The New York state corrections department would gain the power to remove abusive guards from its prisons under a state senate bill filed on Monday.
Currently, the commissioner of the New York State Department of Corrections and Community Supervision does not have the ultimate authority to fire guards accused of serious misconduct and often must defer to third-party arbitrators who determine disciplinary outcomes. But the bill, filed by state Sen. Julia Salazar, a Brooklyn Democrat, would give the commissioner the final say in such cases.
In a memo accompanying her bill, Salazar, the chairwoman of the Senate committee on crime victims, crime and correction, said she drafted the legislation in response to an investigation by The Marshall Project, published last year in collaboration with The New York Times. The investigation showed that New York’s prison department often tried but failed to fire corrections officers accused of abuse or trying to conceal it. From the articles, Salazar wrote in the memo, “a stark picture emerged of a staff disciplinary system that is essentially completely broken and ineffective.”
Drawing on a previously secret state database obtained by The Marshall Project, the examination found that New York’s prison department tried to fire guards accused of abusing prisoners or trying to conceal abuse in more than 290 cases over 12 years — but succeeded in terminating only 10 percent of those officers.
The current disciplinary system “often works to allow corrections officers to commit grievous abuses with impunity,” Salazar said in a statement.
Gov. Kathy Hochul, the corrections department and the correctional officers’ union declined to discuss the legislation. Hochul and the union’s leaders are negotiating a new contract.
Many of the officers targeted for termination since 2010 appealed to private arbitrators, who reinstated three of every four guards fired for abuse or covering it up, The Marshall Project found.
Under the proposed bill, arbitrators would no longer decide serious misconduct cases, which includes excessive force, smuggling contraband or sexual abuse of prisoners. Instead, a hearing officer selected by the commissioner would consider evidence from the department and the employee’s union, and then recommend any discipline to the corrections commissioner, who would ultimately decide. Salazar’s office said the hearing officer should not be an employee of the corrections department.
The current system, which has been part of the guards’ union contract since 1972, gives the union and the prison agency equal say in choosing an arbitrator. That means “the union representing an accused officer essentially has veto power over the selection of the arbitrator for the case,” Salazar’s memo states.
Brian Fischer, the former corrections commissioner, praised the bill for bringing attention to the department’s inability to fire abusive officers. He said the commissioner must have the final say on officer discipline, as is the practice of the state troopers and New York City police.
“We have responsibility for the safety of both the offender and the staff,” Fischer said. “And if we don't have the final authority, we're left basically holding the bag.”
The Marshall Project’s investigation also found that in many abuse cases, including attacks that left prisoners dead or severely injured, the corrections department did not attempt to discipline the officers at all. The reporting also revealed how guards often worked in groups to cover up assaults by lying to investigators and in official reports.
The bill would seek to break this “blue wall,” Salazar’s memo states, by giving the commissioner the power to also fire officers who cover up excessive force by intentionally not reporting it or by filing false reports.
Jennifer Scaife, director of the Correctional Association of New York, a nonprofit that monitors prisons, cited a recent lawsuit alleging torture in an upstate facility as one more reason to pass the bill. The lawsuit said officers beat a group of men at one facility and alleged that two of the men were then taken to a second prison — Great Meadow Correctional Facility — and waterboarded, which mimics drowning.
“Allegations of waterboarding at Great Meadow make the case for reforming the employee disciplinary system,” Scaife said in a statement. “The head of a state agency simply must have the power to fire someone found guilty of misconduct.”
Chris Summers, president of the New York State Correctional Officers and Police Benevolent Association, has previously defended the arbitration system.
“We have no influence over the decision the arbitrator makes,” he told The Marshall Project in December. “It is a system that is independent, fair and just.”
Salazar’s bill closely resembles a 2018 proposal pushed by former Gov. Andrew Cuomo. The prison guards’ union vehemently opposed the measure, which the Legislature did not pass.