Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 14

11-18-2010

Role of the Correctional Association of New York
in a New Paradigm of Prison Monitoring
Jack Beck
Prison Visiting Project of the Correctional Association of New York

Recommended Citation
Jack Beck, Role of the Correctional Association of New York in a New Paradigm of Prison Monitoring, 30
Pace L. Rev. 1572 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/14
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

Role of the Correctional
Association of New York in a New
Paradigm of Prison Monitoring
Jack Beck
The Correctional Association of New York (“CA”) has been
continuously monitoring conditions within New York State
prisons since 1846, based upon legislation that authorizes the
CA to visit the state prisons and report to the legislature and
the public on conditions it observes. However, as a result of
several legislative measures enacted in the past two years—
laws proposed and/or strongly supported by the CA and
criminal justice reform advocates—other state agencies are
now also required to monitor aspects of medical, mental health,
and substance abuse services in the state prisons. This is a
significant change for the Department of Correctional Services
(“DOCS” or the “Department”), which oversees nearly 60,000
inmates in New York’s sixty-eight facilities and has had
significant autonomy in how it provides services to its inmate
population. These laws create new opportunities for the CA to
effect change in the state prisons, and requires the CA to
develop new relationships with other state agencies concerned
with prison conditions.
Part I of this article will summarize the unique legislative
measure that provides the CA with the authority to assess
conditions and practices within New York’s prisons and to
advocate for improvements in prison conditions and the care of
state inmates. It will identify the limitations and restrictions
that the CA encounters in performing these duties. Part II will
present the new legislative measures that require other state
agencies to monitor specific components of prison services, and
will describe how these laws will alter the role of the CA in
investigating conditions and advocating for change.


Director, Prison Visiting Project of the Correctional Association of New
York. Prior to this position, Mr. Beck was a supervising attorney at the
Prisoners’ Rights Project of The Legal Aid Society of New York.

1572

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Part I: The Correctional Association of New York and Prison
Monitoring
A. Components of an Effective Prison Monitoring Agency
A number of components are crucial to the operation of any
outside organization that monitors and evaluates prison
conditions, and fosters systemic change:
► The monitoring organization must determine
its primary mission: should it provide individual
advocacy to inmates, should it focus on working
for systemic improvements, or should it engage
in a mix of both activities? In addition, is it an
advisor to the corrections department solely, or is
its work product for a much larger audience?
These decisions about program design will
determine the relevance and importance of each
of the elements described below.
► Ideally, the monitoring organization should
have a substantial degree of independence both
from the corrections department being assessed
and from other institutions or funding sources
that might compromise its ability to report freely
on its observations and recommendations.
►
The monitoring organization must have
access to information. Such information should
include not only prison policies and protocols but,
more importantly, documents and data from the
corrections department and other agencies that
help the monitors assess actual prison practices.
The organization must have unfettered access to
individuals who live or work inside the facility it
is monitoring, and ideally should have the ability
to conduct conversations with staff and inmates
in private settings and to keep communications
with these individuals confidential.
► The monitoring organization should make its
observations, findings, and conclusions available
to public officials, including those outside the

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corrections department, as well as to the general
public.
Moreover, the organization should
interact with advocates, as well as currently and
formerly incarcerated individuals and their
families, both to receive information and to
educate and/or organize those interested in
reforming the prison system.
► The monitoring organization should have a
dialogue with corrections administrators about
the monitoring process and its observations and
recommendations. This work should include an
exchange between the monitoring organization
and the corrections department, both prior to
finalizing its report to eliminate errors and
reduce areas of disagreement and after the
report to review and monitor the department’s
corrective plans.
► The organization should have the ability to
advocate for changes in policy and practices with
public officials outside the prison system and the
general public, particularly in instances when
recommended remedies require action by
governmental entities other than the corrections
department.
The CA model has been successful in fostering reform
within New York’s prison system because it has most of these
components.
The following describes the current CA monitoring process.
It also provides an analysis of why the CA has had a positive
impact on the corrections system and what more can be done to
enhance its effectiveness.
B. Correctional Association: Background
The CA is one of only two independent organizations in the
United States with legislative authority to visit prisons and
report on conditions of confinement. Since 1846, the CA has
carried out this special legislative mandate to keep
policymakers and the public informed about conditions of
confinement that affect both inmates and corrections staff. As

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an independent citizens’ organization, it is dedicated to
involving the public in prison monitoring and advocacy. The
Prison Visiting Project (“PVP,” or the “Project”) and the Women
in Prison Project of the CA are responsible for performing this
monitoring function in both the male and female facilities.1
One of the CA’s central goals is to be an instrument for
systemic change within the prisons by monitoring correctional
policies and practices, developing proposals to make conditions
more humane, educating the public, and pressing the prison
administration, the state executive, legislative officials, and the
public to take action. Because the CA critiques what is
happening inside prisons and reveals deficiencies and
problems, it acts as the public’s eyes and conscience with
regard to prison issues in the state.
Broadly defined, the monitoring work of the CA includes:
(1) visiting state correctional facilities on a regular basis and
issuing detailed reports of findings and recommendations to
state corrections officials, state legislators, and the public; (2)
preparing and distributing in-depth studies on critical
corrections topics, which include findings and practical
recommendations for improvements; (3) advocating for reform
at public hearings, in meetings with state agency personnel
and elected officials at local and national conferences and in
discussions with the media; and (4) helping raise the visibility
of corrections-related issues through publishing research
reports and gaining media attention, posting fact sheets and
prison reports on the CA website2, and making presentations at
community forums and academic and professional conferences.
C. Current CA Activities
1. Prison Visits
The New York State Department of Correctional Services
confines approximately 60,081inmates in 68 facilities

1. PVP monitors conditions within the sixty-two male prisons in New
York and is directed by the author of this article. The CA’s Women in Prison
Project performs a similar function for the seven female state prisons.
2. The
Correctional
Association
of
New
York,
http://www.correctionalassociation.org (last visited Feb. 12, 2010).

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throughout the state, roughly 2,579 women and 57,502 men.3
The Prison Visiting Project conducts monitoring visits to six to
ten prisons each year and the Women in Prison Project visits
all the female institutions. These visits take the form of field
research: full-day, on-site assessments during which members
of the CA Visiting Committee, typically five to eight people on
each visit, branch out to all corners of the prison, including
housing areas, the recreational yard, the medical clinic, mental
health units, program areas, and disciplinary segregation
units. The Visiting Committee consists of a diverse group of
CA staff and board members, medical and psychiatric
professionals, formerly incarcerated people, advocates, and
concerned individuals. Throughout the day, the Visiting
Committee interviews inmates using a standardized survey
and holds meetings with the facility’s administrative team, the
Inmate Liaison Committee (a leadership group elected to voice
the concerns of prisoners), corrections officers and civilian staff.
2. Data Collection
The CA also collects data about each facility it visits,
providing the CA with more detailed information about
staffing, programs, services, unusual incidents, and
disciplinary processes.
The CA gathers this information
through a multi-question survey submitted to the facility
superintendent prior to each visit. This data enables the CA to
analyze systemic conditions, compare different prisons with
similar inmate populations, identify model programs and areas
in need of reform, and make informed decisions about future
projects and priorities.
3. Report of Prison Visits and State of the Prisons Report
After each visit, the CA issues a detailed report including
findings and recommendations based on information gathered
during the visit. A draft of this report is sent to the

3. DEP’T OF CORR. SERVS., UNDER CUSTODY REPORT: PROFILE OF INMATE
POPULATION UNDER CUSTODY AS OF JANUARY 1, 2009, at 2 (2009), available at
http://www.docs.state.ny.us/Research/Reports/2009/UnderCustody_Report_20
09.pdf.

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superintendent and DOCS officials; following their review, a
conference call is held with the facility executive staff and the
CA to discuss the findings and recommendations.
This
dialogue is intended to allow the prison authorities to identify
any erroneous information in the report, to supplement the
information provided during the visit, including changes since
the visit, and to discuss the CA’s recommendations both in
terms of the feasibility of the CA proposals and any alternative
measures DOCS officials may suggest to accomplish the stated
goals. After revisions to the report are made following this
conference call, a final report is issued and distributed to a
larger group of policymakers, inmates, and members of the
public, and is available on the CA website.
Periodically, the CA issues a State of the Prisons report,
which contains an overview analysis of the entire state prison
system and includes a summary of each of the prison visits
conducted during the reporting period.4 The State of the
Prisons reports are used to articulate recommendations for
systemic improvements in prison conditions and practices, as
well as to present specific information on each prison visit.
4. Inmate Correspondence
PVP receives letters from approximately 100 to 150
inmates each month requesting information or assistance and
providing the Project with information about prison conditions.
This correspondence directs CA staff to prison-specific and/or
system-wide issues and ensures that the CA is aware of
conditions at prisons that it may not be able to visit regularly.
5. Studies of Specific Prison Issues
In addition to the CA’s monitoring of overall prison
conditions, PVP performs multi-year studies of critical issues
concerning New York prisons, resulting in detailed reports that
analyze the accomplishments and deficiencies that the Project
4. See, e.g., CORR. ASS’N OF N.Y., STATE OF THE PRISONS 2002-2003:
CONDITIONS OF CONFINEMENT IN 14 NEW YORK STATE CORRECTIONAL FACILITIES
(2005),
available
at
http://www.correctionalassociation.org/publications/download/pvp/State_of_pr
isons_02-03.pdf.

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has observed and that identify recommendations to improve
prison conditions, policies, and practices. At present, PVP is
performing a multi-year study evaluating how DOCS provides
services to inmates with substance abuse histories.
In
addition, the Project issued a report about prison healthcare in
2009,5 a report on the treatment of inmates with mental illness
in 2004,6 and a study on disciplinary segregation in 2003.7
As part of these studies, the Project conducts focused visits
to the prisons, compiling detailed surveys of the prison
population and conducting interviews with relevant prison staff
and the prison executive team. In addition, through the state
Freedom of Information Law (FOIL),8 the Project obtains
systemic data about the prison population and the issues being
investigated. Finally, the CA periodically visits facilities
outside the state to identify model programs that could be
replicated in New York.
These studies result in detailed reports containing CA
findings and recommendations. The CA distributes the reports
to correctional officials, policymakers, and the public. It
conducts outreach and garners media attention to raise public
awareness and advocate for reform.
6. Education and Advocacy
The CA believes it is essential to publicize its findings and
recommendations, educate public officials, the press, and the
public, promote the effective programs it has found, and
advocate for the correction of deficiencies in the prison system.
Part of its public education is to bring ordinary citizens into the
5. CORR. ASS’N OF N.Y., HEALTHCARE IN NEW YORK PRISONS 2004-2007
(2009),
available
at
http://www.correctionalassociation.org/publications/download/pvp/issue_repor
ts/Healthcare_Report_2004-07.pdf.
6. CORR. ASS’N OF N.Y., MENTAL HEALTH IN THE HOUSE OF CORRECTIONS: A
STUDY OF MENTAL HEALTH CARE IN NEW YORK STATE PRISONS (2004), available
at
http://www.correctionalassociation.org/publications/download/pvp/issue_repor
ts/Mental-Health.pdf.
7. CORR. ASS’N OF N.Y., LOCKDOWN NEW YORK: DISCIPLINARY
CONFINEMENT IN NEW YORK STATE PRISONS (2003), available at
http://www.correctionalassociation.org/publications/download/pvp/issue_repor
ts/lockdown-new-york_report.pdf.
8. N.Y. PUB. OFF. LAW §§ 84-90 (McKinney 2008).

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prison during the CA visiting process so they can learn and tell
others what the prison experience really involves. The CA also
has regular contact with legislative officials in order to report
its observations and to inform those officials about its work in
pursuit of effecting change. The CA has ongoing relationships
with the press, not only when it issues reports, but as a regular
function of its educational role, and it encourages editorial
boards to endorse CA recommendations. The CA staff also
makes presentations in many public forums focusing on prison
issues and participates in national and regional prison
conferences and in professional organizations. These activities
enable the CA to move beyond a limited group of state
policymakers to raise crucial prison issues affecting inmates,
their communities and the general public.
But education is not sufficient to produce reform.
Consequently, the CA undertakes several initiatives to promote
its recommendations and develop meaningful remedial
measures. For example, the CA staff plays active roles in
several statewide coalitions of advocates, formerly incarcerated
individuals, and their families working for systemic
improvements. The CA has been instrumental in drafting and
promoting the adoption of legislation to address prison
problems. It has also advocated for the allocation of state
funding to provide necessary services in the prisons and to
create pilot projects that demonstrate the effectiveness of
model prison programs. Staff members also present testimony
before legislative hearings and assist legislators in developing
a record to justify the modification of policies and practices
within the prisons.
D. Analysis of the Correctional Association’s Visiting Project to
Monitor Prison Safety
1. Overview
With the aforementioned description of the PVP as
background, it is possible to perform an analysis of the
strengths and weaknesses of a private organization as the
model for investigating prison conditions and in fostering
remedial action to address deficiencies.
The CA has had a positive impact on DOCS policies and

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practices because it has compiled and presented compelling
information and analyses to prison officials, the legislature,
other policymakers, and the public, and because it has been
relentless in pursuing implementation of its recommendations.
Prison reform is a slow and frustrating process, which requires
patience and fortitude. Because of the CA’s independence, it
can fairly and aggressively report its observations and can
advocate for best practices. Although its statutory authority
provides independence, the law does not grant the CA any
power to require change.
Rather, only through the
persuasiveness of its information and the effectiveness of its
presentations can the CA influence DOCS to modify its policies
and practices. However, the more forcefully the CA advocates
for change, the more difficult it is to have a congenial and
cooperative relationship with the Department.
The CA also maintains a very strong relationship with the
legislature, and it often assists legislators interested in
improving the treatment of inmates in identifying pressing
issues, compiling data to support legislative action, and
fashioning appropriate legislative remedies. The CA has been
successful in garnering significant press and editorial support
for its proposals. Through these efforts, it has been an
important force in improving DOCS practices. For example,
after a CA report on the treatment of inmates with mental
illness, advocacy efforts by the CA and other interested
organizations and pending litigation concerning prison mental
health services, the governor proposed, and the legislature
approved, a $13 million program to augment mental health
services for state inmates and eventually enacted a law to
enhance services for inmates with mental illness confined in
disciplinary housing.
To assess why the CA has been successful, it is useful to
examine in greater detail each of the elements identified
earlier as essential components of an effective outside monitor:
organization’s mission; organization’s independence; access to
information; publication of findings and recommendations;
interactions between the prison system and the organization;
and advocacy by the monitoring organization.

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2. Mission of the Monitoring Organization
The first step is to define the role of the outside monitoring
organization. At least four potential models are available. One
is an advisory panel to a corrections department, which would
likely include outside experts who may draft and/or review
department policies. In addition, an advisory panel could
undertake a limited investigative role in assessing practices
and/or might provide the department with feedback from the
community concerning outsider perceptions about problems
within the prisons. Although useful, an advisory panel has
limited ability to address more controversial problems such as
prison safety and violence.
A second model is a monitoring board that reports solely to
the department and is akin to an external quality assurance
(“QA”) committee. This type of body could have a more
significant impact on department practices than an advisory
board because QA assessments focus on what is actually
occurring at an institution and the fidelity of the prison staff’s
conduct to official policy. However, the activities of a QA
committee can be limited both in terms of what it can review
and, more importantly, what actions it can take to foster
change. The work product of QA committees is generally
confidential, and it is entirely up to the corrections department
to decide what issues to examine and what actions, if any, it
will take to address the identified problems. Moreover, there is
usually very limited input into the QA process by outside
agencies and individuals. Given the already closed nature of
prisons, it is unlikely that such a role would be effective in
reforming practices that corrections departments are reluctant
to change.
A third model is one in which the outside organization acts
as an ombudsman for prisoner complaints. The role of this
entity is to investigate specific inmate complaints and to
advocate on an inmate’s behalf for corrective action. Such a
role is extremely useful to the inmates who are served and is
important in addressing egregious situations, particularly in
systems where the inmate grievance program is ineffectual.
However, individual actions can easily overwhelm an
organization attempting to serve a prison population of
thousands of inmates, leaving few resources to address

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systemic problems.
In addition, focusing on individual
complaints generally limits an organization’s ability to collect
and evaluate system-wide data and prepare comprehensive
reports that evaluate systemic problems and propose remedial
measures. Individual advocacy for inmates is sorely needed,
but such advocacy often does not foster systemic reform.
The fourth model is one similar to that employed by the
CA. It involves a monitoring process intended to analyze
overall department policies and identify model practices and
areas for reform. The collection of information and the analysis
of data are directed toward assessing the frequency of a
practice and whether mistreatment of inmates or failure to
provide services is the result of (1) formal or informal prison
policies and procedures or inadequate resources, or (2) an
aberrant situation caused by individual staff misconduct,
nonfeasance or neglect. It is equally important to recognize
systems and programs that are working well, both to
acknowledge individuals performing their jobs effectively and
to urge the corrections department to replicate effective policies
and programs throughout the corrections system.
3. Independence of the Monitoring Organization
The CA has a great deal of autonomy and is not subject to
significant limitations by DOCS or any state entity. The CA’s
Board of Directors is self-appointed and includes prominent
citizens, lawyers, advocates, formerly incarcerated individuals,
individuals associated with community-based organizations
serving formerly incarcerated individuals and academics. Only
ten percent of the CA’s funding comes from state monies. In
the monitoring process, the CA is free to determine what it
considers to be best practices and to advocate for reforms it
believes are advisable and feasible. Although the CA looks to
national and international standards concerning correctional
practices, it is not mandated to assess the prisons based upon
any specific set of criteria. Although it regularly reports to the
legislature, the legislative bodies do not dictate the CA’s
agenda or limit its findings and recommendations. The CA
greatly values its independence, which substantially
contributes to its ability to advocate for difficult, but necessary,
reforms in the criminal justice system.

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Some observers believe that it would not be feasible in
today’s political climate to replicate the CA statute. Accepting
that assessment, however, does not mean that other models
could not be adopted that could serve a similar function. One
model could be an independent review board that is constituted
to investigate and report to the legislature and the public on
specific prison issues. For example, such an entity could be
created to look at healthcare or mental health care, or
investigate prison violence.9
Alternatively, it might be possible to have a review
committee appointed by government officials, with an executive
board comprised of appointees by both majority and minority
members of the legislature, and by the executive branch. The
important issue would be to ensure that the executive
appointees do not morph the committee—intentionally or not—
into an arm of the prison administration. One mechanism that
would help such a review committee maintain its independence
is a designation in the authorizing statute that representatives
of specific outside agencies must be voting members of the
committee, such as representatives of legal services
organizations, independent health organizations, non-profit
organizations,
treatment
providers,
social
service
organizations, or religious organizations. If the reviewing
entity consists primarily of government appointees, it is
essential that the committee be required to hear public input,
during both the investigative process and the reporting period.

4. Access to Information and Transparency of Prison
Policies and Practices
In order to effectively critique a correctional system, it is
important for an outside monitoring organization to gain
comprehensive and reliable information about the policies and
practices within the prisons. This is often a difficult task
because prisons are generally closed institutions that outside
individuals or organizations can rarely penetrate.
9. An example of a limited review panel is Florida’s Correctional Medical
Authority, established to review healthcare in Florida’s prisons and to give
independent advice to the governor, legislature and corrections department.

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The CA has been successful because it has unique access to
the prisons. The CA Visiting Committee can go anywhere in
the prisons and speak to inmates and staff where they live and
work. It is particularly important during the course of CA
visits that Visiting Committee members speak to inmates who
have not necessarily contacted advocates to raise concerns on
their own. Litigators and outside advocates often obtain a
somewhat limited view of a prison because they are primarily
dealing with individuals who are motivated and capable of
reaching outside the prison walls to raise complaints and
advocate for themselves. The experience of the CA is that
many inmates do not have the resources, information, or skills
necessary to advocate for themselves, and many are afraid of
the consequences of raising complaints. Since silence does not
necessarily indicate a lack of problems, it is important that a
reviewing organization be able to determine the experiences of
this “silent” inmate majority. The CA surveys of inmates
reveal significant problems that inmates have come to accept
as standard practices, which they often feel powerless to
change.
The act of speaking to inmates during a tour, however, can
expose them to some risks. The CA prison visits are monitored
by security staff and personnel from DOCS central office.
Although it is not common, some security personnel have
listened intently to conversations between CA visitors and
inmates, and since prison officials can identify the inmates
with whom CA visitors converse, there is the possibility that
prison staff could retaliate against these inmates. Although
the CA has received only a few reports of inmates being
harassed for having contact with the organization, the
intimidating environment can result in self-censorship. The
CA attempts to insulate inmates from retaliation by speaking
to as many inmates as possible and by presenting its findings
based upon all inmates’ comments, without identifying specific
sources of information. For extremely sensitive information,
the CA sometimes conducts confidential interviews in the
visiting room used by legal counsel. These legal visits are
difficult to arrange and would severely restrict the breadth of
contacts if the CA used them for most inmate interactions. A
reviewing organization must be sensitive to the risks to which
cooperating inmates may be exposed and it must be prepared

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to react forcefully when any individual is adversely affected.
Ideally, a reviewing entity should have the authority to conduct
confidential interviews with inmates.
In obtaining information from inmates, standardized
survey instruments have been useful in assessing conditions
and practices. These allow the CA to compare information
from different facilities and to assess whether inmates’ reports
are systemic or anecdotal. For example, the Prison Visiting
Project has compiled 3,265 surveys from inmates about general
prison conditions and the inmates’ experiences at 22 prisons.
The CA has also obtained several thousand more inmate
surveys focused on specific prison practices and programs.
Speaking to front-line corrections staff is also a crucial
component of the visiting process. The Visiting Committee
attempts to meet with union representatives in a focus group
setting during each prison visit. These meetings can be very
informative, revealing the staff’s perceptions of the facility and
the obstacles they encounter in doing their jobs. During the
tour of the program and service areas, CA visitors interview
staff about their jobs, obtaining additional data and gaining
their perspectives about the effectiveness of their programs.
The prison visits are invaluable in assessing conditions,
but access to additional information, particularly from DOCS
data and departmental records and documents, is also
necessary to assess whether systemic deficiencies exist and to
place the individual observations made during visits in the
context of the entire system. This can be a cumbersome and
time-consuming task because the CA does not have a right to
all relevant Department documents and data.
In order to obtain information about the operation of the
Department, the CA seeks general information about DOCS
pursuant to the state’s FOIL and requests specific data about
each prison in an approximately 100-question survey provided
to a prison before each visit. Both of these efforts, however, are
somewhat limited.
Although the Department has been
cooperative in responding to most data requests, it is under no
obligation to do so, and sometimes the CA has experienced
delays in receiving DOCS responses and occasionally the
Department has refused to provide certain information.
Though gathering data informally has been mostly
successful, responses to CA FOIL requests are often delayed

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and sometimes incomplete. Specifically, long delays have
occurred before receiving documents in response to requests for
system-wide information. Moreover, pursuant to FOIL, many
items that are requested can be withheld, particularly in the
prison context. Most freedom of information laws exempt
documents that are part of a pending investigation. In
addition, many documents may contain information that state
officials categorize as subject to privacy protections, such as
medical information about inmate and staff injuries, inmate
records, or disciplinary actions against staff. These records can
be withheld if the requesting authority does not have a release
from the individuals involved. This can make it effectively
impossible to look at systemic data. The result is that FOIL is
an inefficient and, at times, ineffective tool to access some of
this information.
But even if an outside organization has enhanced access to
corrections department records, the data needed to assess
prison practices may not be available because the prison
administration does not record the information or does not
store it in a manner that allows for effective retrieval. For
example, many prison systems designate the types of use of
force that must be documented. The threshold for such
documentation may not include many incidents where inmates
were in fact subjected to force, particularly if no significant
injury occurred. More importantly, much of the most useful
information about inmates and staff is buried in individual
inmate and staff records. The corrections department can
assert that it is unable to retrieve such information without
reviewing thousands, and possibly hundreds of thousands, of
documents. Few courts would require such a review of
documents to extract this information. Corrections
departments can effectively insulate themselves from scrutiny
by failing to summarize information or keep logs, computer
records, or some system of recordkeeping to identify those
involved in misconduct or those adversely affected by prison
conditions.
To overcome these obstacles to departmental records,
legislation creating an outside monitor should include the
unfettered right of access to all departmental records, logs, and
data. Privacy concerns could be addressed by limiting the
publication of identifying data in the monitor’s reports. Efforts

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should be made on a national basis, or in the states through
legislation, requiring prison administrations to keep systemic
data on issues such as the following: medical procedures;
provisions of mental health care; incidents of self-harm;
suicides; homicides; natural deaths; use-of-force incidents in
the prisons; inmate and staff injuries; allegations of staff
misconduct, particularly concerning interactions with inmates;
litigation concerning staff misconduct; and staff and inmate
disciplinary actions.
The CA’s efforts to reveal prison practices through the
visits process and to compile data from the Department to
evaluate systemic conditions are designed to make what
happens in the prisons more transparent.
Corrections
departments on their own could share with the legislature and
the public more data about prison conditions and practices, but
without greater public will to demand these facts, monitoring
agents may be the only source for such information.
5. Publication of CA Findings and Recommendations
As was the case with the Abu Ghraib scandal, remedial
action often only happens when the misdeeds that have
occurred inside our penal institutions are made public.10 If the
graphic and disturbing photographs of mistreatment of the
Iraqi prisoners had not been revealed, it is unlikely that any
investigation or corrective action would ever have occurred.
The incarcerated population has almost no political power,
and inmates’ families often come from poor, disenfranchised
communities that have limited influence on state politics.
Corrections departments are also unlikely to unilaterally
implement reform measures, especially given the substantial
financial burden that housing inmates places on states.
Moreover, since many prisons are located in isolated
communities that depend on the facilities for jobs, employees
have little incentive to reveal improper practices.
10. In 2003, Iraqi prisoners held at a United States prison near Baghdad
were systemically abused and tortured by U.S. forces. The abuse was
undeniable because photographs and videos taken by soldiers were
eventually displayed in the press and on television. Seymour M. Hersh,
Torture at Abu Ghraib, THE NEW YORKER, May 10, 2004, at 42, available at
http://www.newyorker.com/archive/2004/05/10/040510fa_fact.

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Consequently, there is no political power, institutional
pressure, or natural public constituency to advocate for
improvement in prison conditions when they are needed.
Given this dearth of power, it is crucial that outside monitoring
agencies publish and publicly promote their findings and
recommendations. Such publications are a necessary, but not
sufficient, means to hold correctional departments accountable.
Along with publications, monitoring agencies must educate
policymakers and the public about what is happening in our
prisons and help frame the debate about what is appropriate
when confining individuals.
Corrective action to improve prison conditions will often
require more than the efforts made by corrections departments
themselves. Increased resources are frequently necessary to
address prison problems.
For example, low salaries,
insufficient staff coverage, and the lack of educational and
vocational programs all contribute to prison violence. In order
to obtain these enhanced resources, a clear record of need must
be developed to justify these additional expenditures. It often
falls to individuals outside the prison system to make this case,
because the prison authorities are reluctant to admit that their
department is not adequately meeting the needs of the inmate
population.
In the past, litigation often served the role of publicizing
prison deficiencies. With the advent of the Prison Litigation
Reform Act,11 it has become more difficult for lawsuits to
successfully challenge inadequate prison practices. In addition,
the constitutional standards imposed by the courts are often
far below the well-designed and effective correctional practices
that prison advocates would urge corrections departments to
implement. Monitoring agencies are free to promote best
practices in the prisons even if constitutional violations do not
exist.
It is crucial that a monitoring organization’s reports are
fair and unbiased in discussing prisons and in presenting
findings and recommendations. The purpose should not be to
only detect failures, but also to note successes and acknowledge
11. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 801,
110 Stat. 1321, 1321-66 (1996) (codified as amended in scattered titles of the
U.S.C.). See also Appropriate Remedies with Respect to Prison Conditions,
18 U.S.C. § 3626 (2006).

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progress in addressing previously identified problems. The
voices of inmates should always be included, as should the
views and opinions of staff and prison executives.
The
credibility of the monitor will always be tested, and it is critical
that the organization is able to fully support its conclusions
and demonstrate that it is equally prepared to listen to, and
present, the staff’s views.
6. Corrections Department Accountability and Interactions
Between the Department and a Monitoring Organization
Reporting is only the first step in the corrective process.
The ideal scenario is to have the corrections department review
the findings and recommendations of the monitor, and then
initiate a process to address the monitor’s concerns, offering
the corrections department the opportunity to determine how
best to remedy the situation.
The optimal process for
communication and cooperation between the monitor and the
corrections department should have three components:
► a dialogue between the monitor and the
corrections department in which the monitor’s
preliminary findings and recommendations are
discussed to permit clarification or correction of
facts, to identify remedial measures the
department is already doing or is willing to
undertake, and to facilitate modification of the
monitor’s findings and conclusions accordingly;
► after the issuance of the monitor’s report, an
investigation by the corrections department of
facts the department contends are in dispute,
and the development of the department’s written
corrective plan to address deficiencies or improve
practices to be shared with the monitor;
► a re-evaluation process by the monitor after
the corrections department has had an
opportunity to address the problems to
determine whether the department has
implemented its corrective plan and to assess
whether that plan adequately addresses the
concerns raised in the initial report.

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For several years, the CA did not have a cooperative
relationship with DOCS and thus was unable to have an
effective dialogue about its monitoring activities.
The
Department had refused to comment on CA reports, which
were sent to DOCS prior to their publication, to enter into any
discussions with the CA about its findings and
recommendations after the reports were issued, or to share
with the CA what actions, if any, it intended to take to address
the issues raised in the CA reports.
However, with a change in the governor and DOCS
commissioner in 2006, the relationship between the
Department and the CA has substantially changed. During the
past three years, the CA has held a series of substantive
meetings with the DOCS Commissioner and his executive team
and has implemented a process for dialogue between the
Department and the CA about prison and issue-related reports.
This process has resulted in an improved exchange of
information and has facilitated a sharing of views and
proposals about several correctional issues such as healthcare,
mental health services, substance abuse treatment, and
treatment of female inmates.
It is predictable, however, that many corrections
departments will not voluntarily undertake steps to discuss
with outside agencies adverse findings and share with them
any plans to address deficiencies. Therefore, authorizing
legislation creating a monitoring entity should require a
corrections department to respond to the entity’s monitoring
reports in a substantive fashion, to develop corrective plans,
and to engage in ongoing communication with the entity about
its progress in implementing those plans. Such a requirement
does not oblige the department to accept the findings and
conclusions of the monitoring organization.
Rather, it
mandates that the department articulate its position on the
validity of the findings, and where the department cannot
dispute that a problem exists, develop a remedial plan.
The publication of a corrective plan would provide the
monitoring entity with a blueprint of the areas it should assess
when evaluating whether the department has effectively
instituted measures to remedy problems. Such a process is
commonplace in any quality improvement program and should

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be replicated within the correctional context.
Finally, the CA is planning to implement a process to assess
conditions at prisons recently visited by a CA Visiting
Committee and to determine whether policies and practices
have been altered following the issuance of a CA prison report.
Specifically, the CA will be seeking specific information from
the prison administration and surveys of the current inmate
population approximately one year after the publication of a
prison report to determine whether problems and concerns
identified in the original report are still present and whether
remedial measures have been undertaken to address these
issues. This follow-up monitoring is crucial to determine both
the effectiveness of the CA’s efforts and to hold prison officials
accountable for problems extant in their facilities. It will also
be useful in analyzing the feasibility of CA proposed remedies
and help the organization evaluate approaches to improving
prison conditions and fostering program development.
7. CA Advocacy Efforts
Once the CA issues a report, it undertakes efforts to
promote its proposals, including educating policymakers and
the public, contacting media, urging policymakers to take
legislative action, and participating in criminal justice-related
coalitions. While many members of advocacy organizations
speak about personal experience or the specific problems they
have encountered in their jobs, the CA brings comprehensive
information to contextualize anecdotes and add credibility to
shared goals. The CA’s ability to gather and analyze systemic
data empowers individuals, organizations, and coalitions
working for criminal justice reform.
Although the strategies employed by the CA alone can
prompt reform, the most effective way to spur change in the
correctional system is through collaborations between multiple
agencies, each with its own methods and tactics, on a single
issue. The previously cited example of enhanced prison mental
health services represents such a confluence of forces. The $13
million of additional resources was likely the result of the
combination of the CA’s reports on mental health care and
disciplinary confinement, litigation filed against DOCS focused
on inadequate mental health care for inmates, and vigorous

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lobbying, public education and media work by a statewide
coalition called Mental Health Alternatives to Solitary
Confinement. It is difficult to imagine such results being
achieved without this perfect storm of pressure and
coordinated activity from multiple sources.
The CA recognizes there is a tension between (1)
publicizing
findings
that
are
negative,
issuing
recommendations for changes in policy and advocating for
improvements in prison conditions, and (2) maintaining an
open dialogue with a corrections department about what occurs
inside the prisons and what can be done to improve conditions.
These purposes can be reconciled if a monitoring organization
is rigorous in its investigative process to seek input from all
elements of the prison community, remains committed to
presenting the facts fairly and completely, acknowledges when
the department has been successful in providing effective care
for inmates or in improving conditions, and continues to seek
opportunities to discuss with prison officials their concerns
about the system. The CA thus makes it a priority to carry out
each of the aforementioned activities.
Part II: New Legislative Measures Mandating Prison Oversight
Three different laws enacted in 2008 and 2009 have
introduced new oversight of DOCS prison operations for
specific prison services—mental health care, substance abuse
treatment and healthcare in the state prisons. In each case,
other state agencies are now required to evaluate aspects of
these services and/or develop guidelines that determine how
the Department treats its inmate population. As a result of
these legislative measures, the CA has been working with, or
will attempt to engage, these new monitoring state agencies to:
(1) assist them in developing their monitoring functions; (2)
provide information to them about current practices in the
facilities; and (3) review and evaluate the results of their
monitoring activities. These laws present new opportunities
for the CA to investigate prison practices and effect change in
prison conditions, while also altering the relationship of the CA
with DOCS, the legislature, and these state agencies. This
section will briefly summarize these laws and analyze their
impact on CA prison oversight.

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A. SHU Exclusion Law: Mental Health Services for Inmates in
Disciplinary Confinement
Mental health care is provided in New York prisons by
staff from the Office of Mental Health (“OMH”), which provides
out-patient and in-patient services in the state prisons. More
than 8,600 inmates are on the OMH caseload, and nearly 3,000
of these individuals suffer from serious mental illness.
Although OMH provides the treatment to inmates with mental
illness, OMH services are given in residential mental health
units jointly operated by DOCS and OMH, and many inmates
with serious mental illness remain in the general prison
population, where no mental health staffs are generally
present. Unfortunately, many inmates with mental illness
have difficulty coping in the highly regulated prison
environment. Consequently, they frequently are found to
violate prison rules, resulting in their placement in disciplinary
confinement. Although inmates currently receiving mental
health services in the prison represent fourteen percent of the
inmate population, in some prison disciplinary units, up to half
or more of the inmates require mental health care.
The CA regularly visits prison units in which mental
health services are provided, meets with DOCS and OMH staff
about the needs of inmates with mental illness, collects data
about the conditions and services affecting these inmates, and
documents its findings and recommendations in published
reports. These reports are shared with both DOCS and the
OMH forensic unit staff and are provided to the legislature and
the public. In 2004, the CA issued a comprehensive report,
Mental Health in the House of Corrections, detailing the many
difficulties inmates with mental illness were experiencing in
the state prisons and recommending greater oversight of the
care being provided to this vulnerable population, including
legislation to prohibit the placement of inmates with mental
illness in disciplinary confinement.12
In January 2008, the SHU Exclusion Law13 was enacted,
12. CORR. ASS’N OF N.Y., supra note 6.
13. SHU Exclusion Law of 2008, 2008 N.Y. Laws 1, (codified as
amended at N.Y. CORRECT. LAW §§ 137 (McKinney 2003 & Supp. 2010), 401-a
(McKinney 2008 & Supp. 2010) and N.Y. MENTAL HYG. LAW § 45 (McKinney

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which mandates that, unless exceptional circumstances exist,
any inmate with serious mental illness cannot be placed in a
disciplinary confinement unit, known as a Special Housing
Unit (“SHU”) in DOCS, for more than 30 days.14 The law
further provides that these diverted inmates must be sent to a
Residential Mental Health Treatment Unit (“RMHTU”) in the
prisons where the patient will receive four hours of therapy five
days per week.15 The law requires appropriate screening of
inmates admitted to disciplinary confinement to determine if
they meet the criteria for diversion, defines the procedures to
be employed in evaluating the inmates for diversion and
treatment, specifies how prison authorities may restrict
services and conditions in the RMHTU, and limits the use of
sanctions such as additional disciplinary confinement and the
imposition of a restricted diet for disciplinary inmates with
serious mental illness. The substantive provisions of the SHU
Exclusion Law providing for the diversion of inmates to the
RMHTU and the other protections provided to disciplinary
inmates with serious mental illness will not fully go into effect
until July 1, 2011.16
In addition, as part of this legislation, the New York State
Commission on Quality of Care and Advocacy for Persons with
Disabilities (“CQC”) is designated as the agency “responsible
for monitoring the quality of mental health care provided to
inmates” pursuant to article forty-five of the Mental Hygiene
Law.17
“The commission [CQC] shall have direct and
immediate access to all areas where state prisoners are housed,
and to clinical and department records relating to inmates’
clinical conditions.
The commission shall maintain the
confidentiality of all patient-specific information.”18
In
addition, the law states that CQC “shall monitor the quality of
2006 & Supp. 2010)).
14. N.Y. CORRECT. LAW § 137(6)(d)(i).
15. SHU Exclusion Law of 2008, sec. 2, § 21, 2008 N.Y. Laws 1.
16. Section 8 of the Law provides that its substantive provisions would
take effect two years after the DOCS Commissioner certified that the first
residential mental health unit was completed and ready to receive inmates,
but no later than July 1, 2011. SHU Exclusion Law of 2008, § 8(a), 2008 N.Y.
Laws 8. Since no certification has been made to date, the July 2011 effective
date is controlling.
17. N.Y. CORRECT. LAW § 401-a(1).
18. Id.

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care in residential mental health treatment programs and shall
ensure compliance with” the requirements of Sections 137 and
401 of the Corrections Law, which incorporate the substantive
provisions of the SHU Exclusion Law described above.19
Finally, the law specifies that in July 2011, CQC should
appoint an advisory committee consisting of mental health
experts and advocates, as well as family members of formerly
incarcerated individuals.20
The law did not delay the
implementation of the provisions concerning CQC’s monitoring
functions; therefore, CQC has initiated its monitoring
activities.
It should be emphasized that although the substantive
protections provided in the SHU Exclusion Law only refer to
inmates with serious mental illness who are at risk for
placement in disciplinary confinement, the scope of CQC is
broader.
It is authorized to “[m]onitor and make
recommendations regarding the quality of care provided to
inmates with serious mental illness, including those who are in
a residential mental health treatment unit or segregated
confinement in facilities operated” by DOCS and to monitor
compliance with the SHU Exclusion Law protections.21 This
language provides CQC with the authority to evaluate the care
for all inmates with serious mental illness, whether or not they
are in disciplinary confinement or the RMHTU.
Since CQC started to work on prison mental health care, it
has made substantial efforts to engage the mental health
advocacy community, including the CA. CQC has conducted a
series of meetings with a coalition of these advocates, Mental
Health Alternatives to Solitary Confinement (“MHASC”),
which was instrumental in proposing and supporting the SHU
Exclusion Law. The CA is one of the founding members of
MHASC and continues to be actively engaged with the group.
During these meetings and in subsequent conversations with
CQC, the CA has provided CQC with information about the CA
auditing process, has presented observations and findings
about conditions in prison mental health treatment units, and
has discussed with the agency what tasks it should consider

19. Id. § 401-a(2).
20. Id. § 401-a(3).
21. N.Y. MENTAL HYG. LAW § 45.07(z) (McKinney 2006 & Supp. 2010).

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prioritizing in its efforts to monitor mental health care for state
inmates. Except for a CQC review of mental health services
provided to an inmate who died while in the custody of DOCS,
CQC has not issued any reports of its monitoring function.
Once these reports are available, the CA will review them and
provide the agency with the CA’s comments and
recommendations.
The introduction of CQC has expanded the role the CA
must play in advocating for inmates with mental illness. Given
CQC’s broad powers to monitor prison conditions and
treatment of inmates with mental illness and its expertise on
mental health issues, it is likely that in determining whether
the agencies are providing appropriate care to the prison
population affected by the SHU Exclusion Law, DOCS, OMH,
and the legislature will be focusing on CQC’s assessments of
conditions and practices in the prisons. The CA will continue o
issue independent reports on the conditions in state prisons
affecting inmates with mental illness, both to (1) inform DOCS,
OMH, and the legislature about CA findings and
recommendations, and (2) provide information to CQC, which
may influence its monitoring activities and its findings
concerning care at the prisons visited by the CA. It will be
difficult, however, for the CA to pursue recommendations for
changes or improvements in the care of inmates with mental
illness if its proposed measures are contrary to findings and
recommendations made by CQC. Therefore, it will be crucial
for the CA to be engaged with CQC both prior to and during its
investigative process and when CQC proposes remedial
measures for deficiencies it finds at a prison. Finally, the CA
will closely follow the activities of CQC to ensure that its
monitoring reports assessing mental health services and
compliance with the new law are both comprehensive and
accurate.
CQC’s efforts have the potential to significantly improve
the care for inmates with mental illness both because the
agency has broad access to all facilities and records and
because the public reporting of its observations and findings
will increase the transparency of prison practices and enhance
the accountability of the prison mental health care system. It
is commendable that CQC is seeking information and input
from agencies and individuals outside DOCS and OMH.

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Although the advocates are pleased with these initial contacts,
this activity does not ensure that CQC will be successful in
monitoring mental health services in the prison. CQC is still
subject to limitations of funding by the state budget and to
potential political pressure from the executive if it determines
that DOCS and/or OMH are in non-compliance with the new
law. Therefore, it is essential that CQC be held accountable by
outside agencies to ensure that it is appropriately executing its
authority. Since the CA has greater independence from
influence by state officials than CQC and has extensive access
to the prisons to verify CQC’s observations and findings, it is
crucial that the CA assess the effectiveness of this new
monitoring process to ensure that it reveals program
deficiencies and that remedial measures are promptly
implemented to rectify identified problems.
B. Prison Substance Abuse Treatment and the Office of
Alcoholism and Substance Abuse Services—Rockefeller Drug
Law Reform
In 1973, New York promulgated draconian criminal
sanctions for the possession and sale of illegal substances,
resulting in the massive incarceration of individuals involved
in the use and sale of drugs in the state. These criminal laws
are known as the Rockefeller Drug Laws, named after the
then-governor Nelson Rockefeller who advocated their
adoption. The most significant effects of these laws were to (1)
mandate very long prison sentences for possession or sale of
specific quantities of drugs, and (2) remove from the courts
discretion to divert individuals with substance abuse problems
to treatment rather than prison or to reduce their sentences
based upon an assessment of their involvement in criminal
activity and the nexus between their behavior and their abuse
or dependency on drugs. As of January 1, 2008, there were
over 13,400 drug offenders incarcerated in New York State
prisons: 905 were women (33% of the total female prison
population) and 12,520 were men (21% of the total male
population).22
22. DROP THE ROCK, THE CAMPAIGN
LAWS
(2008),
available
at

http://digitalcommons.pace.edu/plr/vol30/iss5/14

REPEAL THE ROCKEFELLER DRUG
http://droptherock.ipower.com/wp-

TO

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For many years, the CA has been trying to repeal these
laws because they are unfair, discriminatory, and ineffective in
reducing substance abuse and drug-related crime in our
communities. In April 2009, Governor David Paterson signed
legislation that significantly reformed the Rockefeller Drug
Laws by restoring discretion to the courts to divert some
individuals from prison to community-based treatment,
reducing the sentences for some offenses, authorizing a limited
number of individuals already incarcerated to seek reductions
in their current sentences from the court, and including funds
for community-based treatment programs for those diverted
from the criminal justice system.23
In addition, this reform to the Rockefeller Drug Laws
mandates that the New York State Office of Alcoholism and
Substance Abuse Services (“OASAS”) monitor prison-based,
substance abuse treatment programs, develop guidelines for
the operation of these programs, and release an annual report
assessing the effectiveness of such programs.24 Prior to this
provision, OASAS did not monitor any prison-based treatment
content/uploads/2008/09/dtr_fact_sheet_2008.pdf.
23. On April 7, 2009, the drug law reform bill was signed into law, as
part of the budget legislation for 2009-2010. See Act of April 7, 2009, 2009
N.Y. Laws 56.
24. New York Mental Hygiene Law section 19.07(h) provides:
The office of alcoholism and substance abuse services shall
monitor programs providing care and treatment to inmates
in correctional facilities operated by the department of
correctional services who have a history of alcohol or
substance abuse or dependence. The office shall also
develop guidelines for the operation of alcohol and
substance abuse treatment programs in such correctional
facilities in order to ensure that such programs sufficiently
meet the needs of inmates with a history of alcohol or
substance abuse or dependence and promote the successful
transition to treatment in the community upon release. No
later than the first day of December each year, the office
shall submit a report regarding the adequacy and
effectiveness of alcohol and substance abuse treatment
programs operated by the department of correctional
services to the governor, the temporary president of the
senate, the speaker of the assembly, the chairman of the
senate committee on crime victims, crime and correction,
and the chairman of the assembly committee on correction.
N.Y. MENTAL HYG. LAW § 19.07(h) (McKinney 2006 & Supp. 2010).

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programs except for two existing facilities: (1) Willard Drug
Treatment Center, a 90-day intense treatment readiness
program at a facility operated jointly by DOCS and the
Division of Parole primarily designed for technical parole
violators; and (2) Edgecombe Correctional Facility, a recently
created 30-day treatment readiness program for parole
violators.
DOCS operates numerous drug treatment programs in its
prisons, in addition to the Willard and Edgecombe program, in
order to offer treatment to the large percentage of its
population who have a substance abuse history. As part of its
reception process, DOCS attempts to identify inmates who
have history of a substance abuse and then offers substance
abuse treatment programs to each of these inmates while they
are in custody. In its most recent analysis, DOCS estimates
that approximately eighty-three percent of its population
consists of identified substance abusers which DOCS believes
could benefit from substance abuse treatment.25 Sixty-one of
the sixty-eight state correctional facilities operate 119
substance abuse treatment programs of various types. The
Division of Criminal Justice Services (“DCJS”) reported that
28,602 state inmates had participated in a prison substance
abuse treatment program in 2008, and 25,032 inmates received
substance abuse counseling through DOCS in 2007.26 As of
December 31, 2006, 9,842 inmates were enrolled in a DOCS
treatment program.27 According to the DCJS 2008 Crimestat
Report, seventy-eight percent of inmates being released from
prison who had an identified substance abuse problem had
completed or were enrolled in substance abuse counseling
25. N.Y. DEP’T OF CORR. SERVS., HUB SYSTEM: PROFILE OF INMATE
POPULATION UNDER CUSTODY ON JANUARY 1, 2008, at 54 (2008), available at
http://www.docs.state.ny.us/Research/Reports/2008/Hub_Report_2008.pdf.
26. N.Y. DIV. OF CRIMINAL JUSTICE SERVS., 2007 CRIMESTAT REPORT 53
(3d
ed.
2008),
available
at
http://www.criminaljustice.state.ny.us/pio/annualreport/2007crimestatreport.
pdf; N.Y. DIV. OF CRIMINAL JUSTICE SERVS., 2008 CRIMESTAT REPORT 52 (4th
ed.
2009),
available
at
http://criminaljustice.state.ny.us/pio/annualreport/2008crimestatreport.pdf
[hereinafter 2008 CRIMESTAT REPORT].
27. N.Y. DIV. OF CRIMINAL JUSTICE SERVS., 2006 CRIMESTAT REPORT 47
(3d
ed.
2008),
available
at
http://www.criminaljustice.state.ny.us/pio/annualreport/2006crimestatreport
2-9-07.pdf.

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program prior to their release. This percentage was 75% in
2007, 77% in 2006, and had changed very little from the 79% in
2004 and 2005.28
In 2007, the CA initiated a multi-year study to assess how
DOCS cares for inmates it determines have a substance abuse
history and might benefit from a prison-based treatment
program. During this study, which will be completed later this
year, the CA visited 22 prisons and observed more than 40
different treatment programs with approximately 5,400
program participants, representing more than 50% of all DOCS
treatment beds. As part of this project, the CA obtained
detailed surveys from 1,160 inmates in treatment at these
facilities and an additional 1,130 surveys from inmates who
were waiting for treatment or who had been in treatment at
other prisons.
The CA had focus group meetings with
substance abuse treatment staff at each prison and discussions
with the prison administrators about how they deal with
inmates with substance abuse treatment histories. The CA
also interviewed formerly incarcerated individuals who have
returned home about their prison experiences with treatment
and has spoken with community-based treatment providers
about their impressions of how prepared formerly incarcerated
individuals are for community-based treatment after
participating in a prison-based treatment program. Finally,
the CA is investigating model practices in other states and will
collect data on these programs to compare to practices in New
York. The CA has assembled an advisory committee for this
study, which includes experts in the field of substance abuse
treatment and individuals involved in providing treatment to
incarcerated and formerly incarcerated individuals in the state.
This advisory committee has been invaluable in assisting the
CA in its study design and in developing recommendations that
will be included in its upcoming report on this issue.
The CA strongly supports the involvement of OASAS in
prison-based treatment because this state agency has the
expertise to evaluate the quality of treatment in the prisons
and develop guidelines that are comparable to standards and
practices employed in the community. Given the CA’s focus on
substance abuse treatment in the prisons, it can provide
28. 2008 CRIMESTAT REPORT, supra note 23, at 54.

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OASAS with detailed information about the current practices
and potential modifications to the program to enhance services.
The use of an advisory committee enhances the CA’s ability to
present to DOCS and OASAS meaningful proposals for changes
to DOCS practices.
Although OASAS has just begun its engagement with
prison-based treatment other than at Willard and Edgecombe,
the CA is encouraged by its initial communications with
OASAS. The first meeting involved the CA providing an
overview of its study of prison-based treatment and
preliminary observations, and OASAS summarizing its plans
for monitoring the prisons and the issues it intends to address
during its initial evaluation.
Given OASAS’ legislative authorization to monitor prisonbased treatment programs and to develop guidelines for their
operation, it is essential that the CA engage with OASAS both
in terms of its monitoring activities and in OASAS’ efforts to
establish guidelines for the program. The CA could assist
OASAS in three ways: (1) as a source of information about
practices in the prisons; (2) as an ally with the legislature and
the executive to support the allocation of adequate funds and
resources to OASAS to perform its monitoring and oversight
duties; and (3) as a resource for expertise on potential
modifications/enhancements to the current prison-based
policies and practices to assist OASAS in its efforts to develop
guidelines. In addition, the CA will continue its efforts to
monitor treatment practices in the prisons and, consequently,
will be evaluating whether the OASAS monitoring activities
are comprehensive and consistent with the observations the CA
has made during its visiting process.
C. Prison Medical Care and New York State Department of
Health Oversight of HIV and Hepatitis C Care
The state prison population suffers from extremely high
rates of infection from HIV and hepatitis C (“HCV”). Based
upon state Department of Health (“DOH”) studies of newly
admitted inmates, there were an estimated 4,000 state inmates
with HIV in custody in 2007, an infection rate of six percent for

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incarcerated men and twelve percent for incarcerated women.29
New York prisons remain the epicenter of this disease within
the U.S. prison system, representing nearly twenty percent of
all HIV-infected state inmates in the country.30 DOCS is one of
the largest providers of HIV services in New York State. New
York State prisons also have an estimated 8,400 inmates
infected with hepatitis C, and many others suffering from other
chronic diseases such as hypertension (6,500), diabetes (2,500)
and asthma (9,000).31
The CA has closely monitored prison healthcare for several
years, providing detailed reports on the medical care system at
every prison it visits. In 2009, the CA documented its
observations and recommendations about DOCS’s medical care
system in its report: Healthcare in New York Prison, 20042007.32
The report concluded that although significant
progress has been made in several aspects of the prison
healthcare system, problems persist with access to, and the
quality of, medical care in state prisons. Concerning HIVinfected inmates, DOCS is aware of less than half of the
estimated HIV-infected prison population. Access to infectious
disease specialists varies widely throughout the Department,
and some prisons have substantially fewer resources to assist
HIV-infected inmates with support while incarcerated or with
discharge planning for when they leave prison.
Based upon DOH studies of the inmate population,
approximately twelve percent of male inmates and nineteen
percent of female inmates are infected with hepatitis C, rates
higher than those for HIV-infected inmates and rates eight to
ten times higher than the HCV-infection rate in the
community.33 DOCS has improved its ability to diagnose HCV29. CORR. ASS’N OF N.Y., HEALTHCARE IN NEW YORK PRISONS 2004-2007,
supra note 5, at 31.
30. LAURA M. MARUSCHAK, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE
STATISTICS, HIV IN PRISONS, 2006, at tbl. 1 (2008), available at
http://bjs.ojp.usdoj.gov/content/pub/html/hivp/2006/tables/hivp06t01.cfm.
31. CORR. ASS’N OF N.Y., HEALTHCARE IN NEW YORK PRISONS 2004-2007,
supra note 5, at 30, 55.
32. Id.
33. Id. at 46; Gregory L. Armstrong et al., The Prevalence of Hepatitis C
Virus Infection in the United States, 1999 through 2002, 144 ANNALS OF
INTERNAL
MEDICINE
705
(2006),
available
at
http://www.annals.org/content/144/10/705.full.
The Center for Disease
Control estimates that 1.3% to 1.9% of the U.S. population were ever infected

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infected inmates and has increased the number of HCVinfected inmates receiving treatment. However, some prisons
are far less aggressive in their efforts to evaluate these
patients for therapy, resulting in treatment rates that are onetenth the rates in prisons providing more effective care.
Overall, the report concluded that there is no consistent
practice of care and that efforts are needed to have adequate
medical staffing and other resources at all prisons and to
standardize the care provided chronically infected inmates
comparable to the care available in the community.
For several years, the CA has supported the proposition
that the state Department of Health should monitor healthcare
in the prisons, as it does for medical care in the rest of the state
pursuant to Article 28 of the Public Health Law.34 DOH has
resisted this effort, even though in 1988 and 1992 DOH
performed audits of several state prisons and found significant
problems in care. Finally this year, both houses of the state
legislature passed a provision to require DOH to monitor the
care of inmates with HIV and/or hepatitis C in state prisons
and local jails (A.903 (Gottfried), S.3842 (Duane)).35 Governor
Patterson signed the measure, despite objections from both
DOCS and DOH, on September 16, 2009.36
The new law provides in subsection 26 of Section 206 of the
Public Health Law:
The commissioner [of DOH] is hereby
authorized and directed to review any policy or
practice instituted in facilities operated by the
department of correctional services regarding
with HCV. CENTER FOR DISEASE CONTROL, DISEASE BURDEN FROM VIRAL
HEPATITIS A, B, AND C IN THE UNITED STATES, available at
http://www.cdc.gov/hepatitis/PDFs/disease_burden.pdf.
34. N.Y. PUB. HEALTH LAW § 2801(1) (McKinney 2007). This section
defines “hospital” for the purpose of DOH oversight under Article 28 of the
Public Health Law. In 2009, bills were introduced in both houses of the state
legislature to alter this definition to explicitly include correctional facilities
during the last legislative session but these bills were not voted upon in
either house. See ASS’N OF THE BAR OF THE CITY OF N.Y., REPORT ON
LEGISLATION BY THE CORRECTIONS COMMITTEE (2009), available at
http://www.nycbar.org/pdf/report/HealthCare_Prisons_Corrections_Report062
409.pdf.
35. Assem. 903, 232d Leg. (N.Y. 2009).
36. N.Y. PUB. HEALTH LAW § 206(26) (McKinney 2010).

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human immunodeficiency virus (HIV), acquired
immunodeficiency
syndrome
(AIDS),
and
hepatitis C (HCV) including the prevention of the
transmission of HIV and HCV and the treatment
of AIDS, HIV and HCV among inmates. Such
review shall be performed annually and shall
focus on whether such HIV, AIDS or HCV policy
or practice is consistent with current, generally
accepted medical standards and procedures used
to prevent the transmission of HIV and HCV and
to treat AIDS, HIV and HCV among the general
public. In performing such reviews, in order to
determine the quality and adequacy of care and
treatment provided, department personnel are
authorized to enter correctional facilities and
inspect policy and procedure manuals and
medical protocols, interview health services
providers and inmate-patients, review medical
grievances, and inspect a representative sample
of medical records of inmates known to be
infected with HIV or HCV or have AIDS. Prior to
initiating a review of a correctional system, the
commissioner shall inform the public, including
patients, their families and patient advocates, of
the scheduled review and invite them to provide
the commissioner with relevant information.
Upon the completion of such review, the
department shall, in writing, approve such policy
or practice as instituted in facilities operated by
the department of correctional services or, based
on specific, written recommendations, direct the
department of correctional services to prepare
and implement a corrective plan to address
deficiencies in areas where such policy or
practice fails to conform to current, generally
accepted medical standards and procedures. The
commissioner shall monitor the implementation
of such corrective plans and shall conduct such
further reviews as the commissioner deems
necessary to ensure that identified deficiencies in
HIV, AIDS and HCV policies and practices are

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corrected.
All written reports pertaining to
reviews provided for in this subdivision shall be
maintained, under such conditions as the
commissioner shall prescribe, as public
information available for public inspection.37
Given the recent enactment of the law, the CA has not had
an opportunity to discuss the implementation of the measure
with DOH officials. The CA will attempt to engage those
responsible for implementation of the law within DOH in a
dialogue about: (1) how DOH will monitor the prisons; (2) how
it will invite public participation in the monitoring process; (3)
how the mechanism for public review of the agency’s findings
will operate; and (4) how the outside agencies such as the CA
can access DOH’s findings and the prisons’ responses if there is
a determination that a corrective plan is necessary. The CA
will also attempt to provide assistance to DOH in developing its
protocols and in determining the issues it will address during
its monitoring activities.
D. Analysis of the CA Role in Prison Monitoring When Other
State Agencies Exercise Some Oversight Responsibility
The CA has been an advocate for the three legislative
measures described herein because the laws require state
agencies with expertise to assess existing prison conditions and
practices in the provision of the complex services associated
with healthcare, mental health services, and substance abuse
treatment, subjects about which DOCS has limited expertise
and which traditionally have been given less priority than
DOCS’s primary mission to maintain custody and control of its
inmate population. While DOCS administration can rightfully
assert they are not in a position to second-guess their medical
staff, mental health providers, or substance abuse counselors,
the monitoring agencies can make professional assessments
about the quality of care being provided, findings that will be
made public and require corrective action if found to be

37. Id. The law also specifies that DOH shall perform the same reviews
for local correctional facilities, but implementation of the jail-based
monitoring is delayed for two years after the law is enacted. Id.

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contrary to community standards. Consequently, these laws
provide an opportunity for: (1) the actual practices in prison to
be more transparent; (2) prison policies and practices to become
comparable to care in the community; (3) DOCS and OMH to
be held accountable for the care being provided; and (4)
meaningful remedial plans to be developed and implemented
when deficiencies are noted.
Another potential ancillary benefit from these laws is that
requiring the attention to prison conditions of agencies
primarily responsible for care in the community for health,
mental health, and substance abuse services may lead to
improved connections between community-based providers and
prison treatment providers. With the current focus both
nationally and in New York on enhanced re-entry services, the
involvement of OASAS and DOH in prison services opens many
more possibilities for better coordination of care and facilitation
of direct contact and better communication between providers
in the prisons and community providers who inevitably treat
the formerly incarcerated population.
There are risks, however, associated with this new
paradigm that could impede change. The three monitoring
entities—CQC, OASAS, and DOH—are all state agencies
under the direction of the governor. They are dependent upon
funding provided by the executive in its budget and are
potentially vulnerable to political pressure from their sister
agencies or the executive if a monitoring agency’s findings and
recommendations could embarrass the administration or
subject the state to significantly enhanced costs to implement
any remedial plan.
Unfettered access to records and
information is not clear in each law, and the agencies’ ability to
assess conditions and practices will be severely limited if they
are not provided with sufficient staff to perform the arduous
monitoring tasks at more than sixty state prisons and, in the
case of DOH, more than fifty jail facilities throughout the state.
Currently, these agencies have limited experience in the
prisons and it will be difficult for them to penetrate these
cultures, which are generally resistant to outside inspection
and dialogue. When these agencies issue their reports, it is
inevitable that DOCS, OMH, the governor, and the legislature
will give great weight to their findings and recommendations.
If these monitoring agencies conclude that practices are

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adequate, even though problems still exist at the prisons,
outside agencies such as the CA will have a very difficult task
convincing governmental officials to take action. Although the
monitoring agencies will not be the sole decision maker
concerning the adequacy of care in the prison, their power to
influence those determinations will be substantial.
Given the potential for significant improvements in prison
practices, while remaining justifiably concerned that the
process could be compromised, the CA will have to enhance its
activities to not only monitor the prisons, but also evaluate the
effectiveness of the new monitoring processes. These laws alter
the relationship of the CA to the primary providers of these
services, both DOCS and OMH, in the case of mental health
care. DOCS and OMH will no longer be the sole arbiters of
what policies and practices will be employed in the prisons, and
to varying degrees, those policies will be influenced or even
determined by the monitoring state agencies. DOCS and OMH
may deflect CA requests for change, asserting that they are
bound by the determinations of the monitoring agencies,
thereby delaying their response to identified problems and
avoiding their obligations to provide competent care. The CA
and the legislature should insist that the monitoring activities
in these legislative measures do not relieve DOCS and OMH
from providing care comparable to community standards but
are intended to assist them in identifying problematic areas
and providing expertise in how to address noted deficiencies.
The CA will press DOCS and OMH to respond directly to CA
findings about practices in the prisons, but it must be
recognized that in some situations, these agencies may not be
able to implement some of the CA recommendations without
the agreement of the monitoring agencies.
Consequently, the CA must engage the monitoring
agencies both by informing them of CA findings and
recommendations and by advocating with those agencies for
implementation of corrective plans that will adequately
address deficiencies in care revealed in the CA’s monitoring
work. In doing so, however, it is crucial that the CA not be
seen as an adversary by the monitoring agencies. The CA and
these agencies have much in common in terms of assessing
fairly and accurately the actual practices in the prisons and
developing feasible measures to correct identified deficiencies.

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The CA’s long history and experience can be valuable assets to
agencies that are new to monitoring prison conditions. The CA
can assist the monitoring agencies in identifying problematic
practices by alerting them to areas that the agencies may want
to investigate, incidents that may exhibit systemic flaws, and
individuals the agencies may seek to interview. The CA’s work
product will in no way substitute for the monitoring agencies’
independent assessment, but it can help focus and facilitate the
monitoring agencies’ investigative process. In addition, the CA
can suggest measures to improve practices that are feasible
and cost-efficient. In order to support comprehensive and
effective monitoring, the CA will be an ally in seeking adequate
funding for these monitoring agencies, which will need
resources to perform their tasks. Finally, the CA can advocate
with the executive and legislature for any remedial measures
proposed by the monitoring agencies that may require
significant expenditure of state funds, supporting their
conclusions and endorsing their recommendations.
The CA has been effective in part because it is independent
of state government. It can publicize facts that may be
disturbing to government officials and the public about the
mistreatment of incarcerated individuals who often are held in
low esteem and even vilified. The CA has recommended
improved treatment despite the limited political power inmates
and their families have with lawmakers and the general
populace. While doing all it can to assist the monitoring
agencies in their investigative processes and supporting their
findings and recommendations where appropriate, the CA will
also have to maintain its independence from these agencies so
that it can fairly assess the effectiveness of the monitoring
process in identifying and correcting problems in the prisons.
The new laws hold great promise for change, but how that
process is employed in revealing deficiencies and correcting
problems will ultimately determine whether this promise is
realized.
Conclusion
The unique legislative authority granted the CA, and its
long history of monitoring prison conditions and practices,
gives the organization a unique perspective on how outside

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monitoring can have a significant positive impact on a
corrections system. Given the generally closed nature of
correctional institutions and the lack of political or public
mechanisms to make these institutions accountable, it often
falls on non-governmental organizations such as the CA to be
society’s camera and report on what is actually happening
inside prison walls. New York’s new legislative measures place
the state in the forefront of efforts to expand the transparency
of prison practices and to enhance the accountability of prison
administrators. They also increase the potential for evidencebased practices and community standards of care to be applied
to the treatment of inmates. It is far too early to judge the
effectiveness of this new paradigm, but this legislative scheme
holds much promise. With assistance from the CA, efforts by
these monitoring agencies could result in improving essential
services and demonstrating to the nation that partnerships
between corrections and state agencies overseeing professional
services can be effective and in the public’s interest.
Improving the treatment of inmates—by vigorous
oversight and greater accountability for the administration of
our correctional systems—is long overdue. In too many cases,
incarcerated individuals are returned to society less able to
function effectively than when they entered our prisons. This
is a lost opportunity to educate, treat, and rehabilitate
individuals who need assistance. When we effectively care for
individuals inside our prisons, they are better able to function
in the community and less likely to return to the prison.
However, improving care in the prisons not only helps the
incarcerated population but is also crucial for the public’s
health and well-being.
Reducing disease, and effectively
treating chronic medical conditions, mental illness, and
substance abuse in our correctional facilities, is not only a
moral imperative, it is also fiscally responsible and a critical
step in moving toward a more effective prison system and a
safer society.

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