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12 2013 Vol. 13 Number 4: Fal12003 Published hyPrisoncrs' Legal Services of New York SUPREME COURTAFFIRMS STRICTLIMITS ON PRISON VISITATION The Supreme Court affirmed strict litnitat10ns on prison visitation this past terrn~ in a case which, although it arose in Michigan, is likely to have implications in New York. Using unusually broad language, the Court held that the regulations - among the strictest in the nation - were constitutional because they were "rationally related to a legitimate penological objective" and because inmates prohibited from having visitors by the rCt,'ltlations have alternative tneans, such as letter writing, to maintain contact with the outside world. The case, Overton v. Bazzetta, 123 S.Ct. 2162 (June 16,2003) was decided by a 9-0 vote. The case is likely to affect inmates in New York because the Department of Correctional Services is known to be revising its visitation policies - with the goal, in part, of increasing the use of visitation restrictions as means of punishing inmate misbehavior. Many of the changes that DOCS seeks in its visitation program had previously been blocked by the federal courts. Overton makes it more likely such cbanges will be permitted. The regulations upheld in Overton impose non-contact visitation on all high security inmates, limit visits from children under the age of eighteen to the children, t,'l'andchildren or siblings of inmates and allow the suspension of all visitation for inmates who commit two or more substance abuse violations. Both a local district court and the Sixth Circuit Court of Appeals had found that the regulations impermissibly infringed on inmates' rights to frcedot11 of association and to tnaintain contact with family members. In overruline: those decisions the Supreme Court held that prisoners' freedom of association is extremely limited. "fFJrcedom of association is among the rights least compatible 'with incarceration," the Court 'wrote, and "SOfilC curtailment of that freedom must be expected in the prison context." (Continued 011 pqge 2) ,0 Also Inside ... DOCS Imposes New Phone Home Rates . Assemblyman Introduces Bill for Inmates With Mental Illness.... New Federal and State Cases That May Affect Your Rights Ouestions and Answers About the DNA Databank . page 18 This projed nltJS SlpptJrted ly alfran! administered ly the New York SttJte Dim:fiotl 0/ CriminalJustice Smices. Point. oj ~iew in thz:r document are th()J2 oj the authar and do 110t luteUt.triiy represent the rdJitialpositWn orpolicies if the Division tif Cn'mina1 ]nslue Sen-icu. Pro Se Vol. 13 No.3 Pag<: 2 The only question to be asked about the Michigan regulations, tbe Court held, is whether they "bear a rational relation to legitimate penological interests." If so they should bc found to bc constitutional. The Court had little trouble finding that the reQulalions did bear a rational relation to '" penological interests. For example, the legitimate Court set aside the plaintiffs' contention that prohibiting innlates' minor nieces and nephews tinnl visiting bore no raticmal relationship to ocnolo('ical interests. The Court held that the t <.:> restriction was rationally related to the pt~son SYStCt11'S interests in "tnaintaining internal security and protecting child visitors from prohibition against crud and unusual punishment, the Court responded bluntly: [111e ban) lllldoubtedly makes the prisoner's ((mtl.nement tnorc diHicult to bear. But it <kJes not, in the circumstances of this case, Edl IJelow the standards mandated by the J\ighth Anlcndmcnt ... f\.·1ichigan, like rmmy other States, uses withdrawal of vJsitation privileges for a limited peric)() as a regulation means of effecting prison discipline.TIlis is not a dr~linatic departure from accepted standards for conditions of conf1nement. Nor does the regulation creat.e inhU1uane prison conditions, deprive innlates of basic necessities or Elil to protect their health ;'lIld safety. Nor docs it involve the intliction of pain or mjury, or deliberate indift't:rcnce to the risk that it might occur. exposure to sexual or other n1isconduct or from accidental injury." Such a. restriction, the (':ou1't held, "promote[s] internal security, perhaps the most legitimate of penological interests ... hy reducing the total number of visitors and by limiting the dismption caused by children in particular." "To reduce the number of child visitors~ a line 1l1ust be drawn, and the categories set ont by these regulations arc reasonable." The Court similarly upheld the regulations' ban on visitation for innutes with two or 1'nore substancc~abuse violations. This restriction, the Court f~)tmd, "serves the legitimate goal of deterring the use of dmgs and alcohol within the prisons." "Dmg smuggling and dnlg use in prison arc intractable problelTIS the Court \vrote, ,md "[w]ithdrmving visitation .[,he Court thus upheld the most severe visitation rcsttictions, the ban ()t'l all visitation ft,r intnates. convicted of two or 11'10re substance ()f abuse violations, on the ground that it was "rationally related" to a legitimate penological obJ'eelive and did not violate inmates' Eid1th " Arnendrnent rights. l1 privileges is a proper and even necessary rnanagcrnent technique to induce compliance with rules of inmate behavior, especially for high-security prisoners who have few other to lose." l)rivilcp'cs " The Court rejected inrnates' argurnents that a two-year ban on visitation was ovcdy SCV(,:tc and \vas sometin1es imposed in cases involvino' only minor rule violations. "\Vc ~u"ree b 0 the n,:striction is severe," wrote the Court, but "we \vill not substitute our judglnent for that of prison oftlcials concerning either the infractions reached by the regulations nor the length of the restrictions inlposed." To inrnatcs' clainls that a complete ban on visitation violated the Eiehth Amendment " DOCS In..titutes New Rate StnIctllre flU Phone-Home Progral11 Bllt Retain.• Criticized Commis,.iollS The Department of COl-rectional Services has instituted a new rate structure for its phone~h(Hne prograrn in an cffc)rt, it says, to increase t'lirness anti reduce fees for the majority of calls. Advocates fof' innl<ltes and thcit familie.s, however, are criticizing the new ""tes because they neady douhle the rates of some calls, \vithcmt reducing either the overall costs of the pmgram or the enormous commissions ])()CS receives fwm it. Pro Se Vol. 13 No.3 Page 3 Under the new system, DOCS has abolished the old rate categories for inmate phone calls - of which there were 126, depending on the time of day, day of tl1e week, distance of the call and other factors - and replaced them with a flat rate of $3.00 per call, plus 16 cents per minute. The new rate struchlre went into effect on September 14, 2003. According to figures supplied by DOCS, the new rates will result in a modest reduction of the cost of a long distance call, which constitute more than 800;;, of inmate phone calls. For exmnple the cost of a nineteen minute illterlata call - a long dis!<Ulce call within the state but not within the s;Ulle area code - has decreased from an average cost of $6.44 to $6.04 under its new plan. The cost of a local (or itttmiata) call, however -- onc made within the same area code - has doubled in price. For example, the cost of a nineteen minute local call rose, under the new rate structure, from an average of $3.02, to the same $6.04 now ~"lid for a nineteen minute long distance calL DOCS notes that the new rate system is "revenue-neutral,H which nleans that the overall profits made by the telephone company from the phone-home program - as well as the hefty commissions it pays to DOCS for the privilege - remain the same. This is because the modest reduction in the price of a long distance call is made up for by the sharp increase in the price oflocal calls. Critics charge that all calls could be significantly less expensive if DOCS did not take such a big percentage of the profits. Under DOCS' current telephone contract ('with MCl) it receives a 57.5'10 percent COffill1ission on the revenues made by the phone-home program. In the 2001/2002 fiscal year, this translated to $22.4 million in extra revenue for DOCS. This year alone DOCS predicts receiving more than $23 million in commissions from the phonehome program. Critics note that since all inmate phone calls must be placed collect, that money is coming from the pockets of inmates' friends and family. DOCS, however, defends its new rate stmcture as being responsive to prior criticisms that the phone-home program was too expensive. DOCS points out tJ1at the new system reduces the rates for more than 80% of inmate calls. It also argues that by standardizing the rate it allows inmates and their families to know in advance what the cost of a call will be - something tJ1at was almost impossible when there were 126 variable rates. Although DOCS concedes that rates will rise substantially for lotal calls, it argues that this is only fair, because family members and friends of inmates who live within a local calling area of the inn1ate's prison are generally more able to visit than those living in different area codes. Thus, DOCS argues, raising the rates on calls received by them is a reasonable way of lowering rates for the majority of calls, which are received by persons who do not live close to prisons. Criticisrn retnains, however, since the new rate structure does nothing to reduce DOCS' overall commissions from the program, and consequently does little to bring the high costs of an inmate telephone call in line with those of the general public. DOCS counters that the high commissions are needed to pay for the sophisticated security costs ;Lssociated with a prison telephone program that regular consumers don't have to pay for, such as the PIN number system and the ability to monitor and trace inmate telephone conversations. DOCS also points out that inmates, unlike other consumers, are not required to pay the maintenance fees and taxes for their telephone service - fees which often total $30.00 per tTlonth for the average consumer. Finally, DOCS argues, the commissions are used to pay for a range of inmate heneflts which the State Lesrislahlre would be unlikely to support from general ta-x revenucs. These include such things ,tS cable television service, free bus service for visiting family members, the Family Reunion Program, the medical parole program and the nursery and fan1ily development program at Bedford Hills, wbich allows incarcerated mothers to stay with their infant children. "Inmates do not have a right to make telephone calls," saidJames B. Flateau, DOCS spokesman. "If they arc going to make phone calls, we believe it is Stllart to charge a comnlission and use the funds to offset the costs that taxpayers pay for inmate programs." Critics point out, however, that out of the $23.4 million in commissions anticipated tJ1is fiscal year, the state reports that only Pro Se Vol. 13 NQ. .3 Page 4 $330,000 is spent annually for the operation and maintenance of the phone equipment. Purther, almost 75'1., ofthe revenue received by DOCS from the phone-home program - $17.6 million of this year's anticipated $23.4 millionis used to pay for medical costs, including AIDS drug, and training for medical staff. These are costs, critics argue, which the State has a responsibility to pay [(Jr, and which should theret()re be shouldered equally by all taxpayers Taking the money tI'om the phonehOlTIe prc)gr;un, the critics charge, atnounts to irnposing a regressive tax: on s<)me of the poorest citi7,ens of the state - the family tnernbcrs of inmates. Referring to the provision of medical care to inmates, Robert Gangi, Executive Director of the Correctional Association (Jf Ne\v York, a non-profit group that nlonitors prison conditions states: "That is the government's responsibility. It should not impose an unt~lir burden on intnates' friends and bmilies to pay part of that bill." "The fan1ilies have done nothing wrong, Sf) why are they being taxed?" asked William T. Martin, a ht\vyer representing innute fatTIilies in New York. Friends and family members ofinmates have brought a variety of lawsuits alleging that the fec-sto1Cture of the phone home program is unfair. One such lawsuit, brought in state court, was recently dismissed on the grounds that the court had no ~luthor1ty to revie\v rates that had already been approved by the Public Service Commission (pSC). In dismissing the complaint, the trial court stated: "Telephone companies may not deviate from the rates liled with the PSC (Public Service Commission) or PCC (Federal Communications Commission) without tiling. and receiving al)proval of the new rates. Although c1aitnants rnight have sought rate relief from the PSC for the intrastate calls at issue here, it does not appear that claimants ever chose to do so." Bullard v. State, (N.V. Ct. of Claims No. 103138, May 1, 2(02), ajJ'd, 763 N.Y.S.2d 371 (3d Dcp'tJuly 31, 2(03). In so holding the court indicated that had the claimants sought rate relief from the PSC, the PSC would have had the authority to review that request. Another lawsuit, a federal class action, has been brought by the law firm of Levy, Phillips & Konigsbcrgtogetherwith the Center ) -:;) for Constitutional Rights. That lawsuit, BestDeveaux, et al v. Goord, et 'II, alleges that the agreernents between DOCS and MCI violate the 1" and 14'" Amendments in that they burden the right to freedom of speech and association guaranteed to plaintiffs under the Constitution; plaintiffs' due process rights; plain tiffs' righ t to contract under Article 1 Section 10 ofthe Constitution; and various antimonopolization and accounting laws. That lawsuit is still pending. In response to DOCS' rate change proposal, Prison [iamilies of New York, an advocacy organization, delivered a petition containing thousands of signatures to the PS(:. The petition calls on the PSC to hold public reRarding· the fairness of DOCS' hearinos t) "-, :> phone-home program. Alison Coleman, director of Prison Families of New York, notes that many other states use calling cards or allow direct di:lling. Those calls are not as expensive for the consumer hut "they are still affording those states and the federal govemment some rnoney.'? I\-{s. Coletn~Ul .asserts that prisoners' friends and families want to aud should be involved in a decision-making process that ultimately affects them. "\'(Ie are the consurners," she said. '[I1e I)S(~' . I ,.~ IlaS SIXty cays trom tI Ie implementation of the new fee stolcture to consider petitions and letters of complain t and to determine whether hearings into DOCS' new rate structure arc appropriate. A Bill to Im'frove Treatment of Inmates With Menta Illness Introduced in the AS,'1embly A lnCStmge frorD TorIl Terlizzi, PLS E.¥t:-'cutirc Director The chair of the New York State Assembly Corrections Committee, Jeffrion Aubry, has introduced groundbreaking legislation intended to improve the treatment of people with mental illness in prison. The bill would establish several "psychiatric correctional [~lcilities" to be located at each of DOCS' re"jonal hubs. The Elcilities would be operated jointly by the Off1CC of Mental Health and the Department of Correetion,il Services, bnt all decisions concernIng treattncnt, conditions ( ) f c' Pro Se Vol. 13 No.3 Page 5 conftnement and discipline would be subject to the approval of the OMH Clinical Director. The day to day operation of the facilities would be DOCS' responsibility. The bill would also exclude inmates with serious tnental illness fr01n isolated conftnement related to inmate discipline and, instead, provide a mechanism through which such inmates may be refetTed, assessed and transported to a psychiatric correctional t;lcility. The facilities would provide medically appropriate custodial care, supervislOn, treatment and, where appropriate, discipline, for inmates with serious mental illness. The bill also requires the establishment of a mental health transitional services program to be run by 0 MH, to prepare inmates for entry back into the community. The program would provide for continuing mental health care upon release, insure advanced applications for Medicaid are tiled and make referrals to outside mental he.alth, educational, vocational and housing serv1ccs. In 'justitication for the bill, the Assembly sponsors noted that the incidence of serious tnental illness atnong intnates 'within the state prison system has increased significantly in recent years. Currently, approximately 12 percent of the prison population - some 8,000 inmates -are affected by serious mental illness. ShJdies havc shown that when this population is disciplined using solitary conttnetnent, intnates engage in acts of sclf-rnutilation and commit suicide at a rate three times higher than inmates in the general prison population. Furthermore, inmates with serious mental illness often experience a continuing cycle ()f tnental deterioration in solitary confinenlCnt~ followed by periods of in-patient care in a psychiatric hospit;ll, followed by a return to solitary conlinement. One corrections oHicer described mmates who experience this phenomenon as being "like a ping pong ball, bouncing between punitive segregation and Central New York Psychiatric Facility." "'nle correction system has become the largest mental health facility in the state, but people with serious mental illness do not belong in 23-hour lockdown in special housing units," said Assemblyman Jeffrion Aubry, when he opened public hearings on the bill in Rochester in October. The hearings are being co-sponsored by the Assembly Corrections and Mental Health Committees, Assemblyman Aubry contends this bill will recognize the inhumanity and counter-productive nature of certain f,)tITIS of punishment for inmates who have serious mental illness. He stated that bettcr trcattnent will insure lo\ver rates of recidivlstn and relapse when such prisoners are released from prison, as well as make the prisons easier to tnanage ,uld safer for staff and intnlltcs alike. The Assembly Committees will be conducting hVO additional hearings. The next hearing is scheduled for November 18, 2003 in New York City and the linal hearing in Albany on January 13, 2004. Advocates for prisoners, people with mental illness, psychiatric experts, family members of inmates who are mentally ill, and fonnerinmates will testify at these heatings. The Depat"ttnent of Correctional Services and the Offtce of Mental Health have not yet commented on the proposed legislation. Anyone can subtnit conlnlcnts regarding the hill, Assembly Bill No, A08849. If you would like to have input into the process, please send your written conltnents to Assemblyman Jeffrion Aubry, 526 LOB, i\lbany, NY 12248, Federal Cases r Amendment - Freedom ofReligion COllrt Rejects DOCS' B,m on "Five Percenter" Literature and Pr'lcticesj Finds Nation to be Legitimate Religion MatTia v, Broaddus, 2003 \V'L 21782633 (S.D.N,Y, July 30, 2(03) A federal district court in New York has reversed the Department of Correctional Services' long-standing ban on Five Percenter Iiterahlre and practices, holding that the ban violated an intnate's right to freedorn of religion. The decision, a breakthrough in New York, is the tirst time that the Five Percenters and their religion, the Nation of Gods and Earth, have been given legal recognition. In its opinion, the court stated the Nation of Gods and Earth is an offshoot of the Pro Se Vol. 13 No.3 Page 6 Nation of Islam. It teaches that only five percent of people teach the identity of the true and living God, as well as freedom, justice, and equality to all human bmilies. In contrast to the Nation of Islam's belief that Allah appeared interest" in maintaining the ban .. According to the court, DOCS "f~tiled to provide any evidence fhat its decision to treat 'Five Percenters' as a security threat \vas either reasoned or informed." DOCS could produce on Earth in the person of its founder~l\Jaster no evidence concerning its initial decision to Fard Muhammad, the Nation of Gods and Earth professes the belief that every black man is an embodiment of God, with the proper name Allah. The court noted that the New York DOCS, like almost -all corrections departments across the country, has long considered the treal: the Nation as a gang and not a religion and its witnesses admitted that they could do no more than speculate about why the decision was tnadc or what evidence was used to tnake it. The court found that DC)CS' decision to label the Nation a security threat was based solely "on the subjective sense of the decisionmakers ... that the group as a whole was a gang." "However," the court ·went on, "'it is clear that DOCS knows little ahout the Nation's seemingly legitimate existence outside prison" and DOCS' litigation position that Five Nation to be nothing tnore than a violent gang, and therefore refused to recogni%e it. It has also prohibited its adherents from congregating in groups of tnorc than five, receiving Nation literature or olnervingvarious Nation practices. The district court, however~ in a long and carefully considered decision, found that DOCS' decision to treat Five Pen:enters <IS a security threat was neither well reasoned nor well informed. In addressing the inmate's challenge to DOCS' policy, which was brought by inmate lL'lshaad Marria, also known as Intellil'cnt C' Allah, the court first considered whether the intl1atewas sincere in his belief in Nation principles and, second, whether those principles could properly be considered a religion. To both questions, the court found that the answer was yes. The court then applied the provisions of the Heli!~ous Lllld Usc and Institutionalized Pel'$ons Act, 42 U.S.c. § 2000cc-l(a) ("RLUIPA"). RLLJIPA, which provides broader protections to the religious activities of inmates than does the Federal or State Constitutions, which states, "[n]o govcrtunent Percenter literature contained violent tllessages "indicates that it was tnisinformed about at leasl: that aspect of the Nation ... and sug-gests that its treatment of the Nation exclusively as a gang may be based on either exaggerated fears or speculation." The court continued: That is not to say tha.t there arc not pnsonel's who would describe thetl1.c;elvcs as Five Percenters who have cOl1unitted crimes or othenvise violated pnson regulations. IHowever] there arc prisoners who would describe themselves as Catholics, Protestants,Jews, Muslims, N()T, etc. who likewise violate priscHl reg"ulations. . but no one would sug~!;est that such facts preclude the classification of these recognized g;roups as religions deserving of First AIIlcndment protection. shall impose a substantial burden on the religious exercise of persons residing in or confined to an institution . . . unless litl demonstrates that imposition of the burden ... is in furtherance of a compelling governrncntal interest and . . . is the least restrictive tneans ()f furthering that . . . interest." The court easily found that DOCS' complete ban on Five-Percenter literature and practices caused a '·substantial burden}) on the intnate's exercise of his beliefs. Next, the court addressed whether DOCS had a "compelling governmental After finding that DOCS' cornplete ban on Nation literature or practices violated i\1arria's 1sl Anlendlnent rights, the court ordered DOCS to allow him to obtain a copy of "120 DCF:.,,-rccs," the central text: of Natton beliefs and practices, the Suprerne Alphabet and Mathematics, a book of numerological devices central to Nation beliefs and pl-actices - all previously banned- and to re-evaluate its ban on The Fi"e l'ernmtet; the Nation newsletter, by either passing it through the media review committee and/or making it available in the Pm Se Vol. 13 No.3 Pi:lf'"e 7 prison library. The court also ordered DOCS to determine what can be done "consistent with . concerns " to accotntno date I..\' arna {" s secunty requests to participate in supervised Five Percenter g'athering$, and to receive late meals and gather with other inmates on Nation bst dates. I11mate Prevails TB .'ikm Test m Religiolls CJlal1e11ge to Selah v. Goord, 255 F.Supp.2d 42 (ND.N.Y. 2003) An inmate claiming a religious opposition to a tuberculosis skin test convinced a federal judge that New York's policy of conttning, for at least one year, prisoners who refuse to submit to a TB test for religious reLsonS "appears entirely arbitrary and irrational." The Judge, 'rhomas McAvoy, issued a preliminary injunction ban'ing the state from adrninisterinp the skin test to the 1.1laintiff " while the action is pending. The case is one of several elashes between the First Amendment riphts of prisoners and the state's interest in c, prcvenlingthc spread of a highly infectious and potentially deadly disease. The case involved an inmate named Selam Selah. Selah, an Ethiopian Orthodox Christian, contends he is spiritually opposed to taking the annually required purified protein derivative (PPD) skin tcst, which is used to detect latent tuberculosis. Prisoners who rehlse the test are placed on "tuberculin hold," which rueans they are generally confined to their cell. DOCS contends the test - required of bc)th intnates and staff - has resulted in a dran1atic reduction in the incidence ofTB in New York pnsons. Last year, Judge McAvoy concluded that Selah's religious objections to the PPD test were sincere - a pre-requisite to establishing his First Amendment claim. The judge also found that the PPD testing procedure burdened his constihltional right to practice his religious beliefs. A prison practice or policy which burdens constitutional rights will nevertheless be permitted so long as it is rationally related to a legitimate penological objective. Thus, at issue in the latest phase of the case was whether DOCS' policy of imposing a one year cont1nement hold on all inmates who refilse to take the PPD test was rationally related to a lei,>1timate penological objective. Since the plaintiff at this stage was only seeking a preliminary injunction pending the final outcome of the trial, the jndge focused only on whether be had a "likelibood of success" on the ll1erits. The evidence in the case showed that when an inmate is hlrtled over to DOCS, he or she is subjected to a PPD tcst and chest x-ray to detect the presence ofTB. Inmates who refuse the PPD test are first counseled as to its importance. Then, if tbey continue to reftlSe the test, they are placed on hlberculin hold, where they are routinely offered the test and regularly tnonitored for signs of active disease. Prisoners remain in tuberculin hold for one year. Selah had consented to PPD tests in the past and was willing to undergo other noninvasive procedures, such as a sputum test and x-ray exam. He claimed, however, that a literal reading of Leviticus 19:28 - which prohibits 111aking"any cuttings in your flesh" -coll1pelled him to refuse to submit to skin tests like PPD. The state advanced several rationales for its one·year tuberculin hold policy. It argued that the threat' of confinement coerces complianccwith the testing policy. Additionally, it rnaintained that the policy limited contact with other individuals during the critical (irst year following exposure to TB, when there is a tveater chance that latent TB may be converted into active, contli~OuS 113. Judge McAvoy, however, observed that Selah had consented to a shorter stay on tuburculin hold, one that would allow fex a spuhlm test to cont1rm that he did not have active TB. He found no reason to require prisoners to spend a longer period of time in relative isolatlon. The court did find reasonable the state's arg;ulnent that it ,needs to quarantine an inrnatc \vho ll1ay he contagious. Flowever, the court held, while that makes sense for inmates newly admitted to the prison system, it does not Pro Se Vol. 13 No. 3 Pa.gt~ 8 make sense for prisoners like Selah, who had previously undergone PPD testing and were found to be negative. "The court can find no difference between an inmate who has completed a year on tuberculin hold, and is tI,US excused from annual testing~ and Selah, who has previously been determined to be neg::ltivc." The state also expressed concern that accommodating Selah's religious objections would result in a flood of similar actions by other inmates. It noted that since Reynolds v. ("';oord, 103 F.Supp.2d 316, a Southern District case involving a Ras tafarian, was decided in 1999, three similar cases have arisen in the Northern District. In Reynolds a district court barred the state from f<m:ing a prisoner to undergo a skin test or from placing the inmate on one-year tuberculin hold. Judge McAvoy, however, found that three cases in three years hardly suggests that litigation has opened a "floodgdte" for religious objectors. He also observed that the state has no statistics of the number of religious objections to ti,e test. 9]' Amendment - Cruel and l!J1Usual Punishment No 9 h Amendment Viol,uion Found in DeJay ofH"lV Treatment Smith v. Carpen ter, 316 [i.3d 178 (2d Cir. 2003) Mr. Smith, the inmate plaintiff in this case, was being treated for HIV, the virus which causes AIDS. The treatment consisted l' 1 to prevent o f' a d.rug " cae k-tat'I" (eslgntX detet10ration of the immune system and slow the progression of the HIV infection. On two occasions in 1998 and 1999, the defendants, prison officials, failed to provide Smith with his HIV medicat1on, in the first instance f,)r five days, and in the second instance for seven days. Smith sued, alleging that ti,e failure to provide him with his medication violated his rights under the Eighth Amendment. [n order to establish an EifYhth <' i\lTIcndment claim arising out of inadequate medical care, a prisoner must prove both an "objective" prong - that he suffered from "serious" n1cdical needs - and a "subjective l ' prong tI,at the defendan ts acted with "deliberate indifference" to those needs. The issue in this case was whether the presence of HIV infection is sutlicient, standing alone, to tneet the "serious needs" test of an eighth 3tllcndment c1airn. At trial, defendants produced a medical expert who agreed thatmissingHIV medication can be ham1ful in some circumstances" leadin2: " to viral mutation and drug resistance. He went on to testify, however, that in this GLSe the plaintiff had sufTered no injury. His medical records showed no evidence that he had developed any resistance to tl1e drug treatrnent and his "viral load" - the measure of body's resis tance to II IV - had actually increased durinfY his incarceration. " With that in mind, the jury found that Smith did not suffer from a "serious" medical need, and could not, therefore, establish the first prong of his eighth amendment claim. The District Court upheld the verdict, tlnding that the jury was entitled to rely on the expeti: testimony in finding that plaintifT did not suffer [rOITI a "serious" nl(:dical need. C)n appeal, Smith argued that his HIV status was a "serious" t11cdical need in-and-ofitself, and that it was error for the lower court to have relied on the expert's testimouy that he had not suffered any ill effects from the interruption of his care. He argued tl1at the District Court effectively imposed a standard of lutl/alharm in assessing tbe jury's finding of no serious medical need when he was only required to establish a potential for serious future injury in order to state an Eighth Amendment claim. The court disagreed, Smith was not eontendit1P' his HIV o that the defendants ionored b infection by failing to provide adequate care in general, but only that there had been two sborttenn lapses in otherwise adequate care. Under those circumstances, the court found, tI)e delay or intern,ption in treatment, not the underlying medical condit1on, must be "sufficiently serious," to state an Eighth Amendment claim. In analyzing whether the delay in treatment in this CLse wAS sufficiently serious to state a claim, the court held that it was appropriate for the jury to consider whetilCr Smith had been hanned by the delay. Smith argued that because an Eighth Amendment claim may be based on Pro Se Vol. 13 No.:3 Pilt,Tt: 9 defendant's conduct in exposing an inmate to 'ill unreasonable risk ofjuturt harm, the absence of prr:Jellt injury is not relevant to assessing the severity of the risk to which the inmate was exposed. The defendants, however, had presented credible medical testimony suggesting that Smith had not been exposed to an unreasonable risk of future harm due to his periods of missed HIV medication. The court found that the jury was free to consider that testimony in determining whether the asserted deprivation of medical care was sufficiently seriOus to establish an Eighth Amendment claim. The inmate, a 34-year-old prisoner at Clinton Correctional Facility, contended that he was aware of his female identity since childhood but became familiar with Gender Identity Disorder (GID) only while imprisoned. GID, also known as gender dysphoria and transsexual ism, is a medically and judicially recognized psychiatric disorder. Since 1998, the inmate had been seeking the diagnostic psychotherapy he believed would ultimately lead to "electrolysis, vocal chord modulation, breast implant surgery" and other procedures to complete his transformation into a female. DOCS, however, has a policy pursuant to which it may continue t11erapy for prisoners who commenced the procedure before they Inmate {Vins Sex Change Treatment were sent to prison, but aduring incarceration transsexual surgical ()perations arc not honored." It relied on that policy in denying Brooks v. Berg, 270 F.Supp.2d 302 (N.D.NY 2003) ANew York inmate seeking a sex change is entitled to medical treatment at taxpayer expense that could lead to gender reassignment, the federal district court fiJI' the Northern District of New York held recently. The court said that the state cannot draw a distinction between prisoners who began treatment for a gender identity disorder before incarcerat10n ti~otn those \vho discover their transsexual issues while in prise)!l. Currently DOCS allows prisoners who commenced the process of gender reassignment before they were imprisoned to continue their treatment, but denies that option to inmates who seek to initiate procedures once they arc behind hal'S. "Surely inmates with diabetes, schizophrenia, or any other serious l11edical need are not denied treatment simply because their conditions were not diagnosed prior to incarcenltion," held the court. The court made clear that it is not ordering a sex change or a specific medical rep,imen for the inmate. Rather, it is merely requiring the state to provide medical and psychiatric services to determine the appropriate course of action. "Prison officials are obliged to determine whether plaintiff has a serious medical need and, if so, to provide him with at least some treatment," wrote the court. treatment to the plaintiff. The court rejected the state's defense and held f,)f the inmate on the grounds of due process and the Eighth Amendment's prohibition against cruel and unusual punishment. It wrote that the state 6iled to provide "adequate treatment for [the inmate'sl serious medical needs," and failed to "explain the puzzling distinction that the policy makes between those inmates who were diaWlOsed before incarceration and thosc who were diagnosed after being incarcerated." DepJivatiol1 Order Held Not To Violate Eighth Amendment Trammell v. Keane, 338 F.3d 155 (2d Ci,·. 20(3) Reginald Trammell was serving a SHU a cOITection sentence in late 1994 f,)r assaultinv u officer when, according the Second Circuit Court of Appeals, his behavior became "more and more uncontrollable." In one five-week period he was cited for at least sixteen disciplinat'y violations, primarily for throwing various substances - drinks, soup., spit, urine and feces - at correctional officers. Matters came to a head 011 December 16, 1994, when Trammell spit or threw liquid at Correctional Officer Fernandez, a notary, who had gone to his cell to notarize legal papers for him. Later Pro $(; Vol. 13 No.3 page 10 that day, Deputy Superintendent Kehn issued the first ofseveral deprivation orders, depriving Trammell of "all state and personal property in [his] cell except one pair of shorts. No recreation, No shower, No hot water, No cell bucket because it is determined that a threat to the safety or security of staff, inmates or state property exists." Pursuant to the order, Trammell was deprived of all of his clothing except for one pair of undershorts, all of his toiletries, his mattress, his blanket, and his cell bucket and he was placed on the "loaf' diet for approximately 95 days. He also alleged that he w,IS deprived of toilet paper f,)r a week. Trammell sued, alleging that these conditions violated the Eighth Amendment's protections agamst cruel and unusual punishment. The Second Circuit Court of Appeals mlcd against him. To prove a violation of the Eighth Arnendll1ent, an inmate Inust: show, first, that the deprivation alleged is "objectively suft'ciently serious" such that the plaintiff was denied "the minimal civilized measure of life's necessities," and, second, that the prison officials possessed a "sufficiently culpable state of mind" - that is, that they acted either with the intent to inflict pain on the inmate or with deliberate indifference to the consequences of their action. In this case, the court found, Trammell could not satisfy the second prong of the Eighth Amendment test: He could not show that prison officials imposed the deprivation order either with the intent of hurting him or with deliberate indifference to his health and safety. The depriva60n order, the court found, "while onerous, even harsh" \vas not intended to hurt hil1t, but \vas, instead "reasonably calculated to correct Ihisl outrageous behavior." The court found it "especially significant" that the order was specifically drafted to punish Trammell for his misconduct, and to deter him from similar acts in the hJture while at the same time providing him with incentives to reform his behavior by stating that his property would be returned pending specified periods of good behavior. Thus, the court found, "Trammell held the keys to his own cell door ... and could have rid himself of the harshest aspects of the order by simply reforming his behavior." Moreover, the court stated, the order had not been imposed with deliberate indifference to Trammell's health or safety, because prison officials regularly observed him to ensure that his health was not jeopardized during the deprivation period. The court contrasted this case with that in Hope v. Pelzer, 360 U.S. 738 (2002). In Hope, the Supreme Court held that a state's practice of tying an inmate to a hitching post in the sun violated the Eighth /\mendment. "Unlike the defendants m Hope, who implemented a particularly harsh disciplinary measure with no regard for the inmate's health, the less severe disciplinary measure here was regularly monitored by a nurse in order to ensure that his health was not jeopardized by the various deprivations imposed in response to his rnisconduct." Form Over Substance? Second Circuit Dismisses Inm'ltes' f!h Amendment Claim As Too COfllplicated, Vague. Webb v. Goord, 340 F.3d 105 (2d Cir. 2(03) An ambitious lawsuit by a group of more than thirty inmates seeking to hold DOCS accountable for a wide variety of incidents that resulted in serious physical injuries failed recently, when the Second Circuit dismissed their complaint as unmanageable. The inmates' complaint alleged more than forty separate incidents, including attacks by corrections officers, improper physical punishments, attacks by other inmates for which DOCS wa., allegedly responsible because of its failure to provide a safe prison environment and denials of medical care to plaintiffs suffering Irom injuries. Most of the forty-plus incidents were alleged to have taken place at fourteen separate DOCS I~,cilities between 1997 and 1999, however the complain t also included incidents that occurred as long ago as 1990. As the court noted, the complaint constituted a "catalog of violence and ill treatment" toward inn1ates. For cxarnplc~ one plaintiff alleged that after DOCS denied his request to be placed in protective custody he was attacked so bmtally by other inmates that Pro Se Vol. 13 No.3 rape 11 he required sixty-eight stitches in his f'tee. Another alleged that an attack by corrections officers left him with seventeen broken bones in his face. The court found, bowever, that it would be "extremely impractical" to litig,lte all forty - odd incidents in one trial. Among other thin!,'S, the court noted, there were more than 100 named defendants. Moreover, the court found, the plaintiff.s had not shown that the forty unrelated incidents - which occurred over ten years at fourteen separate DOCS facilities established a violation of the Eighth Amendment by DOCS as a whole. "The necessary foundation of a finding that the prtson JjStetJl has violated the Eighth Amendment [as opposed to individual correction officers] is evidence of a concerted intent among prison officials, one expressed in discetnable regulations policies or practices," 'wrote the. court. A Olcre accuhlulation of individual incidents "does not necessarily amount to a qualitative violation of the Eighth Amendment" by the whole prison system. Thus, althongh the court agreed that "each incident alleged by the plaintiffs involves !,>rave allegations of rights violations eidler perpetrated or tolerated by DOCS officials" it dismissed the complaint as, essentially, unrnanageable. In doing so, it "[took] pains to assert" that it was not "establishing a triumph of form over substance." Rather, the court asserted, its decision should stand for the proposition that fonn matters in our systenl ()f adjudication. It {natters because it is conducive to the coherent presentation of a plaintifTs cbin1s, to the allow<U1ce of a fai .. opportunity to defend,mts to challenge those c1aitns, and to the provision of appropriate relief. In sum, a proper attention to form is a prerequisite to the f':lir and efficient vindicallon of rights. 14· Amendment - Due Process ofLaw Prison OOidal. Not Immune From Suit For Imposing Di.dplinary Sentence Without Due Process Hanrallan v. Doling, 331 F.3d 93 (2d Cir. 20(3) After a prison riot at Mohawk Correctional Facility in 1997, plaintiff; inmate Hanrahan was identified by several cOl-rection officers as having assaulted another correction officer. A disciplinary hearing was held. During the hearing, the hearing of/-lcet denied Hanrahan access to certain exculpatory evidence, including a videotape of the riot and the testimony of a !,'llard who would have ptovided him with an alibi. He found Hanral1an guilty and sentenced him to 10 years in SHU. The charges were aftlrmed on administrative appeal by Donald Selsky, the Director of Special Housing. In 1998 Hanarahan was tried in state court on various criminal charges relating to the same alleged assault. His defense lawyer was able to obtain the evidence that both the hearing officer 'md Selsky had refused to consider 'md Hanrahan was acquitted of all charges. (Another inmate was eventually convicted of tbe assault for which Hanrahan had been charged.) After the acquittal, Hanrahan's lawyer wrote to Selsky to urge him to reverse the disciplinary sentence. Selsky eventually granted the request, however, by that time, Hanrahan had served 335 days of his 10 year SHU sentence. Hanrahan filed a section 1983 lawsuit against both the hearing officer and Selsky, charging that they violated his right to due process of law by refllsing to consider the exculpatory evidence at tbe time of his disciplinary hearing. The defendants moved to dismiss the suit. They argued that they were entitled to "qualitled immunity" because it had not been established in 1997 - the time the events took place - that 335 days of SHU confinement \Vere "atypical and significant under the Supreme Court's 1995 decision in Sandin v. Connor, 514 U.S. 472. Therefore, defendants argued, it was unclear whether Hanrahan was entitled to due process in the first place. (In Sandin, the Supreme Court held that the due process protections inmates typically H Pro Se Vol. 13 No.3 Page 12 receive when subject to disciplinary confinement - the right to a hearing, to call witnesses, and etc, - are only required by the constitution if the punishment that may be imposed would create an "atypical a~d significant hardship on the lllmate 1ll relatIOn to the ordinary incidents of prison life.") "Qualified immunity" is intended to protect government officials from lawsuits concerning actions they take about which the law is unclear and to allow them to act in areas of legal uncertainty without undue fear of subsequent liability. \'(Ihen the law is unclear, the theory goes, a government official should not be p~nalized for doing something that is only afferwards determllled to be illegal. Courts analyze the qualified immunity defense by asking whether, gIven the caselaw as it existed at the time of the incident, a "reasonable official" would have been aware that his conduct was unlawful at the time that he engaged in it. In this case, Hanrahan agreed that it was unclear in 1997 if 335 days of SHU time was "atypical and significant" under Sandin. He arg~led, however, that it was a mistake to measure defendants' qualified immuniry defense according to the time he actually served. Rather, he argued, the defense should be measured ac.~ording to the sentence that the hearing offIcer Imposed «md which Selsky affirmed) that IS, the sentence they tho!(ght he would be servmg. The court agreed with Hanrah',m: Because the reasonableness of the officials' conduct is judged "based on the information tbe officers had when the conduct occurred" the focus of the qualitled immunity inquiry i~ this case should be on the 10 year SHU sentence the defendants imposed on Hanrahan - not the 335 days he actually he served. Note: tbiy decision applie.r only to determinino wbetber defendants in a dirciplinmy dl/~ pmceJ'J' caJe a;; entitled to qualijied immunity. it does not apply to ddmlllnmg II/betber a due pmceSJ 1101t/tian octlll7rd itl thejirJtplace. So,jor 8:":ample, ap,isonersellteJ1cedto 10 .yct1!J'in SHU cOtljitle/llef/t, Jvbo war t~/eased aftct'Jenitto otlly ten dayy, IIJould likelY tlot be able to p;/rme a dt~ pmcerJ (!titl: Ufider Satldin, wen iftbe defendatitr were not entitled to qUt'lified immtlnity, because the caUfts do lIot trJ/lJ'ider 10 days ?fJHU co;jitlement to be "afJpicill and s(gttijicant. " II State Cases !I Discipline Authorized Computer Use Does Not Support Allegation ofMisuse ofState Propetty M"ltter of Bartley v. New York State Department of Correctional Services, 757 N.Y.S.2d 380 (3d Dep't 2003) . Petiti~)ner Bartley was found guilty of ptlwn dlsclpltnary rules prohibiting possession of authorized material in an unauthorized area and misuse of state property after a security check dIsclosed a computer disk containing personal material, including petitioner's resume, photograph~, computer games and personal letters. Petitioner was employed by the facility's volunteer services office where he had access to aco~puter. At his disciplinary hearing, petitioner admItted that the resume and the two letters were his, but testified that be had written tbem with the knowledge and permission of his supervisor, a correction counselor. He disavowed knowledge of the remaining material. The correction counselor confirmed petitioner's contentions, testifying that he had authorized petitioner's use of the computer for personal work, IncludIng the preparation of his resume and the two letters. He explained that, at the time, he was not aware that petitioner's usc of the computers in this manner violated prison disciplinary mles. . TIle ~ourt ~eversed the guilty finding. " HaVIng obtaIned bls supel"Vlsor's authorization for the preparation of the material in question, petitIoner cannot birly be found guilty of unautho1'1zed conduct or misuse of state property.. No other evidence was presented lInkIng [him] to the remaining five personal items on the disk. Inasmucb as the disk was found in a common area, the fact that three of the items on the disk belong to petitioner is insufficient standing alone, to support the conclusion that all of the files on the disk were created by petitioner." Pro Se Vol. B No.3 Fwc 13 An Unaltered Pen L. Not COl1traband Matter of LaMage v. Selsky, 760 N .Y.S.2d 561 (3d Dep't 2003) Petitioner was observed by a corrections officer attempting to stab another inmate with a pen. As a resnlt, he was found guilty of engaging in violent conduct, assaulting another intnate, refusing a direct order and possessmg contraband that may be c1assiEed as a weapon. He was sentenced to 18 months in SHU. On appeal, the court reversed that portion of the disposition finding him gnilty of contraband because, it found, an unaltered pen cannot be considered conti"band. The court sustained the charges relating to the assault, however, and remitted the case to the DOCS for the imposition of a penalty appropriate to the rernaininl?' charges. ' ..' :.:> Expungemel1t of the Record L< Expungement oftbe Facts Not Matter of Watkins v. Annucci, 758 N.Y.S.2d 853 (:'Id Dep't 20(3) Petitioner \\latkins absconded from temporary release. Arrested and convicted on new charges, he was returned to DOCS with a new pre-sentence report, which referred to his having absconded fronl the prior sentence. He was slIbsequently found guilty of several disciplinary violations arismg from his abscondence. However a state court reversed the disciplinary hearing on procedural grounds and ordered all references to it expunged from his institutional records. S0111e titne latcr petitioner was denied parole. In denying him parole, the Parole Board relied, in part, on the pre-sentence report which referred to the t'lCt that he had absconded from his prior sentence. Petitioner commenced an Anicle 78!Jroceeding'., alleginv . ..'> that the Parole Board could not rely on the information in his pre-sentence report, because the S(;lte court had ordered references to his disciplinary hearing expunged. 'Il1e cOllrt disagreed, tinding no impropriety in the Board's consideration of the pre-sentence report. Although DOCS was <.J obliged to expunge all references to the disciplinary hearing from petitioner's records, it was not required to expunge all evidence of petitioner's abscondence from his records. The court noted, for example, that DOCS properly re-calculated petitioner's sentence to reflect the period of abscondence, and the reversal of petitioner's disciplinary hearing did not entitle him to credit t(Jr tllat time. Likewise, the court fOllnd, it was appropriate for the Board to consider petitioner's pre-sentence report, including the refet'ence to the abscondence, in determining whether he should be granted parole. No Evidence ofJl.fi.9bel1avior III This Rig-My C'1Jarged C'$e Pama v. Senko\Vski, 759 N.Y.S.2d 595 (3d Dep't 20(3) Petitioner Pama was found guilty after a tier I J hearing of violating prison disciplinary mles prohibiting the possession of contraband, creatini! o a tire hazard and tamperingJ with an electrical device. As related in the misbehavior report, a search of the petitioner's cell disclosed that four extension cords had been plup}?;cd into a single outlet (the number permitted is two), thereby creating a fire IMzard. In addition, the circuit bre:tker box serving petitioner's cell had been altered to provide his cell and several others with extra electrical power. The court reversed the charges. As to the contraband charge, the court noted tllat electrical extension cords are specifically permitted in correction,Jl facilities (j'ee Title 7 NYCRR 724.4[h][6]). As to the remaining charges of creating a fire hazard and tampering with an electrical device, the misbehavior report alleged that petitioner- had "conspired to create Ii fire hazard [and] have his cell breaker box altered to give him extra electricity to mn all his devices." 'The court noted that the hearing ofEcer had acknowledged during the heat~ng that petitioner had never had access to the catwalks where the cireui I' breakers are located. "lIenee it was never established how the circuit breaker box was altered; who altered it... tllat petitioner engaged in a conspiracy; that petitioner could not have Pro Se Vol. 13 No.3 PllW 14 operated 'all his devices' with unaltered circuit breakers; or that use of more than one extension cord, either generally or in this instance, created a fire hazard." Based on the insufficient evidence, the court reversed the hearing. DOCS Fails to Prove Controlled Substil11ce Violation Matter of Hernandez v. Selsky. 759 N.Y.S.2d 604 (3d Dep't 200.3) Title 7 NYCRR § 1010.5 provides that in disciplinary proceedings alleging possession of contraband dmgB, the hearing record must include: (a) the request lor test of suspected contraband dmb'S 1()fIn; (b) Ule contraband test procedure 101m; (c) the test report prepared by an outside agency subsequent to substance, if any; testing of the (d) a statement of the scientilic principllesj mld validity of the testing materials and procedures used ... A correction officer observed inmate Hernandez take a hand-rolled marijuana cigarette frorn another inrnate in the ,gytnnasiutn and charged him in a misbehavior report with violations of disciplinary rules prohibiting possession of controlled suhstances and smuggling. At the hearing, however, none of the documents required by DOCS' regulations were adrnitted into evidence and, tnoreover, there \VlL.'1 no testimony as to the tesling procedure that had identified the substance of tnarijuana. 'The court, consequently, reversed that portion of the hearim' which found Hernandez guilty of possc;~l()n of a controlled substance. Nevertheless, the court found, the misbebavior report, coupled witb Hernandez's admission at the hearing that he discarded something in the gym bleachers, provided sufficient support for the charge of smuggling. Medical Care State Courts ConsiderHepatitis-C Treatment Issues People ex reI. Sandson v. Duncan, 761 N.y.s.2d 379 (3d Dep't 2(03) and In re Application of Domenech, 200.3 \VL 21374520 (Smith, J.) (N.Y. Sup. Ct., May 28, 2(03) Hepatitis-C, a slow-acting viral infection wbich can Gluse a breakdown of liver functions, affects as many as 14 percent of New York State inmates, according to some studies. The typical treatment consists of 24 to 48 weeks of weekly shots of interferon, an immune system protein, combined with daily doses of the antiviral medication ribavirin. The treatment has limited success, however, and significant side effects. Consequently, it is indicated for only a small percentage of those wbo test positive for the hepatit1s-C virus, typically those whose infection is in a f~urly advanced statc.i\1oreover, because the vims is often spread by needle sharing among intcrvenolls (I.V.) drug users, and because bc)th alcohol and drug abuse have been correlated with reduced cornpliancc with and decreased effectiveness of the treatment regimen, some medical professionals have concluded that treatment not be recommended for persons who are current drug or alcohol abusers. In New York, DOCS has developed strict Quidelines for determining which hepatitisC posi~ive inmates are eligible f()rtreatment. The guidelines require, mnong other things, that eligible inmates be in a relatively advanced state of tbe disease, that they not be witllin 12 months of a parole eligibility date, that they be "highly motivated" and that they have no history of psychiatric problems. In addition, DOCS requires that inrnatcs \vith a history of dnlg alHlse be either enrolled in or have completed the Alcohol and Substance Abuse Treatment prognUll (ASA1) before receiving treatment. Tbe strictness of New York's treatment eligibility guidelines has memlt that only a very small percentage of New York inmates infected with the hepatitis-C virus actually receive treatment while in DOCS. '111e requirement that eligible inmates be drug free and be either enrolled in or have completed ASAT has been Not all medical particularly controversial. Pro Se Vol. 13 No.3 page 15 professionals agree that this is a valid basis for re6.1sing hepatitis-C treatment. For instance, gnidelines issued by the National Institute of Health state that "active [i.v.] drug use in and of itself should not be used to exclude such patients from antiviral therapy," and other states - for example, Rhode Island - treat inmates who are actively using drugs. Two recent state courts considered inmates' challenges to the requirement that they be enrolled in or have completed ASAT prior to entering into tt·eatment. The two challenges resulted in two very different results. In People ex reI. Sandson, the petitioner filed a habeas corpus proceeding, stating that he had been denied treatment for hepatitis C and arguing that the denial constituted cmel and unusual punishment in violation of the 8u, Amendment of the U.S. Constitution. The court - after first noting that an Article 78 proceeding, not a habeas corpus proceeding, was the correct vehicle for the petitioner's complaint - held that he h,ld failed to show cruel and unusual treatnlcnt. In order to state a 111cdical care claim under the 8 th Amendrnent, an intnate tllUSt show that the corrections officials were "deliberately indifferent" to his "serious medical needs. Here, the court held, "the specific treatment that petitioner demands has been withheld not out of indifference to his illness, but because of his tailure to meet certain reasonable pre-requisites prior to cornmencemen t of the treatmen t, including that of demonstrating his continuing abstinence from substance abuse by successfully completing a substance abuse treatment program." Moreover, the record showed, "In]ot only has petitioner failed to complete such a program, but it appears that he has continued to abuse controlled substances during his incarceration, ,LS evidenced by administrative determinations finding him gnilty of violating prison disciplinary nJles" concerning controlled substances. Under these circurnstances, the court held, petitioner's complaint was properly dismissed. In In re Application of Domenech, by contrast, the petitioner alleged (and DOCS did not dispute) that he had been drug free for over thirty years. Moreover, DOCS did not allege that the treatment was being denied based on a medical justification, i.e., tlut the treatment was contra-indicated because the petitioner was a current drug or alcohol user, or that ASAT was necessary because even though petitioner was not currently abusing dmgs or alcohol he was likely to relapse without ASAT's assistance. Rather, DOCS W'lS merely rigidly following the guidelines it had established for all inmates, regardless of individual circumstances. The court found, however, that "there is not a scintilla of evidence...showincr that Petitioner is a current " substance abuser or likely to relapse." Under those circumstances, it concludcd: "the ASAT prograln is irrelevant ... And cannot, as a rnatter of law, provide a medical justification for tl,e continued denial of medical treatmen t . . . Accordingly, [DOCS'] policy as applicd to this Petitioner is arbitrary and capricious and results in a deliberate denial of medical attention to his serious medical condition in violation of the Eii'hth Amendment." " Parole Parole Board Must Consider RecomJnendations ofSentencing Court For lJlmates with Indeterminate Sentences H Matter of Edwards v. Travis, 758 N.Y.S.2d 121 (2d Dep't 2003) New York State law requires the parole board to consider, <lrnong other thing'S, an inrnate's institutional tecord, perfonnance in a temporary release program, and release plans (.ree Executive Law § 259-i[2][c][A] ). Additionally, when an intTIate is serving an indeterminate sentence, the board is required to consider any " rccon1hlcncIabons ' . o.fh t e sentencmg COllrt. " (Executive I!cIW §§ 259-i[1IIa][i], [2][c][A]). In this case, the Division of Parole conceded that it did not conside'- the sentencinv <..' minutes befe)re it rendered its decision denying petitioner Edwards' parole application. The minutes revealed that the sentencing judge did not intend the petitioner to serve more than the minimum term of imprisonment. The court found that since the tninutes contain what is, essentially, a recommendation of the sentencing court, the Division's admitted failure to consider the minutes required that the determination be reversed and remitted to the Division tell' a new hearing. Pm Sc Vol. 13 No.3 pags 16 Procedure Inmates Filing Article 78 Proceedings MUM Follow Orders to Show Cause Matter ofSpriles v. McGinnis. 758 N.Y.S.2d 546 (3d Dep't 2(03) Matter of Britt v. Goord, 758 N.Y.S.2d 551 (3d Dep't 20tH) Matter ofM.artinez v. Goord, 757 N.Y.S.2d 502 (3d Dept 2003) The tlrst step in commencing an Ar6c1e 78 proceeding is to file a proposed "Order to Show Cause" (OSC) with the court. 111e OSCa document which "orders" the dcfend;mts to "show cause" why the petition should not IJC granted and specif'es how and on whom it should be served - will generally be signed by a judge and returned to you for service on the In order to commence the respondents. proceeding you must serve the signed OSC on the persons and in the manner speeitled in the order, as well as follow any other instructions that the court may have added. Three cases illustrate tl1e consequences of Luling to do so. In ,'"fatter of Sprilcs, the OSC rccluired the petitioner to serve the superintendent and to £lIe an aftldavit of service with the court. After the petitioner failed to do so, the respondents moved to dismiss. The Supreme Court granted the motion and the Appellate Division aHlrmed, noting that there was no evidence that the conditions of the petitioner's contlncmcnt prevented compliance with the order. "Given petitioner's failure to comply with the relaxed service requircrncnt set forth in the (wder to show cause, Supreme Court properly dismissed the petition." Similarly, in Matter of Britt, the court dismissed the petition after £lnding that "[a]lthough petitioner served process upon the Attorney General, he failed to effect service upon respondent, thereby violating the ... order to show cause." The court also dismissed a petition in Martinez v. Goord, in which the petitioner failed to serve either the Attorney General or the respondent, holding, "[a]n inmate's failure to satisfy the servIce requiretncnts of an order to sho\v cause requires dismissal ... unless there is a showing that the restrictions imposed by imprisonment precluded compliance." These cases should serve as a rcmindel' for inmates contemplating filing an Article 78 proceeding that it will be necessary to carefully follow the procedures in ilie OSC to avoid having the proceeding dismissed. Intl1ates Ivit/) qUeJtiotls about Aftide 78 proceedil(gJ l'tJn t~queJI PtifOlwr,.' Le,gal Senice,.' hU771 MetJlO, "Hou! to File an Altide 78 Proceeding on Your Own" I?y U!tili/{g 10 pfisonm.' lA;ga! Seni'~J, Cenlml Intake, 118 Pro,peet St., Suile J07, IIba[a, NY 14850. Other Cases ofInterest Man Wins Bid To Keep Name Off SexORender Regi,<try Pcople v, Bell 2003 WL 21649678 (N.Y. Sup. Ct., June 30, 2003) Shennan Bell, a fortner intnate C(Hlvicted 22 years ago of kidnapping a 3-year-old to extort tnoney frotn her parents, convinced a state court recently that it would be unconstitutional to require hirn to register as a sex offender, Upon his release from prison in 2001 after completing a 20-year sentence, Bell found that he was requircd to register under New York's Sex Offender Registration .Act (SORA) because first degree kidnapping (where the victim is less than 17 years old and the offender is not a parent) is one of the crimes to which the act applies, Bell objected, arguing that his crime had no sexual component whatsoever. The court agreed, noting that courts in both Ohio and Florida have found that the automatic inclusion of ex-intnates whose crirnes had no sexual component to a sex-offender registry violated the ex-inmate's right to substantive due process. The court also found that by including a kidnapping offense that does not necessarily include a sexual component in the def'nition of"sexual offender" "renders the sexual offender registration statute over-inclusive" and violates the equal protection clause of the Fourteenth Amendment. The court went on to conclude that when a person has been convicted of a crime f(x which SORA classification is m'mdatory, but no clement of the crirne involves a sexual component, a hearing must be condncted, at which "evidence of some sexual facet to the defendant's actions or Pro Se Vol. \1 No.:\ Page 17 rnotivation sufficient to sustain a classification as a sexual offender" must be presented, in order to sustain the classification. Conviction Overturned for Itlm:lte Who AllegedlyAtt:lcked GU:lrd People v. Santos, 761 N.Y.S.2d 651 (1st Dep't 2003) Evidence that a prison guard attacked inmates and engaged in a coverup is enough to void the convictk;n of an inmate who allegedly assaulted the guard, a divided appeals court recently ruled. Ruling 3-2, the Appellate Division, First Department held that the inmate,Jeffrey Santos, could have defended himself better at trial if he had known about the guard's past. The guard, Edward Lanza, pleaded guilty in an administrative proceeding to assaulting three Riker's Island inmates in 1996, but not until after Mr. S;Ultos was convicted ofassaulting Mr. Lanza. Mr. Santos, who had claimed he was attacked by Mr. Lanz;], submitted Mr. Lanza's plea in a post-trial motion to vacate his conviction. A Manhattan Supreme Court judge granted Mr. Santos' motion, and the majority of the First Department agreed with her reasoning, saying the credibility of the guard, who testified against Mr. Santos,wJS the tnost significant issue at trial. "\Ve do not find that the motion court improvidently exercised its discretion in finding that this newly discovered evidence was not merely collateral, as the complainant's history of assaultive behavior went to the very heart of this defendant's trial defense," wrote the 111ajority. In a dissenting opinion, Justice Peter Tom wrote tbat the administrative pleading of the guard, which resulted in a loss of three vacation days and no criminal charges, did not undennine the prosecution's other evidence against ,Mr. Santos. The ongin of the confrontation between the two was disputed. The prosecution alleged that Mr. Santos was taken to a holding cell after having been accused of mmmaging through the purse of a psychiatric social worker in the facility health clinic. When Mr. L,mza prepared to give Mr. Santos a misbehavior report for being in the health clinic without permtsslOn, Santos allegedly became belligerent and punched Lmza in the face. Other guards entered the cell and the scuffle, restraining Mr. Santos. Santos claimed that he had been directed by a doctor to wait in the social worker's office. Once he was moved to the holding cell, Lanza distracted him with the misbehavior report paperwork and then punched him in the face. Santos then claimed that Lanza asked another guard to punch Lanza in the face, so hc could pin the fight on Santos. While the majority stt'essed thc ill1portance of L:ulza's past infractions, Justice Tom expressed disbelief that Lanza's behavior could overwhelm the testimony of other guards, inconsistent testirnony trOln innlates who witnessed the fight and Mr. Santos's story about Lanza's self-inflicted wounds. "A conviction may be vacated on the basis of new evidence only if the new evidence would probably have resulted in a verdict more favorable to the defendant," wrote the Justice. "\Vithout any motive to frame the defendant, the,'c was simply nothing incredible concerning the testimony of the People's witnesses that dcfcndant was caught in a restricted area run1maging through a worker's pocketbook, and later lashed out at a corrections officer attempting to serve him with a [misbehavior reportJ before being subdued. It also appears inconceivable that Captain Lanza would cause selt:inl1icted facial injuries including a laceration which needed eight stitches, and which required emergency treatment and subsequent thenlpy just to frame defendant for no apparent reason.~' Son of S:lnl L,nv Survives De:ltll, But Not Cbild Support New York State Crime Victims Bd. ex reI. I-lemon v. ZaHiJto, 763 N.Y.S.2d 442 (Sheridan, J.) (Sup. Ct., Albany Co., June 20, 2003 ) New York's Son of Sam Law permits the New York Crime Victims' Board to seek an injunction against an inrnate who receives "funds of a convicted person" in order to prohibit the inmate from spending the fimds. The purpose is to insure that if an inmate receives a substantial sum of money while incarcerated, file money will Pro~,e Vol. 13 No.3 l'l1gc 18 not be "wasted," bntwill instead remain available to compensate any victims of the inmate's things, that the equitieJ are in his or her favor i.e., that it is just to grant dIe injunction. The C1"l1nes. court found that in this ease, where Zaffuto's funds were subject to claims for both child support and recompense for a crime victim, two distinct public policies - that of insuring that child support obligations are met and that of assisting the victims of crimes in obtaining compensation from the timds of the perpetrators - come into cont1iet. The court held that as between those two objectives, "the compelling nature of child support payments tips the equitable scale away from the payment to a crime victim." Consequently, it retilsed to gnli1t the CVB's request to freeze the funds owed to Crista!. The court fi:mnd that Blake's argument, however, was weaker. It held that his contentions failed to overcome the State's interest in compensating crime victims. It therefore granted the eVB's request to freeze the timds due him. Michael Zaffuto was convicted of robbery in the first degree and sentenced to a prison term. While incarcerated he brough t a lawsuit against the State of New York, alleging medical malpractice. The lawsuit was settled for a substantial sum, but Zaffuto died shortly thereafter. The money - $87,000 -went to his heirs: $30,000 to bis excwife, Cristal, and $57,000 to his son, Blake. The Crime Victim's Board then sued Cristal and Blake, seeking an injunction prohibiting them from spending any of the settlement until d,e victim of Zaffuto's crime, James Hernon, had an opportunity to sue the estate for the injuries he suffered during the robbery. The Zaffutos responded with a vaticty of arguments: Fitst, they argued, the Son of Sam law was intended only to apply to convicted crirninals; it was not intended to apply in this situation, where the perpettatot of the crime was deceased. The court disagreed. Executive Law § 632 a(l) (c) defines "funds of a convicted person" as "all funds and property received from any source by a person convicted of a specified crime, or by the rep,vJetitatille 0/ Jueh jJi/!Yotl as defined in [§ 621(6)] of this article excluding child support and earned income ...." 'n,,: cross-referenced provision~ Executive Law § 621 (6) provides that: Representative' shall mean one who represents or stands in the place of another person, including but not limited to ... ail execHtororbeirof ~u1other person ..." Thus, the court concluded, the Son of Sam law was intended to 'lpply to the funds of inmates even after they die. Cristal and Blake next argued that they were victims of Michael just as mnch as was .lames Hernon and that, therefore, they had ,m at least equal entitlement to the funds. Spccitlcally, Cristal aq,'ued that Michael owed her more than $30,000 in child support payments at the time he died, while Blake ar(!Ued that Michael never provided financial "support and had only intennittent contact with him during his formative years. That argument received rnorc consideration from the court. In order to obtain an injunction a party must show, ,m1ong other QUESTIONS AND ANSWERS ABOUT THE DNA DATABANK In 1994, the IA.'gislature passed a law requiring certain "designated offenders" to give blood sanlples for forensic DNA testing and data banking. As originally enacted, the statute applied only to persons convicted of certain violent felonies, sex offenses and escape offenses on or after January 1, 1996. In 1999, the Legislature rewrote the law. The new law expanded the list of "designated offenses" for which blood can be taken and provided that, in most cases, it may be applied retroactively - that is, blood can be taken even if you were convicted of the offense before ti,e date the law became effective - so long as you arc still serving the sentence for the designated offense at the time the blood is taken. For a second category of offenses, particularly dUlg offenses, blood can only be taken if you were convicted ofthe offense on or after December 1, 1999. For yet a third category of offenses, primarily those involving escape and absconding, blood can be taken only if you were also convicted of some other designated offense within the last five years. Because this is contilsing we have prepared a chart indicating which crimes the statute applies to and when it Pro Se Vol. 13 No.3 P:agt: 19 applies. The chart appears at the end of this article. What follows are some additional questions and ;mswers about the DNA datab;mk law. 1. How does the law work? IfyolJ have been convicted of one of the designated offenses (and the law is otherwise applicable to you) you will be notified of your obligation to provide a blood sample. After it has been taken the blood sample will be forwarded to an authorized DNA laboratory for testing and analysis. After the sample is analyzed and its' individual characteristics noted, the results are forwarded to the state DNA databank (technically known as the "identification index"). See, II:xecuttve Law § 995-c. blood sample is appropriate for DNA testing. The statute clearly does not give petitiouer the option to dictate tbe type of sample to be taken." 3. Who is allowed to see the results? Executive Law § 995-c(6) states that DN A records contained in the state DNA identification index shall be released only ftJr the following purposes: • to federal, state or local law enforcement agencies, or district attorney's offices in connection with the investigation of a cril'ne, or to assist in the recovery or identification of hurnan rernaltls~ including the identification of missing persons, and • to a defendant representative, for purposes, and • to an "entity authorized by the [New York State Division of Criminal Justice Services] for the purposes of creating...a population statistics database" - but only after personally identifiable information has been removed. 2. Do they have to take blood? Why can't they take a hair or saliva sample instead? The new law provides only that a "sample appropriate for DNA testing" must be taken. Therefore, theoretically, a h,lir or saliva sample might be sufticient. The law, however, leaves the final decision ;lS to what kind of sanlple is "appropriate" up to the Division of Criminal Justice Services. DqS has decided that a blood sample is the most reliable, hence "appropriate," san1ple. Since no court has as yet held that taking a blood sample for DNA databank purposes constitutes an unreasonable invasion of any of your constlh.1tional rights, \ve believe that a court would hold DCJS's decision to use blood samples, over other possible sampling materials, to be a reasonable one. In Lunney v. Goord, 736 N.Y.S.2d 718 (3d Dep't 2(02) the petitioner argued that DOCS should not be allowed to take a blood sample if he was willing to provide a hair or saliva sample instead. The court disagreed, holding: "Although [the statutel does not specifY that a blood sample must be used, [it] requires 'a sample appropriate for DNA testing' and it is undisputed that a his or her criminal defense 01' 4. Is there anyone who can't see the results? Yes. The new law contains a confidentiality provision. Executive Law § 995-d prohibits DNA test results from being distributed, without your penmsslOn, to insurance companies, employers or potential employers, health care providers, private investigating services and so on. 5. Can I obtain a copy of the test results? Yes. The Division of Criminal Justice Services has published n:s'uiations concerning how to go about getting your test results. The regulations are published at 9 NYCRR § 6192.10. You must make a request to DCJS.ln Pro Se Vol. 13 No.3 Pm 20 your request, you 1nust provide your nan1e, any aliases used, date of birth, NYSID number (if kno\vn); sex; race; date of sentence for the Off(11Se for which the sample was taken and the cOllrtwhich sentenced you (ifknown). You must also provide fingerprints from both hands, a passport sized color photograph taken within the last twelve months, your current address and phone number (if available). All of this infonnation must be provided under your signature, which must be notarized and include the followingo statement: "False statements made herein are punishable as a class A misdemeanor pursuant to § 210.45 of the New York State Penal Law." The request should then be forwarded to the Division of Criminal Justice Services, 4 '["ower Place, Albany, NY 12203. According to the regulations DCJS should provide yOll with a response within 30 days, by certitied mail, return receipt requested. 6. What happens if I refuse to give a blood sample? [f you refuse to give a blood sample you will most likely be given a "direct order" to provide the sample and, if yOll still refuse, you will be disciplined through the regular disciplinary system. You could, presumably, continue to be disciplined until you agree to provide a sample. See, e.g., Thompson v. Selsky, 734 N.Y.S.2d 348 (3d Dep't 2001) (inmate disciplined for rcfusing a direct ordcr to provide a blood sample). 7. Is this law legal? Most states now have DN A databank laws similar to that of New York. Such laws havc so far survived every legal challenge that has been brought against them. Courts have held, for example, that these laws do not violate inmates' First Amendment right to practice their religion, their Fourth Amendment right against lHlfe'Lsonable search and seizure, their Fifth Amendment right against sclf-incrimination, their Eighth Amendment right against cruel and unusual punishment or their Fonrteenfb Amcndment right to equal protection, due process, and privacy. Courts have also held that retroactive application of these statutes - that is, dleir application to crimes committed hd()re the statute was passcd - does not violate the tX post fatto clause of the Constitution or the double jeopardy c1ausc. 8. My religion forbids the drawing of blood. Doesn't this statute violate my rights under the First Amendment? No. Courts that have looked at this issue have consistently held that because DNA datahank statutes arc: neutral with respect to religion; of general applicability; not applied diffcrently to anyonc because of thcir religious beliefs; and only incidentally affect rcligious belicf; they are acceptable under the First Amerldment. Tllt; courts have also t()Und tliat ,my small impact on religious freedom caused by the taking of blood is cOlll1ter-bahnced by the state's interest in maintaining a perrnanent record of various otfender's DNA to help in solving past or future crimcs and that, therefore, they do not unduly burden religious belief. See, Shaffer v. Same, 148F.3d 1180 (10"'Cir. ]998),mtden., 119 S.Ct. 520; Ryncarz v. Eikcnberry, 824 F.Supp. ]493 (E.D. Wash. 1993). 9. Isn't the taking of blood an unlawful search and seizure under the Fourth Amendment? No. The Fourth Amendment protccts and seizures. It is t,)t" this reason that the police typically need "probable cause" to search your person or your home. However, courts that have looked at whether the taking ofblood fora DNA databank violates inmates' Fourth Amendment rights have consistently held that it docs not, even if the blood is t11ken without a warrant or probable cmlS(~. The Second Circuit Court of Appeals, for instance, has held (with respect to a Connecticut's DN A databank law) that various "special needs" of the state that go beyond mere law enforcement permit physical testing of this searches YOU ~w'ainstllnreasonable <.7 Pro Se Vol. 13 No. 3 PJW:~ 21 sort without a warrant or prohable cause. Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999). The Second Circuit also has jurisdiction over New York cases. It is therefore likely that it would apply the same analysis to New York's statute. Many other courts have found that intnate's have reduced privacy interests in the tirst place, and have upheld the statutes on those grounds. See Jones v. Murray, 962 F.2d 302 (4'h Cir. 1992). 10. What about my Fifth Amendment right against self-incrimination? Under the Fifth Amendment you cannot be forced to say anything that might incriminate you in a crinlc.Howcver, this :unendment has traditionally been applied only to oral, or "testimonial" evidence. It does not usually prevent you tt-om being required to produce physical evidence. For that reason, courts that examined the question have uniformly held that DNA databank laws do not violate the Fifth Arnendnlcnt rights of inn1atcs. See Boling v. Romer, 101 F.3d 1336 (10'h Cir. 1996). 11. I was convicted before this law was passed. Does the application of this law to me violate the ex post facto clause? The e.x'P0JtjiJeto clause of the constitution prevents the state from punishin~; you for conduct that occurred before the conduct was illeg.l!' However, to be a violation of the e:x:poJt j;:u'fo clause~ a statute rnust actually punish you, or increase your punishtnent, for sotnething you did before the passage of the statute. In many cases the new DNA statute will apply to inmates because of crimes or convictions for which they were convicted prior to the statute becoming law (on December I, 1999). The Ne'W York State Court of Appeals recently held, however, that because the intention of the statute is only to aid in future investig'ation, not increase punishtnent tc)r past crimes, it is not prohibited by the ex POJt facto clause. Kellogg v. Travis, 100 N.Y.2e1 407 (2003). 12. What if I am punished with administrative sanctions, including a loss of good time, for refusing to give blood? Wouldn't that be a violation of the ex post facto clause in those circumstances? No. Courts that have examined this question have f()tll1d that administrative sanctions suffered by an inmate's refusal to provide blood san1plcs, including loss of gc)()d tirne, are a result of their failure to tallow lawful orders, and not a result of the corntnission of a cntne. Therefore, they have held, such sanctions do not violate the e.X· POJ'! jiJito clause. See, e.g, Gilbert v. Peters, 55 F.3d 237 (7'" Cir. 1995); Kruger v. Erickson, 875 F.supp. 583 (D.Minn. 1995), ared on other grounds, 77 F.3d 107l (8"' Cir. 1996); Cooper v. Gammon, 943 S.\V.2d 699 (Mo. Ct. App. \V.I). 1997). 13. Does the law apply to me? The DNA databank law applies to you in two circumstances. I. You were convicted of one of the following "designated offenses" on or after December L 1999 or you were convicted of one of the following offenses befiilP December 1. 1999 and you arc still serving the sentence for that conviction (even if you are on parole): 120.05 Assault in the 20d de!,"ee 12(1.06 Gang Assault in the 2nd degree 110.00/120.06 Attempted Gang Assault in the 2d degree 120.07 Gang Assault in the l~t degree 110.00!120JJ7 Attempted (;allg Assault in the 1"' degree 120.08 Assault ()11 a Peace, Fireman or EMS professional Police t 10.00/120.08 Attempted Assault on a Officer, ll'ireman or EMS Professional Pcacc~ Officer, Police 120.10 Assault in the 1st degree 110.00/120.10 Attempted Assaultin ti,e 1"' degree 120.11 Aggravated Assault upon a Peace or Police Officer Pm Se Vol. 13 No.3 Page 22 d 11 0.00/120.11 Attempted A!',..l',1:avated Assault upon a Peace Of Police Officer '-- 110.00/140.20 Attempted Burglary in the 3 140.25 Burglary in the 2nd degree 120.60(1) Stalking in the 1"' degree 1111.00/140.25 Attempted Burglary in the 2"J degree 125.15 Manslaughter in the 2nd degree 140.30 Burglary in the 1"t degree 125.20 Manslaui~Her in the 1"\ degrcc 110.00/140.30 Attempted Burglary in the 1" dewee llO.00tI25.20 Attempted Mamlaughter iu the 1" degree dewee 150.:15 Arson in the 2,,;1 degree 125.25 Murder in the 2",1 degree 110.00/150.15 Attempted Arson in the 2"d degree 110.110/125.25 Attempted Murder in the 2"; degree 150.20 Arson in the 1st degree '125.27 Murder in the '1 ,-t degree 110.110/125.27 Attempted Murder in the 1"' degree 110.00/150.20 Attempted Arson in the 1" degre" 130.25 Rape in the 3"; degree 160.10 Robbery in the 2"" degree 130.30 Rape in dle 2m! degree 1J().(JO.160.10 Attempted Robbery in the 2"d degree 130.35 R~pe in the 1'" degree 110.00/130.35 Attempted Rape in the 1"' de!,,,ee 160.15 Robbery in the j"' degree 110.00/160.15 Attempted Robbery in 'he I" degree 130.40 Sodomy in the 3d degree 215.16 Intimidating a Victim or \'(fitness in the 2,,;J degree 130.45 Sodomy in the 2'](\ degree 215.l7 Intimidatil1ga Victim orWitncss in the 'l'tdegrce 130.50 Sodomy in the -1"1 degree 110.00/130.50 Attempted Sodomy in the 1" degree 110,(10/215.17 Attempted lutimidating a Victim \Vitness in the 101 degree 130.65 Sexual Abuse in the '1"1 degree 255.25 Incest or 1d 130.66 Ago/avated Sexual Abuse in the 3 degree 265.1)2(4), (6), (8) Criminal Possession of a Weapon in the 130.67 Aggravated Sexual Abuse in the 2'd degree }"1 degree 110.00/130.67 Attempted in the 2n,1 degree 11l1.00/265J)2(4), (5) and (6) Attempted Criminal Possession of a \Veapon in the 3Ed degree a3 a lesser included offenses of that section as defined in 220.20 of the Criminal Procedure Law AI'6"avated - 130.70 Aggravated Sexual Abuse in the Sexual Abuse 1:it degree 110.00/130.70 Attempted Ar,gravated Sexual Abuse iu the 1:X degree 130.75 Course of Sexual Conduct Against a Child in the 1"1 degree lHlOO/130.75 Attempted Course of Sexual Conduct Against a Child in the 1St degree 130.80 CCHlfse of Sexual Conduct Agaimt a Child in the 2nd dcwee 135.20 Kidnapping in th(~ Ztd degree 110.00/"135.20 Attempted Kidnapping in the 2"d degree nd 265.03 Criminal Possession of a \Veapon in the 2 degree 110.00/265.03 Attempted Criminal Possession of a \Veapon in the 2nd degree 265.04 Criminal Possession of a D;mgcrous \X!capon in the1"\ degree 110.00/265.04 Attempted Criminal Possession of a 01 Danblt:fOus \X!eapon in the 1 degree d 265.08 Criminal lJse of a Firearm in the 2 degree 01 135.25 Kidnapping in the 1 degree 11(1.00/135.25 Attempted Kidnapping in the I" degree 110.00/265.08 Attempted Criminal Use of a Fireaml in the 2nd degree 140.20 Burglary in the )" degree 265.(19 Criminal Use of a Firearm in the 1'I degree Pro Se Vol. 13 No.3 Page 23 110.00/265.09 Attempted Criminal Use of a Fire~lnn in the 1d degree 220.43 Criminal Sale of a Controlled Substanc.e in the 1"\ degree 265.12 Criminal Sale of a Firearm in the 2nd degree 220.44 Criminal Sale of a COl1t:rollt~d Substance in or ncar School Grounds 1Hl.OO/265.12 Attempted Criminal Sale of a Firearm in the 2nd degree 265.13 Criminal Sale of il Fire,lnn in tlH~ 110.00/265.13 Attempted Criminal Sale of a Fireann in the 1t·t degree 265.14 Criminal Sale of !vtinor l'l Fin~aml A Correction "I et det~rec with the Aid of a 1l0.()O/265.14 Attempted Criminal Sale of a Firearm with the Aid of a Minor 2. You 'were convicted of one of the following offenses alld were convicted of one of thi, offenses listed in section 1, above, within the h,t five years: 205.10 Escape in the 2ed degree 205.15 Escape in the p'. degree In our last issue ()f Pro Se we intended to report on three cases from the Supreme Court's 200212003 term which we felt would be ()f interest to New York State inmates. Due to a printinN error the article appeared without the headline, the introduction, or the first third of the text. We regret the error and we reprint the omitted material below. For those who Wish to read the whole article, this material should have preceded the text that appears on paNe 6 (!f the Summer, 2003, issue (!f Pro Se, 205,17 Ahsconding from Temporary Release in the 1ct degree 205.19 Ahsconding from a Community Treatment 3. You were convicted of one the followinv offenses on or after December 1, 1999: 155.30(5) Grand Larceny in the 4 th degree 220.18 C:riminal Possession of a Controlled Substance in the 2"d dt:gree 220.21 Criminal Possession of a Controlled Substance in the pt degree 220.3'1 Criminal Sale of a Controlled Substance in the 5'h degree 220.34 Criminal Sale of a Controlkd Substancc in the 4 th degree 220.39 Crim..inal Sale of a Controlled Substance in the 3,d derrrcc ,:> 220.41 Criminal Sale of a Controlled Substancc in the 2"d degree Supren1e Court AflirmH Novel ReMraintH ConvictH' Freedom 011 The current Supreme Court term has brought little good news felr inmates, as the Court has upheld the constitutionality ofa variety of new and novel laws intended to further reduce the frcedolll of Vari(H,tS categories of offenders, including "Megan's Laws" for sex ()ffendcrs, "three strikes" laws for repeat offenders and n1andatory inunig;ration detention for non-citizen offenders. \Xle provide an overview, below. Megan's Laws In 1996, President Bill Clinton signed legislation mandating that states adopt laws requiring convictecl sex offenders t() rq.-;stet·,vith localla\v enforcernent agencies after their release and granting access to such information to the public. Over time, all fifty states adopted some version of what is commonly referred to as Pro Se Vol. 13 No.3 Page 24 "Megan's La\v." Nt."W York's version, the Sex Offender Registration Act, or SORA (Correction Law § 168, ct. Jcq.) , requires sex offenders to register their current address with the Division of Crimiual Justice Services, assigns each sex offender one of three "risk levels" and pennits law enforcement agenCIes to provide information about the offender to "entities with vulnerable populations." The amount of information that may be provided depends on the risk level the offender h;L~ been assigned. This term the Supreme Court upheld the constitutionality of the Meg«n's Laws of both Alaska and Connecticut. These decisions make it highly unlikely that any hlture challenge to the New York law would succeed. The Alaska version of Megan's Law not only requires sex offenders to register with the authorities but also reqUIres that their photographs and other identifying information be placed on the Internet. Offenders who were convicted before the law was enacted challenged it on expOJ/fatto grounds. The expostjatta clause of the constitution prohibits the imposition of ne\v punishnlcnts on persons who were convicted prior to the enactuaent of the punishment. In Smith, et at, v. Doe, et. '11., _U.S.~ 123 S.Ct. 1140 (2003) the Court rejected the plaintiffs' argument. The dispositive question, according to the Court, was whether the legislature intended to impose an additional punishment on sex offenders or whether it merely intended to enact a non-punitive, civil regulatory scheme. Upon analysis, the Court found that there was nothing in the statute to indicate that the legislature sought to create anything other than a civil scheme designed to protect the public from harm. New Y01·k's Megan's Law has already survived a similar attack. See, Doe v. Pataki, 120 P.3d 1263 (2d. Cir. 1997). The Connecticut version ofMegan's Law requires persons convicted of sex offenses to register with the Department of Public Safety (DPS) when released and requires DPS to post a sex offender registry containing the registrants' names, addresses, photographs and descriptions on the Internet and to make the registry available to the public in certain state offices. The law was challenged as violating the due process clause of the 14'" Amendment, in that it did not provide registrants with a pre-deprivation hearing to determine whether they were likely to be "currently dangerous." The Second Circuit agreed, holding that the law deprived registered sex offenders of a "liberty intel'est"without a due process hearing. A similar challenge to New York's law had previously succeeded 'Uld had resulted in the Legislature amending the law to provide additional due process protections to offenders in risk level classitlcation hearings. See, Doe v. Pataki, 3. P.supp.2d 456 (S.DN.Y. 1998). In Connecticut Dept. of Public Safety v. Doc, _ U.S. _, 123 S.Ct. 1160 (2003), however, the Courtuphcld tlle Connecticut statute, finding that a mere injury to one's reputation does not constitute a deprivation of a liberty interest. This makes it likely that the additional due process protections added to the NLw York statute after Doe would not currently be found to be required by the federal constitution. Pro Se is printed and distributed f."ee to New York State prison law libraries through a generous grant from the New York State Bar Foundation. EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ. CONTRIBUTOR:TOM TERRIZZI, ESQ. COPY EDITOR: ALETA ALBERT PRODUCTION: DAVID BOISVERT EDITORIAL BOARD: TOM TERRIZZI, ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ