Will New York Stop Letting Prisons Police Themselves?

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.

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.

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.