BILL NUMBER: S6419

SPONSOR: SEPULVEDA
 
TITLE OF BILL:

An act to amend the correction law, in relation to preventing retali-
ation against incarcerated individuals following the filing of a griev-
ance

 
PURPOSE:

This bill aims to decrease occurrences of prison disciplinary charges
which are in retaliation for an incarcerated individual's complaints
about staff misconduct or conditions. The bill requires that when an
individual has filed a grievance about staff, any disciplinary charges
involving the same staff members that are within 180 days of the griev-
ance be supported by more than oral or written statements.

 
SUMMARY OF PROVISIONS:

Section 1: Amends section 137 of the correction law by adding a new
subdivision 7, establishing that if an incarcerated individual files a
              

grievance against a department officer or employee and subsequently
receives a misbehavior report within 180 days, they cannot be found
guilty of a violation at an evidentiary or disciplinary hearing based
solely on the oral or written statement of the officer or employee named
in the grievance or any other department staff present at the incident.

 
JUSTIFICATION:

This bill will require a more rigorous standard of proof for discipli-
nary charges imposed within 180 days of a staff grievance and involving
the same personnel subject to the grievance. By this bill, such charges
can only be imposed if there is actual evidence of the misconduct beyond
staff member's oral or written statements.

Under current law, virtually any oral or written statement by DOCCS
staff that they observed an incarcerated person engage in misbehavior,
or that they otherwise observed misbehavior, such as by observing
contraband in an area under an individual's control, is sufficient
evidence to find the incarcerated person guilty. See, Vega v. Smith, 66
N.Y.2d 130 (1985); Walton v. Goord, 290 A.D.2d 764 (3rd Dep't 2002);
Ratliff v. Goord, 13 A.D.3d 772 (3rd Dep't 2004).

The U.S. Supreme Court has acknowledged the bias inherent in the prison
disciplinary system. See, Cleavinger v. Saxner, 474 U.S. 193, 204; "The
credibility determination they make often is one between a co-worker and
an inmate. They thus are under obvious pressure to resolve a discipli-
nary dispute in favor of the institution and their fellow employee. See
Ponte v. Real, 471 U.S. 491, 513, 105 S.Ct.  2192, 2204-2205, (1985)
(dissenting opinion). It is the old situational problem of the relation-
ship between the keeper and the kept, a relationship that hardly is
conducive to a truly adjudicatory performance." This adjudicatory imbal-
ance is of special concern in disciplinary hearings after an incarcerat-
ed individual has filed a prison grievance about officer misconduct.

 
LEGISLATIVE HISTORY:

None.
 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.