PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 7603.2; and addition of section 7603.3(b)(5) to Title 9 NYCRR.
Statutory authority:
Correction Law, section 45(6) and (15)
Subject:
DOCCS variances.
Purpose:
To allow for a DOCCS variance to facility capacity regulations when necessary for inmate programming or other important needs.
Text or summary was published
in the May 23, 2012 issue of the Register, I.D. No. CMC-21-12-00005-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Brian M. Callahan, Associate Attorney, New York State Commission of Correction, Alfred E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, New York 12210, (518) 485-2346, email: Brian.Callahan@scoc.ny.gov
Assessment of Public Comment
The New York State Commission of Correction (hereinafter "Commission") received formal comment from Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision (hereinafter "DOCCS"), and Donn Rowe, President of the New York State Correctional Officers and Police Benevolent Association, Inc. (hereinafter "NYSCOPBA"), the labor union representing all correction officers, correction sergeants, institution safety officers and community correctional center assistants employed by DOCCS.
In its comments, NYSCOPBA initially cites various statistics to support its premise that "working in New York's corrections system is far less safe today than it was four years ago." For this reason, NYSCOPBA has called upon the Governor and Legislature to support an evaluation of the state's correctional system with regard to security, staffing ratios, bed capacity, and the double-bunking and double-celling of inmates. Until such evaluation is accomplished, NYSCOPBA claims that "an honest evaluation of prison safety, security, and welfare cannot be made, including the programmatic and other important inmate needs intended to be addressed by the Commission in the proposed regulations herein." The Commission disagrees with this presumption, as the proposed regulation does not seek to evaluate or address the programmatic and other important needs of the inmate population. Rather, the proposed regulation will only allow DOCCS to apply for a variance to capacity regulations where it can establish that a programmatic or other important inmate need cannot be met, or would be inordinately delayed, in the absence of a variance.
NYSCOPBA further contends that there remain a significant number of double-celling and double-bunking approvals that "create prison conditions which fail to meet the Commission's minimum housing standards and lead to overcrowded and dangerous conditions of confinement increasing the risk of harm to officers, civilians and prisoners alike." The Commission also strongly disagrees with this contention, as all double-celling in the DOCCS system complies with the regulations set forth in sections 7621.6 and 7621.7 of Title 9 NYCRR, and double-bunking in the DOCCS system currently consists of only a total of 116 beds in two (2) facilities, all granted by Commission variance.
Lastly, NYSCOPBA correctly notes that, as the regulations are presently designed, variances provide short-term relief for temporary conditions, as opposed to permanent, long-term exceptions to Commission regulations. To that end, the current regulations require any DOCCS variance application to provide a remediation plan and timetable for compliance. With regard to the proposed regulation, NYSCOPBA contends that "variances could continue until such time as DOCCS can no longer support its programmatic or other important needs, and further removes the requirement that such variances are intended to be temporary in nature." Further, NYSCOPBA argues that "there would be almost no limit to such variance applications since the basis upon which to seek and grant same would be expanded almost without limit if it can be advanced as an 'other important needs of one or more inmates.'"
As this argument completely ignores its constitutional and statutory function and duty, the Commission must further disagree therewith. Created by Article 17, section 5 of the New York Constitution, the Commission of Correction is an independent agency within the Executive branch charged by Article 3 of the Correction Law with the oversight and regulation of all correctional facilities in New York State, including those operated by DOCCS. In the wake of the Attica prison riots of 1971, Correction Law Article 3 was ratified to restructure the Commission of Correction (L.1975, c. 865, § 2). As proposed, the overall purpose of the bill was "creating and encouraging a strong and vigorous watchdog organization [to] make our correctional system accountable to the people." McKinney's 1975 Session Laws of New York, p. 1705. Similarly, Governor Hugh L. Carey's accompanying memorandum stated that the "purpose of these bills is to establish a full-time and vigorous watchdog organization to oversee the performance of the State and local correctional system…" Id., at 1781. Carey further declared that "[i]t is of utmost importance that there be some independent and effective oversight of the operations of this system to assure the public that its performance meets or exceeds acceptable standards." Id. As amended, the proposed regulations will still require DOCCS to make an application to the Commission for any variance to its body of regulations. The ability to approve or deny any variance, for any suitable length of time, will remain in the independent, sound discretion of the Commission.
As an alternative to the proposed regulation, NYSCOPBA proposes that "such variance applications should be made subject to a public hearing requirement prior to the Commission's determination in order to provide interested parties and the public an opportunity to obtain and present relevant information regarding such variances. The Commission hereby elects not to incorporate NYSCOPBA's proposed alternative into the regulation because it believes the desired effect already exists. The Commission considers variance applications from DOCCS, and all other correctional facilities, at its monthly agency meeting, which is subject to the Open Meetings Law. The agenda is published in advance of each meeting, even emailed to various individuals and agencies, including NYSCOPBA. This current process provides interested individuals and agencies the opportunity to provide the Commission relevant information and its opinion in advance of the meeting, an opportunity that NYSCOPBA has previously utilized.
Conversely, the comments submitted by DOCCS voice its strong support for the regulatory amendment as proposed, recognizing "that in certain limited situations, there may be a sound and rationale basis for requesting a variance that is unrelated to the need for additional capacity." The Commission agrees, as the stated benefits were the primary purpose of the proposal.
