Message from the Chair As Chair of the Standing Committee on Correction, I would like to take this opportunity to provide an update on the activities of the Committee during the 2003 Legislative Session. The Committee has worked diligently to introduce and pass legislation to improve public safety by addressing vital issues of public concern including reforming New York’s Rockefeller Drug Laws, and strengthening several New York State statutes including the Sexual Assault Reform Act (SARA), and the Sex Offender Registration Act, also known as Megan’s Law. The Assembly has been at the forefront of legislative efforts to improve public safety and to provide greater protections to victims of crime. The Committee on Correction will continue to work with the legislature and the public towards this goal during the 2004 Legislative Session. Sincerely, Jeffrion Aubry, Chair NYS Assembly Committee on Correction Room 526 LOB Albany, NY 12248 518.455.4561

Session 2003
...at a Glance

2003 Legislative Highlights
Rockefeller Drug Law Reform – A.7078(Aubry)
New York’s draconian Rockefeller drug laws have resulted in unfairly long prison sentences for many non-violent drug offenders. They have also cost state taxpayers billions of dollars in prison costs to house low-level, non-violent drug offenders who would be better placed in longterm drug treatment. There are approximately 18,000 drug offenders in New York State correctional facilities. It costs the state approximately 30,000 dollars per year to house each of these inmates. Among many other provisions, New York law currently requires a mandatory sentence of 15-25 years to life in prison for the possession of 4 ounces or the sale or attempted sale of 2 ounces of narcotics. Furthermore, under current law, the possession of a single grain of a narcotic (i.e., a quantity equal in size and weight to one grain of sand) with the intent to sell it, subjects an offender to a prison term of up to 25 years, regardless of whether or not any additional aggravating circumstances exist.

This legislation, introduced by Chairman Aubry, would enact the Drug Reform, Drug Treatment and Crime Reduction Act of 2003. Its key components are: (1) provide for judicial discretion in sentencing drug defendants; (2) enhance drug treatment programs to help eliminate drug addiction; (3) significantly reduce prospective sentences; (4) provide meaningful sentencing relief to currently incarcerated offenders; and (5) provide for tough targeted penalties against drug kingpins, violent drug dealers and drug dealers who prey on children.

This bill was passed in the Assembly in June 2003, and is awaiting action in the Senate.

Interstate Compact for Adult Offender Supervision
Chairman Aubry sponsored this legislation which enacts the Interstate Compact for Adult Offender Supervision, to control and regulate the interstate movement of probationers and parolees released into the community through the cooperative efforts of member states. This bill was signed into law in October 2003. (A.851/S.5202; Session Laws of New York 2003, Chapter 688)

Second Chance Program
Chairman Aubry sponsored this legislation which would permit any eligible person, within five years of completing their prison sentence, to apply to their sentencing court to have all records relating to convictions for designated offenses, sealed. Eligibility criteria includes no more than two non-violent, non-sexual felonies, and misdemeanors involving the sale, distribution or possession of controlled substances. Additional eligibility criteria include successful completion of the Second Chance Program approved by the NYS Division of Criminal Justice Services. This bill was referred to the Assembly Rules Committee in 2003 (A.850 – Aubry)

Inmates’ Application for Medical Assistance Ninety (90) Days Prior to Release
Chairman Aubry sponsored this legislation which requires the Superintendent of each NYS correctional facility to ensure that an application for medical assistance is filed with the Department of Health for each inmate not less than 90 days prior to the inmate’s release from such facility, and requires the head of each local correctional facility to ensure that an application for medical assistance is filed within seven days of commitment, for each inmate sentenced for more than thirty days. This filing process will enable inmates who are released into the community to obtain immediate medical treatment, particularly in cases of illnesses such as mental disorders, HIV, AIDS, and Hepatitis C (A.5380/S.3358). This bill was referred to the Assembly Ways & Means Committee.

Article VII Legislation - Early Release of Inmates
This budget legislation allows the Commissioner of the Department of Correctional Services (DOCS), in his sole discretion, to take one-third (1/3) off the minimum sentence of Class A-1 non-violent drug offenders with exemplary disciplinary and program participation records, and for such offenders to be eligible for parole release at this lower minimum sentence, through this modification of the Merit Time Program. For example, an eligible offender serving a sentence of 15 years to life could be released after serving ten years. This legislation also provides the discretion to release certain non-violent offenders who complete DOCS program requirements after their minimum sentence or “presumptive release,” which is functionally equivalent to parole.

Eligible inmates who were not granted presumptive release would still be required to appear before the Parole Board. Approximately 1300 inmates are estimated to be released under this bill over the 2003-04 Fiscal Year. This bill would also end parole for eligible inmates after two years instead of the current three years. (A.2106B, Part E, Sections 1-15)

Work Release Extended to Victims of Abuse
This legislation authorizes the Commissioner of DOCS to permit certain offenders convicted of homicide or assault crimes, who are within two years of parole eligibility, to participate in a Temporary Release Program, provided that such offenders demonstrate that: the victim was a member of the inmate’s immediate family; the inmate was subjected to substantial physical, sexual or psychological abuse by the victim of homicide or assault; and, such abuse was a substantial factor in causing the inmate to commit the homicide or assault. The legislation also requires the Commissioner of the Department of Correctional Services to consider the opinions of the district attorney and the sentencing court. (Session Laws of New York 2002, Chapter 251)

Prison Health Care
This legislation authorizes the Commissioner of Correction, in consultation with the Commissioner of Health, to develop programs to prevent the spread of sexually transmitted diseases, hepatitis C and HIV among correctional employees and inmates. There are more than 105,000 inmates in city, county, and state correctional facilities in New York State. Approximately 65,000 of these inmates are in New York State prisons, 6,000 of whom are estimated to be HIV positive. The development and implementation of education and outreach programs would not only reduce the spread of sexually transmitted diseases in prisons, but also reduce health care costs to treat these illnesses. (A.3940A-Gottfried, Aubry, et al)

Custody and Supervision of Inmates - Civilian Personnel
This legislation amends New York City Administrative Code S9-117, as recently amended by Chapter 535 of the Laws of 2002, to clarify that incidental supervision and custody of inmates may be maintained by non-uniformed employees of, or persons under contract to, the New York City Department of Correction. In September, 2002, Governor Pataki signed into law Chapter 535 of the Laws of 2002, which requires that the duty of maintaining the custody and supervision of persons detained or confined by the New York City Department of Correction be performed solely by members of the uniformed force, and prohibits such duty from being delegated, transferred or assigned in whole or in part to private persons or entities. (A.7427/S5098, Session Laws of New York 2003, Chapter 629)

Custody and Supervision of Inmates - Prohibition of Private Guards
This legislation prohibits the replacement of state and local correction officers by private guards. The correction law is amended by providing that the duty of maintaining the custody and supervision of persons detained or confined in a correctional facility shall be performed by peace officers who shall be in the competitive, non-competitive or exempt class of the civil service of New York state as determined by the state or applicable local civil service commission. (A.7428A/S/4734A, Session Laws of New York 2003, Chapter 629)

Sexual Assault Reform Act
The Sexual Reform Act of 2000 provided for the comprehensive reform of laws relating to sex offenses and other crimes by extending protection to additional victims, facilitating prosecutions through numerous procedural reforms and enhancing penalties. The Assembly acted to strengthen and improve SARA in 2003 by closing the gaps in the law with more effective safeguards and tougher penalties.

• Stronger Protections for Sexual Assault Victims
  This legislation amends the Sexual Assault Reform Act of 2000. It provides for stronger protections for individuals who are sexually assaulted by their spouses, the creation of the Sexual Assault Forensic Payment Program, the setting of effective penalties for forcible touching and persistent sexual abuse, and greater protection against date rape drugs. (A.9116/S.5690; Session Laws of New York 2003, Chapter 264)

Megan’s Law Amendments
The Assembly acted to strengthen and improve Megan’s Law in 2002 (Session Laws of New York 2002, Chapter 11). The amendment enhanced state law for monitoring sex offenders, and expanded the list of offenses for which convicted offenders must register with local authorities to include offenses in which the victim is a minor, as well as persistent sexual abuse, facilitating a sex offense with a controlled substance, first degree disseminating indecent materials to minors and sexual assault crimes prosecuted under other state statutes. Among its other provisions, the Megan’s Law Amendment extends the period of time for which sex offenders must register with local authorities for specific offenses and requires offenders who attend educational institutions outside of their home communities to register as offenders in both locations. This 2002 amendment also brought New York law into compliance with federal statutes that require states to enact a number of specific mandates under Megan’s Law in order to receive their full share of funding under the anti-drug grant program.

• Photograph Dissemination of Level II Sex Offenders
  This legislation requires the law enforcement agency having jurisdiction to include a photograph and description for all notifications of a designated Level II sex offender to any entity with vulnerable populations. This legislation also provides that law enforcement may disseminate certain relevant information of a Level III sex offender. (A.707/S.5571; Session Laws of New York, Chapter 316)
• Video Voyeurism
  This legislation, also known as Stephanie’s Law, would make it a Class E felony to photograph or videotape individuals in the most private circumstances without their consent. It would also make it a felony for a photographer or an accomplice to distribute these photographs or videotapes, and bans anyone from knowingly disseminating such unlawful images. This bill would also require that those who repeatedly commit video voyeurism crimes be charged with a Class D felony and face up to seven years in prison. This bill amends the penal law, and the correction law in relation to requiring offenders to register as sex offenders under the Sex Offender Registration Act, also known as Megan’s Law. (A.8926/S3060-B; Session Laws of New York 2003, Chapter 69)
• False Dissemination of Sex Offender Information
  This legislation makes it a Class A misdemeanor to falsely identify someone as a sex offender or to distribute such information independently of the authorized agency required by law to release such information. (A.5748/S.948; Session Laws of New York 2003, Chapter 200)
• Current Sex Offender Registry Photos
  This legislation amends the correction law to require that a photo be taken at the time of registration for sex offender registrants. If a current photo is not taken, this legislation requires that the NYS Division of Criminal Justice Services shall provide a disclaimer explaining when the photo on the registry was taken. New York’s current sex offender registry does not require that the photo be current as of the time of registration. The bill improves upon the general purpose of the Sex Offender Registry — to allow victims and members of the community to have access to current photos of sex offender registrants. (A.8758-Grannis, Aubry, et al; Passed Assembly)
• Sex Offender Must Provide Employment Address
  This legislation requires a Level III sex offender to provide his or her employment address to the NYS Division of Criminal Justice Services. (A.1109/S.246; Session Laws of New York 2003, Chapter 10)

Correctional Association of New York’s Report “Lockdown New York: Disciplinary Confinement in New York State Prisons”
This October 2003 report examines the serious problems that pervade disciplinary confinement units in New York State prisons. The Correctional Association has based its report on 49 site visits to 26 lockdown units (23 hours per day confinement), structured interviews with 258 inmates, and discussions with prison administrators, correction officers, psychologists, psychiatrists and correctional experts. According to the report, from 1998 to 2001, over half of the 48 suicides in New York prisons took place in 23-hour lockdown units, and approximately 1000 inmates or 23% of New York’s disciplinary confinement inmates are severely mentally ill. The report also reveals that of the 1,000 inmates with serious mental illness, the prison’s only psychiatric hospital, Central New York Psychiatric Center (CNYPC) has space for only 200 inmate patients.

The report’s recommendations include the creation of a permanent, independent oversight board with the authority to monitor the conditions in 23-hour lockdown units, provisions for appropriate housing for inmates with mental illness, regular review of inmate death reports published by the NYS Commission on Correction, restrictions on the use of 23-hour lockdown for inmates who commit serious offenses, and the provision of resources to expand the capacity of CNYPC. To read this report, visit the Association’s website at www.correctionalassociation.org.

Human Rights Watch Report : “Ill Equipped:U.S. Prisons and Offenders with Mental Illness”
This September 2003, 215-page report found 1 in 5 of the 2.1 million Americans in jail and prison are seriously mentally ill, which outnumbers the number of mentally ill who are in mental hospitals throughout the country. Many of these inmates suffer from serious illnesses such as schizophrenia, bipolar disorder, and major depression.

According to the report, jails and prisons have become the nation’s default mental health system. While more state hospitals have closed, leaving fewer than 80,000 people in mental hospitals, the number of inmates in the country’s prison system has quadrupled over the past 30 years to 2.1 million. There are three times as many men and women with mental illness in U.S. prisons as in mental health hospitals.

The report urges the enactment of proposed legislation that would provide funds to divert mentally ill offenders into treatment programs rather than jail or prison, and to improve the quality of mental health services provided to jail and prison inmates. To read this report, visit the Human Rights Watch website at www.hrw.org and click on “publications.”

Assembly Holds Hearings on the Mental Health Treatment of Inmates in Solitary Confinement
During the 2003-2004 Legislative Session, Chairman Aubry sponsored legislation (A.8849), which would require the Department of Correctional Services (DOCS) to develop effective alternative confinement for inmates with serious mental illness who would otherwise be subject to Special Housing Unit (SHU) confinement. SHU confinement requires 23 hours of lockdown per day and may range from a period of days to terms which last for many years. The purpose of this hearing is to gather information about current conditions of disciplinary confinement in the state prison system and suggestions for the improvement of the conditions of confinement and treatment of prisoners with serious mental illness in an effort to make New York State’s prisons safer for staff, inmates, and the public once these inmates are released. Assembly Public Hearings on this issue took place on October 7, 2003 in Rochester, New York, and November 18, 2003 in New York City. Another Public Hearing on this issue is scheduled for January 13, 2004 in Albany, New York.

The Attica Task Force Hearings
In March of 2001, Governor George Pataki officially recognized that New York has an obligation to address the issues of concern raised by the victims of the 1971 riot at the Attica Correctional Facility. The Governor announced the creation of a bi-partisan, joint task force – The Attica Task Force – to review issues raised by the Forgotten Victims of Attica – a group of correction officers, civilian employees, and their families who were injured or killed during the Attica prison riot. The Attica Task Force is comprised of the Commissioner of the New York State Department of Correctional Services, and designated members of the New York State Legislature.

As Chair of the Assembly Standing Committee on Correction, Chairman Aubry participated in all Attica Task Force Hearings as an ex officio member. The Attica Tax Force Hearings were held on May 9 and 10, 2002 in Rochester NY, July 30 and 31, 2002 in Albany NY, and again on August 12 and 13, 2002 in Rochester, NY. A total of 52 witnesses testified during these hearings.

The Forgotten Victims of Attica has identified five (5) issues of concern which they request the state address. They include: (1) fair and just compensation for the employee injuries and deaths resulting from the riot; (2) the right to conduct an annual memorial service on September 13th in front of the memorial on the grounds of the Attica Correctional Facility; (3) counseling for those still suffering and traumatized by the events arising out of the riot and retaking of the facility; (4) the opening of all state’s records on the riot, to the public; and (5) an apology from the state for the way the victims of the riot were treated in 1971 and thereafter.

The Attica Task Force is in the process of preparing its recommendations for the Governor and the state Legislature to consider in resolving the issues raised by The Forgotten Victims of the 1971 riot at Attica Correctional Facility.

Assembly Hearings on Health Care in New York State Prisons
Chairman Aubry and Assemblyman Richard N. Gottfried, Chair of the Assembly Committee on Health, have introduced several bills to: require the New York State Department of Health (DOH) to review the Department of Correctional Services’ (DOCS) policies and practices regarding HIV/AIDS and Hepatitis C care (A. 4204/S.1840); include health facilities (clinics, infirmaries, hospitals) in DOCS and local correctional facilities under Article 28 of the Public Health Law, which apply to all other hospitals and clinics (A. 3692/S. 3898); and to require the Commissioner of DOCS to develop and implement programs for employees and inmates in each correctional facility to prevent the spread of sexually transmitted diseases and human immunodeficiency virus infection (A. 3940-A/S. 2082). Unlike other health care providers, prison health facilities are not subject to the oversight or authority of any health agency. The NYS Department of Health (DOH) does not have statutory authority to review medical care in DOCS facilities, which are exempt from DOH jurisdiction under Article 28 of the Public Health Law. However, in 1992 DOH performed a limited audit of DOCS health care at twelve prisons and found significant deficiencies in care.

The objective of this hearing is to gather information regarding DOCS health care policies and practices for its 65,000 inmates, 10,000 of whom are infected with hepatitis C and 6,000 of whom are infected with HIV. The creation of an independent oversight board with the authority to monitor medical care of inmates within DOCS will also be discussed.

An Assembly Public Hearing on Health Care in New York State Prisons took place on November 14, 2003 in Albany, New York. Another Public Hearing on this important issue will take place in January 2004.