As required by Chapter 262 of the Laws of 1996, the following is a list of rules which were adopted by the State Commission of Correction in calendar years 1998, 2003, 2008, and 2013 which must be reviewed in calendar year 2018. Public comment on the continuation or modification of these rules was invited. Public comments were received and assessed. Based upon the belief that said rules further the Commission’s mission to provide for a safe, stable and humane correctional system in New York State, and the assessment of the public comments requesting certain modifications, the Commission has determined and hereby gives notice pursuant to State Administrative Procedure Act § 207(4) that the rules listed below shall continue without modification.

CMC-52-97-00006 Amendment of sections 7040.5 and 7621.6(c) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to provide greater flexibility regarding the number of toilets, sinks, and showers that must be provided in multiple occupancy housing areas and conform minimum square footage requirements.

Legal basis for the rule: Correction Law section 45(6).

CMC-37-98-00001 Amendment of sections 7004.6 and 7025.4 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to provide local correctional facility administrators with greater flexibility regarding the disposition of contraband found in incoming correspondence and packages.

Legal basis for the rule: Correction Law section 45(6).

CMC-07-98-00005 Amendment of section 7006.8(a) and (h) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to extend the time frames for conducting disciplinary hearings and to clarify that an inmate must receive a hearing within 15 days of receipt of a misbehavior report and must receive at least 24 hours prior written notice of the hearing.

Legal basis for the rule: Correction Law section 45(6).

CMC-19-98-00015 Amendment of sections 7006.9(a) and 7008.3(a) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to authorize restriction of a portion of an inmate’s weekly visitation time as a sanction for misbehavior.

Legal basis for the rule: Correction Law section 45(6).

CMC-07-98-00006 Amendment of section 7008.4 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to specify that initial visits are non-contact visits.

Legal basis for the rule: Correction Law section 45(6).

CMC-24-98-00024 Amendment of section 7013.8(a) and (b); repeal of Section 7013.9; and addition of new section 7013.9

Analysis of the need for the rule: The rule is needed to reduce the instances in which an inmate’s classification status must be reviewed and provide greater flexibility regarding the housing of inmates pending completion of classification.

Legal basis for the rule: Correction Law sections 45(6) and 500-(b)(6).

CMC-13-98-00003 Repeal of Part 7014 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to repeal unnecessary provisions.

Legal basis for the rule: Correction law section 45(6).

CMC-13-98-00002 Repeal of Part 7017 and addition of new Part 7017 to Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to streamline the requirements of Part 7017 and eliminate unnecessary provisions.

Legal basis for the rule: Correction Law section 45(6) and (9).

CMC-11-98-00005 Amendment of section 7032.5(d) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to streamline the internal operations of the Citizens’ Policy and Complaint Review Council in order to improve the timeliness of its determinations.

Legal basis for the rule: Correction Law sections 42(b)(1) and 45(6).

CMC-28-98-00004 Amendment of section 7040.5 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to make technical conforming changes.

Legal basis for the rule: Correction Law section 45(6).

CMC-04-98-00005 Amendment of sections 7003.3, 7003.4, 7003.6, 7009.1, 7009.5, 7010.2, 7010.5, 7013.2, 7013.9,7028.3, 7040.4, 7064.4, 7064.8, 7070.2, 7070.6, 7200.2, 7200.3, 7200.6, 7400.4, 7400.6, 7400.11, 7602.4, 7602.5 and 7651.3 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to make technical corrections to various provisions of the Commission’s regulations.

Legal basis for the rule: Correction Law section 45(6).

CMC-01-13-00013 Amendment of sections 7005.7 and 7025.2 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to allow local correctional facilities to regulate the source of incoming inmate packages.

Legal basis for the rule: Correction Law sections 45(6) and 45(15).

CMC-11-13-00005 Amendment of sections 7013.8,7064.8, 7300.2, 7414.6, 7601.1 and 7651.3 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to amend references of the Department of Correctional Services to the Department of Corrections and Community Supervision.

Legal basis for the rule: Correction Law 45(6) and 45(15).

CMC-11-13-00004 Amendment of sections 7022.5(c), 7200.2(a), 7200.3, 7200.6(b),7202.4(a),7202.6 and 7202.11(a) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to amend the Commission of Correction’s listed address.

Legal basis for the rule: Correction Law 45(6) and 45(15).

CMC-14-13-00010 Amendment of section 7031.4 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to eliminate the requirement that law libraries be maintained within a local correctional facility.

Legal basis for the rule: Correction Law 45(6) and 45(15).

CMC-35-13-00006 Amendment of sections 7032.5 and 7032.8 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to allow local correctional facilities to submit inmate grievances electronically.

Legal basis for the rule: Correction Law 45(4), 45(6) and 45(15).

CMC-27-13-00011 Amendment of sections 7002.2(a) and 7205.2(c) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to reconcile a statutory amendment regarding foreign-state inmates in the Albany County Correctional Facility.

Assessment of Public Comment

In all, the New York State Commission of Correction (hereinafter “Commission”) received numerous formal comments from members of the public and from Disability Rights New York.

A preponderance of the public comments received expressed the same seven opinions. First, that the rule eliminating the requirement that law libraries be maintained within a local correctional facility should be amended to require that law libraries need to be located within the facility. These comments indicate that the removal of the law libraries from within a local correctional facility will result in the removal of the inmates not having access to legal reference material. The Commission disagrees. It has been well settled that prisoners have a constitutional right to access to the courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1494(1977). While Bounds requires correctional authorities to assist inmates with preparation of meaningful legal papers by providing prisoners with adequate law libraries, Lewis v. Casey 518 U.S.343, 116S.C.t. 2174 (1996) has held that Bounds “did not create an abstract, free-standing right to a law library or legal assistance” Id. At 2180. While the counties are no longer required to maintain physical law libraries within the local correctional facility, inmates are still entitled to access to the required legal reference materials. Furthermore, many facilities still maintain law libraries within the facility.

Second, the comments contend that the rule which authorizes the restriction of a portion of an inmate’s weekly visitation time as a sanction for misbehaving must be changed as families have a right to visitation with their loved one and the visitor should not be punished for the inmate’s misbehavior. Local correctional facility administrators need effect tool in order to manage inmate behavior. Some of the most effective sanctions, such as loss of good time, do not apply to pretrial detainees. Facility administrators need an effective tool in order to manage the behavior of these inmates. Since visitation is an important program for most inmates, the loss of up to one hour of visitation is an effective tool for administrators. Prior to the imposition of any sanction, an inmate has the right of due process through the disciplinary sanction. Further, inmates still would retain a minimum of one hour of visitation per week if such sanction was imposed.

Third, the comments oppose the rule requiring that initial visitation is a non-contact visit. These comments are under the misunderstanding that it is any visitor’s initial visitation with an inmate which could occur years after an individual is incarcerated. In actuality, the rule indicates that each prisoner shall be entitled to receive a noncontact visit within 24 hours after his admission to a local correctional facility, not a visitor’s initial visit with an individual. Given the fact that very little is known about the inmate until he/she has been classified, which does not occur within the first 24 hours of a person being incarcerated, this rule allows for the safeguard of the facility and inmate’s safety and security.

Fourth, the comments contend that the rule reducing the instances of review of an incarcerated person’s classification status be changed to having classification status review more frequently. These comments indicate that having the classification reviewed more frequently allows for inmates to be housed in facilities comparable to their classification and within proximity to their families and that it is more beneficial for inmates who appear before the parole board to be housed in medium security facilities. These comments misinterpret the rule to apply to state correctional facilities while the rule applies only to local correctional facilities.

Fifth, the comments oppose the rule allowing local correctional facilities to regulate the source of incoming packages. They indicate that the rule be changed to coincide with the state correction rule regarding packages. Prior to the implementation of this rule, the local correctional facilities noticed an increased sophistication in the concealment of contraband in prisoner packages, to include resealing of food and clothing packages. These opportunities diminished significantly. Given the ability for a facility to accept packages from companies such as Walmart, Aramark, Amazon, etc. the inmate’s access to packages is not limited nor places an extreme financial burden on the families.

Sixth, the public comments contend that the rule to provide local correctional facility administrators with greater flexibility regarding the disposition of contraband found in incoming correspondence and packages should be changed to ensure that such contraband is kept as evidence to be used at a disciplinary hearing. These rules apply to the destruction of contraband which presents a threat to the facility sanitation or health, such as perishable food, which has been found in incoming correspondence or packages. Inmates are not given disciplinary write ups or disciplinary hearings regarding this type of contraband and therefore the need to preserve the contraband as evidence for such is no necessary.

Finally, the public comments indicate that the rule reconciling a statutory amendment regarding foreign-state inmates in the Albany County Correctional should be changed due to the individuals being multiple hours away from their families and attorneys. Correction Law section 500-o provides for the sheriff, warden, superintendent, local commissioner of correction may enter into an agreement with a correctional institution of another state to house inmates serving a sentenced exceeding ninety (90) days but less than one year. Any such agreement is subject to the approval of the Commission. In 2002, Correction Law section 500-o was amended to allow the Albany County Correctional Facility to enter into such an agreement with a correctional institution of another state to house inmates serving a sentenced exceeding ninety (90) days but less than two (2) years. The amendment to section 7002.2 of Title 9 is to align the Commission’s standards with Correction Law section 500-o.

The Disability Rights New York group provided comment with regard to 7003.3 and 7010.2 suggesting substantial changes to these sections. However, under review is only the technical corrections that were made to these sections, not the sections themselves.

The Disability Rights New York group also provided comment with regard to 7006.8(a) indicating that the disciplinary hearing timeframes should be amended to allow for adjournments to ensure adequate time for the local correctional facility to arrange for reasonable accommodations that maybe needed and to ensure that the inmate is competent to participate in the hearing. While there are timeframes when the disciplinary hearing are to occur, this section also allows for these times frames to be waived by the inmate. This would allow the jails additional time to arrange for reasonable accommodations for inmates who have a disability.

Disability Rights New York also commented with regard to change in rule 7006.8(h) suggesting that hearing officers should include in the written hearing dispositions how they considered the input of mental health staff. However, under review is only the change of the amount of time a disciplinary hearing disposition must be completed by.