COR-30-09-00018-E Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence

10/28/09 N.Y. St. Reg. COR-30-09-00018-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 43

October 28, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONAL SERVICES

EMERGENCY RULE MAKING

 

I.D No. COR-30-09-00018-E

Filing No. 1168

Filing Date. Oct. 08, 2009

Effective Date. Oct. 08, 2009

Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of sections 270.2, 720.3, 720.4, 721.2 and 721.3 of Title 7 NYCRR.

Statutory authority:

Correction Law, sections 112, 137, 70 and 18

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

This amendment is adopted as an emergency measure because time is of the essence. This emergency rule is in response to a scheme whereby inmates have fraudulently utilized provisions of the Uniform Commercial Code (UCC) to file baseless liens with the Secretary of State against Department employees and others. Under this scheme, an inmate asserts a "copyright" over his or her name; files a UCC-1 financing statement that asserts a claim over the inmates "property", which in this case is him/herself. The inmate then makes demands to be compensated for the unauthorized use of his or her property (i.e., every time an officer writes down the "copyrighted" name) or for the illegal holding of his or her property, which in this case is the inmate him/herself. When the demands are ignored, the inmate claims a right to assert a UCC lien against the staff member to whom the demand was made. This has the potential to have a severe detrimental effect on the individual’s credit or to cause them significant financial hardship. Since the adoption of the original emergency rule, the Department has discovered prohibited materials in the possession of at least forty (40) inmates at nineteen (19) of the Department’s facilities. In each case the documents were consistent with the bogus filings associated with the "Redemptive Process" scheme that may lead to the filing of a false lien.

Accordingly, the Department has concluded that it must have the capability of making immediate changes to the process and procedure with respect to the processing of correspondence from the Secretary of State, Department of State, Corporation Division or Uniform Commercial Code of any state and the processing of outgoing correspondence to such entities; to provide notice that unauthorized Uniform Commercial Code financing statements and related materials and materials pertaining to the "Redemptive Process," "Acceptance for Value" presentments or documents indicating copyright of a name are prohibited within incoming mail and of the applicable procedure when such materials are found; to prohibit an inmate from filing any document which purports to create a lien without authorization; and to prohibit the unauthorized possession of Uniform Commercial Code financing statements and associated documents and materials pertaining to a scheme involving an inmate’s "strawman," the "Redemptive Process," "Acceptance for Value" presentments or documents indicating copyright of a name by an inmate.

Subject:

Standards of Inmate Behavior, Inmate Correspondence Program and Privileged Correspondence.

Purpose:

To revise correspondence procedures and inmate rules with respect to the processing/possession of UCC related documents.

Text of emergency rule:

Amend section 720.3(c).

(c) Except for oversize envelopes and parcels, [and] inmate-to-inmate correspondence, and correspondence specified in § 721.3(a)(2) of this Chapter, outgoing correspondence may be sealed by the inmate.

Amend section 720.3(e).

(e) Outgoing correspondence, except as specified in § 721.3(a)(2) of this Chapter, shall not be opened, inspected, or read without express written authorization from the facility superintendent.

Add new section 720.4(d)(7).

(7) Uniform Commercial Code (UCC) Financing Statements. Any UCC Article 9 form, including but not limited to any financing statement (UCC1, UCC1Ad, UCC1AP, UCC3, UCC3Ad, UCC3AP, UCC1CAd), correction statement (UCC5) or information request (UCC11), whether printed, copied, typed or hand written, or any document concerning a scheme involving an inmate's "strawman." "House Joint Resolution 192 of 1933," the "Redemptive Process," "Acceptance for Value," or document indicating copyright of an inmate's name is prohibited absent prior written authorization from the superintendent. All such material and any other material contained within the correspondence shall be examined by the superintendent in consultation with Counsel's Office and may be withheld for investigation. An inmate may request authorization from the superintendent to receive specific materials by providing the superintendent with specific, legitimate legal reasons why such materials are required.

Amend sections 721.2(b)(4) and 721.2(b)(5) and adds new subdivision (6) to section 721.2(b) as follows:

(4) mail received from the State Education Department, excluding materials sent to inmates marked "legal mail" by the New York State Library's Prisoner Services Project; [and]

(5) mail received from any county or local tax assessor or clerk, except for a clerk of a court[.]; and

(6) mail received from the secretary of state, department of state, corporation division or uniform commercial code unit of any state.

Amend section 721.3(a)(2).

(2) Outgoing privileged correspondence may be sealed by the inmate, and such correspondence shall not be opened, inspected, or read without express written authorization from the facility superintendent as specified in subdivision (c) of this section. Notwithstanding the foregoing or any other provision of this Chapter, outgoing mail to the secretary of state, department of state, corporation division or uniform commercial code unit of any state shall be submitted by the inmate unsealed and is subject to inspection.

Add new section 270.2(B)(8) iv

iv

107.21

An inmate shall not file or record any document or instrument of any description which purports to create a lien or record a security interest of any kind against the person or property of any officer or employee of the Department, the State of New York or the United States absent prior written authorization from the superintendent or a court order authorizing such filing.

II, III

Add new section 270.2(B)(14) xx

xx

113.30

An inmate shall not possess any Uniform Commercial Code (UCC) Article 9 form, including but not limited to any financing statement (UCC1, UCC1Ad, UCC1AP, UCC3, UCC3Ad, UCC3AP, UCC1CAd), correction statement (UCC5) or information request (UCC11), whether printed, copied, typed or hand written, or any document concerning a scheme involving an inmate's "strawman," "House Joint Resolution 192 of 1933," the "Redemptive Process," "Acceptance for Value" presentments or document indicating copyright or attempted copyright of an inmate's name absent prior written authorization from the superintendent.

II, III

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. COR-30-09-00018-EP, Issue of July 14, 2009. The emergency rule will expire December 6, 2009.

Text of rule and any required statements and analyses may be obtained from:

Maureen E. Boll, Deputy Commissioner and Counsel, New York State Department of Correctional Services, 1220 Washington Avenue - Building 2 - State Campus, Albany, NY 12226-2050, [phone], email: Maureen.

Regulatory Impact Statement

Statutory Authority

Section 112 of Correction Law grants the Commissioner the management and control of the correctional facilities in the department. He shall make such rules and regulations, not in conflict with the statutes of the state. Section 137(2) of the Correction Law requires the Commissioner to provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities and the maintenance of order therein. Section 70(2) of the Correction Law provides in part that correctional facilities shall be used for the purpose of providing places of confinement of persons in the custody of the Department, that such use shall be suited to the objective of assisting sentenced persons to live as law abiding citizens, and that in establishing and maintaining Department facilities, the safety and security of the community must be considered. Section 18(2) of the Correction Law grants the Superintendent the authority to provide for the supervision and management of his or her correctional facility subject to the rules and statutory powers of the Commissioner, or rules approved by the Commissioner.

Legislative Objective

By vesting the commissioner with this rulemaking authority, the legislature intended the commissioner to promulgate such rules and regulations in the best interest of the public safety, in addition to the safe secure and orderly operation of the correctional facility.

Needs and Benefits

This action is in response to a scheme whereby inmates have fraudulently utilized Article 9 of the Uniform Commercial Code (UCC) to file baseless liens with the Secretary of State against Department employees, employees of state and local criminal justice agencies, judges and employees of the Office of the Attorney General. Under this scheme, an inmate asserts a "copyright" over his or her name; files a UCC-1 financing statement that asserts a claim over the inmate's "property", which in this case is him/herself. The inmate then makes demands to be compensated for the unauthorized use of his or her property (i.e., every time an officer writes down the "copyrighted" name) or for the illegal holding of his or her property, which in this case is the inmate him/herself. When the demands are ignored, the inmate claims a right to assert a UCC lien against the staff member to whom the demand was made.

The filing of such a baseless lien has the potential to have a severe detrimental effect on the individual's credit or to cause them significant financial hardship. This response is narrowly tailored to address this significant problem while providing a mechanism for an inmate with a legitimate legal need for such documents to request and obtain authorization to process such documents. Restriction from unauthorized possession of blank UCC Article 9 forms is intended to address the concern that an inmate may complete such forms and file false liens with the aid of third parties. This proposed body of rules is similar to rules in place in other jurisdictions such as Pennsylvania and Michigan.

The Department recognizes that although "imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment,…the Constitution sometimes permits greater restriction of such rights in a prison than it would elsewhere." Beard v. Banks, 548 U.S. 521, 528 (2006). The Second Circuit has noted that "under the First Amendment, prisoners have a right to 'the free flow of incoming and outgoing mail.'" Johnson v. Goord, 445 F. 3d 532, 534 (2d Cir.2006), citing Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003). These and other decisions provide that a prisoner's right to receive and send mail may be regulated so long as the regulation is reasonably related to legitimate penological interests.

It is also noted that in Lewis v. Casey, the United States Supreme Court recognized that the right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Lewis v. Casey, 518 U.S. 343, 355 (1996). The provisions of UCC Article 9 are generally inapplicable to such issues, thus this proposed rule does not impair an inmate from challenging his or her sentence, conviction and conditions of confinement.

The Department seeks to amend the process and procedure with respect to the processing of correspondence from the Secretary of State, Department of State, Corporation Division or Uniform Commercial Code of any state and the processing of outgoing correspondence to such entities; to provide notice that unauthorized Uniform Commercial Code financing statements and related materials and materials pertaining to the "Redemptive Process," "Acceptance for Value" presentments or documents indicating copyright of a name are prohibited within incoming mail and of the applicable procedure when such materials are found; to prohibit an inmate from filing any document which purports to create a lien without authorization; and to prohibit the unauthorized possession of Uniform Commercial Code financing statements and associated documents and materials pertaining to the "Redemptive Process," "Acceptance for Value" presentments or documents indicating copyright of a name by an inmate.

Costs

a) To agency, the state and local governments: None.

b) Costs to private regulated parties: None.

c) This cost analysis is based upon the fact that this proposal merely amends the policy and procedure for handling inmate mail.

Local Government Mandates

There are no new mandates imposed upon local governments by these proposals. The proposed amendments do not apply to local governments. Correctional Facilities are State funded and operated.

Paperwork

There are no new reports, forms or paperwork that would be required as a result of amending these rules.

Duplication

These proposed amendments do not duplicate any existing State or Federal requirement.

Alternatives

The Department crafted this rule as narrowly as possible. The Department previously enacted a broader rule declaring all unauthorized UCC financing statements and associated documents contraband. This rule specifically applies to UCC Article 9 materials and documents in connection with the "strawman" and "Redemptive Process" scheme. The Department of Correctional Services has communicated with the Department of State to inquire about any less restrictive measures and have been advised there are none.

Federal Standards

There are no applicable minimum standards of the Federal government.

Compliance Schedule

A version of this rule has been filed as an emergency. Because this more narrowly tailored rule is internal to the Department, compliance with the proposed rules will be achieved immediately.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, record keeping or other compliance requirements on small businesses or local governments. This proposal is clarifying the Department’s procedures for the processing of privileged correspondence, it is providing instruction regarding the handling of regular correspondence that is determined to be contraband and is adding new rules to the Standards of Inmate Behavior.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not required for this proposal since it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on rural areas. This proposal is clarifying the Department’s procedures for the processing of privileged correspondence, it is providing instruction regarding the handling of regular correspondence that is determined to be contraband and is adding a new rules to the Standards of Inmate Behavior.

Job Impact Statement

A job impact statement is not submitted because this proposed rule will have no adverse impact on jobs or employment opportunities. This proposal is clarifying the Department’s procedures for the processing of privileged correspondence, it is providing instruction regarding the handling of regular correspondence that is determined to be contraband and is adding new rules to the Standards of Inmate Behavior.