Erie County Penitentiary Variance Request 2009

• Topics: Conditions of Confinement

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Name of Facility: Erie County Penitentiary
New:

Variance #97-V-OI
Renewal: X

Relief from Standard # 7040.3

Application by: Sheriff Howard

Beds at standard:

Variance Beds Requested This Variance: 8

888

Total Variance Beds this Facility: 53

Current Population: 888

Date rec.: 'II/I 0/09
95.4%

11/12/09

Last Approved: September 15,2009 Length of Approval: 60 days

Expiration: 12/1/09

Recommendation:_

By: D. Clark

Length Recommended:_

SUMMARY OF VARIANCE REQUEST

SheriffHoward is requesting an extension ofthis variance which authorizes the penitentiary
to house an additional eight (8) inmates in K-Unit for a total of 60.
RECOMMENDED CONDITIONS

At a Commission Meeting held on November 17,2009 this variance will be presented before
the Commission. Commission staff recommends that if this variance is approved, the following
conditions be included in the approval letter regarding this variance.
(I)

The Erie County Penitentiary is authorized to house an additional eight (8)
inmates in K-Unit for a total of 60.

(2)

Inmates housed in the above-noted area must be provided with a bunk, cot, or
at a minimum a "boat"to be used as a bed.

(3)

"Active supervision" must be provided on a 24-hour basis, pursuant to
9NYCRR Section 7003.2(c).

(4)

Inmates housed in the above-noted area receive the same services and
programs as the general population.

(5)

The county shall not exceed the rated MFC for the purpose of boarding
inmates. The Commission does not approve variances for the purpose of
generating revenue.

(6)

The county shall continue to complete the Commission's "Daily Count Sheet"
and fax it to this office on a daily basis.

(7)

The facility shall ensure that the ratio showers prescribed by Section
7040.5(c)(2) are maintained in each variance housing area. Facility staff
working in variance housing areas shall inspect and document in the housing
log, the number of operable showers in the housing area.

(8)

Erie County shall provide a monthly report on its progress towards
creating a unified classification system for both facilities.

HISTORY
2009

Recommendation
Action Taken
Leno-th ofYariance
Con'aitions, if changed

2009

Recommendation
Action Taken
Len§thofVariance
Con itions, if changed

IJIII't

8/09 Meeting

Recommendation
Action Taken
Lenoth of Variance
Con'aitions, if changed

'J!!I'at

7/09 Meeting

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

14R
rove}!!!

6/09 Meeting

2009

Recommendation
Action Taken
Len~ ofYariance
Con itions, if changed

~t
5/09 Meeting
3 days

2009

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

IAJ'RrovePat

2009

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

2009

Recommendation
Action Taken
Len§\h of Variance
Con itions, if changed

2008

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

2008

Recommendation
Action Taken
Len§th of Variance
Con itions, if cha~ged

3 days

3 Gays

3 days

4/09 Meeting

'J!!I'
3 days

at 3/09 Meeting

~t
1/21 Meeting
6 days

"'at
6 days

I!I
6 days

11118 Meeting

at 9/16 Meeting

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

lIIJI!Iat

7/08 Meeting

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

"'at

5/08 Meeting

6 days

2008

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

2008

Recommendation
Action Taken
Leno-th ofYariance
Con'aitions, if changed

"'at

2/08 Meeting

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

'J!!Iat

1/08 Meeting

2008

, . at 3/08 Meeting
6 days

3 days

FACILITY SITE VISIT
Last reviewedfor this variance: November, 2009

By: D.Clark, E. Purdy

Outstanding issues:
Numerous- see staff write up for details.

ANY OPEN Minimum Standard Violations:
See staff write up for details.

CONSTRUCTIONIRENOVATION PLANS
Construction progress, if building additional capacity.
Yankee Compound's MFC was set at 90 and is now reflected on the JDPRS.
OTHER VARIANCES IN EFFECT
Variance # 97-V-25: Authorizes the penitentiary to house 45 inmates in various areas ofthe facility.

MISCELLANEOUS INFORMATION

Commission staff started and completed a cycle evaluation on November 5-9, 2007 and
January 29-February 1,2008 and April 17, 2008. Follow up conducted October 2008.
Evaluation started in May 2009. Commission staff conducted a follow up visit on
November 4-6, 2009
ANY OPEN Minimum Standard Violations:
CORRECTIONAL FACILITY:
I. Overcrowding - County refuses to board out inmates, which causes the
correctional facility to run at capacity. The facility has not violated the capacity
for individual housing areas.in over 6 months.
.. "

;~,U~<::;"

The Erie County Jail M1l6~~\ll,llen~J?i:V'i.si.o.nhas experienced overcrowding since
1997, they completed addiiilinafbedsvace in 2000 and continue to experience
overcrowding with peak populations in the summer. However the facility's
population did not peak during t~u~mm~~ of2009.
"',
2. C lassifiIcation.
'... , . . . . .... J •
• There is no unified classification system. (OPEN since 2002)
• Policy and procedure needs and annual review. OPEN
• Need an objective instrument forDoublecelling, Inmate workers, and
reclassification. OPEN
• The classification instrument needs to be updated to reflect the needs of
the iumate population. OPEN
• No coordination between Holding Center and Correctional Facility.
OPEN

•
•

Commission staffptovlded a 3 day technical assistance program for Erie
from June 2"4, 2009 '
After the technical assi'stliric'e, program Erie County Classification
staff (Captain Hartni;m) completed a comprehensive draft
unified classification Policy and Procedure. The tentative date
for implementatlon'was September 2009. Facility
Administration has not implemented the unified classification
system. OPEN

3. Maintenance -Facility has made significant improvements in addressing
maintenance issues. The roof is being replaced.
4. It should be noted that during the site visit the facility had no Ajax for
cleaning the facility. (new violation)
5. Unions- The courts recently ruled that supervision of inmates can be conducted
by deputies or teamsters and is not.based on the status of the inmate.
The Correctional FacilitYQPerateswithtwoseparate and distinct security work
groups. The Teamster (Deputies)represeQtatives supervise unsentenced inmates
and CSEA (Correction Officers) representatives supervise sentenced inmates.
Each union member is only '1CC,o)olllr~iJ~y,to the supervisors in their respective
union. Both unions' mernbersare'~ccountableto tlleChief and Superintendent of
the
Correctional Facility;
Majot"
op~iatrdnal i~consistencies.
.
.
:. ' :
';:,:"_.~L;'''''.<

The major operationdl i~:sries~~~ti~uetomagnifyat the. correctional facility
due to no supervision of correctional facility deputies. The facility still has no
Chief; the deputies are not responsible to the Corrections Captain. The
highest ranking authority at the correctional facility for deputies on the
afternoon shift, night shift, weekends and. holidays is a deputy sergeant.
OPEN
6. Food Service - Commission staff that the quantity of food being served to
inmates has improved. However, Commission staff found securit issues
pertaining to the kitchen,

Exercise - The faciIi~~ha~ch~i:igtldtheirpolicy regarding light rec and no
rec. If the physician determirie~j\i~tt\te inmate should not attend exercise or
should be placed on Iigltte*er'd~~if~l)n.tbeinmateacknowledges such in
. . . '.'. ',' :,.' . .
.
writing.
.,

I.,

j.;;

8. Security and Supervision - Commission staff continue to find unsecured doors
in areas that are supervised by deputies. All doors were secured during the
Commissions tours overa3 day period.
•

•

Prisoner PropertySt9rage (barrier) - The facility informed Commission
staff that theyare,,~w~iting,Bl,\ih:lings and Grounds to order materials and
construct a cage~no time,Hne was offered on the starting and completion of
this barrier~ ()PEN~incc '2006'
The Facility was notproyiding .active supervision

(OPEN)

13. Commission staff was inundated with inmate complaints from housing areas
supervised by deputies ie. Unable to obtain grievance forms, being locked in
for excessive time periods, lack of cleaning supplies.
Update on Capital Construction Project:
Yankee Building: The Yankee Compound project is complete.
Any Special Conditions whichshouldbe added to the Variance:
Commission should consid~rreqiJiditgWatthe JMD provide the necessary
resources to develop and iinplefuent:,a"uliifledclassification system.

Status: Draft developed, not implemented byJMD administration.
Justification for Why Variance should or should Not be Extended:
Justification for why the variance ShOlild be approved:
•
The JMD requires every possible variance beds in each facility to house
the inmate population because the county refuses to board out inmates.
•

Erie County Has hired a significant number of deputies and deputy
sergeants.

•

The county won the recent court case and can currently commingle
unsentenced and sentenced inmates.

Justification for why the variance,should Dot be approved:
•

Commission staff is ~o!1~5wedattl]econtinued failure of the Erie County Sheriff
Deputy supervisors}mdline.staffto observe the fundamental requirements
of proper security 'illid iillt1ate service delivery while assigned to housing'
areas controlled by deputies. Numerous violations pertaining to inmates
supervised by deplIties, 5\lIch geficiencies clearly continue to point to a
lack of effective supervisory and administrative oversight and
accountability ofhonsiJ;lgi 'lr!'~sis,ltp(;rvisedby deputies. Deputy staff
behaviors obsyrVeddl.\~iiJ,gtfj¢;fallow up visits continues to demonstrate
the administration'isJailtir~tQP'lanage those areas of the Correctional
Facility supervised by deputies.
• No unified classification system
• Continued Overcrowding since 1997.
• Two separate and distinct unions.
• Basic Minimum standard violations for inmates supervised by
deputies at theCF
• County refuses to board out inmates when necessary.
• The highest ranking official at the CF on off'shifts and weekends for
the deputies is a Sergeant.
\:""

COMMISSION STAFF REQQMMENDATIONS:

Reviewed by Regional Supervisor:~',"*+4-'*~.....==--~

Name of Facility:
New:

Erie County Penitentiary

Variance # 97-V-25
Renewal: X

Relieffrom Standard # 7040.3

Application by: Sheriff Howard

Beds at standard: 888

Beds Requested This Variance: 129

Total Variance Beds This Facility: 53

Date rec: 11/10/09

Current Population: 888

Last Approved: September 15,2009 Length of Approval: 60 days
Recommendation:_ Length Recommended: _

95.4% 11/12/09
Expiration: 12/1/09

By: D. Clark

SUMMARY OF VARIANCE REQUEST
Sheriff Howard is requesting an extension ofthis variance to add 129 beds to various housing
areas throughout the facility. At the February 2007 Commission Meeting, the Commission reduced
this variance to 45 variance beds.
RECOMMENDED CONDITIONS
At a Commission Meeting held on November 17,2009 this variance will be presented before
the Commission. If approved, the recommendations for this variance are as follows:
1)
The Erie County Penitentiary is authorized to house additional inmates in the
following areas:
Area

Capacity

Variance

Total

J-Dormitory

A-I Unit
A-2 Unit
C-l Unit
C-2 Unit

15
24
24
24

7
12
6
12

22
36
30
36

Total

2)
"Active supervision" shall be maintained in all housing areas in accordance with
the requirements of9NYCRR Section 70m.2(c).
3)
Inmates who are housed in the above-noted areas must be provided with a
bunk, cot, or at a minimum a "boat" to be used as a bed.
4)
Inmates housed in all of the above-noted areas receive the same services and
programs as the general population.

5)
Commission staff will continue to regularly monitor the effects ofthe double-celling
program on staff and inmates as well as the general operation of the facility.
6)
The facility will continue to maintain information on all double-cell inmates which
shall include, but is not limited to: (a) name and location of the inmate; (b) date of entrance
into and release from double-ceiling; and (c) reason for release. These records shall be made
available to Commission staff for review.
7)
The county will continue to implement its double-ceiling program according to the
double-ceiling plan submitted and approved by the Commission. Additionally, the county
shall advise the Commission of any substantive changes to the double-ceiling plan.
8)
The county shall not exceed the rated MFC for the purpose ofboarding inmates. The
Commission does not approve variances for the purpose of generating revenue.
9)
The county shall continue to complete the Commission's "Daily Count Sheet" and fax
it to this office on a daily basis.
10)
The facility shall ensure that the ratio showers prescribed by Section 7040.5(c)(2) are
maintained in each variance housing area. Facility staff working in varianced housing areas
shall inspect and document in the housing log, the number of operable showers in the
housing area.
II)
Erie County shall provide a monthly report on its progress towards creating a
unified classification system for both facilities.

HISTORY
Recommendation
Action Taken
Length of Variance

lIIJ!!Iat

2009

Recommendation
Action Taken
Length of Variance

~t
8/09 Meeting
3 Clays

2009

Recommendation
Action Taken

IIfl!!!!

2009

Length of Variance

6 Clays

3 Clays

9/09 Meeting

at 7/09 Meeting

2009

Recommendation
Action Taken
Lenoth of Variance
Con'tlitions, if changed

~tfp.rovedi
at 6/09 Meeting
3 Clays

2009

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

Atfp.~ovedlat
5/09 Meeting
3 Clays

2009

Recommendation
Action Taken
Len~th of Variance
Con itions, if changed

2009

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

2009

Recommendation
Action Taken
Lenoth of Variance
Con'tlitions, if changed

2008

Recommendation
Action Taken
Leo%th of Variance
Con itions, if changed

Atfp.rove&lat 4109 Meeting
3 Clays

~
at 3/09 Meeting
3 Clays
~t
1121/09 Meeting
6 Clays

IJ!!!
6 Clays

at 11/17/08 Meeting

2008

Recommendation
Action Taken
Lenoth of Variance
Con'tlitions, if changed

Atfp.~oved
at 9/16 Meeting
6 Clays

2008

Recommendation
Action Taken
Len~th of Variance
Con itions, if changed

~
at 7/08 Meeting
6 Clays

2008

Recommendation
Action Taken
Len§th of Variance
Con itions, if changed

2008

Recommendation
Action Taken
Leno-th ofYariance
Con'tlitions, if changed

~tfp.rovedlat
3/08 Meeting
6 Clays

2008

Recommendation
Action Taken
Lenath of Variance
Con'tlitions, if changed

~at
2/08 Meeting
3 Clays

2008

Recommendation
Action Taken
Lenath of Variance
Con'tlitions, if changed

~t
5/08 Meeting
6 Clays

~
1/08 Meeting
3 Clays
FACILITY SITE VISIT

Last reviewed/or this variance on:

November, 2009

By: D.Clark, E. Purdy

Outstanding issues:
Numerous- See Commission staff write up for details

ANY OPEN Minimum Standard Violations:
See Commission staff write up for details

Open violations that relate to the variance request:
See Commission staff write up for details

CONSTRUCTIONIRENOVATION PLANS

Construction progress, if building additional capacity.
Yankee Compound's MFC was set at 90 and is now reflected on the JDPRS.

OTHER VARIANCES IN EFFECT
Variance # 97-V-01 : This variance authorizes the county to house an additional 8 inmates in K Unit.

MISCELLANEOUS INFORMATION

All site visit information must have been done within 90-days prior to presentation at the
Commission Meeting.
The following information is required for variance write-ups:
Facility: Erie County Correctional Facility
Variance #: #: 97-V-25 Request for tbe following bousing variances:
A-I Segregation Lower Common; (Correction Officers) A-I Segregation Upper
Common, (Correction Officers)'AIpbal Unit, (Correction Officers) Alpba 2 Unit,
(Correction Officers) Cbarlie-I Unit, (Deputies) Cbarilie-2 Unit, (Correction
Officers), Juliet Dorm (Deputies)
Date of Site Visit: November 2009
Name of Person Wbo Conducted tbe Last Site Visit to Facility:
Erin Purdy, Deborah Clark
Date of Last Cycle Visit tbat Standard violations were identified:
February 27-March 3, March 20-21, September 12, 2007 October 4-5,2007, November
5-9,2007, January 29-Feburary 1,2008, April 17,2008.
Commission staff started and completed a cycle evaluation on November 5-9, 2007 and
January 29-February 1,2008 and April 17, 2008. Follow up conducted October 2008.
Evaluation started in May 2009. Commission staff conducted a follow up visit on
November 4-6, 2009
.
ANY OPEN Minimum Stiuill~iaViol~iiolls:
CORRECTIONAL FACtC1TY':": ,;"',c'," ','"
.' "{' r'~-rl ,:./'f<.- (J ,i~:/t "', -~'c

1. Overcrowding - County r~fuses boird out inmates. The county has not
violated the capacity for individual housing areas in over 6 months.

The Erie County Jail Management Division ha,s experienced overcrowding since
1997, they completed additiollfll be4 sPflFein 2000 and continue to experience
overcrowding with peak populatiaris'in the Summer. However the facility's
population did not peak during the summer of 2009.
2. Classification
• There is no unified classification system. (OPEN since 2002)
• Policy and procedure needs and annual review. OPEN
• Need an objective instrument for Doublecelling, Inmate workers, and
reclassification. OPEN
• The classification instrument needs to be updated to reflect the needs of
the inmate population. OPEN

•

coordinationbetween.I;Ipld~ngCenterand

Correctional Facility.

OPEN
Connnission staffProvided aJ 'day teChniccl assistance program for Erie
from June 2-4, 2009
• After the technical assistance program Erie County Classification
staff (Captain Hartman) completed a comprehensive draft
unified classification Policy and Procedure. The tentative date
for implementation was September 2009. Facili,ty
Administration has not implemented the unified classification
system. OPEN
1. Maintenance -Facility has made significant improvements in addressing
maintenance issues. The ·roof is being replaced.
•

2. It should be noted thatd ll ting thesite visit the facility had no Ajax for
cleaning the facilityi.:(nc:~vioilltion)·
3. Unions- The courts recently ruled that supervision of inmates can be conducted
by deputies or teamsters and is not based on the status of the inmate.
The Correctional Facilityoperat\lswitlH~o separate and distinct security work
groups. The Teamster (Deputies) repres6ritatives supervise unsentenced inmates
and CSEA (Correction offjcers)r<;:preseptatives supervise sentenced inmates.
Each union member is only accoUlltableto the supervisors in their respective
union. Both unions' members are accountable to the Chief and Superintendent of
the Correctional Facility. Major operational inconsistencies.
The major operational issues continue to magnifY at the corre.ctional facility
due to no supervisiou of correctional facility deputies. The facility still has no
Chief; the deputies are not responsible to the Corrections Captain. The
highest ranking imthority atthe correctional facility for deputies on the
afternoon shift, night shift, weekends and holidays is a deputy sergeant.
OPEN
4.

~ood Servic,e - COTIlmi,~s'ts~.s~¥In~iitth~ q~antity offood being, se~ed to
Inmates has Improved:' .!'lpwever, Connnlsslon staff found secunt Issues
pertainin to the kitchen,

" ,,:.l:

Exercise - The facilitY hasch~u~edtheir policy regarding light rec and no
rec. If the physician deiermin~sthlltthe'inmate should not attend exercise or
should be placed on light exercise, than the inmate acknowledges such in
writing.

6. Security and Supervision - Commission staff continue to find unsecured doors
in areas that are supervised by deputies. All doors were secured during the
Commissions tours over a 3 day period.

•

:; !:·:.(:i:~;j C ~~. ,', '" ~-l
-',' ;':,< '{\;f7.f/- -_:;~:_~ :.,~,:;i:'i' ',,;.',';:,'

Prisoner PropertYJ8furage '(barrier)" The facility informed Commission
staff that they are awaiting Buildings and Grounds to order materials and
construct a cage, no time line'was offered on the starting and completion of
this barrier. OPEN since 2006'
The Facility was not providil\g,active supervision
(QPEN)

7. The Commission in previous repbrlshastold the facility that in many of the
housing units at the correctional facility only one staff member per shift, per
housing unit is needed pursuant to the staffing analysis. ' The facility
administration has told Commission staff that Sheriff Howard feels this is a safety
issue and two staff is assigned to each housing unit during the day and afternoon.
While touring the facility Commission staff found that correction officers do not
leave their post unless relieved. However, Deputies consistently leave the
housing post without a proper relief, leaving one officer on the unit. It is obvious
by this practice that the deputies do not feel that having one officer on the housing
unit is a safety issue. OPEN
8.

Commission stafff()Ill)~,that~ta.ff '. ' ,
in order to
provide active sup~tYi~~~~i~,~rH\ji';y;i!1gtheir posts, and violating the
requirements of acdves~pel"}'jsi?ll()utsidethe housing unit. OPEN

9. Commission stafffound thats9,f~t.hisyear 100 grievances have been
submitted for consideration. )\1;lPyof~b,e grievances were accepted however
no corrective action ,was tllkf.lll,. ~~aiH'()llally Commission staff found an
incidf.lnt where an inlllat~ w#r~t~lh~tedagainstfor, filing a grievance.'
10. Commission stafffound that inmates in deputy housing areas were being
locked in for unjustified extended periods of time.
11. Commission staff was inundated with inmate complaints from housing areas
supf.lrvised by deputies ie. Unable to obtain grievance forms, being locked in
for excessive timf.l periods, lack of cleaning supplies.
Update on Capital Construction Project:
Yankee Building: The Yankee Compound project is complete.
An S ecial Conditionswhi·':;~~~iiid'1{al.Idedtothe Variance:
Commission should consid'er·riliuirri{~·ttill'ttp.e.JMDprovidf.l the necessary
resourcf.lS to develop and implenlent unified classification system. (This
requirement was not in the last approval letter sent to thefacility)

•

;;,

Status: Draft developed, not implemented by JMD administration.
Justification for Why Variance should or should Not be Extended:
Justification for why the variance should be approved:
•
The JMD requires every possible variance beds in each facility to house
the inmate population because the county refuses to board out inmates.

•

Erie County Has hired asignificant number of deputies and deputy
sergeants.

•

The countYW~!"Ic!~\l,'fP¢llJjlj.~QVfi:Qa.$e and can currently commingle
unsentencet!:'luh.&iseritencedinmates.

'.. "';. ~:.,:>:.:,_:<,

~.,:> : ~ ".::' I:' ".:,'"

.:;

Justification for why the variance should.notbe approved:
•

Commission staff is concerned.at the c\JIlHnued failure of the Erie County Sheriff
Deputy supervisors andlinest~fftoobserve the fundamental requirements
of proper security and inmate service delivery while assigned to housing
areas controlled by deputies. Numerous violations pertaining to inmates
supervised by deputies. Such deficiencies clearly continue to point to a
lack of effective supervisory and administrative oversight and
accountability of housing areas supervised by deputies. Deputy staff
behaviors observed during the follow up visits continues to demonstrate
the administration's failure to manage those areas of the Correctional
Facility supervised by deputies.
• No unified classification system
• Continued Overcrowding since 1997.
• Two separate and distinct unions.
• Basic Minimumstanda~d violations for inmates supervised by
deputies atth1t;i~~!it!,,,.#.\nj,.¢}!Sf' ii"

: ~~oi::io::f:::t;~~::~!~~;~~II"iIiiiiiiiii'
•

•
•
•
•
•
•

Facility is not maintainlngthe.required double celling documentation,
onsite technical assistance provided.
The highest rankingoffidlll aMhe :CF on off shifts and weekends for
the deputies is a Sergeant;:, i;
The facility is IlOfmltintltiningthe required double celling
documentation.
. Violations of active supervision of inmates outside the housing units.
Violations of active supervision in
Documentation violations in deJluty housing unit logs including Juliet.
Numerous inmate complaints from inmates in housing units
supervised by deputies, numerous medical complaints and grievances
that appears to be valid. .

•

Most of the valid grievances that were accepted by the grievance
coordinator J:1oll,ve"notclianged the facility's unaccepted practices.
; '~,<:,:;;:,.\ .;;~',:'-J ,'~ i

,~,

COMMISSION STAFF RECoMMENDATIONS:

Reviewed by Regional

Supervisor:~~-,,-,-,-,-~-----,,--_

Date: