Last summer, Monroe County Executive Jack Doyle got an alarming phone call. It was the sheriff in Rochester saying he had no place other than the roof to put the inmates in his jail. It was 95 degrees, and prisoners already were jammed into every conceivable space—the gym, the intake area, holding cells, even the chapel. Many had been convicted of violent crimes—murders, rapes, assaults—and they were taking up space in Rochester waiting for cells to open in state prisons. Like counties across New York, Monroe tends hundreds of inmates a day because the state has no room.
"It was wall-to-wall mattresses," Doyle said in a Senate hearing on prison overcrowding. "We are truly skating on thin ice. I'm not a hand-wringer, but we had a serious problem. I had to call up the governor's office to get some help."
Doyle's testimony underscores what some legislators say is New York's most pressing problem—massive prison overcrowding. Crime may be down, but the inmate population in county and state facilities is surging.
In speech after speech, Gov. George Pataki proudly has touted the numbers: murders down more than 30 percent in two years, and robberies and assaults dropping by more than 20 percent. And he has not been shy about taking the credit. Toughened-up sentencing laws, he says, are keeping dangerous criminals off the streets longer, preventing violent felons from a chance at parole, and contributing to a historic drop in New York crime.
And that's only the first wave of his plan. This year, he wants to put more teen-agers m adult prisons, eliminate parole for first-time violent felons and keep two-time sex offenders behind bars for the rest of their days. Reinstating the death penalty was just the beginning.
His hard line has a high price, however. The state's 69 prisons are already bursting with 20,961 more inmates than they were designed to hold. Some are over capacity—and they are woefully understaffed, according to guards who work inside. By 2001, corrections officials estimate New York will be home to 81,000 state prisoners, up from the current 69,870, or about 30 percent more inmates than state facilities were built to hold. To handle the overflow, Pataki has proposed building three maximum security prisons and adding space to existing facilities for a total of 7,000 new beds.
Though New York hasn't had a new prison since the Livingston Correctional Facility opened in 1991, the Democrat controlled Assembly is balking. Prisons cost plenty. Pataki has asked for $634.8 million to build three by 2000. Last year, he pushed for five and lost because Assembly members were skeptical of the need. The only difference between the governor's two proposals other than a bed count lowered from 8,800 to 7,000—is the price tag. This time, it's going to cost $158 million more.
"There have been changes in design [that] make facilities cheaper to operate and maximize safety inside them, but they're a little more expensive on the construction end," says Ted Hallman, executive deputy commissioner at the Division of Criminal Justice Services. Last year's less expensive plan also included adding more than 1,000 beds to Gowanda prison, which was cheaper than the new construction, he says.
Critics like Sen. Alton Waldon, a Queens Democrat, say that between giving criminals longer sentences and building more prisons to hold them, the governor is creating a downward spiral that will end up eating billions of dollars while doing nothing to actually address crime. "You're creating a clientele for the prison cells that will be built. It's like the Field of Dreams', 'If we build them, they will come.' What we have here is a self-fulfilling prophecy with these very extreme mandatory sentencing laws that will ensure that the prison population continues to explode," he says.
Most police, corrections officers, judges, lawyers, legislators and advocates, do agree, however, on at least one thing: New York's prisons are packed, and some kind of relief is imperative. The question is, with as much as a $3 billion state government deficit hovering, is pouring billions more into building prisons the answer?
That depends on one's agenda. Officials who support the governor's push for prisons applaud his get-tough tactics. Longer sentences are keeping criminals off the streets, they say, and crime is dropping because of it. "They're not going to be recidivist when they're in jail, and that in large measure is why we're seeing a diminishment in the crime rate," says Republican state Attorney General Dennis Vacco.
Criminologists scoff at that reasoning, pointing instead to a waning youth population, a drug trade that has shifted from violence-inducing crack to heroin, and more strategic deployment of police in New York City. Indeed, during former Gov. Mario Cuomo's 12-year tenure, 28 prisons were built and the inmate population surged to 66,750, more than doubling, but crime seemed to ebb and flow regardless. It dipped slightly during Cuomo's first five years, increased steadily during the next five, and then started on the downturn that continues today. "Crime was going down for four years before [Pataki] even got into office," Cuomo tells ESR. "The fact that it's over four years shows you it's a demographic thing—it's certainly not anything you've done with laws. If you built 10 times the cells you have now it would not solve your crime problem."
Cuomo, arguing for a preventive approach from his law office in New York City, paints a grim picture of life in prison for the state's thousands of drug addicted inmates. "They get brutalized, sodomized," he says. "Then they're let out of jail, still addicted. And you might as well keep that cell door open because they're going to be right back, because you haven't done anything to change their circumstance."
Cuomo, advocates for prisoners' rights and others who oppose Pataki's push to build prisons insist that the fiscally responsible answer is changing the laws. Under the stringent Rockefeller Drug Laws of 1973, a person convicted of selling two ounces of cocaine faces the same penalty as a murderer or kidnapper—15 years to life in prison—a far more serious penalty than that for rape or armed robbery. Under the Second Felony Offender Law, a man convicted of forging a drug prescription twice in 10 years would go straight to state prison. That's mandatory. A judge has no power to sentence the man to anything else.
There are 28,000 state prisoners now doing time under the two laws, about 40 percent of the inmate population, according to Bob Gangi, executive director of the Correctional Association of New York. "It's ridiculous," he says. "The governor says we need all this prison space for violent felons, but the bulk of the people we're sending to prison are drug offenders; 46.5 percent of them were last year."
Criminologist Kevin Wright of the State University of New York at Binghamton agrees. "Drugs are more available now than they were when we started this policy of incarcerating more people for drug offenses. This is a public policy that hasn't worked. And I don't know why we keep thinking more incarceration will work."
But Pataki has tried something new with drug offenders—turning the Willard Psychiatric Center near Ithaca into a treatment center. In its new incarnation, Willard has expanded by 100 beds. It is capable of handling 856 addicts at once, but critics view it as a flop because it has not eased the need for more space in state prisons.
With the Rockefeller and Second Felony laws repealed, New York would no longer have to send "nonviolent" drug users to prison, Pataki's opponents argue. Thousands of beds would open up and, at the same time, millions of dollars now spent on incarcerating addicts could be rechanneled into education and treatment programs.
Even Vacco admits that it might make sense to rewrite the laws. "I don't think the answer to overcrowding is opening up the jail door and letting people out. But can we relax the law a little bit for a guy who forges prescriptions twice in 10 years? Yeah, we can probably do that," he says. "Can we revise in some fashion the Second Felony Offender statute? I'd be willing to sit down in a nonpartisan sense and take a real, meaningful look at the Second Felony statute. That might make some sense."
Still, Vacco takes a hard line with those who believe that weeding out drug addicts from state prison would solve New York's problems. "I really think that's a fallacy," he says. "I've been a prosecutor for many years, and jails are not overcrowded by people merely for drug possession crimes. That is not to say it would be imprudent for us to revisit some of our drug sentencing statutes, too."
But Pataki's supporters appear unmoved. Many agree with Vacco and insist that releasing drug users would not address adequately the system's space problem.
Paul Shechtman, who recently resigned from his post as director of Criminal Justice Services, says sentencing laws that seem to equate drug possession with murder should be amended. But, he says, that would not do enough. When the Legislature passed the Sentencing Reform Act in 1995, putting more people behind bars for a longer time by ensuring that inmates actually serve at least 85 percent of their sentences, it in effect agreed to build more prisons—and make them a priority, he says.
"Yes, yes, yes. We must build prisons. If the Pataki administration had done nothing, we still would have had 81,000 people in our prisons in 2001," Shechtman says. But he admits that between the falling crime rate, prison time off for good behavior and other variables, predictions like these are "somewhere between science and guessing."
More important, Shechtman and Republican legislators point out that many prisoners doing time for supposedly nonviolent drug offenses may have pleaded down from more serious charges. "Just because an individual has been convicted of a nonviolent felony does not mean they are free from committing violent felonies," says Senate Crime Victims, Crime and Corrections Committee Chairman Michael Nozzolio. "They may have simply plead guilty to a lesser crime."
Nozzolio of Seneca Falls believes the only answer to the crunch in state prisons is to build more—not only to alleviate pressure at the top but also because of a huge backlog in local county jails. "There are just too few prison cells available at the state level," he says.
Counties that temporarily house the excess inmates are reimbursed by the state for food and housing costs, but at about half the actual expenditure. Many counties are so fed up that they are suing. Erie County just won a $1.5 million suit against the state. Tompkins County has settled for $100,000, and Monroe County just filed a suit as well. "It's absolutely essential that we build these prisons," Nozzolio says. "Counties are suing New York because [they] are having to bear the burden. It's a $250 million unfunded mandate."
In the last two years, the attorney general's office has fielded six such lawsuits, paying $5 million so far in fines.
Corrections officers have joined the push to build, though they worry that the governor won't put enough money in his budget for guards to keep the new prisons safe. Bob Lawson, a spokesman for Council 82, the corrections officers union, warns that New York is already about 370 officers short of what it needs to maintain existing jails. And the officers staunchly oppose double-celling inmates, a major cost-saving feature of the governor's plan. Currently, only about 1,000 state prisoners are paired off in cells. Despite promises from the state Department of Corrections that the numbers would not grow, all of Pataki's new prison space is planned as double cells.
Prisons—whether to build them and who to put in them—already are generating plenty of heat during this legislative session. But they are only part of Pataki's plan for criminal justice reform. Despite opposition from parole officers and hesitation in the Assembly, the governor continues to press for a no-parole policy for first-time violent felons, and last month he introduced a package of juvenile justice crack-downs that was approved by the Senate only five days later.
Pataki's Juvenile Justice Accountability and Procedural Reform Act would increase the maximum sentence to life in prison for juveniles tried as adults. It would put young delinquents in Division for Youth facilities longer and give increased powers to Family Court judges. Though robbery, the most common violent crime among juveniles, was down 3.5 percent between 1994 and 1995, and murder plummeted 47 percent, according to figures from the Division of Criminal Justice Services, Pataki is sticking by his guns.
"New York law dealing with juvenile crime is outdated," the governor says. "We can no longer afford to excuse young people who commit violent crimes from responsibility simply because of their age."
Around the state, judges who call themselves liberals have nodded approvingly along with policemen on the beat. Even legislators who oppose the governor's plans to build prisons agree that the time has come to crack down on children. Though the murder rate among juveniles dropped in recent years, it leaped 239 percent overall between 1985-95, and legislators say they are fed up with the larger trend.
Bronx District Attorney Robert Johnson, who fought bitterly with Pataki when he refused to seek the death penalty for an alleged cop killer last year, agrees with the governor on this. "In a lot of ways there are crimes that juveniles have not been held responsible for," he says, adding that current laws were written with the belief that teen-agers were too immature to understand the effect of their actions. Johnson no longer buys that. "In some ways they're getting away with things," he says.
With the Senate's passage of Pataki's juvenile justice bill, all that youth advocates can do now is turn hopefully to the Assembly. But they may face an uphill battle there as well. Speaker Sheldon Silver of Manhattan surprised many with his speech to the New York City Citizens Crime Commission in December by calling for beefed-up juvenile laws.
"It's really unfortunate, because there is substantial evidence now that alternatives to incarceration—serious sanctions for kids, not just sending them home with a slap on the wrist—have all been more successful in diverting kids from lives of crime than incarceration has," says Jane Spinak, an attorney who heads the juvenile rights division of the Legal Aid Society. The recidivism rate among teens locked up in state Division for Youth facilities is about 76 percent, she says.
The Assembly's impatience with juvenile crime may not bode well for Spinak's position, but it is does not mean acquiescence to the governor, either. Silver's spokeswoman Patricia Lynch says anything is still possible. "Whether or not the state's prison population requires more space is always the subject of budget negotiations and most likely will be again this year. We will consider it and take a look at the need, ... the type of beds that will be needed and ... state affordability," she says. "Everything's on the table, that's the way [Silver] approaches it."
Legislators may dicker over who should be in New York's prisons, but no one argues that building them would carry a huge price tag. The governor's aides say the full cost of three new facilities, including debt service on a 30-year bond, would be $1.5 billion, though others outside the administration estimate it closer to $2 billion. Meanwhile, Pataki wants to trim funds from other crime control areas. Prisoners' lawyers, aid to indigent parolees, crime labs, certain substance abuse programs and the Division of Probation all came under the knife in his current budget proposal. Despite those cuts, Pataki's $2.1 billion proposed package would increase crime spending by $27 million.
Many critics warn that targeting those programs will guarantee more recidivism, returning greater numbers of people to prison and ultimately costing even more. "If you get tough on crime in one part [of the budget], you should be consistent. We're lacking a well-coordinated, well-integrated program," says H. Susan Jeffords, president of the Parole Officers Association, who supports the governor's push to build more prisons. She questions the logic of changing 8,000 parolees from "active" to "inactive" status, another of Pataki's cost-saving proposals.
"That means no supervision, none at all.... They don't have to tell us their last known address or their next address. They can go and commit a new crime in another state and we won't 'violate' them," Jeffords says. "That is the state of New York abrogating its responsibility to the citizens of New York." But it would save $3.57 million, according to the governor's figures.
"How can you be tough on crime if you don't have parole as part of the punishment?" she asks.
Democratic Assemblyman Daniel Feldman of Brooklyn, who has chaired the Assembly's Corrections Committee for 11 years, supports Pataki on many get-tough measures, including the death penalty. But he draws the line at new prisons. Between building them and cutting taxes, there will be no way for New York to cover its costs except to take bigger and bigger bites out of higher education, he says. "There are all sorts of pressures on us to build, and if we keep doing it, everyone will be very, very happy until they find that they're not going to be able to send their kids to college. The only discretionary pot of money that's deep enough is the pot for higher education."
Feldman points to last year's push for five new prisons and the governor's concurrent proposal to cut $100 million from aid to state universities. "It's not accidental, and this year's three new prisons with a $170 million cut to higher education is not accidental, either," he says. "People feel good indulging themselves [with] the emotional pleasure of the 'lock-'em-up' mentality, and they will not want to admit that there's a devastating cost to themselves to this."
Senate Majority Leader Joseph Bruno of upstate Brunswick differs. "We have to deal in priorities, and public safety is a priority of the governor's and of the Republican-controlled Senate, so we have to find the money. There's no alternative."
Feldman has made himself a thorn in the side of the administration by repeatedly calling for a referendum on prison-building. "If the public wants this, let it say so in its vote. Why does the administration not trust the public enough to make this decision?" he asks.
But Pataki spokesman Patrick McCarthy says the public gave its support when it put Pataki in office. "The voters basically approved of this when they voted the governor in," he says.
Drug treatment workers say they can do the job far cheaper for many state prisoners. John Campbell, senior director of criminal justice services at Project Return in New York City, says his program spends $19,000 per inmate on room, board and treatment—including mental health, and vocational and family services—for one year. That's compared to $30,000 for bare-bones incarceration programs. And when successful residents leave Project Return, they leave with jobs. Since 1989, Project Return inmates have generated $101 million in income and paid almost $90,000 in taxes, Campbell says.
The Correctional Association's Gangi says Pataki's three-year, 7,000-bed program will cost $ l 75 million annually to operate. "Plus, when you count debt service, that triples the cost," he adds.
Pressure from the public will be the final arbiter. Assembly members acknowledge that their constituents want criminals locked up whatever the cost, whatever the long-term financial fallout.
"People are going to say, 'No, Feldman is wrong' because they don't want to face the reality [of the costs]," Assemblyman Feldman admits. "But the bottom line is this is not driven by rational analysis."
"It costs money, I concur," says Sen. Stephen Saland, a Dutchess County Republican. "But it reflects the reality of a system that's running at 130 percent capacity. If people want their streets to be safe and safer, there has to be a means to take law-breakers off the street."
"You have to look at each measure and ask, 'Does it make sense?'" Bronx District Attorney Johnson says. "Sending people to jail makes an awful lot of sense. As much as crime is down, people still don't feel comfortable. But it doesn't make sense to do that if we're cutting youth services and cutting education also. l don't find a problem in what we're doing, I find a problem in what we're not doing."
Claudia Rowe is a free-lance writer based in P1easant Valley
Rehabilitation or retribution?
New York likes to call its prisons "correctional facilities." But with fewer and fewer opportunities for the inmates inside to change their lives, prisoners' advocates say it's obvious that Gov. George Pataki's policies are fueled purely by retribution, not rehabilitation.
In his first two years in office, the governor cut higher education programs from prisons and trimmed staff in drug treatment, vocational training and lower-level academic programs. "It's ironic, because this past Christmas, when the governor granted clemency to seven inmates, he cited six of them for the college degrees they got while in prison," says Bob Gangi, executive director of the Correctional Association of New York.
This year, the governor also has decided to eliminate the agency that handles legal services for inmates, for a $3.56 million savings. "What you get with all this is a crisis of faith on the part of prisoners who believe that [they] have been abandoned by the system," says Jonathan Gradess, executive director of the New York State Defenders Association. "If you want to calm prisoners and provide them with a belief that the system is working for them, give them ... these services."
Pataki tried to eliminate Prisoners' Legal Services (PLS) once before, but last year the Legislature restored its funds. If Pataki gets his way now, a prisoner who is abused by a guard, is denied medication or is serving more time than he was sentenced to will be on his own. Until now, he could write to PLS and hope one of its 27 lawyers would take the case.
Legally, however, all the state need provide is a prison library—though many inmates cannot read English. It's either the books that explain how to file a case or the actual legal services. Since the Attica prison riot of 1971, New York has given its inmates both—"the Mercedes" of legal programs, says state Attorney General Dennis Vacco.
"New York state is required to provide law libraries to prisoners, and New York state does that with very extensive law libraries," adds Pataki spokesman Mike McKeon. "We are meeting our legal obligation."
Not every inmate-initiated lawsuit is worth the state's time, Vacco says, though his office must process every one of them. The attorney general has attacked cases in which cigarette-smoking inmates complain about second-hand smoke, or sue because the laundry machine is broken, or cry foul because they lose a pound in solitary confinement.
Last year, prisoners filed 7,700 suits, an increase of more than 40 percent since 1994, Vacco says. His office today is fielding 15,000 active cases, and 95 percent of them will be settled in favor of the state, he believes. Does that mean they're all frivolous? "Well, let's say that 95 percent of these 15,000 cases really shouldn't be in the system," he says.
Yet, in its 21-year history, no case ever undertaken by PLS—which only handles a tiny portion of prisoner-initiated suits—has ever been deemed frivolous, according to PLS's Executive Director David Leven. "Just because a case is hard to win does not mean it's frivolous," adds managing attorney Deborah Schneer, who believes cutting back on PLS may cause heightened tensions inside already volatile prisons. "We want prisoners to have the ability to air their grievances legitimately, through pen and paper," she says.
Vacco is not so sure. But he allows that if he had to choose between providing prison libraries and PLS, he would rather go with working attorneys than jail-house lawyers. "I guess that puts me in disagreement [with the governor] but we agree in that why should we pay for both? They want to go to law school, they want to study? Let them go out and buy their own books," Vacco says. "I don't want to keep the guy who's got the legitimate complaint from airing it. Darn it, they should have an opportunity. But don't tell me a convicted murderer can sue to have gospel music piped into his cell because the laundry machine is broken."
—Claudia Rowe