by Lonnie Burton

In December 2016, New York Governor Andrew M. Cuomo ordered an official probe into allegations of racial bias by guards in the state’s prison system. The governor’s announcement came shortly after the New York Times published evidence of racial discrimination it had uncovered following an investigation that examined nearly 60,000 prison disciplinary cases.

“I am directing the state inspector general to investigate the allegations of racial disparities in discipline in state prisons and to recommend appropriate reforms for immediate implementation,” Cuomo said in a statement.

The Times’ investigation delved into 59,354 disciplinary cases from 2015. It found that at some prisons the rate at which black and Hispanic prisoners were punished was twice that of white prisoners. Non-white prisoners also ended up in solitary confinement more often, and were held there for longer periods of time. There was also evidence of racial disparity among prisoners subjected to use of force by guards.

In addition, the Times reviewed 14,000 parole decisions spanning three years. It found that fewer than one in six black or Hispanic prisoners were released after their first hearing, compared with one in four white prisoners. The disparity was more pronounced among offenders convicted of lower-level crimes.

Since 2006, for example, white prisoners who were convicted of a single count of third-degree burglary and sentenced to two to fours years have been released after an average prison stay of 803 days. Black prisoners convicted of the same crime with the same sentence served an average of 883 days – nearly 10% longer.

Racial bias has been better researched in other aspects of our criminal justice system. According to the Times, there is already documented evidence of racial disparities in arrests, convictions and sentencing. But it said that such bias has not been as well-studied during incarceration or when a prisoner appears before a parole board.

A particularly glaring example of racial disparity was found at the Clinton Correctional Facility, near the Canadian border. There, only one black guard was employed among 998 officers at the prison at the time of the Times’ investigation. Black prisoners were sent to solitary at a rate almost four times that of whites, and were held in segregation 125 days, on average, versus 90 days for white prisoners.

The Times interviewed dozens of prisoners during its investigation. Darius Horton, who is black, said of the guards at his upstate prison: “As soon as you came through receiving, they let you know whose house it is.”

Other black prisoners reported being called “porch monkeys,” “spear chuckers” or worse. There were cases where guards ripped out prisoners’ dreadlocks; in other cases, black prisoners were severely beaten, sometimes to death. [See: PLN, July 2017, p.62].

The state’s three maximum-security prisons – Clinton, Attica and Great Meadow – are located in rural areas where the civilian population, like the prison staff, is almost entirely white. Those facilities have a population made up mostly of blacks and Hispanics who come from the state’s urban areas, especially New York City.

More than half the state’s prisoners are from New York City and its surrounding suburbs. Often for guards who work at rural prisons, the only black people they encounter are prisoners. Their bias in meting out punishment affects not only disciplinary sanctions but also parole decisions – thus disproportionately lengthening sentences served by non-white offenders.

Using statistical analysis, the Times found that even after accounting for factors such as the greater share of black prisoners locked up for violent crimes and their relatively younger age, disparities in prison disciplinary charges, sanctions and use-of-force incidents could not be explained except by racial bias.

Black and Hispanic prisoners were often accused of offenses that gave guards the greatest discretion to determine whether a rule had been violated. Infractions such as disobeying a direct order – where the only evidence was the word of a guard – resulted in the greatest differences between disciplinary sanctions for white versus non-white prisoners. For every 100 black prisoners, guards issued 56 disciplinary citations for disobeying orders, but only 32 for every 100 whites, the study found.

On the other hand, rule violations for which some physical evidence was required, such as possession of contraband, were more equally enforced across racial lines. Around one-third of the citations for smoking and drug use were handed out to white prisoners, who comprise about 25 percent of the prison population.

The result of racial bias in the prison system has far-reaching consequences. Prisoners convicted of disciplinary violations have reduced access to prison jobs and other programming. That, in turn, negatively affects their chance of being paroled – and each parole denial means the prisoner must spend more time behind bars.

Former parole commissioners described a hearing process that was conducted in an impersonal, clockwork manner. But treating prisoners like parts on an assembly line resulted in so much chaos that the commissioners admitted they sometimes did not even know which prisoner they were interviewing at parole hearings.

Governor Cuomo said he planned to nominate more diverse candidates to the state parole board. New York’s prison population is nearly three-quarters black and Hispanic, but the board had just one non-white member at the time.

“I will be advancing new appointments to the Senate this upcoming session to ensure the state’s Parole Board is reflective of the population it serves,” Cuomo said. In June 2017, the state Senate approved five of the governor’s new nominees to the board.

The Times’ investigation also found that non-white prisoners are treated more fairly the closer they are to New York City. The Sing Sing Correctional Facility in Ossining, where black guards make up the majority of uniformed staff, is less than an hour train ride from Manhattan’s Grand Central Station. At that facility 57 percent of the prison population is black, and blacks received a proportionate 58 percent of the disciplinary charges reviewed by the Times.

In upstate New York prisons, though, there is more obvious racial bias in the disciplinary process – over which guards exert almost total control. Guards file the charges – issuing “tickets” – and then sergeants, lieutenants or captains determine guilt, decide the punishment and often rule on appeals. The Times found that prisoners prevailed in only 4 percent of the disciplinary cases it reviewed.

“It’s a very intimidating setting,” said Karen Murtagh, Director of Prisoners’ Legal Services of New York, a state-funded organization that represents prisoners.

The prisoner is often the only person in attendance at a disciplinary hearing who is not a prison employee. He is seated at a table between guards, before a hearing officer who is often one of their superior officers. He is not allowed to speak directly to witnesses, much less cross-examine them. Instead, he must pose questions to the hearing officer, who then summarizes them for the witness.

Murtagh argued that any time a prisoner faces time in solitary confinement, he should receive legal representation. Moreover, the disciplinary hearing officer should not be employed by the corrections department, as the officer’s “first allegiance is to the department,” she added.

The Times’ investigation concluded that black prisoners were 30 percent more likely than whites to receive a disciplinary “ticket.” After that, they were 65 percent more likely to be sent to segregation – where they also spent a longer amount of time, on average. In 2015, black prisoners received 1,144 tickets that resulted in placement in solitary for 180 days or more. White prisoners, by contrast, received only 226 tickets with similar outcomes.

A spokesman with the New York State Department of Corrections and Community Supervision (DOCCS) did not offer any statistical data to counter the Times’ findings. However, he opined that much of the apparent racial bias could be explained by other factors – like a prisoner’s full disciplinary record – to which only DOCCS officials have access.

“With an agency of close to 30,000 staff, the vast majority of our work force understand that it is a challenging job, and they approach it professionally,” DOCCS spokesman Tan Malley said in a statement.

He also pointed to other signs of improvement in the prison system which followed a settlement the state signed with the New York Civil Liberties Union (NYCLU). That litigation resulted in reforms to the use of solitary confinement in state prisons, and since April 2014 the proportion of blacks housed in segregation dropped from 64 to 57 percent, Malley said.

NYCLU attorney Taylor Pendergrass acknowledged the department was “off to an encouraging start,” but cautioned it “will be a major undertaking to unwind decades-long practices and transform the culture of this large organization all the way down to the staff working in the cellblocks.”

Governor Cuomo’s administration said it has increased training for disciplinary hearing officers. It has also eliminated solitary confinement for most first-time offenders. But there has been pushback against those changes from the union that represents prison guards, which claims a reduction in the use of solitary has led to an increase in violence, citing an approximate 55 percent rise in assaults on staff from 2010 to 2015. State prison officials, though, pointed out that such assaults fell by 16 percent from January to October 2016, after the governor’s reforms went into effect.

The Times noted that the investigation into racial bias ordered by the governor will be conducted by the office of state inspector general Catherine Leahy Scott, who was appointed by Cuomo. Her staff of 109 also oversees dozens of state agencies; the office’s last major prison inquiry – into just one facility – took a year.

Alphonso David, the governor’s chief counsel, has worked with Cuomo on civil rights issues for a decade. He said the progress in reducing the number of black prisoners held in solitary is evidence that the state can conduct an investigation successfully. The inspector general’s office will have unrestricted access to prison data, David added, as well as all the necessary resources to analyze it.

“As a black man,” he said, “I’m not going to look the other way if the evidence shows that the corrections department is applying discipline disproportionately to black and Latino men.”

But reform is not quick, nor is it cheap. In New York City, where a federal lawsuit resulted in a settlement to improve conditions at the Rikers Island jail complex, more than half a billion dollars has been allocated over the last three years for new programs, training and equipment. And while there have been significant improvements, they have been driven in part by federal prosecutors – who will not be involved in revamping the DOCCS’ disciplinary and parole systems.

David promised that would not be a difficulty for the state. “When we see problems,” he said, “we are not going to ignore them.”

However, some critics contended the review by the state inspector general’s office was not enough.

“Governor Cuomo must use his executive power to create a diverse, non-partisan Blue Ribbon Commission to investigate the widespread racial bias throughout New York State’s criminal justice system,” Glenn E. Martin, a former prisoner and president of JustLeadershipUSA, a criminal justice reform organization, wrote in an editorial. “The commission’s independent investigation should go well beyond rooting out structurally racist practices in our prison and parole systems. It should undertake a comprehensive review of the state’s entire criminal justice system, from arrest to reentry, within a definitive timeline.”

PLN has reported on racial bias within New York state prisons for the past 25 years. [See, e.g.: PLN, Jan. 1992, p.2]. 

Sources: The New York Times, www.gothamgazette.com, www.newyorkupstate.com

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