Department of Corrections and Community Supervision

New York State
Department of Correctional Services
Glenn S. Goord, Commissioner

Office of Public Information
[518] 457-8182

For immediate release:

Thursday, May 6, 2004

Prison system suspends inmate sex offender treatment program in face of 'outrageous' court order;
Commissioner Glenn S. Goord says ruling would gut the program by giving control of it to inmates

Commissioner Glenn S. Goord today ordered the immediate suspension of the prison system's sex offender treatment program and the substitution of an intensive counseling alternative while he appeals what he termed an "outrageous" federal court decision and order that he said guts the program by allowing inmates to dictate its rules of operation.

U.S. Northern District Court Judge David Hurd in Utica issued a 35-page decision and four-page order on April 15 that temporarily restrains the Department of Correctional Services from compelling inmates to discuss their sex offender history.  He then denied the Department's request for a stay of his order while the Department appealed his decision, only modifying his original order on April 23. In that two-page order, he prohibited the state from taking good time from inmates who choose not to divulge their sexual histories. The Department will seek a stay of Judge Hurd's ruling from the U.S. Second Circuit Court of Appeals.

Commissioner Goord said, "Sex offenses are all about control. The judge has perpetuated that cycle by placing inmates in control of whether or not they will disclose their sexual histories in prison sex offender programs -- even though they would be required to do so to participate in similar programs outside of prison in New York or inside of many other prison systems across the nation. The judge's ruling effectively guts the program. It gives inmates a degree of control unheard of in most other sex offender programs, in prison or in the community."

Commissioner Goord said his chief priority is safety, inside and outside of prisons. He said, "The judge's order places me in a very difficult position: I realize the need to make inmates participate in a meaningful sex offender program to protect the public upon their release. But, at the same time, it would be a sham to deconstruct the program by allowing inmates to control how the program operates. I have program staff preparing an in-depth counseling program that will replace the sex offender treatment program while the judge's decision is appealed. In the meantime, no more inmates will be transferred into the sex offender treatment program. It is my intention that our new, intensive counseling program will continue to ensure the protection of all New Yorkers."

Virtually all sex offender programs across New York, in and out of prisons, require participants to discuss their histories as a means of addressing their overall criminal or aberrant behavior. Experts say that offenders must confront the totality of past behavior in order to begin dealing with it and to allow counselors to measure their progress and commitment to changing their behavior. 

That's why in New York's prisons, as well as in at least 16 other state prison systems across the nation, inmate participants are penalized if they refuse to discuss those histories. In New York prisons, that penalty is a  potential  loss of good time, extending their stay in prison.

Judge Hurd offered the Department two suggestions: make the sex offender program optional for inmates, or grant them "use immunity" for anything that they say during their program participation.

Commissioner Goord noted that any inmate who refuses to participate in an assigned program -- such as academics, vocational training, drug treatment or work assignments -- faces the loss of good time. "It strikes at the heart of our ability to manage the system if inmates can dictate the terms under which they participate in programs that we deem necessary for them to have any chance of a successful return to our streets."

"Use immunity" means that, while program staff could report any unsolved crimes or attacks confessed to by inmates, prosecutors could not use that information unless they could convince a judge they would have discovered the same information without the inmate's statement. In effect, inmates could admit other violent acts -- including murder -- and the "use immunity" would prevent their statements from being used against them.

"'Use immunity' places an intolerable burden upon prosecutors," Commissioner Goord said. "I will not grant inmates 'use immunity' that is tantamount to a 'stay out of jail card' complicating attempts to convict them of other crimes. 'Use immunity' grants inmates a sword with which to fight prosecution rather than a shield protecting their rights."

Before the judge's ruling, any detailed information on prior crimes disclosed during program proceedings could have, hypothetically, been reported to appropriate prosecutors.

Commissioner Goord added, "The judge appears willing to place a perceived Fifth Amendment  inmate right above the public's safety. Yet the fact remains that no inmate has ever divulged information in our programs that led to the inmate's prosecution. But the judge's order, in effect, would now open the door for inmates to admit past crimes and then make it extremely difficult for district attorneys to ever prosecute them."

There were 6,183 inmates serving sentences for sex offenses among the 64,781 inmates incarcerated in the state's 70 prisons on April 3. The Department operates 360 sex offender treatment program beds at the Gowanda prison in Erie County, 100 beds at the Oneida prison in Oneida County plus another 100 beds spread among 13 other prisons across the state. Virtually all of those beds are filled today. The six-month program serves more than 1,000 offenders  each year. Since sex offenders generally serve minimum sentences of more than a few years, virtually all of them will participate in the program prior to their release.

Over calendar years 2002-03, 2,766 inmates lost good time for refusing program assignments -- including 500 who refused the sex offender treatment program. Ironically, the inmate who brought the lawsuit in which Judge Hurd issued his order has lost a total of two years' good time for refusing to participate in the sex offender and  the aggression treatment programs. The inmate, David Donhauser, 36, is serving a sentence of 3-6 years for convictions in Erie and Wyoming counties for third-degree rape and two counts of third-degree burglary. He entered the prison system in August 1999 and is currently housed at the Mid-State Correctional Facility in Marcy.