Powerless to Help At-Risk Prisoner, Judge Calls for Action on Covid-19

(CN) — Urging congressional and executive branch action, a federal judge in New York found Tuesday that he lacks the power to make the first federal prison with a confirmed case of Covid-19 release a 67-year-old, asthmatic ex-doctor who survived a stroke.  

“The country faces unprecedented challenges from the novel coronavirus pandemic,” U.S. District Judge Jesse Furman wrote in a 10-page ruling. “Those detained in jails and prisons face particularly grave danger. Realistically, the best — perhaps the only — way to mitigate the damage and reduce the death toll is to decrease the jail and prison population by releasing as many people as possible.”

Despite seeing this danger, Furman ruled that he could not release former doctor Nkanga Nkanga, who pleaded guilty to abusing his medical license to illicitly prescribe oxycodone, from the Metropolitan Detention Center in Brooklyn. Nkanga received a three-year sentence for that first-time offense on March 12 and the judge made clear that he did not want that penalty to effectively become a death sentence.

“MDC is no place for someone considered to be high risk for COVID-19 – which Dr. Nkanga, at sixty-seven years old and with a history of asthma, plainly is,” Furman wrote.

The judge made clear he would have granted Nkanga bail if his sentencing had fallen three weeks later, but he added that he cannot do so after sentencing.

Both state and federal authorities have been scrambling to contain the Covid-19 pandemic behind bars, which is likely to spill out to local hospitals as incarcerated people seek medical care.

Responding to an alarming rise of infected inmates, Rikers Island’s chief medical physician Ross MacDonald warned on Twitter: “A storm is coming.”

“Please let as many out as you possibly can,” MacDonald wrote on Monday, in a remark quoted in the judge’s ruling.

Furman urged the federal government to take action.

“Dr. Nkanga’s case is a vivid illustration of why the dangers posed by COVID-19 to the imprisoned population cry out for action by Congress and the executive branch,” he wrote. “For the most part, judges are limited to granting release in individual cases – an approach that is too slow and ad hoc to do much good against the unprecedented dangers posed by COVID-19.”

“Moreover, as Dr. Nkanga’s case makes plain, Congress has given judges only limited tools, and there are many inmates – certainly those such as Dr. Nkanga who have just been sentenced, and potentially the vast majority of inmates serving sentences previously imposed – for whom judicial relief under current law may be unavailable,” he added.

Furman noted in a footnote that the Justice Department told him that it would seek a transfer to a place that could protect Nkanga from infection.

“Only the political branches can do what this moment requires,” the judge concluded. “The question is whether they will do so – and, if they do, whether their actions will be too late for Dr. Nkanga and other inmates like him.”

Nkanga’s attorney did not immediately respond to a request for comment.

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