incarcerated. We are not willing to sacrifice people who are incarcerated either.” Boudin did not mention his elderly father, in Shawangunk prison, but he repeated the sentiment: “Please don’t forget about people who are behind bars.”
