Vol. 16 Number 4: December 2006 Published by Prisoners’ Legal Services of New York

“Boot the SHU” Bill Gains Momentum,
Despite Governor’s Veto
A coalition of inmates, former inmates, family
members of inmates, mental health advocates, and
civil rights supporters vowed to pass the “Boot the
SHU” law, notwithstanding Governor Pataki’s
recent veto of the bill passed this summer by both
houses of the State Legislature.
The law would ban the practice of placing
seriously mentally-ill inmates that have violated
prison disciplinary rules in the Special Housing
Unit (“SHU”) and keeplock and redirect them
instead to secure residential treatment facilities
operated jointly by the Department of Correctional
Services (“DOCS”) and the Office of Mental Health
(“OMH”).
The coalition believes that the law, which has
received broad public support, can be passed again
in the next legislative session when the new
Governor, Eliot Spitzer, takes office.
Governor Pataki’s veto came in the face of
continued public outcry against housing inmates
with serious mental illness in isolated confinement.
It has been estimated that there are some 7,0008,000 inmates in New York State who suffer from
a serious mental illness. A recent Department of
Justice study found that as many as 56% of state
prison inmates suffer from some form of mental
illness.
Many such inmates with mental illnesses are

unable to adjust to the stringent rules and
regulations of the general prison environment. They
often receive misbehavior reports and penalties for
conduct that is a symptom of their mental illnesses.
article continued on page 2…

Also Inside…
Court of Appeals
Deals Setback
to Civil Committment
of Sex Offenders . . . . . . page 3
Questions and More Questions
Re
Post-Release Supervision . . . . . page 9
Rockefeller Drug Law
Reform News . . . . . . . . . . . . . . . page 10
New Parole Cases . . . . . . . . . . . page 23
Subscribe to Pro Se! See back page for details

This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State Bar
Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do not represent
the official position or policies of the grantors.

Page 2
…article continued from page 1

Once in SHU or keeplock, inmates are
locked down 23 hours per day, with one hour
out of the cell for daily recreation. In some
solitary confinement cells a shower and a small
recreation area are attached directly to the cell,
meaning inmates never actually leave their cells
during the day. Inmates generally cannot access
educational or work programs, and eat meals
alone in their cells.
In such isolated environments, inmates often
experience a decline in their mental health.
Inmates who suffer from mental illness prior to
being placed in isolation can experience a sharp
decrease in their ability to function and an
increase in the severity of their symptoms. For
many, this means complete dysfunction. As
their illnesses--which include schizophrenia,
bipolar disorder, and severe depression--spiral
out of control, they accrue additional
disciplinary infractions, resulting in additional
SHU penalties and loss of good time. A vicious
cycle begins, in which misbehavior born of
mental illness leads to SHU time, which in turn
leads to increased symptoms associated with
mental illness, and even more SHU time.
In New York State there is no time limit on
how long an inmate may be housed in
SHU. There is also no maximum amount of
SHU time that can be issued for an infraction of
a prison disciplinary rule. The rate of suicide in
isolated confinement settings is three times that
of the general prison population. The great
majority of those who survive end up released
from isolation directly to their communities,
with no transitional services prior to release.
For three consecutive years, the Democraticcontrolled State Assembly passed legislation
preventing the housing of inmates with serious
mental illness in isolation for disciplinary
purposes. This year, for the first time, the
Republican-controlled State Senate passed

Pro Se Vol. 16 No. 4 December 2006

identical legislation, sending the bill to the
Governor for his review.
The bill the legislature passed would create
residential mental health treatment programs
jointly operated by the New York State Office
of Mental Health and the Department of
Corrections to house inmates with serious
mental illnesses and recurrent disciplinary
problems. The housing programs would provide
clinically-appropriate mental health treatment
while maintaining appropriate safety and
security. It also required: screening and ongoing
assessment of inmates for mental illness; annual
training provided for correction officers,
including training on the types and symptoms of
mental illnesses, the goals of mental health
treatment, and effective and safe management of
inmates with mental illness; and also significant
amounts of additional training regarding mental
health to the correction officers assigned to
work in the new treatment facilities.
The bill also created a mechanism for
outside oversight of the mental health treatment
provided in the prisons, to be performed by the
New York State Commission on Quality of Care
and Advocacy for Persons with Disabilities. The
State Commission is to work with a committee
that includes representatives of professional
associations of psychiatrists, psychologists and
social workers, mental health advocacy groups,
the New York State Commission on
Corrections, and the Correctional Association of
New York.
The bill included a provision that inmates
with a substantial risk of suicide or a history of
psychiatrically deteriorating in isolated
confinement would be considered for transfer to
a residential mental health treatment program.
Newspaper editorials throughout New York
State supported the legislation and called upon
the Governor to sign the bill. (See sidebar,
pages 4 and 5.) These editorials came not only
from large urban centers of New York City,

Pro Se Vol. 16 No. 4 December 2006

Albany, Rochester and Syracuse but also from
communities where a substantial percentage of
the workforce is employed by the New York
State prison system, including Elmira,
Plattsburgh, Auburn, and Poughkeepsie. Even
the union that represents the New York State
correction officers supported the bill.
In his veto message, the Governor noted the
prison system’s need to impose disciplinary
segregation “to protect inmates and staff from
those that are unwilling to adhere to even the
most minimum levels of civilized behavior….”
Bill supporters charge that the Governor’s
statement reflects a lack of understanding of the
behaviors associated with mental illness and the
harmful effects of isolated confinement.
The wide support the “Boot the SHU” bill
has received is one step toward creating humane
treatment settings for inmates with mental
illness while also assuring prison safety. This
support will be vital as public momentum for
this measure grows, notwithstanding Governor
Pataki’s veto.
News and Briefs
Court of Appeals Rejects Pataki Effort to
Civilly Commit Sex Offenders but Leaves Door
Open to Future Efforts
On November 21, 2006, the New York
Court of Appeals rejected Governor Pataki’s
efforts to civilly commit sex-offenders, holding,
in Harkavy v. Consilvio, 2006 WL 3359081
(November 21, 2006), that the State cannot use
Mental Hygiene Law procedures instead of
Corrections Law procedures to involuntarily
commit inmates to a mental hospital beyond
their release dates.
This decision is a limited victory for inmates
convicted of a sexual offense who fear that they

Page 3

will be involuntarily committed to a mental
facility rather than released to the community.
Below, we explain the decision’s background,
what it means, and what the future holds.
Background: Efforts to Involuntarily
Commit So-Called “Sexual Predators”
Over the years, New York state legislators
have introduced bills in both houses of the
legislature calling for the involuntary
commitment of so-called “sexual predators.”
The proposed laws differ in details, but all
provide that inmates convicted of a felony sex
offense (or a sexually motivated homicide or
kidnapping), may be involuntarily committed to
a mental facility if found to suffer from a mental
abnormality which makes it likely that they will
commit another sexual offense in the future.
Governor Pataki has long been among the
most vocal supporters of such legislation. By
September 2005, he had grown frustrated that
the Legislature had not yet passed his proposed
bill, and he decided to take matters into his own
hands. He ordered the OMH and DOCS to
ensure that, prior to their release, every inmate
convicted of a felony sex offense be evaluated
for involuntary commitment. As of November
2006, OMH and DOCS had screened over 787
inmates. One hundred and twelve of them have
been involuntarily committed to mental health
facilities rather than released to the community.
In doing so, Pataki publicly stated that he
was “pushing the envelope” of the law. He
argued that he could proceed pursuant to
procedures provided by the Mental Hygiene
Law. Those procedures required only that the
inmate be evaluated by two OMH physicians,
who would decide if the inmate suffered from a
mental illness that would make it likely that the
inmate would commit another sexual offense if
article continues on page 6…

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Pro Se Vol. 16 No. 4 December 2006

Remembering Attica:
A veto by Gov. Pataki shows N.Y. may have too easily forgotten
Rochester Democrat & Chronicle Editorial September 8, 2006
In this season of seemingly unrelenting anniversaries of major tragic events, the 35th
anniversary of the Attica prison riot may have slipped the minds of many. However fatigued
people may be of looking back at horror, the worst prison riot in American history must not be
forgotten. The Attica uprising and massacre, which claimed the lives of 43 people, including
10 hostages, and resulted in 90 others being wounded, should serve as a reminder to stay
vigilant about prison conditions. It was prisoner abuse and mistreatment and/or the perception
of both that led to the Sept. 9, 1971, rioting.
Sadly, Gov. Pataki recently vetoed legislation that took a major step toward allaying
concerns about prisoner mistreatment, He said no to a reasonable proposal adopted by the
Legislature that would have banned placing mentally ill inmates in solitary confinement. Never
mind that an estimated 7,500 inmates suffer mental illness and that there are only 700 beds set
aside for them.
Because Pataki’s veto was one of 70 he issued around the same time this summer, this page
can only hope that he took enough time to seriously consider the impact of his action. Does he
really believe that it’s OK to keep mentally ill inmates in solitary confinement for 23 hours a
day as a study by the Correctional Association of New York found? The association also found
that a third of those inmates reported self- mutilation and more than 40 percent reported
attempted suicide.
Even states with reputations for being tough on crime such as Texas and Florida already
have laws banning solitary confinement for mentally ill prisoners. It shouldn’t have to take
another prison riot and the loss of lives before New York acts responsibly. Now it’s left to the
state’s next governor, to be elected in November, to make sure that New York doesn’t repeat
the mistakes of the past.
Pataki’s No-Care Package:
Govs Move Will Keep Mentally Ill Inmates In Solitary And Is Sure To End More Lives
by Errol Louis, New York Daily News. August 18. 2006
It looks like Gov. Pataki won’t be running for President as a compassionate conservative.
A few days after hobnobbing with potential voters at the Iowa State Fair - a well-known early
stop for White House hopefuls - Pataki flew back home and this week and vetoed a bill,
overwhelmingly approved by the New York State Legislature, that would ban state prisons
from putting mentally inmates in solitary confinement.

article continues on page 5…

Pro Se Vol. 16 No. 4 December 2006

Page 5

…article continued from page 4

Pataki should be ashamed of himself. Putting mentally ill people in solitary confinement is an
indefensible practice that should have been halted long ago. An estimated 8,000 state prisoners 12% of the overall population - are mentally ill, often in ways that make them disruptive. Our state
prisons often put these sick people in isolated confinement for 23 hours a day, mostly in what are
euphemistically called special housing units.
Pataki should be ashamed of himself. Putting mentally ill people in solitary confinement is an
indefensible practice that should have been halted long ago. An estimated 8,000 state prisoners 12% of the overall population - are mentally ill, often in ways that make them disruptive. Our state
prisons often put these sick people in isolated confinement for 23 hours a day, mostly in what are
euphemistically called special housing units.
The mind-bending state of these units has been documented by the Correctional
Association of New York, which runs a prison visitation committee that spoke with 162 mentally
ill prisoners locked in solitary. “We interviewed men who were weeping in their cells, who
mutilated their own flesh, who hadn’t left their cell in months, who smeared feces on themselves
or repeatedly attempted suicide,” the group testified in 2003. At times, the visits had to be
suspended because of “inmates yelling or banging on their doors, calling out for help.” Solitary
lock-down only makes sick prisoners more ill, according to Community Access, Inc., an advocacy
group for the mentally ill that has been pushing for change. And the Urban Justice Center, another
advocacy group, estimates that 700 mentally ill people are in lock-down right down.
Ten states have already banned the practice of putting mentally ill inmates in solitary. The list
includes California, Colorado, Connecticut, Florida, Indiana, New Jersey and Texas - places not
known for being soft on crime or prisoners. The New York Legislature, in a rare show of
bipartisanship, voted overwhelmingly this year to ban the practice of locking mentally ill prisoners
in solitary and instead give them treatment in secure prison hospital wards. The Republican-led
state Senate, which often balks at expanding prisoners rights, approved the bill unanimously. Even
the main guards union, the New York State Correctional Officers and Police Benevolent
Association, supported the bill, recognizing that decisions on how to confine mentally troubled
prisoners should be made by medical staff, not guards.
Pataki vetoed the bill anyway, despite compelling evidence that his action will cost lives. From
1998 to 2004, at least 52 state prisoners committed suicide while housed in isolated confinement.
One them was the son of Elsie Butler, part of a group of bereaved mothers who petitioned Pataki,
in vain, for a measure of compassion. “On June 3, 2000, my son James Butler hung himself with
a sheet while in solitary confinement in the Fishkill Correctional Facility,’ says Butler. “He had
bipolar disorder and was suffering after being in the box for nearly 200 days straight.” Pataki,
pursuing his political dreams in Iowa and New Hampshire, was not swayed by the pleas and
petitions of Butler and other mothers. Ray Ortiz, a former inmate who now works at the Urban
Justice Center and meets weekly with inmates who have psychiatric illnesses, was bluntly truthful
in describing the result of Pataki’s hard-hearted approach at a recent press conference. “There are
young men and women in these cells right now. Some will kill themselves,” said Ortiz. “Others will
cut themselves - each of them hearing voices and going deeper into the darkness.”

Page 6

Pro Se Vol. 16 No. 4 December 2006
…article continued from page 3

released to the community. If both OMH
physicians agreed, then the prison
superintendent would complete an application
for involuntary commitment, and the inmate
would be transported to an inpatient OMH
hospital rather than released to the community.
The inmate would not be provided notice of the
pending involuntary commitment, an
opportunity to be heard, or legal representation
until after he had already been committed.
The Harkavy Case
Not long after OMH and DOCS initiated
this program, Mental Hygiene Legal Services
(“MHLS”) filed a lawsuit seeking the release of
twelve ex-prisoners who had been transferred
from prison to mental hospitals rather than
released. In its suit, MHLS did not claim that
DOCS had no authority to civilly commit an
inmate. Instead, it argued that the proper
procedure was provided for in Correction Law
§ 402, not the Mental Health Law. Correction
Law § 402 differs from the Mental Hygiene
Law in several meaningful ways. First, the
Correction Law requires a judge to be involved
in the process and to appoint two independent
physicians, rather than OMH physicians, to
examine the inmate, and the examination must
take place before the inmate is involuntarily
committed. Second, if the independent
physicians agree that the inmate should be
committed, then the inmate must be 1) notified;
2) provided a hearing, upon request; 3)
appointed counsel; and 4) provided a chance to
seek an independent medical opinion. See
Correction Law § 402(3). All of this must occur
before the inmate is involuntarily committed.
DOCS and OMH argued that they could use
the Mental Hygiene Law, which provides
inmates virtually no rights prior to being
involuntarily committed. They rationalized that

it was permissible to use the Mental Hygiene
Law because the inmates were no longer
undergoing a sentence of imprisonment at the
point that they were committed. The lower court
disagreed, stating that “the plain truth of the
matter is that each of the Petitioners were, in
fact, imprisoned at the time of their
commitment,” and DOCS and OMH were thus
bound to comply with Correction Law § 402.
See Harkavy v. Consilvio, 809 N.Y.S.2d 836,
839 (N.Y. Sup. Ct. 2005).The State appealed
this decision, and in March 2006, the Appellate
Division reversed the lower court, stating that it
was permissible to use the Mental Hygiene Law
to involuntarily commit inmates about to be
released. See Harkavy v. Consilvio, 812
N.Y.S.2nd 496 (1st Dep’t 2006). MHLS
appealed this decision to the Court of Appeals,
New York’s highest court.
The Court of Appeals agreed with the lower
court. Reversing the Appellate Division, it held
that because the inmates were imprisoned at the
time of their commitment, DOCS and OMH
must comply with the procedures set forth in the
Correction Law § 402. Harkavy v. Consilvio,
2006 N.Y. Slip. Op. 140, N.Y.C.A.,
November 21, 2006, at 4 (“We disagree that
proceeding under the Mental Hygiene Law was
proper, since Petitioners were still prison
inmates and therefore subject to the provisions
of the Correction Law at the time the
applications were initiated.”). The Court,
however, declined to release the inmates who
had been improperly committed under the
Mental Hygiene Law, and instead ordered that
they be afforded “an immediate retention
hearing pursuant to Article 9 of the Mental
Hygiene Law--now controlling since they are no
longer serving a prison sentence.” Harkavy at 9.
The Court used “public safety” to justify its
decision not to release those former inmates
improperly committed under the Mental
Hygiene Law, stating, “we understand how in
an attempt to protect the community from

Pro Se Vol. 16 No. 4 December 2006

violent sexual predators, the State proceeded
under the Mental Hygiene Law. We do no
propose that these Petitioners be released, nor
do we propose to trump the interests of public
safety. Rather, we recognize that a need for
continued hospitalization may well exist.”
Harkavy at 8-9.
Understanding Harkavy
The Court of Appeals did not hold that it is
illegal to involuntary commit inmates who have
been convicted of a felony sexual offense. There
is good reason for this. Currently, 18 states have
enacted legislation that permits the involuntary
commitment of inmates to mental facilities
beyond their release date, and the United States
Supreme Court has upheld such legislation. In
Kansas v. Hendricks, 521 U.S. 346 (1997), for
example, the Supreme Court upheld a law that
allowed inmates to be involuntarily committed
to mental hospitals rather than released,
reasoning that such legislation was intended to
protect the public. Since public safety, and not
punishment, was the legislation’s ultimate goal,
the involuntary commitment was “civil” and not
“criminal,” and thus, did not violate the Double
Jeopardy and Ex Post Facto Clauses of the
United States Constitution. Kansas at 365.
The Harkavy decision only states that
DOCS and OMH cannot rely on the Mental
Hygiene Law alone to involuntarily commit
inmates, but must use the Correction Law,
which provides the inmate with several
procedural protections. Once committed,
however, Correction Law § 404 specifically
authorizes OMH to use the procedures set forth
in the Mental Hygiene Law to commit an
inmate beyond his or her release date. See
Harkavy (“An inmate committed to a
psychiatric facility who is nearing the end of a
term of imprisonment may, on application by
the director of the hospital be admitted to the
care of OMH pursuant to the Mental Hygiene

Page 7

Law.”). In short, involuntary commitment can
lawfully occur as long as DOCS and OMH
initially follow the procedures set forth in
Correction Law § 402.
What the Future Holds
In addition to outlining legally-permissible
procedures for involuntarily committing inmates
deemed to be “sexual predators” beyond their
release dates, the Harkavy decision also
prompted Governor Pataki to urge New York
legislators to pass legislation specifically
designed to involuntarily commit so-called
“sexual predators.” The day the Court of
Appeals decided Harkavy, the Governor issued
a press statement in which he stated that “in the
coming days I will call a special session to
consider legislation to address this critical
issue.” It remains to be seen if Governor
Pataki’s proposed legislation will be enacted
before January 2007, when Governor-elect
Spitzer is sworn in. Even if it is not enacted
under Governor Pataki’s tenure, there is a strong
possibility that efforts to involuntarily commit
those convicted of a felony sexual offense will
continue under Governor-elect Spitzer’s
administration, as he has publically stated that
he supports such efforts.
Many inmates, of course, want to know if
they will be involuntarily committed rather than
released to the community. Unfortunately, it is
impossible to predict who will be subject to
involuntary commitment--whether it be done
through the method endorsed by the Court of
Appeals in Harkavy or accomplished through
the legislation that Governor Pataki has
proposed. Both methods require physicians to
determine if an individual convicted of a felony
sexual offense is likely to commit another
sexual crime if released to the community.
There is no precise formula for making this
determination, and as a result, neither PLS nor
MHLS can predict in individual cases whether

Page 8

involuntary commitment is a likely possibility.
We can tell you, however, that if you have
been convicted of a sexual offense, or a
kidnapping or homicide that was sexually
motivated, it is likely that prior to your release,
DOCS may use the procedures set forth in
Correction Law § 402 to involuntarily commit
you to a mental hospital, and that once there,
OMH may try to use the Correction Law and
Mental Hygiene Law to keep you past your
release date. Fortunately, because of the Court
of Appeals’ decision in Harkavy, you will have
advance notice of any efforts by DOCS to
involuntarily commit you, and you will be
afforded the right to counsel and to a hearing.
Questions Re Post-Release Supervision Lead
to…More Questions
In 1998, when the State Legislature
introduced determinate (“flat”) sentences, it
included a provision requiring that every such
sentence be followed by a period of “postrelease supervision”(“PRS”). (See Penal Law §
70.45.) When sentencing courts began to
impose these sentences, however, they often
neglected to mention PRS, either at the
sentencing hearing or on the commitment sheet.
As a result, many inmates arrived in DOCS with
determinate sentences--but no PRS.
In response, DOCS adopted a policy of
administratively adding PRS to the determinate
sentence if the sentencing court had failed to do
so. If, for example, an inmate entered the system
with a determinate sentence and the sentencing
court had failed to specify that the sentence
would be followed by a period of PRS, DOCS
simply adjusted the inmate’s Legal Date
Computation to reflect the amount of PRS it
believed the law required. (According to one
DOCS’ official, DOCS did not keep track of the
sentences that they amended in this way, but
believe post-release supervision has been
administratively added in this way to more than

Pro Se Vol. 16 No. 4 December 2006

1,000 determinate sentences over the past eight
years.)
Until recently, state courts had upheld
DOCS’ policy. In Matter of Deal v. Goord, 778
N.Y.S.2d 319 (3d Dep’t 2004), appeal
dismissed 786 N.Y.S.2d 814 (2004), for
instance, the Petitioner argued that DOCS had
no authority to add PRS to his sentence if the
sentencing court had not done so. He asked the
court to strike it. The court refused, holding that
in adding the PRS term, DOCS was merely
“enforcing a statutorily-required part of [the]
sentence” and was not performing an
impermissible judicial function.
As we reported in the last issue of Pro Se,
however, a federal appeals court last summer
held the policy unconstitutional. In Earley v.
Murray, 451 F.3d at 74 (2d Cir., June 19, 2006),
the court held that PRS may only be added to a
sentence by the sentencing court. Any
administrative addition of PRS by DOCS is a
“nullity.”
Later in the summer, the State moved to reargue Earley. In a decision dated August 31,
2006 (462 F.3d 147), the court denied the
State’s motion, holding: “A judicially-imposed
sentence includes only those elements explicitly
ordered by the sentencing judge.… The
sentence imposed remains the sentence to be
served unless and until it is lawfully modified.”
The court noted that its decision “may call into
question the validity of the PRS components of
numerous sentences.” Nevertheless, the court
held, “[w]e…adhere to our [prior] ruling.”
Earley v. Murray, 462 F.3d 147.
Because Earley is a federal decision which
conflicts with earlier state decisions on the same
issue, it is not directly binding on state courts.
In People v. Kin Kan, 78 N.Y.2d 54 (1991), the
New York Court of Appeals held that while the
state courts (like all courts) are controlled by the
constitutional interpretations of the United
States Supreme Court, they are not bound by the
interpretations of the lower federal courts (like

Pro Se Vol. 16 No. 4 December 2006

the court that decided Earley). DOCS has
refused to voluntarily abide by Earley. It argues
that unless the Supreme Court addresses this
issue, or the state courts change their mind, it
can continue to add PRS to inmates’ sentences
and enforce PRS periods that it previously
added. This means that an inmate cannot go to
state court, cite Earley, and expect the court to
automatically strike PRS from the sentence.
State court decisions since Earley have been
mixed. Some state courts have found Earley
persuasive, even if it is not controlling, and
ordered DOCS to remove PRS from the
inmate’s sentences. See, for example: Waters v.
Dennison, Index # 1789/06 (Sup. Co., Bronx
County, November 3, 2006) (holding that
Earley provides “useful and persuasive
authority” and granting the inmate’s Article 78
proceeding asking that the PRS be stricken from
his term); People ex rel Jackie Lewis v. Warden,
2006 WL 3391221 (Sup. Ct., Bx Co., Nov. 24,
2006) (finding Earley “extremely persuasive”
and granting the Petitioner’s habeas corpus
proceeding); and People v. Ryan, 13 Misc.3d
451 (Sup. Ct., Queens Co., July 28, 2006)
(applying Earley). Others, however, have
concluded that they are bound by the pre-Earley
decisions of the state appellate courts, and until
those courts change their minds, they are bound
to follow them. See, for example: People ex rel
Nelson v. Warden, Index # 51575/06 (Sup. Ct.,
Bronx Co., October 23, 2006) (holding that
Earley was not controlling and prior state court
decisions prohibited the court from ordering
DOCS to strike the PRS term from the
sentence.)
Where do these cases leave inmates who
have had PRS administratively added to their
sentence? Prisoners’ Legal Services’ best
advice, at present, is this:
1. If you are serving a determinate sentence
and have not yet been released to parole,
you could file an Article 78 proceeding in

Page 9

state court asking the court to order DOCS
to strike the PRS term. See, for example,
Waters v. Dennison, cited above. There is
no guarantee you will win, however.
Therefore, if you still have a year or more
left to serve on your sentence, the best thing
to do at present may simply be to wait. If
you are not scheduled to be released from
prison in the immediate future, we see little
reason for you to rush to court. The conflict
between the state and federal courts is likely
to be addressed by the state appeals courts
within the next six months. If those courts
decide to follow Earley, you can go to court
at that time and be assured a win. If the
appeals courts decline to follow Earley, you
will be in no worse a situation than you are
currently in, and you would still have the
option of pursuing this matter in federal
court once you are released. (Remember: If
you do decide to bring an Article 78
proceeding, you must first exhaust your
administrative remedies. To do this, you
should write a letter to your IRC asking him
or her to vacate the PRS term that DOCS
imposed. If and when they refuse, you could
appeal the decision by writing to the
Commissioner of Correctional Services, in
Albany.)
2. If you are currently in prison based on
solely a revocation of PRS, you should file
a habeas corpus proceeding in state court.
See People ex rel. Lewis v. Warden, cited
above. Given the unsettled nature of state
law, you might lose (as the Petitioner did in
Nelson, above). However, Earley provides
a strong argument that you are entitled to
immediate release. Furthermore, since you
would be entitled to immediate release
should you prevail, there is no reason for
you to “wait and see” how the issue is
resolved. In addition, you will need to
exhaust your state court remedies in order to

Page 10

bring this issue to federal court at a later
date.
3. One thing you should probably not do is file
a CPL “440" motion with your sentencing
court. Such motions are used when the
sentencing court has imposed an illegal
sentence. A determinate sentence, without
post-release supervision, is an illegal
sentence. However, the only remedy that the
sentencing court can offer you in a 440.20
motion is the opportunity to vacate your
plea bargain. You might then be able to renegotiate your sentence, but any sentence
you received would, of necessity, include
PRS. (It is even possible that the end-result
will be a sentence that is longer than the
sentence the court originally gave you. See,
for example, People v. DeValle 94 N.Y.2d
870 (2000)[holding that the Defendant who
received an illegal sentence and refused to
withdraw his guilty plea could be resentenced to a term longer than the
bargained-for sentence.]) So unless you are
prepared to withdraw your plea bargain, a
“440" motion is not the way to go.
Why can’t you bring a habeas corpus
proceeding immediately in federal court? The
reason is two-fold. First, in order to bring a
habeas corpus proceeding, either in state or
federal court, you must be able to show that, if
you win, you will be eligible for immediate
release from prison. Thus, the only persons who
could bring a habeas corpus proceeding are
those who are in prison based solely on a
revocation of PRS. If you are still serving the
original incarceration period of your
determinate term, you could not bring a habeas
corpus proceeding.
Second, in order to bring a habeas corpus
proceeding in federal court, you must first
exhaust your state court remedies.
As we stated in the last issue of Pro Se, this

Pro Se Vol. 16 No. 4 December 2006

is a rapidly developing area of law. It is difficult
at this stage to have more definite answers to
the many questions that arise from the Earley
case. Stay tuned to future issues of Pro Se for
any new developments.

Rockefeller Drug Law Reform: New Drug
Sentences Held Not Retroactive; Lower Court
Decision Holding That A-II Offenders Must
Be 3 Years From Parole Eligibility Date for
Re-Sentencing Remains the Law
The Drug Law Reform Acts (“DLRA”) of
2004 and 2005 were welcome, if modest,
reforms of the harsh, Rockefeller-era drug laws.
They provided for new, less severe, sentences
for drug offenses committed after January 13,
2005. They also allowed persons convicted of
A-I drug offenses and some persons convicted
of A-II drug offenses prior to January 13, 2005,
to apply to be re-sentenced to one of the lesser
sentences.
Several outstanding questions about the law
were recently addressed by the Court of
Appeals.
One question concerned persons whose
offense occurred prior to January 13, 2005, but
who were not sentenced until after that date.
Should they be eligible for one of the new,
lesser sentences? Wouldn’t it be unfair to give
them one of the old, longer sentences, even after
the Legislature has declared that those sentences
were excessive? As it happens, there is a legal
doctrine which provides just that. It says that
when a legislature lowers the penalty for a
crime, any further imposition of the old penalty
would therefore be unfair. It is called the
“amelioration doctrine.”

Pro Se Vol. 16 No. 4 December 2006

In People v. Utsey, 7 N.Y.3d 398 (2006),
however, the Court of Appeals held that the
amelioration doctrine did not apply to the
DLRA. In the DLRA, the Court noted, the New
York Legislature specifically provided that the
new sentences would only apply to crimes
committed after January 13, 2005. In doing so,
the Court held, “the Legislature manifested a
clear intent to negate the amelioration doctrine”
with respect to the new law. Therefore,
according to Utsey, the amelioration doctrine
does not apply, and no person who committed
their crime prior to January 13, 2005 is eligible
for one of the new sentences, even if they
received the sentence after that date.
Another outstanding question concerned the
criteria that A-II drug offenders who were
sentenced prior to January 13, 2005 must meet
in order to be eligible to apply for re-sentencing.
The relevant statute lists several criteria. One of
them is that the offender be “more than twelve
months” from being eligible for temporary
release.
An inmate is eligible for temporary release
if he is “eligible for release on parole or…will
become eligible for…parole or conditional
release within two years.…” See Correction
Law § 851(2) (emphasis supplied).
The question arose: Must an A-II offender
be “more than twelve months” from his parole
eligibility date (i.e., more than one year from
parole eligibility)? Or must he be “more than
twelve months” from being “within two years”
of his parole eligibility date (i.e., more than
three years from parole eligibility)?
Several trial courts had divided over this
question. In People v. Bautista, 809 N.Y.S.2d
62 (1st Dep’t 2006), however, the Appellate
Division, First Department, held that, when read
together, the two sections of the Correction Law
require that an A-II drug offender be more than
three years from his or her parole eligibility to
be eligible for re-sentencing.

Page 11

The Court of Appeals side-stepped the
question on the grounds that it did not have any
statutory authority to review the decisions of the
lower courts in re-sentencing cases.
That means that the decision in Bautista-that A-II offenders must be more than three
years from their parole eligibility dates to be
eligible for re-sentencing--stands.
Efforts of Shi’a Muslim Inmates to Obtain
Separate Services Falter
Orafan v. Goord, 411 F.Supp.2d 153 (N.D.N.Y.
2006)
Matter of Holman v. Goord, 12 Misc.3d
1174(A) (Sup. Ct., Sullivan Co., June 29, 2006)
(LaBuda, J.)
Six years ago, in Cancel v. Goord, 278
A.D.2d 321 (2d Dep’t 2000), a state appeals
court held that there was “overwhelming
evidence” of significant differences in belief
and practice between Sunni and Shi’a Muslim
communities. As a result, the court held, the
denial of a Shi’ite inmate’s grievance requesting
separate worship facilities “was arbitrary and
capricious and in violation of Correction Law
§ 610.” (Correction Law § 610 provides that
DOCS “shall recognize the right of the inmates
to the free exercise of their religious belief.…”)
The court ordered DOCS to conduct
administrative proceedings “to determine the
manner in which to best afford Shi’ite inmates
separate religious services, under appropriate
Shi’a religious leadership, in a time and placed
that comport with legitimate penalogical
concerns.”
In response to this order, DOCS consulted
with Islamic organizations all over New York to
seek direction in Islamic doctrine, tradition and
ritual. As part of that effort, DOCS officials met
with Shayk Fadhel Al-Sahlani, a religious
scholar at the Imam Al-Khoei Foundation, the

Page 12

Shi'ite Islamic Center in Jamaica, Queens, that
had served as outside ecclesiastical advisor to
the Plaintiff in the Cancel litigation. Shayk AlSahlani advised the DOCS officials that Shi’ite
inmates could worship in the same religious
services as Sunni Muslims, but that special care
was needed to ensure that Shi’ite inmates were
not harassed because of their beliefs.
Accordingly, DOCS designed a new protocol to
ensure that the rights of Shi'ite inmates were
respected and protected. The new protocol
called for all employees, including Chaplains,
volunteer Chaplains, and inmate facilitators to:
T refrain from making disparaging remarks
about a religion or its followers;
T designate the Imam Al-Khoei Islamic
Center as DOCS’ official Muslim authority;
T allow Shi’ite Muslim inmates to attend
separate Shi’ite religious education and
study classes, and to utilize Shi’ite Muslim
inmate facilitators;
T give Shi’ite Muslim inmates a full and equal
opportunity to participate in the weekly
Friday Jumah service;
T include observances unique to Shi’ites in
DOCS’ revised religious observance
calender; and
T give Shi’ite Muslim chaplains the
opportunity to officiate at the service.
Further, at least one member of the Muslim
Majils, the governing boards of the individual
prisons’ Muslim communities, is required,
under the protocol, to be a Shi’ite Muslim.
The new protocol did not, however, call for
a separate Jumah service for Shi’ite inmates.
DOCS has argued that it fulfilled its obligations
under Cancel in good faith by meeting with
respected Shi’ite leaders and learning from them
that separate Jumah services were not
necessary, and by instituting a protocol to insure
respect for Shi’ite practices. DOCS also argued
that it would be overly burdensome to permit
separate Jumah services, because such services
would heighten rivalry among inmates

Pro Se Vol. 16 No. 4 December 2006

belonging to different groups, thereby causing
increased security concerns, and would increase
pressure upon DOCS to recognize other
sub-groups that may be used as a subterfuge for
gang-related activity and require it to set-aside
additional prison space and personnel to
supervise the program.
Many Shi’a, however, were dissatisfied by
the new protocol, and continued to litigate the
question of whether the constitution requires
DOCS to provide them with separate Jumah
services. Federal and state courts have ruled
against them.
Four years ago, in Pugh v. Goord, 184
F.Supp.2d 326 (S.D.N.Y. 2002), a federal
district court for the Southern District of New
York held that the protocol represented a
“reasonable” compromise: it adequately
balanced Shi’ite inmates’ interests against
DOCS’ assertion that providing separate Jumah
services would be overly burdensome. The
court emphasized that the underlying tenets of
Shi’ite and Sunni belief are the same and that, to
the extent that practice differs, the protocol
protects Shi’ites from discrimination and
provides a complaint mechanism to be used if
its provisions are violated.
More recently, in Orafan v. Goord, Shiite
plaintiffs tried again in federal court, this time
bringing their claims under the Religious Land
Use and Institutionalized Persons Act of 2000
(“RLUIPA”), which provides more legal
protection to inmates’ religious rights than the
First Amendment (See Pro Se, Summer 2006,
for more discussion of RLUIPA.). In the new
complaint, the inmates argued that not only are
they not provided with separate Jumah services,
but they cannot receive proper religious
guidance from Sunnis, they have suffered acts
of hostility and discrimination against them
based on their religion, and DOCS has violated
the Establishment Clause by making Sunni
Islam the official version for the prison system.

Pro Se Vol. 16 No. 4 December 2006

The court rejected all of these claims. It held
that DOCS’ practices had not substantially
burdened Shi’a inmates’ rights to practice their
religion. Some Shi’a, the court noted, do attend
the congregate Jumah service and others may
satisfy their prayer requirement by individual
prayer. The court also agreed with DOCS’
arguments that unified Shiite/Sunni services
served a compelling state interest because
separate services would require additional
staffing. The court took notice of DOCS’
reference to a time “when Muslim prisoners
were divided into two groups: a generic faith
and the American Muslim Mission. Inmates in
the two programs competed for members, and
violence ensued on many occasions. To combat
the divisiveness, DOCS unified the programs,
and Muslim inmates have since peacefully
coexisted in the generic Islamic program.”
Most recently, in Matter of Holman v.
Goord, 12 Misc.3d 1174(A) (Sup. Ct., Sullivan
Co., June 29, 2006), a State court found that the
term “separate religious services” in the Cancel
decision did not require that DOCS provide
separate Jumah services for Shi’ite and Sunni
Muslims, but only referred “generally to various
services DOCS may provide to accommodate
inmates’ religious practices.” “If the [Appellate
Division] truly intended to provide a specific,
Friday Jumah service, it would not have
remanded the case to DOCS with orders to
structure a remedy,” the court continued.
The record is clear that DOCS complied
with the court's order to determine the
manner in which to best afford Shi'ite
inmates religious services within the
state's penological interests. DOCS
spent over two years reaching out to
Islamic organizations, including several
Shi'ite organizations and leaders, in
efforts to learn matters of Islamic
doctrine, tradition, and ritual. The
end-product was the Protocol, which is

Page 13

a sincere and adequate effort to provide
for the needs of the Shi'ite inmate
population. Thus, Petitioner's assertion
that DOCS has not complied with the
court order in Cancel, is incorrect.
Nor, the court continued, does denial of
separate Friday Jumah services violate the
constitution. “Even assuming that a separate
Jumah service is required by Shi’ite beliefs,” the
court wrote, “an inmate’s entitlement to it
would still have to be balanced against DOCS’
compelling and legitimate penological
objectives of maintaining safety and security
within the prison.” The protocol, the court
continued, “provides Shi’ites full opportunity to
participate in the Friday Jumah service and
extends invitation to Shi'ite chaplains to
officiate at those services. “The alternative,” the
court concluded--providing every religious
denomination with a separate service--would
have a “disastrous” affect on DOCS’ ability to
safely and securely manage its facilities.
Thus, both State and Federal courts have
now upheld DOCS’ protocol for the treatment
of Shi’ite inmates, even though it does not
require separate services, and rejected Shi’a
claims of unconstitutional discrimination.
Federal Cases

Second Circuit: A Compromise on Damages
for Time in SHU
Inmates often write to PLS asking whether
they can file a 1983 action in federal court,
seeking money damages for time they spent in
SHU. Generally, the answer is “no”--unless the
disciplinary hearing about which the inmate
wants to sue has been previously reversed by
DOCS or by a state court or in a federal habeas
corpus proceeding. A recent decision by the

Page 14

Second Circuit Court of Appeals, however,
changes this rule. Now the answer is “yes”--if
you are willing to forego damages for any good
time you may have lost at the hearing. This
article is intended to inform you of the recent
decision, Peralta v. Vasquez, 467 F. 3d 98 (2d
Cir. 2006), and to give you some of the
background that led to the decision.
Background
Inmates have a constitutional right to
minimal due process protections before they can
be disciplined. In 1974, the Supreme Court
established the procedural protections that must
be provided inmates before the state may take
away their good time. Wolff v. McDonnell, 418
U.S. 539, 94 S.Ct. 2963 (1974). They are:
1) written notice of the charges at least 24
hours before appearing at a hearing;
2) the right to call witnesses and present oral
and documentary evidence at the hearing
unless doing so would present too great a
risk to prison safety or penal goals; and
3) the right to receive a written statement of
the findings of fact which explains the
evidence relied upon and the reasons for the
penalty.
Lower courts have extended those protections in
which an inmate may be placed in solitary
confinement, such as SHU.
Since Wolff, thousands of lawsuits have
been filed by inmates seeking money damages
on the grounds that they either lost good time or
were placed in SHU in violation of their due
process rights. In some of these cases, inmates
prevailed and were awarded monetary damages
for the time they spent in SHU.
Over the years, however, the Supreme Court
has made it more and more difficult for inmates
to prevail in such cases. First, the Court held
that in order to obtain anything more than
nominal damages (i.e., $1.00), an inmate must
prove not only that his due process rights were

Pro Se Vol. 16 No. 4 December 2006

violated in the disciplinary hearing, but also that
the result of the hearing would have been
different if his rights had not been violated.
Carey v. Piphus, 435 U.S. 247 (1978). Second,
the Court held that inmates are only entitled to
due process protections at all if the penalty
imposed at the hearing resulted in conditions of
confinement that were “atypical and significant”
in relation to the ordinary prison conditions.
Sandin v. Conner, 115 S.Ct. 2293 (1995). Third,
in Edwards v. Balisok, 520 U.S. 641 (1997), the
Court held that inmates can only obtain
damages for time spent in SHU if they can show
that the hearing that resulted in the SHU time
had been previously reversed, either by the state
itself in an administrative or court proceeding,
or in a federal habeas corpus proceeding.
The Favorable Termination Rule
The Balisok case was rooted in the desire of
the Supreme Court to distinguish between
habeas corpus proceedings and§ 1983
proceedings. Habeas corpus proceedings are
used to challenge an unlawful detention. Section
1983 proceedings are used to obtain damages
for violations of federal rights. Sometimes,
however, the two can overlap. In some cases,
for instance, you may want to get damages for
an unlawful detention. In those cases, the Court
had held, you must first bring a habeas corpus
proceeding to have the detention declared
unlawful, then bring a § 1983 to try and obtain
damages. The rationale for this is to avoid a
situation in which one court is awarding
damages for a detention that has never formally
been declared illegal, in contravention of the
“strong judicial policy against the creation of
two conflicting resolutions arising out of the
same…transaction.”
The result was the Court’s declaration in
Balisok that if you want to get damages for a
disciplinary hearing in which you lost good
time, and if the damages action would

Pro Se Vol. 16 No. 4 December 2006

necessarily imply the invalidity of the loss of
good time, you must first get the good time
restored through state proceedings or a federal
habeas corpus after exhaustion of state
remedies. This is known as the “favorable
termination rule.”
The favorable termination rule, however,
only applies if you lose good time at your
disciplinary hearing. This is because, if you
have not lost good time, your 1983 action would
not constitute a challenge to the length of your
incarceration and, therefore, the habeas statute
would not be implicated. So, in Jenkins v.
Haubert, 179 F3d 19 (2d Cir. 1999), the Second
Circuit Court of Appeals held that Balisok does
not apply when the case involves only SHU
time or administrative segregation, with no loss
of good time. Furthermore, in Gomez v. Kaplan,
2000 WL 1458804 (S.D.N.Y. Sept. 29, 2000),
the Southern District of New York held that the
Balisok rule also does not apply if there is a
recommendation for loss of good time in
addition to a segregation term, but the plaintiff
is serving a life sentence and therefore is not
eligible for good time.
Thus, prior Peralta, the state of the law was
this: If you did not receive a recommended loss
of good time at your disciplinary hearing (or if
you received a recommendation of loss of good
time but you were serving a life sentence), you
only had to exhaust your administrative
remedies by filing an appeal of the disciplinary
hearing in order to file a § 1983 seeking money
damages for the time you spent in SHU.
Whether the appeal was successful was not
crucial. But if you did receive a recommended
loss of good time at the disciplinary hearing and
you were not serving a life sentence, you had to
either:
1) successfully appeal the disposition at the
administrative level;
2) prevail in a state court proceeding such
as an Article 78; or

Page 15

3) prevail in a federal habeas corpus
petition
before you could file a § 1983 action.
The Peralta v. Vasquez Rule
In October 2006, the Second Circuit decided
Peralta v. Vasquez, adding a new twist to
Balisok’s favorable termination rule. The Court
held that an inmate can maintain a § 1983 action
seeking damages for time wrongfully spent in
SHU in cases where he has also lost good time
without meeting the Balisok requirements--if he
agrees to abandon all claims relating to his loss
of good time.
The facts of the case were as follows: Jose
Peralta, an inmate, was charged with assaulting
another inmate and was subject to a disciplinary
hearing. The Hearing Officer found Peralta
guilty and imposed a penalty of five years in
SHU and five years recommended loss of good
time. Peralta appealed and the penalty was
modified to 24 months across the board. Peralta
then filed an Article 78 petition in state court,
but the petition was dismissed because he did
not pay the filing fee.
Peralta then sued in federal court, alleging
that the disciplinary hearing violated his due
process rights because he was denied “adequate
assistance, witnesses, and a fair and impartial
hearing officer.” He sought damages for the
time he had spent in SHU. The Defendants
moved to dismiss his claim because Peralta
could not show that the disciplinary hearing had
been “invalidated in a state or federal
proceeding” i.e, he had not met the Balisok rule.
Peralta responded by arguing that he was
only seeking damages for “those sanctions
affecting his conditions of confinement” (i.e.,
the time he spent in SHU). He was not
challenging his loss of good time and, therefore,
he should be allowed to proceed on his action.
The district court, however, granted the
Defendants’ motion to dismiss.

Page 16

On appeal, the Second Circuit reversed. It
concluded that a prisoner subject to “mixed”
sanctions (i.e., both SHU confinement and loss
of good time), “can proceed separately, under
§ 1983, with a challenge to the sanctions
affecting his conditions of confinement without
satisfying thefavorable termination rule,
but…he can only do so if he is willing to forgo
once and for all any challenge to any sanctions
that affect the duration of his confinement.” The
court went on, “[i]n other words, the prisoner
must abandon, not just now, but also in any
future proceeding, any claims he may have with
respect to the duration of his confinement that
arise out of the proceeding he is attacking in his
current § 1983 suit.”
What does Peralta mean for you?
Under Peralta, if you were wrongfully
confined in SHU because you were denied your
due process rights at a disciplinary hearing, you
do not have to prevail on your administrative
appeal or in state court in order to file a § 1983
claim in Federal court, even if you also received
a penalty of loss of good time--but you do have
to state in your papers that you are abandoning
any and all claim to damages as a result of your
loss of good time. If you do not say this in your
initial papers, it is likely that your case will get
dismissed, pursuant to the Balisok rule.
Peralta may have some strange
consequences. Under Peralta, you could
theoretically obtain money damages from a
federal court for having to serve SHU time that
was imposed in violation of your right to due
process of law, but not for the loss of good time
that accompanied it. You could get money
damages for the time you were wrongfully
confined but the alleged misbehavior will still
be on your record and you will still be subject to
the loss of good time that was imposed for that
misbehavior.

Pro Se Vol. 16 No. 4 December 2006

Peralta may also be short lived. It is unclear
what the Supreme Court will do with this case
if it decides to review it. But for now, under
Peralta, if you believe that your due process
rights were violated and you were wrongfully
confined to SHU and given a recommended loss
of good time, as long as you:
1) have exhausted your administrative
remedies;
2) can demonstrate that you have suffered
an “atypical and significant hardship;”
and
3) are willing to abandon any claim you
have regarding your recommended loss
of good time,
you can sue in Federal court and your case will
not be dismissed under the Balisok rule.
Practice pointer: Prisoners’ Legal Services
has a form memo titled “Damages for Time
Spent in SHU.” It can be obtained by writing to
Prisoners Legal Services of New York,
114 Prospect St., Ithaca, NY 14850.
State Cases

Disciplinary Cases
Drug Testing: Chain of Custody Established
by Officer’s Testimony
Matter of Costner v. Goord, 818 N.Y.S.2d 359
(3d Dep’t 2006)
A positive urinalysis test resulted in a Tier
III hearing against the Petitioner for drug use.
After being found guilty of the disciplinary
charges and exhausting his administrative
remedies, he filed an Article 78 proceeding. In
his proceeding, he challenged the chain of
custody of the urine sample. He noted that the
chain of custody form failed to state the name of

Pro Se Vol. 16 No. 4 December 2006

the officer who removed the sample from the
freezer and tested it as required (See 7 NYCRR
§ 1020.4[e][1][i]). The court found this an
insufficient basis for reversing the hearing
result. The testing officer explained at the
hearing that he had sole custody of the sample
during the relevant time period and
inadvertently neglected to write his name on the
Chain of Custody portion of the form. That
testimony adequately “cured” the defect in the
forms and adequately established the chain of
custody of the sample. Other “minor”
irregularities in the test documentation were
likewise sufficiently explained by the testing
officer.
Practice pointer: Seven N.Y.C.R.R.
§ 1020.4(e)(1)(i) states that all persons
handling a urine specimen “shall make an
appropriate notation under Chain of Custody on
the request for urinalysis test form. The number
of persons handling the specimen shall be kept
to the minimum. The specimen shall be kept in
a secure area at all times.” Federal courts have
held that minimal due process requires that “a
prison disciplinary body…establish a
reasonably reliable chain of custody as a
foundation for introducing the results of
urinalysis tests.” Soto v. Lord 693 F.Supp. 8 (2d
Cir. 1988). Despite these rules, state courts
have held that in order to establish a break in
the chain of custody sufficient to obtain a
reversal of a disciplinary hearing, an inmate
“must point to evidence…indicating that the
specimen could have been confused with similar
samples or that there was no evidence to
substantiate the chain of custody.” Matter of
Price v. Coughlin, 498 N.Y.S.2d 209 (3d Dep’t
1986). Possible discrepancies in the paperwork
regarding such things as “the time[ ] the
specimen was removed from the refrigerator
and the time[ ] the test[ ] w[as] performed”
will generally be insufficient (Price v. Coughlin)
and, in any event--as the case reported above
shows--such discrepancies may be easily

Page 17

“cured” by testimony from the officers who
handled the sample.
Substantial Evidence, Employee Assistance:
Evidence Did Not Support Hearing Officer’s
Conclusion That Petitioner Had Absconded
From Work Release
Matter of Rice v. Goord, Index # 400447/06
(Sup. Ct. N.Y. Co., July 26, 2006) (Cahn, J.)
Petitioner Rice was charged with
absconding from a work release program when
he allegedly failed to return to the facility by
6:30 P.M., as he was required to do. He stated
that following a work-related appointment, he
had gone to exercise at a friend’s house. While
exercising, he lost consciousness. His friend
returned home, found him unconscious, and
brought him to a local hospital where he was
diagnosed with acute rhabdomyolysis, a
disorder that causes muscle function to shut
down, as well as blood loss, anemia, and
hypertension. Hospital records indicated that he
was admitted at 6:24 A.M., twelve hours after
he was due to report back to the facility. When
he regained consciousness, he gave his treating
doctor a card with information relating to the
correctional facility, which the doctor contacted.
Correction Officers then arrived and took
charge of the Petitioner. His diagnosis was later
confirmed by doctors at two correctional
facilities. Nevertheless, he was found guilty of
absconding at his disciplinary hearing and
removed from work release. After his
administrative appeals were exhausted, he filed
an Article 78 proceeding.
A prison disciplinary determination must be
supported by substantial evidence. This means
“that in order to sustain a determination of guilt,
a court must find that the disciplinary
authorities have offered such relevant proof as
a reasonable mind may accept as adequate to
support a conclusion or ultimate fact.” Matter of

Page 18

Bryant v Coughlin, 77 N.Y.2d 642, 647 (1991).
That court found that that standard was not met
in this case. The Petitioner’s argument that he
was not guilty because he had been unconscious
during the twelve hours in question was
uncontradicted by the available medical
information “and should have been developed at
the hearing, by a careful reading of the hospital
records, and the calling of the unnamed friend
who brought Petitioner to the hospital, as a
witness.” His inability to remember the details
of the timeline of his collapse, arrival at the
hospital, and the beginning of his treatment, the
court found, was “not surprising since he was
allegedly unconscious throughout those events.”
Moreover, the court held, the Petitioner had
been denied adequate employee assistance to
prepare for the hearing: His uncontradicted
testimony at the disciplinary hearing was that
his assistant informed him that “there was
nothing he could really do,” since the hearing
would be in a different facility than the one in
which they were meeting. “Had Petitioner
received greater assistance in preparing for the
hearing, he might have been advised to consult
with his friend on the subject of the precise
timing of events, possibly call his friend as a
witness.”
The court annulled the hearing and
remanded it to DOCS “for additional factual
determinations.” At the new hearing, the court
held, “Petitioner should be offered assistance in
the preparation of his defense, including
assistance in obtaining any additional medical
records and contacting potential witnesses.”
In Absentia Hearings
Alicea v. Selsky, 819 N.Y.S.2d 202 (3d Dep’t
2006)
Hamilton v. Goord, 819 N.Y.S.2d 624 (3d Dep’t
2006)
Tafari v. Selsky, 819 N.Y.S.2d 349 (3d Dep’t
2006)

Pro Se Vol. 16 No. 4 December 2006

“[A]n inmate has a fundamental right to be
present at his or her disciplinary hearing.”
Matter of Rush v. Goord, 770 N.Y.S.2d 191
(2003). When an inmate is alleged to have
waived that right by refusing to attend the
hearing, the Hearing Officer must determine
that the refusal was “knowing, intelligent and
voluntary”--that is, that the inmate understood
that the hearing would be held in his absence,
that he would be waiving his rights to present
evidence and make procedural objections, and
that his refusal to attend was voluntary. Matter
of Hakeem v. Coombe. 650 N.Y.S.2d 819 (3d
Dep’t 1996).
In three cases this past quarter, an inmate
was alleged to have refused to attend his
hearing, and the hearing was held in absentia.
The inmate, after exhausting administrative
appeals, then claimed in court that his refusal to
attend was not knowing, intelligent, or
voluntary. In two of the cases, the inmate lost.
In the third, he won.
In Tafari v. Selsky, 819 N.Y.S.2d 349
(3d Dep’t 2006), the Petitioner was charged
with creating a disturbance after he started
banging on his cell door and yelling at a captain
who was making rounds on his floor. Although
he initially attended the Tier III disciplinary
hearing, following two adjournments, he refused
to attend or to execute waiver forms. The
Hearing Officer proceeded with the hearing in
the Petitioner's absence and found him guilty of
the charge. The court affirmed, finding that “the
Hearing Officer took the necessary steps to
ascertain the legitimacy of petitioner’s refusal
and unwillingness to sign a waiver by
questioning the officers present at the time.
Inasmuch as petitioner forfeited his right to
attend the remainder of the hearing, the Hearing
Officer properly continued it in his absence.”
In the Matter of Hamilton v. Goord, the
Petitioner was charged with using controlled
substances after a sample of his urine tested
positive for cannabinoids, for which he was

Pro Se Vol. 16 No. 4 December 2006

found guilty at a disciplinary hearing held in his
absence. The court found that the Petitioner
“knowingly waived his right to be present at the
hearing when he refused to attend despite being
afforded the opportunity, and having been fully
informed by the Hearing Officer both that any
concerns would be addressed at the hearing and
regarding the consequences of his refusal.”
By contrast, in the Matter of Alicea v.
Goord, in which the Petitioner was charged with
drug possession and smuggling, the court found
that the Hearing Officer had failed to take
sufficient steps to verify that the Petitioner’s
refusal to attend the hearing was voluntary. The
Petitioner had expressly stated to the Correction
Officer who was to escort him to the hearing
that he was not waiving his right to attend, but
he was unable to attend due to back pain that
prevented him from standing or walking. The
Hearing Officer concluded that this claim had
been refuted by a facility nurse, but the court
concluded otherwise: The nurse “had not
evaluated or treated Petitioner” and, in fact,
verified that he had been complaining of back
pain for approximately two weeks, had been
prescribed medication, and had been last seen
that morning by a different nurse, who had
treated the Petitioner in his cell. She had noted
that he continued to complain of back pain and
did not get out of bed. Consequently, the court
held, “there was an insufficient basis for the
Hearing Officer to find that petitioner willfully
refused to attend the hearing.”
Practice pointer: Matter of Hakeem v.
Coombe, cited above, is similar to Alicea. In
Hakeem, the inmate stated on a Refusal Form
that he was unable to walk and could attend the
hearing only by dragging himself. Correction
officers refused to permit him to do that and the
Hearing Officer, rather than arranging to bring
the Petitioner to the hearing by wheelchair or
arranging to have medical personnel examine
him to verify his claim that he could not walk,
summarily determined that his conduct

Page 19

amounted to a refusal to attend the hearing. The
court reversed. In the absence of any evidence
that the Petitioner “knowingly, voluntarily and
intelligently relinquish[ed] his right to attend
the hearing,” the court held, there was no basis
to uphold the hearing.
As the other cases above suggest, however,
medical excuses for refusing to attend a hearing
are rarely successful. Alicea and Hakeem can
be contrasted with a number of other cases in
which courts found that the Hearing Officer did
adequately investigate an inmate’s claim to be
medically unfit to attend the hearing and found
it wanting. See, for example, Matter of Davis v.
Goord, 800 N.Y.S.2d 634 (3d Dep’t 2005), lv.
denied 5 N.Y.3d 715 (2005) (holding that the
Petitioner’s claim that illness prevented him
from attending hearing was refuted by the
Hearing Officer’s personal observation of him
as alert and oriented, as well as by a nurse’s
observation that the Petitioner was fit); Matter
of Spirles v. Wilcox, 754 N.Y.S.2d 602 (3d Dep’t
2003), lv. denied 100 N.Y.2d 503 (2003)
(holding that the Petitioner’s claim that he
could not walk was belied by testimony of a
Correction Officer who observed the Petitioner
walking in his cell); Matter of Lebron v. Goord,
732 N.Y.S.2d 282 (3d Dep’t 2001), lv. denied 97
N.Y.2d 608, (2002) (holding that testimony that
the Petitioner was seen walking without
difficulty refuted claims of disabling foot pain).
Substantial Evidence: Unauthorized Mail
Watch Leads to Reversal of Hearing
Matter of Keesh v. Smith, 821 N.Y.S.2d 486
(3d Dep’t 2006)
The Petitioner, an inmate, was charged with
violating a prison disciplinary rule prohibiting
inmates from sending outgoing mail that
includes material for a person other than the one
who is the addressee on the envelope. The
Misbehavior Report alleged that he sent letters

Page 20

to three different people in one envelope that
was addressed to only one of them. After being
found guilty of the charge, and exhausting his
administrative remedies, he challenged the
decision in an Article 78 proceeding.
In his Article 78 proceeding, he argued that
the decision had to be reversed because there
was no evidence in the record that his facility
Superintendent had authorized that his outgoing
mail be read.
Seven N.Y.C.R.R. 720.3(e)(1) states that
outgoing mail may only be read when a
facility’s superintendent “has reason to believe
that the provisions of any department directive,
rule or regulation have been violated…or that
such mail threatens the safety, security, or good
order of a facility or the safety or well being of
any person.”
Since neither the Misbehavior Report nor
the testimony of the Correction Sergeant who
wrote it contained any evidence that the
Superintendent had authorized a mail watch,
and the Petitioner’s request to call the Deputy
Superintendent as a witness on this issue was
denied, the court found no evidence to support
the Hearing Officer’s assertion that the
Petitioner was subject to a “lawful Mail Watch.”
Accordingly, the court reversed the hearing.

Pro Se Vol. 16 No. 4 December 2006

Other Cases
Institutional Records: Inmate Fails in Bid to
Expunge Sex Crime Information From His
Institutional Records
Loliscio v. Goord, 817 N.Y.S.2d 776 (3d Dep’t
2006)
The Petitioner applied to expunge the
reference in his security classification guideline
sheet to a sex crime because his convictions for
rape, and felony murder based upon the rape,
had been overturned. DOCS refused the
Petitioner’s application and the Petitioner filed
an Article 78. The court held that DOCS’
refusal had a rational basis. Although the
Petitioner’s rape and murder charges had been
reversed, he had conceded during his criminal
trial that he engaged in intercourse, allegedly
consensual, with the 14-year-old victim. His resentence report mentioned that admission and
indicated that he had sex with his victim before
killing her. Accordingly, DOCS’ determination
that the Petitioner’s criminal conduct involved
a sexual element was based upon his explicit
admissions made during his trial. Under these
circumstances, there was a rational basis for the
inclusion of a reference to a sex crime
characteristic in the Petitioner's institutional
records.
Practice pointer: Information about you
contained in your institutional records, such as
your security classification guideline sheet,
must be supported by a “rational basis.” Where
the information is derived from your presentence report, the report itself must have a
rational basis. In Brown v. Goord, 796 N.Y.S.2d
439 (3d Dep’t 2005), the Department, as in this
case, relied on information in the Petitioner’s
pre-sentence report to conclude that he was a
sex offender. On reviewing the pre-sentence

Pro Se Vol. 16 No. 4 December 2006

report, however, the court found that its
assertion that the Petitioner had committed rape
and sodomy were based solely on charges for
which he had been acquitted. By contrast, in
this case, the information was based not solely
on the charge for which the Petitioner had been
acquitted, but also on his admissions at trial.
The proper method for bringing an
administrative challenge to information in your
institutional records is outlined in 7 N.Y.C.R.R.
§§ 5.50, 5.51 and 5.52. Those provisions state,
in part:
If the completeness or accuracy of any
item of information contained in the
personal history or correctional
supervision history portion of an
inmate's record is disputed…the inmate
shall convey such dispute to the
custodian of the record or the designee
of the custodian reviewing the record
with him…. If the custodian, after
investigation, shall determine the
disputed information is erroneous or
incomplete, he shall make such changes
as are necessary and shall report to the
inmate the results of the investigation
and the changes, if any, which have
been made no later than 45 days after
the custodian or the custodian's
designee has been advised of the
dispute…. If the inmate still disputes the
accuracy or completeness of the
information after investigation and
determination, the inmate may appeal
the determination of the custodian to the
Inspector General, Department of
Correctional Services, State Campus,
Building 2, Albany, NY 12226. The
appeal shall be in writing. The Inspector
General shall affirm, modify or reverse
the determination of the custodian and
shall notify the inmate of his decision
within 30 days of receipt of the appeal.

Page 21

If, after exhausting administrative remedies,
you are still dissatisfied with the results, you
can challenge DOCS’ decision in court, via an
Article 78 proceeding.
Programs
Simmons v. Taylor, 820 N.Y.S.2d 329
(3d Dep’t 2006)
Crispino v. Goord, 818 N.Y.S.2d 357 (3d Dep’t
2006)
Tucker v. Nuttall, 819 N.Y.S.2d 602 (3d Dep’t
2006)
Inmates’ dissatisfaction with assigned
programs or DOCS’ denial of a preferred
program are frequent subjects of litigation in
New York. Courts generally analyze these cases
under a “rational basis” standard. They ask
solely whether DOCS had a “rational basis” for
its actions or whether they were, instead,
“arbitrary and capricious.” This is the lowest
standard of legal review. DOCS will almost
always be able to advance some rationale for its
actions that passes the “rational basis” test. In
each of the following cases, for instance, the
inmates involved had apparently good reasons
to question DOCS’ decision regarding their
program. In each case, however, the court found
that DOCS has offered at least a “rational basis”
for its decision and, thus, rejected the inmate’s
claim.
In Simmons, the Petitioner challenged the
denial of his grievance concerning DOCS’
refusal to admit him to the “Close to Home”
program. According to DOCS, he could not be
admitted to the program because he had failed
to complete Alcohol and Substance Abuse
Treatment (“ASAT”), a prerequisite to “Close
to Home.” The Petitioner argued that a
memorandum he had received from his ASAT
supervisor stating that the Petitioner “deserved
a successful [ASAT] completion and…[was]
given…one in 1995" demonstrated that DOCS’

Page 22

decision was irrational. The court disagreed.
“[I]nasmuch as a review of the record reveals
that there was no ASAT program certificate of
completion contained anywhere in Petitioner’s
file, along with the fact that it does not appear
that Petitioner ever finished the minimum
amount of treatment required by the ASAT
program prior to the issuance of a valid
certificate of completion, we cannot say that the
determination in question was irrational,
arbitrary or capricious.”
In Crispino, the Petitioner, an ex-attorney
serving a prison sentence for theft of client
funds, applied to participate in the work release
program. His application was initially approved
at the facility level but then reversed on review
by Central Office. The Petitioner argued that the
initial approval of his application was not
reviewable by the central office and was, in any
event, irrational. The court disagreed, holding:
“Participation in a temporary release program is
a privilege not a right and our review of a
determination denying an application to
participate in such a program is limited to
whether there was a violation of any positive
statutory requirement or constitutional right and
whether the determination is irrational.” The
Petitioner’s argument about Central Office
review was incorrect, the court held, since he
was convicted of more than three felonies, and
DOCS’ regulations require Central Office
review of grants of temporary release to persons
with three or more felonies. (See 7 NYCRR
1900.4[n][4][iv]). Nor was DOCS’ action
irrational: It considered the Petitioner’s positive
institutional accomplishments as well as the
seriousness of his offense and concluded that
his crimes so violated the public trust that
community reaction would detrimentally affect
the Petitioner's successful participation in the
program.… [W]e cannot conclude that the
denial of his request was irrational or arbitrary
and capricious.

Pro Se Vol. 16 No. 4 December 2006

In Tucker, the Petitioner brought an
Article 78 proceeding to challenge two
determinations of the Central Office Review
Committee (“CORC”) holding that his
participation in a sex offender counseling
program at prior facilities did not satisfy DOCS’
requirement that he take a sex offender
counseling program at his current facility. The
court notes that in order for the Petitioner to
prevail, he must demonstrate that the
determinations of CORC are irrational,
arbitrary, or capricious. It finds that they were
not. The first determination by CORC--that the
Petitioner’s 1997 participation in a sex offender
program at Oneida Correctional Facility in
Oneida County did not obviate the need for him
to complete the sex offender program at
Mid-State--was rational, the court held, because
the prior program was not as comprehensive as
the current one and “did not constitute treatment
in the manner that the current one does.”
CORC’s second determination--that Petitioner’s
1998 participation in the alcohol and substance
abuse treatment program at Auburn
Correctional Facility--did not excuse his
completion of a similar program at Mid-State,
was rationally based because the previous
program was only three months long and did not
satisfy the institutional requirement of six
months’ worth of treatment, as in the present
program.
Parole: Tide Turning?
Matter of Phillips v. Dennison, Index #
103509/06 (Sup. Ct., NY Co. Sept. 29, 2006)
(Friedman, J.)
Matter of Coaxum v. New York State Board of
Parole, Index # 2470/2005 (Sup. Ct. Bronx Co.,
July 26, 2006) (Billings, J.)
Matter of Marciano v. Goord, Index #
102892/02 (Sup. Ct., NY Co., September 8,
2006) (York, J.)

Pro Se Vol. 16 No. 4 December 2006

Judicial scrutiny of the Parole Board has, for
years, wavered between lax and non-existent. A
recent federal class action challenging the
Board’s handling of the cases of violent
offenders, as well as a lengthy “exposé” of the
Board’s work in the New York Law Journal,
however, have brought renewed public attention
to the Board.
Several judicial decisions over the past few
months suggest that the courts, too, are less
likely to tolerate arbitrary and unlawful
decision-making by the Board.
In the Matter of Phillips v. Dennison, for
instance, Manhattan Supreme Court Justice
Marcy Friedman told the Board to release a
convicted killer unless it can come up with a
valid reason, other than the crimes he
committed nearly 40 years ago, for keeping him
behind bars.
The Petitioner, William R. Phillips, is a
76-year-old, half blind, diabetic cancer victim
and stroke survivor who the Board itself
described as a “model prisoner” posing no
threat to society, but who has been denied
parole four times. The Board found that to
release him would “deprecate the seriousness of
his offenses and undermine respect for the law.”
Justice Friedman didn’t buy that.
She held that the Board’s decision merely
paid “lip service” to the factors it is required to
consider under Executive Law § 259-i. In fact,
she held, the Board’s decision was based on
impermissible considerations of penal policy,
rather than the law.
She pointed to comments at the Petitioner’s
parole hearing by Parole Board Chairman
Dennison, who noted the Petitioner’s
unblemished prison record, but then asked,
“How many years is enough for taking two lives
and trying to kill a third?”
That question, the court wrote, was
answered by the sentencing court 31 years ago.

Page 23

[T]he board impermissibly based its
denial on a non-statutory factor--its
opinion as to the proper penalty for the
crime--while in effect disregarding both
that the Petitioner has achieved a
complete rehabilitation and that the
statutory scheme required the Board to
take this factor into account.
Judge Friedman also said the Board’s prior
denial of parole to Mr. Phillips, when it claimed
that he was a danger to society, “now appears to
have been pretextual.” She said that both it and
the most recent parole denial were based on an
improper ‘disposition’ of the Board to deny
parole “rather than a fair consideration of the
statutory factors.” “[W]here the Parole Board
abdicates its responsibility to follow the statute,
as here, the court may properly intervene.”
Ordinarily, when reviewing a determination of
the Parole Board, the judiciary’s sole remedy is
to afford the Petitioner a new hearing. The court
did that in this case. But it also went one step
further and restrained the Board from
considering anything other than Mr. Phillips’
behavior since his last parole denial, in 2003.
His prison record at least through 2005 is
unblemished.
In the Matter of Coaxum v. New York State
Board of Parole, the court addressed the case of
a female inmate who, like Mr. Phillips, was
convicted of murder but who has long been
considered a “model inmate.” According to the
court, she “took full responsibility for her acts,”
expressed “sincere remorse” and “amassed
outstanding accomplishments in prison
programs [as well as] unanimous endorsements
from prison officials and staff.” She had
nevertheless been denied parole four times. As
with Mr. Phillips, the Board held that, despite
her positive accomplishments, her release “at
this time would deprecate the seriousness” of
her offense.

Page 24

The court found this reasoning to be both
irrational and in violation of the statutes
governing the Board’s work.
The Board’s decision…accorded no
weight and no emphasis whatsoever to
any factor apart from the seriousness of
Petitioner’s offense. By relying solely
on [that one] unchangeable factor…and
declaring that Petitioner could not had
done...anything more or differently to
obtain a decision granting her parole,
the Board denies her even [the]
possibility [of parole].…the Board’s
unjustifiable, exclusive reliance on the
severity of the Petitioner’s
offense…exceeds its administrative
discretion [and] contravenes the
statutory scheme.
In the Matter of Marciano v. Goord, the
Petitioner, a non-violent offender, had
successfully participated in temporary release,
received an earned eligibility certificate and all
of his merit time, and been granted on open date
for parole on his merit date. Shortly prior to his
scheduled release date, his wife, with whom he
was going through an acrimonious divorce, filed
a police complaint asserting that he had
threatened to kill her. DOCS learned of the
police report nine days prior to the scheduled
release date. When the Petitioner returned to his
work-release facility, two days later, DOCS
placed him in keeplock and told him of his
wife’s complaint. The next day, his facility
Superintendent told him he would be ‘going
upstate’ as a result of his wife’s allegations and
the Temporary Release Committee suspended
his work release pending further investigation.
DOCS then circulated a memo stating
“Petitioner has violated temporary release rules
and will be programmatically removed from the
temp rel program. [H]is merit certificate has
been cancelled, his merit open date has been

Pro Se Vol. 16 No. 4 December 2006

cancelled. [P]lease make sure that he is NOT
released on [his open date].” The Division of
Parole then voided his merit release date on the
grounds that he had “incurred a temporary
release violation.”
The following day, the Petitioner was
brought to a Temporary Release Committee
(“TRC”) hearing. At the hearing, he denied
having threatened his wife and told the
Committee that she had harassed and threatened
him--an allegation which, he said, he could
support with witnesses. The TRC did not inform
him he could call witnesses. Instead, they made
it clear that they were interested only in the
police report: “We can go by this paper. We
rather go by this paper and see it in black and
white than to go by what somebody else is
telling us, you know, verbally, verbalizing to
us.” The next day, the Petitioner was formally
removed from work release and transferred to
the Oneida Correctional Facility. After his
administrative appeals were denied, Petitioner
filed an Article 78 proceeding.
The due process clause provides that the
state may not take your “life, liberty or
property” without “due process of law.” Inmates
have no constitutional right to be admitted to
temporary release, granted merit time, or
released on parole. However, once those
benefits have granted, they have a “liberty
interest” in keeping them. The state must
provide “due process” before revoking them.
DOCS’ regulations outline the due process
rights that courts have held that inmates are
entitled to before they can be removed from a
temporary release program. They include:
(i) “notice of specific reasons at least 24 hours
prior to the [TRC] meeting”; and (ii) if the
inmate is keeplocked or the charges complex,
the “opportunity for an inmate to request an
inmate assistant.” This is to be followed by a
hearing, at which the inmate should have the
“opportunity for the inmate to call witnesses”;
the “opportunity to reply and produce

Pro Se Vol. 16 No. 4 December 2006

evidence,” and the inmate is entitled to a written
statement “setting forth the decision and the
evidence relied on.” 7 N.Y.C.R.R. § 1904.2. In
addition, courts have held that inmates are
entitled to a decision-maker who has not prejudged the outcome of the hearing. The only
time an inmate is not entitled to these rights is if
he is removed from the program as a result of
being found guilty of misbehavior in a
disciplinary hearing. (In that case, due process
rights are provided by the disciplinary hearing.)
The court found that the Petitioner in this
case had been granted none of those rights. He
received no notice of the TRC hearing; he was
not told that he was entitled to an employee
assistant; he was not told that he could produce
evidence or witnesses on his behalf; the
Committee refused to consider any evidence
other than the police report; and the Committee
had clearly made its decision prior to the
hearing.
In addition, the court noted, the one piece of
evidence upon which the committee did rely-the police report of the Petitioner’s wife’s
accusation--was hearsay. The court noted that
neither the police nor DOCS had placed enough
confidence in the wife’s hearsay allegations to
support either the Petitioner’s arrest or a
Misbehavior Report.
In brief, the court found that DOCS’
removal of the Petitioner from the Temporary
Release Program was irrational and improper
and in violation of his right to due process of
law.
The court’s lengthy decision is worth
reading. It describes in detail how each of the
other decisions made by DOCS and Parole-first, to strip the Petitioner of his merit time and
his temporary release and then rescind his
parole--violated the rules and regulations of the
DOCS and Parole, as well as the Petitioner’s
due process rights.
Here is one excerpt from the court’s
conclusion:

Page 25

[W]ithout any regard for petitioner’s
due process rights or respondents’own
regulations, respondents stripped
petitioner of every expectation of liberty
he had earned, not because there was
credible evidence that he had done
something wrong but because they
feared that “if anything happens to
somebody, the question always comes
up later, wasn't he supposed to be locked
up 24/7"? (TRC hearing transcript, p 24,
ll 18-20). Thus, to avoid even the
slightest chance of bad press,
respondents punished petitioner for a
crime he had not yet committed (much
like society's solution to the crime
problem in Spielberg's 2002 futuristic
nightmare, "Minority Report"), and
indeed might never commit….
Respondents’ statutory and
regulatory discretionary powers do not
allow them to charge, convict and
sentence someone who has been
assiduously following all their rules and
trying to rehabilitate himself, scarcely
paying lip service to due process and
statutory guidelines, based solely on self
interest and an allegation which their
own investigation showed could not be
substantiated…petitioner was not
arrested nor charged with any
misconduct… He was also not given a
full and fair hearing on those possible
charges. Nevertheless, he was punished
for them, as well as for the future
behavior claimed by his wife. The
concept is simple – if respondents
believed petitioner had committed a
disciplinary infraction, he should have
been punished in accordance with the
procedures set forth in the regulations
(7 N.Y.C.R.R. Subchapter A). If he did
not do anything wrong, he should not
have been punished at all.

Page 26

Practice pointer: Where you file a challenge
to a parole denial may have something to do
with your likelihood of success. The majority of
inmates in DOCS’ custody were convicted in
one of the five boroughs of New York City. Their
parole hearings, however, typically occur in an
upstate county, where most prisons are located.
The courts in those departments have
historically given short shrift to challenges to
parole denials.
New York’s Civil Procedure Law and Rules
(the “CPLR”) § 506(b) states that an Article 78
proceeding--the kind of proceeding one would
use to challenge a denial of parole--may be
brought“in any county within the judicial
district where the respondent made the
determination complained of…or where the
material events otherwise took place, or where
the principal office of the respondent is
located….”
In the past, inmates have usually brought
challenges to parole denials in the county in
which their prison was located (i.e., “where the
respondent [the Parole Board] made the
determination complained of”) or in Albany
County (“where the principal office of the
respondent is”). Upstate courts, however, have
shown little inclination to challenge the Parole
Board.
In consequence, many inmates have recently
attempted to file their parole challenges in the
counties in which they were sentenced and
convicted--frequently, the Bronx, Brooklyn,
Queens, or Manhattan. The judges in those
counties are perceived to be more sympathetic
to parole appeals. (All three of the cases
reported above, for instance, were decided by
downstate judges.) Inmates have been arguing
that the CPLR permits them to file their parole
appeals in the County in which they were
sentenced because the sentence was a “material
event” related to their parole hearings.
That argument received a boost in the
Coaxum case, above. There, the court held that

Pro Se Vol. 16 No. 4 December 2006

“petitioner’s offense, its impact on the victim,
petitioner’s guilty plea, and the court’s
sentence” were all “material events” related to
the denial of parole and that therefore venue in
Bronx County, rather than Westchester (where
the hearing had been held) or Albany, was
appropriate.
Did the strategic choice of the inmate in
Coaxum to file her case in the Bronx, rather
than Westchester (where she was incarcerated)
or Albany (where Parole has its main office)
make the difference in this case? That is hard to
know. But it is good to know you have the
choice.

Pro Se Practice: Inmates’ Right to Provide
Legal Assistance to One-Another
Almost thirty years ago, the Supreme Court
held that inmates have a constitutional right to
access the courts. To effectuate that right, prison
authorities are required to assist inmates in the
preparation and filing of meaningful legal
papers. They can do this by either providing
prisoners with adequate law libraries or
providing them with adequate assistance from
persons trained in the law. Bounds v. Smith 430
U.S. 817, 97 S. Ct. 1491 (1977). The states are
also allowed, however, to impose “reasonable
restrictions and restraints” in carrying out that
obligation. Johnson v. Avery, 393 U.S. 483
(1969).
New York relies largely on its law library
system to meet its “Bounds” obligations.
DOCS’ Directives require that the law libraries
be staffed with a sufficient number of inmate

Pro Se Vol. 16 No. 4 December 2006

employees, trained in legal research, to assist
inmates in using the law library. Inmates may
request legal assistance from either a trained
law library clerk or from any other inmate in the
same facility. Such requests are generally made
to the Law Library Supervisor. The Supervisor
may approve the request “if the security, order
or discipline of the facility would not be
endangered thereby.” DOCS Directive
# 4483(iii)(e).
DOCS’ disciplinary rules prohibit the
provision of legal assistance “without prior
approval” of the superintendent or his designee,
and state that no payment of any type can be
exchanged for legal assistance. 7 N.Y.C.R.R.
§ 270.2 (Disciplinary Rule 180.17).
Case law has revealed gray areas in the
“prior approval” requirement. In People ex rel.
Hicks v. James, 571 N.Y.S.2d 367 (Sup. Ct.,
Erie Ct., 1991)(Doyle, J), for instance, an
inmate law clerk had been providing assistance
to two inmates while at his previous
correctional facility. After being transferred to
the new correctional facility, he continued to
assist these inmates. When discovered, he was
charged with providing unauthorized legal
assistance. The court held that the
superintendent of the correctional facility has
the authority to grant or deny permission to an
inmate to become a law clerk, and once this
permission has been granted, it cannot be
withdrawn without a rational basis or in an
arbitrary and capricious manner. The transfer of
the inmate in this case to another facility did not
provide grounds for terminating his
authorization to provide legal assistance to the
two other inmates and he had no notice that his
transfer would terminate his right to provide
assistance. If the inmates were required to seek
legal assistance from another legal assistant, this
would have amounted to starting the litigation
all over again.
In Daniels v. Goord, 819 N.Y.S.2d 205
(3d Dep’t 2006), by contrast, an inmate also

Page 27

claimed to have received approval to provide
legal assistance to a certain inmate at his prior
facility. The court found that his failure to
receive authorization by the new facility to
continue this assistance constituted a violation
of the “unauthorized assistance” rule.
Thus, the safer policy is to obtain approval
of the superintendent or law library supervisor
of your current facility before providing legal
assistance.
Caselaw has also divided over whether
merely possessing another inmate’s legal
papers, without authority to provide legal
assistance, constitutes a violation of the rule
against providing unauthorized legal assistance.
In both Hendrix v. Williams, 684 N.Y.S.2d 730
(3d Dep’t 1998), and Hynes v. Girdich, 781
N.Y.S.2d 710 (3d Dep’t 2004), the court ruled
that mere possession of another inmate’s legal
papers, without more, did not establish that the
inmate had provided unauthorized legal
assistance. In Morris v. O’Keefe, 659 N.Y.S.2d
521 (3d Dep’t 1997), however, an inmate law
clerk who had been terminated from his position
was found in possession of legal paperwork
belonging to other inmates. He argued that his
mere possession of the other inmates’ legal
papers was not evidence that he provided legal
assistance to them after his termination. The
court held that his removal of the documents, as
well as his statements at the hearing, provided
sufficient evidence of his intent to continue
providing legal services, constituting an attempt
punishable to the same extent as the completed
offense.
Law clerks should be careful about
obtaining proper approval to remove legal
materials from the law library. In Cliff v.
Tedford, 694 N.Y.S.2d 182 (3d Dep’t 1999), an
inmate law clerk was charged with providing
unauthorized legal assistance after the law
library supervisor alleged that he only had
permission to remove from the law library six of
the eight files found in his cell. The Petitioner

Page 28

testified that he was authorized to provide
assistance to all eight inmates and completed a
log sheet indicating as much. The court found
that he might have violated a rule prohibiting
removal of a file from the law library without
completing the proper form but there was
insufficient evidence he was unauthorized to
give legal assistance. In Deoleo v. Selsky, 814
N.Y.S.2d 798 (3d Dep’t 2006), an inmate law
clerk, who had been removed from his job due
to a disciplinary matter, was directed to delete
all legal materials from his computer disk. He
was later found to have legal documentation on
the disk and was charged with unauthorized
legal assistance. The court, as in Cliff, found
insufficient evidence that he had violated the
rule against providing unauthorized legal
assistance; however, he was found guilty of
disobeying a direct order.
Evidence that an inmate has accepted
compensation for the provision of legal services
will almost always lead to disciplinary
measures. In Tate v. Senkowski, 627 N.Y.S.2d
100 (3d Dep’t 1995), correction officers found
an agreement between the Petitioner and
another inmate for the Petitioner to provide the
inmate with legal services in return for payment
in the form of commissary supplies, as well as
further correspondence in which the Petitioner
asked for more money for his services. The
Petitioner argued that because no legal
assistance was actually rendered and no money
was paid, there was no evidence of the
unauthorized provision of legal assistance. The
court held that the letter proved his attempt to
provide unauthorized legal services, which was
punishable to the same extent as the completed
offense.
In LaBounty v. Goord, 664 N.Y.S.2d 890
(3d Dep’t 1997), a letter to the Petitioner was
confiscated due to its suspicious nature: The
return address was that of another inmate. In the
envelope was a money order for a hundred
dollars and a note from the other inmate’s sister

Pro Se Vol. 16 No. 4 December 2006

thanking him for the legal services he provided
for her brother. Although the Petitioner claimed
that the assistance he provided was for a class
action suit for which both inmates were a party,
he conceded that he had not received any
permission to work on the other inmate’s behalf.
He was found guilty of both unauthorized legal
assistance and receiving compensation for those
services.
In Martin v. Goord, 675 N.Y.S.2d 435
(3d Dep’t 1998), an inmate received an
envelope with a check payable to him and a list
of inmates at the correctional facility. An officer
testified that the inmate admitted that the money
was for legal services that he performed for
inmates on the list. Although the inmate
testified to the contrary, the court found that
there was substantial evidence of his guilt. In
Faison v. Senkowski, 679 N.Y.S.2d 480 (3d
Dep’t 1998), a letter confirming an agreement to
do legal work for compensation, as well as a
receipt for the payment, were found in the
Petitioner’s cell. The court found this sufficient
evidence of providing legal services for
compensation.
The mere acceptance of a payment for legal
services, even if the payment was not solicited,
may result in disciplinary measures. In Curro v.
Goord, 819 N.Y.S.2d 135 (3d Dep’t 2006), an
inmate’s mother sent the Petitioner a money
order for one hundred dollars as compensation
for providing legal assistance to her son. At the
hearing, testimony indicated that the Petitioner
did not solicit the payment and that the inmate’s
mother was not aware that the Petitioner could
not receive compensation. Upon receipt of the
funds, moreover, the Petitioner arranged to have
a third party reimburse the mother. The court
found, however, that even if the situation was an
honest mistake, because the inmate had not
removed the money that was deposited in his
account or notify the authorities, he could be
found guilty of accepting funds in compensation
for his services.

Pro Se Vol. 16 No. 4 December 2006

A Letter From Susan Johnson,
Executive Director, Prisoners’ Legal
Services
30 Years of PLS:
A Look Back…and Forward
Thirty years ago, in July 1976, the first PLS
offices opened. The Attica uprising had
occurred five years earlier. The McKay
Commission Report had been issued four years
earlier, chastising the state police and prison
authorities for their poor planning and quick
embrace of lethal methods to subdue the
prisoners, It criticized then-Governor
Rockefeller for his failure to visit Attica before
ordering the armed assault and concluded that
inmates needed a safety valve--a mechanism to
air grievances, a window to the outside, a voice.
The Correction Law had been amended one year
earlier, establishing a grievance mechanism for
inmates. Although permitting inmates to grieve
the conditions of their confinement was an
important step forward, it was July 1976 when
prisoners across New York State were finally
given a voice.
A quick search on the Westlaw internet
database shows that, since our inception, PLS
has been involved in over 500 reported cases:
160 Federal cases and over 340 State cases.
However, that number does not begin to do
justice to all we have accomplished over the
past thirty years. Many of our successes cannot
be found on Westlaw. Those successes are all
but hidden in hundreds of unreported lower
court decisions, significant state and federal
settlements, and tens of thousands of hours of
administrative advocacy that resulted in drastic
improvements in the conditions of confinement
for prisoners throughout New York State.
In the 1980s and 90s, PLS litigated literally
hundreds of disciplinary cases in state courts.
We secured numerous due process rights,
including: the right to be present at one’s

Page 29

hearing; to call witnesses; to receive notice of
the charges; to have the disposition supported
by substantial evidence; to obtain a credibility
and reliability assessment of confidential
information; to have one’s mental health
considered as a mitigating or justifying factor;
to present a defense; and the right to
expungement of the charges.
In federal courts, our presence was also
made known. We filed numerous excessive
force claims resulting in over one million
dollars in damages. Yet, money damages were
not all we achieved in these cases. Because of
our work, there are now cameras in most, if not
all, maximum security prisons. DOCS’ rules
mandate that hand-held cameras be used to
videotape the use of force by correctional staff
on an inmate during a strip frisk search. After
any use-of-force incident, inmates are examined
by medical staff and officers, who are then
required to complete use of force forms
detailing what force was used and how the
inmate’s injuries occurred. Our work in this area
has begun to open the door to a closed prison
society.
We filed cases challenging general
conditions of confinement which have resulted
in significant changes being implemented by the
prison administration. In a challenge to
conditions for inmates in Protective Custody,
we forced DOCS to implement changes that
provided more out-of-cell time, communal
eating, better recreation, and access to
programing. Our challenge also resulted in a
seven-year monitoring period regarding those
changes. At Attica, we challenged living
conditions and treatment of prisoners in the
SHU, including inadequate medical and mental
health care, and issues surrounding food,
exercise, sanitation, religion, and the adequacy
of the existing law library. At Bayview
Correctional, a women’s facility, we sought
improvements in the physical plant, the law
library, medical care [there was no gynecologist

Page 30

on staff], and clothing. Both cases resulted in
detailed settlements and monitoring periods
approved by the courts.
Our litigation stopped DOCS’ plan to house
inmates with AIDS in a separate dormitory. We
successfully mounted a First Amendment
challenge to the Department’s refusal to allow
inmates to receive a PLS report on conditions at
Attica: the Second Circuit ensured that inmates
could read the report by printing it as an
appendix to its opinion. Our freedom of religion
challenges have resulted in Rastifarians being
exempt for DOCS’ initial haircut requirement,
Muslim inmates being provided a religious diet,
and Native Americans being allowed to practice
their religion in prison. We were also successful
on a freedom-of-association challenge to
DOCS’ blanket exclusion of prisoners with
HIV/AIDS from the Family Reunion Program.
We challenged DOCS’ policy of isolating
and refusing to provide medical treatment to an
inmate who suffered the loss of much of his face
from a self-inflicted gunshot wound. After filing
the case, DOCS agreed to provide our client
with appropriate plastic surgery and a
psychiatric evaluation. We also challenged the
lack of a diabetic diet, our challenge resulted in
such diets being made available in all prisons.
We challenged DOCS’ failure to provide
adequate medical treatment to a prisoner
infected with AIDS. The case settled with
DOCS agreeing to establish a comprehensive
treatment plan for our client.
In numerous cases, we challenged DOCS’
treatment of mentally-ill inmates. Our many
cases, including Huggins, Eng, Tomasulo,
Langley, Anderson, and now the DAI case, have
all brought about significant improvements in
the way mentally-ill inmates are treated in our
prisons.
Even in cases where are claims were
ultimately dismissed, the filing of the litigation
alone was the impetus for change. For example,
Alston v. Coughlin, a class action challenging

Pro Se Vol. 16 No. 4 December 2006

conditions of confinement at Fishkill, resulted
in the prison administration taking measures to:
provide private attorney visit rooms; reduce
excessive noise levels; post fire evacuation
routes in Spanish and English; ensure food was
warm when it was served; construct a new
hospital ward; erect a visiting room trailer so
that visitors would not be forced to stand in the
rain or snow waiting to be processed; provide
supervision in underground tunnels where
numerous stabbings had occurred; and install a
new heating system.
We have succeeded in obtaining damages
for our clients who have been wrongfully
confined in solitary confinement or
administrative segregation. We have handled
cases involving immigration, guardianship,
sentencing, parole, the exhaustion requirement
of the PLRA, and numerous statutory
interpretation cases, including the recent
statutory issues surrounding the interpretation of
the Rockefeller drug laws. We have also
litigated Freedom of Information Law (“FOIL”)
cases that resulted in inmates in SHU being
entitled to access to the tape of their own
disciplinary proceedings, that gave PLS access
to Use of Force Reports and other investigative
information, and thus helped to peel away the
secrecy behind the prison walls.
Our advocacy has resulted in similar
dramatic results. In any given year, we average
saving our clients over 16 years of jail time. Our
litigation and advocacy just over this past year
has resulted in having 53 years of good time
returned to our clients and expunging over 54
years of SHU time. This work was done while,
at the same time, we responded to over 10,000
requests for assistance.
We have withstood budget cuts, and massive
increases in the number of prisons and
prisoners. We have withstood layoffs and even
being shut down for a year. Our size has ranged
from being as large as having six offices with
over 70 employees to being as small as having

Pro Se Vol. 16 No. 4 December 2006

no offices and two people lobbying the
legislature to put us back in the budget. We
have existed with a ratio of one attorney for
every 400 inmates to what we have today,
which is one attorney for every 5,000 inmates.
We have had our trials and tribulations, and yet,
our record demonstrates that although we have
never been able to meet all the demands of
prisoners for legal services, we have made a
significant mark on the history of prisoners’
rights in New York State.
Our litigation, together with our tenacious
advocacy, has resulted in significant changes in
the way New York prisons are run. We have
and continue to demand transparency in the
operation of our prisons. It is because of our

Page 31

work that: most disciplinary hearings held in
New York State prisons today afford inmates
their due process rights; there is less guard
brutality in our prisons; many mentally-ill
inmates who would have otherwise been
languishing in solitary confinement are
receiving treatment for their mental illness;
prisoners have been able to practice their
religion, receive reading materials, visit with
their family members, and adhere to their
sincere religious beliefs in both their diet,
appearance and lifestyle.
New York State prisons are safer and more
humane today than they were in 1976 when our
work began, and because of our work, prisoners
in New York State now have a voice.

Page 32

Pro Se Vol. 16 No. 4 December 2006

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EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: BETSY STERLING, ESQ.; PATRICIA WARTH, ESQ.;
SUSAN JOHNSON, ESQ.; SABRINA LALL
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY

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