The staff of Prisoners’ Legal Services is extremely concerned about the health and safety of everyone in DOCCS custody during this pandemic. PLS, other prisoners’ rights advocacy organizations and Legislators have been in regular contact with DOCCS, the Board of Parole and Governor Cuomo’s office about our concerns, particularly with respect to reducing the prison population by selectively releasing people who are close to their release dates, medically compromised or in custody due to technical parole violations:
Letters to Governor:
Letters to Board of Parole:
Letters to DOCCS:
Letters to EOIR and Batavia:
Some of our proposals with respect to these concerns have been adopted.
Beginning in March, DOCCS and Governor Cuomo’s office released some technical parole violators. In April, DOCCS and Governor Cuomo’s office began considering for early release of individuals who are at least 55 years old, were not convicted of violent crimes and were within 90 days of their earliest release date. DOCCS has now eliminated the age requirement. While people who fit this criteria – nonviolent felony offenders within 90 days of their release dates – are being considered for release, early release is not automatic. Individuals must still have an address approved by parole before release and there are other criteria imposed that may result in denial of early release even if the individual otherwise qualifies for release. DOCCS says that consideration for early release if you are convicted of a nonviolent felony and within 90 days of your release is ongoing. If you believe you qualify for consideration, we urge you to contact your ORC to ensure that your address is approved.
DOCCS Re-Opening Plan: Programs, Transfers, and Visitation
In early June, DOCCS issued a re-opening plan and is posted on its website. This plan includes gradually reintroducing:
DOCCS is planning to continue the suspension of academic and vocational programming through the summer. The re-opening plan calls for lifting the suspension on academic and vocational programming at a later time.
DOCCS’s re-opening plan includes slowly resuming internal transfers and movement, while instituting social distancing on transportation vehicles, with both staff and prisoners required to wear masks.
DOCCS has transferred all adolescent offenders from Adirondack AO Facility to Hudson AO Facility.
DOCCS is transferring to Adirondack C.F. individuals age 65 and older and who meet the facility’s medical and OMH level restrictions. As of the date of this writing, Adirondack is an OMH Level 2 facility. It does not have a regional medical unit.
DOCCS will be slowly accepting intake from the county jails. DOCCS’s re-opening plan states that it is not going to accept admissions from county jails where there is even one current COVID-19 case. In addition, any individual being transferred into DOCCS custody must be tested and isolated following the test and must receive a negative test result. Individuals being transferred from a county jail must be beyond the quarantine period and not be part of a current contact trace when they are transferred. When an individual who is transferred from a county jail arrives at a DOCCS facility, the individual must be temperature checked and medically assessed before entering the draft area of the facility. Once the individual is cleared for entry, they will be given a mask.
DOCCS reports that in-person visitation remains suspended. DOCCS is currently working on a plan for resuming in-prison visiting.
Inability to Program During Pandemic
DOCCS officials initially stated that a prisoner’s failure to program due to the virus-related program suspensions and “through no fault of the individual” would not have adverse consequences, for example, the loss of eligibility for early release. More recently, however, DOCCS has revised their position. This revision is based on DOCCS’ plan to re-open programs. DOCCS now states that it is not going to completely and fully credit all time that otherwise might have been spent programming had the programs not been suspended. We continue to urge DOCCS to reconsider this issue.
DOCCS’ current position is that they are only crediting the period of time between 3/16/20 and 4/10/20 to individuals who would otherwise have been actively programming in substance abuse treatment programs (ASAT, CASAT, IDDT. DOCCS informs us that they are also crediting all time that would have been spent in court-ordered Shock. However, DOCCS is not crediting time that would have been spent in other programs, such as ART. DOCCS is also not crediting time that would have been spent in vocational or educational programs, many of which contain mandatory certification of attendance periods under state or federal law.
Although DOCCS does have the authority and discretion to withhold credit during the program suspensions, we have been investigating whether there is a legal entitlement or right to program credit for substance abuse programming such as ASAT for individuals with substance use disorders during the period when the programs were suspended due to the public health crisis. Generally, there is no legal entitlement to these programs. There is an argument that individuals who are court-ordered to Shock or Willard, have a legal entitlement to the benefit of those sentences. If you were court-ordered to these programs, you should immediately speak to your counselor and request a response in writing.
Some individuals have noted that during the program interruptions, DOCCS required individuals in program housing to abide by the rules associated with that residence and program even though no programming was taking place. During this period, DOCCS kept program pay rates the same. With the exception of court-ordered Shock and Willard, neither of these facts alter the discretion DOCCS has with respect to whether to afford any program credit during the suspension periods.
With the anticipated resumption of programs, hopefully few people will be directly adversely affected by the program interruptions. However, if based upon a specific failure to program caused by the public health crisis that was not the result of any fault of your own, the TAC takes away good time, or Parole denies release, you should object, appeal the denial, file a grievance, and also write to Donald Venettozzi, Director of Special Housing / Inmate Discipline at DOCCS Central Office, 1220 Washington Avenue, Albany, NY 12227.
Lawsuits for Release Relating to COVID-19
Due to the danger of widespread COVID-19 infection in prisons, there have been numerous lawsuits in state and federal courts seeking the release of prisoners serving sentences imposed by state court judges. To date, the lawsuits have not led to the release of any state-sentenced prisoner. The reasoning used by these courts to deny relief varies, but is rooted generally in various procedural and substantive legal hurdles. Lawsuits seeking more tailored relief, for example the release of pre-trial detainees and people charged with technical parole violations, have been more successful.
Our administrative advocacy efforts, however, do not preclude bringing a lawsuit at a later date should there be significant legal and/or factual developments. We are continually monitoring the situation in the NYS prisons and closely watching what is happening in courts across the country. Our goal is to take whatever action we believe is the most likely to result in protecting, to the greatest extent possible, the health and safety of the incarcerated population.
Throughout the pandemic, we have demanded that DOCCS take immediate measures to reduce the spread of the virus in the prisons by reducing the number of people in custody, providing regular access to soap, clean towels, cleaning supplies, and hot water and, most recently, increasing the amount of testing. Beginning in the last week of June, there has been a significant increase in the amount of testing for individuals in DOCCS custody.
We asked DOCCS to be more transparent in reporting COVID-19 cases within the prison and urged DOCCS to create a COVID-19 dedicated webpage to provide detailed and updated information related to COVID-19. On April 10, DOCCS went live with its COVID-19 webpage. See: https://doccs.ny.gov/doccs-covid-19-report. This website continues to be updated.
Posted on DOCCS’ COVID-19 website is a listing, updated daily, of COVID-19 positive cases for incarcerated individuals, parolees and DOCCS staff. In response to pressure from PLS and other prisoners’ rights advocates, DOCCS now provides information on the number of people at each prison who have tested positive for the virus. The information on incarcerated individuals includes the number of prisoners tested, the number of positive, negative and pending test results, the number of prisoners who have died and the number of prisoners who have recovered. As of July 10, 545 incarcerated New Yorkers have tested positive for COVID-19, 495 have recovered and sadly, 16 died. The most recent death from COVID-19 in DOCCS custody was on May 11.
Reducing the Spread of the Virus:
One of the most effective measures for reducing the spread of Covid-19 is to have people wear masks. DOCCS provides all incarcerated individuals with surgical-type masks.
Correction officers, parole officers and civilian staff are required to wear masks while on duty. We encourage you to wear a mask.
According to its website, DOCCS continues to implement enhanced cleaning/sanitizing measures and disinfecting procedures for office surfaces and devices consistent with the Centers for Disease Control and Prevention and New York State Department of Health guidelines.
In addition, DOCCS uses the protocol below for reducing the spread of the virus:
Contact with Loved Ones and Family
On March 14, DOCCS first suspended all personal visits. DOCCS is now working on a plan to resume visits. While visits are suspended, DOCCS will continue to provide:
PLS has urged DOCCS to provide unlimited postage, emails and phone calls without charge.
General Population Tablet Program.
JPay will continue to make the previously announced four free games available at one time.
On May 1, JPay agreed to provide incarcerated individuals with general confinement tablets a free month’s subscription to the vendor’s Newsstand application. The Newsstand provides access to local and world news, sports and current events. You must update your tablet to receive the Newsstand application and to subscribe to the service. Daily updates are available via kiosks. The offer has been extended at least through July.
Changes in State Court Operations
On March 20, 2020, New York Governor Cuomo issued Executive Order 202.8. The terms of this order were extended on April 7 and 16, May 6, and June 8. This Executive Order tolled – stopped the clock running – on all state court filing deadlines, including state statutes of limitations, currently through midnight on August 5 2020.
Changes in State Statutes of Limitations and Court Filing Deadlines
This suspension includes any state statute of limitation for commencing actions that are set by Criminal Procedure Law, the Family Court Act, the Civil Practice Law and Rules, the Court of Claims Act, the Surrogate’s Court Procedure Act, and the Uniform Court Acts, or by any other statute, local law, ordinance, order, rule, or regulation.
Example: On March 20, you received a decision on a Tier III appeal. The four-month statute of limitation on your Article 78 would normally begin running on March 20. Due to the suspension of statutes of limitation, the clock stopped running on that deadline on March 20 and will start running again on August 5, 2020. Thus, in the example, you will have 4 months from August 5, within which to file an Article 78 petition. In effect, you do not count the days in the period during which all these deadlines are tolled when you are figuring out your filing deadline.
Effective June 10, 2020, Administrative Order 121/20 allows unrepresented parties ( pro se litigants) to file, serve, and be served by non-electronic means (paper filings). If you are represented, you will be required to file through the New York State Courts Electronic Filing System (NYSCEF).
Many courts are conducting hearings via video or teleconference rather than conducting in- person hearings.
As of July 14, except for the courts in New York City, courts in New York State are hearing the following types of cases in person:
Changes to the State Court Appeals Process
Appellate Divisions, All Departments
All departments of the Appellate Division have expanded their requirements for electronic filing. However, pro se incarcerated litigants are considered “exempt litigants” under 22 NYCRR 1245.5 (Joint Rules of the Appellate Division on Electronic Filing) and do not have to participate in electronic filing. Given the rapidly changing rules about submitting paper copies, we recommend you contact the Appellate Division you will be filing in and request any rules about submitting paper copies and other requirements for pro se incarcerated litigants.
All departments of the Appellate Division are accepting filings in essential and non-essential matters.
Beginning on May 27, 2020, the First Department is operating as a Virtual Court. It has resumed operations, including calendaring appeals and motions and scheduling conferences. On May 8, 2020, the court rescinded its order temporarily suspending perfection and filing deadlines. The deadlines in September through December 2020 are reinstated. The court has continued to suspend requirements for submitting paper copies of records, appendices and briefs.
The court now requires all appeals originating from civil matters in Bronx and New York Counties to be submitted via NYSCEF, beginning on June 1, 2020.
On July 7, the Second Department lifted the suspension of filing deadlines for perfection of non- actively managed civil matters as follows:
An earlier order lifted the suspension of deadlines for any pending civil matters, including the filing of response and reply briefs.
The deadlines for briefs which were due to be filed between 3/16/20 and 3/31/20 is 7/6/20; The deadlines for briefs which were due to be filed between 4/1/20 and 4/15/20 is 7/20/20; and The deadlines for briefs which were due to be filed between 4/16/20 and 5/6/20 is 8/3/20.
On May 22, 2020, the court vacated its earlier orders suspending the deadlines for perfection, filing and other deadlines. The deadlines for perfection are now:
If your deadline to perfect was due: It is now due:
March 17 – March 27 July 8
March 30 – April 10 July 15
April 13 – April 24 July 22
April 27 – May 6 July 29
May 11 – May 22 August 5
For any answering or responding brief due on or after May 26 through June 22, the deadline is extended an additional 45 days. An extension of time to perfect an appeal after June 22 will require an application or motion under 22 NYCRR 1250.9(b) and 22 NYCRR 850.9(c). Any pending motions for extensions of time made before March 17, 2020 are granted for an addition 45 days.
The above schedule does not apply to any deadline ordered by the Court after March 17, 2020. If the court ordered a particular deadline in your case, the court-ordered deadline shall control.
On April 13, 2020, the court rescinded its earlier order suspending perfection, filing, and other deadlines. If your deadline to perfect was after May 22, 2020, that deadline remains in place. All hearings and appearances are being conducted via teleconference.
Effective July 1, 2020, the court is requiring electronic filing for appeals of family court and criminal court matters.
Changes to Federal Court Procedures
The federal courts have not announced tolling provisions comparable to those of the state courts. You are still responsible for complying with statutes of limitations and deadlines relating to federal court claims and filings.
For more information:
Other helpful links:
WELCOME TO PRISONERS' LEGAL SERVICES OF NY
Anatomy of A Riot (Click on image to view)
Posted 3/25/2020, Edited 7/21/2020
Promoting justice, fair treatment and humane conditions since 1976.
For an overview of the reasons why PLS was created and insight into why an organization like PLS is vital to New York State's system of criminal and civil justice, take 15 minutes to watch the short film : Anatomy of a Riot.
Prisoners’ Legal Services of New York (PLS) is a non-profit legal services organization founded in 1976 to provide indigent incarcerated New Yorkers access to the courts.
There are over 51,000 individuals incarcerated in 54 prisons across New York State and PLS responds to more than 10,000 requests for assistance annually.
Our mission is to provide high quality, effective legal representation and assistance to indigent prisoners, to help them to secure their civil and human rights, and to advocate for humane prisons and for a more humane criminal justice system.