Department of Corrections and Community Supervision

Testimony of Brian Fischer, Commissioner
New York State Department of Correctional Services

Before Joint Legislative Fiscal Committees, January 27, 2009

Chairman Kruger, Chairman Farrell, Senators and Assembly members, thank you for the opportunity to testify. I am Brian Fischer, Commissioner of the Department of Correctional Services.

When it comes to State Operations expenditures, the Department of Correctional Services is the largest executive agency in the State. It costs $2.5 billion annually to operate. It employs more than 31,000 staff. And it relies more heavily on the General Fund than any other agency.

The State is facing one of the worst fiscal and economic crises in its history and the largest deficit ever, representing over 25 percent of General Fund spending. The Department must do its part by making significant reductions in its budget. A 35 percent drop in crime over the last decade and the foresight of you and your colleagues in recent years make that not only possible, but sensible, and Governor Paterson has proposed doing so in a way that will not compromise public safety or staff security.

In the face of unprecedented problems on Wall Street, which supplies 20 percent of the State’s revenues, we must fundamentally reevaluate how we manage our government and what the State can afford to spend. Governor Paterson’s Executive Budget rightfully recognizes that, after a significant decline in the inmate population over the last decade that has resulted from the drop in crime and from various changes in the law to keep violent felons behind bars longer while providing appropriate alternatives for non-violent offenders, it is time to restructure the prison system.

We respectfully ask for your support in this effort.

Inmates under DOCS custody chart

Population Change chart

The Governor’s Executive Budget restructures the prison system in several key ways:

The Department continues to face legal mandates that require costly enhanced treatment, services and programs for sex offenders and inmates with mental illness. Yet the proposals in the Executive Budget would produce a net reduction in the Department’s General Fund spending of $100 million in 2009-10. That includes a reduction, primarily through attrition, of 1,342 full-time equivalent positions from a base of 31,673. The proposals require several key changes in the law.

First, I and future Commissioners would be allowed to close prison facilities with 90 days notice in times of financial crisis, defined as two consecutive quarters of decline in gross domestic product. One of those times is now. Currently, Correction Law Sections 79a and 79b require a year advance notice before closing a facility. Without changing this law, we could not save State taxpayers significant money in 2009-10.

Second, the Governor has endorsed and included in his Executive Budget three key changes in statute recommended by the Sentencing Commission that would result in a further, but appropriate, decline in the inmate population along with associated savings in 2009-10. These changes would:

Third, the Executive Budget proposes expanding medical parole to include not only inmates who are terminally ill but also those who have documented debilitating yet non-terminal conditions – but NOT first degree murderers. The selection criteria require that the inmate’s physical condition be so physically or cognitively debilitated or incapacitated that it creates a reasonable probability that he or she does not present any danger to society. Keeping these patients in our system forces expensive trips to outside hospitals and places entirely on the State a financial burden that should be shared with the Federal government through Medicaid reimbursement after the offender’s release. We are very careful in determining who qualifies for medical parole. Since the program’s inception in 1991, we have reviewed 2,247 cases and released just 13 percent - 294 inmates. Of them, none has returned to prison for a violent offense. Just three were returned to prison for new non-violent crimes. We estimate State taxpayers will save on average $45,000 for each additional inmate who is granted medical parole. For some of the most debilitated, the savings could be more than double that.

I believe each of these recommendations is sensible for both the taxpayers and the operation of the Department, and I am confident none will adversely impact staff security or public safety.

When the current fiscal year began, we projected that the inmate population would drop to approximately 61,400 by the end of the fiscal year, March 31, 2009. But by the end of December 2008, we were already well below that number and we expect the population to continue to decline.

Inmate Population chart

As a result of the continued decline in the number of inmates in the system during this fiscal year, we undertook two consolidations in which we removed staffing for 1,805 unneeded beds, allowing us to keep 306 staff positions vacant and save approximately $16 million in payroll costson an annual basis.

Two overriding factors should determine our need for space: the steep population decline and the changing profile of the inmate population. Since I became Commissioner in January 2007, the system has seen a drop in the number of inmates of more than 3,000 – in just 24 months. Meantime, the changes you and your colleagues made to the drug laws in 2004 have resulted in a much lower percentage of drug offenders in our system. The number of inmates in the system for drug-related crimes – the major reason for our growth in the 1990s – declined from 23,511, or 34 percent of all inmates in 1996, to 11,936, or under 20 percent now. This is a level not seen since the mid 1980s - over 20 years ago. Furthermore, the 5,191 new drug commitments to DOCS in 2008 represented the lowest total since 1987, when there were 5,106 new drug commitments.

You are undoubtedly aware that those opposed to closing correctional facilities claim the State prison system is over-capacity. This is simply not true. It was accurate in December 1999, when we hit our all-time population high of nearly 71,600 inmates. But today, as mentioned, we are dipping below 60,000 inmates – a 16 percent decline. Also as mentioned earlier, we have more than 1,000 staffed vacant general confinement beds, reducing the need to keep all 70 of our correctional institutions open.

Inmate Population vs Total Beds chart

The chart above shows that as of the end of 2008, we had over 7,000 fewer inmates than beds system-wide. That includes all beds – general confinement, infirmary, mental health and Special Housing Units (SHU).

The over-capacity charge stems from a federally-mandated statistic which is based on the concept that a general confinement bed should be available for every inmate. But at any given time, thousands of inmates are in infirmary beds receiving medical treatment, in mental health beds, serving disciplinary sanctions in SHUs, or in local and federal facilities facing pending charges - what we call “Out to Court.” At last count, the general confinement bed occupancy rate was below 95 percent. In a system that counts 57,403 general confinement beds, that translates into more than 3,200 vacant general confinement beds.

Confinement Beds chart

The general confinement occupancy statistic listed on our daily population sheet - 94.4 percent as of January 21, 2009 - excludes what are currently termed “temporary beds.” Those beds are no different from any other beds in our system, were classified as temporary over time for a variety of reasons, and are in the process of being re-classified as “permanent” beds, as they should be. The chart below shows the actual number of and percentage of vacant general confinement beds, including “temporary beds.”

General Confinement Capacity chart

We acknowledge fewer vacancies than actually exist because of the consolidations we undertook last fall, in which we vacated dorms, eliminated the security posts there and moved the inmates into vacant beds in other, staffed dorms. But the unstaffed beds in the vacated dorms remain a part of our system, requiring maintenance, upkeep, heating and other costs.

While it is true that we double-bunk some inmates, the overwhelming majority of our double bunks are in complete conformity with all minimum standards established by the agency charged with our oversight, the State Commission of Correction (SCOC); only 337 beds throughout the entire system require variance approvals from the SCOC. The photographs below show double-bunks along the far wall of a prototype dormitory from the vantage point of the supervising Correction Officer. As you can see, our security staff has an unobstructed view of every living space in the dorm. This not only conforms with approved and accepted correctional practices, but has proven effective at maintaining prison safety. The number of inmate-on-staff assaults in the dormitory areas of our medium security correctional facilities is minimal. We operate 31 medium security prisons with dorms, and since 2003, we have averaged – systemwide - fewer than 31 inmate-on-staff assaults annually in those dorms. That’s fewer than one assault per facility per year on average.

Photo of dormitory in a New York State correctional facility

Photo of dormitory in a New York State correctional facility

These photographs are starkly different from those the New York State Correctional Officers and Police Benevolent Association – the Correction Officers’ union - has publicized recently as part of paid ads. That’s because our photographs actually show a dormitory in a New York State correctional facility. The union’s photographs do not. They were taken from overcrowded dorms in other prison systems. Their use is nothing more than a disingenuous scare tactic and an insult to all of our employees, who have made ours one of the safest prison systems in the nation. The Governor’s Executive Budget would not result in adding a single additional double-bunk in any of our facilities. It would merely allow us to run our system more intelligently and efficiently and provide an opportunity for other jobs within the agency for most, if not all, staff.

And to clear up a common misconception, closing correctional facilities would not result in the early release of inmates; it would merely result in the transfer of the inmates to vacant beds in already-staffed housing units at remaining facilities.

Our four correctional camps are more than half-empty, and for a very good reason: they were originally established for minimum security inmates to work on community service crews, in a facility with no perimeter fence. By law, only inmates 24 months to release can be placed at camps. Those inmates are typically in need of the kind of reentry services such as educational, vocational, life skill building and treatment programs that camps provide only minimally.

Also, program requirements for Merit Time, Supplemental Merit Time and conditional release, as well as medical and mental health services, are not as available at camps. Inmates with medical problems cannot be placed in camps due to the type of work and limited medical services there. Inmates that would have been placed in camps 20 years ago are now sent to programs with proven track records of success such as Comprehensive Alcohol and Substance Abuse Treatment, Work Release and Shock.

In the last year and a half, we have opened two specialized reentry units at Orleans Correctional Facility for men scheduled to be released back to Erie and Monroe counties. We operate a reentry program at Queensboro Correctional Facility. And we are planning additional specialized reentry units in the near future at Hudson Correctional Facility and the women’s Bayview Correctional Facility – all prisons that are equipped to provide these services. These reentry units provide individualized plans tailored to each inmate’s future needs. The units also facilitate face-to-face, personal contact between inmates and employment counselors, social workers, Parole officers, representatives of community organizations and human service agencies, treatment providers and others who will provide critical support during the key make-or-break period immediately following the offender’s release from prison. This is the direction our Department must go to improve the chances for offenders to live responsible lives after their release, avoid returning to prison, and in the process enhance public safety and benefit taxpayers.

The Governor’s Executive Budget postpones the effective date of the SHU Exclusion Law by three years, to July 1, 2014 and limits the number of facilities to which the law would apply. This law limits the placement of inmates with serious mental illness in SHUs for disciplinary confinement sanctions. The law also requires that those inmates be offered four hours of out-of-cell time for therapy and programming, necessitating construction of additional and very expensive Residential Mental Health Units (RMHU), along with the hiring of a considerable number of new staff by both the Department of Correctional Services and the Office of Mental Health.

Apart from the requirements of the SHU Exclusion Law, we will open a 100-bed RMHU at Marcy Correctional Facility this year. We believe the RMHU, along with the other programs we already operate, will provide an adequate heightened level of care for all inmates with serious mental illness who are housed in SHUs. This means that all such inmates will be offered either two hours per day, or as much as four hours per day, of out-of-cell structured therapeutic programming and/or mental health treatment as required by the court-approved private settlement agreement the State reached with Disability Advocates Inc. in April 2007.

Delaying the SHU Exclusion law will also provide invaluable operational experience with the RMHU, which may result in modifications based on future needs. Additionally, the SHU Exclusion Law would not allow the continued use of our successful Specialized Treatment Program (STP) and Group Therapy Program (GTP) as acceptable treatment modalities. Furthermore, we have fundamentally changed and continue to change the culture of the agency with respect to the way staff respond to inmates with mental illness.

New York accounts for 6 percent of national spending on state corrections but houses only 4.5 percent of the nation’s prisoners. Part of the reason is nearly one in seven New York State employees works in corrections - 13.6 percent – compared with about one in nine nationally, or 11 percent. And from January 2000 through September 2008, while our inmate population declined by 14.6 percent, the number of Department employees declined by only 3.2 percent. A big part of the reason: our inability to close prisons even as our inmate population was plummeting.

We have already begun to make the serious spending cuts within our administrative control. As previously noted, the housing consolidations we undertook this past fall at our medium and minimum security prisons are achieving annual payroll savings of more than $16 million – not including benefits. That represents about 1.5 percent of our total payroll costs on correction officers. Recognizing that every level of our Department needs to sacrifice, I also reduced our administrative expenditures by nearly $2.3 million by leaving vacant certain regional and facility administrative positions, such as deputy superintendent. Those savings represent 5.1 percent of our payroll spending on administrative services (defined as superintendents, deputy superintendents and Central Office).

We also economized by eliminating one of the five weekday inmate transportation days. We reduced overtime hours by 15 percent in the first three quarters of 2008-09 compared with the same period for 2007-08 – a reduction of nearly $10 million. We plan to adjust training schedules to reduce overtime even more. We eliminated 43 of 205 inmate community work crews, each of which costs $60,000 per year at a minimum for the required supervision of inmates. Those efforts were part of more than $90 million in savings we achieved this fiscal year. But we continue to face major, legally mandated expenses, including expanded sex offender treatment required by the Sex Offender Management and Treatment Act of 2007 and enhanced services for inmates with mental illness as required by the Disability Advocates Inc. settlement. While devoting tax dollars where we must, we are also continuing to provide valuable programs such as education, which have proven to reduce recidivism.

We are also trying to help local property taxpayers. Last summer, we opened two new inmate intake centers at Auburn and Albion Correctional Facilities. They are significantly reducing the time, manpower and money locally-funded Sheriff’s Departments in Central and Western New York must devote to deliver convicted felons to our custody. Until last summer, all female offenders had to be transported to Bedford Hills Correctional Facility in Westchester County, which had been our only female intake center. And we are expanding the “Cook-Chill” operation at our Food Production Center in Oneida County, selling inexpensive but nutritious food products to interested counties for their local jail inmates at an estimated savings of $730 per inmate annually. Already, 11 counties have signed contracts with us to purchase Cook-Chill. Additionally, Governor Paterson is attempting to help the needy at no expense to State taxpayers through his proposal to offer Cook-Chill food products at cost to soup kitchens and food pantries.

According to the U.S. Bureau of Justice Statistics, New York had the largest decrease in the rate of incarceration in the nation from 2000 to 2007, even as the incarceration rate increased in 37 other states. And yet during that time, New York’s recidivism rate for new crimes – the rate of ex-offenders who return to prison for a new crime within three years - has remained below 12 percent – less than half what it was for inmates released in 1990.

Each of the Executive Budget’s proposals for the Department of Correctional Services reflects these realities. Governor Paterson has taken a common-sense approach, proposing to operate the State prison system more rationally while saving taxpayers money without compromising safety or security. Through the leadership of both the Executive and Legislative branches, the State of New York has done and continues to do the hard work of “right-sizing” the prison system. However, while we are nationally recognized for successfully reducing the number of inmates we incarcerate, we have failed to take full fiscal advantage of our achievements because we have been unable to close unneeded prisons.

We recognize that the difficult but very sensible cost-cutting proposals in the Governor’s Executive Budget will impact the communities that host our camps and annexes and the many employees whose loyalty and dedication have helped make our prison system one of the best and safest in the nation. We are committed to working with you, our employees, the labor unions that represent them, and other appropriate State agencies and local communities to deal with the impact of these proposals.

We understand that you may disagree with some elements of the Governor’s plan for Correctional Services, but for every cost-saving proposal that is not accepted, we must come forward with an equal amount of recurring savings. We welcome a productive dialogue, and we must all be mindful that meeting our legal obligation to close the State’s $15.4 billion budget deficit will require shared sacrifice and reductions across every area of State spending.

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