Criminal Appeals Bureau 199 Water Street, 5th Floor New York, NY 10038 (212) 577-3688 https://www.legalaidnyc.org/ Tel (646) 455-7267 [email protected] John K. Carroll April 17, 2020 President New York State Department of Corrections and Community Supervision Janet E. Sabel Attorney-in-Chief Executive Clemency Bureau Chief Executive Officer The Harriman State Campus Building 2 Justine M. Luongo 120 Washington Avenue Attorney-in-Charge Albany, N.Y. 12226-2050 Criminal Practice David Loftis VIA E-MAIL: Attorney-in-Charge of Post-Conviction and Forensic Litigation Re: Executive Clemency Application Dear Clemency Review Team: Attached to this letter are 14 applications seeking executive clemency from Governor Cuomo. In light of the quickly escalating public health crisis that the COVID-19 pandemic has triggered within New York State prisons, we ask for expedited review of these applications, and we ask that the Governor effectuate the immediate release of these clients. As a group, these clients are particularly vulnerable to the devastating effects of COVID-19 or are close to the point at which they would otherwise be entitled to release. And most of these clients have specific housing plans so that their release from prison will drastically diminish the risk that they will be exposed to the coronavirus. Additionally, independent of the current pandemic, these applicants all have strong equities and are deserving of executive clemency. As we noted in our April 3rd submission, we are sending expedited clemency applications to your office in groups so that they may be administered more efficiently; this is the fifth group. Some of these applications are supplemental to applications filed in the past; on the following list of the attached applications, we have indicated when that is the case. This group of applications are on behalf of the following individuals: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) Executive Clemency Bureau Page 2 (13) (14) If you have questions or need further information, please do not hesitate to reach out to myself or the individual attorneys who prepared the clemency applications. Very truly yours, David Loftis David Loftis Attorney-in-Charge Post-Conviction and Forensic Litigation 646-455-7267 Criminal Appeals Bureau 199 Water Street New York, NY 10038 Tel: 212-577-3688 www.legal-aid.org Blaine (Fin) V. Fogg President Seymour W. James, Jr. Attorney–in–Chief Justine M. Luongo April 16, 2020 Attorney-in-Charge Criminal Practice New York Department of Corrections and Community Supervision Executive Clemency Bureau The Harriman State Campus Building 2 120 Washington Avenue Albany, New York 12226-2050 VIA E-MAIL Re: Executive Clemency Application: Phillip Brown DIN #. 18-A-1515; NYSID #: 14009428H; DOB: 11/10/59 Dear Executive Clemency Bureau: I am writing on behalf of Phillip Brown, who is currently incarcerated at Groveland Correctional Facility. Mr. Brown is years old and suffers from asthma, a heart condition (he previously had a heart attack), high blood pressure, and sleep apnea and, thus, he has a high risk of severe illness and death if he contracts the novel coronavirus COVID-19. Moreover, he has been a model prisoner and his conditional release date is January 13, 2021. Mr. Brown served his country honorably in the Army, where he was awarded six different medals and commendations. He has a lengthy employment history. He has only one prior criminal conviction, a misdemeanor. And, his current offense is for weapon possession for having guns that he lawfully possessed in Texas, where he had recently come from, and which he did not know were illegal to possess in New York. Therefore, for all of these reasons, I would respectfully request his immediate release. Mr. Brown Has a High Risk of Severe Illness or Death Mr. Brown is a year old (born on 11/10/59) male who suffers from serious medical issues, including asthma, a heart condition, high blood pressure, and sleep apnea. Thus, he has a much greater risk of getting very sick or dying if he contracts COVID-19. Page 2 Mr. Brown’s medical problems are numerous and serious. In 2008, he suffered a heart attack. For years he has also had problems with high blood pressure and a few months ago his blood pressure spiked substantially. He takes medication for this problem daily. He also suffers from asthma. Every winter while he was in he was living in Texas he had asthma attacks that were brought on by allergies and caused him difficulty in breathing and, as a result, he was prescribed medication and an inhaler to be used as needed. Although he has not had an asthma attack since he was incarcerated he would, nevertheless, be in grave danger if he contracted COVID-19. Finally, Mr. Brown also suffers from sleep apnea, another serious respiratory condition in which his breathing repeatedly stops and starts, which he has had for about 15 years. As a result at nighttime he snores loudly, feels as if he is choking and might vomit, and gets out of bed every hour or hour and a half. Before he was incarcerated Mr. Brown used a continuous positive air pressure (cpap) machine at night which helped his sleep apnea by providing him with constant and steady air pressure but, since he has been incarcerated, he has not been given one of these machines although he has requested it. According to the Centers for Disease Control and Prevention (“CDC”), medically vulnerable people include those with moderate to severe asthma, serious heart conditions, chronic lung disease, severe obesity, or underlying medical conditions such as diabetes, renal failure and liver disease. CDC, Coronavirus Disease 2019: People Who Are at Higher Risk for Severe Illness. (Emphasis added). See also Coronavirus Disease 2019: People with Moderate to Severe Asthma, CDC (“People with asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.”). Given that Mr. Brown has two serious respiratory conditions, high blood pressure, and a history of heart issues, it is evident that he should be released as soon as possible. See United States v. Powell, No. 1:94-cr-316-ESH, Dkt. No 98 (D.D.C. Mar. 28, 2020) (in light of COVID-19, granting release motion filed by inmate with respiratory problems, including sleep apnea and asthma); Fraihat v. Wolf, 20-cv- 590 (TJH) (C.D. Cal., Mar. 30, 2020) (in immigration habeas proceeding, granting release to detainee with asthma and other ailments, noting that release is in the public interest, and stating, “in the time of a crisis, our response to those at particularly high risk must be with compassion and not apathy. The Government cannot act with a callous disregard for the safety of our fellow human beings”). Moreover, Mr. Brown faces a greater risk of COVID-19 infection by remaining in DOCCS custody and that risk is growing daily as the virus spreads among state facilities. While the rapid spread of COVID-19 has created an emergency throughout the State of New York this is especially so in New York’s prisons. Page 3 Overall, at the time of this clemency application, there have been 213,779 confirmed cases and 11,586 deaths in New York State. As of April 8, nearly 400 incarcerated individuals and employees within DOCCS have tested positive for COVID-19, which is presumably a low estimate due to the lack of testing.1 Moreover, this number has almost certainly grown since, and, so far, two prisoners in DOCCS custody have died.2 The coronavirus/COVID-19’s rapid proliferation in New York State is even more dangerous within prison, due to the fundamental nature of prison: DOCCS has more than 43,000 incarcerated individuals in 52 correctional facilities that employ an additional 29,000 people.3 Prisons simply cannot adequately socially distance dozens and hundreds of inmates, including the vulnerable inmates. The living conditions in prison -- limited access to soap and water, and shared bathrooms, mess halls, and living quarters -- create a heightened risk of being infected.4 Given this, the Brooklyn District Attorney’s Office and the former New York City Health Commissioner have warned that “this is a public health crisis that threatens to become a humanitarian disaster” and recommended that the Governor grant early parole to people who are within 180 days of completing their sentences.5 Similarly, the Board of Corrections in New York City has called for the immediate release of those most at-risk by COVID-19 infection: people who are over 50 and those with pre-existing medical conditions. At Groveland, Mr. Brown continues to be in close settings with other incarcerated individuals. Most notably, he sleeps in a dorm room (G Dorm) with about 14 or 15 other inmates and his bed is about six inches apart from another inmate’s bed, separated only by a flimsy wall that is about one or two inches deep and about four feet high. As per DOCCS policy, he will not be provided with a mask and none of the corrections officers wear them despite the increasing rates of infection among corrections staff. 1 Robert Harding, More COVID-19 Cases in NY Prisons, Groups Urge Cuomo to Release High-Risk Inmates, The Citizen (Apr. 8, 2020), available at https://auburnpub.com/news/local/govt-and-politics/more-covid-19- cases-in-ny-prisons-groups-urge-cuomo-to-release-high-risk-inmates/article_c616d0b8-71cd-56f3-b108- 402c1abd282e.html (last visited April 9, 2020). 2 See Andrew Denney, First New York Prisoner With Coronavirus Dies at Sing Sing, N.Y.