STATE OF NEW YORK

DEPARTMENT OF CORRECTIONAL SERVICES

THE HARRIMAN STATE CAMPUS - BUILDING 2
1220 WASHINGTON AVENUE
ALBANY, N,Y, 12226-2050

BRIAN FISCHER
COMMISSIONER

May 10, 2010

Mr. Robert Hinchman

Senior Counsel
Office of Legal Policy, Department of Justice
950 Pennsylvania Avenue, NW., Room 4252
Washington, DC 20530

Via Electronic Submission through

http://www.regulations,gov

Re: Docket No. OAG-131

Comments Regarding the Advance Notice of Proposed Rulemaking regarding
the Proposed National Standards for the Detection, Prevention, Reduction and
Punishment of Prison Rape

Dear Mr. Hinchrnan:

I thank you for this opportunity to comment on the National Prison Rape Elimination
Commission's (Commission or NPREC) proposed national standards. I believe that
our previous comments to the Commission on the first draft standards contributed to
significant improvements. I also volunteered' my agency to participate in the cost
analysis commissioned by the. Department of Justice (DOJ). My staff and I provided
Booz Allen Hamilton with a great deal of information which I trust will assist DOJ in its
analysis of the potential fiscal implications of the proposed standards. I am once
again grateful that my staff and I have the opportunity to lend our experience and
expertise to this process. I am hopeful that our continued efforts to end sexual abuse
of inmates in New York's prisons and to shape the national standards will lead to the
development of meaningful, effective and responsible regulations.

It is a fundamental right of all incarcerated persons to be free of the threat of physical

violence or abuse of any type, including sexual abuse. In 1996, the New York State
Department of Correctional Services (DOCS), was instrumental in passage of New
York State Penal Law § 130.05, which states, in essence, that any person under
custody in a New York State correctional facility cannot consent to any sex act with
an employee who performs professional duties in a state correctional facility
consisting of providing custody, medical or mental health services, counseling
services, educational programs, or vocational training for inmates. In 2007,
legislation was passed and signed into law expanding the definition of employee to
 May 10, 2010
Page 2

include any person, including a volunteer or contract employee, providing direct

services to inmates. DOCS is now seeking an expansion of the law to criminalize
sexual contact between any DOCS employee, regardless of what duties he or she
performs, and an inmate.

The National Prison Rape Elimination Commission had the opportunity to promulgate
proposed standards that could be easily implemented and clearly define what the
Commission felt were the best practices in any given area. Unfortunately, the
proposed standards are based more on academic research than on operational
practicalities and will likely contribute to many more years of debate and litigation. I
fear that the format of the proposed standards will leave so many unanswered
questions that they will do little if anything to enhance inmate safety.

The "National Prison Rape Reduction Commission" was established by Section 7 of

the Prison Rape Elimination Act (PREA), 42 USC § 15606. Paragraph (e) empowers
. the Commission to "provide the Attorney General and the Secretary of Health and
Human Services with recommended national standards for enhancing the detection,
prevention, reduction, and punishment of prison rape." This authority is limited,
however, in that "[t]he Commission shall not propose .a recommended standard that
would impose SUbstantial additional costs compared to the costs presently expended
by Federal, State, and local prison authorities." 42 USC § 15606(e)(3).

Regrettably, it is apparent that the Commission did not heed this limitation as the
proposed standards would greatly increase the costs to this and virtually any other
correctional department in the nation. Full implementation of the proposed standards
will cost the State and many other jurisdictions many millions of dollars at a time
when most states cannot afford it. This is clearly a violation of the limitation imposed
on the Commission.

The following comments address the specific standards proposed by the National
Prison Rape Elimination Commission.

Introduction:

It is noted that the introduction to the proposed standards clarifies the organization of
the proposed standards: each includes a mandatory standard statement followed by
a non-mandatory assessment checklist and non-mandatory guidance. The
Commission's use of this non-traditional regulation format is likely to create
significant disagreement as to what each agency is required to do to meet the
national standards. To the extent that the assessment checklists are intended to
provide "a tool for agencies and facilities to self-assess and track their progress
toward meeting the standards" and to be used as a starting point for external audits,
the checklists should be clarified to indicate that they are non-mandatory and
intended to serve as guidance only. The language in the introduction is insufficient in
thi.s regard.
May 10, 2010
Page 3

Despite introductory comments recognizing that the agency heads retain flexibility in
the development of appropriate protocols, many of the proposed standards mandate
unfunded specifics, do not allow for discretionary implementation towards
compliance, and fail to consider differences and diversity of state statutes, collective
bargaining agreements, budgetary constraints, staffing and population issues, etc.
Many of the standards, though well meaning in spirit, constrict state and local
governments with dictated minutiae and specify mandates, while little or no funding is
available to assist states in complying with these mandates. The potential loss of
federal funding is insignificant in comparison to the cost of implementing the
proposed standards as written .. In the absence of federal grants, few if any agencies
will be able to meet these mandates.

I recommend eliminating or significantly modifying the requirement for audits of

compliance with the standards. First, such a requirement is not called for by PRE'A.
Second, PREA provides for alternative methods of .ensuring compliance. Under
PREA, 42 USC § 15607, a State will risk the loss of federal funds if the chief
executive of the State is not able to submit to the Attorney General either a
certification that the State has adopted, and is in full compliance with, the national
standards or an assurance that not less than 5 percent of certain federal funds shall
be used for the purpose of enabling the State to adopt, and achieve full compliance
with, those national standards. Under 42 USC § 15608, an accreditation
organization responsible for the accreditation of Federal, State, local or private
prisons, jails or other penal facilities must adopt accreditation standards consistent
with the national standards. The requirement that States engage auditors at a
significant cost every three years is not required by the enabling legislation.

Furthermore, the audit requirement the NPREC would impose creates an

insurmountable burden. The proposed standards do not distinguish between
mandatory and noncmandatory requirements. To the contrary, the introduction
provides that each standard statement contains mandatory requirements. This
requirement of 100% compliance is a goal that is likely unachievable.

Standards

PP-1 Zero tolerance of sexual abuse: The glossary definition of "PREA coordinator"
requires that this position be "a senior-level position that reports directly to the
agency head." The definition expands what is required under PP-1 by imposing a
requirement that the PREA Coordinator report directly to the agency head. In the
DOCS' hierarchy, a Deputy Commissioner is responsible for reporting directly to the
Commissioner on a wide range of issues within a broad subject matter. An individual
high-ranking official tasked with responsibility for one subject matter, no matter how
significant, would typically be a Director or Assistant Commissioner. Deputy
Commissioners report directly to the Commissioner while a Director or Assistant
Commissioner would report to a Deputy Commissioner. Based upon the definition's
May 10, 2010
Page 4

requirement that the PREA Coordinator is a senior-level position that reports directly
to the agency head, DOCS would be required to name a Deputy Commissioner as
the PREA Coordinator. Although the PREA Coordinator should be identified as a
senior-level position, I recommend revising the glossary definition of PREA
Coordinator to remove the requirement that the position report directly to the agency
head.

PP-4 Limits to cross-gender viewing and searches: I urge DOJ to carefully consider
how the adoption of a significant restriction on pat down searches will impact this
most basic of all security practices. The proposed standard will have an
extraordinary cost impact on DOCS by requiring the creation of additional gender
specific posts for the purpose of conducting same gender pat down searches.
Furthermore, even with significant expenditures, it is unlikely that DOCS will be able
to meet this standard because DOCS' ability to create additional gender specific
posts has been severely constrained by the courts. It is also unlikely that DOCS can
recruit sufficient numbers of female correction officers to work in female correctional
facilities, or provide sufficient incentives for female correction officers currently
working in male facilities to voluntarily transfer to a female correctional facility.

Rulings following lawsuits and administrative proceedings brought by female

offenders, female officers and male officers have forced DOCS to be very sensitive to
the 'Right to Work' labor concept, including how it impacts on who may bid for a
security post. As an agency, DOCS recognizes that it must not discriminate based
upon the gender of its correction officers with respect to the terms and conditions of
employment, job assignments, overtime and seniority rights. DOCS has been
required to defend various challenges raising issues related to the gender speCific
assignments of staff including federal litigation such as Forts v. Ward, 621 F.2d 1210
(1980) and administrative proceedings such as New York State Correctional Officers
and Police Benevolent Association, Inc. (Class Action - Albion Correctional Facility)
v. State of New York (Department of Correctional Services - Albion Correctional
Facility)(2005). Any attempt to increase the number of gender specific posts will
likely result in further costly litigation challenging such designations.

In most facilities, local agreements have allowed us to establish limited gender

specific posts, but primarily in locations where an offender's naked body is exposed.
As noted, DOCS has met with significant resistance when we have sought to
establish gender specific posts in other areas or for the specific purpose of
conducting frisks. In most cases, posts are filled using a seniority based bid system
without regard to gender.

Following the settlement of a class-action lawsuit, DOCS adopted a policy in our

female facilities limiting when and how a male security staff member can conduct a
cross-gender pat down. Under this policy, a male officer cannot perform a non-
emergency pat down search upon any female inmatewho has been issued a Cross
Gender Pat Frisk Exemption. Typically, such an exemption would be issued
May 10, 2010
Page 5

following a determination that the inmate suffers from post-traumatic stress disorder
because of a history of sexual abuse. Furthermore, when a male officer conducts a
pat down search on a female inmate, the search is performed in a less intrusive
manner than when such a search is performed by a female officer.

With respect to male inmates, cross-gender pat downs are only limited for religious
reasons. These polices are driven by State and Federal equal opportunity
employment laws, the labor market, and union concems that both limit DOCS' ability
to have gender specific posts and to assign staff to specific facilities.

Male inmates rarely complain about cross-gender pat down searches, absent a
religious objection. This may be a rare instance where the final national standard
must recognize gender differences. Based upon DOCS' experience, these modified
pat down search procedures have significantly reduced complaints in this area.

I urge DOJ to consider less-restrictive alternatives to the proposed standard. The

final standard should recognize that the agency must provide a means by which
individual inmates can be exempted from non-emergency cross-gender pat down
searches either due to a history of sexual abuse by a person of the opposite gender
or for religious reasons. The standard could also require the agency to place limits
on how male security staff conduct non-emergency cross-gender pat down searches
of female inmates. Further limitations will impose a significant cost impact while
having little if any impact on efforts to prevent sexual abuse.

PP-6 Hiring and promotion decisions: This standard. should be re-written to clarify
that "the agency does not hire or promote anyone who has been convicted of
engaging in sexual abuse in an institutional setting or who has engaged in sexual
activity in the community facilitated by force, threat of force, or coercion." As
presently drafted, the standard is unclear.

With respect to criminal background checks, DOCS urges removal of the requirement
for criminal background checks for employees being considered for promotion or, at a
minimum, making this a non-mandatory standard for those agencies that do not have
current criminal history information regarding employees.

DOCS currently conducts criminal background checks on all new hires (including
contract employees and volunteers) and has establishe.d a link with the New York
State Division of Criminal Justice Services, which informs DOCS if an agency
employee is arrested for any type of crime for the duration of his/her employment with
DOCS. Furthermore, current State law contains significant limitations on when a
State employee may be subjected to a criminal history record check in connection
with a promotion or transfer to another civil service competitive class position.
Current State law would prohibit DOCS from being fully compliant with this proposed
standard despite that fact that DOCS current process results in the agency having
May 10,2010
Page 6

information equivalent to a current criminal history report concerning all of its

employees.

PP-7 Assessment and use of. monitoring technology: The proposed standard will
have an extraordinary cost impact on DOCS. This standard initially appears to be
reasonable in that it stresses the need to assess, at least annually, the feasibility of
and need for new or additional monitoring technology. However, in the case of New
York's prisons, it is important to understand that surveillance monitoring in many of
our facilities involves complicated camera systems. These camera systems, while
effective for detecting sexual misconduct, serve a variety of security purposes. Such
systems must be designed with all of these purposes in mind, and must include as
much coverage as feasible to address the variety of security needs. Whereas a .
camera placed in a store room or other closed area may be effective to prevent
sexually abusive behavior from occurring within that area, a camera in the open area
outside that room will monitor the activities of both staff and inmates and will satisfy a
wider array of needs.

It is also important to note that once a camera system is installed, it becomes an

arduous task to add cameras to the system. Annual assessments specific to the
prevention of sexual abuse may identify specific areas where additional cameras
would help. However, until such time as an upgrade of the facility's existing system
is done, it would be cost prohibitive at a minimum, if. not completely impossible, to
add camera coverage to address the identified gaps. If it is determined that a
camera might help reduce sexually abusive behavior in a particular location where
such coverage was not previously provided, a full system redesign would be required
to integrate the new camera or cameras into the existing system.

In light of the proposed standard's emphasis on the use of video monitoring systems,
it appears that the only way to ensure compliance with this standard as written is to
provide full video surveillance at all of our medium and maximum security facilities.
We estimate the cost of doing so at over $600 million, plus annual maintenance.costs
of $1.5 to $2 million.

An alternative approach would be to develop a standard that encourages agencies to

constantly assess and update their use of technology, thus reducing the emphasis in
the Commission's proposed standard on the current use of video monitoring systems.
For example: "When installing or updating a video monitoring system, electronic
surveillance system, or other monitoring technology, the facility/agency considers
past incidents of sexual abuse and whether design changes or enhancements may
aid in the prevention of similar sexual abuse incidents."

RP-1 Evidence protocol and forensic medical exams: The Department of Justice
shOUld seriously consider the implications of the proposed standard's requirement
that the facility makes available a victim advocate to accompany the victim through
the medical exam process. The NPREC discussion following this proposed standard
May 10, 2010
Page 7

indicates "When possible, it is considered best practice to transport victims to outside

health care providers for forensic medical exams to avoid any conflict or appearance
of conflict of interest regarding potential evidence or treatment of the victim." DOCS
uses community hospital emergency rooms for all such forensic medical
examinations. Both the 2004 U.S. Department of Justice's Office on Violence
Against Women publication "A National Protocol for Sexual Assault Medical Forensic
Examinations, Adults/Adolescents" and State of New. York Department of Health
"Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault" from
November 2004 stress the need for inclusion of a victim advocate during the forensic
examination process. Because hospitals are required to contact a victim advocate
under the referenced National Protocol, and in New York under Public Health Law §
2805-i (1 )(b) \ the facility should not also be charged with the duty of making a victim
advocate available during the forensic medical exam process. Allowing the hospital
to follow its established procedures without the addition of special requirements will
minimize confusion. .

RP-2 Agreements with outside public entities and community service providers: The
proposed standards put a great deal of emphasis on efforts to enter into memoranda
of understanding (MOUs), and further to maintain documentation of such efforts.
This standard, which sets forth a requirement that the agency. maintain MOUsin
furtherance of three substantive standards, is unnecessary.

Regulating the process by which agencies meet certain standards or goals

unnecessarily complicates the standards. Further, regulating such minutia creates a
likelihood that an agency will fail to be compliant with the standards even if such
agency satisfies the substantive requirements of the standard.

DOCS' inmates have at their disposal a number of outside public entities that
routinely receive complaints of misconduct and forward such complaints to DOCS'
Office of the Inspector General. DOCS does not, however, maintain any MOUs in
connection with these relationships.

This standard also requires that the agency maintain MOUs with community service
providers to provide inmates with confidential emotional support services related to
sexual abuse and to help victims of sexual abuse during their transition from
incarceration to the community. The substantive standards (RE-3 and MM-3) provide'
for access and referral to existing services. fn order to satisfy this standard, the State
would be required to create such services with existing service providers, to the
extent such providers exists. DOCS would need to contract for emotional. support
services with sexual assault support organizations in the 34 Counties in which DOCS
1 New York Public Health Law § 2805-i (1) provides "Every hospital providing treatm!)nt to alleged
victims of a. sexual offense shall be responsible for: ... (b) contacting a rape crisis or victim assistance
organization, if any, providing victim assistance to the geographic area served by that hospital to
establish the coordination of non-medical services to sexual offense victims who request such
coordination and services."
 May 10, 2010
Page 8

has prisons. DOCS would also need to contract for transitional services with
. organizations in all 62 counties to address the portion of the standard addressing the
provision of support services during the transition from incarceration to the
community, to the extent that such services exist. It is estimated that providing these
services would easily exceed $500,000 and would present a significant recurring
cost.

RP-3 Agreements with outside law enforcement agencies: DOCS has long-standing
working relationships with outside public agencies (New York State Police Bureau of
Criminal Investigation and the New York Police Department for State correctional
facilities located within New York City). We do not have written MOUs or written
agreements. Although RP-3 indicates that an agency does not need to enter into a
new agreement when the agency already has an eXisting long-standing policy
covering responsibilities for all criminal investigations, it is unclear whether our history
of working cooperatively with outside public agencies will be sufficient to meet the
standard without a written agreement. I am concerned that attempts to formalize the
parameters of our working relationships with the State Police and other agencies or
offices will be detrirnental to the effective relationships that have been cultivated.

I believe that the need for written agreements or MOUs is overemphasized. The
standard should merely require that the agency have a process in place to ensure
that allegations of sexual abuse are investigated by an agency with the legal
authority to conduct criminal investigations.

RP-4 Agreements with the prosecuting authority: DOCS has correctional facilities in
34 counties, each with an independently elected District Attorney. Although DOCS'
investigators have cultivated positive working relationships with many of the District
Attorneys or members of their staffs, it has .also been DOCS' experience that a
District Attorney is likely to base his or her decisions about a case on the evidence
and facts surrounding the incident. A MOU will have no impact on individual case
determinations.

Although DOCS has not entered into a written MOU with any of the State's District
Attorneys, New York Correction Law § 606 provides that the state shall pay all
reasonable costs for the prosecution of an inmate for an offense committed while an
inmate in a state correctional facility. This includes the payment of any expenses for
the defense where the inmate does not retain his or her own attorney. Therefore, the
District Attorney's fiscal concerns have been removed as an impediment to seeking
the prosecution of inmates for crimes committed with DOCS' correctional facilities.

It is our experience that most District Attorneys are sensitive to the concerns of
DOCS when it comes to the criminal prosecution of crimes committed within our
correctional facilities. I do neit believe that efforts to enter into MOUs with District
Attorney's in 34 counties, each of whom is subject to reelection every four years, is a
worthwhile endeavor that will have any meaningful impact.
May 10, 2010
Page 9

TR-1 Emplovee Training: All DOCS employees have received training in the
prevention of sexual abuse of inmates. However, current training does not meet the
proposed standard regarding "the dynamics of sexual abuse in confinement and the
common reaction of sexual abuse victims". DOCS strongly supports the need for
employee training to aid in combating the sexual abuse of inmates; however,
implementation of the standard, as written, will likely require training over and above
the 40-hour program already mandated by DOCS. The training contained in the 40-
hour program is dictated by other regulatory requirements and cannot be supplanted
by this additional training requirement. To provide for even a 4-hour mandatory
training module outside the scheduled 40-hour requirement, 21,000 security posts
would have to be covered by overtime, costing approximately $3.7 million.

TR-3 Inmate education: This proposed standard raises significant fiscal concems as
a result of the proposed requirement that the agency provide comprehensive
education to all inmates. DOCS presently provides each offender with an orientation
concerning sexual abuse prevention upon admission to the system and upon every
transfer to a new facility. This orientation includes written orientation materials, a
pamphlet, and information provided by facility staff. The orientation is handled
through counseling staff trained to provide the information. If the final PREA
standard requires a comprehensive education program, it is likely that DOCS will not
be able to incorporate the PREA curriculum into existing orientation programs. Thus,
DOCS Will be required to hire additional staff, likely five additional counselors at our
four Reception Centers plus one additional counselor at each of our 63 other
facilities. The estimated cost in salary and benefits for these 87 additional counselors
would be $7,308,000 in the first year alone. DOCS would likely produce new
educational materials including comprehensive video-based educational materials for
these counselors to utilize during the orientation process in order to comply with this
proposed standard as written. '

TR-5 Specialized training: Medical and mental health care: This proposed standard
dictates that all medical practitioners be trained in how to preserve physical evidence,
notwithstanding the stated best practice of transporting victims to outside health care
providers for forensic medical exams (see discussion under RP-1). DOCS' medical
providers do not collect physical evidence from victims of sexual abuse.

It is also noted that this proposed standard has a potentially huge fiscal impact. A
four hour training of DOCS' medical staff, costs approximately $105,000 using our
video-teleconference system. DOCS would also be required to provide specialized
training to approximately 400 New York State Office of Mental Health (OMH) mental
health care practitioners providing full or part-time care to inmates. This training
would likely take six to eight separate sessions. Annual specialized training sessions
would be required for new medical and mental health staff. Compliance with this
proposed standard would likely cost $650,000 - $850,000 plus $105,000 annually.
May 10, 2010
Page 10

In accordance with the proposed standard's glossary definitions, medical

practitioners who provide services on a contractual basis are also included within this
group of employees. DOCS utilizes approximately 200 contract primary care medical
providers. The discussion recognizes that some practitioners, who work at the facility
on an extremely short, ad hoc basis, would not be required to have this training.
However, the majority of DOCS' contracted primary care personnel would require
specialized training beyond the employee training called for under TR-1 in order to
satisfy this standard. DOC's estimates the initial cost of providing four hours of
specialized training to these contracted medical providers to be $41,600. In addition,
given the high turnover rate with contracted providers, we estimate that one-third of
the contracted medical providers leave and are replaced each year. Thus, annual
specialized training would be required at a cost of approximately $13,900.

I suggest that the vast majority of medical and mental health practitioners only
require the training provided for under TR-1. Specialized training should only be
required for those agencies that utilize agency medical staff to conduct forensic
medical examinations.

RE-1 Inmate reporting: The requirement that the facility provide at least one way for
inmates to report sexual abuse to an outside public entity or office not affiliated with
the agency that has agreed to receive reports is too specific. As noted, DOCS
satisfies the intent of this standard based upon its working relationship with the New
York State Police and other State agencies, however, no written MOU is in place
(see comments concerning RP-2 and RP-3). The second sentence of the proposed
standard should be revised to provide ''There is at least one way for inmates to report
the abuse to an outside public entity or office not affiliated with the agency."

RE-2 Exhaustion of administrative remedies: The proposed standard is

fundamentally flawed in that it seeks to implement a change to the exhaustion of
administrative remedies requirement set forth in the Prison Litigation Reform Act
(PLRA) without understanding the benefits of the exhaustion requirement. The
proposed standard is also flawed in that it has no time limitation and it allows third
party reports to satisfy the exhaustion requirement.

Exhaustion is a legal requirement under the Prison Litigation Reform Act. Most
claims are exhausted by an inmate through the inmate grievance program or by
utilizing an appeal mechanism specific to the incident that later becomes the subject
of the lawsuit (e.g., disciplinary matters are exhausted through the disciplinary appeal
process).

It must be emphasized that the PLRA exhaustion requirement serves an important

governmental function. The presentation of grievances to the agency permits a full
review of the issues facing the system. Information derived from grievances allows
the agency to correct individual complaints, but also to make changes where. policies
are unclear or have grown outdated.
May 10, 2010
Page 11

DOCS' Inmate Grievance Program ("IGP") was not developed as a hurdle to litigants.
The IGP was created in the aftermath of the 1971 Attica riot to provide inmates with a
non-violent means of resolving complaints about the conditions of their confinement.
The IGP allows any inmate personally affected by an issue - including systemic
issues. concerning department-wide policies and procedures - to file a forrnal
grievance. An inmate may appeal the facility level decisions to the Central Office
Review Committee ("CORC"). CORC includes representatives of the Deputy
Commissioner for Administrative Services, Deputy Commissioner and Counsel,
Deputy Commissioner for Correctional Facilities, Deputy Commissioner and Chief
Medical Officer, Deputy Commissioner for Program Services and a representative
from the Office of Diversity Management. CORC decisions have the effect of
directives and, where such decisions require remedial action, the action must be
implemented by the facility or office affected.

Each month, a report of the IGP is circulated among DOCS' Executive Team. Twice
each year the Director of Inmate Grievance compiles a report which is submitted to
the Governor and the Legislature. This report is so detailed that it was selected as
an exhibit to an Amicus Brief filed on behalf of 28 states in connection with. Porter v.
Nuss/e, 534 U.S. 516 (2002), one of the United States Supreme Court's leading
cases on the PLRA exhaustion requirement.. This analysis of trends identified
through the IGP helps DOCS identify issues of critical concern to our inmates on both
a facility specific and system-wide level.

If DOJ nonetheless determines that an exhaustion standard is to be adopted, I note

that the NPREC proposed standard on exhaustion is seriously flawed inasmuch as it
fails to appropriately emphasize the critical advantage of early reporting. In
particular, Standard RE-2 requires agency policy to provide that "A report of sexual
abuse triggers the 90-day exhaustion period regardless of the length of time that has
passed between the abuse and the report" (emphasis added). It is not the trigger on
the 90-day exhaustion period that causes concern, but the seeming invitation to
delay reporting.

The 90-day trigger is an effort to ensure an inmate's ability to bring an otherwise

timely federal action. However, the language of that standard, in essence
encourages a delay by failing to adequately encourage timely reporting. Such a
delay in reporting potentially creates an unacceptable outcome. If an allegation is not
reported in a timely fashion, then a prosecution or subsequent disciplinary action may
be jeopardized. The Standard should be clear that the earlier a report of rape or
sexual abuse is made, the earlier an investigation can be initiated and the chances of
establishing factual proof are increased significantly.

I certainly understand that a traumatized individual is going to be reluctant to

immediately report the incident. However, under the standard, an inmate could wait
two years or more in jurisdictions like New York to report a rape and then file a
May 10, 2010
Page 12

federal lawsuit within the three year statute of limitations. During that time, any
physical evidence, including semen, evidence of trauma or other medical evidence
will be lost. Witness's memories will fade. Surveillance video will be gone. Other
corroborating evidence will be much more difficult to locate.

Although the inmate will be able to bring a federal lawsuit, his or her ability to prove
the claims will be greatly compromised. Even if the civil suit is successful, the result
will be untenable. It is highly unlikely that the level of proof will be sufficient to
establish criminal charges against the offending employee, and it will be that much
more difficult to successfully bring disciplinary action to terminate the employee. We
could be faced with the dilemma of having an employee who has been found by a
jury in a federal lawsuit to have raped or sexually abused an inmate, and yet we have
insufficient evidence to either prosecute or terminate that employee.

The proposed standard also includes a requirement that an inmate is deemed to

have exhausted his or her administrative remedies with regard to a claim of sexual
abuse following a report made by a third party. This proposed standard ignores the
possibility that the third party may not have been acting on behalf of the alleged'
victim. Under this standard, a third party report will constitute exhaustiqn permitting
the alleged victim to proceed with litigation even if the alleged victim denied the
allegations and refused to cooperate in the investigation into those allegations.

There is wisdom in making specific modifications with respect to the exhaustion of

complaints of sexual abuse. However, any change must emphasize that a timely
report is essential for investigative purposes. I suggest that it would be appropriate
for a standard to provide that, in any case where a prisoner reported allegations of
sexual abuse by an identified staff member to any other staff member, he or she has
exhausted administrative remedies with respect to any claims against the accused
employee and other employees who may be liable in accordance with established
theories of liability.

RE-4 Third-party reporting: The second sentence of the proposed standard,

requiring that the facility provide written notification to both the third-party reporter
and the alleged victim of the outcome of the investigation is misguided and presents
a significant risk of harm. DOCS does not provide written notification of investigation
results to victims and other complainants. Written notification causes a potentially
dangerous situation. It is contrary to the procedures of the DOCS' Inspector
General's Office to introduce written documentation into the correctional facility that
may suggest that a particular person participated in an Inspector General's
investigation.

With respect to third-party complainants, I note that third-party complainants are

frequently not acting on behalf of a victim. DOCS has had many cases in which the
alleged victim denied being sexually abused, and where further investigation failed to
identify any evidence to substantiate the third-party complaint. In other cases,
May 10, 2010
Page 13

investigation has disclosed that the third-party complaint was made by another
inmate as a form of retaliation against the alleged victim and perpetrator.
Furthermore, it would be a violation of State law to provide any third-party
complainant with information tending to identify a victim of a sex offense.

OR-5 Agency protection against retaliation: The proposed standard provides too
much specific detail dictating how an agency will meet the goal of this standard.
DOCS suggests that the first sentence of the standard is sufficient. The rest of the
standard can be rewritten into the discussion as recommended methods by which an
agency may seek to protect inmates and staff from retaliation.

The specific requirement that, the agency actively monitor the conduct or treatment of
all inmates and staff who either report sexual abuse or cooperate with an
investigation for 90 days following the report or cooperation, is unrealistic in a large
prison system. When an inmate or staff member believes he or she has been
subjected to retaliation as a result of his or her participation in an investigation, that
inmate or staff member will typically notify DOCS' Office of the Inspector General.
That allegation is then investigated. Because DOCS' investigators typically conduct
a minimum of ten interviews in each sexual abuse or unauthorized relationship
investigation, and they often interview many more witnesses, this requirement of the
proposed standard would force DOCS to develop new automated systems to alert
Central Office staff of any transfers, misbehavior reports, housing unit changes,
program changes, etc., for hundreds of inmates at a. time. Although DOCS policy
and praCtice is to protect all such inmates and staff from retaliation, it would take a
significant reallocation of resources to actively monitor all such persons for 90 days.

IN-1 Duty to investigate: DOCS investigates all allegations of sexual abuse and
unauthorized relationships regardless of the reporting source or mechanism.
Furthermore, all investigations are carried through to completion regardless of
whether the alleged abuser or victim remains at the facility or cooperates in the
investigation.

As noted under the comments to RE-4, I object to the inclusion in the proposed
standard of a duty to provide written notification of the investigation outcome. DOCS
does not provide written notification to victims and other complainants of the results
of investigations. Victims are generally contacted by the investigator in person when
an allegation is sUbstantiated as the victim will be a witness for any criminal and/or
administrative proceeding. Written notification can cause a potentially dangerous
situation in that the introduction of documentation confirming an individual's
participation in an investigation exposes that individual to the risk of retaliation
including physical harm. DOCS' Office of the Inspector General utilizes a number of
means to avoid identifying staff and inmate witnesses who cooperated in specific
investigations. For example, the Inspector General's Office avoids introducing written
documentation into the correctional facility that may suggest that a particular person
participated in an investigation. Thus, this proposed standard requires the
May 10, 2010
Page 14

implementation of a policy that is directly contradictory to what we have identified as

a best practice. Furthermore, as previously noted, notification to non-victim
complainants is contrary. to state law protecting the confidentiality of victims of sexual
abuse.

IN-2 Criminal and administrative agency investigations: The proposed standard is

excessively detailed by its inclusion of specific elements. With respect to the first
bullet, DOCS' investigations of allegations of sexual abuse are conducted by
investigators from our Office of the Inspector General Sex Crimes Unit. These
investigators are dispatched from Central Office. Their work is not dictated or
approved by facility personnel, including but not limited to the highest-ranking facility
official.

With respect to the second and third bullets, DOCS' investigators, in cooperation with
the New York State Police Bureau of Criminal Investigation, determine which
investigators will collect what evidence. Furthermore, DOCS' investigators do not
interview suspected staff perpetrators when there is a potential for criminal charges
to avoid the possibility of any Garrity issues. Instead, such interviews are conducted
by the New York State Police Bureau of Criminal Investigation. Only if the State
Police and the District Attorney have indicated that they are not going to pursue·
criminal charges do investigators from DOCS' Office of the Inspector General
conduct an interview of the suspected perpetrator.

As to the last bullet, DOCS involves criminal investigators from the State Police at the
initial stages of the investigation where the allegation, if true, would constitute a
crime. The District Attorney's office is kept appraised of the investigation and the
evidence as experience dictates.

The proposed standard is far too detailed and thus. fails to provide the agency with
the flexibility to adjust to local needs and practices. The final standards should not
require the adoption of specific investigative procedures where other means exist to
accomplish the same goals.

DI-1 Disciplinarv sanctions for staff: This proposed standard recognizes that staff
can be terminated for a wide variety of violations of the agency sexual abuse policy
including by not limited to sexual abusive contact or penetration. However, the
proposed standard requires that all terminations for violations of the agency sexual
abuse policies are to be reported to law enforcement agencies. There is no
exception where the conduct was clearly not criminal. I also note that DOCS'
practice is to issue .a notice of discipline but then to allow the criminal prosecution to
proceed to conclusion before moving forward with a disciplinary arbitration
proceeding.

DC-1 Sexual abuse incident reviews: As presently drafted, the proposed standard
requires a detailed review at the conclusion of all SUbstantiated and unsubstantiated
May 10, 2010
Page 15

investigations of alleged sexual abuse. Only unfounded allegations are excluded

from this review. Although DOCS' investigative staff generate a case-specific report
at the conclusion of every investigation, the investigative report does not include a
review team's findings and recommendations for improvement which is submitted to
the facility head. DOCS presently has a Sex Crimes Unit (SCU) consisting of a
Deputy Inspector General, and Assistant Deputy Inspector General, and twelve
investigators and senior investigators. Establishing full review teams just to review
substantiated allegations would require adding five SCU investigators for the purpose
of further investigating the cause of each incident, two additional supervisors, and a
research analyst at an annual starting cost of $640,000 in salary and benefits.
Complying with this proposed standard as written to include unsubstantiated
investigatioris as well will require the addition of even more investigators. DOCS also
suggests that it would be quite difficult for a review team to make recommendations
regarding policy, training or other issues related to an allegation where there was
insufficient evidence to make a final determination as to whether or not the event
occurred.

AU-1 Audits of standards: As previously noted, the proposed audits to measure

compliance are not called for by the enabling legislation. Rather, PREA provides for
alternative methods of ensuring compliance consisting of the loss of federal funds if
the chief executive of the State is not able to certify that the State has adopted and is
in full compliance with the national standards.

Also, American Correctional Association (ACA) or similar accreditation should be

sufficient in light of Section 9 of the Prison Rape Elimination Act (42 USC § 15608),
which requires that accreditation organizations adopt accreditation standards
consistent with the national standards adopted pursuant to the final rule. It may be
appropriate to mandate the use of an independent audit every three years as an
alternative for agencies that do not participate in accreditation from an appropriate
accreditation organization such as the ACA or American Jail Association. As
drafted, the proposed requirement that agencies engage auditors every three years
creates a significant unfunded mandate that will divert funds from other necessary
functions such as the upgrading of surveillance technology or the addition of more
investigators trained specifically in the investigation of allegations of sexual abuse.
The mandating of audits by "independent and qualified auditors" will create an
enormous taxpayer burden by creating a team of consultants.

In response to the DOJ's request for comments regarding three general matters:

Question 1. What would be the implications of referring to "sexual abuse" as

opposed to the term "rape" in the Department's consideration of the Commission's
proposed national standards? Use of the term "sexual abuse." as defined by the
NPREC significantly expands the national standards. The term is broadly defined to
include indecent exposure by staff, voyeurism by staff, and sexual harassment
including verbal comments and gestures by staff or inmates. The PREA definition of
May 10, 2010
Page 16

rape, on the other hand, includes only "carnal knowledge", oral sodomy, sexual
assault with an object and sexual fondling.

While any agency policy must address conduct such as voyeurism and sexual
harassment, including such conduct in the national standards significantly increases
the burdens and expenditures associated with complying with the PREA standards,
and creates other unintended consequences. For example, PP-6 would preclude the
agency from hiring or promoting anyone who has used demeaning references to
gender, or obscene language or gestures directed toward an inmate because the
glossary defines such conduct as "sexual abuse." Similarly, DC-1 requires an
extraordinary response and allocation of resources for all substantiated and
unsubstantiated allegations of "sexual abuse" regardless of the nature of the alleged
abusive conduct.

With other proposed standards, it is apparent that not even the NPREC utilized their
glossary definition of sexual abuse. For example; OR-3 would require staff to
instruct an inmate not to take any actions that could destroy physical evidence,
including washing, brushing his or her teeth, Changing his or her clothes, urinating,
defecating, smoking, drinking, or eating after the inmate reported being the victim of
sexual abuse as a result of inmate-on-inmate sexual harassment or staff-on-inmate
voyeurism.

Thus, careful scrutiny of the proposed standards is required to determine where the
term "sexual abuse" should be limited to "rape" as defined by PREA.

Question 2. Would any of the Commission's proposed standards impose

"substantial additional costs"? I note that DOCS participated in the 600z Allen
Hamilton fiscal analysis. Furthermore, these comments on the specific standards
note those standards with the most significant cost implications.

I suggest that the proposed standard that will have the largest cost impact is PP-4
which limits cross-gender pat down searches. This proposed standard as drafted will
have drastic immediate fiscal impact as well as sUbstantial recurring costs both in
efforts to comply and in costs associated with the litigation that will surely follow those
efforts.

Further, PP-7 was drafted in a manner to downplay the immediacy of the cost impact.
However, an annual assessment of the adequacy of the agency's use of video
monitoring systems and other appropriate technology to supplement its sexual abuse
prevention, detection, and response efforts is going to require an investment of over
$600 hundred million dollars to greatly expand the use of video surveillance in New
YorkState's prisons. Furthermore, these systems can be expected to cost as much
as $2 million dollars each year in maintenance.
May 10, 2010
Page 17

The all employee training component under TR-1 is likely to have a sUbstantial cost
impact in the first year of implementation. I am a strong proponent of training and
DOCS has implemented all employee training for the prevention of sexual abuse of
inmates. The level of detail apparently required to comply with TR-1, however, will
likely require at least one training session of four hours for all employees. Meeting
this requirement will be costly, especially for our security staff. DOCS' security staff
currently receive 40 hours oftraining each year. Presuming that it will require four
hours of training to meet the requirement of TR-1 as proposed, DOCS will need to
utilize overtime to provide this additional four hours of training over and above the 40
hours of training those employees already receive at a cost of approximately $3.7
million.

Similarly, DOCS provides written orientation materials to all inmates. Guidance staff
discuss sexual abuse issues at reception, following transfers and at each quarterly
review. Proposed standard TR-3 as drafted by the Commission requires
comprehensive education and a much more in-depth exploration of issues related to
sexual abuse. If this standard is adopted as drafted, DOCS will need to develop
extensive educational materials for our inmate population. DOCS may also need to
add correctional counselors to each of our correctional facilities plus five additional
counselors at each of our four reception centers as guidance staff would be required
to absorb the significant additional work of conducting these comprehensive training
sessions. The addition of 87 additional correction counselors would add $7.3 million
in salary and benefits to the DOCS payroll in the first year alone.

Question 3. Should the Department consider differentiating within any of the four
categories of facilities for which the Commission proposed standards (Le.. adult
prisons and jails; juvenile facilities; community corrections facilities; and lockups)?
Clearly, there should be distinctions made with respectto large prison systems, small
prison systems and jails. The issues faced in addressing sexual abuse in a large
prison system are often quite different than the issues in a small prison system or
local jail. For example, a local jailor even' a small prison system may very well have
an individual PREA coordinator who reports directly to the agency head. However, in
a large prison system, it is far more appropriate to have a PREA coordinator at a
director level who answers to a person in a senior executive level position, such as a
Deputy Commissioner, and who supervises a unit of adequate size and composition
based upon the size and needs of the system.

Similarly, the standards must be flexible enough to recognize that in smaller systems,
many of the PREA responsibilities may be localized at the facility whereas in a large
prison system centralization provides consistency and is more cost effective. Thus,
for example, although proposed standard IN-1 specifies that the facility must
investigate all allegations of sexual abuse, DOCS has a specialized Sex Crimes
Investigation Unit as a part of our in-house Office of the Inspector General. DOCS'
policy dictates that all investigations of allegations of sexual abuse are conducted by
our Office of the Inspector General. It is important that state prison systems maintain
May 10, 2010
Page 18

the ability to determine the best way to coordinate their efforts to combat sexual
abuse of inmates.

Conclusion

The New York State Department of Correctional Services strongly supports the goals
of the Prison Rape Elimination Act. The National Prison. Rape Elimination
Commission performed its duties admirably in developing a comprehensive list of
standards. Unfortunately, many of the proposed standards mandate specific means
of meeting certain criteria thereby creating an insurmountable hurdle to
implementation in some jurisdictions. The standards must recognize that equally
effective altemative ways of achieving the same results are often available. Finally,
the costs associated with the proposed standards may make them impossible to
implement.

While we strongly support the goals of the Prison Rape Elimination Act, we find that
the Commission's proposed standards are too cumbersome, costly and, in certain
instances, completely unrealistic. We recognize that Attorney General Holder and
the Department of Justice have a difficult task ahead producing fair, balanced, and
effective regulations establishing the national standards for the detection, prevention,
reduction and punishment of prison rape. DOCS welcomes the opportunity to
provide' any information that may assist DOJ in this task and believes' it would be
beneficial if the standards were built upon what already has been accomplished in
many jurisdictions.

Commissioner