Surviving the Pandemic: Tell us your story!

Surviving the Pandemic: Tell us your story!

National Pro Bono Week is a time to celebrate and recognize the work of our dedicated pro bono volunteers as well as to educate the community about the many issues faced by PLS’s clients. This year, in addition to recognizing our volunteer attorneys with Pro Bono awards, the virtual event will shine a light on the impact of the COVID-19 pandemic on incarcerated individuals and their families.

We are seeking submissions, from those in custody and from their loved ones, about how the pandemic impacted them.  Submissions can include COVID-19 related stories, letters, poems, artwork, or even scenes with characters and dialogue. What was it like to be incarcerated or have a family member incarcerated during the worst part of the COVID pandemic? Were you able to communicate with your loved ones? If not, how did you cope during the periods when you were unable to see or speak with them? Did you or someone close to you become infected with the virus? If so, what was that experience like? Did you lose a close friend or relative to COVID-19? What was it like to see your loved ones in person again after being separated for so long?

If you would like to share your story of coping with the anxieties and uncertainties of being incarcerated or having a loved one behind bars during the peak of the pandemic, please send us your submission.  


Because our event this year will be virtual, we are particularly interested in receiving artwork. We will use the artwork to create a collage depicting the impact of the virus from an artistic standpoint. So, if you have been waiting to share your artistic talent – now’s the time!


If you speak/write in a language other than English, please feel free to send us a submission in your primary language, that is, the language in which you are most comfortable expressing yourself.

We will compile selected submissions, and the finished product will be presented by professional actors during a live virtual performance at our November 2021 pro bono celebration. We will also display artwork selected from the submissions throughout the event.


Poems should be no more than one (1) page. Stories or short plays should be no more than five (5) pages in length and mailed, with the letter below to: Pro Bono Director, Prisoners’ Legal Services of NY, 41 State Street, Suite M112, Albany, New York 12207, no later than August 22, 2021 or email your submission to: pkane@plsny.org


By sharing your first-hand accounts, we hope to educate the public about the issues faced by incarcerated individuals and their families and friends, and to recruit attorneys to take cases pro bono, thus increasing access to justice for indigent incarcerated persons across the State. While we cannot guarantee that each piece will be read or displayed, we encourage all submissions and will do our best to integrate as many as possible into the event.

PLS reserves the right to make editorial changes to submissions.


IMPORTANT


When you send us your submission, please include the following cover letter, which must be DATED and SIGNED by you, with your submission.  You may simply send us this page, dated and signed below, as your cover letter, along with your submission:

DATE: __________________

 

Dear Pro Bono Partnership,

Enclosed is my submission for the 2021 PLS Pro Bono Event. I authorize PLS to use my submission and my name at the event and in the event materials. I also authorize PLS to post my submission on its website and any other PLS social media platform such as Facebook, Twitter, Instagram, etc. and include it in Pro Se. I also authorize the use of my submission and my name in PLS informational and promotional materials.

Sincerely,

 

_______________________________________

     (Please sign your name here)

Kevin Nelson – Staff Attorney

Kevin Nelson

Staff Attorney

(518) 445-8046 ext. 1107

Knelson@plsny.org

Photo of Kevin Nelson

Kevin joined PLS as a staff attorney in the Family Matters Unit in 2022 due to his belief that all people matter and their lives have value, and because he values parent-child relationships. Before becoming a staff attorney, Kevin interned at the Schenectady County Public Defender’s Office, The Justice Center at Albany Law School in the Family Violence Litigation Clinic, and Empire Justice Center. Kevin graduated from Albany Law School where he focused his studies on criminal law and social justice. Prior to law school, Kevin earned an MTS at Drew Theological School and worked in the nonprofit sector in New York and Boston. Kevin’s decision to attend law school was motivated in large part by his experience advocating for LGBTQ+ rights and confronting gender discrimination and sexual abuse in the judicial system of The United Methodist Church.

Second Circuit holds Article 10 detainee is not prisoner for PLRA purposes

Second Circuit holds Article 10 detainee is not prisoner for PLRA purposes

On June 22, 2021, in Jones v. Cuomo, et. al., No 20-2174, the Second Circuit held that an individual who is detained, due to a determination that he poses a danger to the public as opposed to the terms of a criminal sentence, is not a “prisoner” as defined by the PLRA.

Plaintiff, Daniel Jones had been incarcerated in a New York State prison from 1992 to 2012 for various sex offenses. In 2012, when he was scheduled to be released from prison, NYS petitioned for his civil confinement under Article 10 of New York’s Mental Hygiene Law (“MHL”). Jones has since been confined pursuant to that petition.


In 2016, Jones sued under 42 U.S.C. § 1983, challenging the constitutionality of his commitment proceedings and his current confinement. Jones lost in the district court and appealed to the Second Circuit. When he filed his appeal, he was instructed to “submit a Prisoner Authorization Form so that, pursuant to the PLRA, the filing fee and other court costs could be deducted from his institutional patient account at Central New York Psychiatric Center (‘CNYPC’).” While Jones objected to having to file the form, arguing that he was not a “prisoner” as defined under the PLRA, he still completed the form and paid the required fees. He then moved for  restoration of the fees that were deducted from his institutional patient account arguing, again, that he was not a “prisoner” under the PLRA.


In response, the Second Circuit ordered the restoration of fees paid by Mr. Jones, finding that “[a]s a civil detainee who completed his criminal sentence, Jones was no longer a ‘prisoner’ within the meaning of the PLRA when he filed his lawsuit and therefore [was] not subject to the PLRA’s fee provisions.” 

PLS Executive Director Applauds DOCCS for Resuming Visitation

PLS Executive Director Applauds DOCCS for Resuming Visitation

In a July 3, 2021 Press Republican article, PLS Executive Director, Karen Murtagh commended DOCCS for allowing a brief embrace at the beginning and end of each visit, resuming the Family Reunion Program (FRP) and adopting a vaccine incentive campaign. The FRP will resume in September 2021, assuming the COVID-19 infection rate continues to decline. The program allows family members to reunite and reconnect, is essential to maintaining safety and security in the prisons and helps ensure successful reentry and reintegration upon release. Murtagh noted that the FRP has been around for decades, is a special privilege that must be earned and now will require that all people over 12 years old who wish to participate in the program be vaccinated.


DOCCS has also initiated a campaign to incentivize the incarcerated population to get vaccinated. Murtagh praised DOCCS’ efforts on this front, especially in light of the fact that the vaccination rate among the incarcerated population is currently approximately 25% below that of the general population.

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.