Anthony Annucci’s Ten-Year Temp Job

Andrew Cuomo named Anthony Annucci acting commissioner of New York prisons back in 2013. Now, someone his agency incarcerates is trying to take him out.

Rebecca McCray   ·   May 4, 2023
This week marks ten years of Anthony Annucci's tenure as acting commissioner of New York prisons. | Maia Hibbett for New York Focus

“Anthony Annucci is the go-to guy” in New York corrections, the New York Law Journal declared in 2014. Though he was just over a year into his tenure as acting commissioner of the New York State Department of Corrections and Community Supervision, Annucci had seen decades with DOCCS, much of it spent batting away lawsuits from incarcerated people alleging poor conditions and mistreatment. “In addition to death and taxes,” Annucci told the journal, “one other constant was inmate litigation.”

Nine years later, one of those lawsuits has become a thorn in his side — in part because he remains acting commissioner. This week marks 10 years of his oversight.

Note the “acting” in his title: With the highest role in the state prison system, Annucci manages a budget of more than $3 billion, oversees the state’s 44 prisons, and governs the lives of more than 30,000 incarcerated people and over 20,000 more on parole. Yet he’s never been confirmed by the state Senate. Despite its duration, his role is, technically, temporary.

Someone locked up in Annucci’s prison system is now trying to remove him on these grounds. Jeremy Zielinski, a man incarcerated at Woodbourne Correctional Facility, sued Annucci, Governor Kathy Hochul, and Senate Majority Leader Andrea Stewart-Cousins last fall, arguing that Annucci’s status violates state law and seeking an injunction to oust him.

Most lawsuits by incarcerated litigants don’t make it far. Zielinski’s suit defied that pattern. The state attorney general’s office moved to dismiss the suit in December, but in February, Albany County Supreme Court Judge Peter Lynch denied their motion.

“The 10-year duration of the de facto appointment [of Annucci] appears to be extraordinary and raises the question of how long a constitutional failure may continue,” Lynch ruled.

Now, Zielinski is seeking an ambitious raft of system-wide reforms and a promise that Annucci be confirmed by the end of the 2023 session or resign within two years. Spokespeople for Hochul and the prison agency declined to comment on the pending litigation. A spokesperson for Stewart-Cousins did not respond to New York Focus’s request for comment.

“The 10-year duration of the de facto appointment raises the question of how long a constitutional failure may continue.”

—Albany County Supreme Court Judge Peter Lynch

In a May 1 legal filing, Attorney General Leititia James’s office argued that “there is no statutory or constitutional time limit by which an executive branch agency head must be appointed,” and that the lawsuit should be dismissed, calling Zielinski’s interpretation of the law “convoluted” and “flawed.” The office contends that Annucci’s title is technically “executive deputy commissioner” on the state’s payroll, though he is identified as acting commissioner on DOCCS’s website, in Senate hearings, in emails from DOCCS to New York Focus, and in pleadings the state itself filed in the lawsuit.

The suit follows Hochul’s failed attempt to make Annucci’s appointment official. After the governor recommended him for confirmation last January, the acting commissioner faced hours of questioning from two Senate committees considering his nomination — the first time they’d had a chance to do so. Some lawmakers forced Annucci to admit instances of deep dysfunction; others stated plainly they had no intention of voting in his favor.

“I had been in the Senate for four years and had never seen a nominee rejected from the governor, and certainly not a commissioner,” Senator Julia Salazar — who voted to advance, but not recommend, Annucci’s nomination — told New York Focus. “I think it was a really important demonstration of the Senate’s ability to reject a nomination.”

But nothing changed. The governor tabled her nomination, and the candidacy never went to a floor vote. The “acting” title was left to linger.

Zielinski’s legal challenge alleges that Annucci’s leadership, unchecked by legislative oversight or confirmation, has allowed the prison department to “devolve into a public nuisance that menaces the people and finances of this state.” Annucci has fostered “a culture of staff impunity,” Zielinski argues, and perpetuated “a racist, antebellum-like system of labor exploitation.”

Amid the systemic harms that Zielinski says flourished under Annucci’s watch, the prison department acquired and used a faulty drug testing system beginning in 2019. False positive tests resulted in 1,632 incarcerated people being wrongfully punished, subjecting some to solitary confinement, lost jobs, and lost privileges such as phone time and participation in a familial visit program, according to a report by the Office of the Inspector General.

When things go wrong, a grievance process is supposed to help incarcerated people find recourse. This too has become “corrupted with systematic self-interest, dishonesty, and abuse to the point of abject uselessness,” Zielinski alleges.

In an investigation published last year, New York Focus reported that after a different incarcerated man accused a corrections officer of sexual assault — and attempted to pursue the grievance process — he was transferred between prisons five times in what he characterized as a retaliatory harassment campaign. He also alleged that he was denied adequate medical treatment for his wounds, a problem that has repeatedly come up in prisons under Annucci.

“Certainly everybody who is incarcerated is deserving of whatever medical care we can deliver, same as John Q. Public,” Annucci said in one of last year’s hearings. But experts, advocates, incarcerated people, and former prison medical staff have documented that care as grossly inadequate in practice.

That inadequate care is among the factors that have made the New York prison system a deadly place. Zielinski notes that, since 2013, more than 1,200 incarcerated people have died under Annucci’s watch. The lawsuit points to “incidents of almost unbelievable staff brutality” in addition to substandard medical and mental health care. This violence comes with a significant price tag: The department has paid millions of dollars in judgments and settlements in cases involving abuse by corrections officers.

The complaint also highlights a recent policy that severely limits the number of packages incarcerated people can receive from family and loved ones, and bars them from mailing fresh or packaged food — often a vital supplement to what’s provided in prison mess halls. If families want to send food or other products, they have to purchase it through “approved vendors,” often at a high markup.

This is the second such policy to rear its head under Annucci. In 2018, a similar “secure vendor” package program was shut down by then-Governor Andrew Cuomo after pushback from incarcerated people and advocates, and a separate policy that had prevented people in nine prisons from receiving books by mail for years was finally amended.

In spite of these criticisms, Annucci has his supporters. Wilfredo Laracuente, who was released in July 2021 after 20 years in New York prisons, said Annucci advocated for prison education programs that allowed him to grow as a student while incarcerated.

“When it came to programming where I was in the department of corrections, I feel he has directly impacted the lives of a lot of men,” Laracuente, who earned associate’s and bachelor’s degrees while imprisoned at Sing Sing, told New York Focus.

When a band of incarcerated performers played at a graduation event, Laracuente recalled, someone mentioned that Annucci could play the piano. “He came up and rolled up his sleeves and played a couple sets with them,” Laracuente said. “That was the first time I’ve ever seen someone from Albany actually interact with the men at a particular venue or event in prison.”

In Zielinski’s view, Annucci’s comfort in the prison system is part of the problem. He started with DOCCS in 1984 as deputy counsel, rising to deputy commissioner and counsel in 1987 and holding the role for nearly 20 years. His old job served to shield the department from litigation, Zielinski pointed out in his suit: “Having spent so long lensing reality in the most DOCCS-favorable ways possible — and arguing against the existence of unfavorable facts — he lacks any present ability to meaningfully acknowledge systemic harms being caused by DOCCS staff, policies, and procedures.”

Despite its duration, Annucci’s role is, technically, temporary.

In the mid-2000s, as general counsel and deputy commissioner, Annucci used his administrative powers to unilaterally add post-release probation or parole to incarcerated people’s sentences. When a federal appellate court ruled that that was illegal, Annucci ignored the order and, in the court’s words, “deliberately refused to change [the department’s] procedures to bring them into compliance.” In recent years, courts have begun awarding damages to people wrongfully imprisoned as a result of Annucci’s violations of the law.

Some senators share Zielinski’s skepticism of the value that Annucci’s 37-year experience brings.

“The prevailing wisdom on corrections is much different than it was even a few years ago,” Senator John Liu told New York Focus. “So there needs to be change, and it’s hard to have real change when the same person is in charge for so long.”

By Annucci’s own admission, there was a longstanding deterrent to his move from acting to full commissioner.

Asked in a hearing why he hadn’t sought the top job sooner, Annucci told Senator Joe Griffo that the salary for prison commissioner would have been less than that he was paid in his prior role. When Cuomo appointed him in May 2013, the salary cap for DOCCS commissioner was $136,000. But by January 2021, after years of salary increases, the salary for Annucci’s intended role had risen to $220,000.

“Everything fell into place this year,” Annucci said at the hearing, “and I am very proud to be considered, as well as humbled to be considered for this extremely important position.”

Since the Senate’s rebuke of his nomination, the acting commissioner has continued to frustrate some lawmakers. Last year, in the face of a new parole reform law, Annucci’s DOCCS kept hundreds of parolees who should’ve been released in jail. A landmark law reforming New York’s solitary confinement rules went into effect just weeks later — and prisons have violated every major facet of it since. Annucci himself has handed down an illegal directive ordering prisons to shackle everyone in isolation to desks while they participate in hours-long “therapeutic” programming.

Lawmakers in Albany have noticed his obstinance, filing repeated public comments. The lack of compliance with the solitary confinement law constitutes “a humanitarian crisis in our prisons,” Senator Salazar told New York Focus. But thus far, their impact has been negligible.

The New York constitution states that the commissioner “shall be appointed by the governor by and with the advice and consent of the senate.” The failure to earn that Senate approval, Zielinski’s suit argues, renders Annucci’s role unconstitutional.

In an affidavit filed along with the state’s May 1 response, Annucci holds that his occupation of the top role should not stop the Senate from appointing an official DOCCS commissioner, whether it’s him or someone else.

“It really makes you question what is the point of the Senate confirming nominees.”

—State Senator Julia Salazar

“Although publicly identified as the acting commissioner of DOCCS since former commissioner Fischer’s retirement, I hold the formal title of executive deputy commissioner and receive a salary as such,” Annucci writes. “My employment as executive deputy commissioner of DOCCS does not prevent the formal nomination and confirmation of a new DOCCS commissioner.”

Yet watchdogs and legal experts told New York Focus that Zielinski has a point. “Keeping someone in the ‘acting’ role for nearly a decade makes a mockery of the process” and “undermines the concept of the separation of powers,” said Ben Weinberg, director of the good government group Public Policy for the Citizens Union.

Issa Kohler-Hausmann, an associate professor of law and sociology at Yale University and a former criminal defense attorney, said the delay “is nothing more than an end-run around the political checks and balances that are written into the constitution.”

Salazar, who sat on both committees that grilled and ultimately rejected Annucci last year, remains concerned that an official who lacks the Senate’s support and confidence can retain such a high-level role for so long. “It really makes you question what is the point of the Senate having the responsibility of confirming nominees if when a nomination is made and the Senate rejects it, nothing happens.”

Correction: May 8, 2023 — This story previously stated that Jeremy Zielinski requested that Anthony Annucci resign within two years if not confirmed by the end of the 2024 legislative session. The confirmation request was timed a year earlier, by the end of the 2023 session.

Rebecca McCray is a journalist based in New York. You can find her work in New York Magazine, Rolling Stone, Gothamist, The Daily Beast, The Village Voice, Slate, and elsewhere.
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