“Smoke Screen”:

Experiences with the Incarcerated Grievance Program in New York State Prisons

"The grievance committee was formulated to mediate between staff and convicts so the Attica riot was not repeated. Yet the IGP has become a farce that wastes everyone’s time and does little to nothing to resolve issues that could easily be taken care of with minimal effort.”

Incarcerated Person

Walsh Regional Medical Unit

Introduction

The Incarcerated Grievance Program (IGP) in New York State was created to address “the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure or rule. ”The program purports to provide “each incarcerated individual with an orderly, fair, simple and expeditious method for grievances” as detailed in Directive 4040 and in accordance with Correction Law 139 and New York Codes, Rules and Regulations Part 7695.

The IGP represents the only internal mechanism that allows incarcerated people in New York State facilities with recourse to address issues with most aspects of prison life. As stipulated by the Prison Litigation Reform Act, which was enacted in 1996 and designed to decrease the rate of litigation by incarcerated people, it is also necessary for the IGP to be exhausted before incarcerated people can litigate bring litigation about prison conditions. Consequently, it is essential for the IGP to be both fair and procedurally sound for the proper functioning of the grievance program, both for internal dispute resolution and as a prerequisite for litigation.

The Correctional Association of New York (CANY), a non-profit organization mandated by the state to conduct oversight of state correctional facilities, has repeatedly documented that the IGP in New York State is perceived by incarcerated people as fundamentally failing. During monitoring visits, and in correspondence with incarcerated people and their families, the program is frequently cited as restricted in scope, lacking transparency and fairness, failing to resolve grievances within specified time limits, and widely subject to physical and other forms of retaliation. Together these failures inflict significant damage on perceptions of legitimacy of the system and negatively impact relationships between incarcerated people and staff.

To explore the scope and depth of these issues, CANY administered a system wide survey to roughly 10% (2805) of the prison population of New York State which received 540 responses (approx. 20% response rate). This survey, together with desk research into comparable programs across the US and abroad, a series of key-informant interviews with Incarcerated Grievance Resolution Committees, Incarcerated Grievance Program Supervisors, researchers and legal practitioners, inform the key findings in this report. In comments, many incarcerated people also articulated practical, relevant and realistic recommendations to reimagine the IGP, which will form the basis for a forthcoming separate report.

The survey data confirms that the IGP is heavily used and seen as vital by the incarcerated population, even as it fails to provide recourse. Despite this, the process does not apply to numerous aspects of prison life. For some issues, such as medical grievances, the procedures outlined within the system do not allow for a comprehensive hearing into the details of service delivery by those with relevant knowledge. There are frequent administrative and practical obstacles to filing grievances. The system does not ensure transparent and consistent processes in running key components such as the election of the Incarcerated Grievance Resolution Committee, the role of the Inmate Grievance Program Supervisor, the decisions made on appeals and by the superintendent, and the decision-making process for appeals received by the Central Office Review Committee. Finally, there is widespread evidence, and fear, of retaliation for filing grievances. These factors result in perceptions that the IGP is fundamentally unfair.

The IGP in New York has issues in common with jurisdictions across the US, including lack of accessibility, lack of transparency, perceptions of bias, and fears of retaliation. The PLRA, and particularly the requirement that specified that remedies must be exhausted, is also relevant across the US. For those reason, the findings within this report may be applicable beyond New York State.

Background

The historical origins of the grievance process in New York State.

The grievance program in New York and across the United States has a direct link to the legacy of the Attica uprising in 1971. During the uprising, incarcerated people engaged in negotiations on key complaints. In the aftermath of Attica, the McKay Commission recommended a series of reforms. This included “Reform No. 18: Establish an inmate grievance commission comprised of one elected inmate from each company, which is authorized to speak to the administration.” The grievance process came into existence in New York State in 1976.

Many of the other recommendations made by the commission were not adopted at all including the establishment of a parliamentary ombudsman, and introduction of a minimum wage. Prisoners’ Legal Services and law libraries continue to exist but are limited in the amount of support that they can provide to those seeking recourse for issues that occurred inside prisons.

In New York, in survey data and in conversations, many incarcerated people cite the legacy of the Attica uprising and corresponding legal changes as having a particular relevance to increasing their frustration at the IGP. The grievance program, once deemed to be one of the only positive outcomes of the Attica uprising, is essentially perceived as a failure in practice.

Relevant studies from jurisdictions across the US

There are several recent studies across multiple jurisdictions that have direct relevance to the IGP in New York. Common themes manifest themselves across multiple states because of the implications of federal legislation and because IGPs are set up to fail without effective safeguards and methods of recourse beyond those that are specific to grievances.

A 50-state survey in 2015 drew conclusions that closely align with CANY’s findings from New York. In multiple states, IGPs suffer from a lack of clarity on issues subject to the IGP, multiple obstacles related to access, excessive reliance on paperwork, the need for independence of appeal mechanisms, and the need for clearly articulated reasons for denials.

In Washington State in 2020, workshops within the correctional ombuds resulted in realistic recommendations, including the need to build confidence in and knowledge of the system and reduce fears of retaliation by actively defining ‘retaliation’ to improve accountability, provide training with visual tools for its grievance system to improve understanding twice a year, and to ensure a meaningful response and increase documentation across all aspects of the process. The existence of such a workshop, and the identification of these specific needs, are relevant and applicable to New York.

In Vermont in 2022, long delays and allegations of unfairness in the grievance system triggered an audit report which found the process was marred by poor record keeping, a lack of oversight, and a lack of clear responses. In response, the Vermont DOC identified plans for the use of tablets and for the establishment of an independent corrections investigative unit.

In Texas, a 2017 report from The Prison Justice League found multiple issues including delays, lack of transparency, and lack of oversight. The report recommended using the model of independent oversight to which the juvenile justice system in Texas is subject. The need for independence is highlighted as a basis for improvement by incarcerated people throughout this report.

In North Carolina in 2023, an independent oversight agency’s report recommends that a task force be established to address problems with the IGP in the context of a ruling by a federal appeals court that likens the IGP system to a Catch-22. The report recommends that the North Carolina Department of Adult Correction introduce measures to prevent retaliation, allow grievants to participate in collecting evidence, increase transparency of the process to the public and introduce tablets to keep an accurate record of grievances filed.

In New York City in 2018, the Board of Corrections published an updated version of recommendations for improving city jails the grievance process. These included measures to improve independence for things such as the use of a citywide 311 telephone system which is not controlled by NYCDOC’. The report recommended that appeals be shared with the BOC. The BOC also suggested that an action- plan should be developed to address the most raised grievances.

The reports from the different entities differ in detail but show the same lack of transparency, failure to attend deadlines, and need for independence.

In addition to the geographical contextualization provided by policy-oriented reports, the survey findings also shed light on the meaning incarcerated people ascribe to the process. Calavita and Jenness’ expansive study of California from 2015 mirrors findings in New York documenting a labyrinthine process that delivers neither justice, nor efficiency, nor constitutional conditions of confinement. A follow-up study identifies that there are differences in how procedural justice is viewed in prison in comparison to other contexts.

“In contrast to findings from the procedural justice scholarship, these prisoners privilege the actual outcomes of disputes—rather than the process—as their barometer of justice. We argue that the dominance of substantive outcomes in these men’s perceptions of fairness and in their dispute satisfaction is grounded in, among other things, the high stakes of the prison context.

Not only are actual grievance outcomes more important to these prisoners’ satisfaction than their perceptions of a fair process are, but in many cases the former drives the latter.”

This is reinforced by a study in Ireland that argues that:

“Having confidence in staff is associated with satisfaction with the procedure, as is the perception that one’s rights are respected, showing important connections between perceptions of complaints and aspects of legal consciousness. We suggest a need for further situated analyses of procedural justice and legal consciousness, as well as practical requirements for complaints systems to elicit confidence among incarcerated people.”

Survey data demonstrates that people identify procedural problems across the system. However, they are also doing so in the context in which the IGP provides very poor outcomes. A common theme throughout this report is that the stakes of the process matter, and that the very absence of fairness impacts the way in which each aspect of the process is perceived.

The Incarcerated Grievance Process in New York State

The grievance process is codified in Correction Law 139, which stipulates the need for an Incarcerated Grievance Resolution Committee. It lists procedures and the need for durations but not the durations themselves or the implications if they are not met. It identifies that need for an appeals process to the commissioner, but does nothing to stipulate how the mechanism will retain independence or objectivity. Given how much impact the requirements for exhaustion have on incarcerated people, it is striking how unspecific the requirements are.

Correction Law also outlines a role for the State Commission on Corrections.

“The commission shall annually evaluate and assess the grievance procedures in correctional facilities, and make any recommendations with respect to the proper operation or improvement of the grievance procedures and provide such report to the commissioner and the chairmen of the senate codes and crime and corrections and assembly codes and correction committees.”

This is the only possible avenue for independent assessment of the process. It does not stipulate the form this assessment takes or allow for the investigation of individual grievances. There is very little in the public domain on what the annual assessment by the State Commission on Correction looks like, except for what is included in the annual report which only cites information from county jails in Annex 7. Even the limited information that is provided on jails does not assess the viability of the process in addressing grievances themselves.

Correction Law 139 also requires DOCCS to “semi-annually report to the chairmen of the senate codes and crime and correction committees and the assembly codes and correction committees on the nature and type of incarcerated individual grievances and unusual incidents, by facility.” The semi-annual report presents grievances by code. However, the broad definitions of codes prohibit meaningful analysis of trends through grievance. Additionally, as this report will document, incarcerated people observe that the codes ascribed often fail to represent the nature of the grievance. As of May 2023, the most recently published semi-annual report was published to cover the first six months of 2022.

Elements of the grievance process in New York State prisons:

The following section provides a brief description of the elements of the process.

Directive 4040: The departmental directive that stipulates most aspects of the grievance program. Directive 4041 is the version that applies to SHU.

The Incarcerated Grievance Resolution Committee: As specified in Directive 4040, the IGRC is a group of four people. This includes two representatives from the incarcerated population and two staff members, who should have received specialist training.

Grievance Clerk: The grievance clerk is an incarcerated person who works on the administrative components of the process but does not participate in the IGRC vote.

IGP Supervisor: The IGP Supervisor is a civilian staff member with responsibility for receiving and processing grievances, and for coordinating IGRC hearings.

IGP Sergeant: The IGP Sergeant is a security staff member who is responsible for following up with security staff to have them informally resolve (i.e., sign off on) grievances.

Facility Superintendent: The Facility Superintendent reviews all grievances that have been heard by the IGRC and are referred to them, whether or not they are denied or upheld. The superintendent is responsible for assessing all Code 49 grievances.

Central Office Review Committee (CORC): The Central Office Review Committee includes the Deputy Commissioner and Counsel, Deputy Commissioner for Correctional Facilities, Deputy Commissioner for Program Services, Deputy Commissioner for Administrative Services, and the Deputy Commissioner and Chief Medical Officer, or their designees expressly authorized to act for them. A representative of the Office of Diversity Management will attend CORC hearings and have input on grievances alleging discrimination but will not vote. The CORC is the final stage of appeal for all grievances.

The impact of the Prison Litigation Reform Act

Literature from across the country conveys how the Prison Litigation Reform Act (PLRA) has had a significant impact on the reasons why people file grievances, and the nature of the experiences that incarcerated people have with IGPs. Many of the core obstacles to recourse that are observed throughout this report derive from the PLRA.

The PLRA does not mandate what should be included in a grievance system, meaning that the federal requirement is linked to the IGP’s procedural failings. This is a fundamental problem when the system fails as “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”

The PLRA, when signed in 1996, aimed to reduce ‘frivolous’ lawsuits. The ‘exhaustion of remedies’ stipulation has several impacts aimed at making it harder to litigate. These include making it more expensive than it would be on the outside, reducing the ability to claim for mental damage by restricting cases to physical injury, reducing fees for civil rights cases, and reducing the scope for settlement.

Together, these restrictions make suing the state for mistreatment incredibly difficult, even when the grievance process has been ‘exhausted.’ The combination of the difficulties in litigation and the need for the IGP to be “exhausted” before litigation makes the proper functioning of the IGP crucial.

In future reporting, CANY will provide additional analysis of the challenges posed by the PLRA and recommendations for reform at both the state and federal levels.

KEY FINDINGS

SCOPE OF USE

1. The vast majority of incarcerated people in New York State Prisons use the IGP.

The overwhelming majority of respondents had filed a grievance (84%, n=456). Just over half appealed their most recent grievance to the superintendent (58%, n=224), around half had appealed a grievance to the CORC (52%, n=337), and around half filed a grievance on staff-misconduct (40%, n=351). In the first six months of 2022, DOCCS reports that 10,584 grievances were filed by incarcerated individuals.

2. The most commonly filed grievances address staff-misconduct and medical issues.

Both survey results and DOCCS’ semi-annual reports consistently show medical (Code 22) and staff misconduct (Code 49) to be the most subjects of grievances by far. There are specific procedural challenges in the way that both medical and staff-harassment issues are handled. It is not clear to what extent DOCCS uses this data to understand failures within the system as reporting tools do not document more information than the very broad interpretation allowed by the coding.

AWARENESS OF THE IGP

3. Most incarcerated people are aware of the grievance process and its basic elements.

Most incarcerated people are aware of basic elements of the grievance process, such as Directive 404034 (68%, n=310), where to locate the drop-box in their facilities (66%, n=455), the existence of the IGRC (68%, n=462), and how they can appeal to CORC (65%, n=334).

4. Most people cite other incarcerated people as their main source of information on the IGP.

Almost half (48%, n=381) of respondents cited other incarcerated people as the main source of information about the IGP, although there was a significant number (30%) citing an orientation at the facility. Survey data indicates IGP is usually included in orientation sessions, but incarcerated people tend to prioritize information provided by other incarcerated people.

5. Many grievances are immediately dismissed at the first hurdle for simple procedural reasons.

IGRC clerks and supervisors frequently describe how many grievances are immediately dismissed for simple reasons, for example, because the grievants have not attempted to solve the problem through other means first, or because they are not alleging that a directive has been violated as stipulated in 701.3 (a) or Directive 4040. This demonstrates misconceptions of the program due to incorrect information and results in frustration.

ROLES OF IGRC, IGP, SUPERINTENDENT AND CORC

6. Most incarcerated people did not vote for their IGRC representatives.

Most people (60%, n= 335) say that they did not vote for their representatives as specified in Directive 4040. IGRC members are often hand-picked by the administration. When elections do take place, people often say that they are unaware of the candidates and that it is common practice to vote for the candidate with the oldest Departmental Identification Number.

7. Many people are unclear of the role of the IGP supervisor.

Many people (38%, n=235) say that the role of the IGP supervisor is unclear to them. 67% of respondents (n=234) did not believe that the IGP supervisor communicated the program clearly. This may partly be explained by the fact that over half of respondents said that the IGP supervisor did not meet with them on their grievance (52%, n=341).

8. There are some advantages to informal resolution of grievances. However, informal resolutions depend on individual approaches that do not allow for the clear documentation and use of trends.

The IGP supervisor encourages many people to resolve grievances informally (40%, n=331). While there are some advantages to informal resolution, in that it resolves issues more quickly, informal resolution is even more vulnerable to the personal bias of individual staff- members, resulting in a lack of standardization across the system which impacts trust.

Informal resolutions are also not systematically registered, prohibiting analysis of data to understand trends in grievances.

PROCEDURAL INTEGRITY AND FAIRNESS

9. Existing procedural failures mean that the IGRC cannot accurately assess medical grievances leading to unacceptable delays while the process goes to the CORC.

The IGRC is not equipped or qualified to accurately assess the quality of clinical care supplied by healthcare professionals, and will therefore systematically deny medical grievances in which healthcare staff contest grievances related to the quality of care. While CORC does have medical expertise as part of its make-up, the delays in CORC appeals are so great that it is impossible to address time-sensitive medical issues effectively. It is also not clear to what extent the Chief Medical Officer, who is on the CORC, is able to effectively look into the details of clinical care of each individual case.

10. Most explanations for denial or dismissal of grievances do not address the points raised in the grievances.

While 45% (n=125) said that they were aware of the outcome of their most recent grievance, and 74% (n=54) of those that were aware said that they received an explanation for dismissals and denial, 76% (n=38) of those that received an explanation said that the explanation did not address the point made in the grievance, thereby leaving issues unaddressed and grievants without a sense of just process.

11. There are frequent failures to implement decisions in favor of incarcerated people.

Most people (68%, n=388) do not believe staff carry out decisions that are made in incarcerated people’s favor. This is indicative of an absence of effective follow-up on decisions and has further implications for the value placed in the process.

12. Code 49 grievances are frequently deliberately misfiled as Code 23 grievances on ‘internal block affairs’, impacting the number of allegations of staff misconduct that are registered.

Some incarcerated people said that superintendents disingenuously apply Clause 701.2 (e) from Directive 4040, which is extremely vague, to falsely determine that grievances do not constitute staff harassment. Consequently, many grievances are not subject to the same relative confidentiality that comes with Code 49 grievances, and facilities do not supply DOCCS and the OSI with accurate data indicating the scale of harassment.

ACCESS AND OBSTRUCTION

13. Most people cannot file grievances for all of the issues that are important to them.

Issues such as mental health provision, tablets, and others which are provided by external service providers, are not subject to the grievance process and are subject to their own complaints mechanisms. These complaints mechanisms are not subject to departmental directives and have little oversight. For example, malfunctioning tablets are dependent on a reportedly ineffective JPay-run helpdesk and DOCCS does not ensure accountability when complaints are not addressed.

14. Accessibility of forms and physical access are significant barriers to filing grievances.

54% (n=420) of incarcerated people said that they cannot get grievance forms when they need them. 45% (n=442) of people said that they had problems accessing the drop box. The issue was particularly acute at Upstate, where the entire population is held in the SHU or RRU. Multiple survey comments describe grievances being ripped up by staff or obstructed in other ways after submission. Others alleged that filing is frequently delayed so that response times are extended, and grievances can be claimed as invalid.

RETALIATION AND FEAR

15. Most respondents said they did not file grievances when they had reason to do so. The majority cited fear of widespread retaliation from staff.

80% (n=447) of respondents said that they had decided not to file a grievance despite having a reason to do so, with the majority citing fear of retaliation as the reason not to file. 67% (n=493) said that they thought incarcerated people were either ‘always afraid’ or ‘somewhat afraid’ with just 6% saying that people were not afraid at all. 61% (n=443) said that they had experienced retaliation from filing a grievance. Multiple comments described multiple forms of retaliation, including violence as well as unfair ticketing.

16. Most people do not trust the IGRC, IGP supervisors, superintendents, or CORC to handle grievances fairly.

70% (n=345) of respondents said that they do not trust IGRC representatives to represent incarcerated people’s interests fairly. 89% (n=414) of people said that they do not think that the Superintendent handles grievances fairly. 74% (n=371) believed that the CORC did not handle grievances fairly.

DURATION AND THE PLRA

17. Almost all grievances are not resolved within the time limits specified within Directive 4040 at all stages in the process.

Survey data, administrative data, and comments by both incarcerated people and executive teams show conclusively that grievances are rarely resolved within the time limits specified in Directive 4040. 77% (n=322) said that their most recent grievance was not heard or resolved within 16 calendar days at the first stage. 82% (n=120) said that a judgement on their most recent Code 49 grievance was not made by the Superintendent within 25 calendar days. 78% (n=152) said that their most recent appeal to CORC was not reviewed within 30 days.

The failure of the process to work within timeframes often precludes the possibility of the IGP solving the problem raised in their grievance in ways that are meaningful for people. This failure also further reduces trust in the system. Protracted processes also prevent people from filing an Article 78, which is a lawsuit against a New York state agency, due to the state administrative law ‘exhaustion of remedies’ requirement.

18. Around half of respondents have filed a grievance purely to exhaust the process in order to litigate.

The impact of the requirements for ‘exhaustion of remedies’ in the PLRA and in state law is such that nearly half of respondents (47%, n=300) said that they had engaged with the process purely to allow them to litigate. In comments, people describe the IGP as an obstacle to be negotiated prior to litigation.

19. There is widespread confusion on whether ‘exhaustion of remedies’ in achieved when CORC fails to reach a decision within 30 days.

The vast majority of cases sent to CORC are not reviewed within the 30-day timeframe. At state level, Article 78 complaints cannot be filed until an answer from CORC is received, however long the process takes. People are also often uncertain about when and how they can litigate on a federal level.

20. There are low rates of grievances being found in incarcerated people’s favor, and incredibly low rates of Code 49 grievances being found in incarcerated people’s favor.

18% of people (n=310) said that their most recent grievance was found in their favor. Only 9% (n=139) of respondents said their most recent appeal to CORC was decided in their favor. Just 6% of people (n=128) had ever had a Code 49 grievance found in their favor by a Superintendent, and 8% (n=139) were aware of any instances in which the Superintendent decided a Code 49 grievance in favor of incarcerated people. In referring to the poor chance of positive outcomes, large numbers of comments described the IGP as a “sham.”

21. Most respondents believe that the IGP is ineffective and makes relationships between staff and incarcerated people worse. 87% (n=360) of respondents considered the IGP ‘not effective’ or ‘seldom effective.’ Most people (66%, n=452) believed that the IGP makes relations worse between staff and incarcerated people. Together, these results show the impact of the documented failures and demonstrate that the IGP has precisely the opposite outcome of its purported intention.

It all begins with an idea.

The Correctional Association of New York (CANY) released a report on the implementation of the Humane Alternatives to Long-Term (HALT) Solitary Confinement Law in state prisons.

CANY released a report finding a prison severely lacking in infrastructure, struggling to meet basic the facets and needs of incarcerated individuals, and continuing to grapple with reports of sexual harassment and assault at the women’s prison, in tension with the department's claim that Albion is ‘an example of why New York is a leader in the corrections field.’

The Correctional Association of New York (CANY), the independent oversight organization for the state’s prisons, has released a Post-Visit Briefing report from a monitoring visit to Elmira Correctional Facility in April 2022, which followed the receipt of data showing the prison had more deaths by suicide than at any other prison in the state.

CANY has released a report calling for an investigation into allegations of abuse at Bare Hill Correctional Facility in Malone, New York. CANY released similar reports on monitoring at Great Meadow, Clinton, Downstate, Bedford Hills, and Sing Sing Correctional Facilities.

CANY has released a report of observations and recommendations from our monitoring visit to Sing Sing Correctional Facility in February 2022. This briefing document also includes a written response from the Department of Corrections and Community Supervision (DOCCS).

CANY has released four reports summarizing observations, findings, and recommendations from CANY’s monitoring at Great Meadow, Clinton, Downstate, and Bedford Hills Correctional Facilities in 2021. These reports also include written responses from the Department of Corrections and Community Supervision.

CANY, along with the John Howard Association of Illinois and the Pennsylvania Prison Society, have produced a collaborative report comparing the responses of the prison systems in three states to the COVID-19 pandemic.