& MARY MARGULIS-OHNUMA, POLICY COUNSEL
Jails and Prisons
In March, within days of the declared state of emergency in New York City and New York State, the City Bar issued a statement urging immediate steps to reduce prison and jail populations to prevent the spread of the COVID-19 virus among incarcerated people, corrections officers, and prison staff. The following week, the City Bar issued guidance for practitioners setting forth legal authority to release certain categories of incarcerated persons from local, state, and federal jails and prisons to prevent further spread of the virus. We also sent a letter to Governor Andrew Cuomo urging him to implement an immediate, one-time review of all elderly or infirm people currently serving sentences in New York State’s prisons and to consider sentence commutations for as many of them as possible, on an individual basis and subject to public safety concerns.
A few weeks later, on April 15, as infections continued to surge within prisons and worldwide, we followed up with another statement urging swifter action to reduce the number of people in jails and prisons – recognizing that, while some steps had been taken, more could and should be done to systematically reduce prison populations and save lives.
And in May, we sent another letter to Governor Cuomo urging further action to enhance health and safety protections for incarcerated people during the pandemic, followed by a letter to Mayor Bill de Blasio urging swift action to protect inmates and staff in the wake of the 1,500 positive cases among New York City Department of Correction and Correctional Health Services staff and the 365 positive cases among the city’s inmates as of May 18. Noting that, as of that date, seven of the ten largest known sources of infection nationwide were traceable to jails and prisons, we urged the mayor to enhance health and safety protections in the city’s detention facilities, not only to protect incarcerated people but also people in surrounding communities.
Governor Cuomo has ordered the release of people imprisoned for low-level non-violent convictions who were within 90 days of their scheduled release, cancelled low-level parole violations, and released pregnant or postpartum women who were within 180 days of their scheduled release, leading to the release of 3,109 New Yorkers as of late November. The City Bar will continue to advocate for COVID-related releases consistent with our prior letters and calls for action.
As court proceedings ground to a sudden halt this spring, the City Bar quickly focused on how to protect defendants’ rights while keeping judges, court personnel, lawyers, defendants, and witnesses safe from the rapidly spreading pandemic. In March, we issued a statement commending the Unified Court System for quickly taking steps to protect the health and safety of New Yorkers, including temporarily suspending commencement of new civil and criminal trials, and handling arraignments through remote appearances by video in New York City and wherever else possible statewide. We further urged judges to consider alternatives to bail for all defendants to avoid increasing the incarcerated population and to reexamine bail in other appropriate cases (particularly for those incarcerated because they were unable to pay bail), to consider release for anyone in pretrial detention over 60 years old or with an underlying health condition putting them at higher risk for COVID-19, and to allow for telephone conferences and electronic filing of documents whenever appropriate.
Similarly, we wrote to the Chief Judges in the federal district courts in New York City and to the United States Court of Appeals for the Second Circuit, offering recommendations to reduce the risk of transmission of COVID-19 while continuing cases where feasible and safe.
In a follow up letter to the Unified Court System in May, we offered thoughts from committee members who litigate civil cases in Supreme Court about the court’s recent directives and areas worthy of continuing exploration, consideration, and discussion. These included, for example, further guidance on what constitutes an “essential” matter; expanding virtual court operations to non-essential cases where administratively and technologically feasible (and remaining mindful of the potential imbalance of resources between the parties); in appropriate cases, permitting motion papers to be fully briefed and bundled without needing to file in court; and exploring the use of remote mediation techniques as part of the Presumptive ADR Initiative.
We also wrote letters to the Office of Court Administration expressing fundamental principles we believed should govern court operations in New York City Family Court and Housing Court during COVID-19, including the recommendation for a COVID-19 point person who could collaborate with stakeholders to develop the reopening process, continue to enhance remote access, develop consistent information, and establish a method for dealing with urgent issues.
And in June, we wrote a letter to Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence Marks, and Administrative Judge Tamiko Amaker with recommendations regarding the reopening of New York City’s criminal courts in light of the COVID-19 pandemic, including “appropriate and sensible precautions” that “bear in mind the sacrosanct function of criminal courts to protect due process and promote justice.” The letter suggested ending routine calendar calls, and counseled against implementing further measures for virtual proceedings beyond arraignments and preliminary hearings in light of due process concerns. It also made practical recommendations regarding the requirement of Personal Protective Equipment (PPE) for courthouse visitors, as well as continued consultation with health experts and outside stakeholders.
And in the wake of the recent resurgence of the virus in the New York area, our Professional Ethics Committee issued Formal Opinion 2020-5, which addresses a lawyer’s obligations when required to appear in court in person during a pandemic. The opinion analyzes circumstances under which a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest, and what the lawyer must do in such cases.
Further Committee Responses to COVID-19
When the pandemic was first upon us, dozens of our committees undertook to analyze how they could best marshal their expertise and their resources and contribute to the public conversation on the impact of COVID-19. Here are some highlights.
In March, we wrote to Congress and urged lawmakers to include nonprofit organizations in COVID-19 stimulus monies, pointing to the 12.3 million people employed and approximately $900 billion contributed to GDP by nonprofits. In June, the Paycheck Protection Program (PPP) Flexibility Act was adopted, which provided greater flexibility for nonprofits receiving federal loans.
In April, we sent a letter to the New York State and New York City tax commissioners recommending, among other things, that the increase in telecommuters in New York due to the various stay-in-place mandates not affect an out-of-state company’s nexus status with respect to corporate income taxes; that businesses providing goods or services to New York State customers solely in connection with the pandemic should not be deemed to have established nexus and should not be required to register as foreign entities doing business in the state, and that employees working remotely during the pandemic should be deemed to be doing so as a matter of necessity, rather than for the employees’ convenience.
In response to lawyer inquiries and concerns, we urged New York State’s Chief Judge and the Presiding Justices of the Appellate Divisions of New York State’s Supreme Court to adopt a proposed amendment to the New York Rules of Professional Conduct so that lawyers would no longer be prohibited from providing financial assistance to indigent clients, creating a “humanitarian exception” to the rule. The proposed rule was adopted by OCA in June.
We urged Chief Judge DiFiore and Governor Cuomo to maintain funding levels for critical civil legal services during the pandemic.
In May, we wrote to the New York Congressional Delegation proposing relief provisions that would benefit the fashion and retail industries in the next stimulus bill. Noting the critical role played by these industries in New York City, the letter recommended (1) a modification to the Paycheck Protection Program, (2) a Net Operating Loss Carryback, (3) a stability fund, (4) a federally-backed business interruption insurance program, and (5) assistance with Occupational Safety and Health Administration compliance and other guidelines to ensure the safety of fashion and retail employees and customers. The enactment of the PPP Flexibility Act addressed the suggested modification to the PPP by expanding the covered period for loan use from eight weeks to 24 weeks.
We sent a comment letter to the United States Environmental Protection Agency on the EPA’s proposed review of the National Ambient Air Quality Standards (NAAQS) for Particulate Matter (PM), noting that the Administrator “failed to consider recent studies demonstrating that [particulate matter] pollution may increase the severity and mortality rate of COVID-19 infections in elderly, black, Hispanic, and low-income populations.” The letter urges that the current standard be reconsidered in an unbiased process “which we expect would result, at a minimum, in a strengthening of the annual standard for fine particles.”
Responding to public discourse regarding the origins of COVID-19, we issued a report, “Zoonotic Transfer of Disease in a Post-COVID-19 Era: In Our Backyards and In Our Future,” explaining what zoonotic diseases are, some reasons they are becoming more prevalent, and some ideas on how to address growing concerns about animal-to-human illness transfer. Calling for increased attention to this issue, we note, “As the scientific community takes a deep dive into understanding COVID-19, we are learning that the way we live has a direct impact on our susceptibility to emerging infectious diseases.”
We wrote a letter to the heads of the U.S. Department of Homeland Security, the Centers for Disease Control, and the U.S. Department of Health and Human Services urging the administration “to restore protections for asylum seekers and unaccompanied children in compliance with U.S. and international law” that have been abandoned during the course of the coronavirus (COVID-19) pandemic, so that appropriate individualized assessments can be made.
We wrote a report supporting proposed New York State legislation that would amend the Family Court Act to allow youth to remain in foster care after the age of 21, and to return to foster care without a court order between the ages of 18 and 21, during a state of emergency. This bill has been signed by the Governor.
Noting the severe fiscal stress on states and municipalities caused by COVID-19, we issued a report in support of federal legislation that would authorize funds for Federal-aid highways, highway safety programs, and transit programs and for other purposes, and amend the Internal Revenue Code of 1986 to reinstate advance refunding bonds.
We supported the federal Save Our Stages Act, which would provide, using certain formulas, federal grants to eligible live venue operators, producers, promoters, and talent representatives to mitigate the financial impact of COVID-19 on their operations. Live performance venues are among the hardest hit industries by COVID-19, and because many cannot reopen, a grant program is necessary to prevent Americans from losing them forever. We were pleased to see relief provided for these venues in the most recent COVID relief package passed by Congress.
In partnership with our Committees, we expect to be following up on many of these issues in 2021, with many committees expressing interest in communicating policy proposals and positions to the Biden/Harris transition team and future Administration officials.
Finally, several Committees produced podcasts exploring bioethical issues, contact tracing, and the impact of the pandemic on the insurance industry.
See all of the City Bar’s COVID-19-related work here.
& MARY MARGULIS-OHNUMA, POLICY COUNSEL
Jails and Prisons
In March, within days of the declared state of emergency in New York City and New York State, the City Bar issued a statement urging immediate steps to reduce prison and jail populations to prevent the spread of the COVID-19 virus among incarcerated people, corrections officers, and prison staff. The following week, the City Bar issued guidance for practitioners setting forth legal authority to release certain categories of incarcerated persons from local, state, and federal jails and prisons to prevent further spread of the virus. We also sent a letter to Governor Andrew Cuomo urging him to implement an immediate, one-time review of all elderly or infirm people currently serving sentences in New York State’s prisons and to consider sentence commutations for as many of them as possible, on an individual basis and subject to public safety concerns.
A few weeks later, on April 15, as infections continued to surge within prisons and worldwide, we followed up with another statement urging swifter action to reduce the number of people in jails and prisons – recognizing that, while some steps had been taken, more could and should be done to systematically reduce prison populations and save lives.
And in May, we sent another letter to Governor Cuomo urging further action to enhance health and safety protections for incarcerated people during the pandemic, followed by a letter to Mayor Bill de Blasio urging swift action to protect inmates and staff in the wake of the 1,500 positive cases among New York City Department of Correction and Correctional Health Services staff and the 365 positive cases among the city’s inmates as of May 18. Noting that, as of that date, seven of the ten largest known sources of infection nationwide were traceable to jails and prisons, we urged the mayor to enhance health and safety protections in the city’s detention facilities, not only to protect incarcerated people but also people in surrounding communities.
Governor Cuomo has ordered the release of people imprisoned for low-level non-violent convictions who were within 90 days of their scheduled release, cancelled low-level parole violations, and released pregnant or postpartum women who were within 180 days of their scheduled release, leading to the release of 3,109 New Yorkers as of late November. The City Bar will continue to advocate for COVID-related releases consistent with our prior letters and calls for action.
As court proceedings ground to a sudden halt this spring, the City Bar quickly focused on how to protect defendants’ rights while keeping judges, court personnel, lawyers, defendants, and witnesses safe from the rapidly spreading pandemic. In March, we issued a statement commending the Unified Court System for quickly taking steps to protect the health and safety of New Yorkers, including temporarily suspending commencement of new civil and criminal trials, and handling arraignments through remote appearances by video in New York City and wherever else possible statewide. We further urged judges to consider alternatives to bail for all defendants to avoid increasing the incarcerated population and to reexamine bail in other appropriate cases (particularly for those incarcerated because they were unable to pay bail), to consider release for anyone in pretrial detention over 60 years old or with an underlying health condition putting them at higher risk for COVID-19, and to allow for telephone conferences and electronic filing of documents whenever appropriate.
Similarly, we wrote to the Chief Judges in the federal district courts in New York City and to the United States Court of Appeals for the Second Circuit, offering recommendations to reduce the risk of transmission of COVID-19 while continuing cases where feasible and safe.
In a follow up letter to the Unified Court System in May, we offered thoughts from committee members who litigate civil cases in Supreme Court about the court’s recent directives and areas worthy of continuing exploration, consideration, and discussion. These included, for example, further guidance on what constitutes an “essential” matter; expanding virtual court operations to non-essential cases where administratively and technologically feasible (and remaining mindful of the potential imbalance of resources between the parties); in appropriate cases, permitting motion papers to be fully briefed and bundled without needing to file in court; and exploring the use of remote mediation techniques as part of the Presumptive ADR Initiative.
We also wrote letters to the Office of Court Administration expressing fundamental principles we believed should govern court operations in New York City Family Court and Housing Court during COVID-19, including the recommendation for a COVID-19 point person who could collaborate with stakeholders to develop the reopening process, continue to enhance remote access, develop consistent information, and establish a method for dealing with urgent issues.
And in June, we wrote a letter to Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence Marks, and Administrative Judge Tamiko Amaker with recommendations regarding the reopening of New York City’s criminal courts in light of the COVID-19 pandemic, including “appropriate and sensible precautions” that “bear in mind the sacrosanct function of criminal courts to protect due process and promote justice.” The letter suggested ending routine calendar calls, and counseled against implementing further measures for virtual proceedings beyond arraignments and preliminary hearings in light of due process concerns. It also made practical recommendations regarding the requirement of Personal Protective Equipment (PPE) for courthouse visitors, as well as continued consultation with health experts and outside stakeholders.
And in the wake of the recent resurgence of the virus in the New York area, our Professional Ethics Committee issued Formal Opinion 2020-5, which addresses a lawyer’s obligations when required to appear in court in person during a pandemic. The opinion analyzes circumstances under which a lawyer’s health concerns regarding appearing in court in person during a pandemic can create a conflict of interest, and what the lawyer must do in such cases.
Further Committee Responses to COVID-19
When the pandemic was first upon us, dozens of our committees undertook to analyze how they could best marshal their expertise and their resources and contribute to the public conversation on the impact of COVID-19. Here are some highlights.
In March, we wrote to Congress and urged lawmakers to include nonprofit organizations in COVID-19 stimulus monies, pointing to the 12.3 million people employed and approximately $900 billion contributed to GDP by nonprofits. In June, the Paycheck Protection Program (PPP) Flexibility Act was adopted, which provided greater flexibility for nonprofits receiving federal loans.
In April, we sent a letter to the New York State and New York City tax commissioners recommending, among other things, that the increase in telecommuters in New York due to the various stay-in-place mandates not affect an out-of-state company’s nexus status with respect to corporate income taxes; that businesses providing goods or services to New York State customers solely in connection with the pandemic should not be deemed to have established nexus and should not be required to register as foreign entities doing business in the state, and that employees working remotely during the pandemic should be deemed to be doing so as a matter of necessity, rather than for the employees’ convenience.
In response to lawyer inquiries and concerns, we urged New York State’s Chief Judge and the Presiding Justices of the Appellate Divisions of New York State’s Supreme Court to adopt a proposed amendment to the New York Rules of Professional Conduct so that lawyers would no longer be prohibited from providing financial assistance to indigent clients, creating a “humanitarian exception” to the rule. The proposed rule was adopted by OCA in June.
We urged Chief Judge DiFiore and Governor Cuomo to maintain funding levels for critical civil legal services during the pandemic.
In May, we wrote to the New York Congressional Delegation proposing relief provisions that would benefit the fashion and retail industries in the next stimulus bill. Noting the critical role played by these industries in New York City, the letter recommended (1) a modification to the Paycheck Protection Program, (2) a Net Operating Loss Carryback, (3) a stability fund, (4) a federally-backed business interruption insurance program, and (5) assistance with Occupational Safety and Health Administration compliance and other guidelines to ensure the safety of fashion and retail employees and customers. The enactment of the PPP Flexibility Act addressed the suggested modification to the PPP by expanding the covered period for loan use from eight weeks to 24 weeks.
We sent a comment letter to the United States Environmental Protection Agency on the EPA’s proposed review of the National Ambient Air Quality Standards (NAAQS) for Particulate Matter (PM), noting that the Administrator “failed to consider recent studies demonstrating that [particulate matter] pollution may increase the severity and mortality rate of COVID-19 infections in elderly, black, Hispanic, and low-income populations.” The letter urges that the current standard be reconsidered in an unbiased process “which we expect would result, at a minimum, in a strengthening of the annual standard for fine particles.”
Responding to public discourse regarding the origins of COVID-19, we issued a report, “Zoonotic Transfer of Disease in a Post-COVID-19 Era: In Our Backyards and In Our Future,” explaining what zoonotic diseases are, some reasons they are becoming more prevalent, and some ideas on how to address growing concerns about animal-to-human illness transfer. Calling for increased attention to this issue, we note, “As the scientific community takes a deep dive into understanding COVID-19, we are learning that the way we live has a direct impact on our susceptibility to emerging infectious diseases.”
We wrote a letter to the heads of the U.S. Department of Homeland Security, the Centers for Disease Control, and the U.S. Department of Health and Human Services urging the administration “to restore protections for asylum seekers and unaccompanied children in compliance with U.S. and international law” that have been abandoned during the course of the coronavirus (COVID-19) pandemic, so that appropriate individualized assessments can be made.
We wrote a report supporting proposed New York State legislation that would amend the Family Court Act to allow youth to remain in foster care after the age of 21, and to return to foster care without a court order between the ages of 18 and 21, during a state of emergency. This bill has been signed by the Governor.
Noting the severe fiscal stress on states and municipalities caused by COVID-19, we issued a report in support of federal legislation that would authorize funds for Federal-aid highways, highway safety programs, and transit programs and for other purposes, and amend the Internal Revenue Code of 1986 to reinstate advance refunding bonds.
We supported the federal Save Our Stages Act, which would provide, using certain formulas, federal grants to eligible live venue operators, producers, promoters, and talent representatives to mitigate the financial impact of COVID-19 on their operations. Live performance venues are among the hardest hit industries by COVID-19, and because many cannot reopen, a grant program is necessary to prevent Americans from losing them forever. We were pleased to see relief provided for these venues in the most recent COVID relief package passed by Congress.
In partnership with our Committees, we expect to be following up on many of these issues in 2021, with many committees expressing interest in communicating policy proposals and positions to the Biden/Harris transition team and future Administration officials.
Finally, several Committees produced podcasts exploring bioethical issues, contact tracing, and the impact of the pandemic on the insurance industry.
See all of the City Bar’s COVID-19-related work here.