The Corner

Law & the Courts

New York to Consider Bill Allowing Extrajudicial Detention in Health Emergency

A New York City Police officer puts on gloves as people wait in line to be tested for the COVID-19 coronavirus outside Elmhurst Hospital Center in Queens N.Y., March 26, 2020. (Stefan Jeremiah/Reuters)

The New York State Legislature will soon consider a bill that would allow the governor to detain people without a court hearing or an immediate right to a lawyer in a state of emergency declared because of communicable diseases. Note how far-reaching the authority would extend. From A-416 (my emphasis, here and subsequently):

Upon determining by clear and convincing evidence that the health of others is or may be endangered by a case, contact or carrier, or suspected case, contact or carrier of a contagious disease that, in the opinion of the governor, after consultation with the commissioner, may pose an imminent and significant threat to the public health resulting in severe morbidity or high mortality, the governor or his or her delegee, including, but not limited to the commissioner or the heads of local health departments, may order the removal and/or detention of such a person or of a group of such persons by issuing a single order, identifying such persons either by name or by a reasonably specific description of the individuals or group being detained. Such person or group of persons shall be detained in a medical facility or other appropriate facility or premises designated by the governor or his or her delegee and complying with subdivision five of this section.

This means that local health officials could order people arrested and detained in a health or other “appropriate facility.” And there could be mass detentions of unidentified people deemed part of a “group.”

Under the proposal, if a detainee is found not to be infectious, the state authorities must release that person. Big of them. But people could be involuntarily detained for days before their case would have to be reviewed by a court:

When a person or group is ordered to be detained pursuant to subdivision two of this section for a period exceeding three business days and such person or member of such group requests release, the governor or his or her delegee shall make an application for a court order authorizing such detention within three business days after such request.

That could amount to more than a week of extrajudicial detention before the detainee would see the inside of a courtroom.

After any such request for release, detention shall not continue for more than five business days in the absence of a court order authorizing detention. Notwithstanding the foregoing provisions, in no event shall any person be detained for more than sixty days without a court order authorizing such detention.

The governor or his or her delegee shall seek further court review of such detention within ninety days following the initial court order authorizing detention and thereafter within ninety days of each subsequent court review.


What about the right to counsel? Not guaranteed!

A copy of any detention order of the governor or his or her delegee issued pursuant to subdivision two of this section shall be given to each detained individual; however, if the order applies to a group of individuals and it is impractical to provide individual copies, it may be posted in a conspicuous place in the detention premises. . . .

The detention order, says the bill, should set forth

a notice advising the person or group being detained that they have a right to be represented by legal counsel and that upon request of such person or group access to counsel will be facilitated to the extent feasible under the circumstances . . .

And further, it should

advise the person or group being detained that they have the right to request that legal counsel be provided, that upon such request counsel shall be provided if and to the extent possible under the circumstances, and that if counsel is so provided, that such counsel will be notified that the person or group has requested legal representation.

“To the extent possible under the circumstances” would allow a lot of detention without representation.

The bill will be taken up on January 6, 2022. May it sink quickly beneath the waves.


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