This project was conducted with generous support from the Fund for Investigative Journalism.

Each of the 11 correctional facilities that the Bureau of Justice Statistics put on its 2008-2009 list of prisons and jails with the nation’s highest levels of inmate-reported staff sexual abuse had a rate that was at least 55 percent higher than the national average. New York had three state prisons among the 11.

But DOCS officials have downplayed New York’s prominence on that list. In August, when BJS released the results of its 2008-09 survey, NYS DOCS spokesperson Linda Foglia issued a statement saying that some surveyed inmates who reported staff sexual abuse might be mistaking pat friskers’ intentions.

The statement says in part: “Because safety and security remain a top priority, we conduct frequent pat frisks of inmates to help keep potentially dangerous contraband out of prison. These frisks can lead to allegations of inappropriate touching or abuse. We will work with the Department of Justice to see, based on the anonymous self-reporting data presented, if there are in fact identifiable patterns of abuse and to determine how much of the issue may be a question of interpretation and perception.” Indeed, BJS found nationwide that inmate-reported staff sexual abuse often occurred in conjunction with strip searches and pat downs. But the vast majority of victims participating in the survey—91 percent of women and 86 percent of men—reported that they had also experienced staff sexual abuse outside that context, suggesting that inmates aren’t overreporting sexual abuse because they’re confused about the difference between a frisk and a fondle.

The scrutiny DOJ is giving DOCS is more than it’s been getting from the state’s own watchdog. The Commission of Corrections, a three-member panel with the statutory authority to shut down unsafe prisons, hasn’t sent its staff to conduct a routine inspection of a New York State prison in about five years, with 70 percent of the staff responsible for conducting those inspections laid off, says James E. Lawrence, the commission’s director of operations. The commission focuses its scarce resources on New York State jails and has recently aggressively enforced the law banning sexual contact between inmates and staff at one upstate jail, prohibiting it from housing female inmates until the problems were rectified, says John Caher, the agency’s spokesperson. DOCS doesn’t need such an intervention, Lawrence says, saying that DOCS has strong leadership in their central office in Albany and many resources. “They have a very sophisticated sex crimes unit,” he says. “They’re using DNA work. They’re using sniffers. They’ve got sophisticated investigative techniques.”

But the State Senate and Assembly are each considering bills that would scrutinize DOCS track record, by implementing a commission to study sexual abuse in the state’s prisons and propose solutions. A version of the assembly bill has been under consideration since 2004. In mid-March it passed out of committee with unanimous support, says Jeffrion Aubry, the chair of the assembly’s Crime and Corrections Committee. Aubry says the legislature needs to study the problem despite the federal government’s ongoing seven-year national study of it. “We have anecdotal evidence that there is a problem, that’s been reported through lots of different sources,” the Queens Democrat says. “We need to be more diligent in monitoring what’s going on.”

Assemblyman Steve Hawley—a Republican from the 139th District, which contains the Albion prison, the female prison with the most substantiated incidents since 2005—issued a statement that says, in part: “While it is clear no incidence of sexual abuse of female prisoners by correctional officers can be tolerated, we must also be careful to ensure that further measures taken to prevent and punish this behavior do not have an unwarranted impact on the vast majority of dedicated, hardworking, decent and law-abiding correctional officers, who work 365 days a year to operate our prisons.”

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Over the years, DOCS has implemented some measures that address staff sexual abuse.

Although the agency doesn’t currently have enough cameras to meet a proposed federal standard, it has been installing them. Since 1995 the department has spent more than $35 million on the implementation of these systems.

DOCS “currently conducts criminal background checks on all new hires (including contract employees and volunteers) and has established a link with the New York State Division of Criminal Justice Services, which informs DOCS if an agency employee is arrested for any type of crime for the duration of his/her employment with DOCS,” says a letter that DOCS Commissioner Brian Fischer wrote the U.S. Department of Justice in May 2010. The letter also says, “DOCS presently provides each offender with an orientation concerning sexual abuse prevention upon admission to the system and upon every transfer to a new facility.” Fischer also pointed to the department’s Sex Crimes Unit, which consists of a deputy inspector general, an assistant deputy inspector general and 12 investigators who receive intensive training in investigative techniques.

But prison records indicate that many allegations never make it to the inspector general’s office. Prison officials at the seven prisons with women inmates recorded on so-called monthly staff-on-inmate incident/threat summary forms a combined total of 534 allegations from June 2005 to December 2010. But according to these forms, the resolution of 78 of these allegations, or 15 percent, did not involve the prison officials’ reporting them to the inspector general. Reporting rates varied widely among facilities. Bayview reported at least 97 percent of its allegations; Willard only 27 percent.

But some think more ambitious changes are needed. “When it comes to sexual assaults in prisons, there is much that needs to be done,” Karen Murtagh-Monks, the Albany-based executive director of Prisoners’ Legal Services, a statewide network of legal clinics, said via e-mail.

Critics and even some neutral observers say that to reduce the prevalence of sexual abuse, DOCS needs to further restrict cross-gender supervision.

When asked how DOCS should address the problem, Orleans County district attorney Joe Cardone says the prevalence is already low but adds that DOCS should hire more women in women’s prisons. “As much as possible, have same-gender guards in these facilities,” he says, adding that he doesn’t think it would violate equal employment law. “Those women that are hired, is there anything wrong with assigning them to women’s facilities as opposed to men’s facilities?”

At the very least, DOCS should stop assigning male staff members to posts that give them the opportunity to have unmonitored contact with female prisoners—like jobs in housing areas, especially at night—Freeman and Lewis say. Another preventive step that DOCS should take is limiting officers’ access to private, unmonitored areas such as kitchen storerooms, storage closets, slop sink areas and laundry areas, where sexual abuse may be easier to commit. In addition, when an employee generates a lot of complaints, prison officials should always increase the supervision of that person, to ensure that his unmonitored contact with female prisoners is limited, say Freeman and Lewis. Such changes can be implemented without violating the union contract, but ultimately, DOCS might have to consider doing that too, they say.

“You may never be able to achieve zero complaints in a year, but you can certainly not be one of the leaders of the country,” Freeman says. “There are steps that can be taken to reduce the risk.” It’s unclear yet whether their lawsuit against DOCS will force the agency to take any of those steps. A judge has ruled that since none of the inmates’ original grievances articulated in enough detail what policy changes they sought, their lawsuit cannot pursue such changes. They have appealed the ruling.

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Some of the criticisms of DOCS could still be addressed by the federal standards scheduled for adoption later this year. But Lewis and Freeman lack faith in DOCS’ willingness to comply, in part because Commissioner Fischer contested some of the standards initially proposed. Indeed, Fischer himself expressed skepticism that correctional systems could comply with all the standards. “This requirement of 100 percent compliance is a goal that is likely unachievable,” he says in his letter to the DOJ.

Moreover, Fischer says he doesn’t support the use of independent and qualified auditors to monitor DOCS’ compliance with the standards. His letter says accreditation by the American Correctional Association should be sufficient. All 67 DOCS prisons have already attained such accreditation.

“I recommend eliminating or significantly modifying the requirement for audits of compliance with the standards,” he says, adding that it “will create an enormous taxpayer burden by creating a team of consultants.”