12 2013

Vol. 13 Number 4: Fal12003

Published hyPrisoncrs' Legal Services of New York

SUPREME COURTAFFIRMS STRICTLIMITS ON PRISON
VISITATION
The Supreme Court affirmed strict
litnitat10ns on prison visitation this past terrn~ in
a case which, although it arose in Michigan, is
likely to have implications in New York. Using
unusually broad language, the Court held that
the regulations - among the strictest in the
nation - were constitutional because they were
"rationally related to a legitimate penological
objective" and because inmates prohibited from
having visitors by the rCt,'ltlations have
alternative tneans, such as letter writing, to
maintain contact with the outside world. The
case, Overton v. Bazzetta, 123 S.Ct. 2162 (June
16,2003) was decided by a 9-0 vote.
The case is likely to affect inmates in
New York because the Department of
Correctional Services is known to be revising its
visitation policies - with the goal, in part, of
increasing the use of visitation restrictions as
means of punishing inmate misbehavior. Many
of the changes that DOCS seeks in its visitation
program had previously been blocked by the
federal courts. Overton makes it more likely
such cbanges will be permitted.
The regulations upheld in Overton
impose non-contact visitation on all high
security inmates, limit visits from children under
the age of eighteen to the children,
t,'l'andchildren or siblings of inmates and allow
the suspension of all visitation for inmates who
commit two or more substance abuse violations.
Both a local district court and the Sixth Circuit

Court of Appeals had found that the regulations
impermissibly infringed on inmates' rights to
frcedot11 of association and to tnaintain contact
with family members.
In overruline: those decisions the
Supreme Court held that prisoners' freedom of
association is extremely limited. "fFJrcedom of
association is among the rights least compatible
'with incarceration," the Court 'wrote, and "SOfilC
curtailment of that freedom must be expected in
the prison context." (Continued 011 pqge 2)
,0

Also Inside ...
DOCS Imposes New Phone
Home Rates

.

Assemblyman Introduces Bill
for Inmates With Mental Illness....
New Federal and State Cases
That May Affect Your Rights
Ouestions and Answers About the
DNA Databank

.

page 18

This projed nltJS SlpptJrted ly alfran! administered ly the New York SttJte Dim:fiotl 0/ CriminalJustice Smices. Point. oj ~iew in thz:r document are th()J2
oj the authar and do 110t luteUt.triiy represent the rdJitialpositWn orpolicies if the Division tif Cn'mina1 ]nslue Sen-icu.

Pro Se Vol. 13 No.3 Pag<: 2

The only question to be asked about the
Michigan regulations, tbe Court held, is whether
they "bear a rational relation to legitimate
penological interests." If so they should bc
found to bc constitutional.
The Court had little trouble finding that
the reQulalions did bear a rational relation to
'" penological interests. For example, the
legitimate
Court set aside the plaintiffs' contention that
prohibiting innlates' minor nieces and nephews
tinnl visiting bore no raticmal relationship to
ocnolo('ical
interests. The Court held that the
t
<.:>
restriction was rationally related to the pt~son
SYStCt11'S interests in "tnaintaining internal
security and protecting child visitors from

prohibition against crud and unusual
punishment, the Court responded bluntly:
[111e ban) lllldoubtedly makes the
prisoner's ((mtl.nement tnorc diHicult
to bear. But it <kJes not, in the
circumstances of this case, Edl IJelow

the standards mandated by the J\ighth
Anlcndmcnt ... f\.·1ichigan, like rmmy

other States, uses withdrawal of
vJsitation privileges for a limited peric)()
as a regulation means of effecting
prison discipline.TIlis is not a dr~linatic
departure from accepted standards for
conditions of conf1nement. Nor does
the regulation creat.e inhU1uane prison
conditions, deprive innlates of basic
necessities or Elil to protect their health
;'lIld safety. Nor docs it involve the
intliction of pain or mjury, or
deliberate indift't:rcnce to the risk that
it might occur.

exposure to sexual or other n1isconduct or from

accidental injury." Such a. restriction, the (':ou1't
held, "promote[s] internal security, perhaps the
most legitimate of penological interests ... hy
reducing the total number of visitors and by
limiting the dismption caused by children in
particular." "To reduce the number of child
visitors~ a line 1l1ust be drawn, and the categories
set ont by these regulations arc reasonable."
The Court similarly upheld the
regulations' ban on visitation for innutes with
two or 1'nore substancc~abuse violations. This
restriction, the Court f~)tmd, "serves the

legitimate goal of deterring the use of dmgs and
alcohol within the prisons." "Dmg smuggling
and dnlg use in prison arc intractable problelTIS
the Court \vrote, ,md "[w]ithdrmving visitation

.[,he Court thus upheld the most severe
visitation rcsttictions, the ban ()t'l all visitation
ft,r intnates. convicted of two or 11'10re substance

()f

abuse violations, on the ground that it was
"rationally related" to a legitimate penological
obJ'eelive and did not violate inmates' Eid1th
"
Arnendrnent rights.

l1

privileges is a proper and even necessary
rnanagcrnent technique to induce compliance

with rules of inmate behavior, especially for
high-security prisoners who have few other
to lose."
l)rivilcp'cs
"
The Court rejected inrnates' argurnents
that a two-year ban on visitation was ovcdy
SCV(,:tc and \vas sometin1es imposed in cases
involvino'
only minor rule violations. "\Vc ~u"ree
b
0
the n,:striction is severe," wrote the Court, but
"we \vill not substitute our judglnent for that of

prison oftlcials concerning either the infractions
reached by the regulations nor the length of the
restrictions inlposed."
To inrnatcs' clainls that a complete ban
on visitation violated the Eiehth Amendment

"

DOCS In..titutes New Rate StnIctllre flU
Phone-Home Progral11 Bllt Retain.•
Criticized Commis,.iollS
The

Department

of

COl-rectional

Services has instituted a new rate structure for
its phone~h(Hne prograrn in an cffc)rt, it says, to

increase t'lirness anti reduce fees for the
majority of calls. Advocates fof' innl<ltes and
thcit familie.s, however, are criticizing the new
""tes because they neady douhle the rates of
some calls, \vithcmt

reducing

either

the

overall costs of the pmgram or the enormous
commissions ])()CS receives fwm it.

Pro Se Vol. 13 No.3 Page 3

Under the new system, DOCS has
abolished the old rate categories for inmate
phone calls - of which there were 126,
depending on the time of day, day of tl1e week,
distance of the call and other factors - and
replaced them with a flat rate of $3.00 per call,
plus 16 cents per minute. The new rate
struchlre went into effect on September 14,
2003.
According to figures supplied by
DOCS, the new rates will result in a modest
reduction of the cost of a long distance call,
which constitute more than 800;;, of inmate
phone calls. For exmnple the cost of a
nineteen minute illterlata call - a long dis!<Ulce
call within the state but not within the s;Ulle
area code - has decreased from an average cost
of $6.44 to $6.04 under its new plan.
The cost of a local (or itttmiata) call,
however -- onc made within the same area
code - has doubled in price. For example, the
cost of a nineteen minute local call rose, under
the new rate structure, from an average of
$3.02, to the same $6.04 now ~"lid for a
nineteen minute long distance calL
DOCS notes that the new rate system
is "revenue-neutral,H which nleans that the
overall profits made by the telephone company
from the phone-home program - as well as the
hefty commissions it pays to DOCS for the
privilege - remain the same. This is because
the modest reduction in the price of a long
distance call is made up for by the sharp
increase in the price oflocal calls.
Critics charge that all calls could be
significantly less expensive if DOCS did not
take such a big percentage of the profits. Under
DOCS' current telephone contract ('with MCl)
it receives a 57.5'10 percent COffill1ission on the
revenues made by the phone-home program.
In the 2001/2002 fiscal year, this translated to
$22.4 million in extra revenue for DOCS. This
year alone DOCS predicts receiving more than
$23 million in commissions from the phonehome program. Critics note that since all
inmate phone calls must be placed collect, that
money is coming from the pockets of inmates'
friends and family.
DOCS, however, defends its new rate
stmcture as being responsive to prior criticisms
that the phone-home program was too
expensive. DOCS points out tJ1at the new

system reduces the rates for more than 80% of
inmate calls. It also argues that by standardizing
the rate it allows inmates and their families to
know in advance what the cost of a call will be
- something tJ1at was almost impossible when
there were 126 variable rates. Although DOCS
concedes that rates will rise substantially for lotal
calls, it argues that this is only fair, because
family members and friends of inmates who live
within a local calling area of the inn1ate's prison

are generally more able to visit than those living
in different area codes. Thus, DOCS argues,
raising the rates on calls received by them is a
reasonable way of lowering rates for the
majority of calls, which are received by persons
who do not live close to prisons.
Criticisrn retnains, however, since the

new rate structure does nothing to reduce
DOCS' overall commissions from the program,
and consequently does little to bring the high
costs of an inmate telephone call in line with
those of the general public. DOCS counters
that the high commissions are needed to pay
for the sophisticated security costs ;Lssociated
with a prison telephone program that regular
consumers don't have to pay for, such as the
PIN number system and the ability to monitor
and trace inmate telephone conversations.
DOCS also points out that inmates, unlike
other consumers, are not required to pay the
maintenance fees and taxes for their telephone
service - fees which often total $30.00 per
tTlonth for the average consumer. Finally,
DOCS argues, the commissions are used to pay
for a range of inmate heneflts which the State
Lesrislahlre would be unlikely to support from
general ta-x revenucs. These include such things
,tS cable television service, free bus service for
visiting family members, the Family Reunion
Program, the medical parole program and the
nursery and fan1ily development program at
Bedford Hills, wbich allows incarcerated
mothers to stay with their infant children.
"Inmates do not have a right to make telephone
calls," saidJames B. Flateau, DOCS spokesman.
"If they arc going to make phone calls, we
believe it is Stllart to charge a comnlission and
use the funds to offset the costs that taxpayers
pay for inmate programs."
Critics point out, however, that out of
the $23.4 million in commissions anticipated
tJ1is fiscal year, the state reports that only

Pro Se Vol. 13 NQ. .3 Page 4

$330,000 is spent annually for the operation
and maintenance of the phone equipment.
Purther, almost 75'1., ofthe revenue received by
DOCS from the phone-home program - $17.6
million of this year's anticipated $23.4 millionis used to pay for medical costs, including
AIDS drug, and training for medical staff.
These are costs, critics argue, which the State
has a responsibility to pay [(Jr, and which
should theret()re be shouldered equally by all
taxpayers Taking the money tI'om the phonehOlTIe prc)gr;un, the critics charge, atnounts to
irnposing a regressive tax: on s<)me of the
poorest citi7,ens of the state - the family
tnernbcrs of inmates. Referring to the provision
of medical care to inmates, Robert Gangi,
Executive Director of the Correctional
Association (Jf Ne\v York, a non-profit group
that nlonitors prison conditions states: "That is
the government's responsibility. It should not
impose an unt~lir burden on intnates' friends
and bmilies to pay part of that bill." "The
fan1ilies have done nothing wrong, Sf) why are
they being taxed?" asked William T. Martin, a
ht\vyer representing innute fatTIilies in New
York.
Friends and family members ofinmates
have brought a variety of lawsuits alleging that
the fec-sto1Cture of the phone home program
is unfair. One such lawsuit, brought in state
court, was recently dismissed on the grounds
that the court had no ~luthor1ty to revie\v rates
that had already been approved by the Public
Service Commission (pSC). In dismissing the
complaint, the trial court stated: "Telephone
companies may not deviate from the rates liled
with the PSC (Public Service Commission) or
PCC (Federal Communications Commission)
without tiling. and receiving al)proval of the
new rates. Although c1aitnants rnight have
sought rate relief from the PSC for the
intrastate calls at issue here, it does not appear
that claimants ever chose to do so." Bullard v.
State, (N.V. Ct. of Claims No. 103138, May 1,
2(02), ajJ'd, 763 N.Y.S.2d 371 (3d Dcp'tJuly 31,
2(03). In so holding the court indicated that
had the claimants sought rate relief from the
PSC, the PSC would have had the authority to
review that request.
Another lawsuit, a federal class action,
has been brought by the law firm of Levy,
Phillips & Konigsbcrgtogetherwith the Center
)

-:;)

for Constitutional Rights. That lawsuit, BestDeveaux, et al v. Goord, et 'II, alleges that the
agreernents between DOCS and MCI violate
the 1" and 14'" Amendments in that they
burden the right to freedom of speech and
association guaranteed to plaintiffs under the
Constitution; plaintiffs' due process rights;
plain tiffs' righ t to contract under Article 1
Section 10 ofthe Constitution; and various antimonopolization and accounting laws. That
lawsuit is still pending.
In response to DOCS' rate change
proposal, Prison [iamilies of New York, an
advocacy organization, delivered a petition
containing thousands of signatures to the PS(:.
The petition calls on the PSC to hold public
reRarding·
the fairness of DOCS'
hearinos
t)
"-,
:>
phone-home program. Alison Coleman,
director of Prison Families of New York, notes
that many other states use calling cards or allow
direct di:lling. Those calls are not as expensive
for the consumer hut "they are still affording
those states and the federal govemment some
rnoney.'? I\-{s. Coletn~Ul .asserts that prisoners'
friends and families want to aud should be
involved in a decision-making process that
ultimately affects them. "\'(Ie are the
consurners," she said.
'[I1e I)S(~'
.
I
,.~ IlaS SIXty
cays
trom
tI Ie
implementation of the new fee stolcture to
consider petitions and letters of complain t and
to determine whether hearings into DOCS' new
rate structure arc appropriate.

A Bill to Im'frove Treatment of Inmates
With Menta Illness Introduced in the
AS,'1embly
A lnCStmge frorD TorIl Terlizzi, PLS E.¥t:-'cutirc
Director

The chair of the New York State
Assembly Corrections Committee, Jeffrion
Aubry, has introduced groundbreaking
legislation intended to improve the treatment of
people with mental illness in prison.
The bill would establish several
"psychiatric correctional [~lcilities" to be located
at each of DOCS' re"jonal hubs. The Elcilities
would be operated jointly by the Off1CC of
Mental Health and the Department of
Correetion,il Services, bnt all decisions
concernIng treattncnt, conditions ( ) f
c'

Pro Se Vol. 13 No.3 Page 5

conftnement and discipline would be subject to
the approval of the OMH Clinical Director.
The day to day operation of the facilities would
be DOCS' responsibility.
The bill would also exclude inmates
with serious tnental illness fr01n isolated
conftnement related to inmate discipline and,
instead, provide a mechanism through which
such inmates may be refetTed, assessed and
transported to a psychiatric correctional t;lcility.
The facilities would provide medically
appropriate custodial care, supervislOn,
treatment and, where appropriate, discipline,
for inmates with serious mental illness.
The bill also requires the establishment
of a mental health transitional services program
to be run by 0 MH, to prepare inmates for
entry back into the community. The program
would provide for continuing mental health
care upon release, insure advanced applications
for Medicaid are tiled and make referrals to
outside mental he.alth, educational, vocational
and housing serv1ccs.
In 'justitication for the bill,
the
Assembly sponsors noted that the incidence of
serious tnental illness atnong intnates 'within the
state prison system has increased significantly
in recent years. Currently, approximately 12
percent of the prison population - some 8,000
inmates -are affected by serious mental illness.
ShJdies havc shown that when this population
is disciplined using solitary conttnetnent,
intnates engage in acts of sclf-rnutilation and
commit suicide at a rate three times higher than
inmates in the general prison population.
Furthermore, inmates with serious mental
illness often experience a continuing cycle ()f
tnental deterioration in solitary confinenlCnt~
followed by periods of in-patient care in a
psychiatric hospit;ll, followed by a return to
solitary conlinement. One corrections oHicer
described mmates who experience this
phenomenon as being "like a ping pong ball,
bouncing between punitive segregation and
Central New York Psychiatric Facility."
"'nle correction system has become the
largest mental health facility in the state, but
people with serious mental illness do not
belong in 23-hour lockdown in special housing
units," said Assemblyman Jeffrion Aubry, when
he opened public hearings on the bill in
Rochester in October. The hearings are being
co-sponsored by the Assembly Corrections and

Mental Health Committees, Assemblyman
Aubry contends this bill will recognize the
inhumanity and counter-productive nature of
certain f,)tITIS of punishment for inmates who
have serious mental illness. He stated that bettcr
trcattnent will insure lo\ver rates of recidivlstn
and relapse when such prisoners are released
from prison, as well as make the prisons easier
to tnanage ,uld safer for staff and intnlltcs alike.
The Assembly Committees will be
conducting hVO additional hearings. The next
hearing is scheduled for November 18, 2003 in
New York City and the linal hearing in Albany
on January 13, 2004. Advocates for prisoners,
people with mental illness, psychiatric experts,
family members of inmates who are mentally ill,
and fonnerinmates will testify at these heatings.
The Depat"ttnent of Correctional
Services and the Offtce of Mental Health have
not yet commented on the proposed legislation.
Anyone
can
subtnit
conlnlcnts
regarding the hill, Assembly Bill No, A08849. If
you would like to have input into the process,
please send your written conltnents to
Assemblyman Jeffrion Aubry, 526 LOB,
i\lbany, NY 12248,

Federal Cases

r

Amendment - Freedom ofReligion

COllrt Rejects DOCS' B,m on "Five
Percenter" Literature and Pr'lcticesj Finds
Nation to be Legitimate Religion
MatTia v, Broaddus, 2003 \V'L 21782633
(S.D.N,Y, July 30, 2(03)
A federal district court in New York has
reversed the Department of Correctional
Services' long-standing ban on Five Percenter
Iiterahlre and practices, holding that the ban
violated an intnate's right to freedorn of
religion. The decision, a breakthrough in New
York, is the tirst time that the Five Percenters
and their religion, the Nation of Gods and
Earth, have been given legal recognition.
In its opinion, the court stated the
Nation of Gods and Earth is an offshoot of the

Pro Se Vol. 13 No.3 Page 6

Nation of Islam. It teaches that only five
percent of people teach the identity of the true
and living God, as well as freedom, justice, and
equality to all human bmilies. In contrast to
the Nation of Islam's belief that Allah appeared

interest" in maintaining the ban .. According to
the court, DOCS "f~tiled to provide any
evidence fhat its decision to treat 'Five
Percenters' as a security threat \vas either

reasoned or informed." DOCS could produce

on Earth in the person of its founder~l\Jaster

no evidence concerning its initial decision to

Fard Muhammad, the Nation of Gods and
Earth professes the belief that every black man
is an embodiment of God, with the proper
name Allah.
The court noted that the New York
DOCS, like almost -all corrections departments
across the country, has long considered the

treal: the Nation as a gang and not a religion and
its witnesses admitted that they could do no
more than speculate about why the decision was
tnadc or what evidence was used to tnake it.
The court found that DC)CS' decision to label
the Nation a security threat was based solely
"on the subjective sense of the decisionmakers ... that the group as a whole was a
gang." "However," the court ·went on, "'it is
clear that DOCS knows little ahout the Nation's
seemingly legitimate existence outside prison"
and DOCS' litigation position that Five

Nation to be nothing tnore than a violent gang,

and therefore refused to recogni%e it. It has
also prohibited its adherents from congregating
in groups of tnorc than five, receiving Nation
literature or olnervingvarious Nation practices.
The district court, however~ in a long

and carefully considered decision, found that
DOCS' decision to treat Five Pen:enters <IS a
security threat was neither well reasoned nor
well informed.
In addressing the inmate's challenge to
DOCS' policy, which was brought by inmate
lL'lshaad Marria, also known as Intellil'cnt
C'
Allah, the court first considered whether the
intl1atewas sincere in his belief in Nation
principles and, second, whether those
principles could properly be considered a
religion. To both questions, the court found
that the answer was yes.
The court then applied the provisions
of the Heli!~ous Lllld Usc and Institutionalized
Pel'$ons Act, 42 U.S.c. § 2000cc-l(a)
("RLUIPA"). RLLJIPA, which provides
broader protections to the religious activities of
inmates than does the Federal or State
Constitutions, which states, "[n]o govcrtunent

Percenter literature contained violent tllessages
"indicates that it was tnisinformed about at

leasl: that
aspect of the Nation ...
and sug-gests that its treatment of the Nation
exclusively as a gang may be based on either
exaggerated fears or speculation." The court
continued:
That is not to say tha.t there arc not
pnsonel's who would describe
thetl1.c;elvcs as Five Percenters who
have cOl1unitted crimes or othenvise
violated pnson regulations.
IHowever] there arc prisoners who
would describe themselves as

Catholics, Protestants,Jews, Muslims,
N()T, etc. who likewise violate priscHl
reg"ulations. . but no one would
sug~!;est that such facts preclude the
classification of these recognized

g;roups as religions deserving of First
AIIlcndment protection.

shall impose a substantial burden on the
religious exercise of persons residing in or

confined to an institution . . . unless litl
demonstrates that imposition of
the
burden ... is in furtherance of a compelling
governrncntal interest and . . . is the least
restrictive tneans ()f furthering that . . .

interest." The court easily found that DOCS'
complete ban on Five-Percenter literature and
practices caused a '·substantial burden}) on the
intnate's exercise of his beliefs.

Next, the court addressed whether
DOCS had a "compelling governmental

After finding that DOCS' cornplete ban
on Nation literature or practices violated
i\1arria's 1sl Anlendlnent rights,

the court

ordered DOCS to allow him to obtain a copy of
"120 DCF:.,,-rccs," the central text: of Natton
beliefs and practices, the Suprerne Alphabet and
Mathematics, a book of numerological devices
central to Nation beliefs and pl-actices - all
previously banned- and to re-evaluate its ban
on The Fi"e l'ernmtet; the Nation newsletter, by
either passing it through the media review
committee and/or making it available in the

Pm Se Vol. 13 No.3 Pi:lf'"e 7

prison library. The court also ordered DOCS to
determine what can be done "consistent with
. concerns " to accotntno date I..\' arna
{" s
secunty
requests to participate in supervised Five
Percenter g'athering$, and to receive late meals
and gather with other inmates on Nation bst
dates.

I11mate Prevails
TB .'ikm Test

m Religiolls CJlal1e11ge

to

Selah v. Goord, 255 F.Supp.2d 42 (ND.N.Y.
2003)
An inmate claiming a religious
opposition to a tuberculosis skin test convinced
a federal judge that New York's policy of
conttning, for at least one year, prisoners who
refuse to submit to a TB test for religious
reLsonS "appears entirely arbitrary and
irrational." The Judge, 'rhomas McAvoy,
issued a preliminary injunction ban'ing the state
from adrninisterinp the skin test to the 1.1laintiff
"
while the action is pending. The case is one of
several elashes between the First Amendment
riphts
of prisoners and the state's interest in
c,
prcvenlingthc spread of a highly infectious and
potentially deadly disease.
The case involved an inmate named
Selam Selah. Selah, an Ethiopian Orthodox
Christian, contends he is spiritually opposed to
taking the annually required purified protein
derivative (PPD) skin tcst, which is used to
detect latent tuberculosis. Prisoners who rehlse
the test are placed on "tuberculin hold," which
rueans they are generally confined to their cell.
DOCS contends the test - required of bc)th
intnates and staff - has resulted in a dran1atic
reduction in the incidence ofTB in New York
pnsons.
Last year, Judge McAvoy concluded
that Selah's religious objections to the PPD test
were sincere - a pre-requisite to establishing his
First Amendment claim. The judge also found
that the PPD testing procedure burdened his
constihltional right to practice his religious
beliefs.
A prison practice or policy which
burdens constitutional rights will nevertheless

be permitted so long as it is rationally related to
a legitimate penological objective. Thus, at issue
in the latest phase of the case was whether
DOCS' policy of imposing a one year
cont1nement hold on all inmates who refilse to
take the PPD test was rationally related to a
lei,>1timate penological objective. Since the
plaintiff at this stage was only seeking a
preliminary injunction pending the final
outcome of the trial, the jndge focused only on
whether be had a "likelibood of success" on the
ll1erits.
The evidence in the case showed that
when an inmate is hlrtled over to DOCS, he or
she is subjected to a PPD tcst and chest x-ray to
detect the presence ofTB. Inmates who refuse
the PPD test are first counseled as to its
importance. Then, if tbey continue to reftlSe the
test, they are placed on hlberculin hold, where
they are routinely offered the test and regularly
tnonitored for signs of active disease. Prisoners
remain in tuberculin hold for one year.
Selah had consented to PPD tests in the
past and was willing to undergo other noninvasive procedures, such as a sputum test and
x-ray exam. He claimed, however, that a literal
reading of Leviticus 19:28 - which prohibits
111aking"any cuttings in your flesh" -coll1pelled
him to refuse to submit to skin tests like PPD.
The state advanced several rationales for
its one·year tuberculin hold policy. It argued
that the threat' of confinement coerces
complianccwith the testing policy. Additionally,
it rnaintained that the policy limited contact
with other individuals during the critical (irst
year following exposure to TB, when there is a
tveater chance that latent TB may be converted
into active, contli~OuS 113.
Judge McAvoy, however, observed that
Selah had consented to a shorter stay on
tuburculin hold, one that would allow fex a
spuhlm test to cont1rm that he did not have
active TB. He found no reason to require
prisoners to spend a longer period of time in
relative isolatlon.
The court did find reasonable the state's
arg;ulnent that it ,needs to quarantine an inrnatc
\vho ll1ay he contagious. Flowever, the court
held, while that makes sense for inmates newly
admitted to the prison system, it does not

Pro Se Vol. 13 No. 3

Pa.gt~

8

make sense for prisoners like Selah, who had
previously undergone PPD testing and were
found to be negative. "The court can find no
difference between an inmate who has
completed a year on tuberculin hold, and is
tI,US excused from annual testing~ and Selah,
who has previously been determined to be
neg::ltivc."
The state also expressed concern that
accommodating Selah's religious objections
would result in a flood of similar actions by
other inmates. It noted that since Reynolds v.
("';oord, 103 F.Supp.2d 316, a Southern District
case involving a Ras tafarian, was decided in
1999, three similar cases have arisen in the
Northern District. In Reynolds a district court
barred the state from f<m:ing a prisoner to
undergo a skin test or from placing the inmate
on one-year tuberculin hold.
Judge McAvoy, however, found that
three cases in three years hardly suggests that
litigation has opened a "floodgdte" for religious
objectors. He also observed that the state has
no statistics of the number of religious
objections to ti,e test.

9]' Amendment - Cruel and l!J1Usual
Punishment
No 9 h Amendment Viol,uion Found in
DeJay ofH"lV Treatment
Smith v. Carpen ter, 316 [i.3d 178 (2d Cir. 2003)
Mr. Smith, the inmate plaintiff in this
case, was being treated for HIV, the virus
which causes AIDS. The treatment consisted
l'
1 to prevent
o f' a d.rug " cae k-tat'I" (eslgntX
detet10ration of the immune system and slow
the progression of the HIV infection. On two
occasions in 1998 and 1999, the defendants,
prison officials, failed to provide Smith with his
HIV medicat1on, in the first instance f,)r five
days, and in the second instance for seven days.
Smith sued, alleging that ti,e failure to provide
him with his medication violated his rights
under the Eighth Amendment.
[n order to establish an EifYhth
<'
i\lTIcndment claim arising out of inadequate
medical care, a prisoner must prove both an
"objective" prong - that he suffered from

"serious" n1cdical needs - and a "subjective l '
prong tI,at the defendan ts acted with
"deliberate indifference" to those needs. The
issue in this case was whether the presence of
HIV infection is sutlicient, standing alone, to
tneet the "serious needs" test of an eighth
3tllcndment c1airn.
At trial, defendants produced a medical
expert who agreed thatmissingHIV medication
can be ham1ful in some circumstances" leadin2:
"
to viral mutation and drug resistance. He went
on to testify, however, that in this GLSe the
plaintiff had sufTered no injury. His medical
records showed no evidence that he had
developed any resistance to tl1e drug treatrnent
and his "viral load" - the measure of body's
resis tance to II IV - had actually increased
durinfY his incarceration.
" With that in mind, the jury found that
Smith did not suffer from a "serious" medical
need, and could not, therefore, establish the
first prong of his eighth amendment claim. The
District Court upheld the verdict, tlnding that
the jury was entitled to rely on the expeti:
testimony in finding that plaintifT did not suffer
[rOITI a "serious" nl(:dical need.
C)n appeal, Smith argued that his HIV
status was a "serious" t11cdical need in-and-ofitself, and that it was error for the lower court
to have relied on the expert's testimouy that he
had not suffered any ill effects from the
interruption of his care. He argued tl1at the
District Court effectively imposed a standard of
lutl/alharm in assessing tbe jury's finding of no
serious medical need when he was only required
to establish a potential for serious future injury in
order to state an Eighth Amendment claim.
The court disagreed, Smith was not
eontendit1P'
his HIV
o that the defendants ionored
b
infection by failing to provide adequate care in
general, but only that there had been two sborttenn lapses in otherwise adequate care. Under
those circumstances, the court found, tI)e delay
or intern,ption in treatment, not the underlying
medical condit1on, must be "sufficiently
serious," to state an Eighth Amendment claim.
In analyzing whether the delay in treatment in
this CLse wAS sufficiently serious to state a claim,
the court held that it was appropriate for the
jury to consider whetilCr Smith had been
hanned by the delay. Smith argued that because
an Eighth Amendment claim may be based on

Pro Se Vol. 13 No.:3 Pilt,Tt: 9

defendant's conduct in exposing an inmate to
'ill unreasonable risk ofjuturt harm, the absence
of prr:Jellt injury is not relevant to assessing the
severity of the risk to which the inmate was
exposed. The defendants, however, had
presented credible medical testimony
suggesting that Smith had not been exposed to
an unreasonable risk of future harm due to his
periods of missed HIV medication. The court
found that the jury was free to consider that
testimony in determining whether the asserted
deprivation of medical care was sufficiently
seriOus to establish an Eighth Amendment
claim.

The inmate, a 34-year-old prisoner at
Clinton Correctional Facility, contended that he
was aware of his female identity since childhood
but became familiar with Gender Identity
Disorder (GID) only while imprisoned. GID,
also known as gender dysphoria and
transsexual ism, is a medically and judicially
recognized psychiatric disorder. Since 1998, the
inmate had been seeking the diagnostic
psychotherapy he believed would ultimately lead
to "electrolysis, vocal chord modulation, breast
implant surgery" and other procedures to
complete his transformation into a female.
DOCS, however, has a policy pursuant
to which it may continue t11erapy for prisoners
who commenced the procedure before they

Inmate {Vins Sex Change Treatment

were sent to prison, but aduring incarceration
transsexual surgical ()perations arc not
honored." It relied on that policy in denying

Brooks v. Berg, 270 F.Supp.2d 302 (N.D.NY
2003)
ANew York inmate seeking a sex
change is entitled to medical treatment at
taxpayer expense that could lead to gender
reassignment, the federal district court fiJI' the
Northern District of New York held recently.
The court said that the state cannot draw a
distinction between prisoners who began
treatment for a gender identity disorder before
incarcerat10n ti~otn those \vho discover their
transsexual issues while in prise)!l.
Currently DOCS allows prisoners who
commenced the process of gender
reassignment before they were imprisoned to
continue their treatment, but denies that option
to inmates who seek to initiate procedures once
they arc behind hal'S.
"Surely inmates with
diabetes,
schizophrenia, or any other serious l11edical
need are not denied treatment simply because
their conditions were not diagnosed prior to
incarcenltion," held the court. The court made
clear that it is not ordering a sex change or a
specific medical rep,imen for the inmate. Rather,
it is merely requiring the state to provide
medical and psychiatric services to determine
the appropriate course of action. "Prison
officials are obliged to determine whether
plaintiff has a serious medical need and, if so,
to provide him with at least some treatment,"
wrote the court.

treatment to the plaintiff.
The court rejected the state's defense
and held f,)f the inmate on the grounds of due
process and the Eighth Amendment's
prohibition against cruel and unusual
punishment. It wrote that the state 6iled to
provide "adequate treatment for [the inmate'sl
serious medical needs," and failed to "explain
the puzzling distinction that the policy makes
between those inmates who were diaWlOsed
before incarceration and thosc who were
diagnosed after being incarcerated."

DepJivatiol1 Order Held Not To Violate
Eighth Amendment
Trammell v. Keane, 338 F.3d 155 (2d Ci,·. 20(3)
Reginald Trammell was serving a SHU
a cOITection
sentence in late 1994 f,)r assaultinv
u
officer when, according the Second Circuit
Court of Appeals, his behavior became "more
and more uncontrollable." In one five-week
period he was cited for at least sixteen
disciplinat'y violations, primarily for throwing
various substances - drinks, soup., spit, urine
and feces - at correctional officers. Matters
came to a head 011 December 16, 1994, when
Trammell spit or threw liquid at Correctional
Officer Fernandez, a notary, who had gone to
his cell to notarize legal papers for him. Later

Pro $(; Vol. 13 No.3 page 10

that day, Deputy Superintendent Kehn issued
the first ofseveral deprivation orders, depriving
Trammell of "all state and personal property in
[his] cell except one pair of shorts. No
recreation, No shower, No hot water, No cell
bucket because it is determined that a threat to
the safety or security of staff, inmates or state
property exists." Pursuant to the order,
Trammell was deprived of all of his clothing
except for one pair of undershorts, all of his
toiletries, his mattress, his blanket, and his cell
bucket and he was placed on the "loaf' diet for
approximately 95 days. He also alleged that he
w,IS deprived of toilet paper f,)r a week.
Trammell sued, alleging that these
conditions violated the Eighth Amendment's
protections agamst cruel and unusual
punishment. The Second Circuit Court of
Appeals mlcd against him.
To prove a violation of the Eighth
Arnendll1ent, an inmate Inust: show, first, that
the deprivation alleged is "objectively
suft'ciently serious" such that the plaintiff was
denied "the minimal civilized measure of life's
necessities," and, second, that the prison
officials possessed a "sufficiently culpable state
of mind" - that is, that they acted either with
the intent to inflict pain on the inmate or with
deliberate indifference to the consequences of
their action.
In this case, the court found, Trammell
could not satisfy the second prong of the
Eighth Amendment test: He could not show
that prison officials imposed the deprivation
order either with the intent of hurting him or
with deliberate indifference to his health and
safety. The depriva60n order, the court found,
"while onerous, even harsh" \vas not intended
to hurt hil1t, but \vas, instead "reasonably
calculated to correct Ihisl outrageous behavior."
The court found it "especially significant" that
the order was specifically drafted to punish
Trammell for his misconduct, and to deter him
from similar acts in the hJture while at the same
time providing him with incentives to reform
his behavior by stating that his property would
be returned pending specified periods of good
behavior. Thus, the court found, "Trammell
held the keys to his own cell door ... and
could have rid himself of the harshest aspects
of the order by simply reforming his behavior."

Moreover, the court stated, the order had not
been imposed with deliberate indifference to
Trammell's health or safety, because prison
officials regularly observed him to ensure that
his health was not jeopardized during the
deprivation period.
The court contrasted this case with that
in Hope v. Pelzer, 360 U.S. 738 (2002). In
Hope, the Supreme Court held that a state's
practice of tying an inmate to a hitching post in
the sun violated the Eighth /\mendment.
"Unlike the defendants m Hope, who
implemented a particularly harsh disciplinary
measure with no regard for the inmate's health,
the less severe disciplinary measure here was
regularly monitored by a nurse in order to
ensure that his health was not jeopardized by
the various deprivations imposed in response to
his rnisconduct."

Form Over Substance? Second Circuit
Dismisses Inm'ltes' f!h Amendment Claim
As Too COfllplicated, Vague.
Webb v. Goord, 340 F.3d 105 (2d Cir. 2(03)
An ambitious lawsuit by a group of
more than thirty inmates seeking to hold DOCS
accountable for a wide variety of incidents that
resulted in serious physical injuries failed
recently, when the Second Circuit dismissed
their complaint as unmanageable.
The inmates' complaint alleged more
than forty separate incidents, including attacks
by corrections officers, improper physical
punishments, attacks by other inmates for
which DOCS wa., allegedly responsible because
of its failure to provide a safe prison
environment and denials of medical care to
plaintiffs suffering Irom injuries. Most of the
forty-plus incidents were alleged to have taken
place at fourteen separate DOCS I~,cilities
between 1997 and 1999, however the complain t
also included incidents that occurred as long ago
as 1990. As the court noted, the complaint
constituted a "catalog of violence and ill
treatment" toward inn1ates. For cxarnplc~ one
plaintiff alleged that after DOCS denied his
request to be placed in protective custody he
was attacked so bmtally by other inmates that

Pro Se Vol. 13 No.3 rape 11

he required sixty-eight stitches in his f'tee.
Another alleged that an attack by corrections
officers left him with seventeen broken bones
in his face.
The court found, bowever, that it
would be "extremely impractical" to litig,lte all
forty - odd incidents in one trial. Among other
thin!,'S, the court noted, there were more than
100 named defendants. Moreover, the court
found, the plaintiff.s had not shown that the
forty unrelated incidents - which occurred over
ten years at fourteen separate DOCS facilities established a violation of the Eighth
Amendment by DOCS as a whole. "The
necessary foundation of a finding that the
prtson JjStetJl has violated the Eighth
Amendment [as opposed to individual
correction officers] is evidence of a concerted
intent among prison officials, one expressed in
discetnable regulations policies or practices,"
'wrote the. court. A Olcre accuhlulation of
individual incidents "does not necessarily
amount to a qualitative violation of the Eighth
Amendment" by the whole prison system.
Thus, althongh the court agreed that
"each incident alleged by the plaintiffs involves
!,>rave allegations of rights violations eidler
perpetrated or tolerated by DOCS officials" it
dismissed the complaint as, essentially,
unrnanageable. In doing so, it "[took] pains to
assert" that it was not "establishing a triumph
of form over substance." Rather, the court

asserted, its decision should stand for the
proposition
that fonn matters in our systenl ()f
adjudication. It {natters because it
is conducive to the coherent
presentation of a plaintifTs cbin1s,
to the allow<U1ce of a fai ..
opportunity to defend,mts to
challenge those c1aitns, and to the

provision of appropriate relief. In
sum, a proper attention to form is
a prerequisite to the f':lir and
efficient vindicallon of rights.

14· Amendment - Due Process ofLaw
Prison OOidal. Not Immune From Suit For
Imposing Di.dplinary Sentence Without
Due Process
Hanrallan v. Doling, 331 F.3d 93 (2d Cir. 20(3)
After a prison riot at Mohawk
Correctional Facility in 1997, plaintiff; inmate
Hanrahan was identified by several cOl-rection
officers as having assaulted another correction

officer. A disciplinary hearing was held. During
the hearing, the hearing of/-lcet denied Hanrahan
access to certain exculpatory evidence, including
a videotape of the riot and the testimony of a
!,'llard who would have ptovided him with an
alibi. He found Hanral1an guilty and sentenced
him to 10 years in SHU. The charges were
aftlrmed on administrative appeal by Donald
Selsky, the Director of Special Housing.
In 1998 Hanarahan was tried in state
court on various criminal charges relating to the
same alleged assault. His defense lawyer was able
to obtain the evidence that both the hearing
officer 'md Selsky had refused to consider 'md
Hanrahan was acquitted of all charges. (Another
inmate was eventually convicted of tbe assault for
which Hanrahan had been charged.) After the
acquittal, Hanrahan's lawyer wrote to Selsky to
urge him to reverse the disciplinary sentence.
Selsky eventually granted the request, however,
by that time, Hanrahan had served 335 days of
his 10 year SHU sentence.
Hanrahan filed a section 1983 lawsuit
against both the hearing officer and Selsky,
charging that they violated his right to due
process of law by refllsing to consider the
exculpatory evidence at tbe time of his
disciplinary hearing. The defendants moved to
dismiss the suit. They argued that they were
entitled to "qualitled immunity" because it had
not been established in 1997 - the time the
events took place - that 335 days of SHU
confinement \Vere "atypical and significant
under the Supreme Court's 1995 decision in
Sandin v. Connor, 514 U.S. 472. Therefore,
defendants argued, it was unclear whether
Hanrahan was entitled to due process in the first
place. (In Sandin, the Supreme Court held that
the due process protections inmates typically
H

Pro Se Vol. 13 No.3 Page 12

receive when subject to disciplinary confinement
- the right to a hearing, to call witnesses, and etc,
- are only required by the constitution if the
punishment that may be imposed would create
an "atypical a~d significant hardship on the
lllmate 1ll relatIOn to the ordinary incidents of
prison life.")
"Qualified immunity" is intended to
protect government officials from lawsuits
concerning actions they take about which the
law is unclear and to allow them to act in areas
of legal uncertainty without undue fear of
subsequent liability. \'(Ihen the law is unclear, the
theory goes, a government official should not be
p~nalized for doing something that is only
afferwards determllled to be illegal. Courts
analyze the qualified immunity defense by asking
whether, gIven the caselaw as it existed at the
time of the incident, a "reasonable official"
would have been aware that his conduct was
unlawful at the time that he engaged in it.
In this case, Hanrahan agreed that it was
unclear in 1997 if 335 days of SHU time was
"atypical and significant" under Sandin. He
arg~led, however, that it was a mistake to
measure defendants' qualified immuniry defense
according to the time he actually served. Rather,
he argued, the defense should be measured
ac.~ording to the sentence that the hearing
offIcer Imposed «md which Selsky affirmed) that IS, the sentence they tho!(ght he would be
servmg.
The court agreed with Hanrah',m:
Because the reasonableness of the officials'
conduct is judged "based on the information tbe
officers had when the conduct occurred" the
focus of the qualitled immunity inquiry i~ this
case should be on the 10 year SHU sentence the
defendants imposed on Hanrahan - not the 335
days he actually he served.
Note: tbiy decision applie.r only to determinino
wbetber defendants in a dirciplinmy dl/~ pmceJ'J' caJe a;;
entitled to qualijied immunity. it does not apply to
ddmlllnmg II/betber a due pmceSJ 1101t/tian octlll7rd itl
thejirJtplace. So,jor 8:":ample, ap,isonersellteJ1cedto 10
.yct1!J'in SHU cOtljitle/llef/t, Jvbo war t~/eased aftct'Jenitto
otlly ten dayy, IIJould likelY tlot be able to p;/rme a dt~
pmcerJ (!titl: Ufider Satldin, wen iftbe defendatitr were
not entitled to qUt'lified immtlnity, because the caUfts do
lIot trJ/lJ'ider 10 days ?fJHU co;jitlement to be "afJpicill
and s(gttijicant. "

II

State Cases

!I

Discipline
Authorized Computer Use Does Not Support
Allegation ofMisuse ofState Propetty
M"ltter of Bartley v. New York State Department
of Correctional Services, 757 N.Y.S.2d 380 (3d
Dep't 2003)
.
Petiti~)ner Bartley was found guilty of
ptlwn dlsclpltnary rules prohibiting possession of
authorized material in an unauthorized area and
misuse of state property after a security check
dIsclosed a computer disk containing personal
material, including petitioner's resume,
photograph~, computer games and personal
letters. Petitioner was employed by the facility's
volunteer services office where he had access to
aco~puter. At his disciplinary hearing, petitioner
admItted that the resume and the two letters
were his, but testified that be had written tbem
with the knowledge and permission of his
supervisor, a correction counselor. He disavowed

knowledge of the remaining material. The
correction counselor confirmed petitioner's
contentions, testifying that he had authorized
petitioner's use of the computer for personal
work, IncludIng the preparation of his resume
and the two letters. He explained that, at the
time, he was not aware that petitioner's usc of
the computers in this manner violated prison
disciplinary mles.
. TIle ~ourt ~eversed the guilty finding.
"
HaVIng obtaIned bls supel"Vlsor's authorization
for the preparation of the material in question,
petitIoner cannot birly be found guilty of
unautho1'1zed conduct or misuse of state
property.. No other evidence was presented
lInkIng [him] to the remaining five personal items
on the disk. Inasmucb as the disk was found in a
common area, the fact that three of the items on
the disk belong to petitioner is insufficient
standing alone, to support the conclusion that all
of the files on the disk were created by
petitioner."

Pro Se Vol. B No.3 Fwc 13

An Unaltered Pen L. Not COl1traband

Matter of LaMage v. Selsky, 760 N .Y.S.2d 561
(3d Dep't 2003)
Petitioner was observed by a corrections
officer attempting to stab another inmate with a
pen. As a resnlt, he was found guilty of engaging
in violent conduct, assaulting another intnate,
refusing a direct order and possessmg
contraband that may be c1assiEed as a weapon.
He was sentenced to 18 months in SHU. On
appeal, the court reversed that portion of the
disposition finding him gnilty of contraband
because, it found, an unaltered pen cannot be
considered conti"band. The court sustained the
charges relating to the assault, however, and
remitted the case to the DOCS for the
imposition of a penalty appropriate to the
rernaininl?'
charges.
' ..'
:.:>

Expungemel1t of the Record L<
Expungement oftbe Facts

Not

Matter of Watkins v. Annucci, 758 N.Y.S.2d 853
(:'Id Dep't 20(3)
Petitioner \\latkins absconded from
temporary release. Arrested and convicted on
new charges, he was returned to DOCS with a
new pre-sentence report, which referred to his
having absconded fronl the prior sentence. He
was slIbsequently found guilty of several
disciplinary violations arismg from his
abscondence. However a state court reversed the
disciplinary hearing on procedural grounds and
ordered all references to it expunged from his
institutional records. S0111e titne latcr petitioner
was denied parole. In denying him parole, the
Parole Board relied, in part, on the pre-sentence
report which referred to the t'lCt that he had
absconded from his prior sentence. Petitioner
commenced an Anicle 78!Jroceeding'.,
alleginv
.
..'>
that the Parole Board could not rely on the
information in his pre-sentence report, because
the S(;lte court had ordered references to his
disciplinary hearing expunged.
'Il1e cOllrt disagreed,
tinding no
impropriety in the Board's consideration of the
pre-sentence report. Although DOCS was
<.J

obliged to expunge all references to the
disciplinary hearing from petitioner's records, it
was not required to expunge all evidence of
petitioner's abscondence from his records. The
court noted, for example, that DOCS properly
re-calculated petitioner's sentence to reflect the
period of abscondence, and the reversal of
petitioner's disciplinary hearing did not entitle
him to credit t(Jr tllat time. Likewise, the court
fOllnd, it was appropriate for the Board to
consider petitioner's pre-sentence report,
including the refet'ence to the abscondence, in
determining whether he should be granted
parole.

No Evidence ofJl.fi.9bel1avior III This Rig-My
C'1Jarged C'$e
Pama v. Senko\Vski, 759 N.Y.S.2d 595 (3d Dep't
20(3)
Petitioner Pama was found guilty after a
tier I J hearing of violating prison disciplinary
mles prohibiting the possession of contraband,
creatini!
o a tire hazard and tamperingJ with an
electrical device. As related in the misbehavior
report, a search of the petitioner's cell disclosed
that four extension cords had been plup}?;cd into
a single outlet (the number permitted is two),
thereby creating a fire IMzard. In addition, the
circuit bre:tker box serving petitioner's cell had
been altered to provide his cell and several others
with extra electrical power.
The court reversed the charges. As to the
contraband charge, the court noted tllat electrical
extension cords are specifically permitted in
correction,Jl facilities (j'ee Title 7 NYCRR
724.4[h][6]). As to the remaining charges of
creating a fire hazard and tampering with an
electrical device, the misbehavior report alleged
that petitioner- had "conspired to create Ii fire
hazard [and] have his cell breaker box altered to
give him extra electricity to mn all his devices."
'The court noted that the hearing ofEcer had
acknowledged during the heat~ng that petitioner
had never had access to the catwalks where the
cireui I' breakers are located. "lIenee it was never
established how the circuit breaker box was
altered; who altered it... tllat petitioner engaged
in a conspiracy; that petitioner could not have

Pro Se Vol. 13 No.3 PllW 14

operated 'all his devices' with unaltered circuit
breakers; or that use of more than one extension
cord, either generally or in this instance, created
a fire hazard." Based on the insufficient
evidence, the court reversed the hearing.

DOCS Fails to Prove Controlled Substil11ce
Violation
Matter of Hernandez v. Selsky. 759 N.Y.S.2d 604
(3d Dep't 200.3)
Title 7 NYCRR § 1010.5 provides that in
disciplinary proceedings alleging possession of
contraband dmgB, the hearing record must
include:
(a) the request lor test of suspected
contraband dmb'S 1()fIn;
(b) Ule contraband test procedure 101m;

(c) the test report prepared by an outside
agency subsequent to
substance, if any;

testing of the

(d) a statement of the scientilic principllesj
mld validity of the testing materials and
procedures used ...

A correction officer observed inmate
Hernandez take a hand-rolled marijuana cigarette
frorn another inrnate in the ,gytnnasiutn and
charged him in a misbehavior report with
violations of disciplinary rules prohibiting
possession of controlled suhstances and
smuggling. At the hearing, however, none of the
documents required by DOCS' regulations were
adrnitted into evidence and, tnoreover, there \VlL.'1
no testimony as to the tesling procedure that
had identified the substance of tnarijuana. 'The
court, consequently, reversed that portion of the
hearim' which found Hernandez guilty of
possc;~l()n of a controlled substance.
Nevertheless, the court found, the misbebavior
report, coupled witb Hernandez's admission at
the hearing that he discarded something in the
gym bleachers, provided sufficient support for
the charge of smuggling.

Medical Care
State Courts ConsiderHepatitis-C Treatment
Issues
People ex reI. Sandson v. Duncan, 761 N.y.s.2d
379 (3d Dep't 2(03) and
In re Application of Domenech, 200.3 \VL
21374520 (Smith, J.) (N.Y. Sup. Ct., May 28,
2(03)
Hepatitis-C, a slow-acting viral infection
wbich can Gluse a breakdown of liver functions,
affects as many as 14 percent of New York State
inmates, according to some studies. The typical
treatment consists of 24 to 48 weeks of weekly
shots of interferon, an immune system protein,
combined with daily doses of the antiviral
medication ribavirin. The treatment has limited
success, however, and significant side effects.
Consequently, it is indicated for only a small
percentage of those wbo test positive for the
hepatit1s-C virus, typically those whose infection
is in a f~urly advanced statc.i\1oreover, because
the vims is often spread by needle sharing among
intcrvenolls (I.V.) drug users, and because bc)th
alcohol and drug abuse have been correlated with
reduced cornpliancc with and decreased
effectiveness of the treatment regimen, some
medical professionals have concluded that
treatment not be recommended for persons who
are current drug or alcohol abusers.

In New York, DOCS has developed
strict Quidelines for determining which hepatitisC posi~ive inmates are eligible f()rtreatment. The
guidelines require, mnong other things, that
eligible inmates be in a relatively advanced state
of tbe disease, that they not be witllin 12 months
of a parole eligibility date, that they be "highly
motivated" and that they have no history of
psychiatric problems. In addition, DOCS requires
that inrnatcs \vith a history of dnlg alHlse be
either enrolled in or have completed the Alcohol
and Substance Abuse Treatment prognUll
(ASA1) before receiving treatment.
Tbe strictness of New York's treatment
eligibility guidelines has memlt that only a very
small percentage of New York inmates infected
with the hepatitis-C virus actually receive
treatment while in DOCS. '111e requirement that
eligible inmates be drug free and be either
enrolled in or have completed ASAT has been
Not all medical
particularly controversial.

Pro Se Vol. 13 No.3 page 15

professionals agree that this is a valid basis for
re6.1sing hepatitis-C treatment. For instance,
gnidelines issued by the National Institute of
Health state that "active [i.v.] drug use in and of
itself should not be used to exclude such patients
from antiviral therapy," and other states - for
example, Rhode Island - treat inmates who are
actively using drugs.
Two recent state courts considered
inmates' challenges to the requirement that they
be enrolled in or have completed ASAT prior to
entering into tt·eatment. The two challenges
resulted in two very different results.
In People ex reI. Sandson, the petitioner
filed a habeas corpus proceeding, stating that he
had been denied treatment for hepatitis C and
arguing that the denial constituted cmel and
unusual punishment in violation of the 8u,
Amendment of the U.S. Constitution. The court
- after first noting that an Article 78 proceeding,
not a habeas corpus proceeding, was the correct
vehicle for the petitioner's complaint - held that
he h,ld failed to show cruel and unusual
treatnlcnt. In order to state a 111cdical care claim
under the 8 th Amendrnent, an intnate tllUSt show
that the corrections officials were "deliberately
indifferent" to his "serious medical needs.
Here, the court held, "the specific treatment that
petitioner demands has been withheld not out of
indifference to his illness, but because of his
tailure to meet certain reasonable pre-requisites
prior to cornmencemen t of the treatmen t,
including that of demonstrating his continuing
abstinence from substance abuse by successfully
completing a substance abuse treatment
program." Moreover, the record showed, "In]ot
only has petitioner failed to complete such a
program, but it appears that he has continued to
abuse controlled substances during his
incarceration, ,LS evidenced by administrative
determinations finding him gnilty of violating
prison disciplinary nJles" concerning controlled
substances. Under these circurnstances, the court
held, petitioner's complaint was properly
dismissed.
In In re Application of Domenech, by
contrast, the petitioner alleged (and DOCS did
not dispute) that he had been drug free for over
thirty years. Moreover, DOCS did not allege that
the treatment was being denied based on a
medical justification, i.e., tlut the treatment was
contra-indicated because the petitioner was a

current drug or alcohol user, or that ASAT was
necessary because even though petitioner was
not currently abusing dmgs or alcohol he was
likely to relapse without ASAT's assistance.
Rather, DOCS W'lS merely rigidly following the
guidelines it had established for all inmates,
regardless of individual circumstances. The court
found, however, that "there is not a scintilla of
evidence...showincr that Petitioner is a current
"
substance abuser or likely to relapse." Under
those circumstances, it concludcd: "the ASAT
prograln is irrelevant ... And cannot, as a rnatter
of law, provide a medical justification for tl,e
continued denial of medical treatmen t . . .
Accordingly, [DOCS'] policy as applicd to this
Petitioner is arbitrary and capricious and results
in a deliberate denial of medical attention to his
serious medical condition in violation of the
Eii'hth Amendment."

"

Parole
Parole Board Must Consider
RecomJnendations ofSentencing Court For
lJlmates with Indeterminate Sentences

H

Matter of Edwards v. Travis, 758 N.Y.S.2d 121 (2d
Dep't 2003)
New York State law requires the parole
board to consider, <lrnong other thing'S, an
inrnate's institutional tecord, perfonnance in a
temporary release program, and release plans (.ree
Executive Law § 259-i[2][c][A] ). Additionally,
when an intTIate is serving an indeterminate

sentence, the board is required to consider any
" rccon1hlcncIabons
'
.
o.fh
t e sentencmg
COllrt. "
(Executive I!cIW §§ 259-i[1IIa][i], [2][c][A]).
In this case, the Division of Parole
conceded that it did not conside'- the sentencinv
<..'
minutes befe)re it rendered its decision denying
petitioner Edwards' parole application. The
minutes revealed that the sentencing judge did
not intend the petitioner to serve more than the
minimum term of imprisonment. The court
found that since the tninutes contain what is,

essentially, a recommendation of the sentencing
court, the Division's admitted failure to consider
the minutes required that the determination be
reversed and remitted to the Division tell' a new
hearing.

Pm Sc Vol. 13 No.3 pags 16

Procedure
Inmates Filing Article 78 Proceedings MUM
Follow Orders to Show Cause
Matter ofSpriles v. McGinnis. 758 N.Y.S.2d 546
(3d Dep't 2(03)
Matter of Britt v. Goord, 758 N.Y.S.2d 551
(3d Dep't 20tH)
Matter ofM.artinez v. Goord, 757 N.Y.S.2d 502
(3d Dept 2003)
The tlrst step in commencing an Ar6c1e
78 proceeding is to file a proposed "Order to
Show Cause" (OSC) with the court. 111e OSCa document which "orders" the dcfend;mts to
"show cause" why the petition should not IJC
granted and specif'es how and on whom it
should be served - will generally be signed by a
judge and returned to you for service on the
In order to commence the
respondents.
proceeding you must serve the signed OSC on
the persons and in the manner speeitled in the
order, as well as follow any other instructions
that the court may have added. Three cases
illustrate tl1e consequences of Luling to do so.
In ,'"fatter of Sprilcs, the OSC rccluired
the petitioner to serve the superintendent and to
£lIe an aftldavit of service with the court. After
the petitioner failed to do so, the respondents
moved to dismiss. The Supreme Court granted
the motion and the Appellate Division aHlrmed,
noting that there was no evidence that the
conditions of the petitioner's contlncmcnt
prevented compliance with the order. "Given
petitioner's failure to comply with the relaxed
service requircrncnt set forth in the (wder to
show cause, Supreme Court properly dismissed
the petition." Similarly, in Matter of Britt, the
court dismissed the petition after £lnding that
"[a]lthough petitioner served process upon the
Attorney General, he failed to effect service
upon respondent, thereby violating the ... order
to show cause." The court also dismissed a
petition in Martinez v. Goord, in which the
petitioner failed to serve either the Attorney
General or the respondent, holding, "[a]n
inmate's failure to satisfy the servIce
requiretncnts of an order to sho\v cause requires
dismissal ... unless there is a showing that the
restrictions imposed by imprisonment precluded
compliance."

These cases should serve as a rcmindel'
for inmates contemplating filing an Article 78
proceeding that it will be necessary to carefully
follow the procedures in ilie OSC to avoid
having the proceeding dismissed.
Intl1ates Ivit/) qUeJtiotls about Aftide 78
proceedil(gJ l'tJn t~queJI PtifOlwr,.' Le,gal Senice,.' hU771
MetJlO, "Hou! to File an Altide 78 Proceeding on
Your Own" I?y U!tili/{g 10 pfisonm.' lA;ga! Seni'~J,
Cenlml Intake, 118 Pro,peet St., Suile J07, IIba[a,
NY 14850.

Other Cases ofInterest
Man Wins Bid To Keep Name Off SexORender Regi,<try
Pcople v, Bell 2003 WL 21649678 (N.Y. Sup. Ct.,
June 30, 2003)
Shennan Bell, a fortner intnate C(Hlvicted
22 years ago of kidnapping a 3-year-old to extort
tnoney frotn her parents, convinced a state court
recently that it would be unconstitutional to
require hirn to register as a sex offender, Upon
his release from prison in 2001 after completing
a 20-year sentence, Bell found that he was
requircd to register under New York's Sex
Offender Registration .Act (SORA) because first
degree kidnapping (where the victim is less than
17 years old and the offender is not a parent) is
one of the crimes to which the act applies,
Bell objected, arguing that his crime had
no sexual component whatsoever. The court
agreed, noting that courts in both Ohio and
Florida have found that the automatic inclusion
of ex-intnates whose crirnes had no sexual
component to a sex-offender registry violated the
ex-inmate's right to substantive due process. The
court also found that by including a kidnapping
offense that does not necessarily include a sexual
component in the def'nition of"sexual offender"
"renders the sexual offender registration statute
over-inclusive" and violates the equal protection
clause of the Fourteenth Amendment. The court
went on to conclude that when a person has
been convicted of a crime f(x which SORA
classification is m'mdatory, but no clement of the
crirne involves a sexual component, a hearing
must be condncted, at which "evidence of some
sexual facet to the defendant's actions or

Pro Se Vol. \1 No.:\ Page 17

rnotivation sufficient to sustain a classification as
a sexual offender" must be presented, in order
to sustain the classification.

Conviction Overturned for Itlm:lte Who
AllegedlyAtt:lcked GU:lrd

People v. Santos, 761 N.Y.S.2d 651 (1st Dep't
2003)
Evidence that a prison guard attacked
inmates and engaged in a coverup is enough to
void the convictk;n of an inmate who allegedly
assaulted the guard, a divided appeals court
recently ruled.
Ruling 3-2, the Appellate Division, First
Department held that the inmate,Jeffrey Santos,
could have defended himself better at trial if he
had known about the guard's past.
The guard, Edward Lanza, pleaded guilty
in an administrative proceeding to assaulting
three Riker's Island inmates in 1996, but not
until after Mr. S;Ultos was convicted ofassaulting
Mr. Lanza. Mr. Santos, who had claimed he was
attacked by Mr. Lanz;], submitted Mr. Lanza's
plea in a post-trial motion to vacate his
conviction.
A Manhattan Supreme Court judge
granted Mr. Santos' motion, and the majority of
the First Department agreed with her reasoning,
saying the credibility of the guard, who testified
against Mr. Santos,wJS the tnost significant issue
at trial. "\Ve do not find that the motion court
improvidently exercised its discretion in finding
that this newly discovered evidence was not
merely collateral, as the complainant's history of
assaultive behavior went to the very heart of this
defendant's trial defense," wrote the 111ajority.
In a dissenting opinion, Justice Peter
Tom wrote tbat the administrative pleading of
the guard, which resulted in a loss of three
vacation days and no criminal charges, did not
undennine the prosecution's other evidence
against ,Mr. Santos. The ongin of the
confrontation between the two was disputed.
The prosecution alleged that Mr. Santos was
taken to a holding cell after having been accused
of mmmaging through the purse of a psychiatric
social worker in the facility health clinic. When
Mr. L,mza prepared to give Mr. Santos a
misbehavior report for being in the health clinic

without permtsslOn, Santos allegedly became
belligerent and punched Lmza in the face. Other
guards entered the cell and the scuffle, restraining
Mr. Santos.
Santos claimed that he had been directed
by a doctor to wait in the social worker's office.
Once he was moved to the holding cell, Lanza
distracted him with the misbehavior report
paperwork and then punched him in the face.
Santos then claimed that Lanza asked another
guard to punch Lanza in the face, so hc could pin
the fight on Santos.
While the majority stt'essed thc
ill1portance of L:ulza's past infractions, Justice
Tom expressed disbelief that Lanza's behavior
could overwhelm the testimony of other guards,
inconsistent testirnony trOln innlates who
witnessed the fight and Mr. Santos's story about
Lanza's self-inflicted wounds. "A conviction may
be vacated on the basis of new evidence only if
the new evidence would probably have resulted
in a verdict more favorable to the defendant,"
wrote the Justice. "\Vithout any motive to frame
the defendant, the,'c was simply nothing
incredible concerning the testimony of the
People's witnesses that dcfcndant was caught in
a restricted area run1maging through a worker's
pocketbook, and later lashed out at a corrections
officer attempting to serve him with a
[misbehavior reportJ before being subdued. It
also appears inconceivable that Captain Lanza
would cause selt:inl1icted facial injuries including
a laceration which needed eight stitches, and
which required emergency treatment and
subsequent thenlpy just to frame defendant for
no apparent reason.~'

Son of S:lnl L,nv Survives De:ltll, But Not
Cbild Support

New York State Crime Victims Bd. ex reI.
I-lemon v. ZaHiJto, 763 N.Y.S.2d 442 (Sheridan,
J.) (Sup. Ct., Albany Co., June 20, 2003 )
New York's Son of Sam Law permits the
New York Crime Victims' Board to seek an
injunction against an inrnate who receives "funds
of a convicted person" in order to prohibit the
inmate from spending the fimds. The purpose is
to insure that if an inmate receives a substantial
sum of money while incarcerated, file money will

Pro~,e

Vol. 13 No.3 l'l1gc 18

not be "wasted," bntwill instead remain available
to compensate any victims of the inmate's

things, that the equitieJ are in his or her favor i.e., that it is just to grant dIe injunction. The

C1"l1nes.

court found that in this ease, where Zaffuto's
funds were subject to claims for both child
support and recompense for a crime victim, two
distinct public policies - that of insuring that
child support obligations are met and that of
assisting the victims of crimes in obtaining
compensation from the timds of the perpetrators
- come into cont1iet. The court held that as
between those two objectives, "the compelling
nature of child support payments tips the
equitable scale away from the payment to a crime
victim." Consequently, it retilsed to gnli1t the
CVB's request to freeze the funds owed to
Crista!. The court fi:mnd that Blake's argument,
however, was weaker. It held that his contentions
failed to overcome the State's interest in
compensating crime victims. It therefore granted
the eVB's request to freeze the timds due him.

Michael Zaffuto was convicted of
robbery in the first degree and sentenced to a
prison term. While incarcerated he brough t a
lawsuit against the State of New York, alleging
medical malpractice. The lawsuit was settled for
a substantial sum, but Zaffuto died shortly
thereafter. The money - $87,000 -went to his
heirs: $30,000 to bis excwife, Cristal, and $57,000
to his son, Blake.
The Crime Victim's Board then sued
Cristal and Blake, seeking an injunction
prohibiting them from spending any of the
settlement until d,e victim of Zaffuto's crime,
James Hernon, had an opportunity to sue the
estate for the injuries he suffered during the
robbery. The Zaffutos responded with a vaticty
of arguments: Fitst, they argued, the Son of Sam
law was intended only to apply to convicted
crirninals; it was not intended to apply in this
situation, where the perpettatot of the crime was
deceased. The court disagreed. Executive Law §
632 a(l) (c) defines "funds of a convicted
person" as "all funds and property received from
any source by a person convicted of a specified
crime, or by the rep,vJetitatille 0/ Jueh jJi/!Yotl as
defined in [§ 621(6)] of this article excluding
child support and earned income ...." 'n,,:
cross-referenced provision~ Executive Law §
621 (6) provides that: Representative' shall mean
one who represents or stands in the place of
another person, including but not limited to ... ail
execHtororbeirof ~u1other person ..." Thus, the
court concluded, the Son of Sam law was
intended to 'lpply to the funds of inmates even
after they die.
Cristal and Blake next argued that they
were victims of Michael just as mnch as was
.lames Hernon and that, therefore, they had ,m at
least equal entitlement to the funds. Spccitlcally,
Cristal aq,'ued that Michael owed her more than
$30,000 in child support payments at the time he
died, while Blake ar(!Ued that Michael never
provided financial "support and had only
intennittent contact with him during his
formative years.
That
argument
received
rnorc
consideration from the court. In order to obtain
an injunction a party must show, ,m1ong other

QUESTIONS AND ANSWERS
ABOUT THE DNA DATABANK
In 1994, the IA.'gislature passed a law
requiring certain "designated offenders" to give
blood sanlples for forensic DNA testing and data
banking. As originally enacted, the statute applied
only to persons convicted of certain violent
felonies, sex offenses and escape offenses on or
after January 1, 1996.
In 1999, the Legislature rewrote the law.
The new law expanded the list of "designated
offenses" for which blood can be taken and
provided that, in most cases, it may be applied
retroactively - that is, blood can be taken even if
you were convicted of the offense before ti,e
date the law became effective - so long as you
arc still serving the sentence for the designated
offense at the time the blood is taken. For a
second category of offenses, particularly dUlg
offenses, blood can only be taken if you were
convicted ofthe offense on or after December 1,
1999. For yet a third category of offenses,
primarily those involving escape and absconding,
blood can be taken only if you were also
convicted of some other designated offense
within the last five years. Because this is
contilsing we have prepared a chart indicating
which crimes the statute applies to and when it

Pro Se Vol. 13 No.3 P:agt: 19

applies. The chart appears at the end of this
article.
What follows are some additional
questions and ;mswers about the DNA datab;mk
law.
1. How does the law work?
IfyolJ have been convicted of one of the
designated offenses (and the law is otherwise
applicable to you) you will be notified of your
obligation to provide a blood sample. After it
has been taken the blood sample will be
forwarded to an authorized DNA laboratory for
testing and analysis. After the sample is analyzed
and its' individual characteristics noted, the
results are forwarded to the state DNA
databank
(technically
known
as the
"identification index"). See, II:xecuttve Law §
995-c.

blood sample is appropriate for DNA testing.
The statute clearly does not give petitiouer the
option to dictate tbe type of sample to be taken."

3. Who is allowed to see the results?
Executive Law § 995-c(6) states that
DN A records contained in the state DNA
identification index shall be released only ftJr the
following purposes:
•

to federal, state or local law enforcement
agencies, or district attorney's offices in
connection with the investigation of a
cril'ne, or to assist in the recovery or
identification of hurnan rernaltls~
including the identification of missing
persons, and

•

to a defendant
representative, for
purposes, and

•

to an "entity authorized by the [New
York State Division of Criminal Justice
Services] for the purposes of creating...a
population statistics database" - but only
after personally identifiable information
has been removed.

2. Do they have to take blood? Why can't
they take a hair or saliva sample instead?
The new law provides only that a
"sample appropriate for DNA testing" must be
taken. Therefore, theoretically, a h,lir or saliva
sample might be sufticient. The law, however,
leaves the final decision ;lS to what kind of
sanlple is "appropriate" up to the Division of
Criminal Justice Services. DqS has decided that
a blood sample is the most reliable, hence
"appropriate," san1ple. Since no court has as yet
held that taking a blood sample for DNA
databank purposes constitutes an unreasonable
invasion of any of your constlh.1tional rights, \ve
believe that a court would hold DCJS's decision
to use blood samples, over other possible
sampling materials, to be a reasonable one. In
Lunney v. Goord, 736 N.Y.S.2d 718 (3d Dep't
2(02) the petitioner argued that DOCS should
not be allowed to take a blood sample if he was
willing to provide a hair or saliva sample instead.
The court disagreed, holding: "Although [the
statutel does not specifY that a blood sample
must be used, [it] requires 'a sample appropriate
for DNA testing' and it is undisputed that a

his or her
criminal defense

01'

4. Is there anyone who can't see the results?
Yes. The new law contains a
confidentiality provision. Executive Law § 995-d
prohibits DNA test results from being
distributed, without your penmsslOn, to
insurance companies, employers or potential
employers, health care providers, private
investigating services and so on.

5. Can I obtain a copy of the test results?
Yes. The Division of Criminal Justice
Services has published n:s'uiations concerning
how to go about getting your test results. The
regulations are
published at 9 NYCRR
§ 6192.10. You must make a request to DCJS.ln

Pro Se Vol. 13 No.3 Pm 20

your request, you 1nust provide your nan1e, any
aliases used, date of birth, NYSID number (if
kno\vn); sex; race; date of sentence for the
Off(11Se for which the sample was taken and the
cOllrtwhich sentenced you (ifknown). You must
also provide fingerprints from both hands, a
passport sized color photograph taken within
the last twelve months, your current address and
phone number (if available). All of this
infonnation must be provided under your
signature, which must be notarized and include
the followingo statement: "False statements made
herein are punishable as a class A misdemeanor
pursuant to § 210.45 of the New York State
Penal Law." The request should then be
forwarded to the Division of Criminal Justice
Services, 4 '["ower Place, Albany, NY 12203.
According to the regulations DCJS should
provide yOll with a response within 30 days, by
certitied mail, return receipt requested.

6. What happens if I refuse to give a blood
sample?
[f you refuse to give a blood sample you
will most likely be given a "direct order" to
provide the sample and, if yOll still refuse, you
will be disciplined through the regular
disciplinary system. You could, presumably,
continue to be disciplined until you agree to
provide a sample. See, e.g., Thompson v. Selsky,
734 N.Y.S.2d 348 (3d Dep't 2001) (inmate
disciplined for rcfusing a direct ordcr to provide
a blood sample).

7. Is this law legal?
Most states now have DN A databank
laws similar to that of New York. Such laws havc
so far survived every legal challenge that has
been brought against them. Courts have held,
for example, that these laws do not violate
inmates' First Amendment right to practice their
religion, their Fourth Amendment right against
lHlfe'Lsonable search and seizure, their Fifth
Amendment right against sclf-incrimination,
their Eighth Amendment right against cruel and
unusual punishment or their Fonrteenfb

Amcndment right to equal protection, due
process, and privacy. Courts have also held that
retroactive application of these statutes - that is,
dleir application to crimes committed hd()re the
statute was passcd - does not violate the tX post
fatto clause of the Constitution or the double
jeopardy c1ausc.

8. My religion forbids the drawing of blood.
Doesn't this statute violate my rights under
the First Amendment?
No. Courts that have looked at this issue
have consistently held that because DNA
datahank statutes arc: neutral with respect to
religion; of general applicability; not applied
diffcrently to anyonc because of thcir religious
beliefs; and only incidentally affect rcligious
belicf; they are acceptable under the First
Amerldment. Tllt; courts have also t()Und tliat
,my small impact on religious freedom caused by
the taking of blood is cOlll1ter-bahnced by the
state's interest in maintaining a perrnanent record
of various otfender's DNA to help in solving
past or future crimcs and that, therefore, they do
not unduly burden religious belief. See, Shaffer v.
Same, 148F.3d 1180 (10"'Cir. ]998),mtden., 119
S.Ct. 520; Ryncarz v. Eikcnberry, 824 F.Supp.
]493 (E.D. Wash. 1993).

9. Isn't the taking of blood an unlawful
search and seizure under the Fourth
Amendment?
No. The Fourth Amendment protccts
and seizures. It
is t,)t" this reason that the police typically need
"probable cause" to search your person or your
home. However, courts that have looked at
whether the taking ofblood fora DNA databank
violates inmates' Fourth Amendment rights have
consistently held that it docs not, even if the
blood is t11ken without a warrant or probable
cmlS(~. The Second Circuit Court of Appeals, for
instance, has held (with respect to a
Connecticut's DN A databank law) that various
"special needs" of the state that go beyond mere
law enforcement permit physical testing of this
searches
YOU ~w'ainstllnreasonable
<.7

Pro Se Vol. 13 No. 3 PJW:~ 21

sort without a warrant or prohable cause. Roe v.
Marcotte, 193 F.3d 72 (2d Cir. 1999). The
Second Circuit also has jurisdiction over New
York cases. It is therefore likely that it would
apply the same analysis to New York's statute.
Many other courts have found that intnate's
have reduced privacy interests in the tirst place,
and have upheld the statutes on those grounds.
See Jones v. Murray, 962 F.2d 302 (4'h Cir. 1992).
10. What about my Fifth Amendment right
against self-incrimination?
Under the Fifth Amendment you cannot
be forced to say anything that might incriminate
you in a crinlc.Howcver, this :unendment has
traditionally been applied only to oral, or
"testimonial" evidence. It does not usually
prevent you tt-om being required to produce
physical evidence. For that reason, courts that
examined the question have uniformly held that
DNA databank laws do not violate the Fifth
Arnendnlcnt rights of inn1atcs. See Boling v.
Romer, 101 F.3d 1336 (10'h Cir. 1996).

11. I was convicted before this law was
passed. Does the application of this law to
me violate the ex post facto clause?
The e.x'P0JtjiJeto clause of the constitution
prevents the state from punishin~; you for
conduct that occurred before the conduct was
illeg.l!' However, to be a violation of the e:x:poJt
j;:u'fo clause~ a statute rnust actually punish you, or
increase your punishtnent, for sotnething you
did before the passage of the statute. In many
cases the new DNA statute will apply to inmates
because of crimes or convictions for which they
were convicted prior to the statute becoming law
(on December I, 1999). The Ne'W York State
Court of Appeals recently held, however, that
because the intention of the statute is only to aid
in future investig'ation, not increase punishtnent
tc)r past crimes, it is not prohibited by the ex POJt
facto clause. Kellogg v. Travis, 100 N.Y.2e1 407
(2003).

12. What if I am punished with
administrative sanctions, including a loss of
good time, for refusing to give blood?
Wouldn't that be a violation of the ex post
facto clause in those circumstances?
No. Courts that have examined this
question have f()tll1d that administrative sanctions
suffered by an inmate's refusal to provide blood
san1plcs, including loss of gc)()d tirne, are a result
of their failure to tallow lawful orders, and not a
result of the corntnission of a cntne. Therefore,
they have held, such sanctions do not violate the
e.X· POJ'! jiJito clause. See, e.g, Gilbert v. Peters, 55
F.3d 237 (7'" Cir. 1995); Kruger v. Erickson, 875
F.supp. 583 (D.Minn. 1995), ared on other
grounds, 77 F.3d 107l (8"' Cir. 1996); Cooper v.
Gammon, 943 S.\V.2d 699 (Mo. Ct. App. \V.I).
1997).

13. Does the law apply to me?
The DNA databank law applies to you in
two circumstances.
I. You were convicted of one of the following
"designated offenses" on or after December L
1999 or you were convicted of one of the
following offenses befiilP December 1. 1999 and
you arc still serving the sentence for that
conviction (even if you are on parole):
120.05 Assault in the 20d de!,"ee
12(1.06 Gang Assault in the 2nd degree
110.00/120.06 Attempted Gang Assault in the 2d degree
120.07 Gang Assault in the

l~t

degree

110.00!120JJ7 Attempted (;allg Assault in the 1"' degree
120.08 Assault ()11 a Peace,
Fireman or EMS professional

Police

t 10.00/120.08 Attempted Assault on a
Officer, ll'ireman or EMS Professional

Pcacc~

Officer,
Police

120.10 Assault in the 1st degree
110.00/120.10 Attempted Assaultin ti,e 1"' degree
120.11 Aggravated Assault upon a Peace or Police Officer

Pm Se Vol. 13 No.3 Page 22
d

11 0.00/120.11 Attempted A!',..l',1:avated Assault upon a
Peace Of Police Officer
'--

110.00/140.20 Attempted Burglary in the 3
140.25 Burglary in the 2nd degree

120.60(1) Stalking in the 1"' degree

1111.00/140.25 Attempted Burglary in the 2"J degree

125.15 Manslaughter in the 2nd degree

140.30 Burglary in the 1"t degree

125.20 Manslaui~Her in the 1"\ degrcc

110.00/140.30 Attempted Burglary in the 1" dewee

llO.00tI25.20 Attempted Mamlaughter iu the 1" degree

dewee

150.:15 Arson in the 2,,;1 degree

125.25 Murder in the 2",1 degree
110.00/150.15 Attempted Arson in the 2"d degree
110.110/125.25 Attempted Murder in the 2"; degree
150.20 Arson in the 1st degree

'125.27 Murder in the '1 ,-t degree
110.110/125.27 Attempted Murder in the 1"' degree

110.00/150.20 Attempted Arson in the 1" degre"

130.25 Rape in the 3"; degree

160.10 Robbery in the 2"" degree

130.30 Rape in dle 2m! degree

1J().(JO.160.10 Attempted Robbery in the 2"d degree

130.35

R~pe

in the 1'" degree

110.00/130.35 Attempted Rape in the 1"' de!,,,ee

160.15 Robbery in the j"' degree
110.00/160.15 Attempted Robbery in 'he I" degree

130.40 Sodomy in the 3d degree

215.16 Intimidating a Victim or \'(fitness in the 2,,;J degree

130.45 Sodomy in the 2'](\ degree

215.l7 Intimidatil1ga Victim orWitncss in the 'l'tdegrce

130.50 Sodomy in the -1"1 degree
110.00/130.50 Attempted Sodomy in the 1" degree

110,(10/215.17 Attempted lutimidating a Victim
\Vitness in the 101 degree

130.65 Sexual Abuse in the '1"1 degree

255.25 Incest

or

1d

130.66 Ago/avated Sexual Abuse in the 3 degree

265.1)2(4), (6), (8) Criminal Possession of a Weapon in the

130.67 Aggravated Sexual Abuse in the 2'd degree

}"1 degree

110.00/130.67 Attempted
in the 2n,1 degree

11l1.00/265J)2(4), (5) and (6) Attempted Criminal
Possession of a \Veapon in the 3Ed degree a3 a lesser
included offenses of that section as defined in 220.20 of
the Criminal Procedure Law

AI'6"avated
-

130.70 Aggravated Sexual Abuse in the

Sexual Abuse
1:it

degree

110.00/130.70 Attempted Ar,gravated Sexual Abuse iu
the 1:X degree
130.75 Course of Sexual Conduct Against a Child in the
1"1 degree
lHlOO/130.75 Attempted Course of Sexual Conduct
Against a Child in the 1St degree
130.80 CCHlfse of Sexual Conduct Agaimt a Child in the
2nd dcwee
135.20 Kidnapping in th(~

Ztd

degree

110.00/"135.20 Attempted Kidnapping in the 2"d degree

nd

265.03 Criminal Possession of a \Veapon in the 2 degree
110.00/265.03 Attempted Criminal Possession of a
\Veapon in the 2nd degree
265.04 Criminal Possession of a D;mgcrous \X!capon in
the1"\ degree
110.00/265.04 Attempted Criminal Possession of a
01
Danblt:fOus \X!eapon in the 1 degree
d

265.08 Criminal lJse of a Firearm in the 2 degree

01

135.25 Kidnapping in the 1 degree
11(1.00/135.25 Attempted Kidnapping in the I" degree

110.00/265.08 Attempted Criminal Use of a Fireaml in
the 2nd degree

140.20 Burglary in the )" degree

265.(19 Criminal Use of a Firearm in the 1'I degree

Pro Se Vol. 13 No.3 Page 23

110.00/265.09 Attempted Criminal Use of a Fire~lnn in
the 1d degree

220.43 Criminal Sale of a Controlled Substanc.e in the 1"\
degree

265.12 Criminal Sale of a Firearm in the 2nd degree

220.44 Criminal Sale of a COl1t:rollt~d Substance in or ncar
School Grounds

1Hl.OO/265.12 Attempted Criminal Sale of a Firearm in
the 2nd degree
265.13 Criminal Sale of il Fire,lnn in

tlH~

110.00/265.13 Attempted Criminal Sale of a Fireann in
the 1t·t degree
265.14 Criminal Sale of
!vtinor

l'l Fin~aml

A Correction

"I et det~rec

with the Aid of a

1l0.()O/265.14 Attempted Criminal Sale of a Firearm
with the Aid of a Minor

2. You 'were convicted of one of the following
offenses alld were convicted of one of thi,
offenses listed in section 1, above, within the
h,t five years:
205.10 Escape in the 2ed degree

205.15 Escape in the p'. degree

In our last issue ()f Pro Se we intended to
report on three cases from the Supreme
Court's 200212003 term which we felt
would be ()f interest to New York State
inmates. Due to a printinN error the
article appeared without the headline,
the introduction, or the first third of the
text. We regret the error and we reprint
the omitted material below. For those
who Wish to read the whole article, this
material should have preceded the text
that appears on paNe 6 (!f the Summer,
2003, issue (!f Pro Se,

205,17 Ahsconding from Temporary Release in the 1ct
degree
205.19 Ahsconding from a Community Treatment

3. You were convicted of one the followinv
offenses on or after December 1, 1999:
155.30(5) Grand Larceny in the 4 th degree
220.18 C:riminal Possession of a Controlled Substance in
the 2"d dt:gree
220.21 Criminal Possession of a Controlled Substance in
the pt degree

220.3'1 Criminal Sale of a Controlled Substance in the 5'h
degree
220.34 Criminal Sale of a Controlkd Substancc in the 4 th
degree
220.39 Crim..inal Sale of a Controlled Substance in the 3,d
derrrcc
,:>
220.41 Criminal Sale of a Controlled Substancc in the 2"d
degree

Supren1e Court AflirmH Novel ReMraintH
ConvictH' Freedom

011

The current Supreme Court term has
brought little good news felr inmates, as the
Court has upheld the constitutionality ofa variety
of new and novel laws intended to further reduce
the frcedolll of Vari(H,tS categories of offenders,
including "Megan's Laws" for sex ()ffendcrs,
"three strikes" laws for repeat offenders and
n1andatory inunig;ration detention for non-citizen
offenders. \Xle provide an overview, below.

Megan's Laws
In 1996, President Bill Clinton signed
legislation mandating that states adopt laws
requiring convictecl sex offenders t() rq.-;stet·,vith
localla\v enforcernent agencies after their release
and granting access to such information to the
public. Over time, all fifty states adopted some
version of what is commonly referred to as

Pro Se Vol. 13 No.3 Page 24

"Megan's La\v." Nt."W York's version, the Sex
Offender Registration Act, or SORA (Correction
Law § 168, ct. Jcq.) , requires sex offenders to
register their current address with the Division
of Crimiual Justice Services, assigns each sex
offender one of three "risk levels" and pennits
law enforcement agenCIes to provide
information about the offender to "entities with
vulnerable populations." The amount of
information that may be provided depends on
the risk level the offender h;L~ been assigned.
This term the Supreme Court upheld the
constitutionality of the Meg«n's Laws of both
Alaska and Connecticut. These decisions make it
highly unlikely that any hlture challenge to the
New York law would succeed.
The Alaska version of Megan's Law not
only requires sex offenders to register with the
authorities but also reqUIres that their
photographs and other identifying information
be placed on the Internet. Offenders who were
convicted before the law was enacted challenged
it on expOJ/fatto grounds. The expostjatta clause
of the constitution prohibits the imposition of
ne\v punishnlcnts on persons who were
convicted prior to the enactuaent of the
punishment. In Smith, et at, v. Doe, et. '11.,
_U.S.~ 123 S.Ct. 1140 (2003) the Court
rejected the plaintiffs' argument. The dispositive
question, according to the Court, was whether
the legislature intended to impose an additional
punishment on sex offenders or whether it
merely intended to enact a non-punitive, civil
regulatory scheme. Upon analysis, the Court
found that there was nothing in the statute to
indicate that the legislature sought to create
anything other than a civil scheme designed to
protect the public from harm. New Y01·k's
Megan's Law has already survived a similar
attack. See, Doe v. Pataki, 120 P.3d 1263 (2d. Cir.
1997).

The Connecticut version ofMegan's Law
requires persons convicted of sex offenses to
register with the Department of Public Safety
(DPS) when released and requires DPS to post a
sex offender registry containing the registrants'
names, addresses, photographs and descriptions
on the Internet and to make the registry available
to the public in certain state offices. The law was
challenged as violating the due process clause of
the 14'" Amendment, in that it did not provide
registrants with a pre-deprivation hearing to
determine whether they were likely to be
"currently dangerous." The Second Circuit
agreed, holding that the law deprived registered
sex offenders of a "liberty intel'est"without a due
process hearing. A similar challenge to New
York's law had previously succeeded 'Uld had
resulted in the Legislature amending the law to
provide additional due process protections to
offenders in risk level classitlcation hearings. See,
Doe v. Pataki, 3. P.supp.2d 456 (S.DN.Y. 1998).
In Connecticut Dept. of Public Safety v.
Doc, _ U.S. _, 123 S.Ct. 1160 (2003), however,
the Courtuphcld tlle Connecticut statute, finding
that a mere injury to one's reputation does not
constitute a deprivation of a liberty interest. This
makes it likely that the additional due process
protections added to the NLw York statute after
Doe would not currently be found to be required
by the federal constitution.

Pro Se is printed and distributed f."ee to
New York State prison law libraries
through a generous grant from the New
York State Bar Foundation.

EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ. CONTRIBUTOR:TOM TERRIZZI, ESQ.
COPY EDITOR: ALETA ALBERT PRODUCTION: DAVID BOISVERT EDITORIAL BOARD: TOM TERRIZZI, ESQ.,
BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ