Department of Corrections and Community Supervision

Commissioner Brian Fischer
NYS Department of Corrections and Community Supervision
Keynote Address - Attica Riot 40th Anniversary Conference
University at Buffalo Law School
September 13, 2011

While I was asked to address this symposium because of my position as Commissioner, I would prefer to speak as someone who has spent forty-three years working in the field of corrections, thirty-six with the Department of Correctional Services, now called the Department of Corrections and Community Supervision.

With this April 2011 merger, I now find myself being accountable for over 95,000 offenders; 57,000 inside prisons and 39,000 under community supervision.

The goal today is to provide an overall picture of what was, what is, and what can we look forward to, from my perspective.

I came to corrections in 1975 when I was an Assistant Director of a Drug Treatment Facility in what was then called the Narcotic Addiction Control Commission, informally called the Rockefeller Drug Program. It was the forerunner of today’s Office of Alcohol and Substance Abuse. At the time, I was assigned to a Bronx treatment and aftercare facility.

A year later I was asked to go to Attica as the Deputy Superintendent of Program Services. The idea of sending a New York City treatment oriented person who would implement new programs appealed to a few administrators.

I argued against the move for personal reasons, but in truth the idea of going to Attica concerned me. The only thing I really knew about Attica was what took place in September of 1971.

I tell you this because I suspect that when new offenders enter the prison system, the idea of going to Attica unnerves them. The name alone conjures up negative images to many people.

As it turns out, I have visited Attica many times, including yesterday, and I have seen many good things develop and take place there over the years.

Whether fair or not, Attica has become the benchmark incident that identified what society thought was wrong with prison systems. The events of 1971 brought about an awareness of issues previously ignored. The Attica of old is what brings us to two fundamental questions: what have we learned since, and what have we done since September, 1971?

It is likely that there are four groups of people in this room, those who believe that the prison system is not much better than it was in 1971, those who think the system has come a long way, those who think we have not come far enough, and those who are willing to keep an open mind on the subject. I will attempt to speak to each group.

In terms of historical perspective, I recently came across a 2003 report provided to then Governor Pataki entitled, “Attica Task Force, Report to the Governor.” The Honorable Dale Volker and the Honorable Arthur Eve both participated in providing that report.

While the report itself was developed to address issues brought forward by a group called, The Forgotten Victims of Attica, family members of employees injured or killed in the riot, one summary statement about the incident is worth quoting now as it establishes the baseline of what was, while suggesting why such an incident should not happen today.

“The prison system at that time did not have any formal means for inmates to bring their grievances to the attention of prison administrators. There was a dearth of academic and vocational programming to prepare inmates for their return to society. There were little means available for inmates to maintain family ties. Certainly, such shortcomings played a major role in the heightened tensions at the facility at that time.

“Warning signs of impending danger either went unnoticed or unheeded. When the riot did erupt, the state was completely unprepared to deal with an incident of such magnitude. The state lacked the skilled negotiators of the current Crisis Intervention Unit (CIU). There was no Correctional Emergency Response Teams (CERT), trained to use the least possible force to resolve incidents. These, among other factors, unquestionably escalated the final toll of dead and injured.”

The authors point out two critical elements that we should keep in mind. The first is the conditions inside the prison at the time of the riot – that is, the management of the prison and, by extension, the overall management of the whole prison system.

The second element is the decision on how to end the riot – the decision to use force.

The question before us today is not whether or not the changes that have taken place can be directly related back to Attica, but whether or not the changes have been the right ones, and whether or not they can prevent another Attica.

I would love to tell you that my career has afforded me an opportunity to understand all the complexities of our prison system, but to be honest; I have far more questions than answers.

Consider what I will be saying as thoughts and concerns of a person who believes in the system, but is acutely aware of its shortcomings, as well as the shortcomings of society and the entire criminal justice system in dealing with what it really comes down to – the act of locking people behind bars, supervised by other people, thereby creating an environment that can be simultaneously violent and hostile and yet still be a place of positive transformation.

If you sense a philosophical slant to my position, think of me as a pragmatic optimist. I know what exists, yet work and hope for a better outcome.

I struggle with trying to understand what it is that society wants from the prison and parole systems. Why is it that when a person assaults another person in the community, society demands that the person be removed from their midst so he cannot hurt anyone else, yet when the same offender commits the same violent act in prison and is removed from general population and placed in segregated housing, some advocates say we’re being unfair or even punitive?

I will acknowledge, however, that how long a person stays in Special Housing is an issue we need to review.

Why does the system house individuals who suffer from mental illnesses or are developmentally disabled? Is prison really the best place we have? Currently 14.5 percent of the entire offender population is on the caseload of the Office of Mental Health, over 8,000 individuals, and of that number, over 2,500 are considered seriously mentally ill.

Why does it take a court order, usually the result of some lawsuit, to get the funding needed to provide services that we should be providing anyway?

Why does it take a terrible incident or crime for society and the legislature to respond to problems while often ignoring requests for change by advocates and prison administrators?

Prisons do not exist in a vacuum; they are, in a large sense, reflections of society in general.

Stephen Shaw, the retired Prisons and Probation Ombudsman for England and Wales, wrote a book entitled, Fifty Year Stretch: Prisons and Imprisonment 1980-2030.

In it, he states, “Prisons are ‘elastic’ institutions, stretching to meet the public, official and political demands made of them. You can make a reasonable case for saying that the Prison Service has become the backstop for every other public service. It provides healthcare for those who never register with a doctor or dentist. It provides education for those who have dropped out, or been excluded, from school. It provides kindness and support for those who have never known a loving family. It offers job training to those who have never had paid employment. If offers drug and alcohol detoxification for those whose lives are wrecked by addiction. The history of the prison system is a mirror image of the history of the welfare state.”

My own experience suggests that prisons continue to receive the individual whose needs were too often left behind or ignored by families, communities and society, until the individual did something that got him noticed. Unfortunately, society’s response is to look first at the criminal act, leaving the prison to assess his needs and then provide services that were either denied or simply not provided.

Because prisons are a reflection of society; they are like small towns or communities. As such, prison life often involves the good, the bad and even the ugly.

On the good side are the direct services provided to all offenders. I’m talking about health care, education, vocational training, and a myriad of specialized treatment for the mentally ill and sex offenders, and alcohol and substance abuse treatment. We also provide for an Inmate Grievance Program, law libraries, religious freedom, family visiting programs and many more components meant to assist offenders and make the prison setting as safe and effective as possible.

All of our programs are designed and evaluated in terms of how they will assist the offender in being better prepared to return home.

Last year 2,200 offenders earned their High School Equivalency Diplomas. Over 1,000 offenders participated in privately funded accredited college programs, many earning Associate and Bachelor degrees. The medical services provided in the New York system surpasses those that are offered in almost every other prison system and better than services many of us receive in our local communities.

We now use video surveillance as a standard policy practice in our special housing units, mental health units and other areas to address complaints about harassment, unreasonable searches, and unacceptable uses of force and to guard against sexual abuse incidents. We need more, but cameras alone will not end individuals behaving inappropriately.

On the bad side, prisons take away a person’s right of privacy, and to a large extent, the right of self-determination. Worse still is the separation from the offender’s family and friends, compounded by the physical distances most prisons are from many communities. Adding the group of offenders with a sentence of life without the possibility of parole has become a new category that we’re only first trying to understand the impact such a sentence has on both the individual and the system.

We still place some offenders in double cells built for one offender, transfer offenders too often, delay programming due to a lack of staff and fail to adequately explain denials and policy changes. We depend too heavily on disciplinary segregation for some rule violations and not every offender gets into a treatment program he needs.

Also bad is the number of family members who are arrested each week attempting to smuggle drugs and weapons into the prison through the visiting room or package room. Likewise, we ask staff to treat every offender equally and with a positive approach. Yet there are offenders in the system who have, by their own behavior, demonstrated that they are violent, abusive and a threat to staff and other offenders alike. Staff too can be insensitive, hostile and prone to overreact. Living and working in such an environment is emotionally complicated.

The ugly, unfortunately, also exists in the manner of racism, drug use and violence. Everyone who enters the system, offender and staff alike, brings with them the demons, anger and self-destructive behavior they carried within themselves in the community. Added to this picture is the inherent conflict that exists between confinement, treatment, order and control.

Just consider the agency’s latest Mission Statement, one that I’ve helped change not once, but twice:

“To improve public safety by providing a continuity of appropriate treatment services in safe and secure facilities where offenders’ needs are addressed and they are prepared for release, followed by supportive services under community supervision to facilitate a successful completion of their sentence.”

Consider how words like, public safety, treatment, security, needs, release and supervision go together. On paper they sound fine; in reality, a balancing act is needed for success. The concepts are not incompatible, but they often present us with problems related to perceived importance and emphasis.

While both sides seldom acknowledge it, prisons function through an informal social agreement that basically operates on the principal, “If you don’t mess with me, I won’t mess with you.” Problems develop when the social order is disrupted by either side. When cynical staff are heard saying something like, “Their job is to see how they can break the rules and our job is to catch them at it.” That, or, “Their job is to make our jobs miserable,” the balance is disruptive.

Likewise, offenders have their own way of dealing with prison life. When a person comes to prison, they bring with them their own experiences, attitudes, needs and hopes. Some become violent, rebelling against every rule. Others withdraw and become depressed. Some try to act as they did while in the community. Too often, some commit suicide and others harm themselves. Whatever behavior they demonstrate, there is a corresponding response from other offenders and from staff.

Looking across history since 1971, many changes have at time come swiftly and at other times very slowly. I submit we can divide those changes into four broad periods of time. As we go through them, consider the idea that we often learn best by examining our mistakes. Perhaps the old saying, those who forget the past are doomed to repeat it should, be a prison system’s mantra. Also keep in mind that during the years from 1971 to the present, five different Commissioners have provided leadership. In each case, my predecessors and I would be confronted with operational, fiscal, legal and political realities that more often than not dictate how a system moves forward. As such, the only theme that can be seen throughout is the need to maintain balance between all such elements.

In the 70’s and 80’s, because of Attica, there was a recognition of offender rights and the need to reassess the manner in which prisons were run. Prisons became correctional institutions and guards became correction officers. Programs such as inmate liaison committees and the inmate grievance system were established.

In the late 80’s and into the 90’s, the explosion in the offender population, due primarily to a perceived drug epidemic in the communities, forced management systems to place finding bed space for new offenders ahead of everything else. Almost all the new prisons were built in upstate New York while the majority of offenders came from the New York City area at the time. We peaked in 1999 with almost 71,000 offenders. Gymnasiums were turned into dormitories. Monster size inflatable tents were erected to provide for recreation and other services. Dorms built for 50 offenders held as many as 90 offenders. Treatment programs took on a new look as the size of the population and related logistical problems of operating the system became evident.

Realizing that the state could no longer build itself out of the prison problem, well meaning treatment programs were created, but primarily designed to address the overcrowding. New laws were enacted such as Merit Time, Shock Incarceration, and Earned Eligibility. The emphasis was on providing programs that would assist offenders in being released more quickly than under prior rules. These programs were meant mostly for the first time, non-violent offender who was sentenced for crimes related to drugs. In retrospect, too much emphasis was placed on short term programming designed to allow offenders to leave early, rather than more involved treatment programs that most offenders really needed.

As the offender population began to decline from 2000 forward, there began a renewed emphasis on laws designed to assist specific groups of offenders, not just those convicted of drug crimes. As early as 2004, changes in the Rockefeller Drug Laws contributed to many offenders leaving prison and less entering.

Beginning in 2007, with the direct intervention by the courts and legislature, major changes come in the form of finally undoing most of the Rockefeller Drug Laws, and requiring the system to establish very specific programs for offenders with mental health issues. At the same time, the State established the Sex Offender Management Act, and, earlier this year, Governor Cuomo combined the Department of Corrections with the Division of Parole, with a renewed emphasis on re-entry.

Today, the system has several significant training, treatment, assessment and assistance programs, for both staff and offenders alike. These changes are significant as they help provide the needed balance the system requires to function safely and effectively.

Let me stop for a moment and suggest that my next few comments are perhaps the most important changes that have taken place since Attica.

To ignore staff needs while providing for offender needs is no better than ignoring offender needs while providing for staff needs. Perhaps this single concept helps explain why overall the system has remained relatively safe. Our experiences with serious disturbances since Attica suggest that the attention we have provided to all parties has allowed us to respond appropriately without violence.

On the staff side, we have invested time and money in training and equipping our Correctional Emergency Response Teams (CERT) to deal with any disturbance in a highly structured and controlled manner, in conjunction with our Crisis Intervention Unit (CIU) teams. Both teams are trained to contain situations, gather intelligence and negotiate rather than attempt to control and override the situation.

Staff is also provided with Critical Incident Stress Management teams designed to assist with emotional trauma of any type connected to prison situations. Likewise, we have Blood Exposure Response Teams (BERT) - staff members trained to talk to other staff following any exposure to possible blood-borne pathogens. We also provide Employee Assistance Programs for staff requesting personal help in coping with any problem they seek assistance with.

On the offender side, we have a Limited Credit Time Allowance program, something I take special pride in as I was instrumental in getting it introduced in the legislature. It recognizes violent offenders who are statutorily denied programs like Merit and Earned Eligibility to cut six months off their earliest release date, or see the Parole Board six months earlier than scheduled after achieving significant positive work in programs such as: being a health care worker, getting a college degree, working as a hospice care provider, an HIV peer educator and even working with a unique program called Puppies Behind Bars where dogs are trained to be service animals for wounded military veterans.

Medical Parole was expanded to allow offenders with terminal illness, or is otherwise so incapacitated as not to be a danger to society, to seek an early release, something we call, Compassionate Release.

Perhaps equally important is the availability of special medical units for offenders who need short term nursing care that is provided in our Regional Medical Units or for the truly serious cases, the Walsh Medical Center takes in offenders directly from hospitals and who require constant medical attention. Even beyond those services, New York has the only cognitively impaired unit that takes in offenders suffering from Alzheimer’s or AIDS dementia. And I haven’t talked about our nursery program at Bedford Hills where mothers can care for their newborn children up to 12 months, 18 if the offender is going to be released within that time.

Working with the Department of Health, we now have a Medicaid Suspension Program that calls for an offender who enters the system with an approved Medicaid status, to be immediately reinstated onto Medicaid upon his release, instead of having to re-apply and wait many weeks for assistance.

To properly treat mentally ill offenders, we have created Residential Mental Health Units and Behavior Health Units, designed to provide for special services to offenders who, in part because of their condition, have violated serious prison rules and would otherwise be housed in disciplinary units called Special Housing Units. Key to this program is the central monitoring of these units by a joint task force comprised of corrections and mental health executives who, by video conference, hold monthly Comstat-like meetings with the staff at the facilities that house such programs.

Beyond the seriously mentally ill offenders in such programs, we have Intermediate Care Units for those with lesser problems who cannot function in general population settings, but do well in controlled and supportive environments. We have Special Needs Units for the developmentally disabled, and units for the Hearing Impaired and Visually Impaired.

We have moved into the area of providing Gender Specific Treatment training to our staff who deal with our female population and all our counseling staff is being trained in motivational interviewing so that there can be a greater interaction between offender and counselor. And by partnering with Parole, there are several Re-Entry Units established at some prisons, designed to better assist offenders about to return home.

Changes in how Parole supervises offenders have taken place, most often called, Graduated Sanctions. It requires Parole staff to offer a greater level of assistance to parolees before declaring anyone in violation. Along with that approach, the two agencies operate a program in a New York City-based prison (Edgecombe) that allows a parolee to enter a short term drug treatment program rather than be returned upstate for many months.

In addition, the use of community volunteers, non-profit organizations, religious groups and outside service providers is indicative of our willingness to open our prisons to others in an effort to provide the most effective system.

Though I was opposed at first to oversight programs, I have come to see them as agents of constructive criticism. I’m talking about the number of state, federal and community oversight regulations, laws and advocacy groups put in place that review, audit, criticize and thus improve the system. No one likes to have others look over their shoulder, but a funny thing happened along the way. More often than not, the audits and oversights have shown both the system’s strengths and weaknesses and as a result, they have made the system better.

In particular, I’m speaking about the work of the State’s Mental Health Legal Services and the Commission on Quality Care that reviews our treatment of mentally ill offenders. Likewise, the Department of Health’s oversight regarding HIV and Hepatitis C treatment and the oversight of our drug treatment programs by the Office of Alcohol and Substance Abuse.

Every prison, as well as the DOCCS Training Academy, has been audited by the American Correctional Association, and the Correctional Association has the right to make visits of each prison and offer comments on the conditions that they find, along with recommendations for improvement. We have even seen the United States Department of Justice review issues concerning sexual abuse in the prisons, as well as our compliance with the American Disabilities Act.

I know that a prison can be a place where positive things can happen. I am convinced, however, that three factors need to come together for effective change to take hold: 1) the willingness of the offender to better himself, to self-identify, 2) staff that is available and willing to provide whatever assistance the offender may need, and 3) a prison environment open enough to provide for opportunities for change. All three elements need to exist in conjunction with one another. If any element is missing, change does not happen.

I’m not so naïve or defensive to tell you everything we do is done well, or that all our policies are designed to make life inside easy. We have many policies that seem arbitrary and unfair. They are often more restrictive than we would like, but necessary under certain circumstances. Like the world outside, our rules are meant to provide a safe environment for staff and offenders alike.

Still, I believe we have in fact come a long way, most dramatically in four unique areas. One we already spoke about, treatment for the mentally ill, the sex offender, and providing high quality medical care.

The second area deals with our internal data collection and analysis programs. We track data via computer systems in every area possible. This allows us to track by race, mental health levels, program needs, population trends, rates of assault, suicides, and other factors that help us manage the system better. One example is a routine review of who is in what program, living in which unit and what job offenders have by race. This is done to guard against the discriminatory practices of old where only certain offenders were placed in certain jobs or housing locations.

Likewise, I insist that DOCCS Central Office monitor violence, suicides, and self-harm incidents by the mental health level of the offender. This approach is also used to monitor placement, as well as stays in Special Housing Units.

The third area deals with programs available to all offenders.

Access to legal research has always been a serious concern for all offenders and advocates. We now have a secure, computerized law library program that provides every inmate access to the latest material sitting at a computer station, much like lawyers do everyday in the community. Access is granted through what we call the Secure Offender Network that links facilities with the provider of legal research material. Not only will this innovation save the State approximately $2 million annually, it allows for multiple offenders to do research simultaneously rather than waiting for a book or file becoming available from another offender.

At the same time we have created Digital Literacy Programs that teach an offender what the Internet is all about how to use it. This is critically important for those who entered the system before the Internet became as available as it is today. This program is but an extension to our developing Business Office Skill classes where we’ve made a commitment that every offender needs to leave prison being able to use Microsoft Word and Excel, at a minimum. The goal is clear – offenders need to be better prepared before returning home.

By learning how we can use technology better, we have been able to connect with major community-based programs like the Doe Fund and the Fortune Society where offenders in nine test sites can go to our general library and access the web sites of these programs. While not interactive, yet, offenders can see what services each of these groups can provide along with other important information found on their websites. This is in addition to accessing the Department of Labor’s job search website that lists jobs currently available across the state.

By partnering with the community-based program, the Osborne Society, video visiting between children and their mothers located in Albion, New York is in place. Success in this area has led us to look into how we can partner with outside providers who can offer video visiting and even electronic email communication between offenders and families and friends.

It’s simply a matter of time before both systems will be in place.

Even before Corrections and Parole were merged, both agencies were engaged with re-entry services. Not only do both divisions work directly with thirteen county Re-Entry Task Forces, but both have contracts with several community-based providers across the state to assist parolees with housing, employment, drug and outpatient mental health treatment and a whole range of services geared to help the returning offender.

The fourth special area consists of programs designed and managed by offenders themselves inside the prisons. Programs like the Long Termer organization at Bedford Hills, and a Lifers organization at Clinton. Auburn has a Veterans organization and Attica has is own Vietnam Veterans of America organization. These and many offender organizations that reflect religious and ethnic interests are common throughout the system. I point this out because programs like these are clear examples that both offenders and administrators can work together to make the entire system more meaningful and less disruptive.

Perhaps the most important offender operated programs are two that did in fact grow out of the Attica riot: the Inmate Grievance Program (which was granted full certification in 1992 by the U.S. DOJ) and the Inmate Liaison Committee Program.

While many will say that both don’t have the effectiveness they should, they are valuable tools for both the offenders and prison management. The programs highlight issues that need addressing and encourage better communication between the offender population and the superintendents.

Neither guarantees successful balance, but consider where both sides would be without them.

I didn’t highlight all these initiatives to justify the system. For me, they are proof that regardless of our shortcomings, the system continues to do what is right within a very difficult environment.

Having spoken about the past and current policies and programs let me quickly look at our future.

We will continue to provide constitutionally mandated treatment for the mentally and medically ill, along with ensuring that sex offenders are provided treatment. If possible, we will increase the number of offenders having access to higher education and re-entry services. We will move forward on the merger of Parole and Corrections to foster better treatment plans both inside and out with the goal of reducing recidivism even further.

On the other hand, DOCCS, along with the Legislature, oversight agencies and advocacy groups will need to focus on the growing offender population that is rapidly aging before our eyes. Since 1999 there has been a doubling of offenders age 65 and older; from about 400 to over 800 today. It is estimated that by 2019, that population will grow to over 1,100, taking into account those who will die in prison over time.

We’re also seeing that the majority of new offenders entering the system have committed violent crimes. Before the changes in the Rockefeller Laws, 60% of the population was in for non-violent offenses and 40% for violent offenses. Today that is reversed, 60% are in for violent crimes and 40% are in for non-violent crimes. The demographics are changing.

At the same time, we have seen the number of offenders sentenced to Life Without Parole rise since the law was changed in 1996. Then we had just four, today there are 223 offenders serving such a sentence, and based on historical data, we see a net increase of about fifteen being added each year going forward.

I mention these two groups deliberately for two reasons. The first is based on fiscal concerns. Our older population simply costs more to hold because of increased medical costs associated with the aging process. As such, we’ve already moved to expand our long-term Walsh Medical Unit and we’re setting up a small, experimental assisted living unit near Walsh to better identify what type of services we may need in the next 5, 10 or 15 years.

The second reason I mention these groups is more complicated from a treatment and moral level.

What kind of treatment programs should we be considering for the offenders who have a sentence of Life Without Parole, or enter the system with sentences of 50 years to life? Do we provide the same program for them as those we know will be leaving prison in 3 to 25 years, or look at our limited resources and make decisions based on other criteria?

Let me conclude my remarks by saying I believe that the system has come a long way over the past 40 years. At the same time, I accept the fact that we have not been able to accomplish many of the changes we all wanted to see, leaving us with the question – Why?

Each of us comes to the table representing a personal agenda, and just like what we see going on in Washington these days, we don’t really trust one another, we each think we know what is right and that the other person does not. As a result, we don’t really talk to one another, particularly before a problem develops. As a result, we don’t communicate well, nor listen openly, and because of that, we don’t know how to compromise.

Having said that, I know we can do better.

Thank you.