Kevin del Rosario
When Covid-19 Turns a Two-Year Sentence into a Death Sentence
By Veronica del Rosario & Annaliza del Rosario,
Kevin’s mother & sister
The following testimony was written by Kevin’s mother & sister and read by advocate Nick Encalada-Malinowski with the advocacy group VOCAL-NY at the Senate Hearing on COVID-19 in prisons and jails on September 22, 2020. The full transcript is available here.
My phone buzzes and it’s a photo message from my mom; presumably an update on her latest crochet project. I open it and my breath is gone. It’s my brother’s urn. I stare at it for some long minutes, and I can’t understand. I can’t understand how we got here. How he got here. I can’t comprehend how his entire person is in this glorified box. I can’t understand how he’s only ash, how all of his human complexity comes down to this.
These are things, I imagine, most people are faced with when dealing with death. But this is death in COVID times, which is a whole different thing in itself—not getting to visit, not having a chance to say goodbye, not even being able to gather with family for a wake, funeral, burial, or even just for emotional support. And my brother wasn’t reckless. He wasn’t stubborn about isolating. In fact, he almost never left the house, and had he been at home, he would most certainly have stayed there, safe and sound from all this.
But he wasn’t at home. He was at Rikers Island. My brother, Kevin del Rosario, was incarcerated on February 7th, 2020, just weeks before Corona hit the jail. On April 23rd his minimum sentence became a death sentence, after New York officials refused to release him and others even in the wake of a pandemic outbreak.
While only 30 years-old, he was definitively at high-risk of contracting the virus. Kevin was asthmatic, overweight, had sleep apnea, and while not a physical risk-factor, still of note, was autistic. His circumstances were unique, his experience, inhumane, and his story, especially tragic. He died a mere six and a half hours before his two-year sentence was to be vacated completely.
In the month following Kevin’s death, as my mother only just began to mourn and grieve the loss of her only son, it occurred to her that put simply, this is all wrong. We are stunned at how unconscionable it is that the Department of Corrections keep people on top of each other by the dozen during an outbreak where everyone is being instructed to stay six-feet apart at all times.
She has said to me repeatedly, “High-risk is high-risk.” The DOC has all the technology necessary available to them to track [incarcerated people] through a quarantine period; Kevin was on house arrest for a year prior to his sentencing—he could have easily been released and on an ankle bracelet (which, by the way, the wearers pay for), as he had been for twelve months. My mother’s priority, she says, is to advocate for the incarcerated by sharing Kevin’s story — something not at all easy for her to do, as she has kept Kevin’s incarceration largely a secret (until he was brought to Bellevue [hospital], even I was unaware that he was at Rikers), carrying too much on her shoulders alone. Caring for Kevin was central to her life, of course. It is a loss that will impact her in ways deeper than most can comprehend, and so, our family is supporting her in bringing the DOC’s negligence to light. In doing so, we have found that the statute of limitations to file suit against the city for wrongful death is a mere 90 days. And so, even in this time of a wildly lonely and profoundly strange manner of grieving, she is putting her gloves on and preparing to enter the ring.
Kevin’s story is one of many, but in the hopes of igniting change — in advocating for better [treatment for incarcerated people] and better prison facilities, in helping incarcerated people who still have a chance amidst all this, in even potentially changing law for the better — my mother shares her account of the last few weeks of his life:
February 7, 2020
Kevin is sentenced; he is supposed to just pass through Rikers before being sent to a facility upstate after February 24th. I begin visiting him twice weekly.
Shortly after this, his transfer is cancelled due to COVID-19. He is assigned to the infirmary due to his autism and various medical conditions (specifically, because he needs a CPAP machine). There are thirty men in his dormitory. He will remain at Rikers for seven weeks.
March 14, 2020
I visit Kevin for the last time. Visitation is canceled due to the outbreak. Kevin is fearful. Soon after this, we learn that high-risk [residents] are being released. I contact our lawyer and am told that Kevin does not qualify for release due to the nature of his crime. I reiterate that he is high-risk. He is not released.
March 26, 2020
Kevin calls, explaining that though he has tested negative for COVID-19, he has a fever. The next day, he has a cough, and is being moved to another sick dorm — this time, with ten others. His CPAP machine is taken away, as it has risk of spreading the virus. He is tested again, but doesn’t ever receive the result of this particular test. The next day, he is having asthma attacks. He asks a “nurse” (later revealed to be a medical technician) for nebulizer treatments — he can no longer speak without coughing, and his asthma does not improve, even with the nebulizer. He tells a CO that he is having difficulty breathing, and demands to see a doctor.
March 30, 2020
Kevin is finally seen by a doctor. Despite being in an “infirmary,” it takes four days following his fever to be examined. One look, and the doctor sends him to the Prison Ward at Bellevue. The next day, he is told that he has tested positive for COVID-19.
April 3, 2020
Kevin is transferred to the ICU, where he will be sedated, intubated, and put on a ventilator. I have my last conversation with him on this day. He says, “Mom, they will make me go to sleep.” I reassured him that it will help him get better, and he says “Okay.” That is the last thing he will say to me, believing and trusting that he will, indeed, get better.
In the weeks that follow, social workers at Bellevue allow me to FaceTime in to the ICU every day; they stand at the window looking into his room and encourage me to talk to him even though he can’t hear me. I do. I take the time to advocate for Kevin; I believe he will pull through, and I begin making plans for his recovery. I write his lawyer and ask that Kevin be released to me when he is discharged from the hospital. I expect his recovery to be tough, and I anticipate that he will need dialysis, physical therapy, and more, so I argue that he should convalesce at home under my care. A virtual court date is set for April 9th, but the DA and the judge ultimately postpone for another 2 weeks, to April 23rd, since “Kevin was not going anywhere” in the meantime.
April 10, 2020
Kevin’s kidney is malfunctioning; he needs dialysis. A couple of days later, the ICU is running out of supplies.
April 13, 2020
In my daily update from the palliative care team, I’m told that Kevin is needing less oxygen from the ventilator. I am hopeful; this is the first sign of improvement. In the coming days, they will reduce his sedation to see if he can breathe at all on his own. As they do so, he reacts very poorly and is agitated, emotional, and confused upon waking. I am asked to come help them calm him down. I do so, twice.
April 17, 2020
During my two visits, I soothe and comfort him as best I can. He looks at me blankly, most of the time, but during my second visit, there is a moment when he focuses on me, his eyes pleading, as he points to the intubation. I can see how scared he is, but again, am still hopeful. After all, he is awake. He is breathing, some — he breathes on his own for two whole hours, and he is only 40% dependent on the ventilator.
April 22, 2020
The doctors call. Kevin has taken a turn for the worse. He is once again 100% dependent on the ventilator, he has sepsis. I am devastated.
Our lawyer calls to inform me that tomorrow’s hearing will be at 10am, and that the judge will vacate Kevin’s sentence.
April 23, 2020
The DOC chaplain calls at 3:30am. Kevin has passed.
