George Pataki wants harsher penalties for criminals and more penitentiaries. But critics say the governor's latest law and order reforms skirt justice and could ignite an already volatile prison system.
 
 
 
 

A prison riot on the scale of Attica may be in New York's future if Gov. George Pataki is permitted to implement the second phase of his criminal justice reforms, his opponents warn. Memories of the 1971 riot, which left 29 inmates and 10 guards dead, were rekindled when the governor pushed a harsh crime package through the Legislature last session that lengthened prison sentences and toughened incarceration policies. Program personnel within the prisons were cut, parole and work release were restricted, the death penalty was restored and for the first time in New York's prison system, two inmates were placed in some single cells to save space in an overcrowded system.

 Fears last summer of another Attica were unfounded, however, as brief protests took place at only a few prisons. But this year, Pataki is pushing a second phase of his criminal justice package that has some inmate advocates and criminal experts sweating. Last year, the governor barred parole for repeat violent offenders. This year, he wants to eliminate parole for all violent felons.

 Pataki this year also wants to impose longer sentences for felony crimes like assault or use of a weapon in committing a crime—changes that are likely to pack the state's already crowded prisons with additional inmates. With more than 66,700 inmates, the system has struggled to maintain order in a prison population 30 percent larger than its 69 facilities were meant to hold. By 1999, the prison population could reach 76.800, Pataki aides estimate.

 George Pataki is not the first state official to attempt to force prison administrators to create space for additional inmates by double bunking. hl which inmates in medium-security dormitories share bunk beds, and double ceiling, in which two prisoners share a cell. But members of Council 89, the corrections officers union, warn the practice is like sticking one's finger in a dike that is about to burst. Instead, they say, the state should build more space to house prisoners.

 Pataki answered their call to an extent in his 1996-97 executive spending plan with a $476 million proposal for the largest prison expansion in 90 years. A key component of the proposal is construction of three new maximum-security prisons over the next five years. Each would contain cells large enough for two inmates. Republicans in the Legislature already are promoting the idea as a jobs package for upstate New York.

 Pataki also wants to add 1,000 beds this year at the former Gowanda Psychiatric Center, now a medium-security prison; 900 double-celled, maximum-security beds at two medium-security prisons that would be selected during the budget process if the proposal is accepted; and 150 beds at the Southport Correctional Facility. The cost would be roughly $24.5 million for the double-celled beds, along with $5 million to design the three maximum security prisons, each containing 750 cells, that would be built during the following four years.

 While Council 82 supports the capital project, its members flatly reject the governor's proposals to build double cells, says spokesman Robert Lawson. The group is concerned about the spread of diseases, homosexual activity among inmates and difficulty in managing two potentially volatile prisoners in each cell, Lawson says.

 Assemblyman Daniel Feldman, a Brooklyn Democrat and chairman of the Assembly Corrections Committee, says the debate over prison construction should focus on the immediate needs of the prison system. "Let's not spend so much time speculating [on the potential growth in the prison population] and let's do the 1,000 beds we need now he says, hinting that Democrats may give some, but not all, of what he wants regarding cell expansion.

 Prisoners' rights advocates and defense lawyers are more disturbed by Pataki's proposal to transfer violent teen-agers over age 16 out of the Division for Youth (DFY) and into three adult prisons. The governor's plan would relocate about 500 16- to 18-year-olds with another 75 teens expected to be transferred each year in the future.

 One reason for the transfer is increased discipline. DFY Commissioner John Johnson says he moved nearly 80 of these teens to adult prisons last year after they attacked staff or other convicts.

 Johnson told legislators at a recent budget hearing that violent teen-agers stand a better chance of rehabilitation in state prisons than in youth lock-ups. A former social worker and Erie County youth commissioner. Johnson said there are more educational and vocational programs in the three state prisons that already house 1,450 youths between the ages of 16 and 18. He says cuts to DFY's budget have eroded the programs its facilities once offered to teen-agers. "It's a sad commentary that young people have to go to prison to get a job," he told legislators referring to the training programs in adult prisons.

 "Efforts to serve these youths dilute the ability of our staff to focus on the population of youth in facilities and programs who we are best equipped to serve, impulsive, seriously criminally involved 12- to 16-year-olds," Johnson added.

 But critics say youths transferred out of DFY will be abandoned by the system and lose access to rehabilitation geared toward their age groups. Assemblyman Arthur Eve, a Buffalo Democrat, says younger inmates also can become pawns of older inmates who deal in drugs and coercive sex. Philip Uninsky, senior attorney for Statewide Youth Advocacy, agrees with Eve, but adds that DFY facilities are no better. Both are schools for crime." he says.

 State officials concede that teens will mix with adult inmates during the day, but they have said that older inmates can be a calming influence on teen-agers. Assembly Democrats, who are expected to oppose the plan vigorously, scoff at the state's reasoning, saying older inmates can be as young as 30 and just as wild as their young counterparts.

 Aside from discipline, another reason for the transfer proposal may be money. The state can win an additional $2.3 million in federal funds by clustering its under-21 population at a few sites. The money is a drop in the bucket, however, compared to the more than $1.5 billion New York spends on incarceration. Without the transfer and other changes, state officials warn that DFY's secure facilities would have to double in number to keep pace with the expected increase in juvenile criminals.

 Conversely, the transfer proposal will allow DFY to close as many as 10 of its group homes while still having enough additional space to keep teen-age criminals longer. Johnson says the average 10-month stay could be stretched to a year for many DFY residents. "This additional time is essential for rehabilitation and public protection." he says, adding that he wants to launch a series of initiatives to prevent clime among young people, despite budget cuts.

 The estimated increase in the juvenile population stems in part from Pataki's "Juvenile Justice Action" plan, which contains the most sweeping changes to the state's juvenile statutes in 20 years and arguably the most significant proposals among the sentence reforms proposed by Pataki this year. Under this plan, youths under age 16 who commit violent crimes would face tougher minimum sentences. For example, a 15-year old convicted of murder current]y faces nine years to life in prison. The governor's plan would boost the minimum sentence to 12 and a half years.

 Pataki's proposal also calls for finger printing more youths than present law allows. Because the records of children convicted of crimes as youthful offenders are sealed when they turn 18, prosecutors say many teens can slip through the Family Court system to commit more crimes. Law enforcement officials do not have a record linking these teens to the climes they committed at a younger age.

 Pataki's plan would make it harder for teens to win the anonymity of youthful offender status. To that end, sexual abuse, possession of a loaded gun, witness intimidation and other violent crimes committed by 13- to 15-year-olds would be "designated" felonies and, therefore, adult crimes.

 When he unveiled his plan, Pataki pointed to statistics that show violent crime among teens has risen 72 percent statewide over the last 10 years, and that the number of murders has increased 239 percent since 1984. "We must close the revolving door on clime that all too often begins spinning in Family Court," the governor stated. "The number of crimes committed by juveniles has exploded in the last decade, including a frightening increase in the number of crimes involving guns."

 But critics of the proposals say Pataki offers an illusion of safety, but not real answers. "I think it will satisfy people's desires to feel safe, but I don't think it will actually make anyone safer," Uninsky says.

 Instead of lengthening sentences and moving older, violent teens to adult prisons, he says the state should focus on prevention—an area Pataki does not address adequately. Uninsky and other advocates plan to spark an all-out fight in the Assembly to block Pataki's plans.

 But Pataki's team has reason to be optimistic about its chances in the legislature this year. They were surprised by their success last year, particularly in convincing Assembly Democrats to bar parole for repeat violent felons. The resulting "Truth in Sentencing Act guarantees that these convicts will serve at least 85 percent of their sentences.

 The Legislature also approved Pataki's call to double the lengths of sentences for persistent violent felons. Democrats and Republicans ended a years-long stalemate by compromising on legislation to overturn the state Court of Appeals' Ryan decision, which required defendants to know the weight of the drugs they were carrying at the time of arrest in order to be tried. The two parties also passed legislation for Megan's Law which establishes a registry of sex offenders.

 Pataki may have a tougher time overturning other Court of Appeals' decisions that he has called "criminal friendly." One of these decisions long has been anathema to the state's district attorneys: allowing defendants who flee the state and then return to a file for dismissal on the grounds that they were denied a speedy trial.

 Some critics suggest Pataki's "can-do" attitude toward crime is too simplistic, particularly when it comes to court decisions he deems too liberal. Still, After only a year, the governor has had an enormous influence on the state's criminal justice system. In addition to winning a resumption of th death penalty. Pataki—with the help of Attorney General Dennis Vacco—carried out what the Cuomo administration talked about for years: The deportation of illegal aliens in New York prisons.

 Last year, Pataki began the work of turning around the state's leaky work release program by barring violent felons from participating. For many years, work release has been a means by which prison officials could make room for thousands of new inmates. But an administrative tool inside prison walls often became a danger to the public in cases where inmates fled while out on work release.

 Although Democrats and Republicans agree on the value of work release as a means of transitioning inmates out of prisons, both sides also recognize the mistakes made in expanding the Program to help ease overcrowding ing the system. "Up until the early 1990s, work release was used the way work release was designed. You take the best inmates available and they, and only they, and only they, get into work release," says Corrections Department spokesman James Glateau.

 "What happened in the early 1990s was that … the governor and the Legislature … decided to use work release not only as a program to transition inmates, but as a population-control mechanism," Flateau continues. "And that translated … what used to be 3,000 work-release slots into 6,600. In terms of inmates in the program in a single year, that grew from 8.000 to 25,000."

 In the 1980s, some 400 inmates fled from work-release detail each year. That number grew to 4,000 before Pataki issued an executive order last year barring violent felons from participating. Inmates already in the program wereallowed to stay. The number of inmates in work release then dropped from 19,690 to 15.338, Flateau said. And the number of inmate arrests dropped by 43 percent, including an 89-percent drop in violent crimes by work-release inmates.

 Pataki has proposed extending the work release ban to all felons this year. Pataki is giving inmates at least one new benefit this year with legislation granting time off for good behavior for non-violent convicts. The bill wouldreduce up to one-sixth of an inmate's minimum sentence.

 Among the many legacies of the Attica prison riot, one issue that still makes headlines is a civil rights lawsuit filed by 1,281 former inmates and Prisoner's Legal Services, the state-funded team of lawyers that help prisoners file legal claims against the state. The lawsuit continues to grind away with no resolution in sight.

 Former Gov. Mario Cuomo rejected a $10 million settlement in 1993 after a jury found Karl Pfeil, the deputy warden at Attica in 1971, liable for injuries suffered by inmates during the retaking of the prison. A mistrial was declared in the case against other defendants and a retrial is scheduled for April in federal court.

 But Pataki wants to eliminate PLS's funding. Attorney General Vacco attacked the body last year for allegedly helping inmates clog the court calendar with frivolous suits. New York spends nearly $7 million for PLS and law libraries for inmates, "far greater than any other state. according to Paul Shectman, Pataki s Director of Criminal Justice Services.

 "I think in some respects PLS has painted itself in a corner," Shectman says, citing PLS's claims that further budget cuts would mean its demise anyway. He says PLS also has refused to change its policy of taking court-awarded attorneys fees for cases in which an inmate's lawsuit succeeds.

 The New York State Bar Association is defending PLS, noting that reform legislation authored by Vacco is identical to PLS's current practice. Vacco's bill bars lawsuits until all administrative remedies are tried, but the practice already is part of PLS's current policy its officials say. "PLS provides a much-needed safety valve in an often tense environment," former state Sen. John Dunne. Chairman of the Bar Association's Committee on Legislative Policy, told state legislators last month. It frequently presents the escalation of disturbances to the level at which they could exact a heavy toll both in terms of dollars and, more importantly, human life."

 Pataki also wants to drop all state funding for the New York State Defenders Association, which lobbies on behalf of the defense bar in New York and operates a backup center for public defenders across the state. Executive Director Jonathan Gradess says he fears even if the Legislature restores his funding, as it did last year, a late budget could extinguish his organization long before the calvary arrives. With no money earmarked in Pataki's budget, Gradess expects it will be impossible to borrow funds to operate after April l.

 Gradess' group received $822,000 in the current fiscal year and may win some of the $500,000 that Pataki added to the budget as part of his 30-day amendments. The governor did not specify where that money could be spent, since he also cut nearly $3.8 million of the 513.8 million given to 30 counties for public defense work.

 Gradess and his group are, in many ways victims of the death penalty debate. It was an annoyance to Republicans in the Legislature when he lobbied against capital punishment. But the GOP's "take-no-prisoners" attitude has not extended to every area. For example, Megan's Law generally is viewed as too vague to provide anyone with useful information about the whereabouts of sex offenders released from prison. Pataki has tried to improve the law by changing work assignments and making it easier for parole officers to monitor sex offenders, but advocates of the registry say he still has not done enough.

 Another compromise occurred before Pataki's tenure but, so far, has escaped his attention and strict hand. A new DNA data bank soon will be established, giving prosecutors the chance to match crime-scene data with DNA already matched to a convict. But New York's law, approved in 1994, differs from that of other states because it does not allow medical staff to take blood samples from convicts already in New York prisons. Instead, samples will be taken of sex offenders and certain other criminals only after they are convicted of crimes after Jan. 1 of this year. At a rate of only 4,000 samples a year, it could be at least 10 years before New York's DNA data bank will be of any use in solving crimes, critics say.

 By Pataki's own account, more work also is needed to make the new drug treatment program at the former Willard Psychiatric Center a success. A political plum for its local senator, Crime and Corrections Committee Chairman Michael Nozzolio, a Seneca Falls Republican. the three-month program for non-violent drug users has not been embraced by prosecutors and judges. Since it opened three months ago, only 70 of the more than 500 inmates have been sent there by a judge. However, Pataki aides say the program is starting to catch on.

 A proposal of Pataki's that might move forward in the Legislature this session would add to a law enacted last year. AIDS tests were ordered in 1995 for convicted sex offenders. Given a needle attack on a young New York City girl last year Pataki is proposing that those people arrested for crimes that pose the risk of AIDS be tested when they are arrested. Under current law victims must wait for as long as eight months before a test is performed officials say.

 While Republicans have been boasting that last year's criminal justice changes have had a major impact it is too early to tell in terms of increased prison population and particularly with the death penalty. But all sides agree these changes have set a new course for the state. 

Jon Sorensen is Albany Bureau chief for the Buffalo News.
 
 

The Double-Celling Dilemma
 
 

Prison films often show two inmates sharing their experiences or a pack of cigarettes in a cell. Before last year, that was never the case in New York prisons. 

If Gov. Pataki gets his way, "double celling" will be the future for New York's prisons. Of the 8,800 beds Pataki wants to add over the next five years, more than 7,000 would be in cells designed for two prisoners.

 The state last year adopted a trial run for double celling that Corrections Commissioner Philip Coombe last month declared a success. Of the 11,290 newly incarcerated inmates who spent a few weeks in these cells, only eight were involved in fights, none resulting in serious injuries.

 The policy shift to double cells largely is driven by an expected infusion of violent criminals into the penal system—a result of the sentencing changes Pataki won last year and others that may become law this year.

 Still, doubts persist among those inside and outside the prison system. "No other state prison system in the country begins to approach New York state's rates of fatal AIDS and drug-resistant tuberculosis, both of which will probably increase as a result of double celling," says Scott Christianson, executive director of the New York State Coalition for Criminal Justice. "Double celling is a recipe for disaster."

 Christianson says it is especially dangerous for the state to propose double celling at the so-called "maxi-maxi" prison at Southport. Double celling the state's most dangerous felons is "an unprecedented step which has horrified prison managers," Christianson adds.

 Aside from health risks, corrections officers say double celling poses a safety threat to prison staff. "It makes it more difficult for our officers to do their jobs," Ed Draves, a lobbyist for Council 82, told lawmakers last month. His organization, which represents the state's 22,000 corrections officers, sergeants and lieutenants, has files a lawsuit against the practice.

 "New York cannot continue to lock up criminals for longer sentences and use double bunking and double celling to absorb this expansion," Draves adds. Double bunking is a situation in which inmates in medium-security prisons shard bunk beds in dormitories rather than cells.

 Though Coombe says the state "has way overextended itself on [medium-security] dormitories," which house inmates on bunk beds, he is promising to deliver new double cells that are larger and less expensive to build and operate than the state's current maximum-security cells.

 Using inmate labor, Coombe says it may be possible to build double cells at half the $100,000 cost once associated with New York's maximum security prison cells. He says he hopes to find a design that allows inmates to assemble the cells while private contractors would do the electrical, ventilation and other work.

 The new cells also would be larger—105 feet compared to the 70 to 48 square feet now being uses (national standards for double cells call for at least 80 square feet)—while it may cost as little as $7,800, rather than $24,000, to operate a single cell each year. "They will be designed for maximum security and efficiency," Coombe promised state legislators last month.

 The administration will convert no more than 1,000 existing cells, as agreed to in last year's state budget, while new cells will be housed in modular units added to existing prisons.

 But Council 82 spokesman Robert Lawson says double cells—no matter how large they are—will not work. "I don't care it it's a 4-by-6 [foot] cell or a 10-by-10 [foot] cell," he says. "Even at 100 square feet, it's an incubator."

 -Jon Sorensen