Criminal Justice New York State

Will New York Stop Letting Prisons Police Themselves?

A new bill would subject the state prison system to independent oversight for sexual assault complaints. The Senate has two weeks to bring it to a floor vote.

Victoria Law · May 25, 2023

Attica Correctional Facility on a winter day in Attica, New York. | Jayu via Wikimedia Commons

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Last November, New York Focus reported in partnership with The Intercept on the case of Robert Adams, a man incarcerated in a New York state prison who alleged a brutal sexual assault by a prison sergeant. According to Adams, after the guard forcibly sodomized him with a state-issued baton, he attempted to seek recourse within the prison system — but was instead subjected to a retaliatory harassment campaign and an internal investigation so cursory, his witnesses weren’t even interviewed.

Now, legislation spurred by his story, as well as other accounts of sexual abuse behind bars, is winding its way through the state Senate. A bill introduced this month by Senator Julia Salazar would authorize the state inspector general to investigate sexual assault complaints made by people in prison — rather than leaving it up to the prisons themselves. It passed the committee that oversees prisons, which Salazar chairs, on Tuesday. Senate Majority Leader Andrea Stewart-Cousins now has just two weeks left to introduce the bill for a full floor vote before the session’s end on June 8.

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At a Senate hearing that helped inspire the bill last March, Jonas Caballero, then a paralegal who had been held in a Brooklyn jail, described being sexually abused by a guard. He’d waited more than 400 days after reporting the violence, he testified — only to be told that investigators had failed to retain video evidence needed to corroborate his complaint. His case was closed as unsubstantiated.

“Everything about the prison industrial complex is brutally wrong,” Caballero told New York Focus on Tuesday. “It’s no surprise that incarcerated individuals who have been raped and sexually abused while in custody have nowhere to turn — since the system is designed to fail.”

The bill also mandates that the Department of Corrections and Community Supervision create a confidential and secure reporting system — something it has lacked since March 2021. And it would make retaliation against those who report sexual assault — already illegal, but still commonplace and seldom prosecuted — subject to investigation and referral for outside prosecution.

“Survivors of sexual assault in prison provided deeply moving testimony and consistently raised their concerns regarding the failure of the existing investigatory system to address sexual assault in a meaningful, independent, and comprehensive manner,” Salazar wrote in an email to New York Focus. Stewart-Cousins’s office did not respond to a request for comment.

“It’s no surprise that incarcerated individuals who have been raped and sexually abused while in custody have nowhere to turn.”

—Jonas Caballero

Caballero’s case wouldn’t have been affected by Salazar’s bill, since his abuse occurred in a Brooklyn jail, not a state prison. But Adams’s might have been.

Like everyone in New York state prisons, Adams had to rely on the prison agency’s Office of Special Investigations, or OSI, to address his complaints. Months after Adams reported the assault, he received notice that his case had been closed as unsubstantiated. They had not contacted or interviewed three witnesses to his assault — two of whom told New York Focus they faced beatings and the denial of food as retaliation for offering to testify on Adams’s behalf. Investigators only interviewed the witnesses more than a year later, when they appeared to reopen the case after New York Focus contacted prison administrators and the governor’s office.

Adams’s experience, along with testimony like Caballero’s, helped shape the bill. It confirmed the need for independent investigations, Salazar’s legislative director, Mark Mishler, told New York Focus. The case “emphasized for the Senator the need to build in as many safeguards as possible and the necessity of having clear protections regarding retaliation,” Mishler said.

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Perhaps unsurprisingly, when an agency is tasked with investigating itself, few complaints leveled against it are deemed credible.

In 2019, the most recent year for which data is available, DOCCS recorded 481 complaints of sexual abuse by staff members. Investigators classified only 11 of those to be substantiated, meaning that they were more likely to be true than false.

“OSI is a sham. OSI has no interest other than to protect DOCCS,” Adams told New York Focus on Thursday. “All it takes is for a staff member to say they didn’t do anything for OSI to unsubstantiate our complaints, even if we have witnesses or other evidence.”

Salazar’s bill isn’t the first effort to enable a more independent body to investigate complaints. In January 2021, lawmakers introduced a bill to create an ombudsman for the state’s prison system and to transfer staff misconduct investigations from DOCCS to the state’s attorney general.

But that would have created another conflict of interest: New York’s attorney general represents individual prison staff and the agency itself in litigation, including defending them against charges of abuse. The bill died in the Senate corrections committee.

“OSI is a sham.”

—Robert Adams

The following year, in March 2022, Salazar and then-Senator Alessandra Biaggi held New York’s first-ever legislative hearing about sexual assault in its jails and prisons. The hearing lasted more than six hours, with testimony from people who had been sexually assaulted while incarcerated, advocates, attorneys, and prison officials responsible for ensuring agency compliance with the federal Prison Rape Elimination Act.

Fourteen months later, Salazar introduced the Sexual Assault in Prisons bill.

Nationally, external investigations into prison sexual abuse are rare. In federal prisons, the Office of the Inspector General can investigate staff sexual abuse — but it has the capacity to review only a fraction of allegations. The remainder get sent back to the Bureau of Prisons’ Office of Internal Affairs.

A decades-old Supreme Court decision shields many staff facing internal investigations from legal consequences. The court ruled in 1967 that an interview is considered “compelled” if government employees are required to answer questions under oath as a condition of their employment. Law enforcement is barred from using incriminating admissions made during such interviews — so the bureau’s internal investigations can enable staff to freely admit to sexual abuse without fear of prosecution.

That’s what happened in 2019 during an internal investigation at the Federal Correctional Center in Coleman, Florida, in which several officers readily admitted to sexually abusing multiple women but faced no consequences.

The protection extends to state prison employees as well. In New York, internal investigations into staff misconduct follow two routes: For investigations that could lead to criminal charges, staff are not compelled to answer investigators’ questions. For investigations that would result in only internal sanctions, they are required to answer questions or face termination, but their answers are protected from prosecution.

In 2021, the Bureau of Prisons and the Office of the Inspector General made headlines when their investigation led to the indictment of a prison warden in Dublin, California. But the event stood out for a reason: The same year, the BOP received 554 allegations of staff sexual abuse across its 121 correctional institutions. Prison investigators substantiated only five. The following year, the agency received 315 allegations of staff sexual assaults and substantiated none.

The trend persists at the state level outside New York: In 2021, investigators in New Jersey substantiated only 11 of 212 allegations of staff sexual misconduct and sexual harassment; in California, nine of 305 allegations; and in Illinois, none of 109 allegations.

In New York, Adams is awaiting news of his case, which seems to have been reopened — but with OSI doing the investigating, he isn’t optimistic that it’ll lead to anything. He thinks he might have had a better chance with an outside agency.

“Even though I didn’t get justice, maybe if this happens to somebody else in the future and this bill becomes law, maybe they’ll get justice,” he said.

But even other arms of government could be loyal to the prison system, he noted.

“The state’s dug in behind DOCCS and OSI, they support them,” Adams said. He pointed out that acting commissioner Anthony Annucci — in office until June 9 — failed to appear at last year’s hearing about sexual assault. “That just shows the lack of seriousness given to the abuse that we suffer in here at the hands of these guys that you pay with your tax dollars.”