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Inmates Lose Good Time for Program Refusal

D.O.C.S. Today Magazine, October 1999

Last year, 443 inmates had good time withheld, and thus were denied conditional release to parole, for a failure to properly program.

DOCS recently scored a major victory in the courts when a judge agreed with the Department's decision to withhold good time from a convicted sex offender who had refused to participate in sex offender treatment.

Although good time is primarily withheld at Superintendent's Hearings as a result of disciplinary infractions, the Department also has made it a practice of withholding good time ‑ and thus delaying conditional release ‑ if inmates fail to adequately program. And a recent Article 78 decision by New York State Supreme Court Justice Vincent G. Bradley has now given legal credence to that position.

The decision stemmed from a lawsuit filed by a Wyoming Correctional Facility inmate. The Wyoming Time Allowance Committee (TAC)'determined that the inmate, who is serving time for various sex offenses, had not earned his good time due to his consistent refusal to attend the sex offender programs offered to him. The inmate claimed that the programs were voluntary and that to participate would hinder his chances for a successful appeal of his criminal conviction. All of his good time was withheld by the Wyoming TAC and the decision was reaffirmed by Commissioner Goord's designee.

In deciding in favor of the Department, the court indicated that, the Time Allowance Committee's finding that assigned programs include recommended counseling programs is neither arbitrary and capricious, nor illegal, especially ... where ... the nature of petitioner's instant offense clearly indicates that sex offender counseling was reasonably called for."

In addition, Justice Bradley indicated that, "although petitioner is free to refuse to participate, this does not mean that the petitioner can avoid the negative consequences of failing to participate in an 'assigned' program."

The thorough determination of the Time Allowance Committee's decision‑making process, including summaries of program evaluations and recommendations, were critical to the Department's success in this case.

"The decision supports my long‑time position concerning the importance of program participation as a component of good time evaluations," said Commissioner Goord. "Good time accruals should not ‑ and will not ‑ be automatically bestowed upon inmates. Inmates who refuse to participate in required programs, when such programs are reasonably available to them, have not earned their good time and must face the consequences of such refusal.

"The premise is simple," said Commissioner Goord. "An inmate who has had a poor disciplinary record while incarcerated, or has refused to participate in appropriate programming to help prevent future criminal offenses, has not taken a positive, proactive role in the rehabilitation process. Thus, he or she should not be rewarded with early release.

"Conversely," continued Commissioner Goord, "inmates who have exhibited good disciplinary records and have been active participants in appropriate programming are less likely to re-offend and should be considered candidates for conditional release."

Last year, 443 inmates saw good time withheld, and thus delayed their conditional release to parole, for a failure to properly program. That includes sex ofenders who refused to participate in sex offender programming, substance abusers who refused to participate in alcohol and/or substance abuse programming and violent felons who refused to participate in Alternatives To Violence programming.

"We have a responsibility to ensure that parolees have taken the steps necessary to minimize their chances of reoffending and returning to our system," said Commissioner Goord. "Those inmates who have decided not to participate in assigned programming have not taken those important steps.

"By the same token," continued Commissioner Goord, "so that all inmates are properly placed on notice and to protect the Department's interest in all future litigation, it is recommended that, wherever possible, adequate and precise documentation is employed, making it clear that an identified program need is classified as an assigned program.

"In the alternative, whenever possible, documentation should be created informing the inmate that the failure to take the program or programs in question may result in a loss of good time. This is particularly important in cases where an inmate is awarded a certificate of earned eligibility and is then denied release on parole. The necessity for inmates to take additional programs to receive the benefit of good time should be clearly communicated to them."

Commissioner Goord also noted that, "of course, if inmates are unable to participate in a program because of its unavailability at the facility where they are confined, good time should not be withheld."

As the law currently now reads, inmates with indeterminate sentences of less than life can be conditionally released to parole after serving two‑thirds of their maximum sentence provided they have not lost good time due to disciplinary infractions and/or for the lack of appropriate positive programming. Thus, Time Allowance Committees play an important role in ensuring positive adjustment by inmates.

"Positive adjustment is defined by more than just disciplinary issues," said Commissioner Goord. "Programmatic participation is an important component in assessing whether an inmate has exhibited positive adjustment and, as a result, earned the good time for which they are eligible."

Every inmate in the Department's custody has a specific program plan that identifies his or her programmatic needs, and is expected to strictly adhere to the requirements of that individually tailored plan. The program plan should make it clear that the identified programs are mandatory in order to be considered for any early release opportunities, such as conditional release or merit time release.

Time allowance committees evaluate the program participation of each inmate being reviewed for early release consideration to determine if they have made efforts toward achieving those identified goals. Refusals to program, or failure to successfully complete programs, are important considerations when the committee makes its recommendation to the Superintendent as to the amount of good time the inmate has earned. Superintendents are also sensitive to such issues when considering the committee's decision,

"Inmates who have not had recommended loss of good time due to disciplinary infractions and have actively participated in necessary programming should be rewarded for their efforts through good time assessments." Commissioner Goord said. "Also, inmates who have had recommended loss of good time at disciplinary hearings, but who have shown improvement in both disciplinary and programmatic adjustments, may have earned restoration of some or all of their tentatively lost good time."

One of the purposes of recommending loss of good time is to give inmates an incentive to improve upon their adjustment from that time until consideration for early release by the TAC. If they do so, all or part of the tentatively lost good time could reasonably be restored.

Conversely, inmates who have failed to show improvement in disciplinary and programming areas have not earned a restoration of all or part of their tentatively lost good time, and thus should not be rewarded.

"This Department plays an important role in ensuring public safety to the citizens of New York," said Commissioner Goord. "The release of those inmates who are best prepared to return to the community and lead productive, law‑abiding lives is a critical part of that responsibility."

How A State Supreme Court Judge Decided The Case

New York State Supreme Court Justice Vincent G. Bradley recently issued a decision in the case of an inmate who sued DOCS because the Time Allowance Committee withheld good time due to his failure to participate in assigned programming, specifically sex offender counseling. Justice Bradley concurred with the Department's position that the denial of good time was appropriate and legal, and did not violate the inmate's Fifth Amendment rights.

Following is the text of the decision and order of the court.

This letter represents the decision and order of the Court in the above‑referenced pro se Article 78 proceeding. The petitioner, an inmate at Wyoming Correctional Facility, challenges the October 22, 1998, decision by the Time Allowance Committee which withheld all good time from the petitioner due to his refusal to participate in a sex offender program offered by the Department of Correctional Services. The respondent opposes the petition on the merits.

After reviewing the parties' submissions, the Court concludes that the petition must be dismissed, without costs. Petitioner is presently incarcerated pursuant to his conviction on charges of first‑degree rape, first‑degree sodomy (and) first‑degree sexual abuse, having been found guilty in 1992 of raping, sodomizing and sexually abusing his victim and binding her hands and placing a plastic bag over head. Respondent relies on the fact that in November 1995, a program plan agreement was prepared for petitioner at Collins Correctional Facility which provided that sex offender counseling was mandatory for the purposes of TAC decisions, etc. Petitioner essentially alleges that although this plan agreement does exist, whether to attend the sex offender counseling was up to him. Therefore, he concluded that the program was "recommended" rather than "assigned" program and, under Correction Law sec. 803(l)(a), should not have been considered by the Time Allowance Committee in making its determination. (Correction Law section 803(l)(a) only allows a TAC to consider petitioner's performance in "assigned" programs).

As this Court previously concluded in Ferry v. Goord (Albany County Supreme Court, December 7, 1998), because neither the Correction Law nor regulations enacted pursuant thereto define what constitutes an "assigned program," the Time Allowance Committee's finding that assigned programs includes recommended counseling programs is neither arbitrary and capricious nor illegal, especially under the circumstances presented here, as where, as was the case with Ferry, the nature of the petitioner's instant offense clearly indicates that sex offender counseling was reasonably called for. This conclusion is also consonant with the well‑established legal proposition that the interpretation given statutes and regulations by the agency responsible for their administration will, if not irrational and unreasonable, be upheld (Matter of Blake v. Mann, 75 NY2nd 752 (1989).)

Petitioner's additional argument that participating in the sex offender counseling program would have been an admission of his crimes (petitioner continues to deny his guilt) and, therefore, violative of his Fifth Amendment Right against self incrimination is without merit.

First, this cannot be considered a violation since petitioner stands already convicted of the crime to which he fears he would be confessing (Petitioner states that he is willing to participate in the program, but that he cannot comply with the program requirement which apparently requires that participants expressly admit their guilt).

Second, petitioner's claim that this alleged Fifth Amendment violation would undermine the appeal of his conviction is also without merit since the respondent's submissions establish that no appeal of petitioner's conviction is presently pending, and the time for perfecting an appeal has apparently passed.

Finally, the Court agrees with the respondent, assuming arguendo that petitioner's participation in a sex offender program will constitute an admission of guilt, there is no constitutional defect unless petitioner's participation also accompanied by either a compelled waiver of his Fifth Amendment privilege or evidence of this participation is used against him in a subsequent criminal proceeding on the same charge (Wyley v. Doory, 48 F3d 773 (Fourth Circuit 1994).) Here, there is no proof that petitioner was forced to waive the Fifth Amendment privilege or that evidence of his program participation may be used against him in a subsequent criminal proceeding.

Last, petitioner's claim that the sex offender program is therapy and he has a right to refuse it pursuant to 7 NYCRR 7651.2 is also without merit. Although petitioner is free to refuse to participate, this does not mean that the petitioner can avoid the negative consequences of failing to participate in an "assigned" program.