Senate Bill S6727

                                 
BILL NUMBER: S6727

SPONSOR: SALAZAR
 
TITLE OF BILL:

An act to amend the correction law and the civil practice law and rules,
in relation to the evidentiary standard for evidentiary and disciplinary
hearings

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill aims to make prison discipline more humane by reducing the
risk that incarcerated people will be found guilty and punished for
misbehavior in prison, based on false allegations.

 
SUMMARY OF PROVISIONS:

Section 1: Amends section 137 of the correction law by adding a new
subdivision 7, providing that the evidentiary standard applicable to all
disciplinary hearings in the Department of Corrections and Community
Supervision relating to allegations of misconduct on the part of a
person who is incarcerated shall be the evidentiary standard of "prepon-
              

derance of the evidence".

Section 2: Amends subdivision 4 of section 7803 of the civil practice
law and rules, as applicable to Article 78 proceedings challenging the
outcome of an evidentiary or disciplinary hearing held pursuant to the
correction law, to provide that the standard applicable in these cases
shall be the "preponderance of the evidence" standard.

 
JUSTIFICATION:

Under current law prison disciplinary charges will be upheld at a prison
discipline hearing, and in a subsequent Article 78 proceeding challeng-
ing the hearing disposition, if the charges are supported by substantial
evidence. Under the current standard a person can be found guilty if
there is any evidence that reasonably supports guilt, even if the weight
of the evidence supports a conclusion that the person is not guilty.
This legislation would change the requirement to preponderance of the
evidence, meaning that prison disciplinary charges could only be upheld
if it is more likely than not that the person committed the alleged
violation.

Other standards of proof are used in different kinds of legal
proceedings. In a criminal case a defendant must be found guilty beyond
a reasonable doubt. In certain cases, evidence must be "clear and
convincing." In most civil cases the burden on the plaintiff is to prove
the case by a "preponderance of the evidence," meaning, the weight of
the evidence is slightly in favor of the plaintiff. The plaintiff can
meet the preponderance of the evidence standard if 51% of the evidence
supports their case.

Prison disciplinary hearings frequently turn on credibility, in that a
Department of Corrections and Community Supervision (DOCCS) employee
alleges misbehavior, and an incarcerated person typically denies engag-
ing in misbehavior, and may offer a very different account of what
happened. With respect to violent altercations, what staff allege as
"assault on staff" are often the incidents that incarcerated people
describe as unprovoked assaults by staff upon them. In addition, people
who are incarcerated frequently complain that they have been "set up" by
an officer finding, or claiming to have found a weapon or other contra-
band, attributed to the individual.

Because the standard of proof in a prison discipline hearing is so low,
it is difficult to impossible for an incarcerated person to successfully
disprove allegations of misconduct. Yet it is inherent in the institu-
tional setting of prison discipline hearings that credibility determi-
nations are not made on a level playing field.  Hearing officers
employed by DOCCS almost always accept statements of their co-workers at
DOCCS as credible and find contrary statements by incarcerated people as
lacking in credibility. Any statement by staff that is accepted by the
hearing officer as being credible can, by itself, support a determi-
nation that an incarcerated person is guilty of misbehavior if the
applicable standard is "substantial evidence".

Raising the standard of proof in a prison discipline hearing, and in an
Article 78 challenging the evidentiary sufficiency of such a hearing,
from "substantial evidence" to a "preponderance of the evidence" will
give an incarcerated person a fair opportunity to rebut charges that are
not supported by the weight of the evidence, including fabricated and
retaliatory charges.

 
PRIOR LEGISLATIVE HISTORY:

None.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.