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Doe v. Hansell, NY, Petition, Release of Juveniles COVID-19, 2020

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On behalf of
JOHN DOES 1 – 7,1

Index No. _______________


DAVID HANSELL, Commissioner, New York City
Administration for Children’s Services,
Upon the relation of Lisa Freeman, Esq.,
WE COMMAND YOU, that you have and produce the body of Petitioners named in the
Verified Petition attached hereto, by you detained, as it is said, together with your full return to
this writ and the time and cause of such detention, by whatsoever name the said Petitioners are
called or charged, or show cause why the Petitioners should not be produced, before the Justice
presiding at Part ____ of the Supreme Court, New York County, at 60 Centre Street, NY, NY
10007 on ____ of March, 2020, to do and receive what shall then and there be considered
concerning the said Petitioners and have you then and there this writ.


Petitioners are not being identified by name because they are all minors 22 NYCRR § 202.5(e)(iii).


WITNESS, Honorable__________________________________, one of the Justices of
the Supreme Court of the State of New York, this ___ day of March 2020.

By the Court Clerk
The above writ allowed this _______ day of March 2020.

Justice of the Supreme Court
of the State of New York


On behalf of
Index No. _______________

JOHN DOES 1 - 7.


DAVID HANSELL, Commissioner, New York City
Administration for Children’s Services,

Lisa Freeman, an attorney duly admitted to practice law in the State of New York, hereby
affirms the following under penalty of perjury:

Petitioners are 7 youth, between the ages of 13 and 17, detained in secure and non-

secure detention centers in New York City during the pendency of their juvenile delinquency cases.
By physical design, these facilities house youth in close congregate settings, with shared dining
rooms, common recreational areas, communal bathrooms and showers, and, at some sites, shared
bedrooms. Considering the extraordinarily dangerous nature of the COVID-19 pandemic, with its
extremely high degree of contagion and its transmission rate in New York City growing at an
alarming pace, these youth are extremely vulnerable to infection by the virus and to its potentially
devastating consequences. This petition seeks the immediate release from detention of these eight
youth on the grounds that continuing to hold them in these facilities constitutes deliberate
indifference to the risk of serious medical harm in violation of the Fourteenth Amendment and
state constitutional right to due process.


In only a few months, 300,227 people worldwide have been diagnosed with

COVID-19 and nearly 13,000 of those people have died. There is no vaccine or cure for COVID19. No one is immune.

Risk mitigation in the form of social distancing and isolation is the only known

strategy to protect individuals from COVID-19. To that end, in an unprecedented Executive Order,
New York State Governor Andrew Cuomo has directed all New York State residents to stay at
home, not go to work, and refrain from engaging in any and all unnecessary physical contact with
others. Because risk mitigation is effectively impossible in juvenile detention centers, experts
from youth correctional facilities all over the country have called for the immediate release of
detained youth to their homes to be safely cared for by family, and if family is unavailable, to be
moved to foster homes or similar non-congregate settings. Release is the only effective means of
protecting these youth from contracting and transmitting COVID-19 between detained youth and
of reducing the risk of exposure to staff working there. Further, with appropriate safeguards in
place, including enhanced monitoring, these youth can be safely cared for in their homes.

COVID-19 already has reached New York City’s youth detention facilities, with

both detained youth and staff testing positive for the virus. Continuing to maintain these youths
in this hotbed of contagion poses an unconscionable and entirely preventable risk of harm to
Petitioners. Across New York City, extraordinary and unprecedented measures affecting every
aspect of life are being taken in the name of protecting people from this pandemic. New York
cannot leave these young and susceptible individuals behind to suffer potentially dire



I am the Director of the Special Litigation Unit of the Legal Aid Society’s Juvenile

Right Practice, which is counsel to Petitioners in this matter. I make this application on behalf of
the below-named Petitioners.

Petitioner John Doe 1 is detained in a secure detention facility controlled by

Respondent New York City Administration for Children’s Services. As a result, they are at high
risk for contracting COVID-19.

Petitioner John Doe 2 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at a high risk for contracting COVID-19.

Petitioner John Doe 3 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at high risk for contracting COVID-19.

Petitioner John Doe 4 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at a high risk for contracting COVID-19.

Petitioner John Doe 5 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at high risk for contracting COVID-19.

Petitioner John Doe 6 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at high risk for contracting COVID-19.

Petitioner John Doe 7 is detained in a non-secure detention facility controlled by

Respondent. As a result, they are at a high risk for contracting COVID-19.

Respondent David Hansell is the Commissioner of the New York City

Administration for Children’s Services. Respondent is a legal custodian of Petitioners.

This court has subject matter jurisdiction over this matter under CPLR § 7001.


Petitioners have made no prior application for the relief requested herein.


Copies of the detention orders pertaining to individual Petitioners are not attached

hereto due to the emergency nature of this proceeding.
The COVID-19 Pandemic Presents a Grave Risk of Harm, Including Serious Illness and
Death, to Youth Held in Detention Centers

COVID-19 is a coronavirus that has reached pandemic status. As of March 22, 2020,

over 335,403 people worldwide have confirmed diagnoses, including over 33,889 people in the
United States and 16,887 in New York. Indeed, as of March 22, New York state reportedly has
5% of the world’s COVID-19 cases.2 Over 9,324 people have died, including at least 149 in the
United States and 65 in New York City. As the number of COVID-19 cases spike, New York City
is now the U.S. COVID-19 Virus Epicenter. 3 As of March 22, 2020, there are more than 16,887
confirmed cases of coronavirus within New York, up from 4,627 the prior day, and at least 150

The World Health Organization (“WHO”) has declared COVID-19 a pandemic.5

On March 7, 2020, the Governor of the State of New York issued Executive Order Number 202,
declaring a disaster emergency for the entire State of New York. 6 Subsequently, the Mayor of


Jesse McKinley, New York City Region Is Now an Epicenter of the Corona Virus Pandemic, N.Y. TIMES (Mar. 23,
2020 8:33 AM),
4 Mitch Smith et al., Coronavirus Map: U.S. Cases Surpass 10,000, N.Y. TIMES (Mar. 19, 2020, 11:28 AM), (updating live; numbers expected to rise).
See also Gwynne Hogan, NYC Cancels Coronovirus Testing By Appointment, Urges Providers Not To Test Patients
Unless Hospitalization is Required. Gothamist March 22, 2020.
5 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020,
11:59 PM),
6 Jesse McKinley & Edgar Sandoval, Coronavirus in N.Y.: Cuomo Declares State of Emergency, N.Y. TIMES, (Mar.
7, 2020),


New York City declared a State of Emergency for the City. 7 The President of the United States
has officially declared a national emergency. 8

On March 20, 2020, as the number of new cases continued to rise at an astounding

rate throughout the country, and with New York City identified as the epicenter of the virus, the
Governor took the strictest measure yet to fight its spread, issuing a “stay at home” executive order
for all residents. In a statement to the public, Governor Cuomo explained that the order prohibits
non-essential gatherings of any size, requires all non-essential businesses to close, and 100 percent
of their employees to work from home, and that people should stay at least six feet away from
others. “Reducing density,” the Governor said, is, along with increasing hospital capacity, the
most “effective way” of winning the “war against this pandemic.” 9

The transmission of COVID-19 is expected to grow exponentially. Nationally,

projections by the Center for Disease Control and Prevention (“CDC”) indicate that over 200
million people in the United States could be infected with COVID-19 over the course of the
pandemic without effective public health intervention, with as many as 1.5 million deaths in the
most severe projections. 10

COVID-19 is a particularly contagious disease. A recent study showed that the

virus could survive for up to three hours in the air, four hours on copper, up to twenty-four hours
on cardboard, and up to two to three days on plastic and stainless steel. 11 Indeed, a new study of

DeBlasio Declares State of Emergency in N.Y.C., and Large Gatherings Are Banned. N.Y. TIMES (Mar. 12, 2020),
8 Derek Hawkins et al., Trump Declares Coronavirus Outbreak a National Emergency, WASH. POST (Mar. 13, 2020,
10:46 AM),
10 Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13,
11 Novel Coronavirus Can Live on Some Surfaces for Up to 3 Days, New Tests Show. TIME
( (last visited Mar. 19, 2020).


an early cluster of COVID-19 cases in Wuhan, China revealed the dangers of indirect transmission
resulting from infected people contaminating common surfaces—in the study, it was a communal
mall bathroom.12 New research also shows that controlling the spread of COVID-19 is made even
more difficult because of the prominence of asymptomatic transmission—people who are
contagious but who exhibit limited or no symptoms, rendering ineffective any screening tools
dependent on identifying symptomatic behavior. 13

There is no vaccine for COVID-19. No one is immune.


While older individuals face greater chances of serious illness or death from

COVID-19,14 it is now known that the younger population is just as susceptible of contracting the
virus and may fall as ill as older people. In a virtual press conference held on March 20, 2020,
WHO Director-General Tedros Adhanom Ghebreyesus warned that younger people are not only
not spared of contagion, but worldwide, they make up a “significant proportion” of patients
requiring hospitalization, sometimes for weeks and sometimes resulting in their deaths. 15 And
even when asymptomatic or suffering milder symptoms, these younger individuals still pose a very
serious risk of transmission to those with whom they come into contact, including older, more

Cai J, Sun W, Huang J, Gamber M, Wu J, He G. Indirect virus transmission in cluster of COVID-19 cases, Wenzhou,
China, 2020. Emerg Infect Dis. 2020 Jun. ( (last visited Mar. 18, 2020).
13 Coronavirus: Are Asymptomatic Still Capable of Spreading COVID-19? Independent. Available at (last visited Mar. 18, 2020).
14 Medical information in this and the petition paragraphs that follow are drawn from the expert testimony of two
medical professionals filed in a recent filed federal case in Washington State, as well the website of the Harvard
Medical School. See Expert Declaration of Dr. Marc Stern:;Expert Declaration of Dr. Robert Greifinger:; Expert Declaration of Dr. Jonathan Golob; HARVARD MEDICAL SCHOOL, CORONAVIRUS RESOURCE CENTER, As
coronavirus spreads, many questions and some answers,, (last visited Mar. 19, 2020).


vulnerable adults.

Indeed, for these reasons, New York City Mayor DeBlasio took the

extraordinary step of closing all New York City schools.16

Further, certain underlying medical conditions increase the risk of serious COVID-

19 disease for people of any age – including lung disease, heart disease, chronic liver or kidney
disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised
immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including
sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and pregnancy.

Youth involved in the juvenile justice system are generally less healthy than their

peers. They are more likely to go for long stretches without health insurance, and as they get older,
more likely than the general population to engage in sexual behavior that puts them at risk for HIV,
AIDS, and other sexually transmitted infections. 17

Moreover, sadly a twelve-year-old with no underlying medical conditions is

reported to be fighting for life on a respirator from COVID-19 in Georgia.18

The vast majority of youth in juvenile detention are black or Hispanic and come

from poor communities in New York City. 19 It is well documented that these communities suffer
high rates of asthma prevalence. Indeed, one in four in children in poor neighborhoods in New
To Reduce Long-Term Health Gaps, a Push for Early Intervention in Juvenile Detention, Chris
19 In fiscal year 2018, 66.9% of all NYC youth admitted to secure detention facilities in 2018 self-identified as black
and 28.5% identified as Hispanic; similarly, 67% of those admitted to non-secure detention facilities identified as
black and 26% as Hispanic. Children
from only 15 zip codes in NYC make up more than a third of all youth admitted to secure detention.


York City have been found to have asthma. 20 And according to one recent study, 1 in 5 New York
City teens has undiagnosed asthma. 21

The CDC has warned that people with asthma are at higher risk of getting very sick

from COVID-19, which may affect the respiratory tract (nose, throat, lungs), cause an asthma
attack, and possibly lead to pneumonia and acute respiratory disease. 22

For people with medical conditions that increase the risk of serious COVID-19

infection, symptoms such as fever, coughing and shortness of breath can be especially severe. 23

COVID-19 can cause severe damage to lung tissue, sometimes leading to a

permanent loss of respiratory capacity, and can damage tissues in other vital organs including the
heart and liver. Patients with serious cases of COVID-19 require advanced medical support,
including positive pressure ventilation and extracorporeal mechanical oxygenation in intensive
care. Patients who do not die from serious cases of COVID-19 may face prolonged recovery
periods, including extensive rehabilitation from neurological damage and loss of respiratory

COVID-19 may also target the heart muscle, causing a medical condition known

as myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and
electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal
heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and ability
to work. See
also Prevalence and Cost of Asthma in New York State (asthma prevalence rates among Medicaid recipients were
highest among children aged 0 through 17). This
high rate of asthma prevalence is consistent with high rates of asthma prevalence for black and hispanic youth in NY
state. at p. 46
(rates of asthma of 21-25% for black and hispanic middle and high schooler students).
23 Id.



Emerging evidence suggests that COVID-19 can also trigger an over-response of

the immune system, further damaging tissues in a cytokine release syndrome that can result in
widespread damage to other organs, including permanent injury to the kidneys and neurologic

These complications can manifest at an alarming pace. Patients can show the first

symptoms of infection in as little as two days after exposure, and their condition can seriously
deteriorate in as little as five days or sooner.

The need for care, including intensive care, and the likelihood of death, is much

higher from COVID-19 than from influenza. According to recent estimates, the fatality rate of
people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even
in advanced countries with highly effective health care systems. According to preliminary data
from China, 20 percent of people in high-risk categories who contracted COVID-19 there died.24

There is no cure for COVID-19 nor is there any known medication to prevent or

treat infection.

The only known methods to reduce the risk for vulnerable people of serious illness

or death from COVID-19 are to prevent infection in the first place through social distancing and
improved hygiene, including frequent hand washing with soap and water.

Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization
(Feb. 28, 2020), at 12, (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those
with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6%
for cancer”); Wei-jie Guan et al., Comorbidity and its impact on 1,590 patients with COVID-19 in China: A
5, (finding that even after adjusting for age
and smoking status, patients with COVID-19 and comorbidities of chronic obstructive pulmonary disease, diabetes,
hypertension, and malignancy were 1.79 times more likely to be admitted to an ICU, require invasive ventilation, or
die, the number for two comorbidities was 2.59); Fei Zhou et al., Clinical course and risk factors for mortality of adult
inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, Lancet (March 11, 2020), tb. 1, (finding that among hospital
patients, who tended to be older, of those who had COVID-19 and died, 48% had hypertension, 31% had diabetes,
and 24% had coronary heart disease).


Youth in Detention Facilities Face an Elevated Risk of COVID-19 Transmission

Upon information and belief, New York City juvenile detention centers, by design

and operation, make it impossible for youth to engage in the necessary social distancing required
to mitigate the risk of COVID-19 transmission.

Detained youth have limited freedom of

movement and no control over the movements of others with whom they are required to congregate
on a daily basis. They are unable to maintain anything close to the recommended distance of six
feet from others.

Youth charged in Family Court as juvenile delinquents (individuals alleged to have

engaged in criminal conduct between their seventh and eighteenth birthday 25) who are remanded
during the pendency of their cases are housed in secure or non-secure detention centers in the
custody of Respondent.

All youth remanded to secure detention are held in Crossroads Juvenile Detention

Facility, operated by Respondent’s Division of Youth and Family Justice (“DYFJ”).


remanded to non-secure detention are held in one of eight facilities run by non-profit organizations
under contract with DYFJ. Both secure and non-secure detention facilities confine the youth in
close quarters with shared living spaces and common gathering areas, and both experience constant
turnover of detained youth and staff, making them breeding grounds for infection and transmission
of COVID-19.

Youth at Crossroads are assigned to housing units comprised of individual cells

connected by a common area with a shared bathroom. Individual cells lack sinks or toilets. Each
housing unit eats all its meals in a communal dining room, used by all housing units in the facility,
with the possible exception of the single Special Housing Unit. Upon information and belief, now,


Family Court Act § 301.2(1).


each housing unit may be eat all meals in its common area. During waking hours, when not in
school or other programs, youth generally are in their unit’s common area. Due to the virus, school
is not being held in separate classrooms, but only “remotely.” As a result, youth are spending the
majority of their days together in their housing unit’s common area, which does not allow for
social distancing.

Non-secure detention facilities, while designated as “non-secure,” also are locked

facilities. Each facility has the capacity to house twelve detained youth.26 Prior to Mayor De
Blasio’s closing of NYC’s public schools, youth in non-secure detention were taken to one of two
specially designated schools outside of their facility. School is now being conducted on a remote
basis, so youth are no longer transported to school, but remain locked into their housing facility,
where they eat together, use common bathrooms and showers, spend time together in common
areas, and often share bedrooms. Here, too, it is not possible to practice social distancing.

Youth in non-secure detention are brought to secure detention in order to obtain

any needed medical care, leading to further exposure of youth in secure and non-secure detention.

At both secure and non-secure detention centers, the population continually

changes, with new detained youth entering and others being discharged on a daily basis. Secure
and non-secure detention centers also handle “police admits,” youth who because of the timing of
their arrest have not yet been arraigned by a judge to determine whether they need to be detained.
As a result, youth in detention are continuously exposed to new detained youth, as they are to
different staff members who alternate from shift to shift. As the virus spreads, staff will
undoubtedly continue to fall ill, increasing the turnover and exposure of youth in the facility.


9 NYCRR 180-1.3(D)(3).



Infectious diseases that are communicated by air or touch, such as COVID-19, are

more likely to spread in congregate environments, such as detention centers – places where people
live, eat, and sleep in close proximity. Recent events demonstrate that people are particularly
vulnerable to transmitted COVID-19 infection where their ability to practice social distancing is
limited and they either share common areas where the infection risk is high or they unavoidably
come into contact with persons who themselves were exposed to situations that carried a high
degree of risk of infection.

The highest known person-to-person transmission rate for COVID-19 to date took

place in a skilled nursing home facility in Kirkland, Washington, and on afflicted cruise ships in
Japan and off the coast of California. Each of these congregate settings became veritable breeding
grounds for transmission of COVID-19.

The conditions of New York City detention facilities pose a higher risk of the

spread of COVID-19 than in non-carceral locations like a nursing home or cruise ship. Detention
centers have a greater risk because of closer quarters, the proportion of vulnerable people detained,
and sub-optimal medical care resources. 27

Juvenile detention centers, much like jails, impose limited mobility and heightened

confinement on their detainees and feature shared dining and bathroom accommodations, make
them particularly vulnerable to the transmission of infection. In China and Iran, major and

See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047 (Oct.
2007), ( in jails “[t]he probability of transmission of potentially pathogenic organisms
is increased by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry,
[and] insufficient infection-control expertise”); see also Claudia Lauer & Colleen Long, US Prisons, Jails On Alert
for Spread of Coronavirus, Associated Press (Mar. 7, 2020).


devastating COVID-19 outbreaks occurred in prisons, and experts predict the same will happen

Just this week, New York City jails were hit with a large COVID-19 outbreak. 29

The New York City Board of Correction reports that as of March 21, 2020, “at least twelve
[Department of Correction (“DOC”)] employees, five [Correctional Health Services] employees,
and twenty-one people in custody have tested positive for the virus. There are more than 58
individuals currently being monitored in the contagious disease and quarantine units (up from 26
people on March 17).”30

As of March 23, 2020, it is reported that DOC’s Rikers Island has 60 confirmed

COVID cases among inmates, up from just 8 cases on Friday.31

Indeed, COVID-19 already has reached New York City youth detention centers.

As of March 23, 2020, at least two staff two staff members working at Crossroads, responsible for
transporting detained youth to and from court, have contracted the virus and been hospitalized with
respiratory problems.32

Given that the period during which a COVID-19 infection incubates in a person

before that person develops symptoms is estimated to be between 2 and 14 days,33 and given the

Evelyn Cheng and Huileng Tan, China Says More than 500 Cases of the New Coronavirus Stemmed from Prisons,
CNBC, Feb. 20, 2020, (quoting Tyler Winkelman, co-director of the Health, Homelessness, and Criminal Justice Lab
31 .
32 Eileen Grench, Three Juvenile Detention Staff Test Positive for COVID-19, But No Teens Released, THE CITY
2020); A third staff
member, employed at Horizon Juvenile Detention Center, which houses adolescents charged in criminal court, also
has tested positive. Id.


current lack of access to testing, 34 there is little doubt that the actual number of infected youth and
staff in secure detention is already much higher and will continue to grow. The Legal Aid Society
has been receiving daily reports of symptomatic, suspected COVID-19 positive individuals in New
York City juvenile detention centers.

ACS has not implemented protocols sufficient to protect either the youth in

detention or staff working in the facilities. There is no indication that ACS has even taken such
risk-mitigation measures as ensuring all staff and youth have access to cleaning and sanitation
supplies and giving youth instruction on how to properly wash their hands and sanitize all surfaces
throughout the day. Moreover, given the constant influx of new detained youth, there simply are
no measures absent unavailable mandatory and prompt testing to address those youth who may be
in the incubation period of the virus or asymptomatic carriers of it. 35

ACS has suspended family visits to detention centers to reduce transmission, but

that isolates youth from their families and support networks. The suspension of all visits for youth
in detention during this incredibly stressful period places them at risk of significant emotional
harm. The vast majority of youth in the juvenile justice system have experienced trauma and suffer
from mental health disorders. According to the Vera Institute, in 2014 “approximately 85 percent
of young people assessed in secure detention intake reported at least one traumatic event, including

On March 20, 2020, the NYC Department of Health issued NYC Health Advisory # 8 which now expressly
discourages non-hospitalized testing for COVID-19. NYC health officials have directed medical providers to stop
testing patients, except those sick enough to require hospitalization. Only testing that would impact a patient's
treatment should be done. Associated Press, Coronavirus NY: Health Officials Provide Limits on Testing Patients for
COVID-19 (March 21, 2020). Due the critical shortage of protective equipment for health care workers, swabs and
transport media, and in order to reduce transmission of the virus, non-hospitalized patients will no longer be tested in
35 Coronavirus: Are Asymptomatic Still Capable of Spreading COVID-19? Independent. Available at


sexual and physical abuse, and domestic or intimate partner violence. Furthermore, one in three
young people screened positive for Post-Traumatic Stress Disorder (PTSD) and/or depression.” 36

Cutting youth off from visits by their families and supports during this difficult,

anxiety-producing time increases the emotional toll associated with their detention.

Gladys Carrion, former Commissioner of ACS, issued a statement noting that

visitation for incarcerated youth is “essential” to their emotional well-being and she, along with
other experts in the juvenile justice system, are pressing for the release of detained youth to their
homes whenever possible, given that the facilities are not equipped to handle the crisis.37
Release Is Required to Address the Risk of Serious Medical Harm

On March 20, 2020, Youth Corrections Leaders for Justice (“YCLJ”), a group

comprised of youth corrections officials across the country (co-chaired by Vincent Schiraldi,
former Commissioner of New York City Department of Probation, and former ACS Commissioner
Gladys Carrion), issued a joint statement signed by 30 current and former youth correctional
administrators calling for the immediate release of youths in juvenile detention facilities to protect
them from COVID-19.38

In the press release announcing YCLJ’s statement, Mr. Schiraldi is quoted as saying:
As a nation, we have decided that it is not safe for our children to be
in school together. That means it is certainly not safe for them to
live in congregate care facilities with hundreds of other youth,
24/7. . . Those of us who have run these places know that the idea
of social distancing is preposterous in such an environment and
introducing the virus to locked facility would be devastating.39 at 12. See also, (80% of juvenilejustice involved youth report experiencing trauma).
37 Recommendations for Youth Justice Systems During the COVID-19 Emergency.
38 Id.



In a similar initiative, youth justice advocates in twenty-two states, New York

among them, sent letters to their governors, juvenile justice system administrators, and other state
and local officials, demanding the release of detained and incarcerated youth and the halting of
new admissions to protect youth from the spread of COVID-19.40

Physicians for Correctional Reform issued a statement calling for the release of

children in juvenile detention and describing the health risks posed by COVID-19 in carceral
Transmission of infectious diseases in adult jails and prisons is
incredibly common, especially those transmitted by respiratory
droplets. For example, it is estimated that up to one quarter of the
U.S. prison population has been infected with tuberculosis, a rate of
active TB infection that is six to ten times higher than the general
population. Flu outbreaks are regular occurrences in jails and
prisons across the United States. With a mortality rate 10 times
greater than the seasonal flu and a higher R0 (the average number of
individuals who can contract the disease from a single infected
person) than Ebola, an outbreak of COVID-19 in youth detention
and correctional facilities would be devastating. 41

Correctional Health Services (“CHS”), which administers medical care in New

York City jails, has acknowledged their limited capacity to manage the risk of the virus and has
requested that courts reconsider the necessity of pretrial detention for high risk patients until the
current state of emergency is resolved.

41 at 2.




Ross McDonald, the Chief Medical Officer of CHS, publicly called for the release

from Rikers Island of “as many [people] as possible” on Twitter on March 18, 2020: 42


In a recent court filing seeking the release of federal immigration detainees, Dr.

Marc Stern, a correctional health expert, has concluded that “[f]or detainees who are at high risk
of serious illness or death should they contract the COVID-19 virus, release from detention is a
critically important way to meaningfully mitigate that risk.” For that reason, Dr. Stern has



recommended the “release of eligible individuals from detention, with priority given to the elderly
and those with underlying medical conditions most vulnerable to serious illness or death if infected
with COVID-19.”43
Failure to Release Petitioners Constitutes Deliberate Indifference to Serious Medical Harm

Allowing ACS to continue to detain Petitioners under conditions in which they are

unable to take the only known steps to protect themselves from transmission of COVID-19
constitutes deliberate indifference to serious medical harm in violation of the United States and
New York State constitutions.

The Due Process clause of the Fourteenth Amendment proscribes deliberate

indifference to the serious medical needs of people held in pre-trial confinement. Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).

This proscription applies equally to youth confined

pursuant to juvenile delinquency matters. See Schall v. Martin, 467 U.S. 253 (1984). To establish
a federal constitutional claim, Petitioners must prove that Respondents (1) acted intentionally to
impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk
that the condition posed to the pretrial detainee even though (2) they knew, or should have known,
that the condition posed an excessive risk to health or safety. Id. at 35.

The State also owes an affirmative duty to protect youth with whom it has

developed a “special relationship.” The State holds liability when it takes individuals into custody
against their will and fails to provide for their basic needs. DeShaney v. Winnebago Cty. Dept. of
Social Services, 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its
power so restrains an individual’s liberty that it renders him unable to care for himself, and at the
same time fails to provide for his basic human needs…it transgresses the substantive limits on

Decl. of Dr. Marc Stern ¶¶ 9, 11, Dawson v. Asher, (No. 2:20-CV-409-JLR-MAT) (Mar. 16, 2020),


state action set by the Eighth Amendment and the Due Process Clause.”). Both the United States
Supreme Court and the Second Circuit have determined that a special relationship exists between
the State and incarcerated prisoners, as well as between the State and involuntarily committed
individuals. Id. at 199. As the Second Circuit has emphasized, “involuntary custody [is] the
linchpin of any special relationship exception.” Matican v. New York, 524 F.3d 151, 156 (2d Cir.

Thus, it is well established that, if the State is holding an individual in its custody

involuntarily, it is obligated to provide constitutionally adequate care and safety.

There is an even stronger due process right to be free from unconstitutional

conditions of confinement under the New York State Constitution. In Cooper v. Morin, 49 N.Y.2d
69, 79 (1979), the Court of Appeals concluded that the state due process clause accords even
greater protection for pretrial detainees than the federal constitution, holding that “what is required
is a balancing of the harm to the individual resulting from the condition imposed against the benefit
sought by the government through its enforcement.” For the government to prevail, it must prove
a “compelling governmental necessity” for any restrictions on pretrial detainees’ liberty interests.
People ex rel. Schipski v. Flood, 88 A.D.2d 197 (2nd Dep’t 1982). This is an “exacting standard.”
Id. The state’s interests are limited to those arising from the “only legitimate purpose for pretrial
detention . . . to assure the presence of the detainee for trial.” Id. at 81; see also Schipski, 88 A.D.2d
at 199-200 (holding county jail’s blanket policy of 22-hour lock-in for a certain category of pretrial
detainees violates the state’s due process guarantee); Powlowski v. Wullich, 102 A.D.2d 575, 587
(1984) (holding that because a jail’s practice of depriving pretrial detainees of recreation and
exercise “violates the federal standard, it, a fortiori, must fail the more stringent standard balancing
test prescribed for violations of our state due process clause”).



The U.S. Supreme Court and courts throughout New York have recognized that the

risk of contracting a communicable disease constitutes an “unsafe, life-threatening condition” that
threatens “reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33 (1993). See also Jolly v.
Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation
to protect [forcibly confined] inmates from infectious disease”); Narvaez v. City of New York, No.
16-CV-1980 (GBD), 2017 WL 1535386, at *9 (S.D.N.Y. Apr. 17, 2017) (denying “motion to
dismiss Plaintiff’s claim that the City of New York violated Plaintiff’s rights under the Due Process
Clause by repeatedly deciding to continue housing him with inmates with active-TB” during his
pretrial detention); Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998) (acknowledging that
prisoner could state claim under § 1983 for confinement in same cell as inmate with serious
contagious disease).

Respondent is well aware of the extraordinary risk COVID-19 poses to people in

New York City juvenile detention facilities. Since at least March 13, 2020, Dawne A. Mitchell,
the attorney-in-charge of the Juvenile Rights Practice of the Legal Aid Society, has been in near
daily contact with ACS officials regarding this crisis and our ongoing and ever-increasing concern
about the ability to manage the risk of COVID-19 in the city’s juvenile detention centers.

As pleaded above, numerous media outlets have covered these and other calls to


Whatever steps Respondent has taken to manage the risk of COVID-19 will fail


because, as pleaded above, Respondent is not capable of managing that risk in a confined closequartered environment.

Further, the Honorable Jeanette Ruiz, Administrative Judge of New York Family

Court, has issued an order reducing the number of courtrooms that are operating throughout the


City, and on March 16, 2020, the court’s Deputy Administrative Judge, George Silver, signed an
order providing, inter alia, that remand orders in juvenile delinquency cases may be extended
beyond their expiration dates, until such time as the court re-calendars or terminates the action.
Juveniles will thus be spending significantly longer times than usual in detention. Given the rate
at which COVID-19 has been skyrocketing in New York City, the longer these youth remain in
detention facilities, with their woefully inadequate protections, the greater the likelihood they will
fall sick and spread the virus among themselves and staff.

The Family Court Act imposes strict limitations on remanding youth to detention

and there is a strong presumption against taking such extreme action. Section 320.5(3)(a) of the
Family Court Act states that a respondent shall be detained only upon a finding that no alternative
to detention, including conditional discharge, exists, and that there is a substantial probability that
the respondent shall not appear in court on the return date or a serious risk he or she may commit
a criminal act before the return date.

Further, F.C.A. § 320.5(5) requires that before remanding a juvenile to detention,

the court make a determination that continuation of the juvenile in the home would be contrary to
his or her best interests based on the facts and circumstances available to the court at the time of
the remand order. The circumstances have changed dramatically since the remand orders were
issued against Petitioners and it is no longer the case that continuation in the home is contrary to
their best interests.

Moreover, safeguards can be put in place to minimize any risks presented by

releasing the Petitioners from detention. Family Court Act § 320.5(3)(c) provides that if the court
makes a finding that detention is necessary, it may consider, as an alternative to detention,
electronic monitoring of the respondent, if such electronic monitoring would significantly reduce


the risk of re-arrest or failure to appear.44 Additionally, the court may order home confinement,
already directed by the Governor’s executive order, and require phone and video monitoring to
ensure compliance.

In Schall v. Martin, 467 U.S. 253 (1984), the Supreme Court upheld the

constitutionality of

F.C.A. § 320.5(3)(a), based, inter alia, on the fact that the period of

confinement was to be “brief” and “strictly limited in time,” contemplating the “maximum possible
detention” for a youth accused of a serious crime as being seventeen days. Id. at 270. Youth in
custody today are facing protracted detention due to COVID-19, certainly far longer than that
envisioned by the Supreme Court. In addition to the very real health risks confronting youth in
detention during the pandemic, they also face violations of their due process rights to meaningful
access to counsel and to speedy trial and disposition, the guarantees of which the Schall Court
cited in upholding the detention statute. Id. It is especially important for youth to participate in
their defense. Such participation includes meaningful, private consultations with attorneys and
gathering and reviewing evidence. For young people it is much more important to have these
conversations with their attorneys in person to gauge the young person’s understanding and

With very few exceptions, juvenile delinquency youth face at most 18 months

placement 45 on felony charges, of which they spend between 6 and 12 months in placement,
serving the remainder of their time on supervised community release. It is excessive and punitive
to keep youth in detention for months on end before they even go to trial when they are at such

This provision, and the provision requiring the court to consider all available alternatives to detention, including
conditional release, before issuing a remand order, were added to the statute in 2008 to strengthen the legislative policy
of limiting detention to only those situations where the loss of liberty is an “absolute necessity.” See Sobie,
Supplemental Practice Commentaries, McKinney's Cons Laws of N.Y., Book 29A, Family Court Act § 320.5.
45 Placement in juvenile delinquency proceedings is the equivalent of sentencing in adult criminal proceeding.


grave risk of health issues and will only likely serve a few additional months if there is ever a
finding. Rehabilitation is a hallmark of the juvenile justice system where education and treatment
feature prominently. Detention facilities such as Crossroads are not designed for long term
treatment and education of youth.

Clearly, when balancing the harm to these juveniles by remaining confined in

detention during the COVID-19 pandemic, where they continue to be exposed to the very high risk
of infection, against the benefit to the public and judicial system of maintaining their remand status,
due process demands their immediate release. Cf. U.S. v. Stephens, 2020 WL 1295155 (S.D.N.Y.
Mar. 19, 2020) (granting defendant bail upon finding that “unprecedented and extraordinarily
dangerous” nature of COVID-19 pandemic and heightened risk of contracting it in jail setting
provided changed circumstances to compel reconsideration of original remand order).

Respondent’s intentional failure to release Petitioners while actually aware of the

substantial risk of COVID-19 infection and transmission plainly constitutes deliberate indifference.
Habeas Relief Is the Appropriate Remedy in this Circumstance

The affirmative obligation to protect against infectious disease empowers Courts to

provide remedies designed to prevent imminent harm to future health. Helling, 509 U.S. at 33 (“It
would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
condition in their prison on the ground that nothing yet had happened to them.”); Sanchez v. State
of New York, 99 N.Y.2d 247, 254 (2002) (recognizing that it is “duty of the State, as [petitioner’s]
custodian, to safeguard and protect him from the harms it should reasonably foresee based on its
knowledge derived from operation of a maximum security prison.”); Jabbar v. Fischer, 683 F.3d
54, 57 (2d Cir. 2012) (“We have held that prisoners may not be deprived of their basic human
needs—e.g., food, clothing, shelter, medical care, and reasonable safety—and they may not be


exposed to conditions that pose an unreasonable risk of serious damage to [their] future health.”)
(citation and internal quotation marks omitted).

Immediate release pursuant to a writ of habeas corpus is available to address

constitutional violations arising from circumstances or conditions of confinement. People ex rel.
Brown v. Johnston, 9 N.Y.2d 482, 485 (1961) (habeas petition may be used to address “restraint
in excess of that permitted by...constitutional guarantees”); Kaufman v. Henderson, 64 A.D.2d 849,
850 (4th Dep’t 1978) (“[W]hen appellant claims that he has been deprived of a fundamental
constitutional right, habeas corpus is an appropriate remedy to challenge his imprisonment.”).

A person is “not to be divested of all rights and unalterably abandoned and forgotten

by the remainder of society” by virtue of incarceration. Brown, 9 N.Y.2d at 485. Thus, courts have
addressed whether the failure to address medical needs has risen to the level of a constitutional
violation, requiring immediate release. See, e.g., People ex rel. Kalikow on Behalf of Rosario v.
Scully, 198 A.D.2d 250, 250–51 (2d Dep’t 1993) (habeas petition addressing whether failure to
provide adequate medical care constituted cruel and unusual punishment or deliberate
indifference). Indeed, habeas relief is the only remedy available in such circumstances. Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973).
Respondents Have Authority to Release Petitioners

Petitioners have not been committed and are not detained by virtue of any judgment,

decree, final order or process of mandate issued by a court or judge of the United States in a case
where such court or judge has exclusive jurisdiction to order him released.

Petitioners are not detained by virtue of any final judgment or decree of a competent

tribunal or civil or criminal jurisdiction. Petitioners have no other holds.


WHEREFORE, Plaintiffs request that this Court issue a writ of habeas corpus and order
Petitioners’ immediate release, with appropriate precautionary public health measures, on the
ground that their continued detention violates the Due Process Clause of the United States and
New York State constitutions.

Dated: March 25, 2020
New York, New York

Respectfully Submitted,

Legal Aid Society
199 Water Street, 6th Floor
New York, NY 10036

Attorneys for Petitioners

Lisa Freeman, an attorney admitted to practice law in the State of New York, states that
she has read the foregoing petition and that same is true to her own knowledge, except for those
portions stated on information and belief, for which citations are provided.
Dated: March 25, 2020
New York, New York

Lisa Freeman