PLS Wins Groundbreaking Case in the Second Circuit

PLS Wins Groundbreaking Case in the Second Circuit

On July 1, 2021, the Second Circuit issued a landmark decision in Brathwaite v. Garland, a case filed by PLS, finding that the Board of Immigration Appeals (BIA’s) imposition of a presumption of finality to state criminal convictions that were under appellate review was arbitrary and unreasonable.

 

In the case, Aldwin Brathwaite, a lawful permanent resident of the United States since 1979, was charged with removal from the country because of two New York State convictions in 2018. Shortly after the initiation of immigration proceedings, Mr. Brathwaite filed a motion with the First Judicial Department of the New York Appellate Division to review his state criminal convictions. Mr. Brathwaite sought appellate review because he had not been properly informed during the trial proceedings that his criminal convictions would have severe immigration consequences for him. Following the First Judicial Department’s grant of Mr. Brathwaite’s motion and agreement to hear his criminal appeal, Mr. Brathwaite sought to terminate his immigration proceedings so New York’s appellate body could properly consider his appeal and determine if his original convictions were properly obtained. Mr. Brathwaite relied upon a longstanding precedent first announced by the Supreme Court in 1955 that a noncitizen’s criminal conviction should not incur immigration consequences until appellate review has been exhausted or waived. 

 

The Immigration Judge, however, disagreed with Mr. Brathwaite’s argument for termination of the removal proceedings and ordered him removed from the United States. The Immigration Judge relied upon a 2018 decision issued by the BIA, Matter of J.M. Acosta, which held that a presumption of finality attaches to state criminal convictions once the initial period of filing for appellate review has passed and that a noncitizen bears the burden of proving his criminal appeal relates to a substantive or meritorious issue in order to overcome this presumption. Such a requirement was impossible for Mr. Brathwaite to meet because his criminal appeal had only just begun, he had not yet been assigned appellate counsel, and the record of his trial proceedings had not yet been produced for review. Mr. Brathwaite then appealed to the Immigration Judge’s decision to the BIA and, after the BIA affirmed the decision, sought review from the Second Circuit. 

 

Following briefing and oral arguments, the Second Circuit ruled in Mr. Brathwaite’s favor and vacated the removal order issued against him. The Second Circuit determined that the BIA’s adoption of the presumption of finality principle in J.M. Acosta and its application of that standard to Mr. Brathwaite’s case was arbitrary and unreasonable. Noting that “the criminal appeals process in New York proceeds at a different pace than federal removal proceedings,” the Second Circuit explained that the BIA’s holding produced significant practical problems, resulting in noncitizen criminal defendants risking deportation even while pursuing state-approved challenges to criminal convictions. 

 

The Second Circuit’s ruling in Mr. Brathwaite’s case stands to positively impact the removal proceedings of thousands of noncitizen criminal defendants in New York State, ensuring they can pursue appellate review of their criminal convictions without being deported from the country prior to the resolution of those appeals.

DOCCS Reverses Disciplinary Hearing in Response to Lawsuit From PLS

DOCCS Reverses Disciplinary Hearing in Response to Lawsuit From PLS

PLS prevails in challenge to a prison disciplinary proceeding alleging guilty finding was not supported by substantial evidence and violated state regulations and DOCCS’ directives. 


Matter of Powell v. Anthony Annucci, Albany County Index No. 907377-20


The misbehavior report in this matter alleged that our client’s property was searched and a weapon recovered from a package of spaghetti. Our client was charged with possessing a weapon, altered item, and contraband.

At his hearing, the log of our client’s property was entered into evidence; there were no food items on the log. At the hearing, an officer testified that our client had two full property bags of food upon his admission to SHU that were not inventoried and documented due to the officer’s error, but the officer did not mention a package of spaghetti in the alleged non-inventoried bags of property.


The Hearing Officer found our client guilty of all changes and imposed a penalty of 120 days in solitary confinement and 180 days loss of recreation, packages, commissary, and phone. The Department of Corrections and Community Supervision modified the decision, dismissing the charges of altered item and contraband, but did not reduce the penalty..


PLS filed an Article 78 alleging two causes of action: The hearing disposition was not supported by substantial evidence, and the hearing disposition violated the regulation and directive that require an inventory of an individual’s property upon admission to SHU. In response, DOCCS administratively reversed the hearing and expunged the charges from our client’s institutional record.

PLS’ Advocacy Results in Decades of Time Saved

PLS’ Advocacy Results in Decades of Time Saved

Between April 2020 and March 2021, PLS’ advocacy in the areas of disciplinary hearings, jail time, sentencing computations and parole has resulted in decades of time being removed from people’s sentences. By appealing disciplinary determinations on behalf of our clients, PLS eliminated 19 years of solitary confinement and restored six years of good time credit. PLS also obtained 18 years of jail time, parole and sentencing credit for our clients.        

PLS’ work to reduce disciplinary SHU penalties and to eliminate  solitary confinement in NYS prisons greatly benefits the public by enhancing public safety. A Washington State study found that people who were released directly from solitary have a much higher rate of recidivism than individuals who spent some time in the normal prison setting before returning to the community: 64 percent compared with 41 percent.[1] When individuals in New York prisons are released directly into our communities from solitary confinement, the projected 23% increase in recidivism raises significant public safety issues.[2]

In addition, when individuals are released from solitary confinement they are able to participate in educational and other rehabilitative programs. Participation in such programs increases the likelihood of early release and, as demonstrated by the Washington State study, dramatically reduces the recidivism rate. In addition, if individuals are in general population as opposed to solitary confinement when they appear before the parole board, release is much more likely.

PLS also ensures that peoples’ sentences are calculated accurately and that they receive all of the good time, sentencing credit and jail time to which they are entitled. For every year of good time restored and jail time and sentence computations corrected, PLS saves the State at least $60,076.00 or $5,006.33 per month.[3]

 

 

 

[1] David Lovell & Clark Johnson, Felony and Violent Recidivism Among Supermax Prison Inmates in Washington State: A Pilot Study, available at: http://www.son.washington.edu/faculty/fac-page-files/Lovell-SupermaxRecidivism-4-19-04.pdf

[2] New York Civil Liberties Union, “Boxed In – The True Cost of Extreme Isolation in New York’s Prisons” p. 8. (Oct. 3, 2012) available at: http://www.nyclu.org/publications/report-boxed-true-cost-of-extreme-isolation-new-yorks-prisons-2012

[3] The annual cost of housing an individual in a New York State prison is $60,076.00: http://www.vera.org/files/price-of-prisons-new-york-fact-sheet.pdf

Second Circuit Brings Clarity to Exhaustion Requirement Under the PLRA

Second Circuit Brings Clarity to Exhaustion Requirement Under the PLRA

In 2019. PLS appeared as Amicus Curiae (friend of the court) in Dickinson v. Warren County Sheriff and Hayes v. T. Dahkle et. al., two cases that involved the issue of what constitutes exhaustion under the Prison Litigation Reform Act (PLRA).


The facts in the cases involved the plaintiffs appealing the denials of their grievances to the highest level, but not receiving final decisions on any of their grievances within the regulatory time limit. The plaintiffs filed 1983 claims after the deadline for issuing a final decision had passed, but before receiving final grievance decisions. In response, the Defendants moved to dismiss on the grounds that both plaintiffs had failed to exhaust their administrative remedies as required under the PLRA. Plaintiffs lost in the district court and appealed to the Second Circuit.


Given PLS’ and the Legal Aid Society’s Prisoners’ Rights Project (PRP) familiarity with both the Department of Corrections and Community Supervision (DOCCS) and their Central Office Review Committee’s (CORC) longstanding practice of issuing final grievance decisions well beyond their own regulatory deadline, PLS and PRP prepared an Amicus submission for the Second Circuit.  


In preparation for the Amicus submission, we polled PLS staff attorneys regarding CORC delays they had observed in their cases. We collated this data was collated into a chart together data on CORC delays that was available in the District Court case law of the Second Circuit. We also reviewed data available online from DOCCS own grievance program reports, published from 2009 to 2013. Taken together, we ascertained that all three data sets demonstrated the same trend – the CORC began regularly failing to meet its own regulatory deadline to issue final decisions in 2010 and, these delays have grown steadily worse over time. Currently, delays of over a year are a regular occurrence.


In addition, drawing from recent Circuit and Supreme Court case law, we argued that since there is no administrative mechanism for a prisoner to address or otherwise compel the CORC into action once their deadline to render a decision has passed, exhaustion is complete at that point. Finally, we concluded that adopting a bright line rule, that exhaustion is complete once a grievance has been timely appealed to a final grievance body and that body’s time to render a decision has passed, facilitates judicial manageability.

The Second Circuit granted our motions requesting permission to submit the Amicus briefs and on February 26, 2020 oral arguments were conducted.

 

In October 2020 the Second Circuit decided both Hayes and Dickinson jointly.  Regarding the Amicus brief, the Court agreed with our position entirely and adopted a bright-line rule that incarcerated individuals have exhausted their administrative remedies under the PLRA once they have appealed to the CORC and the CORC’s time limit to render a decision has expired, regardless of whether the CORC issues a decision. This brings clarity to an issue of significant confusion for incarcerated persons, many of whom have previously had to wait months for the CORC to render decisions on their grievance appeals

PLS Launches the Pre-Release and Re-Entry Pilot Project

PLS Launches the Pre-Release and Re-Entry Pilot Project

In April, 2021, with funding from New York Community Trust, PLS launched our Pre-Release & Reentry Project, a holistic approach to reintegration focused on incarcerated individuals from the Bronx and New York County who are within six to 12 months of their maximum release date.

 

The PLS Newburgh office is home to PLS’ new Pre-Release and Re-Entry Pilot Project (PREP), a program that assists people scheduled to be released from prison on their maximum release date with pre-release planning and then works with them after their release to ensure their successful reintegration.  

 

PLS sends individuals who will soon be released to the Bronx or New York County a questionnaire designed to identify their needs and then selects those individuals who are most likely to benefit from our services. We then work with these individuals for six to 12 months prior to their release to prepare them for reintegration into their community. To maximize the likelihood of a successful transition, we focus on issues related to:

 

•         Pre and post release education and programming;

•         Discharge planning relating to medical and mental health care;

•         Locating housing;

•         Procuring legal documentation;

•         Assisting with job placement;

•         Resolving immigration issues;

•         Obtaining benefits;

•         Re-establishing family connections; and

•         Connecting our clients with available resources in the Bronx and New York City, such as SoBro, the Fortune Society, Osborne Association and the Doe Foundation. 

 

We support our clients for up to a three-year period after their release, encouraging them to give back to the programs that support them and serve as mentors to newly released individuals. We also compile statistics relating to recidivism, thereby allowing us to assess the success of the program and, where necessary, modify it to be more supportive.

DOCCS Announces Vaccination Campaign

New York State Department of Corrections and Community Supervision Announces Vaccination Campaign

On June 30, 2021, DOCCS Commissioner Anthony Annucci announced incentives to encourage people in prison to get vaccinated. Going forward, DOCCS will randomly select five fully vaccinated people from each facility to receive a care package worth up to $75.00. The care package will consist of the most popular food items sold in the commissary at the prison where the individual is living. In addition, upon completion of the vaccination campaign, DOCCS will award a facility barbecue to vaccinated people at six facilities with the highest rate of vaccination. Two facilities will be selected from each of the categories described below:


Category 1 – incarcerated population capacity 800 and above

Category 2 – incarcerated population capacity 400 – 799

Category 3 – incarcerated population capacity 399 and below

NYDOCCS Vaccination Incentive

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Lawrence Bartley

Lawrence Bartley

Board member

Lawrence Bartley is the founder and director of “News Inside,” the print publication of The Marshall Project which is distributed in hundreds of prisons and jails throughout the United States.  News Inside is the recipient of the 2020 Izzy Award for outstanding achievement in independent media. He is also the host and executive producer of Inside Story, a video series delivering trustworthy reporting on the criminal justice system to people in prisons, jails and the broader public. Lawrence was a member of the teams behind “The Zo,” winner of the 2020 Oline Journalism Award for “Excellence and Innovation in Visual Digital Storytelling” and “What Do We Really Know About the Politics of People Behind Bars?” which was an honorable mention recipient for the 2020 Phillip Meyers Awards. He is also an accomplished public speaker and has provided multimedia content for CNN, PBS, NBC Nightly News, MSNBC and more.