New York City’s jails would be able to listen in on inmates’ phone calls without a warrant, read prisoners’ mail without a court order, reduce living space behind bars, and use 23-hour lock-ins more widely under new regulations proposed by the Board of Correction that revise – prisoners' advocates would say “roll back” – the basic rules of the city jail system for the first time in 30 years.
The Board of Correction, a nine-member panel authorized by City Charter to oversee the Department of Correction, will hold a hearing April 17 on the proposed changes to the “Minimum Standards for New York City Correctional Facilities,” which were imposed in 1978 amid a crisis of violence and overcrowding in the city's jails. The board says its review of the standards took more than a year and was guided by recent court decisions and practices in other jail systems.
“The point is, it's been 30 years since anyone has taken a serious look at this,” says board Chairperson Hildy Simmons, a philanthropist who was named to the board by local judges in 2004 and made chair by Mayor Bloomberg in 2005. “It was the right thing to do – and long overdue.”
The proposed new standards were released for public review and comment in late January, and Simmons says she welcomes input that helps the board shape the final guidelines.
The Department of Correction (DOC) absorbs more than 100,000 inmates a year at nine jails on Rikers Island, two hospital wards, the Manhattan Detention Complex, and a barge docked off Hunts Point. DOC spokesman Steve Morello says several of the proposed new rules are just permanent versions of variances to the minimum standards that the board has granted over the years. One example is the proposal to reduce the square footage required for each prisoner housed in a dormitory, effectively increasing the potential capacity of dorms from 50 to 60 inmates. The DOC is already doing this, and claims the decreased space hasn’t triggered violence.
Other proposals reflect the way the world has evolved since 1978, according to Morello. “It has to do a lot with a changing environment inside and outside the jails in terms of criminal and terrorist activity,” he says. The board's draft rules would allow the DOC to read inmate mail and listen to inmate phone calls without a warrant, and prevent the delivery of mail, packages or publications in order to “to protect public safety or maintain facility order and security.” Morello says he's not aware of current problems with inmate publications, or any trouble the DOC has had obtaining warrants, and acknowledged that the rules were “prospective,” addressing potential future needs.
Among the new proposals – some of which describe practices already in place under variances – are measures that would:
• permit jails to restrict access to showers and recreation yards when inmates misbehave on the way to bathing or recreation facilities;
• appoint DOC officials to vet religious advisors before they work in the jails and decide on whether to allow new religious practices;
• change a requirement that Spanish translators be in every facility to a rule that mandates efforts to ensure “that all non-English speaking prisoners understand all written and oral communications”;
• allow law libraries to schedule two of their 10 operating hours each day during times when general population inmates are locked in their cells, so inmates in protective, medical or punitive segregation – separated from the general population – can use the libraries;
• allow DOC to require pre-trial detainees – who make up three-quarters of the jails’ average daily population of 13,500 and currently wear their own clothes – to don “institutional clothing.” Morello says this would allow more thorough pat-downs for weapons, facilitate the capture of escapees, and prevent inmates from fighting over articles of clothing; and
• institute procedures to make it easier for DOC to gain new variances to the standards in the future.
Another new rule would govern how much time certain inmates spend in their cells. General population DOC inmates are usually not confined to their cells except at night and during times when guards are counting heads in their wards. But prisoners who have committed disciplinary infractions or have a communicable disease can be “locked-in” for up to 23 hours a day. The board's proposal would allow DOC to extend that lock-in to prisoners in “close custody,” which includes inmates who are segregated for their own safety because they are gay, associated with a high-profile case or under mental observation. Morello says variances already allow many of the new lock-in practices, and that the DOC screens inmates individually before applying those provisions.
With the possible exception of the language requirement, which could open the way for better translation services for inmates who speak neither English nor Spanish, prisoners' rights advocates find little to cheer in the board's proposals. “Everything moves in the direction of making the lives of prisoners more oppressive,” says John Boston, director of the prisoners’ rights project at the Legal Aid Society.
John Rakis, a former DOC health official who is now a consultant, wrote comments to the board stating that locking in close custody inmates “would promote a sense of helplessness and hopelessness and increase the risk of suicidal behavior.” Raising the permitted capacity of dormitories also disturbs advocates, who question why the department needs to reduce inmate space when its overall population has decreased in recent years. These critics note that the jails are still plenty violent: While stabbings and slashings have dropped dramatically since the 1990s, the number of assaults increased slightly in fiscal 2006 to 6,833. And critics wonder whether dressing people who are presumed innocent in prison garb is conducive to their smooth reentry to life on the outside, or even fair.
“People shouldn’t be regimented any more than they have to be,” says Boston. “When you haven’t convicted someone of a crime, the state hasn’t earned the right to engage in that behavior.”
Advocates don't deny that the minimum standards needed revision. In fact, they say, the board failed to address several areas where updated regulations are needed, such as education, intake, visitors and re-entry after incarceration. “The board should be promoting best practices, rather than cramming more people into a cellblock, rather than rolling back the standards they fought so hard for 30 years ago,” says Rakis.
Opponents of the board's proposed rules also criticize the way they were drafted, contending that they are the product of discussions only between the board and the department it regulates, to the exclusion of other stakeholders. “It seems like the only thing the Board of Correction addressed was the Department of Correction’s agenda,” says Boston. “I think that they’ve really limited the field of discussion. It really creates enormous pressure and enormous momentum that this is what will be done, with minor tweaking at best.”
Morello says while the DOC made its desires clear to the board, “[The board] didn't go along with everything.” Simmons, the board chairperson, denies the report's ultimate shape is a foregone conclusion. “We are very open to whatever suggestions and comments there are. The deliberations are not over; they have just begun,” she says. “You can't write a document with a million people in the room. In order to get a response, you have to have something out there.”
That response is already being heard. A City Council committee plans a hearing on the new rules, either later this month or in April. The Corrections Officers’ Benevolent Association, the union representing prison guards, has filed comments opposing the weakened overcrowding standards as “unsafe,” and expressing concern that reduced Spanish translation will lead to frustrated prisoners and more danger for jail officers. John Horan, a former vice-chair of the board who was involved in writing the standards in 1978, says he objects to the general thrust of the proposals, which entail transforming temporary variances into permanent regulations for the DOC. “The variance procedure has worked well under several commissioners,” says Horan, who served on the board until late 2005. “It allows the board to keep an active check on how things are working.”
Legal Aid, the Fortune Society, the Center for Constitutional Rights, Fordham Law Prisoners' Rights Advocates, the Urban Justice Center, and staff at the Innocence Project are involved in discussions over how to respond to the board’s proposals – a response that could involve anything from negotiation with the DOC over improving some of the proposals to outright opposition.
Other groups, like the New York Civil Liberties Union, Women’s Prison Association and Osborne Association, are also tracking the issue. Elizabeth Gaynes, Osborne’s executive director, says the proposals are a mixed bag: She is pleased there are no additional restrictions on visitation, but concerned about the possible increase in 23-hour lock-ins.
Simmons hopes to approve a final version at the board's June meeting.
Comments on the Board of Correction’s proposal must be submitted on or before May 21, 2007, to Richard T. Wolf, Executive Director of the New York City Board of Correction, Room 923, 51 Chamber Street, New York, NY 10007. The April 17 public hearing is at 9:30 a.m. at the City Planning Commission hearing room, 22 Reade Street, 1st floor. People who plan to testify are asked to notify Wolf at the above address.