Tagged: Michael B. Mushlin

Prof. Mushlin on the Proposal to Close Rikers Island

In a recent article in the Daily News, The Prisoners We Should Put on Rikers, Pace Law Professor and nationally recognized expert on prisoners’ rights Michael B. Mushlin writes that although Mayor de Blasio’s announcement endorsing the recommendation of an  independent commission to close the Rikers Island jail complex is a step in the right direction, the better solution might be to keep Rikers operational to house prisoners from the five boroughs who would otherwise be sent upstate.

Prof. Mushlin points out:

For example, 58% of incarcerated individuals from the city’s metropolitan region are in prisons more than 200 miles from their homes. And remarkably, 27% of the entire state prison population is more than 300 miles from the county of commitment.

The location of New York prisons so far away makes maintaining meaningful family ties almost impossible. These ties are strongly associated with successful reintegration, lower recidivism rates and improved behavior while incarcerated.

Prof. Michael B. Mushlin Testifies at Briefing on Solitary Confinement in CT

Michael B. Mushlin, Professor of Law at the Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights, testified on February 7, 2017 before the Connecticut Advisory Committee to the U.S. Commission on Civil Rights as part of their scheduled Briefing on Solitary Confinement.

Prof. Mushlin has been advocating for more humane conditions in state and federal prisons and jails, he has testified in the past, and written extensively on the topic. He has been consistently calling to ban the use of solitary confinement in prisons and jails coupled with instituting an external and independent oversight to ensure the reform is sustained.

Please read his entire testimony here.

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 Testifies in Favor of Oversight in NY State Prisons

POST WRITTEN BY:  Erica Danielsen (’16), J.D. Pace Law School

On Wednesday, December 2, 2015 the NY Assembly Standing Committee on Correction held a hearing in Albany to discuss “Oversight and Investigations of the Department of Corrections and Community Supervision (DOCCS).” The Assembly held this hearing in the aftermath of the June 2015 Clinton Correctional Facility escape. The Assembly invited experts, academics, attorneys, and family members of inmates to testify. The Committee also invited Pace Law School Professor Michael B. Mushlin to testify.

Prof. Mushlin has extensive experience in the area of prisoners’ rights and brought his knowledge of prison oversight to the attention of the Committee. He expressed the importance of adequate oversight and noted key issues with New York’s current failure to provide adequate oversight of its correctional facilities. He stated that

oversight is needed because prisons are dark places where horrible things will happen unless there is oversight. Without oversight prisons cannot be humane despite the best of intentions and ‘inhumane prisons are not safe.’

Prof. Mushlin presented the Committee recommendations on how to improve its lacking system. He suggested critical components of oversight such as independence, an open door policy for physical access, an effective monitoring and regulatory system, the duty to report, and a legal requirement for correctional facilities to respond to investigation reports.

Professor Mushlin embraced organizations that New York already has in place such as the Correctional Association and Prisoners Legal Services of New York whose Executive Director, Karen Murtagh, also testified, and he pointed out that these organizations can only do so much, which is why legislative action is needed.  Professor Mushlin critiqued the NYS Commission of Correction which currently has legislative authority to investigate and report on prisons but fails to live up to its legislative powers.

The Assembly further heard testimony from Charlene Burkett, Corrections Ombudsman of State of Indiana, and Kate Eves, Independent Oversight Consultant of United Kingdom and Wales. Ms. Burkett and Ms. Eves aided the discussion by offering insights about an overview, guidelines, and recommendations of how various oversight bodies work in other states and countries. Moreover, Jonathan Moore, Esq. – the lead counsel for New York’s stop and frisk case, attorney for the Eric Garner case, and counsel for the family of Samuel Harrell who tragically lost his life to guards at Fishkill – testified about the importance of civil rights issues. And last but certainly not least, came the emotional cries from two mothers whose son’s were abused in prisons bringing their own human realities to the attention of the Committee.

Neither the Inspector General nor the Commissioner of Corrections testified on Wednesday since the Clinton escape investigations are still pending. However, Daniel O’Donnell, the chair of the Committee on Correction, adjourned the hearing for a future date in order for those organizations to offer testimony about their findings. Mr. O’Donnell stated that he would subpoena them to testify if necessary.

Related Readings:

Boxing Up Our Rights: The CJS Tackles Solitary Confinement

Criminal Justice Society at Pace hosted a Spring 2014 event dedicated to discussing solitary confinement. The event was well attended leaving the attendees with a lot to think about. Our first year students who attended this event shared some of their thoughts with us below.

POST WRITTEN BY: Alexandria Capaccio (’16), Ashley Kersting (’16), and Jake B. Sher (’16)

Loneliness is very much like pain.  It has evolved over time to change our behavior so that we reconnect with others, which is necessary for our survival. … Being ignored is so painful it’s better to be treated badly by someone than ignored….

John Cacioppo, Social Neuroscientist, City of Chicago

These words from National Geographic’s “Lonely Prisoners” Program served as the opening gambit for The Pace Criminal Justice Society’s discussion on solitary confinement, entitled Thinking Outside the Box.  The panel brought attention to the serious issues of solitary confinement in prisons. Pace’s Professor Michael B. Mushlin engaged three panelists: Sarah Kerr, Staff Attorney in the Prisoners’ Rights Project at The Legal Aid SocietyFive Mualimm-ak, a solitary confinement victim and prison reform activist; and Leah Gitter, whose family member with mental illness has been held in solitary confinement at a number of prisons including Rikers Island. The panelists drove home the central issue that the current method of solitary confinement is not working; it is both inhumane and counter-productive.

Over 80,000 prisoners in this country are living 23 hour days alone in their cells deprived of any meaningful stimulation. The panelists referred to these extreme conditions as “torture.” A former inmate, Five changed his first name to memorialize the five of his twelve years of incarceration that he spent in solitary confinement.  Five was placed in solitary confinement not as a punishment for the crime he committed or any violent behavior, but instead for minor disciplinary violations he allegedly committed while incarcerated.

Five explained that even minor disciplinary violations, such as possessing too many pencils or t-shirts, frequently subject a prisoner to an indefinite period of time in the “box.”  There are no governing time limitations or regulations on the time spent in the “box,” instead the decision about the duration of this type of confinement is left to the discretion of prison officials.

Collectively, the panel agreed with the goal of the prison system to protect, reform and rehabilitate inmates, but took the position that subjecting mentally ill prisoners to solitary confinement does not further those goals.  Instead, solitary confinement is unnecessary and inflicts further psychological damage on inmates.

The panelists stressed that contrary to the common belief that solitary confinement is used to protect other prisoners from other dangerous, violent, or gang affiliated members, the majority of prisoners spending time in the “box” are there due to the prison’s inability to deal with the inmates’ mental and physical disabilities.  These harsh living conditions remove inmates from human sensory stimulation and contact; and as such, they are directly attributable to the high recidivism rates of inmates subjected to such confinement.

The public’s attention on issues of solitary confinement tends to focus on the question of whether prisoners are serving time because they are guilty.  This focus, however, obfuscates the actual problem that solitary confinement poses to the liberty of prisoners and law-abiding citizens alike. In the seminal case on the issue, the Supreme Court held: “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”  Wolff v. McDonnell, 418 U.S. 539, 556 (1974).  New York’s Appellate Division has held Wolff to mean that inmates charged with violating disciplinary hearings are entitled to minimal due process protections that do not include the right to counsel or to confront or cross-examine witnesses. Laureano v. Kuhlmann, 550 N.E.2d 437, 439 (N.Y. 1990) (emphasis added). Courts are divided as to the evidentiary standard used for disciplinary proceedings between “some evidence” and “substantial evidence” – both standards well below the preponderance of the evidence standard used in civil litigation (to say nothing of “beyond a reasonable doubt”).

American citizens who retain their “full panoply of rights” would never tolerate the loose evidentiary standard that is used when determining whether an inmate should be placed in solitary confinement.

Perhaps a better way of considering the problem revolves around Professor Mushlin’s haunting statement that some former victims of solitary confinement may be – or are – our neighbors; they are either released after their prison terms have ended, as Five was, or worse, they are exonerated innocents.  They are our fellow citizens’ cousins, friends, spouses, or parents.  If we would not tolerate the trampling of our own rights under the Fourteenth and Fifth Amendments, we should not tolerate theirs, either; the slope is slippery, and we are much closer to their plight than we would prefer to believe.