Prison Agency Resisting Oversight, Say Lawmakers and Watchdogs

A dispute between the prison agency and the independent prison monitoring organization has left lawyers and advocates wondering whether Gov. Hochul’s commitment to transparency will extend to state prisons.

Daniel Moritz-Rabson   ·   October 12, 2021
DOCCS Acting Commissioner Anthony Annucci | NYSDOCCS

In her first speech after being sworn in as governor in August, Governor Kathy Hochul promised a “new era of transparency.” Watchdog groups are awaiting signs from the Hochul administration on whether that commitment will extend to state prisons, which they characterize as among the most opaque parts of state government.

One early test could be a brewing conflict between the prison agency and an oversight organization authorized by state law to monitor New York’s state prisons. Due to a disagreement over the conditions governing its visitation, the Correctional Association of New York (CANY) cannot currently conduct monitoring of state prisons and had to abort a September visit to one prison.

Yesterday, Assemblymember David Weprin (D-Queens), who chairs the chamber’s committee on correction, wrote a letter to Hochul saying he was “deeply disturbed” by the conduct of the Department of Corrections and Community Supervision (DOCCS), which he characterized as an “unacceptable violation” of the law.

“We want them to be as unrestricted as possible,” Weprin told New York Focus, referring to CANY, “so they can do their job and effectively get us the most independent picture of what's actually really going on.”

Despite its legal status as the state’s independent monitor of prisons, CANY executive director Jennifer Scaife said, the group’s oversight capacities had been limited since 2004, when the agency last negotiated its oversight charter. After Democrats took control of both chambers of the state legislature in 2019, CANY began talking to state lawmakers about expanding its monitoring authority.

In 2021, the legislature passed a bill to grant the organization broad access to DOCCS records, the ability to visit prison facilities without advance notice, and the possibility of court action if the prison agency failed to respect the organization’s new charter.

Former Governor Andrew Cuomo’s office pushed back against several provisions of the legislation, and the legislature agreed to scale it back through “chapter amendments,” including one that required that CANY give prisons three days of notice before visiting a facility and have its oversight members sign a waiver.

Now, the prison agency and the oversight group are at loggerheads over that waiver, whose provisions were not stipulated in the legislation.

In negotiations over the waiver, legislators refused to accept restrictive language that would limit the oversight organization’s powers, Scaife said. DOCCS is now trying to reimplement that language through the waiver, which would prevent CANY staff from using information gleaned during their visits in lawsuits and permit the agency to “indefinitely” ban visitors it deems to have violated any security procedures or other terms of the waiver.

“There’s just a lot in here that should not be defined by DOCCS and that allows DOCCS broad discretion,” Scaife told New York Focus. “If we sign the waiver, as presented to us, we’re essentially giving them the discretion to circumscribe the access based on what they think is appropriate.”

The prison agency has argued that the legislation did not specify what the waiver is permitted to impose.

“Regarding the waiver, your contention that it adds requirements in the law that are not in the [statute] is misplaced. The [statute] does not dictate any verbiage the waiver can or cannot contain,” Cathy Sheehan, the Deputy Commissioner and Counsel for DOCCS, wrote in an email sent to Scaife on August 27. “Considering the detail in the statute of all the other issues, the intent clearly was for the Department to control the verbiage of the waiver.  I am perplexed that you have an issue with the waiver in that it contains the same agreements as the previous form except that everyone will abide by security rules.”

A DOCCS spokesperson told New York Focus that “the legislation that was recently enacted into law speaks for itself and calls for CANY to sign such [a] waiver."

Hazel Crampton-Hayes, the governor's press secretary, said that "Governor Hochul is committed to improving transparency and restoring trust in government, and we have directed all agencies, including DOCCS, to develop plans to be more transparent.”

An Opaque Agency

Throughout the pandemic, advocates have called for more transparency about how prison facilities were handling COVID-19, including on positivity rates, testing procedures, medical staffing capacity, and cleaning, housing and social distancing protocols.

In December, as COVID cases exploded in DOCCS facilities, a staff attorney from the Legal Aid Society said in a press release that “data on testing and numbers in facilities is disturbingly deficient and nontransparent.” In May, some four dozen legal, religious and nonprofit organizations wrote a letter to the governor and prison commissioner asking for vaccination rates to be made publicly available.

In conversations with New York Focus, advocates and lawyers described DOCCS as a department that seeks to frustrate the access even of state-sanctioned monitors. Assemblymember Amanda Septimo (D-Bronx) referred to the agency as a series of “fiefdoms,” rather than a centralized system that can be held accountable as a whole.

Organizations entrusted and required under state law to monitor the prisons are often thwarted by lack of access to records. Scaife said that CANY is usually required to rely on the state’s oft-criticized Freedom of Information Law process to obtain records.

The version of the bill approved by legislators and sent to Cuomo included sweeping records access for CANY, but this provision was described as a “non-starter” by Cuomo’s team and was taken out during the amendment process, Scaife said.

Disability Rights of New York (DRNY), the organization designated by the state to advocate on behalf of people with disabilities and entitled under federal law to greater records access, has also struggled to obtain files from DOCCS. 

“The records of DOCCS facilities are really where you can get the most information, even more so than when you go into the facility itself,” Christina Asbee, a program director at DRNY, told New York Focus.

The group has sued the state prison system, alleging the department has violated federal disability law by blocking access to records related to treatment in DOCCS facilities. Its third lawsuit against DOCCS for records, filed in June, says that the agency cited COVID-related visitation shutdowns when denying access to records, even though the monitor was not seeking physical access to records.

“This is the whole thing for DOCCS-- just frustrate access as much as possible,” Stefen Short, the Supervising Attorney at the Legal Aid Society’s Prisoners’ Rights Project, told New York Focus. “You not only prevent folks in the outside world from knowing what's going on in your facilities, but you tie your overseers up in litigation and negotiation so that they're not doing their actual job. You divert all of their resources toward fighting all of these ridiculous access battles.”

Short added that DOCCS regularly creates barriers to lawyers seeking to obtain files about their clients, forcing attorneys to visit facilities in person for time-sensitive information rather than transmitting it electronically.

The Commission of Correction

Beyond CANY, the state relies on the state Commission of Correction, an independent agency charged with overseeing over 500 prisons and jails across the state, to monitor conditions. Like other state oversight agencies, the commission has been criticized as ineffectual in regulating prisons.

“Has anything ever happened out of the state commission on corrections? No,” Assemblymember Daniel J. O’Donnell, the former chair of the body’s correction committee, who has introduced legislation to create an independent ombudsman for DOCCS, told New York Focus. “I think we need a clean slate with people who have independent authority and people who don’t have to rely on the acquiescence of DOCCS to get their information.”

An SCOC spokesperson referred New York Focus to a 2019 report by the state comptroller’s office indicating that the commission had implemented recommendations proposed by the comptroller, but did not answer questions about how frequently it inspects prisons or how it enforces regulations if it finds prisons are not in compliance with them.

In September, after a series of legislators visited the city-run Rikers Island and a twelfth person died in New York City jails, Assemblymember Emily Gallagher wrote that she would be introducing legislation to “strengthen the oversight powers of the state Commission of Correction.” Senator Julia Salazar, who chairs the Senate Committee on Crime and Correction, tweeted her support for the idea.

Short said that the Legal Aid Society had pushed the previous administration to expand the resources of the Commission of Corrections, whose three commissioners are currently appointed by the governor.  

“Despite requesting from the governor’s office, and despite requesting from the legislature multiple times, we’ve never seen a commitment to making SCOC’s resources commensurate with SCOC’s power,” Short said. 

“You’re left with that”

On a Saturday morning in October 2017, Darlene McDay said, she received a concerning call from an incarcerated person at Wende Correctional Facility, urging her to contact the prison, where her son Dante Taylor was incarcerated. She called the facility but couldn’t receive assistance, though a staff member said her son was at the facility. She eventually reached the watch commander, who refused to disclose information, saying he couldn’t verify her identity. 

“The next phone call I got was from the reverend, telling me to sit down,” McDay said. “They’ll just basically tell you that the loved one has died, and then you’re left with that, you get no other information.”

Taylor, 22, had hung himself with a bedsheet. McDay told New York Focus that she eventually spent $20,000 in her effort to uncover details about Taylor’s death. While she waited for official information to be released, McDay hired private investigators to interview incarcerated people who witnessed the assault.

A 2018 report from the DOCCS Office of Special Investigations found that Taylor had been assaulted by multiple guards inside his cell before he took his life. She didn’t receive a fuller report about her son’s death from SCOC until three years after his death.

“They have all this information and they won’t give you anything. You play it all the time in your head of what you think happened that night. I’ve played it a million times with the little information I have, and not from them.”

A spokesperson for SCOC wrote in an email to New York Focus that “the unique circumstances of each case determine the steps, number of staff and amount of time needed to complete the process thoroughly,” noting that “SCOC delays interviewing witnesses and issuing a report until a criminal investigation and charges, if any, have been completed by local authorities, so as not to interfere with prosecution.”

Darlene said that three-year wait was excruciating. She began filing a series of freedom of information requests, and in February 2020 filed a suit alleging that prison staff violated Dante’s Eighth and Fourteenth Amendment rights. Many of the FOILs were heavily redacted and took many months to arrive. 

“Transparency? There is no transparency,” McDay said.

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