A report published by The Marshall Project (TMP) on May 19, 2023, found that the disciplinary process in the New York Department of Corrections and Community Services (DOCCS) “fails to hold many guards accountable” in cases where they are accused of abusing prisoners.
Records of 5,642 disciplinary cases from the beginning of 2010 through April 2022 were obtained by TMP after state lawmakers two years earlier bucked the powerful guards’ union and repealed Section 50-A of the state civil rights law, which had shielded disciplinary cases from public view.
In 3,953 of those cases – over 70% – DOCCS recommended firing employees, including guards in 294 cases in which investigators determined they abused prisoners or covered up abuse. Yet the agency succeeded in terminating just 28 of them. In the other 266 cases, guards were allowed to keep working, and most remained on the job.
A major hurdle is the contract negotiated for guards with DOCCS in 1972 by the state Correctional Officers and Police Benevolent Association (COPBA). That agreement vests termination decisions in an arbitrator, whose ruling is binding and can be overturned only by a court. Of 120 cases involving alleged abuse that TMP reviewed, arbitrators ruled for guards about 75% of the time, most often citing insufficient state evidence or prisoner testimony that was deemed “unconvincing.”
That dismal track record often serves as its own deterrent, encouraging the state to withdraw charges and allow guards to resign or retire. While the process plays out – typically about three months – accused guards are suspended, but with pay. Of all disciplinary actions initiated against employees – for charges from abuse to tardiness and illegal drug use – the state’s win rate is a mere 7%.
DOCCS Executive Deputy Commissioner Daniel F. Martuscello III insisted that the cases involved only a fraction of the state’s 16,000 prison guards. But the excessive force allegations against them have led to lawsuits in which the state has ultimately made $18 million in payouts.
One suit filed by prisoner Harold Scott claims he was assaulted by guards in June 2019 at Willard Drug Treatment Campus. Though guards claimed they stopped using force as soon as they had Scott under control, DOCCS investigators later determined that was a lie and that guards subjected Scott to a “criminal street gang style beating.”
Three of four guards were found guilty by an arbitrator – not of the attack, but of covering it up – and suspended for six months. A fourth guard earlier agreed to a suspension, too. Addressing binding arbitration in cases like this and the perceived leniency of arbitrators’ rulings will be crucial to ensure greater accountability and protect the rights of state prisoners like Scott. The 44-year-old was left in intensive care with a punctured lung after the assault.
Represented by attorneys with Sivin, Miller & Roche, LLP in New York City and Prisoners’ Legal Services of New York in Buffalo, Scott filed suit in federal court for the Western District of New York in December 2022, saying: “I just want to be heard.” That case is pending, and PLN will update developments as they are available. See: Scott v. Downs, USDC (W.D.N.Y.), Case No. 6:22-cv-06006.
COPBA has also succeeded in preserving jobs for its members: The number of state prison guards is down just 22% since 2010 even as the prisoner population has fallen by half. Along with an enviable prisoner-to-guard ratio of 2-to-1, the average guard enjoys an annual salary of $87,000 – though pay over $100,000 is common, TMP found.
Additional sources: Lower Hudson Valley Journal-News, The Marshall Project
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