Category: Rights of Prisoners

Should Felony Convicts Have Their Non-Waivable Surcharges Deferred?

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.

All felony defendants convicted of a felony in New York are assessed a non-waivable $375 surcharge upon conviction. When they are sent to prison their prison accounts are assessed to pay these charges which depletes the meager amounts that inmates are able to earn in prison which otherwise might be used to buy supplies that can ease the burden of incarceration and also to maintain essential contact with their families through phone calls and visits. Theoretically, judges can defer these charges while the defendant is in prison, but the standard for doing so is hard to satisfy and the procedure for doing so has been made so enormously difficult by a recent restrictive decision  of the New York State Court of Appeals, People v. Jones, 26 N.Y. 3d 730 (2016), that it almost never happens. Ironically, the law governing these matters involving small sums of money is as complex as the law that controls major securities transaction.

In People v. Tookes, __ N.Y.S. 3d __, 2016 WL 3221208 (Sup. Ct. NY County June 8, 2016), (attached) Judge Daniel Conviser of the New York State Supreme Court sensitively addresses this issue and in his analysis indicates why a legislative fix is needed to address this problem. Judge Conviser in his opinion demonstrates powerfully why something that seems so insignificant to so many is so critical to people in prison. Judge Conviser in the conclusion of this opinion notes that:

[s]entencing for a trial court is not an abstract exercise. A sentence is pronounced on a human being, who, no matter what crime he or she has committed, stands in the well, often in custody, and often with family members close by, who upon a sentence to state prison will suffer a significant punishment … as the one human being who is most directly responsible for sending a fellow human being to be confined in a correctional facility where much of what makes a life worth living is taken, the sentencing court should have the ability to provide the extra soap or deodorant, the postage stamps which might make communicating with family easier or even the extra food which might make prison life more bearable.

Id. at 14. These words demonstrate a humanity and understanding that is rare to find in a judicial opinion. I hope that this decision will lead to change in the law to allow judges in appropriate cases to defer these charges at least during the period of a prisoner’s incarceration. It certainly deserves wide circulation and attention.

Will NYS Establish the Independent Office of Correctional Ombudsman?

The New York State Assembly will soon vote on Assembly Bill No. 9939, which would establish independent oversight of NY’s prisons.  Prof. Michael B. Mushlin drafted a letter in support of the Bill, which he sent to the Speaker Heastie on June 7, 2016.

The purpose of the 2015 Assembly Bill No. 9939 is summarized as follows:

[This Bill] creates the office of the correctional ombudsman to achieve transparency, fairness, impartiality, and accountability in New York state correctional facilities; relates to reports by coroners; designates investigators of the office of the correctional ombudsman as peace officers; authorizes the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community supervision in connection with his or her official duties; relates to the confidentiality of certain records; and includes the office of the correctional ombudsman records within the definition of public safety agency records; makes related provisions.

Prof. Mushlin concludes his letter with a quote from the U.S. Supreme Court Justice Anthony Kennedy from his 2003 speech to the American Bar Association:

It is no defense if our current prison syste is more the product of neglect than of purpose. Out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States.

Related Readings:

Prof. Mushlin Comments on the Dark Side of the U.S. Prison System

Prof. Michael B. Mushlin, of Pace University’s Elisabeth Haub School of Law, is a nationally renown expert on the prison system in the United States. He has authored a four volume treatise titled Rights of Prisoners, written numerous articles on the issues of prisoners’ rights and prison oversight, and testified in the NYS Assembly Standing Committee on Correction in support of a comprehensive prison reform in New York State.

Most recently he spoke with NowThis News about the state of affairs in US prisons in a clip titled In Some Prisons, Guard Break the Law Instead of Upholding, commenting on solitary confinement, brutality, physical abuse, contraband and corruption in U.S. prisons. To find out more about the life behind bars tune in on Thursdays at 10/9 central to A&E for a rel-life series titled 60 Days In.

SCOTUS and the Prison Litigation Reform Act

POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.

The Prison Litigation Reform Act (PLRA) sets up roadblocks for prisoners in civil rights cases that are uniquely harsh including a requirement that prisoners must exhaust all available administrative remedies. This exhaustion requirement, which is not imposed on other civil rights litigants, often keeps litigants with meritorious claims out of court. Recently, in Ross v. Blake, No. 15-339, the Supreme Court took a Maryland case from the Fourth Circuit holding that the exhaustion requirement should be excused if the inmate makes a “reasonable mistake” about whether a particular administrative remedy is, in fact, available.

However, during oral argument last week the Court learned that this issue may not be presented by this case at all. This is because in papers filed with the Court before the case was argued it appeared that Maryland’s complicated and confusing administrative remedies were probably, in fact, unavailable to the inmate after all. Thus, there was no “reasonable mistake” after all. And no need to decide whether if there were such a mistake that would excuse the inmate from the obligation to exhaust.

Based on this new information it appears from the oral argument of the case that the Court will either remand the case or dismiss the case as improvidently granted for review. But even if the case is dismissed or remanded the case has value because the oral argument record available here reveals dramatically the Kafkaesque world of confusing remedies that prisoners must confront and overcome to achieve their day in court. If one needs proof of the lack of wisdom of the PLRA’s exhaustion requirement, and the need to repeal it, look no further.

Related Readings:

Death of a Prisoner at Clinton Correctional Facility

A recent investigation by The New York Times into the death of a prisoner, Leonard Strickland, at Clinton Correctional Facility reveals a savage beating by correction officers, horrifying indifference to the prisoner’s condition by medical personnel, lying by the corrections officers involved, and a total absence of any sanctions or systemic response. The biggest shock comes from the claim that a handcuffed and viciously beaten prisoner was a continuing threat or presented a potential for escape that justified the physical abuse and indifference that led to his death. Could a group of correction officers actually be “afraid” of a handcuffed and unresponsive inmate or “fear” that such a prisoner would try to escape? One can only ask if this is the same “fear” that is used to justify recent police shootings of unarmed and sometimes fleeing individuals.

Read the full article An Inmate Dies, and No One Is Punished by Michael Winerip & Michael . 

Warning:  this link contains a disturbing, and potentially upsetting, videotape.